((nrn^U 2Iam ^rlynnl SIxhtatg Cornell University Library KF 765.C56 New probate law and practice, with annot jllllllllllllll 3 1924 018 803 332 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/cu31924018803332 Independent Pressroom San Francisco, Cal. INSCRIBED TO THE BENCH AND BAR OF THE STATES AND TERRITORIES ENUMERATED ON THE TITLE PAGE OF THIS VOLUME AS A TRIBUTE TO THEIR LEARNING, RESEARCH, AND ARDUOUS LABORS IN EVOLVING A SYSTEMATIC METHOD OF PROCEDURE UNDER THE STATUTORY SYSTEM GOVERNING COURTS IN THE EXERCISE OF THEIR JURISDICTION OVER THE ESTATES OF DECEASED PERSONS NEW PEOBATE LAW AND PBACTICE WITH ANNOTATIONS AND FORMS FOE USE IN ALASKA, ARIZONA, CALIFORNIA COLORADO, IDAHO, KANSAS, MONTANA, NEVADA, NEW MEXICO, NORTH DAKOTA, OKLAHOMA, OREGON, SOUTH DAKOTA, UTAH, WASHINGTON, AND WYOMING BY W. S. ^URCH OF THE SAN FRANCISCO BAB AUTHOK OP ChTJBCH ON HABEAS CoRPDS, ANNOTATED SaN FbANCISC* Chajitek, Etc. m TWO VOLUMES VOLUME ONE SAN FRANCISCO BENDER- MOSS COMPANY lAW PUBLISHERS AND BOOKSELLEKS 1909 Copyright 1909 By Bender-Moss Company PEEFACE. The plan of this work speaks for itself. It embraces the full and correct text of all sections of the California codes, bearing on probate law and practice. Probate law is a creature of the statute. Each point thereof is governed by the statute in force in the par- ticular state, and, as little aid can be gained froni text-writers, or from the decisions of other states where the statutes are not identical, or at least analogous, tables of " Analogous and Identical Statutes," so far as such statutes could be conveniently found, have been strewn throughout the volume to facilitate reference to the laws of other states than those of California. Forms have been given for the various steps in probate pro- ceedings, with " Explanatory Notes," suggesting what ia necessary to fill the blanks left therein. Many of these forms are quite brief, but it is believed that each one contains all the requirements of the statute involved, siome ot »nem nave been in use, in Cali- fornia, for fifty years. Ions nnrore rue coaes WPie adopted; but many of them are, in substance, the same as tnose promulgated by the Honorable Lucien Shaw, Presiding Justice of Department One of the Supreme Court of California, while he was a Superior Judge of Los Angeles. We have made free use of the forms approved by the learned justice, with the hope that they will simplify probate pro- ceedings, decrease the volume of papers on file, make the record less cumbersome, and save the time and patience of judges on the bench, — a desideratum which seems to have been earnestly wished by the learned justice. There should not, however, be a " slavish adherence " to any of the forms given, but it will be convenient to follow the phraseology with such omissions and additions as the particular estate may require. Yet, at all times, and under all circumstances, the practitioner, before drawing a form, should inform himself of all requirement^ of the latest statute on the subject, and see that such requirements are incorporated therein. It has not been deemed necessary to give the form of affidavit, citation, order that notice be given, and the notice itself, in every proceeding, as the forms of such matters are very much alike, and to give them in each instance would lead to much useless repetition. The form of the order, in any particular case, is suggestive of what the affidavit, petition, notice, and citation should contain. It is thought that the forms given in the following pages are full and complete enough for general purposes, and that they can be used, with slight modifications, (ill) PREFACE. in all the Pacific group of states. In particular or unusual cases, the additions or omissions suggested by the statute can easily be made. Courts have been named in the forms as " the court of the county of , state of ," as being a designation likely to create the least confusion, and which can easily be changed where such is not the exact title. It will be noticed, too, that the words, " Dated," etc., fall below the judge's signature in some instances where neither the judge's signature nor a. date is necessary to the validity of the paper. The words have simply been so placed to meet the exigences of the type-set page. Nor does the law require the addresses of attorneys to be stated, in giving notices, etc., or that the file numbers of papers should be given, yet these matters should appear on the papers as a matter of convenience to all persons interested therein. Many extended notes on various topics of pi-obate law and practice have been interspersed throughout the volume, and include much of what the courts have said respecting the matters under consideration. A note follows each chapter, with few exceptions, discussing the law of the subject of the chapter. Cases on the con- struction and interpretation of wills, undue influence in the execution of wills, etc., are as numerous as the sands of the sea-shore. Hence, as " every will furnishes its own law," and, as the proof sufficient to establish undue influence must necessarily depend on the facts and circumstances of each particular case, no attempt has been n^ade to give anything more than a mere general statement of the prin- ciples governing such matters. Their discussion, in detail, would of itself fill a large volume, and it may be found in almost any work on Wills. To avoid all misconception, it may be stated' here, that when reference has been made, in the notes, to a " probate court,'' it is understood to be that branch or department of various courts, wherein probate proceedings are conducted. The power of a superior, district, or county court, exercising probate jurisdiction, is the same as it would be if such court were, in fact, a separate court. An effort has been made to give a key to the whole field of probate law in the states named on the title page of this work. Most of the law devoted to a chapter will be found within its confines, and the index will afford a means of finding any incidental treatment of it else- where. Matters of like kind are brought together as closely as possible, and all of the material has been so arranged as to give one the best grip on probate law and practice that the author knows how to give. The Hawaiian Islands have not been neglected. The common law of England was adopted there in 1893, and the Islands were a part of the United States on August 16, 1898. There is some good probate law in the former little kingdom, and Hawaiian reports have been cited as authority on a number of points. (iv) PREFACE. The practitioner is cautioned to see that all notices required by statute or order of court have been served, posted, or published for the required length of time; and that affidavit of service, or of posting, or of publication of such notices is made and filed. Give notice of application, when necessary, for all orders of court, and see that everjrthing is recorded which the law requires to be recorded. It is hoped that this volume will fill a long-felt professional want, and that it will be as favorably received as the former works of the author. San Francisco, February, 1909. WM. 8. CHUECH. (V) CONTENTS. PAET I. ADOPTION, SUCCESSION, AND ESCHEAT. CHAPTER 1. ADOPTION. § 1. Of child. ■ § 2. Who may adopt. § 3. Consent to adoption. [By wife.] § 4. Same. Orphans and abandoned children. § 5. Consent of child. § 6. Proceedings on adoption. § 7. Form. Petition for leave to adopt a minor. § 8. Form. Consent to adoption. § 9. Form. Agreement to adopt. § 10. Judge's order of adoption. § 11. Form. Order of adoption. § 12. Effect of adoption. § 13. Same. On parents. § 14. Of illegitimate child. For synopsis of note on the law of adoption, see pp. 1, 11. CHAPTER n. SUCCESSION. § 15. Definition of. § 16. Estate passes to whom. § 17. Succession to and distribution of property. § 18. Illegitimate children to inherit in certain events. § 19. Succession to property of illegitimate child. § 20. Degree of kindred, how computed. § 21. Same. [Collateral line.] i 22. Same. [Ascending and descending, direct line.] Vlll CONTENTS. { 23. Same. [Degrees in direct line.] f 24. Same. [Degrees in collateral line.] § 25. Eelatives of the half blood. § 26. Advancements are part of distributive share. § 27. Advancements, when too much, or not enough. § 28. What are advancements. § 29. Value of advancements. How determined. § 30. When heir advanced to dies before decedent. { 31. Inheritance of husband and wife from each other. § 32. Distribution of common property on death of wife. § 33. Distribution of common property on death of husband. § 34. Inheritance by representation. § 35. Inheritance by aliens. § 36. SfEect of not claiming succession. § 37. Aliens inheriting must claim within five years. § 38. Property escheats to state when. § 39. Escheated property is subject to what charges. § 40. Successor is liable for decedent's obligations. § 41. C/Ouvicted murderer of decedent not to succeed. For synopsis of note on succession, see pp. 22, 38. CHAPTER IIL PEOCEEDINGS EELATIVE TO ESCHEATED ESTATES. S 42. Property escheats when. % 43. Attorney-general to bring action. S 44. Manner of commencing. S 45. form. Information of attorney-general. I 46. Form. Order to show cause. § 47. Eeeeiver of rents and profits. § 48. Appearance, pleadings, trial, judgment, and sale. § 49. Form. Judgment. §50. Proceedings after judgment by persons claiming escheated estates. S 51. Form. Petition by heir to recover money eseueatea to the state. For synopsis of note on escheat, see pp. 59, CONTENTS. IX PAKT II. GUARDIAN AND WARD. CHAPTBE I. GUARDIANSHIP OP MINORS. S 52. Guardian, what. § 53. Ward, what. § 54. Kinds of guardians. § 55. General guardian, what. § 56. Special guardian, what. 5 57. Appointment by will. § 58. Awarding custody. Appointment of general guardian. § 59. Form. Petition for writ of habeas corpus for detention of child. § 60. Form. Writ of habeas corpus. § 61. Form. Return to writ of habeas corpus. § 62. Relation confidential. i 63. Guardian is under direction of court. § 64. Death of a joint guardian. § 65. Removal of g^uardian. § 66. Guardian appointed by parent, how superseded. § 67. Suspension of power of guardian. § 68. Release by ward. § 69. Guardian's discharge. For synopsis of note on minors and their custody, guardians, commitment, and habeas corpus, see pp. 75, 85. CHAPTER n. GUARDIANSHIP OF MINORS (continued). § 70. Superior court to appoint guardians. On what petition. § 71. Form. Petition for appointment of guardian. § 72. Form. Notice of application for letters of guardianship. § 73. Form. Order appointing day for hearing petition for guardi- anship, and directing notice to be given. § 74. Form. Another form of order appointing day for hearing petition for guardianship, and directing notice to be given. § 75. Form. Consent of relative to appointment. : CONTENTS. 76. Form. Order appointing guardian. 77. Foria. Short form of order appointing guardian. 78. Form. Consent of guardian. 79. When minor may nominate guardian. When not. 80. Appointment of, by court. Minor over fourteen. 81. Nomination by' minors after fourteen. 82. Form. Nomination of guardian by minor. 83. Who may be guardian. Marriage does not affect guardianship. 84. Powers and duties of guardian. 85. Bond of guardian, conditions of. 86. Form. Bond of guardian upon qualifying. 87. Form. Justification of sureties on bond of guardian. 88. Form. Bond of guardian (upon qualifying), executed by cor- poration. 89. Form. Acknowledgement, by corporation, of execution of guardian's bond upon qualifying. 90. Form. Letters of guardianship. 91. Form. Oath of guardian. 92. Form. Certificate of clerk as to copy of letters of guardian- ship. 93: Court may insert conditions in order, 94. Letters and bond to be recorded. I 95. Maintenance of minor out of income of his own property. 96. Form. Petition for allowance for expenses of education and maintenance, i 97. Form. Order of allowance for expenses of education and maintenance. I 98. Guardian to give bond. Powers limited. 99. Power to appoint guardian ad litem not impaired. i 100. Transfer of proceedings from one county to another county. Petition for removal. j 101. Form. Petition for removal of proceeding. i 102. Form. Order fixing time of hearing on petition for removal. i 103. Form. Order for removal of proceeding. i 104. When power of guardian is superseded. CHAPTER III. POWERS AND DUTIES OF GUARDIANS. 105. To pay debts of ward out of ward's estate, i 106. Same. (New section on same subject.) 107. Guardian to recover debts due his ward, and represent him. 108. To manage estate, maintain ward, and to sell real estate. 109. Form. Affidavit and order remitting clerk's fees. CONTENTS. Xi § 110. Form. Consent of guardian ad litem to settlement of admin- istrator's account. § 111. Maintenance, support, and education of ward. How enforced. § 112. Powers of guardians in partition. § 113. To return inventory of estate of ward. Appraisers to be appointed. Like proceedings when other property is ac- quired. § 114. Settlements of guardian. § 115. Form. Guardian's annual account. § 116. Form. Order appointing referee of guardian's account, and adjourning settlement. § 117. Allowance of accounts of joint guardians. § 118. Expenses and compensation of guardians. CHAPTEE IV. SALE OF PEOPEETY AND DISPOSITION OP PE0CEED8. § 119. May sell property in certain cases. § 120. Sale of real estate to be made upon order of court. § 121. Application of proceeds of sales. § 122. Investment of proceeds of sales. § 123. Order for sale, how obtained. § 124. Form. Petition of guardian for order of sale. § 125. Form. Verification of guardian's petition for order of sale. § 126. Notice to next of kin, how given. § 127. Form. Order to show cause why application for leave to sell real estate should not be granted. § 128. Form. Order for sale of property by guardian. § 129. Form. Notice of guardian's sale of real estate (at public auction). § 130. Form. Notice of guardian's sale of real estate (at private sale). § 131. Copy of order to be served, published, or consent filed. § 132. Hearing of application. § 133. Who may be examined on such hearing. § 134. Costs to be awarded to whom. § 135. Order of sale to specify what. § 136. Bond before selling. § 137. Form. Bond of guardian on sale of real estate. § 138. Form. Justification of sureties on guardian's bond for sale of real property. § 139. Proceedings to conform with what title. § 140. Limit of order of sale. § 141. Conditions of sales of real estate of minor heirs. Bond and mortgage to be given for deferred payments. § 142. Court may order investment of money of ward. XU CONTENTS. CHAPTEE V. NON-RESIDENT GUARDIANS AND WARDS. § 143. Guardians of non-resident persons. § 144. Powers and duties of guardians appointed. § 145. Such guardians to give bonds. § 146. To what guardianship shall extend. § 147. Removal of non-resident ward's property. § 148. Proceedings on such removal. § 149. Discharge of person in possession. CHAPTER VI. GENERAL AND MISCELLANEOUS PROVISIONS. § 150. Examination of persons suspected of defrauding wards or of concealing property. § 151. Removal and resignation of guardian, and surrender of estate. § 152. Guardianship, how terminated. § 153. New bond, when required. § 154. Guardian's bond to be filed. Action on. § 155. Limitation of actions on guardian's bond. § 156. Limitation of actions for the recovery of property sold. § 157. More than one guardian may be Appointed. § 158. Order appointing guardian, how entered. § 159. What provisions of code apply to guardians. § 160. Decree that conveyance be made for incompetent. For synopsis of note on guardian and ward, see pp. 156, 163. CHAPTER VII. GUARDIANS OP INSANE AND OTHER INCOMPETENT PERSONS. § 161. Notice of time and place of hearing. § 162. Same. Certificate of inability to attend. § 163. Appointment of guardian by court after hearing. § 164. Form. Petition for appointment of guardian of insane person. §165. Form. Petition for appointment of guardian of incompetent person. § 166. Form. Order for notice of hearing of petition for guardian- ship. Incompetent person. § 167. Form. Order appointing guardian of incompetent person. § 168. Powers and duties of such guardians. CONTENTS. Xlll f 169. Form. Notice of sale of real estate by guardian of incompe- tent person. § 170. Form. Notice of guardian's sale of incompetent's real estate at private sale. § 171. Form. Order to show cause why order of sale of insane per- son's real estate should not be granted. § 172. Form. Order to show cause why order of sale of incompe- tent's real estate should not be granted. § 173. Form. Order directing payment of monthly allowance for support of feeble-minded. § 174. Proceeding for restoration to capacity. § 175. Form. Petition for judgment of restoration to capacity. § 176. Form. Judgment of restoration to capacity. § 177. Definition of " incompetent." For synopsis of note on guardianship of insane persons and other incompetent persons, see pp. 230, 243. CHAPTER Vin. SPENDTHRIFTS AND DRUNKAEDS. i 178. Court may appoint guardian for spendthrift. i 179. Notice to spendthrift. Hearing and appointment. i 180. Copy of complaint to be filed. What contracts are rendered void, i 181. Allowance to ward for expense of defense. i 182. Powers and duties of guardian for spendthrift. i 183. Meaning of term " spendthrift." i 184. Drunkard squandering his property, i 185. Judgment of drunkenness. i 186. Relative may make complaint. i 187. Service of copy of complaint. 188. Information. Appointment of guardian. Powers. i 189. Form. Complaint against habitual drunkard. i 190. Vacation of judgment of drunkenness. 191. Form. Petition to vacate judgment of drunkenness. For synopsis of note on spendthrifts, see pp. 261, 267. CHAPTER IX. COMMITMENT AND DISCHARGE OF INSANE PERSONS. § 192. Charges of insanity, and proceedings thereon. i 193. Form. Affidavit of insanity. 194. Form. 195. Form. 196. Form. 197. Form. 198. Form. XIV CONTENTS. "Warrant of arrest. Certificate of service of warrant of arrest. Order fixing time for hearing and examination. Certified copy of order for hearing and examination. Certificate of service of certified copy of order for hearing and examination. § 199. Form. Exhibit A. Medical examination of , charged with insanity. § 200. Form. Physicians' certificate of insanity. § 201. Form. Judgment of insanity and order of commitment of insane person. § 202. Form. Statement of financial ability. § 203.. Form. Clerk's certificate as to papers. § 204. Attendance and examination of witnesses. § 205. Certificate of medical examiners. § 206. Order of commitment. § 207. Execution of the order of commitment. § 208. Eight to refuse_to receive person committed. § 209. Jury trial. § 210. Habeas corpus. § 211. State hospitals, discharge of patients from. § 212. Powers of persons, whose incapacity has been adjudged, after restoration to reason. § 213. Contracts by persons without understanding. § 214. By persons of unsound mind. For synopsis of note on the commitment and discharge of insane persons, see pp. 268, 286. PART HI. JURISDICTION OF COUETS. CHAPTER I. JUEISDICTION OF COURTS. § 215. Over the estate, when exercised. § 216. First application. Exclusive jurisdiction. For synopsis of note on jurisdiction of courts, see pp. 293, 295. CONTENTS. XV PAET IV. EXECUTORS AND ADMINISTEATORS. THEIR LET- TERS AND BONDS. REVOCATION OF LETTERS. SPECIAL ADMINISTRATORS. WILLS FOUND AFTER LETTERS GRANTED. DISQUALI- FICATION OF JUDGES. TRANSFERS. REMOVALS AND SUSPENSIONS. CHAPTER I. LETTERS TESTAMENTARY AND OF ADMINISTRATION WITH THE WILL ANNEXED. HOW AND TO WHOM ISSUED. § 217. Corporations as executors. § 218. Letters on proved will must issue to whom. § 219. Eorm. Affidavit of no knowledge of subsequent will. § 220. Who are incompetent as executors. § 221. Form. Petition for letters of administration with the will annexed. § 222. Form. Order admitting will to probate, and for letters of administration with the will annexed. § 223. When no executor is named in will. § 224. Interested parties may file objections. § 225. Form. Objections to issuance of letters testamentary. § 226. Married woman may be executrix. § 227. Executor of an executor. § 228. Form. Petition for letters, etc., upon estate de bonis non. § 229. Form. Order appointing administrator (de bonis non). § 230. Letters where person is absent from state, or a minor. § 231. Acts of a portion of executors are valid when. § 232. Authority of administrators with will annexed. Letters, how issued. For synopsis of note on letters testamentary and of administra- tion with the win annexed, see pp. 321, 332. CHAPTER II. FORM OF LETTERS. § 233. Form of letters testamenary. • § 234. Form. Oath of executor or executrix. XVI CONTENTS. S 235. . Form. Clerk's certificate that letters testamentary have been recorded. § 236. Form of letters of administration with the wiU annexed. § 237. Form. Oath of administrator with the wiU annexed. § 238. Form. Clerk's ceryficate that letters of administration with the will annexed have been recorded. ^ 239. Form of letters of administration. I 240. Form. Oath of administrator or administratrix. § 241. Form. Clerk's certificate that letters of administration have been recorded. For synopsis of note on oath and seal to letters, see pp. 341,-346. CHAPTEE III, LETTBES OF ADMINISTRATION. TO WHOM AND THE OKDEE ■ IN WHICH THEY AEE GEANTED. S 242. Order of persons entitled to administer estate. Partner not to administer. § 243. Preference pf persons equally entitled. I 244. In discretion of court to appoint administrator when. § 245. When minor or incompetent is entitled, who must be ap- pointed. § 246. Who are incompetent to act as administrators. % 247. Married woman may be administratrix. CHAPTER IV. PETITION AND CONTEST FOE LBTTEES, AND ACTION THEEEON. I 248. Applications, how made. S 249. Form. Petition for letters of administration. 5 250. Form. Petition by corporation for letters of administration. I 251. Form. Petition for letters, etc., to others than those entitled. j 252. When granted. I 253. Notice of application. Day of hearing to be set by clerk. j 254. Form. Notice of hearing of petition for letters of administra- tion. i 255. Contesting application. Hearing. \ 256. Form. Affidavit of posting of notice of hearing of application for letters of administration. (By deputy county clerk.) CONTENTS. XVll S 257. Form. Affidavit of posting of notice of hearing of application for letters of administration. (By any person over twenty- one years of age.) § 258. Form. Objections to appointment of administrator. % 259. Form. Order that application for letters and contest for letters be heard together. § 260. Hearing of proofs and issuance of letters. § 261. Form. Order appointing administrator. ^ 262. Evidence of notice. § 263. Grant to any applicant. 5 264. What proofs must be made before granting letters of adminis- tration. % 265. Bequest in writing. Letters may issue to whom. § 266. Form. Eequest for another's appointment as administrator. For synopsis of note on letters of administration, see pp. 352, 364. CHAPTER V. EEVOCATION OF LETTERS, AND PEOCEEDINGS THEREFOR. § 267. Revocation of letters of administration. % 268. Form. Petition for revpcation of letters of administration in favor of one having a prior right. ■§ 269. Form. Notice of hearing of petition to revoke letters, and for letters of administration to issue to one having a pi;ioT right, and to show cause. I 270. When petition filed, citation to issue. -§ 271. Form. Citation to show cause why letters of administration should not be revoked, and relative be appointed instead. § 272. Hearing of petition for revocation. § 273. Form. Order revoking letters of administration, and appoint- ing a person having a prior right. :| 274. Prior rights of relatives entitle them to revoke prior letters. For synopsis of note on revocation of letters, see pp. 395, 401. CHAPTER VI. OATHS AND BONDS OF EXECUTORS AND ADMINISTRATORS. i 275. Administrator or executor to take oath. Letters and bond to be recorded. -§ 276. Bond of administrators. Form and requirements of. Penalty. 4 277. Form. Bond given upon qualifying. Probate — B XVUl CONTENTS. § 278. Form. Acknowledgment, by eorporation, of execution of bond. § 279. Form. Bond with numerous sureties. § 280. Form. Bond with corporation as surety, § 281. Additional bond, when required. § 282. Form. Additional bond to be given on sale of real estate. §283. Conditions of bonds. § 284. Separate bonds when more than one administrator. § 285. Several recoveries may be had on same bond. § 286. Bonds, and justification of sureties on. Must be approved. § 287. Form. Justification of sureties. § 288. Form. Justification of sureties on additional bond. § 289. Form. Examination of surety. § 290. Form. Affidavit that bond is insufficient. § 291. Citation and requirements of judge on deficient bonds. Addi- tional security. § 292. Bight ceases when sufficient security not given. § 293. When bond may be dispensed with. Order that executor file a bond, though will requires none. § 294. Petition showing failing sureties. Further bonds. § 295. Form. Petition for further security in case of failing sureties. § 296. Form. Order for citation to administrator or executor when sureties are insufficient. §297. Citation to executor, etc., to show cause against such applica- tion. § 298. Form. Citation to representative when sureties are insufficient. § 299. Form. Order that further security be given. § 300. Hearing. Further security may be ordered when. § 301. Neglecting to obey order. § 302. Form. Order revoking letters on failure to give further security. § 303. Suspending powers of executor, etc. § 304. Further security on court's own motion. § 305. Eelease of surety. § 306. Form. Petition of surety to be released. § 307. Form. Order for citation, on petition of surety to be released. § 308. Form. Citation to administrator to give further security, where surety seeks to be released. § 309. Non-liability of new sureties. § 310. Form. Order that surety be released. § 311. Neglect to give new sureties forfeits lettere. § 312. Form. Order revoking letters on failure to give new sureties. § 313. Applications to be determined at any time. § 314. Liability on bond. For synopsis of note on bonds of executors and administrators and liability thereon, see pp. 409,434, CONTENTS. XIX CHAPTEE Vn. SPECIAL ADMINISTEATOES, AND THEIE POWERS AND DUTIES. i 315. Special administrator, when appointed. i 316. rorm. Petition for appointment of special administrator. i 317. Form. Order appointiag special administrator. t 318. Special letters may issue at any time, i 319. Form. Special letters of administration. i 320. Form. Clerk's certificate that special letters of administra- tion have been recorded, i 321. Preference given to persons entitled to letters, j 322. Special administrator to give bond and take oath. ) 323. Form. Bond of special administrator. ) 324. Duties of special administrator. \ 325. Special administrator's powers cease when. \ 326. Special administrator to render account. For synopsis of note on special administrators, see pp. 453, 458. CHAPTER Vni. WILLS FOUND AFTEE LETTEES OF ADMINISTEATION GRANTED, AND MISCELLANEOUS PROVISIONS. § 327. Letters must be revoked when. § 328. Power of executor in such a case. § 329. Remaining administrator or executor to continue when his col- leagues are disqualified. § 330. Who to act when all acting are incompetent. § 331. Executor or administrator may resign when. Court to appoint successor. Liability of outgoer. § 332. Form. Notice of intention to resign. § 333. Form. Resignation of representative. §,334. All acts of executor, etc., valid until his power is revoked. § 335. Transcript of court minutes to be evidence. For synopsis of note on incapacity of representative" to act, see pp. 468, 473. CHAPTER IX. DISQUALIFICATION OP JUDGES, AND TEANSFEES OF ADMINISTEATION. § 336. When judge not to act. § 337. Transfer of probate matters to adjoining county. § 338. Form. Order transferring proceedings. XX CONTENTS. § 339. Transfer not to change right to administer. Eetransf er, how made. § 340. Form. Petition for order retransf erring proceeding. § 341. Form. Order retransf erring proceeding. § 342. When proceedings must be returned to original court. For synopsis of note on disqualification of judge, and transfer of proceedings, see pp. 475,480. CHAPTER X. EEM0VAL8 AND SUSPENSIONS IN CEETAIN CASES. § 343. Suspension of powers of executor. § 344. Form. Affidavit for removal. § 345. Form. Order suspending administrator or executor. § 346. Form. Order suspending powers of administrator or executor until question of waste can be determined. S 347. Form. Order restoring powers of suspended administrator or executor. § 348. Bevocation of letters when. §349. Form. Order revoking letters of administration. (Short form.) § 350. Form. Order revoking letters for wasting estate, § 351. Any party interested may appear on hearing, i 352. Form. Allegations of cause for removal. § 353. Notice to absconding executors and administrators. § 854. Form. Order to show cause, and directing notice to absconding administrator or executor. S 355. Court may compel attendance. For synopsis of note on removal, suspension, and resignation of executors or administrators, see pp. 481, 489. PAET V. INYENTORY AND COLLECTION OF EFFECTS OF DECEDENT. CHAPTER I. INVENTORY, APPRAISEMENT, AND POSSESSION OF ESTATE. % 35<6. Inventoiy to include homestead. § 357. Appraisement, and pay of appraisers. CONTENTS. XXI § 358. Oath of appraisers. Inventory, how made, § 359. Form. Order appointing appraisers. § 360. Form. Certificate of appointment of appraisers. § 361. Form. Oath of appraisers to appraise property. § 362. Form. Inventory and appraisement. § 363. Form. Oath of administrator as to property. § 364. Form. Certificate of appraisers. § 365. Form. Bill of appraisers, and oath thereto. § 366. Inventory and appraisement. Money. § 367. BSect of naming a debtor executor. § 368. Discharge or bequest of debt against executor. § 369. Oath to inventory. § 370. Letters may be revoked for neglect of administrator. § 371. ' Form. Order directing notice to show cause why letters should not be revoked for neglecting to return inventory. § 372. Form. Order of removal for neglecting to file inventory. § 373. Inventory of after-discovered property. § 374. Form. Order to show cause why administrator should not be removed for not causing after-discovered property to be appraised and inventoried. § 375. Administrator or executor to possess all real and personal estate. § 376. Executor or administrator to deliver real estate to heirs or devisees when. § 377. Surviving heirs may collect money deposited in bank. § 378. Form. Affidavit to collect bank deposit of deceased depositor. For synopsis of note on effects of decedents, inventory and ap- praisement, and possession of estate, see pp. 501, 516. CHAPTER n. EMBEZZLEMENT AND SUERENDEE OP PEOPEETY OF ESTATE. § 379. Embezzlement of estate before issuance of letters. § 380. Citation to persons suspected of having embezzled estate, etc. § 381. Form. Complaint charging concealment, embezzlement, etc., of estate. § 382. Form. Citation to answer for alleged embezzlement of estate, etc. § 383. Eefusal to obey citation. Penalty. § 384. Form. Commitment for contempt. § 385. Citation to account for estate. For synopsis of note on embezzlement of property of estate, see pp. 536, 542. txii CONTENTS. PART VI. SUPPORT OF FAMILY. EXEMPT PROPERTY. HOMESTEAD. CHAPTER I. SUPPORT OF FAMILY. EXEMPT PEOPEETT. i 386. Bight to remain in possession of homestead, etc. S 387. Form. Order making provision for support of family until return of inventory. S 388. All property exempt from execution to be set apart for use of family. I 389. Form. Petition for decree setting apart homestead for use of family. i 390. Form. Order setting apart recorded homestead of value less than five thousand dollars. Community property. S 391. Form. Order setting apart recorded homestead, of value less than five thousand dollars, selected by decedent out of his or her separate property, f 392. Form. Order setting apart recorded homestead, of value less than five thousand dollars, selected by the survivor only, out of decedent's separate property. § 393. Form. Order setting apart homestead where none was re- corded. { 394. Form. Order setting apart property exempt. i 395. Form. Petition for order setting apart personal property for use of family and for family allowance. § 396. Form. Affidavit of posting notice of hearing of petition for family allowance. S 397. Form. Notice of hearing petition for family allowance. I 398. Form. Order for family allowance. § 399. Extra allowance may be made. § 400. Payment of allowance. § 401. Property set apart, how apportioned between widow and chil- dren. § 402. Administration when estate does not exceed fifteen hundred' dollars. § 403. Form. Order that summary administration be had. § 404. Form. Notice to creditors. Summary administration. §405. Form. Order to show cause why entire estate should not be assigned to widow and minor children. CONTENTS. XXlll § 406. Form. Notice of application for order to set aside all of decedent's estate for the benefit of his family. § 407. Form. Notice of time and place of hearing application for setting aside entire estate for use and support of family. § 408. Form. Affidavit of posting of notice of petition for assign- ment of estate for use and support of family. § 409. Form. Order assigning entire estate for use and support of family of deceased. § 410. When all property other than homestead to go to children. For synopsis of note on family allowance, see pp. 546,563. CHAPTER n. HOMESTEADS. § 411. Bight of survivor to homestead. § 412. Selected and recorded homestead to be set off to person entitled. Subsisting liens to be paid by solvent estate. § 413. Carving homestead out of original, exceeding five thousand dollars in value. Beport. § 414. Eeport of appraisers. Majority and minority, which may be confirmed. § 415. Day to be set for confirming or rejecting report of appraisers. § 416. Form. Order setting time for hearing report of appraisers and prescribing notice. Value exceeding five thousand dollars. § 417. Form. Notice of hearing on report of appraisers as to home- stead. § 418. Form. Order setting apart homestead out of property worth more than five thousand dollars when selected. §419. Costs, to whom chargeable. Persons succeeding to rights' of homestead owners. Powers and rights of. § 420. Certified copies of certain orders to be recorded. For synopsis of note on homesteads, see pp. 588, 595. CHAPTER HI. ALIENATION OF HOMESTEADS OF INSANE PERSONS. I 421. Petition for sale or mortgage of. j 422. . Form. Petition for leave to convey or mortgage homestead of insane spouse. I 423. Notice of application for order, i 424. When order may be made, and its effect. XXIT CONTENTS. S 425. rorm. Order permitting spouse of insane person to sell or mortgage homestead. § 426. Form. Grant of homestead by spouse of insane person. 1 427. Form. Mortgage of homestead by spouse of insane person. For synopsis of note on homesteads of insane persons, see pp. 646, 651. CHAPTEE IV. DOWEE. § 428. When dower may be assigned by county court. § 429. "Warrant for assignment of dower. § 430. Oath of commissioners and return of proceedings. § 431. Form. Petition for admeasurement of dower. § 432. Form. Order for notice of hearing on petition for dower. § 433. Form. Order appointing guardian for minors. § 434. Form. Notice of hearing on petition for dower. § 435. Form. Order for admeasurement of dower. S 436. Form. Warrant to commissioners to admeasure dower. § 437. Form. Oath of commissioners to admeasure dower. § 438. Form. Eeturn of commissioners to admeasure dower. § 439. Form. Order confirming report of commissioners to admeasure dower. For synopsis of note on dower and curtesy, see pp. 652, 660. PART vn. CLAIMS AGAINST ESTATE. CHAPTER I. CLAIMS AGAINST ESTATE. § 440. Notice to creditors. Additional notice. § 441. Form. Order for publication of notice to creditors. §442. Form. Notice to creditors. § 443. What time must be expressed in the notice. § 444. Copy and proof of notice to be filed, and order made. , { 445. Form. Affidavit of publication of notice to creditors. S 446. Form. Order fixing time of hearing on application for decree establishing notice to creditors. CONTENTS. XXV f 447. Form. Affidavit of posting notice of time of hearing of appli- cation for decree establishing notice to creditors. § 448. Form. Decree establishing notice to creditors. § 449. Time within which claims must be presented. § 450. Form. Claim of creditor against estate. § 451. Form. Af&davit to creditor's claim. § 452. Form. Indorsements on back of creditor's claim. § 453. Form, Affidavit that creditor had no notice. § 454. Form. Affidavit to creditor's claim, by one other than the claimant. § 455. Form. Affidavit of corporation to creditor's claim. % 456. Form. Affidavit by partnership to creditor's claim. S 457. A£S.davit in support of claim. Allowed claim to bear same interest as judgments. S 458. Superior judge may present claim, and action thereon. § 459. Allowance and rejection of claims. § 460. Form. Notary's certificate of presentation of claim. § 461. Approved claims or copies to be filed. Claims secured by liens. Description. Lost claims. § 462. Bejected claims to be sued for within three months. § 463. Claims barred by statute of limitations. Examination by judge. § 464. Claims must be presented before suit. i 465. Time of limitation. § 466. Claims in action pending at time of decease. § 467. Allowance of claim in part. § 468. Effect of judgment against executor. § 469. Execution not to issue after death. If one is levied, the prop- erty may be sold. § 470. What judgment is not a lien on real property of estate. § 471. Doubtful claims may be referred. Effect of referee's allow- ance or rejection. § 472. Form. Kef erence of claim. § 473. Form. Eef eree's report as to correctness of creditor's claim. § 474. Trial by referee, how confirmed, and its effect. § 475. Liability of executor, etc., for costs. § 476. Claims of executor, etc., against estate. § 477. Executor neglecting to give notice to creditors, to be removed. § 478. Form. Order of removal for neglecting to give notice to credi- tors. § 479. Executor to return statement of claims. § 480. Payment of interest-bearing claims. § 481. Manner of closing estates when claims are unpaid and claim- ant cannot be found. For synopsis of note on claims against estate, see pp. 666, 693. XXn CONTENTS. PAET vin. SALES AND CONVEYANCE OE PROPERTY OF DECEDENTS. CHAPTER I. SALES IN GENERAL. S 482. Estate is chargeable with debts. No priority. § 483. No sale valid, unless made under order of court. § 484. Petitions for orders of sale. § 485. But one petition, order, and sale must be had when. § 486. Form. Petition for order of sale of all the property of the estate at ' one sale. § 487. Form. Order of sale of all property of estate at one sale. § 488. Form. Objections to sale of decedent's property. CHAPTER II, SALES OF PERSONAL PROPERTY, § 489. Perishable and depreciating property to be sold. § 490. Form. Petition for order to sell perishable and other personal property likely to depreciate in value. § 491. Form. Order to sell perishable property. § 492. Form. Return of sale of perishable property. § 493. Form. Exhibit A. AfSdavit of posting notice of adminis- trator's sale of perishable property. § 494. Form. Order confirming sale of perishable property. § 495. Order to sell personal property. § 496. Partnership interests and choses in action, how sold. § 497. What property to be sold first. § 498. Sale of personal property. How to be made. § 499. Sale of personal property, for interest of estate, on hearing of application for sale of real property. § 500. Form. Petition for order of sale of personal property. § 501. Form. Order to show cause on petition for the sale of personal property. { 502, Form. Notice of hearing of petition for sale of personal property at private sale. I 503, Form. Objections to sale of personal property. CONTENTS. XXVll j 504. Form. Notice of administrator's sale of personal property. i 505. Form. Order for sale of personal property. i 506. Form. Return of sale of personal property, and petition for confirmation and approval. i 507. Form. Exhibit A. AfBdavit of posting notices of adminis- trator's sale of personal property. i 508. Form. Exhibit B. Affidavit of publication of notice of ad- ministrator's sale of personal property. i 509. Form. Order approving sales of personal property. i 510. Form. Short form of order confirming sale of personal prop- erty. CHAPTER III. STJMMABT SALES OF MINES AND MINING INTEEEST8. i 511. Mines may be sold how. i 512. Petition for sale, who may file, and what to contain. i 513. Order to show cause, how made, and on what notice. i 514. Order of sale, when and how made. i 515. Further proceedings to conform with what provisions. i 516. Form. Petition for sale of mining property. i 517. Form. Order to show cause. Sale of mines. i 518. Form. Order for sale of mining property. CHAPTER IV. SALES OF EEAL ESTATE, INTERESTS THEREIN, AND CONFIRMATION THEREOF. I 519. Executor or administrator may sell property when. § 520. Verified petition for sale must contain what. § 521, Form. Petition for order of sale of real estate for best inter- ests of estate, including application for the sale of personal property. § 522. Order to persons interested to appear. I 523. Form. Order to show cause why order of sale of both real estate and personal property should not be made. § 524. Form. Order to show cause why order of sale of real estate should not be made. § 525. Service of order to show cause. Assent. Publication. § 526. Hearing after proof of service. Presentation of claims. § 527. Form. Objections to order of sale of real estate. § 528. Administrator, executor, and witnesses may be examined. § 529. To sell real estate or any part when. § 530. Order of sale, when to be made. § 531. Order of sale must contain what. Public auction or private sale. XXVm CONTENTS. §532. Form. Petition for order of sale of real estate where per- sonal property is insufficient. §533. Perm. Verification of petition. 1534. Form. Order for sale of real estate, i 535. Porm. Order for sale of real estate, in one parcel, or in sub- divisions, and at either private or public sale. § 536. Interested persons may apply for order of sale. Porm of peti- tion. § 537. Notice of sale of land. § 538. Time and place. §539. Porm. Notice of administrator's or executor's sale of real estate at public auction. § 540. Private sale of real estate, how made, and notice. Bids, when and how received. §541. Porm. Order for sale of real estate. Private sale. Short notice. § 542. Porm. Notice of administrator's or executor's sale of real estate at private sale. § 543. Ninety per cent of appraised value must be offered. § 544. Purchase-money of sale on credit, how secured. § 545. Beturn of proceedings. Notice of hearing. Setting aside sale. Besale. § 546. Porm. Beturn and account of sale of real estate and petition for order confirming sale. § 547. Porm. Verification of return, and account of sale. § 548. Porm. Exhibit A to return of sale. Afidavit of posting notices of sale of real estate. § 549. Porm. Exhibit B to return of sale. Aflidavit of publication of notice of time and place of sale of real estate. § 550. Porm. Pixing time for hearing on return of sale. § 551.. Porm. Order appointing day of hearing return of sale of real estate. § 552. Porm. Notice of hearing return of sale of real estate. § 553. Porm. Offer of ten per cent 'advance on sale of real estate. § 554. Porm. Order vacating sale of real estate. § 555. Objections to confirmation of sale. Hearing. § 556. Order of confirmation to be made when. § 557. Porm. Objections to confirmation of sale of real estate. § 558. Porm. Order confirming sale of real estate. § 559. Porm. Order confirming sale of real estate on bid in open court. § 560. Porm. Notice of motion to vacate sale of real estate, and for a resale thereof. § 561. Porm. Order for resale of real estate. § 562. Conveyances. § 563. Porm. Administrator's deed. § 564. Porm. Acknowledgment of administrator's deed. § 565. Form. Administrator's deed to one offering ten per cent advance. CONTENTS. XXIX § 566. Form. Executor'a deed. i 567. Order of confirmation, what to state. § 568. Sale may be postponed. I 569. Notice of postponement. § 570. Payment of debts, etc., according to provisions of will. § 571. Sales without order, under provisions of will. § 572. Form. Order confirming sale of real estate under will, § 573. Where provision by will insufficient. § 574. Liability of estate for debts. § 575. Contribution among legatees. § 576. Contract for purchase of land may be sold how. § 577. Form. Order confirming sale of contract to purchase land, § 578. Same. Conditions of sale. § 579. Same. Purchaser to give bond. §580. Form. Bond on sale of contract for purchase of land § 581. Same. Executor to assign contract. § 582. Sales of land under mortgage or lien. § 583. Same. Holder of mortgage or lien may purchase land. Ee- ceipt as payment. § 584. Misconduct in sale. Liability. § 585. Fraudulent sales. § 586. Limitation of actions for vacating sale, etc. § 587. To what cases preceding section not to apply. § 588. Account of sale to be returned. § 589. Form. Order to show cause why letters should not be revoked for failure to return account of sales. § 590. Form. Order to show cause why attachment should not issue for failure to return account of sales. § 591. Form. Order for attachment for neglecting to return account of sales. § 592. Executor, etc., not to be purchaser. For synopsis of note on probate sales, see pp. 820, 884. CHAPTER V. CONVEYANCE OF EEAL ESTATE OE TEANSFBE OF PERSONAL PEOPEETY, BY EXBCUTOES AND ADMINI8TRAT0ES, IN CEETAIN CASES. § 593. Completion of contracts for sale of property. § 594. Petition for conveyance or transfer. Notice of hearing. { 595. Fonu. Petition for order directing administrator specifically to perform contract to convey real estate. S 596. Form. Petition for order directing executor specifically to perform contract to convey real estate. (Incomplete trans- action.) XXX CONTENTS. § 597. Form. Order appointing time for hearing petition for specific performance of contract to convey. § 598. Interested parties may contest. § 599. Form. Objections to order directing specific performance, by administrator, of decedent's contract to convey real estate. % 600. Conveyance or transfer to be ordered when. S 601. Form. Order for conveyance of land sold by decedent. I 602. Form. Order for conveyance of land sold by decedent. (Con- ditional.) I 603. Execution of conveyance or transfer, and recording of order therefor. $ 604. Bight of petitioner to enforce the contract. § 605. Form. Dismissal of petition for an order directing an admin- istrator to convey land. § 606. Effect of conveyance or transfer. § 607. Effect of recording copy of decree. § 608. Same. Does not supersede power of court to enforce decree. § 609. Where party entitled to conveyance is dead. § 610. Decree inay direct possession to be surrendered. For synopsis of note on executory contracts of deceased and spe- cific performance, see pp. 955, 968. PART IX. MORTGAGES AND LEASES OF REAL ESTATK CHAPTER I. MORTGAGES AND LEASES. f 611. Mortgage of real property of decedent, minor, etc. Lease. § 612. Proceedings to obtain order to mortgage. § 613. Form. Petition for leave to mortgage realty. I 614. Form. Order to show cause on petition to mortgage. § 615. Form. Order authorizing mortgage. % 616. Form. Mortgage of decedent's real estate. § 617. Proceedings to obtain order to lease realty. § 618. Form. Petition for leave to lease realty. i 619. Form. Order to show cause on petition to lease realty. i 620. Form. Affidavit of publication of order to show cause. § 621. Form, Order authorizing lease. § 622. Form. Lease of decedent's real estate. For synopsis of note on mortgages and leases, see pp. 977, 995, CONTENTS. XXXI PAET X. POWEES AND DUTIES OF EXECUTORS AND ADMINISTRATOES, AND MANAGEMENT OF ESTATES. CHAPTER I. POWERS, DUTIES, AND MANAGEMENT. i 623. Executors to take possession of entire estate. § 624. Form. Petition for a patent. § 625. Representative may sue and be sued. § 626. May maintain actions for waste, conversion, or trespass. § 627. May be sued for waste or trespass of decedent. i 628. Surviving partner to settle up business. Appraisement. Ac- counting. § 629. Form. Petition that surviving partner render an account. § 630. Form. Alternative order that surviving partner account to ad- ministrator, or show cause. § 631. Form. Order for attachment to compel surviving partner to render an account. § 632. Action on bond of one administrator may be brought by an- other: § 633. What executors are not parties to actions. § 634. May compound. §•635. Form. Petition for authority to compromise debt. § 636. Form. Order approving administrator's agreement to compro- mise with debtor. § 637. Recovery of property fraudulently disposed of by testator. % 638. When executor to sue, as provided in preceding section. § 639. Form. Creditors' application that suit be brought to recover property fraudulently disposed of by decedent. S 640. Form. Order that administrator bring suit to recover property fraudulently disposed of by decedent. I 641. Disposition of estate recovered. § 642. Pending settlement, court may order moneys to be invested. § 643. Form. Petition for leave to invest moneys of estate in United States bonds. § 644. Form. Order directing publication of notice of petition for '. leave to invest. i 645. Form. Notice of hearing of petition for leave to invest moneys of estate. XXXU CONTENTS. § 646. Form. Order directing investment of moneys of estate in United States bonds. For synopsis of note on powers and duties of executors and ad- ministrators, actions by and against representatives, management of estates, and partnership estates, see pp. 1004, 1024. PAET XI. LIABILITIES AND COMPENSATION OF EXECUTORS AND ADMINISTEATORS. ATTORNEYS' FEES. ACCOUNTING AND SETTLEMENTS. PAYMENT OF DEBTS. CHAPTER I. LIABILITIES AND COMPENSATION OF EXECUTORS AND ADMINISTEATORS. ATTORNEYS' FEES. § 647. Personal liability of representative. § 648. Executor to be charged with all estate, etc. § 649. Not to profit or lose by estate. § 650. Debts uncollected without fault. § 651. Compensation of representative and attorney. Appeal § 652. Not to purchase claims against estate. § 653. Commissions to representative. Extraordinary services. § 654. Form. Executor's renunciation of compensation. § 655. Allowance of fees for attorneys. Extraordinary services. For synopsis of note on liability and compensation of executors and administrators, and attorneys' fees, see pp. 1109, 1116. CHAPTER n. ACCOUNTING AND SETTLEMENTS BY EXECUTORS AND ADMINISTRATORS. § 656. To render an exhibit. § 657. Form. Exhibit for information of court. § 638. Form. Petitidn for order to render exhibit. § 659. 'Form. Order requiring administrator to xender exhibit. § 660. Objections to account. Revocation of letters. § 661. Attachment for not obeying citation. § 662. Accounting within thirty days after time for notice to cred- itors has expired. { 663. Form. Account current and report of executor or adminis- trator. CONTENTS. XXXm § 664. Form. Affidavit to account. § 665. Form. Petition for order requiring administrator to render an account. § 666. Form. Order for citation to administrator to render account. § 667. Form. Order to account on failure to show cause. § 668. Form. Attachment to compel rendering of account. § 669. Executor to account after his authority is revoked. § 670. Authority of executor to be revoked when. § 671. To produce and file vouchers, which must remain in court. § 672. Vouchers for items less than twenty dollars. § 673. Day of settlement. Notice. Hearing. § 674. Form. Order appointing day of settlement of account. § 675. Form. Notice of settlement of account. § 676. When settlement is final, notice must so state. § 677. Form. First and final account, report, and petition for distri- bution. § 678. Form. Final account, report, and petition for distribution of estate following an account current. § 679. Form. Final account, report, and petition for distribution. Insolvent estate. § 680. Form. Memorandum, by clerk, fixing time for hearing of final account and petition for distribution. § 681. Fjrm. Order appointing day for hearing petition for distribu- tion and settlement of final account. § 682. Form. Notice of settlement of final account and distribution. § 683. Form. Affidavit of posting notice of settlement of final ac- count and distribution. § 684. Form. Order settling final account and for distribution. § 685. Form. Another form of order settling final account and for distribution. § 686. Form. Order settling final account, report, and petition for distribution under will. § 687. Interested party may file exceptions to account. § 688. Form. Exceptions to account. § 689. Contest by heirs. Hearing. Eef eree. § 690. Form. Order appointing referee of administrator's account and adjourning settlement. § 691. Form. Order referring account tb court commissioner for ex- amination and report. § 692. Form. Eef eree's report of examination of account. S 693. Settlement of accounts to be conclusive when, and when not. § 694. Proof of notice of settlement of accounts. S 695. Form. Affidavit of posting notice of settlement of account. § 696. Form. Decree settling account. § 697. Presentation of account. Death of representative. For synopsis of note on accounting and settlement, see pp. 1160, 1197. Probate — XXXIV CONTENTS. CHAPTER III. PAYMENT OF DEBTS OF ESTATE. J 698. Order in which debts must be paid. § 699. Where property is insufficient to pay mortgage. § 700. If estate is insufficient, a dividend must be paid. § 701. Funeral expenses and expenses of last sickness. S 702. Order for pajonent of debts and final discharge. § 703. Form. Decree settling account and for payment of claims. § 704. Form. Decree settling final account. Insolvent estate. § 705. Form. Decree of final discharge. % 706. Provision for disputed and contingent claims. § 707. Personal liability of representative to creditors. % 708. Claims not included in order for payment of debts, how dis- posed of. § 709. Order for payment of legacies and extension of time. § 710. Final account, when to be made. § 711. Neglect to render final account, how treated. For synopsis of note on payment of debts, see pp. 1246, 1256. PART XII. PARTITION, DISTEIBUTION, AND PINAL SETTLE- MENT OF ESTATES. ABSENT INTERESTED PARTIES. ACCOUNTS OF TRUSTEES. CHAPTER I. . PAETIAL DISTEIBUTION PEIOE TO FINAL SETTLEMENT. § 712. Payment of legacies upon giving bonds. § 713. Notice of application for legacies. § 714, Executor or other person may resist application. § 715. Partial distribution. Decree to be granted when. Bond. Delivery. Partition. Costs. % 716. Form. Petition for share of estate before final settlement. 8 717. Form. Notice of application for share of estate before final settlement. { 718, Form. Memorandum by clerk fixing time for hearing for partial distribution. §719. Form. Executor's resistance to application for partial dis- tribution. S 720, Form. Order directing executor to pa^ a legatee his share of an estate. CONTENTS. XXXV § 721. Form. Order for partial distribution. § 722. Form. Bond on distribution before final settlement. § 723. Form. Justification of sureties. § 724. Form. Order for partial distribution without bond. § 725. Order for payment of money secured by bond. Citation. Action on bond. § 726. Form. Petition for order directing legatee, etc., to refund money for payment of debts. § 727. Form. Order that legatee, etc., refund money to pay debts. For synopsis of note on partial distribution, see pp. 1273, 1286. CHAPTER n. PEOCEBDINGS TO DETERMINE HEIESHIP. DISTEIBUTION ON FINAL SETTLEMENT. I 728. Proceedings, in the nature of an action, to determine heirship. Petition. Service of notice and decree establishing proof of. Order adjudging default. Complaint and plea thereto. New trial. Parties. Evidence oral or by deposition. Costs. Conclusiveness of determination in distribution of estate. § 729. Form. Petition for ascertainment of rights as heirs. § 730. Form. Notice upon filing of petition to ascertain- right of heirs. § 731. Form. Order upon filing of petition to ascertain rights of heirs. i 732. Form. Order establishing service of notice to determine heir- ship. § 733. Form. Attorney's authority to appear in matters of heirship. § 734. Form. Complaint on claim of heirship. § 735. Form. Answer to complaint on claim of heirship. i 736. Form. Entry of default on petition to ascertain heirship. S 737. Form. Decree establishing heirship. § 738. Distribution of estate, how made, and to whom. § 739. Decree of distribution. Contents and conclusiveness of. i 740. Distribution where decedent was a non-resident of the state. § 741. Notice must precede decree for distribution. § 742. Form. Petition for distribution of estate. § 743. Form. Memorandum, by clerk, fixing time for hearing petition for final distribution. § 744. Form. Notice of hearing of petition for final distribution. f 745. Form. Af&davit of posting notice of hearing of petition for final distribution. § 746. Form. Decree of distribution. § 747. Form. Decree of distribution. (Another form.) XXXVl CONTENTS. § 748. Form. Decree of distribution to foreign executor. (To be used for personal property only.) § 749. Distribution not to be made until taxes are paid. § 750. Continuation of administration. For synopsis of note on establishment of heirship, rights and lia- bilities of heirs, and distribution, see pp. 1295, 1319. CHAPTBE m. DISTRIBUTION AND PARTITION. § 751. Estate in common. Commissioners. § 752. Partition and notice thereof. Time of filing petition. § 753. Estate in different counties, how divided. § 754. Partition or distribution after conveyance. § 755. Shares to be set out by metes and bounds. § 756. Whole estate may be assigned to one, in certain cases. § 757. Payments for equality of partition, by whom and how made. § 758. Estate may be sold. § 759. Partition. Notice. Duties of commissioners. § 760. Commissioners to make report, and decree of partition to be recorded. § 761. When commissioners to make partition are not necessary. § 762. Advancements made to heirs. § 763. Form. Petition for partition. § 764. Form. Order for notice of application for partition on dis- tribution. i 765. Form. Notice of time of hearing on petition for partition and appointment of commissioners. § 766. Form. Order appointing commissioners to make partition. § 767. Form. Oath to be indorsed on commission. § 768. Form. Report by commissioners assigning all estate to one interested. § 769. Form. Order confirming report of commissioners and assign- ing the whole estate to one. § 770. Form. Notice by commissioners before partition. § 771. Form. Report, by commissioners, of partition. § 772. Form. Order confirming commissioners' report and directing partition. § 773. Form. Decree of partition. § 774. Form. Report by commissioners, recommending sale. § 775. Form. Order of sale of estate and distribution of proceeds. For synopsis of note on partition in connection with distribution see pp. 1384, 1402. ' CONTENTS. XXXVii CHAPTEE IV. AGENTS FOR ABSENT INTEEESTED PARTIES. DISCHARGE OF EXECUTOR OR ADMINISTRATOR. S 776. Court may appoint agent to take possession for absentees. § 777. Agent to give bond, and his compensation.^ § 778. Unclaimed estate, how disposed of. § 779. Account by agent of absentee. Sale of property. § 780. Liability of agent on his bond. § 781. Certificate to claimant. § 782. Final settlement, decree, and discharge. § 783. Discovery of property. § 784. Form. Order appointing agent to take possession for non- resident distributee. § 785. Form. Bond of agent appointed for non-resident distributee. § 786. Form. Petition, by agent of non-resident distributee, for sale of unclaimed personal property. 5 787. Form. Order of sale of personal property in possession of agent for non-resident distributee. § 788. Form. County treasurer's receipt to agent for non-resident distributee. § 789. Form. Account of agent for non-resident distributee. § 790. Form. Verification of account. § 791. Form. Report of agent for non-resident distributee. § 792. Form. Order directing sale, by agent, of property of non- resident distributee. § 793. Form. Order confirming sale of property by agent. § 794. Form. Petition claiming money paid into treasury by agent. § 795. Form. Certificate entitling claimant to money paid into treasury by agent. § 796. Form. Receipt on distribution. § 797. Form. Petition for final discharge. § 798. Form. Decree of final discharge. ■ For synopsis of note on discharge of executor or administrator, Bee pp. 1406, 1428. CHAPTER V. ACCOUNTS OF TRUSTEES. DISTRIBUTION. § 799. Superior court not to lose jurisdiction by final distribution. § 800. Compensation of trustees. § 801. Appeal from decree settling account of trustee. i 802. Trustee under will may decline. Resignation of executor. Appointment by court. § 803. Form. Petition for appointment of trustee under will. § 804. Form. Order appointing trustee. XXXVIU CONTENTS. § 805. Form. Order accepting resignation of testamentary trustee. i 806. Jurisdiction. § 807. Distribution of estate. Deposit ■with county treasurer, when. For synopsis of note on trusts under wills, testamentary trustees, and distribution, see pp. 1427, 1433. PAET XTII. OEDEES, DECEEES, PEOCESS, EECOEDS, EULES OF PBACTICE, TEIALS, PEOCEEDINGS TO TERMI- NATE LIFE ESTATES OE HOMESTEADS, OE COMMUNITY PEOPEETY, ON OWNEE'S DEATH IN CEETAIN CASES, NEW TEIALS AND APPEALS. CHAPTEE I. OEDEES, DECEEES, PEOCESS, ETC. § 808. Orders and decrees to be entered in minutes. § 809. Form. Order fixing time for hearing. § 810, Form. Order continuing hearing. § 811. How often publication to be made. § 812,. Form. Affidavit of publication. > § 813. Becorded decree or order to impart notice from date of filing. § 814, Citation, how directed and what to contain. § 815. Form. Citation, § 816, Form. Citation to show cause why letters should not be revoked for neglect to make return of sale. § 817. Citation, how issued. § 818. Citation, how served. § 819. Form. Certificate of service of citation. § 820. Form. Proof of personal service of citation. § 821. Personal notice, when to be given by citation. § 822. Citation to be served five days before return. § 823. One description of realty is sufficient. § 824, Eules of practice generally, § 825, New trials and appeals. § 826. Within what time appeal must be taken. § 827. Issues joined, how tried and disposed of. § 828. Court to try case when. Trial of issues. § 829. Form. Order appointing attorney. CONTENTS. XXXix i 830. Decrees, what to be recorded. § 831. Costs, by -whom paid in certain cases. § 832. Commitment for contempt. Eemoval. Appointment. § 833. Form. Order revoking letters for contempt, and appointing some other person administrator, executor, or guardian. § 834. Service of process on guardian. § 835. Disposition of life estates, or homestead, or community prop- erty, on owner's death in certain cases. § 836. Form. Petition for decree of termination of life estate. § 837. Form. Order for notice of hearing of petition. § 838. Form. Notice of petition for termination of life estate, and of time and place for hearing same. § 839. Form. Decree declaring life estate terminated. § 840. Form. Petition for decree vesting homestead or community property in survivor. § 841. Form. Decree declaring homestead vested in survivor. § 842. Form. Decree declaring estate community property. For synopsis of note on probate practice and procedure, see pp. 1456,. 1477. PAET XIV. PUBLIC ADMINISTRATOE. CHAPTER I. PUBLIC ADMINISTRATOR. § 843. To take charge of what estates. § 844. To obtain letters, when and how. Bond and oath. § 845. Duty of persons in whose house any stranger 4ies. § 846. Inventory. How to administer estates. § 847. Must deliver up estate when. § 848. Notice to, by civil ofSeers, of waste. § 849. Suits for property of decedents. § 850. Order on public administrator to account. § 851. When to make and publish return of condition of estate. § 852. Disposition of moneys. Escheat, etc. § 853. Not to be interested in payments, etc. § 854. When to settle with county clerk. Disposition of unclaimed estate. § 855. Proceedings against, for failure to pay over money. I 856. Payment of fees of officers. § 857. To administer oaths. § 858. Application of preceding chapters. § 859. To file reports. Penalty. Duty of district attorney. For synopsis of note on public administrators, see pp. 1497, 1504. Xl CONTENTS. PAET XV. WILLS. CHAPTBE I. EXECUTIOIT AND EEVOCATION OF WILLS. S 860. Who may make a will. § 861. Will, or part thereof, procured by fraud. I 862. Will of married woman. § 863. What may pass by wiU. § 864. Who may take by will. % 865. Written will, how to be executed. § 866. Form. Will. § 867. Definition of a holographic wilL § 868. Witness to add residence, % 869. Mutual will. % 870. Competency of subscribing witness. % 871. Conditional will. ^ 872. Gifts to subscribing witnesses are void. Creditor is a compe- tent witness. § 873. Witness, who is a devisee, is entitled to share to amount of devise when. § 874. Will made out of state, validity of. § 875. Republication by codicil. S 876. Nuncupative will, how to be executed. § 877. Nuncupative will, requisites of. § 878. Nuncupative will. Eeceiving proof of. § 879. Nuncupative will. Granting probate of. § 880. Written will, how revoked. § 881. Evidence of revocation. § 882. Eevqcation of duplicate. ^ 888. Eevocation by subsequent will. S 884. Antecedent, not revived by revocation of subsequent will. § 885. Eevocation by marriage and birth of issue. § 886. Effect of marriage of a man on his will. I 887. Effect of marriage of a woman on her will. § 888. Contract of sale not a revocation. § 889. Mortgage not a revocation of will. § 890. Conveyance, when not a revocation. § 891. Same. When it is a revocation. § 892. Eevocation of codicils. § 893. After-born child, unprovided for, to succeed. % 894. Children, or issue of children, unprovided for, to succeed. CONTENTS. Xli § 895. Share of after-born child to be taken from what estate. Apportionment. § 896. Advancement during lifetime of testator. § 897. On death of legatee, before testator, lineal descendants take estate. § 898. Devises of land, how construed. § 899. Wills pass estate subsequently acquired. § 900. Charitable, etc. bequests. limitation as to time and amount. For synopsis of note on execution, revocation, and classes of wills, see pp. 1514, 1535. CHAPTER n. INTEKPEETATION OF WILLS, AND EFFECT OF VAEIOUS PEOVISIONS. i 901. Testator's intention to be carried out. § 902. Intention to be ascertained from the will. S 903. Bules of interpretation. § 904. Several instruments are to be taken together. § 905. Harmonizing various parts. § 906. In what case devise is not affected. § 907. When ambiguous or doubtful. § 908. Words taken in ordinary sense. § 909. Words to rece'ive an operative construction. § 910. Intestacy to be avoided. § 911. Effect of technical words. § 912. Technical words not necessary. § 913. Certain words not necessary to pass a fee. § 914. Power to devise, how executed by terms of will. § 915. Devise or bequest of all real or all personal property, or both. § 916. Eesiduary clauses. § 917. Same. Bequest of residue, effect. § 918. " Heirs," " relatives," " issue," " descendants," etc. § 919. Words of donation and of limitation. § 920. To what time words refer. § 921. Devise or bequest to a class. § 922. When conversion takes effect. § 923. When after-born child takes under will. § 924. Mistakes and omissions. § 925. When devises and bequests vest. § 926. When cannot be devested. § 927. Death of devisee or legatee. I 928. Interests in remainder are not affected. § 929. Conditional devises and bequests. § 930. Condition precedent, what. § 931. Condition precedent, effect of. § 932. Condition precedent, when deemed performed. Xlii CONTENTS. S 933. Condition subsequent, what. § 934, Devises, etc., take as tenants in common. i 935. Advancements, when ademptions. For synopsis of note on construction and interpretation of wills, see pp. 1554, 1566. CHAPTER in. GENERAL PEOVKIONS EELATING TO LEGACIES AND WILLS. % 936. Nature and designation of legacies. S 937. Estates chargeable. I 938. Order of resort to estate for debts. % 939. Same. For legacies. I 940. Same. Legacies to kindred. § 941. Abatement. § 942. Specific devises and legacies. % 943. Heir's conveyance good, unless will is proved within four years. % 944. Possession of legatees. I 945. Bequest of interest. § 946. Satisfaction. § 947. Legacies, when due. § 948. Interest. § 949. Construction of these rules. § 950. Executor according to the tenor. % 951. Power to appoint is invalid when. § 952. Executor not to act till qualified. I 953. Provisions as to revocations. § 954. Execution and construction of prior wills not affected. I 955. Law governing validity and interpretation of wills. § 956. Liability of beneficiaries for testator's obligations. For synopsis of note on property passing by will, see pp. 1580, 1583. PAET XVI. PEOBATE OF WILLS. CHAPTER I. PETITION, NOTICE, AND PROOF. I 957. Custodian of will to deliver same, to whom. § 958. Who may petition for probate of will. $ 959. Contents of petition. CONTENTS. Xliii 5 960. Form. Petition for probate of will. § 961. Form. Petition by corporation for probate of will. § 962. Form. Renunciation by person named in will, of right to letters testamentary. § 963. Executor forfeits right to letters when. § 964. Form. Forfeiture of executor's right to letters. § 965. Production of will in possession of third person. § 966. Form. Petition for production and probate of will in pos- session of third person. i 967. Form. Order requiring third person having possession of a will to produce it. § 968. Form. Warrant of commitment for failure to produce will. § 969. Notice of petition for probate, how given. § 970. Form. Time fixed by clerk for hearing probate of will and petition for letters testamentary. § 971. Form. Affidavit of posting notice of time set for hearing probate of will. S 972. Form. Affidavit of publication of notice of time and place appointed for probate of will. § 973. Notification to heirs and named executors. § 974. Form. Affidavit of mailing notice to heirs. § 975. Form. Proof of personal service of notice. § 976. Order to enforce production of wills or attendance of wit- nesses. I 977. Hearing proof of will after proof of service of notice. § 978. Form. Consent of attorney of minors, etc., to probate of will. % 979. Form. Testimony of subscribing witnesses on probate of will. % 980. Form. Testimony of applicant on probate of will. % 981. Who may appear and contest the will. § 982. Admitting will to probate. § 983. Holographic wills. § 984. Form. Certificate of proof of holographic will, and facts found. For synopsis of note on the probate of wills, see pp. 1612, 1632. CHAPTEE n. CONTESTING PEOBATB OF WILLS. § 985. Contestant to file grounds of contest, and petitioner to reply. § 986. Form. Opposition to probate of will and codicils, for un- soundness of mind, fraud, etc. § 987. Form. Contest, on various grounds, of probate of will. § 988. Form. Petition by public administrator, for letters of ad- ministration, and contest of probate of will. § 989. Form. Demurrer to contest of probate of will. § 990. Form. Answer to contest of probate of will. § 991. Form. Demand for jury on contest of probate of will. Xliv CONTENTS. § 992. How jury obtained and trial had. § 993. Verdict of the jury. Judgment. § 994. Examination of witnesses. Proof of handwriting. § 995. Testimony reduced to writing for future reference. § 996. Certificate of proof of wiU. § 997. Form. Certificate of proof of will, and facts found. (Two witnesses.) § 998. Form. Certificate of rejection of will. § 999. Will and proof to be recorded. § 1000. Form. Order admitting will to probate and for letters tes- tamentary (with or without bond). § 1001. Form. Shorter order admitting will to probate and for letters testamentary (with or without bond). i 1002. Form. Order admitting will to probate and for letters of administration with the will annexed. For synopsis of note on contest of probate of wills, see pp. 1644, 1663. CHAPTER III. PEOBATB OF FOREIGN WILLS. S 1003. Wills proved in other states to be recorded when and where. § 1004. Proceedings on the production of a foreign will. § 1005. Form. Petition for probate of foreign will. § 1006. Form. Notice of time and place set for hearing petition for probate of foreign will, and for the issuance of letters tes- tamentary thereon. § 1007. Form. Order fixing hearing on petition for proving foreign will, etc., and application for letters of administration with the will annexed. § 1008. Hearing proofs of probate of foreign will. § 1009. Form. Certificate of proof of foreign will and facts found. i 1010. Form. Order admitting foreign will to probate and for letters (with or without bond). For synopsis of note on the probate of foreign wills, see pp. 1684, 1691. CHM'TBR IV. CONTESTING WILL AFTER PEOBATB. § 1011. Contest of probate within one year. § 1012. Form. Petition to revoke the probate of a will. § 1013. Form. Petition to revoke probate of will and for probate of later will. § 1014. Citation to be issued to interested parties. § 1015. Form. Order, on application to revoke probate of will, that a citation issue. § 1016. Form. Citation on application to revoke probate of will. CONTENTS. Xlv { 1017. Trial of issnes of fact. S 1018. Petition to revoke probate of will. How tried. Judgment. § 1019. Form. Order revoking probate of will. § 1020. Eevocation of probate. Effect of. § 1021. Costs and expenses, by whom paid. § 1022. Probate, when conclusive. For synopsis of note on contents of wills after probate, see pp. 1693, 1703. • CHAPTER V. PROBATE OF LOST OE DESTEOYED WILLS. § 1023. Proof of lost of destroyed wUl. § 1024. Form. Petition to establish lost or destroyed will. § 1025. Form. Petition for establishment of lost or destroyed will, and for revocation of letters of administration. § 1026. Form. Petition for establishment of lost or destroyed will, and for revocation of probate of prior will and letters testamentary. § 1027. Must have been in existence at time of death. § 1028. To be certified, recorded, and letters thereon granted. § 1029. Form. Certificate establishing lost or destroyed will. § 1030. Eestraining order in favor of claimants. For synopsis of note on the probate of lost or destroyed wUls, see pp. 1713, 1721. CHAPTER VI. PEOBATB OF NUNCUPATIVE WILLS. § 1031. Petition must allege what. § 1032. Form. Petition for probate of nuncupative will. % 1033. Form. Opposition to probate of nuncupative will. § 1034. Additional requirements. 1 1035. Contests and appointments. For synopsis of note on the probate of nuncupative wills, see pp. 1724, 1728, PAET xvn. COMMUNITY PEOPEETY AND SEPAEATE PEOPEETY. CHAPTER I. COMMUNITY PEOPEETY AND 8EPAEATB PEOPEETY. § 1036. Separate property of the wife. § 1037. Separate property of the husband. Xlvi CONTENTS. § 1038. Community property. Conveyances to or by married women. Time limit for bringing action. § 1039. Filing inventory is notice of wife's title, etc. § 1040. Earnings of wife, when living separate, are separate property. For synopsis of note on community property and separate property, see pp. 1729, 1732. PAET XVIII. ESTATES OF MISSING PERSONS. CHAPTER I. ESTATES OF MISSING PEESONS. § 1041. Trustees for. Appointment of, by court. § 1042. Bonds to be given by trustees. § 1043. Powers and duties of trustees. For synopsis of note on estates of missing persons, see pp. 1741, 1743. PAET XIX. COLLATEEAL-INHERITANCE TAXES. CHAPTER I. COLLATEEAL-INHEEITANCB TAXES. 1 1044. Form. Petition for appointment of appraiser where value of property subject to tax is uncertain. § 1045. Form. Inheritance tax petition. (Colorado.) § 1046. Form. Order appointing appraiser of property subject to. § 1047. Form. Order appointing appraiser. (Colorado.) § 1048. Form. Warrant to appraiser. (Colorado.) § 1049. Form. Notice of time and place of appraisement.. § 1050. Form. Eeport of appraiser of tax. (Colorado.) § 1051. Form. Order approving report of appraiser and fixing amount of tax.- (Colorado.) § 1052. Form. Order fixing tax. § 1053. Form. Notice to county treasurer of intended delivery of securities subject to tax. § 1054. Form. Treasurer's notice to district attorney that tax is unpaid. § 1055. Form. Petition for citation to show cause why tax should not be paid. CONTENTS. Xlvii §1056. Form. Order that citation issue to show cause why tax should not be paid. § 1057. Form. Citation to show cause why tax should not be paid. 1 1058. Form. Bond of beneficiary to state, i 1059. Form. Bond of executor or administrator. § 1060. Form. Table of exemptions and percentages. For synopsis of note on collateral-inheritance taxes, see pp 1745 1762. ' PAET XX. APPEAL. CHAPTEK I. APPEALS. 1 1061. Appeal may be taken when. 1 1062. Appeal by executor or administrator. § 1063. Appeals in probate proceedings. Preference. § 1064. Eeversal of order of appointment. Effect of. For synopsis of note on appeal, see pp. 1773, 1776. PAET XXI. VARIOUS PEOYISIONS OF THE CODES, AND MISCELLANEOUS FOEMS. CHAPTEE I. MISCELLANEOUS PEOYISIONS AND FOBMS. { 1065. Who may own property. S 1066. Minors, who are. § 1067. Legitimacy of children born in wedlock. § 1068. Who may dispute legitimacy of chUd. ^ § 1069. Posthumous children. § 1070. Children born after dissolution of marriage. § 1071. Children of annulled marriage. 1 1072. Accumulation of income. § 1073. Other directions, when void in part. § 1074. Application of income to support, etc., of minor. § 1075. Infant, etc., to appear by guardian, § 1076. Cruardian, how appointed. Xlviii CONTENTS. S 1077. Powers o£ persons whose incapacity has been adjudged, § 1078. Suspending power of alienation. % 1079. Tenure by which homestead is held. § 1080. Qualities of expectant estates. % 1081. Mere possibility is not an interest. % 1082. Contingent remainder in fee. § 1083. Involuntary trust resulting from negligence, etc. % 1084. Purchase by trustee of claims against trust fund, § 1085. Investment of money by trustee. § 1086. Trustee's influence not to be used for his advantage. S 1087. " Will " includes codicil. § 1088. Effect of will upon gift. S 1089. Service Tjy mail, how made. i 1090. What is evidence of publication. 1 1091. Powers of superior judges at chambers. § 1092. Presumption as to survivorship. § 1093. Persons who eatinot testify. § 1094. Perm. Acknowledgement by corporation. § 1095. Form. Af&davit of posting notice. % 1096. Perm. Appointment of special commissioner to take depo- sitions. § 1097. Form. Subpoena. % 1098. Form. Summons. (Trustee as plaintiff.) § 1099. Form. Summons. (Executor as plaintiff.) % 1100. Form. Order of reference to court commissioner to examine and report on qualifications of sureties. § 1101. Form. Description of property. (In general.) § 1102. Form. Brief description of parcels. % 1103. Form. Description by course and distance. % 1104. Form. Order requiring notice of application for restoration of records, and of the setting of said application for hearing. § 1105. Form. Notice of application to restore destioyed records, by order of court, and of time and place fixed for hearing. (Case of entire destruction.) § 1106. Form. Notice of application to restore destroyed records, by order of court, and of time and place fixed for hearing. (Case of partial destruction.) § 1107. I'orm. Complaint to cancel, annul, and set aside deeds, with prayer for an accounting and injunction, and for the appointment of a receiver. (In action brought by .heira against widow, both as an individual and as special ad- ministratrix.) For synopsis of note on the testimony of parties, or persons interested, for or against representatives, survivors, or successors in title or interest of persons deceased or incompetent, see pp. 1798 1835. PAET I. ADOPTION, SUCCESSION, AND ESCHEAT. CHAPTER I. ADOPTION. ! 1. Of child. § 2. Who may adopt. § 3. Consent to adoption. [By wife.] § 4. Same. Orphans and abandoned children. § 5. Consent of child. § 6. Proceedings on adoption. § 7. Porm. Petition for leave to adopt a minor. § 8. Form. Consent to adoption. § 9. Form. Agreement to adopt. § 10. Judge's order of adoption. § 11. Form. Order of adoption. § 12. Effect of adoption. § 13. Same. On parents. § 14. Of illegitimate chUd. 1. Nature of proceeding. 2. Essentials of adoption. 3. Who may adopt. 4. Consent to adoption. 5. Examination of parties. 6. Order of adoption. 7. Abandoned child. 8. Indian children. 9. Illegitimate children. 10. Evidence of adoption. LAW OF ADOPTION. 11, Effect of adoption. Divorce pro- ceedings. 12. Attacking the order. 13. What "will not invalidate proceed- ings. 14. Adoption in another state. 15. Inheritance. 16. Specific performance. 17. Hawaii. § 1. Of child. Any minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in this chapter. Kerr's Oyc. Civ. Code, § 221. ANALOaOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 21, p. 360. Arizona.* Eev. Stats. 1901, par. 2086. Probate — 1 (1) 2 PROBATE LAW AND PRACTICE. Colorado. 1 Mills's Ann. Stats., see. 396. Idaho.* Civ. Code 1901, sec. 2075. Kansas. Gen. Stats. 1905, § 4379. Montana.* Civ. Code, sec. 310. Nevada. Comp. Laws, sec. 608. New Mexico. Comp. Law 1897, sec. 1496. North Dakota.* Eev. Codes 1905, § 4109. Oklahoma.* Eev. Stats. 1903, sec. 3781. Oregon. Bellinger and Cotton's ^nn. Codes and Stats., § 5316. South Dakota.* Civ. Code 1904, § 128. Uta.h.* Rev. Stats. 1898, sec. 1. Washington. Pierce's Code, § 2801. Wyoming. Eev. Stats. 1899, sec. 3016. § 2. Who may adopt. The person adopting a child must be at least ten years older than the person adopted. Kerr's Cyc, Civ. Code, § 222. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 21, p. 360. Arizona.* Eev. Stats. 1901, par. 2037. Colorado. 1 Mills's Ann. Stats., see. 396. Idaho. Civ. Code 1901, see. 2076. Kansas. Gen. Stats. 1905, § 4379. Montana.* Civ. Code, sec. 311. Nevada. Comp. Laws, sec. 608. New Mexico. Comp. Laws 1897, see. 1496. North Dakota.* Eev. Codes 1905, § 4110. Oklahoma.* Eev. Stats. 1903, see. 3782. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5316. South Dakota.* Civ. Code 1904, § 129. Utah.* Eev. Stats. 1898, sec. 2. Washington. Pierce's Code, § 2801.> Wyoming. Eev. Stats. 1899, sec. 3016. § 3. Consent to adoption. [By wife.] A married man, not lawfully separated from his wife, cannot adopt a child without 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 consent. Kerr's Cyc. Civ. Code, § 223. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 21, p. 360. Arizona.* Eev. Stats. 1901, par. 2038. ADOPTION, 3 Colorado. 1 MiUs's Ann. Stats., sees. 396, 397. Idaho.* Civ. Code 1901, see. 2077. Kansas. Gen. Stats. 1905, §4379. Montana.* Civ. Code, see. 312. Nevada.* Comp. Laws, see. 610. New Mexico. Comp. Laws 1897, see. 1498. North Dakota.* Eev. Codes 1905, § 4111. Oklahoma.* Eev. Stats. 1903, see. 3783. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5316. South Dakota.* Civ. Code 1904, § 130. Utah.* Eev. Stats. 1898, sec. 3. Washington. Pierce's Code, §§ 2801, 2802. Wyoming. Eev. Stats. 1899, sec. 3016. § 4. Same. Orphans and abandoned children. A legiti- mate child cannot be adoped without the consent of its parents, if living; nor an illegitimate child without the con- sent of its mother, if living ; except, that consent is not neces- sary from a father or mother deprived of civil rights or adjudged guilty of adultery or cruelty, and for either cause divorced,- or adjudged to be habitually intemperate in the use of intoxicants, or who has been judicially deprived of the custody of the child on account of cruelty or neglect. [Abandoned children, consent not necessary.] Neither is consent of any parent necessary in case of any abandoned child; provided, however, that any such child, being a half- orphan, and kept and maintained in any orphan asylum in this state for more than two years, may be adopted, with the consent of the manager of such orphan's home without the consent of the parent unless such parent has paid toward the expenses of maintenance of such half-orphan at least a reasonable sum during the said time, if able to do so. [Deserted child.] Any child deserted by both parents or left in the care and custody of another by its parent or parents, without any agreement or provision for its support, for the period of one year, is deemed to be an abandoned child within the meaning of this section and where the parent is a non-resident of this state such child may be adopted with the consent of the managers of such home wherever it has been left in such home for more than one year ; or any abandoned child, within the meaning of this section, if left 4 PROBATE LAW AND PEACTICB. in the care and custody of another person for one year or more, may, with the consent of the district attorney of the county wherein the person applying to adopt such child is a resident, be adopted by such person. Kerr's Cyc. Oiv. Code (Kerr's Stats, and Amdts., p. 400), § 224. ANAJCOGhOnS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sees. 22, 23, p. 360. Arizona. Eev. Stats. 1901, par. 2039. Colorado. 1 Mills's Ann. Stats., sec. 396. Idaho. Civ. Code 1901, see. 2078. Kansas. Gen. Stats. 1905, §4379. Montana. Civ. Code, sees. 313, 320. Nevada. Comp. Laws, sees. 611, 614. New Mexico. Comp. Laws 1897, sees. 1499, 1500, 1504. North Dakota. Eev. Codes 1905, § 4112. Oklahoma. Eev. Stats. 1903, sees. 3784, 3790. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 5317, 5318. South Dakota. Civ. Code 1904, § 131. Utah. Eev. Stats. 1898, sees. 4, 11. Washington. Pierce's Code, § 2801. Wyoming. Eev. Stats. 1899, sees. 3016, 3023. § 5. Consent of child. The consent of a child, if over the age of twelve years, is necessary to its adoption. Kerr's Cyc. Civ. Code, § 225. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 25, p. 361. Arizona. Eev. Stats. 1901, par. 2040. Colorado. 1 Mills's Ann. Stats., sec. 896. Idaho.* Civ. Code 1901, see. 2079. Kansas. Gen. Stats. 1905, § 4379. Montana.* Oiv. Code, see. 314. Nevada. Comp. Laws, sec. 611. New Mexico.* Comp. Laws 1897, sec. 1501. North Dakota. Eev. Codes 1905, § 4113. Oklahoma. Eev. Stats. 1903, sec. 3785. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5320. South Dakota.* Civ. Code 1904, § 132. Utah.* Eev. Stats. 1898, see. 5. Washington. Pierce's Code, § 2801. Wyoming. Eev. Stats. 1899, sec. 3016. ADOPTION. O § 6. Proceedings on adoption. Any person desiring to adopt a child may, for that purpose, petition the superior court of the county in which the petitioner resides. The, person adopting a child, and the child adopted, and the other persons, if within or residents of said county, whose consent is necessary, must appear before the court, and the necessary consent must thereupon be signed and an agreement exe- cuted 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 necessary are not within or are not residents of said county, then their written consent, duly proved or acknowledged, according to sections eleven hundred and eighty-two and eleven hundred and eighty-three, must be filed in said supe- rior court at the time of the application for adoption. Kerr's Cyc. Civ. Code (Kerr's Stats, and Amdts., p. 401), §226. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 21, p. 360. Arizona. Kev. Stats. 1901, par. 2041. Colorado. 1 Mills's Ann. Stats,, sec. 396. Idaho. Civ. Code 1901, see. 2080. Kansas. Gen. Stats. 1905, § 4379. Montana. Civ. Code, sec. 315. Nevada. Comp. Laws, sec. 609. New Mexico, Comp. Laws 1897, sec. 1502. North Dakota. ' Rev. Codes 1905, § 4114. Oklahoma. Rev, Stats, 1903, sees, 3786, 3788, Oregon. Bellinger and Cotton's Ann, Codes and Stats,, § 5316. South Dakota. Civ. Code 1904, §§ 133, 134. Utah. Kev, Stats, 1898, sec, 6, Washington. Pierce's Code, § 2801, Wyoming, Rev. Stats. 1899, sees, 3016, 302 § 7. Form. Petition for leave to adopt a minor. [Title of court,] ( Department No. . [Title of matter.] | [Title of form.] To the Honorable the * Court of the County ^ of , State of . Your petitioners, and , respectfully represent as follows : 6 PROBATE LAW AND PRACTICE. That they desire to adopt a minor child, namely, , as their own child; and that said child is ( — ) years of age;^ That your petitioners are married, and are husband and wife ; and that they are both residents of ; * That the parents of said minor child are and ," who consent that such adoption be made by petitioners ; That consent to such adoption is in writing, signed by all parties whose consent is required by law, and is on file herein ; That the welfare of such child will be subserved, and its best interests promoted, by such adoption. Your petitioners therefore pray for an order of this court that said petitioners have adopted said minor child, and that henceforth such child shall be regarded and treated in all respects as the child of petitioners, including the right of support, protection, and inheritance. , Petitioner. Dated , 19 — , Petitioner. Explanatory notes. 1. Title of court. 2. Or, City and County. 3. If over a certain age prescribed by statute, when consent of the child is necessary, say here, " and consents to such adoption by peti- tioners." 4. County in which order of adoption is made. 5. In cases where consent is not necessary, or cannot be given, say that , the father, or , the mother, of said child, according to the fact, is dead, or insane, etc. § 8. Form. Consent to adoption. [Title of court.] ^„. , . , , , ( Department No. , [Title of matter.] | ^^.^j^ ^^ ^^^^^ A petition having been filed in the above-entitled court for leave to adopt , a minor child of and , the undersigned hereby consent to the said adoption in ac- cordance with such petition. ^ Explanatoiy notes. 1. Name of father. 2. Name of mother. 3. Name of guardian. 4. Name of said minor child, if over twelve ADOPTION. 7 years of age. 5. Name of husband or wife adopting. When the consent of the husband or wife of the person adopting is required by statute, as in California, the consent should also be signed by such husband or wife. § 9. Form. Agreement to adopt. [Title of court.] rm-ii * xi. n 5 Department No. . [Title of matter.] | ^[Title of form.] A petition having been filed in the above-entitled court for leave to adopt , a minor child of and , and ,^ ,^ ,' ,* and ,° having filed in the said court their consent in writing to such adoption, — ■ Now, therefore. In consideration of the filing of such con- sent as required by law, and of the entry of an order of said court permitting said adoption to be made as prayed for in said petition, the undersigned, the petitioners," who are residents of the county ' in which such order of adoption is made, hereby agree with said minor, and with said other persons, whose consent has been filed as aforesaid, that the said shall be adopted, and is now adopted, as our own child, and that such minor child shall be treated in all respects as our own lawful child should be treated, including the right of support, protection, and inheritance. In witness whereof. We have hereunto set our hands and seals this day of , 19 — [Seal] [Seal] Explanatory notes. 1. Father. 2. Mother. 3. Guardian. 4. Minor child. 5. Husband or wife of person adopting. 6. If there is but one petitioner, make the appropriate change in nouns and pronouns. 7. Or, city and county. § 10. Judge's order of adoption. The court must examine all persons appearing before it pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, it must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting. The petition, agreement, consent, and order must be filed and registered in the ofSce of the county clerk in the same 8 PROBATE LAW AND PRACTICE. manner as papers in other special proceedings. Kerr's Cyc. Civ. Code, § 227. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 26, p. 361. Arizona. Eev. Stats. 1901, par. 2042. Colorado. 1 Mills's Ann. Stats., sec. 398. Idaho. Civ. Code 1901, sec. 2081. Kansas. Gen. Stats. 1905, § 4379. Montana. Civ. Code, see. 316. Nevada. Comp. Laws, sees. 612, 615. New Mexico. Comp. Laws 1897, sec. 1505. North Dakota. Eev. Codes 1905, § 4115. Oklahoma. Eev. Stats. 1903, sees. 3789, 3790. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5321. South Dakota. Civ. Code 1904, § 135. Utah. Eev. Stats. 1898, sec. 7. Washington. Pierce's Code, §§ 2802, 2803. Wyoming. Eev. Stats. 1899, sec. 3017. § 11. Form. Order of adoption. [Title of court.] (No. 1 Dept. No. . [Title of estate.] | |-Titie of form.] It being shown to this court, in the above-entitled matter, that and , on the day of , 19 — , filed a petition in said court for leave to adopt , a minor child of ■ and ; that said minor child, , is over the age of '■' years, and that his consent, in writing, to his adoption by said petitioners, has been signed before me and filed herein ; that the said . is the father of said minor child; that the said is the mother of said minor child; that is the guardian of said minor child; that the consent of the said father, mother, and guardian of said minor child, to its adoption by said petitioners, has been signed before me and filed herein; and that said petitioners have filed herein an agreement properly signed, before me, with said minor child, and with each person whose consent has been filed herein, that the said minor child shall be adopted by the said petitioner, and treated in all respects as their own lawful child should be treated, including the right of inheritance; and the said matter now coming regularly ADOPTION. y on for hearing,' the court proceeds to an examination of the case, and finds that said petitioners, and the said minor child, and all persons whose consent is necessary, have each appeared herein, and were examined as provided by law; that each of said petitioners resides in this comity ; * and that the interests of , the said minor child, will be pro- moted by such adoption; — It is therefore ordered, adjudged, and decreed, That the said petitioners, and , adopt the said minor child ; that henceforth the said minor child shall be treated by them in all respects as their own lawful child should be treated, including the right of inheritance; and that said petitioners and the said minor child shall hereafter bear towards each other the relation of parent and child. Dated , 19 — , Judge of the Court, Explanatory notes. 1. Give file number. 2. Twelve years, or other age prescribed by statute. 3. If the matter has been continued, say, " and the said matter having been by the court regularly postponed to the present time." 4. County in which order of adoption is made. § 12. Effect of adoption. A child, when adopted, may take the family name of the person adopting. After adop- tion, the two shall sustain towards each other the legal rela- tion of parent and child, and have all the rights and be sub- ject to all the duties of that relation. Kerr's Oyc. Oiv. Code, §228. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 27, p. 361; see. 31, p. 362. Arizona.'!' Bev. Stats. 1901, par. 2043. Colorado. 1 Mills's Ann. Stats., sec. 399. Idaho. Civ. Code 1901, see. 2082. Kansas. Gen. Stats. 1905, §4380. Montana.* Civ. Code, sec. 317. Nevada. Comp. Laws, see. 613. New Mexico. Comp. Laws 1897, sec. 1507. North Dakota. Kev. Codes 1905, §§ 4115, 4116. Oklahoma. Eev. Stats. 1903, sees. 3791, 3792, 3793. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 5322, 5328. South Dakota.* Civ. Code 1904, § 136. Utah. Eev. Stats. 1898, sec. 8. Washington. Pierce's Code, § 2804. Wyoming. Eev. Stats. 1899, sees. 3018, 3027, 3028. 10 PROBATE LAW AND PEACTICB. § 13. Same. On parents. The parents of an adopted child are, from the time of the adoption, relieved of all- pa- rental duties towards, and all responsibility for, the child so adopted, and have no right over it. Kerr's Cyc. Civ. Code, §229. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity, Alaska. Carter's Code, see. 28, p. 361. Arizona.* Rev. Stats. 1901, par. 2044. Colorado. 1 Mills's Ann. Stats., see. 399. Idaho.* Civ. Code 1901, sec. 2083. Montana.* Civ. Code, sec. 318. Nevada^. Comp. Laws, sec. 613. New Mexico. Comp. Laws 1897, see. 1508. North Dakota. Bev. Codes 1905, § 4117. Oklahoma. Eev. Stats. 1903, sec. 3794. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5323. South Dakota.* Civ. Code 1904, § 137. Utah.* Eev. Stats. 1898, see. 9. Washington. Pierce's Code, § 2804. Wyoming. Eev. Stats. 1899, sec. 3018. § 14. Of illegitimate child. The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such ; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption. Kerr's Cyc. Civ. Code, § 230. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 2045. Colorado. 1 Mills's Ann. Stats., sec. 1530. Idaho.* Civ. Code 1901, sec. 2084. Montana.* Civ. Code, sec. 319. Nevada. Comp. Laws, sec. 616. New Mexico. Comp. Laws 1897, sees. 1489-1493. North Dakota.* Eev. Codes 1905, § 4118. Oklahoma.* Eev. Stats. 1903, see. 3795. South Dakota.* Civ. Code 1904, § 188. Utah.* Bev. Stats. 1898, sec. 10. ADOPTION. 11 LAW OF ADOPTION. 1. Nature of proceeding. 11. Effect of adoption. Divorce pro- 2. Essentials of adoption. ceedings. 3. Who may adopt. 12. Attacking the order. 4. Consent to adoption. 13. What -will not invalidate proceed- 6. Examination of parties. ings. 6. Order of adoption. 11. Adoption in another state. 7. Abandoned child. IS. Inheritance. 8. Indian children. 16. Speciflc performance. 9. Illegitimate children. 17. Hawaii. 10. Evidence of adoption. 1. Nature of proceeding. Adoption was unknown to the common law, and, independently of statute, there is no such thing as the adop- tion of an heir. Such a proceeding is purely statutory. It is a special power, to be strictly construed: Henry v. Taylor (S. D.), 93 N. W. Rep. 641, 642; Ex parte Clark, 87 Cal. 638; 25 Pac. Rep. 967; Furgeson v. Jones, 17 Or. 204; 20 Pac. Eep. 842; Nugent v. Powell, 4 Wyo. 173; 33 Pac. Eep. 23. The adoption of children is purely a matter of statute, pertaining to the legislature, with which a judge or a, court has nothing to do, unless the power is conferred upon them by statute. The matter of adoption belongs to the legislative, and not to the judi- cial, department of the government: In re Stevens, 83 Cal. 322, 331; 17 Am. St. Eep. 252; 23 Pac. Eep. 379. As the legislature has full power over this matter, it may invest any person, or ofl3.cer, or court, with the power of receiving, witnessing, and declaring the adoption. It may prescribe what that ceremony shall be, and before whom it shall be celebrated. It may make the ceremony so simple that its celebration requires only the consent in writing of the parents of the child, and the acceptance of such consent by the person desir- ing to adopt, and the filing of such paper with a public officer. The legislative power over the subject of adoption is not an interference with judicial power: In re Stevens, 83 Cal. 322, 331; 17 Am. St. Eep. 252; 23 Pac. Eep. 379. An adoption proceeding is one of contract between both parties whose consent is required: In re Johnson, 98 Cal. 531, 552; 33 Pac. Eep. 460; 21 L. E. A. 380. KEFEBENCES. Proceedings on adoption: See Kerr's Cal. Cyc. Civ. Code, § 226, and notes. Conflict of laws as to adoption: See note 65 L. E. A. 177-187. 2. Essentials of adoption. It is necessary for the record to show that the person adopting a child is a resident of the county in which the order of adoption is made: Ex parte Clark, 87 Cal. 638, 640; 25 Pac. Eep. 967. The jurisdiction, both as to subject-matter and the person, must affirmatively appear: Ex parte Clark, 87 Cal.' 638, 640; 12 PROBATE LAW AND PKACTICE. 25 Pae. Eep. 967. A petition for adoption cannot be maintained by a non-resident of the state: Knight v. Gallaway, 42 Wash. 413; 85 Pae. Eep. 21. BEFEBENCES. Adoption of adult under statute providing for adoption of child: See note 12 L. E. A. (N. 8.) 884, 885. 3. Who may adopt. Adoption may be made by persons other than the parent: In re Jessup, 81 Cal. 408, 446; 21 Pae. Eep. 976; 22 Pae. Eep. 742, 1028; 6 L. K. A. 594. A wife has precisely the same right to adopt a child as the husband, and there seems to be no reason why both may not unite in an application for the adoption of a child as the child of both, or why, in such a ease, the order of adoption should not declare that the child shall henceforth be treated and regarded as the child of both spouses: In re Williams, 102 Cal. 70; 41 Am. St. Eep. 163; 36 Pae. Eep. 407. 4. Consent to adoption. Consent lies at the foundation of statutes of adoption, and, when it is required to be given and submitted, the court cannot take jurisdiction of the subject-matter without it. Hence if the parents are living, and do not belong to the excepted classes, their consent must be given, and is a prerequisite to jurisdic- tion: Furgeson v. Jones, 17 Or. 204; 20 Pae. Eep. 842. In adoption proceedings, where no guardian is appointed, it becomes necessary for the parents to consent to such adoption: State v. Wheeler, 43 Wash. 183; 86 Pae. Eep. 394, 396. An orphan chUd, who has been in an orphan asylum for a year, and supported at its expense, cannot be legally adopted by a husband and wife, under the decree of a superior court, without the consent of the managers of the asylum, given in the same manner as parents are authorized to consent to the adoption of their children: Ex parte Chambers, 80 Cal. 216, 219; 22 Pae. Eep. 138- but where there is no adoption, because of a failure to adopt accord- ing to law, the objection may be obviated by proceeding at once to have the child adopted in the mode prescribed by statute: Ex parte Chambers, 80 Cal. 216, 219; 22 Pae. Eep. 138. Where a father has been divorced from the mother on the ground of his adultery his con- sent to the order of adoption is rendered unnecessary by the express provisions of the code: In re Williams, 102 Cal. 70; 36 Pae. Eep. 407. A mother's consent is not necessary, where the adoption is by the father, and especially where such adoption is the result of his conduct toward the child, and such consent does not depend on any formal proceeding: In re Jessup, 81 Cal. 408, 446; 21 Pae. Eep. 976; 22 Pae. Eep. 742, 1028; 6 L. E. A. 594. When a parent makes application to the probate judge to relinquish all right to his or her child, it is, among other things, the duty of the probate judge to make inquiry as to the right of the parent making the application to make such relinquish- ADOPTION. 13 ment; and if, upon such inquiry, it should be ascertained that the other parent is still living, and still possesses a right to its care, custody, or control, it would be the duty of the judge to refuse to approve such adoption, unless the written consent of such absent parent is obtained and filed. On the other hand, if the judge should find that the child had another parent living, and also that that parent had relinquished his or her right to the care, custody, or control of the child, it would not be necessary to have his or her consent. " The parent " referred t-' in such a proceeding is a parent who still possesses some right in or to the custody over and control of the child which he or she can relinquish: Nugent v. Powell, 4 Wyo. 173; 33 Pae. Eep. 23, 26. BEFEBENCES. Consent in case of abandoned children: See subd. 7, infra. 5. Examination of parties. The only object of a statute in direct- ing the judge of a court to examine the parties who are required to appear before him in. adoption proceedings is, that he may satisfy himself that the parties whose consent is required do consent, fully and freely, to the making of such contract, and that the adoption contem- plated by the contract will be for the best interests of the child adopted: In re Johnson, 98 Ca.l. 531, 538; 33 Pac. Eep. 460; 21 L. E. A. 380. In determining whether leave to adopt a child should be granted by the court, the welfare of the child is the primary, if not the sole, consideration: Knight v. Gallaway, 42 Wash. 413; 85 Pac. Eep. 21. In order that the judge may thus satisfy himself that a child over the age of twelve years, or a wife whose consent is necessary, does freely consent to the adoption, the judge is required to examine the parties separately; but the examination of a child whose consent to the con- tract is unnecessary, and who is of such tender years that it is incapable of exercising any judgment as to the effect of such contract upon its interests, would certainly be an idle thing. The provision in relation to the separate examination of the parties to such contract, in so far as it is applicable to a child under the age of consent, is simply directory, and is to be complied with, or not, in the discretion of the court; and this doctrine leads to the conclusion that the examination of the other parties to the contract by the judge making the order is not absolutely necessary in order to effect the adoption of a minor. If this is so, it necessarily results that a statute, in so far as it requires that the parties shall be separately examined, is merely directory: In re Williams, 102 Cal. 70, 80; 41 Am. St. Eep. 163; 36 Pac. Eep. 407. If a court has jurisdiction of adoption proceedings, the failure of the judge to examine the father of the child is a mere error of procedure which does not affect the validity of the adoption: Estate of McKeag, 141 Cal. 403, 410; 74 Pac. Eep. 1039. 14 PROBATE LAW AND PRACTICE. 6. Ordei of adoption. To give the decree of a county court adopt- ing a child any validity, such court must have acquired jurisdiction: 1. Over the parties seeking to adopt such child; 2. Over the child to be adopted; 3. Over the parents of such child: Purgeson v. Jones, 17 Or. 204; 20 Pae. Eep. 842. An order of adoption is not a judgment of the court: Estate of Camp, 131 Cal. 469, 470; 82 Am. St. Eep. 371; 63 Pac. Eep. 736. An order of adoption is void, if the person adopting the child is not a resident of the county in which the order of adoption was made: Ex parte Clark, 87 Cal. 638, 640; 25 Pac. Eep. 967. But an order for the adoption of a child is not invalidated because such order is made by the court, and signed by an acting judge, and not made and signed by the regular judge in chambers: In re Newman's Estate^ 75 Cal. 213; 16 Pac. Eep. 887. So where an order of adoption is made by a probate court at the request of the adopting parent, and sucli order is acted upon by all parties as valid, and the adopting parent takes and keeps the custody and control of the adopted infant, and treats it as his own child for several years, and then dies, the surviving heirs and legal representatives of such deceased adoptive parent cannot avoid the legal effect of the adoption proceedings for any mere irregu- larities or clerical mistakes: Cubitt v. Cubitt, 74 Kan. 353; 86 Pae. Eep. 475. An order of the probate court permitting the adoption of an infant child is conclusive, so far as that court is concerned. Such court has no further jurisdiction in the matter: In re Bush, 47 Kan. '264; 27 Pae. Eep. 1003. An order indorsed on an agreement of adop- tion, which order recites that the agreement of adoption is approved by the judge, and which order is filed with the county clerk, constitutes a sufficient order of adoption entitling the child to share in the estate of its adoptive parent: Estate of Evans, 106 Cal. 562; 39 Pac. Eep. 860. An order of adoption may declare that the child shall henceforth be treated and regarded as the child of both spouses: In re Williams, 102 Cal. 70, 78; 36 Pac. Eep. 407. BEFEBENCES. Legal status of adopted child: See note 17 L. E. A. 435-439. 7. Abandoned child. The voluntary acts of a mother in making an application to a court for an order, by virtue of which she would be legally relieved of any responsibilities as to the care and maintenance of her child, and the relinquishment by her of its custody, with the express desire that its new custodians assume the relation and stand in the place of its father and mother, are, -in contemplation of law, entirely consistent with the view that she had, prior to that time, with intent to surrender the superior claim of a mother, abandoned the child. That being true, her consent to its adoption is unnecessary, and her objections thereto will be unavailing: Eichards v. Matteson, 8 S. D. 77; 65 N. W. Eep. 428. Whether children have been abandoned by ADOPTION. 15 their parents is a jurisdictional fact, to be determined by the judge on the evidence presented to him before he is authorized to entertain the petition for their adoption; and a recital in his order that it appeared to his satisfaction that they had been abandoned by their parents is a determination of this fact which cannot be questioned in a collateral attack upon the order: Estate of Camp, 131 Cal. 469, 471; 82 Am. St. Eep. 371; 63 Pac. Eep. 736. In a petition by heirs for the distribution of the estate of an intestate, where the petitioners are contesting the right of an adopted heir to such estate, and where it is alleged that an order was entered by the probate court consenting to and approving of the adoption by the deceased of such child, such allegation is conclu- sive upon the petitioners, although the evidence and findings of the court show the contrary. Though the adoption proceedings might not constitute a bar to the father's action for the recovery of the posses- sion or custody of a child, and not be conclusive upon him, it does not follow, because the adoption proceedings were not conclusive upon the father, that they are not conclusive upon the parties to the proceed- ings and their privies: Nugent v. Powell, 4 Wyo. 173; 33 Pac. Bep. 23. In proceedings to adopt a, child, which has been abandoned by its father, no notice of the proceedings on application of the mother need be served on the father: Nugent v. Powell, 4 Wyo. 173; 33 Pac. Eep. 23. A statute which authorizes the adoption of a child on the applica- tion of its mother, and without its father's consent, where its father has relinquished his claim to such child by abandonment, is constitu- tional: Nugent V. Powell, 4 Wyo. 173; 33 Pac. Eep. 23, 31. 8. Indian children. In the matter of marriage between Indians, tribal customs have been recognized by the courts because they are in conformity with natural rights. But the right of adoption is contrary to natural law, and it seems that adoption by custom cannot be sanc- tioned nor maintained: Non-She-Po v. Wa-Win-Ta, 37 Or. 213; 62 Pac. Eep. 15. Adoption was unknown to the common law, but was a feature of the Eoman law. Yet, according to that system, some special author- ity of law was necessary to constitute an adoption. It never was in the power of an individual, either by the common law of England or the Eoman law, to adopt the child of another at his own volition, or by th'e consent of its parents. There must be some special authority for such a proceeding. In this state it requires the decree of a compe- tent court, made in conformity with the provisions of the statute, to confer on a child the capacity or quality of heir to a stranger. Hence, although an infant Indian has been abandoned by its mother, the fact that it has been cared for until then by another person does not con- stitute a legal adoption of the infant: Non-She-Po v. Wa-Win-Ta, 37 Or. 213; 62 Pac. Eep. 15. Although an Indian probably resided during a portion of his childhood in the family of another Indian, that fact justifies no presumption that he was an adopted son: Henry v. Taylor, 16 S. D. 424; 93 N. W. Eep. 641. 16 PROBATE LAW AND PBACTICB. 9. Illegitimate children. Where the legal relation of parent and child has been established by an adoption proceeding, an illegitimate child so adopted is clothed with the full rights of inheritance of a legal child: Eddie v. Eddie, 8 N. D. 376; 79 N. W. Eep. 856. But an instrument signed in the presence of witnesses, declaring the one who executed it to be the father of a certain illegitimate child, naming the child's mother, and stating that the chila is living as a foster son, with a physician named, is not an adoption, though it is a good acknowl- edgment of ah illegitimate child, so as to make him the heir of the person acknowledging him: Estate of De Laveaga, 142 Cal. 158, 168; 75 Pac. Eep. 790. The father of an illegitimate child, in order to adopt him as legitimate, must not only publicly acknowledge him as his own, but must receive him into his family, and if he has a wife, with her consent. If the father of such child has no family except the child, and pays for his support in another family, but the child never lived with the father at his home, there is no adoption: Estate of De Laveaga, 142 Cal. 158, 169; 75 Pac. Eep. 790. The mere acknowledg- ment of an illegitimate child by its father, without receiving it into his family, does not constitute an adoption of such child, and does not confer upon it any right to administer its father's estate: Garner v. Judd, 64 Pac. Eep. 1076. When a man has a home, where he lives with a woman whom he holds out to the world as his wife, he has a family, within the meaning of the statute, and to which he must receive an illegitimate child in order to make it legitimate: Garner v. Judd, 136 Cal. 394, 396; 68 Pac. Eep. 1026. Where the father of an illegitimate child never received it into his family, or into the home in which he lived, or into or among his kindred, and did not treat the ehUd as if he were a legitimate child, but, on the contrary, treated him and referred to him as an illegitimate child, there is no legitimation by adoption under the statute: Estate of De Laveaga, 142 Cal. 158, 168; 75 Pac. Eep. 790. Statutes authorizing the adoption of illegitimate children are to be liberally construed, but a liberal construction does not require nor authorize the frittering away of the written law: In re Jessup, 81 Cal. 408, 423; 21 Pac. Eep. 976; 22 Pac. Eep. 742, 1028; 6 L. E. A. 594. A section of the code which provides that every illegiti- mate child is an heir of the person whO( in writing, signed in the pres- ence 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 be, in the same manner as if born in lawful wedlock, forms no limitation or qualification of another section of the code which relates only to the legitimizing of minor illegitimate children, and which confers a right of inheritance as the result of adoption: In re Jessup, 81 Cal. 408, 421; 21 Pac. Eep. 976- 22 Pac. Eep. 742, 1028; 6 L. E. A. 594. Where the father, mother, and their illegitimate children were domiciled in a foreign kingdom, whose laws made no provision for the adoption of illegitimate children by the father, such as exists in North Dakota, the conduct of the father towards them, in recognizing them as his own children, treating the:a ADOPTION. 17 as sucli, and contributing to their support, all oeeurring in the foreign state, but entirely discontinued after leaving the foreign country and coming into this jurisdiction, does not constitute an adoption under the laws of that state: Eddie v. Eddie, 8 N. 1). 376; 79 N. W. Rep. 856. A decree of distribution to an illegitimate child of a deceased brother of decedent, of part of the estate, in the right of his deceased father, must be reversed where such child has not been legitimated by adop- tion: Estate of De Laveaga, 142 Cal. 158, 171; 75 Pac. Kep. 790. KEFEBEKOES. For an instructive case on the legitimation of an illegitimate child, Bee Blythe v. Ayres, 96 Cal. 532; 31 Pac. Bep. 915; 19 L. E. A. 40. A statute concerning the adoption of illegitimate children, enacted before the adoption of the codes, is to be strictly construed, as being in derogation of the common law, but the code provisions on that sub- ject are to be liberally construed: Estate of Jessup, 81 Cal. 408, 421; 21 Pac. Eep. 976; 22 Pac. Eep. 742, 1028; 6 L. E. A. 594. 10. Evidence of adoption. The best evidence of adoption is the order of the court made in the proceeding therefor pursuant to statute; and in the absence of anything to show that any of the required legal steps were ever taken, or the record thereof has been lost or destroyed, the unexplained statement of a witness that he was adopted is but a conclusion without probative force. A matter of such importance as the adoption of an heir, which can be accomplished only by strict compliance with the statute, can never be presumed in the absence of competent testimony: Henry v. Taylor (S. D.), 93 N. W. Eep. 641, 642. 11. Effect of adoption. Divorce proceedings. After the adoption of a child, it ceases to sustain any relation to its actual parent: i Younger v. Younger, 106 Cal. 377, 380;' 39 Pac. Eep. 779. The residence' of an adopted child is that of its foster parent: Estate of Taylor, 131 Cal. 180, 182; 63 Pac. Eep. 345. The adoption in law which results from an adoption in fact is the same, in legal effect, as that resulting from an adoption by decree of court: Eddie v. Eddie, 8 N. D. 376; 79 N. W. Eep. 856. A natural parent, by her voluntary act in consenting to the adoption of her child by another, becomes devested of all legal rights and obligations in respect to such child, and the situation is not changed by the death of the adoptive parent. Hence a decree of adop- tion devests the mother and grandmother of any right to be appointed as guardian of the child after its father's death: In re Masterson's^^ Estate (Wash.), 87 Pac. Eep. 1047./ Although a child may be under the jurisdiction of a court, in divorce proceedings between its parents, that does not prevent another court from taking jurisdiction of the same child in proceedings for its adoption, where the parent to whose custody it has been given consents to the adoption proceedings: younger v. Younger, 106 Cal. 377; 39 Pac. Eep. 779. In divorce pro- ceedings, the jurisdiction of the court over the children of divorced Probate — 2 18 PROBATE LAW AND PEACTICB. parents is lost by valid adoption proceedings. Although the court, in the divorce proceedings, may have jurisdiction of the child because of the fact that it is the child of the parties to the action, and may have power to award its custody as it may deem for its best interests, and to direct provision for its maintenance and support, the adoption proceeding wholly changes the status of the child. It becomes ipso facto the child of another, and ceases to sustain that relation, in a legal sense, to its natural parents. The adoption proceedings extin- guish the jurisdiction of the court as absolutely as though death had intervened: Younger v. Younger, 106 Cal. 377, 379; 39 Pac. Eep. 779. 12. Attacking the order. A parent is not entitled to the custody of a child who is old enough to worjt and care for himself, after consent- ing to his emancipation; but there is no basis for such a claim, if the minor is a young child incapable of caring for himself, although the parent consented to another's custody of such child under an illegal order of adoption: Ex parte Clark, 87 Cal. 638, 642; 25 Pac. Eep. 967. Although the natural parents of a child have acquiesced in the claim of its adopting parents for several years, they are not estopped from asserting their right to the custody of such child as against an illegal or^er of adoption. If the right to a transfer of a child from the custody of the adopting parents to the custody of its natural parents is brought up on a writ of habeas corpus, the court must take the record as it finds it, and determine the rights of the parties accord- ingly, irrespective of proceedings taken to amend the record of adop- tion so as to make it conform with the law: Ex parte Clark, 87 Cal. 638, 641; 25 Pac. Eep. 967. The validity of adoption proceedings cannot be questioned by one who claims as the distributee of one who adopted a child and received the benefit of the relation: Estate of McKeag, 141 Cal. 403, 411; 74 Pac. Eep. 1039. On a collateral attack on an order of adoption, in proceedings to revoke letters of adminis- tration, a_reeital in the order of adoption that "the petitioner and said minor child, and all persons whose consent is necessary, have appeared herein as provided by law," is sufficient to show that the father of the child was present at the hearing on the petition of adoption: Estate of McKeag, 141 Cal. 403, 408; 74 Pae. Eep. 1039. An order of adoption may be collaterally attacked on a writ of habeas corpus for want of notice to those who are entitled to notice: Beatty V. Davenport (Wash.), 88 Pac. Eep. 1109. 13. Wlat wiU not invalidate proceedings. That the father of a boy, at the time of its adoption, made false statements concerning the death of its mother, or that the adopting parent would not have adopted the boy had he known that the mother was living, or that the boy after- wards became incorrigible, and was sent to the reform school, and was subsequently taken therefrom by his natural mother, or that the plaintiff did not subsequently, in one state, take steps to adopt the boy, does not appear to render the adoption had in another state ADOPTION. 19 illegal: James v. James, 35 "Wash. 650; 77 Pao. Eep. 1082, 1084. Where adoption proceedings in another state are alleged to be void under the laws of that state, and the laws of that state, showing wherein the adoption is void and of no effect, are not set forth, a court, in deter- mining the question, will apply the lex fori: James v. James, 35 Wash. 650; 77 Pae. Eep. 1082, 1084. In the absence of any statute prescribing the manner in which a probate judge's records shall be kept, or of evi- dence that he kept them in any other way than by writing them out upon sheets of paper, the record of his office, showing his consent and approval of the adoption of a child, is sufficient, though such record is on a detached piece of paper retained among the papers of his office: Nugent V. Powell, 4 Wyo. 173; 33 Pac. Rep. 23, 25. Even the failure of a probate judge to do his duty does not work the destruction of the rights of others who have done all that they were required to do in the matter: Nugent v. Powell, 4 Wyo. 173; 33 Pac. Eep. 23, 25. The sur- viving heirs and legal representatives of an adoptive parent, who died after the adoption of an infant, cannot avoid the legal effect of the adoption proceedings for any mere irregularities or clerical mistakes, where the order of adoption was made by the probate court at the request of the adoptive parent, and such order was acted upon by all parties as valid, and the adoptive parent took and kept the custody and control of the adopted infant, and treated it as his own child for several years, until the death of the adoptive parent: Cubitt V. Cubitt, 74 Kan. 353; 86 Pae. Eep. 475. If it clearly appears from the record in proceedings had in the probate court for the adoption of an infant that all interested parties were present in court, and that the court made an order that such infant be adopted, the mere fact that the name of the infant's mother appears in the order of adoption where the name of the adopting parent should have been written is imma- terial, and will be disregarded, when it is clearly apparent from such record that the name was there written by an oversight and mistake, and that the name of the adopting parent was intended: Cubitt v. Cubitt, 74 Kan. 353; 86 Pae. Eep. 475. BEFEKENCES. See order of adoption, sudb. 6, ante. 14. Adoption in another state. If a child has been adopted in an- other state, whose laws require the act of adoption to be evidenced by an instrument in writing signed by the parties consenting to the adoption, which instrument must be acknowledged and recorded in the county where the person adopting the child resides, proof of the adop- tion cannot be made in another state, without a compliance with such requirements. The failure to record the instrument of adoption would, of itself, be fatal to the legality of the proceeding: James v. James, 35 Wash. 650; 77 Pac. Eep. 1080. If a claim is made that proceedings in another state for the adoption of a child are void under its laws, but such laws, showing wherein the adoption is void, are not set out. 20 PROBATE LAW AND PRACTICE. the court, in determining the question, will apply the law of the forum: James v. James,-35 Wash. 655; 77 Pac. Eep. 1082. 15. Inheritance. An adopted child is entitled to succeed by inheri- tance to the estate of the adopting parents: In re Newman, 75 Cal. 213, 219; 7 Am. St. Eep. 146; 16 Pac. Eep. 887; Estate of Wardell, 57 Cal. 484, 491. Where a child has been adopted by legal proceedings, with the agreement that he shall have the right to inherit property of the adopting parents, the heirship of the child is established by the order of the court: Quinn v. Quinn, 5 S. D. 328; 58 N. W. Eep. 808. A child adopted in a sister state, in substantial compliance with her statutes, may inherit lands of the deceased adopting parents in this state, on equal terms with a child of such parents born in wedlock; and the heirs of an adopted daughter may inherit, through her, a share of the estate of the deceased adopting parent as if it were his own child born in wedlock; and it may inherit property in other states than that in which the adoption was had from its adopting parent: Gray v. Holmes, 57 Ean. 217; 45 Pac. Eep. 596. Where adop- tion proceedings are regulated by statute, the right of children to inherit can only be acquired through adoption by a substantial compli- ance with the provisions of the statute: Ex parte Clark, 87 Gal. 638; 25 Pac. Eep. 967. If a testator dies, leaving a will in which no reiEerence is made to an adopted child, and such omission is not expressed on the face of the will to have been intentional, such child is entitled to a share in the testator's estate, the same as if he had died intestate: Estate of Wardell, 57 Cal. 484, 491. If a mother's consent to the adoption of her child is gained under an agreement that such child shall have a share of the property of the adopting parent, it cannot be deprived of its right to such property by will, or by any subse- quent fraudulent disposition thereof: Quinn v. Quinn, 5 S. D. 328; 58 N. W. Eep. 808. The law has established cognatic relations between illegitimate children acknowledged or adopted by their father and legitimate children, and either is as capable of inheriting as the other: Estate of Wardell, 57 Cal. 484, 491. One of the objects of adoption, and of legitimizing by adoption, is to give the capacity of inheritance: In re Jessup, 81 Cal. 408, 422; 21 Pac. Eep. 976; 22 Pac. Eep. 742, 1028; 6 L. E. A. 594. A pretermitted adopted child is entitled to a share in the testator's estate, the same as if he had died intestate: Van Brocklin v. Wood, 38 Wash. 384; 80 Pae. Eep. 530, 532. To establish heirship under acts providing for the adoption of children, the enact- ments must be locked to to ascertain the rights of the plaintiff. A child may be adopted by one parent and not by another, and the rights thus acquired would be simply rights in the estate of the adopting parent, and would leave the right of inheritance as to the non-adopting parent wholly unaffected by the act of adoption. Hence where an act of the legislature gives one certain rights as the adopted child of a husband, but does not make such child the natural heir of the wife, or give the child any inheritable rights as the daughter of such wife, the act ADOPTION. 21 cannot be extended, and the child, though adopted by one of its parents, does not thereby become entitled to inherit from the other: Webb V. Jackson, 6 Col. 211; 40 Pac. Eep. 467. BEFEBENCES. Inheritance by adopted children: See note on " Succession," subd. 6, post. Inheritance by illegitimate children: See subd. 9, ante. Bight of adopted children to inherit: See note 118 Am. St. Rep. 684-688. Eight of adopted child to inherit property from a relative of its adop- tive parent: See note 8 L. E. A. (N. S.) 117-123. Inheritance from/ / adopted child: See note 17 L. E. A. 437. 16. Specific performance. Where a man and his wife, who have no children, orally agree that, in consideration of a young girl becoming a member of their family, and giving to them love, obedience, and ser- vice, they would rear and treat her as their own child, and at their death leave her all of their property, and there is full and faithful per- formance of the agreement by the girl, such agreement will be en- forced by a court of equity, providing there are no circumstances or conditions which would render enforcement inequitable: Bichel v. Oliver (Kan.), 95 Pac. Eep. 396, 397. BEFEBENCES. Adoption by cne person of the children of another: See note 39 Am. St. Eep. 210-231; Kerr's Oal. Cyc. Civ. Code, §§ 221-230, and notes. 17. Hawaii. In the Hawaiian Islands there have been two classes of adoption; one oral, by ancient custom before the existence of written law, and the other under the written law, which requires the execution and recording of an agreement in writing. But a right of inheritance in the adopted child is not a necessary result of adoption by either method, unless such right is clearly defined and proved, or expressed in the written agreement: Mellish v. Bal, 3 Haw. 123, 127; Estate of Maughan, 3 Haw. 262, 270; Estate of Nakuapa, 3 Haw. 410, 415; Wei See v. Young Sheong, 3 Haw. 489, 495; Estate of Wilhelm, 13 Haw. 206, 211; citing former cases. An oral adoption, however, where it is clearly proved to have been an adoption as heir, may include a right of inheritance in the adopted child: Estate of Nakuapa, 3 Haw. 342, 347; Kiaiaina v. Kahanu, 3 Haw. 368, 369. Where the law requires agreements of adoption to be in writing and recorded, proof of a compliance with these requirements is necessary to a valid adoption: Abenela v. Kailikole, 2 Haw. 660, 662. A written agreement of adop- tion, executed but not recorded until after the death of the adopting parent, is invalid: Black v. Castle, 7 Haw. 273, 275. An adoptive father does not inherit the property of an adopted child: Estate of Namauu, 3 Haw. 484, 486. A decree of adoption, by a court Of competent juris- diction, cannot be impeached collaterally on account of informality of the record: Paris v. Kialoha, 11 Haw. 450, 452. 22 PROBATE LAW AND PEACTICB. CHAPTEE n. SUCCESSION. § 15. Definition of. i 16. Estate passes to whom. § 17. Succession to and distribution of property. § 18. Illegitimate children to inherit in certain events. § 19. Succession to property of illegitimate child. § 20. Degree of kindred, how computed. § 21. Same. [Collateral line.] § 22. Same. [Ascending and descending direct line.] i 23. Same. [Degrees in direct line.] § 24. Same. [Degrees in collateral line.] ■ § 25. Eelatives of the half blood. § 26. Advancements are part of distributive share. § 27. Advancements, when too much, or not enough, i 28. What are advancements. § 29. Value of advancements. How determined. § 30. When heir advanced to dies before decedent. § 31. Inheritance of husband and wife from each other. § 32. Distribution of common property on death of wife. § 33. Distribution of common property on death of husband. § 34. Inheritance by representation. § 35. Inheritance by aliens. § 36. Effect of not claiming succession. § 37. Aliens inheriting must claim within five years, § 38. Property escheats to state when. § 39. Escheated property is subject to what charges, § 40. Successor is liable for decedent's obligations. § 41. Convicted murderer of decedent not to succeed. LAW OP SUCCESSION. 1. Taking by descent. (3) Under agreements. (1) In general. (4) Election to take under will. (2) Title passes how. (5) Construction of statutes. (3) Deflection of descent. 4. Children's right of inheritance. 2. What property descends. (1) In general. (1) In general. (2) Heirs of half Mood. (2) Community property. 5. Descent on death of unmarried ( 3 ) Homesteads. minor. (4) Timber-culture claims. 6. Inheritance by adopted children. 8. Rights of widow. 7. Descent to father. (1) In general. 8. Descent to grandparents. (2) As a survivor. 9. Whq cannot inherit. SUCCESSION. 23,. 10. Inheritance by convict. (3) Sufficiency of acknowledg- 11. Inheritance by aliens. ment. Evidence of rec- 12. Inheritance by Indians. ognition. 13. Taking by contract, and not by (4) Presumption as to legiti- succession. macy. 14. Inheritance by or through illegiti- (5) Illegitimacy, how inferred. mate children. (6) Construction of Utah statute. (1) Bight of. Acknowledgment. (7) Right of non-resident alien. (2) Succession to estate of ille- (8) Pretermitted illegitimate gltimate not acknowledged " child. or adopted. 15. What law governs. § 15. Definition of. Succession is the coming in of an- other to take the property of one who dies without disposing of it by will. Kerr's Cyc. Civ. Code, § 1383. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Idaho.* Civ. Code 1901, see. 2537. Montana.* Civ. Code, sec. 1850. North Dakota.* Rev. Codes 1905, § 5185. Oklahoma.* Eev. Stats. 1903, sec. 6893. South Dakota.* Civ. Code 1904, § 1092. Utah.* Bev. Stats. 1898, sec. 2824. § 16. Estate passes to whom. The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the probate court, and to the possession of any administrator appointed by that court, for the purposes of administration. Kerr's Cyc, Civ. Code, § 1384. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Idaho.* Civ. Code 1901, sec. 2538. Montana.* Civ. Code, sec. 1851. North Dakota.* Eev. Codes 1905, § 5186. Oklahoma.* Eev. Stats. 1903, sec. 6894. South Dakota.* Civ. Code 1904, § 1093. Utah.* Eev. Stats. 1898, see. 2825. Washington. Pierce's Code, § 2718. § 17. Succession to and distribution of property. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing thereof by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this code and the Code of Civil Proce- 24 PROBATE LAW AND PEACTICE. dure, subject to the payment of his debts, in the following manner : 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 deceased 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 ; but if there is no child of decedent living at his death, the remander goes to all of his lineal descendants; and if all of 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 leaves no surviving husband or wife, but leaves 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 deceased child or children by right of representation ; 2. If the decedent leaves no issue, the estate goes one half to the surviving husband or wife, and the other half to the decedent's father and mother in equal shares, and if either is dead the whole of said half goes to the other. If there is no father or mother, then one half goes in equal shares to the brothers and sisters of decedent and to the children or grand- children of any deceased brother or sister by right of repre- sentation. If the decedent leaves no issue, nor husband nor wife, the estate must go to his father and mother in equal shares, or if either is dead then to the other ; 3. If there is neither issue, husband, wife, father, nor mother then in equal shares to the brothers and sisters of de- cedent and to the children or grandchildren of any deceased brother or sister, by right of representation ; 4. If the decedent leaves a surviving husband or wife, and neither .issue, father, mother, brother, sister, nor the children or grandchildren of a deceased brother or sister, the whole estate goes to the surviving husband or wife ; SUCCESSION. 25 5. If the decedent leaves 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 through different ancestors, those who claim through the nearest ancestor must be preferred to those claiming through an ancestor more remote ; ' 6. If the decedent leaves several children, or one child and the issue of one or more children, and any such surviv- ing child dies under age and not having been married, all the estate that came to the deceased child by iiiheritance from such decedent descends in equal shares to the other children of the same parent and to the issue of any such other chil- dren 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 has left issue, the estate that came to such child by inheritance from his parent descends to the issue of all other childre,n 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 deceased is a widow, or widower, and leaves no issue, 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 property goes in equal shares to the children of such deceased spouse and to the descendants of such children by right of representation, and if none, then one half of such common property goes to the father and mother of such decedent in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such decedent and to the descendants of any deceased brother or sister by right of representation, and the other half goes to the father and mother of such deceased spouse in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such deceased spouse and to the descendants of any deceased brother or sister by right of representation. 26 PROBATE LAW AND PRACTICE. If the estate, or any portion thereof, was separate prop- erty of such deceased spouse, while living, and came to such decedent from such spouse by descent, devise, or bequest, such property goes in equal shares to the children of such spouse and to the descendants of any deceased child by right of representation, and if none, then to the father and mother of such spouse, in equal shares, or to the survivor of them if either be dead, or if. both be dead, then in equal shares to the brothers and sisters of such spouse and to the descendants of any deceased brother or sister by right of representation. 9. If the decedent leaves no husband, wife, or kindred, and there are no heirs to take his estate or any portion thereof, under subdivision eight of this section, the same escheats to the state for the support of the common schools. Kerr's Cyc. Civ. Code (Kerr's Stats, and Amdts., p. 424), § 1386. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 168, p. 384; sec. 169, p. 386. See sec. 168, subd. 7, sec. 169, subd. 6, and sec. 182, p. 389 (escheat). Arizona. Eev. Stats. 1901, pars. 2116, 2117, 2123. See pars. 2470, 2485 (escheat). Colorado. 3 Mills's Ann. Stats., see. 4652. Idaho. Civ. Code 1901, sec. 2539. Kansas. Gen. Stats. 1905, §§2528, 2538, 2539, 2540, 2550. Montana. Civ. Code, § 1852. See § 1852, subd. 8 (escheat). Nevada. Comp. Laws, sec. 3045. See sec. 3045, subd. 6, and sec, 3059 (escheat). New Mexico. Comp. Laws 1897, sees. 2032, 2033, 2034, 2035; Laws 1907, see. 28, p. 50. See Comp. Laws 1897, sec. 2036 (escheat). North Dakota. Eev. Codes 1905, § 5187. See § 5187, subd. 7, and § 5204 (escheat). Oklahoma. Eev. Stats. 1903, sec. 6895. See sec. 6895, subd. 9, and sec. 6912 (escheat). Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§5577, 5578. See § 5577, subd. 7, § 5578, subd. 5, and § 5614 (escheat). South Dakota. Civ. Code 1904, § 1094. See § 1094, subd. 9, and § 1111 (escheat). Utah. Eev. Stats. 1898, sees. 2826, 2828. See sec. 2828, subd. 9, and see. 3976 (escheat). Washington. Pierce's Code, §§2702, 2716. See §2702, subd. 8, and § 2716, subd. 8 (escheat). Wyoming. Eev. Stats. 1899, sec. 4858. See sec. 2306 (escheat). SUCCESSION. 27 § 18. Illegitimate children to inherit in certain events. Every illegitimate child is an heir of the person who, in writ- ing, signed in the presence of a competent witness, 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 ; but he does not repre- sent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which 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 inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate 5 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, of dissolved by divorce, are legitimate. Kerr's Oyc. Civ. Code, § 1387. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity, Alaska. Carter's Code, sec. -ni, p. 387. Arizona. Eev. Stats. 1901, pars. 2127, 2128. Colorado. 3 Mills's Ann. Stats., sees. 4658, 4659. Idaho.* Civ. Code 1901, sec. 2540. Kansas. Gen. Stats. 1905, §§ 2541, 2542. Montana.* Civ. Code, sec. 1853. Nevada. Comp. Laws, sec. 3046. New Mexico. Comp. Laws 1897, sees. 2038, 2039, 2040. North Dakota.* Eev. Codes 1905, § 5189. Oklahoma. Eev. Stats. 1903, sec. 6897. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5580. South Dakota.* Civ. Code 1904, § 1096. Utah. Eev. Stats. 1898, sec. 2833. Washington. Pierce's Code, § 2705. Wyoming. Eev. Stats. 1899, sees. 4862, 4863. § 19. Succession to property of illegitimate child. The estate of an illegitimate child, who has been legitimated by the subsequent marriage of its parents, or adopted by the 28 PROBATE LAW AND PEACTICE. father as provided by section two hundred and thirty, and who dies intestate, is succeeded to as if he were born in lawful wedlock. If such child has not been so legitimated or adopted, his estate goes to his lawful issue, or, if he leaves no issue, to his mother, or in case of her decease, to her heirs at law. Kerr's Cyc. Civ. Code, § 1388. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 172, p. 387. Arizona. Eev. Stats. 1901, par. 2128. Colorado. 3 Mills's Ann. Stats., sec. 4661. Idaho. Civ. Code 1901, sec. 2541. Kansas. Gen. Stats. 1905, §§ 2543, 2544. Montana. Civ. Code, sec. 1854. Nevada. Comp. Laws, sec. .3047. North Dakota. Eev. Codes 1905, §5190. Oklahoma. Rev. Stats. 1903, sec. 6898. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5581. South Dakota. Civ. Code 1904, § 1097. Utah. Eev. Stats. 1898, sec. 2834. Washington. Pierce's Code, § 2706. Wyoming. Eev. Stats. 1899, see. 4864. § 20. Degree of kindred, how computed. The degree of kindred is established by the number of generations, and each generation is called a degree. Kerr's Cyc. Civ. Code, § 1389. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 173, p. 387. Idaho. Civ. Code 1901, see. 2542. Montana.* Civ. Code, sec. 1855. Nevada. Comp. Laws, sec. 3048. North Dakota.* Eev. Codes 1905, § 5191. Oklahoma.* Eev. Stats. 1903, sec. 6899. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5582. South Dakota.* Civ. Code 1904, § 1098. Utah.* Eev. Stats. 1898, sec. 2835. Washington. Pierce's Code, § 2707. §21. Same. [Collateral line.] The series of degrees forms the line; the series of degrees between persons who descend from one another is called direct or lineal consan- SUCCESSION. 29 guinity; and the series of degrees between persons who do not descend from one another, but spring from a common ancestor, is called the collateral line or collateral consan- guinity. Kerr's Cyc. Civ. Code, § 1390. ANALOGOUS AND IDENTICAL STATUTES. Tile * indicates identity. Alaska. Carter's Code, sec. 173, p. 387. Idaho. Civ. Code 1901, sec. 2542. Montana.* Civ. Code, see. 1856. Nevada. Comp. Laws, sec. 3048. North Dakota.* Eev. Codes 1905, § 5192. Oklahoma.* Eev. Stats. 1903, sec. 6900. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §5582. South Dakota.* Civ. Code 1904, § 1099. Utah.* Rev. Stats. 1898, sec. 2836. Washington. Pierce's Code, § 2707. § 22. Same. [Ascending and descending direct line.] The direct line is divided into a direct line descending and a direct line ascending. The first is that which connects the ancestors with those who descend from him. The second is that which connects a person with those from whom he descends. Kerr's Cyc. Civ. Code, § 1391. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 173, p. 387. Idaho. Civ. Code 1901, sec. 2542. Montana.* Civ. Code, sec. 1857. Nevada. Comp. Laws', sec. 3048. North Dakota.* Eev. Codes 1905, § 5193. Oklahoma.* Eev. Stats. 1903, sec. 6901. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5582, South Dakota.* Civ. Code 1904, § 1100. Utah.* Eev. Stats. 1898, sec. 2837. Washington. Pierce's Code, § 2707. § 23. Same. [Degrees in direct line.] In the direct line there are as 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 grandfather toward the sons and grandsons. Kerr's Cyc. Civ. Code, § 1392. 30 PBOBATE LAW AND PKACTICE. AITALOGOtrS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 173, p. 387. Idaho. Civ. Code 1901, sec. 2542. Montana.* Civ. Code, sec. 1858. Nevada. Comp. Laws,- see. 3048. North Dakota.* Eev. Codes 1905, § 5194. Oklahoma.* Eev. Stats. 1903, sec. 6902. Oregon. Bellinger and Cotton's Ann. Codes and Stats., | 5582, South Dakota.* Civ. Code 1904, § 1101. Utah.* Eev. Stats. 1898, sec. 2838. Washington. Pierce's Code, § 2707. § 24. Same. [Degrees in collateral line.] 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 ances- tor 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. Kerr's Cyc. Civ. Code, § 1393. ANALOGOUS AND IDENTICAL STATUTES. Tile * indicates identity. Alaska. Carter's Code, see. 173, p. 387. Idaho. Civ. Code 1901, sec. 2542. Montana.* Civ. Code, sec. 1859. Nevada. Comp. Laws, sec. 3048. North Dakota.* Eev. Codes 1905, § 5195. Oklahoma.* Eev. Stats. 1903, sec. 6903. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5582. South Dakota.* Civ. Code 1904, § 1102. Utah.* Eev. Stats. 1898, sec. 2839. Washington. Pierce's Code, § 2707. § 25. Relatives of the half blood. 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 such ancestors must be excluded from such inheritance. Kerr's Cyc. Civ. Code, §1394. SUCCESSION. 31 ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 173, p. 387. Arizona. Eev. Stats. 1901, par. 2119. Colorado. 3 Mills's Ann. Stats., sec. 4654. Idaho. Civ. Code 1901, sec. 2542. Kansas. Gen. Stats. 1905, § 2548. Montana.* Civ. Code, sec. 1860. Nevada. Comp. Laws, sec. 3048. North Dakota.*. Rev. Codes 1905, §5196. Oklahoma.* Rev. Stats. 1903, sec. '6904. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5582. South Dakota.* Civ. Code 1904, § 1103. Utah.* Rev. Stats. 1898, sec. 2840. Washington. Pierce's Code, § 2707. Wyoming. Eev. Stats. 1899, see. 4860. § 26. Advancements are part of distributive share. Any estate, real or personal, given by the decedent in his lifetime as an advancement to any child, or other heir, is a part of the estate of the decedent for the purposes of division and dis- tribution thereof among his heirs, and must be taken by such child, or other heir, toward his share of the estate of the de- cedent. Kerr's Cyc. Civ. Code, § 1395. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 174, p. 387. Arizona. Eev. Stats. 1901, par. 2122. Colorado. 3 Mills's An^ Stats., see. 4655. Idaho. Civ. Code 1901, sec. 2543. Kansas. Gen. Stats. 1905, § 2545. Montana. Civ. Code, sec. 1861. Nevada. Comp. Laws, sec. 3049. North Dakota. Eev. Codes 1905, § 5197. Oklahoma. Rev. Stats. 1903, sec. 6905. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5583. South Dakota. Civ. Code 1904, § 1104. Utah. Rev. Stats. 1898, sec. 2841. Washington. Pierce's Code, § 2708. § 27. Advancements, when too much, or not enough. If the amount of such advancement exceeds the share of the heir receiving the same, he must be excluded from any fur- ther portion in the division and distribution of the estate, but he must not be required to refund any part of such ad- 32 PEOBATE LAW AND PRACTICE. vaneement; 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. Kerr's Cyc. Civ. Code, § 1396. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska.* Carter's Code, see. 175, p. 387. Arizona. Eev. Stats. 1901, par. 2122. Colorado. 3 Mills's Ann. Stats., sec. 4655. Idaho.* Civ. Code 1901, sec. 2544. Kansas. Gen. Stats. 1905, § 2546. Montana.* Civ. Code, sec. 1862. Nevada.* Comp. Laws,, sec. 3050. North Dakota.* Eev. Codes 1905, § 5198. Oklahoma.* Eev. Stats. 1903, see. 6906. Oregon.* Bellinger and Cotton's Ann. Codes and Stats., | 5584, South Dakota.* Civ. Code 1904, § 1105. Utah.* Eev. Stats. 1898, sec. 2842. • Washington.* Pierce's Code, § 2709. § 28. 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 decedent as an advancement, or acknowledged in writing as such, by the child or other successor or heir. Kerr's Cyc. Civ. Code, § 1397. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 177, p. 388. Arizona. Eev. Stats. 1901, par. 2122. Colorado. 3 Mills's Ann. Stats., sec. 4656. Idaho.* Civ. Code 1901, sec. 2545. Montana.* Civ. Code, sec. 1863. Nevada. Comp. Laws, sec. 3051. North Dakota.* Eev. Codes 1905, i 5199. Oklahoma.* Eev. Stats. 1903, sec. 6907. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5586. South Dakota.* Civ. Code 1904, § 1106. Utah.* Eev. Stats. 1898, see. 2843. Washington. Pierce's Code, § 2711. § 29. Value of advancements. How determined. If the value of the estate so advanced is expressed in the convey- ance, or in the charge thereof made by the decedent, or in the acknowledgment of the party receiving it, it must be held as of that value in the division and distribution of the SUCCESSION. 33 estate ; otherwise, it must be -estimated according to its value when given, as nearly as the same can be ascertained. Kerr's Cyc. Civ. Code, § 1398. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 178, p. 388. Arizona. Eev. Stats. 1901, par. 2122. Colorado. 3 Mills's Ann. Stats., sec. 4655. Idaho.* Civ. Code 1901, sec. 2546. Montana.* Civ. Code, sec. 1864. Nevada.* Comp. Laws, sec. 3052. North Dakota.* Eev. Codes 1905, § 5200. Oklahoma.* Eev. Stats. 1903, sec. 6908. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5587. South Dakota.* Civ. Code 1904, § 1107. Utah.* Eev. Stats. 1898, sec. 2844. Washington. Pierce's Code, § 2712. § 30. When heir advanced to dies before decedent. If any child, or other heir receiving advancement, dies before the decedent, leaving heirs, the advancement must be taken into consideration in the division and distribution of the estate, and the amount thereof must be allowed accordingly by the representatives of the heirs receiving the advancement, in like manner as if the advancement had been made directly to them. Kerr's Cyc. Civ. Code, § 1399. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 179, p. 388. Arizona. Eev. Stats. 1901, par. 2122. Colorado. 8 Mills's Ann. Stats., sec. 4655. Idaho. Civ. Code 1901, sec. 2547. Montana. Civ. Code, sec. 1865. Nevada. Comp. Laws, sec. 3053. North Dakota. Eev. Codes 1905, § 5201. Oklahoma. Eev. Stats. 1903, sec. 6909. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5588. South Dakota.* Civ. Code 1904, § 1108. Utah. Eev. Stats. 1898, sec. 2845. Washington. Pierce's Code, § 2713. § 31. Inheritance of husband and wife from each other. The provisions of the preceding sections of this title, as to the inheritance of the husband and wife from each other, Probate — 3 34 PROBATE LAW AND PRACTICE. apply only to the separate property of tlie decedents. Kerr's Cyc. Civ. Code, § 1400. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona. Eev. Stats. 1901, par. 2118. Idaho.* Civ. Code 1901, sec. 2548. Nevada.* Comp. Laws, sec. 3054. § 32. 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 disposition, and in the absence of such disposition, goes to her descendants, or heirs, exclusive of her husband. Kerr's Cyc. Civ. Code, § 1401. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Aiizona. Eev. Stats. 1901, par. 2124. Idaho.* Civ. Code 1901, sec. 2549. New Mexico.* Laws 1907, p. 49, see. 26. Washington. Pierce's Code, § 2703. § 33. Distribution of common property on death of hus- band. Upon the death of the husband, one half of the com- munity property goes to the surviving wife, and the other half is subject to the testamentary disposition of the hus- band, 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 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 sub- ject to his debts, the family allowance, and the charges and expenses of administration. Kerr's Cyc. Civ. Code, § 1402. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona. Eev. Stats. 1901, par. 2124. Idaho.* Civ. Code 1901, sec. 2550. Kansas. Gen. Stats. 1905, § 2537. SUCCESSION. 35 New Mexico. Laws 1907, sec. 27, p. 50. Washington. Pierce's Code, §2703. § 34. Inheritance by representation. Iriheritanee or suc- ■ cession " by right of representation " takes place when the deseendants.of any deceased heir take the same share or right in the estate of another person that their parents would have taken if li\dng. Posthnmous children are considered as liv- ing at the death of their parents. Kerr's Cyc. Civ. Code, § 1403. ANAI.OGOUS AND IDENTICAL STATUTES The * indicates identity. Alaska. Carter's Code, sec. 181, p. 388. Colorado. 3 Mills's Ann. Stats., sec. 4653. Idaho.* Civ. Code 1901, sec. 2551. Kansas. Gen. Stats. 1905, §2549. Montana.* Civ. Code, sec. 1866. Nevada.* Comp. Laws, see. 3058. North Dakota.* Eev. Codes 1905, § 5202. Oklahoma.* Eev. Stats. 1903, sec. 6910. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5590. South Dakota.* Civ. Code 1904, § 1109. Utah.* Eev. Stats. 1898, sec. 2846. Washington. Pierce's Code, § 2715. Wyoming. Eev. Stats. 1899, sec. 4859. § 35. Inheritance by aliens. Eesident aliens may take in aU cases by succession as citizens ; and no person capable of succeeding under the provisions of this title is precluded from such succession by reason of the alienage of any rela- tive; but no non-resident foreigner can take by succession unless he appears and claims such succession within five years aftef the death of the decedent to whom he claims suc- cession. Kerr's Cyc. Civ. Code, § 1404. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona. Eev. Stats. 1901, par. 2129. Colorado. 3 Mills's Ann. Stats., sec. 4657. Idaho.* Civ. Code 1901, sec. 2552. Montana.* Civ. Code, see. 1867. North Dakota. Eev. Codes 1905, §5203. Oklahoma. Eev. Stats. 1903, sec. 6911. South Dakota. Civ. Code 1904, § 1110. Utah. Eev. Stats. 1898, sec. 2847. Wyoming. Kev. Stats. 1899, sec. 4861. 36 PROBATE LAW AND PRACTICE. § 36. Effect of not claiming succession. When succession is not claimed as provided in the preceding section, the supe- rior court, on information, must direct the attorney-general to reduce the property to his possession or that of the state, . or to cause it to be sold, and it or its proceeds to be deposited in the state treasury for the benefit of the person entitled thereto, to be paid to him, if, within five years after such deposit, he appears in the court in which such information was filed and asks for a judgment or order entitling him thereto. Kerr's Oyc. Oiv. Code, § 1405. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Idaho. Civ. Code 1901, sec. 2553. Montana. Civ. Code, sec. 1868. North Dakota. Eev. Codes 1905, § 5204. Oklahoma. Eev. Stats. 1903, sec. 6912. § 37. Aliens inheriting 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 suc- cession, or be barred. The property in such case is disposed of as provided in title eight, part three, Code of Civil Proce- dure. Kerr's Oyc. Civ. Code, § 672. § 38. Property escheats to state when. When such judg- ment or order is obtained, a certified copy thereof must be filed with the state treasurer as his voucher. Thereupon the property must be 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 provided, the prop- erty of the decedent devolves and escheats to the people of the state, and must be placed by the state treasurer to the credit of the school fund. Kerr's Cyc. Civ. Code, § 1406. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 168, subd. 7, p. 385; sec. 169, subd. 6 p. 386; sec. 182, p. 389. Idaho. Civ. Code 1901, sec. 2554 (succession by aliens). Montana. Civ. Code, sec. 1869 (succession by aliens). North Dakota. Eev. Codes 1905, § 5204. SUCCESSION. 37 Oklahoma. Eev. Stats. 1903, sec. 6912. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5614. South Dakota. Civ. Code 1904, § 1111. Utah. Eev. Stats. 1898, sec. 3974. § 39. Escheated property is subject to what charges. 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 eight, part three, of the Code of Civil Procedure. Kerr's Cyc. Civ. Code, § 1407. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Montana.* Civ. Code, sec. 1870. North Dakota. Kev. Codes 1905, § 5205. Oklahoma. Eev. Stats. 1903, sec. 6913. South Dakota. Civ. Code 1904, § 1112. § 40. Successor is liable for decedent's obligations. Those who succeed to the property of a decedent are liable for his obligations in the eases and to the extent prescribed by the Code of Civil Procedure. Kerr's Cyc. Civ. Code, § 1408. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Montana.* Civ. Code, see. 1871. North Dakota. Eev. Codes 1905, § 5206. Oklahoma. Eev. Stats. 1903, sec. 6914. South Dakota. Civ. Code 1904, § 1113. § 41. Convicted murderer of decedent not to succeed. No person who has been convicted of the murder of the decedent shall be entitled to succeed to any portion of his estate ; but the portion thereof to which he would otherwise be entitled to succeed descends to the other persons entitled thereto under the provisions of this title. Kerr's Cyc. Civ. Code, § 1409. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 2120. North Dakota. Rev. Codes 1905, § 5127. Utah. Eev. Stats. 1898, sec. 2823. 38 PROBATE LAW AND PRACTICE. Taking by descent. (1) In general. (2) Title passes Iiow. (3) Deflection of descent, What property descends. (1) In general. (2) Community property. (S) Homesteads. (4) Timber-culture claims. Eights of widow. (1) In general. (2) As a survivor. (3) Under agreements. (4) Election to take under will. (5) Construction of statutes. Children's right of inheritance. . (1) In general. (2) Heirs of half blood. Descent on death of unmarried minor. Inheritance by adopted children. Descent to father. Descent to grandparents. LAW OF SUCCESSION. 9. Who cannot inherit. 10. Inheritance by convict. 11. Inheritance by aliens. 12. Inheritance by Indians. 13. Taking by contract, and not by succession. 14. Inheritance by or through illegiti- mate children. (1) Bight of. Acknowledgment. (2) Succession to estate of ille- gitimate not acknowledged or adopted. (3) Suficiency of acknowledg- ment. Evidence of rec- ognition. (4) Presumption as to legiti- macy. (5) Illegitimacy, how Inferred. (6) Construction of TTtali statute. (7) Sight of non-resident alien. (8) Pretermitted illegitimate child. 15. What law governs. 1. Taking by descent. (1) In general. The term " succession " is used in place of the ■words " descent and distribution," in some of the codes, to denote the transmission of the property of a decedent by operation of law: Estate of Headen, 52 Cal. 294, 298. The word "succeed" refers to persons who take property by operation of law; that is, by descent, by succes- sion: Estate of Wakefield, 136 Cal. 110, 112; 68 Pac. Bep. 499. The heirs of decedent, whether lineal or collateral, take their distributive share of the estate subject to all existing equities in favor of the estate against them personally, and against any of those through whom they inherit: Head v. Spier, 66 Kan. 386; 71 Pac. Bep. 833. While it is true that the descent is cast and the property of the decedent vested in the devisees and legatees, or in the heirs, at the moment of the ieath of the deceased, it is also true that they take the property subject to the payment of the expenses of administration, and subject to the Charges which the law fixes upon it for the support, maintenance, and comfort of the widow and family of the deceased, and subject to the liability to have these charges enforced by orders of the court made without notice in pursuance of the statute; and the enforcement of these charges in the authorized mode is not a violation of any constitu- tional right of the heir, devisee, or legatee: Estate of Bump (Cal.), 92 Vac! Bep. 643, 644. Under the statutes of Washington, which provide SUCCESSION. 39 that if the decedent leaves no issue, or husband or wife, and no father or mother, or brother or sister, the estate must go to the next of kin in equal degree, first cousins are preferred to second cousins: In re Sulli- van's Estate (Wash.), 94 Pae. Eep. 483, 486. Where the intestate leaves no wife and no issue, and his parents are both dead, one half of the estate goes to the heirs of the deceased father, and the other half to the heirs of the deceased mother: Eussell v. Hallett, 23 Kan. 276, 280; Sparks v. Bodensick, 72 Kan. 5; 82 Pac. Eep. 463. If a wife, being the owner of certain land, dies intestate, and leaves as her only- heirs her husband and several grandchildren, the offspring of her daughter by a former marriage, the surviving husband inherits a one- half interest in said land and the grandchildren the other half -interest: Oliver v. Sample, 72 Kan. 582; 84 Pac. Eep. 138. The intent of a statute which provides that an intestate's property shall descend to the surviving husband or wife, and to the intestate's descendants in specified proportions, and, in case of no issue, to the surviving husband or wife and father in equal shares, and, if no issue, or husband, or wife, or father, then in equal shares to the brothers and sisters of the intes- tate, is, that one half of the property shall descend and be distributed, subject to the payment of debts, to the surviving husband or wife, and the other half to the intestate's brothers and sisters, and to the chil- dren of any deceased brother or sister by right of representation, pro- vided, if the intestate shall leave a mother, she sh^ll share equally with the brothers and sisters: In re Foley's Estate, 24 Nev. 197; 51 Pac. Eep. 834, 837. The Kansas statute excluding strangers to the blood from the line of descent is not unconstitutional with respect to the forms of its enactment: Andrews v. Harron, 59 Kan. 771; 51 Pac. Eep. 885, 886. In Colorado the lands of an intestate descend to the heirs, and not to the administrator. The title vests immediately in the heirs, and the administrator has no control over, or right, title, or interest in, the lands, except the power to harvest growing crops, and lease, mortgage, or sell in certain contingencies, and under proper order of the court having probate jurisdiction: Eupp v. Eupp, 11 Col. App. 36; 52 Pac. Eep. 290, 291. If the testator leaves no wife surviving him, nor any issue, except a pretermitted child, and there is nothing to show that the failure to mention the child was unintentional, such child takes the whole estate, in the same manner as though the tes- tator had died intestate. In such a case there is no need for any apportionment, and the question of advancement becomes immaterial: Pearson v. Pearson, 46 Cal. 609, 624. A native-born American citizen may claim property to which he has succeeded, at any time before a judgment or decree in a proper proceeding to escheat has been entered: Estate of Miner, 143 Cal. 194; 76 Pac. Eep. 968, 970. REFERENCES. Degrees of consanguinity and afSnity, how computed: See note 56 Am. Dec. 293, 294; Kerr's Cal. Cyc. Civ. Code, §§ 1389-1393, and notes. 40 PEOBATE LAW AND PRACTICE. Law governing descent and distribution: See note 10 L. E. A. 766, 767. Succession to estate of intestates: See note 12 Am. St. Eep. 81-113. Descent of title to personal property: See note 112 Am. St. Bep. 727-729. Procedure where succession is not claimed: See note Kerr's Cal. Cyc. Civ. Code, § 1405. Who are " next of kin ": See note 15 L. E. A. 300-304. Eight to take property by inheritance or will as natural right protected by constitution: See note 9 Am. & Eng. Ann. Cas. 726. (2) Title passes how. The equitable title to the personal estate of an intestate descends at once to his heirs at law, subject only to the debts of the decedent. The legal title to the estate passes to the administrator, when appointed, for the purpose of enabling him to pay the debts due from the estate: Brown v. Baxter (Kan.), 94 Pac. Eep. 155. The title to real property vests in the heir at the time of the decedent's death: In re Sullivan's Estate, 36 Wash. 217; 78 Pac. Eep. 945, 948. Eeal estate descends directly to the heirs of the deceased, subject to the payment of his debts: Adams v. Slattery (Col.), 85 Pac. Eep. 87, 88. The title to both real and personal prop- erty of one who dies without disposing of it by will passes to the heirs of the intestate, subject to the control of the probate court and to the possession of any administrator appointed by that court for the purpose of administration: Eeed v. Stewart (Ida.), 87 Pac. Eep. 1002, 1003. The title to a decedent's land vests in the heirs at his death, subject only to such powers to order a sale in course of ad- ministration as are then possessed by the court; and these vested rights cannot be impaired nor affected by subsequent legislation giving it a power of sale for new purposes different from and greater than those conferred by the law in force at the time of the death of the deceased: Estate of Newlove, 142 Cal. 377; 75 Pac. Eep. 1083, 1084. (3) Deflection of descent, if a decedent dies intestate as to certain land, without widow or issue, or father, but does leave surviving him a mother, she becomes his sole heir, and the descent thus cast cannot be deflected along any other line, except by will containing other terms of disposition. The mother, in such a case, cannot be deprived of the estate by a provision in the testator's will leaving her a legacy, if the will contains no disposition t)f the testator's property to any one else: Andrews v. Harron, 59 Kan. 771; 51 Pac. Eep. 885. 2. What property descends. (1) In general. An intestate's undisputed possession of real estate, with claim of ownership, up to the time of his death, gives him such a title as descends to his heirs: Janes v. Holanden, 7 Kan. App. 811; 52 Pac. Eep. 913. So personal property of one who dies intestate passes to the heirs of such intestate, subject to the control of the probate court and to the possession of any administrator appointed SUCCESSION. 41 by the court for the purposes of administration: Iiitz v. Exchange Bank, 15 Okl. 564; 83 Pac, Rep. 790. A settler upon the public lands of the United States may appropriate water and acquire a right to the use thereof upon such lands, and such right may be sold by him, or, in case of his death, the right descends to nis heirs: Hall v. Blackman, 8 Ida. 272; 68 Pac. Rep. 19. A water right for irrigation purposes is an easement and an incorporeal hereditament descendible by' in- heritance, and a freehold estate. It therefore comes within the mean- ing of the term "real property": Gutheil Park Inv. Co. v. Town of Montclair, 32 Col. 420; 76 Pac. Eep. 1050, 1051. The right of enjoy- ment of possession of public land may descend among the effects of a deceased person to the executor or administrator, and the right of the deceased be conveyed by regular sale to another: Grover v. Hawley, 5 Gal. 485, 486. A claim of preference right of purchase of tide-lands from the state is a right which will descend to the purchaser's heirs and legal representatives as other property rights descend; and the -heirs and legal representatives to whom the right descends may con- vey that right to another: Hotchkin v. Bussell (Wash.), 89 Pac. Rep. 183, 185. A cause of action for a trespass or injury to land, occurring after the death of decedent, does not pass to the administrator or executor, but to the heir or devisee: Adams v. Slattery (Col.), 85 Pao. Rep. 87, 89. Upon the death of defendant, in an action brought by the state for maintaining an alleged nuisance, by keeping a place where intoxicating liquors are unlawfully sold, the property used by him in the maintenance of the nuisance passes to his heirs, subject to the control of the county court and the possession of the adminis- trator: State V. McMaster, 13 N. D. 58; 99 N. W. Eep. 58. If a life estate in certain real property is devised to the widow, and, without making any devise of the remainder after the widow's death, a direction is made in the will that the proceeds be divided equally between four children, the entire interest therein is vested in the children by reason of their being the sole beneficiaries thereof. The effect of such direction is to convert the land into personalty, to take effect when the executor has power to make the sale. The rule of equitable conversion merely amounts to this: that, where it is manda- tory to sell at a future time, equity, upon the principle of regarding that done which ought to be done, will, for certain purposes, and in aid of justice, consider the conversion as effected at the time when the sale ought to take place, whether the land be then really sold or not. But, wherever the direction is for a future sale, up to the time fixed the land is governed by the law of real estate: Bank of Ukiah V. Rice, 143 Cal. 265; 76 Pac. Rep. 1020, 1021. Statutes which regulate the descent and distribution of real property are applicable to quartz-lodes: Carrhart v. Montana Min. etc. Co., 1 Mont. 245, 249. BEFEEENCES. Descent of unpatented mining claim: See note 4 L. R. A. (N. S.'J 919, 920. 42 PROBATE LAW AND PKACTICE. (2) Community pioperty. Under a statute which provides that, upon the husband's death, one half of the community property goes to the surviving wife, and that the other half is subject to the testamentary disposal of the husband, and in the absence of such disposition, goes to his descendants, and in the absence of both such disposition and descendants, is subject to distribution in the same manner as the separate property of the husband, the widow is not entitled to any portion of such other half, which must be distributed according to the common law: In re Clark's Estate, 17 Nev. 124; 28 Pae. Eep. 238, 239. Under a statute which provides 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 husband, and in the absence of such disposition, goes to his descendants, a widow is not entitled to one half by virtue of the statute, nor to any part of the other half which is otherwise disposed of by will, especially where she has, by virtue of the will, more than one half of the whole estate: Chad wick v. Tatem, 9 Mont.- 354; 23 Pae. Eep. 729, 733. It is a rule of property in the state of Washington that one half of all the property purchased by a husband and wife with community funds descends to the heirs of the wife on her death: Warburton v. White, 18 Wash. 511; 52 Pae. Eep. 233. Mining property acquired under the laws of the United States during coverture is community property; and all property acquired by the husband during coverture, except such as is acquired by gift, bequest, devise, or descent, is community property, although the wife may never have been a resident of the state: Jacobson v. BUnker Hill etc. Co., 3 Ida. 126; 28 Pao. Eep. 396. A statute which provides that a testator shall be deemed intestate as to such of his children as are not provided for in his will applies to community property, as well as to his separate estate; and, where he is deemed intestate as to such children, parol evidence is not admissible to show that he had provided for such children otherwise than by his will: Hill v. Hill, 7 Wash. 409; 35 Pae. Eep. 360. When the husband dies, his wife takes one half of the community property as his heir: Estate of Moffitt, 35 Cal. Dee. 377, 378 (April 20, 1908). Upon the husband's death, one half of the community property goes to the surviving wife, and the other half is subject to his testamentary disposition, and in the absence of such disposition, goes to his descendants. It cannot be contended, with respect to such property, where there is a surviving wife and children, that the wife takes one half absolutely and one third of the remaining half as her own. It toUows that her judgment creditor can enforce his judgment only against her interest in the estate: Estate of Angle, 148 Cal. 102; 82 Pae. Eep. 668. BEFEBEN0E3. Distribution of common property on death of husband: See note Kerr's Cal. Cyc. Civ. Code, § 1402. Distribution of common property on death of wife: See note Kerr's Cal. Cyc. Civ. Code, g 1401. SUCCESSION. 43 (3) Homesteads. The title to a homestead does not descend to the widow and children of a deceased owner, who may occupy the land at the time of his death, to the exclusion of other heirs, who may reside elsewhere, but it descends in the same manner as the title to other real estate, subject only to the right of occupancy of the widow and children residing there, until the widow remarries, or the children all become of age: Mitchell v. Mitchell, 69 Kan. 441; 77 Pac. Eep. 98. "Where the estate is solvent and out of debt, the value of such part of the homestead as may be set aside to the widow should be deducted from her distributive share provided for by statute. She cannot have both, unless such design on the part of the testator clearly appears from the will: In re Little, 22 Utah, 204; 61 Pac. Eep. 899. If a married man makes a homestead- entry on a certain quarter-section of land while his wife is living, but she dies before final proofs are made and the patent issued, and the husband afterwards acquires the legal title, the children take as heirs of their mother: Cox v. Tompkinson, 39 "Wash. 70; 80 Pac. Kep. 1005, 1006. The descent of a homestead, on the father's death, to his children, subject to a life estate in the widow, is not unconstitutional as class legislation, as it operates upon persons uniformly throughout the state: Holmes v. Mason (Neb.), 114 N. "W. Eep. 606, 608. It seems to be the policy of the law to guard homestead rights for the benefit of the entryman himself, and in case of his death before patent, for the benefit of his heirs. "Whatever rights survive the death of the homesteader belong to the heirs, and not to the estate of the deceased. The heirs do not succeed to such rights by inheri- tance, but by virtue of the law, which merely grants to th^m prefer- ence rights. If they fail to exercise those rights, or if there are no heirs capable, as citizens of the United States, of succeeding to- such rights, then there is no one else to whom any preference right sur- vives, and the land is open, as a part of the public domain, for occu- pancy by any qualified homesteader. The administrator, as such, succeeds to no rights in the homestead, for the reason that these are reserved for the heirs, and the law does not invest the administra- tor with any rights therein, simply because there are no heirs: Towner V. Eodegeb, 33 "Wash. 153; 99 Am. St. Eep. 936; 74 Pac. Eep. 50. Before a homesteader has earned a right to a patent, he has no such interest in the land as will make it a part of his estate on his death. The patent thereafter issued to the persons specified in the Federal statute is issued to them, not as heirs of the decedent, who have in- herited his title, but as original parties, who are preferred by the Federal statute, after the rights of the original homesteader have been destroyed by death; they being allowed the benefit of his resi- dence upon the land: G-jerstadenjen v. Van Duzen, 7 N. D. 612; 76 N. "W. Eep. 233. If a homestead has not been selected from community property, but from the property of the wife, it descends, upon her death, to her heirs, and if there be more than one child, as where 44 PEOBATE LAW AND PEACTICB. there are two children and a surviving husband, one third of it is succeeded to by the husband, and the remaining two thirds in equal shares by the children, as provided in the statute governing succes- sion: Beck V. Soward, 76 Cal. 527, 531; 18 Pac. Eep. 650. (4) Timber-culture claims. It is settled beyond dispute that the heirs of a timber-culture entryman upon public lands of the United States, who dies before completing the period of occupancy and receiving the patent, succeed to all his rights, and, upon making the required proof, take title as direct grantees and purchasers from the government, and not by inheritance: Gould v. Tucker (S. D.), 105 N. W. Eep. 624, 625. Even though the administrator of the estate of a 'deceased entryman uses money belonging to the estate to commute the entry by payment of the required amount to the United States, all rights under the patent inure to the heirs as if their names had been specially mentioned therein, and neither the administrator nor the probate court has authority to sell the land to satisfy debts previously created, or to burden the same with any part of the ex- pense incurred in securing the patent: Gould v. Tucker (S. D.), 105 N. W. Eep. 624, 625. Upon the death of a timber-culture claimant, before performance by him of the conditions precedent to obtaining title from the government, his heirs succeed to the claim, and may obtain a patent therefor in their own name by proof of full per- formance by them and their ancestor of the required conditions. But, in such case, they take directly as donees of the government, and not by inheritance. Upon the death of the claimant, his interest in the timber-culture claim absolutely terminates and is at an end, and his rights pass by direct grant to his heirs and substituted bene- ficiaries of the government. He has, at the time of his death, no interest which can be devised, or which will descend or pass to his heirs or personal representatives. Hence proceedings assuming juris- diction over the claim, and authorizing its sale, are absolutely void for want of .iurisdietion of the- subject-matter. The claim at that time belongs to the heirs, in their own right, and such proceedings could have no more force and effect than if the court should assume to order a sale by the administrator of any other property belonging to the heirs: Haun v. Martin (Or.), 86 Pac. Eep. 371, 372. 3. Eights of widow. (1) In general. A wife is not a "relative" of her husband, so that, under a will containing a devise to her, she dying first her heirs succeed to the estate as she would have done had she lived. Upon her death preceding that of her husband, the devise would lapse: In re Eenton's Estate, 10 Wash. 533; 39 Pac. Eep. 145, 146. The Colorado statute expressly provides that a widow or surviving wife of a husband dying intestate is heir to one half of his real estate, if there be a child or children living, and is also entitled to one half SUCCESSION. 45 » of the personalty, but if there are no children, or descendants of any child, she becomes the sole heir at law. She is therefore entitled to share in the proceeds of a policy of insurance payable to her husband's " legal heirs ": Anderson v. Groseback, 26 Col. 3; 55 Pac. Rep. 1086, 1090. A widow has no interest in, and is not entitled to, a distribu- tive share of land owned by the deceased husband during marriage, and which is not a homestead, where the same was sold before his death upon a special execution or order of sale issued in pursuance of a judgment in an action to recover upon a note executed by the husband, and to foreclose a mortgage given to secure its payment, notwithstanding that she did not join in executing the note or mortgage, and was not a party to the foreclosure action: Hosteller v. Gorrell, 41 Kan. 392; 21 Pac. Eep. 232. If a woman claims property as the wife of a decedent, and she makes affidavit that the decedent had deserted her after marriage, in a foreign country, some sixteen years prior to the time of his death, and that she believed that after he had deserted her he came to this country, she cannot recover, where there is no evidence of that fact, and evidence of the identity of the deceased as her husband is wholly lacking: Goldwater v. Burnside, 22 Wash. 215; 60 Pac. Eep. 409, 410. A widow is an " heir ": Thurston v. Allen, 8 Haw. 392, 404. (2) As a survivor. A deed which conveys an estate to a husband and wife conveys it in entirety, and upon the death of one, the other is entitled, as a survivor of the two, to the entire estate: Baker v. Stewart, 40 Kan. 442; 19 Pac. Eep. 904, 906. BEFEBENCES. Inheritance by wife: See Kerr's Cal. Cyc. Civ. Code, § 1386, note 57. (3) Under agreements. Agreements between husband and wife, which are calculated to facilitate the securing of a divorce, are con- trary to public policy, and void. Hence if a husband, by unfair means, secures his wife's signature to such a contract, in which she consents to take, as her share, a fractional part of the property of her husband on his death, she is not barred from her right of inheri- tance: Palmer v. Palmer, 26 Utah, 31; 72 Pac. Eep. 3, 9. An ante- nuptial agreement providing that the property owned by either party shall, after marriage, remain the separate and distinct property of such owner; that neither shall have or exercise any right, title, or estate in the property of the other; and that each may, at his or her option, dispose of such property by will or otherwise, except that the husband shall not, during the lifetime of the wife, so dispose of his property as to jeopardize or render nugatory a subsequent provision for her benefit, by which he agrees to furnish her proper and comfortable support so long as they live together as husband' and wife, or in case she survives him, so long as she remains his 46 PROBATE LAW AND PEACTICE. widow, — does not exclude the widow from her right of inheritance in the husband's property, where they have lived together for thirty years, and the husband dies intestate: Eouse v. Eouse (Kan.), 91 Pao. Eep. 45. (4) Election to take under will. Where a will is deposited in the office of the probate judge by the testator, and, after his death, the will is produced in open court, opened, and read in the presence of the devisees of the real property described therein (one of the witnesses to the will, and another), and an entry is made upon the will, by the probate judge, of the election of the widow to take under the will, and that the will is admitted to probate, the property passes under the will, and does not descend to the heirs of the testator: Chandler V. Eichardson, 65 Kan. 152; 69 Pac. Eep. 168. (5) Construction of statutes. Although the act of Congress en- dows the widow, in Utah, with a one-third part of all land whereof the husband was seised, and she has therefore a dower interest, a life estate, to the extent of one third of all the real estate whereof the husband died seised, she is also entitled, under the law of succes- sion, to one third of all the real estate remaining after the dower is set ofE to her, and also to the undivided one third of all the personal property after the debts, costs, and expenses attending the settlement of the estate are paid; and minor heirs are each entitled, by suc- cession, to the undivided one third of the remaining two thirds of the real estate and personal property, subject to the widow's right of dower, as above stated: Knudsen v. Hannberg, 8 Utah, 203; 30 Pac. Eep. 749, 752. A proviso in a statute, limiting the general right of a wife to inherit the real estate of her husband, and which is, that she shall not be entitled to any interest in any land of which the husband has made a conveyance, when the wife, at the time of the conveyance, " is not or never has been a resident of this state," does not prevent her from taking the benefit of the acts relative to descents and distributions, if she has ever been a resident of the state. The word " or," in the last clause, should be read " and," as this will not limit the right of inheritance, and will give some meaning to aU of the words of the statute: Kennedy v. Haskell, 67 Kan. 612; 73 Pac. Eep. 913, 914. 4. Children's light of inheritance. (1) In general. In New Mexico, a child can be disinherited with- out being mentioned in a wUl, though it appears that the omission of its name occurred through inadvertence or mistake: In re McMil- len's Estate, 12 N. M. 31; 71 Pac. Eep. 1083. Under the statute of Washington, where a testator is deemed intestate as to such of his children as are not provided for by his will, parol evidence is not admissible to show that the testator had provided for his children otherwise than by his will: Hill v. Hill, 7 Wash. 409; 35 Pac. Eep. SUCCESSION. .47 360. In 1868, the statute of New Mexico did not determine the rights of a child in the estate of its mother, where the father was living. Such rights were determined by the Spanish law: Grary v. Field, 9 N. M. 222; 50 Pae. Eep. 342, 344. The surviving husband is author- ized by the civil law of Spain and Mexico to sell as much of the community property as may be necessary to pay the community debts, and, in the exercise of this right and discharge of this duty, any transfer of property made by him, be it personal or real, conveys a good title to his vendee,, and the heirs are without authority to interfere with or restrain him in his action, as survivor, unless it shall appear that he is prostituting his power, and committing waste to their detriment: Crary v. Field, 9 N. M. 222; 50 Pae. Eep. 342, 344. A deceased person, in his lifetime, was married three times. , By his first wife he had one child. By his second wife he had one child. By his third wife, surviving him, he had five children. He died intestate in Kansas. It was held that, at his death, one half in value of his real estate, not necessary for the payment of his debts, descended in fee-simple to his widow; that the other half of his real estate de- scended to his seven children equally, being all of his children by his three wives; and that, upon the death of his widow, her estate descended to her own children: Colgon v. Burleigh, 52 Kan. 392; 34 Pae. Eep. 1050. Where a deceased father had been ordered by decree of court to pay a csrtain sum of money, from and after the date of the decree, for the support and maintenance of his child, it cannot be contended, in the face of such monthly payments, that the omis- sion to mention the child in his will was caused by, or was due to, inadvertence or mistake: In re McMUlen's Estate, 12 N. M. 31; 71 Pae. Eep. 1083, 1084. A clause of the testator's wUl, empowering the executrix to sell land to pay the testator's debts, does not operate to devest a child born after the making of the will of its title in the land devised, where the statute provides that Svery testator leaving a child born after the making of the will, not named nor provided for therein, shall be deemed to have died intestate as to such child: Worley v. Taylor, 21 Or. 589; 28 Pae. Eep. 903. (2) Heirs of half blood. Where an intestate leaves, as his sole heirs, four brothers (or sisters), half-brothers (or sisters) who are children of his father, and half-brothers (or sisters) who are children of his mother, each full brother (or sister) inherits an equal share with each child of his father in the half of the estate descending through the father, and also, in addition thereto, an equal share with each child of his mother, in the half of the estate descending through her; the provision of the statute that children of the half blood^hall inherit equally with children of the full blood not having the effect to require that in the case stated all the children of either or both of intestate's parents shall receive equal parts of his estate: Tays v. Eobinson, 68 Kan. 53; 74 Pae. Eep. 623. The statute . casting the descent o;f property uses the word "children," and the relation of 48 PROBATE LAW AND PRACTICE. parent and child determines inheritance. The divorce of parents does not affect this relation. No matter who may have a daughter's custody for the purposes of nurture, she is still the child of her father, and, by statute, children of the half blood inherit equally with those of the whole blood: Mclntyre v. Gelviu (Kan.), 95 Pae. Kep. 389. Resi- dent citizen half-sisters of a resident citizen who died intestate, leaving neither widow nor children, and whose parents both died before him, non-resident aliens, inherit immediately and directly the lands of the deceased in Kansas: State v. Ellis, 72 Kan. 285; 83 Pac. Eep. 1045. BEFEBENCES. Relatives of the half blood: See note Kerr's Cal. Cyc. Civ. Code, §§ 1386, 1394. Inheritance by half blood: See note 61 Am. Dec. 655-667. Descent and distribution among kindred of half blood: See note 29 L. E. A. 541-567. 5.. Descent on death of unmarried minor. If a minor daughter has inherited the proceeds of community property of her father and mother upon the death of her father, and dies without issue, and, not having been married, leaving surviving her a mother and her brothers, all of such property, personal as well as real, of the deceased child goes to her surviving brothers, and the mother takes no interest therein; but regard must be had to the source from which the prop- erty was derived in its distribution, and a separate personal estate must be distributed among the same persons as would be entitled to the real property: Fort v. West, 14 Wash. 10; 44 Pac. Eep. 104, 106. S. Inheritance by adopted children. In a state having a statute regulating the adoption of children, the provisions thereof must be substantially followed, in order to clothe the adopted children with the right of inheritance: Eenz v. Jury, 57 Kan. 84; 45 Pac. Eep. 71, 72. The word " issue," in a statute prescribing a rule of inheritance, i§ used in the same sense as the word " child " and " children." /So Af an adopted child is, by virtue of its status, to be " regarded and ; treated in all respects as the child of the person adopting," and is to " have all the rights and be subject to all the duties of the legal relation of parent and ehUd," the right to succeed to the estate of the deceased parent must be included: Estate of Newman, 75 Cal. 213; 16 Pac. Eep. 887, 888. The right of inheritance in such eases is fixed solely by the act itself. ' If a child is adopted by one parent, and not by another, the rights acquired by an adopted child would be simply rights in the estate of the adopting parent, and would leave the aight of inheritance as to the non-adopting parent wholly un- affected by the act of adoption. Some cases hold that the right of inheritance extends only to the property of the parents who may die leaving property, and gives to the blood of the adopted child no such inheritable quality as to make the child a sister or brother of the children of the deceased parents with the ordinary right of inheri- SUCCESSION. '19 tance which would proceed from that relationship: Webb v. Jackson, 6 Col. App..211; 40 Pac. Eep. 467, 468. Where the adoption is under the statute of one state, and the parents ultimately remove to another, whose statutes of descent and distribution are dissimilar, the child can acquire no right in property which descends, and is to be distributed according to the law in force in place of the newly acquired resi- dence: Webb V. Jackson, 6 Col. App. 211; 40 Pac. Bep. 467, 468. if a testator dies, leaving a will in which no reference is made to an adopted child, such child is entitled to share in the estate as if the testator had died intestate. But the failure to refer in the will to such child does not invalidate the will. The whole estate is subject to the debts and expenses of administration. When these are paid, the adopted child is entitled to have its proportionate share of the estate set over to it, and the remainder of the estate descends accord- ing to the terms of the will. The remedy of a child not provided for in a will is, simply to move the court to proceed with the administra- tion of the estate of the mother, and, as a part of such administration, to decree and set over to such child the proportion to which it would be entitled if the testator had died intestate. If the administration of the estate has been properly set on foot by the probating of the will, it should continue until the estate is finally closed. The only effect that the failure to name the child in the will could have upon the proceedings would be to compel a determination thereof without regard to any extension provided for by the terms of the will, and a distribution that, as to such child, should be uninfluenced by any of the provisions thereof: Van Brocklin v. Wood, 38 Wash. 384; 80 Pac. Eep. 530, 532. Where the adoption of children is regulated by statute, as in Iowa and Kansas, rights of inheritance can only be acquired through adoption by a substantial compliance with the pro- visions of the statute: Renz v. Jury, 57 Kan. 84; 45 Pac. Eep. 71. A child adopted in a sister state, in substantial compliance with her statutes, will inherit lands of the deceased adopting parent in Kansas, on equal terms with a child of such parent born in wedlock: Gray v. Holmes, 57 Kan. 217; 45 Pac. Eep. 596. The heirs of an adopted daughter will inherit, through her, a share of the estate of the deceased adopting parent, just as if she were a daughter of such parent by blood: Gray v. Holmes, 57 Kan. 217; 45 Pac. Eep. 596. A child by adoption cannot inherit from its adoptive parent unless the act of adoption is in strict accordance with the statute: Furgeson V. Jones, 17 Or. 204; 20 Pac. Eep. 842. To establish heirship under acts providing for the adoption of children, the enactments must be looked to, to ascertain the rights of the claimants: Webb v. Jackson, 6 Col. App. 211; 40 Pac. Eep. 467, 468. BEFEEENCES. Inheritance by adopted children: See note on " Adoption," subd. 15, ante, and Kerr's Cal. Cyc. Civ. Code, § 1386, note 2. Eight of adopted children to inherit: See note 118 Am. St. Eep. 684-688. Probate — 4 §0 PROBATE LAW AND PEACTICB. Adopted child, right of, to inherit from persons other than adopting parents: See notes 4 Am. & Eng. Ann. Cas. 881; 9 Am. & Eng. Ann. Gas. 780. 7. Descent to father. Under the Kansas statute, when a child dies intestate, leaving no wife or issue, the whole of his estate goes to his father: Gray v. Holmes, 57 Kan. 217; 45 Pac. Eep. 596. Where a husband and wife had a famUy of six children, three of whom died early, unmarried, and without issue, and where the mother, who was the owner of a tract of land, subsequently died intestate, and left surviving her the father and three children, it was held, in an action to determine the respective interests of the parties in the estate of the mother, that the surviving father was the sole heir of the children who died prior to the death of the mother, and that the shares which they would have taken, had they outlived the mother, descended to him, and therefore that the three living children were each entitled only to a one-twelfth portion of the estate: De Lashmutt v. Parrent, 40 Kan. 641; 20 Pac. Eep. 504. If a woman dies, leaving surviving her husband and four minor children, and two of the children die under age, and unmarried, their interest in their mother's estate descends to their father. This is so under a statute which provides that if any person shall die seised of any real property, not having lawfully devised the same, if he leave no issue or wife, such real property shall descend to his father, and a statute which applies only in cases where the intestate has left one or more minor children, and the issue of one or more deceased children, is inapplicable to the case: Stitt V. Bush, 22 Or. 239; 29 Pac. Eep. 737, 738. In statutes of descent, the word " ancestor " means one from whom an estate is immediately inherited. So, if an estate comes to a father from his infant son, the son is the aiicestor of his father: Estate of Ehu, 9 Haw. 393, 394. BEFERENCE3. Inheritance by father: See £eii'B Cal. Cyc. Civ. Codej § 1386, note 44. 8. Descent to grandparents. The grandfather is one degree nearer of kin than the uncle, as computed by the eivU law; and where an intestate has no issue, or wife, father, mother, brother, or sister, his grandfather takes the estate in preference to his uncle, as next of kin: Smallman v. Powell, 18 Or. 367; 23 Pac. Rep. 248. A son having died, leaving no child, wife, father, mother, sister, or brother, or issue of any brother or sister, it was held that the estate descended to his grandmother on his father's side, and his grandfather and grandmother on his mother's side, in equal shares to each: Shadden v. Hembree, 17 Or. 14; 18 Pac. Eep. 572. Under the Colorado statute, the estate vests in the grandparents, if there are any, as one class, and if there are none, then in the uncles and aunts, collectively: Thatcher v. Thatcher, 17 Col. 404; 29 Pac. Eep. 800, 801. SUCCESSION. 51 9. Who cannot inherit. When a woman consents to hecome a plural wife, she does so at her peril, in so far as the law of inheri- tance is concerned. She is without the pale of the law of inheritance as to any property which her husband has acquired or may subse- quently acquire; and if he sees fit to bequeath all of his property to another, she has no lawful right to complain: Ealeigh v. Wells, 29 Utah, 217; 81 Pao. Eep. §08, 910. In a jurisdiction where marriage between a white man and an Indian woman, either by ceremony, co- habitation, customs of the Indian tribe, or any other method, is null and void, a child of such persons, born during their relationship of pretended husband and wife, has no right of inheritance from the father: In re Walker's Estate, 5 Ariz. 70; 46 Pac. Kep. 67. Where the statute provides that if a decedent leave a husband or wife, and neither issue, father, mother, brother, nor sister, the whole estate shall go to the surviving husband or wife, it is a rule of property that the nieces and nephews of the decedent, who dies intestate, and who leaves surviving him a widow, but- neither father, mother, brother, nor sister, do not succeed to any portion of the estate of the deceased, and this rule wiU be adhered to: Estate of Nigro (Cal.), 87 Pac. Eep. 384. Succession to estates is purely a matter of statutory regulation, which cannot be changed by courts: Ingram's Estate v. Clough, 78 Cal. 586; 21 Pac. Eep. 435. If a widow dies, leaving an estate acquired by descent, the children of her deceased husband, by a former wife, cannot inherit under a statute which provides that " kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the in- testate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor must be excluded from such inheritance": Amy v. Amy, 12 Utah, 278; 42 Pac. Eep. 1121, 1132. 10. Inheritance by convict. The right of inheritance is a civil right, existing only by virtue of the law, and the legislature may make the deprivation of this right a portion of the penalty to be imposed for the commission of a crime. Hence if the statute declares that a person sentenced to imprisonment in the state prison for life is thereafter deemed civilly dead, and he has been so sentenced, he cannot inherit the estate of his father, where such person was serving a life sentence at the time of his father's death: Estate of Donnelly, 125 Cal. 417; 58 Pac. Eep. 61. There is no doubt of the power of the legislature, by express language, to cast the descent of a convict's property, in the event of his civil death, on such persons as will be heirs at law in case of natural death; but a statute which provides that when a person shall be imprisoned under a sentence of imprison- ment for life, his estate, property, and effects shall be administered and disposed of in all respects as if he were naturally dead, does not cast the descent of his property upon his heirs by the fact of such 52 PROBATE LAW AND PHACTICE. sentence and imprisonment: Smith v. Becker, 62 Kan. 541; 64 Pac. Eep. 70. In the absence of express provision excluding the husband from inheriting from iis wife, under the laws of descent and distribu- tion of the Creek Nation, in force at the time of descent cast, the operation of said laws is not aflfected by the fact that the husband murdered his wife, but not for the purpose of at once obtaining the inheritance: De Graffenreid v. Iowa Land & T. Co. (Old.), 95 Pac. Eep. 624. BEFEBENCE3. Person convicted of murder of decedent, not entitled to succeed: See Kerr's Cal. Cyc. Civ. Code, § 1409, and note. Descent to murderer: See note 5 L. B. A. 344, 345. Homicide as afEeoting devolution of property: See note 3 L. B. A. 726-730. Murderer, succession by, to property of victim: See notes 2 Am. & Eng. Ann. Oas. 658; 7 Am. & Eng. Ann. Gas. 976. 11. Inheritance by aliens. The constitution of Kansas, providing that " no distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment, or descent of property," made the statute of descents and distributions apply to aliens as well as to citizens, and enabled the former to inherit real property in such state: Spark v. Bodensick, 72 Kan. 5; 82 Pac. Bep. 463. Under the constitution of Washington, aliens are entitled to inherit real estate in that state, from, by, or through ancestors, whether such ancestors be aliens or citizens. This being true, and the state having failed to forfeit the title of the alien by proceedings in the nature of office found, at any time prior to his death, the real estate owned by such alien at the time of his death descends to his alien heirs, who are authorized to receive the same and become entitled thereto, and the state thereupon loses its right to declare any escheat by forfeiture. Prior to the alien's death, the state may declare a forfeiture or escheat, but cannot do so afterwards. Upon the death of the alien the real estate descends to his alien heirs: Abrams v. State (Wash.), 88 Pac. Eep. 327, 332. Under a statute declaring that " any person, whether citizen or alien, may take, hold, or dispose of property within this state," all aliens, whether residents or non-residents of this state, may take by descent as well as by purchase: Estate of Billings, 65 Cal. 593, 594; 4 Pac. Eep. 639; State v. Eogers, 13 Cal. 159. Foreigners of the white race, or of African descent, eligible to become citizens of the United States under the naturalization laws thereof, while bona fide residents of this state, shall have the same rights in respect to the acquisition, possession, enjoyment, transmis- sion, and inheritance of all property, other than real estate, as native- born citizens; provided, that such aliens owning real estate at the time of the adoption of this amendment may remain such owners- and provided further, that the legislature may, by statute, provide for the disposition of real estate which shall hereafter be acquired SUCCESSION. 53 by suoh aliens by descent or devise: Cal. Const. 1879, art. i, § 17, amdt. Nov. 16, 1894. A statute which permits non-resident aliens to inherit real and personal estate is constitutional: State v. Eogers, 13 Cal. 160. See Kerr's Cal. Cyc. Civ. Code, § 671. The legislature is not prohibited by § 17, art. i, of the California constitution of 1879 from extending the right of inheritance to non-resident aliens, as it has done by section 671 of the Civil Code of that state: Estate of BUlings, 65 Cal. 593, 595; 4 Pac. Eep. 639. BEFESENCES. Aliens may inherit when, and how: See note Kerr's Cal. Cyc. Civ. Code, §§ 672, 1404. Alien's right to inherit: See note 31 L. E. A. 177-183. Eights of aliens to transmit or receive an inheritance: See note 12 Am. St. Eep. 93. Effect of naturalization on alien's right to inherit: See note 31 L. E. A. 181, 182. Effect of state statutes and constitutions upon inheritance through an alien: See note 31 L. E. A. 146-158. Effect of state constitution and statutes upon inheritance by or from an alien: See note 31 L. E. A. 85-107. Effect of treaties upon alien's right to inherit: See note 32 L. E. A. 177-189. 12. Inheritance by Indians. The special act of Congress of 1885, affecting none but the Umatilla reservation of Indians, and the con- federated tribes inhabitating the same, and providing, among other things, " that the law of alienation and descent in force in the state of Oregon shall apply thereto after patents have been executed, except as herein otherwise provided," was not affected by a subse- quent act of Congress providing that, for the purpose of determining the descent of land to the heirs of any deceased Indian, whenever any male and female Indian shall have cohabited together as husband and wife according to the custom and manner of Indian life, " the issue of such cohabitation shall be, for the purpose aforesaid, taken and deemed to be the legitimate issue of the Indians so living together, and every Indian child, otherwise illegitimate, shall for such purpose be taken and deemed to be the legitimate issue of the father of such child": McBean v. McBean, 37 Or. 195; 61 Pac. Eep. 418, 421. In case of the death of the head of an Indian family, title to the decedent's property necessarily descends to some person, and where, under the terms of the treaty in pursuance of which a patent was issued, the President has not prescribed any rules or regulations to secure to the family the possession and enjoyment of such prop- erty, and there is no showing as to the customs of the tribe respecting such a matter, the court is compelled to follow the laws of descent of the state, provided they do not conflict with any of the terms of the treaty or patent, to secure such estate to the family: Guyatt v. Kautz, 41 Wash. 115; 83 Pac. Eep. 9, 12. Under the Federal statute providing for the allotment of Indian lands, the laws of descent of the state apply to such lands: Guyatt v. Kautz, 41 Wash. 115; 83 54 PROBATE LAW AND PRACTICE. Pae. Rep. 9, 12. The descent of lands patented to a Shawnee Indian by the treaty of May 10, 1854, is to be determined by the law and rules established by the tribe: Hannon v. Taylor, 57 Kan. 1; 45 Pac. Bep. 51. As to descent and distribution under the laws of the Creek Nation, see De Graffenreid v. Iowa Land & T. Co. (Old.), 95 Pac. Eep. 624. The word " heirs," in the Creek law of descent and distribution, is construed to mean children: De Graffenreid v. Iowa Land & T. Co. (Okl.), 95 Pae. Eep. 624. The Indian appropriation bill, approved May 27, 1902 (32 U. S. Stats. 258, sec. 888), substituted the laws of descent and distribution of Arkansas for those of the Creek Nation provided for in the " Original Agreement,'' but it was not provided that such laws should become effective immediately. They did not take effect until July 1, 1902: De Graffenreid v. Iowa Land & T. Co. (Okl.), 95 Pac. Bep. 624. 13. Taking by contract, and not by succession. Where a member of a mutual benefit society has made his certificate payable to his heirs, they do not take the fund by descent, but by contract. The rights of the beneficiaries in a certificate taken out by such a member are such as the contract confers, and are not rights arising by operation of stafutory rules respecting descent and distribution. The contract, and not the statute, fixes their rights, and they have such rights only as the contract of insurance vests in them. Eeference therefore must be had to the terms of the agreement, and not to the provision of the statute, to ascertain the rights of the parties: Burke v. Modern Wood- men, 2 Gal. App. 611; 84 Pac. Eep. 275, 276. If such a person died, leaving ten heirs, each heir would be entitled to one tenth of the pro- ceeds of the certificate: Burke v. Modern Woodmen, 2 Cal. App. 611, 84 Pac. Eep. 275, a76. If a timber-culture claimant die before ob- taining title, and the grant is to his heirs, such heirs do not take by inheritance, but take equally, regardless of the proportions in which they would take under the law of succession of the state. Tne heirs, in such cases, must be found by the law of the state or territory in which the land is situated, because the United States has no general law of succession: Cooper v. Wilder, 111 Cal. 191; 43 Pac. Eep. 591, 592. By the law of California, the widow is an heir of the husband: Cooper v. Wilder, 111 Cal. 191; 43 Pac. Eep. 591, 592. 14. Inheritance by or through illegitimate children. (1) Right of. Acknowledgment. The right of an illegitimate child to inherit from its father is given by statute, and such child may inherit when the father has acknowledged it as his child by an instru- ment in writing properly witnessed; but he only inherits from his father, directly, and as an illegitimate child. He does not inherit the estates of his lineal or collateral kindred: Eddie v. Eddie, 8 N. D. 376; 79 N. W. Eep. 856. A child which is the offspring of an un- SUCCESSION. 55 , authorized matrimonial union between a white man and an Indian woman cannot inherit from its father: In re Walker's Estate, 5 Ariz. 70; 46 Pac. Eep. 67, 69. BEFEBENCES. Bight of illegitimate children to inherit in certain events: See note Kerr's Cal. Cyc. Civ. Code, ^ 1387. Inheritance by children of ille- gitimates: Sse Kerr's Cal. Cyc. Civ. Code, § 1388, note 2. Power of illegitimates to inherit and to transmit inheritances: See note 12 Am. St. Eep. 101. Inheritance by, through, or from illegitimate: See note 28 L. E. A. 753-758. Illegitimates as next of kin: See note 15 L. E. A. 301. Inheritance from or through mother: See Kerr's Cal. Cyc. Civ. Code, § 1387, notes 19-25. Legitimation of illegitimate child: See note 1 L. E. A. (N. S.) 773. (2) Succession to estate of illegitimate not acknowledged oi adopted. Section 1888 of the California Civil Code provides the rule of succession as to the whole estate of an illegitimate, not acknowl- edged nor adopted by its father, who dies intestate, without lawful issue, except in so far as it may be qualified by § 1387 of said code, and this rule, being contrary to the general rule of succession pre- scribed by § 1386 of the same code, must prevail over everything contained in that section; because it is provided in said § 1386 that the estate must be succeeded to and must be distributed in the manner therein stated, " unless otherwise expressly provided " in such code. But this rule of succession has reference solely to the separate prop- erty of the deceased husband or wife. Sections 1401 and 1402 of said code purport to provide the rules as to community property: Estate of De Cigaran (Cal.), 89 Pac. Eep. 833, 836. If an illegitimate daughter, who has never been acknowledged by her father, dies pos- sessed of separate estate, it passes on her death, intestate, and without issue, not to her surviving husband, but to another illegitimate child of her predeceased mother, by another father, who had likewise never been adopted or acknowledged by her father. " "We may not be able to see any good reason for the exclusion of the surviving spouse of the illegitimate, where she dies without lawful issue, and the giving of the estate to the mother or her heirs in preference to such spouse; but that fact is immaterial where the legislature has said in un- mistakable terms that it shall so be": Estate of De Cigaran (Cal.), 89 Pac. Eep. 833, 836. (3) Sufaciency of acknowledgment. Evidence of recognition. The required statutory acknowledgment of an illegitimate child by his father need not be made for the express purpose of admitting the child to heirship; a collateral acknowledgment in writing of this kind is a suflBcient compliance with the statute. It might be that the father would desire to recognize his child for many other reasons; and if such recognition were made for any reason, it ought to be sufiaeient 56 PROBATE LAW AND PRACTICE. to enable the child to become an heir to his estate, and to place it, 80 far as the estate is concerned, on an equality in law with the legitimate children: In re Eohrer, 22 Wash. 151; 60 Pac. Rep. 122. A question having arisen as to who was the father of the child, through whom the mother claimed, proof tending to show general and notorious recognition of the child as his own by him was compe- tent to establish the rule of inheritance: Eeville v. Dubaeh, 60 Kan. 572; 57 Pac. Eep. 522. A statute which provides that a father may legitimate an illegitimate child by receiving it into his family, with consent of his wife, and publicly acknowledging it to be his own, applies only to illegitimate minor children of a father. Paternity cannot be established by general reputation, but if proof aliunde has been given of membership of the family of a deceased, declarations, made after the child has reached the age of majority, as to the facts of paternity and illegitimacy of the child, are admissible on the ques- tion of paternity, but not to prove the public acknowledgment re- quired to be made when the child was a minor, because acts done by the father, which go to constitute a legitimation, must be done while the child is a minor: Estate of Heaton, 135 Cal. 385; 67 Pac. Eep. 321; and the consent which such statute contemplates must be a, con- sent given after knowledge is brought home to the wife that the child is the illegitimate offspring of her husband: Estate of Heaton, 135 Cal. 385; 67 Pac. Eep. 321. The criterion referred to in the statute is the treatment usually accorded to legitimate children, and it is not material that the alleged father ever had a child of his own, that there might be a criterion by which to determine how he would treat his legitimate child: Estate of Heaton (Cal.), 73 Pac. Eep. 186. BEFEBENCES. Sufficiency of acts of acknowledgment of illegitimate child: See Kerr's Cal. Cyc. Civ. Code, § 1387, note 27. Evidence of declarations to show maternity of illegitimate child: See note 11 L. E. A. (N. S.) 1052. (4) Presumption as to legitimacy. It is well settled, on grounds of public policy affecting children born during marriage, as well as the parties themselves, that the presumption of legitimacy as to children born in lawful wedlock cannot be rebutted by the testimony of the husband or the wife to the effect that sexual intercourse has or has not taken place between them; nor are the declarations of the husband or wife competent as bearing on the question. Illegitimacy may be proved, but. it cannot be proved by the evidence of a husband or wife, that, while living together, they did not have sexual intercourse: Estate of Mills, 137 Cal. 298; 70 Pac. Eep. 91. A child born in wed- lock is presumed to be legitimate, and this presumption cannot be overthrown by the general and notorious recognition of it by a puta- tive father, or by his assertions, however solemnly expressed, that SUCCESSION. 57 the eMld was begotten by him: Bethany Hospital Co. v. Hale, 64 Kan. 367; 67 Pac. Eep. 848. If testimony is introduced which tends to show that a woman, who claims to be the illegitimate daughter and sole heir of an unmarried man, was born in wedlock, the presumption of legitimacy can only be overcome by the clearest and most con- clusive evidence of non-access by the husband: Bethany Hospital Co. V. Hale, 64 Kan. 367; 67 Pac. Eep. 848. For evidence showing that plaintiff was born in lawful wedlock, though after her father's death, see Kaylton v. Kaylton, 45 Or. 116; 74 Pac. Eep. 491, 494. (5) Illegitimacy, how inferred. The illegitimacy of a child may be inferred from the fact that its alleged father was never married until seven or eight years after the child's birth; that he was acquainted with and had relations with the mother; and from the declarations made by him to numerous witnesses that the child was his: Estate of Heaton (Cal.), 73 Pac. Eep. 186, 187. (6) Construction of Utah statute. The evident intention of the Utah statute is, that illegitimate children shall have vested in them inheritable blood and the right to inherit from the father, when acknowledged by him, in the same manner and to the same extent as if they had been 'born legitimate, and the right, when once vested in the illegitimate, extends to his descendants, and they likewise become heirs in the event of the death of their father. Hence where a man had an illegitimate child by an Indian girl, accepted such child as his own, took him into his home, cared for and raised him as his own child, manifesting that affection for the child in many ways that point unerringly to a father, such child thereby acquires in- heritable blood, which he may transmit to his child, and on his death before his father, the children of such illegitimate child inherit his estate: In re Garr's Estate (Utah), 86 Pae. Eep. 757, 759. The territorial act of Utah of March 3, 1852, providing that " illegitimate children and their mothers inherit in like manner from the father, whether acknowledged by him or not, provided that it may be made to appear to the satisfaction of the court that he was the father of such illegitimate child or children," was disapproved by the anti- polygamy act of July 1, 1862: Pratt v. Pratt, 7 Utah, 278; 26 Pac. Eep. 576; Handley's Estate, 7 Utah, 49; 24 Pac. Eep. 673. (7) Right of non-resident alien. Where a non-resident alien, before the enactment of a statute making every illegitimate child 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, acknowl- edged, in writing, in the presence of competent witnesses, that he ■sv'as the father of a certain illegitimate child, but died after such statute took effect, such child is entitled to his real property, in a state where such acknowledgment was made and such statute exists, because 58 PROBATE LAW AND PEACTICE. Bueh acknowledgment and statute establish the fact that he was the father of the child, and such fact, being thus established, makes the child an heir of his deceased father: Moen v. Moen (S. D.), 92 N. W. Eep. 13. (8) Pretermitted illegitimate child. If an illegitimate child is un- intentionally omitted from its mother's will, it is entitled to share in her estate, in the same manner as if legitimate, though it had never been legitimated by the subsequent intermarriage of her parents, or by the acknowledgment or adoption of her father: Estate of Wardell, 57 Gal. 484, 492. An illegitimate child is not forgotten in a will if it is referred to as " Otto " instead of its real name, and a legacy is given to it as the child of the woman named, if she has no other child, and it is evident that the child named was in the mind of the testator. It is not necessary, after the acknowledgment by a father of his illegitimate child, that there should be an intermarriaige between the father and the mother of the child either before or after such acknowledgment; and the fact of the father's death does not absolve his estate completely from such allowance as the statute provides for minor children. It follows, therefore, that such a child is entitled to an allowance from his father's estate as his " child ": In re Kornetzky, 20 Wash. 563, sub nom. In re Gorkow's Estate, 56 Pac. Eep. 385, 387, 388. 15. What law governs. For the purposes of determining who are the heirs of a deceased person, resort is to be had to the laws of the state under which the descent is east; and the " heirs " of a person are those whom the law appoints to succeed to his estate in ease he dies without disposing of it by will: Burke v. Modern Woodmen, 2 Cal. App. 611; 84 Pac. Eep. 275, 276. The descent of real property is governed by the law of inheritance in the state in which the land is situated. Title to the same cannot be aSected by the decree of a court of another state: Cooper v. Ives, 62 Kan. 395; 63 Pac. Eep. 434. If both the real and personal property of an intestate is situated within this state, which is also his domicile at the time of his death, the laws of this state govern the descent and distribution thereof, following the rule that the descent of personal property is governed' by the law of the domicile of the owner, and real property by the law of the place where situated: Eddie v. Eddie, 8 N. D. 376; 79 N. W. Eep. 856. BEFEBENCES. For further authorities concerning succession, see note Kerr's CaL Cyc. Oiv. Code, §§ 1383-1409. PROCEEDINGS RELATIVE TO ESCHEATED ESTATES. 59 CHAPTER III. PROCEEDINGS EELATIVE TO ESCHEATED ESTATES. § 42. Property escheats when. § 43. Attorney-general to bring action. § 44. Manner of commencing. § 45. Form. Information of attorney-general. § 46. Form. Order to show cause. § 47. Receiver of rents and profits. % 48. Appearance, pleadings, trial, judgment, and sale. § 49. Form. Judgment. § 50. Proceedings after judgment by persons claiming escheated estates, i 51. Form. Petition by heir to recover money escheated to the state. ESCHEAT. 1. General doctrine. 7. Non-resident aliens. 2. Jurisdiction. Probate courts. 8. Pleading and practice. 3. Property of outlawed corporations. 9. Judgments. 4. Land of Mormon Churcli. 10. Limitation of actions. 5. Aliens. 11. Recovery of escheated property, 6. Premature action. and proceedings therefor. § 42. Property escheats when. All property, real and personal, within the limits of this state, which does not be- long 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. Kerr's Oyc. Pol. Code, § 41. § 43. Attorney-general to bring action. It shall be the duty of the attorney-general to institute investigation for the discovery of all real and personal property which may have or should escheat to the state, and for that purpose shall have ftdl 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 per- sonal property shall be discovered, which should escheat to 60 PKOBATE LAW AND PRACTICE. 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 provided for in title eight, part three. 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 prop- erty, 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 counsel 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 the attorney-general is hereby authorized to pay to the person or persons discov- ering the same the costs and charges of prosecuting any suit or suits under this act, a sum not in any case exceeding ten per cent of the sums actually received as provided in this act. Kerr's Cyc. Pol. Code, § 474. § 44. Manner of commencing. "When the attorney-general is informed that any estate has escheated to this state, he must file an information, in behalf of the state, in the supe- rior court of the county in which said estate, or any part thereof, is situate, setting forth a description of the estate, the name of the person last possessed thereof, and the person claiming the estate, if known, and the facts and circum- stances in consequence of which the estate is claimed to have 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 said claimant and possessor, requiring them to appear and answer the informa- tion 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 PROCEEDINGS RELATIVE TO ESCHEATED ESTATES. SI forty days from the date of the order, why such estate should not vest in this state ; which order must, prior to the expira- tion of such time, be published for at least one month, in a newspaper published in the county, if one is published therein, and in ease no newspaper is published in the county, in some other newspaper in this state. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 489), § 1269. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sees. 183, 184, p. 389. Arizona. Eev. Stats. 1901, pars. 2471, 2472, 2473. Montana. Code Civ. Proe., sec. 2250. Nevada. Comp. Laws, sec. 3060. North Dakota. Eev. Codes 1905, § 5204. Oklahoma. Rev. Stats. 1903, sec. 6912. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 5615, 5616. South Dakota. Civ. Code 1904, § 1111. Utah. Eev. Stats. 1898, sec. 2440. Wyoming. Eev. Stats. 1899, sec. 2307. § 45. Form. Information of attorney-general. [Title of court.] [Title of action.] i \^° ' ^^P^- ^° I [Title of form.] Novs? comes , the attorney-general of the state of -, who, being informed that the certain estate herein- after described has escheated to said state, files this informa- tion and complaint in behalf of said state, and alleges : That on or about the day of , 19 — , one died in said state; that, at the time of his death, the said was seised in fee of the following described real prop- erty, namely, ; ' and that said property is situated in the county * of , wherein this information is filed ; ° That the said died intestate, and left no heirs, widow, or known kindred capable of inheriting said real property ; That the said ," late of the county ^ of , was the last person lawfully possessed of said land, but that the de- fendants, and , are now in the possession of said property, and claim an interest therein adverse to said state and against law; 62 PEOBATE LAW AND PRACTICE. That more than * years have elapsed since the death of the said , and that no part of the estate aforesaid has been sold, as is provided by law, for the payment of the debts of said decedent ; That neither the said defendants, nor either nor any of them, has any right to said estate, or to any interest therein; but that, by reason of the facts and circumstances hereto- fore and herein set forth, the said real property has escheated to the said state of , and that the lawful right to said estate is now in the said state of Wherefore the plaintiff prays that the aforesaid de- scribed estate be adjudged to belong to the state of ; that the said state is entitled to the possession of said estate, and that a decree issue that said state be seised thereof; that plaintiff recover costs of suit against the defendants ; that the court make an order that such property ° be sold by the sheriff of the county wherein it is situate, at public sale, for gold coin, after giving such notice of the time and place of sale as may be prescribed by the court in said order ; and that said sheriff be further directed to make report of his proceedings as required by law. • , Attorney-General. Explanatory notes. 1. As, The State of , Plaintiff, v. John Doe and Eichard Roe, Defendants. 2. File number. 3. Describe the property. 4. Or, city and county. 5. The information must be filed in the designated court of the county in which said estate, or any part thereof, is situated. 6. Name of decedent. 7. Or, city and county. 8. Insert " five," or other statutory number of years, where the decedent left surviving heirs who are non-resident foreigners, and who fail to appear and claim such succession within five years after the death of decedent. Otherwise, omit the paragraph. 9. Unless it consists of money. Use the same form of summons as in an ordinary civil action. § 46. Form. Order to show cause. [Title of court.] [Title of cause.] J^" ' ^ept. No. [Title of form.] It appearing from the information of , the attorney- general of the state of , filed on the day of . PROCEEDINGS RELATIVE TO ESCHEATED ESTATES. 63 19 — , in the court of the county " of , that died intestate on or about the day of , 19 — , in the county ^ of , state of , leaving in said county * the following described real property, to wit : ; ° that at the time of his death the said was seised in fee of said property; that he was the last person lawfully pos- sessed of said land ; that he left no heirs surviving him ; * and that by reason of such facts and circumstances, the prop- erty mentioned has escheated to the said state of , and that said state is rightfully entitled by law thereto ; — It is therefore ordered, That all persons interested in the estate of , deceased, appear and show cause, if any. they have, within forty days from the date of this order, why such estate should not ,vest in the said state of Dated , 19 — , Judge of the Court. Explanatoiy notes. 1. Give file number. 2-4. Or, city and county. 5. Describe the property. '6. Or state the facts, if there are any non- resident foreign heirs, who have failed to appear and to claim the succession. See Kerr's Cal. Oyc. Code Civ. Proc, § 1404. § 47. Receiver of rents and profits. The court, upon the information being filed, and upon application of the attorney- general, either before or after answer, upon notice to the party claiming the estate, if known, may upon sufficient cause therefor being shown, appoint a receiver to take charge of such estate, or any part thereof, or to receive the rents, in- come and profits of the same until the title of such estate is finally settled. Kerr's Oyc. Code Oiv. Proc. (Kerr's Stats. andAmdts., p. 489), §1270. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 185, p. 389. Montana. Code Civ. Proc, see. 2251. Nevada. Comp. Laws, sec. 3064. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5617. § 48. Appearance, pleadings, trial, judgment, and sale. Al l persons named in the information may appear and answer, and traverse or deny the facts stated therein at any time before the time for answering expires, and any other 64 PROBATE LAW AND PEACTICE. person claiming an interest in such estate may appear and be made a defendant, by motion for that purpose in open court within the time allowed for answering, and if no such person appears and answers within the time, then judgment must be rendered that the state is the owner of the property in such information claimed. [Trial of issues.] But if any person appears -and denies the title set up by the state, or traverses any material fact set forth in the information, the issue of fact must be tried as issues of fact are tried in civil actions. If, after the issues are tried, it appears from the facts found or admitted that the state has good title to the property in the information mentioned, or any part thereof, judgment must be rendered that the state is the owner and entitled to the possession thereof, and that it recover costs of suit against the defend- ants who have appeared and answered. [Order of sale.] In any judgment rendered, or that has heretofore been rendered by any court, escheating property to the state, on motion of the attorney-general, the court must make an order that such property, unless it consists of money, be sold by the sheriff of the county where it is situate, at public sale, for gold coin, after giving notice of the time and place of sale, as may be prescribed by the court in such order ; that the sheriff, within five days after such sale, make a report thereof to the court, and upon the hearing of such report, the court may examine the report and witnesses in relation thereto, and if the proceedings were unfair, or if the sum bid [was] disproportionate to the value, or if it appears that a sum exceeding said bid, exclusive of the expense 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 hsd taken place. [New sale may be ordered when.] If an offer greater in amount than that named in the report is made to the court in writing, by a responsible person, the court may, in its dis- cretion, accept such offer and confirm the sale to such person or order a new sale. If it appears to the court that the sale was legally made, and fairly conducted, and that the sum bid PROCEEDINGS RELATIVE TO ESCHEATED ESTATES. (^5 is not disproportionate to the value of the property sold, and that a sum exceeding such bid, exclusive of the expense of a new sale, cannot be obtained, or if the increased bid above mentioned is made and accepted by the court, — The court must make an order confirming the sale, and directing the sheriff, in the name of the state, to execute to the purchaser or purchasers a conveyance of said property sold; and said conveyance vests in the purchaser or pur- chasers all the right and title of the state therein, and the sheriff must, out of the proceeds of such sale, pay the cost of said proceedings incurred on behalf of the state, including the expenses of making such sale, and also an attorney's fee, if additional counsel was employed in said proceedings, to be fixed by the court, not exceeding ten per cent on the amount of such sale, and the residue thereof must be paid by said sheriff into the state treasury. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 489), § 1271. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 186, p. 389. Arizona. Eev. Stats. 1901, pars. 2474, 2475, 2476, 2477, 2479, 2480. Kansas. Gen. Stats. 1905, §§3053, 3054. Montana. Code Civ. Proe.,' sec. 2252. Nevada. Comp. Laws, sees. 3061, 3063. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 5618, 5619. § 49. Form. Judgment. [Title of court.] rm.t, J. -, (No. 1 Dept. No. [Title of cause.! \ ,„.,„„ "■ -■ ■ \ [Title of form.] This cause having come on regularly for hearing this day of , 19 — , and it appearing from the information of the attorney-general, filed herein on behalf of the state of , that , on or about the day of , 19 — , died in the county ^ of , state of , leaving real property therein described as follows, to wit : ; ^ that the said * was the last person lawfully possessed of said land; that he died without having disposed of said property by will ; that he left no heirs surviving him ; ° and no persons having appeared or answered herein within the time allowed by law, — Probate — 5 Ob PROBATE LAW AND PRACTICE. It is therefore ordered, adjudged, and decreed. That, by reason of said facts, the state of is the owner, and is entitled to the possession, of the property described in the information mentioned; that said state be seised thereof; that the sheriff of the said county " of , state of , that being the county ^ in which said real property is situate, be, and he is hereby, directed to sell said real property, at public sale, for gold coin, after giving notice of the time and place of sale, by ; * and that he make report of his pro- ceedings as required by law. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, eity and county. 3. Give description. 4. Decedent. 5. Or as the case may be, if the decedent left non-resident foreign heirs, who have failed to appear and to claim the succession within the time prescribed by the statute. 6, 7. Or, city and county. 8. Posting notice or by publication, as prescribed by the court. The sheriff's report of sale may be the same as his return under a judgment foreclosing a mortgage; and the order confirming his sale may be substantially in the same form as an order confirming a sale of real estate made by an administrator. § 50. Proceedings after judgment 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 petition 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 civU actions, and if it is 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 sufficient voucher for drawing such warrant. [Limitation of action.] AU persons who fail to appear and file their petitions within the time limited are forever PROCEEDINGS RELATIVE TO ESCHEATED ESTATES. 67 barred ; saving, however, to infants, and persons of unsound mind, the right to appear and file their petitions at any time , within the time limited, or within five years after their re- spective disabilities cease. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 490), § 1272. ANAI.OaOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 187, p. 390. Arizona. Rev. Stats. 1901, pars. 2483, 2484. Kansas. Gen. Stats. 1905, § 3054. Montana. Code Civ. Proc, see. 2253. Nevada. Comp. Laws, see. 3063. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5620. § 51. Form. Petition by heir to recover money escheated to the state. [Title of court.] (No. 1 Dept. No. . [Title of cause.] | l-^j^^ ^^ ^^^^^ The undersigned, your petitioner, respectfully represents and alleges: That he is the brother and heir g,t law of , late of , in the county " of , state of ; That on or about , 19 — , the aforesaid died intestate in said county" and state, leaving certain property in the said county * of , described as follows, to wit : ; " and being of the value of dollars ($ ) ; That on or about the day of — '■ — , 19 — , an informa- tion was filed in the ° of the county ' of , state' of , by the attorney-general of said state, wherein it was alleged that the said had died in said last-named county,' leaving certain property therein described, which said had not disposed of by will, and leaving no heir or knovTn kindred or widow capable of inheriting the same, and that by reason thereof the said property had escheated to the said state of ; That, no legal heirs entitled to the said estate having appeared to answer the said information, judgment was rendered by the aforesaid last-named court on the day of , 19 — , that the said property be escheated to the said state of , and that said state be seised thereof ; gg PROBATE LAW AND PRACTICE. That, at the time of the aforesaid proceeding, the under- signed, your petitioner, was a resident of the state of ; " that he had no notice of the pendency of said proceedings, by citation, advertisement, or otherwise, and that he did not appear therein, either in person or by attorney; That your petitioner, as heir at law of the aforesaid , is entitled as of right to the said property hereinbefore de- scribed. Wherefore your petitioner prays judgment that he be de- clared to be the rightful owner of all of said property, and that said property be relinquished to him. . , Attorney for Petitioner. Explanatory notes. 1. Give file number. 2-4. Or, city and county. 5. Describe the property. 6. Name the court. 7, 8. Or, city and county. 9. Other than the one in which the petition is filed. ' ESCHEAT. 1. General doctrine. 7. Non-resident aliens. 2. Jurisdiction. Probate courts. 8. Pleading and practice. 3. Property of outlawed corporations. ^. Judgments. 4. Land of Mormon Cliurcli. 10. Limitation of actions. 5. Aliens. 11. Recovery of escheated property, 6. Premature action. and proceedings therefor. 1. General doctrine. In this country, the general rule is, that, when the title to land fails for want of heirs, it escheats to the state. That rule is applicable in Idaho. If a non-resident foreigner does not appear and claim succession within five years after the death of the decedent, the real estate of the deceased escheats to the state without inquest in the nature of " office found " to vest title in the state. The title passes by operation of law, without court pro- ceedings of any kind, where no proceeding, or inquest in the nature of " office found," is provided for by statute in such cases: State v. Stevenson, 6 Ida. 367; 55 Pac. Eep. 886. In California, there seems to be no limit within which native-born American citizens may come forward and claim property to which they have succeeded, at any time before a judgment or decree, in a proceeding to escheat, has been entered; and, when the provisions of the various codes of said state bearing upon the subject-matter are construed together, the inference is, that, in every case of a failure of succession for want of heirs or kindred of a decedent, an action of escheat becomes necessary to vest the title in the state, whether the estate so escheated consists of real or personal property. The state, however, does not PROCEEDINGS RELATIVE TO ESCHEATED ESTATES. 69 come in by way of succession; but, in the event of the absence of all who are entitled to come in by succession, whether the property be real or personal, it goes to the state by escheat: Estate of Miner, 143 Cal. 194; 76 Pac. Eep. 968. The state cannot maintain a claim to an estate, by way of escheat or otherwise, if the next of kin show their right to inherit, as it is not the policy of the state to absorb private property, if the legal heirs of a decedent are discovered: In re Sullivan's Estate (Wash.), 94 Pac. Eep. 483, 486. The state has power, through the instrumentality of a statute, to prevent an unjust escheat to it, by validating an unattested will: Estate of Sticknoth, 7 Nev. 223, 229. REFERENCES. Property and estate escheat to the state when: See note Kerr's Cal. Cyc. Civ. Code, § 1406. Property escheated is subject to charges, as other property: See note Kerr's Cal. Cyc. Civ. Code, § 1407. Es- cheat: See note 12 L. E. A. 529-533. 2. Jurisdiction. Probate courts. Determining whether property has escheated to the state, and deciding the questions involved in such a proceeding, constitute no part of the ordinary duties of a probate court; but the statute provides a method of procedure by which it may be judicially determined that the property of an in- testate dying without heirs has escheated to the state. Any pro- ceeding, however, commenced for that purpose must necessarily be in subordination to the rules of law essential to the orderly adminis- tration of justice. And the escheat law does not undertake to inter- fere in any way with the jurisdiction of courts in probate matters. It nowhere provides that the filing of an information in one court to escheat personal property of the decedent will oust another court of a previously acquired jurisdiction to settle the estate of the deceased, or vest in one court the right to determine questions which, by law, belong exclusively to another court. A circuit court would therefore have no authority to make an order requiring those found by a county court to be the heirs of decedent to turn over to a receiver in escheat proceedings the property distributed to them by an administrator under direction of the county court: State v. O'Day, 41 Or. 495; 69 Pac. Eep. 542, 545. The decree of a probate court, that the affairs of an estate have been finally settled, and that there are no heirs, or other claimants thereof, and ordering that " the county treasurer of this city and county forthwith pay into the state treasury all moneys and effects in his hands belonging to said estate," does not have the effect of a judgment so as to vest the title in the state, ipso facto, and without the necessity of an action in the nature of an escheat: Estate of Miner, 143 Cal. 194, 196; 76 Pac. Eep. 968. After an allotment to a non-resident minor heir at law of the intestate, a probate court has no power to direct that such share shall, in case of the non-resident heir's failure to 70 PROBATE LAW AND PRACTICE. appear and claim it within a year, be distributed among the other heirs: Pyatt v. Brockman, 6 Cal. 418. 3. Property of outlawed corporations. It was not the intention of the statute of Idaho, passed in 1903, and relating to corporations which failed to comply with the requirements thereof, to provide for or to declare a legislative forfeiture of previously acquired titles, and the act contained no provision for a judicial determination of forfeiture; but if a forfeiture had been intended, and had actually taken place, the property of the corporation, where it failed to comply with the law, would have escheated to the state, subject to the payments of the debts of the corporation, and not to any private party; and such escheat or forfeiture could not avail one who could not claim his title from or through the state, but claims title from the general government: War Eagle etc. Min. Co. v. Dickie (Ida.), 94 Pae. Eep. 1034, 1036. 4. Land of Mormon Church. Under section 3 of the act of Con- gress of July 1, 1862, which act was intended to affect only the rights and interests of the Mormon Church in Utah, and which declared that all real estate acquired or held in any territory 'of the United States by any corporation or association for religious or charitable purposes of greater value than fifty thousand dollars should be forfeited and escheated to the United States, but which section pro- vided that the existing vested rights in real estate should not be impaired by the provisions of the act, it is evident that it was not the intention of the government, by its legislation, to distribute, or in any manner to interfere with, any interest, whatever the nature thereof might be, which had been acquired prior to the passage of the act. The act looked to the future only. Hence the possessory rights of the several occupants, including the church, in lots of the city of Salt Lake, together with the improvements thereon at the time of the passage of the act, were preserved unimpaired, and such property was not subject to forfeiture or escheat under the pro- visions of the act: United States v. Tithing Yard and Officers, 9 Utah, 273; 34 Pae. Eep. 55. 6. Aliens. Aliens can acquire title to real property by purchase, or other act of the party, and hold the same until "office found"; that is, until an official determination of the matter by the govern- ment upon an inquisition held for that purpose. Until then no individual can question the rights of the claimant on the ground of his alienage and non-residence, either collaterally in an action of ejectment, or directly in any other way: Ramirez v. Kent, 2 Cal. 558; People v. Folsom, 5 Cal. 373; Norris v. Hoyt, 18 Cal. 217. At common law, an alien might take land by deed, and hold the same as against all persons whomsoever, subject only to the right of the state to claim it by escheat upon "office found," or by some other act. PROCEEDINGS RELATIVE TO ESCHEATED ESTATES. 71 or procedure equivalent thereto; and until such action is taken by the state, the alien might dispose of his interest in the realty, either by conveyance or devise, and his grantees or devisees would thereupon acquire title notwithstanding his alienage. An alien could neither take nor transmit real property by descent, having no inheritable blood. If he died intestate without having made con- veyance of the land acquired by deed, the same immediately vested by escheat in the state, without any inquest. An alien may pur- chase lands or take them by devise and hold them against all the world but the state. Nor can hQ be devested of his estate even by the state, until after a formal proceeding called " ofH.ce found "; and, until that is done, may sell and convey or devise the land and pass a good title to the same: Abrams v. State (Wash.), 88 Pac. Eep. 327, 329. Though the state may declare an escheat of land conveyed to an alien while he holds it, it loses that right after he has con- veyed the land to a citizen for a good and valuable consideration: State V. World Keal Estate etc. Co. (Wash.), 89 Pac. Kep. 471. Where the statute provides that a non-resident alien, who takes by succes- sion, must appear and claim the property within five years, and de- clares that no non-resident foreigner can take by succession unless he claims the property within five years, that portion of the estate to which the non-resident would be entitled if he claimed it in five years, but which he does not so claim, vests in the state, not strictly by escheat for want of heirs, but by virtue of the effect of the statute. It does not return to the estate to be distributed to the other heirs: Estate of Pendergast, 143 Cal. 135; 76 Pac. Eep. 962. The state may escheat the property of an alien during his life, but after his death it descends to his heirs: Abrams v. State (Wash.), 88 Pac. Eep. 327, 332. BEFEBENCES. Termination of right to declare escheat by death of alien or trans- fer in his lifetime: See note 12 L. E. A. (N. S.) 186. 6. Premature action. A statute requiring the alien to " appear and claim the property " relates to an appearance and claim, to be proved by acts within the state indicating that the alien asserts right to it; but a non-resident alien has a full five years within which " to appear and claim " the property. Hence a proceeding brought by the attorney-general to escheat the property of a non-resident alien is premature if instituted within five years after the death of the intestate: State v. Smith, 70 Cal. 153; 12 Pac. Eep. 121, 123; People v. Eoaeh, 76 Cal. 294; 18 Pac. Eep. 407; State v. Miller, 149 Cal. 208; 85 Pac. Eep. 609. 7. Non-resident aliens. Under our law of succession, the title to the estate of a person dying intestate vests in the heirs, whether known or unknown, immediately upon his death. In the ease of non- resident alien heirs, this title becomes barred on forfeiture, at the 72 PROBATE LAW AND PRACTICE. end of five years from the death of the deceased, unless within that time such heir appears and claims the property. And this occurs without any judicial proceedings, and even if the heirs are well known. The resident heirs, however, are not barred, ipso facto, by any statutory forfeiture. They can be barred only by judgment in a proceeding by information, and then only after the lapse of twenty years from the judgment: State v. Miller, 149 Cal. 208; 85 Pac. Eep. 609. 8. Pleading and practice. Under a statute regulating proceedings by the attorney-general for the forfeiture of escheated estates, and providing that the information must set forth the facts in conse- quence of which the estate is claimed to have escheated,' with an allegation that by reason thereof the state has a right to the estate, it is a sufficient allegation in an information, as against resident heirs, that there are no heirs to take the estate; and it is a sufficient allega- tion as to non-resident alien heirs that five years have elapsed within which no such heirs have appeared to claim the estate: State v. Miller, 149 Cal. 208; 85 Pac. Eep. 609. Where the statute provides that all persons named in the information, or any person claiming an interest in the estate, may appear and answer, and that if no such person does appear, judgment must be rendered that the state is the owner of the property, the failure of claimants to appear is sufficient to support a judgment of forfeiture in an escheat pro- ceeding; and it is not necessary to offer any evidence in support of the allegation that there are no heirs: State v. Miller, 149 Cal. 208; 85 Pac. Eep. 609, 611. The real purpose and effect of the proceeding, with regard to unknown heirs, is, not to establish, by ordinary modes of proof, the known existence of heirs, but merely to make a statutory, prima facie showing of failure of heirs, in order to start the running, as against such known appearing heirs, of the period of twenty years after which such heirs will be barred, if not under legal disability; otherwise, within five years after such disability ceases: State v. Miller, 149 Cal. 208; 85 Pac. Eep. 609, 611. Where the state has no right whatever in the land at the time of the com- mencement of an action, and this is shown by its answer in interven- tion, such answer does not state a cause of action to escheat the lands to the state: State v. Ellis (Kan.), 79 Pac. Eep. 1066, 1133. Although an information alle'ging the escheat of the estate of an intestate contains an averment that the estate is being badly man- aged by the administrator, the court has no power to compel the administrator to turn over the personal estate to a receiver that has been appointed by the court. The statute relating to escheats nowhere contemplates, even when a receiver is appointed, that he shall be the custodian of the estate beyond the realty, and rents and profits thereof, but expressly provides that the administrator shall proceed to settle the estate as in other cases: Territory v. Forrest r Ariz. 49; 25 Pac. Eep. 527. PKOCEEDINGS KELATIVE TO ESCHEATED ESTATES. 73 9. Judgments. Escheat proceedings should not be commenced, or if commenced, should not be adjudicated, until the administration of the estate has been concluded, and the debts and liabilities of the estate, and the costs and expenses of administration, have been paid: State v. Simmons, 46 Or. 159; 79 Pac. Bep. 498. A statute authorizing the attorney-general to institute an investigation for the recovery of property which has escheated, or should escheat, to the state, and giving him full power and authority to cite any and all persons before any of the superior courts of the state to answer investigations, and to render accounts concerning said property, real or personal, and to examine books and papers of any and all corpora- tions, contemplates no other judgment as the result of the investiga- tion for discovery than an adjudication or declaration that the person cited has or has not fully answered all questions propounded to him; has, if ordered to render any, rendered full, true, and just accounts; and if so ordered, has submitted all his books and papers, without concealment: People v. Hibernia Sav. & L. Soc, 72 Cal. 21; 13 Pac. Eep. 48, 50. A judgment that an administrator deliver the property involved to the sheriff cannot be rendered until the state alleges and shows, and the court finds, that all claims and demands against the estate, and all costs and expenses of administra- tion, have been fully paid and discharged, and that the estate has been settled. Any other rule would lead to conflict of jurisdiction and confusion: State v. Simmons, 46 Or. 159; 79 Pac. Eep. 498. A statutory provision for a trial must be taken to refer solely to the issue between the claimant and the state concerning the share claimed bj"- such person, and not to the right of the state against persons not appearing. The meaning and effect of such a statute is, that if, on the trial of such issue, the proof shows that the claimant is not an heir, nor entitled to the estate, or some share thereof, then such claimant must fail, and judgment must thereupon go in favor of the state, for the whole of the property described, although there may be no proof of the non-residence of heirs, other than the constructive proof afforded by the fact that no heir or person entitled has appeared. If the statute is silent in regard to the effect of a finding that the person appearing is entitled to a part of the estate, it is obvious that, in such event, there should be a judgment in his favor for such share: State v. Miller, 149 Cal. 208; 85 Pac. Rep. 609. If no person appear and answer within the time prescribed by the statute, then judgment must be rendered that the state be seised of the property claimed in the information: State v. Miller, 149 Cal. 208; 85 Pac. Eep. 609. 10. Limitation of actions. The twenty-year limitation prescribed by statute within which to file a petition to determine one's right to escheated property is exclusive, and no reference need be made to the limitations prescribed for ordinary actions: In re Pomeroy's Petition, 33 Mont. 69; 81 Pac. Eep. 629. 74 PROBATE LAW AND PEACTICE. 11. Recovery of escheated property, and proceedings therefor. Where the object of an action is to identify the petitioners as the heirs of the intestate, and to entitle them to recover money escheated to the state, it indicates a legal inquiry for which the proceeding was instituted, and which courts of law are competent to try. The proceeding, therefore, is one at law: Fenstermacher v. State, 19 Or. 504; 25 Pac. Eep. 142. In an action against the state to recover escheated property of a person who died intestate, and without known heirs, declarations of the deceased concerning his past life and history are, ex necessitate, and as a matter of common sense, admissible to identify him as a relative of plaintiff. If they were not admitted, there would be, in many eases, a failure of justice: Young V. State, 36 Or. 417; 59 Pae. Eep. 812. In an action to recover the proceeds of escheated property, it is proper to deduct from the fund the total expense of the state in defending and preserving it, including the fees of special counsel employed by the state: Young V. State, 36 Or. 417; 59 Pac. Eep. 812, 814. In an action to recover the proceeds of escheated property, the court has authority to deduct from the fund the total expense of the state in defending it, although the answer of the state to the petition is defective because it does not allege that any expense had been incurred: Young v. State, 36 Or. 417; 58 Pac. Eep. 812, 814. In an action against the state to recover the proceeds of escheated lands, the claimant, on recovering a judg- ment therefor, from which the state appeals, is not entitled to interest on the sum allowed from the time of the demand until the judgment is affirmed. And if, on the trial of such an action, the court grants an extra "allowance as attorneys' fees, such allowance will not be increased on appeal, in the absence of a showing as to the reason- able value of the services performed: Young v. State, 86 Or. 417; 60 Pae. Eep. 711. In Montana, property reduced to possession by the state in escheat proceedings, prior to the enactment of the Code of Civil Procedure, cannot be recovered by the heir in a proceeding under such code: In re Pomeroy's Petition, 33 Mont. 69; 81 Pac. Eep. 629. A statute which grants the right of succession to aliens, and provides a mode by which non-resident aliens may be compensated out of the treasury of the state for property of their ancestor which has been converted, and the proceeds of which have been paid to the state treasurer, has no application to a case in which a citizen of the United States appears as a claimant: In re Pomeroy's Petition, 33 Mont. 69; 81 Pac. Eep. 629, 630. BEFEBENCES. Proceedings to escheat property to state: See note Kerr's Cal. Cyc. Code Civ. Proc, §§ 1269-1272. Proceedings against defaulters having money or property belonging to the state, by escheat or otherwise: See Kerr's Cal. Cyc. Pol. Code, § 437, and notes. PAETII. GUARDIAN AND WAED. CHAPTER I. GUAEDIANSHIP OF MINOES. § 52. Guardian, what. §53. Ward, what. § 54. Kinds of guardians. § 55. General guardian, what. § 56. Special guardian, what. §57. Appointment by will. § 58. Awarding custody. Appointment of general guardian. § 59. Form. Petition for writ of habeas corpus for detention of child. § 60. Form. Writ of habeas corpus. § 61. Form. Eeturn to writ of habeas corpus. § 62. Eelation confidential. § 63. Guardian is under direction of court. § 64. Death of a joint guardian. § 65. Eemoval of guardian. § 66. Guardian appointed by parent, how superseded. § 67. Suspension of power of guardian. § 68. Release by ward. § 69. Guardian's discharge. MINOBS, AND THEIR CUSTODY. GUARDIANS, COMMITMENT, AND HABEAS CORPUS. 1. Kinds of guardians. (7) Appeal. Affirmance of judg- 2. Guardian ad litem. men*. (1) Who is, virtually. 3. Testamentary guardian. (2) Application of statutes. (1) Guardian appointed, by deed (3) Appointment, and duty of is. court. (2) Mother's incapacity to ap- (4) No presumption as to ap- pointment. pointment. (3) Mother's consent to father's (5) Validity of appointment. appointment. (6) Appearance for ward. Waiver (4) Powers of. Validity of acts. o' notice. 4- Commitment of infants. 76 PROBATE LAW AND PRACTICE. 5. Habeas corpus for custody of (6) Attacking adoption proceed- chlldren. ings. (1) Nature of proceeding. (7) Attacking guardianship pro* (2) Jurisdiction of courts. Tem- ceedings. porary order. (8) Discliarge and dismissal of (3) Wliat matters, only, will be writ. considered. (9) Former (adjudication as res (4) Welfare of infant controls. judicata. (5) Awarding cbild to proper (10) Writ of prohibition. custody. (11) Appeal. § 52. Guardian, what. A guardian is a person appointed to take care of the person or property of another. Kerr's Cyc. Civ. Code, § 236. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Montana.* Civ. Code, sec. 330. North Dakota.* Eev. Codes 1905, § 4119. Oklahoma.* Rev. Stats. 1903, sec. 3808. South Dakota.* Civ. Code 1904, § 139. § 53. Ward, what. The person over whom or over whose property a guardian is appointed is called his ward. Kerr's Cyc. Civ. Code, § 237. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Montana.* Civ. Code, see. 331. North Dakota.* Eev. Codes 1905, § 4120. Oklahoma.* Kev. Stats. 1903, sec. 3809. South Dakota.* Civ. Code 1904, § 140. § 54. Kinds of guardians. Guardians are either : 1. Gen- eral; or, 2. Special. Kerr's Cyc. Civ. Code, § 238. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Montana.* Civ. Code, sec. 332. North Dakota.* Eev. Codes 1905, § 4121. Oklahoma.* Eev. Stats. 1903, sec. 3810. South Dakota.* Civ. Code 1904, § 141. § 55. 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. Kerr's Cyc. Civ. Code, § 239. GUARDIANSHIP OP MINORS. 77 ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1965. Montana.* Civ. Code, see. 333. North Dakota.* Eev. Codes 1905, § 4122. Oklahoma.* Eev. Stats. 1903, sec. 3811. South Dakota.* Probate Code 1904, § 142. Utah. Eev. Stats. 1898, see. 3983. § 56. Special guardian, what. Every other is a special gaardian. Kerr's Cyc. Civ. Code, § 240. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1966. Montana.* Civ. Code, sec. 334. North Dakota.* Eev. Codes 1905, § 4123. Oklahoma.* Eev. Stats. 1903, sec. 3812. South Dakota.* Civ. Code 1904, § 143. Utah. Eev. Stats. 1898, see. 3983. § 57. Appointment by will. A guardian of the person or estate, or of both, of a child born, 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. Kerr's Cyc. Civ. Code, § 241. ANALOGOUS AND IDENTICAL STATUTES, The * indicates identity. i Alaska. Carter's Code, see. 892, p. 329. Arizona.* Eev. Stats. 1901, par. 1967. Colorado. 3 Mills's Ann. Stats., sec. 2090. Idaho.* Code Civ. Proc. 1901, sec. 4350. Kansas. Gen. Stats. 1905, §3402. Montana.* Civ. Code, sec. 335. New Mexico. Comp. Laws 1897, sec. 1439. North Dakota.* Eev. Codes 1905, § 4124. Oklahoma.* Eev. Stats. 1903, sec. 3813. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5264. South Dakota.* Civ. Code 1904, § 144. Utah. Eev. Stats. 1898, see. 3984. Washington. Pierce's Code, § 2745. 78 PKOBATE LAW AND PEACTICE. § 58. Awarding custody. Appointment of general guar- dian. In awarding the custody of a minor, or in appointing a general guardian, the court or officer is to be guided by the following considerations : 1. By what appears to be for the best interest of the child in respect to its temporal and its mental and moral welfare ; and if the child is of a sufficient age to form an intelligent preference, the court may consider that preference in deter- mining the question ; 2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right ; but other things being equal, if the child is of tender years, it should be given to the mother; if it is of an age to require education and preparation for labor and business, then to the father; 3. Of two persons equally entitled to the custody in other respects, preference is to be given as follows : (1) To a parent; (2) To one who was indicated by the wishes of a de- ceased parent; . (3) To one who already stands in the position of a trus- tee of a fund to be applied to the child's support; (4) To a relative. 4. Any parent who knowingly or wilfully abandons, or having the ability so to do, fails to maintain his minor child under the age of fourteen years, forfeits the guardianship of such child; and any parent or guardian who knowingly permits his child or ward to remain for the space of one year in any orphan asylum of this state, wherein such child is supported by charity, and who, during such period, faUs to give notice in writing to the managers or ojBficers of such asylum that he is such parent or guardian, abandons and forever forfeits all right to the guardianship, care, custody, and control of such child. The officers and managers of any orphan asylum having any such abandoned child in its care have the preferred right to the guardianship of such child. Kerr's Cyc. Civ. Code, § 246. GUARDIANSHIP OF MINORS. 79 ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1972. Colorado. 3 Mills's Ann. Stats., see. 2090. Montana. Civ. Code, see. 340. North Dakota. Rev. Codes 1905, §§ 4129, 4130. Oklahoma. Eev. Stats. 1903, sees. 3818, 3819. South Dakota. Civ. Code 1904, §§ 149, 150. Utah. Eev. Stats. 1898, see. 3995. § 59. Form. Petition for writ of habeas corpus for de- tention of child. [Title of court.] [Title of matter.] i \ I^epartment No. __. -■ ( [Title of form.] To the Honorable , Judge of the Court of the County ^ of , State of The petition of , the undersigned, respectfully shows : That the petitioner is a resident of the county " of , state of ; that he resides in the town* of ; and that he is engaged in the business of , in said town ; " That on the day of , 19 — , said petitioner was married to , at , in the county ° of , state of , and that on the day of , 19 — , a child, namely, ,' was born as the issue of such marriage ; That on the day of , 19 — , the said child was taken from the custody of your petitioner, its father, ; * that said child is an infant of tender years; and that it is now unlawfully imprisoned, detained, confined, and re- strained of its liberty by ,* at j^" in the county " of , state of ; That said infant has not been committed, nor is it de- tained by virtue of any process or mandate issued by any court of the United States, or of any judge thereof, nor is it committed or detained by .virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdic- tion, or the final order of such a tribunal, made in a special proceeding instituted for any cause, nor by virtue of an execution or other process issued upon such a judgment, decree, or final order, according to the best knowledge or belief of your petitioner ; 80 PROBATE LAW AND PRACTICE. That the imprisonment and restraint of said infant is ille- gal ; and that the illegality thereof consists in this, to wit : '* That your petitioner is entitled by law to the absolute and exclusive control of the said child ; That your petitioner is a fit and proper person to have the care, custody, and control of said child, and is pecuniarily able to provide for its support, maintenance, and education ; but that the said is financially unable to suitably pro- vide for the support, maintenance, and education of said child ; That no previous application has been made by me for a writ of habeas corpus to secure the custody of such child. "Wherefore your petitioner prays that a writ of habeas corpus issue to the said , commanding her ^^ to produce my said child, , before your honor, at a time and place therein to be specified, together with the cause of its im- prisonment and restraint; and that your honor make an order herein awarding to me the custody of my said child, and for such other and further relief as to your honor may seem just and proper. And your petitioner will ever pray, etc. , Petitioner. [Add ordinary verification.] Explanatory notes. 1. As, " In the Matter of the Application of for a Writ of Habeas Corpus, for the Custody of Infant." 2, 3. Or, city and county. 4, 5. Or as the ease may be. 6. Or, city and county. 7. Give its name. 8. State how, in detail. 9, 10. State by whom, and the place where, naming all the parties, if they are known, or describing them, if they are not known. 11. Or, city and county. 12. That the father has been deprived of his lawful custody of the child without his consent; that it is his duty to care for it; and that, the chUd, where it is, is subjected to unfit, improper, and harmful influences, etc. 13. Or as the case may be. § 60. Form. Writ of habeas corpus. [Title of court.] [Title of matter.] i \^° " I'ept. No ( [Title of form.] The People of the State of To ,' Greeting. We command you, That you have the body of ,* by you imprisoned, detained, and restrained, as it is alleged, GU^VEDIANSHIP OP MINORS. Si by whatsoever name said ° shall be called or charged, before ," judge of the court of county,' state of , at the court-room of said court, at ,^ in said county " and state, on the day of , 19 — , at o'clock, in the afternoon '■° of that day, to do and receive what shall then and there be considered concerning the said ; ^^ and have you then and there this writ. Dated , 19 — , Judge of the Court. Explanatory notes. 1. As, " In the Matter," etc. 2. Giye file num- ber. 3. Name of respondent, and residence. 4, 5. Name the infant. 6. Name of judge. 7. Or, city and county. 8. Give location of court- room. 9. Or, city and county. 10. Or as the case may be. 11. Name of infant. § 61. Form. Return to writ of habeas corpus. [Title of court.] [Title of matter.] i P° ' ^«P*- ^° ( [Title of form.] In obedience to the writ of habeas corpus issued herein, and directed to me, I, the undersigned, hereby certify and make return as follows, to wit: I admit the marriage, and the birth of the child, as stated in the petition for said writ; but I deny that petitioner is entitled by law to the absolute and exclusive control of said child ; and deny that it is illegally imprisoned, detained, or restrained of its liberty; and deny that, by reason of my custody thereof, it is subjected to unfit, improper, or harm- ful influences. I admit that said child is of tender years; but allege that I am its mother, and that said child is of that tender age at which the care and control of a mother is especially needed.^ Wherefore your respondent prays that the said writ of habeas corpus be dismissed. Dated , 19 — [Add ordinary verification.] Explanatory notes. 1. As, " In the Matter," etc. 2. Give file num- ber. 3. State reasons, in detail, and in separate paragraphs, why the child should remain where it is; the financial ability of its custodians to provide for its maintenance, support, and education; reasons why Probate — 6 82 PROBATE LAW AND PEACTICE. the child's father should not have its custody; and any other facts showing that the welfare of the child will be promoted by leaving it in respondent's custody. Or, if the custody is denied, say: " In obedience to the within [or annexed] writ, I certify and return that neither at the time of the allowance of said writ, nor at any time since, has the said been in my custody; that at no time have I imprisoned the said , or restrained him of his liberty; and that he is not now imprisoned or restrained by me; wherefore I cannot have his body before the judge of the court, as by said writ I am commanded." § 62. Belation confidential. The relation of guardian and ward is confidential, and is subject to the provisions of the title on trust. Kerr's Cyc. Civ. Code, § 250. AITAI.OGOUS AND IDENTICAI. STATUTES. The * indicates identity. Arizona.* Bev. Stats. 1901, par. 1976. Montana.* Civ. Code, sec. 344. North Dakota.* Eev. Codes 1905, § 4134. Oklahoma. Eev. Stats. 1903, sec. 3823. South Dakota. Civ. Code 1904, § 154. § 63. Guardian is under direction of court. In the man- agement and disposition of the person or property committed to him, a guardian may be regulated and controlled by the court. Kerr's Cyc. Civ. Code, § 251. ANAIiOGOUS AND IDENTICAIi STATUTES. The * indicates identity. Arizona. Eev. Stats. 1901, par. 1977. Kansas. Gen. Stats. 1905; § 4157. Montana.* Civ. Code, sec. 345. North Dakota.* Eev. Codes 1905, § 4135. Oklahoma.* Eev. Stats. 1903, sec. 3824.. South Dakota.* Civ. Code 1904, § 155. § 64. Death of a joint guardian. On the death of one of two or more joint guardians, the power continues to the survivor, until a further appointment is made by the court. Kerr's Cyc. Civ, Code, § 252. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1978. Montana.* Civ. Code, sec. 346. GUARDIANSHIP OP MINORS. 83 North Dakota* Eev. Codes 1905, § 4136. Oklahoma. Eev. Stats. 1903, sec. 3825. South Dakota.* Civ. Code 1904, § 156. Utah. Eev. Stats. 1898, sec. 3987. § 65. Removal of guardian. A guardian may be removed by the superior court for any of the following causes : 1. For abuse of his trust; 2. For continued failure to perform its [his] duties; 3. For incapacity to perform its [his] duties ; 4. For gross immorality; 5. For having an interest adverse to the faithful perform- ance of his duties ; 6. For removal from the state ; 7. In the case of a guardian of the property, for insol- vency; or, 8. When it is no longer proper that the ward should be under guardianship. Kerr's Cyc. Civ. Code, § 253. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1979. Montana.* Civ. Code, sec. 347. North Dakota.* Eev. Codes 1905, § 4137. Oklahoma.'* Eev. Stats. 1903, see. 3826. South Dakota.* Civ. Code 1904, § 157. Utah. Eev. Stats. 1898, see. 3991. § 66. Guardian appointed by parent, how superseded. The power of a guardian appointed by a parent is super- seded : 1. By his removal, as provided by section two hundred and fifty-three ; 2. By solemnized marriage of the ward; or, 3. By the ward's attaining majority. Kerr's Cyc. Civ. Code, § 254. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1980. Montana.* Civ. Code, see. 348. North Dakota.* Jlev. Codes 1905, § 4138. Oklahoma.* Eev. Stats. 1903, sec. 3827. South Dakota.* Civ. Code 1904, § 158. Utah. Eev. Stats. 1898, sec. 39S6. 84 PROBATE LAW AND PEACTICB. § 67. Suspension of power of guardian. The power of a guardian appointed by a court, is suspended only: 1. By order of the court; or, 2. If the appointment was made solely because of the ward's minority, by his attaining majority; or, 3. The guardianship over the person of the ward, by the marriage of the ward. Kerr's Cyc. Civ. Code, § 255. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity, Arizona. Eev. Stats. 1901, par. 1981. Montana.'*' Civ. Code, sec. 349. North Dakota.* Eev. Codes 1905, § 4139. Oklahoma.* Eev. Stats. 1903, see. 3828. South Dakota.* Civ. Code 1904, § 159. § 68. Release by ward. After a ward has come to his ma- jority, he may settle accounts with his guardian, and give him a release, which is valid if obtained fairly and without undue influence. Kerr's Cyc. Civ. Code, § 256. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Montana.* Civ. Code, sec. 350. North Dakota.* Eev. Codes 1905, § 4140. Oklahoma.* Eev. Stats. 1903, sec. 3829. South Dakota.* Civ. Code 1904, § 160. Utah.* Eev. Stats. 1898, sec. 3997. § 69. Guardian's discharge. A guardian appointed by a court is not entitled to his discharge until one year after the ward's majority. Kerr's Cyc. Civ. Code, § 257. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Montana.* Civ. Code, sec. 351. North Dakota.* Eev. Codes 1905, § 4141. Oklahoma.* Eev. Stats. 1903, sec. 3830. South Dakota.* Civ. Code 1904, § 161, Utah.* Eev. Stats. 1898, see. 3998. GUARDIANSHIP OF MINORS. 85 MINORS AND THEIR CUSTODY. GUARDIANS, COMMITMENT, AND HABEAS CORPUS. 1. Kinds of guardians. 4. Commitment of infants. 2. Guardian ad litem. B. Habeas corpus for custody of (1) Wlio is, virtually. children. (2) Application of statutes. (1) Mature of proceeding. (3) Appointment, and duty of (2) Jurisdiction of courts. Tem- court. porary order. (4) No presumption as to ap- (3) What matters, only, wiU be pointment. considered. (5) Validity of appointment. (4) welfare of infant controls. (6) Appearance for ward. Waiver (5) Awarding child to proper of notice. custody. (7) Appeal. Affirmance of ]udg- (6) Attacking adoption proceed- ment. lugs. S. Testamentary guardian. (7) Attacking guardianship pro- (1) Guardian appointed by deed ceedings. is. (8) Discharge and dismissal of (2) Mother's incapacity to ap- writ. point. (9) Former adjudication as res (3) Mother's consent to father's judicata. appointment. (10) Writ of prohibition. (4) Powers of. Validity of acts. (11) Appeal. 1. Kinds of guardians. At common law there were four kinds of guardians, namely: 1. By nature; 2. For nurture; 3. In socage; and 4. In chivalry: Lord v. Hough, 37 Gal. 657, 660. But, here, guardians are either general or special; a general guardian, in this state, being a guardian of the person, or of all the property of the ward, or both; and every other being a special guardian: See Civil Code of California, §§ 238, 239, 240. The guardianship by nature extends only to the custody of the person of the ward, and not to his property. To entitle the guardian to manage the property of his ward, he must be duly appointed by some competent authority. So guardian- ship by nurture extends only to the person, and determines when the infant arrives at the age of fourteen: Kendall v. Miller, 9 Cal. 591, 592. If a father abandon his child under the age of fourteen, he forfeits his guardianship, and can no longer claim custody of the child: In re Vance, 92 Cal. 195; 28 Pac. Eep. 229. One who wrong- fully intermeddles with the property of an infant is sometimes held by equity as a guardian, but only, as in the case of an administrator de son tort, for the purpose of accounting; he acquires none of the rights of a guardian: Aldrich v. Willis, 55 Cal. 81, 85. 2. Guardian ad litem. (1) Who is, virtually. One who has been appointed by a probate judge as an attorney for minor defendants, after service of citation. 86 PROBATE LAW AND PEACTICB. to represent the minors upon a contest as to the validity of a will, Ib virtually a guardian ad litem, although he is not called by that name: Carpenter v. Superior Court, 75 Cal. 596, 600; 19 Pae. Bep. 174. (2) Application of statutes. Provisions of the statute on parties to civil actions, in relation to guardians ad litem for minor defendants, do not apply to probate proceedings. For some purposes, probate proceedings are not " civil actions." So far as the appointment of an attorney to " represent " the minor is concerned, that matter is governed by the special proceedings providing for such appointment: Carpenter v. Superior Court, 75 Cal. 596, 599; 19 Pao. Eep. 174. The courts of probate of the territory of Hawaii, in the matter of the care and supervision of the estate of minors, possess, except as modified by statute, all the powers which the court of chancery in England possessed under the common law: Hoare v. Allen, 13 Haw. 257, 262. (3) Appointment, and duty of court. The law in relation to the appointment of a general guardian does not interfere with the power of the court to appoint a guardian ad litem: Hydoman v. Stowe, 9 Utah, 23; 33 Pae. Eep. 227, 229; and where a minor heir has no guardian, it becomes the duty of the court, before proceeding to act, to appoint some disinterested person as guardian, for the sole purpose of appearing for him and to take care of his interests: Townsend v. Tallant, 33 Cal. 45, 52; 91 Am. Dec. 620; but a guardian ad litem should not be allowed to admit away the rights of his ward: Waterman v. Lawrence, 19 Cal. 210, 217. It is the duty of the court to protect the rights of an infant, although he appears by a guardian ad litem, and no pleading . by the guardian, which has the effect of surrendering the infant's rights, or of prejudicing his interests, should be permitted or considered; especially where it is not only subversive of all his interest, but is not necessary to the presentation and protection of any of his rights: Seaton v. Tohill, 11 Col. App. 211; 53 Pae. Eep. 170, 172. In determining whether a guardian ad litem was appointed for an infant, the court will not go outside of the record: Batchelder v. Baker, 79 Cal. 266; 21 Pae. Eep. 754. It is not necessary that there should be a new guardian ad litem every time a pleading is amended: Carpenter v. Superior Court, 75 Cal. 596, 600; 19 Pae. Eep. 174. The probate court has no authority to appoint attorneys for absent or minor heirs. Where the administrator applies for leave to sell lands to pay debts, and there are minor heirs with no general guardian, a guardian ad litem, and not an attorney, must be appointed for the sole purpose of representing the minor heirs, before action can be taken upon such petition: Townsend v. Tallant, 33 Cal. 45, 52; 91 Am. Dec. 620. A court of law has no authority, in the absence of statute, to allow fees, in the nature of counsel fees, to guardians ad litem to be paid by the opposite party: Allen v. Lucas, 15 Haw. 52, 56. GUABDIANSHIP OP MINORS. 87 (4) No presumptiou as to appointment. Where there is a petition for leave to sell real estate, and there are minor heirs with no general guardian, it is the duty of the court to appoint a guardian to repre- sent them before the petition shall have been acted on; and if the record fails to show that a guardian ad litem was appointed, it will not be presumed that such a guardian was appointed: Townsend v. Tallant, 33 Cal. 45, 52; 91 Am. Dec. 617. (5) Validity of appointment. If a court appoints a guardian ad litem of a minor sixteen years of age, upon the application of the guardian alone, and the minor does not exercise, and is not given an opportunity to exercise, his right of nomination, the order is errone- ous, but not void. And in such a case, if the minor, after attaining his majority, afS.rmed the proceedings instituted by his guardian, he thereupon becomes bound thereby, and the defect is cured: Johnston V. Southern Pac. Co., 150 Cal. 535; 89 Pac. Eep. 348, 350. The pro- visions of the statute relating to the appointment of guardians ad litem, where infants are parties, apply only where there is no general guardian, or where he does not act. Cases frequently arise where the interests of the minors are best subserved by the special ap- pointment of a guardian ad litem, even though he may have a general guardian. In such cases the court would make a special appointment; but where the court does not specially appoint for the particular action, the general guardian may appear, and it is his duty to appear, for his ward: Gronfier v. Puymirol, 19 Cal. 629, 632. The two positions — that of administrator and that of guardian of an infant heir — are not necessarily incompatible, so far as general uses are concerned; but where the administrator seeks to devest the title of the heir by a sale under an order of court, his position is hostile to the heir, and he cannot represent the heir, but a guardian ad litem should be appointed for the sole purpose of appearing for the heir and of taking care of his interests: Townsend v. Tallant, 33 Cal. 45, 52; 91 Am. Dee. 620. SEFESENOES. Eights, powers, and duties of guardians ad litem and next friends of infants: See note 97 Am. St. Eep. 995-1006. (6) Appearance for ward. Waiver of notice. If a father appears as guardian for his minor children, without having qualified, and defends an action against them with respect to their separate prop- erty, the minors, though legally served, are not bound by the pro- ceedings. A nunc pro tunc order appointing him their guardian before judgment rendered against them is unauthorized, and the minors would not be bound by the judgment. The court will, in its discretion, make any such order in favor of a minor not violative of the established principles of law, but the court will not indulge in any presumption against minors, where it is sought to devest 88 PROBATE LAW AND PRACTICE. them of their title to property, and they are left without lawful defense or representation, due to the failure on the part of the plaintiff's counsel and the court to see to it that they were repre- sented. It is not for the court to say, after the trial is over, and when the judge is about to announce judgment taking from them the property left them by their mother, that the father, whom the judge was about to conHct of fraud and wrong-doing, had givem the minors the defense ^he case deserved and the real facts war- ranted: Power V. Lenoir, 22 Mont. 169; 56 Pac. Eep. 106, 111. In partition proceedings a Tvjard must appear by his guardian ad litem, and not by his general guardian: Saville v. Saville, 63 Kan. 861; 66 Pac. Eep. 1043, 1045. | It is only when a person is a party that the court has jurisdiction: to appoint a guardian ad litem: Boyd v. Dodson, 66 Cal. 360; 5 P^c. Eep. 617. If the appointment is made on the day set for trial, and the guardian ad litem appears specially, objecting to proceed withl the trial, on the ground that he has not had time to prepare for, trial, and the case is adjourned three days by order of court, (without objection, such appearance is a waiver of the statutory fisre^day notice of the setting of the case for trial: Granger v. Sheriff, 133 Cal. 146; 65 Pac. Eep. 873. The power to appoint a prochein \ami, like the power to appoint a guardian ad litem, is inherent in eyery court. In the territory of Hawaii a district magistrate may permit the next friend of an infant to bring an action for him in such court. It may be better practice to obtain a formal order admitting the next friend to prosecute, but this is not absolutely essential. It is sufficient if the court recognizes the next friend and does not dissent. The main thing is to have the leave or sanction of the court: Ahin v. District Magistrate, 11 Haw. 279, 281. (7) Appeal. Affirmance of judgment. Where an action was com- menced in the name of a minor by her mother, designated in the title as "guardian," the judgment will be affirmed, though no ap- pointment as guardian was alleged or proved. The mother, being the ward's natural guardian, and having assumed all the duties and liabilities, became subject to all the obligations and restraints of a next friend; and the action being for the benefit of the infant the mother was substantially such a next friend, so far as the con- duct of the ease was concerned, as if she had been so described. The court will not overturn a verdict and judgment for lack of a formality in name which could have been supplied, if necessary, at any time before or after judgment: Abbott v. Abbott, 68 Kan. 824; 75 Pac. Eep. 1041. 3. Testamentary guardian. (1) Guardian appointed by deed is. A guardian appointed by deed must be held to be a testamentary guardian, as such appoint- GUARDIANSHIP O? MINORS. 89 ment cannot take eflfect until the death of the parent; but, to become such a guardian, he must qualify by giving a, bond; it is not enough that he be named in the deed as guardian: Murphy v. Superior Court, 84 Cal. 592, 596, 597; 24 Pac. Kep. 310. REFERENCES. Eight to appoint testamentary guardian: See note 2 L. E. A. (N. S.) 203, 204. (2) Mother's incapacity to appoint. The common law did not recognize the rights of a testator to appoint a guardian for his children during their minority. While it made various provisions for the care of infants, and their estates, the right to make a testa- mentary disposition of the guardianship of the children was denied or withheld. It was years after the power to dispose of his prop- erty by will had been established by various statutes that the right to make a testamentary disposition of the guardianship of his minor children was conferred. This right was given by the statute of 12 Car., e. 24, and, by the words of that act, the father, only, can appoint the guardian or guardians, who shall have the custody of his children, and the control of their estates, during minority. The power thus conferred, when exercised to its fullest extent, invested the testamentary guardian with an authority over the children, and control of their estates, almost as coextensive as that enjoyed by the father himself. On his appointment, he supersedes all other guardians, and all control on the part of the mother. So absolute is this power, that it may be exerted in utter disregard of the claims of maternal affection, and despite its protests, and the custody of the children be committed to a stranger, and the life of the mother em- bittered by depriving her of the society of her offspring. It matters not how amiable and refined she may be, how competent in every respect to direct the education, and to participate, at least, in the cus- tody of her children, the paramount right of the testamentary guardian deprives her of all right to interfere with his custody of them or their education: Ingalls v. Campbell, 18 Or. 461; 24 Pac. Eep. 904, 905. This statute, shorn of its verbiage, has been substantially re- enacted in Oregon. The statute did not impose upon nor recognize any civil disability in the wife, nor create any civil disability in her which did not previously exist, but was a new and added right con- ferred upon the mother, and left her where she was before its enact- ment. Hence the want of capacity in the wife to make such an appointment is not a civil disability created by statute: Ingalls v. Campbell, 18 Or. 461; 24 Pac. Eep., 904, 905. The result, in that state, is, that, while the mother has as full and complete control of the children and their estates at the father's death as the father has at the mother's death, yet the mother has no right to appoint a guardian: Ingalls v. Campbell, 18 Or. 461; 24 Pac. Eep. 904, 906. 90 PROBATE LAW AND PRACTICE. (3) Mother's consent to father's appointment. The mother's con- sent, in writing, to the appointment, by the father, of a guardian for a minor child is required, under § 241 of the Civil Code of Cali- fornia, in all cases, if she is living; but her consent to a testa- mentary appointment may be effectually given after the father's death, as well as before. The father's appointment is ineffective before his death. There is in fact no appointment at all until the death; and it is only upon his death that her consent becomes of any importance. The appointment, if she survive, is of no effect if she dissents, and she, being the survivor, may withhold her consent, and may appoint whomsoever she chooses, or may herself apply to the court for the appointment of a guardian, under § 747 of the Code of" Civil Procedure of that state. She is then in control of the entire matter, and the appointment of a testamentary guardian, made by the father, before his death, becomes valid and effectual upon the death of the father and the subsequent written consent of the mother: Guardianship of Estate of Baker, 35 Cal. Deo. 505, 507 (May 12, 1908). BEFEBENCES. Effect of attempt by father to appoint a guardian for his child against the surviving mother: See note 13 L. E. A. (N. S.) 288-294. (4) Powers of. Validity of acts. Under the statute of California, the power to appoint guardians is vested, — 1. In the father; 2. In the mother; and 3. In the probate court. But a testamentary guardian has only the powers of the probate guardian, and the powers of a guardian, by whomsoever appointed, are the same, except as modi- fied, in the case of a testamentary guardian, by the will in which he has been appointed. A testator may make such special and lawful directions as he may see proper to give with reference to the education of a minor, his settlement in life, or the management of his estate; but the testamentary guardian cannot take the personal custody of the ward so long as there is a mother who is competent, willing, and worthy to have the custody and tuition of her child: Lord V. Hough, 37 Cal. 657, 669. There is no necessity for the issu- ance of any letters of guardianship to authorize a testamentary guardian to act. His authority comes directly from the will: Norris V. Harris, 15 Cal. 226, 256. A guardian appointed by deed is not estopped from questioning the validity of his own appointment on the ground that he never gave a bond, if he has received nothing under the appointment, and has never acted as guardian: Murphy v. Superior Court, 84 Cal. 592; 24 Pao. Eep. 310. Where a testamentary guardian for minor children is named by the last will and testament of a decedent, and there is reasonable ground to believe that the will is valid and legal, a general guardian of the minors is justified in incurring the expenses necessary in resisting a contest of such will, even though he should fail to establish its validity: In re GUARDIANSHIP OF MINORS. 91 Brady, 10 Ida. 366; 79 Pac. Eep. 75. The acts of a testamentary guardian before letters are issued to him and he qualifies are void: Aldrich v. Willis, 55 Cal. 81, 85. BEFEBENCES. Appointment of guardian by will, etc.: See Ken's Cal. Cyc. Civ. Code, § 241, and notes. i. Oonunitment of infants. The probate court of Kansas has power to commit to the " State Industrial School for Girls " any girl, under a specified age, who is incorrigible and habitually disregards ■ the commands of her father, mother, or guardian, or leads a vagrant life, or resorts to immoral places or practices, or neglects to perform labor suitable to her years and 'condition, or to attend school; and this power is not violative of any constitutional right: In re Gassa- way, 70 Kan. 695; 79 Pac. Rep. 113. The superior court of Cali- fornia has no power to commit to a reform school a person over the age limited by statute at the time of commitment; nor is there any power in an institution to receive such person and retain him or her in custody: Ex parte Wood (Cal. App.), 90 Pac. Kep. 961. If the statute provides that if a minor under the age of eighteen years is accused of the commission of any crime by a grand jury, they may, in their discretion, instead of finding an indictment against him, return to the superior court that it appears to them that the accused is a fit and suitable person to be committed to the care and guardianship of a designated state institution for the reformation of minors, and that the court may thereupon order such commitment, if satisfied from the evidence that it ought to be made, such minor cannot be imprisoned as a criminal without a trial by jury; and the order of commitment of the superior court, in such a case, is void as a judgment of imprisonment, where there was no jury trial, and it is equally void as an award of guardianship, if the parents of the minor were not made parties to the proceeding: Ex parte Becknell, 119 Cal. 496; 51 Pac. Eep. 692. As a father cannot be deprived of his child without an adjudication by a court of competent jurisdiction that he has abandoned or deserted it, or is unfit to have its custody and control, and the mother attempts to surrender the child to a charitable institution on a void adjudication that the father has abandoned it, and without notice to or consent of the father, the pro- ceeding is unauthorized: State v. Wheeler, 43 Wash. 183; 86 Pac. Eep. 394, 397. The marriage of a female minor takes her out of the class known as " children and minors," under the act providing for the com- mitment of " dependent " children, and makes her an adult person, so far as such act is concerned: Ex parte Lewis, 3 Cal. App. 738; 8'6 Pae. Eep. 996. A court of chancery, always jealous of the rights of wards, will interfere to ratify wrong committed against their persons or property, whether they have been in form plaintiffs or defendants 92 PROBATE LAW AND PRACTICE. in the proceedings in which the wrong was inflicted: Bent v. Max- well etc. Ey. Co., 3 N. M. 158; 3 Pac. Bep. 721, 732. It is a com- manding principle of justice, and has become one of the maxims of the law, that a minor cannot apply to his own use the beneficial part of a transaction and reject its burdens: Peers v. McLaughlin, 88 Cal. 294, 299; 26 Pae. Eep. 119. t 5. Habeas corpus for custody of children. (1) Nature of proceeding. It has long been established, that the right of custody of minor children may be litigated in habeas corpus proceedings. A proceeding by habeas corpus for the purpose of obtaining the custody of a child is, not to set the child free, but to determine whether the petitioner is entitled to its custody; and the correct view or ruling is, that the jurisdiction of the question of the custody of a child under a writ of habeas corpus is of an equitable nature, and courts are given large discretion in the matter. In cases of this character, where the controversy arises over the custody of a child, the real issue is one between private parties contesting a question of private right, under the form of habeas corpus pro- ceedings, in which there arises no question of personal liberty. In such cases the question of personal freedom is not involved, as an infant, for humane and obvious reasons, is presumed to be in the custody of some one until it has obtained its majority. Such eases are not decided upon the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but upon the court's view of the best interests of those whose welfare requires that they be in the custody of one person or another. In such oases the question of personal freedom is not involved, except in the sense of a determination as to which custodian shall have charge of one not entitled to be freed from restraint: Tytler v. Tytler (Wyo.), 89 Pac. Kep. 1, 2; In re Hamilton, 66 Kan. 754; 71 Pae. Eep. 817; Andrino v. Yates (Ida.), 87 Pac. Eep. 787. In some-of the earlier cases in this country, the courts were inclined to follow the common-law doctrine that the father had an absolute right to his children, superior to that of the mother and all others; but, on habeas corpus proceedings to determine the rightful and lawful custody, even in states which once followed the common-law rule, and whether the contention is between the father and mother for possession, or between the father and strangers, the question is now determined upon the more humane ground, generally recognized, that the welfare and interest of the child in controversy is the paramount question under consideration: McKereher v. Green, 13 Col. App. 270; 58 Pac. Eep. 406, 409. In contests between parents and 1:hird persons as to the custody by such parents, the opinion is now universal, that neither of the parties has any right that can be allowed to militate against the welfare of the infant. The real question in a case like this is, not what is the right of the father or other relatives GUABDIANCHIP OF MINORS. 93 to the custody of the child, nor whether the right of the one is superior to that of the other, but what are the rights of the child. When, therefore, a court is asked to lend its aid to put the infant into the custody of the father, and withdraw him from other persons, it will look into all the circumstances, and ascertain whether it will be for the real, permanent interests of the infant. It is an entire mistalce to suppose that the court, at all events, is bound to deliver over the infant to its father, or that the latter has an absolute vested right to its custody: McKercher v. Green, 13 Col. App. 270; 58 Pac. Eep. 406, 409, 410. BEFEBENCES. Habeas corpus for custody of children: See notes 20 Am. Dec. 330,337; 2 Am. St. Eep. 183-187. (2) Jurisdiction of courts. Temporary order. The jurisdiction of the question of the custody of a child, under a writ of habeas corpus, is of an equitable nature, and courts have large discretion in the matter: Andrino v. Yates (Ida.), 87 Pac. Eep. 787. In Kansas the probate courts have jurisdiction in habeas corpus cases: In re Gassaway, 70 Kan. 695; 79 Pac. Eep. 113; but in Idaho and Wyoming, jurisdiction of the care and custody of infant children is committed to the district courts and the judges thereof: In re Miller, 4 Ida. 711; 43 Pac. Eep. 870; Tytler v. Tytler (Wyo.), 89 Pac. Eep. 1, 2. In Idaho, the district judge at chambers has all the powers of a court in habeas corpus proceedings, and the judge may issue an order for the temporary care and custody of a person alleged to be illegally restrained of his liberty, to continue until the hearing of the determination of the writ of habeas corpus. Such order need not be issued by the clerk, under the seal of the court; the signature of the judge is sufficient. The statutes in that state, in regard to the writ of habeas corpus, must be liberally construed, with a view to effect their object and to promote justice: In re Dolling, 4 Ida. 715; 43 Pac. Eep. 871. (3) What matters, only, ■will be considered. In a habeas corpus proceeding for the custody of a child, the ' court will, where it is possible, keep the family of the remaining members of it together, if possible, especially where there is one willing to keep the family together not only because they are the children of one of his rela- tives, but also because it was the wish of their dead father: Jones V. Bowman, 13 Wyo. 79; 77 Pac. Eep. 439, 442. The proceeding in such cases is confined within very narrow limitations, and cannot be extended to the adjudication of claims and money demands and unsettled accounts between the parties. The only jurisdiction of the court is to determine who has the better right to the custody of the child, and to decree it to such custody. It is only those matters which have a necessary connection with the question of the validity of the detention that will be considered, and all other matters will 94 PEOBATF. LAW AND PRACTICE. be uniformly rejected: Foulke v. People, 4 Col. App. 519; 36 Pac. Eep. 640. A court, on a habeas corpus proceeding for the custody of an infant, will not give the slightest weight to the religious belief of the parties, especially where the statute of the state not only fails to make any distinction as to religious beliefs, but absolutely prohibits any distinction being made on account thereof: Jones v. Bowman, 13 Wyo. 79; 77 Pac. Eep. 439. (4) Welfare of infant controls. The cardinal principle upon a habeas corpus proceeding is the welfare of the child, and to regard the benefit of the infant; to make the welfare of the child paramount to the claims of either parent. The court will not regard the parental right as controlling, when to do so would imperil the personal safety, morals, health, or happiness of the child. In determining this deli- cate and often difficult question, the court looks to the character, condition, habits, and other surroundings of claimants: McKercher v. Green, 13 Col. App. 270; 58 Pac. Eep. 410; Andrino v. Yates (Ida.), 87 Pac. Eep. 787, 789; Jones v. Bowman, 13 Wyo. 79; 77 Pac. Eep. 439; Tytler v. Tytler (Wyo.), 89 Pac. Eep. 1, 2. The practice of consulting the infant's wish is well established in such oases, not that it should control in that matter, but that the court may more wisely exercise its discretion, and may learn its feelings, its attach- ments, its probable welfare and contentment: Andrino v. Yates (Ida.), 87 Pac. Eep. 787, 789. (5) Awarding child to proper custody. The right of a father with respect to his minor child is not an absolute, paramount, proprietary right or interest in or to the custody of the infant, but is in the nature of a trust reposed in him. The right to the custody of minor children is a joint one, to be enjoyed by their parents so long as the latter live together and exercise the right; but the right of the father as to the custody of his minor child being limited, he has no legal, arbitrary right to keep such child away from its mother, if the separation from her endangers its health, and especially if it is of such an age as to require a mother's care. Upon the separation of the parents, the joint right of custody is severed; it must then go to one or the other. If the parents cannot agree as to which shall have such custody, and resort to the courts to determine that question, it is clear that the court will regard the welfare of the child as the paramount consideration: Tytler v. Tytler (Wyo.), 89 Pac. Eep. 1, 2; and the petitioner must abide the law of the place where the question is litigated, regardless of the law of the domicile: Tytler V. Tytler (Wyo.), 89 Pac. Eep. 1, 2. In a contest for the custody of an infant, by a proceeding in habeas corpus, between the father and the immediate family of the deceased mother, the custody of the child will be awarded to such family, if the moral and financial qualifications of both parties are equal, but it appears that the child had never known its father, that the only member of the father's GUABDIANSHIP OP MINOES. 35 household •wa.a his mother, about eighty years of age, and that whatever the child knew of home and its surroundings was learned from and connected with said family of the deceased mother: McKercher v. Green, 13 Col. App. 270; 58 Pao. Eep. 406, 410. Where the parents are living apart, and the mother has made an unauthor- ized attempt to surrender her child to a charitable institution, with- out notice to or consent of the father, the court will, on habeas corpus, award the custody of the child to the father, it appearing that he is a proper person to have it: State v. Wheeler, 43 Wash. 183; 86 Pac. Eep. 394, 398. The parents are the natural guardians, and prima facie are entitled to the custody, of their minor children. A verbal agreement by the father, committing his child to the care and custody of another until it shall have attained its majority, is void, and such child will be restored to its father upon a writ of habeas corpus. The authorities almost universally agree that a parol agreement by the father, placing his child in the custody of another, is revocable at any time by the father, and that, upon a habeas corpus proceeding, the child will be delivered to the father, unless considerations of the welfare of the child control: Foulke v. People, 4 Col. App. 519; 36 Pac. Bep. 640, 643. So where a child has been unlawfully committed to a reform school, it will be discharged, on habeas corpus, from the custody of the superintendent of the school and restored to the custody of its parents: Ex parte Becknell, 119 Cal. 496; 51 Pac. Eep. 692. Where the legal right of the parent is not clear, the best interests of the child will govern the decision of the court. The legal right, however, to the custody of a minor mSy be abandoned or forfeited by the acts or conduct of the parent, and in such a case he is equitably estopped from asserting such legal right: Andrino v. Tates (Ida.), 87 Pac. Eep. 787. Where a number of white children of tender years were sent to Arizona by the New York Foundling Hospital, and such children were given to some impecunious, illiterate, and vicious half-breed Mexican Indians, but were afterwards taken from them by American residents of the locality, who cared for the same, and provided them with suitable homes, and the hospital filed its petition for a writ of habeas corpus to procure the custody of the children, the court held that neither the petitioner nor the respondents had any such legal claim as authorized it, for that reason, to award to either of the parties the care and custody of the children, but, in considering what was best to subserve the best welfare of the children, the court decided that it would be for their best interests that no change be made in their custody; and that they be left in the " changing West, the land of opportunity and hope," to grow to manhood and to womanhood, and where they would have the fullest opportunity possible for them to be judged, not upon the unfortunate condition of birth, but upon the record they themselves might make, and the character they should develop: New York Foundling Hospital v. Gatti (Ariz.), 79 Pac. Eep. 231, 233, 238. 96 PROBATE LAW AND PEACTICE. (6) Attacking adoption proceedings. Where a child has a mother living, and it has been adopted by another, without notice to the mother, the adoption proceedings are void, and the mother, on habeas corpus, is entitled to the" custody of her child, where she is shown to be capable, worthy, and affectionate, and has done nothing to impair her right, though respondents have better financial resources. This should not be allowed to turn the scale. " Children born in mangers and humble log cabins have been known to do well": Carter v Botts (Kan.), 93 Pac. Eep. 584. Where an order of adoption is col- laterally attacked on a writ of habeas corpus, the judgment as to the validity of the adoption is conclusive, in a subsequent proceeding to vacate the order of adoption, though no objection was made in the habeas corpus proceeding that the attack was collateral: In re Clifford's Estate, 37 Wash. 460; 79 Pac. Eep. 1001, 1002. (7) Attacking guardianship proceedings. The right to the guar- dianship of a minor cannot be tried upon habeas corpus: Andrino v. Yates (Ida.), 87 Pac. Eep. 787. ITpon the appointment of a guardian for the person of a minor, the authority of the parent ceases, and the guardian, if duly appointed, is legally entitled to the custody of the minor; and this right of the guardian to the custody of the minor can be attacked collaterally only upon the ground of want of juris- diction in the court to make the order of appointment; and when, upon proceedings in habeas corpus, the respondent justifies his custody of the minor by such an order, an impeachment thereof is a collateral attack: In re Lundberg, 143 Cal. 402, 403; 77 Pac. Eep. 156. If the respondent is the duly appointed guardian of a person of a Chinese girl, his right to her custody, irrespective of the ques- tion of parentage, cannot be denied on habeas corpus, not only because as guardian of her person he is her legal custodian, but because his appointment involved a determination by a competent tribunal as to who was her father: In re Chin Mee Ho, 140 Cal. 263, 266; 73 Pac. Eep. 1002. The appointment of a guardian is in the nature of a judgment, from which an appeal may be taken; and, unless it is taken within the prescribed statutory time after the order bf appointment is rendered, it becomes final, and cannot be collaterally attacked by the parents on habeas corpus: Ex parte Miller, 109 Cal. 643, 647; 42 Pac. Eep. 428. An appointment of a guardian of the person of a minor, made without actual notice to the parent, but in all other respects in accordance with all statutory requirements, is not void, and is not open to collateral attack on habeas corpus: In re Lundberg, 143 Cal. 402; 77 Pac. Eep. 156, 160. In a great majority of cases the minor is in the care of its parents, and in such cases' notice to them is therefore essential. But where the child is in the care of some other person, notice to that person will ordinarily reach the parents at once, in the absence of fraud, if the parents have not practically abandoned the child and ceased GUARDIANSHIP OP MINORS. 97 to make inquiry in regard thereto. The court to which an applica- tion for an order for the appointment is made will always make inquiry as to the relatives, and require notice to be given to them, where the giving of such .notice is practicable. If it subsequently develops that a parent has, by such proceedings, been deprived of the custody of his minor child, the order may be annulled or vacated by appropriate proceedings; and the court having jurisdiction of a guardianshp proceeding will always, on seasonable application by a parent who did not in fact have notice, liberally exercise the dis- cretionary power confided to it, to give the parent full opportunity to be heard on the question as to the necessity of the appointment of another as guardian. And finally, the guardian so appointed may be removed whenever it is no longer proper that the ward should be under guardianship: In re Lundberg, 143 Gal. 402; 77 Pac. Rep. 156, 159. The petitioner for a writ of habeas corpus for the custody of a child cannot base his claim on a supposed rightful authority to control the child's person in this state by virtue of his appoint- ment as guardian in another state, and the jurisdiction of a court of this state to decide, on habeas corpna, or other proper process, concerning the care and custody of infanta is paramount, and cannot be taken away by a decree of an inferior tribunal of this state; and where neither the petitioner nor the respondent is entitled to the custody of the child, the court, in the exercise of its sound judicial discretion, having regard to the welfare and permanent good of the child as a predominant consideration, will determine to whose custody it shall be committed: Jones v. Bowman, 13 Wyo. 79; 77 Pae. Rep. 439, 442. (8) Discharge and dismissal of -writ. In a habeas corpus proceed- ing for the custody of a minor committed to a state reform school, the minor must be discharged from the custody of the superintendent of such institution and restored to the custody of his parents, where the facts show that he was illegally committed for want of notice to his parents: Ex parte Becknell, 119 Gal. 496, 497; 51 Pac. Rep. 692. And the writ of habeas corpus must be dismissed, where it ap- pears that the child is not in the respondent's custody: In re-Ghristal, 141 Cal. 523, 524; 75 Pac. Rep. 103. (9) Former adjudication as res judicata. In a habeas corpus pro- ceeding involving the custody of minor children, all matters in issue arising upon the same state of facts determined in a prior proceeding should be regarded as settled and concluded: In re Hamilton, 66 Kan. 754; 71 Pac. Eep. 817. The principle of res judicata is appli- cable to proceedings on habeas corpus, so far, at least, as they involve an inquiry into and a .determniation of the rights of conflict- ing claimants to the custody of minor children. The decision on a former writ is conclusive in a subsequent application, unless some new fact has occurred which has altered the state of the case, or the Probate — 7 98 PROBATE LAW AND PRACTICE. relative claims of the parents or other contestants for the custody of the child in some material respect. Thus a judgment awarding the custody of a child to its adoptive parents is res judicata of the issues in a subsequent proceeding between the same parties on the same facts to vacate the order of adoption, though the former was a habeas corpus proceeding: In re Clifford, 37 Wash. 460; 79 Pac. Eep. 1001, 1002. EEFEBENCES. Habeas corpus decree as to custody of infant as res judicata: See note 67 L. E. A. 783-788. (10) Writ of prohibition. A writ of prohibition to prevent pro- ceedings before a district court, or the judge thereof, will not be issued in habeas corpus proceedings for the custody of a child, unless it is so clear that such court is acting outside of or beyond its jurisdiction that there is no reasonable doubt of the fact: In re MUler, 4 Ida. 711; 43 Pac. Eep. 870, 871. (11) Appeal. In Kansas, an appeal will lie from a judgment of the district court in habeas corpus proceedings determining the rights of conflicting claimants to the custody of a child: Bleakley v. Smart (Kan.), 87 Pac. Eep. 76;. and in Colorado a decree in habeas corpus for the custody of an infant may be reviewed upon a writ of error, as such a decision clearly possesses every element necessary to con- stitute a final judgment. It is conclusive between the parties as to the only question and subject-matter before the court and presented in the record, namely, the custody of the child. Such an order, de- cision, judgment, or whatever it may be called, puts an end to the particular action. It leaves nothing further to be done in the determination, becomes res judicata, and therefore constitutes a final judgment: McKercher v. Green, 13 Col. App. 270; 58 Pac. Eep. 406, 408; but the appellate court will ordinarily decline to review the evidence: In re Freeman, 54 Kan. 493; 38 Pac. Eep. 558. So in Wyoming, where an appeal is taken from a decision in a habeas corpus proceeding brought to secure the custody of a minor child, the case does not go before the appellate court for trial de novo; and the court, sitting as a court of review, in considering the evidence, will not assume to weigh it, but only look into the record to ascertain whether the judge abused his discretion in awarding the custody of the child: Tytler v. Tytler (Wyo.), 89 Pac. Eep. 1, 3. No appeal lies from a non-appealable order, and the appeal will be dismissed if taken by a party who is not aggrieved by the refusal of the court to change the custody of the child: St. Clair v. Williams, 23 Wash. 552; 63 Pac. Eep. 206. In a habeas corpus proceeding for the custody of a chUd, the giving of a supersedeas bond has no effect whatever upon the possession, custody, and control of the child in question. It does not give a right to the custody of the child, pending the appeal: State v. Poindeiter (Wash.), 87 Pac. Eep. 1069. GUAEDIANSHIP OF MINORS. 99 CHAPTER II. GUARDIANSHIP OF MINORS. (CONTINUED.) f 70. Superior court to appoint guardians. On what petition. § 71. Form. Petition for appointment of guardian. § 72. Form. Notice of application for letters of guardianship. § 73. Form. Order appointing day for hearing petition for guardian- ship, and directing notice to be given. § 74, Form. Another form of order appointing day for hearing petition for guardianship, and directing notice to be given. § 75. Form. Consent of relative to appointment. § 76. Form. Order appointing guardian. § 77. Form. Short form of order appointing guardian. § 78. Form. Consent of guardian. § 79. When minor may nominate guardian. When not. § 80. Appointment of, by court. Minor over fourteen, § 81. Nomination by minors after fourteen. § 82. Form. Nomination of guardian by minor. § 83. Who may be guardian. Marriage does not affect guardian- ship. § 84. Powers and duties of guardian. § 85. Bond of guardian, conditions of. § 86. Form. Bond of guardian upon qualifying. § 87. Form. Justification of sureties on bond of guardian. § 88. Form. Bond of guardian (upon qualifying), executed by cor- poration. § 89. Form. Acknowledgment, by corporation, of execution of guardian's bond upon qualifying. § 90. Form. Letters of guardianship. § 91. Form. Oath of guardian. § 92. Form. Certificate of clerk as to copy of letters of guardian- ship. § 93. Court may insert conditions in order. § 94. Letters and bond to be recorded. § 95. Maintenance of minor out of income of his own property. § 96. Form. Petition for allowance for expenses of education and maintenance. § 97. Form. Order of allowance for expenses of education and main- tenance. § 98. Guardian to give bond. Powers limited. § 99. Power to appoint guardian ad litem not impaired. 100 PROBATE LAW AND PRACTICE. § 100. Transfer of proceedings from one county to another county. Petition for removal. § 101. Form. Petition for removal of proceeding. § 102. Form. Order fixing time of hearing on petition for removal. § 103. Form. Order for removal of proceeding. § 104. When power of guardian is superseded. § 70. . Superior court to appoint guardians. On what peti- tion. The superior court of each county, when it appears necessary or convenient, may appoint guardians for the per- sons and estates, or either of them, of minors who have no guardian legally appointed by will or deed, and who are in- habitants or residents of the county, or who reside without the state and have estate within the county. Such appoint- ment 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 making such appointment, the court must cause such notice as such court deems reason- able to be given to any person having the care of such minor, and to such relatives of the minor residing- in the county as the court may deem proper. In all such proceedings, when it appears to the satisfaction of the court, either from a verified petition, or from affidavits, that the welfare of the minor will be imperiled if such minor is allowed to remain in the custody of the person then having the care of such minor, the court may make an order providing for the temporary custody of such minor until a hearing can be had on such petition ; and when it appears to the court that there is reason to believe that such minor will be carried out of the juris- diction of the court before which the application is made, or will suffer some irreparable injury before compliance with such order providing for the temporary custody of such minor can be enforced, such court may at the time of making such order providing for the temporary custody of such minor cause a warrant to be issued, reciting the facts, and directed to the sheriff, coroner, or constable of the county, commanding such officer to take such minor from the custody of the person in whose care such minor then is and place such minor in custody in accordance with the order of the court. Kerr's Cyc, Code Civ. Proc, § 1747. GUARDIANSHIP OF MINORS. 101 ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sees. 887, 888, p. 328. Arizona. Eev. Stats. 1901, par. 1954. Colorado. 3 Mills's Ann. Stats., sees. 4691, 4700, 4815 1. Idaho. Code Civ. Proc. 1901, sec. 4339. ■ Kansas. Gen. Stats. 1905, § 3404. Montana. Code Civ. Proc., sec. 2950. Nevada. Comp. Laws, sees. 559, 560, 561. New Mexico. Comp. Laws 1897, sees. 1434, 1441, 1973; and sac. 2052, as amended Laws 1903, sec. 2, p. 9. North Dakota. Kev. Codes 1905, §§ 7892, 8236. Oklahoma. Eev. Stats. 1903, sec. 1814. Oregon. iSellinger and Cotton's Ann. Codes and Stats., §§ 5258, 5259. South Dakota. Probate Code 1904, § 366. Utah. Eev. Stats. 1898, sec. 3994. Washington. Pierce's Code, §§ 2729, 2828, 2828a. Wyoming. Eev. Stats. 1899, sec. 4866. § 71. Form. Petition for appointment of guardian. [Title of court.] ( Department No. [Title of guardianship.] | ^.^j^j^ ^^ ^^^^ To the Honorable the ^ Court of the County ' of , State of The petition of respectfully shows : That your petitioner is ^ of ,* a minor child of ; = That the said minor has no guardian legally appointed by will or otherwise, and is a resident of ,* and has estate within said county,^ which needs the care and atten- tion of some fit and proper person; That said estate consists of real estate and personal prop- erty, particularly described as follows, to wit : ; * That therefore it is necessary and convenient that a guardian be appointed for the person and estate of said minor, ; That said " is of the age of years,^" and said minor is at present under the care of ; ^^ That the only relative of the said minor residing in said county ^^ of is ^^ Wherefore your petitioner prays that he, or some other 102 PROBATE LAW AND PRACTICE. fit and proper person, be appointed as guardian of the person and estate " of said minor ; that notice be given to the said ; " and that a day for hearing this petition be set. Dated , 19 — , Petitioner. Explanatory notes. 1. Title of court. 2. Or, City and County. 3. State relationship to minor. 4. Name of minor. 5, 6. Name the county in which appointment is sought. 7. Or, city and county. 8. Describe the property. 9. Name of minor. 10. Give age. 11. Name of custodian. 12. Or, city and county. 13. Name of relative. 14. Or either, as the ease may be. 15. Name of relative. § 72. Form. Notice of application for letters of guardian. ship. [Title of court.] i No. 1 Dept. No. . [Title of guardianship.] | ^ ^,j,^^^^ ^f form.] Notice is hereby given, That has filed with the clerk of this court a petition, praying for letters of guardianship of the person and estate of , a minor, and that ,* the day of , 19 — , at o'clock in the fore- noon ^ of said day, at the court-room of said court, depart- ment No. , at the court-house * in the county ° of , has been fixed by said court for hearing said petition, when and where any person interested may appear and show cause way the said petition should not be graiited. Dated , 19 — , Clerk. By , Deputy Clerk. Explanatory notes. 1. Give file number. 2. Day of week. 3. Or, afternoon. 4. State location of court-house. 5. Or, city and county. § 73. Form. Order appointing day for hearing petition for guardianship, and directing notice to be given. [Title of court.] (No. 1 Dept. No. . [Title of estate.] | ^^.^j^ ^^ ^^^^ having this day petitioned the court to be appointed guardian of the person and estate of said minor, — It is ordered, That '' the day of , 19 , at o'clock in the forenoon ' of said day is appointed for GUARDIANSHIP OP MINORS. 103 the hearing of said petition, and that notice of the hearing be given to , the person having the care of said minor, and to the following named relatives of said minor, residing in this county,* to wit, and , by citation to be served on said parties at least five days " before the hearing. Dated , 19 , Judge of the Court. Explanatory notes. 1. Give file number. 2. Day of week. 3. Or, afternoon. 4. Or, city and county. 5. Or, as directed by the court. § 74. Form. Another form of order appointing day for hearing petition for guardianship, and directing notice to be given. [Title of court.] ,^. , „ ,. ,. , (No 1 Dept. No . [Title of guardianship.] | ^^.^^^ ^^ ^ ^^^^ It is ordered by the court, That notice of the time and place of hearing the petition of for the appointment of as guardian of the person and estate of , a minor child of and ,^ be given to , who has custody oi said minor, and to , and to , relatives of said minor, by notice served personally upon said persons at least days before the time of such hearing, which hearing is now set down for , 19 — , at o'clock in the forenoon " of said day. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Names of parents. 3. Or as the case may be. § 75. Form. Consent of relative to appointment. [Title of court.] I No. 1 Dept. No. [Title of guardianship.] | ^^.^j^ ^^ ^^^^^ The undersigned, a relative of , a minor, hereby con- sents that may be appointed guardian of the person and estate '' of said minor. . Dated , 19 — Explanatory notes. 1. Give file number. 2. Or either of them. 104 PROBATE LAW AND PRACTICE. § 76. Form. Order appointing guardian. [Title of court.] [Title of guardianship.] j^"- — ^^ ""j^^Z^} The petition of , praying to be appointed guardian of the person and estate of said minor, coming on regularly to be heard, upon due proof to the satisfaction of the judge of said court that notice has been given to the relatives of the said minor residing in this county," and to the person under whose care said minor is, as required by law, and as directed by this court, and it duly appearing to the court that said minor has no legal guardian, that he is a resident of the said county,^ and that he has estate within the state of , which needs the care and attention of some fit and proper person, which estate is of the value of dollars ($ ), or thereabouts, — It is hereby ordered, That said be, and he is hereby, appointed guardian of the person and estate of said minor, and that letters of guardianship of the person and estate of said minor be issued to the said ujJon his giving bond to said minor in the sum of dollars ($ ) and taking the oath required by law. Dated , 19 — , Judge of the. Court. Explanatory notes. 1. Give file number. 2, 3. Or, city and ecmty. § 77. Form. Short form of order appointing guardian. [Title of court.] [Title of guardianship.] \^°- — — ' ^^P*" ^° • ■■ ^ ^■' I [Title of form.] The petition of for the appointment of ^ as guardian of the persons and estates of and minors, coming on regularly this day to be heard, and it appearing, that notice of said hearing has been duly given as directed by the court and required by law, the court after hearing the evidence, grants said petition, — It is therefore ordered by the court. That be, and he is hereby, appointed guardian of the persons and estates of the said -. and / minors, and that letters of GUARDIANSHIP OP MINORS. 105 giiarclianship be issued accordingly upon his giving a bond, conditioned according to law, to each of said minors,* in the sum of dollars ($ ), and taking the oath required by law. ^ County Clerk. Entered , 19 — By , Deputy. Explanatory notes. 1. Give file number. 2. Himself, or some other fit and proper person, naming him. 3, 4. Give their names. Orders and decrees need not be signed. There is no statutory pro- vision in California for the signing of a judgment by the judge, either before or after entry; and his signature gives to it no additional solemnity or validity. The adoption of such a practice is merely to give the clerk a surer means of correctly entering what has been adjudged. The judgment is a judicial act of the court; the entry is the ministerial act of the clerk. The judgment is as final when pro- nounced by the court as when it is entered and recorded by the clerk. After the court has pronounced a judgment in apt language, nothing more is left to be done except the ministerial act of the clerk in entering it, and especially so when what the court has pronounced has been entered in the minutes, then the judgment has been rendered, and the rights of the parties established: Estate of Cook, 77 Cal. 220, 227; 17 Pao. Eep. 923; 19 Pac. Eep. 431; 11 Am. St. Eep. 267; 1 L. E. A. 567. The same rule applies, of course, to orders and decrees in probate proceedings; but in such proceedings § 1704 of the Code of Civil Procedure of California requires all orders and decrees of the court or judge to be entered at length in the minute-book of the court. The absence of the judge's signature would in no way impair the effect of the order or decree; and the statute does not require him to sign the minutes. § 78. Form. Consent of guardian. [Title of court.] I Title of guardianship.] ) ' ~' , „\' ' ' >- ^ ^ J ( [Title of form.] I, the above-named ,' hereby consent to be appointed as the general guardian of the person and estate ^ of the petitioner above named, and I hereby offer as my sureties the following persons, namely, and * Dated , 19 — Explanatory notes. 1. Give file number. 2. Name of guardian 3. Or either of them. 4. Naming them. 106 PROBATE LAW AND PEACTICE. § 79. When minor may nominate guardian. When not. If the minor is under the age of fourteen years, the court may nominate and appoint his guardian. If he is fourteen years of age, he may nominate his own guardian, who, if ap- proved by the court, must be appointed accordingly. Kerr's Cyc. Code Civ. Proc, § 1748. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 889, p. 328. Arizona. Eev. Stats. 1901, par. 1955. Colorado. 3 Mills's Ann. Stats., sec. 4700. Idaho. Code Civ. Proc. 1901, sec. 4340. Kansas. Gen. Stats. 1905, § 3406. Montana.* Code Civ. Proc, sec. 2951. Nevada. Comp. Laws, sec. 561. New Mexico. Comp. Laws 1897, sec. 2053, as amended Laws 1903, sec. 3, p. 9. North Dakota. Eev. Codes 1905. § 8237. Oklahoma. Eev. Stats. 1903, sec. 1815. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5260. South Dakota. Probate Code 1904, § 367. Utah. Eev. Stats. 1898, sec. 3995. Washington. Pierce's Code, § 2730. Wyoming.* Eev. Stats. 1899, see. 4867. § 80. Appointment of, by court. Minor 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, after being duly cited by the court, he neglects for ten days to nominate a suitable person, the court or judge may nominate and appoint the guardian in the same manner as if the minor were under the age of fourteen years. Kerr's Cyc. Code Civ. Proc, § 1749. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 889, p. 328. Arizona.* Eev. Stats. 1901, par. 1956. Colorado. 3 Mills's Ann. Stats., sec. 4700. Idaho.* Code Civ. Proc. 1901, sec. 4341. Montana.* Code Civ. Proc, sec. 2952. Nevada. Comp. Laws, sec. 561. New Mexico. Comp. Laws 1897, sec. 1440; and sec. 2053, as amended Laws 1903, sec. 3, p. 9. GUARDIANSHIP OF MINORS. 107 North Dakota.* Eev. Codes 1905, § 8238. Oklahoma.* Rev. Stats. 1903, sec. 1816. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5260. South Dakota.* Probate Code 1904, § 368. Utah. Kev. Stats. 1898, sec. 3995. Washington.* Pierce's Code, § 2731. Wyoming.* Eev. Stats. 1899, see. 4868. § 81. Nomination by minors after 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 nominate his own guardian, subject to the approval of the court. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 506), §1750. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1957. Idaho. Code Civ. Proc. 1901, sec. 4342. Montana. Code Civ. Proc, sec. 2953. Nevada. Comp. Laws, sec. 562. New Mexico. Comp. Laws 1897, sees. 1435, 1461. North Dakota. Eev. Codes 1905, § 8239. Oklahoma. Eev. Stats. 1903, sec. 1817. South Dakota. Probate Code 1904, § 369. Utah. Eev. Stats. 1898, sec. 3995. Washington. Pierce's Code, § 2732. Wyoming. Eev. Stats. 1899. sec. 4869. § 82. Form. Nomination of guardian by minor. [Title of court.] [Title of guardianship.] \^° ' ^«P*- ^° • "■ ^ ^ ■" \ [Title of form.] I, , a minor fourteen years "of age, hereby nominate as guardian of my person and estate,^ and respectfully request this honorable court to appoint him, the said as such guardian. , Dated , 19 — Explanatory notes. 1. Give file number. 2. Or either of them. § 83. Who may be guardian. Marriage does not affect guardianship. The father or the mother of a minor child under the age of fourteen years, if found by the court com- 108 PROBATE LAW AND PRACTICE. petent to discharge the duties of guardianship, is entitled to be appointed a guairdian. of such minor child, in preference to any other person. The person nominated by a minor of the age of fourteen years as his guardian, whether married or unmarried, may, if found iy the court competent to dis- charge the duties of guardianship, be appointed as such guar- dian. The authority of a guardian is not extinguished nor affected by the marriage of the guardian. Kerr's Cyc. Code Civ. Proc, § 1751. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 887, p. 328. Arizona. Eev. Stats. 1901, par. 1958. Idaho. Code Civ. Proc. 1901, sec. 4343. Kansas. Gen. Stats. 1905, § 3405. Montana. Code Civ. Proc, sec. 2954. Nevada. Comp. Laws, sec. 563. North Dakota. Eev. Codes 1905, §§ 8046, 8240. Oklahoma. Eev. Stats. 1903, see. 1818. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5258. South Dakota. Probate Code 1904, § 370. Utah. Eev. Stats. 1898, sec. 3995. Washington. Pierce's Code, § 2733. Wyoming. Eev. Stats. 1899, sec. 4870. § 84. Powers and duties of guardian. Every guardian appointed has 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 marries, or until the guardian is legally discharged, unless he is appointed guar- dian only of the person of the ward. In that event, the guar- dian is charged with the custody of the ward, and must look to his- support, health, and education. He may &s. the resi- dence of the ward at any place in the state, but not elsewhere without the permission of the court. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 507), §1753. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 890, p. 328. Arizona. Eev. Stats. 1901, par. 1960. Colorado. 3 Mills's Ann. Stats., sees. 4721, 4732. Idaho. Code Civ. Proc. 1901, sec. 4345. GUARDIANSHIP OF MINORS. 109 Kansas. Gen. Stats. 1905, §§3409, 3410. Montana. Code Civ. Proc, sec. 2956. Nevada. Comp. Laws, see. 564. New Mexico. Comp. Laws 1897, sec. 1449. North Dakota. Eev. Codes 1905, § 8242. Oklahoma. Eev. Stats. 1903, sec. 1820. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5262. South Dakota. Probate Code 1904, § 372. Washington. Pierce's Code, § 2735. Wyoming. Eev. Stats. 1899, sec. 4872. § 85. Bond of guardian, conditions of. Before the order appointing any person guardian under this chapter takes effect, and before letters issue, the court must require of such person a bond to the minor with sufficient sureties, to be ap- proved by the judge, and in such sum as he shall order, con- ditioned 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 make an inventory of all the estate, real and per- sonal, 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 dis- charge 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 property, estate, and moneys of the ward in his hands, and all proceeds or interests derived therefrom, and of the management and dis- position of the same, within three months after his appoint- ment, 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 representa- tives, 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 tbe same as letters of • 110 PROBATE LAW AND PEACTICE. administration, and the oath of the guardian must be in- dorsed thereon that he will perform the duties of his office as such guardian according to law. Kerr's Cyc. Code Civ. Proc, § 1754. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 891, p. 328. Arizona.* Eev. Stats. 1901, par. 1961. Colorado. 3 Mills's Ann. Stats., sees. 4711, 4712, 4718. Idaho.* Code Civ. Proc. 1901, sec. 4346. Kansas. Gen. Stats. 1905, § 3407. Montana.* Code Civ. Proc, sec. 2957. Nevada. Comp. Laws, sec. 565. New Mexico. Comp. Laws 1897, sees. 1442, 1455, 1468, 1906, 1973; and sec. 2053, as amended Laws 1903, sec. 3, p. 9. North Dakota. Eev. Codes 1905, §§ 8047, 8048, 8049, 8056, 8243. Oklahoma.* Bev. Stats. 1903, sec. 1821. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5263. South Dakota.* Probate Code 1904, § 373. Utah. Eev. Stats. 1898, sec. 3991. Washington. Pierce's Code, §§ 2744, 2765, 2828e. Wyoming.* Eev. Stats. 1899, see. 4873. § 86. Form. Bond of guardian upon qualifying. [Title of court.] ( No. 1 Dept. No. [Title of guardianship.] | ^rpj^l^ „f f o^^j -| Know all men by these presents : That we, as princi- pal, and and as sureties, are held and firmly bound unto , a minor, in the sum of dollars ($ ), lawful money of the United States of America, 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. The condition of the above obligation is such, that, whereas an order was made by the ^ court of the county " of , state of , on the day of , 19 — , ap- pointing the above-bounden the guardian of the person and estate of the said minor, and directing that letters of guardianship be issued to him upon his giving a bond to the said minor with sufficient sureties, to be approved by the GUARDIANSHIP OF MINORS. Ill judge of said * court, in the penal sum of dollars ($ ), conditioned that said guardian shall faithfully execute the duties of his trust, according to law, — Now, therefore, if the said . shall faithfully execute the duties of his trust according to law, then this obligation shall be void and of no effect; otherwise it shall remain in full force and effect. Dated, signed, and sealed with our seals, this day of r, 19 — [Seall [Seal] [Seal] Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, city and county. 4. Title of court. § 87. Form. Justification of sureties on bond of guardian. State of , County 1 of -, I ^^- and , the sureties named in the above bond, being duly sworn, each for himself says that he is a resident and householder ^ in said state, and is worth the sum of dollars ($ ) over and above all his just debts and lia- bilities, exclusive of property exempt from execution. Subscribed and sworn to before me this day of . 19 , Notary Public, etc.^ Explanatory note^ 1. Or, City and County. 2. Or, freeholder. 3. Or other officer taking the oath. § 88. Form. Bond of guardian (upon qualifying), exe- cuted by corporation. [Title of court.] [Title «f guardianship.] j^^- — ^ ^^^^o^ — Ejlow all men by these presents : That, we, as princi- pal, and the " as surety, are held and firmly bound unto , a minor, in the sum of dollars ($ ), lawful money of the United States of America, to be paid to the said — '■ — , for which payment well and truly to be 112 ' PROBATE LAW AND PEACTICE. made we bind ourselves, our and each of our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents. The condition of the above obligation is such, that, whereas an order was made by the ^ court of the county* of , state of , on the day of , 19 — , ap- pointing the above-bounden the guardian of the person and estate of the said minor, and directing that letters of guardianship be issued to him upon his giving a bond to the said minor with sufficient sureties, to be approved by a judge of said ^ court, in the penal sum of dollars ($ ), conditioned that said guardian shall faithfully execute the duties of his trust according to law, — Now, therefore, if the said shall faithfully execute the duties of his trust according to law, then this obligation shall be void; otherwise it shall remain in full force and effect. In witness whereof, The seal and the signature of the said principal is hereto affixed, and the corporate seal and name of the said surety is hereto affixed and attested by its duly authorized officers, at , state of , this day of , 19 — [Seal] [Corporate seal] By , President. , Secretary. Explanatory notes. 1. Give file number. 2. Give name of com- pany, a corporation organized, acting, and existing under the laws of the state of 3. Title of court. 4. Or, city and county. 5. Title of court. § 89. Form. Acknowledgment, by corporatioii, of execu- tion of guardian's bond upon qualifying, [Title of court.] [Title of guardianship.] \ ^°- ^^^pt. No. ( [Title of form.] State of . ss. . County ^ of On this day of , one thousand nine hundred and (19 — ), before me, , a notary public in and for GUARDIANSHIP OF MINORS. 113 the county ^ of , state of , residing therein, duly commissioned and sworn, personally appeared , known * to me to be the president, and , known to me to be the secretary, of the — ,* the corporation described in and that executed the above bond, and acknowledged to me that such corporation executed the same. In witness whereof, I have hereunto set my hand and affixed my official seal, at my office in the said county ^ of , the day and year in this certificate first above written. , Notary Public in and for the County" of , State of Explanatory notes. 1, 2. Or, City and County. 3. Or, proved by the testimony of , a credible witness, as to the question of identification. 4. Name the company. 5, 6. Or, eity and county. § 90. Form. Letters of guardianship. [Title of court.] (No 1 Dept. No . [Title of estate.] | ^^itle of form.] State of , County ^ of J is hereby appointed guardian of the person and estate of , a minor. Witness , clerk of the " court of the county * of , with the seal of said court afSxed, this day of , 19_. By order of the court. , Clerk. [Seal] By , Deputy Clerk. Bxplauatory notes. 1. Give file number. 2. Or, City and County. 3. Title of court. 4. Or, city and county. § 91. Form. Oath of guardian. [Title of court.] j No. 1 Dept. No. . [Title of guardianship.] ^ j-^itie of form.] State of ss. County ^ of • J I do solemnly swear that I will support the constitution of the United States, and the constitution of the state of ; and that I will faithfully discharge the duties of guardian Probate — 8 114 PEOBATE LAW AND PEACTICE. of the person and estate of , a minor, according to law. Subscribed and sworn to before me this day of , 19 , Deputy County Clerk. Explanatory notes. 1. Give file number. 2. Or, City and County. The oath of the guardian must be indorsed on his letters: See Kerr's Cal. Cyc. Code Civ. Proc, § 1754. § 92. Form. Certificate of clerk as to copy of letters of guardianship. [Title of court.] ( No. 1 Dept. No. [Title of guardianship.] | j-rpitie of form.] State of , County " of ss. I, , county clerk of the county ' of , and ex officio clerk of the * court, do hereby certify the fore- going to be a full, true, and correct copy of the letters of guardianship in the matter of the person and estate of , a minor, now on file and of record in my office, and I further certify that the same have not been revoked or vacated. Witness my hand and the seal of said court this day of , 19 — , Clerk. [Seal] By , Deputy Clerk. Explanatory notes. 1. Give file number. 2, 3. Or, city and county. 4. Title of court. § 93. Court may insert conditions in order. When any person is appointed guardian of a minor, the court may, with the consent of such person, insert in the order of appoint- ment, conditions not otherwise obligatory, providing for the care, treatment, education, and welfare of the minor and for the care and custody of his property. The performance of such conditions shall be a part of the duties of the guardian, for the faithful performance of which he and the sureties on his bond shall be responsible. Kerr's Cyc. Code Civ. Proc, § 1755. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1962. Idaho. Code Civ. Proc. 1901, see. 4347. GUARDIANSHIP OF MINORS. 115 North Dakota. Eev. Codes 1905, § 8244. Oklahoma. Eev. Stats. 1903, sec. 1822. South Dakota. Probate Code 1904, § 374. Utah. Eev. Stats. 1898, sec. 3988. Wyoming. Eev. Stats. 1899, sec. 4874. § 94. Letters and Ijond to be recorded. All letters of guardianship issued and all guardians' bonds executed under the provisions of this chapter, with the affidavits and certifi- cates thereon, must be recorded by the clerk of the court having jurisdiction of the persons and estates of the wards. Kerr's Cyc. Code Civ. Proc, § 1756. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1963. Colorado. 3 Mills's Ann. Stats., sec. 4815n. Idaho.* Code Civ. Proc. 1901, sec. 4348. Kansas. Gen. Stats. 1905, § 3080. Oklahoma.* Eev. Stats. 1903, sec. 1823. South Dakota.* Probate Code 1904, § 375. Utah. Eev. Stats. 1898, sec. 3991. Wyoming.* Eev. Stats. 1899, see. 4875. § 95. Maintenance of minor out of income of his own property. If any minor having a father living has property, the income of which is sufficient for his maintenance and education in a manner more expensive than his father can reasonably afford, regard being had to the situation of the father's family and to all the circumstances of the case, the expenses of the education and maintenance 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 court; and the charges therefor may be allowed ac- cordingly in the settlement of the accounts of his guardian. Kerr's Cyc. Code Civ. Proc, § 1757. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, aisa. 19, p. 360. Arizona. Eev. Stats. 1901, par. 1964. Idaho.* Code Civ. Proc. 1901, sec. 4349. Montana.* Code Civ. Proc, sec. 2958. Nevada.* Comp. Laws, sec. 570. North Dakota.* Eev. Codes 1905, § 8245. xlo PROBATE LAW AND PKACTICB. Oklahoma* Eev. Stats. 1903, sec. 1824. South Dakota.* Probate Code 1904, § 376. Utah.* Eev. Stats. 1898, sec. 3999. Wyoming. Rev. Stats. 1899, sec. 4876. § 96. Form. Petition for allowance for expenses of edu- cation and maintenance. [Title of court.] ( No. 1 Dept. No. . [Title of guardianship.] | l-rp.yg ^^ ^^^^j The undersigned, , your petitioner, respectfully repre- sents to this honorable court that he is the duly appointed, qualified, and acting guardian of the person and estate of , a minor; that said minor has a father living; that it is for the best interests of said minor that he be educated at ; ^ that the sum of dollars ($ ) per quarter or per annum will be required to pay for his tuition, main- tenance, necessary school books, etc., while attending said institution ; that the father of said minor ^ is unable financially to expend the said sum for the education and maintenance of said minor, either at said institution or at any other suitable place, but that said minor has property, the income of which is sufficient for his maintenance and education in a manner more expensive than his father can reasonably afford. Your petitioner therefore prays that this court issue an order authorizing the said guardian to expend the said sum of dollars ($ ) per quarter or per annum for the purposes above set forth. , Petitioner. , Attorney for Petitioner. Explanatory notes. 1. Give file number. 2. Name the institution. 3. Briefly state situation of father's family, and circumstances of the case. § 97. Form. Order of allowance for expenses of educa- tion and maintenance. [Title of court.] ( No 1 Dept. No. . [Title of guardianship.] ( [Title of form.] It having been shown to this court from the petition of , the . guardian of the person and estate of a GUARDIANSHIP OP MINORS, 117 minor, filed herein on the day of , 19 , that said minor has a father living, but who is not able to main- tain and educate the said minor in a suitable manner; and that said minor has property, the income of which is suf- ficient for his maintenance and education in a manner more expensive than his father can reasonably afford, regard being had to the situation of the father's family and to all the circumstances of the ease, It is ordered, That , the guardian of the person and estate of , a minor, be, and he is hereby, authorized to expend the sum of dollars ($ ), quarterly,^ out of the income of the estate of said minor, for the purposes of said minor's maintenance and education at " Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, annually. 3. Name the institution. § 98. Guardian to give bond. Powers limited. Every testamentary guardian must 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 his powers and duties are legally modified, enlarged, or changed by the will by which such guardian was appointed, and except that such guardian need not give bond unless directed to do so by the court from which the letters of guardianship issue. Kerr's Cyc. Code Civ. Proc, § 1758. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 893, p. 329. Arizona. Rev. Stats. 1901, par. 1982. Idaho. Code Civ. Proc. 1901, sec. 4351. Kansas. Gen. Stats. 1905, §§ 3402, 3403. Montana. Code Civ. Proc, sec. 2959. Nevada. Comp. Laws, sec. 565. New Mexico. Comp. Laws 1897, sec. 2016. North Dakota. Eev. Codes 1905, § 8246. Oklahoma. Eev. Stats. 1903, sec. 1825. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5265. South Dakota. Probate Code 1904, § 377. Utah. Eev. Stats. 1898, see. 3989. Washington. Pierce's Code, § 2745. Wyoming. Eev. Stats. 1899, sec. 4877. 118 PEOBATE LAW AND PRACTICE. § 99. Power to appoint guardian ad litem not impaired. Nothing contained in this chapter affects or impairs the power of any court to appoint a guardian to defend the in- terests of any minor interested in any suit or matter pending therein. Kerr's Cyc. Code Civ. Proc, § 1759. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 894, p. 329. Arizona.* Eev. Stats. 1901, par. 1983. Idaho.* Code Civ. Proe. 1901, sec. 4352. Montana.* Code Civ. Proc, sec. 2960. Nevada. Comp. Laws, sec. 571. North Dakota.* Eev. Codes 1905, § 8247. Oklahoma.* Eev. Stats. 1903, sec. 1826. Oregon. Bellinger and Cotton's Ann. Codes and Stats.; § 5266. South Dakota.* Probate Code 1904, § 378. Utah.* Eev. Stats. 1898, sec. 3990. Washington. Pierce's Code, § 2746. Wyoming.* Eev. Stats. 1899, sec. 4878. § 100. Transfer of proceedings from one county to an- other county. Petition for removal. The superior court of any county in this state in which is now pending, or in which there may be hereafter commenced, any proceeding which has for its object the guardianship of the estate of any minor or insane or incompetent person, or the guardianship of the person of any minor or insane or incompetent person, or both the guardianship of the estate and the guardianship of the person of a minor or insane or incompetent person, may make an order transferring such proceeding to the superior court of any other county in this state, in the manner herein provided; except that no such proceeding shall b« trans- ferred to the court of any county which at the time of such proceeding would not have jurisdiction to issue original letters in such matter or proceeding. To obtain an order for such removal, the guardian of the person or estate, or both, of such minor or insane or incompe- tent person, shall file in the superior court of the county where such proceeding is pending, a verified petition setting forth the following matters: 1. The name of the county to the superior court of which it is sought to remove such proceedings ; GUARDIANSHIP OF MINORS. 119 2. The name of the county or counties in which the ward resides and that in which the guardian reside [s] ; 3. The name of the county or counties in which the prop- erty of such ward is situated, and a designation of the char- acter and condition thereof; 4. The reasons for such j-emoval ; 5. The names and residences, so far as they are known to said guardian, of any relatives of such minor ward residing in said county in which said proceeding is pending ; 6. The names and residences, so far as the same are known to said guardian, of the relatives within the third degree of such insane or incompetent ward residing in said county. Upon filing such petition an order shall he made by the court or judge fixing a time for hearing said petition, which shall be not less than five days thereafter, and directing that a copy of such order be sent through the United States mail to each of said relatives of such minor or insane or incom- petent ward, named in said petition as resident in the county in which said proceeding is pending. The court may require such other or further notice of said hearing as it may deem proper. At the time fixed for the hearing of said petition any rela- tives of such ward, or any person interested in the estate of such ward, may appear and file written grounds of opposi- tion to said petition. If after hearing the evidence of the pe- titioner, and contestant if any, it shall appear to the court that it is for the best interest and advantage of said ward, or of the estate of said ward that the removal of said proceed- ing be had to the court designated in sajd petition^ or to the superior court of any other county, it shall enter an order directing the removal thereof to said court and directing the clerk to forward {ill papers on file therein to the clerk of the court to which said proceeding has been ordered removed, and thereafter the court to which said proceeding has been removed shall have jurisdiction of all proceedings therein as fully as if said proceeding has been originally begun in said court. The clerk of the court to which said proceeding is removed shall be entitled to receive a fee of six dollars on filing the papers transmitted to him, in addition to the ex- 120 PROBATE LAW AND PRACTICE. pense of such transmission, payable on receipt of the papers by him. Kerr's Cyc. Code Civ. Proc, § 1760. § 101. Perm. Petition for removal of proceeding. [Title of court.] [Title of proceeding.] \^° ' ^«P*- ^° "■ ^ ^ -^ / [Title of form.] To the Honorable the Court of the County " of The petition of respectfully shows : That the aboye-entitled proceeding, which has for its ob,iect the guardianship of ,' is now pending in the above-named court, and that your petitioner is the guardian of ;* That your petitioner desires an order removing said pro- ceeding to the court of the county of ; ^ That said ward now resides in the county of ,* and' said guardian, your petitioner, resides in the county of That the property of said ward is situated in the county of ,' and is designated and is of the' character and con- dition as follows : ; * That the reasons for such removal are ; 7 That the names and residences, so far as they are known to said guardian, of any relatives of such minor ward resid- ing in the county in which said proceeding is pending are: 11 "Wherefore petitioner prays that an order be made fixing a time for the hearing of this petition and directing notice to be given, and that, after hearing, an order be made re- moving said proceeding to the court of the county of ,^^ or such other order as may be proper. [Add ordinary verification.] - Petitioner. Explanatory notes. 1. Give file number. 2. Or, City and County.. 3, 4. The person and estate, or of the person, or of the estate, etc. 5, 6, 7, 8. Or, city and county. 9. Give description, character, and condition of the property. 10. That it is for the best interest and advantage^ of said ward, or of the estate of said ward, that said proceeding be removed as requested, for the following reasons, naming them. 11. Give names and residences of relatives of minor ward- GUARDIANSHIP OF MINORS. " 121 or, in case of an insane or incompetent ward, give the names and resi- dences of relatives, within the third degree, of such insane or in- competent ward, so far as the same are known to the guardian, residing in the county in which the proceeding is pending. 12. Or, city and county. § 102. Form. Order fixing time of hearing on petition for removal. [Title of court.] [Title of proeeedmg.] | ^^.^j^ ^^ ^ ^^^^ , guardian of the estate of ,^ having filed a peti- tion for the removal of the above-entitled proceeding to the court of the county of ,^ — • It is ordered. That the hearing on said petition be, and it is hereby, fixed for , * the day of , 19 — , at the court-room of the court in the county of ," department No. , at o'clock, — m. ; and that a copy of this order be mailed to each of the relatives of said ward named in said petition as resident in this county, to wit, and ' Dated , 19 — , Judge of the Court. Uxpranatory notes. 1. Give file number. 2. Or, guardian of the person and estate, or guardian of the person, etc. 3. Or, city and county. 4. Day of the week. 5. Or, city and county. 6. Give names of relatives as in petition; also any other or further notice as ordered. § 103. Form. Order for removal of proceeding. [Title of court.] (No. 1 Dept. No. . [Title of proceeding.] | |-^jyg ^^ ^ „^^ ^ The petition of , guardian of ,^ for an order removing the above-entitled proceeding to the -— — - court of the county of ,■' having been regularly heard by the court, after due proof made that a copy of the order fixing the time of hearing thereon had been mailed to each of the relatives of said ward as directed in said order; and it satisfactorily appearing to the court, from evidence adduced at said hearing, that it is for the best interest and advantage of said ward, ,* that the removal of said proceeding be had to the court of the county of ,° — 122 ■ PROBATE LAW AND PRACTICE. It is ordered, That the above-entitled proceeding be, and the same is hereby, removed to the court of the county of ; * and the clerk of this court is hereby directed to forward all papers on file in said proceeding to the clerk of the court of the county of ,'' to which the same is hereby removed.. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Of the person and estate, or of the estate, or of the person, etc. 3. Or, city and county. 4. Or, the estate of said ward, or said ward and his estate. 5, 6, 7. Or, city and county. § 104. When power of guardian is superseded. The power of a guardian appointed by a court is superseded: 1. By order of the court ; 2. If the appointment was made solely because of the ward's minority, by his attaining majority; 3. The guardianship over the person of the ward, by the marriage of the ward. Kerr's Cyc. Code Civ. Proc, (new section; see Kerr's Stats, and Amdts., p. 507), § 1760 [a]. POWERS AND DUTIES OF GUABDIANS. 123 CPIAPTER III. POWEES AND DUTIES OP GUAEDIANS. § 105. To pay, debts of ward out of ward's estate. § 106. Same. (New section on same subject.) § 107. Guardian to recover debts due his ward, and represent him. § 108. To manage estate, maintain ward, and to sell real estate. § 109. Form. Affidavit and order remitting clerk's fees. § 110. Form. Consent of guardian ad litem to settlement of admin- istrator's account. § 111. Maintenance, support, and education of ward. How enforced. § 112. Powers of guardians in partition. f 113. To return inventory of estate of ward. Appraisers to be ap- pointed. Like proceedings when other property is acquired. § 114. Settlements of guardians. § 115. Form. Guardian's annual account. § 116. Form. Order appointing referee of guardian's account, and adjourning settlement. § 117. Allowance of accounts of joint guardians. § 118. Expenses and compensation of guardians. § 105. To pay debts of ward out of ward's estate. Every guardian appointed under the provisions of this chapter, whether for a minor or any other person, must pay all debts due from the ward out of his personal estate &nd the income of his real estate if sufficient, if not, then out of his real estate upon obtaining an order for the sale or mortgage thereof, and dispose of the same in the manner provided in this title for the sale of real estates of decedents. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 508), § 1768. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 902, p. 330. Arizona. Eev. Stats. 1901, par. 1988. Idaho. Code Civ. Proc. 1901, sec. 4357. Kansas. Gen. Stats. 1905, § 4156. Montana. Code Civ. Proc, sec. 2980. Nevada. Comp. Laws, sec. 575. North Dakota. Eev. Codes 1905, § 8253. Oklahoma. Eev. Stats. 1903, sec. 1831. 124 PROBATE LAW AND PRACTICE. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5275. South Dakota. Probate Code 1904, § 383. Utah. Eev. Stats. 1898, see. 4008. Washington. Pierce's Code, §§ 2739, 2771. Wyoming. Rev. Stats. 1899, sec. 4898. § 106. Same. (New section on same subject.) Every guardian appointed under the provisions of this chapter, vrhether 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 sufficient ; 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 article four of this chapter. Kerr's Cyc. Code Civ. Proc. (new sec- tion; see Kerr's Stats, and Amdts., p. 508), § 1768 [a]. § 107. Guardian to recover debts due his ward, and repre- sent him. Every guardian must settle all accounts of the ward, and demand, sue for, and receive 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; and he must appear for and represent his ward in all legal suits and pro- ceedings, unless another person be appointed for that pur- pose. Kerr's Cj^c, Code Civ. Proc, § 1769. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 902, p. 330. Arizona. Eev. Stats. 1901, par. 1989. Colorado. 3 Mills's Ann. Stats., sees. 4729, 4731, 4742. Idaho.* Code Civ. Proc. 1901, see. 4358. Kansas. Gen. Stats. 1905, §§3410, 4156. Montana.* Code Civ. Proc, sec. 2981. Nevada.* Comp. Laws, sec. 577. New Mexico. Comp. Laws 1897, sees. 1449, 1450. North Dakota.* Rev. Codes 1905, § 8254. Oklahoma. Eev. Stats. 1903, sec. 1832. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5275. South Dakota.* Probate Code 1904, § 384. Utah.* Eev. Stats. 1898, sec. 4009. Washington. Pierce's Code, §§ 2736, 2767, 2770, 2771, 2828f. Wyoming.* Eev. Stats. 1899, sec. 4899. POWERS AND DUTIES OP GUARDIANS. 125 § 108. To manage estate, maintain ward, and to sell real estate. Every guardian 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 or mortgage the real estate, upon obtaining an order of the court therefor, as pro- vided, and must apply the proceeds of such sale or mortgage, as far as may be necessary, for the maintenance and support of the ward and his family, if there be any. Kerr's Cyc. Code Civ. Proc, § 1770. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 903, p. 330. Arizona. Rev. Stats. 1901, par. 1990. Idaho.* Code Civ. Proc. 1901, sec. 4359. Montana. Code Civ. Proc, sec. 2982. Nevada. Comp. Laws, see. 576. New Mexico. Comp. Laws 1897, sees. 1445, 1446, 1447, 1469, 1911, 1912, 1974. North Dakota. Eev. Codes 1905, § 8255. Oklahoma. Eev. Stats. 1903, sec. 1833. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5276. South Dakota. Probate Code 1904, § 385. Utah. Rev. Stats. 1898, sec. 4007. Washington. Pierce's Code, § 2739. Wyoming. Rev. Stats. 1899, sec. 4900. § 109. Form. Affidavit and order remitting clerk's fees. [Title of court.] (No. 1 Dept. No. . [Title of guardianship.] | ^^.^j^ ^^ ^ ^^^ -j , being first duly sworn, deposes and says: That she is the agent for the California Society for the Prevention of Cruelty to Children ; ^ that she is the petitioner in the above- entitled case ; that said minor named above is destitute, and wholly dependent upon charity for support, and has not the means wherewith to pay costs; and that your petitioner, as said agent, has no funds out of which to pay the costs. Wherefore she prays for an order of this court remitting the fees herein. 126 PROBATE LAW AND PRACTICE. Subscribed and sworn to before me this day of , 19 , Deputy County Clerk. Upon reading and filing- the foregoing affidavit, and good cause appearing to the court therefor, it is ordered that the clerk of this court remit all fees in said matter. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. -2. Or other society. § 110. Form. Consent of guardian ad litem to settle- ment of administrator's account. [Title of eourt.J ( No 1 Dept. No. . [Title of estate.] \ [Title of form.] I, , appointed by the " court of the county ' of . , state of , on the day of , 19 — , to represent the minor, — . , who is interested in the estate of , deceased, upon the allowance and settlement of the * account of the administrator ° of the estate of said deceased, rendered and presented for settlement and filed in said court on the day of , 19 — , hereby appear on behalf of said minor, ,* and consent to the allowance and approval of said account, and to the settlement thereof, as rendered and presented by said administrator.'' Dated , 19 — , Guardian ad Litem. Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, city and county. 4. State what account. 5. Or, executor. 6. Giving his name. . 7. Or, executor, etc., according to the fact. § 111. Maintenance, support, and education 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 condi- tion of life, and the same is made to appear to the satisfac- tion of the court, by proper vouchers and proofs, the guar- dian must be allowed credit therefor in his settlements. Whenever a guardian fails, neglects, or refuses to furnish suitable and necessary maintenance, support, or education for his ward, the court may order him to do so, and enforce POWERS AND DUTIES OF GUARDIANS. 127 such order by proper process. Whenever any third person, at his request, supplies a ward with such suitable and neces- sary 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. Kerr's Cyc. Code Civ. Proc, § 1771. AITAI.OGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1991. Colorado. 3 Mills's Ann. Stats., sec. 4732. Idaho.* Code Civ. Proc. 1901, see. 4360. Montana.* Code Civ. Proc., sec. 2983. North Dakota.* Eev. Codes 1905, § 8256. Oklahoma.* Eev. Stats. 1903, sec. 1834. South Dakota.* Probate Code 1904, § 386. Utah.* Eev. Stats. 1898, sec. 4013. Wyoming.* Eev. Stats. 1899, sec. 4901. § 112. Powers of guardians in partition. The guardian may join in and assent to a partition of the real oj* personal estate of the ward, wherever such assent may be given by any person; provided, that such assent can only be given after the court having jurisdiction over said estate shall grant an order conferring such authority, which order shall only be made after a hearing in open court upon the petition of the guardian after notice of at least ten days, mailed by the clerk of the court to all the known relatives of the ward residing in the county where the proceedings are pending. The guardian may also consent to a partition of the real or personal estate of his ward without action, and agree upon the share to be set ofE to such ward, and may execute a re- lease in behalf of his ward to the owners of the shares, of the parts to which they may be respectively entitled, upon ob- taining from said court having jurisdiction over said estate, authority to so consent after a hearing in open court upon the petition of the guardian after notice of at least ten days, mailed by the clerk of the court to all the known relatives of the ward residing in the county where the proceedings are pending. Kerr's Cyc. Code Civ. Proc, § 1772. 128 PROBATE LAW AND PRACTICE. ANALOGOUS AND IDENTICAL STATUTES, No identical statute found. Arizona. Eev. Stats. 1901, par. 1992. Idaho. Code Civ. Proc. 1901, sec. 4361. Montana. Code Civ. Proc, sec. 2984. Nevada. Comp. Laws, sec. 576. Oklahoma. Eev. Stats. 1903, sec. 1835. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 482. South Dakota. Probate Code 1904, § 387. Utah. Eev. Stats. 1898, sec. 4012. Washington. Pierce's Code, § 2753. Wyoming. Eev. Stats. 1899, sec. 4902. § 113. To return inventory of estate of ward. Appraisers to be appointed. Like proceedings when other property is acquired. Every guardian must return to the court a verified iuventory of the estate of his ward within three months after his appointment. He must annually thereafter, and at such other times as directed by the court, render a verified account of the estate of his ward. All the estate of the ward described in the first inventory must be appraised by ap- praisers appointed, sworn, and acting in the manner provided for regulating the settlement of the estates of decedents. Such inventory, with the appraisement of the property therein described, must be recorded by the clerk of the court in a proper book kept in his affice 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 appraise- ment thereof as are herein provided in relation to the first inventory and return. Kerr's Cyc. Code Civ, Proc. (Kerr's Stats, and Amdts., p. 508), § 1773. ANALOGOUS AND IDENTICAL STATUTES, No identical statute found. Alaska. Carter's Code, sec. 904, p. 331. Arizona. Eev. Stats. 1901, par. 1993. Colorado. 3 Mills's Ann. Stats., sees. 4737, 4738, 4796, 4812, 4815n. Idaho. Code Civ. Proc. 1901, see. 4362. Kansas. Gen. Stats. 1905, §§ 3080, 3408, 4155. Montana. Code Civ. Proc, sec. 2985. POWERS AND DUTIES OF GUARDIANS. 129 Nevada. Comp. Laws, sec. 578. New Mexico. Comp. Laws 1897, sees. 1455, 1910. North Dakota. Eev. Codes 1905, § 8257. Oklahoma. Eev. Stats. 1903, see. 1836. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5277. South Dakota. Probate Code 1904, § 388. Utah. Rev. Stats. 1898, sees. 4010, 4011. Washington. Pierce's Code, §§ 2739, 2768, 2769. Wyoming. Eev. Stats. 1899, sec. 4903. § 114. Settlements of guardians. The guardian must upon the expiration of a year from the time of his appoint- ment and as often thereafter as he may be required, present his account to the court for settlement and allowance, pro- vided that no final account of the guardian of any insane person, who is or has been during such guardianship con- fined in a state hospital in this state, shall be settled or allowed unless notice of the settlement of said account shall have been first given to the secretary of the state commission in lunacy. Kerr's Cyc. Code Civ. Proc. (new section; see Kerr's Stats, and Amdts., p. 509), § 1774[a]. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stata. 1901, par. 1994. Colorado. 3 Mills's Ann. Stats., sees. 4796, 4806. Idaho. Code Civ. Proc. 1901, sec. 4363. Kansas. Gen. Stats. 1905, §§ 3419, 4170. Montana. Code Civ. Proc., sec. 2986. Nevada. Comp. Laws, sec. 578. New Mexico. Comp. Laws 1897, sees. 1456, 1471, 1919. North Dakota. Eev. Codes 1905, § 8258. Oklahoma. Eev. Stats. 1903, sec. 1837. South Dakota. Probate Code 1904, § 389. Utah. Eev. Stats. 1898, sees. 4010, 4011. Washington. Pierce's Code, §§2738, 2739, 2777. Wyoming. Eev. Stats. 1899, sec. 4904. § 115. Form. Guardian's annual account. [Title of court.] (No. 1 Dept. No. . [Title of matter.] | l-^i^j^ ^^ ^ ^^^^ I, , general guardian of , an infant, do hereby make, render, and file the following, account, and respect- fully represent: Probate — 9 130 PEOBATB LAW AND PRACTICE. That I was, on the day of , 19 — , duly ap- pointed by the court of the county ^ of , state of , the general guardian of the person and estate of , a minor, having no guardian legally appointed by will or deed, and who is an inhabitant * of the said county * of • , state of ; ^ That within three months after my said appointment as guardian of the person and estate of said , a minor, I returned to this honorable court a verified inventory of the estate of my said ward; That Schedule A, hereinafter set forth, hereby referred to, signed by me, and hereby made a part of this, my first annual account, contains 9, full and true statement of all of the property of said ward now remaining in my hands ; That Schedule B, hereinafter set forth, hereby referred to, signed by me, and hereby made a part of this, my first annual account, contains a full and true statement of the manner in which I have disposed of the property of said ward not now remaining in my hands ; That Schedule C, hereinafter set forth, hereby referred to, signed by me, and hereby made a part of this, my first annual account, contains a full and true statement of the amount and nature of each investment of money made by me, and of the manner in which the fund is at present invested ; That Schedule D, hereinafter set forth, hereby referred to, signed by me, and hereby made a part of this, my first annual account, contains a full and true account, in the form of debtor and creditor, of all my receipts and disbursements of money by reason of said guardianship, since , the date of my appointment as such guardian, and distinctly states the amount of the balance remaining in my hands, to be charged to me in the next year's account, as the sum of dollars ($ ). Dated , 19 — Eespectfully submitted. , Guardian of the Person and Estate of , a Minor. Schedule A. [Give statement of property remaining on hand; as, "I now have on hand," etc."] POWERS AND DUTIES OP GUARDIANS. 131 Schedule B. [State maimer in which property not on hand was dis- posed of.] Schedule C. [State amount and nature of investments made.] Schedule D. , Guardian of the Person and Estate of , a Minor. To- Cr. By Balance on hand Verification. State of , 1 Countv ' of , ( , being duly sworn, says that the foregoing account by mm suDscribea is true, of his own knowledge, except as to those matters therein stated to be on information, and as to those matters he believes it to be true. Subscribed and sworn to before me this day of , 19 , Notary Public* Note. A guardian has it in his power to receive payment of all demands of his ward, and to make an effectual sale or other disposi- tion of many kinds of personal property. The account should there- fore consist of a charge of the whole amount of the personal estate, the same as if it were cash, with credit for the expenditures and losses only, and with a statement of the balance on hand, including both cash and personal property. The report should then show how the money is invested and of what the property consists. Explanatory notes. 1. Give file number. 2. Or, city and county. 3. Or, resident. 4. Or, city and county. 5. Or, who resides without the state, and has estate within the said county, or city and county. 6. Give description. 7. Or, city and county. 8. Or, other officer taking oath. 132 PROBATE LAW AND PRACTICE, § 116. Form. Order appointing referee of guardian's account, and adjourning settlement. [Title of court.] [Title of guardianship.] j^°- — ^^ ^^1'^ -, the guardian of the person and estate of , a minor, having rendered his account for settlement, and notice of such settlement having been duly given as directed by this court, — It is hereby ordered. That , Esq., be, and he is hereby, appointed a referee to examine the said account and to make report thereon to this court within days,^ and that the settlement of said account be adjourned until ,^ the day of , 19 — , at o'clock, in the forenoon ' of said day. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Title of court. 2. State the number of days. 3; Day of week. 4. Or, afternoon. § 117. Allowance of accounts of joint guardians. When an account is rendered by tT^o or more joint guardians, the court may, in its discretion, allow the same upon the oath of any of them. Kerr's Cyc. Code Civ. Proc, § 1775. ANALOGOUS AND IDENTICAI. STATUTES. The * indicates identity. Alaska.* Carter's Code, see. 916, p. 332. Arizona.* Eev. Stats. 1901, par. 1995. Idaho.* Code Civ. Proc. 1901, see. 4364. Montana.* Code Civ. Proc, sec. 2987. Nevada.* Comp. Laws, sec. 604. North Dakota.* Rev. Codes 1905, § 8259. Oklahoma.* Eev. Stats. 1903, sec. 1838. Oregon.* Bellinger and Cotton's Ann. Codes and Stats., § 5289. South Dakota.* Probate Code 1904, § 390. Wyoming.* Rev. Stats. 1899, sec. 4905. § 118. Expenses and compensation of guardians. Every guardian must be allowed the amount of his reasonable ex- penses incurred in the execution of his trust, and he must also have such compensation for his services as the court in which his accounts are settled deems just and reasonable. POWERS AND DUTIES OF GUARDIANS. 133 He must also be allowed all reasonable and proper disburse- ments, made after the legal termination of the guardianship, but while that relation, by consent or acquiescence of the parties, still subsists in fact, and before the discharge of the guardian by the court, and which were made by the consent, express or implied, of the ward, and for his benefit or the benefit of his estate. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 509), § 1776. ANALOGOUS AND IBENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 915, p. 332. Arizona. Rev. Stats. 1901, par. 1996. Colorado. 3 Mills's Ann. Stats., sec. 4809. Idaio. Code Civ. Proc. 1901, sec. 4365. Kansas. Gen. Stats. 1905, §3424. Montana. Code Civ. Proc, sec. 2988. Nevada. Comp. Laws, see. 601. New Mexico. Comp. Laws 1897, sec. 19Sl. North Dakota. Eev. Codes 1905, § 8260. Oklahoma. Eev. Stats. 1903, sec. 1839. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5288. South Dakota. Probate Code 1904, § 391. Utah. Eev. Stats. 1898, sec. 4014. Washington. Pierce's Code, § 2754. Wyoming. Eev. Stats. 1899, sec. 4906. 134 PROBATE LAW AND PKACTICE. CHAPTER IV. SALE OF PEOPERTY AND DISPOSITION OF PEOOEBDS. § 119. May sell property in certain cases. § 120. Sale of real estate to be made upon order of court. § 121. Application of proceeds of sales. § 122. Investment of proceeds of sales. § 123. Order for sale, how obtained. § 124. Form. Petition of guardian for order of sale. § 125. Form. Verification of guardian's petition for order of sale. § 126. Notice to next of kin, how given. § 127. Form. Order to show cause why application for leave to sell real estate should not be granted. § 128. Form. Order for sale of property by guardian. § 129. Form. ' Notice of guardian's sale of real estate (at public auction). § 130. Form. Notice of guardian's sale of real estate (at private sale). § 131. Copy of order to be served, published, or consent filed. § 132. Hearing of application. § 133. Who may be examined on such hearing. § 134. Costs to be awarded to whom, i 135. Order of sale to specify what. § 136. Bond before selling. § 13T. Form. Bond of guardian on sale of real estate. § 138. Form. Justification of sureties on guardian's bond for sale of real property. § 139. Proceedings to conform with what title. § 140. Limit of order of sale. § 141. Conditions of sales of real estate of minor heirs. Bond and mortgage to be given for deferred payments. { 142. Court may order investment of money of ward. § 119. May sell property in certain cases. When the in- come of an estate under guardianship is insufficient to maintain the ward and his family, or to maintain and edu- cate the ward when a minor, his guardian may seU his real or personal estate, or mortgage the real estate for that pur- pose, upon obtaining an order therefor. Kerr's Cyc. Code Civ. Proc, § 1777. SALE OP PROPERTY AND DISPOSITION OP PROCEEDS. 135 ANALOGOUS AND IDENTICAIi STATUTES. No identical statute found. Alaska. Carter's Code, sec. 918, p. 333. Arizona. Eev. Stats. 1901, par. 1997. Colorado. 3 Mills's Ann. Stats., sees. 4749, 4795. Idaho. Code Civ. Proc. 1901, sec. 4366. Kansas. Gen. Stats. 1905, §§3426, 4157, 4158. Montana. Code Civ. Proe., sec. 3000. Nevada. Comp. Laws, sec. 579. New Mexico. Comp. Laws 1897, sec. 1932. North Dakota. Eev. Codes 1905, § 8261. Oklahoma. Eev. Stats. 1903, sec. 1840. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5592. South Dakota. Probate Code 1904, § 392. Utah. Eev. Stats. 1898, see. 4015. Washington. Pierce's Code, §§ 2747, 2772. Wyoming. Eev. Stats. 1899., sec. 4907. § 120. Sale of real estate to be made upon order of court. When it appears to the satisfaction of the court, upon the petition of the guardian, that for the benefit 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 pro- ductive 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. Kerr's Cyc. Code Civ. Proc, § 1778. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 919, p. 333. Arizona.* Eev. Stats. 1901, par. 1998. Colorado. 3 Mills's Ann. Stats., sec. 4750. Idaho.* Code Civ. Proe. 1901, sec. 4367. Montana. Code Civ. Proc, sec. 3001. Nevada. Comp. Laws, sec. 580. New Mexico. Comp. Laws 1897, sec. 1933. North Dakota.* Eev. Codes 1905, § 8262. Oklahoma.* Eev. Stats. 1903, sec. 1841. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5593. South Dakota.* Probate Code 1904, § 393. Washingon. Pierce's Code, §§ 2747, 2773. Wyoming.* Eev. Stats. 1899, sec. 4908. § 121. Application of proceeds of sales. If the estate is sold for the purposes mentioned in this article, the guardian 136 PROBATE LAW AND PEACTICE. must apply the proceeds of the sale to such purposes, 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 maintenance 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. Kerr's Cyc, Code Civ. Proc, § 1779. AITAI.OGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 920, p. 333. Arizona.* Eev. Stats. 1901, par. 1999. Idaho.* Code Civ. Proe. 1901, sec. 4368. Montana.* Code Civ. Proc, see. 3002. Nevada. Comp. Laws, sec. 581. New Mexico. Comp. Laws 1897, sec. 1469. North Dakota.* Eev. Codes 1905, § 8263. Oklahoma.* Eev. Stats. 1903, sec. 1842. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5594. South Dakota.* Probate Code 1904, § 394. Utah.* Eev. Stats. 1898, sec. 4016. Wyoming.* Eev. Stats. 1899, sec. 4909. § 122. 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 according to his best judgment, or in pursuance of any order that may be made by the court. Kerr's Cyc. Code Civ. Proc, § 1780. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska.* Carter's Code, see. 921, p. 334. Arizona.* Eev. Stats. 1901, par. 2000. Colorado. 3 Mills's Ann. Stats., sec. 4728. Idaho.* Code Civ. Proc. 1901, sec. 4369. Montana.* Code Civ. Proc, sec. 3003. Nevada. Comp. Laws, sec. 582. New Mexico. Comp. Laws 1897, sec. 1469. North Dakota.* Eev. Codes 1905, § 8264. Oklahoma.* Eev. Stats. 1903, sec. 1843. Oregon.* Bellinger and Cotton's Ann. Codes and Stats., § 5595. South Dakota.* Probate Code 1904, § 395. Utah.* Eev. Stats. 1898, sec. 4017. Wyoming. Eev. Stats. 1899, sec. 4910. SALE OP PROPERTY AND DISPOSITION OF PROCEEDS. 137 § 123. 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, set- ting 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. Kerr's Cyc. Code Civ, Proc, § 1781. ANAIiOaOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska.* Carter's Code, see. 923, p. 334. Arizona.* Eev. Stats. 1901, par. 2001. Colorado. 3 Mills's Ann. Stats., sec. 4751. Idaho.* Code Civ. Proc. 1901, sec. 4370. Kansas. Gen. Stats. 1905, §§3411, 4159. Montana.* Code Civ. Proc, see. 3004. Nevada. Comp. Laws, sec. 583. New Mexico. Comp. Laws 1897, sec. 1933; and sec. 2052, aa amended Laws 1903, sec. 2, p. 9. North Dakota. Eev. Codes 1905, § 8265. Oklahoma.* Eev. Stats. 1903, sec. 1844. Oregon.* Bellinger and Cotton's Ann. Codes and Stats., § 5597. South Dakota.* Probate Code 1094, § 396. Washington. Pierce's Code, § 2748. Wyoming.* Eev. Stats. 1899, sec. 4911. § 124. Form. Petition of guardian for order of sale. [Title of court.] [Title of estate and guardianship.] (Department No ( [Title of form.] To the Honorable the ^ Court of the County ^ of , State of The petition of , the guardian of the person and estate of , a minor, respectfully shows : That on the day of , 19 — , letters of guardian- ship were issued to your petitioner by this court; that your petitioner thereupon duly entered upon the discharge of his duties as such guardian ; and that such letters have not been revoked ; That within three months after his appointment, to wit, on the day of , 19 — , , your petitioner, duly returned to this court a true inventory, and an appraisement 138 PROBATE LAW AND PEACTICE. of all of the estate, real and personal, of his said ward that has come to his possession or knowledge ; That it is necessary ^ that all of the property of said ward, both real and personal, shall be sold; That Schedule A, hereunto annexed, and made a part of this petition, contains a description of the real and personal estate of said ward, and sets forth the condition of such estate ; That the facts and circumstances upon which this petition is founded) and which render a sale of the said property necessary, are fully set forth in Schedule B, hereunto an- nexed, and made a part of this petition. Wherefore your petitioner prays that this honorable court make an order directing the next of kin of the said ward, and aU persons interested in the said estate, to appear before this . court.at a time and place therein specified, not less than 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 sale of such estate; and that upon such hearing this honorable court may order said real estate to be sold, and that such other or further order may be made as is meet in the premises. Dated , 19 , Guardian of the Person and Estate of , a Minor. Schedule A. [Describe the estate of the ward, and set forth its con- dition.] r^ , , , ^ ■■ Schedule B. [State the facts and circumstances upon which the petition is founded, and which show that a sale of' the ward's prop- erty is necessary.] , Attorney for Guardian. [Add ordinary verification.] Schedule A. Give description of real property. Give description of personal property. Schedule B. Set forth condition of ward's estate, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale. Explanatory notes. 1. Title of court. 2. Or, City and County. 3. Or, expedient, as the case may be. SALE OF PROPERTY AND DISPOSITION OF PROCEEDS. 139 § 125. Form. Verification of in^ardian's petition for order of sale. [Title of court.] [Title of estate aiid guardianship.] C Department No. s r J I |-,pjyg p^ form.] State of , County ^ of . ' ®®- , the petitioner above named, being duly sworn, says that he has read the foregoing petition, and knows the con- tents thereof, and that the same is true, of his own knowl- edge, except as to the matters which are therein stated on his information or belief, and that as to those matters he believes it to be true. Subscribed and sworn to before me this day of , 2 19 , Notary Public, etc, Explanatory notes. 1. Or, City and County. 2. Or other officer taking the oath. § 126. 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 than 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 sale 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. Kerr's Oyc. Code Civ. Proc, § 1782. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 924, p. 334. Arizona.* Eev. Stats. 1901, par. 2002. Colorado. 3 Mills's Ann. Stats., sec. 4752. Idaho.* Code Civ. Proc. 1901, see. 4371. Kansas. Gen. Stats. 1905, §§ 3411, 4159. Montana.* Code Civ. Proc, sec. 3005. 140 PROBATE LAW AND PRACTICE. Nevada. Comp. Laws, sees. 583, 584. New Mexico. Comp. Laws 1897, see. 1933. North Dakota. Eev. Codes 1905, § 8266. Oklahoma.* Eev. Stats. 1903, sec. 1845. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5598. South Dakota.* Probate Code 1904, § 397. Washington. Pierce's Code, § 2749. Wyoming.* Eev. Stats. 1899, sec. 4912. § 127. Form. Order to show cause why application for leave to sell real estate should not be granted. [Title of court.] [Title of guardianship.] \ ' ~~" , ,\' ' ' I- ^ ^ J I [Title of form.] , the guardian of the persons and estates ^ of and , minors, having this day presented to this court, and filed herein, his petition, duly verified, praying for an order of sale of certain real property belonging to the said minors, for the causes and reasons therein set forth ; and it appearing to this court from the said petition that it is neces- sary, and would be beneficial to the said minors, that the said real estate described in said petition or some part of it shall be sold, — It is hereby ordered, That the next of liin of said minors, and all persons interested in their said estates, appear before this court, in the court-room thereof,^ in the County * of , state of , on ,° the day of , 19 — , at o'clock in the forenoon ® of said day, to show cause why an order should not be granted for the sale of such estate, as prayed for in said petition, reference to which ia hereby made for further particulars. And it is hereby further ordered, That a copy of this order be published at least once a week for three successive weeks' in a newspaper printed and published in said county ^ of , state of Dated , 19 — , Judge. Explanatory notes. 1. Give file number. 2. Or according to the fact. 3. State location of court-room. 4. Or, city and county. 5. Day of week. 6. Or, afternoon. 7. Or as prescribed by statute. 8. Or, city and county. SAI^ OP PROPERTY AND DISPOSITION OF PROCEEDS. 141 § 128. Form. Order for sale of property by guardian. [Title of court.] [Title of estate.] P° ^ ^^P*- ^° • \ [Title of form.] Now comes , the guardian of said , a minor, by Mr. , his attorney, and presents his petition for authority to sell certain property of said minor; and said guardian, by his attorney, having proved to the satisfaction of the court that due publication of the order to show cause herein has been duly made as required by law and by the order of the court,'' the court proceeds to the hearing of said petition, and, after hearing the evidence and proofs offered, the court finds that a sale of all of the interest of the said ward in the property hereinafter described is necessary,' — It is therefore ordered by the court, That said , as guardian of said , be, and he is hereby, authorized to sell at private * sale, in the manner and form prescribed by law, and after notice in form and manner as required by law," and upon the following terms, to wit, ,° all of the interest of the said ward in the property hereinafter de- scribed; and that before making said sale, said guardian give a bond, in the form required by law, in the penal sum of dollars ($ ). The real estate hereby authorized to be sold is described as follows, to wit: '' , County Clerk. Entered , 19 — By , Deputy." Explanatory notes. 1. Give file number. 2. Or, that all persons interested in said real estate, and the next of kin of said ward, have subscribed and filed their written consent to the making of the order applied for herein. If the matter has been continued, say here: " and the hearing having been regularly postponed to this day." 3. " Because," stating the reasons; or, " will be beneficial to the said ward, for the reason that," stating the reasons. 4. Or, public. 5. And on a day not less than eight days (or as otherwise prescribed) from the first publication of the notice. 6. State the terms. 7. Describe the land. 8. See note § 77, ante. 142 PROBATE LAW AND PEACTICE. § 129. Form. Notice of guardian's sale of real estate (at public auction). ^„.^, . ^ , ^ ' [Title of court.] (No 1 Dept. No. . rm-i, ^ :,• t.- 1 (No 1 Dept. No. . [Title of guardianship.] j ^^.^^^ ottorm.] Notice is hereby given, That, in pursuance of an order of the ^ court of the county ^ of , state of , made on the day of , 19 — , in the above-entitled matter, the undersigned, , the guardian of the estate of , a minor, will sell at public auction, in one parcel, to the highest bidder, for cash, and subject to confirmation by said * court, on ," the day of , 19 — , at the hour of o'clock, noon,' in front of ,' county ' of , all the right, title, interest, and estate of the said , a minor, in and to an undivided one twenty-first of that certain lot, piece, or parcel of land situate, lying, and being in the county ° of , state of , and particularly de- scribed as follows, to wit : - — — .^'' Subject, however, to a life estate therein for the life of Terms and conditions of sale: Cash, in gold coin of the United States. Ten (10) per cent of the purchase-money to be paid on the day of the sale, and the balance on confirma- tion of sale by said ^^ court. Deed and abstract at ex- pense of purchaser. , Guardian of the Estate of , a Minor. , Attorney for Guardian.^^ Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, city and county. 4. Title of court. 5. Day of week. 6. Or as the case may be. A sale at public auction must be made between the hours of nine o'clock in the morning and the setting of the sun on the same day: Kerr's Cal. Cyc. Code Civ. Proc, § 1548. 7. Court-house or other place. 8, 9. Or, city and county. 10. Describe the land. 11. Title of court. 12. Give address. § 130. Form. Notice of guardian's sale of real estate (at private sale). ^^.^^^ ^^ ^^^^^^ [Title of guardianship.] \^° ' ^^pt. No \ [Title of form.] Notice is hereby given, That, in pursuance of an order of the court ' of the county = of , state of , duly SALE OF PROPERTY AND DISPOSITION OF PROCEEDS. 143 given and made on the day of , 19 — , in the above- entitled estate, , guardian of the person and estate of , a minor, will seU, on or after , the day of , 19 — , in the county* of , state of , to the highest and best bidder, and upon the terms and conditions hereinafter mentioned, at private sale, subject to confirma- tion by said ' court, the following described real prop- erty belonging to the estate of said minor, ° Terms and conditions of sale : Cash, in United States gold coin, upon delivery of the deed of said guardian, and after confirmation of sale by said ^ court ; deed at expense of purchaser.* Bids and offers must be in writing, and may be left at the office of Messrs. ,* attorneys for said guardian, or may be delivered to said guardian personally, or may be filed with the clerk of said ^° court, at any time after the first publication of this notice and before the making of said sale. Dated , 19 — , Guardian of the Person and Estate of , a Minor. and ,^^ Attorneys for Guardian. Explanatory notes. 1. Give file number. 2. Title of court. 3, 4. Or, city and county. 5. Title of court. 6. Give description. 7. Title of court. 8. Or, ten (10) per cent of the purchase price or purchase- money to be paid in cash, gold coin of the United States, at the time of sale; balance on confirmation of sale, in cash, or in deferred pay- ments, to be evidenced by the promissory note or notes of purchaser or purchasers, secured by a mortgage or mortgages on the real estate sold, with such additional security as the court shall deem necessary and sufficient to secure the prompt payment of the amounts so deferred and the interest thereon. Deeds and abstracts at the expense of pur- chasers; the purchasers to assume the payment of, and take the property purchased subject to, all state and county taxes, and all assessments, charges, and encumbrances, of whatsoever name or nature, which are now or may hereafter become chargeable to or a lien against the property so to be purchased. Or, the terms of said sale will be cash, gold coin of the United States of America, and the entire amount of such bid or offer must be paid at the time of sub- mitting or delivering said written bid. Or, cash in United States gold coin; ten (10) per cent of the purchase price payable at the time of sale, and balance on confirmation of sale by said court and.' 144 PROBATE LAW AND PRACTICE. delivery of deed; and taxes for the current fiscal year to be prorated. Or as the case may be. 9. Give address. 10. Title of court. 11. Give address. § 131. Copy of order to be served, published, or consent filed. 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 peti- tion, or must be published at least once a week for three suc- cessive 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. Kerr's Cyc. Code Civ. Proc, § 1783. ANAI.OGOUS AND IDENTICAIi STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 925, p. 334. Arizona. Rev. Stats. 1901, par. 2003. Colorado. 3 Mills's Ann. Stats., sees. 4753, 4757. Idaho. Code Civ. Proc. 1901, sec. 4372. Kansas. Gen. Stats. 1905, §§ 3411, 4159. Montana.* Code Civ. Proc, sec. 3006. Nevada. Comp. Laws, sec. 584. New Mexico. Comp. Laws 1897, sec. 1933. Oklahoma. Bev. Stats. 1903, sec. 1846. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5599. South Dakota. Probate Code 1904, § 398. Washington. Pierce's Code, § 2749. Wyoming. Eev. Stats. 1899, sec. 4913. § 132. 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 service or publica- tion 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. Kerr's Cyc. Code Civ, Proc, § 1784. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Bev. Stats. 1901, par. 2004. Colorado. 3 Mills's Ann. Stats., sec. 4758. Idaho.* Code Civ. Proc. 1901, sec. 4373. SALE OP PROPERTY AND DISPOSITION OP PROCEEDS. 145 Montana* Code Civ. Proc, sec. 3007. Nevada. Comp. Laws, sec. 585. New Mexico. Comp. Laws 1897, sec. 1934. North Dakota. Rev. Codes 1905, § 8267. Oklahoma.* Eev. Stats. 1903, see. 1847. South Dakota.* Probate Code 1904, § 399. Wyoming. Rev. Stats. 1899, sec. 4914. § 133. Who may be examined on such hearing. On the hearing, the guardian may be examined on oath, and wit- nesses may be produced and examined by either party, and process to compel their attendance, and testimony may be issued by the court, in the same manner and with like effect as in other cases provided for in this title. Kerr's Cyc. Code Civ. Proc, § 1785. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 2005. Idaho.* Code Civ. Proe. 1901, sec. 4374, Montana.* Code Civ. Proc, see. 3008. Nevada. Comp. Laws, sec. 586. North Dakota. Eev. Codes 1905, § 8268. Oklahoma. Eev. Stats. 1903, sec. 1848. South Dakota. Probate Code 1904, § 400. Wyoming.* Eev. Stats. 1899, sec. 4915, § 134. Costs to be awarded to whom. If any person ap- pears and objects to the granting of any order prayed for under the provisions of this article, and it appears to the court that either the petition or the objection thereto is sus- tained, the court may, in granting or refusing the order, award costs to the party prevailing, and enforce the pay^ ment thereof. Kerr's Cyc. Code Civ. Proc, § 1786. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 935, p. 335. Arizona.* Eev. Stats. 1901, par. 2006. Idaho.* Code Civ. Proe. 1901, sec. 4375. Montana.^ Code Civ. Proc, sec. 3009. Nevada. Comp. Laws, see. 587. Oklahoma.* Eev. Stats. 1903, sec. 1849. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5609. South Dakota.* Probate Code 1904, § 401. ■JVyoming.* Eev. Stats. 1899, see. 4916. Probate — 10 146 PEOBATE LAW AND PKACTICE. § 135. Order of sale to specify what. If, after a full ex- amination, 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, specifying 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 sale. Kerr's Oyc. Code Civ. Proc, 1 1787. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Bev. Stats. 1901, par. 2007. Colorado. 3 Mills's Ann. Stats., sees. 4759, 4760, 4763. Idaho.* Code Civ. Proe. 1901, see. 4376. Kansas. Gen' Stats. 1905, §§4160, 4161. Montana.* Code Civ. Proc, sec. 3010,* Nevada. Comp. Laws, see. 588. New Mexico. Comp. Laws 1897, sees. 1913, 1934; and see. 2053, as amended Laws 1903, sec. 3, p. 9. North Dakota.* Kev. Codes 1905, § 8269. Oklahoma.* Rev. Stats. 1903, sec. 1850. South Dakota.* Probate Code 1904, § 402. Washington. Pierce's Code, §§ 2603, 2749, 2774. Wyoming.* Eev. Stats. 1899, see. 4917. § 136. Bond before selling. Every guardian 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 man- ner, and to account for the proceeds of the sale as provided for in this chapter and chapter seven of this title. Kerr's Oyc. Oode Oiv. Proc, § 1788. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 927, p. 334. Arizona. Bev. Stats. 1901, par. 2008. Colorado. 3 Mills's Ann. Stats., see. 4759. Idaho.* Code Civ. Proc. 1901, sec. 4377. Kansas. Gen. Stats. 1905, §§ 3414, 4153. Montana.* Code Civ. Proc., sec. 3011. Nevada. Comp. Laws, sec. 589. New Mexico. Comp. Laws 1897, sec. 1915; sec. 2053, as amended Laws 1903, sec. 3, p. 9; and sec. 2054. SALE OF PROPERTY AND DISPOSITION OP PROCEEDS. 147 North Dakota. Eev. Codes 1905, §§ 8050, 8270. Oklahoma. Eev. Stats. 1903; sec. 1851. South Dakota. Probate Code 1904, § 403. Utah. Eev. Stats. 1898, see. 399]. Washington. Pwrce's Code, §§2744, 2749. Wyoming. Eev. Stats. 1899, sec. 4918. § 137. Form. Bond of guardian on sale of real estate. [Title of court.] ,„. , „ , (No 1 Dept. No. [Title of estate.] | ^^.^-^^ ^^ ^^^^ Know all men by these presents : That we, as princi- pal, and and as sureties, are held and firmly bound to said , a minor, in the sum of dollars ($ ), lawful money of the United States of America, to be paid to the said , for which payment well and truly to be made we biud ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. The condition of the above obligation is such, that, whereas an order was made on the day of , 19 — , by the ^ court of the county * of , state of , authorizing the above-named principal, as guardian of the estate of , to sell certain real estate of said ward, and bond in the sum above named was ordered to be given before the sale, — Now, therefore, if the said , as such guardian, shall sell the said real estate in the manner prescribed by law for" sales of real estate by executors and administrators, and shall account for and dispose of the proceeds of the sale in the manner provided by law, then this obligation to be void; otherwise to remain in full force and effect. Dated, signed, and sealed with our seals, this day of , 19 [Seal] [Seal] [Seal] Explanatory notes. 1. Give file number. 2. Title of court. 8. Or, city and county. 148 PROBATE LAW AND PRACTICE. § 138. Form. Justification of sureties on guardian's bond for sale of real property. [Title of court.] [Title of estate and guardianship.] ) ' ~r,, ^\' ' ~~~^ '■ * ( [Title of form.] 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 householder " 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 day of ■ 19 — , Notary Public, etc.* Explanatory notes. 1. Give file number. 2. Or, City and County. 3. Or, freeholder. 4. Or other officer taking the oath. § 139. Proceedings to conform with what title. All the proceedings under petition of guardians for sales of prop- erty 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, ordering and making conveyances of property sold, account- ing 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. Kerr's Oyc. Code Civ. Proc, § 1789. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 905, p. 331, sec. 929, p. 335. Arizona.* Eev. Stats. 1901, par. 2009. Colorado. 3 Mills's Ann. Stats., sees. 4760, 4763, 4764, 4766, 4767. Idaho.* Code Civ. Proc. 1901, sec. 4378. Kansas. Gen. Stats. 1905, §§ 3416, 3417, 4162, 4163, 4164, 4168. SALK OF PROPERTY AND DISPOSITION OP PROCEEDS. 149 Montana.* Code Civ. Proc, sec. 3012. Nevada. Comp. Laws, sec. 605. New Mexico. Comp. Laws 1897, sees. 1913, 1915. North Dakota.* Eev. Codes 1905, § 8271. Oklahoma.* Rev. Stats. 1903, sec. 1852. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§5278, 5601, 5603. South Dakota.* Probate Code 1904, § 404. Utah. Eev. Sta.ts. 1898, sec. 4015. Washington. Pierce's Code, §§2749, 2750, 2751, 2752, 2774, 2775, 2776. Wyoming.* Eev. Stats. 1899, sec. 4919. § 140, 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. Kerr's Oyc. Code Civ. Proc, § 1790. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 930, p. 335. Arizona.* Eev. Stats. 1901, par. 2010. Idaho.* Code Civ. Proc. 1901, sec. 4379. Kansas. Gen. Stats. 1905, § 3417. Montana.* Code Civ. Proc, sec. 3013. North Dakota.* Rev. Codes 1905, § 8272. Oklahoma.* Eev. Stats. 1903, sec. 1853. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5604. South Dakota.* Probate Code 1904, § 405. Wyoming. Rev. Stats. 1899, sec. 4920. § 141. Conditions of sales of real estate of minor heirs. Bond and mortgage to be given for deferred payments. All sales 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 payments, notes, and a mortgage on the real estate sold, with such additional security as the court deems necessary and sufficient to secure the prompt payment of the amounts so deferred, and the interest thereon. Kerr's Cyc. Code Civ. Proc, § 1791. 150 PROBATE LAW AND PRACTICE. ANAI.OGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona. Eev. Stats. 1901, par. 2011. Colorado. 3 Mills's Ann. Stats., see. 4760. Idaho. Code Civ. Proe. 1901, sec. 4380. Kansas. Gen. Stats. 1905, § 3417. Montana.* Code Civ. Proc, sec. 3014. North Dakota. Eev. Codes 1905, § 8273. Oklahoma.* Eev. Stats. 1903, sec. 1854. South Dakota. Probate Code 1904, § 406. Washington. Pierce's Code, §§2606, 2774. Wyoming.* Kev. Stats. 1899, sec. 4921. § 142. Court may order investment of money of 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 man- agement, investment, and disposition of the estate and effects as circumstances require. Kerr's Cyc. Code Civ. Proc, § 1792. ANAI.OGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 905, p. 331. Arizona.* Eev. Stats. 1901, par. 2012. Colorado. 3 Mills's Ann. Stats., sec. 4728. Idaho.* Code Civ. Proc. 1901, see. 4381. Kansas. Gen. Stats. 1905, § 3410. Montana.* Code Civ. Proc, see. 3015. Nevada. Comp. Laws, sec. 590. New Mexico. Comp. Laws 1897, sees. 1453, 1916. North Dakota.* Eev. Codes 1905, § 8274. Oklahoma.* Eev. Stats. 1903, see. 1855. Oregon. Bellinger and Cotton's Ann. Codes and Stats., S 5278. South Dakota.* Probate Code 1904, § 407. Utah.* Eev. Stats. 1898, see. 4018. Washington. Pierce's Code, § 2742. Wyoming.* Eev. Stats. 1899, see. 4922. NON-RESIDENT GUAKDIANS AND WARDS. 151 CHAPTER V. KON-EESIDENT GUARDIANS AND WARDS. § 143. Guardians Xif non-resident persons. § 144. Powers and duties of guardians appointed. § 145. Such guardians to give bonds. § 146. To what guardianship shall extend. § 147. Removal of non-resident ward's property. § 148. Proceedings on such removal. § 149. Discharge of person in possession. § 143. Guardians of non-resident persons. The superior court may appoint a guardian of the person and estate, or either, of a minor, insane or incompetent person, who has no guardian within the state, legally appointed by will, deed or otherwise, and who resides without the state, and has estate within the county [,] or, who, though not having such estate, is within the county, upon petition of any friend of such per- son or any one interested in his estate, in expectancy or otherwise. Before making such appointment, the court must cause notice to be given to all persons interested, in such manner as such court deems reasonable. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 509), § 1793. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 911, p. 332. Arizona. Eev. Stats. 1901, par. 2018. Colorado. 3 Mills's Ann. Stats., sees. 4702, 4703, 4706. Idaho. Code Civ. Proc. 1901, sec. 4382. Montana. Code Civ. Proc, sec. 3030. Nevada. Comp. Laws, sec. 597. North Dakota. Kev. Codes 1905, § 8275. Oklahoma. Eev. Stats. 1903, sec. 1856. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5284. South Dakota. Probate Qode 1904, S 412. Washington. Pierce's Code, §§ 2788, 2789. Wyoming. Eev. Stats. 1899, sec. 4923. § 144. Powers and duties of guardians appointed. Every guardian, appointed under the preceding section, has the 152 PBOBATB LAW AND PRACTICE. 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 guaridan appointed under this chapter. Kerr's Cyc. Code Civ. Proc, § 1794. ANAI.OGOUS AND IDENTICAIi STATUTES. The * indicates identity. Alaska.* Carter's Code, see. 912, p. 332. Arizona.* Rev. Stats. 1901, par. 2019. Colorado. 3 Mills's Ann. Stats., sees. 4702, 4706. Idaho.* Code Civ. Proc. 1901, see. 4383. Montana.* Code Civ. Proc., sec. 3031. Nevada.* Comp. Laws, sec. 598. North Dakota. Eev. Codes 1905, § 8276. Oklahoma. Eev. Stats. 1903, see. 1857. Oregon.* Bellinger and Cotton's Ann. Codes and Stats., § 5285. South Dakota. Probate Code 1904, § 413. Utah.* Eev. Stats. 1898, sec. 4020. Washington. Pierce's Code, §§ 2791, 2792. Wyoming.* Eev. Stats. 1899, sec. 4924. § 145. Such guardians to give bonds. Every guardian must give bond to the ward, in the manner and with the like conditions as hereinbefore provided for other guardians, ex- cept that the provisions respecting the inventory, the dis- posal of the estate and effects, and the account to be ren- dered by the guardian, must be confined to such estate and effects as come to his hands in this state. Kerr's Cyc. Code Civ, Proc, § 1795. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 913, p. 332. Arizona.* Eev. Stats. 1901, par. 2020. Colorado. 3 Mills's Ann. Stats., sees. 4702, 4706. Idaho.* Code Civ. Proc. 1901, sec. 4384. Montana.* Code Civ. Proc, sec. 3032. Nevada.* Comp. Laws, sec. 599. North Dakota. Eev. Codes 1905, § 8277. Oklahoma.* Eev. Stats. 1903, sec. 1858. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5286. South Dakota.* Probate Code 1904, § 414. Utah.* Eev. Stats. 1898, sec. 4021. Washington. Pierce's Code, § 2789. Wyoming.* Eev. Stats. 1899, sec. 4925. NON-EESIDENT GUARDIANS AND WARDS. 153 § 146. To what guardianship shall extend. The guar- dianship which is first lawfully granted of any person resid- ing without this state extends to all the estate of the ward within this state, and excludes the jurisdiction of the court of every other county. Kerr's Cyc. Code Civ. Proc, § 1796. AITALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska.* Carter's Code, sec. 914, p. 332. Arizona.* Eev. Stats. 1091, par. 2021. Colorado. 3 Mills's Ann. Stats., sees. 4702, 4706, 4815 1. Idaho.* Code Civ. Proc. 1901, see. 4385. Montana.* Code Civ. Proe., see. 3033. Nevada. Comp. Laws, see. 600. Oklahoma.* Eev. Stats. 1903, sec. 1859. Oregon.* Bellinger and Cotton's Ann. Codes and Stats., | 5287. South Dakota.* Probate Code 1904, § 415. Utah.* Eev. Stats. 1898, sec. 4022. Wyoming.* Eev. Stats. 1899, sec. 4926. § 147. Removal of non-resident ward's property. 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 foreign country without conflict with any restriction or limitation thereupon, or impairing the riglit of the ward thereto, such property may be removed 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 principal part thereof, is situated. Kerr's Cyc. Code Civ. Proc, § 1797. ANAIiOGOUS AND IDENTICAL STATUTES The * indicates identity. Arizona.* Eev. Stats. 1901, par. 2022. Colorado. 3 Mills's Ann. Stats., sees. 4735, 4736. Idaho. Code Civ. Proc. 1901, see. 4386. Kansas. Gen. Stats. 1905, § 3433. Montana. Code Civ. Proc, sec. 3034. North Dakota.* Eev. Codes 1905, § 8278. Oklahoma.* Eev. Stats. 1903, sec. 1860. South Dakota.* Probate Code 1904, § 416. Utah. Eev. Stats. 1898, sec. 4023. Washington. Pierce's Code, §§ 2755, 2794, Wyoming.* Bev. Stats. 1899, sec. 4927. 154 PROBATE LAW AND PRACTICE. § 148. Proceedings on such removal. The application must be made upon ten days' notice to the resident executor, administrator, or guardian, i£ there be such, and upon such application the non-resident guardian must produce and file a certificate, under the hand of the clerk and seal of the court, from which his appoiatment 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 appointment [,] to the possession of the estate of the ward; or, must produce and file a certificate, under the hand and seal of the clferk of the court having jurisdiction in the country of his residence, of the estates of persons under guardian- ship, or of the highest court of such country, attested by a minister, consul, or vice-constd of the United States, resident in such country, that, by the laws of such country, the appli- cant is entitled to the custody of the estate of his ward, without the appointment of any court. Upon such applica- tion, unless good cause to the contrary is shown, the court must make an order granting to such guardian 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 benefit of his ward. Kerr's Cyc. Code Civ. Proc, § 1798. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona. Bev. Stats. 1901, pars. 2023, 2024. Colorado. 3 Mills's Ann. Stats., sees. 4735, 4736. Idaho. Code Civ. Proc. 1901, sec. 4387. Kansas. Gen. Stats. 1905, § 3433. Montana. Code Civ. Proc, see. 3035. North Dakota. Eev. Codes 1905, § 8279. Oklahoma. Eev. Stats. 1903, sec. 1861. South Dakota. Probate Code 1904, § 417. Utah. Eev. Stats. 1898, see. 4024. Washington. Pieree's Code, §§ 2755, 2794. Wyoming.* Eev. Stats. 1899, sec. 4928. § 149. Discharge of person in possession. Such order is a discharge of the executor, administrator, local guardian, or otlier person in whose possession the property may be at the NON-RESIDENT GUARDIANS AND WARDS. 155 time the order is made, on filing with the clerk of the court a receipt therefor of a foreign guardian of such absent ward, and transmitting a duplicate receipt, or a certified copy of such receipt, to the court from which such non-resident guar- dian received his appointment. Kerr's Cyc. Code Civ. Proc, § 1799. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 2025. Colorado. 3 Mills's Ann. Stats., sec. 4736. Idaho. Code Civ. Proe. 1901, sec. 4388. Montana. Code Civ. Proc, see. 3040. North Dakota. Eev. Codes 1905, § 8280. Oklahoma. Eev. Stats. 1903, sec. 1862. South Dakota. Probate Code 1904, § 418. Utah. Eev. Stats. 1898, sec. 4025. Washington. Pierce's Code, §§2794, 2795. Wyoming. Eev. Stats. 1899, sec. 4929. 156 PROBATE LAW AND PRACTICE. CHAPTER VI. GENERAL AND MISCELLANEOUS PEOVISIONS. ] 150. Examination of persons suspected of defrauding wards or of concealing property. S 151. Removal and resignation of guardian, and surrender of estate. i 152. Guardianship, how terminated. I 153. New bond, when required. i 154. Guardian's bond to be filed. Action on. i 155. Limitation of actions on guardian's bond, 156. Limitation of actions for the recovery of property sold. i 157. More than one guardian may be appointed. : 158. Order appointing guardian, how entered. 159. What provisions of code apply to guardians. i 160. Decree that conveyance be made for incompetent. GUARDIAN AND WARD. 1. Appointment of guardians. (1) Jurisdiction of court. (2) Right to appointment. (3) Necessity of petition and notice. Circumstances for considera- tion. Bond. Estoppel. Appointment here, notwith- standing foreign guardian. Validity of appointment. 2. Guardianship of Indians. (1) In general. 3. Control of property, support, maintenance, and custody of ward. Control of property. Support and maintenance. Contract for support. Support of abandoned child. Custody of ward. Access. 4. Duties and powers of guardians. ( 1 ) In general. Power of guardian as to con- tracts. Power of guardian to assign appropriation made for ward by probate court. 6. Rights and powers of guardians. (1) Guardian may do what. (2) Guardian cannot do what. (8) Actions by guardian. (4) Actions against guardians. (4) (5) (6) (7) (1) (2) (3) (4) (5) (2) (3) 6. Investments by guardian. 7. Sales of land. (1) In general. (2) Petition for. (3) Notice. Publication. (4) Additional bond. (5) Order for. (6) Validity of. (7) Purchaser and his rights. (8) Setting aside. (9) Collateral attack. 8. Lease and demise of ward's prop- erty. 9. Mortgage of ward's property. (1) Petition as foundation of jurisdiction. (2) Authority to mortgage. (3) Validity of order and mort- gage. (4) Revival and foreclosure of former mortgage. 10. Non-resident guardians and wards. 11. Accounting and settlement. (1) In general. (2) Duty to account. (3) Jurisdiction of courts. (4) Exceptions to account. (6) Admissibility of evidence. (6) Proper charges against guar- dian. Interest. (7) Credits allowable to guardian. (8) What is not to be allowed. Compensation, GENERAL AND MISCELLANEOUS PROVISIONS. 157 (0) Death of ward before settle. (4) No disaffirmance of parol ment. partition when. (10) Conclusiveness. Attacking 19, Bond of guardian, and liability settlement. thereon. (11) Discharge of guardian. (1) Failure to give a bond. 12. Collateral attack. (2) Purpose of bond. 13. Jurisdiction of courts. (3) Breach of bond. 14. Jurisdiction of equity. (4) New bond. 15. Liability of guardians. (5) Action on bond. (1) For investments made with- (6) Liability of sureties. out order of court. (7) Defense to action. (2) Protection of order of court. (8) Limitation of actions. i'd) Liability of guardian in gen* 20. Limitations of actions.- eral. 21. Appeal. 16. Embezzlement by guardian. (1) In general. 17. Removal of guardians. (2) Appealable orders. 18. Rights and liabilities of ward. (3) Findings. (1) In general. (4) Effect of, as stay. (2) Actions by ward. (5) Record. Presumption. (3) Actions aeainst ward. (6) Affirmance. Reversal. (7) Dismissal. § 150. Examination of persons suspected of defrauding wards or of concealing property. Upon complaint made by any guardian, ward, creditor, or other person interested in the estate, or having a prospective interest therein as heir or otherwise, against any one suspected of having concealed, embezzled, smuggled, or fraudulently disposed of, any of the money, goods, or effects, or an instrument in writing be- longing to the ward or to his estate, the superior court may cite such suspected person to appear before such court, and may examine and proceed against him on such charge in the manner provided in this title with respect to persons sus- pected of and charged with concealing, embezzling, smug- gling, or fraudulently disposing of the effects of a decedent. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 510), §1800. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 910, p. 332. Arizona. Eev. Stats. 1901, par. 2026. Colorado. 3 Mills's Ann. Stats., see. 4815d. Idaho. Code Civ. Proc. 1901, sec. 4396. Montana. Code Civ. Proc, see. 3050. Nevada. Comp. Laws, see. 596. North Dakota. Kev. Codes, 1905, § 8281. Oklahoma. Bev. Stats. 1903, see. 1863. 158 PROBATE LAW AND PRACTICE. Oregon. Bellinger and Cotton's Ann. Codes and. Stats., § 5283. South Dakota. Probaj;e Code 1904, § 419. Utah. Eev. Stats. 1898, sec. 4019. Wyoming. Eev. Stats. 1899, sec. 4941. § 151. Removal and resignation of guardian, and sur- render of estate. When a guardian, appointed either by the testator or a court, becomes insane or otherwise incapable of discharging his trust or unsuitable 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 the 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. Keir's Cyc. Code Civ. Proc, § 1801. ANALOGOUS AND IDENTICAL STATUTES. Tho * indicates identity. , Alaska. Carter's Code, see. 906, p. 331. Arizona.* Eev. Stats. 1901, par. 2027. Colorado. 3 Mills's Ann. Stats., sees. 4707, 4709, 4710. Idaho. Code Civ. Proc. 1901, sec. 4394. Kansas. Gen. Stats. 1905, §§ 3419, 4176. Montana.* Code Civ. Proc, sec. 3051. Nevada. Comp. Laws, sees. 569, 591. New Mexico. Comp. Laws 1897, sees. 1436, 1457. North Dakota. Eev. Codes 1905, § 8064. Oklahoma.* Eev. Stats. 1903, sec. 1864. Oregon. Bellinger and Cotton's Ann. Codes and Stats., S 5279. South Dakota.* Probate Code 1904, § 420. Utah. Eev. Stats. 1898, see. 3991. Washington. Pierce's Code, §§ 2743, 2781. Wyoming. Eev. Stats. 1899, sec. 4892. § 152. 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 GENERAL AND MISCELLANEOUS PEOVISIONS. 159 guardianship is no longer necessary. Kerr's Cyc. Code Civ. Proc, § 1802. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 907, p. 331. Arizona. Eev. Stats. 1901, par. 2028. Idaho. Code Civ. Proc. 1901, sec. 4395. Montana.* Code Civ. Proc, sec. 3052. Nevada. Comp. Laws, sec. 592. New Mexico. Comp. Laws 1897, see. 1459. North Dakota. Eev. Codes 1905, § 8282. Oklahoma. Eev. Stats. 1903, sec. 1865. Oregon. Bellinger and Cotton's Ann. Codes and Stats., S 5280. South Dakota. Probate Code 1904, § 421. Utah. Eev. Stats. 1898, sees. 3992, 3996. Washington. Pierce's Code, §2735. Wyoming.* Eev. Stats. 1899, sec. 4943. § 153. New bond, when required. The court may require a new bond to be given by a guardian whenever 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. Kerr's Cyc. Code Civ. Proc, § 1803. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 908, p. 331. Arizona.* Eev. Stats. 1901, par. 2029. Colorado. 3 Mills's Ann. Stats., sec. 4714. Idaho.* Code Civ. Proc. 1901, sec. 4389. Kansas. Gen. Stats. 1905, §§ 3419, 3431. Montana. Code Civ. Proc, sec. 3053. Nevada. Comp. Laws, sees. 566, 593. New Mexico. Comp. Laws 1897, sec. 1444. Oklahoma.* Eev. Stats. 1903, sec. 1866. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5281. South Dakota.* Probate Code 1904, § 422. Utah. Eev. Stats. 1898, sec. 3991. Washington. Pierce's Code, § 2756. Wyoming.* Eev. Stats. 1899, sec. 4944. §154. Guardian's bond to be filed. Action^ on. Every bond given by a guardian must be filed and preserved in the office of the clerk of the superior court of the county, and 160 PROBATE LAW AND PEACTICE. in case of a breach of a condition thereof, may be prosecuted for the use and benefit of the ward, or of any person inter- ested in the estate. Kerr's Oyc. Code Civ. Proc, § 1804. ANAIiOaOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 938, p. 336. Arizona.* Eev. Stats. 1901, par. 2030. Idaho.* Code Civ. Proc. 1901, sec. 4390. Montana.* Code Civ. Proc, sec. 3054. Nevada. Comp. Laws, sec. 594. New Mexico. Comp. Laws 1897, sec. 1443. North Dakota.* Rev. Codes 1905, § 8283. Oklahoma.* Eev. Stats. 1903, sec. 1867. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5612. South Dakota.* Probate Code 1904, § 423. Wyoming.* Eev. Stats. 1899, sec. 4945. § 155. 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 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 disability is removed. Kerr's Cyc. Code Civ. Proc, § 1805. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 909, p. 381. Arizona.* Eev. Stats. 1901, par. 2031. Idaho.* Code Civ. Proc. 1901, see. 4391. Montana.* Code Civ. Proc, see. 3055. Nevada. Comp. Laws, sec. 595. North Dakota.* Eev. Codes 1905, § 8284. Oklahoma.* Eev. Stats. 1903, sec. 1868. Oregon. Bellinger and Cotton's Ann. Codes and -Stats., § 5282. South Dakota.* Probate Code 1904, § 424. Wyoming. Eev. Stats. 1899, sec. 4946. § 156. Limitation of actions for the recovery 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 tKree years next after the termination of the guardianship, or when GENERAL AND MISCELLANEOUS PROVISIONS. 161 a legal disability to sue exists by reason of minority or other- wise, at the time when the cause of action accrues, within three years next after the removal thereof. Kerr's Cyc. Code Civ. Proc, § 1806. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 936, p. 336. Arizona.* Kev. Stats. 1901, par. 2032. Colorado. 3 Mills's Ann. Stats., sec. 4770. Idaho.* Code Civ. Proc. 1901, sec. 4392. Montana.* Code Civ. Proc, sec. 3056. North Dakota.* Eev. Codes 1905, § 8285. Oklahoma.* Eev. Stats. 1903, sec. 1869. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5610. South Dakota.* Probate Code 1904, § 425. Wyoming. Eev. Stats. 1899, sec. 4947. § 157. More than one guardian may be appointed. The court, in its discretion, whenever necessary, may appoint more than one guardian of any person subject to guardian- ship, each of whom must give a separate bond, and be gov- erned and liable in aU respects as a sole guardian. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 510), § 1807. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found, Arizona. Eev. Stats. 1901, par. 2033. Idaho. Code Civ. Proc. 1901, sec. 4397. Montana. Code Civ. Proc, sec. 3057. Nevada. Comp. Laws, sec. 602. North Dakota. Eev. Codes 1905, § 8286. Oklahoma. Eev. Stats. 1903, sec. 1870. South Dakota. Probate Code 1904, § 426. Utah. Eev. Stats. 1898, sec. 3987. Wyoming. Eev. Stats. 1899, sec. 4948. § 158. Order appointing guardian, how entered. 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 decedents, so far as they relate to the practice in the superior court, apply to proceedings under this chap- ter. Kerr's Cyc. Code Civ. Proc, § 1808. Probate — 11 162 PROBATE LAW AND PRACTICE. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 2034. Idaho. Code Civ. Proc. 1901, see. 4398. Montana. Code Civ. Proc, sec. 3058. Oklahoma. Eev. Stats. 1903, sec. 1871. South Dakota. Probate Code 1904, § 427. Utah. Eev. Stats. 1898, sec. 3993. Wyoming. Eev. Stats. 1899, sec. 4949. § 159. What provisions of code apply to guardians. The provisions of sections ten hundred and fifty-six and ten hun- dred and fifty-seven are hereby declared to apply to guar- dians appointed by the court, and to the bonds taken or to be taken from such guardians, and to the sureties on such bonds. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 510), §1809. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 2035. Idaho. Code Civ. Proc. 1901, sec. 4393. Montana. Code Civ. Proc, sec 3059. § 160. Decree that conveyance be made for incompetent. When a person who is bound by a contract in writing to con- vey any real estate shall afterwards and before making the conveyance become and be adjudged to be an incompetent person, the court may make a decree authorizing and direct- ing his guardian to convey such real estate to the person entitled thereto. Such decree may be made under the pro- visions of sections fifteen hundred and ninety-seven to six- teen hundred and seven, both inclusive, of this code, aU of which provisions are hereby incorporated in this section; the word incompetent being substituted for the word de- ceased or decedent and the word guardian being substituted for the words administrator or executor, respectively, wher- ever said words occur. Kerr's Cyc. Code Civ. Proc, § 1810. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. New Mexico. Comp. Laws 1897, sec 1917. GENERAL AND MISCELLANEOUS PROVISIONS. 163 GUARDIAN 1. Appointment of guardians. (1) Jurisdiction of court, (2) Bight to appointment. (3) Necessity of petition and notice. (4) Circumstances for considera- tion. (5) Bond. Estoppel. (6) Appointment here, notwith- standing foreign guardian. (7) Validity of appointment. 2. Guardianship of Indians. (1) In general. S. Control of property, support, main- tenance, and custody of ward. (1) Control of property. (2) Support and maintenance. (3) Contract for support. (4) Support of abandoned child. (6) Custody of ward. Access. 4. Duties and powers of guardians. (1) In general. (2) Power of guardian as to con- tracts. (3) Power of guardian to assign appropriation made for ward by probate court. 5. Bights and powers of guardians. (1) Guardian may do what. (2) Guardian cannot do what. (3) Actions by guardian. (4) Actions against guardians. 6. Investments by guardian. 7. Sales of land. (1) In general. (2) Petition for. (3) Notice. Publication. (4) Additional bond. (5) Order for. (6) VaUdity of. (7) Purchaser and his rights. (8) Setting aside. (9) Collateral attack. AND WARD. 8. Lease and demise of ward's prop- erty. 9. Mortgage of ward's property. (1) Petition as foundation of Jurisdiction. (2) Authority to mortgage. (3) Validity of order and mort- gage. (4) Bevival ana foreclosure of former mortgage. 10. Non-resident guardians and wards. 11. Accounting and settlement. (1) In general. (2) Duty to account. (3) Jurisdiction of courts. (4) Exceptions to account. (5) Admissibility of evidence. (6) Proper charges against guar- dian. Interest. (7) Credits allowable to guardian. (8) What is not to be allowed. Compensation. (9) Death of ward before settle- ment. (10) Conclusiveness. Attacking settlement. (11) Discharge of guardian. 12. Collateral attack. 13. Jurisdiction of courts. 14. Jurisdiction of equity. 15. Liability of guardians. (1) For investments made with- out order of court. (2) Protection of order of court. (3) Liability of guardian In gen- eral. 16. Embezzlement by guardian. 17. Bemoval of guardians. 18. Bights and liabilities of ward. (1) In general. (2) Actions by ward. (3) Actions against ward. (4) No disaffirmance of parol partition when. 164 PROBATE LAW AND PRACTICE. 19. Bond of guardian, and liability 20. Limitations of actions, tliereon. 21. Appeal. (1) Failure to give a bond. (1) In general. (2) Purpose of bond. (2) Appealable orders. (3) Sreacb of bond. (3) Findings. (4) New bond. (4) Effect of, as stay. (5) Action on bond. (5) Becord. Presumption. (6) Liability of sureties. (6) Affirmance. Reversal. (7) Defense to action. (7) Dismissal. (8) Limitation of actions. 1. Appointment of guardians. (1) Jurisdiction of court. The appointment of guardians for the persons and estates of minors is an exercise of jurisdiction pertain- ing to the probate courts: Monastes v. Catlin, 6 Or. 119. The record must aflSrmatively show, with respect to the appointment of a guardian, that every act essential to give jurisdiction to the court was performed: Seaverns v. Gerke, 3 Saw. 353; Fed. Cas., No. 12,595. An application for letters of guardianship should be made in the county where the proposed ward resides: Estate of Taylor, 131 Cal. 180; 63 Pac. Eep. 180. The superior court of the county of which the minor is an inhabitant or resident has jurisdiction to appoint a guardian; and the minor is a resident of the county wherein he has resided for more than three years, and has not, during that period, had any other home, nor been absent or away from said county: In re Eeynor, 74 Cal. 421, 424; 16 Pac. Rep. 229. BEFEBENCES. That letters of guardianship may be granted by a judge at cham- bers, see Kerr's Cal. Cyc. Civ. Code, § 166. (2) Bight to appointment. In all cases where the appointment of a guardian shall appear necessary or convenient, the father shall be first in legal right; and if the father be deceased, the mother, while unmarried, if they be competent to transact their own business, and are not otherwise unsuitable; and if another be appointed, he is not entitled to the personal custody and tuition of the ward, so long as the latter has a father or mother living, who is competent to care I for and educate him, and is not otherwise unsuitable: Lord v. Hough, I 37 Cal. 657, 668. The appointment of a guardian is therefore given Ifirst to the father, second to the mother, and lastly to the probate \court: Lord v. Hough, 37 Cal. 657, 669. The order of court appointing t father as guardian of his infant child may contain directions con- cerning the custody of the person of the ward: In re Linden, Myr. Prob. 215. Where each of two persons filed a petition for letters of guardianship of the person of a minor, and no answer is filed to either petition, there are no issues made which demand findings of GENEEAL AND MISCELLANEOQS PROVISIONS. 165 fact: In re Lewis, 137 Cal. 682; 70 Pac. Rep. 926. The question as to which of two petitioners shall be appointed guardian over the person of a minor child is essentially a question of fact for the trial court, and if that court has decided it, the order will not be set aside for lack of evidence, where there was some substantial evi- dence to support the appointment: In re Lewis, 137 Cal. 682; 70 Pac. Rep. 926. The parent is entitled to the guardianship of his minor child, if he is competent to transact his own business, and is not unsuitable as a guardian: Andrino v. Yates (Ida.), 87 Pac. Rep. 7S7. A parent is entitled to the guardianship of his child under the age of fourteen years, if he is a fit, proper, and competent person, in preference to any other person; nor is the right of the father, he being competent, to have the custody and control of his child at all affected by the finding of the court relative to the health of the child, and the better opportunity he would have for fresh air and exercise at the home of his grandmother, than at the residence of his father: In re Salter, 142 Cal. 412; 76 Pac. Rep. 51, 58. As to evidence which is not sufficient to show that the father of a child under four- teen years of age is not a fit, or proper, or competent person to have the care, custody, or control of his own child, see In re Galleher, 2 Cal. App. 364; 84 Pac. Rep. 352, 354. It is no objection to the appointment of a guardian for a minor that he would inherit a portion of the ward's estate in the event of the latter's death with- out issue: In re Masterson's Estate (Wash.), 87 Pac. Rep. 1047, 1048. BEFEBENCES. That a corporation may act as the guardian of estates, see Kerr's Cal. Cyc. Code Civ. Proc, § 1348. Right of mother or reputed father to guardianship of illegitimate child: See note 65 L. R. A. 689-697. (3) Necessity of petition and notice. The appointment of a guardian without giving any notice whatever is void: Seaverns v. Gerke, 3 Saw. 353; Fed. Cas., No. 12,595. The appointment of a guardian is invalid except on proper petition filed, and after notice of the application: Badenhoof v. Johnson, 11 Nev. 87. But if parties have notice of what is in progress before the court, they may waive any formal notice by appearance and consent. Thus if all persons who are entitled to notice as a prerequisite to a valid appointment of a guardian for a minor under fourteen years of age, appear and consent to the appointment, no formal notice to them is necessary: ■ Smith v. Biscailuz, 83 Cal. 344, 353; 21 Pac. Rep. 15; 23 Pac. Rep. 314. So in proceedings for the appointment of a guardian, where the father has custody of the minor, and petitions to be appointed guardian, notice to him of the proceedings is not necessary: Asher v. Yorba, 125 Cal. 513; 58 Pac. Rep. 137, 138. Under a statute which requires the court, before appointing a guardian, to cause such notice as is deemed reasonable to be given to the person having 166 PROBATE LAW AND PKACTICE. care of the minor, and to such relatives as the court may deem proper, the court has authority to give notice by posting for ten days in three public places, and such notice under direction of the court is sufSeient. The kind or character of the notice to be given is a matter for the judge to determine, and where personal notice is not absolutely required, a notice by posting is sufficient: Asher V. Yorba, 125 Cal. 513; 58 Pac. Bep. 137, 138. It has long been the settled practice to determine, in guardianship proceedings, questions as to the fitness and competency of parents to have the custody of their children; but notice to a parent of the minor of the appoint- ment of a guardian is not in all cases essential to the jurisdiction of the court to appoint a guardian. In many eases where the interests of the minor make it essential that some one should at once be given authority to act as the legal custodian, it would be practically im- possible to notify the parents, owing to ignorance of facts as to parentage, or as to the whereabouts of its parents. Undoubtedly, I a parent should be notified, where possible, of proceedings, the effect' of which may be to terminate his parental authority; and, un- doubtedly, where such notice is not required to be given, a parent would be entitled, upon seasonable application, to be heard upon the question as to whether the appointment of another as the guardian of his child, without his knowledge, should not be set aside, that he might be heard upon the question of the necessity of appointing such other as guardian. But, under a statute which requires that notice shall be given to the person having the care of the minor, and which requires that notice is to be given to those relatives of the minor residing in the county, such " as the court may deem proper," the only persons to be notified are those having the care of the minor, and such relatives residing in the county " as the court may deem proper": In re Lundberg, 143 Cal. 402; 77 Pac. Eep. 156, 158. The appointment of a guardian without notice to a parent does not deprive the parent of a valuable right without due process of law. If actual notice to the parent were a prerequisite in such a proceeding, no appointment, in many cases, could be legally made, as he may have abandoned his child, and his whereabouts may be unknown. The right of the parent is of such a nature that it must yield to such reasonable regulations, after due notice, as the legislature may pre- scribe: In re Lundberg, 143 Cal. 402; 77 Pac. Eep. 156, 159. (4) Circumstances for consideration. In considering the propriety of appointing a guardian, the parental request is entitled to great weight, and ought to prevail, unless some good reason to the contrary is shown: Badenhoof y. Johnson, 11 Nev. 87. The main consideration in appointing a guardian for the person and estate of an infant is the welfare of the child: Willet v. Warren, 34 Wash. 647; 76 Pac. I Rep. 273; In re Lundberg, 123 Cal. 143, 402; 77 Pac. Eep. 156; \Guardianship of Brown, 11 Haw. 679, 681. The child's own choice, GENERAL AND MISCELLANEOUS PEOVISIONS. 167 though it is not of a choosing age in law, is a circumstance for con- sideration; and the ties of natural affection are not to be disregarded, although it does not always follow that these ties exist because of kinship or consanguinity: Willet v. Warren, 34 Wash. 647; 76 Pae. Eep. 273, 274. The natural rights of the father to the care, control, and custody of his minor children cannot, and ought not, to be denied or disturbed, in the absence of good and substantial reasons; reasons made imperative by the necessities of such children, and the interest in and the duty owing to them by the state. But where it has been adjudicated by a court of competent jurisdiction that a father has recently, for three years, neglected to support his offspring, and has thereby caused his wife to get a divorce, such husband is not in a good attitude to come into court and ask for their custody, control, and guardianship. He should not be allowed the guardian- ship of his children until, by a substantial period of probation, he is shown to have amended his character and disposition regarding them, and to have acquired those worthy and substantial qualities of heart and mind that characterize the reputable man and considerate father: Kussner v. McMillan, 37 Wash. 416; 79 Pac. Eep. 988, 989. So, where it is possible, the courts will give some consideration to keeping the children with the surviving members of the family to which they belong; but will give no weight to evidence of religious opinions, in such a proceeding, though the difficulties and disagree- ments concerning the child arose from differences in religious mat- ters: Jones V. Bowman, 13 Wyo. 79; 77 Pac. Eep. 439, 440, 442. On an application for guardianship, the court will respect the best inter- ests of the child, concerning its temporal, mental, and moral welfare, . particularly where both parents of the minor are dead: In re Dellow's Estate, 1 Cal. App. 529; 82 Pae. Eep. 558, 559. A written request by the father of minor children, that a designated person be appointed their guardian, does not have the effect, after his death, of changing their domicile, or of empowering any probate court, foreign to their domicile, to appoint a guardian for them: Modern Woodmen v. Hester, 66 Kan. 129; 71 Pac. Eep. 279. For circumstances under which it is proper for the court to refuse to appoint an intemperate father of the child as its guardian, and to appoint the child's grandmother, see Eussner v. McMillan, 37 Wash. 416; 79 Pac. Eep. 988. The right of a mother or grandmother to be appointed as guardian of a minor child, in .case of the father's decease, is devested by a decree of adop- tion consented to by the natural mother of the child: In re Master- son's Estate (Wash.), 87 Pac. Eep. 1047. (5) Eond. Estoppel. One who has been appointed, by order of court, a guardian of the property of minor children does not become a guardian until he gives the bond required by law: Murphy v. Superior Court, 84 Cal. 592, 597; 24 Pac. Eep. 310. One who has applied for letters of guardianship, and has acted as guardian for 168 PROBATE LAW AND PRACTICE. minor children, is not estopped to deny that he is such guardian, because of his neglect to give a bond required by the statute, where he has not received any property belonging to the minors, as their guardian, or by virtue of his appointment: Murphy v. Superior Court, 84 Cal. 592, 597; 24 Pac. Eep. 310. REFERENCES. Necessity of bond by guardian to make his acts valid: See note 33 L. E. A. 759-765. Power of surety company to act as guardian without bond: See note 48 L. K. A. 589. Bond of guardian, and lia- bility thereon: See subd. 19, post. • (6) Appointment here, notwithstanding foreign guardian. The claim of a petitioner for the custody of a child cannot rest on a sup- posed rightful authority to control his person in this state by virtue of^his appointment as guardian in another state. He cannot assert- his tutorial power de jure in our courts, or within our territory. Hence a guardian, appointed by virtue of the statutes of another state, cannot exercise here any authority, either over the person or property of his ward. His rights and powers are strictly local, and are circumscribed by the jurisdiction of the government which clothed him with the office: Jones v. Bowman, 13 Wyo. 79; 77 Pac. Rep. 439, 442. Hence the appointment of a guardian for a minor child, by the probate court of another state, wherein the parent was domi- ciled at the time of his death, and who . had custody of such child at the time of his death, will not prevent the courts of this state, if the child has been subsequently brought here, from appointing a guardian for it: Jones v. Bowman, 13 Wyo. 79; 77 Pac. Eep. 439, 442. (7) Validity of appointment. Although an order appointing a guardian may be dual, in that it also appoints the guardian adminis- trator of an estate, it is not for that reason void as to the guardian- ship. Nor is it void because it is entitled " In the Matter of the Estate " of the deceased, and directing that letters of guardianship of the heirs be granted, without naming them, if they are known, as that is certain which can be made certain: Eeed v. Eing, 93 Cal. 96, 105; 28 Pac. Eep. 851. As a minor must be an inhabitant or resident of the county in which the appointment of a guardian is. made, to give the court jurisdiction to make the appointment, it follows that the appointment of the minor's sister as guardian is improper if made in the county of the sister's residence, and not in the county of the minor's residence, after proceedings for the adoption of such child had before the superior court of another county by persons residing in such county: In re Taylor's Estate, 131 Cal. 180; 63 Pac. Eep. 345. It is error to appoint a temporary guardian, where the perma- nent guardian is a proper and suitable person to perform all of the GENERAL AND MISCELLANEOUS PROVISIONS. 161) duties required of such temporary guardian: In re Barns, 36 Wash. 130; 78 Pac. Eep. 783, 784. If the appointment of a guardian is void, all subsequent proceedings in the guardianship matter, including sales of real property, are also void: Seaverns v. Gerke, 3 Saw. 353; Fed. Cas., No. 12,595; and see Walker v. Goldsmith, 14 Or. 125; 12' Pac. Eep. 537. As the main consideration, in determining the custody of a child, is its welfare, and as its relatives have no legal right to its custody, letters of guardianship over it will be awarded to a worthy person with whom the child has lived, and to whom it has become attached, by reason of having had the privileges of a home, school, church, and society, as against an application for letters of guardianship made by the child's aunt, who is a non-resident of the state: Willet v. Warren, 34 Wash. 647; 76 Pac. Bep. 273, 274. Where guardianship proceedings have been institiited and carried to a con- clusion without notice to the mother, who was living apart from her husband, although her place of residence was known, and without her knowledge, and while they were probably taken with the belief, on the part of the father's relatives, that it would be for the best interests of the child that it should remain with them, it is manifest that such proceedings were taken for the purpose of depriving the mother, without her knowledge, of the control and custody of her child, and, under a statute providing that the court may release a party from a judgment taken against him by surprise or excusable neglect, a mother may have the guardian's appointment in such a case set aside: In re Yan Loan, 142 Cal. 429; 76 Pac. Eep. 39, 41. 2. Guardianship of Indians. (1) In general. The Pueblo Indians of New Mexico are not wards of the government, and the title to their lands is not held in trust by the government. Nor are they under the charge of any Indian superintendent or agent. They are not Indians over whom the govern- ment, through its department, exercises guardianship: United States V. Mares (N. M.), 88 Pac. Eep. 1128, 1129. The Puyallup Indians hold lands under certain patents of the United States, have all the rights, privileges, and immunities of other citizens, and they are not under the guardianship of the United States government, nor under the charge of any Indian superintendent or agent: United States V. Kopp (J). C), 110 Fed. Eep. 160. Land allotted to an Ottawa Indian cannot be alienated by a guardian's sale and deed while he is a minor: Wiggin v. King, 35 Kan. 410; 11 Pac. Eep. 140. The guardian of an infant Indian, on a final aqcounting, is entitled to credit for an amount paid by him in compromise of litigation against the ward's estate, where such payment was made under, order of court, because, in view of the escape from litigation, the court cannot say that the best interests of the estate were not con- served: Terry v. Sicade, 37 Wash. 249; 79 Pac. Eep. 789. 170 PROBATE LAW AND PRACTICE. S. Control of property, support, maintenance, and custody of ward. (1) Control of property. Guardianship by nature extends only to the custody of the person of the ward, and not to his property. To entitle a guardian to manage the property of his ward, he must be duly appointed by some competent authority: Kendall v. Miller, 9 Cal. 591, 592. The property of the ward is in custody of the law, and is not subject to attachment or execution. His estate is adminis- tered under the direction of the county court; the powers and duties of the guardian jn the management of the estate and the payment of debts being specified by the statute: Sturgis v. Sturgis (Or.), 93 Pac. Eep. 696, 700. Neither a guardian nor his grantee can set up posses- sion to, or title in, land adverse to the ward: Lono v. Phillips, 5 Haw. 357, 358. (2) Support and maintenance. An allowance may be made to the mother of minor children for their maintenance during the time when there were no letters of guardianship upon their estates. But she is chargeable, in equity, as a quasi guardian or trustee of their estates, and the accounting must be deemed in the nature of an accounting in equity, and be determined upon equitable principles. The rule in equity is, that, where an infant has property of his own, and his father is dead, or is not able to support him, he may be maintained and educated out of the income of property absolutely his own, by the person in whose hands the property is held; and a court of equity will allow all payments made for this purpose, which appear upon investigation to have been reasonable and proper. Where the income is insufficient for the maintenance and education of a child, equity wiU break into the principal. A mother will be allowed, in equity, for the past maintenance of her children after the death of the father, out of the estate of the children, though she has a separate estate. The criterion for determining whether a past maintenance should be allowed is, whether a court of chancery would have author- ized it in advance: Estate of Beisel, 110 Cal. 267; 40 Pac. Eep. 961; 42 Pac. Eep. 819. A family of children, under ordinary circumstances, should be kept under the care and nurture of their mother, if possible. But when this is done, it is exceedingly difficult to have accurate accounts kept, showing the precise expense on account of each child; and it is customary to apply to the court for an order fixing a lump sum by the week, month, or by the year, which is to be allowed and paid to the mother for such maintenance. This is perhaps the better method, as it serves as a protection to the guardian against a subse- quent revision of hi^ conduct, and also, to some extent, as a pro- •tection to the children against excessive payments. It also avoids the great expense that would be involved in the keeping of separate accounts of supplies furnished to each child. To do this, a previous order of the court is not necessary: Estate of Boyea (Cal.), 90 Pac. Eep. 454, 459, It is the duty of a guardian to see to it that his ward GENERAL AND MISCELLANEOUS PROVISIONS. 171 is suitably maintained, and, upon proper application therefor, the county court may, and will, authorize the use of the principal of his ward's funds, as well as the income thereof, if necessary, for that purpose. The usual, and no doubt better, practice is to obtain an order authorizing the expenditure, and, as a general rule, the guardian cannot encroach upon the principal without such order. But it is believed this rule is not inflexible, so that, if the income is not sufficient, and the ward's welfare requires it, the court may resort to the principal, and if he has in fact used a part of it for the support and maintenance of his ward without authority of the court, it may, and will in a proper case, ratify such expenditure. If, however, he has taken this responsibility, he is required to make out as clear a case to obtain the order ratifying the expenditure as if he had applied for authority in advance. The true criterion in such ease would seem to be whether the court would have antecedently author- ized the expenditure: Cutting v. Seherzinger, 40 Or. 353; 68 Pae. Eep. 393, 395. A reasonable amount should be allowed to a guardian for the maintenance of his ward, but if he, without the approval of the judge, spends more than the income on the maintenance of his ward, he does so at his peril: Guardianship of Kaiu, 17 Haw. 517, 518. ■ After payment of the ward's debts, the balance is the principal, which must be invested by the guardian, and the income and profits accruing from it are all that the guardian may expend for the main- tenance of his ward. He cannot break into the principal, for such purpose, without authority of the court: Guardianship of Duncan, 3 Haw. 543, 544. If there is no proof of a regular allowance made to a guardian for the maintenance of his ward, and it appears that payments were made at irregular intervals, as necessity required, the guardian's estate cannot, upon an accounting by the executor of the deceased guardian, be allowed a lump sum for further payments not shown to have been made: Guardianship of Hoare, 14 Haw. 443, 447. A probate judge has power to order a guardian to increase his ward's allowance: Guardianship of Kapukini, 12 Haw. 22, 27. BEFEBENCBS. Maintenance of ward: See note 1 L. E. A. 304, 805. (3) Contract for support. The guardian may make a contract for the support of his wards without the sanction of the court; and if it is for a reasonable amount, the court should allow him credit therefor in his account. Guardians are not always men of great efficiency in the matter of book-keeping, and the estates are not always of sufficient amount to justify an elaborate system of accounts. In cases where such a contract is made without the order of the court, it is a sufficient itemization to state, in the report accompanying the account, or elsewhere in the account, the particulars of the contract or agreement made to secure due maintenance of the ward, and to 172 PROBATE LAW AND PRACTICE. state in the account proper the sums paid in pursuance thereof; though it would be the duty of the court to scrutinize the contract or arrangement whereby the money was applied to maintenance, and to see to it that it was just and fair, and that the sum for which credit was claimed did not exceed the sum paid in pursuance of the agree- ment. If the guardian acted in good faith, and the contract was fair and just, the fact that the precise expense for each child was not separately provided for by the arrangement made, or was not shown in the account, would not, of itself, deprive the guardian of the right to credit for money actually paid or applied to the support of the ward: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454, 459. (4) Support of abandoned child. While a father, who has aban- doned a child, may be deprived of its custody by a summary proceed- ing in guardianship, he. cannot be compelled to compensate the guardian for the support of such child. A parent who has been deprived of the custody of his child by such a summary proceeding is no longer liable for its support, and, aside from the cases of divorce, and actions between the parents in regard to the custody of children, there is no other case in which the court has power to deprive the parent of hi^ authority, and yet hold him liable for the support of his child, except under a statute providing that a civil action may be brought by a child, or certain relatives, against the parent for abuse of parental authority, in which the duty of support may be enforced: In re Eoss (Cal. App.), 92 Pac. Eep. 671, 672. (5) -Custody of ward. Access. When a court of competent juris- diction appoints a guardian of the person of a minor, such minor becomes a ward of the court, and the guardian is, in effect, an arm of the court, and is subject to the control of the court in the dis- charge of his duties as such guardian. Such court has authority to control and direct the guardian in the performance of his trust so as to insure the proper care of the infant. Hence, although a guardian has been appointed for an infant abandoned by its father, it is not an abuse of discretion for the court to allow the father access to the child, where he is a fit and proper person: In re Eoss (Cal. App.), 92 Pac. Eep. 671, 672. 4. Duties and powers of guardians. (1) In general. It is a recognized principle that statutory guardians have an authority coupled with an interest, not a bare authority; and it is not within the power of the legislature to take the estate of minors out of the hands' of their guardian, and to withdraw it from the control of the probate court, by authorizing another party to dispose thereof. Such an act would be judicial and not legislative in its character, and for that reason would be unconstitutional: Lin- coln V. Alexander, 52 Cal. 482, 486. If the court does not specially GENERAL AND MISCELLANEOUS PROVISIONS. 173 appoint a guardian ad litem for a particular action, it is the duty of the general guardian to appear for his ward: Gronfier v. Puymirol, 19 Cal. 629, 632. Under statutes, as well as at common law, the guardian has the right to the custody and control of his ward's estate, and the court has no power to interfere with a guardian's custody and general management of his ward's property, except, of course, for conduct authorizing suspension or removal: De Greayer v. Superior Court, 117 Cal. 640; 49 Pac. Eep. 983, 984. A statute which provides a mode of determining the abuse of parental authority is not a limitation upon the authority of the superior court to appoint a guardian on petition to that court: Ex parte Miller, 109 Cal. ,643; 42 Pac. Rep. 428. A guardian is not remiss in his duty by failing to apply for a family allowance from the estate of the wards' de- ceased father for their support; and where the entire estate of. the wards in the hands of the guardian consisted of a certain sum of money due each ward, derived from the life-insurance policy on the life of the father, the fact that the guardian failed to procure an order for family allowance will not prevent him, as guardian, from being allowed credit for payment out of the insurance-money for the support of his wards: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454, 456. A guardian should follow the directions of the statute, and make the accounts and reports therein required of him. His own safety, the requirements of business prudence, and the welfare of the ward and his estate, demand this. The statute, however, does not require annual accounts of guardians, but it would be better for all concerned if so made. At the same time, it cannot be said that a failure to comply strictly with the statute, or neglect to render accounts with some regularity and promptness, necessarily imposes punitive responsibility upon the guardian. If there be loss to the estate, the question of the guardian's liability therefor depends much vipon the circumstances under which the loss occurred: Curtis v. Devoe, 121 Cal. 468; 53 Pac. Eep. 936, 938. The guardian of an infant appointed by the probate court is not a trustee of an express trust: Fox v. Minor, 32 Cal. Ill, 117; 91 Am. Dee. 566. One who accepts an appointment as guardian, and takes charge of the ward's estate, places himself within the jurisdicton of the court, becomes an officer of the court, is answerable to it for the faithful performance of his trust, and is forever afterward estopped by the record from denying his accountability: Pox v. Minor, 32 Cal. Ill, 119; 91 Am. Dee. 566. BEFEBENCES. Common-law powers of guardians: See note 89 Am. St. Eep. 257- 316. Eight of guardian to remove incompetent or infant from the state: See note 58 L. E. A. 931-937. (2) Power of guardian as to contracts. A guardian, in making contracts relating to the estates of his wards, can bind himself only, 174 PROBATE LAW AND PRACTICE. and can bind neither his wards personally nor their estates: Shepard V. Hanson, 9 N. D. 249; 83 N. W. Kep. 20. The guardian of minor heirs has no power to bind them by a contract that they shall pay a certain portion of the indebtedness of the estate: Luck v. Pattersoji, 2 Gol. App. 306; 30 Pac. Eep. 253, 254. BEFEBENCES. Power of guardian to compronjise or settle claims of ward: See note 1 L. B. A. 305. (3) Power of guardian to assign appropriation mad,e for ward by probate court. Where an estate is in the hands of a probate court, which makes an appropriation of a part thereof to the immediate use of infant wards, by an order directing the executors to pay to the mother of such wards, as guardian, a said sum of money, such order is an appropriation, which the guardian may assign, without leave of the probate court, and the assignee may maintain an action against the executor to recover the money: Schmidt v. Wieland, 35 Cal. 343. 5. Bights and powers of guardians. (1) Guardian may do what. A guardian of the person and estate of minors should personally administer his trust, and not permit the business affairs of his ward to be transacted by others, but, under peculiar circumstances, he may be excused for allowing this to be done. Thus the guardian of an old man may permit the business affairs of his ward to be managed by others than himself, where such other persons are relatives, and are not only conversant with his affairs, but the children and heirs at law request such different management, and no creditor appears to contest the account: Eacouillat v. Eequefia, 36 Cal. 651, 656. A guardian may pay claims against his ward without prior approval by the probate court or judge: Eacouillat v. Eequefia, 36 Cal. 651, 657. Expenditures by a guardian for repairs on his ward's property are upheld on the ground of protection to the capital and property of the ward. The right, and even thf duty, of a guardian to protect the land and premises of his ward by reasonable and proper repairs cannot be seriously ques- tioned, although it is, no doubt, better that he first obtain the sanc- tion of the court. So a disbursement for the protection of the capital of the ward, invested in property other than lands, should be upheld upon the same principle, if the same be reasonable, and necessary and beneficial to the estate. It follows that the guardian may purchase certain capital stock of a corporation, to save the other shares of his ward therein from depreciation, if not destruction, in value; and such a purchase, reasonably made for the protection of such other shares of corporate stock, is not within the constitutional inhibition against the investment of trust funds in shares of stock of private corpora- GENERAL AND MISCELLANEOUS PROVISIONS. 175 tions. To deny such right of purchase, by way of protection, by reason of the constitutional restriction, would be to deny the right to buy one share, even if that alone would be the means of saving a ■much larger investment from total loss: Nagle v. Eobins, 9 Wyo. 211; 62 Pac. Rep. 154, 158. In the absence of fraud or collusion, a minor, properly represented, is bound as fully as if he had been a major and personally cited. The guardian of a minor, therefore, is justified in admitting in his answer that a homestead, involved in certain partition proceedings, was community property: Kromer v. Friday, 10 Wash. 621; 39 Pac. Rep. 229, 234. If a guardian acts with judicial authority, he binds his ward, and where the ward, for many years after attaining majority, assents to a partition made by his guardian, he is bound thereby. A parol partition which has been actually consummated by possession and dominion in severalty, and which has been confirmed upon long-continued acquiescence, and by many changes of title, ought not to be, and will not be, distributed in equity: Brazee v. Schofield, 2 Wash. Ter. 209; 3 Pac. Eep. 265, 268. Under a statute authorizing any person interested in the estate of a deceased person to appear and file his exceptions, in writing, to an administrator's account, and to contest the same, the guardian of the estate of minors is interested as such guardian, and has a right to appear and contest such account in an estate where his wards are interested; and the appointment of an attorney by the court for the minors cannot take from the guardian the right to be heard: Estate of Rose, 66 Cal. 241; 5 Pac. Rep. 220. (2) Guardian cannot do what. A guardian has no power to make a contract binding upon the ward or upon his estate, however proper and beneficial the contract may be. Contracts made by him affecting his ward or his estate impose a personal liability upon himself, and his protection from loss lies in his right to charge the expenditure to the ward's estate in his account: Andrus v. Blazzard, 23 Utah, 233; 63 Pac. Eep. 888, 890. The guardian cannot therefore mortgage the real property of his ward for the purpose of paying debts, where there is no provision of the statute allowing him to do so: Andrus v. Blazzard, 23 Utah, 233; 63 Pac. Rep. 888. So a contract made by him without order of court, for legal services to be rendered in establish- ing the ward's right to an estate, payment to be made out of the pro- ceeds of such estate, is unauthorized: Morse v. Hinckley, 124 Cal. 154; 56 Pac. Kep. 896, 898. Nor has he any right to bind his wards by con- tract that each shall pay one half of all " claims against the estate," where such claims against the estate were not the debts of the estate, but debts contracted in administering the estate. The debts against an estate are, and of necessity can only be, those contracted by the parties before death, before the property becomes an estate to be administered. A debt contracted by the administrator, many years after the death, is not a debt due by the estate, but one contracted 176 PBOBATB LAW AND PEACTICE. in course of administration. To allow any debt contracted in adminis- tering an estate as the debt of an estate would be error, where the allowance was made solely upon the authorization of the adminis- trator, who had contracted it; and it makes no difference that the services for which the debt was contracted were beneficial to the administrator and to his children as heirs. Such fact would not make the claim for such services a legal demand against the estate. There is a wide distinction between debts due by an estate and those con- tracted in the course of an administration, and in the manner of their allowance: Lusk v. Patterson, 2 Col. App. 306; 30 Pae. Eep. 253, 254. A guardian, who has not obtained an order of court authorizing him to perform work on the property of his ward, cannot subject the property of his ward to a mechanic's lien for work done thereon by a mechanic under a contract with the guardian: Fish v. McCarthy, 96 Cal. 484; 31 Pac. Eep. 529. If the guardian of a minor's estate makes his individual mortgage to his ward to secure a debt due from him to the estate, the guardian cannot satisfy such mortgage without authority of the court, and without payment of the debt: Jennings v. Jennings, 104 Cal. 150; 37 Pac. Eep. 794, 796. If a guardian makes application for a substitution' of attorneys, an order for such substitu- tion does not authorize a contract with the new attorney affecting the ward's property: McKee v. Hunt, 142 Cal. 526; 77 Pae. Eep. 1103. The executors of a deceased guardian have no authority to present his account for settlement to a probate court, nor has such court jurisdiction over the matter: In re Allgier, 65 Cal. 228, 230; 3 Pac. Eep. 849. The general guardian of a minor, as such, has no right to the custody and management of trust property. It is for the trustees to manage the trust fund, under the directions of the court, paying for the maintenance and support of the minor such sums as may be necessary, paying them, indeed, to the general guardian of the minor, if the court should hold such to be the advisable course, and being protected in their payments by the order of the court. But, on the dither hand, if the execution of the trust be arrested for lack of a trustee, it is proper for the guardian to apply to the court to fill the vacant trusteeship, and the court, in the exercise of its powers, may appoint any fit and proper person, whether the guardian or another, to the vacancy. But, if the guardian should be appointed, he would not take the trust property as guardian, but as trustee: Hallinan v. Hearst, 133 Cal. 645; 66 Pac. Eep. 17, 19. The last wUl and testament of the ward is not an asset of his estate, nor is it any evidence of the ward's title to property. Neither is it an instrument which the guardian can use in the recovery of an asset. It cannot in any way relate to any matter within his power or duties, nor in any manner affect his action as a guardian, because it cannot take effect until after his authority has ceased. He certainly cannot annul revoke destroy, or in any way dispose of it, nor can the court authorize him to do so, and he is not entitled to its possession or to a knowledge GENERAL AND MISCELLANEOUS PROVISIONS. 177 of its contents. If it were in his hands, of course it would be his duty to preserve it. But a person, if competent to make a will, has a right to select its custodian, and the subsequent incompetency of the maker of the will does not entitle the guardian to the possession of the instrument: Mastick v. Superior Court, 94 Cal. 347, 349; 29 Pac. Eep. 869. So far as general uses are concerned, it is not neces- sarily incompatible to unite in the same person the capacities of administrator and guardian. But, in a special proceeding set on foot by such person, as administrator, against his ward, and for the dis- tinctive purpose of devesting the ward of his title as heir, such person cannot represent the ward: Townsend v. Tallant, 33 Cal. 45, 52; 91 Am. Dec. 617. (3) Actions by guardian. A guardian is not permitted to bring suit in his own name, and in his individual capacity, for money or property belonging to the ward; but must bring suit as guardian: Dennison v. Willcut, 3 Ida. 793; 35 Pac. Eep. 698. If, pending a suit by a guardian, the ward becomes of age, he is entitled to be sub- stituted as plaintiff, where the guardian has been discharged, and revivor is neither necessary nor proper: Shattuck v. Wolf, 72 Kan. 366; 83 Pac. Eep. 1093. An averment, in a petition, that a guardian was appointed is put in issue by a verified answer denying generally the averments of the petition, where the affiant states that the denials or contents of the answer are true: Caple v. Drew, 70 Kan. 136; 78 Pac. Eep. 427. If an action is brought in behalf of minors by their guardian, it is incumbent upon the guardian to set out facts in an issuable form, in his complaint, which show his representative capacity and the character in which he sues; and a complaint, in such a case, which does not do so is demurrable. But such demurrer must be special, and upon the ground of want of capacity to sue, and, unless BO made, such objection is waived: Dalrymple v. Security L. & T. Co., 9 N. D. 306; 83 N. W. Eep. 245. In an action by a guardian of the estate of minors, upon a promissory note which is, in terms, payable neither to such guardian nor to his wards, but to another person, and is not indorsed either generally or by special indorsement, the owner- ship of which. is challenged by an express denial in the answer, it is held, under the evidence referred to in the opinion, showing that said note was delivered to the county court by the payee, who formerly had been guardian of the estate of said minors, to cover a shortage arising from his unlawful use of the trust funds, and that the same was accepted by said court, that title thereto is established in the wards: Shepard v. Hanson, 10 N. D. 194; 86 N. W. Eep. 704. (4) Actions against guardians. It is well established that a settle- ment of an administrator's account by the decree of a probate court does not conclude as to property accidentally or fraudulently withheld from the account. If the property be omitted by mistake, or be subse- Probate — 12 178 PEOBATE LAW AND PEACTICB. quently discovered, a court of equity may exercise its jurisdiction in the premises, and take such action as justice to the heirs of the deceased, or to the creditors of the estate, may require, even if the probate court might, in such case, open its decree, and administer upon the omitted property; and a fraudulent concealment of property, or a fraudulent disposition of it, is a general and always existing ground for the interposition of equity: Lataillade v. Orena, 91 Cal. 565; 27 Pac. Eep. 924, 926. In an action against a guardian for an accounting as to moneys received by the defendant, and in part held by him in trust for the plaintiff, the money received constitutes, in defendant's hands, a single fund, though derived from sales of real and personal property, and received at different times: Lataillade v. Orena, 91 Cal. 565; 27 Pac. Eep. 924. If a plaintiff had no knowledge, and no reason to suspect, that a fraud was being practised upon him, there was nothing to put him upon inquiry, and, under such circum- stances, it cannot be said that he failed to use due diligence to detect the fraud, and he cannot be presumed to have known anything con- cerning it. Hence, if the complaint states when the discovery of fraud was made, and what it was, and how it was made, and why it was not made sooner, it is sufScient in this respect: Lataillade v. Orena, 91 Cal. 565; 27 Pac. Eep. 924, 927. In partition proceedings, where the guardian of infants having an interest in the property was personally served with process, and he answered, and was repre- sented by counsel throughout the proceedings, the minors are bound by the acts of their representative: Kromer v. Friday, 10 Wash. 621; 39 Pac. Eep. 229, 234. An action cannot be" maintained against a guardian upon the liability of a ward, but only against the ward, and the guardian being a proper party, he may appear and defend the action in the interest of the ward, but is not a party for the pur- pose of establishing a personal liability against him: Sturgis v. Sturgis (Or.), 93 Pae. Eep. 696, 699. KEFERENCES. Service of process on guardian: See Kerr's Cal. Cyc. Code Civ. Proc, § 1722. 6. Investments by guardian. The guardian of a minor has power to invest moneys of his ward without an order of court; but if he does so, it is generally at his own risk. If an opportunity for an investment presents itself to a guardian, he should protect himself by making an application to the court for authority to invest the ward's mo^ney. An order for investment or other management of the funds, thus obtained, will protect the guardian, although misfortune follows. But where the guardian acts upon his own judgment, he is held to a more strict accountability: Guardianship of Cardwell, 55 Cal. 137, 141. An order of court directing the guardian to lend funds of his ward on the terms and security therein stated will protect the GENERAL AND MISCELLANEOUS PROVISIONS. 179 guardian from all liability by reason of such loan, if it is made on insufficient security. There could be no purpose in securing such order, or any reason for the enactment of the statute authorizing it, if it did not afford protection: In re Schandoney's Estate, 133 Cal. 387; G5 Pac. Bep. 877, 878. If a guardian lends twenty thousand dollars of the estate of his ward, taking therefor, as security, sixty thousand dol- lars of dividend-paying stock, worth par, the ward cannot except to such investment, where the guardian, before making it, examined the books of the corporations issuing the stock, and was convinced that such corporations were sound and the stock worth par, and did not make the investment until after he had taken the advice of his "counsel and of the .judge having control of the estate: Nagle v. Eobins, 9 Wyo. 211; 62 Pac. Rep. 154, 161. It must be observed, how- ever, that conversations between the guardian and the judge of the court having control of the ward's estate,, preceding investments by the guardian, and verbal advice of the judge to make such invest- ments, are not such orders and directions as the statute authorizes the court to make in the premises. They may show the guardian's good faith and the knowledge of the judge at the time of entering the orders of approval; but the advice of a judge, given verbally, under such circumstances, is not to be regarded as tantamount to an order contemplated by the statute: Nagle v. Eobins, 9 "Wyo. 211; 62 Pac. Eep. 154, 157. Furthermore, an intermediate order of approval of the report of a guardian does not protect him to the same extent as an original order directing such investments as the guardian may have made: Nagle v. Eobins, 9 "Wyo. 211; 62 Pac. Eep. 154, 156. The guardian has power to make investments by loan, and to spend money for repairs and for the protection of the estate in his hands generally, and ordinarily without an order of court. But in doing so he runs the risk of having his acts disapproved by the court. The difference between an investment made with and one made without a previous order affects only the rights of the ward, and the liability and risk of the guardian. Where the investment is made without an order of court, it is subject to attack by the ward upon the final settlement; but where the investment is made by an order of court, it is not subject to attack by the ward upon final settle- ment. The absence of an order of court, directing a loan of the ward's money, is not alone sufficient to entitle the ward to refuse to accept the investment: Nagle v. Eobins, 9 "Wyo. 211; 62 Pac. Eep. 154, 156, 157. If the guardian has authority to make the investment without an order previously obtained, the subsequent intermediate approval thereof stands upon the same footing as approvals of current accounts, or annual settlements of accounts, pending the continuance of the guardianship. It is generally held that such approvals and settlements, while prima facie evidence of correctness, are not con- clusive upon the ward: Nagle v. Eobins, 9 "Wyo. 211; 62 Pac. Eep. 154, 157. In the territory of Hawaii the investment of the funds of a ]80 PROBATE LAW AND PRACTICE. ward by his guardian is not restricted to public securities and real estate mortgages. Such funds may be invested in the bonds of pri- vate industrial corporations, if such bonds are amply secured by a mortgage deed of trust and are regarded with favor by prudent investors. But the purchase of such bonds, by the guardian of a minor, from a corporation of which he is the treasurer and one of the directors, is voidable at the election of the cestui que trust: Guardianship of Parker, 14 Haw. 347, 358. 7. Sales of land. (1) In general. The sale of real estate is not one of the general duties of a guardian; and a ward cannot, therefore, on obtaining his majority, maintain a suit against the guardian and the surety on his general bond to recover moneys received by the guardian on a sale of the ward's realty, and not accounted for, where the statute does not, in direct terms, require a condition in the general bond to account for the proceeds of such sales: Henderson v. Coover, 4 Nev. 429, 433, 434. A guardian cannot sell his ward's property with- out an order of court, and this includes personal property: Kendall v. Miller, 9 Cal. 591; De la Montagnie v. Union Ins. Co., i2 Cal. 290, 293. Every alienation of the property of the ward, if made by the guardian without order of court, is void: De la Montagnie v. Union Ins. Co., 42 Cal. 290, 293. If a guardian, however, is authorized by an act of the legislature to sell his ward's real estate, subject to approval by the court, his sale thereof, under such authority, is valid; but he has no authority to accept anything but money in payment of the purchase price: Brenham v. Davidson, 51 Cal. 352, 356. To make a valid sale in pursuance of such authority, the person making it must first have received an appointment as guardian by the probate court in accordance with the general statutes upon that subject; otherwise the sale is void: Paty v. Smith, 50 Cal. 153, 158. A proceeding for the sale of land by a guardian is in the nature of a proceeding in rem: Gager v. Henry, 5 Saw. 237; Fed. Cas., No. 5,172. The parent of a minor has no authority, as his natural guardian, to transfer his real property: McNeil v. First Cong. Soc, 66 Cal. 105; 4 Pac. Rep. 1096, 1099. A guardian may, upon order of the court, sell his ward's real estate for the purpose of paying the debts and expenses of the guardianship: Andrus v. Blazzard, 23 Utah, 233; 63 Pac. Eep. 888, 890. The power to sell the real estate of a minor is statutory, and a substantial compliance with the requirements of the statute is necessary to devest the minor of his title, and this must be affirma- tively shown by the record: Ormau v. Bowles, 18 Col. 463; 33 Pac. Rep. 109, 111. Title to a ward's land passes by the guardian's deed therefor, and not by the confirmation of the sale: Scarf v. Aldrieh, 97 Cal. 360; 32 Pac. Rep. 324, 327. In determining whether the real or personal estate should be sold, the court should ordinarily be governed by the same reasons which would influence a competent GENERAL AND MISCELLANEOUS PROVISIONS. 181 adult in disposing of his own property. A determination of what is for the best interest of the ward must control. A probate homestead which has been set aside to a surviving wife and children, under order of court, may be sold, and a good title to the interest of the minors passed, where the adult heirs have all concurred in the sale, if such sale is deemed by the court to be advantageous to the estate of the minors: Estate of Hamilton, 120 Cal. 421; 52 Pac. Eep. 708, 709,. 710. The probate courts of New Mexico have jurisdiction to make an order appointing a special guardian to sell the undivided interest of minor heirs in certain lands owned by their deceased father, foi the benefit of said heirs, and a conveyance by the special guardian, made under authority of such order, is not void: Hagerman v. Meeks (N. M.), 86 Pac. Eep. 801, 802. An agent of the guardian of an infant owner of real estate has no power to make an executory contract f oi the sale of th^ infant's real estate. Such a sale can only be made upon an order of the probate court, and subject to the court's approval: Gault Lumber Co. v. Pyles (Okl.), 92 Pac. Eep. 175. The guardian of a minor ward has, in general, no authority to sell the ward's estate. unless authorized by a competent court; nor has he authority to sell at will the personal estate of his ward: Washabaugh v. Hall, 4 S. D. 168; 56 N. W. Eep. 82. There is a distinction to be observed between sales by guardians and sales by executors or administrators. A sale by a guardian is authorized, either when necessary to maintain or educate the ward, or when expedient for the purpose of a profitable . investment of the proceeds, but no sale of a decedent's estate by an executor or administrator is authorized except when it is " necessary " to pay: 1. Family allowances; 2. Debts of the decedent; 3. Expense of administration; 4. Legacies: Smith v. Biscailuz, 83 Cal. 344, 349; 21 Pac. Eep7 15; 23 Pac. Eep. 314. (2) Petition for. In order to render a guardian's sale effectual to confer a valid title, the probate court must have acquired jurisdiction of the case by the presentation of a proper petition by the guardian. What shall be the contents of such a petition is prescribed by the statute, and the petition should be in substantial conformity with its requirements: Eitch v. Miller, 20 Cal. 352, 381. The petition must set forth the condition of the estate of the ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of the sale, and the petition must be verified by the oath of the petitioner: Fitch v. Miller, 20 Cal. 352, 381. The necessity or expediency of the sale must arise from one or more of these circumstances: 1. The evidence of debts due from the ward, which cannot be paid out of his personal estate and the income of his real estate. 2. The insufficiency of the income of the estate of the ward to maintain the ward and his family, or to educate his family, or to educate him when a minor. 3. That it would be for the bennfit of the ward that his real estate, or a part thereof, should be 182 PROBATE LAW AND PRACTICE. Bold, and the proceeds put out on interest, or invested in some pro- ductive stock. In order to enable the court to judge of this necessity or expediency, the first requisite of the petition is that it shall set forth the condition of the estate, but the statute does not require that it shall designate the value of the several items and parcels of prop- erty of which the estate consists; it is necessary only to state the condition in such manner as to enable the court to judge of the existence of one or more of the circumstances above specified, render- ing a sale necessary or expedient: Fitch v. Miller, 20 Cal. 352, 382. If the sale is asked upon the ground that it is " necessary," there is the same reason for requiring a statement of the condition of the ward's whole estate- as exists in the ordinary case of a sale by an executor or administrator; namely, to enable the court to decide what particular part it is best to sell. But if the sale is asked upon the ground that it is for the " interest " of the ward that some portion of his lands should be sold and the proceeds invested, it is manifest that the condition of the property to be sold is the only matter to be inquired into, and that the policy or expediency of selling it is in no wise affected by the condition of other portions of his estate. The beginning and the end of inquiry in such case is, whether the price of the land to be sold can be invested to better advantage in something else; and a petition which fairly presents this question ought to be sufficient to give the court jurisdiction to make the order of sale, as it is by express enactment in the case of mining claims belonging to the estates of decedents: Smith v. Biscailuz, 83 Cal. 344, 350; 21 Pae. Eep. 15; 23 Pac. Rep. 314. A petition by guardian to sell his ward's realty is not a proceeding adverse to the ward, or to his relatives, but is in rem: Gager v. Henry, 5 Saw. 237; Fed. Gas., No. 5,172; Holmes v. Oregon etc. R. E. Co., 7 Saw. 380; 9 Fed. Eep. 229. A guardian's petition for the sale of his ward's estate is sufSeient to give the court jurisdiction, if it states " any cause " which, under the law, would have authorized the court to make a sale: Walker v. Goldsmith, 14 Or. 125; 12 Pac. Eep. 537, 554. Although the petition and order to show cause may contain a defective description of the lands to be sold, this does not affect the jurisdiction of the court or the validity of the sale, where the order of sale contains a specific and correct description of the land: Scarf v. Aldrich, 97 Cal. 360; 32 Pac. Eep. 324, 327. It is not a condition precedent to the exercise of the power to sell the ward's real estate for the purpose of reinvest- ing the proceeds of unproductive land, which is depreciating in value, in more desirable property, that the guardian shall have '• faithfully applied all the personal estate." The want of such an allegation constitutes no defect in the petition: Orman v. Bowles, 18 Col. 463; 33 Pac. Eep. 109, 111. Whether the real or personal estate of the ward shall be sold is in the discretion of the court. A determination of what is for the best interest of the ward must control; and it is not required that the petition should show the GENERAL AND MISCELLANEOUS PROVISIONS. 183 amount of personal estate and how much remains undisposed of, as such a provision relates to sales by executors or administrators, and not to sales by guardians: Estate of Hamilton, 120 Cal. 421, 424; 52 Pac. Eep. 708. BEFEBEN0E3. Sale of property of minors, and disposition of the proceeds: See Kerr's Cal. Cyc. Code Civ. Proc, §§ 777-792. What petition for sale of ward's real estate must contain: See Sprigg v. Stump, 7 Saw. 280; 8 Fed. Eep. 207. (3) Notice. Publication. A probate sale of real estate is not valid unless notice was properly given: Gager v. Henry, 5 Saw. 237; Fed. Cas., No. 5,172. A guardian's sale of his ward's realty is void, unless it appears that the same was made after due notice of the time and place thereof: Hobart v. Upton, 2 Saw. 302; Fed. Cas., No. 6,548. The notice required by the statute to be given to a ward of the hearing of his guardian's application for leave to sell his real estate is jurisdictional, and a deed made without such notice having been given is void, and subject to collateral attack: Beachy v. Shomber, 73 Kan. 62; 84 Pae. Eep. 547. But a failure to give the three weeks' notice by publication required by statute is held, in Colorado, not to be a jurisdictional defect such as to render the judg- ment subject to collateral attack: Mortgage Trust Co. v. Eedd (Col.),- 88 Pac. Kep. 473, 475. In the matter of the sale of the land of minors upon the application of a guardian, it is competent for the probate court to determine from the evidence submitted whether due and legal notice has been given to the minors: Bradford v. Larkin, 57 Kan. 90; 45 Pac. Eep. 69, 70, holding, in the case involved, that the notice was sufS^cient to confer jurisdiction upon the probate court, and that the proceedings were not void. Where the petition and the notice for the sale by a guardian of his ward's real estate are each signed by the guardian and served upon the minor by an individual who is not an officer, and the proof of the service is shown by the affidavit of the person who served the same, and all were filed in the probate judge's office, and the probate judge, as well as the district court, found that the service was sufficient, the supreme court must also consider it sufficient, especially where the service is attacked only in a collateral proceeding: Howbert v. Heyle, 47 Kan. 58; 27 Pac. Eep. 116, 117. Under a statute which requires a publication of the notice of sale of real property " for four weeks successively," it is not necessary that proof of notice should show that the notice was given for four weeks "next preceding the sale": Walker v. Goldsmith, 14 Or. 125; 12 Pae. Eep. 537, 555. An order of sale by a guardian on May 11th, notice to be first published at least once a week for three consecutive weeks in a newspaper, is complied with by publishing the notice in each issue of a daily paper commencing on April 21st and including May 11th, a period of twenty days. It 184 PaOBATE LAW AND PRACTICE. was not essential that the notice should have been published for the full period of three weeks before the sale: Orman v. Bowles, 18 Col. 463; 33 Pao. Eep. 109, 112; following Calvert v. Calvert, 15 Col. 390; 24 Pac. Eep. 1043. If an order to show cause why an order of sale of certain personal and real property of a minor should not be granted is published three weeks, in precise accordance with the statute, such publication is sufficient: Estate of Hamilton, 120 Cal. 421, 425; 52 Pac. Eep. 708. (4) Additional bond. Though the statute requires a bond of the guardian before making a sale of his ward's estate, the fact that the bond was not filed untU after a sale was made is not a valid objection to the validity of the sale, where it appears, by recital in the decree of sale, that, before making it, the guardian, as required in and by the order of sale, duly executed an additional bond to the state. Such bond could not have been " duly executed " unless it had been delivered to the judge, and all other acts performed which the statute required; and if delivered to the judge and approved, that was a sufficient filing: Smith v. Biscailuz, 83 Cal. 344, 358; 21 Pac. Eep. 15; 23 Pac. Eep. 314. If the court's order did not, in terms, require the guardian to give a bond, or to take an oath of office, and neither is found, but the record does not show that they were not given, the presumption, in support of a judgment adjudging a sale of the infant's property, is, that the guardian qualified as such: . Brady v. Eeese, 51 Cal. 447. See Goldsmith v. Grilliland, 10 Saw. 606; 23 Fed. Rep. 645. The fact that a guardian did not give a bond for the faithful application of the proceeds of the sale is without merit, where it appears that the terms of the sale were complied with: Orman v. Bowles, 18 Col. 463; 33 Pae. Eep. 109, 113. The omission of the court to require, and of the guardian to give, a special sale bond is a mere irregularity which does not affect or impair the jurisdiction of the court which ordered and affirmed the sale, where the statute does not declare that if a special bond be not given, a guardian's sale shall not be made, or that, if made, it shall be void, and where it does not provide that the order of sale shall become effective only when such special bond is given. The general bond of the guardian stands as security for the proper application of the proceeds of the sale: Hughes v. Goodale, 26 Mont. 93; 66 Pac. Rep. 702, 705. The sureties on a guardian's bond, conditioned that he shall " faithfully execute the duties of his trust according to law " in selling the real estate of his ward, are liable on such special bond, though they might not be liable on the bond given for the general administration of his ward's estate: Botkin v. Kleinschmidt, 21 Mont. 1; 52 Pac. Rep. 563, 564. (5) Order for. Where the statute provides that .the order of sale must describe the lands to be sold, the order of sale must be, in itself, GENERAL AND MISCELLANEOUS PROVISIONS. 185 sufficient; and, to make it so, the description of the land to be sold must be sufficiently definite and certain, without referring to any extraneous matter, and the order cannot be helped out by referring to a doctrine not found in it: Hill v. Wall, 66 Cal. 130, 132; 4 Pac. Eep. 1139. But the order of sale need not state the conclusions of the court as to the advisability of the sale: Gager v. Henry, 5 Saw. 237; Fed. Cas., No. 5,172. When the statute with reference to what the decree must contain in order to validate the sale by a guardian (notwithstanding the failure of the petition to state the condition of the estate, and the facts and circumstances going to show a sale to be necessary or expedient), provides that a failure to set out those facts and circumstances in the petition shall not invalidate the sale, if the decree contains a recital of " general facts " showing such , necessity, it means to declare that neither the failure* to set out the special facts and circumstances which, taken together, show the necessity or expediency of the sale, nor the failure to state the condi- tion (which appears of necessity from, and is a part of, the special facts and circumstances showing the necessity or expediency of a sale), shall invalidate the sale if the decree shall recite the " general facts " above stated. Such " general facts " mean those ultimate facts showing one or more of the contingencies under which the real estate of the minor may be sold by the guardian, and which must appear in some form in the petition therefor to give the court jurisdiction: Smith V. Biscailuz, 83 Cal. 344; 21 Pac. Eep. 15, 17; 23 Pac. Eep. 344, 356. Under a statute concerning the sale of a ward's real estate, and which requires a copy of the order to show cause to be personally served on the next of kin of the ward, or that it must be published, etc., it is not necessary that the order shall be served on the ward, because the minor is in court by the filing of the petition, and submits his property to the jurisdiction and order of the court: Scarf v. Aldrieh, 97 Cal. 360; 32 Pae. Eep. 324, 326. Proceedings pertaining to a guardian's sale of the real estate of his ward contemplate a case where there is a living ward, — a living ward not only when the proceedings are inaugurated, but up to and including the moment the deed is made. Hence if the ward dies before his guardian has filed an account, and the probate court decrees that the ward's estate is indebted to the guardian, an order authorizing the guardian to sell his ward's real estate for such debt is invalid, because the guardian's authority expired on the death of the ward: Estate of Livermore, 132 Cal. 99; 64 Pae. Eep. 113. An order directing the sale of certain personal and real property of a minor " for cash " sufficiently fixes the terms of the sale: Estate of Hamilton, 120 Cal. 421, 425; 52 Pac. Eep. 708. It is the duty of a guardian to pay all just debts of the ward out of his personal estate and the income of his real estate; and when a sale of the property of the ward is neces- sary to pay the debts and expenses of guardianship, the guardian may, upon an order of the court, sell the ward's real estate for that 186 PEOBATB LAW AND PEACTICE. purpose: Andrus v. Blazzard, 23 Utah, 233; 63 Pac. Rep. 88. Where a probate homestead has been set apart for the use of the widow and minor children, the guardian may, under proper proceedings had in the probate court, in the matter of the estate of such minors, obtain an order for the sale of their interests in such homestead during their minority: Estate of Hamilton, 120 Cal. 421, 428; 52 Pae. Eep. 708. EEFESENCE3. Order of sale must contain what: See Ken's Cal. Cyc. Code Civ. Proc, §1544. (6) Validity of. Where a proceeding by a guardian for the pur- pose of selling his ward's estate is not adverse to the latter's interest, and where there is no statute making the appointment of a guardian ad litem a requisite to the validity of the sale, no such appointment is necessary: Orman v. Bowles, 18 Col. 463; 33 Pac. Eep. 109, 112. Where it is apparent that an appraisement of real estate was filed in court before the confirmation of sale, the marking of it " filed," by the clerk, is not essential to its validity: Smith v. Biscailuz, 83 Cal. 344; 21 Pac. Eep. 15, 18. And an ambiguous report of appraisers, made in the course of proceedings upon which a guardian's deed is based, will, if possible, be given a construction that will uphold the deeds: Beachy v. Shomber, 73 Kan. 62; 84 Pac. Eep. 547. The title to land of the ward passes by his guardian's deed therefor, and not by the confirmation of the sale: Scarf v. Aldrich, 97 Cal. 360; 32 Pac. Eep. 324, 327. A guardian's sale of his ward's land is valid, though the order of sale was erroneous, as having been made twenty- three days after the order to show cause, while there should not have been less than four weeks or twenty-eight days intervening. Such an order is clearly erroneous; but if the court acquired jurisdiction when the petition was presented, and if the proceeding is not adverse to the ward, such error or irregularity does not vitiate the sale: Scarf V. Aldrich, 97 Cal. 360; 32 Pac. Eep. 324, 325. Where there is a matter of substance upon which jurisdiction can hinge, mere errors or defects in a guardian's sale of his ward's land, although material in some respects, but which might have been avoided upon appeal, cannot avail to condemn the proceeding, when, by lapse of time, an appeal is barred, and which proceeding has become the foundation of title to property: Walker v. Goldsmith, 14 Or. 125; 12 Pac. Eep. 537, 555. Where a sale of the land of minors was duly made by a guardian for the actual value of the same, the sale approved, the money paid, and expended for the support and education of the minor, and the purchaser takes possession thereunder, and holds the same for a long time, he acquires the full, equitable title, and is entitled to a conveyance of the legal title; and the mere fact that a deed which contains a full recital of the preliminary proceedings omits the name of one of the minors will not invalidate the sale, GENERAL AND MISCELLANEOUS PROVISIONS. 187 and in such ease the purchaser or his grantee is entitled to have his «state, interest, and possession of the land quieted as against the claim of any of the minors: Bradford v. Larkin, 57 Kan. 90; 45 Pae. Eep. 69. So where it appears by the record that the notice describing the land sold was published the required length of time, the fact that the petition presented to the court included other tracts de- scribed in another notice not so published, which were not sold, does not affect the validity of the sale of the land properly advertised. Even under an order of sale valid as to all the land described therein, we apprehend that a failure from any cause to sell the entire property would not vitiate the sale of a portion, much less should a failure to sell that illegally ordered sold have such an effect: Orman v. Bowles, 18 Col. 463; 33 Pac. Kep. 109, 112. And the failure of the guardian to give security required by the statute relating to guardians and wards will not render void a sale regularly made and approved: Howbert v. Heyle, 47 Kan. 58; 27 Pac. Eep. 116. The conveyance of a ward's land, by the guardian, for the furtherance of a public use, as where it has been conveyed to a railroad, is valid, where the deed is in proper form to convey the estate, and the probate judge has found that it was a case within the statute, and has approved the sale, and where the only limitation upon the sale is that it shall be approved and confirmed by the probate judge: Hodgdon v. Southern Pac. E. E. Co., 75 Cal. 642; 17 Pac. Eep. 928, 931. Mere irregularities of proceedings in a guardian's sale, though of so grave a character as to render the sale inoperative, may be deprived of their evil conse- quences by subsequent legislation: McCulloch v. Estes, 20 Or. 349; 25 Pac. Eep. 724, 725. It is a well-recognized rule of law that the legislature may, unless prohibited by the constitution, validate or legalize, retrospectively, judicial or execution sales, even though the defects or irregularities therein are. of so grave a character as to render them inoperative, so long as it does not undertake to infuse life into proceedings utterly void for want of jurisdiction. Thus the selection of the time and place of sale by a guardian, in advance of taking the prescribed oath, is, under the decisions, fatal to the purchaser's title; but the defect or irregularity may be cured, and the sale validated, by subsequent curative act of the legislature: Fuller V. Hager, 47 Or. 242; 83 Pac. Eep. 782, 783. If shares of stock in an insurance company belong to an infant, but are issued to his guardian, who afterwards, without any order of court, sells and assigns the same, such sale is void, and gives no title to the purchaser: De la Montagnie v. Union Ins. Co., 42 Cal." 290. A guardian's sale is presumed to have been regular and according to law, though the record does not show the particular proceedings taken, except as to the particulars mentioned in the statute. The statutory proceedings for the sale of property by guardians must, however, appear of record, or the sale is invalid and void: Hobart v. Upton, 2 Saw. 302; Fed. Cas., No. 6,548; Gager v. Henry, 5 Saw. 237; Fed Cas., 188 PROBATE LAW AND PRACTICE. No. 5,172; Walker v. Goldsmith, 14 Or. 125; 12 Pae. Eep. 537, 540. A guardian's sale of his ward's real estate is valid if notice ivas properly given: Gager v. Henry, 5 Saw. 237; Fed. Cas., No. 5,172. But such sale is void unless it appears that it was made at public auction, after due notice of the time and place thereof, when a sale at public auction is required by the statute: Hobart v. Upton, 2 Saw. 302; Fed. Gas., No. 6,548. Where the probate court of Elk County, in Kansas, issued letters of guardianship appointing a guardian of the person and estate of a minor whose domicile was in Greenwood County, and, upon application, made its order directing a sale of the minor's interest in real estate situated in said county of Elk, it was held, in an action of partition in the district court of Elk County, by the guardian of said minor, subsequently appointed by the probate court of Greenwood County, that the proceedings in the Elk County probate court and the guardian's deed were void as against the purchaser at such guardian's sale, and also void as against his grantee, claiming under said guardian's deed: Connell v. Moore, 70 Kan. 88; 78 Pac. Bep. 164. An administrator or guardian is prohibited from purchasing trust property at his own sale, and a sale by him to another, who does not pay any consideration, and who immediately transfers the property to the administrator or guardian, is void, and as much a violation of the fiduciary relation, and as great a fraud in the eye of the law, as if the sale had been made directly to himself: Webb v. Branner, 59 Kan. 190; 52 Pac. Eep. 429. (7) Furchasei and his rights, A guardian, like an administrator, is prohibited from purchasing trust property at his own sale: Webb V. Branner, 59 Kan. 190; 52 Pac. Bep. 429. Since, under the law of this state, the wife's interest during marriage in the real estate of her husband, while a contingent one, is unquestionably property, the statutory incapacity of a guardian to become a purchaser at the sale of his ward's property is held to exclude the husband of a guardian from becoming such a purchaser: Frazier v. Jeakins, 10 Kan. App. 558; 63 Pac. Eep. 459. If a guardian, or the husband or wife of such guardian, wishes to buy at the guardian's sale, the proper practice is to obtain leave of court to do so, on a showing of reasons therefor: Frazier v. Jeakins, 64 Kan. App. 615; 68 Pac. Eep. 24. Where a probate homestead has been set apart by the court from community property, for the use of the surviving wife and minor children, it belongs, one half to the widow, and the remainder, in equal shares, to the children. The widow, and children upon attain- ing majority, may dispose of their respective interests in such home- stead, and during their minority the children's interests may be sold by the guardian, but the purchaser, where he was not misled, and did not misunderstand the terms of the sale of the property, cannot complain that it was sold " in one lump," and that the interest of GENERAL AND MISCELLANEOUS PROVISIONS. 189 one of the minors, an undivided eighth, was not offered separately, unless he can show that, because of the mode in which the interest of the minor was sold, he did not acquire a good title to that interest: Estate of Hamilton, 120 Cal. 421, 425; 52 Pac. Eep. 708. Purchasers at a guardian's sale, who close their eyes to facts, facts which were open to investigation by the exercise of that diligence which the law imposes, are not protected. " Whatever is notice enough to excite the attention of a man of ordinary prudence and call for further inquiry is, in equity, notice of all facts to the knowledge of which an inquiry suggested by such notice and prosecuted with due and reasonable diligence would have led": Dormitzer v. German Sav. & L. Soc, 23 Wash. 132; 62 Pac. Eep. 862, 890; citing Kerr on Fraud and Mistake. -A statute providing that a guardian's sale shall not be void by reason of any " irregularity in the proceedings " when the g^aardian made a sale, and the premises are held by " one who purchased them in good faith," does not protect one who pur- chased property at a guardian's sale, with notice of fraud in the pro- ceedings, or of facts which would place him on inquiry, from an action to set aside the sale for fraud: Dormitzer v. German Sav. & L. Soc, 23 Wash. 132; 62 Pac. Eep. 862, 882, 883. An order of court, confirm- ing a guardian's sale, which fails to direct the investment of the proceeds, goes to a matter subsequent to the consummation of the sale, and does not affect the purchaser's rights. He is not required to see that such proceeds are properly invested, and a failure to invest them at all could not defeat a sale properly made: Ormau v. Bowles, 18 Col. 463; 33 Pac. Eep. 109, 113. Where a minor's interest in land, incapable of partition, is sold as a whole, at public auction, and it appears that the purchaser bid for the whole property, and ' knew what he was bidding for; that it was announced, at the time the property was offered, that bids would be received for the whole, and treated as pro rata bids for the several interests; that the court found that such pro rata bid for the interest of the minor was not disproportionate to its value; that an offer of ten per cent more, exclusive of the costs of the new sale, could not be had; and that the proceedings at the sale were fair, — such purchaser cannot object to a confirmation of the sale of such minor's undivided interest: Estate of Hamilton, 120 Cal. 421, 425; 52 Pac. Eep. 708. (8) Setting aside. The judgment of a county court, when acting as a court of probate, in a proceeding by a guardian to sell the land of a ward, cannot be questioned, except in the manner provided by statute: Gager v. Henry, 5 Saw. 237; Fed. Gas., No. 5,172. As to what evidence is sufficient to set aside a guardian's sale for fraud, where the allegations of the complaint attack certain probate pro- ceedings and acts of the guardian, and the sale of the property made by him as fraudulent, see Dormitzer v. German Sav. & L. Soc, 23 Wash. 132; 62 Pac. Eep. 862, 891. Proceedings for the sale of property 190 PBOBATE LAW AND PRACTICE. by guardiaus are the same as those prescribed for the sale of property of decedents by executors or administrators. Hence if the court is satisfied from the evidence as to the value of the property, and that the amount bid for it by the purchaser, including an increased bid in the court, is disproportionate to the value of the property, it may, in its discretion, refuse confirmation of the sale, and set it iiside, and order a new sale: In re Jack, 11 Gal. 203, 206; 46 Pac. Kep. 1057. Where probate proceedings were had for the purpose of vesting title to an entire piece of property in the father of certain minors, so that he might mortgage it to get money for the purpose of finishing buUdings in the course of construction on part of the property; where the children were to get a second mortgage, instead of having their interest sold for cash; where a form of bidding had been agreed upon, in advance, by the probate court, on testimony taken as to the fair value of the children's interest; and where the guardian was used as an instrument by the f3,ther to accomplish this end, with full knowledge of the probate court, — the sale will be set aside as fraudulent: Dormitzer v. German Sav. & L. Soc, 23 Wash. 132; 62 Pac. Eep. 862, 890. As a general rule, a party occupying a. relation of trust or confidence to another is, in equity, bound to abstain from doing everything which can place him in a position inconsistent with the duty or trust such relation imposes on him, or which has a tendency to interfere with the discharge of such duty. Upon this principle, no one placed in a, situation of trust or confidence in reference to the subject of a sale can be the purchaser, on his own account, of the property sold. If such a one purchases the property, the option of the person interested in the property, and to whom the relation of trust or confidence was sustained, has the option to set aside the sale within a reasonable time, however innocent the purchaser may be: Dormitzer v. German Sav. & L. Soc, 23 Wash. 132; 62 Pac. Eep. 862, 891. The doctrine as to purchases by trustees, guardians, administrators, and persons having a confi- dential character arises from the relation between the parties, and not from the circumstance that they have power to control the sale. The right to set aside the sale does not depend on its fairness or un- fairness. To set aside the purchase, it is not necessary to show that it was actually fraudulent or advantageous. If the trustee, or other person having a confidential character, can buy in an honest case, he may in a case having that appearance, but which may be grossly otherwise; and yet the power of the court, because of the infirmity of human testimony, would not be equal to detect the deception. It it to guard against this uncertainty and the hazard of abuse, and to remove the trustee, and other persons having confidential relations, from temptation, that the rule does and will permit the cestui que trust or other person to come, at his option, and, without showing actual injury or fraud, have the sale set aside: Dormitzer v. German Sav. & L. Soc, 23 Wash. 132; 62 Pac Eep. 862, 891. Where certain shares GENERAL AND MISCELLANEOUS PROVISIONS. 191 of stock of a decedent's estate have been sold, and, by the terms of the will of the testator, a minor child is entitled to one half of his estate, and a sale has been confirmed, the guardian of such minor child may be relieved from such order of confirmation, on the ground that the price received for the property was disproportionate to its value, and that the sale thereof, at such price, was a fraud upon the estate and upon such minor child. Such relief may be granted under section 473 of the Code of Civil Procedure of California, which pro- vides that the court may, in its discretion, relieve a party, if applica- tion be made within a reasonable time, from a judgment taken against him, " through his mistake, inadvertence, surprise, or excusable neglect." In applications for relief under this section, made within a reasonable time, no distinction is to be made between extrinsic or other fraud. Fraud, or its equivalent, whether upon the court, or upon a party, or one so situated as to be held in law an adversary, is suflSeient to warrant relief: In re Johnson (Cal. App.), 94 Pao. Eep. 592, 594. (9) Collateral attack. If the question as to a guardian's sale of lands of his ward arises collaterally, and the pleadings do not attack the proceeding for want of jurisdiction, and the record dis- closes jurisdiction, both of the parties and of the subject-matter, the sale wUl be sustained: McCulloch v. Estes, 20 Or. 349; 25 Pac. Eep. 724. The attack is " direct," and not " collateral," when the validity of the record attacked is directly put in issue by the plead- ings of the parties attacking it, by proper averments; and the converse is true, that, when there are no proper averments attacking the record, the attack is then " collateral," and not " direct." If the record contains a recital of the facts requisite to confer jurisdiction, it is conclusive when attacked collaterally: Walker v. Goldsmith, 14 Or. 125; 12 Pac. Eep. 537, 553. Irregularities in such proceedings, occurring after the court has acquired jurisdiction, do not affect the validity of the sale upon collateral attack: Scarf v. Aldrich, 97 Cal. 360; 32 Pac. Rep. 324, 327. Neither irregularities alone, nor mere omissions from the record, are sufficient to destroy the validity of judicial proceedings, where such errors could have been corrected on appeal or other direct proceedings. Collateral attacks of this kind are never favored; and it devolves on those making the attack to show clearly and conclusively that the court had no jurisdiction, before the proceeding will be held void: Bradford v. Larkin, 57 Kan. 90; 45 Pac. Kep. 69, 70. Where a petition, by a guardian, to sell certain land belonging to his ward states, among other things, that the ward had no money or personal property, and that it was to his interest, and necessary for his support and education, that the land should be sold and describes the land without stating specifically in what county or state it is situated, or in what range or township, but land answering to such description was in fact situated in a certain 192 PROBATE LAW AND PRACTICE. county, where all the parties interested resided, and where all the proceedings were had, it was held that the petition would be sufficient, where the sale under it was attacked collaterally, many years after- wards: Howbert v. Heyle, 47 Kan. 58; 27 Pae. Rep. 116. Where the validity of the appointment of a guardian, and a sale of his ward's land, are attacked collaterally, the rules of law hedging about the validity of such sales are to be invoked against the plaintiff. The order of sale is presumed to have been a valid one, and it behooves ■the plaintiff to show the contrary. The burden is upon him to show a void sale. The absence of evidence in the record showing the jurisdictional facts may be taken as evidence against him. If the posting of notices was not performed according to the requirements of the statute, it is for him to show that fact. If the evidence does not show how it was done and when it was done, it will be presumed that it was done in the proper manner and at the proper time: Asher V. Yorba, 125 Cal. 513; 58 Pac. Rep. 137, 138. Whatever may be the law in other states, it is settled, under the statute of Kansas, that the order of a court confirming a guardian's sale becomes res judicata as to irregularities only, and cures nothing of substance; certainly not unless the matter of substance is exhibited on the face of the sale proceeding: Frazier v. Jeakins, 64 Kan. 615; 68 Pae. Eep. 24, 87. It follows that a guardian's sale, if a nullity under the law, is subject to collateral attack, although the probate court has confirmed the sale, as where an action of ejectment was brought to recover a title claimed under a trustee's sale to himself, or, in effect, to himself. In order to characterize a guardian's sale and deed as " void," in the sense in which that word is most frequently used in the law, it is not necessary to regard them inexistent. They have a form of existence, and, under certain circumstances, they may be allowed, or may acquire the substance of existence. A plaintiff may ratify them by express act or deed. He might estop himself by some course of conduct to question the validity, or he might allow lapse of time to bar his right to recover on the score of their invalidity. But until by ratification, estoppel, or limitation he has given effect to them, he is believed to treat them as void and of no effect. As to him, they are void and of no effect, because they failed to pass the title to his land. In order to characterize an act or transaction as void, it is not necessary that it should be a nullity as to everybody, and for all time, and under all circumstances. If the act or transaction fails to deprive interested persons of their rights or titles, fails to confer them on some one else, the act or transaction is void as to such persons. If the act or transaction requires ratification, estoppel, or limitation to transfer the right or title, it is void until the ratifica- tion has been made, the estoppel has occurred, or the time has elapsed; and even then the right or title does not pass by virtue of the original act or transaction, but passes by virtue of the ratifica- tion, or is founded on the estoppel, or is set at rest by the lapse of GENERAL AND MISCELLANEOUS PROVISIONS. 193 time: Frazier v. Jeakins, 64 Kan. 615; 68 Pae. Rep. 24, 28. Tho question as, to whether an appraisement gave sufficient inforraation to the court to enable it to exercise its judgment in confirming a, sale is a matter which cannot be attacked collaterally, if the court had jurisdiction to determine the sufficiency of the evidence upon the matter in hand: Smith v. Biseailuz, 83 Cal. 344, 359; 21 Pac. Rep. 15; 23 Pac. Rep. 314. A guardian's deed will not be held void upon a collateral attack, merely because the petition of the guardian for leave to sell his ward's real estate does not affirmatively show the circumstances of a condition which, under the statute, authorizes 8uch sale: Beachy v. Shomber, 73 Kan. 62; 84 Pac. Rep. 547. The judgment of a probate court, regular upon its face, appointing a guardian for a minor, cannot be attacked collaterally upon the ground of fraud, collusion, or other matter aliunde: Hodgdon v. Southern Pac. R. R. Co., 75 Cal. 642; 17 Pac. Rep. 928, 931. So a judgment permitting a guardian to sell the real estate of his wards cannot be collaterally attacked on the ground that the required statutory notice by publication was not given, as this is not a jurisdictional defect. One has a right to attack a judgment in a collateral proceeding for a jurisdictional infirmity, — that is, error in assuming jurisdiction; but, on the other hand, a judgment cannot be questioned collaterally for an error committed in the exercise of its jurisdiction: Mortgage Trust Co. V. Redd (Col.), 88 Pac. Rep. 473, 475. Where the court has jurisdiction to enter an order and judgment appointing a special guardian, and for the sale of the lands of certain minor heirs, and no appeal is taken from the same, such order and judgment cannot be attacked collaterally in a eivil action in the nature of ejectment: Hagerman v. Meeks (N. M.), 86 Pac. Rep. 801. The appointment of a guardian cannot be attacked collaterally: Walker v. Goldsmith, 14 Or. 125; 12 Pac. Rep. 537, 540. If certain probate proceedings, and the acts of the guardian for minors, and a sale of their property made by him, are attacked as fraudulent, in a complaint which seeks tho foreclosure of mortgages on the property, but such complaint, in apt and specific allegations, directly attacks the probate proceedings, and the guardian's deeds thereunder, and issues are joined on these allegations, the plaintiff, by presenting his complaint so drawn with a double aspect, cannot be said to have waived the fraud in the guardian's sales, and the attack thereon is not collateral. Such a complaint, where it contains a prayer for relief generally, as well as one for the foreclosure of the mortgages, will justify a decree restoring mortgages wrongfully canceled, and their foreclosure, or a decree adjudging the guardian's sales and deeds void, and giving to the children an unencumbered interest in the property: Dormitzer v. German Sav. & L. Soc, 23 Wash. 132; 62 Pac. Rep. 862, 881. 8. Lease and demise of ward's property. If a guardian is appointed for the estate of a minor, and such guardian's bond is presented and Probate — 13 194 PROBATE LAW AND PRACTICE. approved, a lease afterwards made by him of the ward's property is valid, though no letters of guardianship have been issued to the guardian, and no oath of office has been taken by him: Whyler v. Van Tiger (Cal.), 14 Pac. Eep. 846. Where a guardian makes a lease of the premises of his ward, without complying with all the require- ments of the law, and the party to whom the lease is made, without warranty, conveys the same to a third party, who enters upon the premises and enjoys the peaceable and uninterrupted possession thereof, and reaps the fruits of the lease, he cannot be heard to question the validity of the lease, or of the assignment, in defense of a note given in consideration of such assignment. It would be a gross inequity and injustice to allow the assignees to take the benefits of the lease, and then avoid payment of the note given in considera- tion of the same: Norton v. Stroud State Bank (Okl.), 87 Pac. Eep. 848, 849, 851. If a lease has been made by an infant lessor, the guardian of such infant lessor, after the expiration of the lease, has no power, unless expressly authorized by the court, to consent to a lien upon the leased premises for improvements made thereon by the _ lessee: Hughes v. Hershow (Col.), 93 Pac. Eep. 1116, 1118. While it is true that a guardian cannot lease the land of his ward for a period beyond the latter's minority, so as to bind the ward, yet the lease is binding on the lessee after that time, unless the ward termi- nates it, and it may be ratified or disaffirmed by the ward, at his option: Nawahi v. Hakalau Plantation Co., 14 Haw. 460, 462. BEFEBENCES. Mortgages and leases of real estate by guardians: See Kerr's Cal. Oyc. Code Civ. Proc, §§ 1577-1579. 9. Mortgage of ward's property. (1) Petition as foundation of jurisdiction. To obtain an order of the court authorizing the guardian to mortgage the real estate of his ward, the foundation of jurisdiction is the petition filed by the guardian for leave to mortgage, and the petition for such order is not sufficient, unless it appears that all of the requirements of the statute have been complied with in procuring the order empowering the guardian to execute the mortgage: Howard v. Bryan, 133 Cal. 257, 260; 65 Pac. Eep. 462; Howard v. Bryan (Cal.), 62 Pac. Eep. 459. (2) Authority to mortgage. A county court in Oregon cannot authorize a guardian to mortgage the real estate of his ward: Trutch V. Bunnell, 11 Or. 58; 4 Pac. Eep. 588. A guardian has no power to make a contract binding upon the ward or upon his estate, however proper and beneficial the contract may be. Contracts made by him impose a personal liability upon himself, and his protection from GENERAL AND MISCELLANEOUS PROVISIONS. 195 loss lies in his right to charge the expenditure to the ward's estate in his account. If the guardian is authorized to mortgage the real estate of his ward only for the purpose of providing suitable main- tenance of the ward and his family, that is the only instance in which he may mortgage such real estate, and even in such case it is neces- sary for him to obtain an order of court therefor: Andrus v. Blaz- zard, 23 Utah, 233; 63 Pac. Eep. 888, 890. Though there is no direct authority in the statute to mortgage the ward's real estate, still, where the statute declares that the guardian must safely keep the property of his ward; that he must maintain the same with its build- ings and appurtenances; and that he shall deliver it to the ward at the close of his guardianship in as good condition as he received it, a district court, in Montana, may allow the guardian to mortgage such estate for an amount sufficient to pay off a mortgage thereon, which is overdue, and on which foreclosure proceedings are threatened. The interest of the infant in such case manifestly requires that the lien or encumbrance upon the estate should be discharged; and the general doctrine refusing a guardian the privilege of mortgaging his ward's estate is not applicable in such a case, where the opportunity seemed to present itself to save the infant's estate, not by creating a debt, or by 43orrowing money, but by simply transferring an already existing debt from one creditor to another: Northwestern Guaranty L. Co. V. Smith, 15 Mont. 101; 38 Pac. -Eep. 224, S26. The law cannot be construed to authorize' the mortgage of a minor's estate to pay any debt but his own. It must be such a mortgage as he can discharge by paying what he is individually bound for, and such as will admit of a redemption of the payment of that which is due from him on hia own account. Hence a court has no jurisdiction to authorize a joint mortgage of the property of several minor wards to pay an aggregate Bum, which includes a large private indebtedness of the guardian, for which the estate is not liable, and which encumbers the property of each minor with aggregate charges made against the property of all the other minors. Such a joint mortgage would be void: Howard v. Bryan, 133 Gal. 257, 260, 261, 267; 65 Pac. Eep. 462. Under a statute which confers power upon a guardian to sell his ward's estate for the purpose of raising funds to pay debts or to maintain the ward, the guardian cannot be authorized, by order of court, to mortgage his ward's land to secure a debt contracted for the improve- ment of the estate: Davidson v. Wampler, 29 Mont. 61; 74 Pac. Eep. 82, 84. In the territory of Hawaii, a guardian does not now have the power he formerly possessed of mortgaging the real estate of his ward, without authority from any court: Hoare v. Allen, 13 Haw. 257, 262. REFERENCES. Mortgages and leases of real estate by guardians: See Kerr's Cal. Cyc. Code Civ. Proc, §§ 1577-1579. 196 PKOBATE LAW AND PRACTICE. (3) Validity of order and mortgage. If a fair and reasonable construction of an order authorizing the guardian to mortgage the estate of his ward may be made, which will make it valid, the court is bound to make that construction: Howard v. Bryan (Cal.), 62 Pac. Eep. 459. Non-compliance with a statute which authorizes and directs a guardian to give the mortgagee a promissory note for the amount of money loaned, though it may be a substantial departure from the statute, is not to be deemed a jurisdictional departure; and where the attack upon the mortgage is collateral, no mere error or irregularity in the proceeding, however important or substantial, will invalidate the mortgage, particularly where the statute declares that no mere error or irregularity in mortgaging the property of minor heirs under order of court shall invalidate the mortgage: Howard v. Bryan (Cal.), 62 Pac. Eep. 459, 460. In Montana it is held that a law which authorizes the court to disregard certain irregularities in sales by guardians does not apply to proceedings which were wholly void under the law at the time at which they took place. Thus such a statute does not apply to a mortgage by a guardian, given to secure debts contracted for the improvement of the estate; because a guardian has no power to encumber the estate of his ward, or to bind the ward personally on any undertaking entered into on the ward's behalf: Davidson v. Wampler, 29 Mont. 61; 74 Pac. Eep. 82. A mortgage given by a guardian is not made void by the fact that he failed to give a bond. It is the established law of this state, that a purchaser or mortgagee need not inquire whether a bond has been given prior to a guardian's sale of real estate: Hunt v. Insley, 56 Kan. 213; 42 Pac. Eep. 709, 710. (4) Revival and foreclosure of former mortgage. One who, through mistake of law, lends money with which a mortgage, executed by and existing upon the real property of a person since deceased, is satisfied, and takes therefor the promissory note of the guardian of the minor heirs of such deceased person, such guardian being also the owner of an undivided one-third interest in the premises, and by whom a mortgage upon said real property is executed to secure said promissory note, is not entitled to a decree in equity reviving and foreclosing the former mortgage, unless it appears from the complaint and evidence that said guardian and maker of the last- mentioned obligation is insolvent, or that his mortgaged interest in the land will be insufScient to secure the payment of the note when the same matures: Kelsey v. Welch, 8 S. D. 255; 66 N. W. Eep. 390. 10. Non-resident guardians and wards. Except as a matter of comity, and in exceptional cases, the guardian of a minor appointed in 6ne state is not recognized as such in another state. And a statute providing that letters of administration shall issue to the guardian of a minor, instead of to the minor himself, refers to a GENERAL AND MISCELLANEOUS PROVISIONS. 197 guardian appointed in this state, and not to one appointed in some other state: In re Nickala, 21 Nev. 462; 34 Pac. Eep. 250. Jurisdic- tion to appoint a guardian for minor children is in the probate court of their domicile, even though they may not be within the jurisdiction of the state at the time; and the probate court of another state, where the children may be merely sojourning, has no such jurisdic- tion: Modern Woodmen v. Hester, 66 Kan. 129; 71 Pac. Eep 279. A beneficiary certificate issvied by a fraternal beneficiary society, suable in another state, in favor of minor children domiciled in that state, has its legal situs at their domicile, and is an asset in the hands of the guardian appointed there, and the presence of the paper in another state does not authorize the appointment of a guardian for the minors in such other state: Modern Woodmen v. Hester, 66 Kan. 129; 71 Pac. Eep. 279. Where foreign guardians of non-resident wards are authorized by local statutes to receive and remove from the state personal property of their wards in the hands of local guardians and others, they have been authorized to maintain suits within the state, to recover for debts due their wards. Even in the absence of such statutes, it seems to be competent for a court possess- ing chancery powers to order funds belonging to the ward, in the hands of a resident guardian, to be transmitted and paid over to the domiciliary guardian. It is discretionary, however, with the local courts, even under such statutes, to refuse permission to the foreign guardian to remove the property from the state if it is for the best interests of the ward that the property should be administered within the state. When the non-resident guardian of a non-resident ward applies for permission to remove the property of his ward from the state, ho 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 his ward reside; that he has qualified as such according to the laws thereof, and given bond with sureties for the performance of his trust; and must also give notice for the required time to the resident executor, administrator, guardian, agent, or trustee, if there be such, of his application. 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 guardian leave to remove the property of said ward to the state or territory in which he or she may reside; which order shall be full and com- plete authority to said guardian to sue for and receive the same in his own name, for the use and benefit of said ward: In re Crosby, 42 Wash. 366; 85 Pac. Eep. 1, 2. The guardian of a minor appointed by a, probate court of another state is not authorized, as such, to sell lands of his ward situated in this state: McNeil v. First Congrega- tional Society etc., 66 Cal. 105; 4 Pac. Eep. 1096. A non-resident guardian, by consenting to a probate sale of the land of his ward in this state, cannot give the court any jurisdiction to make an 198 PROBATE LAW AND PRACTICE. order for auoh sale: Wilson v. Hastings, 66 Cal. 243, 247; 5 Pac. Eep. 217. On tlie application of a party to be appointed guardian of a minor, who resides out of the state, the notice to be given to all persons interested is a matter for the exclusive judgment of the probate judge; and third persons cannot question the validity of an order upon any allegation that insufficient notice was given to the heir of the application for the appointment: Gronfier v. Puymirol, 19 Cal. 629, 631. A foreign guardian has no authority to bind the real estate of his ward situated in this state, and his consent that such estate be sold does not confer jurisdiction upon the court to make an order of sale therefor: Wilson v. Hastings, 66 Cal. 243, 247; 5 Pac. Eep. 217.. Third persons cannot question the validity of an order appointing a guardian for a non-resident minor on the ground that insufficient notice was given of the hearing of the application for the appointment: Gronfier v. Puymirol, 19 Cal. 629, 632. REFERENCES. Non-resident guardian and ward: See Kerr's Cal. Cyc. Code Civ. Proc, §§ 1793-1799, and notes. 11. Accounting and settlement. (1) In general. In a petition for the settlement and allowance of a guardian's account, it is not necessary to allege the steps taken in procuring his appoiptment, since probate courts are, in such matters, courts of general jurisdiction, and every intendment is in favor of the regularity of their judgments and orders: In re Brady, 10 Ida. 366; 79 Pac. Eep. 75. When the final account of a guardian is to be settled, notice for the statutory period must be given of the time and place of the hearing thereof; and in a case where the ward has deceased, the proceeding for the settlement of the account must be had with the legal representatives. His interests are adverse to those of the guardian, and he is a necessary party to the proceeding, although he may be brought in by constructive notice only. There is a proceeding of a special nature in which the only process required by law is the posting of a general notice for a statutory period. In all eases where, by statute, a substituted service of notice is author- ized in place of actual service, a strict compliance with the statute is essential to a valid service. A publication of posting for less than the required time is inefEeetual to give jurisdiction, and renders the subsequent proceeding under such notice void: Livermore v. Eatti, 150 Cal. 458; 89 Pac. Eep. 327, 328, 330. When findings are filed on a contest of the settlement of a guardian's account, they may be considered for the purpose of determining the issues upon which such findings were made; but it is not necessary to have findings in such a case: Estate of Schandoney, 133 Cal. 387, 394; 65 Pac. Kep. 877; Estate of Levinson, 108 Cal. 450, 455; 41 Pac. Eep. 483; 42 Pac. Eep. 479. As the law respects form less than substance, it is GENEEAL AND MISCELLANEOUS PROVISIONS. 199 the duty of the court to disregard any error or defect in a guardian'o account which does not affect the substantial rights of the parties. Hence where it appears that the account of the guardian was his " final " account, it may be settled, although it was miscalled an "annual" account: In re Dow, 133 Cal. 449; 65 Pac. Kep. 890, 892. The statute making it the duty of the guardian to file his account upon the expiration of one year from the time of his appointment does not prohibit him from filing and presenting it sooner: Estate of Hayden, 146 Cal. 73; 79 Pac. Eep. 588. In a guardian's account, charges for medical attention are sufficiently itemized, within the meaning of the statute, where they show the date of payment, the amount, the person to whom paid, and the nature of the services. It is not necessary that the bill of a physician or of a la wyer . should contain each item that goes to make up the charge. If the amount of the claim is disputed, or if it is denied that the services were rendered, the court, on the hearing, may go into the particulars: Estate of Hayden, 146 Cal. 73; 79 Pac. Eep. 588, 589. Where the wards consist of a family of children, it is seldom possible to have accurate accounts kept, showing the exact expense on account of each child; but where the guardian has acted in good faith in expending money for the benefit of the wards, and the expenses thus incurred have - not been unreasonable or excessive, he should be given the proper credit for the money actually so expended, although he may not be able to trace every item to the particular child. It is the duty of the court, if possible, to adjust the credits between the respective wards, if the evidence enables it to do so; but it is not justified in rejecting all of the credits because some of them are improper: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454, 460. If the account of the guardian is sworn to by another person, who has transacted the business of the guardian, and also by the guardian, who swears that he believes that such person's statements are true, the verification is sufficient: Eaeouillat v. Eequena, 36 Cal. 651, 652, 655. The settlement of a guardian's account is a " pro- ceeding," within the meaning of a statute which prescribes the time within which an action or proceeding is deemed to be pending: Cook V. Ceas, 143 Cal. '221, 226; 77 Pac. Eep. 65. BEFEBEKCIiS. Method of compelling settlement of accounts with deceased guardian: See note 8 Am. St. Eep. 684. (2) Duty to account. Under a statute authorizing the court to compel the guardian to render an account upon the application of " any person," it is not necessary that the person making such application shall have' an interest in the estate. The court may therefore order the guardian to present his account on the applica- tion of a brother of the ward: Trumpler v. Cotton, 109 Cal. 250, 254; 200 PROBATE LAW AND PRACTICE. 41 Pae. Eep. 1033. A ward may maintain a suit against tlie executor of his guardian: Ong v. Whipple, 3 "Wash. Ter. 233; 3 Pac. Bep. 898. When a ward attains the age of majority, the office of guardian comes to an end, and it is then the duty of the guardian, and one of the obligations of his bond, to exhibit a final account of his guardianship to the probate court, make a settlement with the pro- bate judge or with the ward, and deliver up all the property in his hands belonging to the ward. Failure to do this constitutes a breach of his bond, for which he and his sureties are liable after settlement of the guardianship. Settlement of the final account of the guardian includes only transactions during the minority of the ward; it does not include transactions occurring after the ward has attained his majority. When that event happens, the court is sui juris; and the legal liability which attaches to him for any services rendered to him by his guardian arises, not out of the relation of former guardian and ward, but out of the contractual relation established by the transactions between- them as contracting parties. Such a liability is not enforceable within the jurisdiction of a probate court; the remedy upon it lies, not in a probate proceeding, but in an action at law: In re Allgier, 65 Cal. 228; 3 Pac. Kep. 849, 8-50. Where a guardian has collected the moneys of his ward, used them, and does not attempt to account for them until forced to do so by the court many years later, he is not entitled to anything more than the strict letter of the law allows him: In re Eschrich, 85 Cal. 98, 102; 24 Pac. Bep. 634. It is the duty of a guardian to account for the funds of his ward received from a foreign jurisdiction, and there is no presumption that he has already accounted for them: In re Secchi, Myr. Prob. 225. Where the court not only has jurisdiction of the subject-matter, but the statute designates specifically all the means by which it shall obtain jurisdiction of the person of the guardian, and such means have been observed, the guardian cannot thwart the object of the law by failing or refusing to present his account. Hence if he has left the state, service may be made upon him by publication, and if, upon such service being made, he fails to file his account, the court may order it made up, audited, and settled from the evidence at hand; and a settlement so made will bind the sureties of the guardian: Trumpler v. Cotton, 109 Cal. 255, 256; 41 Pac. Bep. 1033. A guardian is derelict in not accounting annually: Guardianship of Kaiu, 17 Haw. 517. (8) Jurisdiction of courts. A final accounting presented by a guardian is properly addressed to the probate court that has jurisdic- tion of the estate of the ward: In re Allgier, 65 Cal. 228, 229; 3 Pac. Bep. 849. The probate judge has exclusive jurisdiction to determine the state of accounts between guardian and ward: Allen v. Tiffany, 53 Cal. 16. A probate court has authority to sottle the accounts of a guardian of an infant after his letters are revoked: Graff v. GENERAL AND MISCELLANEOUS PROVISIONS. 201 Mesmer, 52 Cal. 636, 637. In Oregon, the county court has jurisdic- tion to settle the accounts of a removed guardian, upon the petition of his bondsmen and that of the subsequently appointed guardian. Where the purpose of such a proceeding is merely to determine whether additional credits should be allowed, the removed guardian is not a necessary party, and it is not necessary to resort to a court of general equity jurisdiction for the purpose of determining whether such additional credit should be allowed: Cutting v. Scherzinger, 40 Or. 353; 68 Pac. Eep. 393, 395. Under a statute which gives to a county court jurisdiction, in the first instance, to direct and control the conduct, and to settle the accounts, of executors, administrators, and guardians, such court has power to inquire into a case of devastavit, and to charge the amount thereof to the delinquent: Steel V. HoUaday, 20 Or. 70; 25 Pac. Kep. 69, 71. If, however, a ward, on attaining her majority, and after her marriage, has executed a release to her guardian, the county court has no jurisdiction there- after to compel the guardian to account. In such a case, the ward must resort to equity to have the settlement set aside, if the county court is not a court of general equitable jurisdiction: Butterick v. Eichardson, 39 Or. 246; 64 Pac. Rep. 390, 392. (4) Exceptious to account. In a statute which provides that, upon the hearing of an account, any person interested may appear and file his exceptions, in writing, to the account, and contest the same, the word " exceptions " is probably used with reference to the equity practice of filing exceptions to the report of a master in chancery. But, in the practice that has grown up in this state, the office of such exceptions has been much enlarged, and the word has come to include not only a statement in writing of the points or matters wherein the credits or charges in an account are claimed to be deficient, defective, or erroneous in law, but also a statement of any afSrmative matters of fact not appearing on the face of the account, which, it may be claimed, requires additional charges in favor of the estate, or the rejection of credits claimed against it: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454, 456. If a person interested in an estate wishes to contest an account presented by an executor, administrator, or guardian, he must file his exceptions, in writing, to the account, setting out specifically the grounds of his objection; and at the hearing he should be held limited to the excep- tions so presented; but, without any objections, it is the duty of the court to carefully examine the account and to reject all unjust or illegal claims. Regardless of the filing of exceptions, the court has power, and it is its duty, to scrutinize the account, reject all errors therein, reject all items of credit which appear to be illegal or excessive, and generally to inquire into the truthfulness and accuracy of the items of charges and credits, and of the facts set forth in the accompanying report. And, in the course of such investigation. 202 PROBATE LAW AND PRACTICE. it may require and receive evidence to prove or disprove the several items and facts under inquiry, although no contest is made: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454, 456. A ward cannot except to an investment made by his guardian, on the mere ground that it consists of a loan or personal security, where the statute authorizes the guardian to make the investment in any manner to the ward's interest: Nagle v. Eobins, 9 Wyo. 211; 62 Pac. Eep. 154, 156. Where the report of a guardian is excepted to by his ward, and costs expended, outside of counsel fees, are awarded to the guardian in resisting the exceptions to a certain investment, and the guardian, on appeal, is surcharged with such investment, he should be allowed such costs; and if an exception to a certain investment is sustained, and other exceptions are dismissed, the ward should be allowed his costs, outside of counsel fees, in respect to the investment as to which the exception was' sustained: Nagle v. Robins, 9 Wyo. 211; 62 Pac. Eep. 154, 164. It is no objection to a guardian's first account, that one year had not elapsed from the day of the appointment of the guardian: Estate of Hayden, 146 Cal. 73; 79 Pac. Bep. 588. Where, on the final accounting of a guardian of an Indian allottee, an exception is taken to allowing him credit for the payment of a certain sum of money in compromise of litigation, under an agree- ment with the ward, the validity of such contract will not be determined, where it was involved in a suit for specific performance: Terry v. Sicade, 37 Wash. 249; 79 Pac. Eep. 789. If an executor is the duly appointed, qualified, and acting guardian of a minor heir, his two positions of trust are in direct antagonism, upon the question of property rights, where a legatee under the will objects to the executor's account upon the ground that he had a large sum of money and also personal property in his possession which was the property of the estate and for which he had not accounted; and if it were not for the prospective personal liability against him in one or the other of the estates, he should not be heard at all in such a proceeding, for, in representing both trusts, he would most likely misrepresent one: In re Haas, 97 Cal. 232, 234; 31 Pac. Eep. 893. (5) Admissibility of evidence. If a ward files exceptions to the final report of his guardian, concerning certain loans or investments, verbal advice of the district judge at the time of the transaction, and the advice of the guardian's counsel, are admissible in evidence to show the good faith of the guardian. Evidence of previous loans by the ward's father to the same person, on like security, is also admissible as showing prudence and good faith on the part of the guardian: Nagle v. Eobins, 9 Wyo. 211; 62 Pac. Eep. 154, 158, 160, 161. In proceedings for the allowance of a guardian's account, the admission of evidence which is substantially injurious to the guar- dian must necessitate a reversal: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454, 457. GENERAL AND MISCELLANEOUS PROVISIONS. 203 (6) Proper charges against guardian. Interest. If a guardian allows himself to make a loan of his ward's money on lands in the neighborhood of his city, the value of which is largely speculative, based upon the proposition that it may become, in time, city prop- erty, and desirable and sought for as a site for city homes or factories, and takes as security for such loan a mortgage on such lands, he should be charged with the amount of the loan, and any interest received, but should be permitted to retain the securities as his own, and the judgment, by appropriate provision, should secure them to him: Nagle v. Robins, 9 "Wyo. 211; 62 Pac. Rep. 154, 162, 163. When the guardian is required to make annual inventories and reports, interest may properly be computed annually for sums not reported: Scheib v. Thompson, 2.S Utah, 564; 65 Pae. Rep. 499, 500. Where a guardian acts in good faith, does not make any use for himself of the funds of his ward, and makes no profit for himself, he can be charged with no more than the statutory rate of interest: Guardianship of Cardwell, 55 Cal. 137, 142. A guardian is chargeable with compound interest where he has collected money of his ward, iised it, and has made no attempt to account for it until forced to do so by the court: In re Esc.hrich, 85 Cal. 98, 102; 24 Pac. Rep. 634. If a guardian, in good faith, and for the benefit of his ward, pur- chases property, but the ward afterwards refuses to ratify, and dis- affirms the purchase, the guardian is not answerable for compound interest. It is only where there has been intentional or wilful derelic- tion of duty on the part of the guardian that compound interest can be allowed: Estate of Cousins, 111 Cal. 441, 452; 44 Pae. Rep. 182. Insurance-money collected by a guardian is no part of the estate. This money goes direct to the heirs. The executors of the estate should have nothing to do with it, and it is the duty of the guardian into whose possession it comes to deliver it to the heirs as they become of age, with interest upon the same from the date of its receipt by the guardian; and if the report of the guardian shows that he has allowed such a fund to become commingled and confused with the funds of the estate, and his accounts as guardian to become commingled and confused with the accounts of the executors, so that it is impossible for the court to determine out of what funds the expense of supporting the children were paid, the court is justified in concluding that the minor heirs had been supported from the funds of the estate, and that the insurance-money had been kept intact for the use of the beneficiaries: Hill v. Smith, 8 Wash. 330; 35 Pac. Rep. 1070. If the guardian receives money of his wards, which he keeps for many years, and uses for his own purpose, and renders no account until cited to appear and account on the petition of his wards, he is properly chargeable with interest upon the money received, compounded annually, although he was guilty of no fraud in the use of his ward's money: In re Eschrich, 85 Cal. 98, 101; Estate of Hamilton, 139 Cal. 671; 73 Pac. Rep. 578; Glassell v. Glassell, 14'/ 204 PROBATE LAW AND PRACTICE. Cal. 510; 82 Pae. Rep. 42; Scheib v. Thompson, 23 Utah, 564; 65 Pac. Bep. 499, 500. So if he has invested such money in stocks and bonds, which he has appropriated to his own use, he should not be credited with such stocks and bonds, but should be charged with the trust funds appropriated, at compound interest: In re Dow, 133 Cal. 449; 65 Pac. Eep. 890, 892. The general rule now thoroughly well estab- lished in this state as to the limit of the liability of a trustee for mingling the trust funds with his own, and their use in his own business, where it is not shown that a larger profit was realized therefrom, is, the return of the principal, with legal interest thereon, compounded annually. This rule is applicable alike to guardians and executors as to other trust relations: In re Dow, 133 Cal. 449; 65 Pac. Eep. 890, 892. If the settlement of the final account of the guardian is delayed after the ward arrives at age, there can be no valid objection to the guardian's voluntarily charging himself with legal interest on the balance in his hands, in the absence of evidence that he has received anything more: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454. Where there is unreasonable delay by the guar- dian in making a final settlement after the ward is of age, the court, in settling the account, should charge the guardian at least the legal rate of interest annually on any balance he may have had on hand when the ward arrived at age, unless there are circumstances absolving him from such charge: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454, 457. A guardian is chargeable not only with rents actually received, but also with such additional rents as he would have obtained had be faithfully and diligently discharged his duties: Guardianship of Hoare, 14 Haw. 443, 445. Where a guardian mixes the funds of his ward with his own, and does not keep any separate account, which is complete, reliable, and satisfactory, he is charge- able with interest upon the ward's money in his hands, which he has retained for a long period of years without investment: Guardianship of Hoare, 14 Haw. 443, 444. A guardian will be surcharged with expenditures the necessity ■ of which has not been shown: Guardian- ship of Kaiu, 17 Haw. 517, 519. (7) Credits allowable to guardian. An attorney's fee for services rendered to the guardian of a minor, in pursuance of a written con- tract, is an expense incurred by the guardian in the performance of his duties, for which he is primarily liable; though if the probate court shall deem the expenditure reasonable and necessary to protect the interest of the ward, it may be allowed from the ward's estate: Hunt v. Maldonado, 89 Cal. 636, 637; 27 Pac. Eep. 56. The money actually paid out by the guardian for court costs, attorneys' fees, and for recording deeds is properly allowed to him upon the settle- ment of his account: Scheib v. Thompson, 23 Utah, 564; 65 Pac. Eep. 499, 500. A stepfather, who, as guardian, supports and maintains his stepchildren, is entitled to be credited, in the settlement of his GENERAL AND MISCELLANEOUS PROVISIONS. 205 accounts, as their guardian, with expenditures from the moneys of his wards for such purpose, where there is no doubt of the expendi- tures having been made, and the evidence shows that the guardian- skip funds were properly used for the support of the children: Gutting V. Scherzinger, 40 Or. 353; 68 Pao. Eep. 393, 395. As a general rule, full items, with vouchers for aU expenditures, should be required, and credits should not be allowed without them; but this is not indis- pensable, and, in a, clear case, where there is no doubt of the expendi- tures having been made, or of the guardian's good faith, vouchers may be dispensed with. Each case must necessarily depend upon its own particular facts, and on the equities thereof: Cutting v. Scherzinger, 40 Or. 353; 68 Pac. Eep. 393, 395. It is no objection to a guardian's account, that household expenses for the benefit of several wards, constituting one family, were apportioned numeri- cally among the wards, without reference to differences of actual consumption. The slight inequalities that would occur between the different children with respect to food furnished, as well as many other things consumed in the household, would be more than com- pensated by the advantages of having the children reared as one family: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454, 460. If the guardian, after the ward becomes of age, has continued, as before, with the ward's knowledge and consent, to support him, or to pay out money for him out of the estate, received by the guardian during the minority of the ' ward, and there is nothing unfair or unjust to the ward in the transactions, the guardian should be allowed credit in his account, out of the estate, for the moneys thus applied to the ward's use. If he has overpaid the money in his hands, and other estate remains, he may be allowed a lien upon the estate for the overpayment, but he cannot be given a personal claim against the ward for such overpayment in any case: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454, 458. If a guardian is compelled to pay a debt which he has contracted for the benefit of his ward, and it is one properly made on behalf of his ward, the county court will allow it out of the ward's estate; but the liability of the estate, in such a case, is one to be settled in the county court: Sturgis v. Sturgis (Or.), 93 Pac. Eep. 696, 699. If the guardian of a minor makes a valid contract with an attorney concerning the latter's fee, the guardian is liable, and if he pays it, and the probate court deems the expenditure reasonable, and necessary to protect the interests of the ward, it may be allowed from the ward's eslate: Hunt v. Maldonado, 89 Cal. 636, 637; 27 Pac. Eep. 56. (8) What is not to be allowed. Compensation. The ordinary rule is, that a guardian will not be allowed for permanent improvements placed by him on a minor's property without authority: Gerber v. Bauerline, 17 Or. 115; 19 Pac. Eep. 849. Where the guardian had agreed that, if appointed, he would maintain and educate the ward, 206 PROBATE LAW AND PRACTICE. which agreement was embodied in the order appointing him, items for maintenance of the ward should be disallowed: In re Barg, Myr. Prob. 69. So items in a guardian's account, for the payment of board of his wards while living with their elder brother, many years before the presentation of the account, are properly disallowed, where there is no evidence that any fixed amount was agreed upon to be paid in the beginning, nor any evidence as to what the keeping of the wards was worth, or that it was worth anything over and above the value of their services: In re Eschrich, 85 Cal. 98; 24 Pae. Rep. 634. And where a guardian, the father, has collected certain moneys of his ward, and has misappropriated them to his own use, he cannot claim credit for expenses paid by him for the maintenance of the ward after such misappropriation: Guardianship of Ceas, 134 Cal. 114; 66 Pac. Rep. 187. If the guardian has invested his ward's money in stocks and bonds, which he has appropriated to his own use, no credit should be given to him for the securities: In re Dow, 133 Cal. 449; 65 Pac. Rep. 890. Where it appears from a statement in the guardian's account that his ward was not at home during a certain year, and did not receive the support claimed, the guardian should not be allowed a credit claimed for the ward's support during that year, as a member of the family, consisting of the ward's mother and brothers and sisters: Estate of Boyes, 151 Cal. 143; 90 Pac. Rep. 454, 458. A guardian is not entitled to any compensation, where he has been negligent in the management of his ward's estate: Scheib v. Thompson, 23 Utah, 564; 65 Pac. Rep. 499. The court may reduce the commissions of a guardian for his neglect of duty: Guardianship of Kaiu, 17 Haw. 517, 519. If he has been- guilty of gross negligence in the performance of his duties, he is not entitled to any com- missions: Guardianship of Hoare, 14 Haw. 443, 448. As to post- majority transactions, it may be said that the guardian is not entitled to any allowance for the support of the ward after the latter becomes of age, particularly where it is impossible to segregate the expenses for support which are contracted before the ward became of age, and afterwards: Hill v. Smith, 8 Wash. 330; 65 Pac. Rep. 1070. As the. authority of the guardian ceases with the ma- jority of the ward, he has no authority, after the ward's majority, to proceed with the foreclosure of a, mortgage, without the ward's •consent, and to bid in the property for the ward, and the fact that he does so, and compromises a deficiency judgment, does not raise the presumption that he continued so to act without the consent and approval of his ward: Estate of Curtis, 121 Cal. 468; 53 Pac. Rep. ■936, 938. There is some difference, however, as to the extent to which courts will consider post-majority transactions in the settle- ment of the accounts of a former guardian. This difference probably originated from the fact that the accounts were generally settled by courts of equity, whose jurisdiction was not so limited. It is •clear, however, that a guardian contracts that, at the termination of GENEKAIi AND MISCELLANEOUS PROVISIONS. 207 his trust, he will account for the property, estate, and moneys of the ward in his hands, and will pay over and deliver such property as remains to the person entitled thereto. This is the account which the probate court has jurisdiction to determine. No jurisdiction is given to ascertain a balance against a former ward, except as it will tend to show what the guardian must pay or deliver to his former ward. It is in the nature of a proceeding in rem, and the estate in the res, and, after majority, the only matter of which the court has jurisdiction: Estate of Kincaid, 120 Cal. 203; 52 Pac. Eep. 492, 493. If a guardian is an attorney at law, and performs professional services for his ward, he may be allowed extra compensation there- for: Guardianship of Humeku, 15 Haw. 394,' 395. A guardian who brings suit for the ward's estate must look to the probate court for the allowance of attorneys' fees: Magoon v. Brash, 11 Haw. 204, 206. (9) Death of ward before settlement. If the ward dies before settlement of the guardian's account, such settlement must be made with the ward's legal representative. It is always in the power of the guardian to procure the appointment of an administrator with whom he may settle the account, and who will then be in existence to receive constructive notice; and the full statutory period of posting must run while the person against whom the notice is directed is in legal existence and capable of receiving such knowledge; otherwise there will not be the full statutory notice to him, and jurisdiction of the proceedings will be lacking. The existence of the legal repre- sentatives during the entire period required to make that form of service valid is necessary to raise the statutory presumption that he has obtained from such notice a knowledge of the pendency of the proceeding. Neither is the record, nor is the recital of the giving of the notice, nor are the presumptions in favor of the jurisdiction of the court, conclusive of the fact of the existence of the adminis- trator, as such, during the whole or any part of the prescribed time for notice; and where the actual effective time of the notice to the administrator was only seven days, where the law required ten days to constitute legal service, jurisdiction to hear the settlement of the guardian's account was wanting, and an order settling such account was therefore void: Livermore v. Eatti, 150 Cal. 458; 89 Pac. Eep. 327. (10) Conclusiveness. Attacking settlement. If the statute does not provide that the settlement of a guardian's intermediate account shall be conclusive, such settlement is merely prima facie evidence of its correctness, and it is afterwards open to inquiry: Guardianship of Cardwell, 55 Cal. 137, 142. But a decree settling the final account of a guardian is conclusive not only against the guardian himself, but tilso against his sureties, until it is reversed or modified by some proceeding directly impeaching it: Brodrib v. Brodrib, 56 Cal. 563, 208 PROBATE LAW AND PEACTICE. 565. Items contained in the settled accounts of a guardian, and the order settling them, cannot be reconsidered in a suit in equity to set aside the order settling the account of a guardian for fraud and to compel a proper accounting: Guardianship of Wells, 140 Cal. 349, 353; 73 Pac. Eep. 1065. In a suit in equity to set aside the order settling the account of a guardian for fraud and to compel a proper accounting, and where the gist of the petition is as to fraud upon the part of the guardian in failing to account to the court, or to his ward, for rent-moneys belonging to the ward's estate, the allegations of the petition are insufficient, where they are of the most general character, and do not allege the particulars, or the facts, or circum- stances constituting the alleged fraud: Guardianship of Wells, 140 Cal. 349; 73 Pac. Kep. 1065. If a petition in the nature of a suit in equity is filed to set aside an order settling the account of a guardian for fraud, and to compel a proper accounting, and no objection is raised to the form of the petition, and the guardian waives an objection to the jurisdiction of his person by answering such petition, the court obtains jurisdiction of the person, and has jurisdiction of the subject-matter, and the petition wiU be deemed a bill in equity invoking the equitable powers of the court, notwith- standing the form in which it is entitled. It is true that the probate and the equity jurisdictions of the superior court are separate and distinct, yet the same tribunal exercises them both: Guardianship of Wells, 140 Cal. 349, 352; 73 Pac. Eep. 1065. Where a guardian omits, by mistake or inadvertence, from his account filed in the probate court, a small amount which he has collected for his ward, but it appears that such omission was not done with the intention of defrauding or injuring his ward, and the guardian gains no pecuniary advantage thereby, as proved by the fact that the sum omitted is shown to have been used for the benefit of the ward, such omission establishes no actual or constructive fraud: Purslow v. Brune, 43 Kan. 175; 23 Pac. Eep. 105. A guardian's final settlement made in the probate court cannot be collaterally attacked: Davis v. Hagler, 40 Kan. 187; 19 Pac. Eep. 628. KEFEBENCES. Belief in equity from orders settling accounts of guardian: See note 106 Am. St. Eep. 641. (11) Discharge of guardian. If a receipt is given by a ward, after he has reached his majority, to his guardian, on a settlement, as a release of all indebtedness, it will not be set aside when it appears that the settlement was made with the full knowledge of all the facts involved therein: Davis v. Hagler, 40 Kan. 187; 19 Pac. Eep. 628. A petition of the ward, filed in the district court, asking relief of the guardian, which avers that with such receipt the guardian fraudu- lently obtained a release in the probate court, does not state a cause GENERAL AND MISCELLANEOUS PROVISIONS. 209 of action. A final settlement, so made in the probate court, cannot be attacked collaterally: Davis v. Hagler, 40 Kan. 187; 19 Pae. Bep. 628. It is error for the court to discharge an accounting guardian upon payment of the balance to another person, designated as guar- dian of the wards, if it does not appear that any order was made removing the accounting guardian, or appointing such designated guar- dian in his place, or as an associate with him: Estate of Boyes, 151 Cal. 143; 90 Pac. Eep. 454, 460. A guardian may settle with his ward the day after he comes of age, and obtain his release, but he cannot have a decree of court confirming the settlement and release until the ward has had a year to consider whether he will afBrm or repudiate it: Cook v. Ceas, 143 Cal. 221, 229; 77 Pac. Rep. 65. The marriage of a female ward, under guardianship as a minor, terminates the guardianship, and operates, by force of the statute, as a legal discharge of her guardian. After such event the probate court retains jurisdiction over the guardian merely for the purpose of compelling him to account, and of settling his administration as guardian: Ex parte Pahia, 13 Haw. 575, 579. 12. Collateral attack. It is a well-settled rule that a judgment, regular on its face, and rendered by a court having jurisdiction to render it, cannot be attacked collaterally on the ground of fraud, collusion, or other matter aliunde. And the appointment of a guar- dian by a probate court is a judgment to which such rule applies; and the rule applies to infants, as well as to adults: H6dgdon v. Southern Pae. E. Co., 75 Cal. 642; 17 Pac. Kep. 928, 931. But the judgment of a probate court appointing a guardian, which is void for want of jurisdiction, may be attacked collaterally in an action brought by a person claiming under such appointment: Modern Woodmen v. Hester, 66 Kan. 129; 71 Pac. Eep. 279. A guardian of the person of a minor duly appointed by a superior court is legally entitled to the custody of the minor, and the guardian's right to such custody can be attacked collaterally only upon the ground of want of jurisdic- tion in the superior court to make the order of appointment; and when, upon proceedings in habeas corpus, the guardian justifies his custody of the minor by such an order, an impeachment thereof is a collateral attack: In re Lundberg, 143 Cal. 402; 77 Pac. Eep. 156, 157. If letters of guardianship have been issued and recorded in the probate judge's ofiice, and the guardian has given a bond and duly qualified and entered upon the discharge of his duties as guardian, with the approval of the probate judge, and all this is of record, the guardian's acts will be held valid when attacked collaterally, although there may not be any further record in the probate judge's office of his appointment: Howbert v. Hyle, 47 Kan. 58; 27, Pac. Eep. 116. Thus in a suit to foreclose a mortgage, a collateral attack can- not be made upon the validity of a petition to mortgage the property of minor heirs to raise a certain sum of money, on the ground that Probate — 14 210 PROBATE LAW AND PRACTICE. the petition which sets forth the items for which the money is wanted contains some items not chargeable against the estate. In such a case the petition is not void on its face, but is merely irregular: Howard v. Bryan (Cal.), 62 Pac. Kep. 459.. There can be no collateral attack on a judgment directing the sale of a ward's property where such judgment is founded upon a proper petition: Walker v. Gold- smith, 14 Or. 125; 12 Pac. Eep. 537. The act of a guardian is ratified by his ward, unless the latter expressly disaffirms it within reason- able time after attaining his majority: Brazee v. Schofield, 2 Wash. Ter. 209; 3 Pac. Eep. 265. 13. Jurisdiction of courts. The old district courts of this state, corresponding with the present superior courts, had the same control over the persons of minors, as well as their estates, that the courts of chancery in England possess. This jurisdiction was conferred by the contitution, and could not be devested by any legislative enactment: Wilson V. Eoaeh, 4 Cal. 862, 366. The present superior courts have general jurisdiction of the matter of appointment of guardians, and, as an incident to this jurisdiction, they must have the power to hear and determine the fact whether a testamentary guardian has been legally appointed or not. If it should appear, however, that a guar- dian has been legally appointed by a will or deed, such courts would have no jurisdicion to appoint a guardian, as the court provides that the superior court may appoint guardians of minors who have no guardians legally appointed by will or deed: Murphy v. Superior Court, 84 Cal. 592, 596; 24 Pac. Eep. 310. A superior court has jurisdiction to deprive a parent of the custody of his child, by the appointment of a guardian therefor, under proper circumstances, and the authority of the parent ceases upon the appointment of such guardian: In re Lundberg, 143 Cal. 402; 77 Pac. Eep. 156. The probate court of the county of a minor's domicile is the court having jurisdiction to appoint a guardian of the person or estate of the minor. To permit a probate court, other than the probate court of the county of the minor's domicile, to take jurisdiction of his person and estate would be legislation discriminating against the minor: Connell v. Moore, 70 Kan. 88; 78 Pac. Eep. 164, 166. If one of two guardians appointed by will dies, and the other resigns and is dis- charged, the court has jurisdiction to appoint a guardian as if no appointment had been made by wUl: In re Henning's Estate, 128 Cal. 214; 60 Pac. Eep. 762, 768. A superior court has jurisdiction of a proceeding for the appointment of a guardian for the persons and estates of certain minor children after their mother's death, though their father may still be alive: Eussner v. McMillan, 37 Wash. 416; 79 Pac. Eep. 988. Where the superior court of one county has acquired jurisdiction to hear and determine the question of the residence of a minor, the need of a guardian, and the propriety of appointing the petitioner, it cannot be deprived of this jurisdiction GENERAL AND MISCELIjANEOUS PROVISIONS. 211 by subsequent proceedings in another county of the state for the issuance of letters of guardianship: Guardianship of Banneker, 67 Cal. 643, 645; 8 Pac. Eep. 514. Probate courts have jurisdiction to appoint a guardian for minors domiciled in this state, and, after having made such appointment, they retain jurisdiction for all pur- poses connected therewith until the guardian's accounts are rendered and he is legally discharged. Hence the unauthorized removal of the wards from the jurisdiction of the domicile to another state, or the appointment of a guardian by a court of foreign jurisdiction, does not oust such probate courts of the jurisdiction which they have once acquired. So if the wards are domiciled within this state, and their only property, consisting of certain insurance policies, is within the state, the probate court has jurisdiction to appoint a general guardian, and to direct and control his conduct as such guardian: In re Brady, 10 Ida. 366; 79 Pac. Eep. 75, 76. If a guardian of wards domiciled in this state obtains an order of court permitting him to remove them to another state, " there to remain until the further order of the court," and subsequently he is discharged without being required to return the wards to this state, the domicile of the wards continues to be in this state, as they are incapable of changing their domicile, and such order indicates no intenton to surrender jurisdic- tion of their persons: In re Henning's Estate, 128 Cal. 214; 60 Pac. Eep. 762, 764. It is made by statute the duty of the court to appoint the father or mother of the minor, " if found by the court competent to discharge the duties of guardianship"; but, under this provision, and under the general law, the prima facie presumption is that the parent is competent. Hence the court is not authorized to appoint another as guardian, unless it finds that tie parent is not competent. The fact of the competency or incompetency of the parent is the controlling question in the case, and the court is to be guided by what appears to be for the best interests of the child in making the appointment. If the parent is found to be competent, the court has no discretionary power to appoint another as guardian: Campbell v. Wright, 130 Cal. 380; 62 Pac. Eep. 613, 614. In California a court has no jurisdiction to appoint a guardian for minors who are absent from the state, although their domicile may be within it: De la Montanya v. De la Montanya, 112 Cal. 131; 44 Pac. Eep. 354. It is the guardian, and not the court, who is made responsible for the proper administration of his trust. He it is to whose custody the property of the ward is intrusted, and to him the law and the ward alike look for its safe return. In the performance of his duties; he is, it is true, in certain respects, under the control and supervision of the court appointing him; but this right of supervision does not carry the power to interfere with the custody and general management of the property of the ward, except, of course, for conduct authorizing suspension or removal. The court, therefore, has no authority to direct the guardian to deposit assets of the ward's estate in a certain 212 PROBATE LAW AND PEACTICB. institution, from which they shall be -withdrawn only upon the order of court. Such an order practically places the custody and control of such assets in the hands of the court, exclusive of the guardian; and it is therefore in excess of the power of the court and void:, De Greayer v. Superior Court, 117 Cal. 640; 49 Pac. Eep. 983, 985. Nor is such an order authorized by a statute which provides that the court, on application of the guardian, may authorize and require the guardian to invest the ward's money, and which authorizes the court to make such other orders and to give such directions as are needful for the management, investment, and disposition of the estate and eifects as circumstances require: De Greayer v. Superior Court, 117 Cal. 640; 49 Pac. Eep. 983, 985. Nor does a probate court have jurisdiction to settle accounts of the guardian and to render judg- ment against the ward for advances made by the guardian after the ward attains his majority, although there was an agreement between them that the guardianship should continue, and that the advances should be made as guardian, where it is conceded that at the time the ward reached his majority there was no estate belonging to him in the hands of the guardian: Estate of Kincaid, 120 Cal. 303; 52 Pac. Eep. 492, 493. Nor does a probate court have authority to entertain an application by the creditor of a guardian of minor children for the allowance, against the estate of the wards, of a judgment of the district court, rendered against the guardian, on a contract made by him in carrying on a general mercantile business with the ward's money, nor authority to order the payment of such a judgment in such a proceeding; and the violation of such an order does not constitute a breach of the guardian's official bond: Harter v. Miller, 67 Kan. 468; 73 Pac. Eep. 74. Neither is a probate' court authorized to entertain a petition for an order to compel the guardian - of the estate of a minor to refund moneys advanced, even by the guardian of the person of the minor, for his support and education. Nor is the court authorized to make an order, on the application of the minor himself, to compel the guardian to advance out of the estate of the minor the necessary sums for his support : Swift . v. Swift, 40 Cal. 456, 458. 14. Jurisdiction of equity. One who wrongfully intermeddles with the property of an infant is sometimes held in equity to be a guar- dian, but only (as in the case of an administrator de son tort) for the purpose of an accounting; he acquires none of the rights of a guar- dian: Aldrich v. Willis, 55 Cal. 81, 85. Every alienation of the prop- erty of the ward, if made by the guardian without order of court, is void. Hence a guardian cannot subject the estate and property of his ward to a lien for legal services, without first obtaining an order of court authorizing him to do so. If a ward cannot enter into a valid contract, without first obtaining an order of the probate court, for repairs and improvements of buildings on property belong- GENERAL AND MISCELLANEOUS PROVISIONS. 213 mg to him, surely a guardian without such authority cannot enter into a contract for the employment of legal services, so as to bind the ward, or in any way affect his property. The power of guardians over the estate of the ward, the same as the powers of executors and administrators, cannot be exercised, except according to the pro- visions of law and under the orders of the court which has jurisdic- tion of the estate: Morse v. Hinckley, 124 Cal. 154; 56 Pac. Rep. 896, 898. It is undoubtedly true that the probate court has, as a general rule, exclusive jurisdiction to compel a defendant to account as guardian, and that its decree settling his accounts and discharging him from his trust is final and conclusive; but this rule does not apply in cases of fraud, for the reason that the matters in controversy may not have been passed upon in the settlement, particularly where the guardian is charged with having intentionally and fraudulently concealed from the court and his ward the fact that the latter had then, or ever had, any interest in the property in question. The settle- ment of a guardian's account in the probate court cannot shield him . from afterwards being called upon in a court of equity to account for property concealed by him: Lataillade v. Orena, 91 Cal. 565, 576; 25 Am. St. Rep. 219; 27 Pac. Eep. 924. Although property, which was under the control of a testator, as guardian, may have come into the hands of executors, yet the guardianship was a personal trust, which would not pass to them on the death of the testator, and the property held by him as guardian does not become assets in their hands to be administered. They merely hold it for its preservation until the persons whose estate it is, and for whose benefit it is held, can obtain a settlement of the trust, terminated by the death of the trustee, in the proper forum, where the rights of all parties to the trust may be definitely determined. This settlement can only be had in a court of equity, by a proceeding against the executors of the deceased guar- dian and other necessary parties: In re Allgier, 65 Cal. 228, 230; 3 Pac. Eep. 849. Settlement of the final account of the guardian in- cludes only those transactions had during the minority of the ward. It does not include transactions occurring after the ward has attained his majority. When that event happens, the ward is sui juris; and the legal liability which attaches to him, for any services rendered to him by his guardian, arises, not out of the relation of former guardian and ward, but out of the contractual relation established by the transactions between them as contracting parties. Such a liability is not enforceable in probate courts; the remedy upon it lies, not in a probate proceeding, but in an action at law: In re Allgier, 65 Cal. 228, 229; 3 Pac. Eep. 849. REFERENCES. Eelief in equity from orders and decrees of probate and other courts having exclusive jurisdiction over the estates of decedents and of minors and other incompetent persons: See note 106 Am. St. Eep. 639 647. 214 PROBATE LAW AND PRACTICE. 15. Liability of guardians. (1) For investments made without order of court. Where a guar- dian, in good faith, and for the benefit of the ward, loaned a portion of his ward's funds on mortgage securities taken in his own natne, but a portion of the loan was unavoidably lost by depreciation in value of the property, the guardian, if chargeable at all with the part of the principal sum lost by the loan, is not chargeable with any interest thereon, where he is not found guilty of negligence, and no facts are found from which" negligence must necessarily be inferred: Estate of Cousins, 111 Cal. 441, 450; 44 Pae. Eep. 182. If the guar- dian makes an investment with the exercise of reasonable care, dili- gence, and business prudence, in the form, manner, and securities approved of by the rules of equity, he will not be liable for losses which may occur through the destruction or subsequent depreciation in value of the property: Estate of Cousins, 111 Cal. 441, 449; 44 Pae. Eep. 182. So where a guardian, at the request of the mother ■ and stepfather of the minor, with whom the ward resided during his minority, purchased certain land for the ward, with the ward's money, and this was done because both the parents and the guardian believed that it was a good investment for the ward, and the investment was made without order or authority of the court, and the title was taken in the name of the guardian, 'so that the parents of the ward and the guardian might sell the land without an order of the court, and the guardian retained the title for the benefit of the ward, but the ward disaffirmed and refused to ratify the purchase of the land, the guar- dian is liable only for the sum invested, with simple interest, where there did not appear to have been any intentional or wilful dereliction of duty on the part of the guardian: Estate of Cousins, 111 Cal. 441, 451; 44 Pac. Eep. 182. But when the. guardian acts upon his oWn judgment in making an investment, independently of an order of the court, or otherwise converts the proceeds of the estate to his own use, he takes upon himself responsibilities which the law does not permit, and is held not only to a strict accountability for the money used, but to such actual or punitive damages as may be lawfully imposed for an official neglect of his duty. Hence if he, without authority of court, purchases real estate with the money of his ward, and it appears that the guardian made, or could have made, a profit of ten per cent per annum out of money which he improperly used, and mingled it with his own, the guardian is chargeable with ten per cent interest, compounded annually, because of the rule that he will not be permitted to speculate or make a profit out of the funds in his hands as guardian: Scheib v. Thompson, 23 Utah, 564; 65 Pac. Eep. 499, 500. A guardian, who wilfully and unnecessarily mingles the funds of his ward with his own, so as to constitute himself, in ap- pearance, its absolute owner, is liable for its safety in all events; and this rule applies where a guardian lends the funds of his ward, and takes a mortgage and note in his individual name: In re Bane, GENERAL AND MISCELLANEOUS PROVISIONS. 215 120 Cal. 533, 538; 65 Am. St. Rep. 197; 52 Pac. Eep. 852. If a guar- dian invests a large portion- of the ward's estate in loans secured by mortgage upon realty, but such loans are made without the advice and consent of the court, and the security is inadequate, and not Bueh as a prudent business man would take, an order, made at the hearing of the guardian's account rejecting such loans as assets of the estate, will be affirmed: In re Carver's Estate, 118 Cal. 73; 50 Pac. Eep. 22. A guardian is answerable for his act in lending the money of his ward without any security, without even taking any evidence of indebtedness: Estate of Post, 57 Cal. 273. (2) Protection of order of court. There is no legal obligation or duty resting upon a guardian to give notice to any one, unless directed to do so by the court, of an application by him for an order authorizing him to invest the money of his ward in a particular manner. An order from the court for investment or other manage- ment of the ward's funds will protect the guardian, even if misfortune were to follow: Estate of Schandoney, 133 Cal. 387, 390; 65 Pac. Eep. 877. If a guardian, in pursuance of an order of court, has invested the money of his ward in a mortgage of real estate, he is not answer- able for a loss resulting from the investment, by reason simply of the fact that he failed to foreclose the mortgage. His liability, in such a ease, depends upon the question of his negligence: Estate of Schandoney, 183 Cal. 387; 65 Pac. Eep. 877. If a guardian, under order of court, sells his ward's property, and pays the proceeds into court, he is not chargeable with the sum so paid in, where it has been lost through official misconduct of the judge: Estate of Sniffin, 3 Haw. 382. (3) Liability of guardian in general. The statute does not require annual accounts of a guardian, but it would be better for ^11 con- cerned if so made. At the same time, we cannot say that a failure to comply strictly with the statute, or neglect to render accounts with some regularity and promptness, necessarily imposes punitive responsi- bility upon the guardian. If there is loss to the estate, the question of the guardian's liability therefor depends much upon the circum- stances under which the loss occurred: Curtis v. De Voe, 121 Cal. 468; 53 Pac. Eep. 936, 938. A guardian is liable for unauthorized acts done by him after his ward attains majority, as frhere he pro- ceeds with the foreclosure of a mortgage, and compromises a deficiency judgment. Jurisdiction remains in the probate court, after the minor's majority, over the estate in the hands of the guardian for the purposes of an accounting as to transactions during the minority of the ward, but not as to any occurring after the ward has attained his majority: Curtis v. De Voe, 121 Cal. 468; 53 Pac. Eep. 936, 939. A contract with an attorney for professional services is an expense incurred by the guardian in the performance of his duties for which 216 PEOBATE LAW AND PRACTICE. he is primarily liable. Hence no action can be maintained against the minor upon such a contract: Hunt v. Maldonado, 89 Cal. 636; 27 Pac. Eep. 56. If a guardian makes a valid contract with an attorney for services to be rendered to the guardian of a minor in pursuance of such contract, and the guardian pays the attorney's fee, and the probate court deems the expenditure reasonable, and necessary to protect the interests of the ward, it may be allowed from the ward's estate. But it is an expense incurred by the guardian in the per- formance of his duties, for which he is primarily liable. No action can be maintained against the minor therefor: Hunt v. Maldonado, 89 Cal. 636, 637; 27 Pac. Eep. 56. A guardian is not liable for the default of his collection agent. Thus a guardian, who, in good faith, and using reasonable care to select a proper agent, does select one of good repute to make collection of a claim of his ward, and such agent collected the money due thereon, and kept it, is not liable to his ward for the loss: Beach v. Moser, 4 Kan. App. 66; 46 Pac. Eep. 202. The general rule as to the limit of liability of a trustee for mingling trust funds w^th his own, and their use in his own business, where it is not shown that a larger profit was realized therefrom, is the return of the principal, with legal interest thereon, compounded annually. This rule is applicable alike to guardians and executors, as well as to other trust relations: Estate of Cousins, 111 Cal. 441, 445; 44 Pac. Eep. 182. A guardian's liability upon his own contracts for the benefit of the ward is personal, and the judgment of a court, rendered for such a debt, is against him personally, and not against the ward's estate: Sturgis v. Sturgis (Or.), 93 Pac. Eep. 696, 699. Taxes should be assessed to the guardian, not to the ward. The guardian is not liable for taxes assessed to his ward's Estate: Brown V. Smith, 8 Haw. 677, 679. 16. Embezzlement by guardian. It is not necessary, in an indict- ment against a guardian for embezzlement, to allege the particulars of the guardianship; such as the date of defendant's appointment as guardian, and in what court appointed, as well as the issue of letters of guardianship to him, and the fact of his taking possession of certain moneys of his ward; the fact of his filing his account, and a settlement thereof; the fact that he was incapable of discharging his trust or was unsuitable therefor; or had wasted or mismanaged the estate; and that the court, upon due notice given, had removed him, and had demanded that he should surrender the estate of his ward to the person found to be legally entitled thereto. It is sufficient to meet the requirements of the statute, to allege, after stating the jurisdictional facts, that, at a designated date, the defendant, " being then and there intrusted with and having in his control " a certain sura of money, " as guardian, trustee, and agent " of the person named, and " for the use and benefit " of said person, and being his " property," did, at a time and place named, " wilfully, feloniously, GENERAL AND MISCELLANEOl/s PEOVISIONS. 217 and fraudxileutly embezzle, convert, and appropriate the same to his own use ": People v. Page, 116 Cal. 386, 391; 48 Pac. Eep. 326. 17. Bemoval of guardians. If the guardian of a ward is an unsuit- able person, he should be removed. Thus a father, who, as guardian of his minor children, is in receipt of an annual income of two thousand dollars from their property, and who. persistently refuses, through a period of several years, to provide for their support and education, ia not a suitable person to have the management of their estate, and should be removed from his guardianship: Guardianship of the Swifts, 47 Cal. 629, 631. The court has jurisdiction, in a pro- ceeding to compel a guardian to account, to remove him for his failure to account, after being cited to do so: Deegan v. Deegan, 22 Nev. 185; 37 Pac. Eep. 360, 361. The order of removal, however, must be upon one of the grounds specified in the statute, or such order will be reversed on appeal: In re-Baynor, 74 Cal. 421; 16 Pac. Eep. 229. And it is error to revoke letters of guardianship without notice to the guardian, or giving Mm an opportunity to be heard: Estate of Eose, 66 Cal. 241; 5 Pac. Eep. 220. The record must show that the removal was based on statutory grounds. If no cause for removal appears in the record on appeal, the court cannot assume that the guardian was removed upon a cause not appearing in it: In re EaynoT, 74 Cal. 421; 16 Pac. Eep. 229. It is error to remove the guardian where the petition for his removal presents no fact showing that the guardian has become incapable of discharging his trust concerning the estate of his ward, or that he is unsuitable therefor, or that he has wasted or mismanaged the same, or that he has failed to render an account or to malse a return: Estate of Eose, 66 Cal. 240; 5 Pac. Eep. 219. If the guardian of an estate is removed by the probate court, and another guardian is appointed in his place, and an appeal is taken by the guardian removed, the newly ap- pointed guardian is a necessary party: Estate of Medbury, 48 Cal. 83. Before appointing a guardian, it is mandatory that the person having the custody of the minor should have notice of the hearing. Such notice is absolutely necessary to give the court jurisdiction of the proceeding, and power to make the order of appointment. But where the record does not disclose anything showing that the order of appointment was void, or beyond the jurisdiction of the court, a court will not, after the expiration of six months from the issuance of letters of guardianship, direct such letters to be set aside for want of notice, where such application is made under a statute pro- viding that all applications to set aside orders or judgments not void upon their face must be made within six months after the entry of such order or judgment: In re Eickerenkotter's Estate, 126 Cal. 54; 58 Pac. Eep. 370. Judgment removing a guardian is conclusive, not only against the guardian himself, but also against the sureties upon his official bond. Whatever binds and concludes the guardian, equally 218 PROBATE LAW AND PRACTICE. binds and concludes his sureties: Deegan v. Deegan, 22 Nev. 185; 37 Pac. Eep. 360, 361. A probate judge at chambers has power to dis- charge a guardian: "Warder v. Elkins, 38 Cal. 439, 441. If a guardian has been cited to appear and render an account, but neglects and refuses to do so, the court is authorized to remove him for his failure to account: Deegan v. Deegan, 22 Nev. 185; 37 Pac. Eep. 360, 361. Thtf act of a probate court in removing a former guardian and ap- pointing his successor must be presumed to have been correct: Brod- rib V. Tibbits, 63 Cal. 80. 18, Bights and liabilities of ward. (1) In general. After wards reach majority, they may disaffirm the acts of their guardian, but they are not absolutely obliged to reject what their guardians have done; they have an election, and if, within a reasonable time, they do not disaffirm such acts, they thereby become affirmed, and the wards are bound thereby: Brazee v. Scho- field, 2 Wash. Ter. 209; 3 Pac. Bep. 265, 268. If a new guardian gives a note for money borrowed for the support and maintenance of the ward by a previous guardian, such note cannot bind the ward, where it has not been approved by the court having jurisdiction of the estate, and if no consideration for the note was ever received by the new guardian, he cannot be held personally liable therefor: Wright V. Byrne, 129 Cal. 614; 62 Pac. Kep. 176. (2) Actions by ward. If a ward fails for over ten years to bring suit against his guardian to recover moneys received by him, which suit he might have brought, and there is no proof to show non- payment, the inference is that payment was made: Love v. Love, 72 Kan. 658; 83 Pac. Eep. 201. For facts under which it was held that a ward was not entitled to foreclose against the guardian's vendees a mortgage executed to him by his guardian, where there had never been any settlement of guardianship accounts, and it had never been determined whether the guardian was indebted to his ward, or whether, on the other hand, the ward's estate was liable to him, see Cummings v. Strobridge L. Syndicate (Cal.), 88'Pac. Eep. 901, 902. In an action to terminate A trust, minor defendants are not bound by admissions of their guardian to their prejudice: Kid- well V. Ketler, 136 Cal. 12; 79 Pac. Eep. 514. If a guardian deposits some of his own money, and some of the money of his wards, with a person who sustains toward such guardian a relation of personal confidence, and the guardian afterwards gives to such depositary a receipt in full of the moneys of the wards, and release of all demands, the depositary cannot rely upon such receipt and release as an estoppel against the wards, without pleading such estoppel, where the wards bring an action to recover the moneys so deposited. And where it appears that the settlement was not fair, that the signature of the guardian was procured through mistake, misrepresentation, and fraud, and that there was a large amount of the minor's money GENERAL AND MISCELLANEOUS PROVISIONS 219 still in the depositary's possession, the wards have a right to go behind the settlement, and show the facts. They have their election to pursue either the guardian, his sureties, or the person with whom the settlement was made; and this is their right, independently of any statute requiring a guardian to obtain the consent of the court to such a settlement: Montgomery v. Eauer, 125 Cal. 227; 57 Pac. Eep. 894. If a depositary receives money belonging to minors, from their guardian, with whom he has a relation of personal confidence and trust, and with knowledge of the origin and character as to the trust funds of the minors, he becomes a trustee of the minors in relation to such moneys, and cannot justify his retention of the money upon the ground that he has applied it to a personal debt due to him from the guardian: Montgomery v. Eauer, 125 Cal. 227; 57 Pac. Eep. 894, 896. Although a final settlement is made by an administrator or guardian, the owner of the land and beneficiary of the trust will ordinarily not be estopped from asserting a title to the land wrongfully obtained by the trustee, unless the beneficiary had full knowledge of the wrong practised by the trustee, and qf the facts upon which the rights of the beneficiary are founded: Webb v. Branner, 59 Kan. 190; 52 Pac. Eep. 429, 431. Nor can the fact that the trustee made improvements on the land wrongfully obtained by him during the infancy of the beneficiary, and with the benefici- ;ary's knowledge, prevent such beneficiary from claiming the land after attaining majority: SVebb v. Branner, 59 Kan. 190; 52 Pac. Eep. 429, 432. A ward cannot maintain a suit against his guardian for a supposed balance until after an account and settlement is had in the probate court: Allen v. Tiffany, 53 Cal. 16. If the probate court enters an order or decree settling a guardian's account, the ward's action against the sureties on the guardian's bond is prema- ture, where such action is commenced before the expiration of the time allowed by law for the taking of an appeal from such order: Cook V. Ceas, 143 Cal. 221, 223; 77 Pac. Eep. 65. In an action by a ward against the executors of a deceased guardian's estate to recover a balance claimed to be due to the plaintiff, the executors cannot urge the statute of limitations, where the test9,tor's will contained a clause waiving and repudiating the statute of limitations and- directly directing his executors to pay all obligations, notwith- standing such statute, as this waiver is a part of the testamentary disposition of his property which he had the right to make, and which his executors should enforce: Glassell v. Glassell, 147 Cal. 510, 512; 82 Pac. Eep. 42. In an action by a ward to recover money alleged to be due from the deceased as guardian of the person and estate of the plaintiff, the allowance of compound interest is not erroneous, although no fraud is charged or found against the estate touching his conduct as guardian, where the evidence was that such guardian commingled the funds of his ward with his own, and that the deceased never filed an inventory or appraisement, and never rendered any account in the matter of such guardianship, and never 220 PROBATE LAW AND PRACTICE. kept any account upon his books from which a proper accounting could be rendered to the court; and where it further appears that he never obtained any order from the court authorizing him to use any of the funds of the plaintifC: Glassell v. Glassell, 147 Cal. 510, 512; 82 Pac. Eep. 42. Though an attempt to obtain the revocation of an order of guardianship is unsuccessful, counsel fees may be awarded to counsel who represented the ward, where the application was made in good faith: Magoon v. Fitch, 16 Haw. 13, 15. REFERENCES. Interested witness, or party to suit involving ward's estate or rights, guardian or next friend as: See note 4 Am. & Eng. Ann. Cas. 1068. (3) Actions against ward. It is settled law of this state that an action will not lie against a minor or his estate for the value of services rendered to the guardian of such minor to assist him in the execution of his trust. The possession of a guardian, in this respect, is the same as that of the administrator of the estate of a deceased person; both the administrator and the guardian are primarily liable to those whom they employ to aid them in the care, management, and protection of the estate; and the question of reimbursement of the administrator or guardian from the estate, for such necessary expenses as he may incur, is one solely between the administrator or guardian and the estate which he represents, and one which the court having jurisdiction of the estate has the sole power to determine. The person rendering services to the administrator or guardian cannot maintain an action for the value thereof against the estate or against the ward: MeKee v. Hunt, 142 Cal. 526; 77 Pac. Eep. 1103. And an order made on the application of a guardian for the substitu- tion of a new attorney for the guardian does not authorize a contract affecting the property of the estate of the minor, nor require the performance of any legal services, and there is no provision of law authorizing the court having jurisdiction of the guardianship pro- ceedings to require or direct an attorney to perform legal services for the guardian: McKee v. Hunt, 142 Cal. 526; 77 Pac. Eep. 1103, 1104. The personal or real estate of the ward can be converted into cash only by proceedings under the direction of the county court. This is the policy of our whole probate law with reference to estates of deceased persons, as well as to those under guardianship. There- fore the enforcement of a judgment against the ward can be accom- plished only through the county court, and not by process, either against the ward's estate or the guardian: Sturgis v. Sturgis (Or.) 98 Pac. Eep. 696, 699. The judge of the court may order a guardian to pay counsel fees to his ward's wife to enable her to defend in proceedings brought to deprive her of the custody of her infant: Guardianship of McGrew; 9 Haw. 426, 427. There is no abuse of discretion in appointing a guardian ad litem, and permitting him to GENEEAL AND MISCELLANEOUS PROVISIONS. 221 file an answer after the evidence is introduced, and before the case is finally decided: Earl v. Cotton (Kan.), 96 Pac. Rep. 348. EErEEENCES. Interested witness, or party to suit involving ward's estate or rights, guardian or next friend as: See note 4 Am. & Eng. Ann. Cas. 1068. (4) No disaffirmance of parol partition when. A parol partition, carried out and followed by actual possession in severalty of the several parcels is valid, and will be enforced, notwithstanding the statute of frauds, on the theory that it has been removed from its operation by part performance. Hence if co-heirs, upon reaching majority, and knowing the circumstances of such partition, retain possession of the land theretofore set apart to them by such partition, claim it as their own, asserting no claim whatever to the other land occupied by the persons who have been their co-tenants, enjoying the fruits thereof, and exercising dominion over the same, such oral partition is binding upon them. They cannot be heard in disaffirmance of the partition. They are conclusively presumed to have ratified the partition; and the rights of the various parties to the partition, and their title to the land, would relate back and attach as of the date of the partition: Whitemore v. Cope, 11 Utah, 344; 40 Pac. Eep. 256, 258. 19. Bond of guardian, and liability thereon. (1) Failure to give a bond. In California, a person cannot become guardian of the property of minor children, though appointed by the court as such, until he gives the bond required by statute: Murphy v. Superior Court, 84 Cal. 592; 24 Pac. Hep. 310. But he is not estopped to deny the fact of guardianship by reason of his neglect to give the bond required by law, where he has received no property belonging to the minors, as their guardian, or by virtue of his appointment: Murphy v. Superior Court, 84 Cal. 592, 597; 24 Pac. Eep. 310. The validity of guardianship proceedings must be upheld on a collateral attack, though there was a failure to require a bond on the appoint- ment of the guardian, such failure being merely an error, and not in excess of jurisdiction in such proceedings: In re Chin Mee Ho, 140 Cal. 263; 73 Pac. Kep. 1002, 1003. In Kansas, the appointment of a guardian, who duly takes the oath required, and receives letters of guardianship in due form, issued by the probate court, is not ren- dered absolutely void by his failure to give the bond required by statute: Hunt v. Insley, 56 Kan. 213; 42 Pac. Eep. 709. BEFEBENCES. A corporation may become surety on a guardian's bond: See Kerr's Cal. Cyc. Code Civ. Proc, § 1056. Concerning bond on appointment, see subd. 1 (2), ante. 222 PROBATE LAW AND PRACTICE. (2) Purpose of liond. A guardian's bond, executed as security only for the proper use of the personal estate of the ward, and the rents and profits of his real estate, under one section of the statute, is not intended as a security for the proper use of the purchase-money received by the guardian on the, sale of the ward's real estate, under another section of the statute, as a separate bond is required for that purpose: Morris v. Cooper, 35 Kan. 156; 10 Pac. Eep. 588. (3) Breach of bond. The probate court has no authority to enter- tain an application by the creditor of a guardian of minor children for the allowance, against the esta^te of the wards, of a judgment of the district court rendered against the guardian on a contract made by him in carrying on a general merchandise business with the ward's money, nor to order the payment of such a judgment, for such a, proceeding, and the violation of such an order does not constitute a breach of the guardian's official bond: Harter v. Miller, 67 Kan. 468; 73 Pac. Eep. 74. When a ward attains the age of majority, the office of guardian comes to an end, and it is then the duty of the guardian, and one of the obligations of his bond, to exhibit a final account of his guardianship to the probate court, make a settlement with the probate judge or with the ward, and deliver all tie property in his hands belonging to the ward. Failure to do this constitutes a breach of his bond, for which he and his sureties are liable after settlement of the guardianship: In re Allgier, 65 Cal. 228, 229; 3 Pac. Bep. 849. (4;) New bond. A probate court has power to take a new bond from the guardian of a minor's estate in place of a former bond. When this is done, the new bond is given as a substitute for the old one, and the legal effect of it is, that the sureties on the old bond are not answerable for any defaults of the guardian occurring after the filing of such substituted bond: Spencer v. Houghton, 68 Cal. 82; 8 Pac. Eep. 6/9, 681. (5) Action on bond. The sureties on a guardian's bond may be sued without first recovering judgment against the guardian, and without making him a party: Gehbard v. Smith, 1 Col. App. 342; 29 Pac. Eep. 303, 305. Where the condition of the obligation of a guardian's bond is in the language of the statute, and is to the effect that he shall faithfully discharge the office and trust of such guardian according to law, etc., he is bound to discharge faithfully the obliga- tion imposed upon him by the statute, regardless of any orders, or any demands for an accounting, or any proceedings by the heirs or their representatives against him; and it is sufficient for the complaint to allege that, after entering upon the duties of such guardian, he filed an inventory, and subsequently filed an account; that he did not faithfully discharge the office and trust of such guardian according to law; that he did not render fair and just accounts of his guardian- GENERAL AND MISCELLANEOUS PROVISIONS. 223 ship; that he failpd to account for the rent of real property belonging to the estate; that he failed to take proper care of said property; and that he failed .to obtain suflScient rent for the same for a designated period: Gebhard v. Smith, 1 Col. App. 342; 29 Pae. Eep. 303, 305. Where a guardian's bond is made payable to the people of the state, a suit thereon is properly brought in the name of the people to their use: McDonald v. People, 12 Col. App. 98; 54 Pac. Eep. 863. The only orders of the court which can be evidence against the sureties in a suit on a guardian's bond are orders made upon the guardian per- sonally, in relation to his guardianship accounts, or in relation to the property of his wards in his possession; and such orders must be made in the guardianship proceeding. However regular an order may be, if it is not an order contemplated by the bond, or in relation to which the sureties entered into an undertaking, it is not evidence against them, but is utterly incompetent and inadmissible: McDonald V. People, 12 Col. App. 863; 54 Pac. Eep. 863, 864. In an action against the administrator of a deceased guardian and his sureties, a complaint alleging that there came into the possession and control of the deceased guardian a specified sum, which, at the time of his death, he held and retained, and mingled the same with his own funds, and appropriated it to his own use, and that he had refused and neglected to account for the same to plaintiff at the time of his death, states a cause of action, though it does not aver non-payment; and the judgment is sufiicient, where it shows a settlement of the account as against the administrator. Where there is an administrator ^ of the deceased guardian, the account must be settled and allowed as a basis for the liability of the surety. The status of the account J must be fixed and determined. It is not necessary that there should be a separate suit in equity to settle and determine the liability of a deceased guardian, where all the parties in interest are before the court. Equity has jurisdiction to determine the whole controversy in a single suit. It may settle and state the account against the estate of the deceased guardian, and render judgment for the amount found j due from such estate against the surety: Zurfluh v. Smith, 135 Cal. [ 644, 647; 67 Pac. Eep. 1089. No action on a guardian's bond can be commenced in advance of the order of settlement; but the settlement of a guardian's account is a proceeding in which an appeal from the probate court to the supreme court may be taken at any time within sixty days after the entry of the order. During this time the pro- ceeding is pending, and cannot be made the basis of any new action. An action commenced before an appeal is taken, but within the sixty days allowed for an appeal, is premature: Cook v. Ceas, 143 Cal. 221; 65 Pac. Eep. 65, 67. No action can be maintained against the sureties > of an executor, or administrator, or guardian for breach of his bond until the amount of indebtedness has been determined by an order of the probate court: Nickals v. Stanley, 146 Cal. 724, 726; 81 Pac. Eep. 117. A suit on a guardian's bond cannot be commenced before there 224 PROBATE LAW AND PRACTICE. is any breach of the bond. It is not the bond that constitutes the cause of action, but some breach of the bond; and if a guardian is not in default until he fails, or refuses on demand, to pay over the amount found due on settlement of his accounts, then a final order of settlement is an essential element of the cause of action against his sureties: Cook v. Ceas, 143 Cal. 221, 226; 77 Pac. Eep. 65. The probate court has' only a limited jurisdiction, and its proceedings are regulated and governed entirely by statute. It can settle accounts of administrators or guardians only in the manner prescribed by the I code. Where an administrator or guardian dies or absconds, or is beyond the jurisdiction of the court, the proper method, in order to ascertain whether he is liable, and to what extent, so as to bind the sureties on his oficial bond, is by a proceeding in the nature of a civil action, wherein the sureties are made parties and have an opportunty to be heard: Eeither v. Murdock, 135 Cal. 197; 67 Pac. _jRep. 784. No action will lie against the sureties on a guardian's bond to recover a balance shown to be due by the guardian's account, until it has been settled in the probate court: GrafE v. Mesmer, 52 Cal. 636, 637. (6) Liability of sureties. The sureties on a guardian's bond are ' pri ma faci e bound by a recovery against their principal, although they were not parties to the suit, and they can relieve themselves only by showing that the amount recovered was in excess of the amount to which the plaintiff was entitled, or that he was not entitled to recover at all: Botkin v. Kleinschmidt, 21 Mont. 1; 52 Pac. Eep. 563, 564. /An order of the probate court adjusting the amount due by a guardian I does not bind the sureties, where the guardian never had notice of the ^proceeding: Spencer v. Houghton, 68 Cal. 82; 8 Pac. Eep. 679, 682. The failure of a guardian's final account to show the amount of money actually invested in certain stocks and bonds, referred to in the find- ings, is not prejudicial to his bondsmen, where the money so paid, whatever the amount may have been, was received by the bondsmen of said guardian: In re Dow, 133 Cal. 449; 65 Pac. Eep. 890, 892. In an action on the bond of a guardian of several minors, the surety cannot escape liability on the ground that the bond is joint, instead of several, as to the obligees, nor on the ground that only one of the obligees is a party to the action. The fact that a guardian's bond is not in strict conformity with the statute does not vitiate it. The omission of the word " severally " does not weaken the bond, release the surety, nor deprive the individual ward from maintaining an action either against the guardian or his sureties. The nature of the guar- dian's duties is several, and would require a several inventory, and a several accounting and payment over to the wards, as they severally arrive at full age. A guardian's bond, though inartificially drawn or slightly defective, is sufficient to bind the obligors: Deegan v. Deegan, 22 Nev. 185; 37 Pac. Eep. 360, 362, 363; 22 Nev. 202; 37 Pac. Eep. 363. GENERAL AND MISCELLANEOUS PROVISIONS. 225 The general rule is, that the liability of a surety on an administrator's or guardian's bond depends upon the liability of the principal, and does not attach until that has been ascertained and determined by the judgment of a court of competent jurisdiction: Eeither v. Mur- dock, 135 Cal. 197, 198; 67 Pac. Rep. 784. BEFEBENOES. ,Bonds of guardians, additional and substituted, liability of sureties on, for past defaults: See note 4 Am. & Epg. Ann. Gas. 345. (7) Defense to action. In an action against a guardian for the conversion of funds belonging to minors, a plea that the guardian had expended money for the benefit of his wards, had paid out moneys fpr necessaries for the minors, and was entitled to compensa- tion out of the trust funds, does not constitute an affirmative defense. It is based on nothing more than a denial of the averments of the complaint: McDonald v. People^ 29 Col. 503; 69 Pac. Eep. 703. Laches, like the statute of limitations, is a defense which must be alleged and proved by the defendant, unless the facts constituting it appear on the face of the complaint, in which case, as in the case of the statute of limitations, it must be urged by the defendant, by means of a demurrer, or in some other legal manner; otherwise it is waived. Hence if nothing appears on the face of the complaint, in an action on the guardian's bond, to indicate that the defendant, or any person other than plaintiff, had suffered, or could have suffered, any loss or prejudice by plaintiff's delay in proceedings to compel an accounting by the guardian, the defense of laches must be alleged and proved. In order to constitute laches, there must be something more than mere lapse of time that would bar the statute of limita- tions. In order to bar a remedy because of laches, there must appear, in addition to mere lapse of time, some circumstances from which the defendant, or some other person, may be prejudiced, or there must be such lapse of time that it may be reasonably supposed that such prejudice would occur if the remedy was allowed: Cook v. Ceas, 147 Cal. 614; 82 Pac. Rep. 370, 372. A delay of only three years and a little less than two months, under a statute which allows the period of four years in which to bring an action, is not, of itself, -sufficient to rdise any presumption or inference that the sureties on the bond of the guardian would be prejudiced thereby: Cook v. Ceas, 147 Cal. '614; 82 Pac. Eep. 370, 372. (8) Iiimltatlon of actions. A guardian and his sureties may be released by the probate court from all liabilities incurred, or from future liabilities, except as to persons laboring under some legal dis- ability, and as to those persons, their rights are preserved for the statutory period after their disability ceases, whatever may be the form of the decree of the court: Racouillat v. Eequena, 36 Cal. 651^ Probate — 15 226 PROBATE LAW AND PRACTICE. 655. In California there is one rule whicli prohibits an action on the bond of a guardian's surety until there is a flnal order settling the guardian's account, and another rule barring the action in three years after the removal or discharge of the guardian; and the latter rule must, no doubt, be enforced, even where, without the fault of the ward, a final settlement of the account has not been obtained within three years after the removal or discharge; but the sureties on guar- dians' bonds have an ample measure of protection against their claims by taking advantage of the general statute of limitations. Such last- named rule applies to an action after a final order of the court removing or discharging the guardian. It does not apply to the termination of a guardianship by the ward after attaining majority: Cook V. Ceas, 143 Cal. 221; 77 Pac. Eep. 65, 69. When a ward arrives at the age of majority, the authority of the guardian comes to an end; but, although his authority is at an end when his ward becomes of age, it cannot be said that, in any ordinary, or usual, or statutory sense of the terms, he has been removed or discharged. The statute of limitations therefore does not, in terms, apply to such a case: Cook V. Ceas, 143 Cal. 221, 230; 77 Pae. Eep. 65. An action against the sureties of a guardian is not barred until three years after a final order of court removing or discharging the guardian: Cook v. Ceas, 143 Cal. 221, 230; 77 Pac. Eep. 65. 20. Limitations of actions. A California statute prescribing three years next after the termination of the guardianship of a minor for a recovery, by the minor, or his grantee, of real estate sold by the guardian has no application to a case where there was no guardian, and no sale by a guardian, appointed by a probate court in this state. Neither does a statute prescribing three years next after the sale of an estate by an executor or administrator, under the provisions of the probate law, for the recovery of the real estate sold, have any application, where the premises in controversy were not subject to sale, and were not sold under its provisions: McNeil v. First Congre- gational Soc, 66 Cal. 105, 111; 4 Pac. Eep. 1096. So under a statute providing that " 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 guardianship; or, when a legal disability to sue exists by reason of minority or otherwise, at the time when the cause of action accrues, within three years after the removal thereof," and where a patent from the government has been issued to certain land sold by an administrator and guardian, an action of ejectment brought to recover such land, although the sale was void, is barred, where more than twenty years were allowed to pass after the minors, and each of them,, became of age, and after the termination of the guar- dianship, and more than three years after the issuance of the patent, before such action was commenced: Eeed v. Eing, 93 Cal. 96; 28 Pae. GENERAL AXD MISCELLANEOUS PROVISIONS. 227 Eep. 851, 833. a complaint in a suit to obtain a decree adjudging a mortgage, executed by a guardian, to be a valid lien on the iTiterest of his wards in the property covered thereby, and directing a sale thereof to pay the note for which the mortgage was given, is not a complaint in an action for relief upon the ground of mistake, where both the guardian and plaintiff believed originally that the mortgage was good and valid, but their mistake in that respect was not dis- covered until within three years prior to the commencement of such action, and where the discovery by the plaintiff, as to the invalidity of his mortgage, was not made until after the statute would have barred it, had it been a valid mortgage. Plaintiff could not be placed in any better position by reason of his mistake as to the validity of his mortgage than he would have been in had his mortgage been valid and there had been no mistake: Banks v. Stockton (Ca,l.), 87 Pac. Eep. 83, 84. In case of fraud, the statute of limitations, in an action against a guardian to obtain an accounting in equity, does not com- mence to run until three years after the discovery, by the aggrieved party, of the facts constituting such fraud: Lataillade v. Orena, 91 Cal. 565, 577; 25 Am. St. Eep. 219; 27 Pac. Eep. 924. 21. Appeal. (1) In general. The remedy for one aggrieved by an order or judgment of a probate court, in the matter of the appointment of guardians, is in the court where such proceedings are had, by proper motion or by appeal.. Such order or decree cannot be attacked col- laterally: Clark V. Eossier, 10 Ida. 348; 78 Pac. Eep. 358. An appeal, and not certiorari, is the proper remedy to review an order appointing a guardian for an aged person, without notice to him, or inquisition of any kind: State v. Denney, 34 Wash. 56; 74 Pac. Eep. 1021. An .'ippellate court has no authority " to make " an accounting, and an original allowance for counsel fees, incurred by a guardian in defense of his accounts in proceedings in error: Nagle v. Eobins, 9 Wyo. 211; 62 Pac. Eep. 796. A guardian removed by order of the county court is authorized to appeal, in connection with the heirs, from such order to the circuit court: In re Olson, 10 S. D. 648; 75 N. W. Eep. 203. Where the ward files a petition to set aside former orders made settling the accounts of his guardian, and to reopen them on the ground of fraud, and the guardian appeals, such appeal will be con- sidered as an appeal from a decree in equity, and where it is taken upon the judgment roll alone, documents inserted in the record, which are not authenticated by any bill of exceptions, cannot be considered for any purpose: Guardianship of Wells, 140 Cal. 349, 351; 73 Pac. Eep. 1065. (2) Appealable orders. If a county court has lost jurisdiction of the subject-matter, by reason of a settlement between a guardian and his ward, and there has been a release of the guardian by the ward 228 PROBATE LAW AND PRACTICE. after the latter has. attained majority, the ward has no power to require the guardian to account, and the order of the court, in such a case, would, in effect, be a judgment, without power, in a new proceed- ing. Such order is therefore appealable: Eichardson's Guardianship, 39 Or. 246; 64 Pac. Eep. 390, 392. In such a case, jurisdiction is not conferred upon the county court by the guardian's appearance therein for the purpose of pleading a settlement of his accounts with the ward; for, while jurisdiction of the person may be conferred in this manner, jurisdiction of the subject-matter cannot be waived by the parties, and may be raised at any time. If the guardian settled with the ward after the latter attained his majority, the jurisdiction of the county court to cancel a settlement must necessarily be extinguished, for the guardian, in effecting such settlement, complied with the con- dition of his bond; and the rule is well settled that transactions between the guardian and ward after the latter becomes of age, or has attained majority upon being married, are beyond the jurisdiction of the county court: Eichardson's Guardianship, 39 Or. 246; 64 Pac. Eep. 390, 392, 393. If an order permitting a foreign guardian to sue is vacated, he has no right to further maintain the action; and the order vacating and setting aside the former order is therefore appeal- able: In re Crosby, 42 Wash. 366; 85 Pac. Eep. 1, 2. (3) Findings. While findings may not be necessary in settling accounts in probate, and are therefore not to be considered upon appeal, yet it is otherwise where the case was not strictly a settle- ment of account in probate, but was in the nature of an action in equity to set aside an order settling the account of the guardian for fraud and to compel a proper account. If the pleadings on both sides, in such a case, are drafted, in effect, as they would be in a suit directly in equity to set aside the order settling the account, and the findings and decree made and entered are such as would follow the trial of such an action, and no objection is raised to the form of the petition, and the guardian waives any objection to the jurisdiction of his person by answering the petition, the petition will be deemed a bill in equity, invoking the equitable powers of the court, notwith- standing it is entitled " In the Matter of the Estate of Guardianship," etc., of the minor named. It is true that the probate jurisdiction of the superior court is separate and distinct from its equity jurisdiction yet the same tribunal exercises both: In re Wells's Estate, 140 Cal. 349; 73 Pac. Eep. 1065, 1066. A finding, on a contest of the settle- ment of a guardian's account, that all the items thereof, as presented are true and correct, must be taken as conclusive, where the evidence is not brought up on appeal: Guardianship of Dow, 133 Cal. 446, 450; 65 Pac. Eep. 890. (4) Effect of, as stay. If the guardian of a minor child has been removed, and the order of removal appealed from, the effect of such GENERAL AND MISCELLANEOUS PROVISIONS. 229 appeal is to stay proceedings in the matter of the appointment of a general guardian of the person of the minor until the determination of the appeal. Henee a petition for letters of general guardianship to be issued to another, pending such an appeal, is properly refused: Guardianship of Van Loan, 142 Cal. 429, 433; 76 Pac. Eep. 39. (5) Record. Presumption. Where the report of a guardian, and the exceptions thereto, constitute the pleadings in a ease, they are an indispensable portion of the record, and should be incorporated therein. Unless this is done, on appeal from a decree entered in favor of a guardian, the court must fall back on the presumption that the decree rendered below was justified by the facts and record before the court: Lowe v. Smith, 20 Col. App. 273; 78 Pac. Eep. 310, 311. Where the record shows the giving of a notice to a ward of the hearing of his guardian's application for leave to sell his real estate, and such notice is for any reason unavailing, it cannot be presumed from the fact that the sale was confirmed by the probate court that any other notice was given: Beachy v. Shomber, 73 Kan. 62; 84 Pac. Eep. 547. (6) Affirmance. Reversal. When a decree allowing a final account is found by the appellate court to be erroneous as to any item or items, that court may direct the decree to be corrected, and, as cor- rected, affirm it: Estate of Schandoney, 133 Cal. 387, 394; 65 Pac. Eep. 877. Although a court sets aside and dismisses all proceedings in the matter of a guardianship, instead of allowing the petition to stand, and allowing it to be contested, that is not of sufficient impor- tance to justify a reversal: Guardianship of Van Loan, 142 Cal. 423, 429; 76 Pac. Eep. 37. (7) Dismissal. Under section 372 of the Code of Civil Procedure of California, it seems that a ward shall himself be a party to a suit which shall bind his estate; that an appeal must be taken in his name; and that an appeal taken in the name of the guardian should be dis- missed: Estate of Callaghan, 119 Cal. 571, 576; 51 Pac. Eep. 860; 39 L. E. A. 689. REFEBENOES. Guardian and ward in general: See Kerr's Cal. Cyc. Code Civ. Proc, §§ 1747-1760, and notes. 230 i'KOBATE LAW AND PRACTICE. CHAPTER VII. GUARDIANS OF INSANE AND OTHEE INCOMPETENT PERSONS. § 161. Notice of time and place of hearing. § 162. Same. Certificate of inability to attend. § 163. Appointment of guardian by court after hearing. § 164. Form. Petition for appointment of guardian of insane person. § 165. Form. Petition for appointment of guardian of incompetent person. § 166. Form. Order for notice of hearing of petition for guardian- ship. Incompetent person. § 167. Form. Order appointing guardian of incompetent person. § 168. Powers and duties of such guardians. § 169. Form. Notice of sale of real estate by guardian of incompe- tent person. § 170. Form. Notice of guardian's sale of incompetent's real estate at private sale. § 171. Form. Order to show cause why order of sale of insane per- son's real estate should not be granted. § 172. Form. Order to show cause why order of sale of incompe- tent's real estate should not be granted. § 173. Form. Order directing payment of monthly allowance for support of feeble-minded. § 174. Proceeding for restoration to capacity. § 175. Form. Petition for judgment of restoration to capacity. § 176. Form. Judgment of restoration to capacity. § 177. Definition of " incompetent." GUARDIANSHIP OP INSANE PERSONS AND OTHER INCOMPETENTS. 1. Sanity and disability. (2) As to attorneys and tlieir 2. Jurisdiction of probate courts. fees. 3. Appointment (if general guardian. (3) Conduct of ward's business. (1) Petition for. Authority of (4) Actions by guardian. ooirt. (5) What is no defense to nc- (2) Notice and personal pres- tion. G^ce. 7. " Conservators." In Colorado. (3) Validity of notice. (1) Appointment. Notice. Jury. (4) Notice by publication. (2) Duties. Investment of funds. (5) Collateral attack. (3) Exceptions to report. Com- 4. Guardian ad litem. ponsation. Removal. Dis- 5. Support, maintenance, and cus- charge. i°i7' 8. Report, account, and settlement of 6. Powers, duties, and liabilities of guardian. guardian. 9. Contracts and rights of insane (1) In general. persons. GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 231 10. Adjudication, of insanity, and its 12. Proceedings against insane per- effecfc. sons. (1) In general. (1) In general. (2) Presumption and evidence. (2) Judgment. Execution. Limi- 11. Restoration to capacity. Tormina- tation of actions. ation of guardianship. 13. Appeal and review. § 161. Notice of time and place of hearing. When it is represented to the superior- court, upon verified petition of any relative or friend, that any person resident of the county is insane, or from any cause mentally incompetent to manage his property, such court 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. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 507), § 1763. ANAI.OGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 896, p. 329. Arizona. Eev. Stats. 1901, par. 1984. Colorado. 3 Mills's Ann. Stats., sees. 4691, 4701. Idaho. Code Civ. Proc. 1901, see. 4353. Kansas. Gen. Stats. 1905, §§4148, 4149. Montana. Code Civ. Proc., see. 2970. Nevada. Comp. Laws, see. 572. New Mexico. Comp. Laws 1897, sees. 1458, 1896-1899. North Dakota. Eev. Codes 1905, §§ 7892, 8248. Oklahoma. Kev. Stats. 1903, see. 1827. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5268. South Dakota. Probate Code 1904, § 379. Utah. Bev. Stats. 1898, see. 4000. Washington. Pierce's Code, §§ 2762, 2828. Wyoming. Eev. Stats. 1899, see. 4879. § 162. Same. Certificate of inability to attend. When it is represented to the superior 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, hot less than five days before the time so appointed, and such person, if able to attend, must be produced on the hearing, provided that when such person is a patient at a state hospital in this state, the 232 PROBATE LAW AND PRACTICE. certificate of the medical' superintendent or acting medical superintendent of such state hospital, to the effect that such patient is unable to attend on the hearing shall be prima facie evidence of such fact. Kerr's Cyc. Code Civ. Proc. (new- section; see Kerr's Stats, and Amdts., p. 507), § 1763 [a]. § 163. Appointment of guardian by court after hearing. If, after a full hearing and examination upon such petition, it appear to the court that the person in question is inca- pable of taking 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. Kerr's Cyc. Code Civ. Proc, § 1764. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 896, p. 329. Arizona.* Eev. Stats. 1901, par. 1985. Colorado. 3 Mills's Ann. Stats., sec. 4701. Idaho.* Code Civ. Proc. 1901, sec. 4354. Kansas. Gen. Stats. 1905, § 4150. Montana.* Code Civ. Proc, sec. 2971, Nevada. Comp. Laws, sec. 573. New Mexico. Comp. Laws 1897, sec. 1906. North Dakota.* Eev. Codes 1905, § 8249. Oklahoma.* Rev. Stats. 1903, sec. 1828. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5268. South Dakota.* Probate Code 1904, § 380. Washington. Pierce's Code, § 2763. Wyoming. Eev. Stats. 1899, sec. 4881. § 164. Form. Petition for appointment of guardian of insane person. [Title of court.] [Title of guardianship.] \ Department No. ( [Title of form.] To the Honorable the Court ^ of the County " of , State of Tour petitioner hereby respectfully represents : That he • is a relative ^ of ,* of the county ^ of , state of ; That the said has property, both real and personal," in said county ' and state, particularly described as follows, to wit: : ' GUAKDIANS OF INSANE AND OTHER INCOMPETENTS. 233 That the said is about years of age, is now insane,' and is incapable of taking care of himself or of managing his property. Your petitioner therefore prays that he ^^ be appointed guardian of the person and estate of the , Attorney for Petitioner. , Petitioner. [Add ordinary verification.] Explanatory notes. 1. Or, to the judge of the court. 2. Or, City and County. 3. State relationship, or that he is a friend, etc. 4. Name of insane person. 5. Or, city and county. 6. Or as the case may be. 7. Or, city and county. 8. Describe the property. 9. Give brief state- ment of mental and physical condition of such person, for informa- tion of the court. 10. Or as the case may be. § 165. Form. Petition for appointment of guardian of incompetent person. [Title of court.] [Title of guardianship.] \ Department No, [Title of form.] To the Honorable the Court ^ of the County '■' of , ' State of Your petitioner hereby respectfully represents : That he is a relative ^ of ,* of the county ° of , state of ; That the said is about years of age, and has property, both real and personal, in said county " and state, which needs care and attention, the exact nature and de- scription of which is to your petitioner unknown ; and That the said has, by reason of J become men- tally incompetent either to care for himself or to manage his property. Your petitioner therefore asks that he be appointed guar- dian of the person and estate of said , Attorney for Petitioner. , Petitioner. [Add ordinary verification.] Explanatory notes. 1. Or to the judge of the court. 2. Or, City and County. 3. State relationship, or that he is a friend, etc. 4. Name of incompetent. 5, 6. Or, city and county. 7. State causes of in- competency. 234 PROBATE LAW AND PRACTICE. § 166. Form. Order for notice of hearing of petition for guardianship. Incompetent person. [Title of court.] r„.., . ., , (No 1 Dept. No . [Title of matter.] . rm-^i j! i! i "- -' ( [Title of form.] It having been represented to the court by the verified petition of and — '■ — ^ of the above-named , that the said is insane, and mentally incompetent to manage his property, — It is ordered by the court. That a hearing of the said peti- tion be had at the court-room of this court, Department No. thereof, in the court-house,' on the day of , 19 — , at o'clock in the forenoon * of said day, and that notice of the time and place of said hearing, and of the nature of said petition, be given to the said not less than five days ° before the day appointed therefor, as afore- said. , Judge of the Court. Dated , 19 — Explanatory notes. 1. Give file number. 2. Eelative or friend. 3. Name location of court-house. 4. Or, afternoon. 5. An order and notice is insufficient where it merely specifies a day for hearing, without any specification of hour or place; and if a hearing has been adjourned until " March 3d," it cannot be heard on March 2d. If so heard, and an order made, the order is premature and without authority, and may be collaterally attacked: McGee v. Hayes, 127 Cal. 336, 339; 78 Am. St. Bep. 57; 59 Pac. Kep. 767. § 167. Form. Order appointing guardian of incompetent person. [Title of court.] No. 2 Dept. No. . [Title of form.] Now comes , the petitioner herein, by Mr. , his attorney, and proves to the satisfaction of the court that his petition was filed herein on the day of , 19 — ; that thereupon the court made an order appointing the day of , 19 — , as the time for hearing the same, and direct- ing that notice of the time and place of such hearing be given; that due notice of the time and place of the said hearing was personally served on the said not less than [Title of estate and guardianship.] i GUARDIANS OP INSANE AND OTHER INCOMPETENTS. 235 five days ^ before the time so appointed,* and the said appearing in person,'* the court thereupon proceeds to the hearing and examination upon said petition, and, after hear- ing the evidence, finds that said — — is incapable of taking care of himself and managing his property," and that said petition ought to be granted. It is therefore ordered, adjudged, and decreed by the court. That said is incapable of taking care of himself, and managing his property,' and that be appointed guardian of the person and estate .of said , and that letters of guardianship be issued accordingly, upon his giving bond as such guardian in the sum of dollars ($ ) and taking the oath required by lavsr. , Clerk. Entered , 19 — By , Deputy.^ Explanatory notes. 1. As,' In the Matter of the Estate and Guardianship of John Stiles, an Incompetent Person. 2. Give file num- ber. 3. Or as provided by statute. 4. If the matter has been con- tinued, say: " and said hearing having been regularly postponed to this time." 5. Or, it being also shown to the satisfaction of the court that the said is not able to attend in court at this hearing, and cannot be produced. 6, 7. And is insane. 8. See note to § 77, ante. § 168. Powers and duties of such guardians. Every guar- dian appointed, as provided in the preceding section, has the care and custody of the person of his ward, and the manage- ment of all his estate, until such guardian is legally dis- charged ; and he must give bond to such ward, in like manner and with like conditions as before prescribed with respect to the guardian of a minor. Kerr's Cyc. Code Civ. Proc, § 1765. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 897, p. 330. Arizona.* Eev. Stats. 1901, par. 1986. Colorado. 3 Mills's Ann. Stats., sees. 4712, 4721. Idaho.* Code Civ. Proc. 1901, sec. 4355. Kansas. Gen. Stats. 1905, §§ 4153, 4154. Montana.* Code Civ. Proc, sec. 2972. Nevada. Comp. Laws, sec. 574. North Dakota.* Eev. Codes 1905, § 8250. Oklahoma.* Bev. Stats. 1903, sec. 1829. 236 PROBATE LAW AND PRACTICE. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5269. South Dakota.* Probate Code 1904, § 381. Utah. Rev. Stats. 1898, sec. 3991. Washington. Pierce's Code, §§2765, 2828e. Wyoming.* Eev. Stats. 1899, see. 4890. § 169. Form. Notice of sale of real estate by guardian of incompetent person. [Title of court.] r„.,, -;,.,,• T , ( No. 2 Dept. No. . [Title of guardianship.] i j ^^.^^^ J^^^^ Notice is hereby given. That, pursuant to the order of the ^ court of the county* of , state of , made on the day of , 19 — , in the matter of the estate of said , an incompetent person, the under- signed, guardian of the person and estate of said incompe- tent person, will sell at probate sale, as a whole, to the highest bidder, upon the terms and conditions hereinafter mentioned, and subject to confirmation by said ^ court, on or after the day of , 19 — , all the right, title, interest, and estate of the said , an incompetent, being an undivided one fourth,' in and to that certain lot, piece, or parcel of land situate, lying, and being in the county ^ of , state of — , particularly bounded and described as follows, to wit: * Terms and conditions of sale: Cash, in gold coin of the United States of America ; ten (10) per cent of the purchase- money to be paid at the time of sale ; balance on confirmation of sale. Bids or offers must be in writing, and may be left at the oflce of , attorney for said guardian, at ," or may be delivered to said guardian personally, or may be filed in the office of the clerk of said court. Dated , 19 — , Guardian of the Person and Estate of , an Incompetent Person. , Attorney for said Guardian.^" Explanatory notes. 1. As, In the Matter of the Guardianship of the Person and Estate of , an Incompetent Person. • 2. Give file num- ber. 3. Title of court. 4. Or, city and county. 5. Title of court. 6. Or other fractional part. 7. Or, city and county. 8. Describe the land. 9. Name the place. 10. Give address. GUARDIANS OP INSANE AND OTHEE INCOMPETENTS. 237 § 170. Form. Notice of guardian's sale of incompetent's real estate at private sale. LTitle of court.] [Title of guardianship.] ^^°- -.1 Dept. No. [Title of form.] Notice is hereby given, That, pursuant to the order of the -' court of the county ^ of , state of , made on the day of , 19 — , in the matter of the estate of said '-, an incompetent, the undersigned, guardian of tlie person and estate * of said incompetent, will sell at private sale, as a whole, to the highest bidder, upon the terms and conditions hereinafter mentioned, and subject to confirma- tion by said ° court, on or after the day of , 19 — , all the right, title, interest, and estate of the said , an incompetent, being an undivided one fourth,*^ in and to that certain lot, piece, or parcel of land situate, lying, and being in the county^ of , state of , particu- larly bounded and described as follows, to wit : ' Terms and conditions of sale: Cash, in gold coin of the United States; ten (10) per cent of the purchase-money to be paid at the time of the sale ; balance on confirmation of sale. Bids or offers must be in writing, and may be left at the office of , attorney for said guardian, at ," or may be delivered to said guardian personally, or may be filed in the office of the clerk of said court.' Dated , 19 — : , Guardian of the Person and Estate ^" of , an Incompetent. , Attorney for said Guardian.^^ Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, city and county. 4. Or, of the estate. 5. Title of court. 6. Or other fractional part. 7. Or, city and county. 8. Describe the land. 9. Name the place. 10. Or according to the fact. 11. Give address. § 171. Form. Order to show cause why order of sale of insane person's real estate should not be granted. [Title of court.] ,_• n , (No. 2 Dept. No. [Title of estate and guardianship.] i j ^^.^^^ of form.] It satisfactorily appearing to this court from the petition this day presented and filed by , the guardian of the 238 PROBATE LAW AND PRACTICE. person and estate of , an insane person, praying for an order of sale of certain real estate belonging to his said ward, that it would be beneficial to said ward and his estate that such real estate shall be sold, and the moneys applied toward the construction of dwellings on the real estate be- longing to said ward, — It is hereby ordered, That the next of kin of the said ward, and all persons interested in the said estate, appear before this court on ,' the day of , 19 — , at o'clock in the forenoon,* at the court-room of this court, at the court-house ° in the county ° of , then and there to show cause why an order should not be granted for the sale of such estate, at public or private sale. And it is further ordered. That a copy of this order be published at least once a week for three consecutive weeks before the said day of hearing,'^ in , a newspaper printed and published in said county * of Dated , 19 — , Judge of the Court. Explanatory notes. 1. As, In the Matter of the Estate and Guar- dianship of , an Insane Person. 2. Give file number. 3. Day of week. 4. Or, afternoon. 5. Designate location of eourt-house. 6. Or, city and county. 7. Or as directed by the court. 8. Or, city and county. § 172. Form. Order to show cause why order of sale of incompetent's real estate should not be granted. [Title of court.] [Title of estate and guardianship.] i i^°- ° ^^^^- ^°' [Title of form.] It satisfactorily appearing from the verified petition of , the guardian of the person and estate of , also known as , an incompetent person, that it would be beneficial and expedient that the real estate belonging to the said incompetent should be sold, — It is therefore ordered. That the next of kin of said in- competent, and all persons interested in the said estate, appear before this court on the day of , 19 , at the hour of in the forenoon ^ of said day, to show cause, if any they can, why such sale should not be ordered. It is further ordered, That a copy of this order be pub- lished at least once a week for three successive weeks before GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 239 said day of hearing, in , a newspaper printed and pub- lished in said county * of , state of Dated , 19 — , Judge of the Court. Explanatory notes. 1. As, In the Matter of the Estate and Guar- dianship of , also known as , an Incompetent Person. 2. Give file number. 3. Or, afternoon. 4. Or, city and county. § 173. Form. Order directing payment of monthly allow- ance for support of feeble-minded. [Title of court.] [Title of matter.] i P° ' ^^P*- ^° *■ - I [Title of form.] , a feeble-minded person, a resident of county,^ state of , having been committed to the * by an order duly given and made by me as judge of the " court of the county * of , state of , on this day of , 19 — , under and pursuant to the terms of an act of the legislature of the state of , entitled ,' — It is ordered, That the county * of pay to the state treasurer, on account of and for the support of said person, monthly, the sum of ten dollars ($10) for each month and part of a month that said person shall be and remain an inmate of said institution. Dated , 19 — , Judge of the » Court of the County "■" of , State of Explanatory notes. 1. As, In the Matter of , a Feeble-Minded Person. 2. Give file number. 3. Or, city and county. 4. Name the institution; as, California Home for the Care and Training of Peeble-Minded Children. 5. Title of court. 6. Or, city and county. 7. Give title of act and date of approval. 8. Or, city and county. 9. Title of court. 10. Or, city and county. § 174. Proceeding for restoration to capacity. Any per- son 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 must be verified, and must state that such 240 PROBATE LAW AND PRACTICE. person is then sane or competent. Upon receiving the peti- tion, the court must appoint a day for a hearing before the court, and, if the petitioner requests it, must order an inves- tigation before a jury, which must be summoned and im- paneled in the same manner as juries in civil actions. The court must cause notice of the trial to be given to the guar- dian of the person so declared insane or incompetent, if there is a guardian, and to his or her husband or wife, if there is 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 dis- cretion 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 is found that the person is of sound mind, and capable of taking care of himself and his property, his restoration to capacity must be adjudged, and the guardianship of such person, if such person is not a minor, must cease. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 508), § 1766. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1987. Idaho. Code Civ. Proe. 1901, see. 4356. Kansas. Gen. Stats. 1905, §§ 4173, 4174. Montana. Code Civ. Proe., see. 2973. North DakoU. Eev. Codes 1905, § 8251. Oklahoma. Eev. Stats. 1903, sec. 1830. South Dakota. Probate Code 1904, § 382. Utah. Eev. Stats. 1898, sec. 4002. Washington. Pierce's Code, § 2779. Wyoming. Eev. Stats. 1899, sees. 4894, 4895. §175. Form. Petition for judgment of restoration to capacity. [Title of court.] [Title of matter.] i P" ' ^^pt. No . ( [Title of form.] To the Honorable the Court of the County ' of , State of Now comes , and alleges. That he is ,* and shows to this court that on the ^ day of , 19 , such pro- GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 241 ceedings were had before this court that " was duly- declared to be insane, arid that — ^ was appointed guardian of the person and estate of said ; " But your petitioner avers that the said is now sane and competent ; that he seeks to have the fact of his restora- tion to capacity judicially determined; and that he is entitled to have the question of his sanity or insanity de- termined by a jury. Your petitioner therefore requests that this court order, an investigation, before a jury, into the mental condition of the said , to the end that he may be restored to capacity. , Petitioner. , Attorney for Petitioner. [Add ordinary verification.] Explanatory notes. 1. As, In the Matter of , an Alleged. Insane or Incompetent Person. 2. Give file number. 3. Or, City and County. 4. The alleged insane or incompetent person, guardian, or relative of such person within the third degree, or a friend. 5. Name of alleged insane or incompetent person. 6. Section 1766 of the Code of Civil Procedure of California does not apply to persons committed to insane asylums, and for whom no guardian has been appointed: Kellogg V. Cochran, 87 Cal. 192; 25 Pac. Eep. 677; 12 L. E. A. 104. For act to provide for restoration to capacity of persons adjudged to be insane, who have no guardians, and who are not confined at state hospitals for the insane, see Henning's General La:WS, p. 533. § 176. Form. Judgment of restoration to capacity. [Title of court.] [Title of matter.] i i ^°- — -;=, ^^^ ^°- *■ ■" ( [Title of form.] It being shown that such proceedings were had in this court ^ on the day of , 19 — , that was de- clared to be insane, and that a guardian was appointed for his person and estate ; and a petition having been filed herein, alleging that said is now sane arid competerit, and praying that a judgment be rendered restoring the said to capacity; and such proceedings having been had herein that a jury was, on the day of , 19 — , duly impaneled to determine the sanity and capacity of said ; and said jury, after hearing the evidence, having Probate— 16 242 PROBATE LAW AND PRACTICE. returned a verdict herein to the effect that said is now of sound mind, and fully capable of caring for himself and managing his property ; — It is therefore ordered, adjudged, and decreed. That the said be, and he is hereby, restored to capacity. Dated , 19 — , Judge of the Court. Explanatory notes. 1. As, In the Matter of , an Alleged Insane or Incompetent Person. 2. Give file number. 3. Or, before la judge thereof. § 177. Definition of " incompetent." The phrase " incom- competent,'' " mentally incompetent," and " incapable," as used in this chapter, shall be construed to mean any person who, though not insane, is, by reason of old age, disease, weakness of mind, or from any other cause, unable, un- assisted, to properly manage and take care of himself or his property, and by reason thereof would be likely to be deceived or imposed upon by artful or designing persons. Kerr's Cyc. Code Civ. Proc, § 1767. ANAIiOaOUS AND IDENTICAI. STATUTES. The * indicates identity, Colorado. 3 Mills's Ann. Stats., sec. 4815J. Utah.* Bev. Stats. 1898, sec. 4001. Wyoming. Bev. Stats. 1899, see. 4898. GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 243 GUARDIANSHIP OF INSANE PERSONS AND OTHER INCOMPETENTS. 1. Sanity and disability. 2. Jurisdiction of probate courts. 3. Appointment of general guardian. (1) Petition for. Authority of court. (2) Notice and personal pres- ence. (3) Validity of notice. (4) Notice by publication. (5) Collateral attack. 4. Guardian ad litem. 5. Support, maintenance, and cus- tody. 6. Powers, duties, and liabilities of guardian. (1) In general. (2) As to attorneys and tbelr fees. (3) Conduct of ward's business. (4) Actions by guardian. (5) What Is no defense to ac- tion. 7. " Conservators." In Colorado. (1) Appointment. Notice. Jury. (2) Duties. Investment of funds. (3) Exceptions to report. Com- pensation. Removal. Dis- charge. 8. Report, account, and settlement of guardian. 9. Contracts and rights of insane persons. 10. Adjudication of insanity, and its effect. (1) In general. (2) Presumption and evidence. 11. Restoration to capacity. Termina- atlon of guardianship. 12. Proceedings against Insane per- ^ sons. (1) In general. (2) Judgment. Execution. Limi- tation of actions. 13. Appeal and review. 1, Sanity and disability. If a person arraigned for a crime ia capable of understanding tlie nature and objects of the proceedings against him; if he rightly comprehends his own condition in reference to such proceedings; and can conduct his defense in a rational man- ner, — he is, for the purpose of being tried, to be deemed sane, although on some other subjects his mind may be deranged or unsound: In re Buchanan, 129 Cal. 330; 61 Pac. Eep. 1120. Sanity frequently exists before a judicial determination of that fact has been had. An adjudication of insanity overcomes the presumption that the party is sane; but it does not follow that because there is no adjudication there is no insanity. A legal disability may rest upon a person of unsound mind, although the question of his insanity may never have been the subject of judicial inquiry. Thus where a district court has found that a person was incapable of managing his own affairs, and that he was of unsound mind at the time of the rendition of a judg- ment, such person is under disability, within the meaning of the statute of limitations, although the question of his sanity has never been adjudicated by the probate court: Lantis v. Davidson, 60 Kan. 389; 56 Pae. Eep. 745, 747. Under a statute which says, in effect, that if any person is so distracted in mind as to render him incapable of safely and properly managing his estate, and a jury shall so find, a conservator shall be appointed, absolute insanity is not the only 244 PROBATE LAW AND PRACTICE. test. The main object of such a statute is the protection of the property of those mentally afSieted. Inquiry must be made as to the extent of such mental infirmity. If it exists in- such a degree, and is of such character, that the person so afflicted is, for that reason, unable to act intelligently with respect to his business affairs, or is affected with that imbecility of mind, not strictly insanity, but to such an extent that he is deprived of the mental power to act in a proper and provident manner in the management of his property interests, the statute is satisfied. On the other hand, although the mind may not be sound, if there be capacity to manage, as the result of consecutive reasoning, although the management might not be such as intellectual vigor and skill might approve, the party retaining the possession of his mental faculties to this extent would not come within the purview of such a statute: Shapter v. Pillar, 28 Col. 209; 63 Pae. Eep. 302, 303. The business of maintaining a private asylum for the treatment of mild forms of insanity, and of persons afflicted with inebriety and other nervous diseases, is a lawful one, which cannot be prohibited, either directly or indirectly: Ex parte Whitwell, 98 Cal. 72; 32 Pac. Eep. 870, 874. 2. Jurisdiction of probate courts. Except as limited by the statutes, probate courts, in Kansas, have the same power over the person and estate of lunatics as that formerly possessed by courts of chancery under the common law: Poran v. Healy (Kan.), 86 Pac. Eep. 470. Considering the county court, when acting as a probate court, as a court of general jurisdiction in respect to the matters exclusively committed to it by statute, including the appointment of a guar- dian for an insane or incompetent person, its jurisdiction will be presumed against collateral attack, until a state of facts incon- sistent with such presumption is affirmatively shown. While such presumption will not prevail against contrary facts shown by the record, yet it is efficient to supply defects or omissions: Matson v. Swenson, 5 S. D. 191; 58 N. W. Eep. 570. The jurisdiction to appoint a guardian over the person and the estate of a lunatic belongs exclusively to the probate court of the county wherein such lunatic has a permanent residence. The jurisdiction conferred by statute upon other probate courts to inquire into and adjudicate upon the sanity of persons in the county is intended as a police regulation, and such jurisdiction ends with the adjudication and commitment or dis- charge of such person: Foran v. Healy, 73 Kan. 633; 85 Pac. Eep. 751. The superior court sitting in probate has no jurisdiction to hear and determine a disputed claim against the guardian of an insane person or his estate. Hence an order requiring such guardian to pay money out of the estate to the state hospital for the care of the insane ward therein is beyond the jurisdiction of the court: Guardian- ship of Breslin, 135 Cal. 21, 22; 66 Pac. Eep. 968. The power of the probate court to appoint a guardian for an insane person, under the GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 245 statute, is not defeated or taken away by the fact that such insane person is a married person. And in case the insane person be the wife, there is no rule of law which prefers the husband as such guardian, or forbids the court to appoirrt another person to be the guardian, if, in its opinion, the husband is not a fit person to dis- charge the duties of guardianship: Guardianship of Fegan, 45 Cal. 176, 177. When the proper petition is filed, and the appointment of a guardian of the person and estate of one wh,o is alleged to be insane has been filed, and the required statutory notice given, the probate court acquires jurisdic.tion to adjudicate the question of insanity, and to select a guardian, whether that person be the one named in the petition or another: Halett v. Patrick, 49 Cal. 590. In such a pro- ceeding, if the petitioner is appointed, but faUs to give the required bond, the court may, in the same proceeding, appoint another person as guardian without a new notice. It is su£Q.cient that notice was given of the original application: Halett v. Patrick, 49 Cal. 590, 595. 3. Appointment of general guardian. (1) Petition for. Authority of court. A guardian may be ap- pointed for any one who, through druilkenness or other cause, has become incapable of managing his affairs. The word " insane," in statutes on this subject, is intended to cover every person for whom a •guardian might be appointed under the provisions of the statute, and includes idiotic persons, as well as all who are incapable of managing their own affairs by reason of any unsoundness of mind, due to what- ever cause. The intent of the law is to include all such persons, to the end that all may be properly cared for, and that their estates may not be squandered, and such persons thug be made to become a public charge: In re Wetmore, 6 Wash. 271; 33 Pac. Eep. 615, 617. But the clerk of a court, having no judicial power, is not authorized, in vacation, to adjudge a person insane, and to appoint a guardian for him: Appeal of Kane, 12 Mont. 197; 29 Pac. Eep. 424. Even a pro- bate court is without authority to appoint a guardian of the person and the estate of an adult, unless such person has been duly adjudged to be an idiot, a person of unsound mind, or an habitual drunkard, and incapable of managing his or her affairs. There can be no guar- dianship, except for infants, lunatics, and others under legal disabili- ties. The probate court has no authority to give one person the control of the person and estate of another, unless it is specifically conferred by law: Martin v. Stewart, 67 Kan. 424; 73 Pac. Rep. 107, 108. When an application is made for the appointment of a guardian for a person who is alleged to be mentally incompetent, and the statute requires that the court must cause a notice to be given to such incompetent, the verified petition should set forth his residence, in order that such notice may be given: Coleman v. Cravens, 41 Wash. 1; 82 Pac. Bep. 1005,. 1006. Where the residence of the- incompetent is set forth in such petition, and it appears that such incompetent is a non-resident, 246 PKOBATE LAW AND PRACTICE. there is no necessity to file an affidavit of non-residenoe: Coleman v. Cravens, 41 Wash. 1; 82 Pae. Rep. 1005, 1006. Where the statute provides that a guardian may be appointed for an alleged insane person on the verified petition of a relative or friend, a petition is sufficient, wh«re it alleges that petitioner is a citizen, and a resident of a certain county, and was the agent and friend of such insane person before she was adjudged insane, and that petitioner has been requested by the sons of the incompetent, and by the person who has charge of the incompetent's affairs, to petition to be appointed guar- dian of the incompetent's estate within the state: Coleman v. Cravens, 41 Wash. 1; 82 Pac. Rep. 1005, 1006. Under the provisions of sections 1764 and 1765 of the Code of Civil Procedure of California, the guar- dian of an insane ward is charged with the care and custody of the person of his ward, as well as the control and management of his estate. The court, therefore, is not authorized to appoint a guardian of his estate only, and not of his person. The order of the court can be made effective only by the appointment of a guardian of both the person and the estate of the ward: Estate and Guardianship of Kofoed, 6 Cal. App. 347, 349 (Feb. 21, 1908). The superior court has jurisdiction to appoint g^^rdians for insane persons, wholly inde- pendently of its jurisdiction to commit to hospitals for the insane, and the validity of the order appointing a guardian depends in no manner upon the validity of the previous adjudication of insanity,* where no fraud or conspiracy is charged. Hence, in an action which involves the validity of an order for defendant's guardian to sell his land, it is improper to consider the previous adjudication of insanity: Donaldson v. Winningham (Wash.), 93 Pae. Rep. 534, 535. Where the hearing of a petition for the appointment of a guardian for an in- competent person is adjournfed to a day certain, the court has no power to hear it on an earlier day: McGee v. Hayes, 127 Cal. 336; 59 Pac. Rep. 767. BEFEBENCES. That a corporation may act as executor or guardian, see Henning's General Laws, p. 169. (2) Notice and personal presence. In the absence of statutory requirements, no notice is necessary to confer authority upon a pro- bate court to appoint a guardian, either for a minor, or a lunatic who has been adjudged to be a person of unsound mind: Foran v. Healy (Kan.), 86 Pac. Rep. 470. The appointment of a guardian for a person who has been adjudged insane by the county court is valid, though not made upon a verified petition and on notice to such person: Sprigg V. Stump, 7 Saw. 280; 8 Fed. Rep. 207. In a proceeding for the appointment of a guardian for an incompetent person, it is not sufficient that the alleged incompetent is merely cited to appear, but he must be actually present, in order to give the court jurisdiction, where process has been served upon him, unless some reason is shown GUAEDIANS OF INSANE AND OTHER INCOMPETENTS. 247 for his failure to be present at the time: In re "Wetmore, 6 Wash. 27] ; 33 Pae. Eep. 615. Under the statute of Washington, the service of notice of the application for the appointment of a guardian for a person alleged to be insane, and upon a person having the care, custody, and control of such insane person, is jurisdictional, and if no such notice was served, all subsequent proceedings are null and void: Donaldson v. Winningham (Wash.), 93 Pac. Eep. _ 534, 535. Where the statute provides that notice of application for the appoint- ment of a guardian for an incompetent person must be served on such incompetent person, and on the person having the care, custody, and control of such incompetent person, and that the person for whom a guardian is sought must be present at the hearing, if able to attend, the former of these requirements, at least, is jurisdictional. A pro- ceeding for the appointment of a guardian is statutory, and the requirement that notice shall be given is mandatory. Ordinarily, the notice to be served on the incompetent person is of far less impor- tance than the notice required to be served on the person having the care, custody, and control. The incompetent person may be so far bereft of reason that the notice served on him is little more than a formality; whereas the law presumes that those having the care, custody, and control of such person have at least sufficient interest in his welfare to see that his legal rights are protected. The record should therefore show that the required notice was served, or that there was no person upon whom service could be made, and that the person for whom the guardian is sought was present at the hearing or was unable to attend: State v. Superior Court, 41 Wash. 450; 83 Pac. Bep. 726, 727i No one can be deprived of his personal rights, and of his right to property, by an adjudication that he is insane, and the appointment of a guardian for his person and property, unless he has had reasonable notice of the proceedings and an opportunity "to be heard: Estate of Brash, 15 Haw. 372, 375. (3) Validity of notice. Where the statute requires the personal presence of the incompetent, if it can be had, as well as that notice of the hearing of the petition be given him, notice must be given to such person of the time and place of the hearing, but the personal presence of such person on the hearing, and 'his request that the petition be granted, do not cure fatal defects in the notice of the hearing served on him. A copy of an order made on the filing of the petition fixing a certain day " as the time for the hearing," without specifying the hour or place, and directing the notice to be given of the time and place of the hearing, is not a sufficient notice of the hearing: MeGee v. Hayes, 127 Cal. 336; 59 Pac. Eep. 767. Under the statute of South Dakota, a notice purporting to issue from the court under its seal, and signed by the clerk, is a good notice, whether pro- ceeding from the judge or from the court, where the powers conferred upon the probate judge in relation to guardians and wards may be 248 PROBATE iiAW AND PRACTICE. exercised by him at chambers, or as the act of the probate court: Matson v. Swenson, 5 S. D. 191; 58 N. W. Eep. 570. Where the court is required by statute, before appointing a guardian of an insane person, to give notice to all persons interested, in such manner as the court shall order, by publication or otherwise, the court must specify the notice in its order, and require it to be given by publication in a newspaper, by posting, or by personal service, and state therein whether it shall be published in a newspaper or be posted, or both, or whether personal service shall be made;, and, in either case, to state how long, and, if by posting, where, and in how many places. An order of the probate court which merely names the time and place for the hearing of an application for the appointment of a guardian, and then directs the clerk to cause publication thereof to be given, " as prescribed by law," that all persons interested may appear and Oppose the petition, is fatally defective, because it simply directs the clerk to cause notice thereof to be given " as prescribed by law." The court is not authorized to intrust to the clerk what would be due notice "as prescribed by law"; the clerk's notice in pursuance of such order is of no effect; and the order appointing a guardian upon such notice is void: Mosby v. Gisborn, 17 Utah, 257; 54 Pae. Eep. 121, 127. REFERENCES. Lunacy proceedings; necessity of notice: See note 23 L. E. A. 737-744. (4) Notice by publication. Under a statute providing that when an incompetent, having property in this state for whom a guardian is sought to be appointed, resides out of the state, the service of notice shall be against the insane person by publication, the only notice* tequired where the incompetent is a non-resident is the notice by publication: Coleman v. Cravens, 41 Wash. 1; 82 Pac. Eep. 1005, 1006. (5) Collateral attack. In proceedings under the Probate Code for the appointment of a guardian for an incompetent person, entertained ,and acted upon by the county court, resulting in such appointment, such appointment will! not be held invalid on collateral attack because the written petition was formally addressed to the judge instead of to the court: Matson v. Swenson, 5 S. D. 191; 58 N. W. Eep. 570. In a collateral attack by a stranger, it is not a fatal objection to the validity of the appointment of a guardian for an incompetent person that five days, as required by statute, did not intervene between the service of the notice and the hearing; and, in the absence of any showing to the contrary, it will be presumed that full statutory notice was waived: Matson v. Swenson, 5 8. D. 191; 58 N. W. Eep. 570. Letters of guardianship of a lunatic, or an order appointing a guar- dian for one alleged to be incompetent to manage his affairs, issued by GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 249 the probate court, cannot be attacked in a collateral proceeding, where issued by a court of competent jurisdiction: Warner v. Wilson, 4 Cal. 310; Isaacs v. Jones, 121 Cal. 257; 53 Pac. Eep. 793, 794, 1101. But where the proceedings disclose all the steps taken to confer jurisdic- tion, from which it clearly appears on the face of the record that the court was without jurisdiction to make an order appointing a guardian for an incompetent person, such order can be collaterally attacked: McGee v. Hayes, 127 Cal. 336; 59 Pac. Eep. 767, 768. EEFEEENOES. Collateral attack on lunacy proceedings for want of notice to the lunatic: See note 12 L.. E. A. (N. S.) 895, 896. 4. Guardian ad litem. Where a person has an interest in the matter in litigation, and also an interest in the success of the defend- ant, the court is authorized to permit such person to become a party to the action; and if such party at the time is insane, he can appear only by a general guardian or a guardian ad litem, and the court is authorized to appoint a guardian ad litem for him before the filing of his complaint in intervention: Security Loan & T. Co. v. Kauffman, 108 Cal. 214; 41 Pae. Eep. 466, 469. 5. Support, maintenauce, and custody. The property of an incom- petent person may be used for his mainten^ince and the payment of his debts; and the guardian may be authorized to sell any part of the incompetent's real property for such purpose when the income of the estate under guardianship is insufficient to maintain his ward: Guar- dianship of Hayden, 1 Cal. App. 75; 81 Pac. Eep. 668. Where the amounts allowed a guardian for board and lodging furnished and personal services rendered by him to the incompetent are sufficient, and even liberal, such allowance will not be increased, although there is uncontradicted testimony of witnesses that, in their opinions, a larger amount should be allowed. In these matters much must be left to the discretion of the court: Estate of Averill, 133 Cal. xix; 66 Pac. Eep. 14. REFEBENCES. See note " Commitment of Insane," § 214, post. 6. Powers, duties, and liabilities of guaidian. (1) In general. Neither the guardians nor the courts having juris- diction over the estates of incompetent persons have power to bind the person or estate of such persons, unless expressly authorized to do so by law: Andrus v. Blazzard, 23 Utah, 233; 63 Pac. Eep. 888, 890. The guardian of an insane ward is not authorized to mortgage the real property of his ward for the purpose of paying debts, and the guardian who so acts binds himself, and not the ward: Andrus v. Blazzard, 23 Utah, 233; 63 Pac. Kep. 888, 891. 250 PROBATE LAW AND PKACTICE. BEFEBENCES. Power and authority of guardian of insane person: See note 1 L. E. A. 270. Power of guardian or committee to bind incompetent person or his estate by contract: See note 8 L. K. A. (N. S.) 436, 437. (2) As to attorneys and their fees. Although the statute makes provision for the allowance and payment of claims against the estate of an incompetent person by the guardian, such guardian, appointed for an incompetent, who was indebted to his attorney for fees at time of such appointment, has no power to pay such fees to the attorney out of the funds of the incompetent's estate before the attorney's claim has been allowed by the court: State v. District Court, 30 Mont. 8; 75 Pae. Eep. 516. The appointment of a guardian for a client, who has become insane, and who, at the time of such insanity, is indebted to his attorney, who has charge of his interests, does not devest the attorney of any lien or security which he had at the time to secure payment of his fees: State v. District Court, 30 Mont. 8; 75 Pac. Eep. 516, 517. Under a statute providing that an attorney in an action may be changed on the order of the court on the application of either client or attorney, after notice from one to the other, the guardian of an incompetent person is absolutely ■ entitled to have a different attorney substituted to represent him, instead of the firm which had represented the incompetent before the guardian's appointment; and this right is not affected by the fact that the fees to such firm have not been paid: State v. District Court, 30 Mont. 8; 75 Pac. Eep. 516, 517. (3) Conduct of ward's business. The custodian of an incompetent person should not allow the business affairs of his ward to be trans- acted by others, except under extraordinary circumstances. But, where such other persons are relatives, and conversant with the affairs of such incompetent, and the children and heirs at law of the ward request it, and no creditor appears to contest the act of the guardian, the guardian may be excused for this digression: Eaconillat v. Eequefla, 36 Cal. 651, 656. If the guardian .of an incompetent person lends money upon the sole credit of the borrower, the guardian must show that he acted in good faith, and with due circumspection and prudence. In the absence of such evidence, the presumption is other- wise: Estate of Averill, 133 Cal. xix; 66 Pac. Eep. 14. (4) Actions by guardian. ' A person competent to make a will has a right to select the custodian, and to cause it to remain in his hands until called for, or until death makes it necessary for the custodian to deliver it to the court, or to a person named in the will; and the guardian of a lunatic cannot therefore maintain an action to recover his ward's will from the custody of a third person, where it was placed before the ward was declared insane: Mastick v. Superior GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 251 Court, 94 Cal. 347; 29 Pae. Eep. 869. The guardian of an insane woman cannot maintain an action against her husband for divorce and alimony, or for alimony alone: Birdzell v. Birdzell, 33 Kan. 433; 6 Pac. Rep. 561; affirmed upon rehearing in same case, 35 Kan. 638; 11 Pac. Eep. 907. The complaint by the guardian of an ipcompetent ward will be held sufficient after judgment, and in the absence of demurrer, though the issuance of letters of guardianship to the guar- dian of the incompetent plaintiff are pleaded inferentially: Elizalde v. Elizalde, 137 Gal. 634, 637; 66 Pac. Eep. 369; 70 Pac. Eep. 861. The finding of a jury, on an inquest, that the subject of the inquiry is feeble in mind, is incapable of managing his business affairs, and is a typical imbecile, is not a finding on insanity within the statutory meaning of that term, and furnishes the probate court no authority to appoint a guardian for such feeble-minded person, and consequently gives the guardian no right to maintain an action in his behalf:' Caple V. Drew, 70 Kan. 136; 78 Pac. Eep. 427. In ejectment by the guardian of an incompetent person to recover certain premises, the guardian*s motives, and what he believed, and what he desired, are immaterial; and conversations between him and the defendant and his wife are inadmissible, as nothing which the guardian might say could deprive the ward of his property or of his rights: Hayden v. Collins, 1 Cal. App. 259, 266; 81 Pac. Eep. 1120. REFERENCES. Contracts and rights of insane persons: See head-line 9, infra. (5) What is no defense to action. A stipulation, by the guardian of an idiot, to abide the result of an action under a defense interposed by another defendant is not a compliance with the statutory duty of a guardian to defend actions brought against his ward. A stipulation to abide the result of the action interposed by another is not defending the action: Mattson v. Mattson, 29 Wash. 417; 69 Pac. Eep. 1087, 1089. 7. " Conservators." In Colorado. (1) Appointment. Notice. Jury. Upon the petition of a reputa- ble person alleging that another is of unsound mind, the county court may summon a jury to determine the fact, and if it be alleged and proved that such person has property, and is so mentally unsound as to be unable to properly manage the same, a conservator may be appointed to protect the estate, without a violation of the constitu- tional right to acquire and possess property: Shapter v. Pillar, 28 Col. 209; 63 Pae. Eep. 302, 304. But an order appointing him, without notice to such incompetent, should be set aside, even though such notice is not required by statute: Jones v. Learned, 17 Col. App. 76; 66 Pae. Rep. 1071, 1072. If the statute requires that a jury must find that such incompetent is incapable or unfit to manage his affairs before the conservator can be appointed, an appointment without 252 PROBATE LAW AND PBACTICE. such verdict is void: Jones v. Learned, 17 Col. App. 76; 66 Pae. Eep. 1071, 1072. Where a conservator was appointed in one state, and it appears that he and a conservator, afterwards appointed in another state, have discharged their duties with fidelity, and have obtained a large judgment in favor of their ward, and interest in valuable mining property in the latter state, a court there will not se^t aside the appointment in that state for want of jurisdiction in the court making the appointment, at the suggestion of relatives of the ward, who for many years allowed the insane person to remain in the asylum without any attention upon their part, and who made no attempt to alleviate his condition, especially where they did not manifest any interest in his behalf until the successful termination of the litigation: Wood V. Throckmorton, 26 Col. 248; 57 Pae. Eep. 699, 700. (2) Duties. Investment of funds. It is the duty of a conservator to exercise reasonable care and diligence in investing, from time to time, such portion of the trust funds in his hands as can be utilized for that purpose, and still leave him with sufficient to meet the expenditures in behalf of the estate which he may be called upon to make; and, having failed to do so, he is, unless he has presented a valid excuse, chargeable with legal interest on the funds which he could have invested: In re Thomas's Estate, 26 Col. 110; 56 Pae. Eep. 907,, 911. He is allowed a reasonable time, of course, after receiving the ward's funds within which to invest them, which, in the absence of any proof on the question, is usually placed at six months: In re Thomas's Estate, 26 Col. 110; 56 Pae. Eep. 907, 911. The conservator is not excused for failure to invest the funds of his ward by the advice of the county judge, that it is his duty to keep the funds of the estate in his hands so that he can turn them over promptly if his ward become sane; nor is he excused by the fact that the alleged insane person, from time to time, applied to be adjudged sane, and to be placed in the control of his affairs: In re Thomas's Estate, 26 Col. 110; 56 Pae. Eep. 907, 911. When no investments have been made by the conservator, and it is necessary to pay out sums from time to time for the benefit of the estate and the support of the ward, no inflexible rule can be laid down which would be applicable in all cases for the purpose of determining upon what portion of the funds interest should be charged; each case must, in a measure, be governed by its own peculiar circumstances; and a sound discretion must be exercised in determining how interest shall be computed in such cases: In re Thomas's Estate, 26 Col. 110; 56 Pae. Eep. 907, 911. The con- servator should be charged with interest, where he has mingled the funds of his ward with his own funds, and it appears that the mingled funds have been used indiscriminately, although he may have had on hand at all times an amount sufficient of the funds so mingled to pay the balance belonging to the estate: In re Thomas's Estate, 26 Col. 110; 56 Pae. Eep. 907, 912. GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 253 (3) Exceptions to report. Compensation. Removal. Discharge. Although there may be no special statute regarding the filing of exceptions to the report of a conservator, such exceptions, although indefinite and very general, should, as a matter of practice, be sus- tained, if they inform the conservator that all his charges against the funds in his hands will be contested except those items that he has paid under order of court, and advises him that a claim will be made on behalf of the estate for interest on the funds which he has received: In re Thomas's Estate, 26 Col. 110; 56 Pac. Eep. 907, 909. The conservator of the estate of a lunatic is entitled to receive such compensation for his care and trouble as the court may deem reason- able. It is not to be computed, as commissioiis, but determined by the reasonable value of the time he has necessarily devoted to the discharge of his duties: In re Thomas's Estajte, 26 Col. 110; 56 Pac. Rep. 907, 912. In the absence of a statute to the contrary, periodical or partial settlements, as evidenced by reports of conservators, are, at most, after approval by the court, but prima facie evidence of their correctness, and may be rectified or rebutted on a final accounting. They are not settlements, but only the exhibition of accounts; nor judgments, being merely ex parte presentations of the status of the estate in the hands of the conservator: In re Thomas's Estate, 26 Col. 110; 56 Pac. Bep. 907, 912. The court having jurisdiction is vested with a large discretion in the removal of conservators. It may remove a conservator for any default or misconduct upon his part, and its discretion will not be interfered with, except in plain cases of abuse. The effect of requiring a conservator to pay the funds of his ward into court is to discharge him: In re Thomas's Estate, 26 Col. 110; 56 Pac. Rep. 907, 912. 8. Report, account, and settlement of guardian. The clerk of the superior court is a mere ministerial officer, and is not authorized to make any examination of the account and report of the guardian of an insane person. That is a matter for the judge of the court: Denny V. HoUoway, 17 Wash. 487; 49 Pac. Eep. 1073, 1074. Express findings are unnecessary in proceedings to settle a guardian's account; all facts necessary to sustain the judgment or order of the lower court will be presumed: Estate of Averill, 133 Cal. xix; 66 Pac. Eep. 14, 15. Equity has jurisdiction to afford relief and to compel a full and just accounting by the guardian of an incompetent person where the decree settling his final account was procured by fraud: Silva v. Santos, 138 Cal. 536; 71 Pac. Eep. 703. A complaint in equity to com- pel the guardian of an incompetent person to make a full and just accounting does not improperly unite different causes of action, where the money alleged to be fraudulently retained by the guardian came into his hands as guardian, and the facts alleged all relate to the transactions of the guardian in managing the estate, and in failing, in such management, to perform the duties in the particulars alleged: 254 PROBATE LAW AND PRACTICE. Silva V. Santos, 138 Cal. 536; 71 Pac. Eep. 703, 705. The rule of law which sanctions a proceeding to require the guardian of an incom- petent person to render a full and just account is wholesome, and should serve as an admonition to administrators, executors, guardians, and trustees generally, that they must, to the last moment of their trusteeship, scrupulously account for every dollar which has come into their hands in their trust capacity: Silva v. Santos, 138 Cal. 536; 71 Pac. Eep. 703, .705. The administrator of the estate of a deceased incompetent person may contest the final account of the guardian of such incompetent: Estate of Averill, 133 Cal. xix; 66 Pac. Rep. 14, 15. A settlement, in the probate court, of the accounts of the guardian of an insane ward is final and conclusive, where no appeal has been taken from the order of settlement. All inquiry into the correctness of the accounts having been thus finally settled by the proper tribunal, a court of equity will not open them, unless for fraud, omission, or the like, and not then unless the specific mistake or errors are pointed out. It is not enough to allege that, soon after the defendant " was appointed guardian, he became so ignorant and unsound in mind that he was incompetent to attend to any business whatever; that he was in that condition when the final account of his guardianship was rendered and filed; that the accounts which he rendered were unjust and incorrect statements of his transations as guardian; and that the final account, as settled and allowed by the probate court, was ' false and untrue in many particulars'": Brodrib v. Brodrib, 56 Cal. 563, 566. 9. Contracts and rights of insane persons. Where a guardian has been appointed by the probate court of the proper county,' and a suit to foreclose a mortgage upon the real estate owned by the lunatic for whose estate such guardian was appointed is commenced in the district court of such county, service of summons upon such guardian confers jurisdiction upon the district court to adjudicate the rights of such lunatic in said real estate; and if the property is sold under such proceedings, the lunatic has no right to redeem the property from such sale after his restoration to sanity, merely on the ground that the court did not acquire jurisdiction by service of summons on the guardian: Foran v. Healy, 73 Kan. 633; 85 Pac. Eep. 751. A plaintiff, admitted to be of unsound mind, has no capacity to bring an action to partition a tract of land, and what he cannot do in person he cannot direct or employ an attorney to do for him: Gustafi- son V. Ericksdotter, 37 Kan. 670; 16 Pac. Eep. 91. An unmarried woman, who is an imbecile, and incompetent to testify, cannot insti- tute and prosecute a proceeding in bastardy: State v. Jehlik, 66 Kan. 301; 71 Pac. Eep. 572. A complaint must state facts showing a cause of action in somebody; and it must show a cause of action in the plaintiff, or a general demurrer will lie. Hence if a plaintiff becomes insane pending suit, the suit should be prosecuted in the name of such GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 255 insane person, by his guardian. The plaintiff is not deprived of his right or property in the cause of action by his insanity, nor does it vest in his guardian upon his appointment; and an erroneous order, sub- stituting the guardian of his person and estate' as plaintiff, is not cause for dismissal, but the plaintiff should have leave to reform his complaint, in accordance with the law: Dixon v. Gries, 106 Cal. 506; 39 Pac. Eep. 857. The judicial tendency of this enlightened age is against the enforcement of an executory contract procured by a shrewd man of affairs from one known to be mentally incapable of dealing with judgment and discretion. Hence the act of taking unfair advantage of such a person's inability to understand the nature and consequences of a purported agreement to convey his homestead is good ground for denying specific performance, and especially so when he has returned to the prospetive grantee all that he ever received: Miller v. Tjexhus (S. D.), 104 N. W. Eep. 519, 520. REFERENCES. Use, by a court of chancery, of lunatic's property: See note 34 L. E. A. 297-300, Test of mental capacity to make contracts: See note 3 L. E. A. (N. S.) 174. Deed by insane person when under guardianship: See note 19 L. E. A. 490, 491. Eight of insane person to institute proceedings by next friend: See note 64 L. E. A. 513-534. Validity of deed by incompetent person: See note 19 L. E. A. 489- 493. Action by insane, person: See note 2 L. E. A. (N. S.) 961. Opinion evidence, admissibility of, as to mental capacity of person to execute contract or deed: See note 4 Am. & Eng. Ann. Cas. 888. 10. Adjudication of insanity, and its effect. (1) In general. The finding of a jury on an inquest, that the sub- ject of inquiry is feeble in mind, is incapable of managing his busi- ness affairs, and is a typical imbecile, is not a finding of insanity within the statutory meaning of that term, and furnishes the probate court no authority to appoint a guardian for such feeble-minded person, and consequently the guardian so appointed has no right to maintain an action in behalf of such person: Caple v. Drew, 70 Kan. 136; 78 Pac. Eep. 427, 429. An adjudication of lunacy, legally had, is conclusive upon the lunatic and all other persons, and the probate court of the county where such lunatic has a permanent residence may accept and act thereon, the same as if such adjudication had occurred in that court: Poran v. Healy, 73 Kan. 638; 85 Pac. Eep. 751. Where a person was held to answer for a crime, and was insane when the preliminary examination was had, and when the order of commitment was made, the proceedings are void: Ex parte "Wright, 74 Kan. 406; S6 Pac. Eep. 460. (2) Presumption and evidence. The fact 'of insanity having been once established, it is presumed to continue until the demented person 256 PROBATE LAW AND PRACTICE. is shown to have been restored to reason: Lantis v. Davidson, 60 Kan. 3S9; 56 Pae. Eep. 745, 747. An allegation in a petition that plaintiff employed counsel to set aside a judgment rendered against the plaintiff will not overthrow a finding by the court that plaintiff was at the time of unsound mind and incapable of managing his own affairs: Lantis v. Davidson, 60 Kan. 389; 56 Pac. Eep. 745, 747. The presumption, however, of continued insanity arising from an adjudica- tion thereof may be overcome by evidence other than an adjudica- tion of restoration: Eodgers v. Eodgers, 56 Kan. 483; 43 Pac. Eep. 779, 781; Lower v. Schumacher, 61 Kan. 625; 60 Pa«. Eep. 538, 539. In determining the question whether a person is so mentally unsound as to be incapable to care for his property, the admission of opinion evidence as to his capacity is not properly the subject of opinion evi- dence, but must be determined from the probative facts bearing thereon: Shapter v. Pillar, 28 Col. 209; 63 Pac. Eep. 302, 304. BEFEBEKCES. Evidence of insanity of ancestors or kindred, admissibility of, on issue of sanity: See notes 6 Am. & Eng. Ann. Cas. §9; 7 Am. & Eng. Ann. Cas. 267. 11. Bestoration to capacity. Termination of guardianship. The provision in section 1666 of the Code of Civil Procedure of California, authorizing the court to restore the person -adjudged insane or in- competent to capacity, is applicable only to persons adjudged insane or incompetent, and for whom guardians have been appointed under section 1764 of the same code. The application of it to persons com- mitted to asylums would be utterly inconsistent with the government of those institutions according to the requirements and regulations of the Political Code. Hence a person who has been regularly examined and committed to the state insane asylum, though out on parole, cannot maintain an original petition for a writ of mandate to be directed to the court which examined and committed him, com- manding such court " to proceed to take testimony and try, hear, and determine " his application, which prays for a judicial determination that the applicant is of sound mind, capable of taking care of himself and his property, and for restoration to capacity: Aldrich v. Superior Court, 120 Cal. 140, 142; 52 Pac. Eep. 148. A judgment of restoration to capacity Of an insane person is conclusive upon the condition or relation of the person: Aldrich v. Barton (Cal.), 95 Pac. Eep. 900, 903. A statute which provides that every guardian of an incompetent person shall have the custody of the person of his ward and his estate until such guardian is " legally discharged " does not extend the authority of an incompetent's guardian until he is discharged by an order of court, but, under a statute which provides that if, on an inquiry, it be found that an incompetent has been restored to capacity, the guardianship shall cease, the authority of such guardian is termi- GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 257 nated ipso facto by an adjudication that such incompetent person has been restored to capacity: In re Seheuer's Estate, 31 Mont. 606; 79 Pac. Eep. 244. BEFEEENCES. Act providing for the restoration to capacity of persons adjudged to be insane, who have no guardians, and who are not confined at the state asylum for the insane: See Henniug's General Laws, p. 533. 12. Proceedings against insane persons. (1) In general. If a plaintifE in an action knows that the defend- ant, at the time such action is brought, is not in a condition to attend to any business, and is non compos mentis, and was so both at the time service was obtained and when judgment rendered, it is in- cumbent on him to suggest it to the court, in order that a guardian ad litem may be appointed: Townsend v. Price, 19 Wash. 415; 53 Pac. Eep. 668, 669. It may be that service might regularly be made upon an insane person, and that the judgment obtained from such service is not void, but voidable merely; yet in an action on a judg- ment recovered in a court of record in another state, and under proper averments, evidence may be admitted that a guardian ad litem was never appointed: Townsend v. Price, 19 Walsh. 415; 53 Pac. Eep. '668, 669. Guardians should be appointed to represent insane persons, and such persons may be sued and jurisdiction over them acquired, SB of other persons, but a judgment against an insane person who has no guardian, and without the appointment of a guardian ad litem, though irregular, is not void. Such judgment may be vacated in a direct proceeding if no innocent person has acquired rights under it: Dunn V. Dunn, 114 Cal. 210; 46 Pac. Eep. 5; White v. Hinton, 3 Wyo. 753; 30 Pac. Eep. 953; PoUock v. Horn, 13 Wash. 626; 43 Pac. Eep. 885. Neither an incompetent person, nor his estate, can make any appearance whatsoever, except by and through a legally appointed guardian. The fact that a party becomes an incompetent while in- debted to an attorney, who was representing him at the time with respect to his property interests, does not give such attorney the right to appear for the incompetent's guardian: State v. District Court, 30 Mont. 8; 75 Pac. Eep. 516. While evidence of adjudication of unsoundness of mind may make out a prima facie defense, yet in an action against a person of unsound mind, it is not conclusive, and it may be shown by any competent evidence that defendant was of sound mind at the time he executed the contract: Walker v. Coates, 5 Kan. App. 209; 47 Pac. Eep. 158. The act of March 11, 1893 (Laws of Washington 1893, c. cxx, p. 286), concerning incompetents residing out of the state, repeals all conflicting laws, and authorizes the sale of the property of the non-resident incompetent for the payment of debts, etc., on application of the domestic guardian: Coleman v. Cravens, 41 Wash. 1; §2 Pac. Eep. 1005. In an action against an in- competent on a promissory note, the court obtains jurisdiction of the Probate — 17 258 PKOBATE LAW AND PEACTICB. person of the ward, where it is plain from the language of the answer that the guardian intended to appear for and represent his ward in the case, and that the ward appeared and answered by the guardian: Mullen V. Dunn, 134 Cal. 247; 66 Pac. Eep. 209. Where the general guardian of an incompetent person is in possession of mortgaged premises belonging to such incompetent, which have been sold, the presentation of a commissioner's deed to such guardian and demand of the premises, both as guardian and individually, is a sufficient demand, without a demand being made on the incompetent: Taylor v. EUenberger (Cal.), 65 Pac. Eep. 832, 833. EEFEEENCES. Service of process on the guardian of an infant, insane, or in- competent person: See Kerr's Cal. Cyc. Code Civ. Proc, § 1722. (2) Judgment. Execution. Limitation of actions, " While an occasional difference of opinion manifests itself in regard to the propriety and possibility of binding femes covert and infants by jurisdictional proceedings in which they were not represented by some competent authority, no such difference has been made apparent in relation to a more unfortunate and more defenseless class of per- sons; but, by a concurrence of judicial authority, lunatics are held to be within the jurisdiction of the courts. Judgments against them, it is said, are neither void nor voidable; the proper remedy in favor of a lunatic being to apply to chancery to restrain proceedings, and to compel plaintiff to go there for justice. In a suit against a lunatic, the judgment is properly entered against him, -and not against his guardian. A lunatic has capacity to appear in court by an attorney. The legal title to his estate remains in him, and does not pass to his guardian": Pollock v. Horn, 13 Wash. 626; 43 Pac. Rep. 885, citing Freeman on Judgments, 4th ed., § 152. A judgment against an insane surety on an attachment bond is valid, where such surety was sane at the time the bond was executed: Pollock v. Horn, 13 Wash. 626; 43 Pac. Eep. 885. An execution of a valid judgment may run against the property of a lunatic: Pollock v. Horn, 13 Wash. 626; 43 Pac. Eep. 885, 886. Even a judgment rendered subsequently to the establishment of defendant's insanity is not void, and the judgment debtor's land is subject to execution. Hence the creditor is not obliged to file his claim for settlement in due course of the adminis- tration of the estate. The remedy of a lunatic, or of his estate, is an action in equity to set aside the judgment, if it was fraudulently obtained. If the judgment was not fraudulently or wrongfully obtained, then no harm was worked upon the defendant; and if it was, the courts will set it aside: Pollock v. Horn, 13 Wash. 626; 43 Pac. Eep. 885, 886. In Washington, proceedings to set aside a judg- ment rendered against a person of unsound mind are, by express pro- visions of the statute, not barred until the expiration of one year GUARDIANS OF INSANE AND OTHER INCOMPETENTS. 259 from the removal of the disability: Curry v. Wilson (Wash.), 87 Pac. Eep. 1065, 1066. 13. Appeal and review. A person who has been adjudged to be insane is an " aggrieved party," within the law relating to appeals, and has a right to appeal from the order adjudging him to be insane and appointing for him a guardian: Appeal of Kane, 12 Mont. 197; 29 Pac. Eep. 424. In proceedings for the appointment of a guardian for an alleged incompetent, neither the incompetent nor the attorney can consent to the entry of an order appointing a guardian so as to deprive the incompetent of the right to appeal therefrom: In re Sullivan, 143 Cal. 462; 77 Pac. Eep. 153. Nor is such incompetent deprived of the right to appeal from an order appointing a guardian on the ground of his incompetency because he had sought an order restoring him to capacity: In re Sullivan, 143 Cal. 462; 77 Pac. Eep. 153. Under a statute which provides that an appeal may be taken from any order granting or refusing to grant letters of guardianship, an appeal may be taken from an order appointing a guardian for an incompetent person: In re Moss, 120 Cal. 695; 53 Pac. Eep. 357. A statute which provides that mentally incompetent persons can take an appeal only by their general guardian or guardian ad litem ap- pointed by the court does not apply to a case where the very question involved is the validity of the order of guardianship itself, and where the appeal is taken directly from that order: In re Moss, 120 Cal. 695; 53 Pac. Eep. 357. Upon appeal by the alleged incompetent person, the notice of appeal need only be served upon the guardians to whom letters were granted. It need not be served upon one who has ceased to be a party to the proceeding: Guardianship of Sullivan, 143 Cal. 462; 77 Pac. Eep. 153. An adjudication of the incompetency of a person cannot be entered by his consent. If he is in fact in- competent, he cannot consent, and if not incompetent, his consent cannot make him so. Hence the rule that an appeal will not be entered from a judgment entered by consent has no application to an order appointing a guardian of the person and estate of an incompetent person: Guardianship of Sullivan, 143 Cal. 463; 77 Pac. Eep. 153. One who has been adjudged incapable of managing his own affairs is entitled to sue out a writ of error, without a guardian ad litem, to review the judgment: Shapter v. Pillar, 28 Col. 209; 63 Pac. Eep. 302, 303. In a proceeding on a writ of certiorari to rescind an order committing the relator as an insane person, it is no ground for a reversal of the commitment that the venire for the jury did not expressly direct that one of the jurors to be summoned should be a practising physician, where a jury with the proper qualifications was in fact summoned: State v. Third Judicial Dist. Court, 17 Mont. 411; 43 Pac. Eep. 385. An appeal taken by a guardian ad litem, who failed to file a bill of exceptions, or statement on appeal, and who did not request the clerk of the lower court to certify any transcript 260 PROBATE LAW AND PRACTICE. of the record on appeal, will be dismissed, where no such transcript is on file: In re Moss (Cal.), 74 Pac. Eep. 546. If an appeal in a proceeding to appoint a guardian for an incompetent is taken by the incompetent himself, the court will, upon his written request, after notice to his attorneys thereof, dismiss such appeal: In re Moss (Cal.), 74 Pac. Eep. 546. It is the duty of the guardian of an insane ward to protect the latter's estate against what he considers an unjust or illegal claim, and he has a right to appeal from an order of the court requiring him to pay out the money of his ward, where the court has no power to make such order: Guardianship of Breslin, 135 Cal. 21, 22; 66 Pac. Eep. 962. BEFERENCES. Guardians of insane and incompetent persons: See EeiT's Cal. Oyc. Code Civ. Proc, §§ 1763-1767, and notes. See separate note to § 200, post, on commitment and discharge of insane persons. SPENDTHRIFTS AND DRUNKARDS. 261 CHAPTER Vin. SPENDTHRIFTS AND DRUNKAEDS. § 178. Court may appoint guardian for spendthrift. § 179. Notice to spendthrift. Hearing and appointment. § 180. Copy of complaint to be filed. What contracts are rendered void. § 181. Allowance to ward for expense of defense. § 182. Powers and duties of guardian for spendthrift. § 183. Meaning of term " spendthrift." § 184. Drunkard squandering his property. § 185. Judgment of drunkenness. § 186. Relative may make complaint, i 187. Service of copy of complaint. § 188. Information. Appointment of guardian. Powers. § 189. Form. Complaint against habitual drunkard. § 190. Vacation of judgment of drunkenness. § 191. Form. Petition to vacate judgment of drunkenness. NOTE ON SPENDTHRIFTS. In general. § 178. Court may appoint guardian for spendthrift. When any person by excessive drinking, gaining, idleness, or debauchery of any kind, shall so spend, waste, or lessen his estate as to expose himself or his family to want or suf- fering, or the county to charge and expense for the support of himself 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. Bellinger and Cotton's Ann. Codes and Stats., § 5270. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 898, p. 330. Nortli Dakota. Rev. Codes 1905, § 8252 (spendthrifts are included with habitual drunkards, etc.). 262 PEOBATE LAW AND PRACTICE. § 179. Notice to spendthrift. Hearing and appointment. The county judge shall caus6 notice to be given to sue!h sup- posed 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 in the preceding section, he shall appoint a guardian of his person and estate, with the powers and duties hereinafter specified. Bellinger's and Cotton's Ann. Codes and Stats., § 5271. ANAIiOaOUS AND XDENTICAL STATUTES. No identical statute found. Alaska, Carter's Code, sec. 898, p. 330. § 180. Copy of complaint to be filed. What contracts are rendered void. 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, excepting for necessaries, and all gifts, sales, or transfer of real or personal estate made by such spendthrift, after such filing of the complaint in the county clerk's office, and before the termination of the guar- dianship, shall be null and void. Bellinger and Cotton's Ann. Codes and Stats., § 5272. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 899, p. 330. § 181. Allowance to ward for expense of defense. When a guardian shall be appointed for an insane person or spend- thrift, 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. Bellinger and Cotton's Ann. Codes and Stats., § 5273. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 900, p. 330. SPENDTHRIFTS AND DEUNKARDS. 263 §182. Powers and duties of guardian for spendthrift. Every guardian so appointed for a spendthrift shall have the care and custody of the person of the ward, and the management of all his estate, until the guardian shall be legally discharged; and he shall give bond to the state of Oregon, in like manner and with like condition as is before directed with respect to the guardian of an insane person. Bellinger and Cotton's Ann. Codes and Stats., § 5274. ANAX.OGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 901, p. 330. § 183. Meaning of term " spendthrift." The word " spendthrift " is intended to include any one who is liable to be put under guardianship on account of excessive drink- ing, gaming, idleness, or debauchery, and this word shall be so construed in all the provisions relating to guardians and wards ■ contained in this or any other statute. Bellinger and Cotton's Ann. Codes and Stats., § 5290. § 184. Drunkard squandering his property. Any person may make complaint of any person addicted to the excessive iise of intoxicating liquors, to the superior judge in the county wherein such person so addicted resides, that the person complained of is a habitual drunkard, and that in consequence 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 effect that the same is true. Pierce's Washington Code, § 2810. § 185. Judgment of drunkenness. 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 a habitual drunkard. Pierce's Washington Code, § 2811. Note. The statute of Washington makes no provision for the appointment of a guardian for an habitual drunkard. 264 PROBATE LAW AND PRACTICE. § 186. Relative may make complaint. Either the father, husband, mother, wife, son or daughter of any person ad- dieted 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 superior judge of the county wherein such person, so addicted, resides, that the person complained of is a habitual drunkard, and that in consequence thereof, such person is squandering his earn- ings 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 being drunk, or drunk and disorderly, shall certify to the superior judge, of the county in which he resides, that said person has thus twice been convicted. Pierce's Washington Code, § 2812. § 187. Service of copy of complaint. Upon filing of the complaint, duly verified, the superior judge shall cause a copy thereof to be served upon the accused forthwith 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 a habitual drunkard, and shall cause the proceeding to be entered in full upon the records of the court. Pierce's Wash- ington Code, § 2813. AKTAIiOGOUS AND IDENTICAI. STATUTES. No identical statute found. Oklahoma. Rev. Stata. 1903, sees. 3164-3167 (commitment to in- stitution for cure). § 188. Information. Appointment of guardian. Powers. 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 affairs, and praying that an inquiry thereinto be had, the SPENDTHRIFTS AND DRUNKARDS. 265 court shall proceed therein in, all respects as herein provided in respect to an idiot, h-natic, 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 chapter. Wyoming Rev. Stats. 1899, § 4897. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Kansas. Gen. Stats. 1905, §§4148-4177 (included with incompe- tents). New Mexico. Comp. Laws 1897, sees. 1896-1934 (classed with lunatics). North Dakota. Rev. Codes 1905, § 8252. § 189. Form. Complaint against habitual drunkard. [Title of court.] [Title of action.! i 5 Department No . ( [Title of form.] To the Honorable the Judge of the Court of the County of , State of Now comes ,^ the plaintiff, and alleges: That he is the ' of said defendant; that said defend- ant is addicted to the excessive use of intoxicating liquors; that said defendant, by reason of such use, has become, and is, an habitual drunkard; and that said defendant resides in the county aforesaid; That, in consequence of defendant's said excessive use of intoxicating liquors, and by reason of his being an habitual drunkard, said defendant is squandering his * earnings and property,^ and neglects his business ; ° That by reason of defendant's habits as aforesaid, the said defendant abuses ' and maltreats * his family. Complainant therefore prays that the said defendant be declared an habitual drunkard. , Attorney for Complainant. , Plaintiff. [Add ordinary verification.] Explanatory notes. 1. As, John Doe, Complainant, v. Eichard Roe, Defendant. 2. Name of plaintiff. 3. The father, husband, or other person interested. 4. Or, her. 5. Or as the case may be. 6. Giving brief statement of facts. 7. State in what respect. 8. State how. 266 PROBATE LAW AND PRACTICE. § 190. Vacation of judgmeAt of drunkenness. Any per- son so declared to be a habitual drunkard may, at any time after the expiration of two years from the time he was so 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 petition 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 de- claring him to be such habitual drunkard be vacated and he be released from the effects thereof ; which petition shall be duly verified by the petitioner. 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 effects thereof. Pierce's Washington Code, § 2818. Drunkenness, as it is commonly understood, is the result of the excessive drinking of intoxicating liquors: 10 Am. & Eng. Eney. of Law, 276. § 191. Form. Petition to vacate judgment of drunken- ness. [Title of court.] (No. Dept. No. . \ [Title of form.] To the Honorable , Judge of the Court of [Title of action.] County,^ State of The undersigned, your petitioner, respectfully represents that, on the day of , 19 — ," he was, in said court, adjudged to be an habitual drunkard, and that the court's order so declaring him to be an habitual drunkard is now on record ; That your petitioner has entirely ceased to use intoxicating liquors, and is no longer an habitual drunkard, or a drunkard at aU.» SPENDTHRIFTS AND DRUNKARDS. 267 Tour petitioner therefore prays that the record of said order be vacated and annulled. , Petitioner. , Attorney for Petitioner. [Add ordinary .verification.] Explanatory notes. 1. The county in which petitioner was adjudged to be an habitual drunkard. 2. This date must be at least two years before the filing of the petition. 3. State briefly the changed habits and improved condition of petitioner. Note. All proceedings provided by statute relating to guardian and ward subsequently to the appointment of the guardian apply equally to the guardianship of a spendthrift: Sturgis v. Sturgis (Or., Jan. 28, 1908), 93 Pac. Eep. 696, 699. SPENDTHRIFTS. In general. After one has been adjudged a spendthrift by a court of competent jurisdiction, and a guardian has been appointed for him, the pre- sumption is that the necessity for the guardianship continues, until the contrary is shown, and the burden of proving that there is no longer any reason for its continuance is on the ward: Guardianship of Humeku, 14 Haw. 413, 415. The marriage of a female ward under guardianship as a spendthrift does not, of itself, operate as a termination of the relationship of guardian and ward, nor operate as a legal discharge of the guardian; but, as the statute provides, it must be made to appear, by proper application to the judge of probate, that such "guardianship is no longer necessary": Guardian- ship of Kapukini, 12 Haw. 22, 25. The fact that a person is under guardianship as a spendthrift does not render him incapable of making a will: Estate of Lunalilo, 3 Haw. 519, 520. 268 PROBATE LAW AND PRACTICE. CHAPTER IX. COMMITMENT AND DISCHAEGE OF INSANE PEESONS. § 192. Charges of insanity, and proceedings thereon. § 193. Form. Affidavit of insanity. § 194. Form. Warrant of arrest. § 195. Form. Certificate of service of warrant of arrest. § 196. Form. Order fixing time for hearing and examination. § 197. Form. Certified copy of order for hearing and examination. § 198. Form. Certificate of service of certified copy of order for hearing and examination. § 199. Form. Exhibit A. Medical examination of , charged with insanity. § 200. Form. Physicians' certificate of insanity. § 201. Form. Judgment of insanity and order of commitment of insane person. § 202. Form. Statement of financial ability. § 203. Form. Clerk's certificate as to papers. § 204. Attendance and examination of witnesses. § 205. Certificate of medical examiners. § 206. Order of commitment. § 207. Execution of the order of commitment. § 208. Eight to refuse to receive person committed. § 209. Jury trial. § 210. Habeas corpus. § 211. State hospitals, discharge of patients from. § 212. Powers of persons, whose incapacity has been adjudged, after restoration to reason. § 213. Contracts by persons without understanding. § 214. By persons of unsound mind. COMMITMENT AND DISCHARGE OF INSANE PERSONS. 1. Examination and commitment. (1) Contract of conveyance. (1) Jurisdiction. Distinction. Deed. Mortgage. (2) Constitutionality o( statute. 5. Restoration to capacity. Dis- (3) Notice, and opportunity to charge. be heard. (1) Distinction. (4) Adjudication of insanity. (2) Purpose of statute. 2. Collateral attack. (3) Power to discharge. Habeas 8. Support, maintenance, and custody. corpus. (1) Liability of estate. (4) Power to discharge. " Pa- (2) Suit by directors of asylum. tient." (3) Unauthorized order as to (5) Power to discharge. Effect custody. of discharge. 4. Contracts and rights of insane (6) Conclusiveness of discharge, persons. COMMITMENT AND DISCHARGE 0? INSANE PERSONS. 269 § 192, Charges of insanity, and proceedings thereon. Whenever it appears by affidavit to the satisfaction of a magistrate of a county, or city and county, that any person therein is so far disordered in his mind as to endanger health, person, or property, he must issue and deliver to some peace-officer, for service, a warrant directing that such person be arrested and taken before a judge of the superior court of the county, for a hearing and examination on such charge. Such officer must thereupon arrest and detain such person until a hearing and examination can be had, as here- inafter provided. [Copy must be served,] At the time of the arrest a copy of said affidavit and warrant of arrest must be personally delivered to said person. He must be taken before a judge of the superior court, to whom said affidavit and warrant of arrest must be delivered to be filed with the clerk. [Accused must be informed of his rights.] The judge must then inform him that he is charged with being insane, and inform him of his rights to make a defense to such charge and produce any witnesses in relation theretp. The judge must by order fix such time and place for the hearing and examination in open court as will give reason- able opportunity for the production and examination of witnesses. Said order must be entered in the minutes of the court by the clerk and a certified copy of the same served on such person. [Service of notice on relatives.] The judge may also order that notice of the arrest of such person and of the hearing on the said charge of insanity be served on such relatives of said person known to be residing in the county, as the court may deem necessary or proper. Kerr's Cyc. Pol, Code, § 2168. § 193, Form, Affidavit of insanity. [Title of court.] [Title of matter.] i j '''PlJit';'^^^ l^r^Zf"' State of , I gg_ County ^ of J -, being duly sworn, deposes and says, That there is now in said county,^ in the city or town of , a person 270 PROBATE LAW AND PRACTICE. named , who is insane, and is so far disordered in mind as to endanger the health, person, and property of himself, and of others, and that he, at ,* in said county,' on the day of , 19 — , threatened and attempted ; * That, by reason of said insanity, said person is dangerous to be at large. Wherefore afSant prays that a warrant of arrest of such person be issued, and that such action may be had as the law requires in the eases of persons who are so far disordered in mind as to endanger health, person, and property. (Name of affiant.) Subscribed and sworn to before me this day of , 19 — , Judge of the Court. Explanatory notes. 1. As, In the Matter of , an Alleged In- sane Person. 2, 3. Or, City and County. 4. Name the place. 5. Or, city and county. 6. State threats and actions in detail. § 194. Form. Warrant of arrest. [Title of court.] (Department No. [Title of matter.] i | ,-rrj^.jg „f ^^^^ The People of the State of To any Sheriff, Constable, Marshal, Policeman, or Peaee- Officer, in this State. The affidavit of having been presented this day to me, , judge of the " court of the county ^ of , state of , from which it appears that there is now in this county,* at ,° a person of the name of , who is insane, and who is so disordered in mind as to endanger his own health, person, and property," and that it is danger- ous for said person to be at large ; And it satisfactorily appearing to me that said is insane, and so far disordered in his mind as to endanger health, person, and property; — Now, therefore, you are commanded forthwith to arrest the above-named person, and take him before a judge of the '' court of the said county * of , for a hearing and examination on said charge of insanity; And I hereby direct that a copy of this warrant, togetlier with a copy of said affidavit, be delivered to said , at COMMITMENT AND DISCHAEGE OF INSANE PERSONS. 271 the time of his arrest ; and I further direct that this warrant may be served at any hour of the night. Witness my hand this day of , 19 , Judge of the Court. Explanatory notes. 1. As, In the Matter of , an Alleged In- sane Person. 2. Title of court. 3, 4. Or, city and county. 5. Name the place. 6. Or, the person, lives, and property of others. 7. Title of «ourt. 8. Or, city and county. § 195. Form, Certificate of service of warrant of arrest. [Title of court.] ,„.,, , ,, , (Department No. [Title of matter.]! J [Title of form.] I hereby certify. That I received the above warrant of arrest on the day of , 19 — , and served the said warrant by arresting the said , alleged to be insane, and bringing him before the Honorable , judge of the ^ court of said county ^ of , on the day of , 19 — ; and I further certify that I delivered a copy of said warrant of arrest, together with a copy of the aflSdavit of insanity, as directed in said warrant, personally, to said , at the time of the arrest. (Officer serving warrant.) Explanatory notes. 1. As, In the Matter of , an Alleged In- sane Person. 2. Title of court. 3. Or, city and county. § 196. Form. Order fixing time for hearing and examina- ^°°' [Title of court.] j Department No. [Title of matter.] i | ^^.^^^ ^^ ^^^^^ having been brought before me on a warrant of arrest and affidavit of insanity, charged with being insane, — It is hereby ordered, That said appear before me, at the court-room of said court, at the court-house '^ in the said •county ^ of , state of , on ,* the day of , 19 , at o'clock in the forenoon ^ of said day, for an examination and hearing on said charge, and that he be committed to the custody of the sheriff of said county * until said hearing and examination is had. 272 PBOBATE LAW AND PRACTICE. It is further ordered, That a copy of this order be per- sonally served on said before said examination and hearing. Dated , 19 — , Judge of the Court. Explanatory notes. 1. As, In the Matter of , an Alleged In- sane Person. 2. Designate location of court-house. 3. Or, eity and county. 4. Day of week. 5. Or, afternoon. 6. Or, eity and county. § 197. Form. Certified copy of order for hearing and examination. [Title of court.] ,„.., . , (Department No. .. [Title of matter.]! | [Title of form.] State of , 1 County ^ of , ) I hereby certify, That the foregoing is a true copy of the order for hearing and examination made by the Honorable , judge of the ^ court of the county ' of , in the matter of the alleged insanity of , on the day of , 19 — , and duly entered in the minutes of said court on the day of , 19 — , Clerk of the Court, County ^ of By , Deputy Clerk. Explanatory notes. 1. As, In the Matter of , an Alleged In- sane Person. 2. Or, City and County. 3. Title of court. 4, 5. Or, city and county. § 198. Form. Certificate of service of certified copy of order for hearing and examination. [Title of court.] [Title of matter.] i \ Department No , ( [Title of form.] State of , 1 County " of , ) I hereby certify. That I received a duly certified copy of the order for hearing and examination in the matter of the alleged insanity of , and served the same on said -, the alleged insane person named therein, by deliver- ing to said , personally, at ,' county * of COMMITMENT AND DISCHAEGE OF INSANE PERSONS. 273 state of , on the _ day of , 19 — , a true copy of said order for hearing and examination. Dated , 19 — (Officer serving warrant.) Explanatory notes. 1. As, In the Matter of , an Alleged In- sane Person. 2. Or, City and County. 3. Name the place. 4. Or, city and county. § 199. Form. Exhibit A. Medical examination of , charged with insanity. State of , 1 County ^ of , \ ss. , Statement of Faets.^ 1. Name, Alleged insane person resides at ,' county* of Age, -i years. Nativity, If foreign-born, how long in the United States, How long in ^ Sex, Place from which he came to this state, Color, Occupation, Eeligi- ous belief, Education, ' Civil condition, '' If female and married, give maiden name, Give maiden name of mother, Number of children, ; living, ; dead, 2. Has either parent been addicted to the use of opium, cocaine, tobacco, or alcoholic beverages to excess, or other stimulating narcotics? 3. Have any relatives been eccentric or peculiar in any way in their habits or pursuits? If so, how? Have any relatives, direct or collateral, suffered, or are they suffering, from any form of chronic disease, such as con- sumption or tuberculosis, syphilis, rheumatism, neuralgia, hysteria, or nervousness, or had epilepsy or falling sick- ness ? 4. Which parent does alleged insane person resemble? mentally, ; physically, Habits, ° (a) What degree of intelligence does he possess in comparison with other members of the family? (b) Has alleged insane person normally any eccentricity or peculiarity in manner, speech, or action? (c) Has alleged insane person ever been addicted to masturbation or sexual excesses ? If Probate — 18 274 PEOBATB LAW AND PEACTICB. SO, for how long? (d) Has alleged insane person ever had convulsions? If. so, when did he have the first one? When the last one? (e) Had alleged insane person any severe disease, accompanied by pro- longed high temperature or convulsions, during the first two years of life, or afterwards? (f) State alleged insane person's habits as to use of liquor, tobacco, opium, or other drugs, and whether excessive or moderate, (g) What is alleged insane person's natural disposition or temperament, and mental capacity? 5. Has alleged insane person insane relatives? If so, state the degree of consanguinity, and whether paternal or maternal, 6. Has alleged insane person any peculiarities of temper or disposition, making him different from other members of the family? 7. What is alleged insane person's general physical condi- tion? 8. Specify any disease of which alleged insane person has suffered or does suffer, or any injury received, 9. Has alleged insane person ever been an inmate of an institution for the insane? If so, state when, ; where, ; how long an inmate, ; whether dis- charged recovered, or otherwise, ; (a) Number of previous attacks,' ; (b) Dates of previous attacks, ; (c) Length of time each previous attack lasted, 10. Present attack began, (a) Was the present attack gradual or rapid in its onset? (b) When was any change in his habits, conversation, or mode of living first noticed? (c) Give progress of development of the disease from date of first manifestation to present time, 11. Is alleged insane person noisy, restless, violent, danger- ous, destructive, incendiary, excited or depressed, homicidal or suicidal? " 12. Age when menses appeared, (a) Amount and character before insanity appeared, ; (b) Since insanity appeared, ; (c) Has menstruation been painful? ; (d) Is it now painful? . COMMITMENT AND DISCHARGE OP INSANE PERSONS. 275 13. Has the change of life taken place? (a) "Was it gradual or sudden? ; (b) Give symptoms, ; (c) How changed from normal, 14. Memory, ; (a) Sleep, ; (b) Headache or neuralgia, ; (c) Constipation or indigestion, 15. What is the supposed cause of insanity? Predisposing, Exciting, Facts indicating insanity, personally observed by me, as follows : The alleged insane person said ^^ The alleged insane person ^^ Other facts indicating insanity, including those com- municated to me by others, as follows : ^^ Illusions, Hallucinations, ^^ Delusions, What treatment has been pursued? ^° Whether patient has been restrained by muff, belt, or otherwise, Diagnosis, Name and address of correspondent, Telegraphic address, Kelationship of correspondent to alleged in- sane person, That the facts stated and information contained in this exhibit are true, to the best of my knowledge and belief. Dated — =— , 19 — , M. D. , M. D. Explanatory notes. 1. Or, City and County. 2. This must be filled out by at least two medical examiners, who should answer every question as fully as possible. 3. Name the place. 4. Or, city and county. 5. The state. 6. Whether illiterate, reads only, common school, academic, collegiate, or unknown. 7. Whether single, married, widowed, or divorced. 8. Cleanly or uncleanly. 9. If either homicide or suicide has been attempted or threatened, it should be so stated. 10. State what the alleged insane person said, if anything, in the presence of the examiners. 11. State what the alleged insane person did in the presence of the examiners, and also describe his or her appearance and manner. 12. State what, if any, significant change there has been in the alleged person's disposition, mental condition, business, or social habits, or bodily health. 13. Whether of sight, hearing, taste, or smell. 14. Character of; are they fixed, or change- able? 15. State remedies given, and whether given hypodermically or not. 276 PROBATE LAW AND PRACTICE. § 200. Form, Physicians' certificate of insanity. [Title of court.] ^ . „ • _ ( Department No. [Title of matter.] i | ^^.^^ ^^ ^^^^ and , being duly sworn, depose and say, and certify, each for himself, and not one for the other. That he is a duly qualified medical examiner ; that, at the request and in the presence of the Honorable , judge of the ^ court in and for the county * of , state of , he has heard the testimony of the witnesses, and has carefully and personally examined the said in reference to the charge of insanity, in the manner and with the results set forth in the medical examination hereto annexed and marked " Ex- hibit A," and made a part hereof ; and fimds that said is insane, and is so far disordered in his mind as to endanger health, life, person, and property, and that the condition of said is such as to require care and treatment in a hospital or asylum for the care, custody, and treatment of the insane; that said testimony was taken in the presence of said insane person ; that the insanity of said is not a ease of idiocy, imbecility, simple feebleness of mind, a case of acute mania a potu, of harmless chronic mental unsound- ness, or of epilepsy. , M. D. — ^, M. D. Subscribed and sworn to before me this day of , 19 — , Notary Public, etc.* Explanatory notes. 1. As, In the Matter of , an Alleged In- sane Person. 2. Title of court. 3. Or, city and county. 4. Or other officer taking the oath. § 201. Form. Judgment of insanity and order of com- mitment of insane person. [Title of court.] [Title of matter.] i | ^T't""""* ^°- -— • •■ •" ( [Title of form.] -, the person named in the affidavit of insanity now on file in this court, being this day brought before me, judge of the ^ court of the county ' of , state of , for a hearing and examination on a charge of insanity as set forth in the said afSdavit, and said warrant of arrest and notice of said affidavit'of insanity having been duly served on COMMITMENT AND DISCHARGE OF INSANE PERSONS. 277 the said , and said having been made acquainted by me with the nature of said charge, and of his right to make a defense thereto and to produce witnesses thereto ; and said matter coming on regularly for hearing in open court, said being personally present, on this day of , 19 — , in pursuance of an order of this court fixing the time and place for hearing and examination of said on said charge of insanity, duly entered in the minutes of the court, and a certified copy of said order having been duly served on said , and and having been duly sworn and having testified as witnesess at said hearing, including and , medical examiners, whose certificate that said is insane is hereto attached and marked " Exhibit A," said medical examiners having been present at the taking of the testimony of the other witnesses, and being satisfied from the testimony of the said witnesess and the matters set forth in said certificate that is insane, and that it is dangerous to life, health, person, and property for said person to be at large, and that the condition of said person is such as to require care and treatment in a hospital or institution for the care, custody, and treatment of the insane; — Now, therefore, said is declared and adjudged to be insane, and it is ordered and directed that he be committed to the , to be held in custody, cared for, and treated as an insane person. It is further ordered and directed, That , sheriff of the county * of , state of , take and convey said to the : — state hospital, to be held and confined therein, and cared for and treated as an insane person. The sum of dollars ($ ) having been found on the person of said at the time of his arrest, the said sheriff, , is ordered to take posesssion of the same and deliver it to the medical superintendent of said institution with said Done in open court this day of , 19 — , Judge of the Court. [Seal] Attest: , Clerk of the — ^ Court. By , Deputy Clerk. Explanatory notes. 1. As, In the Matter of , an Alleged In- sane Person. 2. Title of court. 3, 4. Or, city and county. 278 PROBATE LAW AND PRACTICE. § 202. Form. Statement of financial ability. [Title of court.] r.„. , „ , ( Department No. [Title of matter.] i | ^^j^j^ „f ^^^^-^ As to the ability of said to pay for his care and sup- port at the hospital, I find, on diligent inquiry, that said is possessed of real estate of the estimated value of dollars ($ ), situated in the county == of , state of , and of the following description, to wit: ; * also the following described personal property, viz., ; * that the income from said property is as follows : and that said is able to pay the sum of dollars ($ ) per month for his care and support at the hospital. Name and address of guardian : , residing at , county ° of , state of Dated , 19 — , Judge of the Court. Explanatory notes. 1. As, In the Matter of, etc. 2. Or, city and county. 3, 4. Describe the property. 5. Or, city and county. § 203. Form. Clerk's certificate as to papers. [Title of court.] [Title of matter.] i \ ^^P^'*'"^"* ^°- — — "■ ■■ I [Title of form.] State of , 1 County ^ of , ( I, , county clerk and ex officio clerk of the ' court of the county * of , state of , hereby certify that the within and foregoing are the certificate of the physi- cians, judgment of insanity, and order of commitment, and statement of the judge in the matter of —, an insane person, committed on the day of , 19 — , to the state hospital by , judge of the ° court, and I further certify that attached thereto are true copies of the affidavit of insanity, warrant of arrest, and order for the hearing and examination in said matter, the originals of the same being on file of record in my office. Witness my hand and the seal of said court this day of , 19 — Clerk. [Seal] By , Deputy Clerk. Explanatory notes. 1. As, In the Matter of , an Alleged In- sane Person. 2. Or,. City and County. 3. Title of court. 4. Or, city and county. 5. Title of court. COMMITMENT AND DISCHARGE OF INSANE PERSONS. 279 § 204. Attendance and examination of witnesses. The superior judge may, for any hearing, issue subpoenas and compel the attendance of witnesses and must compel the attendance of at least two medical examiners, who must hear the testimony of all witnesses, make a personal examination of the alleged insane person, and testify before the judge as to the result of such examination, and to any other perti- nent facts within their knowledge. The judge must also cause to be examined before him as a witness, any other person whom he has reason to believe has any knowledge of the mental condition of the alleged insane prson or of his financial condition or that of the persons liable for his maintenance. The alleged insane person must be present at the hearing, and if he has no attorney, the judge may appoint an attorney to represent him. Kerr's Cyc. Pol. Code, § 2169. § 205. Certificate of medical examiners. If the medical examiners, after making the examination and hearing the testimony, believe such person to be dangerously insane, they must make a certificate, under their hand, showing as nearly as possible : 1. That such person is so far disordered in his mind as to endanger health, person, or property ; 2. The premonitory symptoms, apparent cause or class of insanity, the duration and condition of the disease; 3. The nativity, age, residence, occupation, and previous habits of the person; 4. The place whence the person came and the length of his residence in the state. Such certificates must be made in the form prescribed by, and, if they can be had, upon blanks furnished by the general superintendent of the state hospitals. Kerr's Cyc. Pol. Code, § 2170. § 206. Order of commitment. The judge, after such ex- amination and certificate made, if he believes the person so far disordered in his mind as to endanger health, person,. or property, must adjudge him insane, and make an order that he be confined in a hospital for the care and treatment 280 PROBATE LAW AND PEACTICE. of the insane, designated in such order, and the order must be accompanied by a written statement of the judge as to the financial condition of the insane person and of the per- sons legally liable for his maintenance, as far as can be ascertained. [Duty of county clerk.] Copies of such order, of the certificate of the examiners and of such accompanying state- ment must be filed with the county clerk, and said order must be recorded by the county clerk of the county in which such order was made as are other judgments of said court. He shall also keep, in convenient form, an index-book, show- ing the name, age, and sex of the person so ordered to be confined in any such hospital, with the date of the order and the name of the hospital in which the person is ordered to be confined. No fees must be charged by the clerk for performing any of the duties provided for in this section. Kerr's Oyc. PoL Code, § 2171. § 207. Execution of the order of commitment. The in- sane person, together with certified copies of the affidavit, warrant of arrest, and of the order for hearing and examina- tion, the order and accompanying statement of the judge and the certificate of the physicians, must be delivered to the sheriff of the county, and by him must be delivered to the officer in charge of the hospital to which such person is committed; but no female insane person shall be taken to any hospital without the attendance of some other female or of some relative of such insane person. Kerr's Oyc, Pol, Code, § 2172. § 208. Right to refuse to receive person committed. The superintendent or person in charge of any state hospital may refuse to receive any person upon any order, if the papers presented do not comply with the provisions of the preced- ing section. Kerr's Cyc. Pol. Code, § 2173. § 209. Jury trial. If a person ordered to be committed, or any friend in his behalf, /is dissatisfied with the order of the judge committing him, he may, within five days after COMMITMENT AND DISCHARGE OP INSANE PERSONS. 281 the making of such order, demand that the question of his sanity be tried by a jury before the superior court of the county in which he was committed. Thereupon that court must cause a jury to be summoned and to be in attendance at a date stated, not less than five nor more than ten days from the date of the demand for a jury trial. [Procedure.] At such trial the cause against the alleged insane must be represented by the district attorney of the county, and the trial must be had as provided by law for the trial of civil causes before a jury, and the alleged insane person must be discharged unless a verdict that he is insane is found by at least three fourths of the jury. [Commitment.] If the verdict of the jury is that he is insane, the judge must adjudge that fact and make an order of commitment as upon the original hearing. Such order must be presented, at the time of commitment of such insane person, to the superintendent or person in charge of the hospital to which the insane person is committed, and a copy thereof be forwarded by such superintendent to the com- mission, and filed in its ofiice. Proceedings under the order must not be stayed, pending the proceedings for determining the question of sanity by a jury, except upon the order of a superior judge, with pro- vision made therein for such temporary care and custody of the alleged insane person as may be deemed necessary. [Bond for appearance.] If the superior judge, by the order granting the stay, commits the accused insane to the custody of any person other than a peace-officer, he may, by such order, require a bond for his appearance at the trial. If a judge refuses to grant an application for an order of commitment of an insane person alleged to be dangerous to himself and others if at large, he must state his reasons for such refusal, and any person aggrieved thereby may demand a trial of the question of the insanity of such accused insane, in the manner hereinbefore provided for a jury trial when demanded by or on behalf of the accused insane. Kerr's Cyc. Pol. Code, § 2174. § 210. Habeas corpus. Any one in custody as an insane or incompetent person is entitled to a writ of habeas corpus, 282 PROBATE LAW AND PRACTICE. upon a proper application made by the commission, by such person, a relative or friend in his behalf to the superior judge of the county in which the hospital is located. Upon the return of such writ, the fact of his insanity or incompetency must be inquired into and determined. The medical history of such person as it appears in the clinical records, must be given in evidence, and the superintendent in charge of the state hospital wherein such person is held in custody, and any other person, must be sworn touching the mental con- dition of such person. Kerr's Cyc. Pol. Code, § 2188. § 211. State hospitals, discharge of patients from. The superintendent of a state hospital on filing his written certificate with the secretary of board of managers, may dis- charge any patient, except one held upon an order of a court or judge having criminal jurisdiction in an action or proceeding arising out of a criminal action or proceeding arising out of a criminal offense, at any, time, as follows: 1. A patient who, in his judgment, has recovered; 2. Any patient who is not recovered, but whose discharge, in the judgment of the superintendent, will not be detri- mental to the public welfare, or injurious to the patient. [Superintendent may refuse to discharge.] The medical superintendent may, when he deems it advisable, refuse to discharge any patient as improved, unless the guardian, friends or relatives of such patient shall satisfy such medical superintendent that they are financially able and willing to properly care for such patient after his discharge. [Superior judge may order discharge.] When the super- intendent is unwilling to certify to the discharge of an un- recovered patient, upon request, and so certifies in writing, giving his reasons therefor, any superior judge of the county in which the hospital is situated may, upon such certificate, and an opportunity of hearing thereon being accorded the superintendent, and upon [such] other proofs as may be produced before him, direct, by order, the discharge of such patient, upon such security to the people of the state as he may require for the good behavior and maintenance of the patient. COMMITMENT AND DISCHARGE OF INSANE PERSONS. 283 The certificate and the proof, and the order granted thereon, must be filed in the clerk's office of the county in which the hospital is situated, and a certified copy of the order in the hospital from which the patient is discharged. 3. [Parole of patient.] The superintendent may grant a parole to a patient, not exceeding thirty days, under general conditions prescribed by the commission. 4. [Patient redelivered to sheriff.] A patient committed to a hospital under the provisions of chapter six, title ten, part two, of the Penal Code, must, upon the certificate of the superintendent that such person has recovered, approved by the superior judge of the county from which the patient was committed, be redelivered to the sheriff of such county, and dealt with as provided for by said chapter six of the Penal Code. 5. [Discharge of patient on order of commission. Re- turn to county.] The medical superintendent of a state hospital may on his own motion [,] and must on the order of the commission, discharge any patient who is not insane, or because he is not a proper case for treatment therein, or because such patient is a case of idiocy, imbecility, chronic harmless mental unsoundness or acute mania a potu. Such person, when discharged, shall be returned to the county from which he was committed at the expense of said county. When such person is a poor and indigent person he shall be delivered to the sheriff of the county who must take the necessary steps for the care of such person. When such person is a poor and indigent person he shall be eared for by such county as are other indigent poor, and it is hereby made the duty of the board or officer or officers having charge of the place where other poor and indigent persons are kept by the county to receive such discharged patients therein. [Conditions on recommitment.] When any person is dis- charged from any state hospital as is last herein provided he shall not be again committed to any state hospital for the insane unless permission for such recommitment be first obtained from the medical superintendent thereof. Said medical superintendent shall refuse to receive such person 284 PEOBATE LAW AND PEACTICE. on such recommitment unless such permission is obtained as herein provided. 6. [Certificate of discharge filed. Recording.] When any person is discharged as recovered from a state hospital a copy of the certificate of discharge duly certified by the secretary of the board of managers, may be filed for record with the clerk of the superior court of the county from which said person was committed. The clerk shall record the same in a book kept for that purpose and shall keep an index thereof. No fee shall be charged by the clerk for performing such duties. [Copy of certificate as evidence.] Such certified copy of such certificate and the record of the same shall have the same legal effect as the original, and if no guardian has been appointed for siieh person as provided by sections seventeen hundred and sixty-three and seventeen hundred and sixty- four of the Code of Civil Procedure, such certificate, duly certified copies thereof and such record thereof shall have the same legal force and effect as a judgment of restoration to capacity made under the provisions of section seventeen hundred and sixty-six of the Code of Civil Procedure. [" Patient " defined.} The term patient as used in subdi- visions one, two, three and six of this section shall be re- garded as referring to and including inmates of the home for the feeble-minded. Kerr's Cyc. Pol. Code, § 2189. § 212. Powers of persons, whose incapacity has been adjudged, after restoration to reason. After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor delegate any power or waive any right, until his' restoration to capacity. But a certificate from the medical superintendent or resi- dent 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. Kerr's Cyc. Civ. Code, § 40. COMMITMENT AND DISCHAEGE OP INSANE PERSONS.- 285 § 213. Contracts by persons without understanding. A person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family. Kerr's Cyc. Civ. Code, § 38. Note. Concerning insane asylums, see Henning's General Laws, p. 532. For provisions in other states relative to the same subject- matter covered by sections 2167-2189 of the Political Code of Cali- fornia, see as follows. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Rev. Stats. 1901, pars. 2768-2771. Colorado. 3 Mills's Ann. Stats., sees. 2935-2962b, 2970m. Idaho. Pol. Code 1901, sees. 401, 406-416. Kansas. Gen. Stats. 1905, §§ 7591-7612. Montana. Pol. Code, sees. 2282, 2283, 2300-2308. Nevada. Comp. Laws, sees. 1465, 1466, 1469-1470, 1478. New Mexico. Comp. Laws 1897, sees. 3618, 3619. North Dakota. Kev. Codes 1905, §§1889-1906, 4142. Oklahoma. Eev. Stats. 1903, sees. 3831, 3966-3982. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 3619-3627. South Dakota. Pol. Code 1904, §§ 2806-2829. Utah. Eev. Stats. 1898, sees. 2171-2190. Washington. Pierce's Code, §§ 5546, 5547, 5568, 5569. Wyoming. Eev. Stats. 1899, sees. 4879-4896. § 214. By persons of unsound mind. A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission, as provided in the chapter on rescission of this code. Kerr's Cyc. Civ. Code, §39. Note. The commitment of incompetents, other than insane persons, is provided for by the Political Code of California, § 2192. For pro- visions in other states relative to the feeble-minded, see as follows. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Kansas. Gen. Stats. 1905, §§ 7578-7581. Montana. Pol. Code, sees. 2342-2346. Nevada. Comp. Laws, sec. 1473. North Dakota. Eev. Codes 1905, §§ 1160, 1165. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 3619. South Dakota. Pol. Code 1904, §§552, 558-564. 286 PROBATE LAW AND PEACTICE. COMMITMENT AND DISCHARGE OF INSANE PERSONS. 1. Examination and commitment. (1) Contract of conveyanca. (1) Jurisdiction. Distinction. Deed. Mortgage. (2) Constitutionality of statute. 6. Restoration to capacity. DIS- CS) Notice, and opportunity to charge. be heard. (1) Distinction. (4) Adjudication of insanity. (2) Purpose of statute. 2. Collateral attack. (3) Power to discharge. Ha- S. Support, maintenance, and custody. beas corpus. (1) Iiiablllty of estate. ^4) Power to discharge. " Pa- (2) Suit by directors of asylum. tlent." (5) Unauthorized order as to (B) Power to discharge. Effect custody. of discharge. 4. Contracts and rights of Insane (6) Conclusiveness of discharge, persons. 1. Examination and commitment. (1) Jurisdiction. Distinction. The jurisdietion of a court to appoint guardians for insane persons is wholly independent of its jurisdiction to commit to. hospitals for the insane: Donaldson v. Winningham (Wash.), 93 Pac. Bep. 534, 535. BEFEBENCES. Establishment of asylums for the insane: See Henning's General Laws, p. 532, note. (2) Constitutionality of statute. A statute which provides for the examination and commitment and custody of persons charged and found to be insane is not necessarily unconstitutional, though it may be imperfect in some of its protective requirements: Territory v. Sheriff of Gallatin County, 6 Mont. 297; 12 Pac. Bep. 662. (3) Notice, and opportunity to be heard. An inquiry and trial in the probate court, had upon an information charging one with being a person of unsound mind and incapable of managing his own affairs, should be had only after notice to the person alleged to be insane, and after an opportunity has been given such person to be present at the trial, in person or by counsel. An adjudication of insanity which is made without such notice and opportunity to be heard is a nullity and void; and a commitment thereunder to the insane asylum would therefore be illegal: In re Wellman, 3 Kan. App. 100; 45 Pac. Bep. 726. The authorities of an asylum are not vested with power to commit a person thereto, nor to confine him there against his consent, without the legal inquiry provided by law, except, perhaps, tempo- rarily, in the case of one violently and dangerously insane, until the necessary proceedings can be had, to avoid the injury which might be leasonably expected to occur if the party was allowed to be at large. Generally, it is permissible, without warrant or express COMMITMENT AND DISCHARGE OP INSANE PERSONS. 287 authority, to confine temporarily a person disposed to do mischief to himself or another person, until the proper proceedings can be instituted to have the question of his insanity determined. In such a case the restraint becomes necessary and proper, both for the safety of the party himself and for the preservation of the public peace: Byers v. Solier (Wyo.), 93 Pac. Eep. 59, 65. But where a patient, who is not violently or dangerously insane, has been unconditionally dis- charged by competent authorities of the hospital, he cannot be reincarcerated without another judicial inquiry; and the person charged with insanity or other mental infirmity has the same legal right as any other citizen to claim the benefit of constitutional and statutory provisions affecting his personal liberty. He is therefore; if legally confined in an asylum, and in actual custody, entitled to a writ of habeas corpus: Byers v. Solier (Wyo.), 93 Pac. Eep. 59, 64. The right to appear at an inquisition in lunacy must be preserved, and an opportunity afforded to do so, in person or by counsel, as far as the circumstances will permit, though actual appearance at the trial is, of course, not necessary, as there are many cases in which the parties are so mentally disordered that they cannot appear: In re Wellman, 3 Kan. App. 100; 45 Pac. Eep. 726, 727. KEFEBENCES. Commitment of insane persons, due process of law in: See note 1 Am. & Eng. Ann. Cas. 733. (4) Adjudication of insanity. An adjudication of insanity, under a law, the purpose of which is to provide a procedure whereby a judicial determination may be had as to whether or not the person being examined is a proper subject to become a patient in the state hospital for the insane, does not conclusively show that the person therein named is a lunatic or mentally unfit to answer, or to make defense to a criminal charge against him: Ex parte Wright, 74 Kan. 406; 89 Pac. Eep. 678. In proceedings for the commitment of a person alleged to be insane, the verdict of the jury declaring such person to be of unsound mind, incapable of caring for himself, and unsafe to be at large, is a suflScient " certificate under oath " that the charge of insanity is correct: State v. Third Judicial Dist. Court, 17 Mont. 411; 43 Pac. Eep. 385, 386. 2. Collateral attack. If a court has power conferred upon it to hold an examination and to determine the question of insanity, and to commit to an asylum, its orders, made by virtue of such authority and that of jurisdiction, are not subject to collateral attack: Napa State Hospital v. Dasso (Cal.), 96 Pac. Eep. 355, 356. 3. Support, maintenance, and custody. (1) Liability of estate. The statute which authorizes a recovery from the estates of insane persons confined in state hospitals, for the 288 PROBATE LAW AND PRACTICE. support of such persons, is not unconstitutional: Kapa State Hospital V. Dasso (Cal.), 96 Pac. Kep. 355. The estate of an insane person may be charged with the expense of his maintenance and necessaries furnished him without an express promise, either by the insane person or guardian, to pay therefor: Palmer v. Hudson B. S. Hospital, 10 Kan. App. 98; 61 Pac. Eep. 506. An insane person is liable for the reasonable value of things furnished to him, necessary for his support. This was so at common law, when the necessaries were furnished by an individual; and there seems to be no reason why the same rule should not apply to a state hospital for the insane, which does and furnishes for the insane person only those things required by the law of the state: State Commission in Lunacy v. Eldridge (Cal. App.), 94 Pac. Eep. 597, 600. If, however, the estate of the insane person was not sufficient to any extent to provide for his maintenance at the time of his commitment to the asylum, such property, existing at the ' time of his commitment, as he possessed belonged to the creditors, and the state has no legal claim against the insolvent estate of such insane person for his maintenance: Estate of Callen, 35 Cal. Dec. 127, 128 (Feb. 11, 1908). (2) Suit by directors of asylum. Where, by statute, it is provided that in case an insane person is able to pay actual charges and expenses, a guardian may be appointed, whose duty it shall be to pay such expenses to the board of directors of the insane asylum, and that " if indigent insane persons have kindred of degree of husband or wife, father, mother, or children, living within this state, of sufficient ability, who are otherwise liable, said kindred shall support such indigent insane person to the extent prescribed for paying such patients," . the board has power to collect a debt due the directors from the husband of an inmate of the asylum; and the directors have capacity to sue, on the ground that they are trustees of an express trust: Watt v. Smith, 89 Cal. 602; 26 Pac. Eep. 1071, 1072. (3) Unauthorized order as to custody. Under a law requiring that a female patient shall be accompanied, in the absence of some member of her family, by a female attendant in being conducted to the state insane asylum, an order of the county court committing such patient to the sheriff of the county for custody is not unauthorized, where the statute makes no requirement as to custodian when the person is retained in custody in the county of her commitment: Board of Com- missioners V. Adams, 16 Col. App. 513; 66 Pac. Eep. 683, 684. 4. Contracts and rights of insane persons. (1) Contract of conveyance. Deed. Mortgage. A contract of conveyance, made by one who has been adjudged a lunatic, but who was in fact sane when the contract of conveyance was made, is valid, although no adjudication has been made that he has been restored to his right mind: Lower v. Schumacher, 61 Kan. 625; 60 Pac. Eep. COMMia?MENT AND DISCHARGE OF INSANE PERSONS. 289 538, 539; Water-Supply Co. v. Koot, 56 Kan. 187; 42 Pac. Eep. 715. Prior to the decision of these eases it had been held in Kansas that the deed to the homestead of an insane person, executed by him and his wife after he had been duly adjudicated insane and placed under guardianship, and a record thereof duly made in the probate court, whOe he was out on a temporary leave of absence, after having been confined in the insane asylum, was void, and conveyed no title to the purchaser; that a mortgagee of the grantee in such a deed, having actual notice of such insanity, and such adjudication by the probate court, acquired no lieu on the land; and that a inortgage on the home- stead of an insane person, executed by his wife and guardian without any order of the probate court, was absolutely void: Loan and Trust Co. v. Spitler, 54 Kan. 560, sub nom. New England L. & T. Co. v. Spitler, 38 Pac. Eep. 799. An adjudication that a person is insane does not make void a deed afterwards executed by him, where he had no notice of the proceeding, and no guardian was appointed to take charge of his property: Hawaiian T. & I. Co. v. Barton, 16 Haw. 294, 301; 5. Kestoration to capacity. Discharge. (1) Distinction. The statutory proceeding for the restoration of an insane or incompetent person to capacity is applicable only to those for whom guardians have been appointed, and does not apply to persons committed to state hospitals for the insane without having been put under guardianship: Aldrich v. Barton (Cal.), 95 Pac. Eep. 900, 902. (2) Purpose of statute. The legislature of California, in enacting section 2189 of the Political Code, doubtless intended to afford to persons who, upon recovery, should be discharged from insane asylums, some record proof, which should operate to establish the fact of their recovery in the same way that the judgment of restoration, under section 1766 of the Code of Civil Procedure of that state, operated in the case of persons who had been declared incompetent and for whom guardians had been appointed: Aldrich v. Barton (Cal.), 95 Pac. Eep. 900, 903. (3) Power to discharge. Habeas corpus. After a person has been committed to an insane asylum in California under a charge of insanity, and received therein, no court in the state is authorized to discharge him therefrom, or to restore him to the capacity of a sane person under any circumstances, except upon a writ of habeas corpus. The power to discharge him otherwise than by a writ of habeas corpus is vested exclusively in officers of the asylum: Kellogg v. Cochran, 87 Cal. 192, 197; 25 Pae. Eep. 677; 12 L. E. A. 104; Aldrich v. Superior Court, 120 Cal. 140, 142; 52 Pac. Eep. 148. An alleged insane person is entitled to notice of an application to deprive him of his personal Probate — 19 290 PROBATE LAW AND PRACTICE. liberty. He is entitled to due process of law, and this includes, in all cases, the right of the person to such notice of the claim as is appro- priate to the proceedings and adapted to the nature of the case, and the right to be heard before any order or judgment in the proceeding can be made by which he will be deprived of his life, liberty, or property. To say that, if he is in fact insane, any notice to him will be vain, is to beg the very question the determination of which under- lies the right of the state to deprive him of his liberty. The fact of his insanity is to be determined before his right to his liberty can be violated. If that question is determined against him, without any notice or opportunity to be heard, or to introduce evidence in his behalf, and, under such determination, he is confined in the asylum, his constitutional guaranty is violated: Matter of Lambert, 134 Cal. 626, 633; 86 Am. St. Kep. 296; 66 Pac. Eep. 851; 55 L. R. A. 856. In the case last cited it was held that the insanity law of 1897, to the extent that it authorizes the confinement of a person in an insane asylum without giving him notice and an opportunity to be heard upon the charge against him, is unconstitutional, and that the pro- ceedings by virtue of which the petitioner was held by the respondent were invalid. It was therefore ordered that the petitioner be released from the asylum. So the commitment of a person to a state hospital for the insane does not authorize his confinement if he is permanently restored to sanity. The act of 1897 and the act of 1903 both recog- nize this, and provide that any patient who has becbme sane may be discharged from further, custody after examination on habeas corpus proceedings. And where the petition for the writ alleges that the petitioner is not insane, he is, upon that allegation, entitled to a preliminary writ, in order to inquire into its truth and discharge him if he is found to be sane; and the court, having power, will issue the writ, and make it returnable before any superior judge for determina- tion by him: Ex parte Clary, 149 Cal. 732; 87 Pac. Rep. 580, 582. The effect of an unconditional discharge of a patient from an insane asylum, by the authorities thereof, is to entitle him to his freedom until he has been recommitted by another judicial inquiry. A statute which authorizes the authorities of the asylum to discharge an inmate, if that be deemed proper in their judgment, does not vest them with authority to commit a person thereto without a judicial inquiry pursuant to that required by the statute: Byers v. Solier (Wyo.), 93 Pac. Rep. 59, 65. Under a statute which provides that the resident physician shall be the executive officer of a state asylum for the insane, and shall discharge such patients as, " in his opinion, have permanently recovered their reason," where a person has escaped from the asylum, but, shortly after, the physician causes his discharge to be recorded as recovered, it is a valid exercise of his authority, where he had intended, prior to such escape, to discharge the patient in a few days, believing him to have been then restored to reason. Under such circumstances there is a prima facie showing that the COMMITMENT AND DISCHARGE OP INSANE PERSONS. 291 defendant has been restored to reason: People v. Geiger, 116 Cal. 440; 48 Pac. Eep. 389. Even the discharge of a person from an insane asylum, though the certificate of the resident physician and secretary does not state that such person is cured and restored to reason, is prima facie evidence that the person is so restored, or that he was improperly committed: Clements v. McGinn (Cal.), 33 Pac. Eep. 920, 923. (4) Power to discharge. " Patient." The jurisdiction of the super- intendent of an insane asylum to discharge a person as recovered from insanity exists, under gection 2189 of the Political Code of Cali- fornia, only where such person is a patient in the asylum. The only authority given to the superintendent by the statute is to discharge a " patient," and that by such " patient " is meant one who has been committed to the asylum and has remained there (except in case of a temporary absence, as on parole) for care and treatment. This is clear from a reading of the entire chapter of the Political Code dealing with the commitment and care of insane persons. One who has, for many years, been away from the asylum, claiming, without objection, to have been discharged by virtue of an order purporting to have that effect, and over whom the asylum authorities do not exercise, or claim the right to exercise, any power of restraint what- ever, cannot be said to be a "patient," within the meaning of the law: Aldrich v. Barton (Cal.), 95 Pac. Eep. 900, 904. (5) Power to discharge. Effect of discharge. In the absence of a statute making contrary regulations or restrictions, or expressly or impliedly vesting exclusive authority in the premises elsewhere, the controlling authorities of an asylum, to carry out the obvious purpose of its establishment, must be held to possess the power to voluntarily release a committed party upon his recovery; or, in the exercise of a reasonable discretion, and acting in good faith, whenever the circum- stances, are deemed proper to justify such a course, to release a patient, who may not have fully recovered, either conditionally or temporarily, and upon expressed conditions; but where a patient has been unconditionally discharged by a competent authority of such institution, he cannot be reincarcerated without another judicial inquiry: Byers v. Solier (Wyo.), 98 Pac. Eep. 59, 64. The effect of a discharge, by the ofScers of an asylum, of an insane inmate, if no guardian has been appointed for him, is to restore the person dis- charged to the legal capacity to sue: Kellogg v. Cochran, 87 Cal. 192; 25 Pac. Eep. 677; 12 L. E. A. 104. (6) Conclusiveness of discharge. The reasonable interpretation of section 2189 of the Political Code of California is, that it purports to make a certificate of discharge conclusive as against collateral attack, if issued by one having authority, in the particular case, to make it. 292 PROBATE LAW AND PRACTICE. but that such certificate always remains open to attack for want of such authority. The purpose of the section was to give to a certificate of discharge the effect of a judgment, as an adjudication of a fact, not to confer upon it any evidendiary value as conclusive proof of jurisdiction to make such adjudication: Aldrich v. Barton (Cal.), 95 Pae. Eep. 900, 903. EEFEBENCES. See separate note to § 177, ante, concerning the guardianship of insane persons and other incompetents. PAET IIL JURISDICTION OF COURTS. CHAPTER I. JURISDICTION OF COURTS. \ 215. Over the estate, when exercised. i 216. First application. Exclusive jurisdiction. 10 JURISDICTION 1. In general. 2. Is statutory and limited. 3. Probate courts as courts of record. 4. Jurisdictional facts. 5. Construction of statute. 6. Invoking, effect of, and loss of. 7. Exercise of jurisdiction. Effect of assuming, and refusing to exercise. Prohibition. 8. Original and concurrent jurisdic- tion. 9. Of particular courts. (1) District courts of Arizona. (2) District courts of Kansas. (3) District courts of Montana. (4) Superior courts of Washing- ton. (5) Superior courts of California. (6) County courts of Colorado. Exclusive and conflicting jurisdic- tion. (1) Exclusive jurisdiction. (2) County courts of Oregon, (3) Conflicting jurisdiction. Exists in what cases. In particular matters. To set aside its own decrees. No jurisdiction when. (1) In general. (2) In county in which estate has not been " devised." OF COURTS. (3) Over proceeds of life-insur- ance policy. (4) To foreclose mortgage. (5) To order property to escheat when. (6) Over timber- culture claim- ant's claim. (7) To appropriate share of heir or devisee to payment of his debts. (8) Where deceased was a non- resident. (9) Of body of deceased. (10) To administer a living per- son's estate. (11) To adjust disputed rights generally. (12) To try title. (13) To enforce a trust. (14) In what matters of guardian- ship. 15. Collateral attack, 16. Jurisdiction in equity. (1) Exists, when. (2) Does not exist when. (3) Where same court has juris- diction in equity and in matters of probate. (4) Concurrent jurisdiction. § 215. Over the estate, when exercised. proved, and letters testamentary or of granted : (293) Wills must be administration 294 PROBATE LAW AND PRACTICE. 1. In the county o£ which the decedent was a resident at the time of his death, in whatever place he may have died ; 2. In the county in which the decedent may have died, leaving estate therein, he not being a resident of the state ; 3. In the county in which any part of the estate may be, the decedent having died out of the state, and not resident thereof at the time of his death ; 4. In the county in which any part of the estate may be, the decedent not being a resident of the state, and not leav- ing estate in the county in which he died ; 5. In all other cases, in the county where application for letters is first made. Kerr's Cyc. Code Civ. Proc, § 1294. ANALOGOUS AND IDENTICAL STATUTES. Tlio * indicates identity. Alaska. Carter's Code, see. 772, p. 305. Arizona.* Rev. Stats. 1901, par. 1598. Colorado. 3 Mills's Ann. Stats., sees. 4691, 4815 1. Idaho.* Code Civ. Proc. 1901, sec. 3993. Kansas. Gen. Stats. 1905, §2875. Montana.* Code Civ. Proc, sec. 2310. Nevada. Comp. Laws, see. 2786. New Mexico. Comp. Laws 1897, sees. 1936, 1965. North Dakota. Rev. Codes 1905, § 7891. Oklahoma.* Rev. Stats. 1903, sec. 1483. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1106. South Dakota. Probate Code 1904, §31. Utah. Rev. Stats. 1898, sec. 3774. Wa,shingtou. Pierce's Code, § 2371. Wyoming. Rev. Stats. 1899, sec. 4530. §216. First application. Exclusive jurisdiction. When the estate of the decedent is in more than one county, he having died out of the state, and not having been a resident thereof at the time of his death, or being such non-resident, and dying within the state, and not leaving estate in the county where he died, the superior court of that county in which application is first made, for letters testamentary or of administration, has exclusive jurisdiction of the settlement of the estate. Kerr's Cyc. Code Civ. Proc, § 1295. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Rev. Stats. 1901, par. 1599. Colorado. 3 Mills's Ann. Stats., sec. 4815 1. JURISDICTION OF COURTS. 295 Idaho* Code Civ. Proc. 1901, sec. 3994. Kansas. Gen. Stats. 1905, § 2875. Montana.* Code Civ. Proc, see. 2311. Nevada. Comp. Laws, sec. 2786. North Dakota. Eev. Codes 1905, § 7891. Oklahoma.* Kev. Stats. 1903, sec. 1484. South Dakota.* Probate Code 1904, § 32. Utah. Rev. Stats. 1898, sec. 3775. Washington. Pierce's Code, § 2372. Wyoming.* Eev. Stats. 1899, sec. 4538. 10, 11. 12. 13. 14. JURISDICTION In general. Is statntory and limited. Probate courts as courts of record. Jurisdictional facts. Construction of statute. Invoking, effect of, and loss of. Exercise of Jurisdiction. Effect of assuming, and refusing to exercise. FroMMtion. Original and concurrent jurisdic- tion. Of particular courts. (1) District courts of Arizona. (2) District courts of Kansas. (3) District courts of Montana. (1) Superior courts of Washing- ton. (5) Superior courts of California. (6) County courts of Colorado. Exclusive and conflicting jurisdic- tion. (1) Exclusive jurisdiction. (2) County courts of Oregon. (3) Conflicting jurisdiction. Exists in what cases. In particular matters. To set aside Its own decrees. No jurisdiction when. (1) In general. (2) In county in which estate has not been " devised." OP COURTS. (3) Over proceeds of life-insui> ance policy. (4) To foreclose mortgage. (6) To order property to escheat when. (6) Over timber-culture claim- ant's claim. (7) To appropriate share of heir or devisee to payment of his debts. (8) Where deceased was ■•>, non- resident. (9) Of body of deceased. (10) To administer a living per- son's estate. (11) To adjust disputed rights generally. (12) To try title. (13) To enforce a trust. (14) In what matters of guardian- ship. 16. Collateral attack. 16. Jurisdiction in equity. (1) Exists when. (2) Does not exist when. (3) Where same court has juris- diction in equity and in matters of probate. (4) Concurrent jurisdiction. 1. In general. Under our system, the same court has jurisdiction of eases at law, in equity, and in matters of probate, but the sev- 296 PEOBATE LAW AND PRACTICE. eral classes of eases must be kept separate, and a petition to the court of probate ought not to be confounded with an action at law or a suit in chancery: Lufeich v. Medin, 3 Nev. 93, 99. Proceedings for the settlement of an estate, and matters connected therewith, are not civil actions: Estate of Scott^ 15 Cal. 220, 222. If the pro- bate court has no jurisdiction of the subject-matter before it, it fol- lows that the higher courts can get no jurisdiction on appeal: Stew- art V. Iiohr, 1 Wash. 341; 25 Pac. Eep. 457. The superior court, in the exercise of its probate jurisdiction, proceeds upon principles of equity: Estate of Glenn (Oal.), 94 Pac. Eep. 230, 232. It is the universal rule, that a judgment rendered without jurisdiction of the person or of the subject-matter is void, and therefore can be at- tacked directly or collaterally, and set aside. Jurisdiction of the person can be waived, but that of the subject-matter cannot. Jurisdiction, in the later decisions, is held to be not only the power to hear and determine, but also the power to render the particular judgment entered in the particular case: Watkins Land Mortgage Co. V. Mullen, 8 Kan. App. 705; 54 Pac. Eep. 921. BEFEBENCES. Probate court jurisdiction: See note 3 L. R. A. 812-815. Jurisdiction of surrogate's court: See notes 2 L. E. A. 175-177, 828. Power of surrogate's court to vacate or set aside decree or order: See note 2 L. E. A. 644. 2. Is statutory and limited. The probate court is a court of spe- cial and limited jurisdiction: Clarke v. Perry, 5 Cal. 58; Ethell v. Anchols, 1 Ida. 741. Its jurisdiction cannot be inferred; it must be given by positive law: Cast v. Cast, 1 Utah, 112. Proceedings for the administration of the estates of deceased persons, and for their distribution to those who may be entitled thereto, including the de- termination of the heirs of the decedent, are purely statutory: -Smith v. Westerfield, 88 Cal. 374, 378; 26 Pac. Eep. 206. The whole sub- ject-matter of dealing with the estates of deceased persons is one of statutory regulation: Estate of Strong, 119 Cal. 663,' 665; 51 Pac. Eep. 1078. In New Mexico, the jurisdiction of the probate court is confined to personal estates: Chaves v. Perea, 3 N. M. 71; 2 Pac. Eep. 73, 75. By statute, original jurisdiction in bastardy pro- ceedings was conferred upon the probate courts of Oklahoma, and said power was ratified by Congress: In re Comstock, 10 Okl. 299; 61 Pac. Eep. 921. 3. Probate courts as courts of record. In Oregon, the county court is to be regarded, in probate proceedings, as one of superior juris- diction, because it is a court of record, and derives its power from the constitution: Monastes v. Catlin, 6 Or. 119, 122; Tustin v. Gaunt, JURISDICTION OF COURTS. 297 4 Or. 305, 310; Russell v. Lewis, 3 Or. 380, 382; Gager v. Henry, 5 Saw. 237; Fed. Gas., No. 5,172; Holmes v. Oregon & C. B. R. Co., 6 Saw. 262; 5 Fed. Rep. 75. The probate powers of the county courts of Oregon are enlarged, limited, or varied by the statute, but not created by it: Ramp v. McDaniel, 12 Or. 108. In that state, the county courts, in acting as courts of probate, are courts of general jurisdiction: Gager v. Henry, 5 Saw. 237; Fed. Gas., No. 5,172; Holmes v. Oregon & C. E. R. Co., 7 Saw. 380, 9 Fed. Rep. 229; 6 Saw. 262, 5 Fed. Rep. 75. After the jurisdiction of the pro- bate court is once established, every intendment is in its favor, the same as in cases in courts of general jurisdiction: Glendenning v. McNutt, 1 Ida. 592, 594; Lucas v. Todd, 28 Cal. 182, 185; Irwin v. Scriber, 18 Cal. 499. The same presumption attaches as to the pro- ceedings of courts of general jurisdiction: Brodribb v. Tibbits, 63 Cal. 80; Irwin v. Scriber, 18 Cal. 499, 505. When the record re- cites the method adopted to acquire jurisdiction of the persons in- terested in the estate, it will not be presumed that something different was done: Pearson v. Pearson, 46 Cal. 609, 636. If the record is silent as to what was done, it will be presumed that what ought to have been done was not only done, but rightly done: Hahn v. Kelly, 34 Cal. 391, 407; 94 Am. Dec. 742. Under the Idaho constitution, probate courts are made courts of record: Clark v. Rossier, 10 Ida. 348; 78 Pac. Rep. 358; but they are courts of record only in matters of probate, settlement of estates of deceased persons, and the appointment of guardians. They are not courts of record in proceedings in civil and criminal actions: Dewey v. Schreiber Imp. Co., 12 Ida. 280; 85 Pac. Rep. 921. In other words, they have general jurisdiction of the " particular department of law allotted to them ": Dewey v. Schreiber Imp. Co., 12 Ida. 280; 85 Pac. Rep. 921, 922. The probate courts in Kansas are courts of record, and, while they have jurisdiction of particular classes of things only, such as the care of the estates of deceased persons, minors, and persons of unsound mind, yet they have general juris- diction of these things. Hence all presumptions should be in favor of the regularity of all the proceedings in a probate court, within its jurisdiction, and such proceedings should seldom be held to be void when attacked collaterally; never, indeed, except where it is shown affirmatively that the court had no jurisdiction: Higgins v.' Reed, 48 Kan. 272; 29 Pac. Eep. 389. 4. Jurisdictional facts. There are two jurisdictional facts that must exist to support administration in every case: 1. The death of the party; 2. His residence within the county at the time of his death. These two facts must be alleged in the petition for letters, and they must be true in point of fact: Haynes v. Meeks, 10 Cal. 110, 118; 70 Am. Dec. 703; Abel v. Love, 17 Cal. 234, 239; 298 PROBATE LAW AND PRACTICE. Estate of Harlan, 24 Cal.. 182, 189; 85 Am. Dee. 58. The residence of the party at the time of his death, and not the situation of the estate, is the test of jurisdiction: Estate of Harlan, 24 Cal. 182, 189; 85 Am. Dee. 58. While the residence of the decedent at the time of his death is the jurisdictional fact upon which the issuance of letters of administration must be based: Holmes v. Oregon & C. E. E. Co., 7 Saw. 380, 9 Fed. Eep. 229; 6 Saw. 262, 5 Fed. Eep. 75, yet the jurisdiction of the court may be disproved by showing the true place of residence of the deceased at the time of his death. A party is not estopped or concluded by the decision of the court proceeding without jurisdiction of the subject-matter, but may prove the want of jurisdiction in the court, in order to show that he is not concluded by its decision: Ewing v. Mallison, 65 Kan. 484; 70 Pae. Eep. 369. Eesidence is one of those jurisdictional facts which the court must determine from the evidence produced before it, and its determination is valid until set aside in some proper man- ner: Estate of Grifith, 84 Cal. 107, 110; 23 Pac. Eep. 528; 24 Pac. Eep. 381. The probate court of a county has no jurisdiction over the estate of a deceased resident of the state to appoint an executor or administrator, or to prove a wUl, unless the deceased was at the time of his death an inhabitant or resident of the county of such probate court: Ewing v. Mallison, 65 Kan. 484; 70 Pac. Eep. 369; Estate of Latour, 140 Cal. 414, 425; 73 Pac. Eep.. 1070; 74 Pac. Eep. 441. The supreme court will not, on appeal, re- view the conclusions of a trial court as to facts essential to its jurisdiction, concerning which such court was vested with the power to hear and determine, at the instance of a party who has ap- peared in that court in an action or proceeding, and has omitted to urge in such court, in any way, his objection, but has proceeded therein upon the theory that the court had jurisdiction: Estate of Latour, 140 Cal. 414, 425; 73 Pac. Eep. 1070; 74 Pac. Eep. 441. 5. Construction of statute. The laws of California not only recog- nize, but sedulously preserve, the distinction between foreign and domestic wills and the probate thereof. All domestic wUls must be proved in the county of which the decedent was a, resident at the time of his death. The state thus preserves its sovereignty and its jurisdiction over matters primarily belonging to it, and also preserves the rights of its other residents and citizens. All for- eign wills may be proved and allowed as provided in the sections of the code relating thereto. In the case of a domestic will, all questions touching the validity of the instrument are, and should be, primarily and exclusively cognizable by the courts of the state of the domicile. When a foreign will is offered for probate in that state, two questions are open as new and original questions for the determination of its own probate courts : 1. The suffi- JURISDICTION OF COUETS. 299 tienej of the proofs of foreign probate; and 2. The question of the residence of the deceased. And if, upon the question of resi- dence, it shall be determined that the deceased was in truth a resi- dent of that state, it follows, of necessity, that the proper state court has exclusive primary jurisdiction to admit the will to pro- bate, and will not admit it as a foreign will for ancillary pro- ceedings. It does not, of course, follow, that, because the probate court, under such circumstances, will not admit it as a foreign' will, it wiU refuse it probate altogether. It will grant it probate, the facts warranting, in proceedings under the section relating thereto for original probate: Estate of Clark, 148 Cal. 108, 114; 113 Am. St. Kep. 197; 82 Pac. Eep. 760; 1 L. E. A. (N. S.) 996; 7 Am. & Eng. Ann. Cas. 306. 6. Invoking, effect of, and loss of. While " the superior court is clothed with original jurisdiction over matters at probate," and provision is made that " a judge of the superior court, at any time, may make and issue all necessary orders or writs, and enforce the production of wills and the attendance of witnesses," yet it is not bound, of its own motion, to see that all necessary proceedings are taken, and witnesses called to probate every document filed, which is claimed to be a will. It is safe to assume that parties interested as devisees and legatees will always take the necessary steps and provide necessary funds to procure the attendance of witnesses to establish the validity of a will, 'if it is worthy of probate: Henry V. Superior Court, 93 Cal. 569, 573; 29 Pac. Rep. 230. The old pro- bate court did not lose its jurisdiction over a subject of which it had taken cognizance by sending an issue of fact from the probate to the old district court: Pond v. Pond, 10 Cal. 495, 500. An in- sufficient showing made for the appointment of a special administra- tor is only an irregularity, and does not affect the court',s jurisdic- tion: State V. Ayres, 17 Wash. 127; 49 Pac. Eep. 226. The probate court ordinarily loses all jurisdiction over the property of the es- tate after the entry of the decree of distribution, except to compel delivery. Upon this principle, it has therefore been held that a writ of prohibition will lie to prevent partition, in probate pro- ceedings, as between heirs and strangers, of interests held in com- mon: Buckley v. Superior Court, 102 Cal. 6, 10; 36 Pac. Eep. 360; 41 Am. St. Eep. 135. 7. Exercise of jurisdiction. Effect of assuming, and refusing to exercise. Prohibition. After a probate court has acquired jurisdic- tion of the subject-matter, all subsequent proceedings are nothing but the exercise of jurisdiction over that subject-matter; and after it has once acquired jurisdiction of a person, any other movement affecting the person must be the exercise of jurisdiction as to that 300 PROBATE LAW AND PRACTICE. person; and when jurisdiction is once acquired of both the subject- matter and the person, then any subsequent movement of the court must be the exercise of jurisdiction as to both: Haynes v. Meeks, 10 Cal. 110, 118; 70 Am. Dec. 703. The county court of Colorado has power to hear and determine whether an instrument proposed is the last will and testament of the testator. In adjudicating this question, it has power to determine all pertinent facts. It has the power to determine whether or not the will is a forgery, and whether or not it was executed with the formalities essential to the validity of a will. This would include whether or not it was properly attested. An error committed in deciding upon any of these ques- tions would be an error, not in assuming jurisdiction, but in the exercise of jurisdiction: Camplin v. Jackson, 34 Col. 447; 83 Pac. Bep. 1017, 1018. After the court has assumed jurisdiction of an estate, in a proper case, it is without power to dispense summarily with its further administration because the heirs have consented that there shall be no administration of certain real property be- longing to the decedent, who died without debts, or other estate, and refused to proceed further therein. It is the duty of the court, in such a case, to appoint an administrator and complete the ad- ministration: Estate of Strong, 119 Cal. 663, 667; 51 Pac. Eep. 1078. Where letters of administration have been granted in one county to a public administrator, he has a sufBcient beneficial interest in the estate to entitle him to a writ of prohibition to prevent fur- ther proceedings in the same estate, under a subsequent applica- tion in another county: Dungan v. Superior Court, 149 Cal. 98, 104; 117 Am. St. Eep. 119; 84 Pac. Eep. 767. 8. Original and concurrent jurisdiction. Under the provisions of the constitution of Idaho, probate courts are given original juris- diction in, all matters of probate, settlement of estates of deceased persons, and the appointment of guardians, and also jurisdiction to hear and determine all civil cases wherein the debt or damage claimed does not exceed the sum of five hundred dollars, exclusive of interest, and concurrent jurisdiction with justices of the peace in criminal actions: Dewey v. Schreiber Imp. Co., 12 Ida. 280; 85 Pac. Eep. 921; Clark v. Eossier, 10 Ida. 348; 78 Pac. Eep. 358. In California, there is no concurrent jurisdiction as to probate mat- ters: Eosenberg v. Frank, 58 Cal. 387, 419. The courts of a state may, and do, grant original probate upon wills of non-residents, who leave property within that state, but this exercise of original jurisdiction over the estate of non-residents affects only the prop- erty within the state. The judgment admitting the will to probate is valid in all other states only as to the property within the jurisdiction of the court pronouncing the judgment. It has no extraterritorial force, establishes nothing beyond that, and does not JUEISDICTION OF COURTS. 301 dippense with nor abrogate the formalities and proofs which may be exacted by other jurisdictions in which the deceased also left property subject to their laws of administration: Estate of Clark, 148 Cal. 108, 112; 113 Am. St. Eep. 197; 82 Pac. Bep. 760; 1 L. E. A. (N. S.) 996; 7 Am. & Eng. Ann. Gas. 306. 9. Of particular courts. (1) District courts of Arizona. In Arizona, the jurisdiction of the district courts is purely appellate. They have no power to appoint administrators of the estates of deceased persons: Terri- tory V. Mix, 1 Ariz. 52; Territory v. Forrest, 1 Ariz. 49. (2) District courts of Kansas. In Kansas, where a fraudulent claim is presented to the probate court against the estate of a de- ceased person, and the administrator and claimant conspire to- gether to secure its allowance, and land is sold to satisfy the de- mand, and bid in by the claimant, the sale approved, and the administrator discharged, the district court has jurisdiction of an action to set aside the proceedings and to annul the deed: McAdow V. Boten, 67 Kan. 136; 72 Pac. Eep. 529. (3) District courts of Montana. A district court of Montana, sitting as a court of probate, has only such powers as are ex- pressly conferred upon it by statute, and such as are necessarily implied in order to carry out those expressly conferred, and in the exercise of its jurisdiction it is limited by the provisions of the statute: In re Tuohy's Estate, 33 Mont. 230; 83 Pac. Eep. 486, 489. (4) Superior courts of Washington. The constitution of the state of Washington does not make the superior courts probate courts. On the contrary, it vests the superior courts with jurisdiction " of all matters of probate." Hence the probate court is not shorn of its general powers, simply because the matter before it may be ■ one which was cognizable formerly in a court of probate. It pos- sesses in every ease, and at all times, its powers as a court of superior and general jurisdiction, and among these is the power to hear and determine the question to whom a bequest made by a decedent rightfully belongs. A statute, therefore, can neither add to nor can it take away the power, and it is immaterial to inquire whether or not one conferring such a power is in existence: Ee- formed Presbyterian Church v. McMillan, 31 Wash. 643; 72 Pac. Eep. 502, 503. (5) Superior courts of California. The jurisdiction of the old probate courts did not devest the old district courts of California of their general jurisdiction as courts of chancery, over actions for 302 PROBATE LAW AND PEACTICB. a settlement of partnership affairs: Griggs v. Clark, 23 Cal. 427, 429; and the district court had jurisdiction of an action to construe the will of a testator after the same had been admitted to probate: Rosenberg v. Frank, 58 Cal. 387, 404. The jurisdiction of the su- perior courts of the state of California in matters of probate is derived from the constitution. The court is not therefore, while sitting in probate, a statutory tribunal, and does not derive its power from the act of the legislature. Nor are probate proceed- ings classed by the constitution as special proceedings. The admin- istration of an estate is a proceeding in rem, which is not, in the technical sense, such a special proceeding, unknown to the framework of the common law, as will change the presumptions which attach to the action of the court, making it, pro hac vice, a court of inferior and limited jurisdiction: Burris v. Kennedy, 108 Cal. 331, 336,; 41 Pac. Eep. 458. The probate jurisdiction of the superior court of the state of California is separate and distinct from its jurisdiction in ordinary civU actions: Estate of AUgier, 65 Cal. 228; 3 Pae. Eep. 849. Such court, while sitting as a court of probate, has only such powers as are given to it by the statute, and such incidental powers as pertain to all courts for the purposes of enabling them to exercise the jurisdiction which is conferred upon them. Although it is a court of general jurisdiction, yet, in the exercise of these powers, its jurisdiction is limited and special, and whenever its acts are shown to have been in excess of the power conferred upon it, and without the limitation of this special jurisdiction, such acts are nugatory, and have no binding effect, even upon those who have invoked its authority or submitted to its decision: Smith v. Westerfield, 88 Cal. 374, 378; 26 Pac. Eep. 206. Probate proceedings being purely statutory, and therefore spe- cial in their nature, the superior court, although a court of general jurisdiction, is circumscribed in this class of proceedings by the provision of the statute conferring such jurisdiction, and may not competently proceed in a manner essentially different from that provided: Estate of Strong, 119 Cal. 663, 666; 51 Pac. Eep. 1078. The superior court, while sitting in matters of probate, is the same as it is while sitting in cases of equity, in cases of law, or in special proceedings; and, when it has jurisdiction of the subject- matter of a case falling within either of these classes, it has power to hear and determine, in the mode provided by law, all questions of law and fact, the determination of which is ancillary to a proper judgment in such cases. This is an incidental power pertaining to all courts, for the purpose of enabling them to exer- cise the jurisdiction which is conferred upon them: Estate of Bur- ton, 93 Cal. 459, 463; 29 Pac. Eep. 36. No distinct " court of pro- bate " has been created or recognized by the present constitution of California. The constitution has created superior courts, and has JUEISDICTION OP COURTS. 303 given to them original jurisdiction of the subject-matter of various classes of actions and proceedings, more or less distinct from each other; among which are " all actions at law which involve the title or possession of real property," and " all such special cases and proceedings as are not otherwise provided for," and " all matters of probate": Estate of Burton, 93 Cal. 459, 462; 29 Pac. Rep. 36. Under the present constitution of the state of California, the su- perior courts of that state have jurisdiction both of matters in equity and of probate. They are the same superior courts for all purposes, where they have jurisdiction: Pennie v. Eoaeh, 94 Cal. 515, 521; 29 Pac. Rep. 956; 30 Pae. Rep. 106. But the superior court, sitting in probate, has jurisdiction to hear and determine a defense of fraud raised by a widow in her answer to a petition contesting her right to appointment as administratrix of the estate: Estate of Warner (Cal. App.), 92 Pac. Rep. 191, 194. The su- perior court, sitting as a court of equity, has power to hear and determine, in proper cases, questions relating to the rights and duties of executors and beneficiaries under wills which have been admitted to probate: Williams v. Williams, 73 Cal. 99, 104; 14 Pac. Rep. 394. But the superior court, as a superior court, has no power to set aside land, sought to be recovered in an action of ejectment, as a homestead for the benefit of minor heirs of the intestate. That matter comes within the domain of the superior court sitting as a court of probate: Richards v. Wetmore, 66 Cal. 365, 366; 5 Pac. Rep. 620. It may be said that, at the present time, in California, there is no probate court, in the sense in which that term has been used in the earlier volumes of the California reports. Under the fundamental law, it is a probate jurisdiction vested in the superior court. It may be said that the probate court is gone, but that the probate jurisdiction remains. And that jurisdiction is now vested in the same court that exercises jurisdiction in cases of law and equity. Tet the probate jurisdiction of the superior court is dif- ferent from its law and equity jurisdiction in this: it is essentially a jurisdiction under the control of the state legislature. That law- making power may enlarge it or may restrict it. The character and extent of the jurisdiction is not only a matter under legisla- tive control alone, but the procedure by which that jurisdiction may be invoked and rights thereunder adjudicated is expressly laid down by statute; and that procedure must be followed, or relief under that jurisdiction cannot be secured. While the superior court in that state exercises both equity and probate powers, still, the procedure to be followed in seeking relief within those two juris- dictions is widely varied. And if the probate procedure laid down by the code is followed, then relief under probate jurisdiction only can be granted. In such a case, general equity relief cannot ba secured: Estate of Davis, 136 Cal. 590, 597; 69 Pae. Bep. 412. 304 PEOBATB LAW AND PRACTICE. (6) County courts of Colorado. In Colorado, county courts, in matters of probate business, relating to the settlement of the estates of deceased persons, are invested with extensive and unlimited original jurisdiction, legal and equitable, and with large discretion- ary powers. The power to regulate and to control the settlement of such estates is expressly conferred upon them: Fleming v. Kelly, 18 Col. App. 23; 69 Pac. Eep. 272. 10. Exclusive and conflicting jurisdiction. (1) Exclusive jurisdiction. Probate courts have exclusive juris- diction of the accounts of executors and administrators and the. final distribution of the estates of decedents: Auguisola v. Arnaz, 51 Cal. 435, 439. Probate courts do not have exclusive jurisdiction in cases where equities are involved: Garces y Perea v. Barela, 6 N. M. 239; 27 Pac. Rep. 507; Ferris v. Higley, 20 Wall. (U. 8.) 375. The superior court of the state of California, which has charge of the administration of decedents' estates, has exclusive jurisdic- tion, under the present probate system, of all questions relating to the settlement and distribution of such estates; and it may, in sitting in matters of probate, exercise all equity powers necessary for a complete administration without resort to a court of equity: Toland v. Earl, 129 Cal. 148, 152, 153; 79 Am. St. Eep. 100; 61 Pae. Eep. 914; Estate of Burton, 93 Cal. 459, 463; 29 Pae. Eep. 36. A court which has probate jurisdiction over the estate of a decedent has exclusive jurisdiction over the question of distribution thereof, and to determine all matters incidental thereto. Hence the court, in an action to foreclose the right of redemption, has no jurisdic- tion to determine any matter involved in the distribution of the estate: Estate of Freud, 134 Cal. 333, 335; 66 Pac. Eep. 476. If the estate of the deceased is in more than one county, he having died out of the state, the probate court of the county in which application is first made for letters of administration has exclusive jurisdiction of the settlement of the estate: Territory v. Klee, 1 Wash. 183; 23 Pac. Eep. 417, 418. The jurisdiction to prove wills and to grant letters testamentary is exclusively in the superior court of the county of which decedent was a resident at the time of his death, but it. is for the court to which the petition is ad- dressed to determine, from the evidence introduced before it, whether or not the deceased did, as a matter of fact, reside in the county. Its finding in the matter is conclusive on the question of jurisdic- tion, except upon appeal, and cannot be collaterally attacked, what- ever the fact may be as to residence: Estate of Latour, 140 Cal. 414, 425; 73 Pac. Eep. 1070; 74 Pac. Eep. 441; Estate of GrifSth, 84 Cal. 107, 110; 23 Pac. Eep. 528; 24 Pae. Eep. 381. The power to appoint administrators belongs exclusively to the probate courts: Territory v. Mix, 1 Ariz. 52. Probate courts do not have exclusive JURISDICTION OP COURTS. 30& original jurisdiction over the persons of minors and of their es- tates. Courts of equity have complete jurisdiction over such mat- ters: Wilson V. Roach," 4 Cal. 362, 367. In Utah, the probate courts are vested with exclusive original jurisdiction of ^11 matters per- taining to the settlement of estates of deceased persons, and while the district court, under its general equity powers, may entertain a suit for the construction of a will, yet it cannot execute it: Allen V. Barnes, 5 Utah, 100; 12 Pac. Eep. 912. (2) County courts of Oregon. In Oregon, the county court has exclusive jurisdiction, in the first instance, to direct and control the conduct, and to settle the accounts, of executors, administrators, and guardians, and this includes the power to inquire into a case of devastavit, and to charge the delinquent with the amount thereof: Steele v. Holladay, 20 Or. 70; 25 Pac. Eep. 69. It has exclusive juris- diction to grant and revoke letters testamentary, etc.: Eamp v. McDaniel, 12 Or. 108; but it does not have exclusive jurisdic- tion of an action between the administrator of a partnership estftto and the administrator of an individual to determine the title to certain property, although such administrators are under the control of the county court; but such action is within the jurisdiction of the circuit court. The functions of the county court, as respects ad- ministrators and executors, are limited to the control of the trans- mission and disposition of property upon the death of the owner, and it cannot adjudicate upon collateral matters. The right of title of the decedent to property claimed by the administrator, as against third persons, or by third persons against him, must, if an adjudication become necessary, be tried in courts of ordinary jurisdiction. He is entitled to the possession of the property of his decedent, but, if it is in possession of some person who re- fuses to surrender to him, the county court cannot aid him in obtaining such possession. It may call him to account for not doing so, but he must seek his remedy in some other court: Gard- ner V. Gillihan, 20 Or. 598; 27 Pac. Eep. 220. (3) Conflicting jurisdiction. A superior court of the state of California, in taking jurisdiction over an administration for the pur- pose of appointing a special administrator, does not thereby secure jurisdiction over the estate of the deceased for the purpose of ap- pointing a general administrator; and it necessarily follows that such court should give way, and allow the superior court of another county to conduct the further administration of the estate, where such last-named court has first acquired jurisdiction of the estate for purposes of general administration. The proceedings are not necessarily to be dismissed, but should stand in abeyance until a final judgment has been entered in the superior court last named. Probate — 20 306 PEOBATE LAW AND PEACTICE. holding that the said court has or has not jurisdiction over the administration of the estate: Estate of Damke, 133 Cal. 430; C5 Pae. Eep. 889; 138 Cal. 433; 65 Pac. Eep. 888. In California, the superior court of the county in which the petition for letters of administration is first filed has exclusive jurisdiction to determine the question as to the residence of the decedent, and the courts of other counties must abide the determination of that court, which is reviewable only upon appeal: Estate of Latour, 140 Cal. 414, 425; 73 Pac. Eep. 1070; 74 Pac. Eep. 441; Dungan v. Superior Court, 149 Cal. 98, 103; 117 Am. St. Eep. 119; 84 Pac. Rep. 767. The same rule applies to the hearing and determination of the question of the residence of a minor, the need of a guardian, and the propriety of appointing a designated person as such: Guardian- ship of Danneker, 67 Cal. 643, 645; 8 Pae. Eep. 514. That pro- vision of the constitution of California which confers jurisdiction " in all matters of probate " upon the superior court does not mean that all superior courts in the state shall have concurrent juris- diction in every particular probate matter. The legislature un- doubtedly has the right to prescribe, by general laws, the rules which shall obtain in determining which of the many superior courts shall exercise the constitutionally conferred jurisdiction in any particular estate; and the county containing a portion of the decedent's es- tate, and in which application is first made, is the one which the legislature has declared to be the one which shall have exclusive jurisdiction of the settlement of the estate: Dungan v. Superior Court, 149 Cal. 98; 84 Pac. Eep. 767, 769. Between courts of co-equal authority, that one which first obtains jurisdiction will be permitted to pursue it to the end, to the exclusion of all others, and it will not permit its jurisdiction to be impaired or subverted by resort to some other tribunal: Ewing v. Mallison, 65 Kan. 484; 70 Pac. Eep. 369. Section 1294 of the Code of Civil Procedure of California fixes the place of jurisdiction for all grants of original probate, while section 1322 of that code does the same for grants of ancillary probate of authenticated copies of wills proved and probated in foreign jurisdictions. These laws mean that the will of a resident of the state of California must be proved originally as a domestic will in the county of his residence, and that, so far as the state of California is concerned, it cannot be primarily proved elsewhere, and brought to that state for purposes of sec- ondary and ancillary administration: Estate of Clark, 148 Cal. 108, 111; 82 Pac. Eep. 760; 113 Am. St. Eep. 197; 1 L. E. A. (N. S.) 996; 7 Am. & Eng. Ann. Cas. 306. 11. Exists in what cases. The probate court does not have juris- diction of all matters relating to the estates of deceased persons, but only so far as conferred by statute: Bush v. Lindsey, 44 Cal. 121, JURISDICTION OF COURTS. 307 125; Haynes v. Meeks, 10 Cal. 110; 70 Am. Dec. 703; Grimes's Es- tate V. Norris, 6 Cal. 621; 65 Am. Dec. 545. If the probate court of the county of which the decedent was a resident at the time of his death alone has jurisdiction of his estate, it follows that if, after the death of the intestate, that portion of the county in which he resided at the time of his death is erected into a new county, or is attached to another county, the probate court of the old county has jurisdiction: Estate of Harlan, 24 Cal. 182, 189; 85 Am. Dec. 58. Though a probate court is without jurisdiction to set aside an order discharging an administrator of an unadministered estate, it has power, upon a proper petition, to order an adminis- tration and distribution of such estate: Otero v. Otero (Ariz.), 90 Pac. Eep. 601, 603. In Colorado, the county court, in all matters pertaining to probate business, has as ample powers and as full jurisdiction with respect thereto as have the district courts of that state over matters within their jurisdiction. Hence if a judgment is tendered for classification as a valid judgment, the county court, sitting for probate business when such judgment is tendered for classification as a claim against the estate, has power to determine the defense that the judgment was void, because rendered without jurisdiction of the defendant, the administratrix, and, if such judg- ment is established, to decline to classify it as a valid claim: Symes v. People, 17 Col. App. 466; 69 Pac. Eep. 312, 313. Pro- bate courts have the undoubted right to pass upon and to allow claims against the estates of deceased persons; but it is doubtful whether they have authority, or whether the legislature, under the original act of New Mexico, could confer upon such courts the authority to entertain actions at law to recover judgments against administrators and to enforce the collection thereof by their own executions: Perea v. De Gallegos, 3 N. M. 204, 208. In the state of Washington, the probate court has jurisdiction to grant adminis- tration upon a decedent's estate, if the only property within that jurisdiction belonging to the decedent consists of real estate, and there are no creditors, and the estate is in course of administration in another state: Hanford v. Davies, 1 Wash. 476; 25 Pac. Eep. 329. In that state the probate court acquires jurisdiction of the estate for the purpose of administration by the appointment and qualifica- tion of the administrator: Ackerson v. Orchard, 7 Wash. 377; 35 Pac. Eep. 605. When a question arises in the administration of an estate as to whether the property shall be inventoried as a part of the estate or not, the probate court has jurisdiction to hear evidence sufficient to determine whether the property in question belongs to the estate, or whether the estate has any interest therein, or has reasonable claim thereto, which claim may become an asset of the estate; not for the purpose of judicially determining the title of any property claimed by any third person, but to determine the 30Sf PROBATE LAW AND PRACTICE. good faith of the claim: In re Belt's Estate, 29 Wash. 535; 70 Pac, Bep. 74, 76. 12. In particular matters. The probate court is required to direct administrators to pay all taxes which have accrued against the estate in their hands, and is forbidden to distribute the property of the estate among the heirs and devisees until all taxes are paid: People V. Olvera, 43 Cal. 492, 494. An act of a legislature of the state of Idaho, extending the jurisdiction of the probate court to try and determine actions to enforce mechanics' and laborers' liens and mortgages and other liens upon real property, has been held unconstitutional and void: Dewey v. Sehreiber Imp. Co., 12 Ida. 280; 85 Pac. Eep. 921. The jurisdiction of the court of probate to determine the interests of grantees of heirs or devisees depends upon the statute. In the absence of statutory authority, such court would have no power to adjudicate such a question. But the statute may confer such power: Snyder v. Murdock, 26 Utah, 233; 73 Pac. Eep. 22, 23. In Colorado, the county court is vested with authority to hear and determine claims against the estate of a deceased per- son; and one of several sureties on an obligation, who discharges the debt, may enforce contribution from the estate of a deceased co-surety, without going into a court of equity, to have the amount due from the estate determined; but he can recover from each of his co-sureties only the aliquot portion of the whole amount paid, calculated upon the basis of the number of sureties, unless it appears that some of them are insolvent, in which event he may recover from each of the solvent sureties the moiety of the whole debt, having regard only to the number solvent: McAllister v. Irwin's Estate, 31 Col. 253; 73 Pac. Kep. 47. A decree for the payment of money in probate proceedings cannot be enforced as for a contempt; the proper process is an execution: Rostel v. Morat, 19 Or. 181; 23 Pac. Eep. 900. In Oklahoma, the probate court has jurisdiction of an action in replevin against a sheriff to recover personal property levied on under an execution against the prop- erty of another, where the value of the property does not exceed one thousand dollars: Walters v. Eatliff, 10 Okl. 262; 61 Pac. Eep. 1070. In that jurisdiction, actions for the recovery of specific per- sonal property in the probate courts are governed by the procedure applicable to courts of justices of the peace, where the value of the property sought to be recovered is less than one hundred dol- lars: First Nat. Bank v. Hesser, 14 Okl. 115; 77 Pac. Eep. 36. If an attachment is properly issued after filing with the court a sufficient affidavit and bond, and property is taken thereunder, the lien of such attachment is not lost by failure on the part of the probate court or justice of the peace to make proper docket entries of the issuance of such order of attachment: First Nat. Bank v. JURISDICTION OF COURTS. 309 Hesser, 14 Okl. 115; 77 Pac. Eep. 36. In proper cases, the superior court of the state of California has jurisdiction to hear and de- termine questions relating to the rights and duties of executors and beneficiaries under wills which have been admitted to probate: Williams v. Williams, 73 Cal. 99, 104; 14 Pac. Eep. 394. It is a question solely for the consideration of the probate court, whether an attorney shall be appointed to represent absent or minor heirs, and if so appointed, the amount of compensation to be allowed to him: Dougherty v. Bartlett, 100 Cal. 496, 499; 35 Pac. Eep. 431. Probate courts in Kansas have jurisdiction of the allowance of claims against estates. No provision is made whereby the heirs, or those holding under them, are made parties to such procedure, and no right is given by statute to such heirs to appeal from the allow- ance of any claim by the probate court. In fact, they are wholly strangers to that proceeding, unless it can be said that they are represented by the administrator: Black v. Elliott, 63 Kan. 211; 65 Pac. Eep. 215. 13. To set aside its own decrees. A probate court has power to set aside its order, made out of court and without notice, and no notice or motion to set it aside is necessary: Estate of Sullenberger, 72 Cal. 549, 552; 14 Pac. Eep. 513. Section 473 of the Code of Civil Procedure of California, relative to relieving a party from a judgment, order, or proceeding taken against him " through his mistake, inadvertence, surprise, or excusable neglect," is applicable to probate matters, and the court has jurisdiction within six months to vacate an order made by it, on motion, based upon the ground of such inadvertence, surprise, or excusable neglect: Levy v. Su- perior Court, 139 Cal. 590, 591; 73 Pac. Eep. 417; Cahill v. Supe- rior Court, 145 Cal. 42, 44; 78 Pac. Eep. 467. After a decree of distribution and discharge, and after the time specified by statute in which to seek relief from a judgment on the ground of fraud, surprise, or excusable neglect, or mistake, a probate court has no jurisdiction to set aside the decree for fraud, or because the court had been imposed upon by false testimony; but, in such cases, courts of equity have jurisdiction to afford proper relief: Estate of Hudson, 63 Cal. 454, 457. 14. No jurisdiction when. (1) In general. A probate court has no jurisdiction to allow a claim against a decedent's estate for counsel fees incurred by the claimant after the death of the testator, and at a time when he was not a personal representative of the estate: In re Carrier's Estate, 19 Col. App. 245; 74 Pac. Eep. 340, 341. The district court of Kansas has no jurisdiction of an appeal to that court from an order of the probate court refusing, upon application, to revoke letters testamentary or of administration: Graves v. Bond, 70 Kan. 310 PROBATE LAW AND PRACTICE. 464; 78 Pao. Eep. 851. The old probate courts of Montana had no power or authority to entertain a petition involving the con- struction of a will: Chad wick v. Chadwick, 6 Mont. 566; 13 Pac. Eep. 385, 388. In Idaho, the jurisdiction of the probate court in civil cases is limited to actions at law, where the debt or damage, exclusive of interest, does not exceed five hundred dollars: Dewey V. Sohreiber Imp. Co., 12 Ida. 280; 85 Pac. Eep. 921, 923. A pro- bate court has no jurisdiction to receive, or in any other way to act upon, an account presented by an executor of an executor against the estate of the deceased executor's testator. This is a proper case for the exercise of jurisdiction in equity: Witzler v. Pitch, 52 Cal. 638, 643; Bush v. Lindsey, 44 Cal. 121. In Colorado, the district court is not authorized to decree that a judgment ren- dered by it against an administrator shall be allowed and paid as a claim of a designated class, as this is a usurpation of the province of the county court: Hotchkiss v. First Nat. Bank (Col.), 85 Pac. Eep. 1007, 1008. An order of the probate court, requiring an executor, after he has filed his final account, to pay the moneys in his hands to the county treasurer, to be placed to the credit of heirs and devisees of the testator, is without authority of law and void: Estate of McMahon, 19 Nev. 241; 8 Pac. Eep. 797. A probate court has no jurisdiction to enter an order requiring a decedent's widow to pay a designated sum of money to one who applies for letters of administration on the decedent's estate: Leach v. Misters, 13 Wyo. 239; 79 Pac. Eep. 28, 29. A probate court has no power to make an order authorizing the assignment, by an administrator, of a bond of indemnity given to the decedent in his lifetime as sherifE: McDermott v. Mitchell, 53 Cal. 616, 618. It has no power to au- thorize a special administrator to defray the expenses of a con- troversy in a probate proceeding, unless expressly authorized to do so by statute: Henry v. Superior Court, 93 Cal. 569, 571; 29 Pac. Eep. 230. A probate court has no jurisdiction, in any case, to make partition, in probate proceedings, among the heirs of a de- cedent as to interests held in common with strangers, unless the petition therefor is filed before the entry of the final decree of dis- tribution. The rights of such parties should be settled by a suit for partition, in which all persons having any interest in the lands may be made parties; and a writ of prohibition will lie to restrain the probate court from making partition: Buckley v. Superior Court, 102 Cal. 6, 10; 36 Pac. Eep. 360; 41 Am. St. Eep. 135. The probate court is not a court of equity, and it has no power to foreclose a mortgage: Meyers v. Farquharson, 46 Cal. 190, 200. (2) -In county In -which estate has not been " devised." Under the Oregon statute, where the testator had not "devised" any real property in a designated county, the county court of that county does not have jurisdiction of the estate, and has no power to JURISDICTION OF COURTS. 311 appoint an administrator; and, this fact being apparent from an inspection of the record, such court may properly set aside its order appointing an administrator: Henkle v. Slate, 40 Or. 349; 68 Pac. Eep. 399, 400. The county court, empowered to admit the will of a testator to probate, being authorized to grant adminis- tration of the estate of an intestate, the statute prescribing the county in which the will must be probated necessarily controls in determining the particular court possessing the requisite power to grant administration of the estate of an intestate: Henkle v. Slate, 40 Or. 349; 68 Pac. Eep. 399. (3) Over proceeds of life-insurance policy. A probate court has no juxisdietion over a contest involving the proceeds of a life-in- surance policy, made payable, by its terms, to the widow and minor shildren of the deceased: Heydenfeldt v. Jacobs, 107 Gal. 373, 378; 40 Pac. Eep. 492. BEFEBENCES. Money paid on an insurance policy is not an asset of the estate: See note § 378, head-line 1, subd. 6, post. (4) To foreclose mortgage. A probate court has no jurisdiction to foreclose a mortgage against the estate of a decedent. Such a matter is one purely of equitable cognizance: Willis v. Farley, 24 Cal. 490, 499; Harp v. Calahan, 46 Cal. 222, 231. (5) To order property to escheat when. In Washington, where the estate of the deceased is in more than one county, he having died outside of that state, the probate court of the county in which application is first made for letters of administration has exclusive jurisdiction of the settlement of the estate; and where one court has acquired jurisdiction of the estate, another court of that state is not authorized to assume jurisdiction of the estate, and to order that it escheat to the state: Territory v. Klee, 1 Wash. 183; 23 Pac. Eep. 417, 418. (6) Over timber-culture claimant's claim. The county court of Oregon does not have jurisdiction of a timber- culture claimant's claim, where such claimant died before performance, by him, of the conditions precedent to obtaining title from the government, because there was, at such time, no interest which could be devised or which would descend or pass to the claimant's heirs or personal representatives; and the proceedings of the court in assuming juris- diction over the claim and authorizing its sale are absolutely void for want of jurisdiction of the subject-matter, as the claim at that time belonged to the heirs in their own right: Haun v. Martin (Or.), 86 Pac. Eep. 371, 373. 312 PEOBATE LAW AND PEACTICE. (7) To appropriate share of heir or devisee to payment of his debts. While a probate court has power to pay claims against the estate, and to distribute the remainder among heirs and devisees, or to direct the administrator to do so, it has no power to appro- priate the share of an heir or of a devisee to the payment of his debts. Hence if one of the devisees is confined in the state prison for a term less than life, such devisee is not dead in law, although his civil rights in some matters are suspended, and the probate court has no power to appropriate his share of an estate to the payment of his debt, although such debt is in judgment. The probate court may pay the debts of the dead, but not of the living: Estate of Nerac, 35 Cal. 392, 397; 95 Am. Dee. 1011. (8) Where deceased was a non-resident. The probate court of a county in Kansas has no jurisdiction over the estate of a deceased resident of that state, to appoint an executor or administrator, or to prove a will, unless the deceased was, at the time of his death, an inhabitant or a resident of the county of such probate court: Ewing v. Mallison, 65 Kan. 480; 70 Pac. Eep. 369, 371. Where a person dies intestate, who was not a resident or inhabitant of the state at the time of his death, and who left no estate within the state to be administered, a probate court of such state has no jurisdiction to issue letters of administration on the estate of such intestate; and where letters are issued under such circumstances, the act of the court in doing so is utterly null and void: Mallory v. Burlington etc. B. E. Co., 53 Kan. 557; 36 Pac. Eep. 1059. (9) Of body of deceased. The body of one whose estate is in probate unquestionably forms no part of the property of that estate. The individual has a sufficient proprietary interest in his body after his death to be able to make a valid and binding testamentary dis- position of the same. The court in probate, and the personal rep- resentatives, acquire jurisdiction from the last testament to see that its provisions in this regard, as in all others, are duly executed; but, where the will is silent, the court in probate has no such power. In such a ease neither the court in probate nor the per- sonal representative has any right to control the manner of dis- position of the remains, nor to dictate the place of interment. The proper expenses of such disposition may well be a charge against the estate, but the duty and right of burial are quite different things from auditing or paying the expenses of such burial: O'Donnell v. Slack, 123 Cal. 285, 288, 290; 55 Pae. Bep. 906; 43 L. E. A. 388. BEFEBENCES. Injunctive relief as to cemetery property, burials, or removal of remains: See note 3 L. B. A. (N. 8.) 481-495. JURISDICTION OP COURTS. 313 (10) To administer a living person's estate. A probate court has no power to administer upon the estate of a living person. Such administration is totally void: Stevenson v. Superior Court, 62 Cal. 60, 64; Fay v. Costa, 2 Cal. App. 241; 83 Pac. Eep. 275; Scott v. McNeal, 154 XJ. S. 34; 38 L. ed. 896. A court has power to right an injury done in an effort to administer upon the estate of a living person, and may declare the grant of administration in all subsequent proceedings in such case void; but if the matter is a probate proceeding, where the administrator was served with a citation only in the matter of the estate, which does not require him to answer, and which did not notify him that judgment would go against him for want of an answer, the court exceeds its juris- diction in directing the administrator to pay to the owner of the estate a designated sum of money and costs, and in directing its clerk to issue execution for that sum. Such an order will be an- nulled and vacated on a writ of review: Costa v. Superior Court, 137 Cal. 79, 82; 69 Pac. Eep. 840. REFERENCES. Executor or administrator of estate of a living person: See note 30 Am. Bep. 748-752. Eight to and effect of administration on the estate of a person presumed to be dead: See notes 3 Am. & Eng. Ann. Cas. 1126; 7 Am. & Eng. Ann. Gas. 881. Power to administer on estate of living person: See note § 378, head-line 1, subd. 1, post. (11) To adjust disputed rights generally. The probate court has no jurisdiction, save in certain excepted instances, to determine disputes between the heirs or representatives of the deceased and third persons: Theller v. Such, 57 Cal. 447, 459; In re Singleton's Estate, 26 Nev. 106; 64 Pac. Eep. 513.- It has no jurisdiction of an action brought by attorneys to recover on a contract with a legatee for the collection of legacies, although the controversy concerns a fund which is in the possession of the court, acting in its probate capacity, and notwithstanding the fact that such court has power to distribute the fund as between the parties: In re Gorkow's Es- tate, 28 Wash. 65; 68 Pac. Eep. 174, 175. While probate courts have all the powers of a court of equity in the settlement of estates, the conflicting interests of heirs or lienors, no matter what their nature or origin, can only be determined in an appropriate proceeding under proper pleadings: Estate of Heeney, 3 Cal. App. 548; 86 Pac. Eep. 842, 844. Probate courts are without jurisdic- tion to determine successive claims of title to property as between an estate and a stranger: Caron v. Old Eeliable Gold Min. Co., 21 N. M. 211- 78 Pac. Eep. 63. Under its probate jurisdiction, the court cannot bring before it strangers to the estate for the pur- pose of adjusting their claims to property held by the executrix or 314 PEOBATE LAW AND PRACTICE. administrator, or for the purpose of determining their rights to the proceeds of a sale derived under those for whose benefit the sale was ordered: Curtis v. Schell, 129 Gal. 208, 221; 79 Am. St. Eep. 107; 61 Pac. Bep. 951. A probate court has no power to enforce the payment of a debt by commitment as for a contempt: In re Wolford, 10 Kan. App. 283; 62 Pae. Bep. 731. It has no jurisdic- tion to determine the right to real estate as between the adminis- trator and the decedent's husband, who asserts an adverse claim: Stewart v. Lohr, 1 Wash. 341; 25 Pae. Eep. 457. It has no power to strike from the inventory property listed by the administrator, where there is a dispute between him and another as to the pos- session thereof: In re Bolander's Estate, 38 Or. 490; 63 Pae. Eep. 689, (12) To try title. The probate court is without jurisdiction to try title to property as between the representatives of an estate and strangers thereto: Stewart v. Lohr, 1 Wash. 341; 25 Pac. Eep. 457; In re Wolford, 10 Kan. App. 283; 62 Pac. Eep. 731; In re Bolander's Estate, 38 Or. 490; 63 Pac. Eep. 689; Falke v. Terry, 32 Col. 85; 75 Pae. Eep. 425, 427. When a probate court orders a sale of the land of a third person to pay the debts of a decedent, such order is vojd for want of jurisdiction over the property. As such court has no power to sell the lands" of another, and no power to pass upon the question of title, the order is void, and would be void although the real owners of the property were par- ties to the proceeding, and therein contested the question of title. A probate court has no jurisdiction to try such an issue: Gjersta- denjen v. Van Duzen, 7 N. D. 612; 76 N. W. Eep. 233. A foreign executor, who comes into another state to reside, and who brings with him property belonging, to the estate, cannot be made liable in the latter state, upon the suit of a local creditor of the tes- tator, to the extent of the property brought therein, but may be to the extent of the property already there. The courts of a state, other than that of the domiciliary jurisdiction, have no power to try the title of real estate situate in the latter state, where the action is one between legatees under a will, and a foreign execu- trix, who is charged with a conversion of the personal assets of the estate, in fraud of the rights of the heirs; and the action of the court in trying and adjudicating the title of real estate situate in another state cannot be upheld: Palke v. Terry, 32 Col. 85; 75 Pac. Eep. 425, 427. A court, while sitting as a court of probate, has no other powers than those given to it by the statute, and such incidental powers as pertain to it for the purpose of enabling it to exercise the jurisdiction which is conferred upon it. It has 1,0 power to determine disputes between heirs or devisees and strangers as to the title to property: Smith v. Westerfleld, 88 Cal. JURISDICTION OP COURTS. 315 374, 378; 26 Pac. Eep. 206; In re Haas, 97 Cal. 232, 234; 31 Pae. Eep. 893. (13) To enforce a trust. There are many proceedings which relate to the estates of deceased persons of which the probate courts have no jurisdiction. They have no jurisdiction to enforce a trust by compelling an administrator to convey property by him held in trust, and to render an account of the money received by him from the property. Such an action is within the domain of equity: Haverstick v. Trudel, 51 Cal. 431, 434. (14) In what matters of guardianship. The determination of the question of title to property is one of the many matters relating to the estates of deceased persons of which the probate court has no jurisdiction; and if an executor, upon the settlement of his annual account, alleges that property, which a legatee under the will claims to belong to the estate, is the property of his ward, and that he holds it as her guardian, and that he had returned it to the court in his inventory and appraisement of the estate of the ward, and had objected to the jurisdiction of the probate court to hear and determine the question, an issue is thereby raised as to the legal title to the property, which the probate court has no jurisdiction to hear and determine: Estate of Haas, 97 Cal. 232, 234; 31 Pac. Eep. 893. The probate court has no jurisdiction, in settling the accounts of the guardian, to render judgment against the ward for advances made by the guardian after the ward attains his ma- jority. When the guardian assumes his office, he contracts not only to manage the estate according to law, and for the best interests of the ward, but also that at the termination of his trust he will account for the property, estate, and moneys of the ward in his hands, and to pay over and deliver such as remains to the person entitled thereto. This is the account which the probate court has jurisdiction to determine. No jurisdiction is given to ascertain a balance against a former ward, except as that will tend to show what the guardian must pay or deliver to his former ward. It is in the nature of a proceeding in rem, and the estate is the res, and, after majority, the only matter of which the court has jurisdiction: Estate of Kincaid, 120 Cal. 203; 52 Pac. Eep. 492 493. An order of the probate court, in a guardianship pro- ceeding, made without authority of the statute, is void: Andrus V. Blazzard, 23 Utah, 233; 63 Pac. Eep. 888, 891. In Kansas, ample authority is vested in the probate court to make all proper and just orders in respect to the estates of lunatics, and, in the ab- sence of special reasons therefor, the district court should not be called on to interfere. A court of general chancery is not, per- haps entirely devested of jurisdiction in cases of guardianship by 816 PROBATE LAW AND PRACTICE. the creation of a statutory court for the control of the ward's property, but such jurisdiction as it has is reserved to it in extra- ordinary cases and for special reasons; and, in accordance with this principle, it has been held that, where a decedent's estate is still unsettled, the administrators still acting, and no special reason shown why the jurisdiction of the probate court should not be in- voked, the . district court will not make orders affecting the admin- istration of the estate. Hence the district court does not have jurisdiction to entertain an action to subject funds in the hands of a guardian of an insane person to the payment of the latter's debts, when the creditor does not have a lien on such funds, and there exists no special or extraordinary reason preventing the pro- bate court from making the desired order if it be a proper and just one to make: Hill Inv. Co. v. Honeywell, 65 Kan. 349; 69 Pac. Eep. 334. The superior court, sitting in probate, has no jurisdic- tion to appoint a guardian ad litem for an alleged insane person who has not been made a party to the action; Boyd v. Sodson, 66 Oal. 360; 5 Pac. Kep. 617. 15. Collateral attack. The. orders and judgments of probate courts in regard to probate matters cannot be collaterally attacked, except for want of jurisdictioli in the court. The remedy of one aggrieved thereby is by a proper motion in the court, or by ap- peal: Dennis v. Winter, 63 Cal. 16, 18; Clark v. Bossier, 10 Ida. 348; 78 Pac. Eep. 358; Dungan v. Superior Court, 149 Cal. 98; 84 Pac. Eep. 767; Symes v. People, 17 Col. App. 466; 69 Pac. Eep. 312, 313. Even the determination of the court that it has jurisdiction must be made from evidence produced before it, and such determination is valid until set aside in some proper manner, notwithstanding the court was mistaken in its view of the evidence, or that other evidence could have been produced which would have required a different determination. The court's judgment that it has jurisdic- tion cannot be collaterally attacked; Estate of Griffith, 84 Cal. 107, 110; 23 Pac. Eep. 528; 24 Pac. Eep. 381; Dungan v. Superior Court, 149 Cal. 98; 84 Pac. Eep. 767, 769. A decree of a probate court cannot be collaterally attacked for want of jurisdiction, un- less the same appears on the face of the proceedings, or because of any error or irregularity; but the decree, if not totally void, is con- elusive on collateral attack so long as it remains in force. " If it be found that the tribunal is one competent to decide whether the facts in any given matter confer jurisdiction, it follows with in- exorable necessity that if it decides that it has jurisdiction, then its judgments, within the scope of the subject-matter over which its authority extends, in proceedings following the lawful allega- tion of circumstances requiring the exercise of its power, are con- clusive against all the world, unless reversed or avoided for error JURISDICTION OP COURTS. 317 or fraud in a direct proceeding. It matters not how erroneous fhe judgment. Being a judgment, it is the law of that case, pronounced by a tribunal created for that purpose. To allow such judgment to be questioned or ignored collaterally would be to ignore prac- tically, and logically to destroy, the court. And it is not necessary that the facts and circumstances upon which the jurisdiction depends shall appear upon the face of their proceedings, because, being com- petent to decide, and having decided, that such facts exist, by as- suming the jurisdiction, tliis matter is adjudicated, and cannot be collaterally questioned ": Lethbridge v. Lauder, 13 Wyo. 9; 76 Pac. Eep. 682, 685, quoting from 1 Woerner on Law of Administration, §145. 16. Jurisdiction in eoLUity. (1) Exists when. When there are peculiar circumstances of em- barrassment to the administration of an estate, and when the as- suming of jurisdiction would prevent great delay, expense, incon- venience, or waste, and thus conclude by one action and decree a protracted and vexatious litigation, a court, in the exercise of its equitable powers, may take jurisdiction of the settlement of such estate: Deck v. Gerke, 12 Cal. 433, 437. The jurisdiction of the probate court is limited to those matters over which the statute directs it to exercise jurisdiction: Bush v. Lindsey, 44 Cal. 121, 125. Hence, where jurisdiction is not conferred upon the probate court by statute, a court of equity has jurisdiction of actions against the administrator of an administrator to settle the account of his intestate with the estate of which he was the administrator: Bush V. Lindsey, 44 Cal. 121, 124. A court of equity has jurisdiction to enforce a trust, by compelling the administrator to convey prop- erty, held by him in trust, to the heirs of the intestate, and to order him to account for money received by him for the property: Haverstick v. Trudel, 51 Cal. 431, 433. And the rights of repre- sentatives or successors of several partners can be determined only in a court of equity: Theller v. Such, 57 Cal. 447. The jurisdiction vested in the old probate courts did not devest the old district courts of their general jurisdiction as courts of chancery over ac- tions for a settlement of afiEairs of a partnership: Griggs v. Clark, 23 Cal. 427, 429. If a guardian dies, without settlement of his guardian- ship in a probate court, his executors have no authority to present his final account to the . probate court for settlement for charges made by him against the ward, either during or after his nonage; and the court has no authority to receive or in any way to act upon it. This settlement can only be had in a court of equity, by a proceeding against the executors of the deceased guardian and the necessary parties: Estate of Allgier, 65 Cal. 228; 3 Pac. Eep. 849, 850. In Oklahoma, the appointment of a receiver is the exercise of chancery power, and such power cannot be conferred upon or 318 PEOBATE LAW AND PRACTICE. exercised by the probate courts: Garrett v. London etc. Fire & Ins. Co., 15 Okl. 222; 81 Pac. Eep. 421. (2) Does not exist when. In California, it seems that no inde- pendent suit in equity lies to construe a will: Toland v. Earl, 129 Cal. 148, 151; 79 Am. St. Eep. 100; 61 Pae. Eep. 914; but see Sid- dall V. Harrison, 73 Cal. 560; 15 Pac. Eep. 130; Williams v. Wil- liams, 73 Cal. 99; 14 Pac. Eep. 394; Eosenberg v. Frank, 58 Cal. 387. Nor can a suit in equity be maintained for the purpose of deter- mining heirship, pending proceedings in probate for the settlement of an estate, where no special reasons are given why such a matter should be determined prior to the final decree of distribution in a probate proceeding: Siddall v. Harrison, 73 Cal. 560, 562; 15 Pac. Eep. 130. A proceeding to set aside administration of the estate of a living person is a probate proceeding, and cannot be treated as a suit in equity, especially where the administrator was not served with summons, but with a citation, which did not require him to answer, and which did not notify him that, in case of failure to do so, judgment would go against him: Costa v. Superior Court, 137 Cal. 79, 82; 69 Pac. Eep. 840. In the absence of fraud, a court of equity has no power to review the orders of a probate court: Dougherty v. Bartlett, 100 Cal. 496, 499; 35 Pae. Eep. 431. A court of equity is not a proper forum in which to set aside a probate decree obtained by fraud, and without notice to the party against whom it was rendered: Baker v. O'Eiordan, 65 Cal. 368, 371; 4 Pac. Eep.. 232; Sanford v. Head, 5 Cal. 297. A probate court in Kansas has no equitable jurisdiction, and a district court in that state, on the trial of an appeal de novo from a probate court, has such powers and jurisdiction only as had the court from which the appeal was taken: Eoss v. Wollard (Kan.), 89 Pac. Eep. 680. (3) Where same court has jurisdiction In equity and in matters of probate. In California, where the same superior court has juris- diction both in equity and in matters of probate, and the jurisdic- tion of the court as to matters of accounting between the estate of a deceased administrator and his successor is admitted, a court can administer full and entire relief according to the principles of equity, and also in accordance with the statutes which exist with reference to the matters of probate or any others within the court's jurisdiction. Hence it may, as a court of equity, determine the amount due the attorney of the deceased administrator, and may withhold for future determination, by the probate court, the ques- tion as to. the amount of commissions due to the deceased adminis- trator upon final settlement of the estate: Pennie v. Eoach, 94 Cal. 515, 521; 29 Pac. Eep. 956; 30 Pac. Eep. 106. While it is true that the probate and equity jurisdictions of the superior court are sepa- JUKISDtCTION OP COURTS. 319 rate and distinct, that the former furnishes a method of adminis- tering the affairs of a decedent, and that when final distribution has been had its jurisdiction is exhausted, yet it is the peculiar province of a court of equity to appoint and control trustees for the management of trust estates, and, under our system, the same tribunal exercises equity and probate jurisdiction. Hence if an objection to the jurisdiction of a probate court is raised for the first time in the appellate court, such objection is held to have been waived by the appearance of the defendant without objection to the form of the petition filed in probate, asking for the ac- counts and removal of the trustees, etc. The petition, under such circumstances, is to be regarded as a bill in equity addressed to the equitable powers of the superior court, and the form of its title is immaterial: Estate of Thompson, 101 Gal. 349, 354; 35 Pac. Eep. 991; 36 Pac. Eep. 98, 508. The superior court of California, sitting as a court of probate, assumes a special and limited juris- diction under statutory procedure, and, although guided by prin- ciples of equity in the exercise of that jurisdiction, does not ex- orcise its general jurisdiction in equity, but is limited to matters in probate, and, in the administration of the estates of decedents, to the objects of such administration. These objects are the tem- porary preservation and protection of the estate of the deceased, the satisfaction or payment of such , debts and claims as are charges or liens upon it, and the distribution of the residue to those who are entitled thereto. Incidentally, the expenses incurred in the administration, and the temporary provision for the support of the family, including a homestead where proper, are to be taken from the estate. This provision, however, is, in reality, a distribu- tion of a portion of the estate to those who, by virtue of the statute, are entitled thereto. If it is necessary or proper to appeal to a court of chancery, the probate court is such a court, at least so far as matters in probate are concerned; but, while probate courts l\ave all the powers of a court of equity in the settlement of estates, yet confiicting interests must be determined by appropriate proceedings, under proper pleadings, even in that court: Estate of Heeney, 3 Cal. App. 548; 86 Pac. Eep. 842, 844; Curtis v. Schell, 129 Cal. 208, 220; 79 Am. St. Eep. 107; 61 Pac. Eep. 951; Toland v. Earl, 129 Cal. 148, 153; 79 Am. St. Eep. 100; 61 Pac. Eep. 914. Wherever it appears that there is a want of jurisdiction in the proceeding for the administration of the estate, the jurisdiction of a court of equity may properly be invoked and exercised, as where it becomes necessary to determine the rights of strangers to the estate or to bring them in for the purpose of determining their rights to the proceeds of a sale derived under those for whose benefit the sale was ordered: Curtis v. Schell, 129 Cal. 208, 221; 79 Am. St. Eep. 107; 61 Pac. Eep. 951. But no action in equity 320 PROBATE LAW AND PEACTICE. brought in the same court which has probate jurisdiction over the estate to obtain from that court, sitting in equity, a construction of the will, for the edification of the same court sitting in probate, can be entertained. It is the province of the probate court which settles the estate of a deceased person to construe the will and the trusts created thereby; and it may exercise all equity powers necessary to that end: Toland v. Earl, 129 Cal. 148, 153; 79 Am. St. Eep. 100; 61 Pae. Eep. 914. (4) Concurrent jurisdiction. The district courts of Kansas have jurisdiction, concurrently with the probate courts, of certain mat- ters relating to the estates of deceased persons; and, in the exer- cise of their equity or chancery jurisdiction, the district courts may entertain and determine actions to foreclose mortgages, where the defendant is a legal representative of a deceased person, or any other proper proceeding over the estates of deceased persons, and over the legal representatives and heirs of decedents. The dis- trict courts of that state have full chancery powers, and courts of equity in that state have always had a paramount jurisdiction over the estates of deceased persons. These powers are not taken away by the statutes regulating the duties and defining the powers of the probate court. In that state, when certain facts exist, growing out of the liabilities of a deceased person, or, it may be, arising out of the settlement of the estate of a deceased person wherein the probate court, by reason of its limited and restricted authority, cannot protect and enforce the rights of all persons involved in the controversy, the equitable power of the district court may be invoked in their behalf. Hence the district courts of that state have jurisdiction to entertain and enforce a demand against the property of a deceased person, who, by will, devoted almost his entire estate to the perpetuation of a banking business in which he had been engaged, during his lifetime, and whose continuance he committed to executors named in his will; the claim sought to be enforced in the district court having originated in the course of the banking business, some years after the death of the testator, and after all debts of the testator existing at the time of his death had been paid: In re Hyde, 47 Kan. 277; 27 Pac. Bep. 1001, 1002. In Nevada, where a probate court has juris- diction, and can administer full relief, a court of equity has dis- cretion to assume jurisdiction or to turn the parties over to the probate court. If others than the decedent are necessary parties to a foreclosure suit, the proceeding must be in equity, and not in the probate court. And if a mortgagee only and the represent- atives of the deceased mortgagor are parties, courts of equity and the probate court have concurrent jurisdiction: Corbett v. Bice, 2 Nev. 330. PART IV. EXECUTORS AND ADMINISTRATORS. EXECUTOES AND ADMINISTBATOES. THEIE LETTEES AND BONDS. EEVOCATION OF LETTEES. SPECIAL ADMINISTBATOES. WILLS FOUND AFTEE LETTEES GEANTED. DISQUALIFICATION OF JUDGES. TEANSFEES. REMOVALS AND SUSPENSIONS. CHAPTER I. LETTEES TESTAMENTAET AND OF ADMINTSTEATION WITH THE WILL ANNEXED. HOW AND TO WHOM ISSUED. § 217. Corporations as executors. § 218. Letters on proved wiU must issue to whom. § 219. Form. AfSdavit of no knowledge of subsequent will. I 220. Who are incompetent as executors. § 221. Form. Petition for letters of administration with the will annexed. § 222. Form. Order admitting will to probate, and for letters of administration with the will annexed. § 223. When no executor is named in will. § 224. Interested parties may file objections. § 225. Form. Objections to issuance of letters testamentary. § 226. Married woman may be executrix. § 227. Executor of an executor. § 228. Form. Petition for letters, etc., upon estate de bonis non. § 229. Form. Order appointing administrator (de bonis non). § 230. Letters where person is absent from state, or a minor. § 231. Acts of a portion of executors are valid when. § 232. Authority of administrators with will annexed. Letters, how issued. LETTEES TESTAMENTAET AND OF ADMINISTEATION WITH THE WILL ANNEXED. 1. Letters testamentary. 4. Objections to appointment. (1) In general. 5. Failure to apply or to qualify. Ef- (3) Application by foreign execu- feet of. tor. 6. Letters of administration with will 2. Jurisdiction of courts. annexed. 3. Appointment cf executor by court. (1) In general. Probate — 21 (321) 322 PROBATE LAW AND PEACTICB. (2) "Where executors appointed (5) To be issued when. Order cannot or will not act. of appointment. (3) Bight to nominate. Non- (6) Who are not entitled to. residents. Preference. 7. Validity and effect of appointment. (4) Eight to letters. Foreign 8. Appeal. wills. § 217. Corporations as executors. Corporations author- ized by their articles of incorporation to act as executor, ad- ministrator, guardian of estates, assignee, receiver, deposi- tary, or trustee, and having a paid-up capital of not less, than two hundred and fifty thousand dollars, of which one hundred thousand dollars shall have been actually paid in in cash, may be appointed to act in such capacity in like manner as individuals. In all eases in which it is required that an executor, administrator, guardian, assignee, receiver, deposi- tary, or trustee, shall qualify by taking and subscribing an oath, or in which an affidavit is required, it shall be a suffi- cient qualification by such corporation, if such oath shall be taken and subscribed, or such affidavit made, by the presi- dent 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 individuals acting 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 and upon the bond required upon its assuming the trusts provided for herein. Kerr's Cyc. Code Civ. Proc, § 1348. § 218. Letters on proved will must issue to whom. If no objection is made as provided in section thirteen hundred and fifty-one, 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, unless they or either of them have re- nounced their right to letters. In the order, the court must ascertain and determine whether said estate is worth more or less than ten thousand dollars, which determination is con- clusive for the purpose of giving notice to creditors, but for no other purpose. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 492), § 1349. LETTERS WITH WILL ANNEXED ISSUANCE. 323 ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 773, p. 305. Arizona. Eev. Stats. 1901, par. 1636. Colorado. 3 Mills's Ann. Stats., sees. 4693, 4698. Idaho. Code Civ. Proe. 1901, sees. 4031. Kansas. Gen. Stats. 1905, §§ 2876, 8697. , Montana. Code Civ. Proc, sec. 2400.- Nevada. Coinp. Laws, see. 2812. New Mexico. Comp. Laws 1897, see. 1940. North Dakota. Eev. Codes 1905, § 8016. Oklahoma. Eev. Stats. 1903, sec. 1521. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1107. South Dakota. Probate Code 1904, §69. Utah. Eev. Stats. 1898, see. 3798. Washington. Pierce's Code, § 2417. Wyoming. Eev. Stats. 1899, see. 4627. § 219. Form. Affidavit of no knowledge of subsequent will. [Title of court.] [Title of proceeding.] P° ■' ^^P*" ^° *■ ^ ^ -' I [Title of form.] State of , ■> County of , J , being duly sworn, deposes and says: That, on or about the day of , 19^^, he was, by order of this court, duly appointed administrator with the will annexed of the estate of ," deceased; whjch will was dated the day of , 19 — , and was duly admitted to probate herein on or about the day of , 19 — ; that affiant knows of no other and subsequent wilLof said deceased than said will above named. Subscribed and sworn to before me this day of , 19— Explanatory notes. 1. Give file number." 2. Or, executor of the last will and testament of , deceased. This affidavit is required by the statute of Washington: See Pierce's Washington Code, § 2428. § 220, Who are incompetent as executors. No person is competent to serve as executor who, at the time the will is admitted to probate, is: 324 PROBATE LAW AND PRACTICE. 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. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 492), § 1350. ANAIiOGOUS AND IDENTICAIi STATUTES. No identical statute found. Alaska. Carter's Code, see. 773, p. 305; sec. 797, p. 309. Arizona. Eev. Stats. 1901, par. 1637. Colorado. 3 Mills's Ann. Stats., sees. 4693, 4698. Idaho. Code Civ. Proe. 1901, sec. 4032. Kansas. Gen. Stats. 1905, § 8697. Montana. Code Civ. Proe., see. 2401. Nevada. Comp. Laws, sec. 2813. New Mexico. Comp. Laws 1897, sees. 1940, 1959; Laws 1901, p. 154, sec. 16, as amended Laws 1903, p. 56. North Dakota. Eev. Codes 1905, §§ 8016, 8046. Oklahoma. Bev. Stats. 1903, sec. 1522. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1107, 1135. South Dakota. Probate Code 1904, § 70. Utah. Eev. Stats. 1898, sec. 3799. Washington. Pierce's Code, §§ 2417, 2488. Wyoming. Eev. Stats. 1899, sec. 4628. § 221. Form. Petition for letters of administration with the will annexed. [Title of court.] ( No. Dept. No. . / • [Title of form.] To the Honorable the ^ Court of the County ^ of , [Title of estate.] State of The petition of , of said county,' respectfully shows : That . died on or about the day of , 19 , in the county * of , state of ; That said deceased, at the time of his death, was a resi- dent of the county ° of , state of ; That said deceased left estate ia the county" of , state of , consisting of ' property ; That the value, character, and annual revenue of said property are as follows, to wit : : * LETTERS WITH WILL ANNEXED ISSUANCE. 325 That the estate and effects for or in respect to which letters of administration are hereby applied for do not exceed the value of dollars ($ ) ; « That said decedent left a last will and testament, which is herewith presented to this court for probate ; That the names, ages, and residences of the next of kin of said deceased, and whom your petitioner is advised and believes, and therefore alleges, to be the heirs at law of said deceased, are as follows, namely: Names. Ages. Residences. That the names, ages, and residences of said testator's devisees and legatees, so far as known to your petitioner, are as follows, namely: Names. Ages. Residences. That your petitioner is the widow ^^ of said , de- ceased, and is interested in his estate; That is the person named in said will as the executor thereof, but has failed to apply for letters testamentary.^^/ Wherefore your petitioner prays that a day of court may be appointed for hearing this application; that the clerk of this court be directed to give due notice thereof by posting notices according to law; and that, upon said hearing and upon the proofs to be adduced, letters of administration with the will annexed, upon said estate, be issued to your peti- tioner. Dated , 19 — , Petitioner. , Attorney for Petitioner. Explanatory notes. 1. Title of court. 2-6. Or, city and county. 7. Beal or personal, or real and personal. 8. Give separate descrip- tion of real and personal property, stating what is the separate prop- erty of decedent, or what is the community property of decedent and of his widow. 9. Whether estate exceeds certain amount governs the time expressed in the notice to creditors. 10. Or, legatee or devisee, or other person interested in said estate. 11. Or, is incompetent, or renounces his right to letters testamentary; or, as the case may be, that no one is named in said will as the executor thereof. 326 PROBATE LAW AND PEACTICE. § 222. Form. Order admitting will to probate, and for letters of administration with the will annexed. [Title of court.] ,„. , , , fNo. .1 Dept. No. . LTitle of estate.] i. ' "TT,, „% , "■ ■■ \ [Title of form.] Now comes the petitioner, , by , his attorney, and proves to the satisfaction of the court that the time for hearing the petition for the probate of the will, and for letters of administration with the will annexed, filed herein on the day of , 19 — , was by the clerk duly set for the day of , 19 — , and that notice of said hearing has been duly given as required by law ; ^ and no person appearing to contest said petition, the court proceeds to hear the evidence, and thereupon finds that the allega- tions of said petition are true, and that said petition ought to be granted. It is therefore ordered and adjudged by the court, That said died on or about the day of , 19 — , leaving estate in the state of ; that he was then a resident of the county * of , in said state ; that the instrument in writing hereinbefore filed, purporting to be his last will, and so alleged to be in said petition, be ad- mitted to probate as the last will of said deceased ; that said petitioner, , be appointed administrator with the will annexed of the estate of said deceased; and that letters of administration with the will annexed issue to him upon his taking the oath required by law and giving bond in the sum of dollars ($ ). , County Clerk.* Entered , 19 — By , Deputy Qerk. Explanatory notes. 1. Give file number. 2. If matter has been continued, say, " and the hearing having been regularly continued by the court to this time." 3. Or, city and county. 4. See note, § 77, ante. In ease the will has been previously admitted to probate, and only the appointment of an administrator with the will annexed is sought to fill a vacancy in administration, the portions of this order relating to probate can be eliminated. , § 223. When no executor is named in will. If no executor is named in the will, or if the sole executor or all the execu- tors therein named are dead, or incompetent, or renounce, or LETTERS WITH WILL ANNEXED — ISSUANCE. 327 fail to apply for letters, or to appear and qualify, letters of administration with the will annexed must be issued as desig- nated and provided for in granting of letters in case of in- testacy. Kerr's Cyc. Code Civ. Proc. (new section ; see Kerr's Stats, and Amdts., p. 493), § 1350a. § 224. Interested parties may file objections. Any person interested in the estate or wiU may file objections in writing to granting letters testamentary to the persons named as executors or any of them, and the objections must be heard and determined by the court; a petition may, at the same time, be fil'ed for letters of administration with the will annexed. Kerr's Cyc, Code Civ. Proc. (Kerr's Stats, and Amdts., p. 493), §1351. ANALOGOUS AND IDENTtCAL STATUTES. No identical statute found. Arizona. Rev. Stats. 1901, par. 1638. Idaho. Code Civ. Proc. 1901, sec. 4033. Montana. Code Civ. Proc, sec. 2402. Nevada. Comp. Laws, see. 2814. North Dakota. Eev. Codes 1905, §8016. Oklahoma. Eev. Stats. 1903, sec. 1523. South Dakota. Probate Code 1904, § 71. Utah. Eev. Stats. 1898, sec. 3800. Washington. Pierce's Code, § 2418. Wyoming. Eev. Stats., 1899, sec. 4629. § 225. Form. Objections to issuance of letters testa- mentary. [Title of court.] (No. 1 Dept. No. [Title of estate.] | ^^.^^^ ^^ ^^^^ The undersigned, , widow" of said deceased, now comes and objects to this court granting letters testamentary to , the person named as executor in the last will and testament of said , deceased, on the following grounds, namely : That said ■ is under the age of majority; That said was, on the day of , 19 — , in the • court of the county of , state of , con- victed of the crime of ;* 328 PROBATE LAW AND PRACTICE. That said is an idle and dissolute person; that he uses intoxicating liquors so immoderately, that he is fre- quently in a condition of drunkenness; and that he wants integrity and lacks understanding. Contestant therefore asks that the issuance of letters testamentary to the said be refused. , Attorney for Contestant. , Contestant. Explanatory notes. 1. Give file number. 2. Or, legatee named in the will of said deceased; or other person interested in the estate. 3. State name of infamous crime. Concerning objections, see also §258, post. § 226. Married woman may be executrix. A married woman may be appointed an executrix. The authority of an executrix, who was unmarried when appointed, is not extin- guished nor affected by her marriage. Kerr's Cyc. Code Civ. Proc, § 1352. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1639. Idaho. Code Civ. Proc. 1901, sec. 4034. Montana. Code Civ. Proc, see. 2403. Nevada. Comp. Laws, sec. 2815. North Dakota. Eev. Codes 1905, §§ 8016, 8046. Oklahoma. Eev. Stats. 1903, sec. 1524. South Dakota. Probate Code 1904, § 72. Utah. Eev. Stats. 1898, sec. 3801. Washington. Pierce's Code, §§ 2422, 2434. Wyoming. Eev. Stats. 1899, sec. 4630. § 227. Executor of an executor. No executor of an ex- ecutor shall, as such, be authorized to administer on the es- tate of the first testator, but on the death of the sole or sur- viving executor of any last will, letters of administration with the wiU annexed, of the estate of the first testator, left unadministered, must be issued. Kerr's Cyc. Code Civ. Proc, § 1353. ANALOGOUS AND IDENTICAL STATUTES. The " indicates identity. Arizona.* Eev. Stats. 1901, par. 1640. Colorado. 3 Mills's Ann. Stats., sec. 4720. LETTERS WITH WILL ANNEXED ISSUANCE. 329 Idaho.* Code Civ. Proc. 1901, sec. 4035. Kansas. Gen. Stats. 1905, §2884. Montana.* Code Civ. Proc, sec. 2404. Nevada.* Comp. Laws, see. 2816. North Dakota. Bev. Codes 1905, § 8016. Oklahoma.* Eev. Stats. 1903, sec. 1525. South Dakota.* Probate Code 1904, § 73. Utah.* Eev. Stats. 1898, sec. 3802. Washington.* Pierce's Code, § 2424. Wyoming. Eev. Stats. 1899, sec. 4631. § 228. Form. Petition for letters, etc., upon estate de bonis non. [Title of court.] [Title of estate.] ^N° ' ^«P*- ^''• [Title of form.] To the Honorable the " Court of the County " of , State of Your petitioner respectfully represents that he is a resi- dent of the county * of , state of ; That on or about the day of , 19 — , died in the county ° of -, state -of , leaving a will ; and that said will has been admitted to probate in this court ; That is the person appointed in said will as the executor thereof; that letters testamentary thereunder have issued to the said ; that he has duly qualified as such executor, but has since resigned,* leaving a part of said estate unadministered ; and that it is necessary that an administrator of said estate be appointed with said will annexed ; That the said left real property of said estate unad- ministered, of the value of dollars ($ ) ; That the said left personal property of said estate unadministered, of the value of dollars ($ ). Wherefore your petitioner prays that letters of adminis- tration upon said estate, with the will annexed, issue to him as provided by law. , Petitioner. , Attorney for Petitioner. Explanatory notes. 1. Give file number. 2. Title of court. 3-5. Or, city and county. 6. Or, died, as the case may be. 330 PROBATE LAW AND PEACTICE. § 229. Form. Order appointing adminstrator (de bonis non). [Title of court.] [Title of estate.! I^"' "T;;:-' ^fP*" ^°- ' "■ ' j [Title of form.] Now comes the petitioner, , by , his attorney, and proves to the satisfaction of the court that the petition for letters of administration (de bonis non) herein was filed on , 19 — ; that on the same day the time for hear- ing the same was by the clerk duly set for the day of , 19 — ; and that notice of said hearing has been duly given as required by law and by the order of this court ; and the matter now coming regularly on for hearing ^ and no person appearing to contest said petition, the court proceeds to hear the evidence, and thereupon finds that the facts therein alleged are true, and that said petition ought to be granted. It is therefore ordered and adjudged by the court, That be appointed administrator " of all of the estate of said , deceased, not heretofore administered, and that letters of admiaistration thereon issue to him upon his tak- ing the oath as required by law and giving bond in the sum of dollars ($ ). Dated , 19 — , Judge of the Court. Explauatoiy notes. 1. Give file number. 2. Or, if the matter has been continued, say, " and the hearing having been regularly post- poned by the court to this day.'' 3. Or, administratrix, according to the fact. § 230. Letters where person is absent from state, or a minor. Where a person absent from the state, or a minor is named executor — if there is another executor who accepts the trust and qualifies — the latter may have letters testa- mentary 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, letters of administration, with the will annexed, must be granted; but the court may, in its discretion, revoke them on the return of the absent executor or the arrival of the LETTERS WITH WILL ANNEXED ISSUANCE. 331 minor at the age of majority. Kerr's Cyc. Code Civ. Proc, § 1354. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 779, p. 306. Arizona.* Rev. Stats. 1901, par. 1641. Idaho.* Code Civ. Proc. 1901, see. 4036. Kansas. Gen. Stats. 1905, § 2882. Montana.* Code Civ. Proc, see. 2405. Nevada. Comp. Laws, see. 2817. New Mexico. Laws 1901, sec. 3, p. 151. North Dakota. Bev. Codes 1905, § 8016. Oklahoma.* Eev. Stats. 1903, sec. 1526. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1117. South Dakota.* Probate Code 1904, § 74. Utah. Eev. Stats. 1898, sec. 3803. Washington. Pierce's Code, § 2419. Wyoming.* Eev. Stats. 1899, see. 4632. § 231. Acts of a portion of executors are valid when. 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 effectually for every purpose as if all were appointed and should act together; 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 ma- jority is valid. Kerr's Cyc. Code Civ. Proc, § 1355. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1642. Colorado. 3 Mills's Ann. Stats., sec. 4747. Idaho.* Code Civ. Proc. 1901, sec. 4037. Montana.* Code Civ. Proc., sec. 2406. Nevada. Comp. Laws, sec. 2818. North Dakota. Eev. Codes 1905, § 8016. Oklahoma.* Eev. Stats. 1903, sec. 1527. South Dakota.* Probate Code 1904, § 75. Utah.* Eev. Stats. 1898, sec. 3910. Washington. Pierce's Code, § 2425. Wyoming.* Eev. Stats. 1899, sec. 4633. 332 PROBATE LAW AND PRACTICE. § 232. Authority of administrators with will annexed. Letters, how issued. 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. Kerr's Cyc. Code Civ. Proc, § 1356. AITALOGOUS AKD IDENTICAL STATUTES. The * indicates identity. Arizona.* Kev. Stats. 1901, par. 1643. Colorado. 3 Mills's Ann. Stats., sees. 4718, 4748. Idaho.* Code Civ. Proe. 1901, sec. 4039. Kansas. Gen. Stats. 1905, § 8697. Montana.* Code Civ. Proc, sec. 2407. Nevada. Comp. Laws, sees. 2819, 2820. New Mexico. Comp. Laws 1897, sec. 2064. Oklahoma. Eev. Stats. 1903, see,' 1528. South Dakota. Probate Code 1904, § 76. Utah. Eev. Stats. 1898, sec. 3911. Washington. Pierce's Code, § 2426. Wyoming.* Rev. Stats. 1899, sec. 4634. LETTERS TESTAMENTARY AND OF ADMINISTRATION WITH THE WILL ANNEXED. 1. Letters testamentary. (2) Where executors appointed (1) In general. cannot or wiU not act. (2) Application hy foreign ezecn- (3) Bight to nominate. Non- tor, residents. Preference. 2. Jurisdiction of courts. (4) Eight to letters. Foreign 3. Appointment of executor by court. wills. 4. Objections to appointment. (5) To be Issued when. Order 5. Failure to apply or to qualify. Et- of appointment. 'ect of. (6) Who are not entitled to. 6. Letters of administration with will 7. Validity and effect of appointment. annexed. 8. Appeal. (1) In general. 1. Letters testamentary. (1) In general. A man has the right to make such disposition of his property as he chooses, subject only to such limitations as are expressly required by law, and, within the same limitations, he has the absolute right to carry out the provisions of his will. In other words, the executor named in a will has the right to act, unless there is some express provision of law which declares that he has not. And, as a consequence, the testator may lawfully LETTERS WITH WILL ANNEXED — ISSUANCE. 333 select any person for this trust who does not fall within one' of the classes expressly mentioned and declared to be incompetent: Estate of Bauquier, 88 Cal. 302, 308; 26 Pac. Eep. 178, 532. Letters testamentary issue only as the consequence of the probate of the wUl: Estate of Warfield, 22 Cal. 51, 66; 83 Am. Dec. 49. The naming of an exejeutor is ordinarily a part of a will, and, in the absence of iany objection to his competency, an order admitting the will to probate includes his right to have letters testamentary issued to him: Estate of Richardson, 120 Cal. 344, 346; 52 Pac. Eep. 832. While it is true that the appointment of an executor is only pro- visional, and requires the approval of tho court, for the purpose of administration upon the estate of the testator, yet it is also true that the law allows a man to appoint his executors, subject to its approval, and treats them as entitled to the office until they re- nounce it; and unless, for some reason, they are incompetent, the appointment makes them representatives of the estate, " so far as relates to acts in which they are merely passive, such as receiving notice of the dishonor of a note.'' It matters not that the person named in the will may never be actually appointed executor by the court. He may renounce the trust: Drexler v. McGlynn, 99 Cal. 143; 33 Pac. Kep. 773. BEFEBENCES. Who may be an executor or administrator: See note 54 Am. Dee. 518.522. (2) Application by foreign executor. A foreign executor has the right to apply for letters testamentary in this state to himself, but he should be required to come here within a reasonable time, and submit himself to the jurisdiction of the court, and personally con- duet the settlement of the estate. Where he does so, his non-resi- dence does not disqualify him: Eice v. Tilton, 13 Wyo. 420; 80 Pac. Eep. 828, 832;. Estate of Harrison, 135 Cal. 7; 66 Pae. Eep. 846; Estate of Brundage, 141 Cal. 538; 75 Pae. Eep. 175; In re Connors' Estate, 16 Mont. 465; 41 Pac. Eep. 271; Estate of Kelly, 122 Cal. 379; 55 Pac. Eep. 136; Heck v. Carey, 13 Wyo. 1^; 78 Pac. Eep. 705. It is not necessary that he be actually in the state when the order for the issuance of letters is made. His application may be made by himself in person or by attorney, and if made by attorney,' he is constructively present. If required by the court, he must appear and testify when the penalty of his bond is fixed, and, at any rate, he must appear and qualify within a reasonable time. If he fails to make application for letters, or to appear and qualify within proper time, letters of administration with the will annexed will be issued to some other person. Where, however, he has made application for letters, either in person or by attorney, it is not absolutely necessary that he be actually in the state when the order is made directing the issuance of letters. If a bond is 334 PROBATE LAW AND PRACTICE. required, the court may delay for a time fixing the penalty of it, or may fix it by examining on oath other persons, and if the property requires immediate repair, a special administrator may be appointed: Estate of Brown, 80 Cal. 381, 384; 22 Pac. Eep. 233. If he fails to petition for' the probate of the will and for letters testa- mentary within the time prescribed by statute, he ijaay be held to have renounced his right to letters, and, unless good cause is shown for the delay, the court may appoint any competent person to act. The statute which provides that if the person named in the will as executor, for a specified time after he has knowledge of the death of the testator and that he is named as executor, fails to petition the proper court for the probate of the will and that letters testamentary be issued to him, he may be held to have re- nounced his right to letters, and authorizing the court to appoint any other competent person administrator unless good cause for de- lay is shown, applies to foreign wills as well as to domestic wills: Eice V. Tilton, 13 Wyo. 420; 80 Pac. Eep. 828, 831. But, while a foreign executor has the right to apply for letters testamentary in this state to himself, he has no legal right to nominate an ad- ministrator with the will annexed: Estate of Harrison, 135 Cal. 7, 8; 66 Pac. Eep. 846. BEFEBENCES. Foreign corporation as executor or administrator: See note 24 L. E. A. .291. Eight of non-resident to act as executor or adminis- trator: See notes 1 L. E. A. (N. S.) 341-348; 113 Am. St. Eep. 562-565. 2. Jurisdiction of courts. Exclusive jurisdiction over the estate of a decedent, who is a resident of the state, is in the probate court of the county of which the deceased was resident at the time of his death; but, in view of the fact that a decedent may leave estate in more than one county, he having died out of the state, and not having been a resident thereof at the time of his death, the court of that county in which application is first made for letters testa- mentary or of administration has exclusive jurisdiction of the set- tlement of the «state. Jurisdiction of the proceedings for the set- tlement of the estate of a deceased person cannot exist in two courts of the state at the same time. There cannot be two valid administrations lat the same time and in the same state; and when the probate court has acquired jurisdiction of the subject-matter, that jurisdiction is exclusive: Dungan v. Superior Court, 149 Cal. 98; 84 Pac. Eep. 767, 768; Estate of Griflath, 84 Cal. 107, 110; 23 Pac. Eep. 528; 24 Pac. Eep. 381. A probate court has no power to appoint an administrator without conforming to the steps prescribed in cases of intestacy: Estate of Bouyssou, 3 Cal. App. 39; 84 Pac. Eep. 460. 3. Appointment of executor by court. A trust company appointed as executor of a will need not necessarily be appointed by the court, LETTERS WITH WILL ANNEXED — ISSUANCE. 335 though named in the will, unless it amply secures those interested in the estate from loss: Estate of Kilborn (Cal. App.), 89 Pac. Rep. 985, 987. If the person named as executor in the will does not come within the inhibited class, the court has no right to re- fuse his application: Holladay v. Holladay, 16 Or. 147; 19 Pac. Eep. 81, 83. While the court is authorized to refuse to appoint an executor named in a will, for want of integrity, yet his appoint- ment will be refused by the court only upon clear and convincing evidence establishing such disqualifying fact: In re Bauquier, 88 Cal. 302, 313; 26 Pac. Eep. 178, 532. 4. Objections to appointment. The only objections that can prop- erly be made to the granting of letters testamentary to the execu- tors named in the will, upon the grounds of incompetency, must be for one or more of the reasons stated in the statute; and if the persons named in the will do not come within either of the classes of persons mentioned in the statute, and declared thereby to be in- competent, they have the right to the appointment, unless they have renounced, or have failed to apply for the probate of the will, or for letters: Eice v. Tilton, 13 Wyo. 420; 80 Pac. Eep. 828, 830. The court may, under the statute, and upon objections, decline to appoint an executor, although named in the will; and if objections are made to the appointment of a trust company as co-executor, based upon facts tending to show that its financial condition and its securities on deposit are not such as to afford ample protection to the estate, it is within the power of the court, notwithstanding the certificate of the bank commissioners (which is not conclusive evi- dence of the fact of solvency), to inquire into the financial con- dition of the company, and if it should appear that the assets are insufficient as security for the faithful performance of his trust, to refuse the appointment. Those sections of the general law which give to the court authority to require additional security from an executor, when it is made to appear that the original undertaking is insufficient for any reason, apply to the equivalent of the bond given by a corporation; and even though a court may, in the first instance, appoint a corporation as executor without bond, yet, at any time during the administration of the trust, under these sections, it may require further and additional security, if satisfied that the in- terests of the estate demand it: Estate of Kilborn (Cal. App.), 89 Pac. Eep. 985, 987. 5. Failure to apply or to qualify. Effect of. The object of the statute, both with respect to the issuance of letters testamentary and as to the issuance of letters of administration, is the same, namely, to secure the prompt settlement of an estate. The prefer- ence in the one case is given by reason of the express wish of the testator, and in the other by reason of relation of interest in the 336 PROBATE LAW AND PRACTICE. eHtate; and neither should be disregarded, providing the person so designated, either by the testator or the statute, proceeds with dili- gence to discharge the duties of the trust; but, upon his failure to do so, the right of preference is lost, and the others interested in the estate have the right to come in: Rice v. Tilton, 13 Wyo. 420; 80 Pac. Eep. 828, 832. It does not follow, however, that a widow who fails to apply for letters on her husband's estate within the time prescribed by statute cannot afterwards be appointed administra- trix: Eamp v. McDaniel, 12 Or. 108; 6 Pac. Eep. 456. An executor derives his authority from the wUl; and confirmation by the court, followed by the filing of a bond, is equivalent to taking out let- ters, the letters being but the authentic evidence of the power conferred by the will: Bank of Montreal v. Buchanan, 32 Wash. 480; 73 Pac. Eep. 482, 484. Under the probate law of California, no such officer as an executor de son tort is recognized. Hence if a person is named in the will as a co-executor, but refuses or ne- glects to qualify, and a sale is afterwards made to him by the executrix of certain property belonging to the estate, the fact that he was named in the will as executor, and actually applied for let- ters, would not constitute him a trustee for the estate at the time the contract of sale was made: Bowden v. Pierce, 73 Cal. 459, 463; 14 Pac. Eep. 302; 15 Pac. Eep. 64. 6. Iietterg of administration with will annexed. (1) In geneial. the appointment of an administrator with the will annexed is to be made in the manner provided for the grant- ing of letters of administration in eases of intestacy. If the court denies probate to the will, it is not authorized to appoint an ad- ministrator with the will annexed: Estate of Bouyssou, 1 Cal. App. 657, 658; 82 Pac. Eep. 1066. The naming of an executor is not essential to the validity of a will; and a decedent whose will is entitled to be admitted to probate does not die intestate. In such a case the granting of letters of administration with the will annexed is not limited to the order prescribed by statute in cases where a party dies intestate: Estate of Barton, 52 Cal. 538, 540. The testator is presumed to have understood that, in the case of the death of the party named as executor, without any other pro- vision in the will supplying its place, the probate court would be authorized to appoint an administrator with the will annexed, who would be thereby invested with all the powers of the executor named in the will, subject only to such special supervision and limitations as are imposed by the statute itself. The effect is the same as if the testator had incorporated these provisions in ex- press terms into the will: Kidwell v. Brummigan, 32 Cal. 436, 441. An adverse claim made by a person does not render him incompetent to act as an administrator with the will annexed. His bond as administrator with the will annexed affords ample protection to liETTEES WITH WILL ANNEXED ISSUANCE. 337 devisees, legatees, and others interested in the estate: Eice v. TUton, 13 Wyo. 420; 80 Pac. Bep. 828, 832. (2) Where executors appointed cannot or -will not act. If execu- tors have been appointed by the decedent, and cannot act, or will not act, or are not allowed to act, then the same persons, in the same order, are entitled to letters of administration with the will annexed. "Where the choice of the decedent fails, the law will en- force its choice: Eice v. Tilton, 13 "Wyo. 420; 80 Pac. Eep. 828, 832; Estate of Garber, 74 Gal. 338, 340; 16 Pac. Eep. 233; Estate of Li Po Tai, 108 Cal. 484, 488; 41 Pac. Eep. 486; 39 Pac. Eep. 30; Estate of Eichardson, 120 Cal. 344, 346; 52 Pac. Eep. 832. And the same is true of cases where the executor dies before the will has been probated or letters have been issued: Estate of McDonald, 118 Cal. 277, 279; 50 Pac. Eep. 399. (3) Bight to nominate. Non-residents. Preference. While the statute authorizes the issuance of letters testamentary to a non- resident executor, it does not entitle him to letters of administration, or give him the right to nominate an administrator with the will annexed: Estate of Brundage, 141 Gal. 538, 541; 75 Pac. Eep. 175; and if he make no application for letters testamentary, a resident son of the decedent is entitled to letters as against the nominee of such executor, and the court has no discretion in the matter: Estate of Brundage, 141 Cal. 538, 541; 75 Pac. Eep. 175; but where the execu- tor joins in the petition of his nominee, upon the filing of an au- thenticated copy of the will, and requests his appointment, the court does have a discretionary power to appoint him, and is not legally bound to appoint the public administrator: Estate of Harrison, 135 Cal. 7, 8; 66 Pac. Eep. 846. So if the executor fails to apply for letters testamentary, but requests the appointment of a nominee, the appointment is placed in the discretion of the court, and it may appoint the public administrator instead of the nominee: Estate of Eichardson, 120 Cal. 344, 346; 52 Pac. Eep. 852. If an executrix fails for four years to apply for letters testamentary, and dies before making application therefor, the public administrator is entitled to letters, in preference to a sister of the deceased executrix: Estate of McDonald, 118 Cal. 277, 280; 50 Pac. Eep. 399. Where an ap- plication for appointment as executor was denied under a law which declared that an executor who was absent from or resided out of the state was incompetent, but this disqualification was omitted in a subsequent statute, which took effect after the application was denied, and the matter is pending on appeal at the time of such statutory change, the case may be remanded, with directions to dismiss the application for the appointment as executor without prejudice to the making of a new application dependent upon the law as it exists: In re Connors' Estate, 16 Mont. 465; 41 Pac. Probate — 22 338 PKOBATE LAW AND PEACTICB. Eep. 271. Where the person named as executor in a will cannot, for any reason, be appointed to take charge of the community estate, an administrator thereof should be appointed, to which appointment the surviving spouse, or the person he or she might nominate, would have preference: Smith v. Ferry, 6 Wash. 285; sub nom. In re Hill's Estate, 33 Pac. Eep. 585, 587. (4) Bight to letters. Foreign wills. The provisions of the statute relating to the probate of foreign wills are not to be construed in- dependently of the other provisions of the statute relating to the right of administration, as between persons interested in the will. That section of the statute which provides that " letters of admin- istration with the will annexed must be issued as designated and provided for the grant of letters in cases of intestacy," is not re- stricted to any class of wills, and certainly must include foreign wills in its provisions: Estate of Coan, 132 Cal. 401, 403; 64 Pac. Eep. 691. On the probate of a foreign will in this state, in the absence of a petition by the executor named in the wUl, letters of admin- istration must be granted to a person interested in the will, who applies for them: Estate of Bergin, 100 Cal. 376; 34 Pac. Eep. 867. One who lives in this state, and is an assignee of part of the inter-_ est of a non-resident sole devisee and executor of the will, is en- titled to letters, as being a person interested in the will: Estate of Engle, 124 Cal. 292; 56 Pac. Eep. 1022. If no statutory objection can be made to the granting of letters testamentary to a person named as executor in a foreign will, he has the right to the ap- pointment, unless he has renounced or failed to apply for the pro- bate of the will and letters testamentary: Eiee v. TUton, 13 Wyo. 420; 80 Pac. Eep. 828, 830. If a foreign executor fails to make application for letters testamentary in this state, he has no power or right to nominate an administrator with the will annexed: Es- tate of Brundage, 141 Cal. 538, 541; 75 Pae. Eep. 175. But in default of application for letters testamentary by the executor, or by a devisee resident in this state, who is entitled to act as ad- ministrator, there is no statutory provision which requires the court to appoint the nominee of such executor or of any resident devi- see: Estate of Eichardson, 120 Cal. 344, 346; 52 Pac. Eep. 832. If, however, a foreign executor joins in the petition of his nominee, and requests the latter's appointment, the court has a discretionary power to appoint such nominee: Estate of Harrison, 135 Cal. 7, 8; 66 Pac. Eep. 846. A court may appoint an administrator of the estate of a non-resident deceased, where the only assets of said estate consist of a right of action against a resident of this state, or in case there are no assets at all. If there should be nothing which the administrator could' legally do, it could harm nobody. But if there should be something which the administrator ought to do, then the appointment would be necessary: In re Tasanen's Estate, 25 LETTERS WITH WILL ANNEXED — ISSUANCE. 339 Utah, 396; 71 Pac. Bep. 984, 986. But, in Washington, where eleven years have elapsed after a testator's death, and his estate has been finally settled in another state by a court of competent jurisdiction, and he left no personal estate in Washington, but did leave an equitable title to real estate, which, however, had vested in the devisees, and their rights had become absolute under the statute, it was held that there was no necessity for any administration in Washington: Murphy v. Murphy, 42 Wash. 142; 84 Pac. Eep. 646, 648. On the probate of a foreign will in this state, in the absence of a petition by the executor named in the will, letters of administration must be granted to a person interested in the will, who applies foi them, and a petition of the public administrator for the issuance oi letters of administration to himself should be denied: Estate of Ber- gin, 100 Gal. 376, 378; 34 Pac. Eep. 867. In this case it was said that " whether or not the general provisions of the code about public administrators refer only to the estates of persons dying in their counties, and to domestic wills, must be considered an open question": Estate of Bergin, 100 Gal. 376, 378; 34 Pac. Eep. 867. So if the devisee under a foreign will is interested in the will, within the meaning of the statute, so as to entitle him to letters of ad- ministration as against the public administrator, it follows that his assignee is likewise entitled to letters, in preference to the public ad- ministrator: Estate of Engle, 124 Gal. 292, 293; 56 Pac. Eep. 1022. (5) To be issued when. Order of appoiutmeut. If a decedent has left a will entitled to probate, he does not die intestate,- within the meaning of the statute which prescribes the order in which the per- sons therein designated are entitled to an estate of a person dying intestate, and in such cases the granting of letters with the will annexed is not limited to the order prescribed in the statute: Es- tate of Barton, 52 Cal. 538, 540; Estate of McDonald, 118 Cal. 277, 279; 50 Pac. Eep. 399. Hence where an executrix died four years after the death of decedent, without having applied for letters testamentary, the public administrator is entitled to letters of ad- ministration with the wUl annexed upon the estate, and the court has no discretion to refuse such letters to him, and to grant them to the sister of the deceased executrix, although she offers to waive the commissions to which she would be entitled in the interest of the estate: Estate of McDonald, 118 Cal. 277, 280; 50 Pac. Eep. 399. Where the administration of an estate has become vacant by the revocation of the letters of administration with the~ will annexed, and the estate has not been fully administered, it is the duty of the court to appoint an administrator with the will annexed to com- plete the administration; and the court has no right to refuse to make such appointment on the ground that the heirs of the deceased have parted with their interest in the property of the estate: Estate of Pina, 112 Gal. 14, 16; 44 Pac. Eep. 332; Estate of Strong, 119 340 PEOBATE LAW AND PRACTICE. Cal. 663, 667; 51 Pac. Eep. 1078. The statute which provides that " if the sole executor or all the executors are incompetent, or re- nounce, or fail to apply for letters, or appear and qualify, letters of administration with the will annexed must be issued as designated and provided for the grant of letters as in eases of intestacy," refers only to eases where an executor has been named in the will: Estate of Von Buncken, 120 Cal. 343; 52 Pae. Eep. 819. (6) Who are not entitled to. In the event that no executor is appointed in the will, the public administrator, as against a legatee, is not entitled to letters of administration with the will annexed: Estate of Ton Buncken, 120 Cal. 343; 52 Pac. Eep. 819. In the case of a partnership estate where there were unsettled matters be- tween the partners, growing out of the partnership relation, at the time of the death of one of the partners, the surviving partner is not entitled to letters of administration with the will annexed: Estate of Garber, 74 Cal. 338, 340; 16 Pao. Kep. 233. 7. Validity and effect of appointment. Letters testamentary is- sued to one person are unauthorized and void where the order of the court directed the letters to be issued to another person: Estate of Frey, 52 Cal. 658, 661. After letters testamentary have been issued, the court has no power afterwards to appoint a special adminis- trator of the estate, unless the executor or executrix is first sus- pended or removed: Schroeder v. Superior Court, 70 Cal. 343; 11 Pac. Eep. 651. ■ But the appointment of an administrator with the wUl annexed supersedes, per se, all former administrations of the estate: McCanley v. Harvey, 49 Cal. 497, 505. 8. Appeal. Where a will has been refused probate in the lower court, but the appellate court directs the will to be admitted to probate, the lower court will not be directed to issue letters of administration with the will annexed to the petitioner, unless it has been found as a fact by the probate court that he is a proper person to receive such letters. That matter must be left open for the further consideration of the court below: Estate of Wood, 36 Cal. 75, 82. If the executor named in the will fails to apply for letters testamentary, the exercise of the court's discretion in ap- pointing some other person administrator with the wUl annexed will not be disturbed, where no abuse of discretion is shown: Eice v. Tilton, 13 Wyo. 420; 80 Pao. Eep. 828, 832. In a controversy be- tween two persons to be appointed executors of an estate, the judg- ment of the supreme court settling the matter should be carried into effect by the probate court, notwithstanding the death of one of the persons before the last-nan>ed court acts on the matter: Es- tate of Pacheco, 29 Cal. 224. FORM OF LETTERS. 341 CHAPTEK II. FORM OF LETTERS. S 233. Form of letters testamenary. § 234. Form. Oath of executor or executrix. § 235. Form. Clerk's certificate that letters testameBtary have been recorded. § 236. Form of letters of administration with the will annexed. § 237. Form. Oath of administrator with the will annexed. § 238. Form. Clerk's certificate that letters of administration with the will annexed have been recorded. § 239. Form of letters of administration. § 240. Form. Oath of administrator or administratrix. § 241. Form. Clerk's certificate that letters of administration have been recorded. OATH, AND SEAL TO LETTERS. 1. Oath required. 2. Necessity of seal to letters. 3. Effect of omitting seal. § 233. Form of letters testamentary. Letters testamentary must be substantially in the following form: State of Cali- fornia, 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 sueh,^ 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. Kerr's Cyc. Code Civ. Proc, § 1360. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 798, p. 309. Arizona. Rev. Stats. 1901, par. 1644. Colorado. 3 Mills's Ann. Stats., sec. 4718. Idaho.* Code Civ. Proc. 1901, sec. 4038. Montana.* Code Civ. Proc, sec. 2420. Nevada. Comp. Laws, sec. 2821. 342 PROBATE LAW AND PRACTICE. North Dakota. Eev. Codes 1905, § 8053. Oklahoma. Eev. Stats. 1903, sec. 1529. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1136. South Dakota. Probate Code 1904, § 77. Utah.* Eev. Stats. 1898, sec. 3804. Washington. Pierce's Code, §§ 2427, 2431. Wyoming. Eev. Stats. 1899, sec. 4657. § 234. Form. Oath of executor or executrix. [Title of court.] ( No. Dept. No. - [Title of estate.] | ^^.^^^ „f f^^m.] State of , ) -J' County^ of ss. I do solemnly swear that I will support the constitution of the United States and the constitution of the state of , and that I will faithfully discharge the duties of executor '= of the last will of , deceased, according to law. Subscribed and sworn to before me this day of , 19 — , Deputy County Clerk of the County * of . Explanatory notes. 1. Or, City and County. 2. Or, executrix. 3. Or, City and County. The oath is to be attached to the letters, and the letters must be recorded: See § 275, post. § 235. Form. Clerk's certificate that letters testamentary have been recorded. [Title of court.] [Title of estate.] I^"' -^•' ^^P*" ^"j ■■ ■■ \ [Title of form.] Office of the County Clerk. County " of , ss. I, , county clerk of the county ' of , and ex officio clerk of the * court thereof, do "hereby certify the foregoing to be a full, true, and correct copy of the letters testamentary in the matter of the estate of , deceased, now on file and of record in my office; and I further certify that the same have not been revoked or vacated, but are still of full force and efifect. FOEM OF LETTERS. 343 Witness my hand and the seal of said court this day of , 19 — , Clerk. [Seal] By , Deputy Clerk. Explanatory notes. 1. Give file number. 2, 3. Or, City and County. 4. Title of court. § 236. Form of letters of administration with the will annexed. Letters of administration, with the will annexed, must be substantially in the following form: State of Cali- fornia, 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 afSxed, the day of , A. D. 18 — (Seal.) By order of the court. G. H., Clerk. Kerr's Oyc. Code Civ. Proc, § 1361. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1645. Coloiado. 3 MUIb's Ann. Stats., sec. 4718. Idaho.* Code Civ. Proc. 1901, sec. 4040. Montana. Code Civ. Proc, sec. 2421. Nevada. Comp. Laws, sec. 2822. Oklahoma. Eev. Stats. 1903, sec. 1580. South Dakota. Probate Code 1904, § 78. Utah.* Eev. Stats. 1898, sec. 3805. Washington. Pierce's Code, § 2432. Wyoming. Eev. Stats. 1899, sec. 4658. § 237. Form. Oath of administrator with the will annexed. [Title of, court.] ( No 1 Dept. No. . [Title of estate.] |- j-Tj^e of form.] State of , County'' of J ss. I do solemnly swear that I will support the constitution of the United States and the constitution of the state of , 344 PROBATE LAW AND PRACTICE. and that I will faithfully perform, according to law, the duties of administrator ' with the will annexed of the estate of , deceased. Subscribed and sworn to before me this day of , 19 — Deputy Clerk. Explanatory notes. 1. Give file number. 2. Or, City and County. 3. Or. administratrix. This oath is to be attached to the letters, and the letters must be recorded: See § 275, post. § 238. Form. Clerk's certificate that letters of adminis- tration with the will annexed have been recorded. [Title of court.] ( No 1 Dept. No . [Title of estate.] | ^^itle of form.] State of , 1 County ^ of , j I, , county clerk of the county ' of , and ex officio clerk of the * court thereof, do hereby certify the fore- going to be a full, true, and correct copy of the letters of administration with the will annexed in the matter of the estate of , deceased, now on file and of record in my office; and I further certify that the same have not been revoked or vacated, but are still of full force and effect.. Witness my hand and the seal of said court this day of , 19 — , Clerk. [Seal] By , Deputy Clerk. Explanatory notes. . 1. Give file number. 2, 3. Or, City and County. 4. Title of court. § 239. Form of letters of administration. Letters .of ad- ministration 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., de- ceased. (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. Kerr's Oyc. Code Civ. Proc, § 1362. FORM OF LETTERS. 345 ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 799, p. 309. Arizona.* Eev. Stats. 1901, par. 1646. Colorado. 3 Mills's Ann. Stats., see. 4718. Idaho.* Code Civ. Proe. 1901, sec. 4060. Montana.* Code Civ. Proc, sec. 2422. Nevada. Comp. Laws, sec. 2838. North Dakota. Eev. Codes 1905, § 8055. Oklahoma. Eev. Stats. 1903, sec. 1531. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1137. South Dakota. Probabj Code 1904, § 79. Utah. Eev. Stats. 1898, sec. 3820. Washington. Pierce's Code, § 2438. Wyoming. Eev. Stats. 1899, sec. 4659. § 240. Form. Oath of administrator or administratrix. [Title of court.] ( No. Dept. No. [Title of estate.] | ^^itle of form.] State of , •> County ^ of , j I do solemnly swear that I will support the constitution of the United States and the constitution of the state of , and that I will faithfully discharge the duties of administrator ^ of the estate of , deceased, according to law. Subscribed and sworn to before me this day of , 19 — , Deputy County Clerk. r.s. Explanatory notes. 1. Or, City and County. 2. Or, administratrix. This oath is to be attached to the letters, and the letters must be recorded: See § 275, post. § 241. Form. Clerk's certificate that letters of adminis- tration have been recorded. [Title of court.] (No. 1 Dept. No. . [Title of estate.] | [-^j^lg ^^ f^^m.] State of , \ County ' of , J I, , county clerk of the county ' of , and ex officio clerk of the * court thereof, do hereby certify 346 PBOBATE LAW AND PBACTICB. the foregoing to be a full, true, and correct copy of the letters of administration in the matter of the estate of , deceased, now on file and of record in my office; and I further certify that the same have not been revoked or vacated, but are still of full force and effect. Witness my hand and the seal of said court this day of , 19 — . , Clerk. [Seal] By . Deputy Clerk. Explanatory notes. 1. Give file number. 2, 3. Or, City and County. 4. Title of court. OATH, Ain) SEAL TO LETTERS. 1. Oatb reciuiied. 2. Necessity of seal to letters. 3. Effect of omitting seal. 1. Oath required. No person ean fill the position of executor or administrator until he has qualified according to law, and no recog- nition by the probate court can make him an officer de facto: Pryor V. Downey, 50 Cal. 388, 399; 19 Am. Eep. 656; Estate of Hamilton, 34 Cal. 464, 469. If a person has been named in the will as executor, he is not a trustee for the estate until he qualifies, although he has actually applied for letters. His refusal or neglect to qualify is a disclaimer of the trust: Bowden v. Pierce, 73 Cal. 459, 463; 14 Pae. Eep. 302; 15 Pac. Eep. 64. Where the estimated value of the estate was forty-five thousand dollars, it was objected that the executor did not properly qualify, so as to entitle him to enter upon the discharge of his trust; but the court held that the objection could not prevail, since the will fixed the amount of the bond at twenty thousand dollars, and the bond in that sum was executed and approved by the county court. This provision of the will was said to be reasonable, and the bond designated having been given, it was deemed unneces- sary to require the executor to take the oath prescribed in eases where the undertaking is wholly dispensed with: In re Censer's Estate, 40 Or. 138; 66 Pae. Eep. 607, 609. 2. Necessity of seal to letters. It is not necessary to affix a seal of the court to any other matter contained on the sheet or page upon which the letters of administration are written, but it is neces- sary to affix one to the letters, and the affixing of a seal upon the paper on which the lettei^s are written is a substantial compliance with the law: Sharp v. Dye, 64 Cal. 9, 11. The probate seal of a probate judge adopted as the seal of the probate court is entitled to full credit as such: Ward v. Moorey, 1 Wash. Ter. 104. FOEM OP LETTERS. 347 3. Effect Of omitting seal. The purpose of the seal is to authen- ticate the letters, but where the court has recognized one as admin- istrator, the fact that the seal has been omitted from the letters of administration, although the letters recite that the seal was affixed, cannot be made the basis for a collateral attack. The absence from the letters of the impress of the seal does not impair, their effect, in a collateral action, as evidence of the administrator's authority: Dennis V. Bint, 122 Cal. 39; 68 Am. St. Eep. 17; 54 Pae. Eep. 378, 380. 348 PROBATE LAW AND PRACTICE. CHAPTBE III. LETTEES OF ADMINISTEATION. TO WHOM AND THE OEDEE IN WHICH THEY AEE GEANTED. § 242. Order of persons entitled to administer estate. Partner not to administer. § 243. Preference of persons equally entitled. § 244. In discretion of court to appoint administrator when. § 245. When minor or incompetent is entitled, who must be ap- pointed. § 246. Who are incompetent to act as administrators. § 247. Married woman may be administratrix. § 242. Order of persons entitled to administer estate. Partner not to administer. Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof; and they are, respectively, entitled 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 and mother. 4. The brothers. 5. The sisters. 6. The grandchildren. 7. The next of kin entitled to share in the distribution of the estate. 8. The 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 ease be appointed administrator of his estate. This section shall apply to the relatives of the previously deceased spouse of GRANTING LETTERS OP ADMINISTRATION. 349 decedent when entitled to succeed to some portion of the estate under subdivision eight of section thirteen hundred and eighty-six of the Civil Code. Kerr's Oyc. Code Oiv. Proc. (Kerr's Stats, and Amdts., p. 493), § 1365. ANALOOOVS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sees. 774, 776, p. 305. Arizona. Eev. Stats. 1901, par. 1647. Colorado. 3 Mills's Ann. Stats., sec. 4694. Idaho. Code Civ. Proo. 1901, see. 4041. Kansas. Gen. Stats. 1905, § 2886. Montana. Code Civ. Proe., sec. 2430. Nevada. Comp. Laws, sec. 2823. New Mexico. Comp. Laws 1897, sees. 1963, 1964. North Dakota. Eev. Codes 1905, §§ 8021, 8022, 8046. Oklahoma. Eev. Stats. 1903, sec. 1532. Oregon. BeUinger and Cotton's Ann. Codes and Stats., §§ 1112, 1114. South Dakota. Probate Code 1904, § 80. Utah. Eev. Stats. 1898, sees. 3812, 3815. Washington. Pierce's Code, § 2433. Wyoming. Eev. Stats. 1899, see. 4635. § 243. Preference of persons equally entitled. Of sev- eral persons claiming and equally entitled to administer, males must be, preferred to females, and relatives of the whole to those of the half blood. Kerr's Cyc. Code Civ. Proc, § 1366. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1648. Idaho.* Code Civ. Proc. 1901, sec. 4042. Montana.* Code Civ. Proc, sec. 2431. Nevada.* Comp. Laws, sec. 2824. North Dakota. Eev. Codes 1905, § 8028. Oklahoma.* Eev. Stats. 1903, sec. 1533. South Dakota.* Probate Code 1904, § 81. Utah. Eev. Stats. 1898, see. 3813. § 244. In discretion of court to appoint administrator when. When there are several persons equally entitled to the administration, the court may grant letiers to one or more of them; and when a creditor is claiming letters the court may, 350 PROBATE LAW AND PEACTICB. in its discretion, at the request of another creditor, grant letters to any other person legally competent. Kerr's Cyc. Code Civ. Proc, § 1367. AXALOGOUS AND IDENTICAIi STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1649. Idaho.* Code Civ. Proc. 1901, see. 4043. Montana. Code Civ. Proc, sec. 2432. Nevada. Comp. Laws, see. 2825. North Dakota. Eev. Codes 1905, § 8028. Oklahoma.* Rev. Stats. 1903, sec. 1534. South Dakota.* Probate Code 1904, § 82. Utah. Eev. Stats. 1898, see. 3813. Wyoming. Eev. Stats. 1899, sec. 4636. § 245. When minor or incompetent is entitled, who must be appointed. If any person entitled to administration is a minor or an incompetent person, letters must be granted to his or her guardian, or any other person entitled to letters of administration, in the discretion of the court. Kerr's Cyc. Code Civ. Proc, § 1368. ANALOGOUS AND IDENTICAI. STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1650. Colorado. 3 Mills's Ann. Stats., sec. 4698. Idaho. Code Civ. Proc. 1901, sec. 4044. Montana. Code Civ. Proc, sec. 2433. North Dakota. Eev. Codes 1905, § 8022. Oklahoma. Eev. Stats. 1903, sec. 1535. South Dakota. Probate Code 1904, § S3. Utah. Eev. Stats. 1898, sees. 3813, 3815. § 246. Who are incompetent to act as administrators. No person is competent or entitled to serve as administrator or administratrix who is : 1. Under the age of majority. 2. Not a bona fide resident of the state. 3. Convicted of an infamous crime. 4. Adjudged by the court uieompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. Kerr's Cyc. Code Civ. Proc, § 1369. GRANTING LETTERS OP ADMINISl'EATION. 351 ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 797, p. 309. Arizona. Rev. Stats. 1901, par. 1651. Idaho.* Code Civ. Proo. 1901, see. 4045. Kansas. Gen. Stats. 1905, § 2902. Montana. Code Civ. Proc, sec. 2434. Nevada. Comp. Laws, sec. 2826. New Mexico. Comp. Laws 1897, sec. 1959; Laws 1901, p. 154, see. 16, as amended Laws 1903, p. 56. North Dakota. Bev. Codes 1905, §§ 8022, 8046. Oklahoma. Bev. Stats. 1903, sec. 1536. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1135, South Dakota. Probate Code 1904, § 84. Utah. ■ Bev. Stats. 1898, sec. 3815. Washington. Pierce's Code, § 2488. Wyoming. Bev. Stats. 1899, sec. 4637. § 247. Married woman may be administratrix. A mar- ried woman may be appointed administratrix. Wben an unmarried woman appointed administratrix marries, her authority is not thereby extinguished. Kerr's Cyc. Code Civ. Proc, § 1370. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Bev. Stats. 1901, par. 1652. Idaho. Code Civ. Proc. 1901, sec. 4046. Montana. Code Civ. Proc, sec. 2435. Nevada. Comp. Laws, sec. 2827. North Dakota. Bev. Codes 1905, §§ 8022, 8046. Oklahoma. Bev. Stats. 1903, sec. 1537. South Dakota. Probate Code 1904, § 85. Utah. Bev. Stats. 1898, sec. 38i6. Washington. Pierce's Code, § 2434. Wyoming. Bev. Stats. 1899, sec. 4638. 352 PROBATE LAW AND PRACTICE. CHAPTER IV. PETITION AND CONTEST FOR LETTEES, AND ACTION THEREON. § 248. Applications, how made. § 249. Eorm. Petition for letters of administration. § 250. Form. Petition by corporation for letters of administration. i 251. Form. Petition for letters, etc., to others than those entitled. § 252. When granted. § 253.- Notice of application. Day of hearing to be set by clerk. i 254. Form. Notice of hearing of petition for letters of administra- tion. § 255. Contesting application. Hearing. § 256. Form. Affidavit of posting of notice of hearing of application for letters of administration. (By deputy county clerk.) i 257. Form. Affidavit of posting of notice of hearing of application for letters of administration. (By any person over twenty- one years of age.) § 258. Form. Objections to appointment of administrator. § 259. Form. Order that application for letters and contest for letters be heard together. § 260. Hearing of proofs and issuance of letters. § 261. Form. Order appointing administrator. § 262. Evidence of notice. § 263. Grant to any applicant. § 264. What proofs must be made before granting letters of adminis- tration. § 265. Request in writing. Letters may issue to whom. I 266. Form. Bequest for another's appointment as administrator. LETTERS OE ADMINISTRATION. 1. Granting or refusing of adminis- 8. Priority. Preference. tra^on in general. 9. Right to nominate. Letters to 2. Jurisdiction of courts. others than those entitled. 3. Preliminary proof. (1) In general. 4. Letters on estate of minor. (2) Non-residents, 6. Petition for letters. 10. Letters where several are equally (1) In general. entitled. (2) Application by creditors. 11. Discretion of court. (3) Construction of statute. 12. Notice and hearing. (4) Statement of facts. 13, Contest of application. (5) Sufficiency of petition. (1) In general. (6) To be granted in what court (2) What questions are involved. and county. (8) Who may appear and contest. 6. Order o£ appointment. (4) Allegations. Proof. Presump- 7. Who are entitled to letters. tion. PETITION AND CONTEST FOR LETTERS. 353 14. Waiver of right. DelRy. 20. Competency. Disqualification to act. l.l. Validity of appointment and let- (1) In general. tors. (2) Want of understanding. 16. Collateral attack. (3) Drunkenness. 17. Order granting letters. Effect of. i4) Improvidence. 18. Vesting of appointee with office. (5) Want of Integrity. 19. Who are not entitled to appoint- 21. Non-residents. ment. 22. Appeal. § 248. Applications, 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 residences of the heirs of the decedent, and the value and character of the property. If the jurisdictional facts exist, and are proved at the hearing but are not fully set forth in the petition, the decree or order of administration and subsequent proceedings are not void on account of such want of jurisdictional averments. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 493), § 1371. ANAI.O&OUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 781, p. 306. Arizona. Eev. Stats. 1901, par. 1653. Idaho. Code Civ. Proc. 1901, sec. 4047. Montana. Code Civ. Proc, sec. 2440. Nevada. Comp. Laws, see. 2828. New Mexico. Comp. Laws 1897, sec. 1942. North Dakota. Eev. Codes 1905, §§ 7934, 8024. Oklahoma. Eev. Stats. 1903, sec. 1538. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §1119. South Dakota. Probate Code 1904, § 86. Utah. Eev. Stats. 1898, see. 3817. Washington. Pierce's Code, § 2435. Wyoming. Eev. Stats. 1899, sec. 4646. § 249. Fortn. Petition for letters of administration. LTitle of court.] [Title of estate.] | Department No. —^ "■ ■" \ [Title of form.] To the Honorable , Judge of the Court of the County ^ of , State of The petition of , of said county,^ respectfully shows : Probate — 23 354 PROBATE- LAW AND PEACTICE. That died on or about the day of — : — , 19 — -. in the county " of , state of ; That said deceased, at the time of his * death, was a resi- dent of the couUty ° of :-, state of ; That said deceased left estate in the county' of , state of , consisting of ' property ; That the value, character, and annual revenue of said property are as follows, to wit : ; ' That the estate and. effects for or in respect to which letters of administration are hereby applied for do not exceed the value of dollars ($ ) ; * That the names, ages, and residences of the next of kin of said deceased, and whom your petitioner js advised and believes, and therefore alleges, to be the heirs at law of said deceased, are as follows, viz.: Names. Ages. Residences. That due search and inquiry have been made to ascertain if said deceased left any will and testament, but none has been found, and, according to the best knowledge, informa- tion, and belief of your petitioner, said deceased died in- testate ; That your petitioner is a son ^^ of said deceased, one of his heirs at law, and entitled to share in the distribution of his estate, if said deceased died intestate, and therefore, as your petitioner is advised and believes, is entitled to letters of administration upon said estate.^^ Wherefore your petitioner -prays that a day of court may be appointed for hearing this application; that the clerk of this court be directed to give due notice thereof by post- ing notices according to law; and that, upon said hearing and the proofs to be adduced, letters of administration of said estate may be issued to your petitioner. Dated , 19 — , Petitioner. , Attorney for Petitioner. Explanatory "notes. 1-3. Or, City and County. 4. Or, her. 5, 6. Or, city and county. 7. Eeal and personal, or either, as the ease may be. 8. Give details. 9. State amount. 10. Or according to the fact. PETITION AND CONTEST FOR LETTERS. 355 11. In case the public administrator applies for letters, say, " That your petitioner is the public administrator of said county [or city and county]; that decedent left no known heirs"; or, "That no party entitled to administer has applied for letters; and that your petitioner is entitled to letters of administration." § 250. Form. Petition by corporation for letters of ad- ministration. [Title of court.] [Title of estate.] ' • \ department No . ( [Title of form.] The petition of the Company respectfully shows : That petitioner is a corporation organized and existing under the laws of the state of , and is authorized by its articles of incorporation to act as executor, adminis- trator, guardian, assignee, receiver, depositary, or trustee, and has a paid-up capital of not less than thousand dollars ($ ), of which thousand dollars ($ ) has been actually paid in, in cash, and has deposited with the treasurer of said estate for the benefit of its creditors the further sum of thousand dollars ($ ), in bonds and securities, in compliance with the provisions of law ; ^ which said bonds and securities are now held by said treasurer, in his official capacity, for the uses and purposes aforesaid, and that petitioner has complied with all the re- quirements of said act, and has procured from the board of bank commissioners of the state of a certificate of authority stating that it has complied with the requirements of said act and is authorized to act as executor, administra- tor, guardian, assignee, receiver, depositary, or trustee.^ Explanatory notes, 1. Designate the act giving authority. 2. Pro- ceed as in an ordinary petition for letters of administration by an in- dividual: " That died," etc. § 251. Form. Petition for letters, etc., to others than those entitled. [Title of court.] TTitle of estate 1 I Departmgnt No. . [Title of estate.] | ^^.^^^ ^^ ^^^^^ [This form is the same as the ordinary petition for letters of administration (see §249), except the last paragraph 356 PROBATE LAW AND PRACTICE. before the prayer. In the place of said last paragraph 'substitute the foUowiag:] That the person entitled to letters of administration on said estate, to wit, , declines to act as administrator '■ thereof, and has made and filed herein a written request that your petitioner, a competent person, be appointed in his stead as such administrator ; " and that said request is annexed hereto and made a part hereof, the same as if in- corporated herein. Explanatory notes. 1, 2. Or, administratrix. § 252. When granted. Letters of administration 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. Kerr's Oyc. Code Civ. Proc, § 1372. ANAI.OGOUS AND IDENTICAL STATUTES. The ' indicates identity. Arizona. Bev. Stats. 1901, par. 1654. Idaho. Code Civ. Proe. 1901, see. 4048. Montana.* Code Civ. Proe., sec. 2441. Oklahoma. Bev. Stats. 1903, sec. 1539. South Dakota. Probate Code 1904, §87. Wyoming. Bev. Stats. 1899, sec. 4647. § 253. Notice of application. Day of hearing to be set by clerk. When a petition praying for letters of administra- tion is filed, the clerk of the court must set the petition for hearing by the court, and 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. Kerr's Oyc. Code Oiv. Proc, § 1373. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Bev. Stats. 1901, par. 1655. Idaho. Code Civ. Proc. 1901, sec. 4049. Montana. Code Civ. Proc, sec. 2442. Nevada. Comp. Laws, sec. 2828. North Dakota. Bev. Codes 1905, § 8024. PETITION AND CONTEST FOE LETTERS. 357 Oklahoma. Rev. Stats. 1903, sec. 1540. South Dakota. Probate Code 1904, § 88. Utah. Eev. Stats. 1898, sec. 3818. • Washington. Pierce's Code, § 2437. Wyoming. Eev. Stats. 1899, sec. 4648. § 254. Form. Notice of hearing of petition for letters of administration. [Title of court.] [Title oJ: estate.] ept. No . I [Title of form.] It appearing that ;=' and that there is no judge of this court qualified to act therein, — DISQUALIFICATION TRANSFERS. ' 477 It is ordered, That the above-entitled proceeding be, and the same is hereby, transferred to the court of the county " of ., being an adjoining county; and the clerk of this court is hereby directed to transmit to the clerk of tlie court of said county * of a certified copy of this order, and all papers on file in his office in said proceed- ings. Dated , 19 — '. , Judge of the Court. Explanatory notes. 1. Give file number. 2. A petition has been filed herein for the admission to probate of the will of , de- ceased; or, for the granting of letters testamentary thereon; or, that a petition has been filed for letters of administration on the estate of , deceased; or,- that proceedings are now pending in this court for settlement of the estate of , deceased. 3, 4. Or, city and county. § 339. Transfer not to change right to administer. Re- transfer, how made. The transfer of a proceeding from one court to another as provided for in the preceding section, shall not affect the right of any. person to letters testamen- tary or of administration on the estate transferred, but the same persons are entitled to letters testamentary or of ad- ministration on the estate, in the order hereinbefore pro- vided. If, before the administration is closed of any estate so transferred as herein provided, another person is elected or appointed, and qualified as judge of the court wherein such proceeding was originally commenced, who is not dis- qualified to act in the settlement of the estate, and the causes for which the proceeding was transferred no longer exist, any person interested in the estate may have the pro- ceeding returned to the court from which it was originally transferred, by filing a petition setting forth these facts, and moving the court therefor. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 495), § 1432. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1703. Idaho. Code Civ. Proc. 1901, sec. 4097. Montana. Code Civ. Proc, sec. 2532. North Dakota. Eev. Codes 1905, § 7902. South Dakota. Probate Code 1904, § 29. 478 ' PKOBATE LAW AND PRACTICE. § 340. Form. Petition for order retransferring proceed- ing. [Title of court.] (No. 1 Dept. No. [Title of proceeding.] ^ ^^.^^^ ^^ ^^^^ To the Honorable the -^ Court of the County "= of - The petition of respectfully shows : That he is interested in the above estate, and is That the proceedings in said estate were originally com- menced in the court of the county * of , that being the court having original jurisdiction thereof; That said proceedings were transferred to this court, by order, about the day of , 19 — , on account of the disqualification of the then judge of said former court, and are still pending in this court; That since said transfer, and on or about the day of , 19 — , the Honora,ble was elected ° judge of the court from which said proceedings were transferred, and has duly qualified, is now judge of said court, and is in no wise disqualified to act in said proceedings ; and that the causes for which the said proceedings were transferred to this court no longer exist; That the convenience of those interested in said estate, and of most of those who will have occasion to consult the records of said proceedings, and of all witnesses who will probably be called to testify in regard to any matter in the course of said proceedings, or concerning the administration of said estate, will be much promoted by the retransfer of said proceeding to the court of said county " of , from which it was transferred to this court, as above shown ; — Wherefore your petitioner prays that an order be made retransferring said proceedings to the court of the county ' of Dated , 19 — , Petitioner. , Attorney for Petitioner. Explanatory notes. 1. Give file number. 2. Or, City and County. 3. Give nature of interest; as, heir, devisee, executor, administrator, etc. 4. Or, city and county. 5. Or, appointed. 6, 7. Or, city and county. DISQUALIFICATION TRANSFERS. 479 § 341. Form. Order retransf erring proceeding. [Title of court.] [Title of proceeding.] \^° ' ^eP*- ^o . I [Title of form.] It appearing from the petition of ,^ herein filed, that the causes for which the abo-ro-entitled proceeding was transferred to this court no longer exist, and that good cause exists therefor, — It is ordered, That the above-entitled proceeding be, and the same is hereby, transferred back to the court of the county ^ of , from which it was transferred to this court ; and the clerk of this court is directed to transmit to the clerk of said court of the county * of. a certi- fied copy of this order, and all original papers on file in his office relating to said proceeding. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Give name of peti- tioner. 3, 4. Or, city and county. § 342. When proceedings must be returned to original court. On hearing the motion, if the facts required by the preceding section to be set out in the petition are satisfac- torily shown, and it further appears to the court that the convenience of parties interested would be promoted by such change, the judge must make an order transferring the proceeding back to the court where it was originally com- menced; and the clerk of the court ordering the transfer must transmit to the clerk of the court in which the proceed- ing was originally commenced, a certified copy of the order, and all the original papers on file in his office in the proceed- ing ; and the court where the proceeding was originally com- menced shall thereafter have jurisdiction and power to make all necessary orders and decrees to close up the admin- istration of the estate. Kerr's Cyc. Code Civ. Proc, § 1433. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1704. Idaho.* Code Civ. Proe. 1901, see. 4098. Montana.* Code Civ. Proc, sec. 2533. 480 PROBATE LAW AND PRACTICE. North Dakota.* Eev. Codes 1905, § 7903. South Dakota. Probate Code 1904, § 29. Utah. Eev. Stats. 1898, sec. 3776. DISQUALIFICATION OF JUDGE. TEANSFEE OP PEOCEEDINGS. Judge is disc[ualified when. Where the sons of the judge are attorneys and hold a contract for a share of the estate, and are therefore the equitable owners of such share, such judge is disqualified from hearing and adjudging a con- test upon a petition for the revocation of letters of administration, and for the issuance of letters to another, who claims the entire estate as sole heir: Howell v. Budd, 91 Cal. 342, 350; 27 Pac. Eep. 747. In this case the application for a transfer of the cause was clearly insufficient, but, as an adjudication of the cause upon its merits was desired, and objection to the course adopted by the peti- tioner in making his application for an order of transfer was waived, the court proceeded to examine the cause upon the main questions involved: Howell v. Budd, 91 Cal. 342, 347; 27 Pac. Eep. 747. EEFEBENCES. Eemoval to Federal court of actions relating to estates of deceased persons, because of separable controversy: See note S L. E. A. (N. S.) 49, 81. REMOVALS AND SUSPENSIONS. 481 CHAPTER X. REMOVALS AND SUSPENSIONS IN CERTAIN CASES. § 343. Suspension of powers of executor. § 344. Form. AfSdavit for removal. § 345. Form. Order suspending administrator or executor. % 346. Form. Order suspending powers of administrator or executor until question of ■wa.F'-^ can be determined. % 347. Form. Order restoring powers of suspended administrator or executor. % 348. Revocation of letters when. §349. Form. Order revoking letters of administration. (Sliortform.) I 350. Form. Order revoking letters for wasting estate. i 351. Any party interested may appear on hearing. § 352. Form. Allegations of cause for removal. I 353. Notice to absconding executors and administrators. S 354. Form. Order to show cause, and directing notice to absconding administrator or executor. § 355. Court may compel attendance. REMOVAL. SUSPENSION. RESIGNATION. 1. In general. 8. Removal o£ non-resident executors 2. Vacancy in administration. for absence. 3. Resignation. 9. What is no cause for removal. 4. Province of court. 10. Notice. Hearing. Evidence. 5. Petition for removal. 11. Order of removal, and its effect. €. Suspension. 12. Appeal. 7. What is cause for removal. § 343. Suspension of powers of executor. Whenever a judge of a superior court has reason to believe from his own knowledge, or from credible information, that any executor or administrator has wasted, embezzled, or mismanaged, or is about to waste or embezzle the property of the estate committed to his charge, or has committed or is about to commit a fraud upon the estate, or is incompetent to act, or has permanently removed from the state, or has wrongfully neglected the estate, or has long neglected to perform any act as such executor or administrator, he must, by an order entered upon the minutes of the court, direct such executor or administrator to be cited to appear and show cause why Probate — 31 482 PROBATE LAW AND PEACTICE. his letters should not be revoked, and may also suspend the powers of such executor or administrator, until the matter is investigated. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p.. 495), § 1436. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sees. 783, 784, p. 307. Arizona. Eev. Stats. 1901, par. 1705. Colorado. 3 Mills's Ann. Stats., sec. 4707. Idaho. Code Civ. Proe. 1901, see. 4099. Kansas. Gen. Stats. 1905, §§ 2897, 2902. Montana. Code Civ. Proe., sec. 2540. Nevada. Coinp. Laws, sec. 3026. New Mexico. Laws 1901, sees. 6, 7, 8, pp. 151, 152. North Dakota. Eev. Codes 1905, §§8064, 8066. Oklahoma. Kev. Stats. 1903, sec. 1585. Oregon. Bellinger and Cotton's Ann. Codes and Stat3., §| 1121, l]-22. South Dakota. Probate Code 1904, § 133. Utah. Kev. Stats. 1898, sec. 3837. Washington. Pierce's Code, § 2460. Wyoming. Eev. Stats. 1899, sec. 4622. § 344. Form. Affidavit for removal. [Title of court.] No 1 Dept. No. . [Title of estate.] State of , County '^ of . [Title of form.] ) , being duly sworn, says that he is a creditor" o" said estate, and is interested therein; that his claim has been approved and filed, and that no part thereof has been paid.* Subscribed and sworn to before me this day of , 19 — , Notary Public, etc.'' E^gjlanatory notes. 1. Give file number. 2. Or, City and County. 3. Or other interested person. 4. Here state the facts which authorize the renioval of the administrator or executor; such as those which show that he has wasted, embezzled, or mismanaged, or is about to waste or embezzle, the property of the estate; or, has committed, or is about to commit, a fraud upon the estate; or, is incompetent to act; or, has permanently removed from the state; or, has wrongfully ne- glected the estate; or, has long neglected to perform any act as such administrator or executor. 5. Or other of&cer taking the oath. REMOVALS AND SUSPENSIONS. 483 § 345. Form. Order suspending administrator or execu- tor. LTitle of court.] [Title of estate.] I^°- T;;;:-' ^^i' ^°- '- ( [Title of form.] The undersigned, judge of the ^ court of the county ^ of , state of , having reason to believe, from his own knowledge,* that , the administrator ° of the above- entitled estate, is wasting, embezzling, and mismanaging the property of the said estate committed to his charge," — It is ordered, That the powers of the said , as such administrator,' be, and they are hereby, suspended until the matter is investigated. Tl is further ordered, That a citation be issued to the said , notifying him of such suspension, and requiring him to show cause in the above-entitled court, at the court-room thereof," on ,' the day of , 19 — , why his letters should not be revoked. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, city and county. 4. Or, from credible information. 5. Or, adminis- tratrix; or, administrator or administratrix with the will annexed; or, executor or executrix; or the plural of any of these, according to the fact. 6. Or other act justifying suspension. 7. Or, executor, etc., as the case may be, 8. Give number of department, if any, and location 1 ' court-room. 9. Day of week. ^ 346. Form. Order suspending powers of administrator or executor until question of waste can be determined. [Title of court.] , ^ ^ ., (No 1 Dept. No . [Title of estate.] | ^^.^^^ ^^ ^^^^ It appearing from the verified petition of , now on file in the above-entitled matter, that , the administra- tor " of said estate, is wasting the property thereof, and that petitioner prays that said administrator be required to give further security,' — It is ordered. That the powers of , as such adminis- trator * of the estate of , deceased, be, and they are hereby suspended until the matter can be heard and de- 484 PROBATE LAW AND PEACTICE. termined; and that a copy of this order be served upon , the said administrator." Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor, etc., ac- cording to the fact. 3. Or, to give bond, where, by the terms of the will, no bond was originally required. 4, 5. Or, executor, etc., as the case may be. § 347. Form. Order restoring powers of suspended ad- ministrator or executor. [Title of court.] [Title of estate.] I^"' "t;;:' ^7*-^°; — • ■■ -■ I [Title of form.] This court having, on the day of , 19 — , made an order suspending the powers of , the administrator '' of said estate, until certain matters named in said order could be investigated, and said matters having been fully investigated, but it appearing that said administrator ^ has not been derelict in his duty toward said estate, — It is ordered, -That his powers as such administrator * be, and the same are hereby, restored. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2-4. Or, administratrix; or, administrator or administratrix with the will annexed; or, executor or executrix of the last will and testament of ; or the plural of any of these, according to the fact. §348. Revocation of letters when. If the executor or administrator fails to appear in obedience to the citation, or, if he appears, and the court is satisfied from the evidence, that there exists cause for his removal, his letters must be revoked. Karr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 495), §1437. ANALOGOUS AND IDENTICAI. STATUTEa No identical statute found. Alaska. Carter's Code, sees. 783, 784, p. 307. Arizona. Rev. Stats. 1901, par. 1706. Colorado. 3 Mills's Ann. Stats., sec. 4707. Idaho. Code Civ. Proc. 1901, sec. 4100. Kansas. Gen. Stats. 1905, § 2897. KEMOVALS AND SUSPENSIONS. 485 Montana. Code Civ. Proe., sec. 2541. Nevada. Comp. Laws, see. 3028. New Mexico. Laws 1901, sees. 6, 7, 8, pp. 151, 152. North Dakota. Eev. Codes 1905, § 8064. Oklahoma. Eev. Stats. 1903, sec. 1586. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1121, 1122. South Dakota. Probate Code 1904, § 134. Utah. Eev. Stats. 1898, sec. 3837. Washington. Pierce's Code, § 2461. Wyoming. Eev. Stats. 1899, see. 4623. § 349. Form. Order revoking letters of administration. (Short form.) [Title of court.] [Title of estate.] P° ^ ^«P*- ^° I [Title of form.] The court being satisfied that cause exists for the removal of , as administrator '■' of the estate of , deceased, and for the revocation of his letters of administration,' — It is hereby ordered. That the letters of administration ' heretofore granted to , as administratoj ° of the above- entitled estate, be, and the same are hereby, revoked; aad the said is hereby ordered to file an account and report of his administration within days from the date of this order. Dated , 19 — , Judge of the ^ Court. Explanatory notes. 1. Give file number. 2. Or, executor, etc., ac- cording to the fact. 3, 4. Or, letters testamentary. 5. Or, executor, etc., as the case may be. § 350. Form. Order revoking letters for wasting estate. [Title of court.] ( No. 1 Dept. No. . [Title of estate.] | [Title of form.] It appearing to the court that a charge of wasting the estate of , deceased, has been preferred against , the administrator ^ thereof^ and the court, on credible in- formation, having heretofore made an order suspending the powers of such administrator ' until such charge could be investigated; and it being shown to the court that a citation 486 PROBATE LAW AND PEACTICE. was duly issued to the said , notifying him of such sus- pension, and commanding him to appear* and show cause, at a time and place mentioned; that said citation has been duly served upon said administrator ^ and returned, as pro- vided by law and as directed by this court ; and that , one of the heirs at law of said deceased, has filed his written allegations showing reasons why the letters of said adminis- trator " should be revoked ; that the said administrator ' has made answer to said citation and to said written allegations ; and said matter having cojne on regularly for hearing,^ and the court having proceeded to hear the allegations and proofs of the parties, and having found that said adminis- trator ° has grossly mismanaged such estate and wasted it; — It is therefore ordered. That the letters of administration ^^ heretofore granted to the said be, and the same are hereby, revoked. , Judge of the Court. Dated , 19 — Explanatory notes. 1. Give file number. 2, 3. Or, executor, etc., according to the fact. 4. Before the court, or a judge thereof. 5. Or, executor, etc., as the case may be. 6. Or, letters testamentary. 7. Or, executor. 8. Or, if the matter has been continued, say, " and the hearing of said matter having been regularly postponed to this day." 9. Or, executor, as the case may be. 10. Or, letters testamentary. § 351. Any party interested may appear on hearing. At the hearing, any person interested in the estate may appear and file his allegations in writing, showing that the executor or administrator should be removed; to which the executor or administrator may demur or answer, as hereinbefore pro- vided. The issues raised must be heard and determined by the court. Kerr's Cyc. Code Civ. Proc, § 1438. AITAIiOGOUS AND IDENTICAL STATUTES. The ' indicates identity. Alaska. Carter's Code, sees. 783, 784, p. 307. Arizona.* Eev. Stats. 1901, par. 1707. Idaho.* Code Civ. Proc. 1901, sec. 4101. Montana.* Code Civ. Proc, sec. 2542. Nevada. Comp. Laws, sec. 3029. New Mexico. Laws 1901, sees. 6, 7, 8, pp. 151, 152. REMOVALS AND SUSPENSIONS. 487 Oklahoma.* Eev. Stats. 1903, sec. 1587. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1121, 1122. South Dakota.* Probate Code 1904*, § 135. Washington. Pierce's Code, § 2462. Wyoming. Eev. Stats. 1899, sec. 4624. § 352. Form. Allegations of cause for removal. [Title of court.] [Title of estate.] P° ' ^«P*- ^° I [Title of form.] , who is interested in the above-entitled estate,^ now comes and files his allegations, in writing, as hereinafter stated, showing why , the administrator ^ of the estate of said deceased, should be removed. First. That said administrator * has wasted and is wast- ing " said estate, in this, ° Second. That said administrator '. has embezzled and eon- verted to his own use property of said estate committed to his charge,' in this, ° Third. That said administrator ^^ has mismanaged the property of the estate committed to his charge, in this, Fourth. That said administrator ^^ has committed ^^ a fraud upon said estate, in this, ^* Fifth. That said administrator ^^ is incompetent to act, for the reason that ^* Sixth. That said administrator " has permanently re- moved from the state. ^' Seventh. That said administrator ^* has wrongfully ne- glected the said estate, in this, "" Eighth. That said administrator ^^ has long neglected to perform any act as such administrator.^^ Wherefore the said ^' prays that the letters of said administrator^* be revoked. , Attorney for the Said ^° Explanatory notes. 1. Give file number. 2. As, creditor, heir at law, etc., according to the fact. 3, 4. Or, executor, etc., as the case may be. 5. Or, is about to waste. 6. State the facts. 7. Or, executor. 8. Or, is about to embezzle, etc., stating how. 9. Giving the facts. 488 PEOBATE LAW AND PRACTICE. 10. Or, executor. 11. State how. 12. Or, executor. 13. Or, is about to commit. 14. Show how. 15. Or, executor. 16. State the reason. 17. Or, executor. 18. Give the facts. 19, Or, executor. 20. Show how. 21, 22. Or, executor. 23. Name of interested party. 24. Or, letters testamentary. 25. Kame of interested party. § 353. Notice to absconding executors and administrators. If the executor or administrator has absconded or conceals himself, or has removed or absented himself from the state, notice may be given him of the pendency of the proceedings by publication, in such manner as the court may direct, and the court may proceed upon such notice as if the citation had been personally served. Kerr's Cyc. Code Civ, Proc, § 1439. ANALOGOUS AND IDBNTICAl STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1708. Idaho.* Code Civ. Proc. 1901, sec. 4102. Montana.* Code Civ. Proc, sec- 2543. Nevada. Comp. Laws, sec. 3030. New Mexico. Laws 1901, sees. 6, 7, 8, pp. 151, 152. Oklahoma. Eev. Stats. 1903, sec. 1589. South Dakota. Probate Code 1904, § 137. Washington.* Pierce's Code, §2463. Wyoming. Eev. Stats. 1899, sec. 4625. § 354. Form. Order to show cause, and directing notice to absconding administrator or executor. [Title of court.] [Title of estate.] P°- -— •' ^fP*" ^°- ■■ •* ( [Title of form.] It appearing that , administrator'' of the estate of deceased, has absconded,' ■ It is ordered, That the clerk of this court cause notice to be given to the said to appear before this court, at the court-room thereof,* on ,° the day of , 19 — , and then and there show cause, if any he can, why his letters should not be revoked. It is further ordered, That notice of the proceedings afore- said be given to the said by publication, and that said notice be published in the , a newspaper of general EEMOVALS AND SUSPENSIONS. 489 circulation printed in said county,' once a week, for four weeks/ , Judge of the Court. Dated , 19 Explanatory notes. 1. Give file number. 2. Or, executor, etc., ac- cording to the fact. 3. Or, concealed himself; or, has removed or absented himself from the state. 4. Give department, if any, and location of court-room. 5. Day of week. 6. Or, city and county. 7. Or in any other manner that the court may direct. The court may also order a copy of the publication, and a certified copy of the petition for removal, to be mailed, postage prepaid, and registered, directed to any address where the absconding administrator or executor may be found. § 355. Court may compel attendance. In the proceedings authorized by the preceding sections of this article, for the removal of an executor or administrator, the court may com- pel his attendance by attachment, and may compel him to answer questions, on oath, touching his administration, and, upon his refusal so to do, may commit him until he obey, or may revoke his letters, or both. Kerr's Cyc. Code Civ. Proc, §1440. ANAI.OGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1709. Idaho.* Code Civ. Proc. 1901, sec. 4103. 'Montana.* Code Civ. Proc, sec. 2544. Nevada. Comp. Laws, sec. 3031. North Dakota. Kev. Codes 1905, § 8065. Oklahoma. Bev. Stats. 1903, sec. 1588. South Dakota. Probate Code 1904, § 136. Washington.* Pierce's Code, § 2464. Wyoming. Eev. Stats. 1899, see. 4626. REMOVAL. SUSPENSION. RESIGNATION. 1. In general. ' 8. Bemoval of non-resident executors 2. Vacancy in administration. for absence. 3. Besignation. 9. What is no cause for removal. i. Province of court. 10. Notice. Hearing.. Evidence. 5. Petition for removal. 11. Order of removal, and its effect. 6. Suspension. 12. Appeal. 7. What is cause for removal. 1. In general. A statute which provides that a sworn petition may be presented, setting forth waste by the executor, and praying 490 PROBATE LAW AND PEACTICE. that he be required to give bond, and that, when such petition is filed, the powers of the executor may be suspended until the matter can be heard and determined, does not in any way conflict with a statute which gives to the probate court a general power to require a bon,d in proper cases: Estate of White, 53 Cal. 19. An ex parte order appointing a special administratrix does not operate as a removal of an executrix previously appointed: Schroeder v. Superior Court, 70 Cal. 343, 344; 11 Pac. Eep. 651. Under a statute which provides that any creditor of the .estate, or any " person interested " therein, may apply for the removal of an administrator, an attorney who has performed services for the estate has an interest therein suf- ficient to authorize him to petition for the removal of the adminis- trator; and the court, in passing on the matter, will take judicial notice of its records and prior proceedings in the administration of the estate: In re Miller's Estate, 40 Or. 424, sub nom. Knight v. Hamakar, 67 Pac. Eep. 107, 109. Under some circumstances, an administratrix is entitled to enjoin the prosecution of a proceeding for her removal. Thus where the administratrix and a county, at the time the proceedings for her removal were instituted in the county court, were engaged in litigation over a claim for a large amount of money, asserted by the county against the estate of which she was administratrix, and the county had brought sundry actions, suits, and proceedings to establish its claim, and the administratrix was making an honest and apparently successful defense thereto, and the county had been unable to establish its claim, but, to prevent the adminis- tratrix from making such defense, and to enable it to succeed in the litigation, it instituted a proceeding for her removal, in the court presided over by the person who had been most active in her behalf, and under whose direction the litigation was being conducted, and where, to give it an apparent standing to maintain such proceeding, the county alleged that it was a creditor of the estate, although it had not established the claim to that relationship, and was not entitled to the rights of a creditor, it seems manifest that the proceeding could not have been instituted in good faith, but was instituted for the purpose of vexing, annoying, and harassing the administratrix, and illegally and wrongfully to deprive the estate, represented by her, of the right to defend against the actions and suits brought by the county on an alleged wrongful claim. Under these circumstances, a court of equity should not hesitate to interfere, by injunction, to pro- tect the rights of the administratrix: Alderman v. Tillamook County (Or.), 91 Pac. Eep. 298, 299. 2. Vacancy in administration. There must be a vacancy in the administration before the appointment of a new administrator: Haynes v. Meeks, 20 Cal. 288, 311. There is no such thing as the removal of an existing administrator, simply by force of the appoint- REMOVALS AND SUSPENSIONS. 491 ment of another. The office must first become vacant before a second appointment can be made. A vacancy may arise by operation of law upon the happening of certain events, as by lunacy of the adminis- trator, established by judicial decree, or by his conviction of an infamous crime: Haynes v. Meeks, 20 Cal. 288, 311. But the sending of an administrator to an asylum for the insane does not create an entire vacancy in the administration of the estate, as that provision of the code which provides that an office becomes vacant on the happening of the incumbent's insanity, " found upon a commission of lunacy issued to determine the fact," has reference to a commission issued out of chancery, and is not the ordinary proceeding taken to send one to an insane asylum: Estate of Moore, 68 Gal. 281, 283; 9 Pae. Eep. 164. If one of several executors or administrators should die, become a lunatic, be convicted of an infamous crime, or otherwise become incapable of executing the trust, the remaining executors or administrators must proceed to complete the execution of the will or administration; and if all the executors or administrators die or be- come incapable, the court must issue letters to others: Estate of Moore, 68 Cal. 281, 283; 9 Pac. Rep. 164. Nor does the fact that a public administrator failed to file an additional bond on taking out letters, as directed by the probate judge, create a vacancy in the office, ipso facto, though it is a ground for declaring a vacancy therein upon a judicial ascertainment and declaration of such omission: In re Craigie's Estate, 24 Mont. 37; 60 Pac. Eep. 495, 496. 3. Besignatiou. A resignation is not a matter absolutely in the power of an administrator, to be made at any time he may choose. The statute confers upon him only a conditional right to resign; that is, ■' provided he shall first settle his accounts and deliver up all the estate to such person as may be appointed by the court "; but the inference to be drawn from such a statute is, that the permission given in the one case is a negative upon the right in all others: Haynes v. Meeks, 20 Cal. 288, 310; Haynes v. Meeks, 10 Cal. 110; 70 Am. Dec. 703. Aftei* his appointment, an administrator has no right to resign, except in the manner pointed out in the statute. He cannot put aside the trust at his own volition. He has no right to consider his own convenience, merely, in such a case. He must first comply with the requirements of the statute before he has the right to ask leave of the court to resign, and it is not till then that the court can allow it: Eamp v. McDaniel, 12 Or. 108; 6 Pac. Eep. 456, 459. If the executor or administrator of an estate resigns his trust, and a new executor is appointed, it must be presumed, on appeal, in favor of the action of the court below, that the former executor or administrator had settled his accounts, delivered up all the assets of the estate to his successor and that all conditions existed which were necessary to authorize the new appointment: Lucas v. Todd, 28 Cal. 182, 185; Jen- 492 PROBATE LAW AND PEACTICB. nings V. Le Breton, 80 Cal. 8, 18; 21 Pac. Eep. 1127; Estate of Allen, 78 Cal. 581, 21 Pac. Eep. 426. Upon the resignation of the adminis- trator, it is the duty of the court to appoint another, competent to receive the estate from the retiring administrator, and complete its administration: Wilson v. Hernandez, 5 Cal. 437, 443. If a person tenders his resignation as administrator and files, at the same time, his account with the estate, showing his receipts' and disbursements, but shortly afterwards certain heirs of the deceased petition for the appointment of an administrator de bonis non, and, at the same time, file objections to the accounts submitted by the administrator, who, on the hearing of such matters, withdraws his resignation, whereupon the petitioners ask for his removal, on the ground that he had wrong- fully neglected his duties as administrator, to the detriment of the estate, the heirs have the right to insist upon the revocation of his letters. The administrator, having filed his resignation, and thereby tendered the issue whether or not his letters should be revoked, could not, after the issue had been joined in by the heirs of the estate, withdraw from it by withdrawing his resignation: In re Dietrich's Estate, 39 Wash. 520; 81 Pac. Eep. 1061, 1062. An executor's agree- ment to resign for a consideration is illegal. Such an agreement is against public policy: Currier v. Clark, 19 Col. App. 250; 75 Pac. Eep. 927. But it is well settled that the renunciation of an executor, may be retracted at any time before letters have been actually granted to another: Estate of True, 120 Cal. 352, 353; 52 Pac. Eep. 815. It must be presumed that an order of the probate court, accepting the resig- nation of an executor or administrator, and discharging him from his trust, is regular. Such resignation cannot therefore be collaterally attacked: Luco v. Commercial Bank, 70 Cal. 339, 342; 11 Pac. Eep. 650; Lucas v. Todd, 28 Cal. 182. An executor or administrator may resign his appointment, having first settled his accounts and delivered up all the estate to the person appointed to receive the same; but if there be delay in settling the accounts and delivering the estate, or from any other cause the circumstances of the estate, or the rights of those interested require it, the court may, before the settlement and delivery is completed, revoke the letters and appoint an administrator, either general or special: Luco v. Commercial Bank, 70 Cal. 339, 342; 11 Pac. Eep. 650. BEFEBENCES. Agreement to renounce executorship is illegal when: See note 48 Am. Eep. 332, 333. 4. Province of court. The probate court, or its judge, as the gen- eral supervisor and guardian of estates of deceased persons, has power, by law, to suspend or remove an administrator whenever there is reason to believe, either from personal knowledge or from credible information, that such administrator has fraudulently wasted or mis- REMOVALS AND SUSPENSIONS. 493 managed the estate, or is about to do so, or has become incompetent to manage it: Deck's Estate v. Gherke, 6 Cal. 666, 669; In re Bal- dridge, 2 Ariz. 299; 15 Pae. Kep. 141, 143; Kamp v. McDauiel, 12 Or. 108; 6 Pac. Eep. 456, 459. The court by which an executor or admin- istrator is appointed has a very large discretion in determining whether, upon the facts presented to it, the officer shall either be suspended or removed: Estate of Healy, 137 Cal. 474, 476; 70 Pac. Eep. 455. A court, after appointing an administrator, has authority to revoke the appointment, not for the purpose of appointing a suc- cessor, but for the sole purpose of ending an unnecessary administra- tion: Murphy v. Murphy, 42 Wash. 142; 84 Pac. Eep. 646, 648. 5. Petition for removal. A petition for the removal of an admin- trator is insufficient if it is not presented by persons interested, or does not allege sufficient cause; but where the petition specifically states facts which, if true, conclusively show that the administrator neglected his trust within the cause defined by the statute, it is suffi- cient: In re Miller's Estate, 40 Or. 424, sub nom. Knight v. Hamakar, 67 Pa,o. Eep. 107, 109, 110. As a general rule, where the probate court has once regularly conferred the appointment, it cannot remove the incumbent, except for causes defined in the statute: In re Miller's Estate, 40 Or. 424, sub nom. Knight v. Hamakar, 67 Pac. Eep. 107, 110. The removal can only be for statutory cause: Miller v. Hider, 9 Col. App. 50; 47 Pac. Eep. 406, 409. Where the statute provides that letters of administration may be revoked if the administrator wastes or mismanages the estate, or conducts himself in such a manner as to endanger his co-administrators or sureties, and the language of the petition for the removal is as broad and general as that of the statute, proof of any waste or mismanagement is admissible; but if the peti- tioner signally fails to establish either waste or mismanagement, it is error for the court to remove the administrator: Miller v. Hider, 9 Col. App. 50; 47 Pac. Eep. 406, 409. When an administrator appears in proceedings for his removal, based on a neglect of his duty, and submits an excuse for his neglect, without objecting to the sufficiency of the petition, he thereby waives any objection to the petition on the gi'ound that it does not allege that his neglect to publish notice of his appointment, or to file an inventory within the time required by law, has resulted or would result in probable loss to the petitioner, or that the facts which constitute the claim of the petitioners as creditors are not averred, or that the person whom the court is asked to appoint is not a resident of the county: In re Barnes' Estate, 36 Or. 279; 59 Pac. Eep. 464, 465. ^A demurrer lies to a petition to remove an executor or administrator: Estate of Carter, 16 Haw. 784. 6. Suspension. Where the statute provides that an order must be made, suspending the powers of an administrator whenever the judge 494 PROBATE LAW AND PRACTICE. " has reason to believe, frota his own knowledge or from credible in- formation," that the facts named in the statute as reasons for such order exist, the implication is, that the court is at liberty to examine and consider the " information," for the purpose of determining whether it is " credible," or affords any reason to believe in the truth of the facts alleged. Hence where an application has been filed for the removal of an administrator, and for the revocation of his letters of administration, upon the ground that he has mismanaged the estate, and neglected his duties as administrator thereof, and each of the facts •alleged in the petition is distinctly denied by the administrator, the court is not required to make an order of suspension until the truth of the informer's allegations shall have been established: Estate of Healy, 137 Cal. 474, 476; 70 Pac. Eep. 455. The judge may suspend the powers of an executor for various causes designated in the statute, one of which is, that if any executor has permanently removed from the state, it then becomes the duty of the judge to cite the executor to appear and show cause why his letters should not be revoked. If he appears, and the court is satisfied that there exists cause for the removal, his letters must be revoked, but it is not necessary that the court first suspend the executor before citing him to appear and show cause why his letters should not be revoked. The suspension looks to the removal of the executor, and is a step toward it, but not a neces- sary one. Usually the ground of suspension would justify removal, but the former takes place without a hearing, while the latter cannot. As it becomes the duty of the court to issue a citation after its sus- pension, there seems to be no reason why it may not reach the ulti- mate object — removal — -by direct proceedings: Estate of Kelley, 122 Cal. 379, 382; 55 Pac. Eep. 136. 7. What is cause for removal. The court has power to vacate the appointment of an executor of administrator which has been inadver- tently granted: Eaine v. Lawlor, 1 Cal. App. 483; 82 Pac. Eep. 688, 689; or where he is not entitled to administration: Koury v. Castillo (N. M.), 79 Pac. Eep. 293, 295. Charges which, if believed by the court, may be ground for suspending the representative, are, if proved upon a hearing, ground for removHig him: Estate of Eathgeb, 125 Cal. 302, 308; 57 Pac. Eep. 1010. An executor who has no business capacity, who made no effort to collect debts said to be due to the estate, or to find whether in fact they were valid claims of the deceased against the alleged debtors, who never read and did not know the contents of afSdavits attached to his reports, who did not know the amount of money due the estate, who mismanaged the affairs of the estate, and who was found, in general, to be incompetent to act as executor, may properly be removed: In re Courtney's Estate, 31 Mont. 625; 79 Pac. Eep. 317, 318. An executor may always be removed after his appoint- ment, unless he discharges the duty of his trust faithfully and as REMOVALS AND SUSPENSIONS. 495 directed by law: Estate of Bauquier, 88 Cal. 302, 313; 26 Pac. Bep. 178, 532. > He may be removed, on the application of an heir or other\ person interested in the estate, for unfaithfulness or neglect to the probable loss of the applicant; or the court may, for like cause, upon its own motion, remove such officer; but in either instance he must be cited to appear and show cause why such action should not be taken, and is thereby accorded a hearing in the premises: In re Partridgey Estate, 31 Or. 297; 51 Pac. Rep. 82, 84. /if he neglects for four years to file an inventory, or to cause the estate to be appraised, or to give the statutory notice to creditors, and has neglected to require verified vouchers to be presented for money of the estate his account shows he has paid out, such facts abundantly justify his removal, especially where it further appears that he has temporarily removed from the state, and does not h^ve a residence therein: In re Dietrich's Estate^ 39 Wash. 520; 81 Pac. Eep. 1061, 1062. Where he has been authorized to sell the real property belonging to the estate for cash, has made a sale thereof under the power conferred, and has falsely reported that he had received the cash therefor, and the court, relying thereon, has confirmed the sale in pursuance of which the administrator has deliv- ered a deed of the premises to the purchaser, such conduct conclu- sively shows that the administrator has " neglected " his trust, within the cause defined by the statute: In re Miller's Estate, 40 Or. 424, sub nom. Knight v. Hamakar, 67 Pac. Eep. 107, 110. An executor or administrator may be removed for mismanagement and neglect of the estate, where it appears that he has assumed conflicting duties, or where antagonistic interests disqualify him from acting as executor or administrator: Estate of Bell, 135 Cal. 194, 196; 67 Pac. Eep. 123; Mills' Estate, 22 Or. 210, sub nom. Mills v. Mills, 29 Pac. Sep. 443, 444. Thus if the administrator fails to include in his inventory certain personal property, which he claims to have purchased from the heirs, it is apparent that there is a direct conflict in interest between the estate and the administrator, and he cannot act indifferently in the matter: Mills' Estate, 22 Or. 210, sub nom. Mills v. Mills, 29 Pac. Eep. 443, 444. So if an executor acts as agent of the mortgagee, and allows the mortgage to be foreclosed, and the sale of the property made to the mortgagee, without interposing any defense to the action, his duties to the estate and to such agent are necessarily conflicting to some extent, and the executor should be removed for permitting such sale, especially where it appears that the mortgaged property was worth twice the amount of the mortgage: Estate of Bell, 135 Cal. 194, 195; 67 Pac. Kep. 193. It is the duty of the executor or adminis- trator to state in his inventory the interest of the estate in property, and to have that interest appraised. If he refuses to do so, it is the duty of the court, in its discretion, to remove him: Mesmer v. Jenkins, 61 Cal. 151, 154; In re Holladay's Estate, 18 Or. 168; 22 Pac. Eep. 750, 751; In re Barnes' Estate, 36 Or. 279; 59 Pac. Eep. 464, 465; Clancy v. 496 PROBATE LAW AND PRACTICE. McLeroy, 30 "Wash. 567; 70 Pac. Eep. 1095, 1096. An executor or administrator may be removed for " unfaithfulness or neglect of his trust," to the probable loss of persons interested in the estate, where he has failed to publish the statutory notice to creditors, or to file the inventory within the time prescribed by statute: In re Barnes' Estate, 36 Or. 279; 59 Pac. Eep. 464, 465. An executor may also be removed where he has failed for many years, without any satisfactory explanation, to wind up the administration of the estate: Estate of Moore (Cal.), 22 Pac. Eep. 653, 654. One whose personal interests are in conflict with his duties as executor or administrator is not a proper person to hold the ofH.ce. Thus where the estate of a deceased person is insolvent, and it appears that the decedent made a convey- ance of land in his lifetime, which there is reasonable ground to believe fraudulent, the creditors have a right toinsist that the execu- tor or administrator shall proceed as directed by the statute; and if he refuses to do so, or if his personal interests are such as to prevent him from doing his official duty in this regard, he is not a suitable person to be intrusted with the duties of the office, and should be re- moved: Marks v. Coats, 37 Or. 609; 62 Pac. Eep. 488, 489. , 8. Bemoval of non-resident executors for absence. In some states it is provided by statute that whenever an executor has permanently removed from the state it becomes the duty of the judge to cite the executor to appear and show cause why his letters should not be revoked. fThe phrase "has permanently removed from the state," in such a Istatute, may more properly refer to a resident executor who has permanently removed from the state, but the reason for Tevoking the letters in such case applies equally to a non-resident executor who comes here to receive his appointment, and then permanently with- draws from the state and remains away. It is his permanent absence from the place where the business is to be transacted, beyond the process of the court, and where the creditors of the estate and others having business with it cannot reach him, that creates the disqualifica- tion; and this is equally true of both resident and non-resident execu- tors. The statute should be so construed as to give ground of removal of a non-resident executor when he fails to come to this state and per- sonally conduct the business of the estate at such times and as fre- quently as the interests of the estate and of those concerned in its settlement may require. And the court, exercising a sound Judicial discretion, must be the judge as to what will constitute the permanent absence from the state: Estate of Kelley, 122 Cal. 379, 382; 55 Pac. Eep. 136. After he has appeared and submitted himself to the juris- diction of the court, he cannot be removed from the office on the ground of his non-residence, unless Tie subsequently permanently re- moves from the state: Hecht v. Carey, 13 Wyo. 154; 78 Pac. Rep. 705, 707. REMOVALS AND SUSPENSIONS. 497 9. What is no cause for removal. The removal of an executor or administrator can be made only for statutory cause: Miller v. Hider, 9 Col. App. 50; 47 Pac. Eep. 406, 409. WhUe it is the duty of the courts to protect carefully the interests of estates, the rights of those who are appointed to take charge of and to manage them should not be overlooked; and an executor or administrator should not be re- moved, except for good and sufficient cause: Estate of Welch, 86 Cal. 179, 183; 24 Pac. Eep. 943. The fact that he has improperly paid an attorney's fee is no ground for removal: Estate of Welch, 110 Cal. 605; 42 Pac. Eep. 1089. The fact that the person who administered upon an estate was a non-resident is not such a fraud as will avoid the administration proceedings. That a person applying for letters is a non-resjdent is a good ground for opposing his appointment, and good cause for removing him after he has been appointed, but his acts as administrator, when once appointed, are neither void nor voidable, and cannot be set aside for that reason: Meikle v. Cloquet (Wash.), 87 Pac. Eep. 841, 843. Nor can he be removed for refusing to give notice to creditors, where no possible good could have been accomplished by publishing such notice, and where no notice to creditors is necessary; as, where the estate is of less value than fifteen hundred dollars, and there are no children, and the widow is entitled to have the whole set apart to her without any further proceedings in the administration: ■ Estate of Atwood, 127 Cal. 427, 430; 59 Pac. Eep. 770. Where it is found that some of the heirs have power to act, and have made a valid and binding transaction, in which their action was subject to their own control, such as the execution of a mortgage on their inter- ests, this is no ground for depriving the executor of his office in respect to the estate: In re Ming, 15 Mont. 79; 38 Pae. Eep. 228. 10. Notice. Hearing. Evidence. A court cannot, of its own mo- tion, remove an administrator without giving him an opportunity to be heard; and if he offers to explain a long delay in his administra- tion, by evidence that the administration had been prolonged by reason of litigation, it is error to reject such evidence. / For the purpose of showing unavoidable delay and good faith, he has the right to intro- duce every paper in the case to prove the various proceedings had therein: Estate of Moore, 83 Cal. 583, 586; 23 Pac. Eep. 794. Where his powers have been suspended until the matter for which he has been suspended is investigated, notice of such suspension must be given to him, and he must be cited to show cause why his letters should not be revoked. If he fails to appear in obedience to the cita- tion, or if, appearing, the court is satisfied that there exists cause for his removal, his letters must \\e revoked; but when charges against an executor or administrator are formulated in a sworn statement prior to issuing a citation to show cause, tUey need not be reiterated in a separate document. The provisions of the statute allowing any Probate — 32 498 PROBATE LAW AND PEACTICB. person interested in the estate to appear at the hearing and file charges against the representative cannot be constituted as requiring charges previously made to be filed anew: Estate of Eathgeb, 125 Cal. 302, 308; 57 Pae. Eep. 1010. An executrix under a " non-intervention will " may be removed, and letters testamentary be issued to some other person, on the ground that she failed to pay a certain judgment within a specified time, where the evidence warrants a finding that she had in her possession funds belonging to the estate sufB.cient to pay the judgment, and that it was the only claim: In re MacDonald's Estate, 29 Wash. 422; 69 Pac. Bep. 1111, 1113, 1114. For evidence of an administrator's neglect of his trust sufficient to authorize his removal, see In re Miller's Estate, 40 Or. 424, sub nom. Knight v. Hamakar, 67 Pac. Bep. 107. 11. Order of removal, and its effect. An order for the removal of an administrator is not required to be in any particular form. Hence if he has failed to comply with the order of the court to give addi- tional security, an order " that the right of the administrator to the administration of this estate cease " cuts ofE his powers and rights, and completely ousts him from o&ce, and the order cannot be attacked on the ground that it was made without notice, because no notice is required by the statute, and no notice is necessary: Barrett v. Superior Court (Cal.), 47 Pae. Bep. 592, 593. Where three persons were joint' administrators of an estate, and one of them had possession of all the funds, but was removed from the administration by the probate court, and three claims presented by him against the estate, having been passed on by the probate court, were appealed to the district court, and the other two administrators, as administrators, brought suit to recover the funds in his hands, and the ease was tried before the appeals were determined, and a judgment rendered against the defend- ant administrator for all the funds in his hands, it was held that the remaining administrators were entitled to the possession of the funds belonging to the estate, pending the litigation on the other claims, and that, as neither party asked to have the contested claims deter- mined in the action, the court committed no error in rendering judg- ment for the full amount of the assets in the hands of the defendant, leaving the contested claims to be determined in the separate actions pending on appeal: Gilmore v. Gilmore, 59 Kan. 19; 51 Pae. Eep. 891. An administrator, after the removal of another administrator, has the right to prosecute a pending appeal and to defend the action: Kerns V. Dean, 77 Cal. 555, 560; 19 Pac. Bep. 817. After the letters of an executor or administrator have been revoked, his' authority to act for the estate terminates, and he is devested of all power to pay any claim against it: Butenic v. Hamakar, 40 Or. 444; 67 Pac. Bep. 196, 200. REMOVALS AND SUSPENSIONS. 499 12. Appeal. The powers of an executor or administrator terminate at the date of his removal from ofSce, and the administration of the estate remaining unadministered immediately devolves upon a co- executor or co-administrator, if there be one, and if not, upon the person to whom letters shall be granted; and an appeal does not restore him to that office, pending its determination, in the absence of a statute to that effect. During the pendency of the appeal, his authority is suspended, and he has no power to control or to manage the affairs of the estate until reinstated by an order of the appellate tribunal: Knight v. Hamakar, 33 Or. 154; 54 Pac. Eep. 659, 660; and see Alderman v. Tillamook County (Or.), 91 Pac. Eep. 298, 300. Pend- ing the appeal of an administrator from an order removing him, he is suspended from office, and it is within the power of the court to appoint a special administrator to act during the period of suspension, but not to appoint a general administrator until such order of removal becomes final: Estate of Moore, 86 Cal. 72, 73; 24 Pac. Eep. 846. When the administrator is displaced, he ceases to have either interest in or power over the estate. He thereafter ceases to have any connection with the estate, and a judgment relating to its affairs cannot be ren- . dered against him. He is as completely separated from the business of the estate as if he were dead, and has no right to appear in or be a party, in any court, to a suit which the law confides to the representa- tive of the deceased: Moore v. Moore, 127 Cal. 460, 462; 59 Pac. Eep. 823. If, after the removal of an administrator, a judgment is ren- dered against him, for an amount found to be due from him to the estate, and he takes an appeal from the judgment, he must give an appeal bond, required of the appellants in civil suits, notwithstanding a statute that, on an appeal by an administrator on all questions relat- ing to probate, no bonds will be required of him: Fuller v. Fuller's Estate, 7 Col. App. 755; 44 Pac. Eep. 72. The revoking of the letters of an administrator affects him personally, and he is not exempted by the statute from giving an appeal bond, if he desires to stay the pro- ceedings. Where he has taken an appeal from an order revoking his letters, the decision of the probate court on the sufficiency of the evidence t6 justify the removal will not be reviewed on a writ of certiorari, if the evidence is not set out in the petition, and there was any evidence to support the issue of fact found by the probate judge: In re Bfenriques, 5 N. M. 169; 21 Pac. Eep. 80, 82. The appellate court has no original jurisdiction in the matter of the removal of executors. Its jurisdiction is purely appellate.. It has no jurisdiction or authority to go into the lower court and remove an executor; and although it is empowered by the statute, in certain cases, to render suet judgment as tfie court below sho.uld have rendered, it can only do so when the issue has first been heard and determined by the infe- rior court, and is before the appellate court upon proper proceedings in error. It certainly cannot do so where no issue involving miscon- 500 PROBATE LAW AND PRACTICE. duet upon the part of the executor was determined by the court below, and w;here the only issue had or determined was a question of his non- residence; but where the executor was erroneously removed on the sole ground that he was a non-resident, and the fact of non-residence was admitted, his right to the oflSce becomes purely a question of law, and the appellate court may reverse the order removing the executor with- out having all of the evidence before it: Hecht v. Carey, 13 Wyo. 154; 78 Pac. Eep. 705, 708. All the cases agree that the appellate court will interfere with the exercise of the power conferred upon the pro- bate judge in respect to the removal of executors or administrators only when there has been gross abuse of discretion: Estate of Healy, 137 Cal. 474, 476; 70 Pac. Eep. 455; Estate of Moore, 83 Cal. 583, 587; 23 Pac. Eep. 794; In re Holladay's Estate, 18 Or. 168; 22 Pac. Bep. 750, 751; In re Baldridge, 2 Ariz. 299; 15 Pac. Eep. 141. Unless the statute authorizes an appeal from an order refusing to remove an administrator, the appeal will be dismissed: Estate of Moore, 68 Cal. 394; 9 Pac. Eep. 315; and see Estate of Moore, 86 Cal. 72, 73; 24 Pac. Eep. 846. PAET V. INVENTORY AND COLLECTION OF EFFECTS OF •DECEDENT. CHAPTER I. nsrVBNTOET, APPRAISEMENT, AND POSSESSION OF ESTATE. § 356. Inventory to include homestead. i 357. Appraisement, and pay of appraisers. § 358. Oath of appraisers. Inventory, how made. § 359. Form. Order appointing appraisers. § 360. Form. Certificate of appointment of appraisers. % 361. Form. Oath of appraisers to appraise property. § 362. Form. Inventory and appraisement. § 363. Form. Oath of administrator as to property. f 364. Form. Certificate of appraisers. § 365. Form. Bill of appraisers, and oath thereto. § 366. Inventory and appraisement. Money. § 367. Effect of naming a debtor executor. § 368. Discharge or bequest of debt against executor. § 369. Oath to inventory. f 370. Letters may be revoked for neglect of administrator. § 371. Form. Order directing notice to show cause why letters should not be revoked for neglecting to return inventory. § 372. Form. Order of removal for neglecting to file inventory. § 373. Inventory of after-discovered property. § 374. Form. Order to show cause why administrator should not be removed for not causing after-discovered property to be appraised and inventoried. § 375. Administrator or executor to possess all real and personal estate. § 376. Executor or administrator to deliver real estate to heirs or devisees when. § 377. Surviving heirs may collect money deposited in bank. § 378. Form. AfB^davit to collect bank deposit of deceased depositor. EFFECTS. OF DECEDENTS. INVENTORY, APPRAISEMENT, AND POSSESSION OF ESTATE. 1. Effects of decedents. (2) Interference witli estate. Ir* (1) Administration in general. regular accounts. (501) 502 PROBATE LAW AND PRACTICE. (3) What are assets. In general. (4) Same. Notwithstanding what. (5) Estoppel to deny. (6) What are not assets. (7) Discovery of assets. (8) Collection of assets. (9) Collection of, hy domiciliary, ancillary, and foreign ex- ecutor. (10) Custody and control of assets. (11) Widow takes as trustee when. (12) Realty. Personalty. Equi- table conversion, (13) Remainder in fee after homestead. 2. Inventory and appraisement. (1) In general. (2) Affidavit. (3) Return. (4) Must include what. (5) Second or further inventory. (6) As evidence of value. (7) Appraisement. (8) No estoppel from filing in- ventory. 3. Possession of estate. (1) Right to, and nature of. (2) Statute of limitations. Loss of right. (3) Domiciliary executors. (4) Recovery of possession. § 356. Inventory to include homestead. Every executor or administrator must make and return to the court, within three months after his appointment, a true inventory and ap- praisement of all the estate of the decedent, including the homestead, if any, which has come to his possession or knowl- edge. Kerr's Cyc, Code Civ. Proc, § 1443. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 801, p. 310. Arizona. Bev. Stats. 1901, par. 1710. Colorado. 3 Mills's Ann. Stats., sees. 4737, 4814. Idaho. Code Civ. Proe. 1901, sec. 4104. Kansas. Gen. Stats. 1905, §§2905, 2913. Montana.* Code Civ. Proc, see. 2550. Nevada. Comp. Laws, sec. 2871. New Mexico. Laws 1901, see. 18, p. 154. North Dakota. Eev. Codes 1905, § 8078. Oklahoma. Eev. Stats. 1903, sec. 1592. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1139. South Dakota. Probate Code 1904, § 138. Utah. Eev. Stats. 1898, sec. 3841. VPashington. Pierce's Code, § 2500. Wyoming. Eev. Stats. 1899, sec. 4680. § 357. Appraisement, and pay of appraisers. To make the appraisement, the court, 6r a judge thereof, must ap- point 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 INVENTORY, ETC., POSSESSION. 5C3 allowed by the court or judge. The apprais(;rs 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 maj"^ be appointed, either by the court or judge having juris- diction of the estate, or by the court or judge of such other county, on request of the court or judge having jurisdiction. No clerk or deputy, nor any person related by consanguinity or afiinity to or connected by marriage or in business with the judge of the court, shall be appointed or shall be com- petent' to act as appraiser in any estate, or matter or pro- ceeding pending before such judge or in said court. Kerr's Cyc. Code Civ. Proc, § 1444. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, see. 803, p. 311. Arizona. Eev. Stats. 1901, par. 1711. Colorado. 3 Mills's Ann. Stats., sees. 4812, 4815. Idaho. Code Civ. Proc. 1901, see. 4105. Kansas. Gen. Stats. 1905, §§ 2916, 2927. Montana. Code Civ. Proc., see. 2551. Nevada. Comp. Laws, see. 2872. New Mexico. Comp. Laws 1897, see. 1971; Laws 1905, p. 98, sec. 1. North Dakota. Eev. Codes 1905, §8084. Oklahoma. Eev. Stats. 1903, sec. 1593. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1141. South Dakota. Probate Code 1904, § 139. Utah. Eev. Stats. 1898, sec. 3842. Washington. Pierce's Code, § 2501. Wyoming. Kev. Stats. 1899, sec. 4681. § 358. Oath of appraisers. Inventory, how made. Be- fore proceeding to the execution of their duty, the appraisers must take and subscribe an oath, to be attached to the in- ventory, that they will truly, honestly, and impartially ap- praise 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 item of property must be set down separately, with the value thereof in dollars and cents, in figures, opposite the items respectively. 504 PROBATE LAW AND PEACTICE. [Contents of inventory.] The inventory must contain all the estate of the decedent, real and personal, a statement of all debts, bonds, mortgages, notes, and other securities for the payment of money belonging to the decedent, specifying the name of the debtor in each debt or security, the date, the sum originally payable, the indorsement thereon (if any) , with their dates, and the sum which, in the judgment of the appraisers, may be collected on each debt or security; and a statement of the interest of the decedent in any partner- ship of which he was a member, to be appraised as a single item. The inventory must also show, so far as the same can be ascertained by the executor or administrator, what por- tion of the property is community property and what por- tion is the separate property of the decedent. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 495), § 1445. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, see. 802, p. 310; sees. 804, 805, p. 311; sec. 790, p. 308. Arizona. Eev. Stats. 1901, par. 1712. Colorado. 3 Mills's Ann. Stats., sees. 4737, 4813, 4814. Idaho. Code Civ. Proc. 1901, sec. 4106. Kansas. Gen. Stats. 1905, §§ 2905, 2918-2921. Montana. Code Civ. Proc., see. 2552. Nevada. Comp. Laws, sec. 2873. New Mexico. Laws 1901, sees. 20, 21, p. 154. North Dakota. Eev. Codes 1905, §§8078, 8081, 8084, 8085. Oklahoma. Eev. Stats. 1903, sec. 1594. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1128, 1140, 1142, 1143. South Dakota. Probate Code 1904, § 140. Utah. Eev. Stats. 1898, sec. 3843. Washington. Pierce's Code, §§ 2481, 2502. Wyoming. Eev. Stats. 1899, sec. 4682. § 359. Form. Order appointing appraisers. [Title of court.] [Title of €3tate.] F° ' ^ept. No. ( [Title of form.] It is hereby ordered, That , , and , three disinterested persons, competent and capable to act, be, and INVENTORY, ETC., POSSESSION. 505 they are hereby, appointed appraisers of the estate of deceased. ^ Judge of the Court. Dated , 19 Explanatory notes. 1. Give file number. This form should be at- tached to or printed on the inventory and appraisement. § 360. Form. Certificate of appointment of appraisers. [Title of court.] [Title of estate.] P° ^ ^^^P*- ^° • \ [Title of form.] I, , county clerk of the county'' of , and ex officio clerk of the ^ court thereof, do hereby certify that , , and were duly appointed appraisers of the estate of , deceased, by order of the said * court, duly entered and recorded on the day of , 19 — Witness my hand and the seal of said " court this day of , 19 , Clerk. [Seal] By , Deputy Clerk. s Ezplanatoiy notes. 1. Give file number. 2. Or, city and county. 3-5. Title of court. 6. This form should be attached to or printed on the inventory and appraisement. § 361. Form. Oath of appraisers to appraise property. [Title of court.] jNo. 1 Dept. No. State of [Title of estate.] \ ,„.,„„ ■■ ■■ \ [Title of form.] County ^ of Jss. , , and , duly appointed appraisers of the estate of , deceased, being duly sworn, each for him- self says that he will truly, honestly, and impartially ap- praise the property of said estate which shall be exhibited to him, according to the best of his knowledge and ability. . I Appraisers. 506 PROBATE LAW AND PRACTICE. Subscribed and sworn to before me this day of , 19 , Deputy County Clerk. Explanatory notes. 1. Give file number. 2. Or, city and county. This form should be attached to or printed on the inventory and ap- praisement. § 362. Form. Inventory and appraisement. [Title of court.] ,™.,, . . . , (No .1 Dept. No. . [Title of estate.] i ^„.,, „^, , "- ■* / [Title of form.] Inventory and Appraisement of the Property of the Estate of , Deceased. Real Estate. [Give specific description, location, and value of each Personal Property. Moneys belonging to the said deceased, which have come to the hands of the administrator,^ dollars ($ ). Total value of property, dollars ($ ). All of the property mentioned in the foregoing inventory is community * property.* Explanatory notes. 1. Give file number. 2. Or, executor. 3. Or, separate property, according to the fact. 4. The inventory and ap- praisement should have attached to it, or printed thereon, the follow- ing six forms: (1) Order appointing appraisers. (2) Certificate of appointment of appraisers. (3) Oath of appraisers to appraise prop- erty. (4) Oath of administrator or executor as to property. (5) Cer- tificate of appraisers. (6) Bill of appraisers, and oath thereto. § 363. Form. Oath of administrator as to property. [Title of court.] (No. 1 Dept. No. . [Title of form.] 1 Title of estate.] State of County'' of -,} , administrator " of the estate of , deceased, being duly sworn, says that the annexed inventory contains a Irue statement of all the estate of said deceased which has come to the knowledge and possession of said -: , adminis- INVENTOET, ETC., POSSESSION. 507 trator,* and particularly of all money belonging to the said deceased, and of all just claims of the said deceased against the said affiant. Subscribed and sworn to before me this day of , 19 — , Deputy County Clerk. Explanatory notes. 1. Give file number. 2. Or, City and County. 3, 4. Or, executor. This oath must be indorsed on or annexed to the inventory and appraisement: See § 369, post. § 364. Form. Certificate of appraisers. [Title of court.] [Title of estate.] ^^° ' Dept. No, [Title of form.] "We, the undersigned, duly appointed appraisers of the estate of , deceased, hereby certify that the property mentioned in the foregoing inventory has been exhibited to us, and that we appraise the same at the sum of dollars ($ ). Dated this day of , 19 — V Appraiser.^ Explanatory notes. 1. Give file number. 2. This form should be annexed to or printed on the inventory and appraisement. § 365. Form. Bill of appraisers, and oath thereto. [Title of court.] (No. 1 Dept. No. [Title of estate.] | ^^.^^^ ^^ ^^^^^ Estate of , Deceased. To , , and , Appraisers, Dr. To compensation for services in appraising said estate. Items as follows: days' service, at $ per day, each $ Necessary disbursements, as follows : ^ Total $ 508 PROBATE LAW AND PRACTICE. State of , County' of Jss. and , the appraisers above named, being didy sworn, each for himself says that the foregoing bill of items is correct and just, and that the services have been duly rendered as herein set forth. ■) I Appraisers. - Subscribed and sworn to before me this _ day of , 19 — , Deputy County Clerk. Explanatory notes. 1. Give file number. 2. Itemize them. 3. Or, City asd County. This form should be attached to or printed on the appraisement and inventory. § 366. Inventory and appraisement. Money. The inven- tory must also contain an account of all moneys belonging 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. Kerr's Cyc. Code Civ. Proc, § 1446. AITAIiOaOUS AND IDENTICAL STATUTES. The * indicates identity, Alaska. Carter's Code, see. 805, p. 311. Arizona.* Eev. Stats. 1901, par. 1713. Colorado. 3 Mills's Ann. Stats., see. 4737. Idaho.* Code Civ. Proe. 1901, see. 4107. Kansas. Gen. Stats. 1905, § 2922. Montana.* Code Civ. Proc, sec. 2553. Nevada. Comp. Laws, see. 2873. North Dakota. Bev. Codes 1905, § 8078. Oklahoma.* Eev. Stats. 1903, sec. 1595. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1143. South Dakota.* Probate Code 1904, § 141. Utah. Eev. Stats. 1898, sec. 3842. Washington. Pierce's Code, § 2503. Wyoming. Eev. Stats. 1899, sec. 4682. § 367. Effect of naming a debtor executor. The naming of a person as executor does not thereby discharge him from INVENTORY, ETC., POSSESSION. 509 any just claim whieli the testator has. against him, but the claim must be iaeluded 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. Kerr's Cyc. Code Civ. Proc, § 1447. ANAIOGOXJS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 806, p. 311. Arizona.* Eev. Stats. 1901, par. 1714. Colorado. 3 Mills's Ann. Stats., see. 4669. Idaho.* Code Civ. Proe. 1901, see. 4108. Kansas. Gen. Stats. 1905, § 2939. Montana.* Code Civ. Proc, see. 2554. Nevada. Comp. Laws, see. 2874. New Mexico. Laws 1901, sec. 22, p. 155. North Dakota. Eev. Codes 19Q5, § 8080. Oklahoma.* Eev. Stats. 1903, see. 1596. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1144. South Dakota.* Probate Code 1904, § 142. Utah.* Eev. Stats. 1898, see. 3845. Washington. Pierce's Code, § 2504. Wyoming.* Eev. Stats. 1899, sec. 4683. § 368. Discharge or bequest of debt agfainst 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 spe- cific 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. Kerr's Cyc. Code Civ. Proc, § 1448. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 807, p. 311. Arizona.* Eev. Stats. 1901, par. 1715. Colorado. 3 Mills's Ann. Stats., sec. 4669. Idaho.* Code Civ. Proe. 1901, sec. 4109. Kansas. Gen. Stats. 1905, § 2938. Montana.* Code Civ. Proc, sec. 2555. Nevada. Comp. Laws, sec. 2875. New Mexico. Laws 1901, sec. 23, p. 155. North Dakota. Eev. Codes 1905, § 8082. 510 PEOBATE LAW AND PRACTICE. Oklahoma.* Rev. Stats. 1903, see. 1597. Oregon. Bellinger and Cotton's Ann. Codes and Stats., 1 1145. South Dakota.* Probate Code' 1904, § 143. Utah.* Eev. Stats. 1898, sec. 2806. Washington.* Pierce's Code, § 2505. Wyoming.* Eev. Stats. 1899, sec. 4684. § 369. Oath to inventory. The inventory must be signed by the appraisers, and the executor or administrator must take and subscribe an oath before an ofScer authorized to administer oaths, that the inventory contains a true state- ment of all the estate of the decedent which has come to his knowledge and possession, and particularly of all money be- longing to the decedent, and of all just claims of the dece- dent against the afSant. The oath must be indorsed upon or annexed to the inventory. Kerr's Cyc. Code Civ. Proc, § 1449. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 805, p. 311. Arizona.* Eev. Stats. 1901, par. 1716. Colorado. 3 Mills's Ann. State., sec. 4814. Idaho.* Code Civ. Proc. 1901, sec. 4110. Kansas. Gen. Stats. 1905, §§ 2926, 2928. Montana.* Code Civ. Proc, sec. 2556. Nevada. Comp. Laws, sec. 2876. North Dakota. Eev. Codes 1905, § 8079. Oklahoma.* Eev. Stats. 1903, sec. 1598. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1143. South Dakota.* Probate Code 1904, § 144. Utah. Eev. Stats. 1898, sec. 3844. Washington. Pierce's Code, § 2506. Wyoming.* Eev. Stats. 1899, sec. 4685. § 370. Letters may be revoked for neglect of adminis- trator. 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 adminis- tration, and the executor or administrator is liable on his bond for any injury to the estate, or any person interested INVENTORY, ETC., POSSESSION. 511 therein, arising from such failure. Kerr's Oyc. Code Civ. Proc, § 1450. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Rev. Stats. 1901, par. 1717. Idaho.* Code Civ. Proc. 1901, sec. 4111. Kansas. Gen. Stats. 1905, §§2929-2931. Montana.* Code Civ. Proc, see. 2557. Nevada. Comp. Laws, sec. 2877. Oklahoma.* Eev. Stats. 1903, sec. 1599. South Dakota.* Probate Code 1904, § 145. Washington. Pierce's Code, § 2507. Wyoming. Eev. Stats. 1899, sec. 4686. § 371. Form. Order directing notice to show cause why letters should not be revoked fof neglecting to return in- ventory. [Title of court.] [Title of estate.] (No. 1 Dept. No. i [Title of form.] It appearing to the court that , the administrator ^ of the above-entitled estate, has neglected to return the in- ventory of such estate within the time prescribed by law,^ — It is ordered, That the clerk of this court cause notice to be served on the said to show cause before the court, at the court-room thereof,* on ,^ the day of , 19 , at o'clock in the forenoon " of said day, why he should not be removed from his office of administrator ' of said estate, because of such failure. Dated , 19 — ■. , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor, etc., according to the fact. 3. Or, within such further time, not exceeding two months, as the court or judge shall, for reasonable cause, allow. 4. Give department, if any, and location of court-room. 5. Day of week. 6. Or, afternoon. 7. Or, executor, according to the fact. § 372. Form. Order of removal for neglecting to file inventory. ^^itie of court.] (No. 1 Dept. No. [Title of estate.] | ^^.^,^ ^^ ^^^^^ It being shown to the court that , administrator ^ of the estate of , deceased, neglected to' return the in- 512 PROBATE LAW AND PRACTICE. ventory of sucli estate within the time prescribed by law ; ' that notice to show cause why he should not be removed from his office as administrator * for such failure was served upon the said ; and that said administrator ^ failed to show cause at the time and place prescribed in said notice, or otherwise, — It is ordered, That the letters of administration " hereto- fore granted to the said , as administrator ' of the estate of , deceased, be, and the same are hereby, revoked ; that be, and he is hereby, appointed adminis- trator * of said estate ; and that letters of administration ' issue to him upon his taking the oath, and giving a bond in the sum of dollars ($ ), with sureties, to be approved by the judge of this court. Dated , 19 — . , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor, etc., according to the fact. 3. Or, within such further time, not exceeding two months, as the court or judge shall, for reasonable cause, allow. 4, 5. Or, executor, .etc., according to the fact. 6. Or, letters testa- mentary. 7, 8. Or, executor, as the case may be. 9. Or, letters testa- mentary. § 373. Inventory of after-discovered property. 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 be appraised in the manner prescribed in this article, and' an inventory thereof to be returned within two months after the discov- ery; and the making of such inventory may be enforced, after notice, by attachment or removal from ofSee. Kerr's Cyc. Code Civ. Proc, § 1451. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 808, p. 311. Arizona.* Eev. Stats. 1901, par. 1718. Colorado. 3 Mills's Ann. Stats., sec. 4738. Idaho. Code Civ. Proc. 1901, sec. 4112. Kansas. Gen. Stats. 1905, § 2935. Montana.* Code Civ. Proc, see. 2558. Nevada. Comp^. Laws, sec. 2878. New Mexico. Laws 1901, sec. 24, p. 155.- INVENTORY, ETC., POSSESSION. 513 North Dakota. Bev. Codes 1905, § 8086. Oklahoma.* Eev. Stats. 1903, sec. 1600. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1146. South Dakota.* Probate Code 1904, § 146; Utah. Rev. Stats. 1898, sec. 3841. Washington. Pierce's Code, § 2508. Wyoming.* Eev. Stats. 1899, sec. 4687. § 374. Form. Order to show cause why administrator should not be removed for not causing after-discovered property to be appraised and inventoried. [Title of court.] [Title of estate.] \^° ' ^«P*- ^° ■ ( [Title of form.] It being shown to the court ^ that the inventory made and filed in the said estate does not mention certain personal property, to wit, ; ' that said personal property has come to the knowledge and possession of , the adminis- trator* of said estate; and that he has not, within two months after such discovery, caused such property to be appraised in the manner prescribed by law, and an inven- tory thereof to be returned to this court, — It is ordered, That the clerk of this court cause notice to be served upon the said to show cause before this court, at the court-room thereof,^ on ,' the day of , 19 — , at o'clock in the forenoon^ of said day, why he should not be removed as administrator * of said estate for such failure. It is further ordered. That said notice be served at least days before the time set for hearing, and that a copy of the affidavit ® be served with said notice. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. By afldavit of ; or otherwise. 3. Give detailed description and value. 4. Or, executor, etc. according to the fact. 5. Give number of department, if any, and location of court-room. 6. Day of week. 7. Or, afternoon. 8. Or, oxecutor, as the case may be. 9. If one is used. § 375. Administrator or executor to possess all real and personal estate. The executor or administrator is entitled to Probate — 38 514 PKOBATE LAW AND PEACTICE. the possession of all the real and personal estate of the dece- dent, and to receive the rents and profits of the real estate until the estate is settled or until delivered over by the 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. [Not to recover from heir when.] After the expiration of the time for the presentation of claims, he is not entitled to recover the possession of any property of the estate from any heir, who has succeeded to the property in his possession or from any devisee, or legatee, to whom the property has been devised or bequeathed, or from the assignee of any such heir, devisee, or legatee, unless he proves that the same is neces- sary for the payment of debts or legacies, or of expenses of administration already accrued, or for distribution to some other heir, devisee, or legatee entitled thereto. [Heirs may sue to recover estate.] The heirs or devisees may themselves, or jointly with the executor or adminis- trator, 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 sec- tion shall not be so construed as requiring them so to do. Kerr's Cyc, Code Civ. Proc. (Kerr's Stats, and Amdts., p. 496), § 1452. ANALOGOUS AND IDENTICAI. STATUTES. No identical statute found. Alaska. Carter's Code, sec. 809, p. 311. Arizona. Bev. Stats. 1901, par. 1719. Colorado. 3 Mills's Ann. Stats., sec. 4721. Idaho. Code Civ. Proc. 1901, see. 4113. Montana. Code Civ. Proc, sec. 2559. Nevada. Comp. Laws, see. 2879. North Dakota. Eev. Codes 1905, §§ 8071, 8159. Oklahoma. Bev. Stats. 1903, sec. 1601. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1147. South Dakota. Probate Code 1904, § 147. Utah. Eev. Stats. 1898, sec. 3912. Washington. Pierce's Code, § 2499. Wyoming. Eev. Stats. 1899, see. 4688. INVENTORY, ETC., POSSESSION. 515 § 376. Executor or administrator to deliver real estate to heirs or devisees when. Unless it satisfactorily appear to the court that the rents, issues, and profits of the real estate for a longer period are necessary to he received hy the executor or administrator, wherewith to pay the debts of the decedent, or that it wUl probably be necessary to sell the real estate for the payment of such debts, the court, at the end of the time limited for the presentation of claims against the estate, must direct the executor or administrator to deliver posses- sion of all the real estate to the heirs at law or devisees. Kerr's Cyc. Code Civ. Proc, § 1453. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona. Eev. Stats. 1901, par. 1720. Idaho.* Code Civ. Proc. 1901, see. 4114. Montana.* Code Civ. Proc, sec. 2560. Oklahoma.* Eev. Stats. 1903, sec. 1602. South Dakota. Probate Code 1904, § 148. Utah.* Eev. Stats. 1898, see. 3951. § 377. Surviving heirs may collect money deposited in bank. The surviving husband or wife of any deceased per- son, or, if no husband or wife is living, then the children of such decedent, may, without procuring letters of administra- tion, collect of any bank any sum which said deceased may have left on deposit in such bank at the time of his or her death; provided, such deposit shall not exceed the sum of five hundred dollars. Any bank, upon receiving an affidavit stating that said depositor is dead, and that affiant is the surviving husband or wife, as the case may be, or stating that decedent left no husband or wife, and that affiant is or affiants are the children of said decedent, and that the whole amount that decedent left on deposit in any and all banks of deposit in this state does not exceed the sum of five hundred doUars, may pay to said affiant or affiants any deposit of said decedent, if the same does not exceed the sum of five hun- dred dollars, and the receipt of such affiant is sufficient ac- quittance therefor. Kerr's Cyc. Code Civ. Proc. (new sec- tion; see Kerr's Stats, and Amdts., p. 496), § 1454. 516 PROBATE LAW AND PRACTICE. § 378. Form. Affidavit to collect bank deposit of deceased depositor. State of ss. -} County of - ,^ being duly sworn, deposes and says: That was a depositor in the * bank ; that said is now dead ; that she died at ,* on or about the day of , 19 — ; that affiant is the surviving husband ; ° and that the whole amount that said decedent left on deposit in any and all banks of deposit in this state does not exceed the sum of five hundred dollars ($500) . Affiant therefore asks that all moneys on deposit to the credit of said decedent in said bank may be paid to ,' according to the statute. Subscribed and sworn to before me this day of , 19 — , Notary Public, etc' Explanatory notes. 1. Give name or names of affiants. 2. G-lve name of deceased depositor. 3. Give name of bank. 4. Give name of place of death. 5. Or, is the surviving wife, of the deceased depositor; or, that said deceased depositor left no surviving husband or wife, and that affiant is, or affiants are, the only surviving child or children of said deceased depositor. 6. Affiant; or as the case may be. 7. Or other officer taking the oath. See Cal. Stats. 1895, p. 32; Henuiug's Oeneral Laws, p. 440. EFFECTS OF DECEDENTS. INVENTORY, APPRAISEMENT, AND POSSESSION OF ESTATE. 1. Effects of decedents. (11) Widow takes as trustee (1) Administration In general. wben. (2) Interference vltb estate. Ir- (12) Realty. Personalty. Eqnl- regular acconuts. table conversion. (3) Wbat are assets. In general. (13) Bemainder In fee after (4) Same. Notwithstanding what. homestead. (5) Estoppel to deny. 2. Inventory and appraisement. (6) What are not assets. (1) In general. (7) Discovery of assets. (2) Affidavit. (8) Collection of assets. (3) Ketnrn. (9) Collection of, by domiciliary, (4) Mnst include what. ancillary, and foreign es- (6) Second or furtlier inventory, ecutor. (6) As evidence of value. (10) Custody and control of assets. (7) Appraisement. INVENTORY, ETC., POSSESSION. 517 (8) No estoppel from flUng Jn- (2) Statute of limitations. Loss ventory. of right. S. Possession of estate. (3) Domiciliary executors. (1) Bight to, and nature of, (4) Kecovery of possession. 1. Effects Of decedents. (1) Administration in general. " The rights of creditors to the assets of a deceased person's estate is the principal reason for requiring official administration, and courts therefore sanction the disposition of the property of a decedent without the appointment of an administrator, where it is certain that no debts are owing": Murphy v. Murphy, 42 Wash. 142; 84 Pac. Eep. 646, 648, quoting Woerner's Law of Admin- istration, sec. 201. In Kansas, no administration of the personal estate of an intestate is necessary, when there are no creditors. The heirs, in such case, may divide the assets of the estate among them- selves, in kind or otherwise, by mutual agreement. When so divided, each will become the owner in severalty of the portion so received: Brown v. Baxter (Kan.), 94 Pac. Eep. 155; but administration seems to be necessary to establish the existence of creditors or heirs; and whatever may be the law in other jurisdictions, there is nothing in the probate law of California which would, either expressly or by impli- cation, exempt the property of a decedent from the requirement of administration. The whole subject-matter of dealing with the assets of deceased persons is, however, one of statutory regulation, and the policy and intent of the statute very clearly contemplates that prop- erty of a decedent, left undisposed of at death, except in the instance of the homestead acquired under certain circumstances as provided by the statute, shall, for the purposes of ascertaining and protecting the rights of creditors and heirs, and properly transmitting the title of record, be subjected to the process of administration in the probate court. Indeed, there is no other method provided by the statute whereby the existence of creditors or heirs of decedents may be con- clusively established, and such administration may be initiated and had at the instance of any person entitled under the law to administer upon the estate: Estate of Strong, 119 Cal. 663, 665; 51 Pac. Eep. 1078. And the provisions of the probate law all look to a speedy close of administration. Thus the executor or administrator must collect all debts due to the estate; the debts of the decedent, if there are funds for the purpose, are to be paid within a comparatively brief time after the administration of the estate begins; and, as soon as the estate is in proper condition to be closed, the administrator must render a final account and pray final settlement. The object of probate proceedings is to administer, settle, and distribute the estates of deceased persons, and the whole statutory system provided therefor contemplates that this object shall be accomplished with reasonable dispatch: Maddock V. Eussell, 109 Cal. 417, 423; 42 Pac. Eep. 139. But the probate laws 518 PROBATE LAW AND PRACTICE. of California have no application to the estates of persons who died before their passage, because, under the Mexican law previously en- forced, the heir succeeded immediately to the estate, and became personally answerable for the debts of the decedent: Coppinger v. Eice, 33 Cal. 408; Eyder v. Cohn, 37 Cal. 69, 90; McNeil v. First Con- gregational Society, 66 Cal. 105; 4 Pac. Bep. 1096. Administration on the estate of a living person is void: Pay v. Costa, 2 Cal. App. 240, 244; 83 Pac. Kep. 275. It was decided in Scott v. McNeal, 5 Wash. 309; 31 Pac. Eep. 873, 874, as against a living person, that he was dead, and that the probate court had power to dispose of his estate; but this ease was reversed on writ of error: See Scott v. McNeal, 154 U. S. 34; 38 L. ed. 896. Administration may lawfully be had on the estate of a dead person, but not upon that of one living. Until death occurs, there is " no subject-matter " over which it is possible to exer- cise jurisdiction. It is true that the court of probate, before issuing letters of administration, must determine afirmatively the question of death; but, notwithstanding such determination, the fact that the sup- posed intestate is alive may still be shown, and when shown, it estab- lishes the nullity of the entire proceedings: Stevenson v. Superior Court, 62 Cal. 60, 61. BEFEBENCES. Probate of will or letters of administration, v^en void for want of jurisdiction: See note 33 Am. Dec. 239-243. Power to administer a living person's estate: See note § 216, head-line 14, subd. 10, ante. What assets will give jurisdiction to appoint administrator: See note 24 L. K. A. 684-689. (2) Interference with estate. Inegulai accounts. Where a person or corporation, before the granting of letters of administration, sells or alienates any of the property of the decedent which is covered by a chattel mortgage, he or it is chargeable therewith, and liable to an action by the administrator of the estate for double the value of the property so sold or alienated: Iiitz v. Exchange Bank, 15 Okl. 564; 83 Pac. Eep. 790. The public officers of a county have no right to dispose of the money of a deceased person, except in the manner authorized by the statute. If all the essential requirements of the statute are not followed, the rights of the legal representative to such money wUl remain unaffected. Thus where the coroner is required by the statute to deliver the money or effects found on the body of a deceased person to the county treasurer, the treasurer has no authority to pay over a sum so delivered to him to' the administrator without an order of the ftounty court, where the statute makes such order a prerequisite to such payment: Chow v. Brockway, 21 Or. 440, sub nom. Oh Chow v. Brockway, 28 Pac. Eep. 384, 387. The law does not contemplate that the claims of an administrator for reimbursement for moneys expended before his appointment can be established by his uncontradicted evi- INVENTORY, ETC., POSSESSION. 519 dence: Estate of Heeney, 3 Cal. App. 548; 86 Pac. Eep. 842, 844. If tlie debtor of an estate makes an unauthorized payment to the admin- istrator thereof, such payment does not discharge the debtor from his liability to the estate. The money so paid by him is his own, and not that of the estate, and the debtor, but not the estate, can recover the same of the administrator: McCoy v. Ayres, 2 Wash. Ter. 307; 5 Pac. Eep. 843, 844. (3) What are assets. In general. A debt due from an executor or administrator to a decedent is an asset in his hands, applicable to the payment of debts: United States v. Egglestone, 4 Saw. 199; Fed. Cas., No. 15,027. When he has been charged, upon the settlement of his accounts, with a personal debt he owed the deceased, whether by virtue of a stp,tute, as in Oregon, or without a statue, as in some other jurisdictions, the sureties on his bond are bound for the payment thereof, and insolvency or inability to pay is no defense: United Brethren First Church etc. v. Akin, 45 Or. 247; 77 Pac. Eep. 748. The rents and profits of real property belonging to a decedent are assets of his estate: Washington v. Black, 83 Cal. 290, 295; 23 Pac. Eep. 300; Head v. Sutton, 31 Kan. 616; 3 Pac. Eep. 280, 282; and the rents of mortgaged property are general assets of the estate, on which the mortgage is not a lien, and in which it is entitled to no preference under the statute giving a preference to mortgage debts. Such statute limits the preference to the proceeds arising from the property mort- gaged, either upon a foreclosure sale or a sale by the administrator: Estate of McDougald, 146 Cal. 196, 202; 79 Pac. Eep. 875. In a gen- eral sense, every part of the estate which comes under the law to an executor or administrator 'is assets: Washington v. Black, 83 Cal. 290, 295; 23 Pac. Eep. 300. The general rule of law ia well settled, that, for the purpose of founding administration, all simple contract debts are assets at the domicile of the debtor, and that the locality of such a debt for this purpose is not affected by a bill of exchange or prom- issory note having been given for it, because the bill or note does not alter the nature of the debt, but is merely evidence of it, and there- fore the debt is assets where the debtor lives, without regard to. the place where the instrument is found or payable: Moore v. Jordan, 36 Kan. 271; 13 Pac. Eep. 337, 339; citing Wyman v. Halstad, 109 U. S. 564; 3 Sup. Ct. Eep. 417; and other authorities. If an appeal bond has been given in an action to recover property alleged to belong to an estate, and the heirs sue on such bond, and recover judgment, such judgment should be paid to the administrator as an asset of the estate, though the administrator refused to bring an action to recover the property of the estate: Bem v. Shoemaker, 10 S. D. 453; 74 N. W. Eep. 239 240, 241. A claim for damages by one who has sustained personal injuries from the negligence or wrongful act of another, is an asset of the estate, justifying an appointment of an executor or adminis- 520 PROBATE LAW AND PEACTICE. trator: Missouri Pae. Ey. Co. v. Bennett's Estate, 5 Kan. App. 231; 47 Pac. Bep. 183. The fund recovered by the personal representative of a deceased person, for negligence causing the latter's death, is the prop- erty of the estate: Olston v. Oregon etc. By. Co. (Or.), 96 Pac. Eep. 1095, 1097. See In re Lowham's Estate, 30 Utah, 436; 85 Pac. Rep. 445, 446; Southern Pae. Co. v. Wilson (Ariz.), 85 Pae. Eep. 401, 403. At common law, the executor or administrator was the legal beneficiary in all policies of insurance payable to the insured. The policy de- scended to him. Our system differs, in that personalty descends to the heirs, with a special interest in the administrator. But, so far as affects this question, the difference is purely ideal. In either case, tha personal representative must collect and administer upon it. Although set apart under the statute, the money is administered upon, and until so set apart, is a part of the estate. The order setting it apart is a species of distribution: Estate of Miller, 121 Cal. 353, 354; 53 Pac. Eep. 906. See Yore v. Booth, 110 Cal. 238; 58 Am. St. Eep. 81; 42 Pac. Eep. 808. See subd. 5, infra, showing what are not assets. If a policy of life insurance is payable to and collected by the estate of a deceased person, the estate is the beneficiary, and the money is exempt from execution. It is therefore assets of the deceased exempt from execu- tion, and is properly set apart to the widow as being so exempt: Holmes v. Marshall, 145 Cal. 777, 780; 104 Am. St. Eep. 86; 79 Pac. Eep. 534; 69 L. E. A. 67; 2 Am. & Eng. Ann Cas. 88. A judgment is assets of the estate for the purposes of administration: Low v. Horner, 10 Haw. 531, 535. KEFEBENCES. Eight of action for the negligent killing of a person is an asset of his estate: See note 1 L. E. A. (N. S.) 885. What assets pass to the administrator de bonis non: See note 40 L. E. A. 71-74. (4) Same. ITotwlthstaiiding what. Where two creditors of dece- dent's estate, after the death of an intestate, enter into an oral con- tract, whereby one of them agrees to pay aU the debts and expenses of administration in consideration that the other creditor will acknowledge payment of a judgment against said estate, and of the heirs of the estate conveying a certain tract of land to such judgment creditor, and also conveying other lands to the creditor, who further agrees to pay the other debts and expenses of administration after aU of such conveyances have been made in accordance with said contract, such contract, after it has been ratified by the heirs making the con- veyances as required by it, becomes an asset of the estate, it being made for the benefit thereof: Stewart v. Eogers, 71 Kan. 53; 80 Pac. Eep. 58. Where a husband takes notes, securities, or real estate in the name of his wife, that fact, alone and unexplained, raises the pre- sumption that he intended the same as a gift to or provision for her, but such presumption may be overcome by evidence which shows a INVENTORY, ETC., POSSESSION. 521 motive or design on the part of the husband inconsistent with such presumed intent, and that such property was so placed in his wife's name for purposes of convenience and advantage to himself; and, in an action to have property standing in the wife's name declared to be the property of her deceased husband, and to be disposed of as such, where the court concludes, upon the evidence, that the money, notes, and securities described in the plaintiff's complaint were placed m the wife's name by the husband for purposes of advantage and con- venience to himself, and not with the intention or for the purpose of making a gift to her or settlement upon her, the same belong to and should be distributed as a part of the estate of the deceased husband: Bern V. Bem, 4 S. D. 138; 55 N. W. Eep. 1102. Where there is an attempt to make a disposition of property to take effect after death, which can only be done by a properly executed will, and there is nothing in the instrument to show any present vested interest or estate in the property in controversy, such property, after death, becomes an asset of the decedent's estate, and may be recovered by his administrator: Demartini v. AUegretti, 146 Cal. 214, 218; 79 Pao. Eep. 871; it is only those things in which the decedent had a beneficial interest at his death which are assets, not those which he holds in trust, or as a bailee or factor of another. Property held in trust by the intestate remains that of the cestui que trust: In re Belt's Estate, 29 Wash. 535; 70 Pac. Eep. 74, 76. (5) Estoppel to deny. An executor or administrator is estopped to deny that rents collected and received by him are assets of the estate: Kothman v. Markson, 34 Kan. 542; 9 Pac. Eep. 218, 223; but where an administratrix recovers judgment in an action commenced by her in- testate as a trustee, she is not estopped, as against the creditor of the estate, from setting up that the funds recovered are not the property of the estate. A trust fund, not being an asset of the estate, is a fund n which the creditor of the estate is not interested: In re Belt's Estate, 29 Wash. 535; 70 Pac. Eep. 74, 77. (6) What are not assets. A gift made to the widow of a decedent personally, by his former employers, is not an asset of the estate, whether she knew it was a gift to her or not: Estate of Stevens, 83 Cal. 322, 324; 17 Am. St. Eep. 252; 23 Pac. Eep. 379. Property which was disposed of in decedent's lifetime by a valid gift causa mortis is not an asset of the estate, and in such a case there is no legal objection to a delivery to an agent or trustee for the donor, although the donee does not, at the time, declare his acceptance thereof. It is sufficient if he avails himself of the provision when it becomes known to him, even subsequently to the decease of the donor: Denaff v. Helms, 42 Or. 161; 70 Pac. Eep. 390, 392. So where land of the estate has been sold at private sale, and not at public sale, as directed in the order of sale, the purchaser's deposit of purchase-money with the 522 PROBATE LAW AND PRACTICE. executor is not received by the executor in his representative capacity, and is not an asset of the estate; for, the sale being void on the face of the record, the executor had no right to demand or to receive such deposit: Schlicker v. Hemenway, 110 Gal. 579, 581; 52 Am. St. Eep. 116; 42 Pac. Eep. 1063. Neither are damages recovered by an admin- istrator for the death of decedent, caused by neglect, assets of the estate. Such damages are for the benefit of the heirs: Munro v. Pa- cific Coast Dredging etc. Co., 84 Cal. 515, 528; 18 Am. St. Bep. 248; 24 Pac. Eep. 303. Section 2269 of the Eevised Statutes of the United States provides that " where a party entitled to claim the benefits of the pre-emption laws dies before consummating his claim by filing in due time all the papers essential to the establishment of the same, it shall be competent for the executor or administrator of the estate of such party, or one of the heirs, to file the necessary papers to complete the same. But the entry in such cases shall be made in favor of the heirs of the deceased pre-emptor, and a payment and a patent thereon shall cause the title to inure to such heirs as if their names had been specially mentioned." The title thus given by the patent is not to the estate of the decedent, but, by the terms of the section, the patent shall " cause the title to inure to such heirs." The heirs do not take the title by descent from their ancestor, but the land is conveyed to them directly from the United States, by virtue of the privilege of purchase given to them expressly by the provisions of this section. The land is not subject to devise by the pre-emptor, nor can it be sold in satisfaction of his debts, or for the expenses of administration: Wittenbrock v. Wheadon, 128 Cal. 150, 152; 79 Am. St. Eep. 32; 60 Pac. Eep. 664. If a probate homestead has been set apart for the use of the family of the deceased, it ceases to be a part of the assets of the estate: Estate of Orr, 29 Cal. 101, 104; Estate of Burns, 54 Cal. 223, 228; Estate of Hamilton, 120 Cal. 421, 426; 52 Pac. Eep. 708. So the right to the use of a homestead assigned to the innocent party in divorce proceedings does not constitute an asset of the estate of such party: Neary v. Godfrey, 102 Cal. 338, 341; 36 Pac. Eep. 655. Part- nership property is an asset of the firm, and subject to the exclusive management and control of the surviving partner. It is not an asset of the estate in the hands of the administrator: Tompkins v. Weeks, 26 Cal. 50, 66; Theller v. Such, 57 Cal. 447, 459. The assets which passed to the executor or administrator in such cases consist of the individual estate of the decedents. Partnership assets, as such, form no part of such individual estate; the residuum only, after satis- fying liabilities and advances, if any, made by the survivor, becomes the property of the estate: Andrade v. Superior Court, 75 Cal. 459, 463; 17 Pac. Eep. 531; Theller v. Such, 57 Cal. 447, 459. Property held By a trustee or fiduciary officer is not an asset of the estate in the hands of his executors, administrators, or assignees: In re Belt's Es- tate, 29 Wash. 535; 70 Pac. Rep. 74, 76; Pierce v. Eobinson, 13 Cal. INVENTORY, ETC., POSSESSION. 523 116; see Swift v. San Francisco Stock etc. Board, 67 Cal. 567; 8 Pao. Bep. 94, 101. The proceeds of an insurance policy are no part of tlie assets of the estate, where the proceeds of such policy are payable to the widow and children; and the executors have no right to collect such proceeds: Heydenfeldt v. Jacobs, 107 Cal. 373, 377; 40 Pac. Eep. 492; and see Swift v. San Francisco Stock etc. Board, 67 Cal. 567; 8 Pac. Eep. 94, 102. A benefit certificate in a mutual benefit society is not an asset of the deceased member's estate: Burke v. Modern Woodmen, 2 Cal. App. 611; 84 Pac. Eep. 275, 276. The pro- ceeds of an insurance policy payable to the "legal heirs" of an intestate, collected by an administrator, are not assets of the estate. The money does not belong to the creditors. It belongs to the heirs, and the administrator should pay it to them: Estate of Scrimgeour, 17 Haw. 122, 125. If goods, money, or securities belonging to another person lie among the goods of the deceased, capable of identification, and they come together to the hands of the personal representative, such other person's things are not to be reckoned, among assets of the estate. Nor is money collected by an attorney, factor, or agent, and kept distinct and unmixed with the rest of the property: In re Belt's Estate, 29 Wash. 555; 70 Pac. Eep. 74, 76; citing Schouler on Execu- tors and Administrators, 3d ed., sec. 205. (7) Discovery of assets. Under the statute of Washington, where a person is charged with concealing the assets of a decedent, it is the court which cites such person to appear, and it is the court who may examine him on oath upon the matters suggested in the com- plaint. The object of the statute is to elicit testimony for the pur- pose of furnishing the administrator with sufficient knowledge on which to base a formal complaint against the defendant. The de- fendant is not, in such case, entitled to any more than the statute accords him, and it does not accord him, either in terms or by neces- sary implication, the right to a formal procedure in such a case. The statute does not require that all the interrogatories shall be reduced to writing and submitted before the answering of any of them: Main v. Hadfield, 41 Wash. 504; 84 Pac. Eep. 12, 14. EEFEEENCES. Summary proceedings to discover or recover property of estates of decedents: See note 115 Am. St. Eep. 208-219. (8) Collection of assets. The executor or administrator shall take into his possession all the estate of the deceased, real and personal, and shall collect all debts due to the deceased. Money on deposit in a bank to the credit of the deceased may not constitute a " debt,'' in a strict technical sense. But whether it be so or not, the statute contemplates that the executor or administrator shall reduce into his 524 PROBATE LAW AND PEACTICE. possession, with all reasonable dispatch, the property of the estate; and if he finds money on deposit, even though the bank is one of admitted safety and of undoubted credit, he must be allowed to ex- ercise his discretion, in good faith, as to the propriety of reducing the money into his actual possession, so as to be ready to meet any exigency in the affairs of the estate: Estate of McQueen, 44 Cal. 584, 589. Assets cannot be collected upon distribution of the estate: Estate of Cook, 77 Cal. 220, 232, 233; 11 Am. St. Eep. 267; 17 Pac. Eep. 923; 19 Pac. Eep. 431; 1 L. E. A. 567; Estate of Smith, 108 Cal. 115, 122; 40 Pac. Eep. 1037; and the court has no power to attempt to make such collection by making an improper deduction from the disttibutive share of the devisee: Estate of Smith, 108 Cal. 115, 122; 40 Pac. Eep. 1037. If debts are evidenced by negotiable promissory notes, and such notes are, at the time of decedent's death, situated in a designated county in one state, and the same are there taken possession of by the administrator of the estate in that county, and by him duly accounted for to the proper court, such notes are prop- erly payable in that state, and any moneys paid upon them would be rightfully paid to such administrator therein; and the fact that certain of these notes are secured by mortgages on real estate in another state would not change the rights of the holder thereof: McCoy V. Ayres, 2 Wash. Ter. 307; 5 Pac. Eep. 843, 845. The Cali- fotnia statute of set-off relates to the situation of the parties " at the commencement of the action," and the death of one of the par- ties to the demand, though such death occurs before the maturity of the demand, does not change the relative rights of the parties in pleading a counterclaim, or in compensating the claims so far as they equal each other, provided the set-off be due when the action is commenced. Thus in an action by an executor to recover from a bank the amount of a deposit made by the decedent, the defendant who had loaned the decedent money on a note, which matured after the death of the decedent, and before the commencement of an action by the executor, has the right to use the note as a counterclaim, and the two demands, so far as they equjil each other, are to be deemed "compensated": Ains worth v. Bank of California, 119 Cal. 470, 471; 63 Am. St. Eep. 135; 51 Pac. Eep. 952; 39 L. E. A. 686. It is said in the dissenting opinion of Beatty, C. J., in Murphy v. Clayton, 114 Cal. 526, 529; 43 Pac. Eep. 613; 46 Pac. Eep. 460, that the law does not authorize an executor or administrator " to com- mence an action for which there is no apparent necessity. He can- not sue to recover assets for the estate, unless it appear that there is an actual deficiency of assets. But when he has property in his hands which was in the possession of the intestate at the time of his death, and which has regularly devolved upon him, — property which, if necessary, is applicable to the purposes of administration, — it is his duty to retain the possession until it appears that it will INVENTORY, ETC., POSSESSION. 525 not be needed." On the other hand, if the administrator, when he commences an action to recover assets, must show a necessity for their recovery, by parity of reasoning the party who seeks by an action to deprive him of assets should at least be required to show that they will not be needed for purposes of administration. If such property is not needed for purposes of administration, the vendee of the decedent has an ample remedy in the probate court without ac- tion; if it is needed for purposes of administration, he has no right to the property. His position with respect to it is no better than that of an heir with respect to the unsold property of the estate of the intestate. It is his, if not needed for the payment of debts, and, like the heir, he should wait till that fact is ascertained: Mur- phy v.. Clayton, 114 Cal. 526, 530; 43 Pac. Eep. 613; 46 Pac. Bep. 460, per Beatty, C. J., dissenting. (9) Collection of, by domiciliary, ancillary, and foreign executor. It is the duty of a domiciliary administrator to take reasonable means, under existing circumstances, for collecting and realizing the assets out of his jurisdiction, and it is the duty of the court to compel him to account for wilful neglect to perform such duty; and all the authorities agree that the residuum of the foreign assets must finally be collected and distributed by the domiciliary executor: Es- tate of Ortiz, 86 Cal. 306, 315; 21 Am. St. Eep. 44; 24 Pac. Eep. 1034. If there be assets in another state or states than that in which the principal letters are granted, an administration may be obtained there, and such administration will be regarded as ancillary to the administration of the domicile, and, as a general rule, the excess of the assets resulting from such ancillary administration, after the payment of local debts, expenses of administering, and local legacies, if any, in the jurisdiction of the ancillary administra- tion, will be transmitted to the administrator of the domicile, to be there distributed according to the law of vicinage: Estate of Apple, 66 Cal. 432; 6 Pac. Eep. 7; McCuUy v. Cooper, 114 Cal. 258, 261; 55 Am. St. Eep. 66; 46 Pac. Eep. 82; 35 L. E. A. 492. An ancillary administrator, in this state, may recover from the domi- ciliary administrator, who is temporarily here, the possession of assets of the estate. The very object of the ancillary or local administra- tion in this state is to collect the assets of the estate here locally situated, and it is the boundeu duty of the ancillary administrator so to collect them, and to pay therefrom the demand of local credi- tors, if any there be. Whether there are any such creditors can only be determined by giving the notice to creditors required by our law: McCully V. Cooper, 114 Cal. 258, 263; 55 Am. St. Eep. 66; 46 Pac. Eep. 82; 35 L. E. A. 492. Nor has the domiciliary executor, as against the ancillary administrator, any power to dispose of the personal property which has its situs in a foreign jurisdiction, where 526 PROBATE LAW AND PEACTICE. an ancillary administrator has been appointed. Even at common law, where an ancillary administrator has been appointed in a foreign jurisdiction, the title to personal- property which has its situs in such foreign country is in the ancillary administrator. This must neces- sarily be so. There cannot be two independent administrations of the same property, nor could it be tolerated that the domiciliary ad- ministrator should be able practically to nullify the administration in a foreign country by assigning the personal property there situated: Murphy v. Grouse, 135 Gal. 14, 17; 87 Am. St. Eep. 90; 66 Pac. Eep. 971. Foreign executors cannot sue in Galifornia without first having obtained ancillary letters testamentary or of administration: Lewis V. Adams (Gal.), 8 Pac. Eep. 619, 620; though he may sue per- sonally here on a foreign judgment: Lewis v. Adams, 70 Gal. 403; 59 Am. Rep. 423; 11 Pac. Eep. 833; and he may sue, as mortgagee, under the terms of a mortgage, to recover a trust fund, without taking out letters testamentary in the jurisdiction within which the mortgaged property is situated: Fox v. Tay, 89 Gal. 339, 350; 23 Am. St. Eep. 474; 24 Pac. Eep. 855; 26 Pac. Eep. 897. If there be assets of the estate of the testator in this state, administration may be had, the administrator having power to reduce the same to possession by suit or otherwise, and if the testator was a non-resident, the administration would be treated as ancillary, and after the pay- ment of the local debts and expenses the surplus may, by order of the court, be delivered to the executor or administrator of the domicile, and to that end the executor or administrator of the domi- cile may doubtless apply to the court, in this state, for such order. But beyond that no authority over such assets here seems to have been given to the executor or administrator of the domicile: Lewis V. Adams (Cal.), 8 Pac. Eep. 619, 621. Although a foreign execu- tor may have no coercive power in the collection of assets in the jurisdiction in which he resides, yet if assets situated in that jurisdiction come into his possession by a voluntary payment or ad- ministration, he is bound to account for them in the domiciliary jurisdiction: Fox v. Tay, 89 Cal. 339, 348; 23 Am. St. Eep. 474; 24 Pac. Eep. 855; 26 Pac. Eep. 897. (10) Custody and control of assets. The custody of the assets of an estate is in the executor or administrator, and not in the court. There is no law which authorizes a probate judge to direct him where and how he shall keep the assets of an estate, and surely there ought to be no such law. The representative is liable for their safety on his bond. If the court could lawfully take charge of them, it would deprive interested parties of this security. If goods are lost, it may be a question whether they have been properly cared for. If they have been placed where the judge has directed, and then lost, he will have prejudged the case before the trial. Execu- INVENTORY, ETC., POSSESSION. 527 tors and administrators cannot be deprived of the actual custody of the assets of an estate by such an order: Estate of Welch, 110 Cal. 605, 608; 42 Pae. Rep. 1089. Property and all assets of the decedent pass to his heirs, subject to a right of possession in the executor or administrator for purposes of administration only: Maddock v. Ens- sell, 109 Cal. 417, 422; 42 Pac. Eep. 139. But the representative of the estate has no right to give its assets away, even though he may consider them worthless, and his attorney has no right to receive such a gift from his hands: Estate of Radovich, 74 Cal. 536; 16 Pac. Rep. 321, 322; 5 Am. St. Rep. 466. (11) Widow takes as trustee -when. The aid of a court of equity may be invoked to have certain land adjudged to be the property of the estate of a decedent, where the widow holds th6 legal title; and the court cannot be held to have abused its discretion because it does not proceed to close the estate and settle the administration after determining that the title is in the estate, and that the widow holds as trustee for the estate. It is proper for the court to allow those matters to reach their natural termination in the tribunal and proceeding in which they are pending: Burton v. Burton, 79 Cal. 490; 21 Pac. Rep. 847, 848, stating facts under which the widow will be held to take as trustee for the estate. (12) Realty. Personalty. EoLuitable conversion. A contract for the sale of real estate, which is valid and enforceable in equity, operates as a conversion. The vendor's interest thereafter, in equity, is in the unpaid purchase price, and is treated as personalty; the vendee's interest is in the land, and is realty. Upon the death of the vendor, his interest passes to his executors as personalty, and continues as such for the purposes of administration: Clapp v. Tower (N. D.), 93 N. W. Rep. 862. Real estate acquired by an administrator in obtaining satisfaction of judgments forming a part of the assets of the estate in his hands for settlement is to be treated for purposes of administration as personal property: Weir V. Bagby, 72 Kan. 67; 82 Pac. Eep. 585. Where a person dies in- testate, having a title or interest in lands, for a term of years, such interest is, under the statute of Colorado, to be regarded and treated as real estate by the administrator: McKee v. Howe, 17 Col. 538; 31 Pac. Eep. 115. BEFEBENCES. Real estate acquired by executor or administrator for benefit of estate as realty or personalty: See note 7 Am. & Eng. Ann. Gas. 703. (13) Semaiuder in fee after homestead. An order setting apart, as a homestead, a life estate in certain real property does not re- move the remainder in fee in that property beyond the reach of 528 PROBATE LAW AND PRACTICE. creditors of the estate. The homestead estate is so removed and excluded because it has ceased to be subject to any of the purposes of administration. It is freed from the debts of the creditors. It is freed from the possession of the administrator; but it does not follow therefrom that the title in fee embraced in the remainder over to the heirs is likewise removed from administration, and there is nothing either in the statute or in the decisions to warrant such a construction: Estate of Tittel, 139 Gal. 149, 150, 153; 72 Pae. Rep. 909. 2. Inventory and appraisement. (1) In general. When a question arises, in the administration of an estate, whether property shall be inventoried as a part of the estate or not, the probate court may hear evidence sufficient to de- termine whether the property in question belongs to the estate, or whether the estate has any interest therein, or has reasonable claim thereto, which claim may become an asset of the estat&j not , for the purpose of judicially determining the title of any property claimed by any third person, but to determine the good faith of the claim. The statute does not require property or money to be inventoried, unless it belongs to the estate, and the court will not require money to be inventoried which does not belong to the estate and is not an asset thereof: In re Belt's Estate, 29 Wash. 535; 70. Pac. Eep. 74, 76. " The executor or administrator can be required to inventory only the property that belongs to the decedent, at the time of his death, in his own right, or to which the personal representative is entitled in his official capacity, as distinguished from the heir, legatee, widow, or donee mortis causa of the testator or intestate. The court has no power, therefore, to compel the administrator to inventory property not clearly belonging to the estate. On the other hand, the court should not reject an inventory exhibited .because it contains property, the title of which is in dispute," as the court has no power to try the title of property between the personal representa- tives and a stranger: In re Belt's Estate, 29 Wash. 535; 70 Pac. Eep. 74, 76, quoting from 2 Woerner's Law of Administration, 2d ed., sec. 317. The court has jurisdiction to determine prima facie whether or not the property belongs to the estate and is an asset thereof. This adjudication is not binding upon any person after- wards claiming the property in another forum, but is only for the purpose of determining whether the administrator shall be forced to make an inventory thereof: In re Belt's Estate, 29 Wash. 535; 70' Pac. Eep. 74, 77. The inventory is required to set forth- all the estate which shall have come to the " knowledge,'' as well as that which shall have come to the possession, of the administrator, though he is to be charged in his account with only such portion of the estate as may come to his possession at the value of the appraise- taent: Estate of Simmons, 43 Gal. 543, 549. A clause in the statute INVENTORY, ETC., POSSESSION. 52& under which the administrator is required to file an inventory and appraisement within three months after his appointment is directory, and does not render them invalid when subsequently filed: Phelan V. Smith, 100 Cal. 158, 169; 34 Pac. Eep. 667. The notice to credi- tors may be given before the iaventory is filed: Paterson v. Schmidt, 111 Cal. 457, 458; 44 Pac. Eep. 161. Although the executor or ad- ministrator may, upon notice, have his letters testamentary or of administration revoked by the court for his failure to file an in- ventory and appraisement within the time allowed by the statute, such statute is directory, rather than mandatory, and the court has a discretion in the matter of removal for such cause, which will not be interfered with on appeal, except in cases where a gross abuse of discretion has occurred: Estate of Graber, 111 Cal. 432, 434; 44 Pac. Eep. 165. The duties as imposed by the statute ^upon executors and administrators cannot affect the rights of creditors of the deceased, or change the mutual relations existing between such creditors and the estate: Ainsworth v. Bank of California, 119 Cal. 470, 477; 63 Am. St. Eep. 135; 51 Pac. Eep. 952; 39 L. E. A. 686. The adminis- trator cannot, without being duly authorized by the probate court, assign a mortgage given to the deceased in his lifetime, as indemnity to him as surety, to the principal creditor. Such a mortgage must be listed in the inventory of appraisement as a credit in the hands of the administrator, to be applied as an offset against the debit caused by the instrument upon which the deceased was surety: Pierce v. Batten, 3 Kan. App. 396; 42 Pac. Eep. 924. (2) Affidavit. The object of requiring an aflSdavit by the execu- tor or administrator to accompany the inventory and appraisement is, apparently, not to give any validity to the inventory as such, but to furnish evidence that it contains all the property in the knowledge or possession of af&ant, thus serving as a check on the administrator: Phelan v. Smith, 100 Cal. 158, 168; 34 Pae. Eep. 667. An inventory may be said to be completed when the work of the appraisers has been concluded, and the instrument showing the re- sult t)f their labor has been signed and delivered by them. The pur- pose of the statute in requiring an affidavit is to furnish an addi- tional assurance that the inventory contains a full account of all the property of the estate known to the executor or administrator, and' also to obtain his solemn admission that he is properly charge- able in his accounts with all the property that ia described in the inventory; and while the court mayj upon its own motion, or upon the application of any person interested in the estate, compel the executor or administrator to comply with the statute requiring him to make an affidavit, yet the failure of an executor or administrator to discharge this duty would not render the inventory, properly signed and delivered by the appraisers, of no effect as an inventory: Estate of Lux, 100 Cal. 593, 601; 35 Pac. Eep. 341. Probate — • 34 530 PEOBATE LAW AND PRACTICE. (3) Betum. An inventory is returned, within the meaning of the law, when it has been completed by the appraisers and presented to the judge or court for information, and as a basis for some judicial action to be taken in the proceeding for the settlement of the estate to Which it relates. Nor is the filing of the inventory with a clerk an indispensable requisite to its return. The filing of an inventory with the clerk of a proper court would certainly constitute its re- turn, but while this is so, such filing is not an indispensable step which must be taken in order to effect the return of such a paper: Estate of Lux, 100 Cal. 593, 600, 601; 35 Pac. Eep. 341. (4) Must include what. The law treats a debt or demand due from the executor or administrator from the time it becomes due as so much money in his hands, and it requires him so to report it: Estate of Walker, 125 Cal. 242; 73 Am. St. Kep. 40; 57 Pae. Eep. 991; Treweek v. Howard, 105 Cal. 434, 446; 39 Pac. Eep. 20; Estate of Miner, 46 Cal. 564; Estate of Thomas, 140 Cal. 397; 73 Pac. Eep. 1059; but the sureties on his bond are not liable beyond the repre- sentative's ability to pay: Sanchez v. Forster, 133 Cal. 614; 65 Pae. Eep. 1077; Estate of Thomas, 140 Cal. 397; 73 Pae. Eep. 1059; Estate of walker, 125 Cal. 242; 73 Am. St. Eep. 40; 57 Pac. Eep. 991. The interest of a decedent in a partnership must be included in the in- ventory of his estate, and be appraised as other property: Painter v. Estate of Painter, 68 Cal. 395, 396; 9 Pac. Eep. 450. The inventory must also state the interest of the estate in property of third per- sons: Mesmer v. Jenkins, 61 Cal. 151, 154. The inventory should also include money transferred by the husband before his death to his wife in trust: Sprague v. Walton, 145 Cal. 228, 236; 78 Pae. Eep. 645. A judgment in favor of the estate should be inventoried by the executor or administrator: In re Censer's Estate, 40 Or. 138; 66 Pac. Eep. 607, 609. (5) Second or further inventory. If the first inventory is in proper form, and the second involves no additions or changes, it is merely snrplnsage; but it may often occur, from the discovery of other property, the destruction or loss of a portion of the property, and from various other causes, that a second or further inventory or appraisement is desirable. In all cases, the court, under the powers conferred upon it, may doubtless inform itself, by means of a new or further inventory and appraisement, of the true condition of the estate: Phelan v. Smith, 100 Cal. 158, 169; 34 Pac. Eep. 667. (6) As evidence of valne. The valuation of the " inventory " is evidently not intended to be conclusive for any purpose: Estate of Hinckley, 58 Cal. 457, 516; McNabb v. Wixom, 7 Nev. 163; In re Belt's Estate, 29 Wash. 535; 70 Pae. Eep. 74, 76; Estate of Fernandez, INVENTORY, ETC., POSSESSION. 531 119 Cal. 579, 584; 51 Pae. Eep. 851; In re Conser'a Estate, 40 Or. 138; 66 Pac. Eep. 607, 610. It is only prima facie evidence of the value of the estate: Wheeler v. Bolton, 92 Cal. 159, 170; 28 Pae. Kep. 558; Estate of Fernandez, 119 Cal. 579, 584; 51 Pac. Eep. 851. The appraisers make a preliminary estimate for the information of tlie court, and if property not included in the original inventory is dis- covered, it is made the duty of the executor or administrator to cause the value of such property to be estimated by the appraisers: Estate of Hinckley, 58 Cal. 457, 516; In re Conser's Estate, 40 Or. 138; 66 Pac. Eep. 607, 609. (7) Appraisement. An appraisement must be made of property discovered subsequently to the filing of the inventory: Estate of Hinckley, 58 Cal. 457, 516; In re Conser's Estate, 40 Or. 138; 66 Pac. Eep. 607, 609. The executor or administrator is chargeable, in his account, for the whole of the estate of the decedent which may come into his possession, at the value of the appraisement contained in the inventory: Estate of Gianelli, 146 Cal. 139; 79 Pae. Eep. 841, 842; but it is not negligent for him to fail to appraise mortgaged property where it would have been a useless expense, as where it would not, if sold, have brought the amount of the mortgage: Estate of Strong, 125 Cal. 603, 606; 58 Pac. Eep. 183. If personal property has been disposed of by the executor or administrator in accordance with the expressed wish of the decedent, and without including such property in the inventory, though he does not make a supplemental inventory thereof on final settlement, the court may determine its value, without having it appraised as other property of the estate: Estate of Garrity, 108 Cal. 463; 38 Pac. Eep. 628, 630; 41 Pac. Eep. 485. The fact of non-appraisement of certain property of the estate does not affect the validity of the final account if all the property received, or which by reasonable diligence should have been received, has been punctiliously accounted for: In re Conser's Estate, 40 Or. 138; 66 Pac. Eep. 607, 609. (8) No estoppel from filing inventory. The filing of an inventory by an executor, who represents, in his petition for letters testa- mentary, that certain property included therein belongs to the es- tate, is not estopped from afterwards claiming such property as his own: Anthony v. Chapman, 65 Cal. 73, 76; 2 Pac. Eep. 889. So if outside lands are inventoried by an administratrix as of her de- ceased husband, which were in truth not his estate, but the property of the administratrix, such fact does not estop her from claiming the property as her own, where she made the inventory by mistake of law and in ignorance of her rights: Baker v. Brickell, 87 Cal. 329 342; 25 Pae. Eep. 489, 1067. It is quite possible for property to be erroneously included in an inventory by one acting under pure 532 PROBATE LAW AND PRACTICE. mistake of facts or in ignorance of legal rights. Such conditions in no way change the fact of the real ownership, and incidentally do not affect the right of possession attached to such ownership. Hence where property included in the inventory of the estate is claimed by tile administrator, who had possession before he became administra- tor, he is not estopped from disputing the title of his successor: In re Murphy's Estate (Wash.), 70 Pac. Rep. 107, 109. And if the filing of an inventory is not conclusive against the claim of an administrator to property therein contained, certainly where the ad- ministrator comes into .possession of property, and refuses to inven- tory it, upon the claim that it does not belong to the estate, but belongs to some third person or to himself, no estoppel as to the title can be pleaded, simply because the property was received in a rep- resentative capacity: In re Belt's Estate, 29 Wash. 535; 70 Pac. Eep. 74, 76. 3. Possession of estate. (1) Bight to, and nature of. Immediately upon the issuance of letters of administration to an executor or administrator, he is en- titled to have the possession of the estate of deceased, both real and personal, to the end that the rents and profits, and if need be the proceeds of the property itself, be applied to the payment of debts and charges, and the balance, if any, distributed and by him de- livered to the party entitled: Page v. Tucker, 54 Cal. 121, 123; Meeks v. Hahn, 20 Gal. 620, 628; Jahns v. Nolting, 29 Cal. 507, 510; Murphy v. Grouse, 135 Gal. 14; 87 Am. St. Eep. 90; 66 Pac. Eep. 971; Webb v. Winter, 135 Gal. 455, 458; 67 Pac. Bep. 691; In re Higgins' Estate, 15 Mont. 474; 39 Pac. Eep. 506; Bank of Ukiah v. Eice, 143 Cal. 265; 76 Pac. Eep. 1020. An administrator is entitled to the possession of the property of the deceased, real and personal, for the purposes of administration: Butler v. Smith, 20 Or. 126; 25 Pac. Eep. 381. He takes charge of the entire estate, whether it passes to the heir or is otherwise disposed of: Ward v. Moorey, 1 Wash. Ter. 104. Not only is the executor or administrator entitled to the possession of all the real and personal estate of the decedent, but it is made his duty to reduce it into possession, and his right of action must be commensurate with the right and duties thus im- posed upon him by the statute: Collins v. O'Laverty, 136 Gal. 31, 34; 68 Pac. Eep. 327. The possession of the administfator does not devest the heir or devisee of the fee. His possession is for the heirs or devisees who are the owners and seised in fee, subject to the temporary right of the administrator to the possession, and subject to the defined statutory authority and powers of sale given to the administrator: Byer v. Fletcher Eyer Co., 126 Cal. 482, 484; 58 Pac. Eep. 908. At common law, the administrator was entitled to the possession of the personal estate of the deceased until disposed of in due course of administration. The title vested in him, but here INVENTORY, ETC., POSSESSION. 533 the title vests in the heir. At common law, the title vested in the administrator, by relation, at the time of the death of the deceased; but here the administrator's control of the property, by relation, extends back to the same point of time, and he is deemed in law from that time to have the possession, or to be entitled to the possession, of the personal property, as the case may require: Jahns V. Nolting, 29 Cal. 507, 511. The right to the possession of the real property of an intestate remains exclusively with the adminis- trator until the estate is settled, or until distribution is directed by order of the probate court: Meets v. Hahn, 20 Cal. 620, 628. And the court cannot deprive an executor or administrator of his possession of the property of the estate, except in the manner provided by law: Estate of Welch, 110 Cal. 605, 609; 42 Pac. Eep. 1089. An executor however, has no right of possession as against a chattel mortgagee who has the right of possession under the terms of a contract. The death of the mortgagor does not affect the rights of the mortgagee under the contract, and the executor possesses no new rights to the property, or to the possession of it, that were not in the mortgagor in his lifetime. On default in payment, the mortgagee has the right of possession of the property, as well against the executor of the mortgagor as against the mortgagor himself: Mathew v. Mathew, 138 Cal. 334, 337; 71 Pac. Eep. 344. An executor or administrator is not a co-tenant with a devisee or heir, and he is entitled to the possession against the devisee or heir: Webb v. Winter, 135 Cal. 455, 458; 67 Pac. Eep. 691. Upon the death of one owning personal prop- erty, the property passes at once to his heirs, devisees, or legatees, but subject to the control of the probate court and the possession of the administrator or executor, for the purposes of adiiiinistration ; and the title of the heirs is subject to the perforn-ance by the executor or administrator of all his trusts, among whicn is the pay- ment of the debts of the decedent; and the heirs finally come into the possession and enjoyment of only such portion as may remain after the execution of such trusts by the representative: Estate of Vance (Cal.)/ 93 Pac. Eep. 1010, 1011. (2) Statute of limitations. Loss of right. The statute of limita- tions runs against the executor's or administrator's right of posses- sion. The right of possession resting in the representative is barred in the same way as the right of possession in any other trustee: Webb V. Winter, 135 Cal. 455, 457; 67 Pac. Eep. 691. The executor or administrator ceases to be entitled as of course to the possession of the property of the estate, where it has been put into the hands of devisees or legatees under the provisions of the statute, upon their giving bonds for the payment of their proportion of the debts: Estate of Woodworth, 31 Cal. 595, 619. Where the objection of the bar of the statute of limitations does not appear upon the face of 534 PROBATE LAW AND PKACTICE. the complaint, and the objection is not raised by the answer, it is, for the purposes of the action, to be regarded as abandoned. Such is the rule where the action is, upon a demand arising upon contract, and in our system of practice the same rule must apply where the action is to enforce a right to the possession of real property: Meeks V. Hahn, 20 Cal. 620, 627. (3) Domiciliary executors. It is the duty of the domiciliary ex- ecutor to take possession of foreign assets of his testator, so far as he is able to do so: Estate of Ortiz, 86 Cal. 306, 316; 21 Am. St. Eep. 44; 24 Pac. Eep. 1034; and, where no conflicting grant of au- thority appears, the domiciliary appointee of another state may take charge of and control personal property of the deceased in the state of its situs: Estate of Ortiz, 86 Cal. 306, 315; 21 Am. St. Eep. 44; 24 Pac. Eep. 1034. (4) Recovery of possession. Where the executor or administrator has the exclusive right to the possession of the property of the estate of a decedent until the final order of the court, and where he has the right to bring suit to recover any property belonging to the estate held adversely by others, and where the possession of the heirs is made subject to the possession of the executor or administrator for the purpose of administration, the executor or administrator has a right to maintain an action to recover the property of his intestate: Jenkins v. Jensen, 24 Utah, 108; 56 Pac. Eep. 773, 776; Eoury v. Duffield, 1 Ariz. 509. He may recover the possession from an heir or devisee: Page v. Tucker, 54 Cal. 121, 122. And the executor or administrator, being entitled to the possession of the estate of the deceased, may maintain ejectment: Curtis v. Herrick, 14 Cal. 117; 73 Am. Dec. 632; McClelland v. Dickenson, 2 Utah, 100; but see Emeric V. Penniman, 26 Cal. 119; Carrhart v. Montana etc. Co., 1 Mont. 245. He may also bring an action to quiet title to the real estate of his decedent: Pennie v. Hildreth, 81 Cal. 127, 130; 22 Pac. Eep. 398; Collins v. O'Laverty, 136 Cal. 31; 68 Pac. Eep. 327. If a per- son, before his death, was entitled to a conveyance of land, a con- veyance of it to his administrator, as such, vests the legal title thereto in the administrator: In re Smith, 4 Nev. 254. The executor or administrator may maintain an action necessary either to protect his possession or to reduce into possession property of the estate held by others. In the application of this rule, " the difference be- tween legal and equitable estates is of no practical importance. They are both estates originating by law, and held under law, and in that sense are legal estates." There is therefore no room, in an action by the administrator of a deceased person to set aside and cancel a deed executed by the decedent in her lifetime, for any distinction between legal actions brought on the title, and equitable actions INVENTORY, ETC., POSSESSION. 535 brought to recover property of which the legal title as well as the possession is in another. The sole test of the administrator's right of action is the right of the estate to the possession of the prop- erty. If the right exists, then the right of action exists; and it will make no difference if, in order to recover property, to the pos- session of which the estate is entitled, it should become necessary to cancel a voidable deed, or otherwise, according to the equity prac- tice, to dispose of an outstanding legal title: Collins v. O'Laverty, 136 Cal. 31, 35; 68 Pac. Eep. 827. In an action by an executor or administrator for the possession of the real estate of his decedent, it is not necessary to set out the inventory and appraisement in the complaint, if the making of an inventory is, not a prerequisite of the right to take possession of the estate: Black v. Story, 7 Mont. 238; 14 Pac. Eep. 703. An executor or administrator, however, is not entitled to institute partition proceedings, unless expressly author- ized by the statute: Eyer v. Fletcher Eyer Co., 126 Cal. 482, 484, 485; 58 Pac. Eep. 908. If the executor or administrator has a right to sue, and omits that duty, the beneficiary is then barred, and his remedy is against the administrator or his bondsmen. If the ad- ministrator fails to sue to recover land of the estate, or to set aside a sale within three years next following it, — the administration so long continuing, — then the heirs, as well as himself, are barred, even though the heirs are minors; and this on the ground that, under our system, the administrator represents the heirs; he the trustee, they the cestuis: Dennis v. Dint, 122 Gal. 39, 44; 68 Am. St. Eep. 17; 54 Pac. Eep. 378. If an administrator negligently allows the statute of limitations to run so as to bar his rights as such, he lays himself liable to the heir or any one else by his failure to perform his duty: Jenkins v. Jensen, 24 Utah, 108; 66 Pac. Eep. 773, 778. The pos- session of an administrator may be tacked to that of heirs to make out a five years' continuous adverse possession, because the posses- sion of the administrator is that of the heir: Spotts v. Hanley, 85 Cal. 155, 167; 24 Pae. Eep. 738. An executor or administrator is entitled to the possession of the real estate of his decedent, and may maintain an action therefor: In re Higgins' Estate, 15 Mont. 474; 39 Pac. Eep. 506, 509. BEFEBENCES. Possession of personal assets: See note 112 Am. St. Eep. 731. Ad- ministrator's tight to possession of personal property of his decedent and to recover it: See note 3 L. E. A. (N. S.) 704. 536 PROBATE LAW AND PEACTICE. CHAPTER n. EMBEZZLEMENT AND SUEEENDEE OF PEOPEETY OF ESTATE. I 379. Embezzlement of estate before issuance of letters. § 380. Citation to persons suspected of haying embezzled estate, etc. i 381. Form. Complaint charging concealment, embezzlement, etc., of estate. ■§ 382. Form. Citation to answer for alleged embezzlement of estate, etc. ^ 383. Eefusal to obey, citation. Penalty. § 384. Form. Commitment for contempt. I 385. Citation to account for estate. EMBEZZLEMENT OF PROPERTY OP ESTATE. 1. Definition. 3. Indictment. Petition. 2. Construction and validity of statute. 4. Power of court. § 379. Embezzlement of estate before issuance of letters. If any person embezzles, conceals, smuggles, or fraudulently disposes of any of the moneys, goods, chattels, or effects of a decedent, he is chargeable therewith, and liable to an action by the executor or administrator of the estate for double the value of the property so embezzled, concealed, smuggled, or fraudulently disposed of, to be recovered for the benefit of the estate. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 497), § 1458. AKAIiOGOTJS AND IDENTICAI, STATUTES. No identical statute found. Alaska. Carter's Code, sec. 814, p. 312. Arizona. Eev. Stats. 1901, par. 1721. Colorado. 3 Mills's Ann. Stats., sec. 4815d. Idaho. Code Civ. Proc. 1901, sec. 4115. Montana. Code Civ. Proc, sec. 2570. Nevada. Comp. Laws, sec. 2881. North Dakota. Eev. Codes 1905, §§ 8073, 8162. Oklahoma. Eev. Stats. 1903, sec. 1603. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1152. South Dakota. Probate Code 1904, § 149. EMBEZZLEMENT OF PEOPERTY. 537 Utah. Rev. Stats. 1898, sec. 3926. Washington. Pierce's Code, § 2510. Wyoming. Eev. Stats. 1899, see. 4689. § 380. Citation to persons suspected of having embezzled estate, etc. If any executor, administrator, or other person interested in the estate of a decedent, complains to the su- perior court, or a judge thereof, on oath, that any person is suspected to have concealed, embezzled, smuggled, or fraudu- lently disposed of any moneys, goods, or chattels of the de- cedent, or has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings, which con- tain evidences of or tend to disclose the right, title, interest, or claim of the decedent to any real or personal estate, or any claim or demand, or any lost will, the said court or judge may cite such person to appear before such court, and may examine him on oath upon the matter of such complaint. K such person is not in the county where the decedent died, or where letters have been granted, he may be cited and examined either before the superior court of the county where he is found, or before the superior court of the county where the decedent died, or where letters have been granted. But if he appears and is found innocent, his necessary expenses must be allowed him out of the estate. Kerr's Oyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 497), § 1459. ANALOGOUS AND IDENTICAL STATUTES, No identical statute foojid. Alaska. Carter's Code, sec. 810, p. 312. Arizona. Eev. Stats. 1901, par. 1722. Colorado. 3 Mills's Ann. Stats., sec. 4815d. Idaho. Code Civ. Proc. 1901, sec. 4116. Kansas. Gen. Stats. 1905, § 3071. Montana. Code Civ. Proc, sec. 2571. Nevada. Comp. Laws, see. 2882. New Mexico. Laws 1907, sees. 5, 6, p. 158. North Dakota. Eev. Codes 1905, §§ 8076, 8162. Oklahoma. Eev. Stats. 1903, sec. 1604. Oregon. Bellinger and Cotton'is Ann. Codes and Stats., § 1148. South Dakota. Probate Code 1904, § 150. 538 PROBATE LAW AND PRACTICE. Utah. Eev. Stats. 1898, sec. 3927. Washington. Pierce's Code, § 2511. Wyoming. Eev. Stats. 1899, sec. 4690. §381. Form. Complaint charging concealment, embez- zlement, etc., of estate. [Title of court.] [Title of estate.] j [Title of form.] Now comes , and, complaining to the court, alleges : That he is the duly appointed, qualified, and acting ad- ministrator ^ of the estate of , deceased ; That he suspects that has concealed, smuggled, and conveyed away certain goods and chattels of the decedent, to wit, ; ' That he suspects that said has in his possession, and has knowledge of, certain deeds, conveyances, bonds, con- tracts, and other writings, to wit, ,* which contain evi- dences of, and tend to disclose, the right, title, interest, and claim of decedent to certain real and personal property, and in certain claims and demands ; ° and that the said has knowledge of a lost will of said decedent." Complainant, furthermore, is informed and believes, and upon such information and belief alleges the fact to be, that said has had in his possession certain personal property of said estate, to wit, ,^ but that the said neglects and refuses to deliver said property, or any part thereof, to said administrator,' but has fraudulently embezzled, con- verted, and appropriated the same to his own use. Wherefore complainant prays that the said be cited to appear before this court, that he may be examined on oath concerning the matters alleged in this complaint. , Attorney for Complainant. , Complainant. [Add ordinary verification.] Explanatory notes. 1. Give file number. 2. Or, executor of the. last will, etc. 3. Insert description thereof. 4. Give brief description. 5. State them. 6. Give particulars, as far as possible. 7. Insert de- scription. 8. Or, executor. » EMBEZZLEMENT OF PROPERTY. 539 § 382. Form. Citation to answer for alleged embezzle- ment of estate, etc. [Title of court.] [Title of proceeding.! P° ' ^^P*- ^'' ' ( [Title of form.] The People of the State of To , Greeting. You are hereby cited to be and appear in the court of the county '^ of , at the court-room of Depart- ment No , in ,^ on ,* the day of , 19 — r, at o'clock in the forenoon ^ of said day, then and there to show cause, if any you have, why you should not be examined concerning property of the above estate alleged to have been embezzled by you.* By order of the court, this day of , A. D. 19 — Attest: , Clerk. [Seal] By , Deputy Clerk. Explanatoiy notes. 1. Give file number. 2. Or, city and county. 3. Give location of court-room. 4. Give day of the week. 5. Or, after- noon. 6. Or, concealed, smuggled, or fraudulently disposed of by you; or, concerning your possession or knowledge of possession of certain deeds, bonds, contracts, or other writings which contain evidence of, or tend to disclose some right, title, or interest of the above decedent to, certain real or personal property; or, concerning an alleged lost will of the above decedent. § 383. Refusal to obey citation. Penalty. If the person so cited refuses to appear and submit to an examination, or to answer such interrogatories as may be put to him, touch- ing the matters of the complaint, the court may, by warrant for that purpose, commit him to the county jail, there to re- main in close custody until he submits to the order of the court, or is discharged according to law. [Compelling disclosure by commitment.] If, upon such examination, it appears that he has concealed, embezzled, smuggled, or fraudulently disposed of any moneys, goods, or chattels of the decedent, or that he has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings containing evidences of or tending to disclose the right, title, interest, or claim of the decedent to any real or 540 PROBATE LAW AND PRACTICE. personal estate, claim, or demand, or any lost will of the de- cedent, the court may make an order requiring such person to disclose his knowledge thereof to the executor or admin- istrator, and may commit him to the county jail, there to remain until the order is complied with, or he is discharged according to law; [Interrogatories and answers to be in writing.] And all such interrogatories and answers must be in writing, signed by the party examined, and filed in the court. In addition to the examination of the party, witnesses may be produced and examined on either side. Kerr's Cyc. Code Civ, Proc. (Kerr's Stats, and Amdts., p. 497), § 1460. AITAIiOGOnS AND IDENTICAIi STATUTES. No identical statute found. Alaska. Carter's Code, sees. 811, 812, p. 312, Arizona. Bev. Stats. 1901, par. 1723. Coloiado. 3 Mills's Ann. Stats., sec. 4815cl. Idaho. Code Civ. Proe. 1901, sec. 4117. Kansas. Gen. Stats. 1905, §§ 3072-3074. Montana. Code Civ. Proc, sec. 2572. Nevada. Comp. Laws, see. 2883. New Mexico. Laws 1907, sees. 5, 6, p. 158. North Dakota. Eev. Codes 1905, §§ 8077, 8162. Oklahoma. Eev. Stats. 1903, see. 1605. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1149, 1150. South Dakota. Probate Code 1904, § 151. Utah. Eev. Stats. 1898, sees. 3927, 3928. Washington. Pierce's Code, § 2512. Wyoming. Eev. Stats. 1899, sec. 4691. § 384. Form. Commitment for contempt, [Title of conrt.] ,„. , ^ ^ ^ , (No. 1 Dept. No. . [T.tle of estate.] | ^^.^^^ J^^^^^ This court, after due and legal proceedings had, having made and entered its order on the day of , 19 — , that appear before this court to be examined on oath concerning the matters alleged in a complaint filed herein on the day of , 19 — , wherein the said was charged with concealing and embezzling certain estate of decedent ; " and it being shown to the conrt that due and EMBEZZLEMENT OF PEOPBETY. 541 legal notice of said order was given to the said ; that he has neglected and refused, and still neglects and refuses, to obey said order ; and that it is in his power to obey it, — It is ordered, adjudged, and decreed. That the said be committed to the county jaU of said county,^ there to remain until said order is complied with, or until he is dis- charged according to law, and that the sheriff of said county * take charge of the said , and him safely keep and imprison in accordance with the terms of this order. Dated , 19 — . , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or whatever the order may have been. 3, 4. Or, city and county. § 385. Citation to account for estate. The superior court, or a judge thereof, upon the complaint, on oath, of any ex- ecutor or administrator, may cite any person who has been intrusted with any part of the estate of the decedent to ap- pear before such court, and require him to render a full account, on oath, of any moneys, gOods, chattels, bonds, ac- counts, 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 account, the court may proceed against him as provided in the pre- ceding section. Kerr's Oyc. Code Civ. Proc, § 1461. ANAIiOGOTJS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 813, p. 312. Arizona.* Eev. Stats. 1901, par. 1724. Idaho.* Code Civ. Proc. 1901, sec. 4118. Kansas. Gen. Stats. 1905, § 2893. Montana.* Code Civ. Proc, sec. 2573. Nevada. Comp. Laws, sec. 2884. New Mexico. Laws 1907, sees. 5, 6, p. 158. North Dakota. Eev. Codes 1905, § 8162. Oklahoma.* Eev. Stats. 1903, sec. 1606. Oregon. Bellinger and Cotton's Atm. Codes and Stats., § 1151. South Dakota.* Probate Code 1904, § 152. Washington. Pierce's Code, § 2513. Wyoming. Eev. Stats. 1899, sec. 4692. 542 PROBATE LAW AND PRACTICE. EMBEZZLEMENT OF FROFEBTY OF ESTATE. 1. Definition. 3. Indictment. Petition. 2. Construction and validity of statute. 4. Fowei of couit. 1. Definition. To embezzle the property of an estate is to axpro- priate fraudulently to one's own use and to conceal the effects of the estate, which such person has in his possession; and to alienate, signifies to transfer wrongfully such property to another. Such em- bezzlement or alienation is a wrongful conversion of the property, for which an action of trover was maintainable at common law. An action of the nature of an action of trover may be brought by the administrator without the aid of the statute, against any person who has embezzled or alienated the personal property of the estate, prior to the granting of administration. The statute does not give a new right of action, nor create a remedy where one did not pre- viously exist, but it merely increases the measure of damages, in ease the tortious conversion has been committed at a particular time when the property is peculiarly exposed to loss, — that is, the time intermediate the death of the deceased and the issuing of the letters of administration: Jahns v. Nolting, 29 Cal. 507, 511. BEFESENCES. See note § 646, post. 2. Construction and validity of statute. The statutory proceedings whereby an executor or administrator may recover property of the estate of a decedent, alleged to have been embezzled by the defend- ant and converted to his own use, are remedial and not penal in their nature, and do not contravene any provisions. of the state con- stitution: Levy V. Superior Court, 105 Cal. 600, 606; 38 Pac. Eep. 965; 29 L. B. A. 811; dismissed for want of jurisdiction, 167 V. 8. 175; 42 L. ed. 126. 3. Indictment. Petition. An indictment which charges that the defendant received into his hands, as administrator, the sum of sev- enteen hundred and ninety-four dollars, but in rendering his final account charged himself with only seventeen hundred dollars, does not, in the absence of all averments of other necessary inc^ulpatory facts, charge the defendant with the crime of embezzlement: People V. Gale, 77 Cal. 120; 19 Pac. Eep. 231. The petition of an adminis- trator, under the statute of Montana, alleged that decedent, at the time of his death, was indebted to a designated bank; that, as security for such indebtedness, ixe had, in his lifetime, given certain mortgages and deeded certain real property to the bank; that the administrator had since paid all the indebtedness and had received a reconveyance of a part of said realty; but that the bank had refused EMBEZZLEMENT OF PROPERTY. 543 to reconvey the same; and concluded as follows: " That the following- named persons have some knowledge relating to the title to these in- terests in the said properties, and said administrator asks that this ••ourt make an order citing the following-named persons to appear before said court at a time and place where they may be examined under oath, and that they be required to bring all title deeds, books, memorandums, and entries in books in relation to all matters alleged in said complaint," after which follow the names of the persons; — - is fatally defective, in that it fails to allege that any of these persons has in his possession or has knowledge of any book, deed, conveyance, bond, contract, or other writing which contains evidence of, or tends to disclose the right, title, interest, or claim of the de- cedent to, ■ any part of the real estate described therein. A subse- quent allegation to this eflEeet is necessary, in order to set the ma- chinery of the court in operation; and the court erred in issuing a citation upon such insufficient petition: State v. District Court (Mont.), 89 Pac. Rep. 62, 63. Where the plaintiff in an action for the wrongful taking of the personal estate of a decedent has averred the facts entitling him to recover damages according to the measure as enhanced by the statute, and has claimed the same in his prayer for relief, they should be awarded to him accordingly, if the evidence sustains the allegations of the complaint; and if he fails to prove the allegations which bring the case within the statutory rule of damages, but sustains the issues upon the remaining allegations, the recovery should be as in ordinary actions for trover and conver- sion: Jahns V. Nolting, 29 Cal. 507, 513. 4. Power of court. While the statute provides for a citation and examination of parties alleged to have in their possession property belonging to an estate, it does not declare that the court may, after such examination, when the title to the property is in dispute, order such effects to be delivered up to the executor or administrator, or deposited where the court may order. Thus the court has no power 10 order a person to deposit a sum of money, claimed to belong to the estate of a» decedent, in a bank, subject to the order of the court, where such person claims a right to the money: Ex parte Casey, 71 Cal. 269, 271; 12 Pac. Kep. 118. So where money was paid to an attorney at law, as a retainer and for services, by the one who employed him, the fact that the attorney failed to comply with his contract, or to perform the agreed services, does not authorize the "ourt to commit him to prison for refusing to refund the money that had been paid to him, especially where the court acts without trial, and without giving the petitioner a right to a defense in the- ordinary way. In making such an order the court exceeds its jurisdiction: Tomsky v. Superior Court, 131 Cal. 620, 623; 63 Pac. Rep. 1020. The probate court has no jurisdiction over a contest for the proceeds of 544 PEOBATE LAW AND PEACTIOE, an insurance policy payable, by its terms, to the widow and minor children of the deceased. Such fund is not a part of the estate of the deceased: Heydenfeldt v. Jacobs, 107 Cal. 373, 377; 40 Pac. Eep. 492. For other cases involving the same principle, see Ex parte HoUis, 59 Cal. 405; Stuparieh Mfg. Co. v. Superior Court, 123 Cal. 290, 292; 55 Pac. Bep. 985. A person in possession of personal prop- erty, under a claim of ownership, cannot be summarily deprived thereof by an order of court based on the afS.davits of an adverse claimant, but he has the right to have his title determined in an ap- propriate action by the verdict of a jury or the findings of a court upon issues framed for that purpose: Stuparieh Mfg. Co. v. Superior Court, 123 Cal. 290, 292; 55 Pac. Eep. 985. PAET VI. SUPPOET OF FAMILY. EXEMPT PROPERTY. HOMESTEAD. CHAPTER I. SUPPOET OF FAMILY. EXEMPT PKOPEETY. S 386. Eight to remain in possession of homestead, etc. i 387. Form. Order making provision for support of family until return of inventory. i 388. All property exempt from execution to be set apart for use of family. I 389. Form. Petition for decree setting apart homestead for use of family. ■§ 390. Form. Order setting apart recorded homestead of value less than five thousand dollars. Community property. I 391. Form. Order setting apart recorded honiestead, of value less than five thousand dollarSj selected by decedent out of hia or her separate property. I 392. Form. Order setting apart recorded homestead, of value less than five thousand dollars, selected by the survivor only, out of decedent's separate property. i 393. Form. Order setting apart homestead where none was re- corded. i 394. Form. Order setting apart property exempt. I 395. Form. Petition for order setting apart personal property for use of family and for family allowance. i 396. Form. Affidavit of posting notice of hearing of petition for family allowance. I 397. Form. Notice of hearing petition for family allowance. I 398. Form. Order for family allowance. % 399. Extra allowance may be made. § 400. Payment of allowance. i 401. Property set apart, how apportioned between widow and chil- dren. S 402. Administration when estate does not exceed fifteen hundred dollars. Probate — 35 (545) 546 PROBATE LAW AND PRACTICE. § 403, Form. Order that summary administration be had. § 404. Form. Notice to creditors. Summary administration. § 405. Form. Order to show cause why entire estate should not be assigned to widow and minor children. § 406. Form. Notice of application for order to set aside all of deeedent*s estate for the benefit of his family. § 407. Form. Notice of time and place of hearing application for setting aside entire estate for use and support of family. § 408. Form. Affidavit of posting of notice of petition for assign- ment of estate for use and support of family. § 409. Form, Order assigning entire estate for use and support of family of deceased. § 410. When all property other than homestead to go to children. FAMILT ALLOWANCE. 1. In general. Exempt property. (1) Widow's quarantine. (2) Exempt property. ( 3 ) Same. Homestead. (4) Paramount nature of right. (5) Application or petition. " Family." (6) Proof of right. (7) Notice not required. (8) Considerations in fixing. (9) Objections. Exceptions. (10) Fixing amount. Wh.en not excessive. (11) To be made when. (12) Widow is entitled to, when. (13) Widow is not entitled to, when. (14) To children. (15) Order. In general. (16) Order. Duration, modifica- tion, cessation, and sus- pension. (17) Order. Validity. (18) Order. Finality, conclusive- ness. (19) Paid without order of court. (20) Contest of allowance. Col- lateral attack. (21) Vacating allowance. Fraud. (22) Liens. Contracts to pay out. (23) Further allowance. (24) Motion for new trial. (25) Appeal. Review. Assignment of estate less in value than fifteen hundred dol- lars. (1) In general. (2) Notice to creditors, and to show cause. (3) What property may be set apart. (4) Apportionment, and rights of children. (5) Liens, outstanding titles, etc. (6) Appeal. (7) Beath pending appeal. Abate- ment. § 386. Right to remain in possession of homestead, etc. When a person dies leaving a widow or minor children, the widow or children, until letters are granted and the inven- tory is returned, are entitled to remain in possession of the homestead, of aU the wearing apparel of the family, and of all the household furniture of the decedent, and are also en- titled to a reasonable provision for their support, to be al- SXJPPOKT OF FAMILY EXEMPT PROPERTY. 547 lowed by the superior court, or a judge thereof. Kerr's Cyc. Code Civ. Proc, § 1464. ANALOGOUS AND IDENTICAIi STATUTES. The * indicates identity. Alaska.* Carter's Code, sec. 815, p. 313. Arizona.* Bev. Stats. 1901, par. 1725. Colorado. 3 Mills's Ann. Stats., see. 4791. Idaho.* Code Civ. Proc. 1901, sec. 4119. Kansas. Gen. Stats. 1905, §2923. Montana. Code Civ. Proc, sec. 2580. Nevada. Comp. Laws, sec. 2885. New Mexico. Comp. Laws 1897, sec. 1993. North Dakota. Eev. Codes 1905, § 8087. Oklahoma. Eev. Stats. 1903, sec. 1607. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1153. South Dakota. Probate Code 1904, § 153. Utah. Eev. Stats. 1898, sec. 3846. Washington. Pierce's Code, § 2521. Wyoming.* Bev. Stats. 1899, sec. 4733. § 387. Form. Order making provision for support of family until return of inventory, [Title of court.] [Title of estate.] /^° ' ^«P*- ^° ■ I [Title of form.] A petition for letters of administration " on the estate of deceased, having been filed in this court, from which it appears that said died on or about the — day of , 19 — ; that at the time of his death he was a resident of said county' and state, and that he left a widow and minor children ; and it being shown to the court that said widow and minor children have no means of support until such letters * are granted, and the return of the in- ventory of said estate, and that the sum of dollars ($ ) would be a reasonable sum for such support, — It is hereby ordered. That the sum of dollars ($ ) per month be appropriated out of said estate for the support of said family imtil the return of said inventory, and , the said administrator," is hereby directed to pay the same monthly, on the day of each and every month, 548 PROBATE LAW AND PEACTICE. to , the widow of said deceased, until said inventory be returned, or until the further order of this court. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, letters testa- mentary. 3. Or, city and county. 4. Or, letters testamentary. 5. Or, executor. § 388. All property exempt from execution to be set apart for use of family. 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 husband or wife, or, in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead, selected, designated, and recorded ; provided, such homestead was selected from the common property, or from the sep- arate property, of the persons selecting or joining in the se- lection 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 home- stead 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 pro- vided in article two of this chapter, out of the common prop- erty, or if there be no common property, then out of the real estate belonging to the decedent. Kerr's Oyc. Code Cijr. Proc, § 1465. AKAI.OGOUP AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 816, p. 313. Arizona. Eev. Stats. 1901, par. 1736. Colorado. 3 Mills's Ann. Stats., sec. 1465. Idaho. Code Civ. Proc. 1901, sec. 4120. Kansas. Gen. Stats. 1905, §§2923, 2924. Montana. Code Civ. Proc, sec. 2581. Nevada. Comp. Laws, sec. 2886. SUPPORT OF FAMILY EXEMPT PROPERTY. bid' New Mexico. Comp. Laws 1897, sees. 1993, 2041, 2042. North Dakota. Eev. Codes 1905, §§ 8087, 8089. Oklahoma. Eev. Stats. 1903, sees. 1607-1610. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1154. South Dakota. Probate Code 1904, §§ 154, 155. Utah. Bev. Stats. 1898, sec. 3846. Washington. Pierce's Code, §§2521, 2522. Wyoming. Eev. Stats. 1899, sec. 4737. § 389. Form. Petition for decree setting apart home- stead for use of family. [Title of court.] [Title of estate.] \^° ' ^®P*- ^° " ■' ( [Title of form.] To the Honorable the ^ Court of the County ' of , State of The petition of , the administrator ' of the estate of deceased, respectfully shows: That said deceased was a resident of the county " of at the time of his death, and left estate in the said county " and state; That letters of administration were issued to , the said administrator,^ on the day of , 19 — , and that on the day of , 19 — , said administrator* duly returned an inventory and appraisement of said estate to said ° court ; That a certain quantity of land in said inventory, and hereinafter particularly described, together with the dwell- ing-house thereon and its appurtenances, was selected from the community property of said spouses ^° by said deceased in his lifetime, and was duly declared and recorded as a homestead by declaration recorded in the office of the county recorder of the county of on the day of , 19 — , in volume of declarations of homestead, at page ; that said declaration of homestead remained in fuU force and effect at the time of the death of deceased ; ^^ That said premises do not exceed in value the sum of five thousand dollars ($5,000), and were appraised, as appears 550 PROBATE LAW AND PRACTICE. by said inventory and appraisement, at tlie siuu of • dollars ($ ) only; That the family of said deceased consists of his widow, , and three minor children, viz., , , and ; and that said widow was the wife of deceased at the time said homestead was declared and recorded as aforesaid ; That the said quantity of land is situated in said county "■" of , state of , and is particularly described as follows, to wit: ^^ "Wherefore your petitioner prays that the said homestead, consisting of said quantity of land, together with the dwell- ing-house thereon and its appurtenances, be set apart for the use of the family of said deceased.^* Dated , 19 , Petitioner. , Attorney for Petitioner.^' Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, city and county. 4. Or, executor. 5, 6. Or, city and county. 7, 8. Or, executor. 9. Title of court. 10. Or, from the separate property of the deceased. 11. Or, if no homestead had ever been selected, designated, and recorded as required by law, during the life of said deceased, by either said deceased or his surviving spouse, that a certain quantity of land in said inventory, and hereinafter described, with the dwelling- house thereon and appurtenances, was occupied by deceased and his family as a homestead at the time of his death, and is still so occupied by the widow and children of said deceased, and is in every respect fit and proper to be so used and occupied. 12. Or, city and county. 13. Describe the land. 14. Or, be set apart to , the widow of said deceased. 15. Oive address. § 390. Form. Order setting apart recorded homestead of value less than five thousand dollars. Community prop- erty. [Title of court.] [Title of estate.] I^" ' ^^P*- ^° I [Title of form.] The inventory and appraisement herein having been duly made and filed, and the following described real estate having been appraised therein at not exceeding five thousand dollars ($5,000) in value, and having been duly selected and SUPPORT OF FAMILY EXEMPT PEOPEETY. 551 recorded as a homestead in the lifetime of said decedent, and being community property, — Now, on motion of , it is ordered by the court. That the same be set off to , the surviving widow '"■ of said decedent, as her property, subject to no other liability of said decedent than such as exists or has been created by law.' Said land is described as follows, to wit: .* Entered , 19 , County Clerk. By , Deputy. Explanatory notes. 1. Give file number. 2. Or as the case may be. 3. Eefer to particular provision. 4. Describe the land. § 391. Form. Order setting apart recorded homestead, of value less than five thousand dollars, selected by decedent out of his or her separate property. [Title of court.] t-- of estate.] {"°- ^^ie ofw] — The inventory and appraisement herein having been duly made and filed, and the following described real estate having been appraised therein at not exceeding five thousand dollars ($5,000) in value, and having been duly selected and recorded as a homestead by said decedent during his life, out of his separate property, — Now, on motion of , the administrator" of said deceased, it is ordered by the court, That the said premises be set off to , the surviving widow ' of said decedent, as her property, subject to no other liability of said decedent than such as may exist under provisions of law,* if any such liability there be. Said land is described as follows, to wit: ° Entered , 19 — , County Clerk. By , Deputy.^ Explanatory notes. 1. Give file number. 2. Or, executor. 3. Or as the case may be. 4. Eefer to particular provision. 5. Description. 6. That orders need not be signed by the judge, see note § 77, ante. Compare Weinrich v. Hensley, 121 Cal. 647; 54 Pac. Eep. 254; Estate of Fath, 132 Cal. 609; 64 Pac. Eep. 995. 552 PROBATE LAW AND PRACTICE. § 392. Form. Order setting apart recorded homestead, of value less than five thousand dollars, selected by the survivor only, out of decedent's separate property. [Title of court.] The inventory and appraisement herein having been duly made and filed in this court, and the following described real estate having been appraised therein at not exceeding five thousand dollars ($5,000) in value, and having been duly selected and recorded as a homestead by the wife of said decedent during his life, out of his separate property, the said decedent not having joined in said selection, — Now, on motion of , it is ordered. That the same be set off for the period of years ^ from this date to the family of said decedent, namely, , his widow, and and , his minor children. . Said land is described as follows, to wit: ^ Entered , 19 — , County Clerk. By , Deputy.* Explanatory notes. 1. Give file number. 2. The period may be lim- ited to the life of the survivor: Estate of Schmidt, 94 Cal. 334, 336; 29 Pac. Eep. 714; Estate of Firth, 145 Cal. 236, 238; 78 Pae. Eep. 643. But in no case can it extend beyond the life of the person to whom the homestead is set apart: Hutchinson v. McNally, 85 Cal. 619, 621; 24 Pac. Eep. 1071. Compare Weinrich v. Hensley, 121 Cal. 647; 54 Pac. Eep. 254; Estate of Fath, 132 Cal. 609; 64 Pac. Eep. 995. 3. Insert description. 4. That orders need not be signed by the judge, see note § 77, ante. § 393. Form. Order setting apart homestead where none was recorded. [Title of court.] [Title of proceeding.] |^° ^ ^ept. No . (. [Title of form.] The inventory and appraisement herein having been duly made and filed, and it having been shown to the court that no homestead had been selected and recorded during the life of said decedent, — SUPPORT OF FAMILY ESEMPT PEOPERTT. 553 On motion of , , it is ordered, That the real estate here- inafter described be, and it is hereby, selected, designated, and set apart by the court as a homestead for the use of , the surviving spouse, and , the minor child, of said decedent. Said property is community property,^ and is described as follows: ' ■_ , County Clerk. Entered , 19 — By , Deputy.* Explanatory notes. 1. Give file number. 2. Or, is separate prop- erty of the decedent, and is hereby set apart as a homestead for the period of years from this date. 3. Describe the land. 4. That orders need not be signed by the judge, see note § 77, ante. § 394. Form. Order setting apart property exempt. [Title of court.] rm-i, , , . - fNo 1 Dept. No . [Title of estate.] { ^^.^^^ ^/^^^^ It appearing to the court that said deceased left surviving him , his widow, — Now, on motion of said widow, it -is ordered, That there be set apart, for the use of said widow, the wearing-apparel and household furniture of the deceased, which furniture is described as f oUows, to wit : " Entered , 19 — 1 County Clerk. By — ~, Deputy. Explanatory notes. 1. Give file number. 2. Describe the property. § 395. Form. Petition for order setting apart personal property for use of family and for family allowance. [Title of court.] ,„. , ^ ^ ^ T (No. 1 Dept. No. . [Title of estate.] J ^^.^^^ ^/^^^^ ^ To the Honorable the Judge of the " Court of the County ^ of ^, State of The petition of , administrator * of the estate of , deceased, respectfully shows: That on the day of , 19 — , an inventory and appraisement of said estate were duly returned to said ^ court ; 554 PROBATE LAW AND PRACTICE. That, as appears by said inventory and appraisement, said estate has been appraised at the sum of dollars ($ ); That the debts of said estate do not exceed, in all prob- ability, the sum of dollars ($— ), and that said estate is solvent ; * That your petitioner is advised and believes that the fol- lowing personal property, belonging to said estate, and mentioned in said inventory and appraisement, is by law exempt from execution, to wit : ; ' That the amount of said personal property which is by law exempt from execution is insufficient for the support of the family of said deceased; that an allowance out of the said estate is necessary for the maintenance of the said family ; and that the sum of dollars ($ ) per month is a reasonable allowance, according to the circumstances of said family. Wherefore your petitioner prays that all of the said per- sonal property may be set apart for the use of the said family; and that an allowance of dollars ($ ) per month be made for the maintenance of said family, out of said estate, during the progress of the settlement of said estate. , Petitioner. Dated , 19 — Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, city and county. 4. Or, executor. 5. Title of court. 6. Or, insolvent, as the case may be. 7. Describe it. § 396. Form. Affidavit of posting notice of hearing of petition for family allowance. LTitle of court.] [Title of estate.] P° ^ Dept. No \ [Title of form.] State of , 1 County " of , J , deputy county clerk of said county,* being duly sworn, says that on the day of , 19 — , he posted correct and true copies of the within notice in three of the most public places in said county,* to wit: one of the said SUPPORT OP FAMILY EXEMPT PEOPERTT. 555 copies at the place at which the court is held,= one at ," and one at ,' in said county Subscribed and sworn to before me this day of -. 19 — , Deputy County Clerk. Explanatory notes. 1. Give file number. 2-4. Or, city and county. 5. Naming it. 6, 7. Other public places; as, the city hall, land-ofSce, United States post-office, etc. 8. Or, city and county. § 397. Form. Notice of hearing petition for family allow- ance. [Title of court.] [Title of estate.] P°- — ' ^«P*- ^° • \ [Title of form.] Notice is hereby given, That , the administrator ^ of the estate of , deceased, has filed herein his petition paying for an order of this court granting a family allow- ance out of the estate of said deceased, and that — ,* the day of , 19 — , at o'clock in the fore- noon* of said day, at the court-room of said court, at the court-house,^ in said county,' has been fixed for the hearing of such petition, at which time and place any person inter- ested in said estate may appear and file his exceptions in writing to the said petition and contest the same. Dated this day of , 19 — , Clerk. By , Deputy Clerk. Explanatory notes. 1. Give file number. 2. Or, executor. 3. Day of week. 4. Or, afternoon. 5. Give location of court-house. 6. Or, city and county. § 398. Form. Order for family allowance. [Title of court.] [Title of estate.] \^° ' Dept. No ■■ -■ I [Title of form.] It appearing to the satisfaction of the court that the exempt property set apart to the widow is insufficient for the support of the widow and children of the deceased, — It is ordered. That there be allowed and paid to the said widow, for the maintenance of the family of said deceased, the sum of dollars ($ ) per month, beginning on 556 PROBATE LAW AND PRACTICE. the first day of , 19—, atid contimiing until the further order of the court. ' - — ^, Oounty Clerk. Entered , 19 — By , Deputy." Explanatory notes. 1. Give file number. 2. That orders need not be signed hj the judge, see note § 77, ante. § 399. Extra allowance may be made. If the property set apart is insufficient for the support of the widow and chil- dren, or either, the court or a judge thereof must take such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circum- stances, 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 adminis- tration. Kerr's Cye. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 498),§1466. ANALOGOUS AND IDENTICAI. STATUTES. No identical statute found. Alaska. Carter's Code, sec. 817, p. 313. Arizona. Eev. Stats. 1901, par. 1727. Idaho. Code Civ. Proc. 1901, sec. 4121. Montana. Code Civ. Proc, sec. 2582. Nevada. Comp. Laws, sec. 2887. New Mexico. Comp. Laws 1897, sec. 1993. North Dakota. Bev. Codes 1905, § 8091. Oklahoma. Eev. Stats. 1903, sec. 1611. Oregon. Bellinger and Cotton's Ann. Codes and StatS., 1 1155. South Dakota. Probate Code 1904, § 157. Utah. Kev. Stats. 1898, sec. 3846. Washington. Pierce's Code, § 2522. Wyoming. Bev. Stats. 1899, sec. 4734. §400. Payment of allowance. Any allowance made by the court or judge, in accordance with the provisions of this article, must be paid in preference to all other charges, ex- cept funeral charges and expenses of administration ; and any such alltJWauce, whenever made, may, in the discretion of the court or judge, take etfect ftom the death of the dece- dent. Kerr's Oyc. Code Civ. Proc, § 1467. SUPPORT OF FAMILY EXEMPT PROPERTY. 557 ANALOGOUS AND IDENTICAI. STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1728. Idaho.* Code Civ. Proc. 1901, see. 4122. Montana.* Code Civ. Proc, sec. 2583. Nevada. Comp. Laws, sec. 2888. North Dakota. Eev. Codes 1905, § 8092. Oklahoma.* Eev. Stats. 1903, sec. 1612. South Dakota.* Probate Code 1904, § 158. Utah. Eev. Stats. 1898, sec. 3846. Washington. Pierce's Code, § 2523. Wyoming.* Eev. Stats. 1899, sec. 4735. § 401. Property set apart, how apportioned between widow and children. "When property, other than the home- stead selected and recorded during the lifetime of the dece- dent, is set apart to the use of the family, in accordance with the provisions of this chapter, such property, if the decedent left a surviving spouse and no minor child, is the property of such spouse. If the decedent left also a minor child or children, the one half of such property belongs to the sur- viving spouse, and the remainder to the child, or in equal shares to the children, if there are more than one. If there is no surviving spouse, the whole belongs to the minor child or children. If the property set apart is a homestead, se- lected from the separate property of the decedent, the court can set it apart only for a limited period, to be designated in the order, and, subject to such homestead right, the prop- erty remains subject to administration. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 498), § 1468. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 816, p. 313. Arizona. Eev. Stats. 1901, par. 1729. Idaho. Code Civ. Proc. 1901, sec. 4123. Kansas. Gen. Stats. 1905, §2924. Montana. Code Civ. Proc, see. 2584. Nevada. Comp. Laws, sec. 2889. Oklahoma. Eev. Stuts. 1903, sec. 1613. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1154. South Dakota. Probate Code 1904, § 159. 558 PROBATE LAW AND PEACTICE. Utah. Eev. Stats. 1898, sec. 3847. Washington. Pierce's Code, §§2521, 2524. Wyoming. Eev. Stats. 1899, see. 4738. § 402. Administration when estate does not exceed fifteen hundred dollars. 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 fif- * teen hundred dollars, and if there be a widow or minor chil- dren 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 as- signed 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 one thousand six hun- dred and thirty-three, one thousand six hundred and thirty- five, and one thousand six 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 fifteen hundred dollars, it shall, by a decree for that purpose, assign to the widow of the deceased, if there be a widow, if no widow, then to the minor children of the deceased, if there be minor children, tlie whole of the estate, subject to whatever mortgages, liens, or encumbrances there may be upon said estate at the time of the death of the deceased, after the payment of the expenses of the last illness of the deceased, funeral charges, and expenses of administration, and the title thereof shall rest absolutely in such widow or minor children, subject to whatever mortgages, liens, or encumbrances there may be upon said estate at the time of the death of the deceased, and there must be no further proceedings in the administra- tion, unless further estate be discovered. Kerr's Cyc. Code Civ. Proc, § 1469. ANALOGOUS AND IDENTICAIi STATUTES. No identical statute found. Alaska. Carter's Code, see. 818, p. 313. Arizona. Bev. Stats. 1901, par. 1730. Idaho. Code Civ. Proc. 1901, see. 4124. Kansas. Gen. Stats. 1905, § 3048. Montana. Code Civ. Proc, see. 2585. •SUPPORT OP FAMILY EXEMPT PROPERTY. 559 Wevada. Comp. Laws, sec. 2890. Oklahoma. Kev. Stats. 1903, see. 1614. Oregon. Bellinger and Cotton's Ann. Codes and Stats., 1 1156. South Dakota. Probate Code 1904, § 160. Utah. Rev. Stats. 1898, sec. 3847. Washington. Pierce's Code, § 2520. Wyoming. Eqv. Stats. 1899, sec. 4739. § 403. Form. Order that summary administration be had. [Title of court.] [Title of estate.] |^° ' ^«Pt- ^o "■ ( . [Title of form.] It appearing to the court, upon the return of the inventory and appraisement of the estate of , deceased, herein filed on this day, that the value of all of said estate does not exceed the sum of five hundred dollars ($500) ; and that tho said deceased left surviving him a widow and minor children, — It is ordered, That 'a summary administration of said estate be had, and that the administrator ^ of said estate make final settlement thereof at the end of six months from the date of this order. , Judge.* Dated , 19 — Explanatory notes. 1. Give file number. 2. Or, executor. 3. Form appropriate in Montana. § 404. Form. Notice to creditors. Summary adminis- tration. [Title of court.] -.1 Dept. No. [Title of estate.] i^"- ■ _. . *■ ■■ I [Title of form.] Notice is hereby given, That the above-entitled court has ordered a summary administration of the estate of , deceased, a copy of which order is as follows, to wit, ; that letters of administration^ on said estate were granted to on the day of , 19 — , and bear said date ; and that in pursuance of said order I will make final settle- ment of said estate on the day of , 19 — Notice is further given to the creditors of, and to all persons having claims against, said estate to exhibit their claims, for allowance, to the said administrator,' at , on 560 PROBATE LAW AND PRACTICE. or before the said day of , 19 — ; and that all claims not so exhibited will be forever barred. Dated , 19 — , Administrator * of the Estate of , Deceased. Explanatoiy notes. 1. Give file number. 2. Or, letters testamentary. 3, 4. Or, executor. § 405. Form. Order to show cause why entire estate should not be assigned to widow and minor children. [Title of court.] [Title of estate.] -f^"- -TT' ^f^*" ^°: " "• ■■ ( [Title of form.] The inventory and appraisement of the estate of said deceased having been returned and filed in this court, and it appearing therefrom that the value of all of said estate does not exceed fifteen hundred dollars ($1,500), — It is ordered, That all persons interested in the estate of , deceased, appear in department of the ^ court of the county ^ of , state of , on ,* the day of , 19 — , at o'clock in the forenoon ^ of" said day, then and there to show cause, if any they have, why all of the estate of said deceased should not be assigned for the use and support of ,° the '' of said deceased- Let the clerk give notice of said hearing by posting notices thereof in three public places in this county,^ at least ten days " prior to said day of hearing. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Title of court. 3. Or,, city and county. 4. Day of webk. 5. Or, afternoon. 6. Insert names. 7. Widow and minor children. 8. Or, eity and county. 9. Or other time fixed by the court. § 406. Form. Notice of application for order to set aside all of decedent's estate for the benefit of his family. [Title of court.] [Title of estate.] i^" ' Dept.-No 1 [Title of form.] Notice is hereby given. That , administrator = of the estate ef , deceased, will, on the day of ^ SUPPORT OP FAMILY EXEMPT PEOPEETY. 561 19 — , apply to the above-entitled court, at the hour of o'clock in the forenoon ' of said day, for an order to set aside all of the estate of , deceased, for the benefit of decedent's family. , Clerk of the Court. Dated , 19 Explanatory notes. 1. Give file number. 2. Or, executor; or, , the widow of said deceased. 3. Or, afternoon. § 407. Form. Notice of time and place of hearing appli- cation for setting aside entire estate for use and support of family. [Title of court.] [Title of estate.] P° ' Dept. No [ [Title of form.] Notice is hereby given. That ," the day of , 19 — , at o'clock in the forenoon ^ of said day, and the court-room of department of the * court, in the court-house ° in the county » of , state of , have been fixed as the time and place when and where all persons interested in the estate of , deceased, may appear and show cause, if any they have, why the entire estate of said deceased should not be assigned for the use and support of the family of said deceased. , Clerk. Dated 19 — By , Deputy Clerk. Explanatory notes. 1. Give file number. 2. Day of week. 3. Or, afternoon. 4. Title of court. 5. State location of court-house. 6. Or, city and county. § 408. Form. Affidavit of posting of notice of petition for assignment of estate for use ancj support of family. [Title of court.] r„,. , , , ^ -, (No. Dept. No. . [Txtle of estate.] | ^^.^^^ J^^^^^ State of , 1 County ^ of , deputy county clerk of said county,^ being duly sworn, says that on the day of , 19 — , he posted correct and true copies of the within notice in three of the Probate — 36 562 PROBATE LAW AND PRACTICE. most public places in said county/ to wit : one of said copies at the place at which the court is held,* one at ,= and one at ,® in said county.'' Subscribed and sworn to before me this day of , 19 , Deputy County Clerk. Explanatory notes. 1-3. Or, City and County. 4-6. Name the public places; as, the city hall, land-o£E.ce, United States post-office, or as the case may be. 7. Or, city and county. § 409. Form. Order assigning entire estate for use and support of family of deceased. [Title of court.] rm-ii J! i i 1 fNo .1 Dept. No. . [Title of estate.] | ^^.^^^ ^/^^^^^ It appearing to the satisfaction of the court that notice of the order requiring aU persons interested in said estate to appear on the day of , 19 — , to show cause why all of said estate should not be assigned for the use and support of the family of said deceased, has been duly given as required by law and by the order of the court ; ^ and upon hearing the court finds that the value of the entire estate of said deceased does not exceed the sum of fifteen hundred dollars ($1,500) , and that the expenses of the last illness of said deceased, funeral charges, and expenses of administra- tion have been paid, — It is therefore ordered, adjudged, and decreed. That the entire estate of said , deceased, be, and the same is hereby, assigned to, and that the title thereof shaU vest absolutely in, , the widow ' of said deceased, subject to whatever mortgages, liens, or encumbrances there may have been thereon at the time of the death of said deceased. The said property consists of the personal property de- scribed in the inventory.* , County Clerk. Entered , 19 — By , Deputy." Explanatory notes. 1. Give file number. 2. If the matter has been continued, say, " that the hearing thereof has been regularly con- tinued by the court to this day. 3. Or, the widow, if any, and , the minor chUd or children of said deceased. 4. And, if any, the fol- lowing described real estate, giving its description. 5. See note § 77, ante, showing that orders need not be signed by the judge. SUPPORT OP FAMILY EXEMPT PROPERTY. 563 § 410. When all property other than homestead to go to children: If the widow has a maintenance derived from her own property equal to the portion set apart to her by the preceding sections of this article, the whole property so set apart, other than the homestead, must go to the minor children. Kerr's Cyc. Code Civ. Proc, § 1470. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona. Bev. Stats. 1901, par. 1731. Idaho. Code Civ. Proc. 1901, *c. 4125. Montana.* Code Civ. Proc, sec. 2586. Nevada. Comp. Laws, see. 2891. Oklahoma. Rev. Stats. 1903, see. 1615. South Dakota. Probate Code 1904, § 161. Utah. Eev. Stats. 1898, sec. 3847. Wyoming.* Rev. Stats. 1899, sec. 4740. FAMILT ALLOWANCE. In general. Exempt property. (18) Order (1) Widow's quarantine. (2) Exempt property. (3) Same. Homestead. (4) Paramount natare of right. (5) Application or petition. " Family." (6) Proof of right. (7) Notice not required. (8) Considerations in fixing. (9) Objections. Exceptions. (10) Fixing amount. When not excessive. (11) To be made when. (12) Widow Is entitled to, when. (13) Widow is not entitled to, when. (14) To children. (16) Order. In general. (16) Order. Duration, modifica- tion, cessation, and sus- pension. (17) Order. VaUdlty. Finality, conclnslve- ness. (19) Paid without order of court. (20) Contest of allowance. Collat- eral attack. (21) Vacating allowance. Fraud. (22) Iiiens. Contracts to pay out. (23) Further allowance. (24) Motion for new trial. (25) Appeal. Bevlew. 2. Assignment of estate less In value than fifteen hundred dol- lars. (1) In general. (2) Notice to creditors, and to show cause. ' (3) What property may be set apart. (4) Apportionment, and rights of children. (B) Iilens, outstanding titles, etc. (6) Appeal. (7) Death pending appeal. Abate- ment. 1. In general. Exempt property. (1) Widow's quarantine. Whatever may be the widow's remedy to enforce her statutory right of remaining in her husband's house 564 PROBATE LAW AND PRACTICE. for one year after his death withaut being chargeable with rent therefor, such right is not enforceable in an action of forcible entry and detainer: Aiken v. Aiken, 12 Or. 203; 6 Pae. Eep. 682, 683. If she gives away personal property of the deceased between the time of his death and the issuance of letters of administration, such gift does not confer upon the donee either title to or the right of pos- session of such property as against the administrator: Jahns v. Nol- ting, 29 Cal. 507, 514. (2) Exempt property. The court has power to set apart for the use of the widow of decedent the farming utensils and implements of husbandry used by the decedent in the operation of his farm, as property exempt from execution; and it may set off such exempt property to her without reference to any question as to the sufS.- ciency of funds in the estate with which the widow may be sup- ported: Estate of Slade, 122 Cal. 434; 55 Pac. Kep. 158. But a grain-driU, not used nor kept by decedent during his lifetime for the purpose of carrying on his trade or business of keeping a city hotel, is not exempt for the use of his widow and minor children, as it was not exempt to the decedent at the time of his death: Eeed v. Cooper, 30 Kan. 574; 1 Pac. Eep. 822. Exemptions are the creatures of statutes, and exceptions to the general rule. No property is exempt, unless made so by express provision of law. Hence life-insurance policies, the annual premiums of which exceed five hundred dollars, cannot, as to any portion thereof, be set apart to the widow and minor children as property exempt from execution: Estate of Brown, 123 Cal. 399, 401, 402; 69 Am. St. Eep. 74; 55 Pac. Eep. 1055. But where money received by an administrator for a policy of insurance upon the life of a decedent is an asset of the estate, and the annual premiums do not exceed five hundred dollars, the money is exempt from execution, and is properly set apart to decedent's widow: Estate of Miller, 121 Cal. 353, 355; 53 Pac. Eep. 906; Holmes v. Marshall, 145 Cal. 777, 781; 104 Am. St. Eep. 86; 79 Pac. Eep. 534; 69 L. E. A. 67; 2 Am. & Eng. Ann. Cas. 88. After the proceeds of a policy of insurance have been set apart to a widow as being property exempt from execution, the money is exempt from execution in her hands. It is exempt from execution as to all strangers or parties who have no claim to it without any provisions of the statute. It was in- tended to exempt it from the debts of the parties to whom it was payable, and who procured title to it by the death of the insured. It was not the intention that the insured might die leaving a small insurance and a dependent family, and that the insurance-money should be subject to execution for the debts of the wife, even if she is the beneficiary named in the policy: Holmes v. Marshall, 145 Cal. 777, 779; 104 Am. St. Eep. 86; 79 Pac. Eep. 534; 69 L. E. A. 67; 2 Am. & Eng. Ann. Cas. 88. A policy of insurance belongs to the estate of the decedent, although it was made payable to his SUPPORT or FAMILY EXEMPT PROPERTY. 565 administrator: Estate of Miller, 121 Gal. 353, 354; 53 Pac. Rep. 906. Where the decedent left a widow, but no nainor child, property set apart by the probate court for the use of the family becomes the absolute property of such surviving widow: Tore v. Fore's Estate, 2 N. D. 260; 50 N. W. Eep. 712. While it is the duty of the probate court to set apart, for the use of the family of the decedent, personal property, in addition to specific articles mentioned in the statute, not to exceed in value the sum of fifteen hundred dollars, the property so set apart does not belong to the assets of the estate to be dis- tributed to the heirs of the decedent: Fore v. Fore's Estate, 2 N. D. 260; 50 N. W. Eep. 712. (3) Same. Homestead. Upon the return of the inventory, or at any time thereafter during the administration, the court may (but this means "must"), on its own motion or on petition, set apart for the use of the family aU the property exempt from execution and the homestead, if one has been selected and recorded. If no home- stead has been selected and recorded, etc., the court must select, des- ignate, set apart, and cause to be recorded, a homestead for the sur- viving husband or wife and the minor children; and if there be no husband or wife, then for the use of the minor children. If the amount thus set apart be insufficient for the support of the family, then, and then only, the court is required to make such reasonable allowance out of the estate as shall be necessary, teut it was not the legislative intent to make the subsequent allowance which might become necessary a charge or lien upon the exempt or homestead property which the court is required to set apart to the family. This should, in regular order, be set apart at once upon the coming in of the inventory showing its existence; but if not then done, it may be done at any subsequent time during administration. A family allowance subsequently allowed cannot impair the right of the sur- viving husband or wife and children to a homestead. A family al- lowance made before exempt propeTty and the homestead are set apart, by parity of reasoning, is made subject to the right of the designated beneficiary to have a homestead and the exempt property set apart for their benefit: Estate of Still, 117 Cal. 509, 516; 49 Pac. Rep. 463. The wife and the minor child of deceased are entitled to have set apart to them, as their absolute property, a homestead, if petitioned for, and all exempt personal property of the estate. The statute is mandatory, and was evidently intended to secure and pre- serve the home for the benefit of the family, where they may live and be protected against creditors and heirs: In re Syndergaard's Estate (Utah), 88. Pac. Rep. 616, 617; and see Dooley v. Stringham, 4 Utah, 107; 7 Pac. Rep. 405. Whether the homestead be set apart or not, the court has power, in its discretion, to make such reason- able allowance out of the estate as shall be necessary for the main- 566 PROBATE LAW AND PEACTICB. tenanee of the family according to their circumstances during the progress of the settlement of the estate. The circumstances and con- dition of the family, as well as those of the estate, may be such that the court would more wisely exercise its discretion in making a pe- cuniary allowance for the support of the family out of the estate than setting apart to it a homestead; and if the widow is content with such allowance, without having a homestead set apart to her, it would seem that the other heirs ought not to complain. A home- stead is prijnarily a place of abode for the family, and it might be, that, although, if one were set apart, they would thus be furnished with an abiding-place, they would not receive a suficient income for their support, and the expense of maintaining the homestead would be disproportionate to their necessities; whUe, on the other hand, the widow might be better cared for by receiving an allow- ance suf&eient for her support and residing elsewhere than upon a portion of the property of the estate: Estate of Garrity, 108 Cal. 463, 467; 38 Pac. Eep. 628; 41 Pac. Kep. 485. The surviving widow or minor children are entitled to a homestead estate, to the extent prescribed by the statute, in the property owned and occupied by the decedent, at the time of his death, as a family home, although the homestead exceeds in value the statutory limits of the homestead exemption: Calmer v. Calmer (N. D.), 106 N. W. Eep. 684. In determining the value of the homestead for the purpose of ascertain- ing and selecting therefrom the homestead exemption or estate, the amount of existing mortgages or liens thereon cannot be deducted from the value of the property: Calmer v. Calmer (N. D.), 106 N. W. Eep. 684. When a party dies seised in fee of land occupied and used by himself and family as a homestead at the time of his death, his surviving widow is entitled, as against his heirs or devisees, to occupy and possess the whole of such homestead as long as she preserves its homestead character by maintaining her home thereon, and the fact of her second marriage does not impair this right: Fore v. Fore's Estate, 2 N. D. 260; 50 N. W. Eep. 712. Where the home- stead is indivisible, without material injury, the surviving husband or wife, or minor children, as the case may be, are entitled, as against the heirs or devisees, to hold the entire premises as a home- stead estate, even though the property exceeds five thousand dollars in value: Calmer v. Calmer (N. D.), 106 N. W. Eep. 684. (4) Faiamount nature of right. The right of a widow to a family allowance is not only statutory, but it is one strongly favored. She is entitled to her allowance even before letters of administration are granted.' After the issuance of such letters in a, solvent estate, she is entitled to a family allowance during the progress of the settle- ment of the estate: Estate of Welch, 106 Cal. 427, 432; 39 Pac. Rep. 805. The power of testamentary disposition of property, as con- SUPPORT OF FAMILY — EXEMPT PROPERTY. 567 ferred and defined by statute, is not paramount, bnt is subordinate to the authority 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 children, as well as for the payment of the debts of the estate. In other words, section 1465 of the Code of Civil Procedure of California, which provides that all property exempt from execution, including the homestead, shall be set apart for the use of the family, is paramount to the right of tes- tamentary disposition: Sulzberger v. Sulzberger, 50 Cal. 385; Estate of Davis, 69 Cal. 458, 460; 10 Pao. Eep. 671; Estate of Lahiff, 86 Cal. 151; 24 Pac. Eep. 850. The section mentioned is a limitation upon the power of testamentasy disposition, and operates to vest the title to the homestead in the heirs at law, and so to withdraw it from the disposition made by the testator under his will: Estate of Walk- erly, 108 Cal. 627, 655; 49 Am. St. Eep. 97; 41 Pac. Eep. 772. Thus, despite the fact that a farm has been specifically devised, one half to the widow and the other half to two children, it is feompetent for the probate court to set it aside as a homestead, for the right of a testator to devise is subordinate to the power of the probate court to sequester and set apart the property for the shelter, care, and support of the family: Estate of Hurlsman, 127 Cal. 275, 276; 59 Pac. Eep. 776. The right of testamentary disposition is itself only a right given by statute, and may be restrained, modified, or abrogated entirely. But, still, it is unquestionably the general policy of our law to allow full power of testamentary disposition, save as that power may be abridged by specific enactments. The code provisions making disposition of the homestead and of estates in value less than fiftfeen hundred dollars are instances of the limitations put by the legislature upon the free power of testamentary disposition, and from the lack of uniformity and harmony in their terms, these home- stead provisions have presented questions of much doubt and vexa- tion to the courts: Estate of Walkerly, 108 Cal. 627, 653; 49 Am. St. Eep. 97; 41 Pac. Eep. 772. In some states of the Union, there are statutes conferring on probate courts power to provide an allow- ance for the support of the family for longer or shorter periods. Some of these statutes limit a family allowance to cases of intes- tacy, or to cases in which no provision is made by a will, or, if made, where such provision is waived by the widow. The California statute is not so limited: Estate of Walkerley, 77 Cal. 642, 645; 20 Pac. Eep. 150. And the word " heirs," in the California statute, does not include devisees: Estate of Walkerly, 108 Cal. 627, 655; 49 Am. St. Eep. 97; 41 Pac. Eep. 772. The right of a widow, who is a member of the family of the deceased, and entitled to support from him at the time of his death, to have such family allowance from the estate as may be reasonably necessary for her support during the settlement of the estate, being fixed by the statute, it is not within 568 PROBATE LAW AND PEACTICB. the power of the husband, by any provision of his will, to deprive her of this right, or in any wise to limit the power of the court in the exercise of its proper discretion to fix the amount to be al- lowed: Estate of Bump (Gal.), 92 Pac. Eep. 643, 644. Nor can the executor or administrator legally enter into any agreement, or make any arrangement with the widow, or any one else interested in the fund growing out of a family allowance, for its application to the payment or satisfaction of his personal obligations. Such an arrangement, which appropriates a fund for the support of the family of the deceased, would be subversive of the policy of the law, and void. Therefore the consent of the widow, if such consent was given, that the personal obligation of ther administrator might be satisfied out of the family allowance, would not make vdlid what the law pronounces void. The allowance is as much for the advan- tage of the children of the deceased as for the widow, and it cannot be affected by any agreement or understanding between the widow and the administrator which would have the effect of depriving the children of it, or to divert it to any other use than that specified in the laW: Moore v. Moore, 60 Cal. 526, 530. (5) Application or petition. " Family." It is not necessary that the widow herself should petition for the allowance. The order may be made upon a petition by any one in her behalf, and the fact that the executor was also her son should not prevent a petition made by him on her behalf from receiving the same coisideration by the court as though he had not held that ofS.ce: Estate of Garrity, 108 Cal. 463, 468; 38 Pac. Eep. 628; 41 Pac. Eep. 485. A petition to set aside a homestead which sets forth a making and return of the inventory of the decedent; the description and ownership of the real property returned in the inventory; that such property was that of the deceased; that its value would not exceed five thousand doUars; and that no homestead had ever been designated or selected by deceased or his widow during his lifetime, — is sufficient, under the statute of Idaho, to entitle the widow to have the property therein described set off as a probate homestead: In re McVay's Estate (Ida.), 93 Pac. Eep. 28. The word " family," in its ordinary signi- fication, refers to two or more persons, and includes those living under the same roof as kindred or dependents, and under one head; but this word, as used in the statute concerning probate homesteads, is not to be so restricted in its meaning as to exclude the only survivor of the family of which the deceased was a member. The object of the statute is to preserve the family home for the use and benefit of the survivor or survivors of those occupying it as such, and the right of the survivirfg husband or wife to retain this home for such period as fhe court may direct does not depend upon the fact that there are children or others who may share in its use: SUPPORT OF FAMILY EXEMPT PROPERTY. 569 Estate of Lamb, 95 Cal. 397, 407; 29 Am. St. Eep. 121; 30 Pae. Eep. 568. The term '• family " is used as synonymous with and as repre- senting the surviving wife or husband and children, if any; and when the term " family " is used in the decree setting apart the homestead, it expresses the meaning, and is used in the sense of that word in the statute, and is therefore sufS.ciently explicit to describe the widow and children: Phelan v. Smith, 100 Cal. 158, 170; 34 Pac. Eep. 667. A judgment denying a family allowance to a widow precludes her from proceeding further under the original petition, and inures to the benefit of all creditors of the decedent: Estate of Bell (Cal.), 95 Pac. Eep. 378. (6) Proof of light. Of course, there must be proof of the appli- cant's right to a family allowance. Whether or not the petitioner is a child of the decedent is a question of fact for the court to deter- mine before denying or granting the application, and the mere fact that the petitioner's status as a child of the decedent is denied does not deprive the court of jurisdiction to make the order of allow- ance, if the facts showing the petitioner's right are proved by com- petent evidence: Estate of Blythe, 99 Cal. 472, 474; 34 Pac. Eep. 108. And the widow is a competent witness to prove any fact re- specting the family allowance. The statute providing that "parties to an action or proceeding, or in whose behalf a proceeding is prose- cuted, against an executor or administrator upon a claim or demand against the estate of the deceased," does not apply to such a case. That statute refers to an action or proceeding which is adverse to the estate, by which some relief is sought which will diminish or impair the estate. But an application for a family allowance is not an action or proceeding against an executor or administrator. It is similar to an application for a partial or final distribution of the estate, or the payment of a legacy: Estate of KcCausland, 52 Cal. 568, 576. (7) Notice not required. As the widow is entitled to an allow- ance as a matter of right, no notice of the court's intention or action in the matter is required, nor is a formal application absolutely neces- sary: In re Dougherty's Estate, 34 Mont. 336; 86 Pac. Eep. 38, 40. . The legislature has full power to provide that a part of the estate shall thus be subject to the order of a probate court without notice other than the notice of the application for administration thereon. The statute, in so far as it authorizes the making of orders setting apart exempt property and the homestead to the widow, and for the payment of money to her out of the estate for her support, without notice to the heirs, devisees, or legatees, is not unconstitutional as being against due process of law. The making of such orders with- out notice is a part of the statutory proceeding of the administration 570 PROBATE LAW AND PRACTICE. of the estate, which is initiated by the giving of a general notice aa prescribed by the statute. These notices constitute due process of law, and are sufficient to give the court jurisdiction to make all the subsequent orders in the proceeding, as to which special additional notice is not required. The right of inheritance and testamentary disposition is entirely the creation of the statute, and the heirs, devi- sees, and legatees take the property subject to such burdens as the legislature has seen fit to fix upon it, among which is the burden of supporting the widow and children of the deceased whenever the court having jurisdiction of the estate shall make an order to that effect: Estate of Bump (Gal.), 92 Pac. Eep. 643, 644. If the statute in any particular jurisdiction requires notice, and an order has been made ex parte without notice, but there is a hearing of objections,' after due notice given, a nunc pro tune order may be made covering the same items included in the former order, if they were proper ones for allowance under the law: In re Murphy's Estate, 30 Wash. 9; 70 Pac. Eep. 109, 110. (8) Considerations in fixing. The court is not restricted, in mak- ing a family allowance, to a bare support of the widow. Begard should be had to the mode in which she lived during the lifetime of her husband. The allowance is to be sufficient to provide all the necessities of life, and this will include all those things which are reasonable and proper for use in the home and in social intercourse, in view of the condition and value of the estate and station and sur- roundings of the family: Estate of Stevens, 83 Cal. 322, 325; 17 Am. St. Eep. 252; 23 Pac. Eep. 379; Estate of Lux, 100 Cal. 593, 605; 35 Pac. Eep. 341. The court may also take into consideration the character and amount of the estate left, and the provision the hus- band sought to make for the benefit of the widow, as well as her actual necessities: In re Drasdo's Estate, 36 Wash. 478; 78 Pac. Eep. 1022, 1023. In fixing the amount of the allowance, the ages of the survivor or survivors, their health, their social position and strid- ing, the education of the children, the value of the estate, and its solvency or insolvency, are proper subjects for consideration: In re Pugley's Estate, 27 Utah, 489; 76 Pac. Eep. 560, 562. (9) Objectioiis. Exceptions. Where a reasonable period has elapsed, after a family allowance has been made to the widow, for the settlement of the estate, persons who are interested therein have the right to object to a continuation of the allowance, although they could have compelled the administrator to settle and distribute the estate promptly, but failed to do it. And indulgence in the matter is no excuse for the neglect of the administrator to settle the estate: In re Dougherty's Estate, 34 Mont. 336; 86 Pac. Eep. 38, 41. Under the Utah statute, where there is no property answering to the statu- SUPPORT OP FAMILY EXEMPT PEOPEETY. 571 tory specifications which might be turned over to the widow, she is entitled to an equal value of money or other property, at her election. And she must elect; but upon her election to take either the property or the money, it becomes the duty of the administrator or of the court to allow it to her. The duty is not discretionary; it is mandatory; and an exception by a bank, to the report of the administrator, showing a money allowance to the widow, on the ground that she " had elected " to take money in lieu of the statutory property, is a solemn admission by the bank that she had made her election and so entitled herself to the money; and such admission is conclusive upon the bank and upon the court: "Western Nat. Bank V. Eizer, 12 Col. App. 202; 55 Pac. Eep. 268, 269. (10) Fixing amount. When not excessive. The fact that the ad- ministrator has not in his hands sufficient money to pay the family allowance does not deprive the court of the power to fix the amount to be paid. If there is other estate which can be subjected to this payment, the court can make a proper order therefor: Estate of Carriger (Cal.), 41 Pac. Eep. 700, 701. Where an estate was of the value of fifty thousand dollars, and produced an income of over fifteen hundred dollars per month, an allowance to the widow of the household goods, furniture, wearing-apparel, and personal effects of the testator, and two hundred and fifty dollars a month for her main- tenance, pending the settlement of the estate, is not excessive: Estate of Drasdo, 36 Wash. 478; 78 Pac. Eep. 1022, 1023. (11) To be made when. A widow is not to be denied a family al- lowance because she has sufficient property of her own to support herself. The court must make a reasonable allowance out of the estate, if the portion set apart for the family allowance is insuffi- cient for her support; and for the court to hold that no allowance shall be made to the widow if she has sufficient property of her own, although the property set apart to her is insufficient of itself for her support, would be, in effect, an amendment of the law by, judicial construction: Estate of Lux, 100 Cal. 593, 603; 35 Pae. Eep. 341. The widow is entitled to have such reasonable allowance as is neces- sary for her maintenance during the progress of the settlement of her husband's estate: Estate of Eoberts, 67 Cal. 349; 7 Pac. Eep. 733, 734. She is entitled to this, notwithstanding provision has been made for her in the will, and until such time as the disposition of property contained in the will becomes available for her use: Estate of Walkerley, 77 Cal. 642, 646; 20 Pac. Eep. 150. But, under the statute of Utah, where the estate is solvent and out of debt, the value of such part of the homestead as may be set aside to the widow should be deducted from her distributive share, as provided for in the statute. She cannot have both, unless such design on the part of i 572 PROBATE LAW AND PRACTICE. tke testator clearly appears from tihe -will: In re Little, 22 Utah, 204; 61 Pao. Rep. 899. Where the widow, under the statute, is entitled to certain enumerated property, and the deceased does not have such property, she is entitled to other property, or the value of the articles specified in the statute, and it is the duty of the adminis- trator or of the probate court to allow the value in money, or other personal property, at the widow's election: Western Nat. Bank v. Eizer, 12 Col. App. 202; 55 Pac. Eep. 268. The statute providing for a family allowance was doubtless intended to make immediate pro- vision for the family when the head of it is removed by death, and such provision is to continue during the administration of decedent's estate. But where there is no family, no allowance can be made; as, where the husband and wife had, for many years prior to the husband's death, been living separate and apart from each other, and had so lived up to the time of his death, and the wife had never been, during such period, dependent upon him for support, she does not constitute the " immediate " family of the deceased, and the court may properly refuse to make an allowance to her as the widow of the deceased: HUton v. Stewart, 25 Utah, 161, sub nom. In re Park's Estate, 69 Pac. Eep. 671. Funeral expenses must be paid before the family allowance is made: In re Thorn's Estate, 24 Utah, 209; 67 Pac. Eep. 22, 23. (12) Widow is entitled to, when. The widow has an absolute right to a reasonable provision for her support during the adminis- tration of her husband's estate: Estate of Stevens, 83 Cal. 322, 325; 17 Am. St. Eep. 252; 23 Pac. Eep. 379; In re Pugley's Estate, 27 Utah, 489; 76 Pac. Eep. 560, 562; and it makes no difference - that the widow has sufS.cient property of her own out of which to sup- port herself: Estate of Lux, 100 Cal. 593; 35 Pac. Eep. 341, 344; Estate of Bump (Cal.), 92 Cal. 643, 644. The right to allowance is not affected by the separate estate of the widow. Even a non- resident widow is entitled to a family allowance, notwithstanding she has abundant means of her own with which to support herself: Griesemer v. Boyer, 13 Wash. 171; 43 Pac. Eep. 17, 18. The right of the widow and children is paramount to that of creditors, and does not depend upon the solvency or the insolvency of the estate: Griesemer v. Boyer, 13 Wash. 171; 43 Pac. Eep. 17, 19. The widow's delay in demanding a family allowance does not forfeit her right to it; and she has a right to a family allowance when a special ad- ministrator has been appointed after the suspension or removal of the general administrator: Estate of Welch, 106 Cal. 427, 432, 433; 39 Pac. Eep. 805. The right of the widow to a family allowance is not lost because of her immoral conduct during marriage. The hus- band's legatees cannot cut her off from her rights as widow by show- ing that her ways were not the ways of continence and sobriety: SUPPOKT OF FAMILY EXEMPT PROPERTT. 573 In re Drasdo's Estate, 36 "Wash. 478; 78 Pac. Eep. 1022, 1023. She IS entitled to a family allowance, although she wrongfully appropriated the money of her husband to her own use during his lifetime, and she is also entitled to the rights of a widow where she has refused to abide by the terms of her husband's will, notwithstanding previous allowances made to her: Estate of Bump (Cal.), 92 Pae. Eep. 643, 645. Of course, if a wife accepts a devise conditioned that she will re- linquish all further claims to her husband's estate, she must abide thereby; but until she does elect to take under the devise, she is entitled to the enjoyment of her statutory rights and to the allowance made to her thereunder: Estate of Lufkin, 131 Cal. 291, 293; 63 Pac. Eep. 469; and see Estate of Bump (Cal.), 92 Pac. Eep. 643, 644. In Oregon, where the property of the estate exempt from execution has been devisej and bequeathed by the testator to his children, and the estate is sufficient to satisfy all the debts and liabilities of the deceased, and to pay the expenses of administration, together with a monthly allowance to the widow and children, the right of the county court to order a monthly allowance to the widow cannot be successfully controverted: Dekum's Estate, 28 Or. 97, sub nom. Dekum V. Dekum, 41 Pac. Eep. 159, 160. The widow is not chargeable, as executrix, with profits received from the subletting of rooms in a house hired by her, the rental of which was paid out of her monthly allowance: Estate of Stevens, 83 Cal. 322, 326; 17 Am. St. Eep. 252; 23 Pae. Eep. 379. BEFEBENCES. Widow's right to exemption or allowance for support out of per- sonal assets of estate of deceased husband, who was a non-resident: See note 11 L. E. A. (N. S.) 361-363. (13) Widow is not entitled to, when. A family allowance should not be made to the widow of decedent, where she, at the time of his death, was not a member of his immediate family, as where the husband and wife were voluntarily living apart undi/r an agreement for separation: Estate of Noah, 73 Cal. 583; 2 Am. St. Eep. 829; 15 Pac. Eep. 287; 88 Cal. 468; 26 Pac. Eep. 3611; Hilton v. Stewart, 25 Utah, 161, sub nom. In re Park's Estate, 69 Pac. Eep. 671; Wick- ersham v. Comerford, 96 Cal. 433; 31 Pac. Eep. 358. Nor is the widow entitled, under such circumstances, to have a homestead set apart from her husband's separate property, even for a limited period: Wickersham v. Comerford, 96 Cal. 433, 439; 31 Pac. Eep. 358. So if a wife, supposing her husband to be dead, marries a second time, 'she cannot claim a, family allowance from the estate of her former hus- band, so long as the second marriage has not been annulled by a com- petent tribunal, for, until such annulment, the second marriage is valid: Estate of Harrington, 140 Cal. 294, 295; 74 Pac. Eep. 136. Where the petition for the family allowance fails to state that a home- 574 PROBATE LAW AND PRACTICE. stead set apart to the widow and children is insufficient for the sup- port of the family, an order refusing to make a family allowance out of the estate of the decedent is not erroneous, where it appears that a homestead had been set apart to the widow and children: Estate of Luther, 67 Gal. 319; 7 Pac. Eep. 708. The court is also justified in refusing to ratify any family allowance made after the estate is ready for distribution. The widow, as executrix of her husband's estate, cannot properly delay the settlement of the estate in order that she may consume the whole of it by means of her allowance: In re Dougherty's Estate, 34 Mont. 336; 86 Pac. Eep. 38, 41. Where the fact of marriage is disputed, and the person claiming to have been the wife of the deceased has, as his widow, filed a petition asking for the appointment of an administrator, and the same has been decided in her favor, and an appeal has been taken therefrom to review and finally determine the very question of the marriage relation, the superior court, pending the appeal, has no jurisdiction to make an order allowing such person, so claiming to be the widow, anything for her maintenance pending the appeal; otherwise the proceeds of the estate might, in some instances, thereby become exhausted, and the contestant thus be deprived of the fruits of the litigation by a person having no right whatever to the same; and while, in some instances, this might result in hardship, in pre- venting a person lawfully entitled to the benefits of such a provision from having the same pending the appeal, yet this cannot, of itself, alter the rule of law in relation , thereto : State v. Liehtenberg, 4 Wash. 231; 29 Pac. Eep. 999. Where a family allowance has been made to a widow and minor children, but the widow marries, the court may continue the allowance, if necessary for the benefit of the children; but when their mother ceases to be the widow of deceased, she cannot claim, as a perquisite for herself or for her new husband, a famUy allowance from the estate of her former spouse: Estate of Still, 117 Gal. 509; 49 Pac. Eep. 463, 465. (14) To children. The family allowance is as much for the ad- vantage of the children of the deceased as for the widow: Moore v. Moore, 60 Gal. 526, 530. It is not made " for the use of the family," but, by the terms of the statute, for its " maintenance " while the estate is in progress of settlement and its property is in the custody of the executor or administrator, and this includes the duty of keep- ing its members under the same roof with the common interest of a home, as well as the expense incurred for food and raiment or for education and health. Upon the death of the father, the maintenance of the family devolves upon the mother, and it is for the purpose of enabling her to discharge this duty that the court is authorized to appropriate a portion of the property of the estate. The allow- ance is not made merely for the purpose of enabling her to defray SUPPORT OP FAMILY — EXEMPT PEOPEETT. 575 the several expenses incurred for each member of the family, but that she may also provide a means whereby she and the minor chil- dren may be kept together and the family may be maintained as a whole. A provision, in the statute, that the court " must make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family according to their circumstances " implies that, before making the order, the court will ascertain the circum- stances of the family, and of the estate out of which the allowance is to be made. This will involve an inquiry, among other matters, into their habits and mode of life during the lifetime of the dece- dent; the requirements of the several members of the family — depend- ing upon their age and conditions — whether for education, physical support, or health, and also the condition and extent of the prop- erty belonging to the estate. The amount which, upon such consid- eration, the court determines will be reasonable is properly directed to be paid to the widow as the person charged with the maintenance of the family, and it then becomes a judgment in her favor for that amount. The minor children have no claim to any portion of the allowance thus made to her, nor is it held by her in trust for them. Certainly, the legislature did not intend that one half of the allow- ance should belong to her, out of which should be paid the cost of her maintenance, and that an equal part of the other half should belong to each child, out of which should be paid only the cost of supporting that child. In determining the amount to be paid, the court does not attempt to fix the amounts which will be con- sumed for each member of the family, but aggregates the needs of the family as a whole and makes an allowance which it considers would be reasonable for those needs. It is of universal experience that the same expense is not incurred for each child, and that there are many expenses which do not appertain to either child, but which are incurred for the family as a whole; and there are also many duties of the mother which are not susceptible of pecuniary measure- ments. The expenses incurred for the infant, which requires the mother's care, the child at school, or the youth preparing for the duties of manhood or womanhood in the years before majority are not the same; and the rent of the home, its furniture, the expense of reparation, wages of servants, cost of equipage, and numerous other items, are a charge upon the family as a whole, and are not to be apportioned among the individual members thereof. The amount of the allowance is fixed, with the view that it will be en- tirely consumed in maintaining the family, and if, in this respect, the court errs, whether by making the allowance too large or too small, it is an error in its judgment, which can be corrected only upon a further application, setting forth the grounds upon which the amount of the allowance should be modified. Until such change, if there be any portion which is not expended, it is the property of 576 PROBATE LAW AND PRACTICE. the widow, and if the expenses are greater than the allowance, the loss must be borne by her. Upon these considerations, it must be held that the widow to whom the court directs a family allowance to be paid is not required to account to her children for the manner in which such allowance has been expended: Bell v. Bell, 2 Cal. App. 338, 340; 83 Pac. Eep. 814. But the allowance cannot be affected by any agreement or understanding between the widow and administra- tor which would have the effect of depriving the children of ^it, oi of diverting it to any other use than that specified by the law: Moore v. Moore, 60 Cal. 526, 530. If a minor, being within sixteen days of the age of majority, makes an application to the court to have the personal property left by his parents set apart to him, and there is no showing in the application that such property is necessary for his support during such sixteen days, it is not error for the court to deny the application: Stewin v. Thrift, 30 Wash. 36; 70 Pac. Rep. 116, 118. (15) Order. In general. Though there can be no family allow- ance subsequent to a widow's death, the amount allowed to her be- fore death, and which was unpaid at the tinte of such death, is property of her estate, going to her heirs or personal representa- tives: Estate of Lux, 114 Cal. 73, 81; 45 Pac. Kep. 1023. And all property exempt from execution, set apart for the family, including the homestead selected, is exempt from execution: Holmes v. Mar- shall, 145 Cal. 777, 781; 104 Am. St. Eep. 86; 79 Pac. Kep. 534; 69 L. E. A. 67; 2 Am. & Eng. Ann. Cas. 88. A family allowance, made before exempt . property and the homestead are set apart, is made subject to the rights of the designated beneficiaries to have a home- stead and the exempt property set apart for their benefit, and is not a charge or lien upon the family home: Estate of Still, 117 Cal. 509, 513; 49 Pac. Eep. 463. SEFEBENCES. Eight of estate of one, entitled by will or statute to an allow- ance for support and maintenance, to accumulations undrawn and un- expended at the time of her death: See note 9 L. E. A. (N. S.) 997, 998. (16) Order. Duration, modification, cessation, and suspension. Upon the filing of the petition for letters, and when the court is without definite information concerning the value of the estate, which is afforded by the inventory and the appraisemc nt, it may make an allowance for the widow and the children of dee ident, which is in the nature of a preliminary or temporary allowance, not extending be- yond the return of the inventory, after which time it becomes the duty of the court to make a further allowance, if the property set SUPPORT OF FAMILY EXEMPT PROPERTY. 577 apart to the family is insufficient for their support, and -which al- lowance is to be of a more permanent character, and to continue during the administration of the estate: Estate of Lux, 100 Cal. 593, 599; 35 Pae. Eep. 341; In re Dougherty's Estate, 34 Mont. 336; 86 Pac. Eep. 38; Estate of Welch, 106 Cal. 427; 39 Pac. Eep. 805-; unless the estate is insolvent, in which case it is not to continue longer-tlran o"ne year: Estate of Lux, 100 Cal. 59'3,'599; 35 Pac. Eep.' 341; ifetaAe-cnvIontgomery, 60 Cal. 648; Estate of Walkerley, 77 Cal. 642; 20 Pac. Eep. 150. The order for family support, when made, may be subsequently modified by the court, if the condition of the estate or the relation of the family thereto should change; as, if, for instance, it should appear that the value of the estate was materially less than shown at the date of the order sought to be modified, or that its indebtedness ia greater than, was then sup- posed, or in the event of a partial distribution to the widow or chil- dren before the final distribution of the estate: Estate of Lux, 100 Cal. 593, 604; 35 Pac. Eep. 341; Estate of Freud, 131 Cal. 667, 674; 82 Am. St. Eep. 407; 63 Pac. Eep. 1080. An order of family allow- ance granted before the return of the inventory ceases upon such return: Crew v. Pratt, 119 Cal. 131, 137; 51 Pac. Eep. 44. The order of allowance to a widow, where there are no children, ter- minates at her second marriage, unless there is a further order of the court: Estate of Hamilton, 66 Cal. 576; 6 Pac. Eep. 493; but where there are children, the order may be continued for their benefit: Estate of Still, 117 Cal. 509, 514; 49 Pac. Eep. 463. If an order of family allowance has become final, by the lapse of time in which to appeal therefrom, the probate court or judge has no power, with- out motion or showing upon notice, to suspend the order: Estate of Nolan, 145 Gal. 559. 561; 79 Pac. Eep. 428. If a family allowance is granted to the widow during general administration, her right thereto is not suspended by reason of removal of the general administrator and the appointment of a special administrator. The right to such allowance continues during special administration: Estate of Welch, 106 Cal. 427, 432; 39 Pae. Eep. 805. But the widow, who is admin- istratrix of the estate, and who has received a family allowance, cannot purposely delay the settlement of the estate that she may consume the whole of it by means of her allowance. The policy of the law is, that the affairs of estates shall be settled and the assets distributed as speedily as possible. The expression, " during the progress of the settlement of the estate," must be construed to mean during the time reasonably necessary for that purpose. If so, the order, though regarded as a judgment, fixing a lien upon the assets of the estate, must be presumed to have been satisfied, when the time shall have arrived at which the estate may be settled; else the administrator may delay action until the whole estate ia con- sumed and nothing be left to those who are entitled to a distributive share in its assets: In re Dougherty's Estate, 34 Mont. 336; 86 Pae. Probate — 37 578 PKOBATE LAW AND PRACTICE. Eep. 38, 41. If a family allowance is made before the return of the inventory, it ceases to be operative upon such return: Estate of Bell (Cal.), 95 Pao. Eep. 372, 377. (17) Order. Validity. An order of family allowance is not in- valid for lack of a finding that the property exempt from execution, and already set apart for the support of the widow, was insufficient for that purpose. The order for additional allowance, in itself, is a declaration of the insufficiency of the amount originally set apart for the support of the family: Estate of "Welch, 106 Cal. 427, 430; 39 Pae. Eep. 805. A temporary order for family allowance, made before the return of the inventory, ceases to be operative when that return is made, notwithstanding such order contains the words " until fur- ther order of this court." That phrase does not have the effect of prolonging the life of the order beyond the return of the inventory: Estate of Bell, 142 Cal. 97, 100; 75 Pac. Eep. 679. And it is unjust, after the widow has received five thousand seven hundred dollars, through the court of another state, to allow her five hundred dollars per month in this state, thirteen years after her husband's death,, where the failure to close the estate many years prior to the order for such allowance was due solely to her neglect: State v. Superior Court (Wash.), 92 Pae. Eep. 942, 943. The survivor of the com- munity of husband and wife, after the dissolution of the community by death, cannot create a charge against the community estate which would be superior to the claims of the creditors of the community, and also to the rights of the deceased spouse's heirs or devisees to a one-half interest in the community property. Hence if a husband marries again, after his wife's death, and then dies himself, an order of allowance to his second wife, making it a charge on the husband's, interest in the community property, prior to that of community debts, cannot be sustained, because the interest of the deceased wife in the community property would then be subjected to the payment of the community debts to the extent of the depletion of the hus- band's interest therein: In re Cannon's Estate, 18 Wash. 101; 50 Pac. Eep. 1021, 1022. (18) Order. Finality, conclusiveness. A family allowance, made under a valid order of court, becomes final, where no motion has been made to set it aside, and the time for an appeal therefrom has- elapsed. It is then conclusive as to the status of the person in whose favor it was made, for all purposes connected with the order and payment of the money thereunder: Estate of Nolan, 145 Cal.. 559, 561; 79 Pae. Eep. 428. (19) Paid without order of court. In the matter of paying a fam- ily allowance, the executor or administrator is not required to wait for an order of court, but may make the necessary expenditures as- SUPPORT OF FAMILY- — EXEMPT PROPERTY. 579 the exigencies occur, and the court will allow such sums as may he reasonahle in the settlement. If an order is made for an allowance to the widow, it is a determination by the court that she is entitled to a family allowance for the period therein named, and the executors or administrators, having paid the same, are entitled to a credit in the statement of their accounts for the amount thus fixed by the court as a reasonable and proper sum to be paid to the surviving widow for that purpose; and it is error to refuse such credit: Estate of Lux, 100 Cal. 606, 608; 35 Pao. Eep. 345; Estate of Lux, 114 Oal. 89, 90; 45 Pae. Bep. 1028; Dekum's Estate, 28 Or. 97, sub nom. Dekum V. Dekum, 41 Pac. Eep. 159; Estate of Fernandez, 119 Cal. 579, 583; 51 Pae. Eep. 851. As the court has power to credit the executors or administrators in their final account with any reasonable sum of money paid out for the family allowance, the question of family allowance becomes adjudicated where no appeal is taken from an order of settlement, and no offset can be claimed to an annuity pay- able to the widow from the date of the death of the testator on account of payments after the return of the inventory: Crew v. Pratt, 119 Cal. 131, 137; 51 Pac. Eep. 44. (20) Contest of allowance. Collateral attack. After an order for family allowance becomes final and conclusive, it is not subject to collateral attack: Crew v. Pratt, 119 Cal. 139; 51 Pac. Eep. 38; Es- tate of Bell, 131 Cal. 1, 4; 63 Pac. Eep. 81, 668; Estate of Nolan, 145 Cal. 559; 79 Pac. Eep. 428; In re Dougherty's Estate, 34 Mont. 336;. 86 Pac. Eep. 38; and the order is not reviewable in equity: Dough- erty V. Bartlett, 100 Cal. 496, 499; 35 Pac. Eep. 431. On the settle- ment of an administrator's accounts, a creditor of the estate cannot object to the allowance of a voucher filed by the widow of the de- ceased for payments alleged to have been made her as a family allowance, on the ground that it had never been received by hen Estate of Fisher (Cal.), 42 Pae. Eep. 237, 288. (21) Vacating allowance. Fraud. An order for a family allowance may be vacated by the probate court, and it will be presumed that, in setting aside orders approving the time of the allowance, the court duly considered the administrator's claim to protection for mak- ing payment under its previous orders; the court undoubtedly has a right to vacate its order of family allowance on the ground of fraud or mistake, and, in the absence of anything in the record to the contrary, it must be assumed, where such an order is set aside, that it was upon one or the other, or both, of these grounds that its jurisdiction was invoked. Although the widow might not have been in court when the vacating order was made, yet she waived any objection by reason of subsequent proceedings in the court from which it appears that she unsuccessfully appealed from the vacating 580 PROBATE LAW AND PRACTICE. order, and upon final hearing asked the court to make a new award to her, and, when the estimate was returned by the appraisers, asked to have it approved by the court, which was done: Glomes v. Pox, 25 Col. 39; 53 Pae. Kep. 225, 228, 229. General equitable relief can- not be granted in the probate department of the superior court, for the reason that such relief is not within its probate jurisdiction. Sit- ting as a court of probate, the superior court exercises a special and limited statutory jurisdiction under statutory procedure, and although guided by the principles of . equity in the exercise of that jurisdic- tion, it does not exercise general jurisdiction in equity, but is limited to matters in probate, and in the administration of the estate of decedents, to the objects of such administration. These objects are the temporary preservation and protection of the estate of the de- ceased, the satisfaction or payment of such debts and claims as are charges or liens upon it, and the distribution of the residue to those who are entitled thereto. Incidentally, the expenses incurred in the administration, and a temporary provision for the support of the family, including a homestead, where proper, are to be taken from the estate. This provision, however, is in reality a distribution of a portion of the estate to those who, by virtue of the statute, are en- titled thereto. Under its probate jurisdiction the court cannot bring before it strangers to the estate for the purpose of adjusting their claims to property held by the executrix or administrator, or for the purpose of determining their rights to the proceeds of a sale derived under those for whose benefit the sale was ordered. Thus when it appears that the order for family allowance was made to reimburse the widow for moneys which she had already expended in the support of her family, and that she had obtained these moneys from the assignors of the plaintiff by mortgaging her interest in the estate for security for their repayment, and, without disclosing this fact, had, as executrix, obtained an order for the sale of the entire estate under which the purchaser would take the land dis- charged of such mortgage, there is presented the precise case in which a court of equity should interfere to control the enforcement of the judgment of another court by directing the application of the proceeds of that sale. The probate court lacks jurisdiction of such a matter, and jurisdiction in equity is therefore properly invoked and exercised: Curtis v. Schell, 129 Cal. 208, 219, 220; 79 Am. St. Eep. 107; 61 Pae. Eep. 951; Savings Bank v. Schell, 142 Cal. 505, 509; 76 Pae. Bep. 250. (22) Liens. Contracts to pay out. A family allowance, made before exempt property and the homestead are set apart, does not constitute a charge or lien upon the family home: Estate of Still, 117 Cal. 509, 513; 49 Pae. Eep. 463. Where a lessor's lien possesses no superiority over that of any other person, it is subject to the SUPPORT OF FAMILY EXEMPT PROPERTY. 581 right of the widow and the minor children to support from the estate of the decedent: In re Stone's Estate, 14 Utah, 205; 46 Pac. Kep. 1101, 1102. If an executrix mortgages her interest in the prop- erty of the estate to obtain any additional income with which to support the family, and many years afterwards obtains an order for a family allowance, by concealing from the court the fact that the income and borrowed money had been sufficient for the support of the family, or that any money had been borrowed at all for that purpose, and by falsely representing to the court that the moneys received by her had been insufficient, and she obtains an ex parte order, in the matter of the estate, for a family allowance, reaching back many years, and for a large amount, and then files a petition for an order of sale of all" the real property for the pur- pose of paying said allowance, it is clearly a scheme to deprive the mortgagee of his security, by selling the property at probate sale free of the mortgage, and, by means of the direction to pay the family allowance, to appropriate all the proceeds to her own use, and thus defraud the mortgagee of the amount due upon his mort- gage. This the court will not allow, and it makes ' no difference whether the mortgages were executed by the widow herself on her individual interest in the estate, or whether they were made for the benefit of a son upon his interest. The legal effect of the trans- action is the same: Curtis v. Schell, 129 Cal. 208; 79 Am. St. Eep. 107; 61 Pac. Rep. 951; Savings Bank v. Schell, 142 Cal. 505, 509; 76 Pac. Eep. 250. (23) Further allowance. When the family allowance becomes ex- hausted, and the estate is solvent, the widow is entitled to such fur- ther allowance as is necessary for her maintenance during the pro- gress of the settlement of the estate: Estate of Roberts, 67 Cal. 349, 350; 7 Pac. Rep. 733. So where the exempt property is set apart as insufficient for the support of the widow and minor children, the court may make such further allowance; and if the widow dies, an allowance may be made for the benefit of the minor children: In re Murphy's Estate, 30 Wash. 9; 70 Pac. Rep. 109. In making such further allowance, it must be presumed that the court will act with due regard to any previous order made for the widow's support and the subsequent condition of the estate: Estate of Slade, 122 Cal. 434, 438; 55 Pac. Eep. 158. (24) Motiou for new trial. A motion for a new trial is not the proper procedure after a family allowance has been granted. It is the duty of the court, ex pafte, and without petition, to make such order, and, there being no provision for the framing of issues with respect to the matter of family allowance, proceedings for a new trial as to such a matter are not authorized: Shipman v. XJnangst 582 PROBATE LAW AND PRACTICE. (Gal.), 88 Pac. Eep. 1090; Leaeh v. Pierce, 93 Cal. 614, 619; 29 Pae. Eep. 235. (25) Appeal. Review. An order granting an allowance to the widow of an intestate is appealable: In re Dougherty's Estate, 34 Mont. 336; 86 Pac. Eep. 38, 40. An appeal from an order denying a family allowance will not be reversed, where the petition for such allowance contains no statement that the proceeds of a homestead consisting of farming-lands were insufficient for the support of the family: Estate of Luther, 67 Cal. 319; 7 Pae. Eep. 708. An allow- ance to the widow is not reviewable after the. time has elapsed for an appeal from the order. 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: Estate of Stevens, 83 Cal. 322, 326; 17 Am. St. Eep. 252; 23 Pae. Eep. 379. A wife separated from her husband is not a party " aggrieved " by the action of the court in refusing a family allowance to her, and has no right of appeal: Estate of Noah, 88 Cal. 468; 26 Pae. Eep. 361. If a special administrator has been directed, by order of the court, to pay ar- rearages of family allowance, accruing after the suspension of the general administrator, he may appeal from such order: Estate of Welch, 106 Cal. 427, 428, 429; 39 Pae. Eep. 805; and the presumption is, where a special administrator of the estate of the deceased has appealed from an order of the court directing him to pay to the widow of the deceased a designated sum of money as a family allowance, that the condition of the estate was such as to justify the order: Estate of Carriger (Cal.), 41 Pae. Eep. 700, 701. An appeal from an order requiring an administrator to pay a family aUowanee stays proceedings upon the order appealed from, where an undertaking or deposit on appeal has been given or made: Pennie v. Superior Court, 89 Cal. 31, 32; 26 Pac. Eep. 617. An appeal from such an order operates as a supersedeas, and stays all further proceedings in the court below in the particular matter involved in the order appealed from, but the order or decree is " set at large," and the subject- matter removed from the jurisdiction of the lower court, until the appeal has been determined, and the matter remitted back from the appellate court: Euggles v. Superior Court, 103 Cal. 125, 128; 37 Pac. Eep. 211. Upon an appeal from an order directing the payment of a family allowance, the appellate court will sustain the order, where the only ground alleged is the insufficiency of the evidence: Estate of Nolan, 145 Cal. 559, 561; 79 Pac. Eep. 428. Where the amount of the allowance is not so excessive as to constitute an abuse of discretion on the part of the court below, the appellate court will not disturb the order: Estate of Bump (Cal.), 92 Pac. Eep. 643, 645. Where the showing is sufficient to justify an award to the widow for her allowance, the court wUl not reverse the SXIPPOET OF FAMILY EXEMPT PEOPEETT. 583 order, even though the estate is insolvent: Clemes y. Fox, 25 Col. 39; 53 Pac. Eep. 225, 229. The appellate court will not interfere with the discretion of the lower court in such matters, if not exercised on erroneous principles, except in extreme cases: Estate of Lufkin, 131 Cal. 291, 293; 63 Pac. Eep. 469. Where there is no specific provision in the statute as to the contents of the record in such cases, or the mode of authentication, the provisions regulating bills of ex- ceptions, statements, and appeals in ordinary actions must be ap- plied, and, so far as may be, though the proceedings are conducted in a different way, and the records differ in their make-up, the analogies between them must govern. While there is no such thing, technically, as a judgment roll in probate proceedings, the successive determinations in the course of them, whenever the statute directly or by implication declares them final, must be regarded as final judgments, and the portions of the record upon which they are based must, on appeal, be regarded as the record for the particular determination: In re Dougherty's Estate, 34 Mont. 336; 86 Pac. Eep. 38, 40. The record must be held to consist of the papers found in the transcript, and, for the purpose of appeal, these papers must be held to constitute the judgment roll. Other matters, not forming part of the judgment roll in such cases, would have to be incor- porated in bills of exceptions or statements, as the case might be, following the analogies of provisions regulating records on appeal from judgments in ordinary actions: In re Dougherty's Estate, 34 Mont. 336; 86 Pac. Eep. 38, 40; Estate of Eyer, 110 Cal. 556; 42 Pac. Eep. 1082. A proposed bill of exceptions, accompanied by general notice to the attorneys, by the general objectors, that the bill was intended to be used as a bill of exceptions in the matter of the petition by the widow for maintenance, filed by her in the matter of said estate, is one which the widow is entitled to use on the objectors' direct appeal from the order granting her a family allow- ance: Leach v. Pierce, 93 Cal. 614, 620; 29 Pac. Eep. 285. A cred- itor of an insolvent estate may appeal from an order of family allow- ance, though it may have been made without notice: Estate of Fretwell (Cal.), 93 Pac. Eep. 283, 284. An appeal may be taken at any tjme within sixty days after the order is entered, but the time fixed in which to prepare and serve a bill of exceptions is ten days after notice of the entry of the judgment: Leach v. Pierce, 93 Cal. 614, 623; 29 Pac. Eep. 235. Where an application for a family allow- ance is made under an order which was never entered, a reversal by an appellate court of such order on a former appeal is res judi- cata: Estate of Bell, 35 Cal. Dee. 356, 363, 365 (April 2, 1908). 2. Assignment of estate less in value than fifteen hundred dollars. (1) In general. When it appears, both from the petition for let- ters of administration and the return of the inventory and appraise- 584 PROBATE LAW AND PRACTICE. ment, that the entire property of the estate is of less value than fifteen hundred dollars, the widow, if there are no children, is entitled to have the whole estate set apart to her without any further pro- ceedings in the administration; and no notice to creditors is neces- sary, though an order to show cause is necessary, under the statute: Estate of Atwood, 127 Cal. 427, 430; 59 Pac. Eep. 770. And the widow is entitled thereto in case of an invalid second marriage: Estate of Richards, 133 Cal. 524, 528; 65 Pac. Eep. 1034. The court, however, in setting apart the whole estate to the widow and minor children, where it is of less value than fifteen hundred dollars, has no power to order any sale of the property of the deceased. The statute merely provides that the whole estate shall be set apart for the widow and children, subject only to the expenses of the last sick- ness, administration, etc. If there is to be any sale of the real property of the estate to pay such expenses, such sale must be con- ducted under the provisions of the statute relating to the sale of real property of a decedent, where alone the power to make and the method of such sale are to be found. The court has no jurisdiction to dispense with the regular proceedings required in the case of the sale of the real property of the decedent because of the fact that the estate is of less value than fifteen hundred dollars: Wills v. Pauly, 116 Cal. 575, 581; 48 Pac. Eep. 709. In such cases the expenses of admin- istration, burial, and last sickness are to be paid before such estate is set apart to the widow, or to the widow and children: In re Thorn's Estate, 24 Utah, 209; 67 Pae. Eep. 22. In Utah, the widow does not become the absolute owner of such property, to the exclusion of the heirs and members of the family: Eands v. Brain (Utah), 14 Pac. Eep. 129, 130; 5 Utah, 272; 15 Pac. Eep. 1. (2) Notice to creditors, and to show cause. The whole estate of a decedent, where it is less than fifteen hundred dollars in value, may be set apart to the widow, or to the widow and children, without notice to creditors: Estate of Palomares, 63 Cal. 402; Estate of At- wood, 127 Cal. 427; 59 Pac. Eep. 770. And notice of the order to appear and show cause why the whole of the estate should not be assigned to the widow, or to the widow and children, need not be given by publication, because the statute does not require it, and because the judge, on final hearing, if he deems the notice insuficient, may order such further notice as may seem to him proper: Wills v. Booth (Cal. App.), 91 Pac. Eep. 759, 760. (3) What property may be set apart. It was clearly the intention of the legislature that estates under fifteen hundred dollars in value should go immediately to the family, without further administration, and the entire estate of the decedent is included. The fact that a part of the estate was separate property of the deceased, and that SUPPORT OP FAMILY EXEMPT PEOPEETT. 585 before his death the widow had filed a homestead declaration thereon, he not joining therein, does not take the property out of the operation of the statute. The court, in making the order, is not setting aside a homestead nor dealing with the subject of homesteads: Estate of Nefe, 139 Cal. 71, 72; 72 Pac. Eep. 632. The statute covers all prop- erty, where the estate does not exceed fifteen hundred dollars in value, whether the property be community or separate: Estate of Leslie, 118 Cal. 72, 73; 50 Pac. Eep. 29. (4) Apportionment, and rights of children. Section 1469 of the Code of Civil Procedure of California does not expressly state to whom the estate shall be assigned, but simply that it shall be as- signed for the use and support of the widow and minor children. The preceding section, however, which is in the same chapter, pro- vides that " when property is set apart to the use of the family under the provision of this chapter, if the decedent left also a minor child or children, the one half of such property shall belong to the widow or surviving husband, and the remainder [shall go] to the chUd, or in equal shares to the children, if there be more than one.'' In the absence of special provision in said section 1469, the preceding sec- tion must control. The children, therefore, are entitled, as tenants iu common, to an undivided one half of the property set apart to the widow and minor children, and they may recover the demanded prem- ises in an action of ejectment: McGuire v. Lynch, 126 Cal. 576, 578; 59 Pac. Eep. 27. (5) Liens, outstanding titles, etc. The setting apart of property for the support of the family, where the estate is less than fifteen hundred dollars in value, does not devest existing liens against the property: Fairbanks v. Eobinson, 64 .Cal. 250, 251. The order of the court sets apart only th^ title and interest of the deceased. It can do no more. It is not the purpose of the statute to have the court ex- amine the title and set apart such property on condition that the title is perfect. It is evident that the court cannot affect the out- standing title in the hands of a third person: Estate of Eichards, 133 Cal. 524, 528; 65 Pac. Eep. 1034. Where a lessor's lien is gone, his claim possesses no superiority to that of any other person, and is inferior to that of the widow and the minor children: In re Stone's Estate, 14 Utah, 205; 46 Pac. Eep. 1101, 1102. In the case of a valid mortgage lien, however, upon a probate homestead set apart for the use of the family, it was not intended that the creditor should lose his debt for not doing an impossible act by presenting his claim, because no notice to creditors can be given and no claims presented for allowance in such a case, and no presentation of the mortgage claim is necessary: Browne v. Sweet, 127 Cal. 332, 335; 59 Pac. Eep. 774. Where a deceased husband's estate is found, upon 586 PROBATE LAW AND PEACTICE. the return of the inventory, to be of less value than fifteen hun- dred dollars, and the probate court thereafter duly and regularly makes an order and decree setting the entire estate aside for the use and support of the family of the deceased, in compliance with the statute, and the widow thereafter mortgages all her interest in and to such estate, the mortgage so executed covers whatever right, title, or interest she has in or to the estate by right of succession as an heir of her deceased husband, and the interest so granted and encumbered is commensurate only with her rights of succession, and a purchaser under foreclosure sale can acquire only such rights and privileges as she has by reason of being an heir to such estate: Booth Mer. Co. v. Murphy (Ida.), 93 Pac. Eep. 777. (6) Appeal. If a widow, who is also the administratrix of the es- tate, makes application to have the whole of the estate of the de- ceased set apart to her on the ground that it does not exceed in value fifteen hundred dollars, but the application is denied, and an appeal is taken by the widow, it wUl be dismissed, where she gave no bond on appeal. The order is against the widow, and in favor of the estate; and the widow, individually, is alone aggrieved, and she alone can appeal, but the appeal will not stand unless an undertaking on appeal was filed; and if the appeal was taken in her representative capacity, it must be dismissed, because she has no right to appeal in that capacity: Estate of Wood, 143 Cal. 522, 524; 77 Pac. Eep. 481. No notice of the application for a family allowance is required. The court may make the order on its own motion. But any person interested, whether he has had actual notice of th« entry of the order or not, may appeal at any time within sixty days. Those who have had only constructive notice certainly should have a reasonable time within which to prepare and serve their bills of exceptions. What is a reasonable time is a question to be dqtermined by the judge, upon aU the facts and circumstances. As to those who have been parties to the contest, they are, following the analogies found in pro- visions of the code relating to civil actions, entitled to actual notice of the entry of the order; and the time within which to move for a . new trial, when proceedings therefor are proper, or to prepare and serve a bUl of exceptions to be used on appeal from the order, does not begin to run until such notice has been given: Leach v. Pierce, 93 Cal. 614, 621; 29 Pac. Eep. 235. (7) Death pending appeal. Abatement. The power of the court to set apart the whole of an estate without administration, for the use and support of the widow and minor children, cannot be exer- cised, where there is no widow or minor children, and the estate is therefore subject to administration. Hence, where the court has de- nied the widow's application to have the whole estate set apart to SUPPORT OP FAMILY EXEMPT PEOPEETT. 587 her, there being no minor child, and she dies pending her appeal from such order, she is the only person for whose use and support the estate could be set apart, and by her death the court loses jurisdic- tion to make such an order. Her death, pending the appeal from an order refusing to grant her application, has the same effect upon the power of the court as if she had died before the application had been heard. This right of the widow does not survive to any one, and the -proceedings, therefore, abate by her death: Estate of Bachel- der, 123 Cal. 466, 467; 56 Pac, Rep. 97. No action on the note of a decedent can be maintained against his administratrix, where the value of the, estate left by him is less than fifteen hundred dollars: Wills V. Booth (Cal. App.), 91 Pac. Eep. 759, 760, 761. 588 PROBATE LAW AND PRACTICE. CHAPTER n. HOMESTEADS. § 411. Eight of survivor to homegtead. § 412. Selected and recorded homestead to be set off to person en- titled. Subsisting liens to be paid by solvent estate. § 413. Carving homestead out of original, exceeding five thousand dollars in value. Eeport. § 414. Beport of appraisers. Majority and minority, which may be confirmed. § 415. Day to be set for confirming or rejecting report of appraisers. § 416. Form. Order setting time for hearing report of appraisers and prescribing notice. Value exceeding five thousand dollars. § 417. Form. Notice of hearing on report of appraisers as to home- stead. § 418. Form. Order setting apart homestead out of property worth more than five thousand dollars when selected. § 419. Costs, to whom chargeable. Persons succeeding to rights of homestead owners. Powers and rights of. § 420. Certified copies of certain orders to be recorded. HOMESTEADS. I. Antemortem Homesteads. 1. In general. 11. Order. Effect of. 2. Definition of " homestead." 12. No money in lieu of. 3. Application of statute. 13. Appraisement. 4. Survivorship. 14. Value. 5. Law at death controls. 15. Division or sale. 6. Bight to homestead. " Family." 16. Bights and title of survivor, heirs, 7. Abandonment. Statute of limita- successors, and children, tions. Selection. 17. Exemption of homestead. 8. Homestead vests how. (1) In general. (1) Homesteads selected from (2) Policy of the law. community property. (3) Construction of codes. (2) Homesteads selected from (4) " Family " of owner. separate property of per- (5) Limit as to value. sons selecting or joining 18. Alienation of homestead, in selection of same. 19. Presentation of claims. (3) Homesteads selected from (1) In general. Purpose of law separate property without (2) Necessity of presentment, owner's^ consent. (3) Statute of limitations. (4) Homestead declared by hus- 20. Foreclosure without presentment. band. 21. Liens and payment. 9. Setting apart a homestead. 22. Determination of right. 10. Order. In general. 23. Partition of homestead. HOMESTEADS. 589 II. Probate Homesteads. 1. In general. (1) in general. 2. Definition of homestead. (2) Dissenting opinions. 3. Eesidenoe not essential. 16. Surviving husband's right. 4. Purpose and construction of statute. 17. Minor children's right. Mandatory nature of pro- 18. No money in lieu of homestead, oeeding. 19. Order. Notice. Validity. 5. Kight paramount to testamentary 20. Order. Effect of. disposition. 21. Order. Finality and conclusiveness. 6. Application. Jurisdiction. 22. Power to encumber or alienate. 7. How to be selected. 23. Mortgage lien. Presentation of 8. Procedure and practice. claims. 9. Appraisement. 24. Value. 10; Property subject to. 25. Waiver, loss, and determination of 11. Property not subject to. right. 12. Widow's right. In general. 26. Vesting of title. 13. Widow's right. How not affected. 27. Vacating order. Collateral attack. 14. Widow's right. Limitations on. 28. Exemption of homestead. 15. Limited homestead. 29. Appeal. § 411. Right of survivor to homestead. If the home- stead selected by the husband and wife, or either of them, during their coverture, and recorded while both were living, was selected from the community property, or from the separate property of the person selecting or joining in the selection of the same, it vests, on the death of the husband or wife, absolutely in the survivor. If the homestead was selected from the separate property of either the husband or the wife, without his or her consent, it vests, on the death of the person from whose property it was selected, in his or her heirs, subject to the power of the superior 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 liability 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 provided in the Civil Code. Kerr's Oyc. Code Civ. Proc, § 1474. ANAI.OGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1732. Idaho. Code Civ. Proc. 1901, sec. 4126. Montana. Code Civ. Proc, sec. 2590. North Dakota. Eev. Codes 1905, § 8087. Oklahoma. Eev. Stats. 1903, sec. 1610. South Dakota. Probate Code 1904, § 156. Wyoming. Eev. Stats. 1899, sec. 4741. 590 PROBATE LAW AND PRACTICE. § 412. Selected and recorded homestead to be set off to person entitled. Subsisting liens to be paid by solvent estate. If the homestead selected and recorded prior to the death of the decedent be returned in the inventory appraised at not exceeding five thousand dollars in value, or was previously appraised as provided in the Civil Code, and such appraised value did not exceed that sum, the superior court must, by order, set it off to the persons in whom title is vested by the preceding section. If there be subsisting liens or encumbrances on the homestead, the claims secured thereby must be presented and allowed as other claims against the estate. If the funds of the estate be adequate to pay all claims against the estate, the claims so secured must be paid out of such funds. If the funds of the estate be not sufficient for that purpose, the claims so secured shall be paid proportionately with other claims allowed, and the liens or encumbrances on the homestead shall only be enforced against the homestead for any deficiency remaining after such payment. Kerr's Cyc, Code Civ. Proc, § 1475. ANAI.OGOUS AND IDENTICAIi STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1733. Idaho. Code Civ. Proe. 1901, see. 4127. Montana. Code Civ. Proc., sec. 2591. North Dakota. Bev. Codes 1905, § 8088. Wyoming. Eev. Stats. 1899, see. 4742. ^ 413. Carving homestead out of original, exceeding five thousand dollars in value. Report. If the homestea'd, as selected and recorded, be returned in the inventory appraised at more than five thousand doUars, the appraisers must, before they make their return, ascertain and appraise the value of the homestead at the time the same was selected, and if such value exceeded five thousand dollars, or if the homestead was appraised as provided in the Civil Code, and such appraised value exceeded that sum, the appraisers must determine whether the premises can be divided without material injury, and if they find that they can be thus divided, they must admeasure and set apart to the parties entitled thereto such portion of the premises, including the HOMESTEADS. 591 dwelling-house, as will amount in value to the sum of five thousand dollars, and make report thereof, giving the metes, bounds, and full description of the portion set apart as a homestead. If the appraisers find that the premises ex- ceeded in value, at the time of their selection, the sum of five thousand dollars, and that they cannot be divided without material injury, they must report such finding, and thereafter the court may make an order for the sale of the premises and the distribution of the proceeds to the parties entitled thereto. Kerr's Cyc. Code Civ. Proc, § 1476. AN-AIOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1734. Idaho. Code Civ. Proe. 1901, sec. 4128. Montana. Code Civ. Proe., see. 2592. North Dakota. Eev. Codes 1905, §§ 8088, 8090. Wyoming. Eev. Stats. 1899, sec. 4743. § 414. Report of appraisers. Majority and minority, 'Which may be confirmed. Any two of the appraisers con- curring may discharge the duties imposed 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 may 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 be confirmed. Kerr's Cyc. Code Civ. Proc, § 1477. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. .Arizona.* Eev. Stats. 1901, par. 1735. Idaho.* Code Civ. Proe. 1901, see. 4129. Montana.* Code Civ. Proc., see. 2593. Wyoming. Eev. Stats. 1899, see. 4744. § 415. Day to be set for confirming or rejecting report of appraisers. "When the report of the appraisers is filed, the court must set a day for hearing any objections thereto, from any one interested in the estate. Notice of the hear- ing 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 appraisers 592 • PROBATE LAW AND PKACTICB. to examine and report lipon the homestead, and similar pro- ceedings may be had for the confirmation or rejection of their report, as upon the first report. Kerr's Cyc. Code Civ. Proc, § 1478. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1736. Idaho.* Code Civ. Proe. 1901, sec. 4130. Montana.* Code Civ. Proc, sec. 2594. North Dakota. Eev. Codes 1905, § 8090. Wyoming.* Eev. Stats. 1899, sec. 4745. § 416. Form. Order setting time for hearing report of appraisers and prescribing notice. Value exceeding five thousand dollars. r™. , . [Title of court.] [Title of estate.] \^°- -—.■" ^«P*- ^o • ■■ -■ ( [Title of form.] The appraisers appointed by the court to appraise the estate of said deceased having filed their return appraising the homestead selected and recorded in the lifetime of the deceased at more than five thousand dollars ($5,000) at the time the same was selected, and setting apart a portion thereof as a homestead," — It is ordered. That , the day of — . — , 19 — , be fixed as the day for hearing any objections thereto, and that the clerk give notice of said hearing by posting notices thereof not less than ten days ' prior to said date, in three public places in the county * of , state of Dated ■-, 19 — , Judge of the — ■ — Court. . Explanatory notes. 1. Give file number. 2. Or, making rethrn that the premises cannot be divided without material injury. 3. Or aa otherwise prescribed by statute. 4. Or, city and county. § 417. Form. Notice of hearing on report of appraisers as to homestead. [Title of court.] [Title of proceeding.] j^° ' Bept. No ■■ "^ ( [Title of form.] Notice is hereby given. That the appraisers appointed to appraise the estate of the above-named deceased have filed herein their return and report appraising the homestead HOMESTEADS. 593 selected and recorded during the lifetime of said decedent at more than five thousand dollars ($5,000) at the time it was selected, and setting off a portion thereof as a home- stead; and that the hearing of the same has been fixed by the court for ,2 the day of , 19 , at o'clock in the forenoon ^ of said day, at the court-room of said court, at which time and place any person interested in the estate may appear and present his objections thereto. Dated , 19 — , Clerk. By , Deputy Clerk. Explanatory notes. 1. Give file number. 2. Day of the week. 3. Or, afternoon. § 418. Form. Order setting apart homestead out of prop- erty worth more than five thousand dollars when selected. [Title of court.] [Title of estate.] i^° ' ^^P*' ^°- [Title of form.] It appearing to the satisfaction of the court that due and legal notice has been given by the clerk, for the time and in the manner as directed by the court, of the report of the appraisers herein, appraising the value of the homestead of said decedent, at the time of its selection in his lifetime, at more than five thousand dollars ($5,000), and admeasuring and setting apart a portion thereof as a homestead, and the widow of said deceased having filed her objections thereto, and the said hearing having been regularly postponed to this time, and the court having heard the said matter and confirmed said report in all things, — It is therefore ordered, adjudged, and decreed. That said report be in all things confirmed, and that the land So ad- measured be, and the same is hereby, set apart as a home- stead for the use of , the said widow, and that the same was and is community property, and is hereby vested absolutely in the widow.^ Said portion so set apart is described as follows, to wit: 3 __ — ., County Clerk. Entered , 19 — * By , Deputy. Explanatory notes. 1. Give file number. 2. Or, that the same was separate property; that said deceased did not join in the selection Probate — 38 594 PROBATE LAW AND PRACTICE. thereof; and that the same is set apart as a homestead for the period of years only from the date hereof, for the use of the said widow, and and ^ , the minor children of said deceased. Compare Weinreich v. Hensley, 121 Cal. 647, 655; 54 Pac. Eep. 254. 3. Give description. 4. Orders and decrees need not be signed: See § 77, ante. § 419. Costs, to whom chargeable. Persons succeeding to rights of homestead owners. Powers and rights of. 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 aU the rights and benefits con- ferred by law on the persons whose interests and rights they acquire. Kerr's Cyc. Code Civ. Proc, § 1485. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1737. Idaho.* Code Civ. Proc. 1901, sec. 4131. Montana. Code Civ. Proc, see. 2595. Wyoming.* Kev. Stats. 1899, sec. 4746. § 420. Certified copies of certain orders 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 of&ce of the recorder of the. county where the homestead property is situated. Kerr's Cyc. Code Civ. Proc, § 1486. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1738. Idaho.* Code Civ. Proc. 1901, sec. 4132. Montana. Code Civ. Proc, sec. 2596. Nevada. Comp. Laws, see. 3040. HOMESTEADS. I. Antemoitem Homesteads. 1. In general. 6. Law at death controls. 2. Definition of " homestead." 6. Eight to homestead. " Family." 3. Application of statute. 7. Abandonment. Statute of limlta- 4. SurrtTorBhlp. Uons. Selection. HOMESTEADS. 595 8. Homestead vests bow. (1) Homesteads selected from community property. (2) Homesteads selected from separate property of per- sons selecting or Joining In selection of same. (3) Homesteads selected from separate property without owner's consent. (4) Homestead declared by hus- band. 9. Setting apart a homestead. 10. Order. In general. 11. Order. Effect of. 12. No money in lien of. IS. Appraisement. 11. Value. 15. Division or sale. 16. Eights and title of survivor, heirs, successors, and children. 17. Exemption of homestead. (1) In general. (2) Policy of the law. (3) Construction of codes. (4) " Family " of owner. (5) Limit as to value. 18. Alienation of homestead. 19. Presentation of claims. (1) In general. Purpose of law. (2) Necessity of presentment. (3) Statute of limitations. 20. Toreclosure without presentment. 21. Liens and payment. 22. Determination of right. 23. Partition of homestead. 6. 7. 8. 9. 10. 11. 12. 13. 14. 16. n. Probate In general. Definition of homestead. Besidence not essential. Purpose and construction of statute. Mandatory nature of pro- ceeding. Bight paramount to testamentary disposition. Application. Jurisdiction. How to be selected. Procedure and practice. Appraisement. Property subject to. Property not subject to. Widow's right. In general. Widow's right. How not affected. Widow's right. Limitations on. Limited homestead. Homesteads. (1) In general. (2) Dissenting opinions. 16. Surviving husband's right. 17. Minor children's right. 18. No money in lieu of homestead. 19. Order. Notice. Validity. 20. Order. Effect of. 21. Order. Finality and conclusiveness. 22. Power to encumber or aUenate. 23. Mortgage lien. Presentation of claims. 24. Value. 25. Waiver, loss, and determination of right. 26. Vesting of title. 27. Vacating order. Collateral atta9k. 28. Exemption of homestead. 29. Appeal. I. ANTEMOBTEM HOMESTEADS. 1, In general. The right of testamentary disposition is subordinate to the rights of the family. Thus, despite the fact that a farm has been specifically devised, one half to the widow and the other half to the children, it is competent for the probate court to set it aside as a homestead, for the right of a testator to devise is subor- dinate to the power of the probate court to sequester and set apart 596 PROBATE LAW AND PRACTICE. the property for the shelter, care, and support of the family: Estate of Huelsman, 127 Cal. 275, 276; 59 Pac. Kep. 776. A homestead out of the separate property of a deceased husband can be set • apart to the widow only for a limited time, and certainly not longer than dur- ing her life: Hutchinson v. McNally, 85 Cal. 619, 621; 24 Pac. Eep. 1071. An overruled opposition to the setting apart of a homestead does not estop the party objecting from establishing his title, in an action for that purpose: Dickey v. Gibson, 121 Cal. 276, 278; 53 Pac. Eep. 704. BEFEBENCES. Hbmestead in decedents' estates: See note 44 L. E. A. 402. 2. Definition of " homestead." The homestead, and the tests by which it is ascertained, are the same, whether the question arises be- tween those claiming the homestead, or one of them and a vendee, a mortgagee, a creditor, or the heirs of the deceased husband or wife. There is not one homestead as against a creditor, and a different one when the survivor asserts his or her claim as against the heirs of the deceased: Estate of Delaney, 37 Cal. 176, 180. The word "home- stead" signifies the place of the home; the residence of the family. It represents the dwelling-house at which the family resides, with the usual and customary appurtenances,' including the outplaces of every kind necessary and convenient for the family use, and land used for the purposes thereof. It is in this sense that the word is used in the constitution, and also in the statute. In other words, it is the actual homestead to which they refer, and to which they pur- port to add certain legal incidents: Keyes v. Cyrus, 100 Cal. 322, 324; 38 Am. St. Eep. 296; 34 Pac. Eep. 722; Estate of Garrity, 108 Cal. 463, 468; 38 Pac. Eep. 628; 41 Pac. Eep. 485. The purpose of the homestead law is to secure a home to those clothed with a homestead right, — to each and all of them: Moore v. Hoffman, 125 Cal. 90, 92; 73 Am. St. Eep. 27; 57 Pac. Eep. 769. 3. Application of statute. The devolution of title to the homestead of one of the spouses is provided for in section 1265 of the CivU Code of California, and also in section 1474 of the Code of Civil Proce- dure of that state. The latter section was amended- ten days later than the section of the Civil Code, and is to be regarded as the latest expression of the legislative will. By said section 1474 the legislature has declared that " if the homestead was selected from the separate property of either the husband or the wife, without his or her con- sent, it vests, on the death of the person from whose property it was selected, in his or her heirs, subject to the power of the superior court to assign it for a limited period to the family of the decedent.'' The power thus to limit the estate of the heirs is not given by said sec- tion 1474, but is merely referred to as the source of the limitation HOMESTB.U)S. 597 which may be placed upon the estate. The said section 1474 pur- ports to deal merely with the descent of the property from which the homestead was selected, but the power of the court to assign the homestead, and upon whose exercise a limitation upon the estate of heirs is created, is given in section 1465 of the Code of Civil Pro- cedure of that state, and the provisions of the section last named are to be read in connection with the provisions of section 1474: Weinreich v. Hensley, 121 Cal. 647, 653; 54 Pac. Kep. 254; Estate of Path, 132 Cal. 609, 611; 64 Pac. Eep. 995. The power thus given to the court, by said section 1465, to set apart a homestead that has been selected from the separate estate of the decedent is the same as its power to set apart a homestead when none has been selected in the lifetime of the decedent, and must be exercised in the same manner and under the same limitations and conditions. The pro- vision in section 1474 making the estate of the heirs subject to the exercise by the court of its power to assign the homestead to the family for a limited period does not confer upon the court the power to assign the homestead taken from the separate property of the decedent, unless by the conditions of section 1465 the separate estate may be so set apart. Section 1465 does not direct the court to set apart the homestead which had been selected by the survivor out of the separate property of the deceased spouse, but declares, in such case, that the court " must select," designate, and set apart a home- stead, and limits the property out of which it is to be selected to the common property, if there be any. It is only in the case where there is no common property that it may select, designate, and set apart a homestead out of the separate estate of the decedent. It is very evident that if there be any common property, the homestead which may have been selected by the survivor from the separate property of the decedent, without his assent, would cease to be such upon his death; but the effect of his death upon the homestead selected from his separate estate, without his assent, is the same, whether there be common property or not: Weinreich v. Hensley, 121 Cal. 647, 654; 54 Pac. Eep. 252. Section 1468 of the Code of Civil Procedure of California, as amended in 1881, applies to probate home- steads selected and set apart by the court; and such amendment was intended to change the rule declared in Mawson v. Mawson, 50 Cal. 539, 543, and to take from the court the power to set apart a home- stead selected from the separate property of the deceased, except for a limited period: Estate of Schmidt, 94 Cal. 334, 339; 29 Pac. Kep. 714. The provision in section 1468, declaring what shall be the own- ership " when property is set apart to the use of the family in accord- ance with the provisions of this chapter " implies that, until it is so set apart, the property belongs to the estate of the decedent; and the subsequent provision in the same section, that " if the property Bet apart be a homestead selected from the separate property of the 598 PROBATE LAW AND PEACTICE. 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 and subject to such order," clearly indicates that the court must make an order designating the limited period for which the homestead is set apart, and that until such order is made there is no homestead, and that the property selected as a homestead out of the separate estate of the deceased in his lifetime, without his assent, ceases upon his death to be a homestead, and vests in his heirs, free from any such limitation, unless it is afterwards selected and set apart as a homestead by an order of the court: Weinreich v. Hensley, 121 Cal. 647, 655; 54 Pac. Eep. 254. 4. Survivorship. Under the provisions of the codes of California^ it is only a homestead selected from the community property during the existence of the community to which the law of title by sur- vivorship applies: Estate of Gilmore, 81 Cal. 240, 243; 22 Pac. Kep. 655. If community property has been designated as a homestead, it becomes, upon the death of one of the spouses, the sole property of the survivor, who will be protected in the same manner as he was before: Sanders v. Russell, 86 Cal. 119, 120; 21 Am. St. Eep. 26; 24 Pac. Bep. 852. The homestead character of property is not affected by the death of the husband, but continues so long as it remains a homestead: Estate of Fath, 132 Cal. 609, 612; 64 Pac. Eep. 995. Where a, homestead was the separate property of the husband, the wife has no right of survivorship in the property, but, on his death, it will be vested in his heirs, discharged of all claim or interest on her part by virtue of any previous declaration of homestead she may have made thereon: Warner v. Warner, 144 Cal. 615, 618; 78 Pac. Eep. 24. EEFEBENCES. As to proof of survivorship, see Sanders v. Simcich, 65 Cal. 50; 2 Pac. Eep. 741, 743. 5. Law at death controls. The law in force at the time of death controls on the subject of homesteads and the rights of survivors: Rich V. Tubbs, 41 Cal. 34, 36; Estate of Headen, 52 Cal. 294, 297; Tyrrell v. Baldwin, 78 Cal. 470, 473; 21 Pac. Eep. 116; Gruwell v. Seybolt, 82 Cal. 7; 22 Pac. Eep. 938; In re Thorn's Estate, 24 Utah, 209; 67 Pac. Eep. 22, 23. Thus if the act under which a homestead was created was amended before the death of either husband or wife, the right of survivorship is governed by the amended law, and not by the original one: Tyrrell v. Baldwin, 78 Cal. 470, 474; 21 Pac. Bep. 116. There can be no survivorship until a death has occurred; but the death of one of the spouses does not alter in any way the estate or title of the homestead: Tyrrell v. Baldwin, 78 Cal. 470, 473, 475; 21 Pac. Eep. 116. And as the descent of the homestead to the HOMESTEADS. 599 surviving widow is governed by the law in force at the death of her husband, she becomes the owner in fee of the homestead property by virtue of her survivorship, and the title so acquired is not aflEected by the subsequent order of the court setting the property apart to her as a homestead. The effect of such order is to withdraw the property therein named from administration, but it does not qualify or affect the title that had vested in the widow at the instant of her husband's death: Estate of Path, 132 Cal. 609, 612; 64 Pac. Eep. 995. 6. Eight to homestead. " Family." Where a husband owns an un- divided interest in land, as a tenant in comniion with others, and is living thereon with his family, his wife may claim a homestead therein to the extent of the husband's undivided interest and to the value of five thousand .dollars: Higgins v. Higgins, 46 Cal. 259, 266; and although a widow has obtained a homestead, and she afterwards mar- ries, she may claim another homestead out of the estate of her sec- ond deceased husband: Higgins v. Higgins, 46 Cal. 259, 265. Where property was the separate property of the wife, and at her death was the homestead of herself and her husband by virtue of a declaration made by her in due form, the husband, upon her death, acquires absolute title thereto. Upon the death of either spouse, the home- stead selected from the community property, or from the separate property of the parties making the declaration, or joining therein, vests absolutely in the survivor. The survivor, in such ease, takes his title by operation of law, and no order of court is necessary to per- fect his title: Fisher v. Bartholomew, 4 Cal. App. 581; 88 Pac. Kep. 608, 609. And the title thus acquired cannot be affected by subse- quent orders of the probate court. Hence an order of the probate court authorizing a sale of the premises operates only upon the title then remaining in the estate of the decedent, which is nothing: Fisher V. Bartholomew, 4 Cal. App. 581; 88 Pac. Eep. 608, 609. The statute of Oklahoma, which authorizes the survivor to continue to possess and to occupy the whole homestead until it is otherwise disposed of according to law, does not support the contention that any single survivor of the family may be entitled to the possession of the prop- erty as a homestead, unless such survivor is " the head of a family." To constitute a family, there must be a collection of persons living together. One person cannot constitute a family, nor the head of a family: Betts v. MUls, 8 Okl. 351; 58 Pac. Eep. 957. BEFEBENCES. What constitutes a " family," under the homestead and exemption laws: See note 4 L. K. A. (N. S.) 365-398. 7. Abandonment. Statute of limitations. Selection. A homestead may be abandoned by a deed in prsesenti, vesting the title in the €00 PROBATE LAW AND PRACTICE. grantee upon condition subsequent, and containing a reservation to the grantor; and a reconveyance will not revive the homestead; Bank of Suisun V. Stark, 106 Oal. 202, 207; 39 Pac. Eep. 531. If a widow does not know the law, that the homestead vested in her by the death of her husband, and, although she has able attorneys, she is not advised of her right to a probate homestead, and she relinquishes all rights in her husband's estate, but brings suit nearly nineteen years after his death to set aside such surrender of her homestead rights, the five-year statute of limitations applies to prevent her recovery. Such an action being one to settle and determine the question as to whether or not plaintiff is the owner of the homestead is one for the recovery of real estate: Daniels v. Dean, 2 Cal. App. 421; 84 Pac. Eep. 332, 334. Where a husband, the wife being dead, owned ana occupied a tract of real estate as a homestead with his two .minor children at the time of his death, and, immediately after his death, the said minor ehUdren were moved from said land, and a guardian was appointed for them, and the guardian, in his capacity as such, leased the land and collected the rents therefrom, but did not occupy the same, and where none of the said children had occupied the land as a residence after the death of their father, it was held that such removal of the minor heirs from the land did not constitute a waiver or abandonment of the homestead; and further, that personal "pos- session and occupancy " of the land, by either the minor heirs or their guardian, was not necessary; that " possession and occupancy " by a tenant of the guardian was sufficient to preserve the homestead char- acter of the land for the minor heirs; and that said land could not be subjected to the payment of the debts of plaintiff, created prior to the death of the father: Bockwood v. St. John's Estate, 10 Okl. 476; 62 Pac. Eep. 277. A homestead selected by a wife from the sep- arate property of her husband is not abandoned by a subsequent agreement between her and him for a division of the homestead be- tween them, especially where it is not recorded by either ■ of the parties. If a husband makes a filing upon public lands, before his marriage, the legal title acquired becomes his separate property; and a homestead filed thereon by the wife alone is not a " selection " from the " community property." If a wife files a declaration of home- stead upon property at a time when all of the land in controversy is the separate property of her husband, the subsequent acquisition by her of the title to a part of the land as her separate property does not have the effect of changing the prior declaration into a selection by her of the homestead from her separate property. When the statute speaks of a selection of a homestead " from the separate property of the person selecting or joining in the selection of the same," it has reference to the status of the property as separate property at the time when the selection is made; and only in such case can there be properly imputed to the person making the selection an intention HOMESTEADS. 601 to dedicate his or her property for homestead purposes, and thus to vest in the other spouse an estate therein which, upon the contingency of survivorship, will ripen into an absolute title to the land so dedi- cated. It would be subversive of the object and purpose of the law to hold that the wife's subsequent acquisition of the property from which she selected a homestead, when it belonged to her husband, could be made to relate back to give to her former act in selecting such homestead an intention and purpose which did not in fact then accompany it: Estate of Lamb, 95 Oal.- 397, 406; 29 Am. St. Eep. 421 j 30 Pac. Eep. 568. 8. Homestead vests how. (1) Homesteads selected from community property. Where the homestead was selected from community property, it vests absolutely in the survivor at the death of either spouse: Tyrrell v. Baldwin, 78 Cal. 470, 476; 21 Pac. Eep. 116; Bollinger v. Manning, 79 Cal. 7, 11; 21 Pac. Eep. 375; Sheehy v. Miles, 93 Cal. 288; 28 Pae. Eep. 1046; VandaU v. Teague, 142 Cal. 471; 76 Pae. Eep. 35; Saddlemire v. Stock- ton Sav. etc. Soc, 144 Cal. 650; 79 Pae. Eep. 381; Hibernia Sav. & L. Soc. V. Hinz, 4 Cal. App. 626; 88 Pac. Eep. 730; and an order of court made purporting to set aside the homestead property " for the use of the family " does not in any way change or affect the rights of the survivor, but merely excludes the property from administration: Bol- linger V. Manning, 79 Cal. 7, 11; 21 Pac. Eep. 375. The probate court, in such a ease, has no power to make a decree setting apart the property for the use of the family; and its effect, no matter how broad its language, is simply to take the property out of adminis- tration: Sheehy v. Miles, 93 Cal. 288, 295; 28 Pac. Eep. 1046. As the wife becomes the owner of a homestead upon community prop- erty immediately upon the death of her husband, the property retains its homestead character: Hibernia Sav. & L. Soc. v. Hinz, 4 Cal. App. 626; 88 Pac. Eep. 730, 731; and the probate court has no juris- diction over it; hence its order setting apart the homestead to the widow has no other effect than to take the property out of adminis- tration. The order could affect only the interest of the estate in the. property, which in such a case would be nothing: Vandal! v. Teague, 142 Cal. 471, 474; 76 Pac. Eep. 35. SEFESEITCES. Amendment of 1880 to section 1474 of the Code of Civil Procedure of California made no change in the case of a homestead selected from community property: See next subdivision, infra. (2) Homesteads selected from separate property of persons selecting or joining in selection of same. If the homestead selected by the hus- band or wife, or either of them, during their coverture, and recorded 602 PKOBATE LAW AND PRACTICE. while both were living, was selected from the separate property of the person selecting or joining in the selection of the same, it vests, on the death of the husband or wife, absolutely in the survivor: Estate of Croghan, 92 Gal. 370, 371; 28 Pac. Eep. 570; Estate of Path, 132 Gal. 609; 64 Pac. Eep. 995. Hence if the widow, upon the death of her husband, becomes, by virtue of her survivorship, the owner in fee of a homestead selected by the husband in his lifetime from his separate estate, the title thus acquired is not affected by a sub- sequent order of the court setting the property apart to her as a homestead. The effect of the order is simply to withdraw the prop- erty therein named from administration: Estate of Path, 132 CaL 609, 612; 64 Pac. Eep. 995. In such a case the death of the husband does not affect the homestead selected by him, but the homestead continues so long as it remains a homestead; and upon the death of the widow, leaving no minor children, there ceases to be any family for whose benefit the exemption exists and the homestead itself ceases to exist. It is subject to the widow's testamentary disposi- tion, and in case she dies intestate, it descends to her heirs under the laws of succession: Estate of Path, 132 Gal. 609, 612; 64 Pae. Eep. 995. The amendment of 1880 to section 1474 of the Code of Civil Procedure of California made no change in the case of a home- stead selected from community property; but with reference to home- steads selected from separate property, it distinguished between those selected by or with the consent of the owner of the property, and those selected by one of the spouses without the consent of the other. Those of the former class were made to go to the survivor; of the latter, to the heirs of the person from whose property the se- lection had been made. Thus the only change made by said amend- ment was with relation to homesteads selected from separate prop- erty where the owner of the property made the selection or joined in it. But in the case of a homestead selected by the wife from the separate property of the husband without his consent, such property went to the heirs, by the provisions of said section 1474, before as well as after the amendment of 1880: Estate of McGee, 36 Gal. Dec. .155, 156 (Aug. 27, 1908). (3) Homesteads selected from separate property without owner's consent. If the property was selected from the separate property of either the husband or wife without his or her consent, it vests, on the death of the person from whose property it was selected, in his or her heirs, subject to the power of the probate court to assigp it for a limited period to the family of the decedent: Estate of Croghan, 92 Gal. 370, 371; 28 Pac. Eep. 570; Gruwell v. Seybolt, 82 Cal. 7; 22 Pac. Eep. 938; Estate of Schmiit, 94 Gal. 334, 338; 29 Pac. Eep. 714; Estate of Lamb, 95 Gal. 397; 29 Am. St. Eep. 121; 30 Pac. Eep. 568; Estate of Walkerly, 108 Gal. 627, 654; 49 Am. St. Eep. HOMESTEADS. 603 97; 41 Pac. Eep. 772; Weinreich v. Hensley, 121 Cal. 647, 654, 655; 54 Pae. Eep. 254. It will be noticed that, under the laws of Cali- fornia, where a homestead has been selected from the separate prop- erty of a husband during his lifetime, and without his consent, it goes, upon his death, to his " heirs or devisees," subject to the power of the court to assign the same for a limited period, under section 1265 of the Civil Code of that state, while, by section 1474 of the Code of Civil Procedure of said state, the same property vests in " the heirs," subject to the same power of limited assignment in the court. For comment upon this inharmoniousness, see Estate of Walk- erly, 108 Cal. 627, 654; 49 Am. St. Eep. 97; 41 Pae. Eep. 772; Estate of Matheny, 121 Cal. 267, 269; 53 Pac. Eep. 800. (4) Homestead declared by husband. Where the husband made a valid declaration of homestead, the title thereto, upon his death, vests absolutely in his wife, and the children have no title or interest therein, whether the declaration was made upon community prop- erty, the separate property of the husband, or upon the separate property of the wife; because, if the land was the separate property of the wife, it was no part of the estate of the deceased husband, and the court sitting in probate -had no jurisdiction over it, and could not deal with it as belonging to the estate: Saddlemire v. Stockton Sav. etc. Soc, 144 Cal. 650, 653; 79 Pac. Eep. 381. When the homestead is selected from the separate property of the husband, who joins in its selection as a homestead, then, upon the death of the wife, it goes absolutely to the surviving husband. By the death of his first wife, the homestead property vests in him as fully and perfectly as though no homestead had ever been carved out of it; the title to the property is not affected by his second marriage; and he may alone mortgage the homestead without the second wife's sig- nature: Dickey v. Gibson, 113 Cal. 26, 32; 54 Am. St. Eep. 321; 45 Pac. Eep. 15. 9. Setting apart a homestead. It is the duty of the court below, where a homestead has been selected, first to ascertain what was legally held as homestead property at the time of the death of the deceased, and then set it apart for the use of the widow: Estate of Wixom, 35 Cal. 320, 325. The court has a discretion to exercise in determining whether it will set aside a homestead from the separate property of the decedent, as well as the particular property which it will set aside, and also in determining the time during which it shall be held as a homestead. It is not required to set aside the property which was selected by the survivor, and is limited to selecting and designating property which is of no greater value than five thou- sand dollars. The court is not bound by the wishes of the appli- cant, but should exercise its own discretion and good judgment. The 604 PROBATE LAW AND PRACTICE. right to have it assigned for a limited period is not absolute, but rests in the sound discretion of the court, to be exercised in view of all the facts appearing before it: Weinreich v. Hensley, 121 Cal. 647, 655; 54 Pac. Eep. 254; Estate of Schmidt, 94 Cal. 334; 29 Pac. Eep. 714; Estate of Lamb, 95 Cal. 397; 29 Am. St. Bep. 121; 30 Pac. Eep. 568. The right given to the probate court to set apart " to the family of the decedent," for a limited period, is not controlled or in any way affected by the wife's previous selection of a homestead: Warner v. Warner, 144 Cal. 615, 619; 78 Pac. Eep. 24; Weinreich v. Hensley, 121 Cal. 647, 653; 54 Pac. Eep. 254. Although she filed a declaration of homestead upon her husband's separate property, her subsequent acquisition of a part of such property as her separate property does not convert the prior declaration into a selection by her to a homestead of her separate property. iTpon her death, the property so conveyed to her is to be treated as if the homestead had been selected without her consent, and as vesting in her heirs, sub- ject to have it assigned for a limited period to the family of the deceased: Estate of Lamb, 95 Cal. 397, 407; 29 Am. St. Eep. 121; 30 t*ae. Eep. 568. Where a homestead was declared by the wife upon ler separate property, which was of such a kind that it could be -mpressed with the homestead chatacteristics, the title to it descends ibsolutely to the husband: Estate of Young, 123 Cal. 837, 347; 55 Pac. Eep. 1011; Estate of Croghan, 92 Cal. 370; 28 Pac. Eep. 570. The right of the survivor to retain a home for such a limited period as the court may direct does not depend on the fact that there are children or others who may share in its use. In such event the peti- tioner may himself be regarded as constituting the " family " of deceased. It is true that the word " family," in its ordinary signifi- cation, and as used in the statute concerning the descent of a home- stead, refers to two or more persons, and includes those living under the same roof, as kindred or dependents, under one head; but this word, as used in the statute confirming probate homesteads, is not to be so restricted in its meaning as to exclude the only survivor of the family of which the deceased was a member. The object of the statute is to preserve the family home for the use and benefit of the survivor or survivors of those occupying it as such: Estate of Lamb, 95 Cal. 397, 407; 29 Am. St. Eep. 121; 30 Pac. Eep. 568. 10. Older. In general. In making an order setting aside a home- stead to the widow for her lifetime, it is not proper for the court to decree to whom the fee in remainder shall vest upon her death. It should not undertake to adjudicate the question of heirship. When there is a contest between different persons claiming, in hostility to each other, to be heirs, that contest must be adjudicated in an appro- priate action or proceeding in which the issue of heirship properly arises: Estate of Firth, 145 Cal. 236, 340; 78 Pac. Eep. 643. If the HOMESTEADS. 605 entire estate set apart to the widow as a homestead was the separate property of the husband, and the order setting it aside did not limit the homestead to a life estate in the widow, but set it aside to her absolutely, the order of course is erroneous, but if the time to appeal from the order has expired, and no appeal was taken, title in fee, under the order, vests in the widow, for the order, though erroneous, was not void; and, in such a case, the court has no power to order the executors to discharge liens upon the property: Estate of Huelsman, 127 Cal. 275, 276, 277; 59 Pac. Rep. 776. 11. Order. Effect of. Title is not adjudicated by an order of the court setting apart premises as a homestead for the family, and one who opposes the order is not precluded from establishing his title in a proper action for that purpose: Dickey v. Gibson, 121 Cal. 276, 278; 53 Pac. Eep. 704. Even an order setting apart a probate home- stead for the use of the family, including the widow and children, does not affect her absolute title, or confer any title upon the chil- dren by adjudication. The only effect of the order is to withdraw the premises therein named from administration: Saddlemire v. Stock- ton Sav. etc. Soc, 144 Cal. 650, 653; 79 Pac. Eep. 381. So if a home- stead selected by the husband, in his lifetime, from his separate estate vests absolutely in his surviving wife, an order setting apart the property to the widow as a homestead, pending the administration of her husband's estate, does not affect the widow's title by survivor- ship. Its only effect is to remove the homestead from administration of the husband's estate: Estate of Path, 132 Cal. 609, 612; 64 Pac. Eep. 995. Where the survivor takes his title to a homestead by operation of law, no order of the court is necessary to protect his title: Pisher v. Bartholomew, 4 Cal. App. 581; 88 Pac. Eep. 608, 609. The effect of an order of a probate court setting apart, for a limited period, sep- arate property of a decedent to the surviving spouse, which has al- ready been devised to another person, and upon which no antemortem homestead has been filed, is to invalidate the devise, and such prop- erty should be distributed to the heirs at law of the decedent, sub- ject to the homestead: Estate of Matheny, 121 Cal. 267, 268; 53 Pac. Eep. 800. 12. No money in lieu of. If the widow seeks to have, set apart to her a homestead out of the separate property of her deceased husl and, but there is no separate property, the court has no authority to award a sum of money as a substitute for a homestead. There is no provision of the codes which authorizes such an order, and, by strong implication, such an order is prohibited: Estate of Noah, 73 Ual. 590, 593; 2 Am. St. Eep. 834; 15 Pac. Eep. 290; Estate of Isaacs, 30 Cal. 105, 109. 606 PROBATE LAW AND PHACTICB. 13. Appraisement. Under section 1476 of Code of CivU Procedure of California, the homestead is treated as having vested at the time of its selection; but, under section 1465 of that code, it is created by the order of the court. The appraisement provided for in section 1476 applies to a selected homestead, and the value is to be fixed as of the time the homestead was selected. Section 1465 does not, in itself, require any appraisement; and so much of section 1476 as requires an appraisement cannot be applied in the case of a pro- bate homestead, for the reason that it relates to a selected home- stead and to an entirely different time: Estate of Walkerly, 81 Cal. 579, 583; 22 Pac. Eep. 888. The court provides for the appointment of appraisers in certain cases, where there is a question as to the value of the homestead; and the court is authorized to appoint appraisers, in the first instance, upon proof made of service upon the defendants of a copy of the petition and notice of the time and place of hearing, as provided in sections 1248 and 1249 of the Civil Code of California: Harrier v. Bassford, 145 Cal. 529; 78 Pac. Eep. 1038, 1040. If a vacancy is caused in a board of appraisers by the absence of one of the appraisers from the county, the court has authority to appoint another person without further notice; and either party has, of course, the right to move the court to vacate such appointment, or to set aside the report of appraisers, upon a reasonable showing that the appointee is unfit, incompetent, or disqualified: Har- rier V. Bassford, 145 Cal. 529; 78 Pac. Eep. 1038, 1040. But a day for hearing and notice of the hearing must be given, under section 1478 of Code of Civil Procedure of that state; and if it be conceded that the court has the right to order a reappraisement of the home- stead under that section, it must be admitted that, under the same section, the court should set a day for hearing any objections to the report made by the new appraisers, and cause notice thereof to be given. Hence it is error if the court not only does not set a day for hearing any objections to the report, but refuses to hear the ob- jections of a creditor upon his direct application to be heard: Estate of McCarthy, 1 Cal. App. 467, 471; 82 Pac. Eep. 635. On an appeal from a judgment confirming the report of appraisers setting apart a homestead, the evidence may be reviewed, if the appeal was taken within sixty days: Estate of Crowey, 71 Cal. 300, 302; 12 Pac. Eep. 230. 14. Value. The value of an antemortem homestead is limited to five thousand dollars. The court has no power to select and designate property of a greater value than that amount: Estate of Delaney, 37 Cal. 176, 181; Higgins v. Higgins, 46 Cal. 259, 266; "Weinreich v. Hensley, 121 Cal. 647, 655; 54 Pac. Eep. 254; Estate of Herbert, 122 Cal. 329, 331; 54 Pac. Eep. 1109; People v. Gallanar, 144 Cal. 656, 663; 79 Pac. Eep. 378. If the premises selected as a homestead from HOMESTEADS. 607 commnnity property do not exceed in value the sum of five thousand dollars at the time they were appraised in the probate proceedings, it is the imperative duty of the court to make the order setting them off as a homestead > to the petitioner: Estate of McCarthy, 1 Cal. App. 4'67; 82 Pae. Eep. 635. The homestead character applies only to so much of the property as does not exceed five thousand dollars in value. If what is actually used as a homestead is of a greater value than five thousand dollars, the excess is not homestead under the statute, though so in fact. At its inception, the homestead is limited to five thousand dollars in value, and when the property is enhanced in value, so that it exceeds the statutory limit, the excess does not constitute a part of the statutory homestead. If the premises are worth five thousand dollars, every increase in value works a reduction in the area of the homestead; and where the statute does not contain any other provision for determining the area of the homestead, if the selected premises exceed five thousand dollars in value, it is the duty of the court, nevertheless, to ascertain the amount of land necessary to make up the value of the exemption, and set off that amount alone as the homestead: Bank of Woodland v. . Stephens, 144 Cal. 659, 663; 79 Pac. Eep. 379; Estate of Delaney, 37 Cal. 176, 180; Gregg v. Bostwick, 33 Cal. 220, 228; 91 Am. Dec. 637. Where, upon the death of the homestead claimant, the inventory shows that the premises claimed exceeded five thousand dollars in value, the method of determining what part is homestead and what part is subject to the debts of the deceased is prescribed, in Califor- nia, by sections 1476 et seq. of the Code of Civil Procedure: Bank of Woodland v. Stephens, 144 Cal. 659, 663; 79 Pac. Eep. 379. Said section 1476 applies to homesteads created by a declaration made and recorded, and it applies alone to such character of homesteads: Estate of Herbert, 122 Cal. 329, 331; 54 Pac. Eep. 1109. Sections 1465 and 1476 of the Code of Civil Procedure of California are to be applied in setting apart a homestead created by an insolvent debtor in case the value of the premises exceeds five thousand dollars; and in fixing the valuation of homestead premises, liens or encumbrances of any character are not an element entering into the question: Estate of Herbert, 122 Cal. .329, 331; 54 Pac. Eep. 1109. In case the home- stead is of less value than five thousand dollars at the time of its selection, it goes absolutely to the survivor, although at the time of the death of the husband its value may exceed five thousand dollars: Estate of Burdick, 76 Cal. 639, 641; 18 Pac. Eep. 805; and in case the value of the estate of a deceased husband is less than fifteen hundred dollars, it is proper for the court to set it apart, without further administration, to the widow, although she claims a home- stead upon the separate property of the husband, he not joining therein. Such a proceeding is under section 1469 of the Code of Civil Procedure of California, which deals specifically with the special €08 PROBATE LAW AND PRACTICE. subjects of the estate less in value than fifteen hundred dollars: Estate of Neff, 139 Cal. 71, 72; 72 Pae. Bep. 632. There seems to be no impropriety, in the state of Nevada, in setting apart a homestead to the value of five thousand dollars out of property worth seven thousand five hundred dollars, without defining the boundary or extent necessary to reach that sum, or without ascertaining whether the premises can be divided. The necessity for this division or determi- nation may never arise, and it is better that the trouble and expense incident to a division of the homestead be avoided until the time arrives, if ever, when the occupants of the homestead and the owner of the excess cannot agree, and then the tenant in common, who is dissatisfied, can proceed under the general statute allowing and regulating- suits for partition: In re Quinn's Estate, 27 Nev. 156; 74 Pac. Eep. 5, 6. The homestead exemption of a childless surviving spouse is in the sum of five thousand dollars, and is not limited to one thousand dollars, as prescribed in section 1260 of the Civil Code of California, in a case where the debt sought to be enforced was contracted during the existence of the community and of the home- stead, and where the homestead itself was declared during coverture upon community property: Kobinson v. Dougherty, 118 Cal. 299, 300; 50 Pae. Eep. 649. 15. Division or sale. The appraisers must determine whether the premises can be divided without material injury, where they are worth more than five thousand dollars. If they can, they must proceed to admeasure and set apart a portion not to exceed in value five thousand dollars; otherwise provision is made for sale: Estate of Herbert, 122 Cal. 329, 381; 54 Pac. Eep. 1109; Estate of Burdiek, 76 Cal. 639, 641; 18 Pac. Eep. 805. The statute is clear, that if a home- stead was declared in the lifetime of the deceased, and if it is appraised at more than five thousand dollars, and cannot be divided, the whole may be sold, and five thousand dollars of the proceeds be set apart in lieu of the homestead claim: Lord v. Lord, 65 Cal. 84, 85; 3 Pae. Eep. 96. 16. Sights and title of survivor, heiis, successors, and children. Where one of the spouses takes title to a homestead by survivorship, such title is not affected by orders of the probate court respecting the homestead: Saddlemire v. Stockton Sav. etc. Soc, 144 Cal. 650; 79 Pae. Eep. 381; Estate of Path, 132 Cal. 609, 612; 64 Pae. Eep. 995. Section 1468 of the Code of CivU Procedure of California is a limita- tion upon the power of testamentary disposition, and operates to vest the title to the homestead in the heirs at law, and to withdraw it from disposition made by the testator under hia will: Estate of Matheny, 121 Cal. 267, 269; 53 Pae. Eep. 800. The power of the court to set property apart as a probate homestead is paramount to HOMESTEADS. 609 the power of the testator to devise his estate, and eaniiot be affected by a specific devise of the property: Estate of Huelsman, 127 Cal. 275, 277; 59 Pac Rep. 776. A widow, who takes a homestead, cannot claim that a specific devise to her is exempt from the payment of debts of the estate: Estate of Huelsman, 127 Cal. 275; 59 Pac. Eep. 776. Where a widow becomes the owner in fee of homestead property by virtue of her survivorship, and she dies, leaving no minor child, there ceases to be any family for whose benefit the exemption exists, and the homestead itself ceases to exist. It is subject to her testa- mentary disposition, and in case she dies intestate, it descends to her heirs, under the laws of succession: Estate of Path, 132 Cal. 609, 612; 64 Pac. Rep. 995. And, under the statute which provides for the protection of " persons succeeding, by purchase or otherwise, to the interests, rights, and title of successors to homesteads," those who acquire the title of a successor to a homestead hold the prop- erty under the same exemption as did the person to whose interest they have succeeded: Estate of Path, 132 Cal. 609, 612; 64 Pac. Rep. 995. Section 1485 of the Code of Civil Procedure of California does not apply to probate homesteads: Estate of Moore, 57 Cal. 437, 443. If a probate homestead has been set apart out of the estate of a deceased person to his widow and minor children, one half of which was to go to the widow and the other half to the children, the title is in the widow and minor children during the latter's minority. When the children arrive at majority, their interest in the homestead ceases, and whatever property rights they thereafter have in the land covered by the homestead are in the nature of remaindermen or rever- sioners; but so long as the widow sees fit to continue in the family home, the grantee of one of the children cannot legally go into possession of the homestead as a tenant in common with the widow: Moore v. Hoffman, 125 Cal. 90, 92; 73 Am. St. Eep. 27; 57 Pac. Eep." 769. If the title of the homestead vests absolutely in the wife upon the death of her husband, and the homestead declared by the hus- band, whether it is upon community property or upon the separate property of the husband, or upon the separate property of the wife, the children have no interest or title therein; and no title is conferred on them by an order of the probate court setting the homestead apart for the use of the family, including the widow and children: Saddlemire v. Stockton Sav. etc. Soc, 144 Cal. 650, 654; 79 Pac. Eep. 381. The tenure by which a homestead is held by the survivor of a community depends upon the nature of the title to the land from which the homestead is selected. If it is selected from community property in the lifetime of both spouses, it vests in the survivor in fee, and becomes his or her separate property. If it is selected from separate property, it goes, on the death of the person from whose property it was selected, to the heirs or devisees of such person, sub- ject to the power of the court to assign it for a limited period to Probate — 39 610 PROBATE LAVT AND PRACTICK the famUy of tte decedent: Estate of Gilmore, 81 Cal. 240, 243; 22 Pac. Eep. 655. BEFGBENCES. Bights of children in decedents homestead: See tfbte 56 L. B, A> 33-89. 17. Exemption of homestead. (1) In general. Where a wife, after the death of her husband, continues to reside upon the family homestead, although she is its sole occupant, it is exempt against her own creditors, as well as the creditors of her husband's estate, irrespective of the time the indebt- edness was incurred, and without regard to which spouse held the legal title to the property during their married life: Weaver v. First Nat. Bank (Kan.), 94 Pae. Eep. 273. The use of merely formal phrases will not make a devise of a homestead subject to the payment of the testator's debts. To do so, the language employed must be unequivo- cal and imperative. A wife, upon the death of her husband, may elect to take title under his will to their homestead, which she con- tinues to occupy, without subjecting it to the payment of his debts; Cross V. Benson, 68 Kan. 495; 75 Pae. Bep. 559. (2) Policy of the law. The provisions of the Civil Code of Cali- fornia, by which the wife is authorized to select a home for herself and the family out of the separate property of the husband, that shall be exempt from the effect of misfortune or improvidence on his part, as well as from the importunity or rapacity of his creditors, have been enacted in pursuance of the public policy declared in the constitution, and, being remedial in their nature, are to receive a liberal construction: Warner v. Warner, 144 Cal. 615, 618; 78 Pae. Bep. 24; Sanders v. Bussell, 86 Cal. 119; 21 Am. St. Eep. 26; 24 Pae. Bep. 852; Both v. Insley, 86 Cal. 134; 24 Pae. Bep. 853. To the extent that these provisions are enacted in the interest of the wife, the policy in pursuance of which they are enacted, as well as the- purposes of their enactment, is to be considered in the construction of any agreement by her in reference thereto. She is not to be held t» have surrendered the rights conferred by these provisions, except by clear and expressive language: Warner v. Warner, 144 Cal. 615, 618;. 78 Pae. Eep. 24. Having regard to the policy of the law, it seems- plain that only the homestead, or the homestead estate, if it may be so called, is thus exempted from creditors' claims, and that the law evinces no such tenderness or regard for the heirs (except in the case of estates in value of less than fifteen hundred dollars) as would justify the conclusion that it means to prefer their claims to the claims of the creditors of the estate. In other words, the manifest policy of the law is to subject all property, excepting that exempt from execution, the homestead estate, and the property of estates- HOMESTEADS. 611 in value less than fifteen hundred dollars, to just claims of crp'litors: Estate of Tittel, 139 Cal. 149, 153; 72 Pac. Eep. 909. (3) Construc^on of codes. In section 1474 of the Code of Civil Procedure of California, dealing with the case of the homestead selected from the separate property of its owner during his lifetime, the law is particular to declare that it shall not \>e subject to the payment of any debt or liability contracted by or existing against the husband or wife, or either of them, at the time of the death of such husband or wife, except as provided in the Civil Code of that state. Section 1265 of the Civil Code of said state, with like particu- larity, provides that, " upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, sub- ject 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." In section 1468 of the Code of Civil Procedure of that state, there is no such provision, and the simple language is, that title vests in the heirs. This distinct difference is well founded in reason. The law has regard for the family as the basic unit of society, and for that reason protects the family home. In the case of the death of either spouse, in contemplation of the situation of minor and dependent children, it makes provision securing the surviving spouse and such children in the homestead. And where the estate is of small value, the law entirely cuts ofE the rights of the creditors, deeming it of paramount importance that the property of the deceased should be devoted to the maintenance and support of the family. Moreover, in the case of a homestead declared during the lifetime of the owner, all who may give credit to the family do so with knowledge that they can have no recourse to the homestead for their debts. But where a homestead was set apart to the widow out of the separate estate of her deceased husband during widowhood, the estate of his heirs is alienable at their pleasure, and alienable by operation of law, and is likewise subject to the just demands of creditors of the estate: Es- tate of Tittel, 139 Cal. 149, 153; 72 Pac. Eep. 909. Section 1468 of the Code of Civil Procedure of California, fixing the title of the prop- erty selected as a homestead for the use of the surviving husband or wife and the minor children, does not effect such a direct statutory distribution of the property as both to remove it from the adminis- trative control of the court in probate, and at the same time from the reach of the creditors of the estate: Estate of Tittel, 139 Cal. 149, 150; 72 Pac. Eep. 909. But those who acquire the title of a suc- cessor to a homestead hold the property under the same exemption as did the person to whose interest they have succeeded: Estate of Fath, 132 Cal. 609, 612; 64 Pac. Eep. 995. 612 PKOBATE LAW AND PRACTICE. (4) " Family " of owner. Although, under the provisions of the Kansas constitution, " a homestead occupied as a residence by the family of the owner shall be exempt from forced sale under any pro- cess of law," a right to exemption cannot originate without the ex- istence of a family, — of a household consisting of more than one per- son, — yet when the homestead character has once attached, it may persist for the benefit of a single individual, who is the sole surviv- ing member of the family: Weaver v. First Nat. Bank (Kan.), 94 Pae. Eep. 273, overruling EUinger v. Thomas, 64 Kan. 180; 67 Pac. Eep. 529. Under the terms of the constitution of Kansas, the area and appurtenances of the home are expressly limited; the beneficiary of the right is expressly limited; the manner of its enjoyment is expressly limited; the method of transferring the estate and the land it covers is expressly limited; the charges which may be made are expressly limited; and the character of process upon which it may be sold is expressly limited: but the time during which occupation by the family of the owner shall be a barrier against its appropriation for debts is not limited. There is no time appointed beyond which it shall not endure; and so long as family occupation as residence per- sists, no creditor may intrude upon the sanctity of the homestead demesne. Hence, if a husband and wife occupy a tract of land Be- longing to him as a homestead, she is the " family " of the owner, within the meaning of the constitution; and his death does not deprive her of the right to continue to be so designated, in order to maintain the homestead, to which she takes title, and which she con- tinues to occupy free from forced sale under process of law for the payment of his debts; and, though the statute of descents and dis- tribution may enlarge the right of an exemption of real estate from appropriation to the payment of debts, yet it cannot restrict the constitutional guaranty: Cross v. Benson, 68 Kan. 495; 75 Pac. Bep. 558, 561. In Oklahoma, he who claims a homestead as exempt on the ground that he is " the head of a family " must be able to show that there are others besides himself, who together form the family, and who are legally dependent upon him, and whom he is legally obliged to care for: Betts v. Mills, 8 Okl. 351; 58 Pac. Eep. 957. The owner of eighty acres of farming-land, occupied by himself and wife as their homestead, died; the widow continued to occupy it as a homestead; their children had all arrived at the age of majority and lived in homes of their own. It was held that the widow was " the family of the owner," and, as such, was entitled to hold the homestead exempt from the payment of the debts of her husband so long as she continued to occupy it: Aultman, M. & Co. V. Price, 68 Kan. 640; 75 Pae. Eep. 1019. Where a man died intestate, and his widow continued to reside on the farm as a homestead, but, in proceedings brought in the probate court by the creditors of the intestate's estate, it appeared that the children had attained their HOMESTEADS. 613 majority and were living elsewhere; that the widow had previously conveyed to her daughter an undivided one-half interest in the farm, but in the deed conveying such interest had preserved to herself the possession, use, and profits of the land during her lifetime; and that she had not only not abandoned the homestead, but, on the contrary, was intending to make the farm her home as long as she lived, her support being derived from the rental thereof, — it was held that an order from the probate court directing the administrator to sell an undivided one-half interest in the farm for the payment of debts owing by deceased was erroneous: Harelerode v. Green, 8 Kan. App. 477; 54 Pac. Eep. 505. If, however, a man and his wife have a homestead, and both die, leaving no minor children, and none of their children ever resided upon the land, no conveyance of which was made while it was occupied as a homestead, such land, after the death of both husband and wife, is subject to sale for the payment of the debt of the husband, which he owed at the time of his death, and it is the duty of the executor or administrator of his estate to sell the land for the payment of his debts, where the husband left no real or personal property, other than the land so occupied as a homestead: Stratton v. McCandliss, 32 Cal. 512; 4 Pac. Eep. 1018, 1021. (5) Limit as to value. In California, no limit is placed by the code on the amount of property that may be claimed as a homestead, ex- cept to confine it to the value of five thousand dollars, and, however great the area, no division can be had in court except for excess of that amount in value: Payne v. Comings, 146 Cal. 426, 429; 106 Am. St. Bep. 47; 80 Pac. Eep. 620. To the extent that an indivisible home- stead exceeds five thousand dollars in value, it may be subjected to the payment of the debts of the deceased, but not until after all other available assets of the estate are exhausted: Calmer v. Calmer (N. D.), 106 N. W. Eep. 684. 18. Alienation of homestead. Where the statute provides that one half of the real estate of which the deceased dies seised shall " be- long " to his widow, and the remainder to his child or children, and that the person succeeding to the title of " successors to homesteads " have all the rights of the persons whose interest they acquire, a wife, having minor children by a former, deceased husband, may convey to her second husband less than one half of the premis'es set apart to her and her children as a homestead from the estate of her deceased husband: McHarry v. Stewart (Cal.), 35 Pac. Eep. 141, 142, 143. So where the homestead was selected from the separate property of the husband, -who joined in its selection as a homestead, title thereto vested in him at the death of his first wife, and, although he marries a second time, he alone may mortgage the homestead with- out his second wife's signature: Dickey v. Gibson, 113 Cal. 26, 31, 32; 614 PROBATE LAW AND PRACTICE. 54 Am. St. Eep. 321; 45 Pae. Eep. 15. And if the title to a home- stead occupied by husband and wife is in the husband, he may devise the entire property to her by will: Martindale v. Smith, 31 Kan. 270; 1 Pae. Eep. 569, 572. In Utah, a husband may, by will, dispose of the homestead property in excess of the homestead limit. If the estate is insolvent, or below the homestead limit in value, the home- stead right of the widow attaches; but if the estate is solvent and out of debt, the value of such part of the homestead as may be set apart to the widow should be deducted from her distributive share, unless it clearly appears from the will that the decedent designed the testa- mentary provision for the widow to be in addition to such share: In re Little, 22 Utah, 204; 61 Pae. Eep. 899, 901. 19! Presentation of claims. (1) In general. Purpose of law. The evident purpose of the legis- lature in providing that if there be subsisting liens or encumbrances on the homestead, the claim secured thereby must be presented and allowed, the same as other claims against the estate, was undoubtedly to preserve the homestead estate, if possible: Camp v. Grider, 62 C.rI. 20, 26. The general proposition that a mortgage upon the homestead cannot be enforced unless a claim therefor had been duly presented tr the administrator is settled; but this rule applies exclusively to "-V*, property described in the mortgage which is impressed with the char- acter of the homestead. The rule, in California, which requires % mortgage upon the homestead to be presented to the administratat as a claim is based upon the provisions of section 1475 of the Code of Civil Procedure of that state, and is limited to cases in which the homestead does not exceed five thousand dollars in value, or in which the mortgagee seeks to proceed in foreclosure of his mortgage against the property that is eventually set off as a homestead, where the premises described in the homestead declaration exceed five thousand dollars. It does not apply at all to a probate homestead: Bank of Woodland v. Stephens, 144 Gal. 659, 663, 664; 79 Pae. Eep. 379. (2) Necessity of presentment. Before a suit can be commenced to foreclose a mortgage upon a homestead which was selected and recorded prior to the death of the decedent, it is necessary to present a claim upon the demand against the husband's estate to the executor or administrator of the estate for allowance. This is an exception to the general rule as to mortgages and other liens, and the reason for it is to preserve the homestead, if possible: Wise v. Williams, 88 Cal. .^0, 33; 25 Pae. Eep. 1064; McGahey v. Forrest, 109 Cal. 63, 67; 41 Pae. Eep. 817. A mortgage of a homestead on community property must be presented before an action can be maintained thereon for its foreclosure: Perkins v. Onyett, 86 Cal. 348, 350; 24 Pae. Bep. 1024; Bollinger v. Manning, 79 Cal. 7, 11; 21 Pae. Eep. 375; Sanders HOMESTEADS. 615 V. Eussell, 86 Cal. 119; 21 Am. St. Eep. 26; 24 Pac. Eep. 852; Wise v. Williams, 88 Cal 30; 25 Pac. Eep. 1064; Mechanics' B. & L. Assoc. V. King, 83 Cal. 440; 23 Pac. Eep. 376; Hibernia Sav. & L. Soc. v. • Hinz, 4 Cal. App. 626; 88 Pac. Eep. 730, 731. And such presentation is not excused by the fact that the entire estate is homestead prop- erty: Bollinger v. Manning, 79 Cal. 7, 11; 21 Pac. Eep. 375. Where a homestead has been declared upon the property, it is necessary to present a claim against the husband's estate, notwithstanding a ■waiver in the complaint in an action of foreclosure of all recourse against the property of the estate other than that mortgaged: Wise V. Williams, 88 Cal. 30, 33; 25 Pac. Eep. 1064; Perkins v. Onyett, 86 ■Cal. 348; 24 Pac. Eep. 1024. A presentation of a mortgage note with- out a presentation of the mortgage is insufficient: Perkins v. Onyett, 86 Cal. 348, 350; 24 Pac. Eep. 1024. The mortgage of a homestead has no effect upon its character as a homestead, but the property thereby becomes subject to the lien of the mortgage, and during the mortgagor's lifetime is subject to foreclosure and sale in an action by the plaintiff therefor. But upon the mortgagor's death the pro- visions of section 1475 of the Code of Civil Procedure of California become operative, and require the plaintiff, as holder of the mortgage, to present his claim secured thereby for allowance, as other claims against the estate, and, after the presentation, the plaintiff has the right to have the claim paid out of the general funds of the estate, so far as these funds are available, and to enforce the lien of his mortgage against the homestead for any deficiency remaining after such payment. His failure to make such presentation deprives him of the right to enforce his mortgage for any part of the claim: Hibernia Sav. & L. Soc. v. Hinz, 4 Cal. App. 626; 88 Pac. Eep. 730, 731. Where the homestead was declared upon community property, and a judgment is recovered against the owner, it is the duty of the judgment creditors, upon the death of the judgment debtor, to pre- sent the judgment to the executor or administrator for allowance, in like manner as any other claim: Sanders v. Eussell, 86 Cal. 119, 121; 21 Am. St. Eep. 26; 24 Pac. Eep. 852. , If a mortgagee neglects to present his claim of mortgage upon a homestead given to secure a note executed by the husband and wife, he not only deprives him- self of the right to foreclose the mortgage, but at the same time deprives himself of the right to an action upon the note. And he will not be permitted, without the consent of the mortgagor, to release the mortgage for the purpose of bringing an action upon the note: Hibernia Sav. & L. Soc. v. Thornton, 109 Cal. 427, 429; 50 Am. St. Eep. 52; 42 Pac. Eep. 447. If the mortgage covers a home- stead upon the separate property of the wife, the mortgagee may foreclose without presenting a claim against the husband's estate, if he waives all claims against it: Bull v. Coe, 77 Cal. 54, 63; 11 Am. St. Eep. 235; 18 Pac. Eep. 808. If the homestead did not exist at the 616 PROBATE LAW AND PRACTICE. time of the death of the deceased, but was set apart subsequently by the probate court, it is not necessary to present the mortgage claim if the mortgagee waives all recourse against the decedent's estate, other than the property mortgaged: McGahey v. Forrest, 109 Cal. 63, 68; 41 Pac. Eep. 817; Sehadt v. Heppe, 45 Cal. 433. The rule that a mortgage can be foreclosed without the presentation of a claim against the estate applies to probate homesteads: McGahey v. For- rest, 109 Cal. 63; 41 Pac. Bep. 817; Browne v. Sweet, 127 Cal. 332; 59 Pae. Eep. 774; to a case where a homestead existed at the date of mortgage, but was abandoned before death: Bank of Suisun v. Stark, 106 Cal. 202; 39 Pac. Kep. 531; and to mortgages on land given at the time of its purchase: Byan v. HoUiday, 110 Cal. 335; 42 Pac. Eep. 891. And the settlement and distribution of the estate is no bar to the right to foreclose the mortgage against the distributees of the mortgaged lands, or the grantee of such distributees: Dreyfuss V. Giles, 79 Cal. 409; 21 Pae. Kep. 840; and it is immaterial that the action of foreclosure has not been commenced until after the time for the presentation of claims has expired: Anglo-Nevada Assur. Corp. V. Nedeau, 90 Cal. 393; 27 Pac. Eep. 302. SEFERENCES. Concerning suits on mortgage claims against homesteads, see note § 481, post. (3) Statute of limitations. If a mortgage on a homestead, and the note secured thereby, have been presented to the executor or admin- istrator of the estate, and have been properly allowed, an action against the estate to. foreclose the mortgage is not affected by the statute of limitations, pending proceedings for the settlement of the estate: Wise v. Williams, 72 Cal. 544, 548; 14 Pae. Eep. 204. If it does not appear what, if any, interest the wife had in the home- stead property at the time the mortgage was made, and no claim is presented against her separate estate, the allowance of a claim against the estate of the husband stops the running of the statute of limita- tions, so far as the wife's rights, as successor of her husband, are concerned: Wise v. Williams, 88 Cal. 30, 35; 25 Pae. Eep. 1064. The mortgagee of a homestead must present his claim for allowance, or he can have no deficiency judgment against the estate, but must look only to the mortgaged property; and if he would charge a joint obligor or mortgagor, he must bring his action against him within four years from the maturity of the principal obligation: Vandall v. Teague, 142 Cal. 471, 476; 76 Pac. Eep. 35. 20. Foreclosuie without presentment. The separate property of a survivor is not a part of the estate of the decedent; and if all demands against the estate are waived, it is not necessary or proper HOMESTEADS. 617 to present a mortgage upon such separate property as a claim against the estate. Whatever may be the nature of the interest which the husband acquires of his wife's separate property by virtue of a homestead, it vests in her at his death. It is not a part of his estate. Hence if a mortgage covers a homestead upon the wife's separate property, and the creditor waives all claims against the husband's estate, it is not necessary for him to present a claim against such estate before bringing an action to foreclose his mortgage: Bull V. Coe, 77 Cal. 54, 62, 63; 11 Am. St. Eep. 235; 18 Pac. Eep. 808; overruling former opinion, 15 Pac. Eep. 123. It is not necessary to present a mortgage claim to the executor or administrator for allow- ance, before bringing suit thereon, if no claim is made against the assets of the estate for a deficiency, and recourse is waived as to any property of the estate of the mortgagor other than that described in the mortgage: Schadt v. Heppe, 45 Cal. 433, 437. The provisions of section 1475 of the Code of Civil Procedure of California do not apply to land which is eventually determined not to be a homestead; and a mortgagee of such lands is not required to present his claim to the executor or administrator as a condition precedent to his right to fore- close the mortgage on the excess: Bank of Woodland v. Stephens, 144 Cal. 659, 664; 79 Pac. Eep. 378. So the provisions of section 1475 have no application where a note and mortgage were executed by a husband alone upon community property, where the wife filed a declaration of the homestead upon the land described in the mortgage, but died before the commencement of the action to foreclose, and had not signed the note to the plaintiff, and there was no claim against her estate. The property described in the mortgage, being, community property, vested, upon the wife's death, in the husband, as the sur- vivor both of the community and of the homestead. In such a case it is not necessary that any claim should be presented against the wife's estate before the foreclosure of the mortgage: Bay City etc. Assoc, v. Broad, 136 Cal. 525, 527; 69 Pac. Eep. 225. Although a homestead is abandoned before the mortgagor's death, the fact that a homestead exists on the premises at the time the mortgage thereon is executed does not require a presentation of the claim against the estate of the deceased mortgagor. The mortgagee may foreclose without present- ment of his claim, where his complaint in foreclosure expressly waives all recourse against any other property than that described in the mortgage: Bank of Suisun v. Stark, 106 Cal. 202, 204, 208; 39 Pac. Eep. 531. Property which has ceased to become a homestead is subject to the foreclosure of a mortgage thereon without the presentation of a claim to the executor or administrator: Weinreich v. Hensley, 121 Cal. 647, 656; 54 Pac. Eep. 254. 21. Iiieus and payment. The court has jurisdiction over the homestead for the purposes specified in the statute, and if the court, 618 PEOBATB LAW AND PRACTICE. from ignorance of the fact that there was a homestead, or by inad- vertence or a mistake of law, makes an order not aluthorized by the statute, its proceedings, however erroneous, are not without jurisdic- tion, and are valid as against a collateral attack: Ions v. Harbison, 112 Cal. 260, 267; 44 Pac. Eep. 572. It is proper for the court to set apart a homestead out of or embracing the common property which is subject to a mortgage, and the widow is then in a position to effect a sale of the rest of the property, and the application of the proceeds to the payment of the mortgage, under section 1475 of the Code of Civil Procedure of California, or in case of foreclosure, to ask that the mortgaged property not set apart be first sold, and the proceeds applied, leaving the homestead liable for the remainder only: Lord v. Lord, 65 Cal. 84, 86; 3 Pac. Eep. 96. But that section, which makes provision for the extinguishment of liens and encumbrances on tomesteads, is limited exclusively to homesteads declared during the lifetime of the spouses. The law has not seen fit to make the same ■provision as to probate homesteads: Estate of Huelsman, 127 Cal. 275, 277; 59 Pae. Eep. 776. The levy of an execution upon homestead property creates no lien, but simply a foundation for proceedings, under the statute, for the ascertainment of the value of the property covered by the declaration of homestead, and the procurement of an order for the partition or sale thereof, and the application of the excess to the satisfaction of the judgment: Sanders v. Eussell, 86 Cal. 119, 120; 21 Am. St. Eep. 26; 24 Pac. Eep. 852. Valid liens existing on a homestead, created before the death of the head of a family, must be enforced in a court of equity: Estate of Orr, 29 Cal. 101, 104. 22. Determination of right. If the survivor, in whom a homestead is vested, afterwards mortgages it and dies, there i§ no presumption that no family is left surviving and that the homestead exemption has terminated. The burden of proof of those facts is upon the holder of a mortgage who asserts them: Hibernia Sav. & L. Soe. v. Hinz, 4 Cal. App. 626; 88 Pac. Eep. 730, 731. The death of the husband does not affect the homestead character of property selected by him, in his life- time, from his separate estate as a homestead, but such homestead character continues so long as the property remains a homestead. It ceases, however, upon the death of his wife, leaving no minor child, for then there is no family for whose benefit the exemption exists; and if she dies intestate, the property passes to her heirs, under the laws of succession: Estate of Fath, 132 Cal. 609, 612; 64 Pac. Eep. 995. If the homestead was selected from the separate estate of a spouse, without the owner's consent, the property, upon the death of the owner, ceases to have the incidents of a homestead, and vests in his heirs, free from any such limitation, unless it is afterwards selected and set apart as a homestead by an order of the court: Weinreich v. Hensley, 121 Cal. 647, 655; 54 Pae. Eep. 254. HOMESTEADS. 619 23. Partition of homestead. The estate in land set apart for a limited pf riod out of the separate estate of a decedent as a homestead vests in those declared by the statute to be entitled to it, but subject to the assignment of such homestead by the court, and, at the expira- tion of the time limited for its existence, is subject to partition as though no homestead had been created: McHarry v. Stewart (Cal.), 35 Pac. Rep. 141, 142. So long as the homestead is occupied by the family of the deceased, and until the widow again marries, or the children arrive at the age of majority, no partition of the homestead can be made: Hafer v. Hafer, 33 Kan. 449; 6 Pac. Eep. 537, 547. But where a widow, the head of a family, occupies certain real estate as a homestead, and dies intestate, leaving heirs, some of whom are minor children, who continue to reside upon and to occupy said homestead as a residence, such residence is not exempt from partition, for the reason that all of the children of said widow have not arrived at the age of majority: Martell v. Trumbly, 9 Kan. App. 364; 58 Pac. Eep. 120. n. FBOBATE HOMESTEADS. 1. In general. Where no homestead has been selected and recorded during the lifetime of the decedent, it is the duty of the court to desig- nate and set apart a homestead out of the community property, if any there be, and if not, then out of the separate property of the decedent: Estate of Davis, 69 Cal. 458; 10 Pac. Eep. 671; Estate of Lahiff, 86 Cal. 151, 153; 24 Pac. Eep. 850; and it may be done from any property suitable for the purpose: Estate of Sharp, 78 Cal. 483; 21 Pae. Eep. 182. If there are no minor children, then the homestead is for the surviving wife or husband alone: Estate of Lahi£E, 86 Cal. 151, 153; 24 Pac. Eep. 850; but if taken from the separate property of the decedent, it can be for only a limited period: Estate of Lahiff, 86 Cal. 151, 153; 24 Pac. Eep. 850. The statute authorizing the court to set aside all property exempt from execution, including the homestead, authorizes the setting aside of the homestead in connection with and in addition to the per- sonal property exempt from execution: Estate- of Busse, 35 Cal. 310, 314, 315; and the insolvency of an estate does not prevent a court from setting apart a probate homestead: Estate of Adams, 128 Cal. 380; 57 Pac. Eep. 569. If a husband dies, and his widow, in ignorance of her right to a homestead, joins in a transfer of the property, and afterwards purchases it herself, this is not evidence of any abandon- ment of her homestead right, and she is entitled to have the property set aside to her as a homestead: Smith v. Ferry, 43 Wash. 460; 86 Pac. Eep. 658. A stranger is not entitled to enter into possession of home- stead premises as a tenant in common and interfere with the occupancy and control by the homestead claimants, as this would be inconsistent with the very nature of a homestead, and violative of the very pur- pose for which homesteads are created; namely, to secure a home for those clothed with a homestead right, — to each and all of them: 620 PROBATE LAW AND PEACTICB. Moore v. Hoffmaa, 125 Gal. 90, 92; 73 Am. St. Eep. 27; 57 Pac. Eep. 769. If a homestead is set apart to the widow out of her deceased husband's separate estate, the interest of his heirs in remainder is liable for debts against the estate, or charges against it, such as a family allowance made in favor of the widow. The statute was not designed to effect a statutory distribution of the estate so as to place it beyond the reach of creditors: Estate of Tittel, 139 Cal. 149, 150, 153; 72 Pac. Bep. 909. 2. Definition of homestead. Where the statute authorizing the court to set apart a probate homestead for the use of the widow and children does not define such homestead, resort must be had to the general law for such definition. The homestead represents the dwelling-house at which the family reside, with the usual and cus- tomary appurtenances, including out-buildings of every kind necessary or epnyenient for family use, and lands used for the purpose thereof. If situated in the country, it may include a garden or farm. If situ- ated in a city or town, it may include one or more lots, or one or more blocks. In either case, it is unlimited by extent, and is not cir- cumscribed by fences. It need not be in a compact body; on the contrary, it may be intersected by highways, streets, or alleys. In respect to quantity, by itself considered, it is unlimited, whether in town or country. In short, the only tests are use and value. Whatever is used — being necessary or convenient — as a place of residence for the family, as contradistinguished from a place of business, constitutes a homestead. If, however, it is also used as the place of business by the family, as frequently happens, it may not therefore cease to be a homestead, if it would be necessary or convenient for family use, inde- pendently of the business. The homestead, and the tests by which it is ascertained, are the same, whether the question arises between those claiming the homestead, or one of them and a vendee, a mortgagee, a creditor, or the heirs of the deceased husband or wife. There is not one homestead as against a creditor, and a different one when the survivor asserts his or her claims as against the heirs of the deceased: Gregg V. Bostwick, 33 Cal. 220, 227; 91 Am. Dee. 637; Estate of Delaney, 37 Cal. 176, 179; Keyes v. Cyrus, 100 Cal. 322, 324; 38 Am. St. Bep. 296; 34 Pac. Bep. 722; Estate of Garrity, 108 Cal. 463, 468; 38 Pac. Bep. 628; 41 Pac. Eep. 485; Moore v. Hoffman, 125 Cal. 90, 92; 73 Am. St. Bep. 27; 57 Pac. Eep. 769. A probate homestead differs from the case of a homestead created during the existence of the community by a compliance with the statute, the title to which vests in the sur- vivor: Estate of Boland, 43 Cal. 640, 642. 3. Residence not essential. It is not essential to the validity of a homestead set apart to the surviving husband or wife, by order of the court, that the property be actually occupied at the time when the HOMESTEADS. 621 order is made: Estate of Noah, 73 Cal. 590, 592; 2 Am. St. Rep. 834 j 15 Pac. Rep. 290. Nor does the court make it requisite that the deceased should have resided on the property at the time of his death in order that the court may set apart a homestead for the use of the family, but authorizes the court to set apart any portion of the estate which is suitable for a homestead: Estate of Pohlmann, 2 Cal. App. 360; 84 Pac. Rep. 354, 355; Estate of Bowman, 69 Cal. 244. 4. Purpose and co:istrnction of statute. Mandatory nature of pro- ceeding. The word "may," in public statutes, is often used for must," or " shall," and is construed imperatively; and the statute which directs that the court " may," on its own motion, or on petition, set apart " for the use of the family all property exempt from execu- tion including the homestead is to be construed as " shall," and the court has no discretion to refuse the application. It was not intended to leave to the court's discretion the question whether or not the per- sonal property exempt by law from execution, or the homestead selected under the provision of the general homestead law, should be set apart; and there is no more reason to suppose that it was intended he should exercise a discretion in reference to setting apart a probate homestead. The statute is mandatory in its nature: Estate of Ballen- tine, 45 Cal. 696, 699; Estate of Wixom, 35 Cal. 320, 323; Estate cf Davis, 69 Cal. 458; 10 Pac. Rep. 671; Kearney v. Kearney, 72 Cal. 591; 15 Pac. Rep. 769; Demartin v. Demartin, 85 Cal. 71, 75; 24 Pac. Rep. 594; Estate of Lahiff, 86 Cal. 151, 153; 24 Pac. Rep. 850. Under the statute of Utah, the widow and minor child arg entitled to a homestead of the value of two thousand two hundred and fifty dollars out of the real property of the estate, and to all of the exempt personal property of decedent: In re Syndergaard's Estate (Utah), 88 Pac. Rep. 616, 617. It is only in cases where the court sets apart a homestead for a limited period that it can exercise discretion: See subd. 16, infra, " Limited Homestead." The fact that a widow, after the death of her husband, gives a quitclaim deed is no ground for refusing to set apart to her as a homestead, from the separate property of her deceased husband, a portion of the land conveyed by such deed: Estate of Moore, 57 Cal. 437, 443. Section 1485 of the Code of Civil Procedure of California does not apply to probate homesteads: Estate of Moore, 57 Cal. 437, 443; and section 1465 of the same code purports to deal merely with the descent of the property from which the homestead was selected; but the power of the court to assign the homestead, and upon whose exercise a limitation upon the estate of the heirs is created, is given in the section last named, and the provisions of the latter section are to be read in connection with the provisions of section 1474 of the same code: Weinreich v. Hensley, 121 Cal. 647, 653; 54 Pac. Rep. 254. 5. Klght paiamount to testamentary disposition. The right of the widow of a decedent, and of his minor children, to have a probate 622 PROBATE LAW AND PRACTICE. homestead set apart to them out of the estate is paramount to thai of testamentary disposition. Thus, although a farm had been specifically- devised, one half to the widow and the other half to the children, it is competent for the probate court to set it aside as a homestead, for the right of a testator to devise is subordinate to the power in the probate court to sequester and set apart the property for the shelter, care, and support of the family: Estate of Huelsman, 127 Cal. 275; 59 Pae. Bep. 776. The power of testamentary disposition of property as conferred and defined by the statute is not paramount, but is subordinate to the authority 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 ehUd or children, as well as for the payment of the debts of the estate: Sulzberger v. Sulzberger, 50 Cal. 385, 387. The power or duty of the court to set aside a probate homestead is not limited by the fact that the decedent left a will by which he disposed of the property sought to be set aside: In re Davis, 69 Cal. 458, 460; 10 Pae. Bep. 671. 6. Application. Jurisdiction. It is not for a court of law, in an action of ejectment, to set apart premises as a homestead; that func- tion appertains to a court sitting in probate in the matter of the estate of the deceased: Eichards v. Wetmore, 66 Cal. 365, 366; 5 Pae. Bep. 620. When the surviving wife petitions to have the homestead set off to her, it ought to be shown what the homestead was at the time of the husband's death: Estate of Delaney, 37 Cal. 176, 182. The obvi- ous purpose of the statute is to provide the family of the deceased with a home, where they may live and be protected as against creditors and heirs; and it is made the duty of the court to select and set apart for that home such part of the estate, consisting of a dwelling-house, and the land on which the same is situated, as, in view of the value of the estate and all the circumstances surrounding it, shall seem just and proper. The court is not bound by the wishes of the applicant, but should exercise its own discretion or good judgment; and unless that discretion is abused, its action will not be disturbed on appeal: Estate of Schmidt, 94 Cal. 334, 337; 29 Pae. Eep. 714. It is immaterial, how- ever, whether the probate court acts on petition or on its own motion in setting apart a homestead to the widow, or widow and children, where no homestead had been selected and recorded during the dece- dent's lifetime: BuUerdich v. Hermsmeyer, 32 Mont. 541; 81 Pae. Eep. 334. The guardian of a minor has authority to petition the court to set apart a homestead to such minor: Estate of Pohlmann, 2 Cal. App. 360; 84 Pae. Eep. 354, 356. The jurisdiction of a probate court to set aside a homestead- to the surviving wife is not subject to the condition that she does not have any other property, or any other property suit- able for a home. Such jurisdiction is excluded only when she has already a legal homestead, and a mere place fit to reside in is not a homestead, unless it has been impressed with that character by certain HOMESTEADS. 623 acts required by law to be done for that purpose. The power and duty of the court to set apart the homestead is not, in any part of the stat- utory law, limited to a case where the widow has no other property;- and if she has other property, it matters not how she obtained it, whether under her husband's will or otherwise. Her right to a probate homestead is an independent right, which she has in addition to any other right or property which she may hafe: Estate of Firth, 145 Gal. 236; 78 Pac. Eep. 643, 644. On an application of a surviving widow to have a probate homestead set apart to her, and where the only ■question involved is whether or not she should have the homestead, the adjudication should be limited to that question; and the court has no jurisdiction to undertake to adjudicate heirship. That is a question which should be determined in an appropriate action or proceeding in which the issue of heirship properly arises: Estate of Firth, 145 Gal. 236; 78 Pac. Kep. 643, 645. After the court has set apart community property as a homestead to the widow, it has no further jurisdiction over it for any purpose of distribution: Estate of Gilmore, 81 Cal. 240, 243; 22 Pac. Eep. 655. Application for a homestead may be made upon the return of the inventory, or at any subsequent time during the administration. The application does not come too late if made before the administration of the estate is clospd: Estate of Still, 117 Cal. 509; 49 Pac. Kep. 463, 465. The power of the court to set aside a home- stead is not defeated by the action of the executor in negotiating a sale which is unconfirmed, before the decree setting apart the home- stead is made: Estate of LahifE, 86 Cal. 151, 154; 24 Pac. Eep. 850. 7. How to be selected. If no homestead has been selected, desig- nated, and recorded, or in case the homestead was selected by the sur- vivor 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, the homestead, for the use of the surviving husband or wife and the minor children, out of the common property, ■or if there be no common property, then out of the separate property belonging to the decedent. The selection must be made from the .common property, if there be any; it can be made from the separate property only in case there be no common property. The statute, in this regard, is clear and explicit, and admits of no question: liord V. Lord, 65 Cal. 84, 86; 3 Pac. Eep. 96; Estate of Lahiff, 86 Gal. 151; 24 Pac. Eep. 850; Estate of Schmidt, 94 Cal. 334; 29 Pac. Eep. 714; "Weinreioh v. Hensley, 121 Cal. 647;^4 Pac. Eep. 254. It is to be observed in this connection, however, that if the homestead is selected out of the separate estate of the decedent it is " subject to the power ■of the superior court to assign it for a limited period to the family of the decedent." It 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, subject to such order. This is so in California because the provision in section 1468 of the Code of Civil Procedure of that state, which pro- 624 PEOBATE LAW AND PRACTICE. vides that " if the property set apart be a homestead, selected from the separate 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 subject to such order," has been held to apply to probate homesteads selected and set apart by the court: Estate of Schmidt, 94 Cal. 334; 29 Pac. Eep. 714; Weinreich v. Hensley, 121 Cal. 647; 54 Pac. Eep. 254; Estate of Lahiff, 86 Cal. 151; 24 Pac. Eep. 850; and see infra, subd. 16, " Limited Homestead." But it is only in cases where a homestead is set apart from the separate prop- erty of the deceased that it is required to be for a limited period: Phelan v. Smith, 100 Cal. 158, 170; 34 Pac. Eep. 6'67. 8. Procedure and practice. The code does not point out the steps to be pursued in setting apart a homestead, where none has been declared by the husband and wife, or one of them, during the lives of the parties, and in such cases the court may adopt any suitable method of procedure conformable to the spirit of the code: Phelan v. Smith, 100 Cal. 158, 169; 34 Pac. Eep. 667. In a proceeding to set apart a homestead to the widow and children of the decedent, title may be examined, but cannot be tried. That should be determined in some appropriate action brought for the purpose of settling the question. The question of the validity of adverse title claimed by contestants in the property sought to be set apart as a homestead is not proper to be litigated in such a proceeding: Chalmers v. Stockton B. & L. Soc, 64 Cal. 77; 28 Pac. Eep. 59; Estate of Burton, 64 Cal. 428; 1 Pac. Kep. 702; Estate of Groomes, 94 Cal. 69, 72; 29 Pac. Eep. 487; Estate of Kimberly, 97 Cal. 281; 32 Pac. Eep. 234; Dickey v. Gibson, 121 Cal. 276; 53 Pac. Eep. 704. The court will not pass upon the validity of mortgages upon the homestead property: Chalmers v. Stockton B. & L. Soc, 64 Cal. 77, 78; 28 Pac. Eep. 59. In the regular course of proce- dure, a homestead should be set apart at once upon the coming in of the inventory showing its existence, but, if not then done, it may be done at any subsequent time during administration. When thus set apart, it is properly withdrawn from administration, and the adminis- trator has no further concern in it: Estate of Still, 117 Cal. 509; 49 Pac. Sep. 463, 465. 9. Appraisement. The statute of Washington does not seem ta require appraisers, in a proceeding to set aside certain property of an intestate as a homestead to his widow, where there is no evidence that the property is worth more than seventeen hundred dollars: Smith v. Perry, 43 Wash. 460; 86 Pac. Eep. 658, 659. 10. Property subject to. It is expressed in some of the older cases that; no property could be set apart as a probate homestead which could not have been dedicated as such under the homestead act imme- HOMESTEADS. &25 diately preceding the death of the deceased and during the continu- ance of the marriage of the spouses; and residence on the property- was considered a prerequisite to the filing of a homestead thereon: Estate of Noah, 73 Cal. 590'; 2 Am. St. Eep. 834; 15 Pae. Bep. 290; Estate of Ackerman, 80 Cal. 208; 13 Am. St. Eep. 116; 22 Pac. Bep. 141; Wickersham v. Comerford, 96 Cal. 433; 81 Pac. Bep. 358; Estate of Carriger, 107 Gal. 618; 40 Pac. Eep. 1032; In re McVay's Estate (Ida.), 93 Pac. Eep. 28, 31. But the expression, used in some of those cases, to the effect that a probate homestead can be set apart only on property which could have been dedicated under the homestead act, immediately preceding the death of the husband, must be construed to mean only that it must be property which in its character is home- stead property, — ^that is, a dwelling-house, with the land on which it is situated, and which could have been occupied as a home, — and not that it must be land on which the husband actually resided at the time of his death. In the case of a probate homestead, the court creates the homestead, and it may be carved out of any property of the estate suitable for a homestead: Estate of Gallagher, 134 Cal. 96, 97; 66 Pac. Eep. 70; Estate of Lahiff, 86 Cal. 151; 24 Pae. Eep. 850. The code does not make it requisite that the deceased should have resided on the property at the time of his death, in order that the court may set apart a homestead for the use of the family, but authorizes the court to set apart any portion of the estate which is suitable for a homestead: Estate of Pohlmann, 2 Cal. App. 360, 362; 84 Pac. Eep. 354. If property is suitable and proper for a homestead, it may be set apart as a probate homestead, although it had previously been used exclusively for business purposes: Estate of Sharp; 78 Cal. 483, 485; 21 Pae. Eep. 182. It has been held that property consisting of a four-story brick building of the value of twenty-five thousand dollars, and which was erected and occupied exclusively for business, purposes, could not be set apart as a probate homestead: Estate of Noah, 73 Cal. 590; 2 Am. St. Eep. 834; 15 Pac. Eep. 290. But if a building is the actual bona fide residence of a party, he may legally select it, and the land on which it is situated, as a homestead, even though, incidentally, a part thereof, no matter how laTge, may be used by him for other purposes than those of a family residence; and this is not in conflict with th« equally well-settled doctrine, that the use of ,the property is an important element to be considered, and that where the building is occupied by the claimant primarily for other purposes than those of residence, the occupancy of a portion thereof by him and his family being for the purpose of conducting a- business therein, and but incidental to the business, the property cannot be legally selected as a homestead. In no case has it been decided that where a portion of the building is dedicated to residence purposes, and is actually occupied by the claimant as the home of himself and his family, and such occupation is not merely incidental to the catrying Probate — 40 626 PEOBATB LAW AND PRACTICE. on of some business in other parts of the building, the building, and the land on which it is situated, cannot be legally selected as a home- stead: Estate of Levy, 141 Cal. 646, 650; 99 Am. St. Eep. 92; 75 Pae. Eep. 301. It may be true that where two or more buildings suitable for dwelling-house purposes, belonging to the claimant, are situated upon the same parcel of land, and the claimant resides in one, he can legally select but one as a homestead. But cases of this kind are dis- tinguishable from the case of a single building. Thus where an entire building is composed of three flats, one of the floors being actually occupied as the family home, the occupation being solely for the purpose of such a home, and not merely incidental to some other pur- pose, and the place so occupied is an integral part of the land on which the building stands, the fact that the building contains two other stories, so constructed that they are more adapted for renting purposes, being built with separate street entrances, cannot impair the right of the claimant to select as a homestead the building and all of the land on which it stands. While the floors of such a buildiig may con- stitute separate dwelling-places, there is but one building incapable of division, and the form of the construction of the building is imma- terial: Estate of Levy, 141 Cal. 646, 651; 99 Am. St. Eep. 92; 75 Pae. Eep. 301. 11. Property not subject to. A widow died testate, and left surviv- ing her several children, none of whom were minors. "By her will, the property was divided among her children, and the home place, on which she had resided many years, was given to a son, who did not reside therein, and who did not claim the same as a homestead. For some time before her death a married daughter, and also a granddaughter, lived with her, and after her death they continued to occupy the home place, claiming a homestead right therein. The language of the will, giving the property to the son, imported a complete transfer of ownership to him; but in another clause she recommended him to keep the home, so that if any of her children should become homeless it might be a refuge for them. On the claim of a homestead, it was held that the complete title to the land passed to the son, and that the daughter and granddaughter had no interest in the land to which the homestead right could attach: Hartman v. Armstrong, 59 Kan. 696; 54 Pae. Eep. 1046. Partnership property cannot be set apart by the probate court as a homestead to the widow of the deceased member of the firm: Kingsley v. Kingsley, 39 Cal. 665, 667. Nor can property held by the decedent as a tenant in common be set aside as a probate homestead: Estate of Carriger, 107 Cal. 618, 621; 40 Pae. Eep. 1032. Lands held in joint tenancy are aot subject to a probate homestead: Cameto v. Dupuy, 47 Cal. 79, 80. Nor can such a homestead be set apart out of farming-land upon which there is no dwelling, and which bad not been lawfully claimed as a homestead, and upon which no one HOMESTEADS. 627 resided at the time of the husband's death, such premises not being suitable for a homestead. The fact that the deceased and his widow- had, many years before the application for a, homestead, resided on the lands involved, in a dwelling-house which stood thereon; that such dwelling-house and contents had been destroyed by fire; and that both husband and wife had resided elsewhere, — does not affect the legal question presented, where no other dwelling-house was ever built on the land, and where it was not in any way, after the fire, occupied as a home: Estate of Gallagher, 134 Gal. 96, 98; 66 Pac. Eep. 70. A pro- bate homestead cannot be taken from tracts of land widely separated. If separate parcels of land are selected as a homestead, and such selec- tion may perhaps be made, tHey must, at least, be so near together that they can be occupied and used for the purposes of a homestead; and in this respect there is no difference between a homestead set apart by the court, and one selected under the homestead law: Estate of Armstrong, 80 Gal. 71, 74; 22 Pac. Eep. 79. A homestead cannot be created out of land held by the applicant as a tenant in common with others; but where a widow has no title as tenant in common in community property, which, during the administration of the estate, is subject to a probate homestead, her infant son is entitled, upon appli- cation, to have a homestead therein set apart to him: Estate of Still, 117 Cal. 509, 516; 49 Pac. Eep. 463, 465. 12. Widow's right. In general. The power and duty of the court to set apart a probate homestead is not limited to a case where the widow has no other property. Her right to a probate homestead is an independent right, which she has in addition to any other right or property which she may have: Estate of Firth, 145 Cal. 236; 78 Pac. Eep. 643, 644. Although a widow marries after she has had a probate homestead set apart to her out of the estate of her deceased husband, she may claim a homestead out of the estate of her second husband: Higgins v. Higgins, 46 Cal. 259, 265. A widow to whom a probate homestead has been set aside may maintain an action to quiet title thereto: McKinnie v. Shaffer, 74 Cal. 614; 16 Pac. Eep. 509; or eject- ment against the administrator of her deceased husband: Moore v. Moore (Gal.), 34 Pac. Eep. 90. The widow of a deceased partner is not entitled to a homestead out of the partnership property: Kingsley V. Kjngsley, 39 Cal. 665, 667. If a widow marries before an order of the probate court setting apart to her a probate homestead, she loses, by her marriage, the right to such homestead: Estate of Boland, 43 Cal. 640. If a wife, supposing her husband to be dead, marries a second time she cannot claim a probate homestead in the estate of her former husband as his widow, until the second marriage has been annulled by a competent tribunal. The second marriage is valid until so annulled: Estate of Harrington, 140 Cal. 244; 98 Am. St. Eep. 51; 73 Pac. Eep. 1000. And a widow, who has never resided in the state, is 628 PROBATE LAW AND PBACTICE. not entitled to a probate homestead, where the statute provides that all of the property exempt from oxeeution, including the homestead, of a decedent, who leaves a widow residing in the state, shall be set apart for her use^ " It is not questioned," said the court, " that the widow, in some cases, may be entitled to the homestead, although she was absent at the time of her husband's death, and although she may never have been upon the premises claimed, or within the borders of the state; but it is not so where she voluntarily ceased to be a member of her husband's family, and, by her own preference, made her home elsewhere." " The petitioner," said the court, " was never a member of the family or household of the deceased in this state, and this was, as a matter of fact, never her home or residence. Upon the contrary, she persistently, and in terms, refused to reside here or to make this her home": UUman v. Abbott, 10 Wyo. 97; 67 Pac. Eep. 467, 470. After an order of sale of real estate to pay the expenses of the last sickness, etc., is made, the court cannot properly set apart the same real estate to the widow as a homestead, where the expenses were a proper charge against the estate, and could only be realized and paid from the proceeds of the sale of the property; and, under the circum- stances, no error is made in refusing to set aside the homestead to the widow: In re Thorn's Estate, 24 Utah, 209; 67 Pac. Eep. 22. 13. Widow's right. How not affected. A widow is entitled to a probate homestead, although there are no minor children: Estate of Arnlstfong, 80 Cal. 71; 22 Pae. Eep. 79. She is also entitled to one, though she has other property: Estate of Firth, 145 Cal. 236; 78 Pac. Eep. ff43. Although a widow grants all of her individual estate in a tract of land, which was community property, th* grantee takes the property subject to have the land set apart as a homestead for the widow and minor children, and he cannot defeat the homestead right by asserting his right to take as a tenant in common. The right to have a probate homestead carved out of the estate is inherent, not in her alone, but in the children as well, and she can no more foreclose their right thereto, than she can their rights as heirs to the estate. To say that the widow may convey her right to such a homestead, and that the grantee takes as a tenant in common with the children, is, in effect, to say there shall be no homestead. The law consecrates the homestead to a specific purpose, and that purpose can only be accom- plished by making it a home for the family: Phelan v. Smith, 100 Cal. 158, 165, 166; 34 Pac. Eep. 667. The widow and minor children do not lose their right to a probate homestead when, as administratrix, the mother procured an order of sale of the property, which was never sold under such order: Estate of StiU, 117 Cal. 509, 514; 49 Pac. Eep. 463. The fact that the wife was separated from her hnsband before his death, but not permanently, where such separa- tion was caused by his cruel and inhuman treaitment, does not prevent HOMESTEADS. 629 her from maintaining an application for a probate homestead out of the property of her deceased husband: In re McVay's Estate (Ida.), 93 Pac. Eep. 28, 31. And an agreement between husband and wife to live separate and apart, with an allowance to the wife, does not bar her right to a probate homestead from the estate of her de- ceased husband: Eproson v. Wheat, 58 Cal. 715. In this case, however, the agreement did not divide any property, but merely provided for separation, and that the husband should pay one hundred dollars per annum to the wife during his lifetime; the wife relinquished no right to property; and the setting apart to her of the homestead, after his death, is not in contravention of any expressed or implied term of the agreement. But it is different where both husband and wife enter into a valid agreement, which is binding upon the parties, and the wife thereby absolutely relinquishes her right to select as a hoinestead, during the husband's life, any part of the property allotted under such agreement to him as his separate estate, and the court has no authority to set apart to her any part of it, after his death, as a probate home- stead: Wickersham v. Comerford, 96 Cal. 433, 439; 31 Pac. Eep. 358. A devise to the widow does not affect her right to a probate homestead: Estate of Firth, 145 Cal. 236, 238; 78 Pac. Eep. 643. A bequest by a husband to his wife, of money, in lieu of the homestead, does not bar her right to a probate homestead, where she has not accepted the be- quest: Eproson v. Wheat, 53 Cal. 715, 719. The obtaining of a general judgment lien does not cut off the widow's right to select the land of a deceased husband as a probate homestead at any time before a sale , thereof: McMillan v. Mau, 1 Wash. 26; 23 Pac. Eep. 441. For other cases concerning this topic, see subdivision 6, ante; and subdivision 25, post. 14. Widow's right. Limitations on. A widow's right to a probate homestead cannot be conveyed or waived by her, at least in such a way as to defeat the interests of the minor children: Phelan v. Smith, 100 Cal. 158; 34 Pac. Eep. 667. But a valid agreement between a hus- band and wife for a separation and division of the community property, whereby she relinquishes all right and claim to any part of the share allotted to the husband, deprives her of the right thereafter to select a homestead out of the husband's separate estate, either during his life or after his death: Wickersham v. Comerford, 96 Cal. 433, 439; 31 Pac. Eep. 358. And acquiescence for a long period as to certain property selected and set apart as a probate homestead is an estoppel from claiming other property, although there were liens after- ward discovered on the lot first set aside: Holden v. Pinney, 6 Cal. 234, 236. 15. Limited homestead. (1) In general. These words are used to designate a probate home- stead set apart for " a limited period " to the surviving husband or 630 PEOBATE LAW AND PRACTICE. ■wife. The code of California provides that if no homestead is selected, designated, and recorded, the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the hus- band or wife, out of the common property, and if there be no common property, then out of the real estate belonging to the decedent. And there is another provision of said code, that if the probate homestead be selected out of the probate property of the deceased, it must be only for a limited period, and it may be done from any property suit- able for the purpose. Section 1468 of the California Code of Civil Procedure, which provides that " if the property set apart be a home- stead selected from the separate property of the deceased, the court can set it apart only for a limited period, to be designated in the order, and the title vests in the heirs of the deceased subject to such order," has been held to apply to probate homesteads selected and set apart by the court. The court has a discretion in selecting such a homestead from the separate property of the deceased, but it has no power to set it apart, except for a limited period: Estate of Schmidt, 94 Cal. 334, 340; 29 Pac. Eep. 714; Estate of LahifE, 86 Cal. 151; 24 Pac. Eep. 850; Estate of Firth, 145 Cal. 236; 78 Pac. Eep. 643; Lord v. Lord, 65 Cal. 84, 87; 3 Pac. Eep. 96; Neary v. Godfrey, 102 Cal. 338, 341; 36 Pao. Eep. 655; Estate of Burrows, 136 Cal. 113, 115; 68 Pac. Eep. 488; Warner v. Warner, 144 Cal. 615, 618j 78 Pac. Eep. 24. The right of a survivor to have a probate homestead set apart to him or her out of the separate estate of the decedent for a limited period ia not absolute, but rests in the sound discretion of the court, to be exer- cised in view of all the .facts appearing before it: Estate of Lamb, 95 Cal. 397, 408; 29 Am. St. Eep. 121; 30 Pac. Eep. 568. The right given to the probate court, by the statute, to set apart a homestead " to the family of the decedent " for a limited period, is not controlled, nor in any way affected, by the wife's previous selection of a homestead out of her husband's separate estate without his assent: Weinreich v. Hensley, 121 Cal. 647, 653; 54 Pac. Eep. 254. The power given to the court to set apart a homestead that has been selected from the separate estate of the decedent is the same as its power to set aside a homestead when none has been selected in the lifetime of the decedent, and must be exercised in the same manner and under the same limitations and conditions. It is only in the case where there is no common property that the court may select, designate, and set apart a homestead out of the separate estate of the decedent: Weinreich v. Hensley, 121 Cal. 647, 654; 54 Pac. Eep. 254. The court has a discretion to exercise in deter- mining whether it will set aside a homestead" from the separate prop- erty of the decedent, as well as the particular property which it will set aside, and also in determining the time during which it shall be held as a "homestead. Section 1468 of the California Code of Civil Procedure clearly indicates that the court must make an order designat- ing the limited period for which the homestead is set apart, and until HOMESTEADS. 631 sach order is made there is no homestead: Weinreich v. Hensley, 121 Cal. 647, 655; 54 Pac. Eep. 254. The widow's right to a probate homestead is an independent right, which she has in addition to any other right or property which she may have, and the power of the court to set aside a homestead to her on separate property of the husband which has been devised to others is well established: Estate of Huelsman, 137 Cal. 275; 59 Pac. Eep. 776; Estate of Firth, 145 Cal. 236, 239; 78 Pac. Eep. 643; Sulzberger v. Sulzberger, 50 Cal. 385. Our law is liberal to a wife with respect to community property, — that is, property acquired after marriage, by the assumed joint efforts of both spouses, — yet, with regard to the husband's separate property, she has scarcely any right at all. He may devise it all to strangers, and leave her penniless. The old estate of dower is taken away. The right to have a homestead for a, limited period given her by the probate court is about the only interest which she can assert in a deceased husband's property: Estate of Firth, 145 Cal. 236, 239; 78 Pae. Eep. 643. It is true that by section 1468 of the Code of Civil Procedure of California it is declared, as a general rule of property, that whare a probate homestead is selected for a limited period from the separate property of the deceased " the title vests in the heirs of the deceased subject to such order "; but the question as to whom the remainder goes is not before the court on a simple petition for a homestead, and it is error, on such a petition, for the court to determine where the title of the property shall vest upon the termination of the homestead. The adjudication should be con- fined to the question as to whether the wife should have the homestead: Estate of Firth, 145 Cal. 236, 240; 78 Pac. Rep. 643. The limited period for which a probate homestead may be set apart to the widow out of the separate property of her husband certainly does not extend longer than during her life: Hutchinson v. McNally, 85 Cal. 619, 621; 24 Pac. Eep. 1071. Where the wife alone makes a declaration of homestead on separate property of the husband, it does not affect the title of the heirs to the property; but it vests in them subject to the right of the court to set the same aside for a limited period to the surviving wife and children: Gruwell v. Seybolt, 82 Cal. 7, 9; 22 Pac. Eep. 938. The court will not refuse to set apart a probate homestead to a widow from the separate property of her deceased husband, though a part of the property was conveyed by her after his death, by a quitclaim deed: Estate of Moore, 57 Cal. 437, 442. (2) Dissenting opinions. Though a homestead was set aside to a surviving widow, and the order so setting it aside did not limit it to a life estate in the widow, but set it aside to her absolutely, this, though erroneous, is not void, where the time to appeal from the order had expired and no appeal had been taken, and the order, though erroneous, vests the title in fee in the widow: Estate of Huelsman, 127 Cal. 275, 276- 59 Pae. Eep. 776. While the cases of Estate of Huelsman, 127 632 PEOBATB LAW AND PRACTICE. Cal. 275, 276; 59 Pae. Eep. 776; Estate of Moore, 96 CaJ. 522, 531; 31 Pac. Eep. 584; and Fealey v. Fealey, 104 Cal. 354, 360; 38 Pae. Eep. 49, support the proposition stated, in effect, that a title in fee may arise out of a voidable order, yet where an appeal is not taken, and the time for appeal has expired, it cannot be said that the case of Hanley V. Hanley, 114 Cal. 690, 693; 46 Pac. Eep. 736, supports such proposi- tion, although it is cited upon the point in the case of Estate of Huels- man, 127 Cal. 275, 276; 59 Pae. Eep. 776. Justice Garoutte, in his specially concurring opinion in the last-named case, dissents from the decision on this point, and holds, as would seem to be the reasonable position, that such an order would be void, at least as to any interest beyond a life estate. He says further: " The statute is the measure of the court's power in such a ease, and the statute says the property may be set aside for a ' limited period,' and this court has declared that such limited period may not exceed a term for life." Hence an order that purports to set aside separate property as a homestead in fee is void upon its face, to the extent, at least, of anything beyond a life estate: Estate of Huelsman, 127 Cal. 275, 278; 59 Pac. Eep. 776. The same exception -'to the ruling opinion in Estate of Moore, was taken in the concurring opinion of Justice Paterson, who held that where it is conceded that the property out of which the estate was carved was separate property of the deceased, the court had no power to set aside a homestead in fee; and that, the fact being admitted, and shown by the record, no appeal from the order was necessary: Estate of Moore, 96 Cal. 522, 532; 31 Pae. Eep. 584. 16. Surviving husband's light. A surviving husband may have set apart to him a probate homestead out of the separate property of the estate of his deceased wife in a proper case. But if, after a homestead has absolutely vested in the surviving husband, he sells it, he is not afterwards entitled to have another homestead set apart to him out of the separate property of his deceased wife: Estate of Ackerman, 80 Cal. 208, 210; 13 Am. St. Eep. 116; 22 Pac. Eep. 141. And while he could not have selected a homestead out of his wife's separate property without her consent when living, yet^this does not affect the power of the court to set it apart to him,, as such, for a limited period after her death; and the power of the court, in this regard, is not defeated by the action of the executor in negotiating a sale which is unconfirmed before the decree is made setting apart the homestead: Estate of Lahiflf, 86 Cal. 151, 154; 24 Pac. Eep. 850. In such a case the homestead may be taken from any property- suitable for the pur- pose, and if there is no minor child, it is for the surviving husband alone: Estate of Lahiff, 86 Cal. 151, 153; 24 Pac. Eep. 850. The sur- viving husband, upon the administration of the estate of his deceased wife, is entitled to have a probate homestead out of the community property set apart to him absolutely, where it was declared upon HOMESTEADS. 633 community property, though he had conveyed it to a third person, who subsequently conveyed it to the wife, because the deed of the home- stead premises made by the husband alone did not convey any title to the grantee, unless it appeared that it was in trust for the wife, and the grantee's deed to the wife conveyed nothing, even if the husband consented to or directed it: Estate of Geary, 146 Cal. 105, 110; 79 Pae. Eep. 855. But the surviving husband's right to have a homestead set off to him for a limited period out of the property of his deceased wife, as " the family of the decedent," is not an absolute right, but rests in the sound discretion of the court, to be exercised in view of all the facts appearing before it. The right of the surviving husband, in such a ease, does not depend upon the fact that there are children or others who may share the use of the homestead: Estate of Lamb, 95 Cal. 397, 408; 29 Am. St. Eep. 121; 30 Pac. Eep. 568. 17. Minor childien's right. The court has power to set apart a pro- bate homestead for minor children who have no living parent, though they are temporarily absent from the state at the hearing of a petition to set apart such homestead for them: Estate of Fohlmann, 2 Cal. App. 360; 84 Pae. Eep. 354; Estate of Still, 117 Cal. 509; 49 Pac. Eep. 463; Estate of Davis, 69 Cal. 458; 10 Pac. Eep. 671. P'remises which are suitable for a homestead may be set apart to them as a probate homestead, although the deceased never resided thereon: Estate of Pohlmann, 2 Cal. App. 360; 84 Pae. Eep. 354. Their guardian, or any friend of the minors, may petition for such homestead, because the court has authority to set it apart, either on petition or on its own motion: Estate of Pohlmann, 2 Cal. App. 360; 84 Pac. Eep. 354. Those who are not children in fact or by adoption are not entitled to have a homestead set apart to them out of the estate of a decedent: Estate of Eomero, 75 Cal. 379, 381; 17 Pac. Eep. 434. A minor child loses its right to a probate homestead if application therefor is not made during the minority of the child: Estate of Hey wood, 149 Cal. 129; 84 Pac. Eep. 834. A probate homestead set apart by the court from community property for the use of the surviving wife and minor children, belongs one half to the widow atod the remainder, in equal shares, to the chil- dren; and the shares of the ihinors, the moment the probate homestead is set apart for the use of the widow and the minor children out of the community property, at once becomes their property, and their several interests therein become part of their respective estates, to be cared for by their several guardians, and during their minority the children's interests may be sold'by their guardians, under proper proceedings for the sale thereof had in the matter of their estates: Estate of Hamil- ton 120 Cal. 421, 428; 52 Pac. Eep. 708. The widow may mortgage her interest in a probate homestead, but such mortgage is subject to the rights of the children: Hoppe v. Hoppe, 104 Cal. 94, 101; 37 Pac. Eep. 894. If a widow dies, leaving a minor child, no arrears of a 634 PROBATE LAW AND PRACTICE. family allowance due to the widow, or any claim in her favor against the estate, either as administratrix or otherwise, can preclude the set- ting apart of a probate homestead to such child, after the death of the widow, where no prior order had been made setting apart the. home- stead: Estate of Still, 117 Cal. 509, 513; 49 Pac. Eep. 463. The right of an infant applicant to a homestead out of the estate is independent of, and is not abridged by, the general debts of the estate, or the claims of the administratrix, however just; but neither the widow nor the other children can, individually or collectively, waive the right of an infant child to a homestead: Estate of Still, 117 Cal. 509; 49 Pac. Eep. 463, 465. The right to have a probate homestead carved out of the estate is in the nature of a charge upon the estate, from which the widow, under her right of succession, could no more discharge it, than she could free the estate from its liability for the debts of her deceased husband. The homestead is, in a proper case, a charge upon the estate of the deceased, created by the law, and is one of the burdens upon the community property, subject to which the surviving wife takes her interest therein equally with the other limitations prescribed by the Civil Code. Pending the administration of a decedent's estate, a minor child is entitled to his right of homestead, although other minors, by reaching their majority, without an application for a homestead having been made by them, or on their behalf, have lost their rights: Estate of Stm, 117 Cal. 509; 49 Pac. Eep. 463, 465. 18. No money in lieu of homestead. There is no authority for the probate court to set apart money to the widow in lieu of a homestead, where there is no property belonging to the estate of the deceased hus- band out of which a homestead can be set apart to her: Estate of Isaacs, 30 Cal. 105, 113; Estate of Noah, 73 Cal. 590, 594; 2 Am. St. Eep. 834; 15 Pac. Eep. 290. 19. Order. Notice. Validity. An order setting apart a probate homestead out of community property, ex parte, and without notice, is valid: Kearney v. Kearney, 72 Cal. 591, 595; 15 Pac. Eep. 769; Gaylord V. Place, 98 Cal. 472, 480; 33 Pac. Eep. 484. The proceeding is in rem, and all parties interested are bpund by it, without personal notice: Hanley v. Hanley, 114 Cal. 690, 694; 46 Pae. Eep. 736; Kearney v. Kearney, 72 Cal. 591, 593; 15 Pac. Eep. 769. Nor can heirs or devisees claim that they are deprived of their property without due process of law, because the court, having jurisdiction of the estate of the de- ceased before distribution, has determined, without notice, to set apart some or all of the estate absolutely to the widow, and that no appeal is allowed from the order. They take the estate subject to that very con- tingency, and they are not deprived of it in the sense intended by the constitutional inhibition when that contingency occurs: Otto v. Long, 144 Cal. 144, 148; 77 Pae. Eep. 885. A failure to file or to enter HOMESTEADS. 635 the order setting apart a probate homestead to the widow, until after she had executed a mortgage thereon, which was foreclosed against her, did not affect the validity of her title, or of the mortgage: Otto v. Long, 144 Cal. 144, 146; 77 Pac. Eep. 885. Should it be conceded that the court erred in setting apart absolutely to a widow a homestead out of the separate property of her deceased husband, still it is only an error committed in the exercise of its jurisdiction, and the order is not void. Hence, if no appeal has ever been taken from the order, it is in force; and this being so, the court errs in distributing, as part of the estate, the land so set apart as a homestead. By force of the decree setting it aside, the title to the homestead is, as against the heirs of the deceased, in the parties named in that decree: Estate of Moore, 96 Cal. 522, 531; 32 Pac. Eep. 584, The term "family" is synonymous with and represents the surviving wife or husband and children, if any. Hence when the court, in its decree setting apart a probate homestead for the widow and children, uses the phrase, for the " use of the family" of the deceased, -the term "family" expresses the meaning and is used in the sense of the statute, and is therefore fully explicit enough to describe the widow and children: Phelan v. Smith, 100 Cal. 159, 170; 34 Pac. Eep. 667. The provision in the statute for recording in the recorder's of&ce a homestead out of the decedent's exempt prop- erty, for the use of the widow, is manifestly no more than a direction for the preservation of an additional record, to impart notice to third persons, and recording is not essential to the validity of a probate homestead: Otto v. Long, 144 Cal. 144; 77 Pac. Eep. 885, 886. In view of the very grave questions which have been raised in regard to the validity of homesteads set apart without notice, it has been suggested in California that probate judges adopt, as a suitable mode of pro- ceeding, the mode found in sections 1474-1486 of the Code- of Civil Procedure of that state, so far as applicable; that is, the admeasure- ment and appraisal of the homestead, the report, the setting of the day for hearing, and the notice as there prescribed: Kearney v. Kearney, 72 Cal. 591, 597; 15 Pae. Eep. 769. 20. Order. Effect of. The order setting apart a probate homestead to the widow relieves the property from administration, as it does not then constitute assets of the estate of the deceased, and excludes it from distribution; but it does not affect the title of the homestead: Estate of Gilmore, 81 Cal. 240, 243; 22 Pac. Eep. 655; Dickey v. Gibson, 121 Cal. 276, 278; 53 Pac. Eep. 704; Estate of Still, 117 Cal. 509, 513; 49 Pae. Eep. 463; Saddlemire v. Stockton Sav. etc. Soc, 144 Cal. 650, 654- 79 Pac. Eep. 381; Herrold v. Been, 58 Cal. 443; Eich v. Tubbs, 41 Cal. 34' Schadt v. Heppe, 45 Cal. 433; Estate of Boland, 43 Cal. 640, 642- Es'tate of Hamilton, 120 Cal. 421, 426; 52 Pac. Eep. 708. As the homestead when set apart, ceases to be a part of the assets of the estate neither the' probate court nor the executor or administrator has 636 PROBATE LAW AND PRACTICE. any further control over it after it has been so assigned: Estate of Orr, 29 Cal. 101, 104; Schadt v. Heppe, 45 Cal. 433, 437; Estate of Burns, 54 Cal. 223, 228. The title of the widow, acquired by survivorship, is not affected by a subsequent order of the court setting the property apart to her as a homestead: Saddlemire v. Stockton Sav. etc. Soc, 144 Cal. 650, 653; 79 Pac. Eep. 381. The effect of the homestead order is to remove the premises set apart from the disposition of the will, and to vest title thereto, subject to the order, in the heirs of the deceased, as distinguished from the devisees: Estate of Levy, 141 Cal. 646, 648; 99 Am. St. Eep. 92; 75 Pac. Eep. 301. It is error for the probate court to set apart absolutely to the widow and minor children a, pro- bate homestead out of the estate of her deceased husband for the " use of the family," though he does not designate that it is for a " limited period." It is only where a homestead is set apart from the separate property of the deceased that it is required to be for a "limited period": Phelan v. Smith, 100 Cal. 158, 170; 34 Pac. Eep. 667. The widow, or widow and minor child or childreil, as the ease may be, take the homestead subject to all valid liens existing against it at the time of the death of the husband, and free from all other claims: Estate of Orr, 29 Cal. 101, 104. The adjudication of claims against a probate homestead is for another forum than the probate court. Hence a decree of the probate court setting apart a probate homestead subject to the liens of mortgages existing against it is unauthorized: Chalmers V. Stockton B. & L. Soc, 64 Cal. 77, 78; 28 Pac. Eep. 59. The statute requiring the court to set aside a probate homestead does not provide that it shall be set aside clear and free from all encumbrances; nor does it declare that the order setting apart the homestead shall destroy or in any manner impair any lien upon the property. It follows that the settiig apart of a homestead does not destroy or impair the lien of a valid mortgage executed by the testator: Estate of McCalley, 50 Cal. 544, 546. Where the property exempt from execution is set apart to the widow and minor children, it is no longer under the control or supervision of the court: Bell v. Bell, 2 Cal. App. 338; 83 Pae. Eep. 814. 21. Order. Finality and conclusiveness. An order setting apart a homestead for the use of the survivor, or of the survivor and minor children, is appealable; but where the time for an appeal has elapsed, the order becomes final and conclusive upon all matters determined, or which might have been determined, upon the hearing of the matter. Such a judgment is founded in proceedings, not against persons as such, but against or upon the thing or subject-matter itself, whose status or condition is to be determined, and the judgment, when ren- dered, is a solemn declaration of the status of the thing, and ipso facto renders it what it declares it to be: Kearney v. Kearney, 72 Cal. 591; 15 Pae. Eep. 769; Gruwell v. Seybolt, 82 Cal. 7, 10; 22 Pac. Eep. 938; Fealey v. Pealey, 104 Cal. 354; 43 Am. St. Eep. Ill; HOMESTEADS. 637 38 Pae. Eep. 49; Hanley v. Hanley, 114 Cal. 690, 694; 46 Pao. Eep. 736. Thus if the question whether the property set apart to the widow as a homestead was or was not community property, is put in issue in the homestead proceedings, that question is concluded by the judgment: Pealey v. Pealey, 104 Cal. 354, 358, 359; 43 Am. St. Kep. Ill; 38 Pac. Eep. 49. The proceeding being in rem, all per- sons interested are bound by it, without personal notice: Hanley v. Hanley, 114 Cal. 690, 694; 47 Pae. Eep. 736. And a decision, in a probate homestead proceeding, finding and declaring that the appli- cant is not the widow, is, where such issue of fact is vital to the C(5ntrov'ersy, and has been tried and determined against the widow, a final determination of fact, which is forever binding in every court between the parties to that litigation and their privies, and becomes the law of the case: Estate of Harrington, 147 Cal. 124; 81 Pac. Eep. 546. 22. Power to encumber or alienate. The right to *a probate home- stead is not the subject of sale. It is merely a right to have the court, as a part of the administration of the estate of a decedent, set apart property, and not until sjich action can it be said that any estate has become vested, either at law or in equity. The right to have a homestead set apart is therefore not estate, either at law or in equity. The estate of homestead is one of a peculiar nature. It is a provision, by the humanity of the law, for a residence for the owner and his family: Estate of Moore, 57 Cal. 437, 444; Estate of Burton, 63 Cal. 36, 38. The homestead is set apart " for the use of the family," and "belongs" to the widow and minor children; and is to remain as a homestead, without any power in either of the parties interested to destroy its quality as a homestead until after all of the children have arrived at majority. The homestead is a place of abode for the family, and no act of any member of the family can in any way prejudice the rights of the others to occupy "it. It must remain intact until the youngest child has reached ma- jority. Hence it is not competent for either of the other co-tenants to have a partition until that period has been reached: Hoppe v. Hoppe, 104 Cal. 94, 100; 37 Pac. Eep. 894. To hold that the widow, or any fewer than all o'f the parties in interest, can, by a convey- ance, defeat the object of the law, would be a fraud upon the rights of those not joining in such conveyance: Phelan v. Smith, 100 Cal. 158, 166; 34 Pae. Eep. 667. But the widow, and the children upon attaining majority, may dispose of their respective interests in the homestead, and when all the children have reached majority, the mother and children may have a partition, or may sell the property freed from its homestead character: Estate of Hamilton, 120 Cal. 421 428- 52 Pac. Eep. 708. And where the widow has the right to convey a homestead awarded to her by the probate court, her grantee 638 PEOBATB LAW AND PRACTICE. is vested with the fee, and the right to the use of water appurtenant thereto: Bullerdick v. Hermsmeyer, 32 Mont. 541; 81 Pac. Eep. 334, 337. A widow who has no interest in her deceased husband's estate whatever, except to have a probate homestead admeasured to her, and her right as a legatee under his will, is not estopped from claim- ing a probate homestead out of the land of her deceased husband notwithstanding she had made an agreement assigning her right to receive a legacy from the estate, and making such assignment more secure by conveying her right as heir in case the legacy should fail by the revocation of the will. The will not being revoked, there was not a conveyance by her of any interest in the estate, if her right to a probate homestead out of the estate was not a subject of con- veyance: Estate of Vance, 100 Cal. 425, 428; 34 Pac. Eep. 1087. 23. Mortgage lieu. Presentation of claims. If the widow takes a probate homestead, it is subject to a valid mortgage thereon, and the mortgagee, as before the death of the husband, may subject the land to the satisfaction of the mortgage debt, but his remedy is not in the probate court: Estate of Orr, 29 Cal. 101, 104. The probate court has no power to make a decree declaring that the homestead, as set apart, shall be subject to the liens of mortgages thereon: Chal- mers V. Stockton B. & L. Soc, 64 Cal. 77, 78; 28 Pac. Eep. 59. The court has no power to order the executors or administrators to dis- charge the lien of a mortgage upon a probate homestead, the title' to which is vested in fee in the widow, if no claim for the debt has been presented against the estate. The mortgagee's recourse, in such a case, is limited to the mortgaged property: Estate of Huels- man, 127 Cal. 275, 277; 59 Pac. Eep. 776. The 'statute does make a provision for the extinguishment of liens and encumbrances upon a homestead which is selected and recorded prior to th6 death of one of the spouses, but that statute deals with homesteads declared during the lifetime of the spouses, and the law has not seen fit to make the same provision with respect to probate homesteads: Estate of Huels- man, 127 Cal. 275, 277; 59 Pac. Eep. 776. This ease, however, hold- ing that there is no provision for paying off liens on a probate home- stead, which liens existed at the death of deceased, does not hold that the administrator cannot pay off liens on a probate homestead, which they, of their own volition, and contrary to the spirit and in- tent of the law, have placed there. If the court authorizes a mort- gage upon an estate, including the probate homestead set apart therefrom for the minor children, when it would not have done so if the facts had been called to its attention, and the estate is sol- vent, land not included in the homestead should first be sold and the proceeds applied to the satisfaction of the mortgage debt, and if the proceeds are suflSeient to pay o£E the mortgage, the homestead claim- ant is entitled to . have the premises free from the encumbrance: HOMESTEADS. 639 Estate of Shively, 145 Cal. 400, 403; 78 Pac. Eep. 869. It is the duty of the court, before the property of an estate is mortgaged, to set apart a homestead from the unencumbered real estate, regardless of the creditors of the estate; but if the court authorizes a portion of the property of a decedent's estate to be mortgaged before setting apart a probate homestead out of that portion thereof, and the pro- ceeds of such mortgage are used in paying debts and expenses of administration, the administrators have the right to apply all of the proceeds of a sale of the mortgaged premises toward payment of the mortgage on the probate homestead. Tlfe estate being solvent, the administrators cannot be allowed to deprive the minor children of a homestead because the court authorized a mortgage upon it when it would not have done so if the facts had been called to its attention: Estate of Shively, 145 Cal. 400, 402, 403; 78 Pae. Eep. 869. The rule in California which requires a mortgage upon the homestead to be presented to the administrator as a claim is based upon the pro- visions of section 1475 of the Code of Civil Procedure of that state, but such rule does not apply at all to a probate homestead: Bank of Woodland v. Stephens, 144 Cal. 659, 663, 664; 79 Pac. Kep. 379". If the mortgage is upon a probate homestead set apart by the court for the use of the family, no presentation of the mortgage claim is re- quired: Browne v. Sweet, 127 Cal. 332, 335; 59 Pac. Eep. 774; Mc- Gahey v. Forrest, 109 Cal. 63, 68; 41 Pac. Eep. 817; Schadt v. Heppe, 45 Cal. 433. Homesteads set apart by order of the court during the pendency of probate proceedings, which had no existence prior to the death of the decedent, are not included in section 1475 of the Code of Civil Procedure, of California, but are left to the control of section 1500 of the same code, and a prior lien thereon may be enforced without the necessity of presenting the claim secured therebj' to the executor or administrator, provided the holder is willing to expressly waive, in his complaint, and does waive, all recourse to any other property of the estate: McGahey v. Forrest, 109 Cal. 63, 69; 41 Pac. Eep. 817. BEFEBENCES. A mortgage placed upon property after it has been set aside as a probate homestead need not be presented against the estate. The claim, in such a case, is not against the estate: See 19, subd. (2), supra. 24. Value. It is settled that there is no specified limitation of value in the case of a probate homestead, the rule being, that the court may set apart such property as, regardless of its value, in view of the value and condition of the estate, may seem just and proper, and this is so, whether such homestead has been selected for a limited period or not: Estate of Levy, 141 Cal. 646, 652; 99 Am. St. Eep. 92- 75 Pac. Eep. 301; Estate of Adams, 128 Cal. 380; 57 Pac. Eep. 569; 60 Pac. Eep. 965; Estate of Walkerly, 81 Cal. 579; 22 Pac. Eep. 640 PEOBATE LAW AND PBACTICE. «88; Estate of Smith, 99 Cal. 449; 34 Pac. Kep. 77; Estate of Sehmidt, 94 Cal. 334, 337; 29 Pac. Kep. 714. But it has been held that where in estate is solvent the court must take into account the rights of creditors; and as the legislature has fixed the sum of five thousand dollars as the limit in value which the debtor may claim for his homestead against the demand of his creditors, " a wise exercise of judicial discretion would limit the homestead to be so set apart to this amount in value in the case of an insolvent estate, where a home- stead of this value can be divided from the remainder of the estate, or where the property sought to be set apart is capable of such ad- measurement " : Estate of Adams, 128 Cal. 380, 384; 57 Pac. Eep. 569; 60 Pac. Eep. 965. While the rights of creditors are not to be disregarded in setting apart a homestead, they " are subordinate to the right of the family to a home": Estate of Adams, 128 Cal. 380, 383; 57 Pac. Eep. 569; 60 Pac. Eep. 965; and if, in order to set apart such a home, it is necessary to take the entire estate of the deceased, the creditors' rights must yield: Keyes v. Cyrus, 100 Cal. 322, 326; 38 Am. St. Eep. 296; 34 Pac. Eep. 722. Heirs, devisees, and legatees occupy, at best, a no more advantageous position than credi- tors: Sulzberger v. Sulzberger, 50 Cal. 385; Estate of Davis, 69 Cal. 458; 10 Pac. Eep. 671; Estate of Lahiff, 86 Cal. 151; 24 Pac. Eep. 850. While they have rights which should be considered, the family is first entitled to a home, if there is property capable of being set apart as such; and where the only premises suitable for homestead purposes are indivisible, and no homestead can be given to the family, unless the whole of such premises is given, the fact that such premises are valued at seventeen thousand five hundred dollars, and constitute in value nearly one half of the estate, does not impair the home- stead right, in the absence of a statutory limitation as to value: Estate of Levy, 141 Cal. 646, 652; 99 Am. St. Eep. 92; 75 Pae. Eep. 301. If the only property suitable for homestead purposes is incapable of division, and if it is necessary to set aside the whole of such property, the court may properly set it apart for the most limited period, — the period of administration of the estate, — and may further provide that the family allowance theretofore granted shall eeaSe and determine. The rights of all others interested in the estate will thus be preserved, so far as practicable: Estate of Levy, 141 Cal. 646, 653; 99 Am. St. Eep. 92; 75 Pac. Eep. 301. Although the code provides a machinery by which creditors may have the homestead declared sold, and the proceeds in excess of five thousand dollars applied to the payment of debts, this does not affect the " creation " of a homestead upon land in excess of five thousand dollars, upon a contest between the widow and the heirs at law of the decedent. Such provision has nothing to do with the " creation " of a homestead, even when it is established by the parties under the Civil Code; and there are no existing provisions of the code which restrain the court from select- HOMESTEADS. 641 ing premises as a homestead because they exceed in value five thou- sand dollars. There were such provisions in sections 1480-1484 of the Code of Civil Procedure of California; but those sections were re- pealed in 1874: Estate of Smith, 99 Gal. 449; 34 Pac. Bep. 77. When a homestead estate is decreed by the county court in a homestead which exceeds five thousand dollars in value, and is indivisible, the decree should show the amount of the excess in value, and the fact that the property is indivisible: Calmer v. Calmer (N. D.), 106 N. W. Eep. 684. In the state of Washington, a widow cannot claim for her- self and her minor children any permanent homestead in premises which were the separate property of the deceased husband at the time of his death. The realty vests in the heirs at law of the decedent, subject to the lawful rights and claims of creditors and all parties interested in the regular course of administration. The law does not prevail in that state, that, no matter how valuable the home- stead of the decedent may be, it must go to his widow or children, to the exclusion of the rights of his creditors, as this would have the effect of enlarging the homestead rights of the widow and children by reason of the death of the husband: Lloyd v. Lloyd, 34 Wash. 84; 74 Pae. Eep. 1061. 25. Waiver, loss, and determination of right. The acceptance, by a widow, of letters testamentary, and the fact that she was, by the will, constituted one of the residuary legatees, does not tend to show that she waived her right to a homestead as prescribed by the statute: Sulzberger v. Sulzberger, 50 Cal. 385, 388; Estate of Firth, 145 Cal. 236, 239; 78 Pac. Eep. 643. Nor does she waive her right to a probate homestead by qualifying as executrix under the will: Estate of Firth, 145 Cal. 236, 239; 78 Pac. Eep. 643. The homestead, when set apart, is for the benefit of the widow and children, and the widow cannot individually, by any act of her own, waive the rights of the children: Phelan v. Smith, 100 Cal. 158, 165; 34 Pac. Eep. 667. When minors have reached their majority without an application for a homestead having been made for or on their behalf, their rights are lost; but neither the widow, nor the other children, can, individually or collectively, waive the right of a child who has not attained majority to a probate homestead: Estate of Still, 117 Cal. 509; 49 Pac. Eep. 463, 465. If a surviving husband, who has had a home- stead set apart to him, afterwards sells the same, he is not entitled to another homestead out of the separate property of his deceased wife: Estate of Aekerman, 80 Cal. 208; 13 Am. St. Eep. 116; 22 Pac. Eep. 141. So if a widow, who is entitled to a homestead, marries before an order of the court setting it apart to her, she loses, by such marriage, her right to the homestead: Estate of Boland, 43 Cal. 640, 642; Estate of Still, 117 Cal. 509; 49 Pac. Eep. 463. The home- stead is set apart "for the use of the family," and "belongs" to Probate — 41 642 PEOBATE LAW AND PEACTICB. the widow and minor children; and is to remain as a homestead, without any power in either of the parties interested to destroy its quality as a homestead, until after all of the children have arrived at majority. The homestead is the place of abode for the family, and no act of any member of the family can in any way prejudice the rights of the others to occupy it. It must remain intact until the youngest child has reached its majority. Hence it is not compe- tent for either of the other co-tenants to have a partition until that period has been reached: Hoppe v. Hoppe, 104 Cal. 94, 100; 37 Pac. Eep. 894; Estate of Hamilton, 120 Cal. 421, 427; 52 Pac. Bep. 708. When the children arrive at majority, their interest in the homestead, as a homestead, ceases, for they no longer constitute a part of the family, and whatever rights they thereafter have in the land covered by the homestead are in the nature of those of remaindermen or reversioners: Moore v. Hoffman, 125 Cal. 90, 93; 73 Am. St. Eep. 27; 57 Pac. Bep. 769. The widow and minor children do not lose their right to a homestead by the widow's act, as administratrix, in procuring an order of sale of the property, which property was never sold under such order: Estate of Still, 117 Cal. 509; 49 Pac. Bep. 463, 465. It is a governing principle that the homestead right continues in favor of any one of the family for whom it was created, as long as he or she asserts it, and remains in a position to assert it; and this principle applies, either where the rights of the minor children are being asserted as against the act of the widow, or where the rights of the widow are being asserted as against the acts of the children. When the children arrive at majority, their interest in the homestead, as a homestead, ceases, and the widow, being the only homestead claimant left, could, of .course, dispose of her interest in the land, because there would then be no other homestead claimant to contest her right to do so. But the grantee of a child cannot disturb the widow's possession until her homestead right has been extinguished, either by her own act or by operation' of law, and it cannot be extinguished by the act of any one of the children, either before or after their majority: Moore v. HofEman, 125 Cal. 90, 93; 73 Am. St. Bep. 27; 57 Pac. Bep. 769. 26. Vesting of title. If no homestead was selected, designated, or recorded in the lifetime of the husband, a decree setting apart a homestead f

- 1^ ^J I [Title of form.] , the widow of , deceased, having filed herein her petition for the assignment of dower to her out of certain real estate belonging to the estate of said deceased, and it appearing to the court that and are heirs ^ of said deceased, and are minors without general guardian, — It is ordered, That be, and he is hereby, appointed guardian for the above-named minors, solely to appear for and take care of their interests in the premises.' Dated , 19 — , Judge of the Court. Explanatory notes. 1. Giye file number. 2. Or, and devisees; or, parties interested in said estate, or claiming an interest in said land. 3. The statute of Montana provides that " the right of dower of an insane married woman may be sold by her guardian, and the title to the real estate transferred to the purchaser, under the direction of the court or judge, in the same manner and with like effect as the property of any insane person may be sold and transferred ": Mont. Code Civ. Proc, § 2974. § 434. Form. Notice of hearing on petition for dower. [Title of court.] ,. , (No 1 Dept. No. [Title of proceeding.] j ^^.^^^ ^/^^^^^ Notice is hereby given. That , widow of , de- ceased, has filed in the above court her petition for the admeasurement and assignment of dower to her in certain 656 PROBATE LAW AND PEACTICE. real estate hereinafter described, belonging to the estate of said deceased ; and that the hearing on said petition has been set by this court for ? the day of , 19 — , at o'clock, — m., at the court-room of this court, at which time and place all heirs,' and all persons claiming under them, or any of them, are required to appear and show cause, if any they have, why said petition should not be granted. The real estate mentioned in said petition, and sought to be affected by this proceeding, is described as follows: * , Clerk. Dated , 19 — Explanatory notes. 1. Give file number. 2. Give day of week. 3. Devisees, if any. 4. Give description. § 435. Form. Order for admeasurement of dow^. [Title of court.] [Title of proceeding.] [^° ' ^^pt. No 1 [Title of form.] The petition of , widow of , deceased, praying that dower be admeasured and assigned to her, coming on regularly to be heard this day of , 19 — ; and it appearing to the court that due notice of the hearing of said petition has been given to the heirs ^ of said deceased, and to all persons claiming under them, or any of them, as required by law and the order of this court ; that said peti- tioner is the widow of said deceased; that during the mar- riage of said deceased with his said wife he was seised in fee of the lands hereinafter described ; and that petitioner is entitled to dower therein, — It is ordered. That said petition of said widow, , for the admeasurement of dower be, and it is hereby, granted; and that a warrant be issued by the clerk of this court to , , and , three discreet and disinterested persons, authorizing and requiring them to set off said dower by metes and bounds, if the same can be done without injury to the whole estate; and to make return of their doings to this court, with an account of their charges and expenses as required by law. DOWER. 657 The real estate from which said dower is to be set off is described as follows : ' Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. And devisees, if any. 3. Give description. § 436. Form. Warrant to commissioners to admeasure ^°^^- [Title of court.] [Title of proceeding.] \^° ' ^«P*- ^° ' *^ ^ -" ( [Title of form.] The People of the State of To , , and , Greeting. Whereas, on the day of , 19 — , an order was duly made in and by the above-named court, in the above- entitled, proceeding, directing the clerk of said court to issue to you a warrant, authorizing and requiring you, as commissioners, to allot and set off to , as widow of , deceased, her dower in the real estate of said deceased in said order described, as follows: ,^ — Now, therefore, you are, by this warrant, authorized and required to admeasure and set off, by metes and bounds, if it can be done without injury to the whole estate, to said , widow of said , deceased, her dower in the premises above described, with all reasonable speed, and thereafter make written return to the court of your doings in that behalf, with an account of your charges and expenses incurred therein. By order of the court, this day of , 19 — . [Seal] Clerk. By , Deputy Clerk. Explanatory notes. 1. Give file number. 2. Describe the land. § 437. Form. Oath of commissioners to admeasure dower. [Title of court.] (No. 1 Dept. No. . [Title of proceeding.] | ^^.^^^ ^^ ^^^^^ J' State of County of - ^ , and , being duly sworn, each for himself, on oath, says that he will faithfully discharge the duties of Probate — 42 658 PROBATE LAW AND PRACTICE. commissioner to admeasure and set off to , widow of , deceased, her dower out of the real estate of said deceased, in accordance with the requirements of the war- rant herein issued to him. . Comjnissioners. Subscribed and sworn to before me this day of . 19: — , Judge of the Court.^ Explanatory notes. 1. Give file number. 2. Or, Justice of the Peace. For form of oath of commissioners in Montana, see Mont. Code Civ. Proc, § 3076. § 438. Form. Return of commissioners to admeasure dower. [Title of court.] [Title of proceeding.] I^"' -T;;^-', ^FI' ^°; ' *• ^ ^ •" ( [Title of form.] The undersigned, commissioners heretofore appointea to admeasure and set off to , widow of , deceased, her dower in the real estate of said deceased, respectfully report : That,' after receiving the warrant hereto annexed, they took the oath required by law, which is also attached hereto, and thereafter performed the duties required of them as f oUows : That they viewed the land described in said warrant, and, being of the opinion that the dower interest of said widow therein could be set off to her without injury to the whole estate, and finding that a survey was necessary therefor, they employed , a competent surveyor, and his assist- ants, and have with their aid admeasured, and the under- signed, as such commissioners, have set off, allotted, and assigned to said , widow as aforesaid, as and for her dower interest in said real estate, the following described portion thereof : ; ^ That the following is an account of the charges and ex- penses of said commissioners, incurred by them in the performance of said duties. DOWER. 659 Compensation of commissioners, days each, at $ per day $ Compensation of surveyor and assistants, days, at $ 1 per day Total $_ All of which is respectfully submitted. ■ > Commissioners. Explanatory notes. 1. Give file number. 2. Give description of land set off. § 439. Form. Order confirming report of commissioners to admeasure dower. [Title of court.] [Title of proceeding.] \^° ' Dept. No , ^ ^ ■' / [Title of form.] The commissioners heretofore appointed to admeasure and set ofE to , widow of said , deceased, her dower in the real estate of said deceased, having filed their report herein, and said report coming on regularly for hearing and action by the court,^ and it appearing that all requirements of law have been complied with herein, and that said report of the commissioners is fair and just, and should be accepted and confirmed by the court, — It is ordered, That said report of the commissioners, and the admeasurement and assignment of dower to said , widow of said deceased, therein contained, be, and the same are hereby, accepted and confirmed by the court. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. If any opposition be made, insert, " and having appeared in opposition thereto, and the court having heard the allegations and proofs of the parties." 660 PROBATE LAW AND PRACTICE. DOWEE AND CUETEST. 1. Sower. -In geneial. (2) In Utah. 2. Sower. Power to modUy right. (3) In Montana. S. Sower. Law goTerning. (4) In Oreg,on. 4. Bower., Bights of dowresa. ■ necessary necessary. when. (3) Presentation of claim. When (3) Recovery of specific property. not necessary. (4) Deeds of trust. (4) Limitation of actions, 16. Appeal. 15 Trusts. Deeds of trust. (1) In general. (1) In general. (2) Bight of appeal. Jurisdic- tion. § 440. Notice to creditors. Additional notice. • Every executor or administrator must, immediately after his ap- pointment, 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 court, a notice 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 a week for four weeks. [Additional notice.] 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 must give notice only for the unexpired time allowed for such presentation. Kerr's Oyc. Code Civ. Proc, § 1490. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 820, p. 314. Arizona.* Eev. Stats. 1901, par. 1739. Colorado. 3 Mills's Ann. Stats., sec. 4780. Idaho. Code Civ. Proc. 1901, see. 4133. Montana.* Code Civ. Proc, sec. 2600. Nevada. Comp. Laws, see. 2892. New Mexico, Comp. Laws 1897, sec. 2004. North Dakota, Eev. Codes 1905, § 8097. Oklahoma.* Eev, Stats. 1903, sec. 1616. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1158. South Dakota.* Probate Code 1904, § 167. Utah. Eev. Stats. 1898, sees. 3848, 3849. Washington. Pierce's Code, § 2531. Wyoming. Eev. Stats. 1899, see. 4747. CLAIMS AGAINST ESTATES. 669 § 441. Form. Order for publication of notice to creditors. [Title of court.] [Title of estate.] /^° ^ ^^^P*- ^° (. [Title of form.] It is ordered that notice to creditors of said decedent, pur- suant to ," be published once a week for four weeks in the , a newspaper of said county.^ Dated , 19 — . , Judge of the — '— Court. Explanatory notes. 1. Give file number. 2. Refer to the statute providing for notice to creditors. 3. Or, city and county. § 442. Form. Notice to creditors. [Title of court.] [Title of estate.] 1^° ' Dept. No •■ ■" I [Title of form.] Notice is hereby given by the undersigned, administrator '■' of the estate of , deceased, to the creditors of and all persons having claims against the said deceased, to exhibit such claims, with the necessary vouchers, within ^ months after the first publication of this notice to the said administrator,* at the office of ," which said office the undersigned selects as his place of business in all matters connected with said estate of — : — , deceased. , Administrator ^ of the Estate of , Deceased. , Attorney for said Administrator.'' . Dated and first published at ,' on this day of , 19 . , Attorney for Said Administrator.' Explanatory notes. 1. Give file number. 2. Or, administrator with the will annexed; or, executor of the last will and testament, etc. 3. Number of months prescribed by statute, depending on the value of the estate. 4. Or, executor. 5. State where. 6, 7. Or as the case may be. 8. State where. 9. Or, executor. § 443. What time must be 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 670 PEOBATE LAW AND PRACTICE. of ten thousand dollars, and four months when it does not. Kerr's Cyc. Code Civ. Proc, § 1491. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 820, p. 314. Arizona. Eev. Stats. 1901, par. 1740. Idaho. Code Civ. Proc. 1901, sec. 4134. Montana. Code Civ. Proc, sec. 2601. Nevada. (5omp. Laws, sec. 2892. New Mexico. Comp. Laws 1897, sec. 2004. North Dakota. Eev. Codes 1905, § 8097. Oklahoma. Eev. Stats. 1903, sec. 1617. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1158. South Dakota. Probate Code 1904, § 168. Utah. Eev. Stats. 1898, see. 3849. Wyoming. Eev. Stats. 1899, sec. 4747. § 444. Copy and proof of notice to be filed, and order made. After the notice is given, as required by the pre- ceding section, a copy thereof, with the affidavit of due pub- lication, or of publication and posting, must be filed, and upon such affidavit or other testimony to the satisfaction of the court, an order or decree 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. Kerr's Cyc. Code Civ. Proc, § 1492. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 821, p. 314. Arizona.'* Eev. Stats. 1901, par. 1741. Idaho.* Code Civ. Proe. 1901, sec. 4135. Montana.* Code Civ. Proc, see. 2602. Nevada. Comp. Laws, sec 2892. New Mexico. Comp. Laws 1897, sec. 2004. North Dakota. Eev. Codes 1905, § 8098. Oklahoma. Eev. Stats. 1903, sec. 1618. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1159. South Dakota. Probate Code 1904, § 169. Utah. Eev. Stats. 1898, sec. 3850. Washington. Pierce's Code, § 2532. Wyoming. Eev. Stats. 1899, see. 4748. CLAIMS AGAINST ESTATES. 671 § 445. Form. AflSdavit of publication of notice to cred- '^®" [Title of court.] [Title of estate.] 1^° ' ^«P*- ^° I [Title of form.] State of , 1 County " of , \ ^^- , of said county " and state, having been first duly sworn, deposes and says : That he is, and at all times embraced in the publication herein mentioned was, the principal clerk of the printers and publishers * of , a newspaper ^ printed and pub- lished daily (Sundays excepted) ' in said county;^ That deponent, as such clerk,* during all times mentioned in this affidavit, has had, and still has, charge of all the advertisements in said newspaper ; and That a notice to creditors, of which the annexed is a true printed copy, was published in the above-named newspaper on the following dates, to wit, , * being for a period of once a week for four (4) ^° weeks; and further deponent saith not. Subscribed and sworn to before me this day of , 19_. , Notary Public in and for the County ^^ of ,. State of Explanatory notes. 1. Give file number. 2, 3. Or, City and County. 4. Or, printer cr foreman. 5. " Of general circulation,'' if the statute requires it. 6. " Sundays excepted," if such is the ease. 7. Or, city and county. 8. Or, printer or foreman. 9. Give date of each publi- cation. 10. " Successive " weeks, if such is the fact. 11. Or, city ' and county. § 446. Form. Order fixing time of hearing on application for decree establishing notice to creditors. [Title of court.] (No. 1 Dept. No. [Title of estate.] | ^^.^^^ ^^ ^^^^ ^ In the above-entitled matter, application having been made to this court for a decree establishing due notice to creditor? in said estate, — 672 PROBATE LAW AND PBACTICB. It is hereby ordered, That said application be heard at o'clock ia the forenoon ' of ,* the day of , 19 — , at the court-room of Department No. 4 of said court, in the court-house at ,* and that the clerk of the court give notice thereof by posting notices in three of the most public places in said county ° for not less than five ° days before said day of hearing. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, afternoon. 3. Day of week. 4. Name the location. 5. Or, city and county. 6. Or other time fixed by law or rules of court. § 447. Form. Affidavit of posting notice of time of hear- ing of application for decree establishing notice to creditors. [Title of court.] [Title of estate.! I ^°- -;;;:•' ^!^t^°; — ■■ ' I [Title of form.] , being duly sworn, says : That on the day of , 19 — , he posted correct and true copies of the annexed notice in three of the most public places in said county,^ to wit, one of said copies at the place at which the court is held,* one at ,* and one at ,' in said county.* Subscribed and sworn to before me this day of , 19 — , Deputy County Clerk. Esplanatory notes. 1. Give file number. 2. Or, city and county. 3. Designating it. 4. City hall. 5. United States post-office in the town or city of , in said county, designating its location. 6. Or, city and county. , § 448. Form. Decree establishing notice to creditors. [Title of court.] fNo 1 Dept. No t [Title of form.] It appearing to the satisfaction of the court, upon applica- tion of the administrator'' of the said estate, that due and legal notice to the creditors thereof has been given, and that notice of the time and place of such application has been given as directed by the court,* — ^ [Title of estate.] CLAIMS AGAINST ESTATES. 673 It is decreed, That the iValue of the estate of said deceased is less than ten thousand dollars ($10,000) ; * that due notice to creditors to present their claims has been given herein in all respects as required by law ; and that more than four ° months have elapsed since the first publication of notice to creditors. Dated , 19 — Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor. 3. Or, by a cop7, and affidavit of due publication of notice to creditors of said deceased, presented and filed in this court, showing the publi- cation of notice ordered by the judge of this court. 4. Or, more than ten thousand dollars ($10,000). 5. Or, ten; or as the case may be. This decree should not be made and entered until after the time allowed for the presentation of claims has elapsed. § 449. Time within which claims must be presented. 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. Kerr's Oyc. Code Civ. Proc, § 1493. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 821, p. 314. Arizona. Eev. Stats. 1901, par. 1742. Colorado. 3 Mills's Ann. Stats., sees. 4781, 4782^ 4789. Idaho.* Code Civ. Proe. 1901, sec. 4136. Kansas. Gen. Stats. 1905, § 2955. Montana. Code Civ. Proc, sec. 2603. Nevada. Comp. Laws, sec. 2893. New Mexico. Comp. Laws 1897, sec. 2062. North Dakota. Eev. Codes 1905, § 8099. Oklatioma. Bev. Stats. 1903, sec. 1619. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1493. South Dakota. Probate Code 1904, § 170. • Utah. Eev. Stats. 1898, sec. 3851. Washington. Pierce's Code, § 2533. Wyoming.* Eev. Stats. 1899, see. 4749. Probate — 43 674 PROBATE LAW AND PRACTICE. § 450. Form. Claim of creditor against estate. [Title of court.] [Title of estate.] I^"' "t;;;:-' ^!^'- ^°; — *• ■" l [Title of form.] The xmdersigned, a creditor of , deceased, presents his claim against the estate of said deceased, wrEh^the necessary vouchers for approval as follows, to wit: Estate of , Deceased. To , Dr.^ Explanatory notes. 1. Give file number. 2. Give items of claim,, including dates, subject-matter, and amounts, with total; and descrip- tion of note or mortgage, etc., with place and book of record. This- and the next two forms should be attached to or printed on the- same blank. § 451. Form. Affidavit to creditor's claim. [Title of court.] [Title of estate.] \ ^°- —-■ ^^f; ^°- " ' ■' ] [Title of form.] State of , County ^ of . ' ®^" , whose foregoing claim is herewith presented to the- administrator^ of the estate of said deceased, being sworn,, says: That the amount thereof, to wit, the sum of dollars ($ ), is justly due to said claimant; that no pay- ments have been made thereon which are not credited; and that there are no offsets to the same, to the knowledge of afiSant. Subscribed and sworn to before me this day of , 19 — , Notary Public, etc.^ Explanatory notes. 1. Or, City and County. 2. Or, executor. 3. Or other officer taking the oath. This form should be attached to the Creditor's Claim, or be printed thereon. § 452. Form. Indorsements on back of creditor's claim.* The within claim, presented by , a creditor of the estate of said deceased, is allowed and approved for $ ,. this day of , 19 — , Administrator of said Estate. Allowed and approved for $ , this day of , 19 ■ , Judge of the Court. CLAIMS AGAINST ESTATES. 675 The within claim is rejected this day of , 19 — , Administrator of said Estate. , Judge of the Court. Explanatory notes. 1. These indorsements are to be made on the back of the Creditor's Claim. § 453. Form. Affidavit that creditor had no notice. [Title of court.] [Title of estate.] P° ' ^^P^^- ^o . \ [Title of form.] State of , G5unty= of J ss. , being duly sworn, says : That he is a creditor of the said , deceased ; that he had no notice of the death of deceased, or of notice to creditors, until the day of , 19—, by reason of being out of the state at the time of such death, to wit, in the state of ; and that a decree of distribution has not yet been entered in the matter of the above-entitled estate. He therefore makes this affidavit, and presents herewith to the administrator ^ of such estate his claim against said estate, and further says, upon his oath, that the amount of said claim, to wit, the sum of dollars ($ ), is justly due to the said claimant ; that no payments have been made thereon which are not credited; and that there are no offsets to the same, to the knowledge of said affiant. Subscribed and sworn to before me this day of 19 , Notary Public, etc.* Explanatoiy notes. 1. Give file number. 2. Or, City and County. 3. Or, administratrix, executor or executrix, etc., according to the fact. 4. Or other ofS.cer taking the oath. § 454. Form. Affidavit to creditor's claim, by one other than the claimant. ^_.,, „ . ^ [Title of court.] ( No 1 Bept. No [Title of estate.] | ^^.^^ ^^ ^^^^^ State of - , , gg County^ of ,}■ being duly sworn, says: That he is the managing agent ' of , whose foregoing claim is herewith presented 676 PEOBATE LAW AND PRACTICE. to the administrator* of said deceased; that -affiant has per- sonal knowledge of all the facts of said claim, and makes this affidavit in behalf of the said claimant, , who is absent from the state ; ° that the amount of said claim, to wit, the sum of dollars ($ ), is justly due to the said claimant; that no payments have been made thereon which are not credited ; and that there are no offsets to the same, to the knowledge of affiant. Subscribed and sworn to before me this day of , 19 — , Notary Public, etc.» lixplauatory notes. 1. Give file number. 2. Or, City and County. 3. Or other capacity in which affiant is acting. 4. Or, adminis- tratrix, or administrator or administratrix with the will annexed; or, executor or executrix of the last will and testament of; or the plural of any of these. 5. Or state any other good reason why the claimant cannot make the affidavit. 6. Or other officer, according to the fact. § 455. Form. Affidavit of corporation to creditor's claim. [Title of court.] f No 1 Dept. No I [Title of form.] -.} ss. [Title of estate.] State of , County^ of - , being duly sworn, says: That the Company, whose claim is herewith presented to the administrator " of said deceased, is a corporation, organized, acting, and exist- ing under the laws of the state of ; that affiant is the president * of such corporation, and has personal knowledge of all the facts of said claim ; that the amount of said claim, to wit, the sum of -^ dollars ($ ), is justly due to the said claimant; that no payments have been made thereon which are not credited; and that there are no offsets to the same, to the knowledge of said affiant. Subscribed and sworn to before me this day of , 19-^. , Notary Public, etc." Explanatory notes. 1. Give file number. 2. Or, City and County. 3. Or, administratrix, or administrator or administratrix with the will annexed, or executor or executrix of the last will and testament of; or the plural of any of these, according to the fact. 4. Or, sec- retary, or other officer, as the case may be. 5. Or other o£S«er taking the oath. CLAIMS AGAINST ESTATES. 677 § 456. Pornii AflBdavit by partnership to creditor's claim. [Title of court.] [Title of estate.] J ^° ^ ^P*- ^° • i [Title of form;] State of . County 2 of _Jss. , being duly sworn, says : That the Company, whose foregoing claim is herewith presented to the adminis- trator " of said deceased, is a copartnership, composed of • , , and * doing business under the firm name and style of ; that afSant is a member of such copartner- ship, and has personal knowledge of all the facts of said claim; that the amount of said claim, to wit, the sum of dollars ($ ), is justly due to the said claimant; that no payments have been made thereon which are not credited; and that there are no offsets to the same, to the knowledge of said affiant. Subscribed and sworn to before me this day of , 19 — , Notary Public, etc.= Explanatory notes. 1. Give file number. 2. Or, City and County. 3. Or, administratrix, etc., according to the fact. 4. Give names of copartners, and name of firm. 5. Or other offi.cer taking the oath. § 457. AflBdavit in support of claim. Allowed claim to bear same interest as judgments. Every claim which is due, when presented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim be not due when presented, or be con- tingent, the particulars of such claim must be stated. When the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reason why it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or administrator- may also require satisfactory vouchers or proofs to be produced in support of the claim. If the estate be insolvent, no greater rate of interest shall be allowed 678 PROBATE LAW AND PRACTICE. upon any claim after the first publication of notice to credi- tors than is allowed on judgments obtained in the superior court. Kerr^s Cyc, Code Civ. Proc, § 1494. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 822, p. 314. Arizona. Rev. Stats. 1901, par. 1743. Colorado. 3 Mills's Ann. Stats., sees. 4783, 4788, 4789. Idaho.* Code Civ. Proc. 1901, sec. 4137. Kansas. Gen. Stats. 1905, §§ 2958, 2962, 2963. Montana.* Code Civ. Proc, sec. 2604. Nevada. Comp. Laws, sec. 2894. New Mexico. Comp. Laws 1897, sec. 1967. North Dakota. Eev. Codes 1905, § 8100. Oklahoma. Eev. Stats. 1903, sec. 1620. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1160. South Dakota.* Probate Code 1904, § 171. Utah. Eev. Stats. 1898, sees. 3852, 3855. Washington. Pierce's Code, § 2534. Wyoming. Eev. Stats. 1899, sec. 4750. § 458. Superior judge may present claim, and action thereon. Any judge of a superior court may present a claim against the estate of a decedent for allowance to the execu- tor or administrator thereof, and if the executor or admin- istrator allows the claim, he must in writing designate some other judge of the superior court of the same or an adjoin- ing county, who, upon the presentation of such claim to him, is vested with power to allow or reject it, and the judge presenting such claim, in case of its rejection by the executor or administrator, or by such judge as shall have acted upon it, has the same right to sue ia a proper court for its recovery as other persons have when their claims against an estate are rejected. Kerr's Cyc. Code Civ. Proc, § 1495. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1744. Idaho. Code Civ. Proc. 1901, sec. 4138. Montana.* Code Civ. Proc, sec. 2605. Nevada. Comp. Laws, sec 2895. North Dakota. Eev. Codes 1905, § 8102. CLAIMS AGAINST ESTATES. 679 Oklahoma. Rev. Stats. 1903, sec. 1622. South Bakota. Probate Code 1904, § 173. Utah. Rev. Stats. 1898, sec. 3854. Washington.* Pierce's Code, § 2537. § 459. Allowance and rejection of claims. When a claim, accompanied by the affidavit required in this chapter, is pre- sented to the executor or administrator, he must indorse thereon his allowance or rejection, with the day and date thereof. If he allow the claim, it must be presented to a judge of the superior court for his approval, who must in the same manner indorse upon it his allowance or rejection. If the executor or administrator, or the judge, refuse or neglect to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect may, at the option of the claimant, be deemed equi- valent to a rejection on the tenth day; and if the presenta- tion .be made by a notary, the certificate of such notary, un- der seal, shall be prima facie evidence of such presentation and the date thereof. If the claim be presented to the execu- tor or administrator before the expiration of the time limi- ted for the presentation of claims, the same is presented in time, though acted upon by the executor or administrator, and by the judge, after the expiration of such time. If the claim be payable in a particular kind of money or currency, it shall, if allowed, be payable only in such money or cur- rency. Kerr's Cyc. Code Civ. Proc, § 1496. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 823, p. 314. Arizona. Eev. Stats. 1901, par. 1745. Idaho. Code Civ. Proc. 1901, sec. 4139. Montana, Code Civ. Proc, sec. 2606. Nevada. Comp. Laws, sec. 2896. New Mexico. Comp. Laws 1897, sees. 1967, 1999. North Dakota. Eev. Codes 1905, § 8103. Oklahoma. Bov. Stats. 1903, sec. 1623. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1161. South Dakota. Probate Code 1904, § 174. Utah. Eev. Stats. 1898, sec. 3853. Washington. Pierce's Code, § 2535. Wyoming. Eev. Stats. 1899, sec. 4751. 680 PROBATE LAW AND PRACTICE. § 460. Porin. Notary's certificate of presentation of claim. [Title of court.] [Title of estate.] I^°- ^iiT"' ^f^*" ^°- ' ■■ \ [Title of form.] I, the undersigned, hereby certify : That on the day of , 19 — , I presented the annexed claim of , accompanied by the proper affidavit, to , administrator " of the estate of , deceased, personally, at ,' the place mentioned in the notice to creditors heretofore pub- lished; that said presentation was made at the request of said claimant ; that said administrator * refused to indorse on said claim his allowance or rejection thereof ;° and that he kept said claim for ten days, when he returned it to me, with his refusal to make any indorsement thereon.* "Witness my hand and official seal this day of , 19^. [Seal] , Notary Public in and for the County' of , State of. Explanatory notes. 1. Give file number. 2. Or, executor, etc. 3. Name the place. 4. O;', executor, etc. 5. Or, that he took the claim and retained possession; or, destroyed it; or, refused to receive it, etc., according to the fact. 6. In case of destruction, a copy of the claim, if one was taken, may be attached to the certificate. 7. Or, City and County. § 461. Approved claims or copies to be filed. Claims se- cured by liens. Description. Lost claims. Every claim .allowed by the executor or administrator, and approved by a judge of the superior court, or a copy thereof, as here- inafter provided, must, within thirty days thereafter, be filed in the court, and be ranked among the acknowledged debts of the estate, to be paid in due course of administra- tion. If the claim be founded on a bond, bUl, note, or any other instrument, a copy of such instrument must accom- pany the claim, and the original instrument must be exhib- ited, if demanded, unless it be lost or destroyed, in which case the claimant must accompany his claim by his affidavit, containing a copy or particular description of such instru- ment, aad stating its loss or destruction. CLAIMS AGAINST ESTATES. 681 Claims secured by liens may be described. If the claim, or any part thereof, be secured by a mortgage or other lien which has been recorded in the office of the recorder of the county in which the land affected by it lies, it shall be suffi- cient to describe the mortgage or lien, and refer to the date, volume, and page of its record. Lost claims. If, in any case, the claimant has left any original voucher in the hands of the executor or administra- tor, or suffered the same to be filed ia court, he may with- draw the same when a copy thereof has been already, or is then, attached to his claim. A brief description of every claim filed must be entered by the clerk in the register, showing the name of the claimant, the amount and character of the claim, rate of interest, and date of allowance. Kerr's Cyc. Code Civ. Proc, § 1497. ANAI.OGOUS AND IDENTICAI, STATUTES. The * indicates identity. Arizona.* Rev. Stats. 1901, par. 1746. Colorado. 3 Mills's Ann. Stats., sec. 4786. Idaho.* Code Civ. Proe. 1901, sec. 4140. Montana. Code Civ. Proc, sec. 2607. Nevada. Comp. Laws, sec. 2896. North Dakota. Eev. Codes 1905, § 8104. Oklahoma. Eev. Stats. 1903, sec. 1624. South Dakota.* Probate Code 1904, § 175. Utah. Eev. Stats. 1898, sees. 3852, 3854. Washington. Pierce's Code, § 2536. Wyoming. Eev. Stats. 1899, see. 4752. § 462. Rejected claims to be sued for within three months. When a claim is rejected either by the executor or admin- istrator, or a judge of the superior court, the holder must bring suit in the proper. court against the executor or ad- ministrator within three months after the date of its rejec- tion, if it be then due, or within two months after it becomes due, otherwise the claim shall be forever barred. Kerr's Cyc. Code Civ. Proc, § 1498. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 823, p. 314. Arizona.* Bev. Stats. 1901, par. 1747. 682 PROBATE LAW AND PRACTICE. Idaho.* Code Civ. Proc. 1901, sec. 4142. Montana.* Code Civ. Proc, see. 2608. Nevada. Comp. Laws, sec. 2897. North Dakota.* Eev. Codes 1905, § 8105. Oklahoma. Eev. Stats. 1903, sec. 1625. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1161. South Dakota.* Probate Code 1904, § 176. Utah.* Eev. Stats. 1898, sec. 3856. Washington. Pierce's Code, § 2538. Wyoming. Eev. Stats. 1899, sec. 4753. § 463. Claims barred by statute of limitations. Examina- tion by judge. No claim must be allowed by the executor or administrator, or by a judge of the superior court, which is barred by the statute of limitations. When a claim is pre- sented to a judge for his allowance, he may, in his discre- tion, examine the claimant and others, on oath, and hear any legal evidence touching the validity of the claim. 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. Kerr's Cyc. Code Civ, Proc. (Kerr's Sjtats. and Amdts., p. 498), §1499. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 823, p. 314. Arizona. Eev. Stats. 1901, par. 1748. Idaho. Code Civ. Proc. 1901, sees. 4141, 4143. Montana. Code Civ. Proc, sec. 2609. Nevada. Comp. Laws, sec. 2898. North Dakota. Eev. Codes 1905, § 8106. Oklahoma. Eev. Stats. 1903, sec. 1626. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1161. South Dakota. Probate Code 1904, § 177. Utah. Eev. Stats. 1898, sec. 3857. Washington. Pierce's Code, § 2539. Wyoming. Eev. Stats. 1899, sec. 4754. § 464. Claims must be presented before suit. No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator, except in the following case : An action may be brought by any holder of a mortgage or lien to enforce CLAIMS AGAINST ESTATES. 683 the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint, but no counsel fees shall be recovered in such action unless such claim be so presented. Kerr's Cyc. Code Civ. Proc, § 1500. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1749. Kansas. Gen. Stats. 1905, §2957. Montana.* Code Civ. Proc, see. 2610. Hevada. Comp. Laws, see. 2899. North Dakota. Eev. Codes 1905, §§ 8099, 8106. Oklahoma. Eev. Stats. 1903, sec. 1627. South Dakota. Probate Code 1904, §§ 170, 178. Utah.* Eev. Stats. 1898, sec. 3858. Washington. Pierce's Code, § 2540. Wyoming. Eev. Stats. 1899, see. 4755. § 465. Time of limitation. The time during which there shall be a vacancy in the administration must not be in- cluded in any limitations herein prescribed. Kerr's Cyc. Code Civ. Proc, § 1501. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1750. Idaho.* Code Civ. Proc. 1901, sec. 4144. Montana.* Code Civ. Proc, sec 2611. Nevada.* Comp. Laws, sec. 2900. North Dakota. Eev. Codes 1905, § 8106. Oklahoma.* Eev. Stats. 1903, sec 1628. South Dakota.* Probate Code 1904, § 179. Utah. Eev. Stats. 1898, sec 3859. Washington.* Pierce's Code, § 2541. Wyoming. Eev. Stats. 1899, sec. 4756. § 466. Claims in action pending at time of decease. If an action is pending against the decedent at the time of his death, the plaintiff must in like manner present his claim to the executor or administrator, for allowance or rejection, authenticated as required in other cases; and no recovery shall be had in the action unless proof be made of the pre- sentations required. Kerr's Cyc. Code Civ. Proc, § 1502. 684 PROBATE LAW AND PRACTICE. AlfALOGOUS AND IDENIICAI. STATUIES. The * indicates identity. Arizona.* Rev. Stats. 1901, par. 1751. Idaho.* Code Civ. Proe. 1901, sec. 4149. Kansas. Gen. Stats. 1905, § 2956. Montana.* Code Civ. Proc, see. 2612. Nevada. Comp. Laws, see. 2901. North Dakota, Rev. Codes 1905, § 8107. Oklahoma.* Rev. Stats. 1903, sec. 1629. South Dakota.* Probate Code 1904, § 180. Utah.* Rev. Stats. 1898, sec. 3860. Washington.* Pierce's Code, § 2542. Wyoming.* Rev. Stats. 1899, see. 4757. § 467. Allowance of claim in part. Whenever any claim is presented to an executor or administrator, or to a judge, and he is willing to allow the same in part, he must state in his indorsement the amount he is wUling to allow. If the creditor refuse to accept the amount allowed in satis- faction of his claim, he shall recover no costs in any action therefor brought against the executor or administrator, unless he recover a greater amount than that offered to be allowed. Kerr's Oyc. Code Civ. Proc, § 1503. ANALOGOUS AND IDENTICAI. STATUTES. The * indicates identity. Arizona.* Rev. Stats. 1901, par. 1752. Idaho.* Code Civ. Proc. 1901, see. 4145. Montana.* Code Civ. Proc, sec. 2618. Nevada. Comp. Laws, see. 2902, North Dakota. Rev. Codes 1905, § 8107. Oklahoma.* Rev. Stats. 1903, sec. 1630. South Dakota.* Probate Code 1904, § 181. Utah.* Rev. Stats. 1898, sec. 3861. Washington.* Pierce's Code, § 2543. Wyoming. Rev. Stats. 1899, sec. 4758. § 468. Effect of judgment against executor. A judgment rendered against an executor or administrator, upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the judge; and the judgment must be that the executor or administrator pay, in due course of administration, the CLAIMS AGAINST ESTATES. 685 amount ascertained to be due. A certified transcript of the original docket of the judgment must be filed among the papers of the estate in court. No execution must issue upon such judgment, nor shall it create any lien upon the prop- erty of the estate, or give to the judgment creditor any priority of payment. Kerr's Oyc. Code Civ. Proc, § 1504. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 824, p. 315. Arizona. Eev. Stats. 1901, par. 1753. I(Jaho. Code Civ. Proe. 1901, sec. 4146. Montana.'*' Code t)iv. Proc, sec. 2614. Nevada. Comp. Laws, sec. 2903. North Dakota. Eev. Codes 1905, § 8108. Oklahoma. Rev. StatS. 1903, sec. 1631. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1162. South Dakota. Probate Code 1904, § 182. Utah.* Rev. Stats. 1898, sec. 3862. Washington.* Pierce's Code, § 2544. Wyoming.* Eev. Stats. 1899, see. 4759. § 469. Execution not to issue after death. If one is levied, the property may be sold. 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 eighty-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 satisfaction thereof; and the officer making the sale must account to the executor or administrator for any sur- plus 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 judgment debtor were stiU living. Kerr's Cyc, Code Civ. Proc, § 1505. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 825, p. 315. Arizona.* Rev. Stats. 1901, par. 1754. 686 PBOBATE LAW AND PEACTICE. Idaho.* Code Civ. Proc. 1901, sec- 4151. Montana.* Code Civ. Proc, sec. 2615. Nevada. Comp. Laws, see. 2904. North Dakota. Eev. Codes 1905, §§ 8109, 8169. Oklahoma. Kev. Stats. 1903, see. 1632. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1163. South Dakota. Probate Code 1904, § 183. Utah.* Rev. Stats. 1898, sec. 3863. Washington. Pierce's Code, § 2545. Wyoming. Eev. Stats. 1899, see. 4760. § 470. What judgment is not a lien on real property of estate. A judgment rendered against a decedent, dying after verdict or decision on an issue of fact, but before judgment is rendered thereon, is not a lien on the real prop- erty of the decedent, but is payable in due course of admin- istratiop. Kerr's Cyc, Code Civ. Proc, § 1506. ANALOGOUS AND IDENTICAL STATUTES. Tile * indicates identity. Arizona.* Eev. Stats. 1901, par. 1755. Idaho.* Code Civ. Proe. 1901, sec. 4150. Montana.* Code Civ. Proc, sec. 2616. North Dakota. Eev. Codes 1905, § 8170. Oklahoma.* Eev. Stats. 1903, sec. 1633. South Dakota.* Probate Code 1904, § 184. Wyoming.* Eev. Stats. 1899, sec. 4761. § 471. Doubtful claims may be referred. Effect of re- feree's allowance or rejection. If the executor or adminis- trator doubts the correctness of any claim presented to him, he may enter into an agreement, in writing, with the claim- ant, to refer the matter in controversy to some disinterested person, to be approved by the superior court, or a judge thereof. Upon filing the agreement and approval of such court or judge, in the office of the clerk of the court for the county in which the letters testamentary or of adminis- tration were granted, the clerk must enter a minute of the order referring the matter in controversy to the person so selected, or, if the parties consent, a reference may be had in the court; and the report of the referee, if confirmed, establishes or rejects the claim the same as if it had been CLiAIMS AGAINST ESTATES. "387 allowed or rejected by the executor or administrator and judge. Kerr's Cyc. Code Civ. Proc, § 1507. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sees. 826, 827, p. 315. Arizona.* Eev. Stats. 1901, par. 1756. Idaho.* Code Civ. Proc. 1901, sec. 4147. Montana.* Code Civ. Proc, sec. 2617. North Dakota. Eev. Codes 1905, § 8110. Oklahoma. Rev. Stats. 1903, sec. 1634. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1164. South Dakota. Probate Code 1904, § 185. Utah. Eev. Stats. 1898, sec. 3864. Washington. Pierce's Code, § 2546. Wyoming. Eev. Stats. 1899, sec. 4762. % 472. Form. Reference of claim. [Title of court.] iTitle of estate.] \^° ' ^«P*- ^° ( [Title of form.] It appearing that , the administrator ^ of the estate ■of , deceased, doubts the correctness of the claim of , for the sum of dollars ($ ), presented against said estate on the day of , 19 — ; that said administrator * has entered into an agreement with said claimant to refer the matter in controversy, the correctness ■of said claim, to , Esq., for investigation; and that the .said is a disinterested person ; this court * therefore approves of such reference; and said agreement and ap- proval having been filed in the office of the clerk of the court for the county ° in which the letters of administration were granted ; — It is ordered, That the matter in controversy be referred to the person so selected,* and that said referee make to this ■court a report, with all convenient dispatch, as to whether said claim, or any part thereof, should be allowed or rejected. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2, 3. Or, executor of the last will and testament, etc. 4. Or, the judge of this court. 5. Or, city and county. 6. If the parties consent, a reference may be had in the court. 688 PBOBATE LAW AND PRACTICE. § 473. Form. Referee's report as to correctness of cred^ iter's claim. [Title of court.] rrr-i.1 * i. 4. T (No 1 Dept. No , [Title of estate.] j ^^.^^^ J^^^^^ To the Honorable the — < — ■" Court of the County ^ of , State of A controversy having arisen between , a creditor of said estate, and , the administrator * thereof, as to the correctness of the claim of said for the sum of dollars ($ ) , presented against said estate, — I, the undersigned, referee, to whom such controversy has been referred to take evidence and report upon the facts respecting the liability of said estate upon such claim, hereby report that I have performed my duties as such referee, and find that all matters stated in said claim are true, and that such elaim is just and correct.^ I therefore recommend that it be allowed and approved, and that a decree be entered to that effect.* Eespectfully submitted. Dated , 19 — , Eeferee. Ezplanatoiy notes. 1. Give file number. 2. Title of court. 3. Or, City and County. 4. Or, executor, etc. 5. Or whatever the finding may be. 6. Or whatever other recommendation may be made. § 474. Trial by referee, how confirmed, and its effect. The referee must hear and determine the matter, and make his report thereon to the court in which his appointment is entered. The same proceedings shall be had in all respects, and the referee shall have the same powers, be entitled to the same compensation and subject to the same control, as in other cases of reference. The court may remove the ref- eree, appoint another in his place, set aside or confirm his report, and adjudge costs, as in actions against executors or administrators, and the judgment of the court thereon shall be as valid and effectual, in all respects, as if the same had been rendered in a suit commenced by ordinary process. Kerr's Oyc. Code Civ. Proc, § 1508. CLAIMS AGAINST ESTATES. 689 ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona. Eev. Stats. 1901, par. 1757. Idaho.* Code Civ. Proe. 1901, sec. 4148. Montana.* Code Civ. Proc, sec. 2618. North Dakota.* Rev. Codes 1905, § 8111. Oklahoma.* Rev. Stats. 1903, see. 1635. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1165. South Dakota.* Probate Code 1904, § 186. Washington. Pierce's Code, §2547. Wyoming.* Rev. Stats. 1899, sec. 4763. § 475. Liability of executor, etc., for costs. When a judg- ment is recovered, with costs, against any executor or admin- istrator, he shall be individually liable for such costs, but they must be allowed him in his administration accounts, unless it appears that the suit or proceeding in which the costs were taxed was prosecuted or defended without just cause. Kerr's Oyc. Code Civ. Proc, § 1509. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Rev. Stats. 1901, par. 1758. Idaho.* Code Civ. Proc. 1901, sec. 4213. Kansas. Gen. Stats. 1905, §2960. Montana.* Code Civs Proc, sec. 2619. Nevada.*- Comp. Laws, sec. 2905. North Dakota.* Rev. Codes 1905, § 8112. Oklahoma.* Rev. Stats. 1903, see. 1636. South Dakota.* Probate Code 1904, § 187. Utah.* Rev. Stats. 1898, see. 3865. Wyoming.* Rev. Stats. 1899, sec. 4764. § 476. Claims of executor, etc., against estate. If the executor or administrator is a creditor of the decedent, his claim duly authenticated by affidavit must be presented for allowance or rejection to a judge of the superior court, and its allowance by the judge is sufficient evidence of its cor- rectness, and must be paid as other claims in due course of administration. If, however, the judge reject the claim, action thereon may be had against the estate by the claim- ant, and summons must be served upon the judge, who may appoint an attorney, at the expense of the estate, to defend the action. If the claimant recover no judgment, he must Probate — 44 -690 PKOBATE LAW AND PRACTICE. pay all costs, including defendant's reasonable attorneys' fees, to be fixed by the court. Kerr's Cyc. Code Civ. Proc, § 1510. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sees. 828, 829, p. 316. Arizona. Eev. Stats. 1901, par. 1759. Colorado. 3 Mills's Ann. Stats., see. 4784. Idaho.. Code Civ. Proe. 1901, sec. 4152. Kansas. Gen. Stats. 1905, §2972. Montana.* Code Civ. Proc., see. 2620. Nevada. Comp. Laws, sees. 2895, 2906. North Dakota. Eev. Codes 1905, § 8113. Oklahoma. Eev. Stats. 1903, sec. 1637. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1166, 1167. South Dakota. Probate Code 1904, § 188. Utah. Eev. Stats. 1898, sec. 3866. Washington. Pierce's Code, § 2548. Wyoming.* Eev. Stats. 1899, sec. 4765. § 477. Executor neglecting to give notice to creditors, to be removed. 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. Kerr's Cyc. Code Civ. Proc, § 1511. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1760. Idaho.* Code Civ. Proo. 1901, sec. 4153. Montana.* Code Civ. Proc, sec. 2621. Nevada. Comp. Laws, sec. 2907. North Dakota.* Kev. Codes 1905, § 8114. Oklahoma. Eev. Stats. 1903, see. 1638. South Dakota.* Probate Code 1904, § 189. Washington. Pierce's Code, § 2549. § 478. Form. Order of removal for neglecting to give notice to creditors. ^^itie of court.] [Title of estate,] F" ^ !>«?*• ^o \ [Title of form.] It being shown to the court that , administrator ' of the estate of , deceased, has neglected for two months CLAIMS AGAINST ESTATES. 691 after his appointment to give notice to creditors, as pre- scribed by law; that a citation has issued for him to show cause for such neglect; that said citation has been served and returned, as provided by law and directed by this court ; and that said administrator ' has made default ; — It is ordered, That the letters of administration* hereto- fore granted to the said , as administrator ' of the estate of , deceased, be, and the same are hereby, revoked ; that be, and he is hereby, appointed adminis- trator of said estate ; and that letters of administration ° issue to him upon his taking the oath, and giving a bond in the sum of dollars ($ ), with sureties to be ap- proved by the judge of this court. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2, 3. Or, executor. 4. Or, letters testamentary. 5. Or, executor. 6. Or, in the case of an execu- tor removed, that letters of administration with the will annexed issue, etc. § 479. Executor to return statement of claims. At the same time at which he is required to return his inventory, the executor or administrator must also return a statement of all claims against the estate which have been presented 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 designate 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. Kerr's Oyc. Code Civ. Proc, §1512. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona. Eev. Stats. 1901, par. 1761. Idaho. Code Civ. Proc. 1901, see. 4154. Kansas. Gen. Stats. 1905, § 2959. Montana.* Code Civ. Proc., sec. 2622. Nevada. Comp. Laws, sec. 2908. North Dakota. Eev. Codes 1905, § 8115. Oklahoma. Eev. Stats. 1903, sec. 1639. 692 PROBATE LAW AND PKACTICE. South Dakota. Probate Code 1904, § 190. Utah. Eev. Stats. 1898, sec. 3867. Washington. Pieree's Code, § 2550. Wyoming. Eev. Stats. 1899, sec. 4766. § 480. Payment of 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 prop- erly 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. Kerr's Cyc. Code Civ. Proc, § 1513. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1762. Idaho.* Code Civ. Proe. 1901, sec. 4155. Montana. Code Civ. Proc, sec. 2623. North Dakota. Eev. Codes 1905, § 8116. Oklahoma. Eev. Stats. 1903, see. 1640. South Dakota. Probate Code 1904, § 191. Utah.* Eev. Stats. 1898, sec. 3868. Wyoming. Eev. Stats. 1899, sec. 4767. § 481. Manner of closing estates when claims are unpaid and claimant cannot be found. Whenever any claim has been presented to an executor or administrator, and to the court, and has been allowed and approved, but the same shall not have been paid, and the estate is in all other respects ready to be closed, if it be made to appear to the satisfac- tion of the court or judge, by affidavit, or by testimony taken in open court, that the same cannot be, and has not been, paid because the claimant cannot be found, the court or judge shall make an order fixing the amount of said claim, with interest, if any, and directing the executor or administrator to deposit the amount with the county treas- urer of the county in which the estate is being probated, who shall give a receipt for the same, and who shall be CLAIMS AGAINST ESTATES. 693 liable upon his official bond therefor. Such executor or administrator shall at once make the deposit in accordance with such order of court and shall forthwith proceed to close up and settle such estate. Upon the final settlement of his accounts, the receipt of such treasurer shall be received as a proper voucher for the payment of such claim, and shall have the same force and effect as if executed by such claimant. [Deposit in state treasury.] When the amount so depos- ited is not claimed within five years the court or judge, upon such showing by the affidavit of the county treasurer, must direct the same to be deposited in the state treasury for the benefit of such claimant, 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 state treasurer is produced that he is entitled thereto. 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 amount of the claim paid to the claimant, or his legal representative, on filing the proper receipt. [When amount of claim escheats to state.] If no one claims the amount, as herein provided, the claim devolves and escheats to people of the state of California and shall be placed by the state treasurer to the credit of the school fund. This section shall be applicable to any and all estates now pending in which a decree of final discharge has not been granted. Kerr's Cyc. Code Civ. Proc, § 1514. CLAIMS AGAINST ESTATE. 1. Notice to ciedltois. 2. Ulaims in general. (1) In general. (1) Jurisdiction of coorts. (2) When not necessary. (2) Meaning of terms. (3) Time of, dependent on value (3) What is a claim. of estate. (4) Statement of particulars. (4) Additional notice. New no- (5) Affidavit or verification. tice. (6) Claim Is good in form when. (6) Publication. 3. Presentation of claims. (6) Decree establishing notice. (1) In general. (7) Order vacating decree. (2) Necessity of. (8) Decree of no debts. (3) Place. Persons to act. Wai- ver. 694 PEOBATE LAW AND PEACTICB. (4) Alisence from state. (6) Manner of presdntmeut. (6) Amendment of claims. (7) What claims must be pre- sented. (8) " Contingent claims." (9) Claim of executor or admin- istrator. (10) What claims need not be pre- sented. (11) Same. Vendor's lien. (12) Same. Specific property. (13) Effect of presentment. (14) Effect of non-presentment. (15) Effect of death. (16) Presentation after death. 4. Allowance and rejection of claims. (1) In general. (2) Passing on claims. In gen- eral. (3) Same. Bejectiou of claims. (4) Bight to consider claim re- jected. (5) Power of court and judge. (6) Filing of claims. (7) Defective verification. (8) Amendment of claim. (9) Objections to allowance. (10) Effect of allowance. In gen- eral. (11) Same. Presumption. Evi- dence. (12) Judgment of allowance. (13) Arbitration. Kefereuce. (14) Claims properly allowed. (15) Claims that will be rejected. (16) Claim of executor or admin- istrator. (17) Absence f'om state. (18) Judgments. (19) Contingent claims. (20) Interest. (21) Contest of claims. Vacating allowance. 6. Suits on claims, (1) In general, (2) Jurisdiction. (3) Presentation, when necessary. (4) No presentation necessary when. (6) Contingent claims. (6) Services. (7) Pleadings. Sufficiency of com- plaint. (8) Pleadings. Allegation as to presentation of claim, (9) Pleadings. Amendment of complaint. (10) Pleadings. Answer. Bill of particulars. (11) Pleadings. Variance. (12) Parties. Administrator, only, is necessary when. (13) Evidence. In general. (14) Evidence. Presentation. Pay- ment. Burden. (15) Evidence. FlaintlS's statu- tory inability to testify. (16) Evidence. Admissions of de- cedent. (17) Interest. (18) Set-off. Counterclaim. (19) Pindings. Becovery of costs. 6. Iiimitation of actions. Special statutes of limitation. (1) In general. (2) Application of statutes. Spe- cial and general. (3) Barred claims not to be al- lowed. Exception. (4) Suits to be commenced when. (5) Statute commences to run when. (6) Arrest, staying, or suspen- sion of statute. (7) Revival of actions. Waiver of statute. (8) Action is not barred when. (9) Action is barred when. (10) Pleading. Defense. 7. Judgment against executor or ad- ministrator. (1) In general. (2) Default. Amendment. CLAIMS AGAINST ESTATES. 695 (S) Form of Judgment. (4) Recovery. Costs. (5) Effect of judgment. (6) Execution. 8. Enforcement of claims against e»- Btates. (1) In general. (2) By attachment. 9. Action pending against decedent at time of Ills deatb. Presen- tation of claim. (1) In general. (2) Practice. Substitution. Sup- plemental complaint. 10. Death of one against whom right of action exists. (1) Bight of action preserved. (2) Effect of, as to statute of limitations. 11. Foreclosure of mortgages. In gen- eral. (1) Presentation of claim. Pur- pose of. (2) Presentation. When neces- sary. (3) Presentation. When not ne- cessary. (4) Distinct proceedings. (5) Presentation. Form of. (6) Pleadings. Parties. (7) Presentation. Failure to pre- sent. (8) Effect of allowance. Bight to foreclose. (9) Judgment. Interest. (10) Sale. Holder as purchaser. (11) Redemption. Surplus. 12. Foreclosure of mortgages. Limita- tion of actions. (1) In general. 13. Foreclosure of mortgages. Death of mortgagor. (1) In general. (2) Enforcement without presen- tation. (3) Express waiver in complaint. (4) Limitation of actions. la general. (5) Limitation of actions. Death before maturity. (6) Limitation of actions. Death of defendant pending ac- tion. (7) Bedemptlon. 14. Mortgages on homesteads. (1) In general. Parties to fore- closure. (2) Presentation of claim. When necessary. (3) Presentation of claim. When not necessary. (4) Limitation of actions. 15. Trusts. Deeds of trust. (1) In general. (2) Presentation is necessary when. (3) Becovery of specific property. (4) Deeds of trust. 16. Appeal. (1) In general. (2) Bight of appeal. Jurisdic- tion. 1. Notice to creditors. (1) In general. A notice to the creditors of a decedent, requiring them to present their claims to the executor or administrator, may- designate the office of his attorney as the place where he transacts the business of the estate, and as the place for the presentation, although he may be engaged in transacting some kind of business elsewhere: Bollinger v. Manning, 79 Cal. 7, 13; 21 Pac. Eep. 375. But a claim may be presented to him before the publication of notice to creditors: Janin v. Browne, 59 Cal. 37, 43. In a statute that requires creditors €96 PKOBATE LAW AND PEACTICE. to present their claims to the executor or administrator " at the place of his business," the words " place of his business " should be con- strued to include the place where the administrator transacts the business of the estate, though he may be engaged in transacting some kind of business elsewhere. He may properly designate the office of his attorney as the place where he transacts the business of the estate, and designate that as the place for the presentation of claims: Bol- linger V. Manning, 79 Cal. 7, 13; 21 Pac. Eep. 375. It is unnecessary, under the Nevada statute, that the notice to be giyen by an executor or an administrator to the creditors of an estate should specify whether the place where the claims are to be presented is his place of residence or is his place of business: Douglass v. Folsom, 21 Nev. 441; 33 Pac. Eep. 660. Where the statute does not expressly require the administrator to sign the notice personally, he may authorize his attorney to>sign it in his name and in his behalf: Meikle t. Cloquet (Wash.), 87 Pac. Eep. 841, 843. (2) When not necessary. Notice to creditors is not necessary where it can result in no possible good. The law does not require vain things. Hence where the widow is entitled to have the whole estate set apart to her, as where it does not exceed the statutory limit, publication of notice to creditors is not necessary: Estate of Atwood, 127 Cal. 427, 430; 59 Pac. Eep. 770; Estate of Palomares, 68 Cal. 402. (3) Time of, dependent on value of estate. Under the California statute, if the estate exceeds ten thousand dollars in value the execu- tor or administrator is to call upon the claimants to present their claims within ten months from the date of the first publication of notice. If the estate is less than ten thousand dollars, then to present them within four months. But, whUe he is so called upon to designate the time, his designation is not, of course, a judicial determination of the value of the estate, and is not binding upon any creditor or claimant, if the time limit is not the time prescribed by law according to the value of the estate. A wrong determination, by an executor or administrator, of the value of the estate, and publication of notice accordingly, cannot deprive creditors of their rights. Prom the fact that the notice to creditors must be published immediately after he is appointed, and that the executor or administrator, after his appoint- ment, has three months within which to return the inventory and appraisement, it is plainly observable that the law does not contem- plate that he shall obtain information from the appraisements for the purpose of fixing the time specified in the notice in which creditors may present their claims. It would seem, therefore, that he must, for himself, and at his own risk, investigate and determine the time ill which creditors may appear and present their claims; and a wrong determination of that fact, by him, may often result in serious conse- quences, for his decision of the fact is in no sense judicial, and CLAIMS AGAINST ESTATES. 697 therefore not binding and conclusive upon the creditors. The law, in effect, says that when the estate is of greater value than ten thousand dollars the creditors are entitled to ten months' notice. It does not say that when the executor or administrator determines the value to be greater than ten thousand, the notice shall be given for ten months; bxit it is the fact, and not the executor's or administrator's determina- tion of the fact, that is controlling. The law gives the creditors certain rights as to the time within which they may present their claims, and no executor or administrator, by giving a four months' notice, where he should have given a ten months' notice, can in any way deprive creditors of those rights: Paterson v. Schmidt, 111 Cal. 457, 458; 44 Pae. Eep. 161. (4) Additional notice. New notice. When the probate judge makes an order for the publication of notice to creditors, he may also direct additional notice at any time withinthe period allowed for the presen- tation of claims; Johnston v. Superior Court, 105 Cal. 666, 668; 39 Pae. Kep. 36. The only effect of giving insuflScient notice is to operate as an extension of the time for the presentation of claims, until due and proper notice shall be given: Pitte v. Shipley, 46 Cal. 154, 161. If the probate judge determines, when proof of publication is made, that the publication did not give notice to creditors, it is his duty to direct notice to be given, as though there had been no previous attempt to do so, and the time for the presentation of claims will begin to run from the time of the giving of the new notice: Johnston V. Superior Court, 105 Cal. 666, 669; 39 Pae. Eep. 36. (5) Publication. The court has no power to designate in its origi- nal order the newspaper in which the notice to creditors shall be published; this is a function to be performed by the executor or admin- istrator. A provision in the statute, that if there is no newspaper published in the county, the court is to designate the newspaper in which the notice is to be published, implies that the power of the court to designate the newspaper exists only in the case specified: Brouse v. Law, 127 Cal. 152, 153; 59 Pae. Eep. 384. The legal period of publication, however, is to be fixed by the judge. Until he acts, it cannot be known whether the period of publication will exceed the statutory minimum or not. Without an order, therefore, there can be no legal period of publication, and consequently no authority for publishing. A publication in advance of the order of the court is of no validity; and the best evidence of publication is the newspaper itself: Wise v. Williams, 88 Cal. 30, 34; 25 Pae. Eep. 1064. The affi- davit of publication is only prima facie evidence of the facts therein stated and may be contradicted by the files of the newspaper in which the notice was published, showing that such notice was not published for the time required by law: Wise v. Williams, 88 Cal. 30 34' 25 Pao. Eep. 1064. If a publication is to be made not less 69S PROBATE LAW AND PEACTICE. than once a week for four weeks, and the affidavit of publication shows that it was published on August 7th, 14th, 21st, and 28th, but the files of the newspaper introduced in evidence show that the notice was not published on August 28th, which contradicts the afidavit, it results that there were only three publications after the order for publication was made: Wise v. Williams, 88 Cal. 30, 34; 25 Pac. Eep. 1064. A failure to publish such notice does not dispense with the necessity of presenting claims before suit thereon, but only with the necessity of presenting them within the time prescribed by the statute: McFarland v. Pairlamb, 18 Wash. 601; 52 Pac. Eep. 239, 240. It is only in those cases where the court, in its discretion, by reason of the circumstances, deems it proper to require a more extended pub- lication than the minimum required by the statute that it is necessary to specify the time of publication in the order. In all other instances the order may be silent in that respect, and when it is so, a publica- tion of proper notice thereunder, not less than the minimum number of times required by the statute, is a compliance with the law, and constitutes legal notice to the creditors: Hensley v. Superior Court, 111 Cal. 541, 542; 44 Pac. Bep. 232. The executor or administrator is required to publish the notice to creditors in a newspaper for the length of time directed, calling upon all persons having claims against him to exMbit their claims, with the necessary vouchers, either at his place of residence or business, as specified in the notice; and he is further called upon to prescribe in this notice the time limit within which their claims must be presented: Estate of Wilson, 147 Cal. 108, 110; 81 Pac. Eep. 313. (6) Decree establishing notice. If legal notice to creditors has been given, and due proof thereof made, it is the duty of the court to make an order or decree showing that due notice to creditors has been given, and directing that such order or decree be entered in the minutes of the court and recorded: Hensley v. Superior Court, 111 Cal. 541, 543; 44 Pac. Eep. 232. But a decree establishing due notice to creditors is not conclusive. It may be shown by proof that the publication of notice to creditors was insufficient: Wise v. WUliams, 88 Cal. 30, 34; 25 Pac. Eep. 1064; Estate of Wilson, 147 Cal. 108, 111; 81 Pac. Eep. 313. Upon the application of the executor or admin- istrator for a decree declaring that due notice to creditors has been given, the court will examine the character of the publication that has been made, and, if it shall then determine that its character and form have been such as not to give a sufficient notice for the presen- tation of claims against the estate, it will refuse to make such decree: Brouse v. Law, 127 Cal. 152, 154; 59 Pac. Eep. 384. A failure to file proof of the publication of the notice to creditors within the time prescribed by the statute does not affect the validity of the notice, if it was properly given. The time within which a creditor is required to present his claim begins to run from the first publication of the CLAIMS AGAINST ESTATES. 699 notice, and not from the filing of the proof thereof with the county clerk. The publication, and not the filing, is therefore the vital fact to be considered, and the date of the filing is not jurisdictional. The statute requiring it to be made within a certain time is directory, and not mandatory: In re Conant's Estate, 43 Or. 530; 73 Pac. Kep. 1018, 1020. The statute contemplates that an executor or administra- tor may obtain his decree establishing due notice to creditors after the notice has in fact been given, by presenting and filing a copy thereof, with the affidavit of due publication, and upon the production of such other testimony as may be satisfactory to the court. While, in practice, such decrees are taken always as a matter of course upon the presentation and inspection of the statutory proofs, it may sometijnes happen that the question of the value of the estate is an exceedingly close one, and that valuable rights may depend on an exact determination of the value. It is not incumbent, therefore, upon the trial judge to make his decree at haphazard, or upon partial, and what may prove subsequently to be most unsatisfactory, proof. The wisest course to pursue in such a case might well be to wait until the time for distribution has arrived, when all the parties are regularly before the court, and when the value of the estate can be accurately determined: Estate of WUson, 147 Cal. 108, 110; 81 Pac. Eep. 313. (7) Older vacating decree. The question of the value of an estate is often a close one, and the order directing publication of notice in some designated newspaper is made without knowledge of the actual value of the estate. It follows, therefore, that the order of the trial court vacating its decree establishing due notice to the creditors is in no sense a judgment upon the facts, so as to constitute res judicata between the parties, and has no other or further effect than to clear the way for a proper determination of the question as to the disputed value of the estate. If the determination of that question has been reserved until the time for distribution has arrived, and it has been made to appear clearly that the estate was of less value than ten thousand dollars, a publication of notice to creditors for four months would be sufiicient, and the court's decree establishing due notice would be in all respects regular: Estate of Wilson, 147 Cal. 108; 81 Pac. Bep. 313, 314. (8) Decree of no debts. A decree that there are no debts cannot be entered until the time limited in the notice to creditors has expired and if no such notice has been given, the ex parte affidavits of persons interested in the estate are not sufficient to prove that there are no debts outstanding: In re Higgins' Estate, 15 Mont. 474; 39 Pae. Kep. 506, 510. 2. Claims in general. (1) Jurisdiction of courts. The estate of a deceased person is within the jurisdiction and under the control of the probate court. 700 PROBATE LAW AND PRACTICE. Executors and administrators are appointed by and render their accounts to that court, and the whole subject-matter of such estates, and their settlement and distribution, comes within its jurisdiction and under its scrutiny: Dodson v. Nevitt, 5 Mont. 518; 6 Pac. Eep. 358. Though county courts are vested with jurisdiction pertaining to courts of probate, the two jurisdictions are as separate and distinct as if conferred upon separate tribunals. While sitting in the transaction of probate business, the nature and jurisdiction of the county court must be sought in the general nature and jurisdiction of the probate courts as they are known in the history of the English law and the jurisprudence of this country. The allowance or ordering of the pay- ment of claims against estates that are in process of administration has always been considered an appropriate subject for the jurisdiction of probate courts. It follows that, although a county court has civil jurisdiction of an amount not exceeding five hundred dollars, it has, while sitting in the transaction of probate business, jurisdiction to adjudicate and allow a claim for more than five hundred' dollars against an estate: In re Morgan's Estate, 46 Or. 233; 77 Pac. Eep. 608. (2) Meaning of terms. The word " due " is sometimes used, in the statute, in two senses; namely, in the sense of " payable " and in the sense of " owing." Thus in the clause " if the claim be not due when presented," etc., and in the clause " if the claim which is due," etc., the term is used in the sense of payable; and in the clause " justly due," it is used in the sense of owing: Crocker-Woolworth Nat. Bank V. Carle, 133 Cal. 409, 411; 65 Pac. Eep. 951. The words " claimant " and "claim" are used, respectively, as synonymous with "creditor" and " legal demand for money " to be paid out of the estate: Gray V. Palmer, 9 Cal. 616, 636; Estate of McCausland, 52 Cal. 568. " Claims against an estate " are those in existence at the date of the death of the deceased. Other claims against the estate are those incurred by the administrator or executor in settling the estate, and are properly denominated " expenses of administration ": Dodson v. Nevitt, 5 Mont. 518; 6 Pac. Eep. 358. (3) What is a claim. The term " claim," as used in connection with the estate of a deceased person, has reference to such debts or demands against the decedent as might have been enforced against him in his lifetime by personal action for the recovery of money, and upon which a money judgment could have been rendered. A balance struck upon an account between parties is such a demand as would constitute a sufficient cause of action: Estate of Swain, 67 Cal. 637 8 Pac. Eep. 497, 500; Fallon v. Butler, 21 Cal. 24; 81 Am. Dec. 140 Estate of McCausland, 52 Cal. 568; Stuttmeister v. Superior Court, 72 Cal. 487, 489; 14 Pac. Eep. 35. The word " claim " is broad enough to embrace a mortgage or any other lien against the estate: Ellis v. Polhemus, 27 Cal. 350, 354; but the word " claim " or " demand " does not include a family allowance: Estate of McCausland, 52 Cal. 568, 577. CLAIMS AGAINST ESTATES. 701 All wages due a clerk for services rendered, before as well as during the last allowance of a deceased employer, fall within the second class of claims against his estate, and are included in the term " wages of servants " as used in the Kansas statute respecting executors and administrators and the settlement of estates of deceased persons: Cawood V. Wolfley, 56 Kan. 281; 43 Pac. Eep. 236. A vendor of real estate has a lien upon the same in the hands of the administrator for the unpaid purchase-money: Cahoon v. Eobinson, 6 Cal. 225, 226. Where an attorney compromises a claim against an estate, on a con- tract made with the administrator, several years after the intestate's death, the claim of such attorney for services is not a claim against the estate: Lust v. Patterson, 2 Col. App. 306; 30 Pac. Eep. 253, 254. A payment made by the heirs of an intestate on the latter's mort- gage indebtedness, before one of such heirs is appointed as administra- tor, is not a claim against the estate; and cannot be made such by the heir's subsequent appointment as administrator: Estate of Heeney, 3 Cal. App. 548; 86 Pac. Eep. 842. So if heirs choose to bring suit to remove a cloud from their property, no one can object; but the ' expenses of such litigation are to be adjusted and paid by the parties to the action, and not by the estate of which the property forms a part: Estate of Heeney, 3 Cal. App. 548; 86 Pac. Eep. 842, 844. If a large amount of the separate funds of the husband is commingled with a comparatively trifling amount of the separate funds of the wife, the husband's separate property is not to be forfeited, but the wife, at most, can have a claim only against the estate of her hus- band for her funds so commingled: Estate of Cud worth, 133 Cal. 462, 468; 65 Pac. Eep. 1041. (4) Statement of particulars. It is not required that a claim against an estate should state the facts with all the preciseness and detail required in a complaint, and the sufficiency of such a claim is not to be tested by the rules applicable to pleadings. It should, of course, sufficiently indicate the nature and amount of the demand to enable the executor and judge in probate to act advisedly upon it; and when it does this, it is sufficient. The claimant is not required to show the circumstances in which the claim originated, and the con- duct of the parties in reference thereto: Pollitz v. Wickersham (Cal.), 88 Pac. Eep. 911, 916. As an illustration of a sufficient statement of particulars of claims, see Mauer v. King, 127 Cal. 114, 116; 59 Pac. Eep. 290. It is a sufficient statement of the " particulars " of claims based on contract, if such statement shows the date of the contract, the names of the parties, the amount to be paid, when it is to' be paid and the kind of money is also stated: Landis v. Woodman, 126 Cal. 454 456; 58 Pac. Eep. 857. In the case of a simple, plain, ordi- nary promissory note, there is no necessity for stating any other par- ticulars than those appearing upon its face. The business world would be badly handicapped in dealing with commercial paper if a 702 PROBATE LAW AND PRACTICE. history of such paper were required to accompany it from its inception throughout its long and devious travels. To obtain such a history would be impossible in numberless cases: Landis v. Woodman, 126 Cal. 454, 456; 58 Pac. Eep. 857. A claim against the estate of a deceased person, for services rendered to him in his lifetime, which were agreed to be paid for out of the proceeds of the sale of certain parcels of real estate, that remained unsold at his death, is not void for uncertainty in not describing such real estate, as the only neces- sity for any reference to the land arises out of the fact that the claim should show that it was not barred by the statute of limitations, and the description of the land is not essential to that fact: Thompson V. Oreua, 134 Cal. 26, 29; 66 Pac. Eep. 24. (5) Af&davit or veiification. The affidavit to a claim against the estate of a deceased person must be made before an officer authorized to administer oaths: Winder v. Hendricks, 56 Cal. 464, 465. If the statute requires creditors, in filing claims against a decedent's estate, to file an affidavit stating that no payments have been made thereon which are not credited, and that there are no ofEsets to the same to the knowledge of the " affiant,'' an affidavit, filed by a creditor, that there are no ofEsets to the same to the knowledge of said " claimant " is sufficient, where the same person was " claimant " and' " affiant." The use of one word rather than the other in such a case is wholly immaterial: Davis v. Browning, 91 Cal. 603, 605; 27 Pac. Eep. 937; Dorais v. Doll, 33 Mont. 314; 83 Pac. Eep. 884; Warren v. McGill, 103 Cal. 153; 37 Pac. Eep. 144, 145. So the verification to a claim against the estate of a decedent is sufficient where it was in substantial com- pliance with the law in force at the time it was made: Poncin v. Furth, 15 Wash. 201; 4g Pac. Eep. 241, 242. If it is stated in the claim that it is for the sum of four hundred dollars, but in the affiaavit to the claim it is stated " that the amount thereof, to wit, the sum of four hundred, is justly due," etc., the omission of the word ■■ dollars " is not fatal to the affidavit: Hall v. Superior Court, 69 Cal. 79, 80; 10 Pac. Eep. 257. It is not material that the claim is verified, as in the case of a claim based upon a judgment, if the statute does not require it to be verified: Estate of Crosby, 55 Cal. 574, 578. The verification- of a claim against the estate of a deceased person is sufficient if it substantially complies with the statute: Griffith v. Lewin, 129 Cal. 596, 598; 62 Pac. Eep. 172. Thus if the claim con- tains a copy of the promissory note on which it is founded, and states that no part thereof has been paid, except the specified amount, and that a specified balance is due for principal and interest to a given date, an affidavit to the claim, reciting that the balance is justly due the claimant up to such date; that no payments have been made thereon which are not credited; and that there are no ofEsets to the same to the knowledge of the affiant, — is good, although the verifi- cation was made about two weeks after the date to which such bal- CLAIMS AGAINST ESTATES. 703 anee referred: Griffith v. Lewin, 129 Cal. 596, 598; 62 Pac. Eep. 172. Surplusage does not vitiate the verification, where it contains all that the statute requires. If the verification states that the sum is justly due to the claimant, and that no payments have been made thereon which are not credited, and that there are no offsets to the same to the knowledge of the claimant or affiant, " except some small items, the exact amount of which is not known to affiant," but which he is willing to have credited when the same is shown by the administra- tor, such exceptiqn does not vitiate the verification: Guerian v. Joyce, 133 Cal. 405, 406; 65 Pac. Eep. 972. Where the statute requires the affidavit to set forth the reason why it is not made by the claimant, when it is not so made, an affidavit, by claimant's attorney, that the claimant is a corporation, and that none of its officers, except said attorney, reside in the county, is a sufficient compliance with the statute: Empire State Min. Co. v. Mitchell, 29 Mont. 55; 74 Pac. Eep. 81, 82. But the affidavit is defective if it does not assign some reason which would relieve the claimant from making it: Maier Packing Co. v. Prey (Cal. App.), 89 Pac. Eep. 875, 876. So if the agent of a claimant presents a mortgage note to an executor or administrator of a deceased mortgagor, and makes an affidavit thereto, which fails to give any reason why it was not made by the claimant, and states that there are no offsets, " to the knowledge of the claim- ant," instead of " to the knowledge of affiant," as required by the statute, and the claim is rejected as a claim against the estate, such presentation is fatally defective, and will not support an action or judgment upon the note: Perkins v. Onyett, 86 Cal. 348, 350; 24 Pac. Eep. 1024. The statute requiring an affidavit to be attached to a claim showing that it is due, and that there have been no payments and no offsets, is not applicable to a judgment. In the case of a judgment, no such affidavit is required: Cullerton v. Mead, 22 Cal. 95, 99. The demand of an attorney for services rendered an adminis- trator during the progress of the settlement of the estate of a dece- dent, which has been allowed and approved, is not technically a " claim " against the estate, but will be treated as such: Stuttmeister V. Superior Court, 72 Cal. 487; 14 Pac. Rep. 35. (6) . Claim is good in form when. A claim against the estate of a deceased person, for services rendered, is sufficient in form, though it is in the form of an account showing the total number of days of service, the rate of payment per day, the amount paid on account, and the balance due: Duncan v. Thomas, 81 Cal. 56, 57; 22 Pac. Eep. 297. Under a statute which provides that claims presented in the probate court for allowance shall be heard summarily, and without the form of pleading, it is not proper practice to interpose a demurrer to a claim therein: Hayner v. Trott, 46 Kan. 70; 26 Pac. Eep. 415. A claim is good in form where it is presented to a probate court for allowance, and alleges that the debtor therein named owes the party 704 PROBATE LAW AND PEAOTICE. presenting it a stated sum for commissions paid upon the sale of certain machines, for which notes were taken that are uncollectable, and copies of said notes are attached, showing the amount of the same, and the amount of the commissions paid thereon is also shown, and said claim is verified, and has attached thereto contracts which provide that, when commissions have been paid on notes that are uncollectable, they shall be refunded: Hayner v. Trott, 46 Kan. 70; 26 Pac. Eep. 415. So a claim based upon a promissory note which has not matured at the time the claim is presented is suficient, if it is in the usual form and contains a copy of the note, followed by the required statutory afidavit. No other particulars of the claim need be stated where the promise to pay is not contingent, but is absolute, though the time of payment of the note depends upon the completion of another contract: Crocker- Woolworth Nat. Bank v. Carle, 133 Cal. 409, 410; 65 Pac. Eep. 951. A verified claim on a note, setting out a copy of the note, is sufficient without producing the original instrument, if the original is not demanded, particularly if the attorney for the estate afterwards informs the claimant that his claim may be considered as "rejected": MeParland v. Fairlamb, 18 Wash. 601; 52 Pac. Eep. 239, 241. 3. Presentation of claims. (1) In general. Claims against the estate of a decedent may be presented to the executor or administrator thereof before the publica- tion of notice to creditors to present their claims, but it is not usual to do so: Eicketson v. Eichardson, 19 Cal. 330, 354; Janin v. Browne, 59 Cal. 37, 43. A claim must be presented within the time prescribed by the notice: Davidson v. Eankin, 34 Cal. 503. There is no statute in California which, in terms, denies to a creditor and resident of a sister state the right to present his claim in the courts of California, whether the administration in the courts of that state be primary or ancillary; and, under the principle of comity, such a claim should be entertained: McKee v. Dodd (Cal.), 93 Pac. Eep. 854, 856. The com mencement of a suit, and the service upon the executor or adminis- trator of a verified complaint, within the time in which a claim could have been properly presented, operates as a presentation of the claim: Clayton v. Dinwoodey (Utah), 93 Pac. Eep. 723, 726. The commence- ment of a suit and its continuous prosecution operates as a presenta- tion of the claim, and obviates the necessity of presentation: Clayton V. Dinwoodey (Utah), 93 Pac. Eep. 723, 726. There should be an actual presentation of the claim within the time prescribed, or some- thing done by the party equivalent to it. The presentation need not be in any particular form, but must be sufficient to give such notice to the executor or administrator of the existence of the debt or demand, its character and amount, as would enable him with reasonable cer- tainty to provide for its payment. Mere knowledge on the part of the executor or administrator of the existence of the claim is not enough. CLAIMS AGAINST ESTATES. 705 The party holding the claim or demand must pursue some measures to present his demand, and not remain passive or sleep upon his right. The bringing of a suit or action at law or in equity, is in some juris- dictions regarded as an actual presentation: Clayton v. Dinwoodey (Utah), 93 Pae. Eep. 723, 726. (2) Necessity of. The holder of a claim against the estate of a deceased person cannot maintain any action thereon unless the claim has first been presented to the executor or administrator for allow-- ance or rejection: Dodson v. Nevitt, 5 Mont. 518; 6 Pac. Eep. 356, 359; Etchas v. Orena, 127 Cal. 588; 60 Pac. Rep. 45; Morse v. Steele, 149 Cal. 303; 86 Pac. Eep. 693. And there is no exception to this rule, except as to one who has been absent from the state. The statute is imperative, and applies to all claims arising upon contracts, and a «ourt is not authorized to make an exception to relieve from hardship or to aid apparent equities. The requirement is a statute of limita- tions, and the claims that are due or contingent must be presented within the time limited by the notice, and any claim not so pre- sented is barred forever: Morrow v. Barker, 119 Cal. 65, 66; 51 Pac. Eep. 12. All claims, whether due or not due, stand upon the same footing as to the time of presenting the same for allowance: Estate of Swain, 67 Cal. 637, 639; 8 Pae. Eep. 497. The failure to publish notice to creditors, as provided by the statute, does not dispense with the necessity of presenting the claim before suing thereon. The only effect of such failure is to dispense with the necessity of presenting the claim within the time prescribed by the statute: McFarland v. Pairlamb, 18 Wash. 601; 52 Pae. Eep. 239, 241. Nor does the statute which regulates the presentation of the claim affect the question of the necessity of presenting it: Pitte v. Shipley, 46 Cal. 154, 161. If any claim is made against the estate of deceased, it is necessary to present the same; otherwise no presentation is necessary: Sharpstein V. Priedlander, 54' Cal. 58. The law in force at the time governs as to the presentation of all claims to the representative of the estate for allowance: Hibernia S. & L. Soc. v. Hayes, 56 Cal. 297, 298. A con- tingent claim and a claim not due must be presented according to the statute after the same becomes due or absolute: Pico v. De la Guerra, 18 Cal. 422, 428. Claims must be presented, not merely filed with the county clerk. A mere filing with such officer does not make the claim a charge upon the estate: Pico v. De la Guerra, 18 Cal. '422, 428. It is compulsory upon a claimant to present his claim under oath, stating all offsets and credits, before he can maintain an action or be paid his claim. The purpose of the law is to ascertain the balance existing, and to give to both the claimant and to the estate the benefit of all just offsets, whether the estate be solvent or insolvent: Ainsworth v. Bank of California, 119 Cal. 470, 476; 63 Am. St. Eep. 135; 51 Pac. Eep. 952; 39 L. E. A. 686. If a nlarried woman owns a mine in her own right and as her separate property, and employs an agent to rent Probate — 46 706 PROBATE LAW AND PRACTICE. such mine for her and to account for the proceeds to her, and she brings an action against him to recover the same, it is no defense to such claim, for rents that the agent had expended money for plaintiff's husband, in representing certain quartz-mining claims, which had been conveyed by the husband to such agent for the purpose of sale, where the facts clearly show that the agent held the title to such quartz claims in trust for the deceased husband, in his lifetime, and, after his death, in trust for his estate, and where the estate had not been administered. In such a case, where the plaintiff was appointed admin- istratrix of her husband's estate, claims against it must have been presented to the administratrix for allowance before a suit could be commenced thereon: Eutherf ord v. Talent, 6 Mont. 132 ; 9 Pac. Eep. 821. BEFEBENCES. Necessity of presenting ward's claim against estate of deceased guardian: See note 58 L. B. A. 86. (3) Place. Persons to act. Waiver. Claims against an estate of a deceased person may be legally presented at the place where the notice directs them to be presented, whether the administrator or exec- utor is there to receive them or not. Absence from the state makes no difference in this rule: Douglass v. Folsom, 21 Nev. 441; 33 Pac. Eep. 660. The owner of a claim is the proper person to present it. Thus so long as a note and mortgage remain in the possession of the mort- gagee, unassigned, he is the only person that can lawfully present the demand for allowance, and if he fails to present it within the time specified in the notice to creditors, the demand, as a claim against the estate generally, is barred by the statute: Marsh v. Dooley, 52 Gal. 232, 235. Under the statutes of Nevada, it is not a sufficient; presenta- tion of a claim against an estate to hand it to the " attorney for the estate," at least, not without showing that it actually reached the administrator within the proper time for the presentation of claims. There is no such officer as attorney of record, or attorney generally^ for an estate. An attorney's employment with reference to the estate must always be in a particular matter, and with that matter his legal connection with the estate ends: Douglass v. Folsom, 21 Nev. 441; 33 Pac. Eep. 660. Even where an attorney is authorized by the executor to receive the presentation of particular claims, that does not authorize the attorney to receive claims generally, and to bind the executor by their presentation, without regard to whether they ever reached him. The attorney is simply the vehicle through which such claims are conveyed to the administrator, and this no more authorizes him to receive pther claims generally than it would have authorized the post- office department to do so, had that been the instrument of conveyance chosen. The presentation of a claim left at the place designated in the notice to creditors is legal, regardless of whether it is ever delivered to the executor or administrator, but a claim against an estate, not CLAIMS AGAINST ESTATES. 707 presented to the executor, nor presented at the place designated in the notice, but presented to an attorney who is acting for the estate, is not legally presented: Douglass v. Folsom, 22 Nev. 217; 38 Pac. Kep. 111. An executor or administrator cannot waive the necessity of pre- senting a claim against an 'estate for allowance: Harp v. Calahan, 46 Gal. 222, 233. An executor or administrator cannot waive the statu- tory regulation of the probate law that imposes the loss of a claim if it is not presented within the time prescribed: Defries v. Caitwright, 10 Haw. 249, 251. Where the business of a decedent has been con- ducted by the executor or administrator at a profit, obligations incurred by him for goods furnished in the conduct of the business are claims against the estate, and not against him personally. Such claims may therefore be presented for allowance either by the cred- itors or by the successor of the executor or administrator: Fleming v. Kelly, 18 Col. App. 23; 69 Pac. Bep. 272, 273. (4) Absence from state. When it is made to appear to the satis- faction of the court or judge, by the affidavit of the claimant, or by other proof, that he had no notice requiring him to present his claim against an estate, as provided by the statute, it may be filed after the expiration of the statutory time for the publication of the notice to creditors, if within the time prescribed by statute specially applicable to such a case; as, before the decree of distribution is entered, or before the filing of the final account: Cullerton v. Mead, 22 Cal. 95, 99; Mor- row V. Barker, 119 Cal. 65, 66; 51 Pac. Eep. 12; Pacific States S. L. & B. Co. V. Fox, 25 Nev. 229; 59 Pac. Rep. 4. No other proof of absence will be required than the claimant's own affidavit; nor is the time for filing his claim limited by the fact of his return to the state before the expiration of the time within which, by the terms of the notice, claims were required to be presented, for the law extends the time for presenting his claim, he being absent from the state during the time of the publication of the notice to creditors; and the statute requiring that it must appear " to the satisfaction of the executor or administrator and the probate judge " that the claimant had no notice does not give any power or right to say arbitrarily that they are not " satisfied," and therefore to reject the claim. The affidavit must show to the satisfaction of a reasonable, fair, and impartial mind that the claimant had no notice, and that is all that is required: Cullerton ^. Mead, 22 Cal. 95, 99. (5) Manner of presentment. The apparent purposes in requiring the presentation of claims accompanied with proper vouchers are: 1. To furnish the administrator with pertinent evidence touching their validity and justness, by means of which he may determine for him- self whether they ought to be paid out of the funds of the estate; and 2. To enable him to justify his acts, in some measure at least, in accounting with the probate court: Willis v. Marks, 29 Or. 493; 45 708 PROBATE LAW AND PRACTICE. Pae. Eep. 293, 296. The claimant is required to present his claim with the proper voucher. The voucher referred to is undoubtedly the affi- davit of the claimant to the effect that the amount claimed is justly due, etCi The claim and the voucher go together, or, rather, the voucher must go with the claim, in order to constitute a valid presenta- tion of the same: Willis v. Marks, 29 Or. 493; 45 Pae. Eep. 293, 296'. No presentation of a claim against a decedent, to an executor or administrator, is effective without an affidavit that the claint is justly due: Pico v. De la Guerra, 18 Cal. 422, 427. A presentation of the claim, accompanied by a copy of the affidavit, instead of the original, is insufficient: Ash v. Clark, 32 Wash. 390; 73 Pae. Kep. 351, 353. The presentation of a claim to an administrator is in many respects analo- gous to the commencement of an action, but there are some differences, and one difference is important. One cannot maintain an action on a claim which will become due only on demand, until demand. has been made, because it is unjust to subject a defendant to costs until he has neglected or refused to perform his obligation, but the administrator not only cannot perform on demand, but the mere presentation of the claim for an allowance does not subject the estate to payment of costs, and, in reality, the requirement that claims must be presented before suit can be brought is the statutory mode as well as the statutory requirement for making a demand upon an estate: Maurer V. King, 127 Cal. 114, 117; 59 Pae. Eep. 290. Where a decedent gave certain shares of mining stock in part payment for land purchased by him, and agreed to take back the stock from the vendor at the end of two years if the vendor should hold the stock at that time and so request it, a claim presented against the estate of the deceased pur- chaser, a few days after the expiration of the two years, by the vendor of the land, for the amount at which he agreed to take back the stock, and an offer to surrender the shares of the stock to the executor or administrator in the same condition in which they were received, accompanied by a copy of the contract attached to the claim, is a good presentation of the same: Maurer v. King, 127 Cal. 114, 116; 59 Pae. Eep. 290. Although an executor or administrator may demand the production, for his examination, of a promissory note which is made the basis of a claim, yet, if he does not do so, the presentation of a verified copy of the note by the claimant is sufficient: First Nat. Bank v. Eoot, 19 Wash. Ill; 52 Pae. Eep. 521, 522. In Colorado, the manner of exhibiting a claim against the estate of a decedent, founded upon a promissory note, is by filing the note itself in the county court, and this must be done within a year from the granting of letters. It is not sufficient to file a copy of the note, and the knowl- edge of the executor or administrator of the existence of the note furnishes the claimant no excuse for a failure to file a claim as the statute directs: In re Hobson's Estate (Col.), 91 Pae. Eep. 929, 931. Although an executor or administrator . knows of the existence of a note, or has it in his possession, yet if the holder asserts it as a claim CLAIMS AGAINST ESTATES. 709 against the estate, and the executor or administrator neglects to comply with the request of the claimant to present the claim prop- erly and have it allowed, this furnishes no excuse for the claimant's failure to file his claim in the probate court as the statute directs. If the claimant has been injured by the failure of the executor or admin- istrator to carry out a supposed promise, the estate is not answerable therefor: In re Hobson's Estate (Col.), 91 Pae. Eep. 929, 931. Where a married woman rendered services as nurse to a person who after- wards died, her claim for such services is community property, and should be presented to the executor or administrator of the estate of the deceased in the name of her husband: Smith v. Furnish, 70 Cal. 424; 12 Pae. Eep. 392, 393. It is not necessary that a copy of the claim accompany a presentation of the claim, unless the law at the time required such copy, as in the case of a judgment: Estate of Crosby, 55 Cal. 574. A claim based on an oral agreement does not fall within a statute providing that a copy of the instrument on which the claim is founded must accompany the claim: Dorais v. Doll, 33 Mont. 314; 83 Pae. Eep. 884, 885. Although a document used as a bill of particulars has been presented to an executor or administrator on one occasion, yet it may be proved that the claim therein described was presented to him at another time: Poor v. Smith, 10 Haw. 467, 468. (6) Amendment of claims. No substantial change can be made in the claim on file, either by way of amendment or otherwise, after the expiration of the time for the presentation of claims: In re Sullen- berger, 72 Cal. 549, 552; 14 Pae. Eep. 513. Where an order has been made directing the sale of decedent's property, upon a consideration of the claims against the estate theretofore allowed, and such order has been confirmed, no amendment of a claim can be made that affects the order of confirmation, or that will take away from it the force of the direction therein to execute a conveyance on payment of the pur- chase price. No amendment can be allowed that will affect any sale of the property made under such order, because the claim, after its amend- ment, would still have to be presented to the executor or administrator for allowance before it could become a charge upon the estate: Estate of Turner, 128 Cal. 388, 393; 60 Pae. Eep. 967. A creditor's claim against an estate is, in no sense of the word, a pleading, nor is there any such thing known to our law as the amendment of such a claim: Pollitz v. Wickersham (Cal.), 88 Pae. Eep. 911, 915. A mortgagee's claim may be amended by attaching the original note and mortgage thereto: Kirnan v. Powning, 25 Nev. 378; 60 Pae. 834, 838. BEFEBENCES. Amendment of claim: See head-line 4, subd. (8), post. (7) What claims must be presented. A claim in favor of the United States, against the estate of a decedent, cannot be sued upon until after its presentation for allowance to the executor or adminis- 710 PROBATE LAW AND PRACTICE. trator of such estate: United States v. Hailey, 2 Ida. 26; 3 Pac. Eep. 263, 264. Claims Bot due must be presented, or they are barred: Pico V. De la Guerra, 18 Cal. 422. No suit can be maintained against the executor or administrator of the estate of a deceased person on a claim for moneys received by the decedent in his lifetime, while acting as guardian of the plaintiff, until after such claim has been presented to the executor or administrator: Gillespie v. Winn, 65 Cal. 429; 4 Pac. Bep. 411, 412. A claim based on the liability of a decedent as a stock- holder is a claim upon which no action can be maintained, though the amount, if any, that will have to be paid is not known, unless it has been presented within the time prescribed by the statute: Barto v. Stewart, 21 Wash. 605; 59 Pac. Rep. 480, 482. The word " claim " includes every species of liability that the executor or administrator can be called on to pay, or to provide for the payment of, out of the general fund belonging to the estate: Barto v. Stewart, 21 Wash. 605; 59 Pac. Eep. 480, 482. The word " due " is not used in the sense of " mature," in the statute prescribing the form of an affidavit to a claim, but was intended to apply to all claims, whether due or to become due, or contingent. The object of this provision is to secure good faith in their presentation, and is satisfied by an affidavit stating that the facts out of which the liability is claimed to arise are true: Barto V. Stewart, 21 Wash. 605; 59 Pac. Rep. 480, 482. One who holds a laborer's lien on logs cannot bring an action to foreclose the same against the executor or administrator of a deceased person, against whom the lien was acquired, without first presenting his claim to the executor or administrator: Casey v. Ault, 4 Wash. 167; 29 Pac. Rep. 1048. If a purchaser pays ta?es on the property bought before the testator's death, by reason of a breach of a covenant in the deed, his claim against the estate is one that requires presentation: Clayton v. Dinwoodey (Utah), 93 Pac. Eep. 723, 726. (8) " Contingent claims." If a code of laws designates three classes of claims against an estate, that must be presented, — 1. Claims due; 2. Claims not due; 3. Contingent claims, — this implies that the mere fact that a claim is not due does not make it contingent. If the amount of the claim and the date at which it is to become due are certain, it is not contingent, though not due. Therefore a contingent claim is not distinguished from other claims by the qualifying words " not due," but by the words " not absolute." A claim ceases to be contingent when it becomes absolute, though not yet due, as in the case of a contract to pay money after the future occurrence of a con- tingent event, in which the obligation becomes absolute before due; yet contingent claims may become kbsolute and due at the same time; and the probate law requires that all contingent claims that are prov- able and payable at any time shall be presented for allowance within the prescribed statutory time after the publication of. notice to cred- itors, as a condition precedent to the commencement of actions thereon; otherwise, how can any provision whatever be made for CLAIMS AGAINST ESTATES. 711 them before the estate is settled? Timely notice of all claims that may prejudicially affect an estate should be given to the adminis- trator, so that he may have an opportunity to investigate their merits, and to contest them if advisable, before the evidence of their invalid- ity shall be lost. That they should be forever barred if not presented to him within the time prescribed by law is surely no greater hardship than that absolute claims should be so barred: Verdier v. Roach, !i6 Cal. 467, 474, 478; 31 Pac. Eep. 554; Janin v. Browne, 59 Cal. 37. In Pico V. De la Guerra, 18 Cal. 422, a claim against the estate was pre- dicated upon a guaranty to indemnify a surety upon a promissory note. Before the note became due and payable, the guarantor died, and the surety, before he had paid the note, presented a claim upon the guaranty, which the executor allowed and approved; but the allowance and approval were held unauthorized and void, because, as the claim against the estate was merely contingent upon payment, by the surety, of the promissory note of his principal, no cause of action accrued until the contingency happened, and no recovery could be had against the estate, either by presentation of an immature claim, or by a suit at law against the estate. A judgment obtained against sureties cannot be enforced by them after the death of their principal, as a claim against his estate, until they have paid such debt: Estate of Hill, 67 Cal. 238, 244; 7 Pac. Rep. 664. A covenant to indemnify a lessee must be presented as a contingent claim to the administrator of a deceased lessor within the time limited by the notice to creditors, or no action can be based thereon for a breach occurring after the time for presentation of claims has expired: Ver- dier V. Roach, 96 Cal. 467; 31 Pac. Eep. 554. A mere personal promise of reimbursement, which creates a contingent liability, must be pre- sented to the administrator for allowance as a claim against the estate. If not so presented within the time fixed by statute, it is barred forever; and the executor or administrator has no power, without the authority of the court, to bind the estate by agreeing to delay the collection of the debt due the estate for a period of years, in order to determine whether a contingent right of set-off shall become absolute, when such contingent right has not been presented or allowed as a claim against the estate: Maddock v. Russell, 109 Cal. 417, 421, 424; 42 Pac. Rep. 139. The statute which allows one who has been absent from the state, and has had no notice of the time in which to present his claim against the estate of a decedent, to present it at any time before a decree of distribution is entered upon making an affi- davit to the satisfaction of the court or judge thereof that he had no notice, applies alike to all claims, whether absolute or contingent: Verdier v. Roach, 96 Cal. 467, 469, 470; 31 Pac. Rep. 554. BEFEBENCES. Contingency of claim as affecting limitation of time for its pres- entation: See note 58 L. R. A. 82-90. 712 PROBATE LAW AND PRACTICE. (9) Claim of executor or administrator. All persons having claims against the deceased must present them for allowance; the executor or administrator, to the probate judge alone; other creditors, to the executor or administrator, and if allowed, to the probate judge. If not thus presented within the time prescribed by the statute after the publication of notice for the presentation of claims, they are barred by the express provision of the statute; and the requirement to make the presentation, and the period within which it is to be made, are the same, whether the claims be held by the executor or adminis- trator, or by other creditors of the deceased: Estate of Taylor, 16 Cal. 434. A claim due to an executor or administrator must be presented to the judge for allowance within the time allowed by law for the presentation of claims, or it cannot be allowed to him in his accounts: In re Hildebrandt, 92 Cal. 433; 28 Pac. Eep. 486. The mere fact that the executor or administrator, as such, has in his hands more money belonging to the estate than the amount of his claim does not entitle him to treat it as an offset to his claim, nor prevent him from making the statutory affidavit, " that there are no offsets to the same, to the knowledge of affiant." Money received by him, and that belongs to the estate, is held by him in his official capacity as such administrator, while the debt due him as a creditor of decedent is due to him in his individual capacity: In re Hildebrandt, 92 Cal. 433, 436; 28 Pac. Rep. 486. But an unauthorized appropriation by an executor or adminis- trator of the funds of the estate cannot be made the basis of a claim by him against the estate: Estate of Hill, 67 Cal. 238, 241; 7 Pac. Eep. 664. (10) What claims need not be presented. It is not necessary to present to the executor or administrator, for allowance, a judgment against the deceased: Knott v. Shaw, 5 Or. 482; Estate of Brennan, 65 Cal. 517; 4 Pac. Eep. 561; Estate of Page, 50 Cal. 40. A pledgee is not obliged to present his claim to the executor or administrator for allowance, unless he seeks recourse against other property of the estate than that pledged: Estate of Kibbe, 57 Cal. 407, 408. A distinc- tion is to be made between the debts of deceased, and the expenses incurred or disbursements made by the executor or administrator in his management of the estate: Deck's Estate v. Gherke, 6 Cal. 666, 669. Claims against an estate, incurred by an executor or administrator in settling the estate, are expenses of administration, which are subject to the objection and exception of those interested in the estate, and are finally passed upon by the probate judge when the administrator or executor renders his accounts: Dodson v. Nevitt, 5 Mont. 518; 6 Pac. Eep. 358, 359. A claim for expenses of administration need not be presented to the executor or administrator for his approval; as, a claim for funeral expenses: Potter v. Lewin, 123 Cal. 146, 147; 55 Pac. Eep. 783; or for services rendered and money advanced, at the request of an administrator, for the benefit of the estate: Gurnee v. Maloney, 38 Cal. 85, 88; 99 Am. Dec. 352. The only claims required to be filed and CLAIMS AGAINST ESTATES. 713 rejected before suit brought are those arising on contracts. Hence an action to abate nuisances and for damages caused by obstructing a private way may be maintained against the personal representatives of the deceased without first filing a claim against the estate: Hardin v. Sin Claire, 115 Cal. 460; 47 Pac. Eep. 363, 364. A cause of action in which equitable relief alone is sought is not a "claim" which it is necessary to present against the estate before the action can be main- tained: Toulouse V. Burkett, 2 Ida. 184; 10 Pae. EBp. 26, 28. Nor is it necessary, before suit, to present against the estate a claim upon a demand for discovery and accounting, as such demand necessarily involves an uncertain amount. Where the demand is merely for equitable relief, or for uncertain and liquidated damages, it is not necessary to present it to the administrator for allowance or rejection; for it is obvious that in all such cases the exhibition would be but an idle ceremony: Neis v. Parquharson, 9 "Wash. 508; 37 Pac. Eep. 697, 700. It is not necessary to present a claim against an estate for the amount of an unpaid subscription by the decedent for the stock of a savings bank before bringing a suit in equity against the administrator to recover the amount of such unpaid subscription: Thompson v. Eeno Sav. Bank, 19 Nev. 242; 9 Pac. Eep. 121. There is no provision of the California code requiring the presentation of a claim to a guardian as there is in the case of an administrator: Estate of Breslin, 135 Cal. 21; 66 Pac. Eep. 962. A debt secured by a mechanic's lien made of record is not a claim that must be presented to an administrator for allowance or rejection: Pish v. De Laray, 8 S. D. 320; 66 N. W. Eep. 465. Taxes and street assessments paid under authority given in a mortgage are properly allowed upon the foreclosure of the mortgage against the estate of a decedent, if such payments were made after the presentation of the claim upon the note and mortgage. No sep- arate presentation as to taxes and street assessments is required: Oerman S. & L. Soe. v. Hutchinson, 68 Cal. 52, 54; 8 Pac. Eep. 627. A claim for an assessment for the improvement of a street, made after the death of the property owner, need not be presented: Hancock v. Whittemore, 50 Cal. 522, 523. Taxes assessed against or which are due upon property of the estate of a decedent are not claims against the estate which need to be presented to the executor or administrator for allowance: Clayton v. Dinwoodey (Utah), 93 Pac. Eep. 723, 725; People V. Olvera, 43 Cal. 492, 494. (11) Same. Vendor's lien. A vendor of real estate has a lien on the same, in the hands of the executor or administrator of the pur- chaser, for the unpaid purchase-money: Cahoon v. Eobinson, 6 Cal. 225, 226; and it is not necessary to present a claim for the purchase-money to the executor or administrator, if nothing is asked against the estate: Kerns v. Dean, 77 Cal. 555, 560; 19 Pac. Eep. 817. The lien of the vendor is of so high a, nature that it is not extinguished by his death but passes to his representatives. Nor is it discharged by the 714 PROBATE LAW AND PRACTICE. death of the grantee, but may be enforced against his estate, or those into whose hands the property may come. If the vendor presents a claim against the estate of the deceased grantee for the amount of the unpaid purchase-money, it is not necessary for him to state that he claims a lien against the grantee's premises for the amount of such claim. It would probably be the better practice to make such state- ment, but its omission does not constitute a waiver of the lien, nor make it inequitable to enforce it. So long as the debt exists, the courts will not presume that the lien has been waived, except upon clear and convincing testimony. The filing of the claim does not give the vendor any security upon specific property, nor any lien upon any property. It simply maintains the same general rights which the vendor had before: Selna v. Selna, 125 Gal. 357, 361, 363; 73 Am. St. Eep. 47; 58 Pac. Eep. 16. (12) Same. Specific property. The claimant of specific property is not a creditor of the estate, and is not bound to present his claim against it: Gunter v. Janes, 9 Gal. 643, 658. So an adverse claim, based upon a trust, is one which need not be presented against the estate for allowance. Where one seeks to recover from the repre- sentatives of an estate specific property, alleged to have been held in trust by the decedent at the time of his death, he is not seeking payment .of a claim from the assets of the estate, is not required to present a claim as a creditor, and is not " a creditor of the estate." His action is not founded upon a claim or demand against the estate. There is a clear distinction between a demand for certain specific property on the ground that it is the property of the claimant held in trust by the decedent, and a claim of personal indebtedness on the part of the decedent based upon the fact that he has so mingled the trust property with his own as to make it impossible for the beneficiaries to follow and identify it. The latter may be a proper claim against the decedent upon the ground that there has been a breach of the trust and that a personal liability has therefore arisen, while the former cannot possibly be such a claim: Estate of Dutard, 147 Gal. 253, 256, 257; 81 Pac. Eep. 519. A claim upon the estate for certain specific property does not show any personal liability: Estate of Dutard, 147 Gal. 253, 258; 81 Pac. Eep. 519. If an admin- istrator has wrongfully taken possession of certain horses, and the owner presents his claim for them, which is rejected, he is entitled to replevin the animals, though his suit is not brought within the time limited by statute on rejected claims. The plaintiff, in such a case, is not a " creditor " of the estate, and his claim is not within such statute: Emele v. Williams, 10 Haw. 123, 124. If recovery is sought of specific property alleged to have been held in trust by the decedent at the time of his death, a party seeking such recovery is not asking payment of the claim from the assets of the estate, and is therefore not required to present his claim as a creditor of the estate: Brown CLAIMS AGAINST ESTATES. 715 V. Town of Sebastopol, 35 Cal. Dec. 621, 622 (June 6, 1908). The right to sue an executor or administrator for moneys alleged to be due an estate, and to which the executor or administrator asserts title in himself individually, is not conditioned upon the presentation of a claim therefor. The right to sue, in such cases, without presentation arises from the fact that the specific thing sued for is not a part of the decedent's estate, and the action will lie whenever the thing demanded can be identified in specie as the property of another: Sprague v. Walton, 145 Cal. 228, 235; 78 Pac. Eep. 645. (13) ESect of piesentment. The presentation of a claim against the estate of a decedent is not a demand of payment: Chase v. Evoy, 49 Cal. 467, 469. But it is practically the commencement of a suit upon the claim, and is suficient to stop the running of the statute of limita- ■ tions: Beckett v. Selover, 7 Cal. 215, 241; "Wise v. Williams, 88 Cal. 30; 25 Pac. Eep. 1064. A party, by presenting his claim against the estate of a decedent, does not part with his right to enforce it against the person primarily liable: Thompson v. Bank of California, 4 Cal. App. 660; 88 Pac. Eep. 987, 990. The lien of a vendor is not waived by the presentation of his claim against the estate of a deceased vendee. Its only effect is to maintain the same general rights which the vendor had before the death of his grantee, to look not only to the land of the grantee, but also to the property owned by him; and even if he claims a lien against the granted premises, the omission of a, state- ment, in the claim, that he claims a lien against the granted premises for the amount of such claim does not constitute a waiver of the lien, nor make it inequitable to enforce it: Selna v. Selna, 125 Cal. 357, 362; 73 Am. St. Eep. 47; 58 Pac. Eep. 16. Nor, in the case of a condi- tional sale, does the presentation of the plaintiff's claim for the unpaid purchase-money to the administrator of the purchaser's estate, and its approval by him and by the court, constitute such an election as debars the plaintiff from bringing a subsequent action to recover the possession of the property upon the assumption that the title has never passed to the purchaser: Holt Mfg. Co. v. Ewing, 109 Cal. 353, 356; 42 Pac. Eep. 435. If a party makes an attempt to present a claim to an executor or administrator for allowance, but from some cause fails to do so properly, he is not estopped from again presenting it in due form, if within proper time: Westbay v. Gray, 116 Cal. 660, 668; 48 Pac. Eep. 800. So a devisee is not estopped from claiming under the will by reason of the fact that he presented a claim against the estate where such claim was presented in ignorance of the value of the property devised, was allowed only in part, was then withdrawn, and a written election made to take under the will: Estate of Thayer, 142 Cal. 453, 455; 76 Pac. Eep. 41. (14) Effect of non-presentment. The effect of not presenting a claim within the statutory time from the first publication of notice to 716 PROBATE LAW AND PRACTICE. creditors is, that it shall be barred forever, provided that if the elaim is not then due, or if it is contingent, it may be presented within a specified time after it shall become due or absolute: Davidson v. Eankin, 34 Cal. 503, 504. A elaim not presented is no charge against the estate, though it is verified and filed with the county clerk: Pico v. De la Guerra, 18 Cal. 422, 428. A mortgage claim upon a home- «tead cannot be foreclosed, unless the claim is presented for allow- ance against the estate of a decedent within the time limited for the presentation of claims: Mechanics' B. & L. Assoc, v. King, 83 Cal. 440, 443; 23 Pac. Eep. 376. The limitation, however, on the right to enforce a claim or debt, which is not presented to the executor or administrator within the prescribed statutory time after the publication of notice to creditors, is not a general statute of limitations, taking away all rem- edy as to every person liable, either personally or through his property, for the debt. It arises under a specific act adopted for a particular purpose, and has reference solely to the estates of deceased persons. It applies to no other subject-matter, and in no way affects the validity of the debt as against other persons who are liable for the debt, or whose property is liable: Sichel v. Carrillo, 42 Cal. 493, 499. Such a limitation does not apply to proceedings under a non- intervention will: In re Smith's Will, 43 Or. 595; 75 Pae. Eep. 133, 137. Hence, if executors are empowered by will to administer an estate without the intervention of the court, the failure of creditors to present their claims within a certain period after publication of a notice to do so does not bar their claims, as probate procedure relative to the administration of estates does not apply in such a case: In re Smith's Will, 43 Or. 595; 75 Pac. Eep. 133, 137; Moore v. Kirtman, 19 Wash. 605; 54 Pac. Eep. 24, 26; In re McDonald's Estate, 29 Wash. 422; 69 Pac. Eep. 1111, 1115. Nor is the claim of the government of the United States against the estate of a deceased surety, on the bond of a collector of internal revenue, barred by its failure to present a claim against such estate within the statutory time, as such government is exempt from aU statutes of limitation, and there- fore has a right to pursue the property of a deceased debtor into the hands of the distributee of any estate: Pond v. Dougherty (Cal. App.), 92 Pac. Eep. 1035, 1037. (15) ESect of death. In an action on a promissory note, the sug- gestion of the death of the maker of the .note, and the substitution of his administrator, and the continuance of the suit against the latter, subject the proceedings to such rules of the probate law as are appli- cable to proceedings for the collection of claims against the estate of a deceased person: Myers v. Mott, 29 Cal. 359, 363; 89 Am". Dec. 49. The doctrine that when the statute of limitations begins to run, a sub- sequent disability, as death of the party bound, etc., does no stop it, has no application where a judgment has been obtained against an intestate in his lifetime, but no execution levied. In such a case the CLAIMS AGAINST ESTATES. 717 judgment creditor being prevented by the statute from suing after the death of the debtor, the statute ceases to run until presentation of the claim to the administrator, and the party is not bound to present it until after publication of the notice required by statute: Quivey v. Hall, 19 Cal. 97, 100. A judgment, whether rendered before or after death of the judgment debtor, must be presented as a claim against his estate. The lien of the judgment rendered against him during his lifetime is not released or affected by his death, pending the time limited by the statute for the continuance of such lien; and the pres- entation and allowance of the judgment as a claim does not destroy nor merge the judgment lien; nor do any of the grounds upon which one judgment has been allowed to be merged in another apply to the case of the allowance of a judgment as a claim against an estate, because the allowance of the claim is not, in any true sense, a judg- ment: Morton v. Adams, 124 Cal. 229, 230, 232, 233; 71 Am. St. Kep. 53; 56 Pac. Eep. 1038. The death of an insolvent before the return-day upon a petition has the effect of abating insolvency proceedings and all the orders therein; but where an execution was levied prior to his death, and the sheriff took the property into his custody under the execution, the property ceased to be subject to any control of the court in the proceedings in insolvency, and a court has no jurisdiction to make an order restraining the sheriff from selling the same: "Ver- mont M. Co. V. Superior Court, 99 Cal. 579, 582; 34 Pac. Eep. 326. (16) Presentation after death. Litigants must know, at their peril, of the death of an adversary. Negligence cannot be attributed to the dead, and though the heirs may sometimes lose by failure to have administration properly made, yet those having claims against the estate acquire no rights by the delay, except the extension of the time to collect their demands. Hence one who seeks to recover a judgment against the defendant is not entitled to recover a judgment that will bind his estate, unless, within the period allowed by law for the pres- entation of claims, he makes a presentation of his claim to the repre- sentative of the decedent: Falkner v. Hendy, 107 Cal. 49, 54; 40 Pac. Rep. 21, 386. A claim arising upon a contract presented by the admin- istrator of a deceased claimant, after the time for presentation of claims has elapsed, is properly rejected, and an action thereon is barred. In case of the death of the person entitled to bring an action before the expiration of the time limited for the commencement thereof, an action may be commenced by his representatives after that time, and within the specified time from his death; but the first essen- tial of the right to maintain or to prosecute it is the right to bring or to commence it, and the holder of the claim cannot maintain any action thereon, unless it shall have first been presented for allowance within the time prescribed by the statute: Morrow v. Barker, 119 Cal. 65 66" 51 Pae. Eep. 12. In the event of the death of an executor or administrator, the claim which the creditor of the estate had against 718 PEOBATB LAW AND PRACTICE. him, by reason of his acts or omissions as executor or administrator, was one which became fixed in the lifetime of the executor, and was not contingent upon the fact that the estate might prove insolvent on an account taken after the death of the executor or administrator: Estate of Halleck, 49 Cal. Ill, 116. If a person having a claim against an estate dies before the time limited for its presentation, his repre- sentative cannot maintain an action against the estate of another deceased person on the claim, where it has not been presented to the executor within the time prescribed by the statute for the presenta- tion of claims: Morrow v. Barker, 119 Cal. 65; 51 Pac. Bep. 12. So a broken promise to provide, by wUl, a compensation for services ren- dered to the decedent must be presented as a claim against the estate, if reliance was placed thereon as a continuing contract for services up to the time of his death. If not so presented, it cannot be relied upon to save the bar of the statute as to part of the rejected claim for ser- vices presented against the estate: Etchas v. Orena, 127 Cal. 588, 592; 60 Pac. Eep. 45. 4. Allowance and rejection of claims. (1) In general. If there are two or more executors or adminis- trators, the allowance of a claim by one of them is the act of all, and is binding upon all: Willis v. Farley, 24 Cal. 490, 501. A claim may be allowed though the executor or administrator has not filed any undertaking: Estate of Houek, 23 Or. 10; 17 Pac. Eep. 461; but an executor or administrator, who is personally interested in a claim against the estate, is disqualified from acting upon it: Estate of Hill, 67 Cal. 238, 244; 7 Pac. Eep. 664; Estate of Crosby, 55 Cal. 574, 578. The allowing or rejecting of a claim is an ofS.eial act, which the attorneys of the executors or administrators have not the power to perform; but delivery of a rejected claim to the owner thereof, upon demand, is a mere ministerial act, which attorneys of the executors or administrators have a right to perform, when such claim is in their possession, and their action therein will bind the executors or admin- istrators: Cowgill V. Dinwiddie, 98 Cal. 481, 484; 33 Pac. Eep. 439. The purpose and effect of a statute providing that where a claim is presented to an executor or administrator, and he disallows it, the claimant may present the same to the county court for allowance, on giving notice, and that the court is empowered to hear and determine the same in a summary manner, and to direct a concise entry of the order of allowance and 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, are to afford a summary method for the adjudi- cation of claims by the court against the estates of deceased persons, without the necessity of technical pleadings. The proceeding is in the nature of an action, as contradistinguished from a suit, affording to the parties the right of trial de novo and trial by jurj' in the appellate court: Pruitt v. Muldrick, 39 Or. 353; 65 Pac. Eep. 20, 21. CLAIMS AGAINST ESTATES. 719 (2) Passing on claims. In geueial. The executor or admiBistrator is not required, on the presentation of a claim, immediately to indorse it " allowed " or " rejected "; nor must it be so indorsed within " ten days " after it is presented. The executor or administrator is not lim- ited to any specific period in which he must take formal action to indorse his allowance or rejection of a claim. It may be conceded that it is not the duty of the executor or administrator to seek out one who has presented a claim, to notify such person that he — the executor or administrator — has neglected or refused to act on the claim for ten days after its presentation, or that he has indorsed it " rejected." And it may also be conceded that it is the duty of the claimant to inquire of the executor or administrator whether the claim he has presented has been acted upon, and how. But as there is no specific limitation of time within which the executor or administrator must allow or reject the claim, there is none in which the claimant is entitled to be informed of the action or non-action of the executor. If he neglects to inquire within three months after his claim has been actually indorsed " rejected," his suit on the claim will perhaps be barred. Nevertheless, if he cannot maintain a suit on his claim until it has been rejected, he has an absolute right to be informed of its rejection by the executor or administrator, who alone knows what formal action has been taken with respect to it. If information with respect to it is refused by the executor or administrator, the claimant may treat the previous presentation of his claim and secret action, if any, of the executor or administrator, as going for naught, amd again present the claim: Steward v. Hinkel, 72 Cal. 187, 189; 13 Pac. Kep. 494. But if the statute makes it the duty of the executor or adminis- trator, within a certain specified time, to indorse on a claim his approval or rejection thereof, his failure to indorse it within. the time prescribed operates, in Nevada, as an allowance of the claim: Kirman V. Powning, 25 Nev. 378; 60 Pac. Rep. 834, 838. The claimant is €ntitled to the possession of the claim presented by him, if the execu- tor or administrator has had a reasonable time in which to examine it, and may maintain an action to recover it: Willis v. Marks, 29 Or. 493; 45 Pac. Eep. 293, 296. If a claim, as presented, is allowed in full, the words " approved and allowed," indorsed thereon, without any limita- tion or reservation whatever, must be taken to refer to the claim on ■which they were indorsed, and if that purports, upon its face, to be a secured claim, it must be deemed to have been allowed as a secured claim: Estate of MeDougald, 146 Cal. 191, 193; 79 Pac. Eep. 878. A money demand upon unpaid accounts against the estate of an intestate must be allowed, if at all, upon legal evidence sustaining the same; and such evidence must be taken and the claim passed upon at a regu- lar session of the probate court. At least, the executor or adminis- trator of the estate against whom the claim is made must either be present in court while the evidence is being taken of the claim passed upon, or he must have an opportunity to be present and to be heard: Chaves v. Perea, 3 N. M. 71; 2 Pac. Eep. 73, 74. 720 PROBATE LAW AND PBACTICB. (3) Same. Rejection of claims. The rejection of a claim against the estate of a decedent, either by the executor, administrator, or county judge, is a condition precedent to the right to sue upon it: In re Smith's Estate, 13 N. D. 513; 101 N. W. Eep. 890. A claim against an estate may be rejected by an administrator, either by indorsing his written disallowance on such claims, or by neglecting or refusing to act thereon for a period prescribed by the statute after it is pre- sented, and in either case the rejection is a rejection by the adminis- trator: Boyd V. Von Neida, 9 N. D. 337; 83 N. W. Eep. 329. For the purpose of authorizing actions on claims, and of limiting the time in which suit must be brought, the constructive rejection which, by statute, follows as a result of ten days' neglect or refusal to allow it is equivalent to a rejection by written indorsement: In re Smith's Estate, 13 N. D. 513; 101 N. W. Eep. 890. The non-action of the administrator, upon a claim presented to him for allowance, for a period of time exceeding ten days next after the claim is filed with him for allowance, operates, under the statute, as a rejec- tion of the claim; and the time limited for bringing suit on the claim begins to run at once after the ten-day period expires: Farwell v. Eichardson, 10 N. D. 34; 84 N. W. Eep. 558. If the claim is presented at the ofS.ce of the administrator's attorney, and it is indorsed " rejected " by such attorney, under the direction of the administrator, and such rejection is subscribed by the adminis- trator named, it is a valid rejection of the claim: Dorais v. Doll, 33 Mont. 314; 83 Pac. Eep. 884, 885. The statute contemplates that no claim which has reached the status of a rejected claim will be pre- sented to a county court for its allowance, and where such a claim is in fact presented to such court for allowance, and the same is rejectjed by the court, such rejection does not operate to fix any new period of time within which an action can be instituted upon the rejected claim: FarweU v. Eichardson, 10 N. D. 34; 84 N. W. Eep. 558. The indorse- ment required to be made by the executor or administrator is evidence of his action, necessary to the claimant in bringing and maintaining an action to establish the claim, and if he secretly rejects the claim, and refuses to deliver it to the claimant, or to inform him of the action taken thereon, it operates, or may operate, as a fraud upon the claimant, and become inoperative as a rejection. Where the executor or administrator not only fails to inform the creditor of hia action, but also refuses to do so, it may be considered that he has not acted at alL Secret action, which the creditor has no means of knowing, is equiva- lent to no action at all: Cowgill v. Dinwiddle, 98 Cal. 481, 484; 33 Pac. Eep. 439. The allowance of a claim against a decedent's estate, by an executor or administrator, for a portion of the full amount, is dearly a rejection of the remainder of the claim: Jones v. Walden, 145 Cal. 523; 78 Pac. Eep. 1046, 1047. (4) Right to consider claim rejected. The question of reasonable time in which to allow or reject a claim is a matter of law, and should CLAIMS AGAINST ESTATES. 721 be 80 declared by the court; and six montlis is clearly a reasonable length of time in which to determine whether an executor or adminis- trator will allow or reject a claim: Goltra v. Penland, 45 Or. 254; 77 Pac. Eep. 129, 132. If a reasonable time elapses, without action on the part of the executor or administrator, the claimant is entitled to consider his claim as disallowed and to maintain an action thereon: Goltra V. Penland, 45 Or. 254; 77 Pac. Eep. 129, 132; Gregory v. Cla- brough's Executors, 129 Cal. 475, 480; 62 Pac. Eep. 72. Where the statute requires the executor or administrator to whom a claim is pre- sented to indorse thereon his allowance or rejection, with the day and date thereof, but does not, in terms, specify the time within which this must be done, and provides that if the executor or administrator, or the judge, refuses or neglects to indorse such allowance or rejection for " ten days " after the claim has been presented to him, it is optional with the claimant to consider his claim rejected after the tenth day, if it has not been so indorsed within ten days, but he need not so deem it unless he chooses: Cowgill v. Dinwiddle, 98 Cal. 481, 483; 33 Pac. Eep. 439. If , the executor or administrator neglects, for more than ten days, to indorse either his allowance or rejection thereof, the claim, at the expiration of ten days, becomes a rejected claim by operation of law, and not before: Eicte v. Inskeep, 34 Cal. 224, 226; Bank of Ukiah v. Shoemake, 67 Gal. 147, 148; 7 Pac. Eep. 420; Eoddan V. Doane, 92 Cal. 555, 558; 28 Pac Eep. 604. And if the claim was presented to the administrator at the ofS.ce of his attorney, the leaving of the claim at the attorney's ofiH.ee, with the attorney's clerk, in the absence of the administrator, is a sufiScient presentation of the claim, and if it is not acted upon within the ten days, the creditor's right to consider it as rejected is not affected by the fact that the adminis- trator afterwards demanded proof and vouchers: Eoddan v. Doane, 92 Cal. 555, 558; 28 Pac. Eep. 604. (5) Power of court aud judge. Probate courts have jurisdiction to correct the classification of claims allowed against the estate of deceased persons at a term of the court subsequent to the allowance and erroneous classification thereof: McPherson v. Wolfley, 9 Kan. App. 67; 57 Pac. Eep. 257.. An executor or administrator, by paying a claim after its allowance, does not devest the county court of juris- diction of claims against the estate: Clemes v. Pox, 25 Col. 39; 53 Pac. Eep. 225, 228. If a claim has been presented to the administrator, and. allowed by him within ten days after its presentation, no action can be maintained thereon until after its presentation to the judge, unless he rejects it within that period: Nally v. McDonald, 66 Cal. 530, 532; 6 Pac. Eep. 390. A claim may be approved and allowed by a county judge after it has been rejected either by non-action or by written indorse- ment at any time before it is barred by the special or general statute of limitations: In re Smith's Estate, 13 N. D. 513; 101 N. W. Eep. 890. "Where the claim has been lost, after its allowance by the executor or Probate — 46 722 PROBATE LAW AND PKACTICE. administrator, the judge may approve a copy thereof: Nally v. McDonald, 66 Cal. 530, 533; 6 Pac. Eep. 390. When an executor or administrator rejects a claim, the rejection is complete and final, and cannot be changed or in any way affected by any future action of the judge. In such a case there is no reason for presenting a claim to the judge at all. It is only where a claim has been allowed by an executor or administrator that there is a necessity of presenting it to the judge, for he may reject it, notwithstanding its allowance by the executor or administrator. A claim may be conclusively rejected by either the administrator or the judge; and when there is a rejection by either, the statute commences to run from the date of such rejection: Jones V. Walden, 145 Cal. 523, 525; 78 Pac. Eep. 1046. When an executor or administrator rejects a claim against an estate, the rejection is complete and final, and cannot be changed or in any way affected by any future action of the judge. In such case there is no reason for presenting a claim to the judge at all, and it is only where a claim has been allowed by the executor or administrator that there is a necessity for presenting it to the judge, for he may reject it not- withstanding its allowance by the administrator: Jones v. Walden, 145 Cal. 523; 78 Pac. Bep. 1046, 1047. Although the judge had' allowed a claim against the estate of a deceased person, he may, upon an ex parte application, afterwards set such allowance aside without notice to the cla,imant: Estate of SuUenberger, 72 Cal. 549, 552; 14 Pac. Rep. 513. (6) Filing of claims. When a claim is allowed by the executor or administrator, and approved by the judge of the superior court, it must be filed in the court within the prescribed time, but as to rejected claims there is no such provision. It is the duty of the executor or administrator, on demand, to return rejected claims to claimants with his official action indorsed thereon: GowgUl v. Dinwiddle, 98 Cal. 481, 484; 33 Pae. Eep. 439. The allowance of a claim against the estate prevents the claim from becoming barred by the statute, although it has not been filed in the probate court, especially where the statute requiring it to be so filed does not declare by whom it should be so filed. It is the presentation of the claim that saves the debt from becoming barred: Willis v. Parley, 24 Gal. 490, 501. The allowance of a contingent claim admits and establishes the validity of the applica- tion, and entitles it to be filed in court and to rank among the acknowledged debts of the estate, to be paid in due course of admin- istration, as the circumstances of the estate require: Verdier v. Eoach, 96 Cal. 467, 475; 31 Pac. Eep. 554. The statute requiring judgments against administrators and claims against the estate, that have been allowed, to be filed in the probate court are merely directory, where there is no penalty prescribed for a failure to file them within the designated time: Estate of Schroeder, 46 Cal. 304, 316. Rejected claims need not be filed with the county clerk. It is only the claims CLAIMS AGAINST ESTATES. 723 that have been allowed that are to be filed: Saxton v. Musselman, 17 S. D. 35; 95 N. W. Rep. 291, 292. A claim against the estate of a decedent, consisting of an itemized statement of expenditures made by the claimant for and on account of the deceased in his lifetime, with a balance due defendant of a specified amount after deducting a sum named in favor of the deceased from the total amount claimed to have been so expended for the deceased by the defendant, does not carry with it the acknowledgment of any indebtedness to the deceased or to the estate; but, on the contrary, negatives any such inference, and would not, of course, have been filed but for the claim of the claimant that the estate was indebted to him and not he to the estate: Visher V. "Wilbur (Cal. App.), 90 Pac. Eep. 1065, 1069. (7) Defective verification. The allowance of claims upon defective verification does not always render tEem void. Where claims have been allowed and approved by the administrator and the probate judge, and have been filed among the approved claims against the estate, such allowance prima facie establishes their validity. The heirs have the right to question the allowance at the settlement of the estate, but the burden of showing the invalidity of the allowance is east upon them. The allowance of a claim, although made upon a defective verification, is a judicial act, which entitles the claim to rank as an acknowledged debt of the estate, to be paid in due course of administration, and if the claim is adjudged to be valid, the defective verification will not invalidate it. The allowance of a. mortgage claim entitles it to rank as an acknowledged debt against the estate, to be paid in due course of administration, but because there is a defective verification of a claim upon a note secured by mortgage is no reason why the fore- closure of the mortgage should be denied. A mortgage is a mere inci- dent of the debt it was intended to secure, and passes by the assign- ment of the debt, is discharged by a payment of the debt, and is barred by the statute of limitations when the debt is barred; and if the allowance of the claim on the mortgage was sufficient to make it an acknowledged debt of the estate, it is also sufficient to keep alive the mortgage, and to entitle the plaintiff to have it foreclosed: Consol- idated Nat. Bank v. Hayes, 112 Cal. 75, 82; 44 Pac. Eep. 469; Estate of Swain, 67 Cal. 637; 8 Pac. Eep. 49". (8) Amendment of claim. No substantial change can be made in a claim on file, either by way of amendment or otherwise, after the expiration of the time for the presentation of claims: Estate -of Sul- lenberger, 72 Cal. 549, 552; 14 Pac. Eep. 513; Dickey v. Dickey, 8 Col. App. 141; 45 Pac. Eep. 228. But the claimant may be permitted to amend his claim as to any technical matter that does not substantially change the nature and character of the same: Kirman v. Powning, 25 Nev. 378- 60 Pac. Rep. 834, 838. If the account of a claimant against the estate of a decedent is contested, the court, upon motion, should 724 PROBATE LAW AND PRACTICE. allow the claimant to file a more particular account of his claim: Estate of Hidden, 23 Gal. 362, 363. BEFEBIiNCES. Ajnendment of claim: See head-line 3, subd. 6, ante. (9) Objections to allowance. An objection that a claim was never presented cannot be made after a decree allowing it. Such objections should be made during the pendency of proceedings: Estate of Cook, 14 Cal. 129, 130. An objection that a claim against a decedent's estate was not presented by the proper person is a matter in abate- ment only, and is waived by joining issue on the merits without raising it in the county court: In re Morgan's Estate, 46 Or. 233; 78 Pac. Eep. 1029, 1030. Under the Colorado statute, not only an execu- tor or an administrator may object to the allowance of a claim, but also the heirs at law, devisees, legatees, or creditors, or others inter- ested in the estate, may do so: In re Hobson's Estate (Col.), 91 Pac. Eep. 929, 931. (10) Effect of allowance. In general. The allowance of a claim, by an executor or administrator and the probate judge, amounts to a judgment, not in a general sense, but of a qualified character only. It is simply a judgment as to the amount due and to whom due, and by the act of allowance and approval the claim is placed among the acknowledged debts of the estate; but before payment can be enforced, it is necessary to obtain a decree of the probate court for that pur- pose: Magrow v. McGlynn, 26 Cal. 420, 431; Estate of Hidden, 23 CaL 362; Pico V. De la Guerra, 18 Cal. 422; Walkerly v. Bacon, 85 Cal. 137, 141; 24 Pac. Eep. 638. 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; and such proceedings are pending until the entry of a decree discharging the executor or administrator: Dohs v. Dohs, 60 Cal. 255, 260. When a claim against an estate has been allowed and approved and filed, it ranks among the acknowledged debts of the estate, to be paid in due course of the administration: Estate of Loshe, 62 Cal. 413, 415. A demand of an attorney for services rendered to an administrator or executor during the settlement of the estate, and which has been presented, allowed, and approved, and ordered to be paid out of the estate, in due course of administration, while not technically a "claim", against the estate, yet it will be treated as such: Stutt- meister v. Superior Court, 72 Cal. 487, 489; 14 Pac. Eep. 35. The appearance in a probate court, at a hearing upon a claim against an estate, and consent to the allowance of such claim, by one of two joint executors, without notice to or the concurrence of the other, is sufficient to bind the estate: Cross v. Long, 66 Kan. 293; 71 Pac. Eep. 524. The admissions of an executor, made in the allowance of CLAIMS AGAINST ESTATES. 725 a claim against the estate, although the claim is allowed only in part, bind the estate: Meinnrt v. Snow, 3 Ida. 112; 27 Pac. Eep. 677. The presentation and allowance of a claim in part is not material in determining the question as to whether such claim is barred by the statute of limitations: Potter v. Lewin, 123 Cal. 146, 147; 55 Pac. Eep. 783. The allowance of a claim in part is clearly a rejection of the remainder, though when an administrator rejects a claim, the rejection is complete and final, and cannot in any way be affected by any future action of the judge: Jones v. Walden, 145 Cal. 523; 78 Pac. Eep. 1046. A verbal allowance of a claim against an estate is ineffective to give the claimant any cause of action against the estate: Pitte v. Shipley, 46 Cal. 154, 161. If a claim against an estate has passed beyond the jurisdiction of the administrator to allow the same, and has reached the status of a rejected claim, his indorsement of allowance upon such rejected claim is futile, and does not operate to allow or validate the claim, either in whole or in part, especially where it was outlawed at the time ho indorsed his allow- ance thereon: Farwell v. Eichardson, 10 N. D. 34; 84 N. W. Eep. 558. KEFEKENCES. Allowance of claims by executors and administrators, when and against whom conclusive: See note 65 Am. Dec. 121-127. (11) Same. Pie'sumption. Evidence. The presumption is, where a claim against the estate of a decedent has been allowed and approved as presented, that it was allowed upon vouchers and proof to the satisfaction of the executor or administrator and probate judge: Estate of Swain, 67 Cal. 687; 8 Pac. Eep. 497, 500. Under the statute of Oregon, the mere allowance of a claim by the executor or adminis- trator is not even prima facie evidence in favor of its validity. The claimant must, on the settlement of an account, support his claim by proof of its validity, and by other evidence than the allowance of the administrator. The county court is not bound to approve a claim, simply because it has been allowed by the administrator; for, if such was the case, it would merely sit in a perfunctory manner to enter its approval upon the journal. The court acts judicially, and when objections are interposed to a claim, it must be supported by proof, as in other litigated controversies, or the claim must fail of its establishment, and the simple allowance by the administrator will not avail to make a prima facie case: Chambers v. Chambers, 38 Or. 131; 62 Pac. Eep. 1013, 1014, 1015. The final recognition of a claim as valid in no way depends upon the question whether the adminis- trator or probate judge allowed it upon insufEicient evidence. The law simply makes the allowance evidence, prima facie, of the claim, and casts the onus of proof upon him who contests it: Estate of Crosby, 55 Cal. 574, 579. 726 PROBATE LAW AND PRACTICE. (12) Judgment of allowance. The judgment of a probate court allowing a claim against an estate in the form of a promissory note, which is not sworn to, is erroneous, but not void for want of juris- diction: Guiterrez v. SchoUe, 12 N. M. 328; 78 Pae. Eep. 50, overruling, on this point, Clancey v. Clancey, 7 N. M. 405; 37 Pac. Bep. 1105, 1107; 38 Pac. Eep. 168. A decree of the probate court, ordering a claim to be paid, at the instance of the administrator, and upon his peti- tion, stating the amount and class of the claim, the person to whom due, and the amount of money in his hands ready to pay out as the court shall direct, is final and conclusive, and cannot be collaterally attacked; nor can it be attacked in any other proceeding upon the ground of the insufficiency of the evidence upon which it was ren- dered: Estate of Cook, 14 Cal. 129, 130. A judgment of allowance of a claim against the estate of a deceased person is not a complete and effective judgment until an order on the administrator to pay is obtained, and a proceeding to obtain such order is not an action on the judgment of allowance: Guiterrez v. Scholle, 12 N. M. 328; 78 Pac. Eep. 50. The presentation and allowance of a claim based upon a judgment lien, to be paid in due course of administration, is not inconsistent with the continuance of the lien, and such lien ranks with the recognized lien of a mortgage, and is not released or affected by the death of the judgment debtor, pending the time limited by the statute for the continuance of the lien. No difference is perceiv- able between the allowance of the claim by the administrator, and the judgment of the court allowing the claim, on suit brought after its rejection; the judgment establishes the claim the same as if it had been allowed: Estate of Wiley, 138 Cal. 301, 306; 71 Pac. Eep. 441. See Morton v. Adams, 124 Cal. 229; 56 Pac. Eep. 1038; 71 Am. St. Eep. 53. (13) Arbitration. Reference. If an executor or administrator doubts the validity of any claim presented to him, he may agree, in writing, with the claimant that an order of reference be made by the court or judge concerning the same by filing such agreement. The order should be made accordingly. The referee is empowered to hear and determine the matter, and to report thereon to the court, in the same manner and with like effect as if the order were made in an action or suit on the claim: Chambers v. Chambers, 38 Or. 131; 62 Pac. Eep. 1013, 1014. The reference of a claim may be made in court by consent of the parties: Hall v. Superior Court, 69 Cal. 79; 10 Pac. Eep. 257. The referee should report his findings, in writing, to the court, and the facts found and conclusions of law must be separately stated. If the claim is referred to the superior court for its decision, the testimony taken before the judge sitting as a referee, although embodied in his report, is no part of the record, and cannot be reviewed upon appeal, unless embodied in a bill of exceptions and filed. It is only the finding of the referee which becomes part of the judgment CLAIMS AGAINST ESTATES. 727 roll. The court or judge sitting as a referee is as distinct in law from the court acting as such in its own proper sphere as if a different referee had been selected. The code fixes one rule for the guidance of all referees, and they are alike, and, without exception, subject to its provisions: Lee Sack Sam v. Gray, 104 Cal. 243, 248; 38 Pac. Eep. 85. Claims against an estate may, under the approval of the probate court, be submitted by the executor or administrator to a referee: Unterrainer v. Seelig, 13 S. D. 148; 82 N. W. Eep. 394, 396. If a claim in favor of an estate has been referred to arbitrators, who have clearly determined by their award the amount due the estate, the fact that they have included matters, in their award, not submitted to them does not render the award invalid as to the matters properly submitted, as that portion of the award may be rejected: Unterrainer v. Seelig, 13 S. D. J.48; 82 N. W. Eep. 394, 396. An executor or administrator has, at common law, the right to submit any controversies between himself and creditors of or debtors to the estate to arbitration: Unterrainer v. Seelig, 13 S. D. 148; 82 N. W. Eep. 394, 396. The statute of South Dakota does not deprive the executor or administrator of the common-law power to arbitrate claims, either against or in favor of the estate. It provides a certain mode of adjusting a certain class of claims, without the formal proceeding of an action, and leaves it to the option of the parties whether they will avail themselves of its provisions, but it was not intended to restrict or exclude the common-law right of arbitration: Unterrainer v. Seelig, 13 S. D. 148; 82 N. W. Eep. 394, 396. (14) Claims properly allowed. Even where there is no testamentary disposition or direction, the court will allow a reasonable sum to be paid out of the funds of the estate for the erection of a monument over decedent's grave, putting the expenditure upon the ground of funeral expenses: Van Emon v. Superior Court, 76 .Cal. 589, 590; 9 Am. St. Eep. 258; 18 Pac. Eep. 877; Estate of Koppikus, 1 Gal. App. 84; 81 Pac. Eep. 732. The burial of the dead is a necessity that the preservation of the health of the living enjoins, and the reasonable expenses connected therewith constitute a preferred charge upon the decedent's estate. What is a reasonable charge in such a case must be determined by the apparent condition of the estate that is bur- dened therewith. An estate appraised at two thousand four hundred dollars warrants the administrator in incurring expenses aggregating thirty-one dollars for funeral notices, carriages, and hearse hire: lu re Osburn's Estate, 36 Or. 8; 58 Pac. Eep. 521, 523. If a nephew pays out money for traveling expenses prior to the death of his uncle, he cannot recover such expenses from the estate of his uncle after the latter's death, by reason of the relation existing between them; but if he incurs traveling expenses for the benefit of the estate, after his uncle's death, he is entitled to be compensated therefor in a, rea- sonable amount: Estate of McCullough, 31 Or. 86; 49 Pac. Eep. 886, 728 PROBATE LAW AND PRACTICE. 887. The proper amount to allow on a claim against an estate for services rendered in consideration of a conveyance of land which the decedent failed to convey before his death is the value of the land agreed to be conveyed, without other proof of reasonable value: Estate of Towne, 143 Cal. 507, 510; 77 Pae. Eep. 446. (15) Claims that will be rejected. One who renders a kindly and gratuitous service to another, with no intention at the time of asking for or receiving any pecuniary compensation, cannot afterwards make such act the subject of a claim. Hence gratuitous services to a decedent, in his lifetime, under such circumstances, cannot form the basis of a charge against his estate after his death: Estate of Hanson, 133 Cal. 38, 39; 65 Pac. Eep. 14. Where a son maintained his aged mother in his own home as a member of his family, the law will not imply a promise on her part to pay for her maintenance: Jones v. Humphrey's Estate, 10 Kan. App. 545; 63 Pae. Eep. 26. So it is proper to reject the claim of a child against the executor of his parent's estate for services rendered by such child to the parent, unless a clear promise on the part of the parent to pay therefor appears. Where services are rendered by one near relative to another, no promise is implied to pay for the services, and no compensation can be claimed therefor unless an express agreement, or its equiva- lent, to pay for the same is shown: Wilkes v. Cornelius, 21 Or. 348; 28 Pac. Eep. 135. The universally accepted rule is, that the estate of a deceased person is answerable for the funeral expenses and other debts. This being true, and it not appearing from the record that the estate of a decedent is insolvent, the question of the liability of his wife's estate for such expenses should not arise. If the executor or administrator of the estate of decedent's wife sets up a claim to property standing in the name of the deceased husband, such claim for funeral expenses cannot be allowed against the estate of the widow: Burdsal's Estate v. Walley (Col. App.), 32 Pac. Eep. 985, 986. If the sum of two hundred and forty dollars is an ample and liberal allowance for the purchase of a burial lot, it is proper to refuse the administrator credit for thirteen hundred dollars expended in the pur- chase of such lot, if the estate is insolvent: Clemes v. Fox, 6 Col. App. 377; 40 Pac. Eep. 843, 847. (16) Claim of executor or administrator. If an administrator's claim against an estate is disallowed by the probate judge, the admin- istrator's only remedy is to resign his trust and to bring suit as any other creditor of the estate: Wilkins v. Wilkins, 1 Wash. 87; 23 Pac. Eep. 411. If the administrator holds a claim against the estate which he represents, the county court has power to allow his claim, although he failed to file his undertaking as administrator: Estate of Houck, 23 Or. 10; 17 Pac. Eep. 461, 463. An executor or administrator cannot, under the guise of allowing a claim against himself as such, and in CLAIMS AGAINST ESTATES. 729 favor of himself as a creditor, be permitted to put the assets of the estate beyond the reach of the rightful claimants, whoever they may be: Clancey v. Clancey, 7 N. M. 405; 37 Pac. Eep. 1105, 1107. (17) Absence from state. While the statute provides that a credi- tor of the estate of a deceased person, who is absent from the state during the whole period of publication of the notice to creditors, and has no actual knowledge of the publication, may present his claim to the administrator at any time before the decree of .distribution is ♦'entered, yet no other proof of such absence and want of knowledge is required than the afiEidavit of the claimant; and the statute does not give the executor or administrator, or the probate judge, any power or right to say, arbitrarily, that they are not " satisfied," and therefore reject the claim. All that is necessary is for the aflS.davit to show, to the satisfaction of a reasonable, fair, and impartial mind, that the claimant had no notice: CuUertou v. Mead, 22 Cal. 95, 99. But if the claimant returned to the state, and had actual notice of the publication of the notice to creditors for more than one month prior to the expiration of the time for filing his claim, and neglected to do so until long after that date, he does not come within the remedial provision of the statute. Hence, under such circumstances, if he does not present his claim within the time limited, it is barred by the statute: MacGowan v. Jones, 142 Cal. 593, 596; 76 Pac. Eep. 503. (18) Judgments. A judgment may be allowed as a claim against an estate without the affidavit required in other cases showing that it is due, and that there have been no payments, and that there are no offsets: CuUerton v. Mead, 22 Cal. 95, 99. The presentation and allowance of a judgment as a claim against the estate of a decedent does not destroy or merge the judgment lien. None of the grounds upon which one judgment has been -allowed to merge in another apply to the case of the allowance of a judgment as a claim against the estate: Morton v. Adams, 124 Cal. 229, 232, 233; 71 Am. St. Bep. 53; 56 Pac. Eep. 1038. (19) Contingent claims. All contingent claims, which are provable and payable at any time, must be presented for allowance within the statutory time after publication of notice to creditors, as a condi- tion precedent to the commencement of actions thereon. The require- ment that an allowed claim shall be ranked " among " debts does not exclude from the ranks all claims which may not properly be termed legal debts. The statute plainly requires contingent claims to be presented for allowance, and that all allowed claims shall be filed in court and ranked "among" the acknowledged (allowed) debts, whether all such allowed claims are technical debts or not: Verdier V. Eoach, 96 Cal. 467, 476, 478; 31 Pac. Eep. 554; Pico v. De la Guerra, 730 PROBATE LAW AND PRACTICE. 18 Cal. 422, 430. If the claim is allowed and approved, the allowance, prima facie, establishes its validity against the estate. If it is due, and is rejected, the claimant is required to establish its validity by suit upon it within the prescribed statutory time after the rejection, or if it is not due, then within a certain time after it becomes due; and if its validity is established by recovery thereon, the judgment entitles the claimant to rank as a creditor of the estate, and to payment in due course of administration; or, if the administrator allows the claim although not due, it entitles the claimant to rank in the same way, and, upon deducting a rebate of interest upon the** claim, entitles him to payment of the principal sum, or to share in a distribution of the estate pari passu with creditors whose allowed claims are due: Estate of Swain, 67 Cal. 637, 640; 8 Pac. Eep. 497. (20) Interest. An allowed claim against an estate draws interest at the legal rate from the date of its approval by the judge: Estate of Glinn, 74 Cal. 567, 569; 16 Pac. Eep. 396; Estate of Olivera, 70 Cal. 184; 11 Pac. Eep. 624; and this is true, although the demand on which another claim was founded did not bear interest: Estate of Olvera, 70 Cal. 184, 185; 11 Pac. Eep. 624. A claim against the estate of a decedent for funeral expenses bears interest after its allowance: Estate of Cummins, 143 Cal. 525; 77 Pac. Eep. 479. If a suit on a mortgage claim is not brought within the pre- scribed statutory time after the rejection of a claim for accrued interest, there can be no foreclosure of the mortgage therefor; but where there has been a stipulation respecting interest, which has been overlooked in drawing a decree of foreclosure, the judgment should be modified so as to conform with the stipulation: Consolidated Nat. Bank v. Hayes, 112 Cal. 75, 84; 44 Pac. Eep. 469. It is sometimes provided by the statute that, " if the estate be insolvent, no greater rate of interest shall be allowed upon any claim after the first publi- cation of notice to creditors, than is allowed on judgments obtained in the superior court"; but such a statute applies only to claims which must be presented for allowance, or be barred forever, and which, when approved, are filed in the court and become acknowledged debts. It does not apply to an independent action brought by a mortgagee to foreclose his lien against the property of the estate, where he looks to the mortgaged property alone as security. In such an action the court acts independently of the administration of the estate, and may enforce the lien upon the property by a sale thereof for the full amount of the mortgaged debt, irrespective of the insol- vent condition of the estate. The court, in such an action, is not called upon to " allow " a claim against the estate, which is to be paid in the course of administration, but merely determines the amount of the mortgage debt according to its terms, and directs a sale of the mortgaged property: Visalia Sav. Bank v. Curtis, 135 Cal. CLAIMS AGAINST ESTATES. 731 350, 353; 67 Pao. Eep. 329; Christy v. Dana, 42 Cal. 174; Eichardson V. Diss, 127 Cal. 58; 59 Pac. Eep. 197; Estate of McDougald, 146 Cal. 196; 79 Pac. Eep. 875. Such a statute, in specially mentioning insol- vent estates as subjects of reduction of interest, ex industria excludes all estates not mentioned from the operation of this law reducing interest, and shows, as plainly as anything short of positive enact- ment can show, that it was the purpose and intention of the legislature that credits against solvent estates should continue after allowance to draw interest at any rate in excess of the legal rate that the con- tracts on which they were based will warrant: Eichardson v. Diss, 127 Cal. 58, 60; 59 Pac. Eep. 197. (21) Contest of claims. Vacating allowance. There are at least two points in the administration of an estate at which an approved claim may be contested; namely, when application is made for the sale of property, and when an account is rendered for settlement. But, in making the contest, the contestant has the affirmative, and must show cause: Estate of Loshe, 62 Cal. 413, 415. Heirs may question the allowance and approval of claims by the administrator and judge: Beckett v. Selover, 7 Cal. 215, 241; 68 Am. Dec. 237; and minor heirs are not estopped from questioning the correctness of the administra- tor's account by reason of proceedings in the probate court for a sale of the property to pay an alleged claim: Estate of Hill, 67 Cal. 238, 244; 7 Pac. Eep. 664. If the account of a claimant is contested, and he applies for leave to amend by filing a more full and particular account of his claim, the amendment should be allowed, and the court .errs in refusing to give him an opportunity to prove that his claim has not been barred by the statute of limitations: Estate of Hidden, 23 Cal. 362, 363. An order of the probate court allowing a claim against the estate of a decedent is not open to collateral attack upon the ground that the statute of liinitations had run against such claim before its allowance: Van Dusen v. Topeka Woolen Mill Co. (Kan.), 87 Pac. Eep. 74. And it is not sufficient ground for refusing to order the payment of a claim for professional services rendered the decedent in his lifetime, that such services were not worth the amount charged by him, and allowed by the administrator and by the probate judge: Estate of McKinley, 49 Cal. 152, 154. Not only may an executor or administrator object to the allowance of a claim, but the heirs at law, devisees, or legatees, or creditors, or others interested in the estate, may do so; and where the holder of a note asserts it as a claim against the estate, a general objection to it is sufficient, under a statute which expressly provides that formal pleadings shall not be required, and that, in case of a contested claim, the issue shall be formed heard, and determined in the ■ same manner as in actions before justices of the peace. Under this procedure, a plea of the statute of limitations, or that a copy, and not the note itself, was filed may be orally interposed any time before or at the time of the 732 PROBATE LAW AND PRACTICE. hearing: In re Hobson's Estate (Col.), 91 Pac. Eep. 929, 931. The allowance, by a judge, of a claim against the estate of a decedent, made on an ex parte application, may properly be set aside by him without notice to the claimant: In re Sullenberger, 72 Cal. 549, 552; 14 Pac. Eep. 513. Orders approving claims against an estate may be set aside, undoubtedly, upon the ground of fraud or mistake, but, in the absence of proof of such fraud or mistake, the appellate court will presume that, in setting aside such orders, the administrator's claim to protection for making payments under its previous orders was con- sidered by the lower court, and, in the absence of anything in the record to the contrary, the appellate court will assume that the court below had jurisdiction, and that an approval order was set aside upon the ground of fraud' or mistake, or upon both of these grounds: Clemes v. Pox, 25 Col. 39; 53 Pac. Kep. 225, 228. A proceeding to vacate the allowance of a claim against an estate is a direct attack upon the judgment of the probate court which that court has jurisdiction to entertain: Lutz v. Balcom, 59 Kan. 777; 53 Pac. Eep. 523. 5. Suits on claims. (1) In general. The plaintiff, in his suit upon the claim of a decedent, is not estopped because of the prior presentation of a dif- ferent claim, which was not approved, although the former claim was for a lesser amount. The doctrine of estoppel cannot be invoked in such a case, where the former claim was never read to nor seen by the executor or administrator, and was largely incorrect: Warren v. McGill, 103 Cal. 153, 155; 37 Pac. Eep. 144. The doctrine of estoppel cannot be invoked where, to give it effect, there must be an entire disregard of statutory law. Hence a plea of estoppel cannot be invoked against the substituted executors of the deceased member of a copartnership, so as to permit a judgment against them in violation of the stat.ute requiring the presentation of a claim, on the ground that the deceased fraudulently induced plaintiff to believe that he was deal- ing with a copartnership, and not with him individually: Prazier v. Murphy, 133 Cal. 91, .98; 65 Pac. Eep. 326. So if a portion of a claim which has been filed has been allowed, and the remainder refused, the claimant is not estopped to sue, either at law or in equity, for the portion disallowed: Walkerly v. Bacon, 85 Cal. 137, 141; 24 Pac. Eep. 638. Where the plaintiff had conveyed a mining claim to the decedent before the latter's death, and the deceased failed to make payment therefor, and subsequently the plaintiff agreed to accept a specified sum of money and a farm, and plaintiff did not agree to release his claim for the purchase price of the mining claim until the title to the farm had been cleared and a deed given him, which latter agreement was not in writing, and was without consideration, such latter agreement was not binding upon either party, at law or in equity, and did not prevent a right of recovery against a representative of the estate for the amount due for the CLAIMS AGAINST ESTATES. 733 mining claim: Bull v. Payne (Or.), 84 Pae. Eep. 697, 699. In an action against an executor on a claim against his decedent, it is no defense that the payment of such claim -would exhaust the assets of the estate: Grubbe v. Grnbbe, 26 Or. 363; 38 Pac. Eep. 182, 183, 184. A defendant administrator, in an action upon the claim of his dece- dent, that has been barred by the statute of limitations, has no power to bind the estate by waiving the defense of such statute. The admin- istrator is prohibited from allowing or paying any claim that is barred, and for him to waive the defense of the statute of limita- tions would be to allow such a claim to be collected. In other words, the administrator would be fraudulently paying a claim that is barred. No such consent could be given so as to bind the estate. This rule is applicable to all trustees: Vroomau v. Li Po Tai, 113 Cal. 302; 45 Pac. Kep. 470, 472. If a claim against the estate of a deceased per- son has been presented to the executor or administrator, and allowed by him within the prescribed statutory time after its presentation, no action can be maintained thereon until that time has elapsed after its presen,tation to the judge, unless he rejects it within that period: Nally V. McDonald, 66 Cal. 530, 532. £EFEBENCES. Is an administrator or executor in such privity with a legatee, distributee, or creditor, that he may assert a personal defense of the latter to a claim against the estate? See note 8 L. E. A. (N. S.) 212, 214. (2) Jurisdiction. The superior court has no jurisdiction of a suit on a. note against the estate of a decedent, where the demand, exclu- sive of interest, does not amount to three hundred dollars; and the fact that the claim upon the note, with accrued interest, amounts to over three hundred dollars when presented to the administrator does not change the result. The action is upon the note. It is made necessary, under the statute, to present a claim of this kind to the representative of the deceased before an action can be maintained upon it, but when the action is brought it is upon the original claim 0/ note. The presentation of the claim in no way changes the nature of the demand, nor the form in which the action must be brought: Gallagher v. McGraw, 132 Cal. 601; 64 Pac. Eep. 1080. If a defendant executor or administrator, in an action upon a claim against the estate, makes a voluntary appearance, the court acquires jurisdiction over him with the same effect as if he had been brought in by a summons upon him at that time: Union Sav. Bank v. Barrett, 132 iJal. 453, 455; 64 Pac. Eep. 713, 1071. (3) Presentation, when necessary. It is a condition precedent to the right to maintain an action on a claim against the estate of a deceased person where recourse is had to such estate alone, that such 734 PROBATE LAW AND PEACTICE. claim be first presented to the executor or administrator for allow- ance or rejection: Dodson v. Nevitt, 5 Mont. 518; 6 Pac. Rep. 358, 359; Eustace v. Johns, 38 Cal. 3. Or, as it is sometimes expressed, no action can be maintained upon a simple money demand or claim against an estate, whether such demand or claim be based upon a simple or special contract, or any other legitimate basis for a claim or demand payable out of the general assets, until the same has been duly presented to the executor or administrator for allowance, and by him disallowed or retained for more than the time specified in the statute, without the indorsement of his action thereon: Eustace v. .Johns, 38 Cal. 3, 23. No action can be maintained on a claim if there has been no legal presentation of it within the time prescribed: Zachary v. Chambers, 1 Or. 321. If the claim has been rejected for want of verification, as not having been made before an ofS.cer author- ized to administer oaths, no action can be maintained against the executor or administrator upon such claim: Winder v. Hendricks, 56 Cal. 464. Thus a claim in favor of the United States, against the estate of a decedent, cannot be sued on unless it has been properly presented. When the government of the United States is compelled to come into court to enforce its rights, it must come as any other suitor, and the proceeding in such action must be in accordance with the local laws in force when the suit is commenced: United States v. Hailey, 2 Ida. 26; 3 Pac. Eep. 263. No action can be maintained by a ward against the administrator of his deceased guardian to recover a sum of money received by the guardian in trust, where the claim was never presented for allowance, and it is not shown that the money received as the guardian of plaintiff ever came into the hands of defendant as administrator or otherwise: Gillespie v. Winn, 65 Cal. 429, 430; 4 Pac. Eep. 411. And a surviving partner cannot bring suit against the administrator of his deceased partner for his interest in the assets of the same, unless he has first presented his claim to the executor or administrator within the time prescribed by the statute: McKay v. Joy (Cal.), 9 Pac. Eep. 940. An action cinnot be maintained against the representative of a deceased stock- holder of a mining corporation, by reason of his individual liability for its debts, unless the claim arising therefrom was presented to his executors or administrators for allowance within the time prescribed by statute: Davidson v. Eankin, 34 Cal. 503, 506. And no action can lie to foreclose a laborer's lien on logs, against the executor of a deceased person, unless the claim has first been presented to the , executor or administrator of decedent's estate: Munholland v. Ault (Wash.), 32 Pac. Eep. 294. No action can be maintained upon a claim until it is first presented, save in excepted cases, but the California statute does not require that the executor or administrator must reject the claim before an action can be maintained upon it: Cowgill v. Dinwiddle, 98 Cal. 481, 486; 33 Pac. Rep. 439. Under the Montana statute, both the presentation and the rejection of a claim are neces- CLAIMS AGAINST ESTATES. 735 sary before an action can be maintained thereon; and a complaint which alleges a promise to pay, and simply the presentation of a claim against the estate, fails to state a cause of action: Brown t. Daly, 33 Mont. 523; 84 Pac. Eep. 883, 884. (4) No presentation necessary when. As the statute which relates to the presentation of claims against estates before actions can be maintained thereon relates to claims arising upon contracts, other actions do not come within the rule. Thus no presentation of a claim is necessary before the bringing of an action to recover damages for wrongful acts: Hardin v. Sin Claire, 115 Cal. 460, 464; 47 Pac. Eep. 363. No presentation need be made in an action which is purely equitable, and in which purely equitable relief is sought: Toulouse v. Burkett, 2 Ida. 184; 10 Pae. Eep. 26, 28; Tyler v. Mayre, 95 Cal. 160, 168; 27 Pac. Eep. 160; 30 Pac. Eep. 196. A claim in favor of the attorney of an assignor, in trust, against the administrator of the assignee, in trust, need not be presented before suit: Tyler v. Mayre, 95 Cal. 160, 168; 27 Pac. Eep. 160; 30 Pac. Eep. 196. So a pledgee is not obliged to present his claim to the administrator of the pledgor, unless he seeks recourse against otheT property of the estate than that pledged: Estate of Kibbe; 57 Cal. 407, 408. The death of the grantor in a trust deed does not operate as a revocation of the power of sale contained in the deed, nor in any manner limit the effect of the deed. Hence a failure to present claims secured by such deed to the administrator of the deceased furnishes no ground for a court of equity to cancel the deed: More v. Calkins, 95 Cal. 435, 438; 29 Am. St. Eep. 128; 30 Pac. Eep. 583. Liens in general may be foreclosed without presentment of a claim against the estate, where no recourse against other property is waived and no deficiency judgment is sought: Schadt v. Heppe, 45 Cal. 433, 437. Where expenditures have been made for taxes and insurance, for the protection of property, subsequent to the presentation of a mortgage claim to the executor of the deceased mortgagor, they may properly be allowed on the fore- closure without demand or the presentation of a claim therefor: Hum- boldt S. & L. Soc. V. Burnham, 111 Cal. 343, 346; 43 Pac. Eep. 971. An action may be maintained without the presentment of a claim where the specific thing sued for is not a part of the decedent's estate. An action will lie whenever the thing demanded can be identified in specie as the property of another: Sprague v. Walton, 145 Cal. 228; 78 Pac. Eep. 645, 647. In Colorado, although the estate is in course of administration in the county court, a plaintiff is not for this . reason required to present his claim to that court for allowance, but, at his option, may bring a suit thereon in the district court, without first having presented his claim to the county court: Jones v. Perot, 19 Col 141' 34 Pac. Eep 728, 731. An action against a special admin- istrator to recover damages for the maintenance of a nuisance may be maintained without the presentation of a claim against the estate for 736 PROBATE LAW AND PRACTICE. Such wrongful act: Hardin v. Sin Claire, 115 Cal. 460; 47 Pae. Eep. 363, 364. A claim against the estate of a decedent, for property- pledged, may be foreclosed without any presentation of a claim against the estate, if all recourse against the estate is expressly waived in the complaint: Building and Loan Assoc, v. King, 83 Cal. 440, 444; 23 Pac. Eep. 376; Estate of Galland, 92 Cal. 293, 294; 28 Pac. Eep. 287. (5) Coutiugent claims. A contingent claim against the estate of a deceased person is a claim " not due." An action upon a rejected contingent claim, brought after such rejection, but before the claim has become due, is premature, and cannot be sustained. An action upon a rejected contingent claim must be brought within- the pre- scribed statutory time after it becomes due; and if it never becomes due, no action can be sustained thereon: Morse v. Steele, 132 Cal. 456, 458; 64 Pac. Eep. 690. If a claim presented against the estate of a decedent as the guarantor of the faithful performance of the cove- nants of a lease is the foundation of an action, the complaint, upon its face, must show a present liability of the guarantor. It must show a presentation and rejection of the claim upon which the action is brought, or a legal reason excusing such presentation and rejection. If the complaint fails to do this, there can be no recovery: Pratt v. Hunt, 108 Cal. 288, 294; 41 Pac. Eep. 12. An action upon a contin- gent claim is barred, unless the same was presented within the time limited by the notice to creditors: Verdier v. Eoach, 96 Cal. 467, 479; 31 Pac. Eep. 554. An action upon a rejected claim against the estate of a deceased person, based upon a promise to pay money when cer- tain land is sold, is upon a contingent claim, and cannot be main- tained before the land is sold. If any action can be maintained thereon at all, it must be within two months, or other specified statu- tory time after the claim becomes due: Brooks v. Lawson, 136 Cal. 10, 13; 68 Pae. Eep. 97. (6) Services. Where a person, as nurse, companion, etc., rendered services to a decedent before his death, or voluntarily performed work or made voluntary payments, and no express contract to pay there- for appears, the law will not imply a contract to pay therefor, espe- cially where the one who rendered such services or performed such work, or made such payments, is a member of the family of the employer; and, in order to sustain an action therefor, it must be proved, on the presentation of a claim against the estate, that there was an understanding that such services should be paid for. But it is not necessary that such proof be made of a direct and positive contract. It is sufficient that proof be made of words, acts, and con- duct of the parties, and circumstances from which the inference may follow that there was an understanding that the services were not to be rendered gratuitously. When such is the case, there la a con- CLAIMS AGAINST ESTATES. 737 tract upon which the value of the services can be recovered, and it is for the jury to say, from all the conduct of the parties, and from the circumstances in evidence, whether there was in fact such an under- standing and agreement. In the absence of proof of any such agree- ment there can be no recovery: Hodge v. Hodge (Wash.), 91 Pac. Eep. 764, 765; Lichtenberg v. McGlynn, 105 Cal. 45; 38 Pac. Rep. 541; McGlew v. McDade, 146 Cal. 553; 80 Pac. Kep. 695. But the fact that the services to be performed under such a contract were to be, or were, performed in a foreign country does not affect plaintiff's right to maintain an action in the courts of this state against an administrator appointed here. Where the contract of the deceased is of an executory nature, and the personal representative can fairly and sufficiently execute all the deceased could have done, he may do so, and enforce the contract; e oonverso, the personal representative is bound to complete such a contract, and if he does not, may be made to pay damages out of the assets of the estate: McCann v. Pennie, 100 Cal. 547, 551; 35 Pac. Eep. 158. The fact that a hus- band is liable for necessary services rendered to the wife does not preclude her from making any contract which ^he sees fit in respect to those matters to be compensated out of her estate: Bonebrake v. Tauer, 67 Kan. 827; 72 Pae. Eep. 521. When a daughter nurses and cares for her mother for several years, including her last sickness, under an express contract that payment for such services will be provided for in the will of her mother, who dies intestate, the daughter may recover the reasonable value of such services from the estate of the deceased mother: Griffith v. Eobertson, 73 Kan. 666; 85 Pae. Eep. 748. And it is not essential that the evidence in support of such express contract shall consist of a formal offer and acceptance; it may be established, Uke other disputed facts, by competent testi- mony: Grif&th V. Eobertson, 73 Kan. 666; 85 Pae. Eep. 748. A person employed as housekeeper, at an agreed price per week, cannot recover from the estate of such employer, who dies during the employment, compensation for services as nurse in addition to her weekly wages as housekeeper, when it does not appear that any agreement was ever made to pay for such extra services, or that the employer had any knowledge that she expected to charge therefor: Houghton v. Kittle- man, 7 Kan. App. 207; 52 Pac. Eep. 898. In an action on a claim against the estate of a deceased person for services rendered at his request, the evidence must be confined to proof of services rendered within two years prior to the death of the decedent, as there is no right to allow a claim which has been barred by the statute of limi- tations: Etchas V. Orena, 127 Cal. 588, 592; 60 Pac. Eep. 45. If one has rendered services to a deceased person as nurse, and it appears that the decedent, by his will, bequeathed to such person a sum of money in consideration of, and in payment for,serviees during his last sickness an action brought by such person to recover the value of such services rendered is a renunciation of the bequest, and an elee- Probate — ■ 47 738 PROBATE LAW AND PRACTICE. tion by the plaintiff not to rely upon it as a payment for such services: Smith v. Furnish, 70 Cal. 424, 428; 12 Pac. Bep. 392. The judgment against the administrator on a claim for services can only have the effect of a claim duly allowed against the estate to be paid in due course, and cannot give the creditor any further rights. There is nothing in the mode of allowance which fixes the rank of a claim; and as there is no mode of allowance which can give a claim priority, it must follow that there can be no judgment establishing the validity of a claim which the administrator or court has refused to alJow which can have that effect. The priority of claims must be deter- mined by the probate court when the assets are finally marshaled, and the order of payment must be determined by that court: McLean v. Crow, 88 Cal. 644, 647; 26 Pac. Kep. 596. (7) Pleadings. Su£B.ciency of complaint. In an action against an administrator upon a claim against the estate of a decedent, it is sufficient to aver non-payment by the deceased, and that the claim has been properly presented to and rejected by the administrator: Wise V. Hogan, 77 Cal. 184, 188; 19 Pac. Eep. 278. A complaint in an action by an administrator upon a claim against the estate of another person is sufficient against the objection that the adminis- trative characters of the plaintiff and defendant are not sufficiently alleged, where, as to the plaintiff, the death of his intestate is alleged, and further, that on a certain day a decree was duly given and made, in a designated court, upon which letters of administration upon the estate of the decedent named were issued by the said court, etc.; where the allegation as to the defendant is in effect the same; and where, as to each, the allegation is, " that he duly qualified and entered upon the discharge of his duties as such administrator, and has ever' since been, and now is, the duly qualified and acting admin- istrator," etc.: Wise v. Hogan, 77 Cal. 184, 189; 19 Pac. Eep. 278. The complaint in such a ease is sufficient if it shows a subsisting liability in favor of the plaintiff, and is verified according to the statute. It is not necessary to set out therein the evidence upon which the claim- ant expects to recover: Goltra v. Penlaud, 42 Or. 18; 69 Pac. Bep. 925, 926. The facts constituting the claim need not be set out with the same particularity required in a pleading, but may be stated in general terms; and if the claim is rejected, and an action is brought thereon, it is sufficient, if it appears that it is founded on the same claim or demand as that presented to the executor or administrator: Goltra V. Penland, 42 Or. 18; 69 Pac. Eep. 925, 926; PoUitz v. Wiok- ersham (Cal.), 88 Pac. Eep. 911, 916. Although the details alleged in the complaint are more particular than is necessary, the complaint will support a recovery if it is upon the same cause of action set' out in the claim, sets forth the same services, where the action is for the value of services, and states the same agreement referred to in the claim: Thompson v. Orena, 134 Cal. 26, 29; 66 Pac. Eep. 24. An CLAIMS AGAINST ESTATES. 739 averment of non-payment is necessary to the sufficiency of a com- plaint for money claimed to be due on a contract. This is on the ground that the failure to pay constitutes the breach of a contract, and gives a right of action. Hence, in an action on a claim against the estate of a decedent, it is sufS.cient to allege non-payment by the deceased, and that the claim has been properly presented to and rejected by the administrator. The non-payment by the debtor is a breach of the contract, and gives a cause of action. The subsequent presentation of the claim to the administrator is made necessary by the statute before an action can be maintained, but this does not render it necessary to allege that he has not paid the claim: Wise v. Hogan, 77 Cal. 184, 188; 19 Pac. Eep. 278. A complaint in an action on an account against an executor is sufficient, as against the statute of limitations, where it does not appear upon the face of the com- plaint that the claim is barred. In such a case, that objection cannot be raised by demurrer, and may be determined on the trial: Wise v. Hogan, 77 Cal. 184; 19 Pac. Eep. 278, 280 (reversing Wise v. Hogan, 18 Pac. Eep. 784). (8) Pleadings. Allegation as to presentation of claim. In an action upon a claim against the estate of a decedent, where it was not neces- sary to present such claim to the executor or administrator for allow- ance or rejection, it is not necessary that tlie plaintiff should set forth in his complaint any presentation of the claim: Security Sav. Bank v. Connell, 65 Cal. 574; 4 Pac. Eep. 580; Toulouse v. Burkett, 2 Ida. 184; 10 Pac. Eep. 26. But in a case where it was necessary for the claimant to present his claim against the estate, the allegation of presentation of the claim becomes material to plaintiff's complaint, and must be made and proved: Eowland v. Madden, 72 Cal. 17, 20; 12 Pac. Eep. 226, 870. The presentation is sufficiently averred where the complaint alleges that the claim sued upon was presented to the administrator within the time limited in the notice to creditors, and a copy of the claim presented, with the verification annexed, together with the indorsement thereon, is attached to the complaint: Janin v. Browne, 59 Cal. 37, 42. So a general allegation of presentment to the executor or administrator for the amount due and to become due, that the claim was duly verified in all respects according to law, and was duly allowed, and approved by the executor or administrator and judge, and was duly filed, etc., is a sufficient averment of the ultimate fact of presentation of the claim, as against a general demur- rer, though the claim is not set out, nor attached to the complaint; such allegation is sufficient to authorize proof as to whether the claim, as presented, was sufficient in form or was properly presented: Hum- boldt Sav. & L. Soe. v. Burnham, 111 Cal. 343, 345; 43 Pae. Eep. 971. In an action on a claim against the estate of a deceased person, the complaint must show that the claim had been first presented to the executor or administrator, in order to state a cause of action: Foley v. 740 PROBATE LAW AND PRACTICE. McDonnell (Wash.), 93 Pac. Rep. 321, 322! In a suit on a claim against the estate of a deceased person, the complaint, stating a cause of action sound|ing in contract, fails to state a cause of action if it does not aver that a claim for the cause of action sued on had been presented to the administrator: Burke v. Maguire, 35 Cal. Dec. 428, 429 (April 28, 1908). A failure to make an averment in the -com- plaint, in an action on a claim against the estate of a decedent, that it was presented to the executor or administrator and rejected, -where presentment is necessary, makes the complaint demurrable: Morse v. Steele, 149 Cal. 303; 86 Pac. Eep. 693. An allegation of presentment, though defectively stated, is good as against a general demurrer for want of facts: Wise v. Hogan, 77 Cal. 184, 188; 19 Pae. Bep. 278; Chase v. Evoy, 58 Cal. 348. Where the complaint alleges that the claim was presented in due form, but contains no allegation touching the publication of notice to creditors, the complaint is not demurrable for not alleging that the plaintiff presented his claim within the time limited in the notice to creditors: McCann v. Pennie, 100 Cal. 547, 552; 35 Pac. Eep. 158. It is not necessary, in the complaint on a claim against the estate of a decedent, to allege that notice to credi- tors has been published. It is not the publication of notice which is the prerequisite to the maintenance of an action on a claim, but the proper presentation of the claim and its rejection: Harp v. Calahan, 46 Cal. 222, 233; Janin v. Browne, 59 Cal. 37, 43. Hence an allega- tion, in such complaint, that the executor or administrator had waived *he presentation of the claim for allowance is irrelevant and immate- rial, as he has no power to waive the necessity of the presentment of the claim for allowance and rejection: Harp v. Calahan, 46 Cal. 222, 233. (9) Pleadings. Amendment of complaint. In an action against the estate of a decedent, it is error to refuse the plaintiff permis- sion to amend his complaint, if defectively stated, so as to state prop- erly his cause of action: Cowdery v. McChesney, 124 Cal. 363, 365; 57 Pae. Eep. 221; Anglo-Californian Bank v. Field, 146 Cal. 644, 656; 80 Pae. Eep. 1080; Vanderslice v. Matthews, 79 Cal. 273, 277; 21 Pac. Eep. 748; but the complaint cannot be amended so as to set up a new or different cause of action: Morehouse v. Morehouse, 140 Cal. 88, 94; 73 Pac. Eep. 738. The plaintiEE should be permitted to amend his complaint by inserting a waiver of all recourse against the prop- erty of the estate, other than that described in the complaint: Anglo- Californian Bank v. Field, 146 Cal. 644, 656; 80 Pac. Eep. 1080. The only way in which an action can be brought against an estate is to sue the administrator or executor in his representative capacity; and the rule is, that he cannot be sued in the same action upon his indi- 'vidual or personal liability, and in his representative capacity. Hence, if a complaint has been brought against him in his representative capacity, it cannot be so amended as to constitute an action against CLAIMS AGAINST ESTATES. 741 Iiini individually, as that would be an entire change of the party defendant, and a different suit: Sterrett v. Barker, 119 Cal. 492, 494, 495; 51 Pac. Eep. 695. The plaintiff in an action upon a claim against the estate of a decedent can recover only upon the claim as presented. He cannot recover upon any other cause of action: Liohtenberg v. McGlynn, 105 Cal. 45, 47; 38 Pac. Eep. 541; McGrath v. Carroll, 110 Cal. 79, 84; 42 Pac. Eep. 466; Barthe v. Eogers, 127 Cal. 52, 54; 59 Pac. Eep. 310; Etchas v. Orena, 127 Cal. 588, 594; 60 Pac. Eep. 45; Brooks V. Lawson, 136 Cal. 10, 13; 68 Pac. Eep. 97. If the claim is upon a note, the plaintiff cannot change the nature of the demand, with reference to the jurisdiction of an action upon the note for the amount of the claim: Gallagher v. McGraw, 132 Cal. 601, 602; 64 Pac. Eep. 1080. No other cause of action can be properly alleged or proved, than that stated in the claim presented and passed upon' by the executor: Etchas v. Orena, 127 Cal. 588, 592; 60 Pac. Eep. 45. If the action is upon an original oral promise, against which the statute of limitations had run before the death of the decedent, the recovery is limited to the claim presented, and the complaint cannot be amended to set up a new cause of action upon a subsequent conditional promise: Morehouse v. Morehouse, 140 Cal. 88, 92; 73 Pac. Eep. 738, 739. If the action is upon a claim for certain specified services, for which specific compensation was demanded, he cannot recover a greater amount having no foundation in the claim as presented: Barthe v. Eogers, 127 Cal. 52, 54; 59 Pac. Eep. 310. (10) Pleadings. Answer. Bill of particulars. In an action xipon a claim against an estate, an allegation that the claim, duly verified, had been presented, is sufiiciently denied by an afS.rmative allegation in the answer that the claim was not verified or presented as required by the statute: Derby & Co. v. Jackman, 89 Cal. 1, 4; 26 Pac. Eep. 610; and see Eowland v. Madden, 72 Cal. 17, 20; 12 Pac. Eep. 226, 870. Non-payment should be presumed from the alleged fact of the rejection of the claim: Wise v. Hogan, 77 Cal. 184, 188; 19 Pac. Eep. 278. A party suing on an account need not set forth specifically the items of the indebtedness. If the defendant is not satisfied with the general allegation of indebtedness, he may, within a specified time, demand a copy of the plaintiff's account. If he fails to avail him- self of the right thus given him, he cannot be heard to say that the complaint is insufficient on the ground of uncertainty in that respect, and executors and administrators are governed by this rule of prac- tice: Wise V. Hogan, 77 Cal. 184, 186; 19 Pac. Eep. 278. Where the allegation was that the claim presented "was duly verified by the oath of plaintiff, in the form prescribed by law, an objection that the complaint does not state facts sufficient to constitute a cause of action, because " it fails to show the due presentation of the claim to the administratrix " of the estate qf the deceased is untenable: 'hase V. Evoy, 58 Cal. 348, 352; and see Guerian v. Joyce, 133 Cal. 742 PROBATE LAW AND PRACTICE. 405, 408; 65 Pao. Eep. 972, for a much better allegation as to verifi- cation and presentment of the claim than did the complaint in the case last cited. In an action on a claim rejected by an administrator, an answer, pleading the. statute of limitations, which alleges that the cause of action therein set forth did not accrue within six years from the commencement of the action is sufficient, without alleging that deceased had been a resident of the state for six years prior to his death: Saxton v. Musselman, 17 S. D. 35; 95 N. W. Rep. 291, 292. (11) Pleadings. Variance. If the claim sued upon can be recon- ciled with the claim as presented to the executor or administrator, the recovery is upon the same cause of action as that set up in the claim; and the fact that plaintiff, in his complaint, has segregated and lumped certain items of the claim, without increasing or dimin- ishing the amount of any item, and without alleging any different contract as to liability on any items other than those that appear on the face of the complaint, does not constitute a material variance: Enscoe v. Fletcher, 1 Cal. App. 659, 662; 82 Pac. Eep. 1075. While the recovery must be had on the same cause of action as that set up in the claim, and while no other or different contract or cause of action can be alleged or proved, yet, where the action is upon the identical notes rejected, and additional facts stated in the complaint are merely explanatory of the demand, and no different contract is stated than that set forth in the claim, the cause of action is upon the claim: Enscoe v. Fletcher, 1 Cal. App. 659; 82 Pac. Eep. 1075. Where the cause of action established by the findings is precisely the cause of action attempted to be set out in the claim and in the com- plaint, and by all, the claim asserted is one for money advanced by plaintiffs to the use of the decedent, which he had agreed to pay, there is no material variance: PoUitz v. Wickersham (Cal.), 88 Pac. Eep. 911, 916. In Cheney v. McGravin (Cal. App.), 93 Pac. Rep. 386, 387, an order granting a new trial on the ground of a variance between the claim presented against the estate of a decedent and the proof adduced in an action commenced on the claim by the plaintiff within the statutory time was reversed on the ground that there was no variance. (12) Parties. Administrator, only, is necessary when. In an action to enforce claims of liens against an estate, where the same might have been maintained against the deceased, if living, the only neces- sary party defendant is the administrator. The heirs of the decedent need not be joined, and this applies to an action to foreclose a mort- gage executed by the decedent: MeCaughey v. Lyall (Cal.), 93 Pac. Eep. 681, 682. (13) Evidence. In genera^. The only way that an account can be proved, ordinarily, is by establishing by evidence the several items CLAIMS AGAINST ESTATES. 743 of the same, and the oral evidence of persons having personal knowl- edge of the transactions is the best evidence of the items, unless there is something to indicate that such items accrued in pursuance of, or are the result of, a written contract between the parties. The fact that one or both of the parties kept a book-account of their trans- actions does not. affect the rule of evidence, and the oral testimony of eye and ear witnesses to the transactions in which the various items of an account accrued is still primary and not secondary evidence of such items. The books themselves are secondary or sup- plementary evidence: Cowdery v. McChesney, 124 Gal. 363, 365; 57 Pac. Bep. 221. In an action on a rejected claim against the estate of a decedent, it is proper to admit in evidence, as tending to discredit plaintiff's claim, a letter of the plaintiff to third persons bearing directly upon the transaction in controversy, and showing other unpaid claims in his favor against the estate amounting to a larger sum: Sanguinetti v. Pelligrini, 2 Gal. App. 294, 296; 83 Pac. Eep. 293. Where a daughter gave her father a general power of attorney, author- izing him to sell and convey her lands, and to manage the proceeds without any restrictions whatever, and he sold the land many years prior to his death, without notifying her of such fact, and she pre- sented a claim against his estate on her demand, which was denied, and afterwards commenced suit upon the claim, in which she alleged and proved the foregoing facts, she is entitled to recover, in the absence of proof by the defense showing that the agency had been terminated more than six years prior to the commencement of the action. The agency was a continuing one, and plaintiff had a right to expect that, in case her property had been sold, the proceeds had been managed by him for her benefit: Quinn v. Gross, 24 Or. 147; 33 Pac. Eep. 535, 586, 537. In an action against the estate of a decedent, evidence that the plaintiff had given the decedent a check, and that the latter had collected it, is not proof of a loan to the decedent, nor suficient to establish a claim against his estate: Dickey v. Dickey, 8 Col. App. 141; 45 Pac. Eep. 228. As to what evidence, other than that of plaintiff, is insufficient to establish a cjaim upon a note given by a decedent, see Harding v. Grin, 25 Or. 506; 36 Pac. Eep. 634. The proof of a fact admitted by the ple^ings is harm- less error. Hence, in a claim against the estate of a decedent, the introduction of his will in evidence is harmless error, where no issue is made upon its provisions: Bonebrake v. Tauer, 67 Kan. 827; 72 Pac. Eep. 521, 522. As to evidence sufficient to sustain a finding that the claim sued on arose from a debt of a firm of which the decedent was a partner, see In re Morgan's Estate, 46 Or. 233; 77 Pac. Eep. 608. In an action upon a note against the estate of decedent, it is proper to admit the note in evidence, where the holder has testified that no part of the principal or interest coupons attached thereto have been paid, but that decedent had paid other interest coupons amounting to a designated sum, as the payment of interest is prima 744 PROBATE LAW AND PRACTICE. facie evidence of the execution of the note by decedent, and obviates the necessity of further proof of the genuineness of the signature: McKay's Estate v. Belknap Sav. Bank, 27 Col. 50; 59 Pae. Eep. 745, 747. (14) Evidence. Presentation. Payment. Burden. In an action on a claim against the estate of a decedent, where recourse is had against the estate, there must be proof of the presentation of the claim to the executor or administrator of the estate before a recovery can be had thereon: Eowland v. Madden, 72 Gal. 17, 18; 12 Pac. Eep. 226, 870. There is no proof of the presentation, where there is no proof of the signature of the executor or administrator to the rejec- tion of the claim: Bank of Chico v. Spect (Gal.), 11 Pac. Eep. 740. Where there is no issue raised as to the presentation of the claim, it is neither necessary nor proper for the rejected claim to be offered in evidence: Guerian v. Joyce, 133 Gal. 405; 65 Pac. Eep. 972. Where the action is to recover on a promissory note, and plaintiff introduces in evidence the note, with indorsements thereon, proves the signature of the deceased thereto, and the due presentation of the claim and its rejection, he thereby makes out a prima facie case of non-payment. Such evidence on the part of the plaintiff raises a presumption of non- payment, which, in law, entitles him to recover, and, it being thus shown that the note was not paid, the burden is cast upon defendant to prove by competent evidence that it had been paid; and the evidence must be such, whether direct or by raising legal presumptions, as to rebut the prima facie case made by the plaintiff: Griffin v. Lewin, 125 Gal. 618, 620; 58 Pac. Eep. 205. Although due presenta- tion of the claim is not denied, still it must be proved: Derby v. Jack- man, 89 Gal. 1, 4; 26 Pac. Eep. 610. Where the plaintiff charged that a claim, duly verified, was left with the attorney for the adminis- trator, in accordance with the published notice, but that subsequently the claim as made out was lost or destroyed, so that the action of the administrator thereon could not be ascertained, but does not state that the .claim was approved by the administrator, the inference is that he neglected to inform himself as to the action taken by the administrator, and a court cannot, in aid of the allegations of the complaint, presume that the administrator approved the claim. If any presumption is to be indulged in, it must be that either the claim was rejected or not acted upon, especially where no record appears that the executor or administrator has presented the same to the probate court for the latter's allowance or rejection, as he would have been required to do, where he had taken action thereon. Hence, under a statute requiring suit to be brought upon the claim within three months, no action can be maintained thereon where suit was not com- menced until the expiration of eight months from the time of such alleged presentation: Underwood v. Browne, 7 Ariz. 19; 60 Pac. Eep. 700, 701. Proof of the presentation of plaintiff's claim to the executor CLAIMS AGAINST ESTATES. 745 or administrator, and the rejection thereof by him, though erpressly required by the statute, and that prohibits any recovery unless proof of the presentation is made, is not required, if defendant's supple- mental answer admits the presentation and rejection as alleged: Har- rington V. Butte etc. Min. Co., 35 Mont. 530; 90 Pac. Eep. 748, 749. Whether a claim, as presented, was sufBcient in form, or properly presented, is a matter of evidence, and a general allegation of presen- tation is sufficient to authorize proof as to such presentation: Hum- boldt S. & L. Soc. V. Burnham, 111 Cal. 343, 345; 43 Pae. Eep. 971. In an action against the executor or administrator on a claim against the deceased, the burden of proof of showing non-payment does not rest upon the plaintiff, but is upon the defendant to prove payment; and it is error to find payment merely because plaintiff does not prove that the claim is not paid: Stuart v. Lord, 138 Cal. 672, 674; 72 Pac. Eep. It2. The allegation of non-payment of a debt sued on, though necessary to make the complaint perfect, need not be proved; the burden of proof of payment is upon the defendant: Melone v. Euffino, 129 Cal. 514, 519; 79 Am. St. Eep. 127; 62 Pac. Eep. 98; Hurley v. Eyan, 137 Cal. 461, 462; 70 Pae. Eep. 292. (15) Evidence. Plaintiff's statutory Inability to testify. Where the statute says that no claim which has been rejected, etc., shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence, other than the testimony of the claimant, but says nothing about the proof necessary to establish the prelimi- nary issue of the presentation and rejection of the claim, it is only on the trial of the merits of the rejected claim that the statute can apply. The issue as to whether the claim has been presented or rejected is not within the purpose of the statute or the mischief intended to be remedied. It is an issue to be determined from the testimony of living witnesses, to be tried out' as any other question of fact, and decided upon the preponderance of the evidence; but, when it comes to the trial of the merits, the statute applies. It must be first shown, however, that the claim has been presented to the executor or administrator and rejected by him, and this can be done by any evidence satisfactory to the trier of fact: Groltra v. Penland, 45 Or. 254; 77 Pac. Eep. 129, 132. In an action upon a rejected claim against the estate of a decedent, the burden of proof is upon the plaintiff to establish his claim, and the statutory inability on the part of the plaintiff to testify in his own behalf does not relieve him from the necessity of producing sufficient evidence to prove his cause of action. His incompetency to testify may be his misfortune, but the defendant's obligation does not thereby vary: Barthe v. Eogeru, 127 Cal. 52, 54; 59 Pac. Eep. 310; Stuart v. Lord, 138 Cal. 672, 677; 72 Pac. Eep. 142. As to when plaintiff in an action on a claim againat the estate of a deceased person has established his claim 746 PROBATE LAW AND PRACTICE. by satisfactory evidence other than his own testimony, see Bull v. Payne (Or.), 84 Pac. Eep. 697, 698. EEFEEEITCES. Competency of Tfitnesses to testify in an action on a claim against the estate of a decedent: See note § 1107, head-line 2, subd. 2, post. (16) Evidence. Admissions of decedent. The general rule that evidence of admissions against interest is admissible applies to a case where one who has presented a bill or demand against the estate of a decedent, embodying certain statements as to the facts upon which it is founded, subsequently seeks to maintain an action utterly incon- sistent with the facts previously asserted. In such a case the state- ments of the superseded pleading are admissible as admissions against interest on the part of the person making them: PoUitz v. Wicker- sham (Gal.), 88 Pac. Kep. 911, 915. As to the insufficiency of admis- sions of decedent to establish the value of any services rendered for the decedent individually, see Lichtenberg v. McGlynn, 105 Gal. 45, 48; 38 Pac. Bep. 541. (17) Interest. Interest follows the contract according to the law in existence at the time and place of the contract, or of the per- formance of it. But a subsequent change of the legal rate of interest does not affect the contract: Aguirre v. Packard, 14 Gal. 171, 172; 73 Am. Dec. 645. If an account presented to an executor or adminis- trator for allowance contains no item for interest, and the face of the paper does not show that interest results necessarily from the facts stated in the claim, interest cannot be recovered in the action founded upon such claim: Aguirre v. Packard, 14 Gal. 171, 172; 73 Am. Dec. 645; Etchas v. Orena, 127 Gal. 588, 593; 60 Pac. Eep. 45. If an executor or administrator, refuses a legal claim against the estate, and the claimant afterwards brings suit thereon, and recovers judgment therefor, he is entitled to interest from the time of the presentation of his claim: Pico v. Stevens, 18 Cal. 376, 878. The statute which provides that " if the estate be insolvent no greater rate of interest shall be allowed after the first publication of notice to creditors than is allowed on judgments obtained in the superior court " does not apply to the foreclosure of mortgages where no recourse is had against the property of the estate other than that mortgaged. In such a case the estate has no interest in the land, and can in no manner be benefited by a reduction of the interest: Christy V. Dana, 42 Gal. 174, 178; Visalia Sav. Bank v. Curtis, 185 Cal. 350, 352; 67 Pae. Eep. 329. (18) Set-off. Counterclaim. An executor or administrator of the estate of a deceased person has no right to set off any claim held by himself individually against a debt due from him as executor or CLAIMS AGAINST ESTATES. "747 administrator to a creditor of his .intestate: Estate of Watkins, 121 Cal. 327, 328; 53 Pac. Eep. 702. But in an action against an executor or administrator for the value of articles pledged, which were not returned upon demand and tender of the amount due, the indebted- ness secured by the pledge is a proper subject to set off against the value of the articles: Vanderslice v. Matthews, 79 Cal. 273, 276; 21 Pac. Eep. 748. A person cannot avoid the payment of a debt owed to the administrator, by buying at a discount, after the death of the decedent, a claim against his estate, which accrued in his lifetime; and such purchase will not operate as a set-off to the debt: Van Dusen v. Topeka Woolen Mill Co. (Kan.), 87 Pac. Eep. 74. One who is a creditor and also a debtor of an insolvent estate may have his claim against the estate set off agaiifst his debt to the estate, if both accrued during the lifetime of the deceased and are of such character as to constitute proper subjects of set-off in an action by or against the deceased if living: Helms v. Harclerode, 65 Kan. 736; 70 Pacs Eep. 866, 867. In an action to foreclose a mortgage by a distributee of the mortgagee's estate, claims of the mortgagor which must have been presented to the estate of the deceased mortgagee before suit, but were not so presented, cannot be pleaded as counterclaims to the. mortgage: Moore v. Gould, 151 Cal.. 723, 732; 91 Pac. Eep. 616. (19) Findings. Kecovery of costs. Where a claim was not pre- sented against an estate within ten months after the notice to cred- itors, and an action is brought to recover the claim, w.hich was dis- allowed, a finding is necessary from which it can be seen at what precise time the claim became due, in order to determine whether the presentation of the claim was made within the time required by the statute: Elliott v. Peck, 53 Cal. 84, 85. While suit may be -brought upon an allowed claim, plaintiff cannot recover costs, as he recovers no more than the administrator was willing to allow: Corbett v. Eiee, 2 Nev. 330. 6, Limitation of actions. Special statutes of limitation. (1) In general. A claim may be conclusively rejected by either the administrator or the judge, and when there is a rejection by either, the statute limiting the time within which suit may be brought commences to run from the date of such rejection: Jones v. Walden, 145 Cal. 523; 78 Pac. Eep. 1046, 1047. That special regulation of the probate law that imposes the loss of a claim if not presented within the time prescribed is a statute of non-claim, frequently called a special statute of limitation: Defries v. Cartwright, 10 Haw. 249, 251. The general statute of limitations is not affected by the giving, or failure to give, notice to creditors of a decedent. Such notice is simply a matter of probate procedure: McMillan v. Hayward, 94 Cal. 357- 29 Pac. IJep. 774, 775. If the debtor has substituted a new obliga- tion in place of an old one, a claim against his estate must be based 748 PROBATE LAW AND PRACTICE. on the new obligation. Thus where a note is extinguished by the substitution of a new obligation in its place, and the maker of the note afterwards dies, the claim must be based on the new obligation and not on the note: Estate of Sullenberger, 72 Cal. 549, 551; 14 Pae. Bep. 513; Etehas v. Orefia, 127 Cal. 588, 593; 60 Pac. Eep. 45. So a broken promise to provide, by will, a compensation for services ren- dered to the decedent, if not presented as a claim against the estate, cannot be relied upon to save the bar of the statute as to part of a rejected claim for services presented against the estate: Etehas v. Orena, 127 Cal. 588, 592; 60 Pac. Eep. 45. Where the statute gives to the plaintiff three years after the commencement of an action in which to make service and the return of summons, and declares, " but all such actions may be prosecuted if appearance has been made by defendant or defendants within said three years, in the same manner as if summons had been issued and served," the necessity of any service of the summons is obviated by the appearance, in the action, of the personal representative within three years. Such voluntary appearance gives the court jurisdiction over this representative, the same as if he had been brought in by the service of summons upon him at that time; and where this jurisdiction is acquired within three years after the commencement of the action, no rights of the estate, or of the person interested therein, are waived by his appearance: Union Sav. Bank v. Barrett, 132 Cal. 453, 455; 64 Pac. Bep. 713, 1071. SEFEBENCES. Acknowledgment of outlawed debt by devise or legacy reciting a consideration: See note 1 L. E. A. (N. S.) 1117. (2) Application of statutes. Special and general. The special limitations of time within which suit must be brought against the estates of deceased persons are called, in many states, statutes of non- claim or of short or special limitations. These limitations exist inde- pendently of and collateral to the general law of limitations. The statute which allows a plaintiff three months after a claim is for- mally and ofB.eially rejected by the executor or administrator in which to bring his action may shorten, but cannot lengthen, the general statute of limitations: Barclay v. Blackinton, 127 Cal. 189, 193; 59 Pac. Bep. 834. The right to enforce his claim under statutes of limita- tion depends upon his own vigilance, and is often lost by his own laches. The policy of the law is to settle up the estates of deceased persons as speedily as possible, to pay the just debts and expenses, and to distribute the property to the rightful heirs or devisees. For this reason, statutes that shorten the period and time of presenting and bringing suits on claims against estates are justified and upheld. After a claim is barred by the general statute of limitations, it can never be allowed or made a valid claim against the estate by any act or neglect of the executor or administrator: Barclay v. Blackinton, CLAIMS AGAINST ESTATES. 749 127 Cal. 189, 194, 195; 59 Pac. Eep. 834. If an action is brought more than four years and nine months after the maturity of a written promise of the decedent to pay money, and one year and seven months after the issuance of letters of administration, it is barred by the general statute of limitations: Barclay v. Blackinton, 127 Cal. 189, 191, 196; 59 Pac. Eep. 834. A three months' limitation provided by statute for the commencement of an action upon a rejected claim does not apply to a claim which it is not necessary to present to the execu- tor or administrator, as one for funeral expenses: Potter v. Lewin, 123 Cal. 146; 55 Pac. Eep. 783. An action upon a rejected claim against the estate of a deceased person must be brought, if at all, within the prescribed statutory time after the same becomes due: Brooks v. Lawson, 136 Cal. 10, 14; 68 Pac. Eep. 97; Morse v. Steele, 132 Cal. 456; 64 Pac. Eep. 690. Where an obligation fixes the period of two years within which to exercise an option, a delay of four days after the expiration of the two years in presenting a money demand to the executor or administrator of the decedent is not unreasonable: Maurer v. King, 127 Cal. 114, 117; 59 Pac. Eep. 290. The bar of the statute relates only to claims against the estate; it in no way affects claims against other parties, or against the propery of others, or the contracts of other parties, although the same demand may also be a claim against the estate; and where a note was executed by the hus- band and wife on the separate property of the wife, and where the note and mortgage were not presented for allowance against the estate of the husband within the time fixed by the statute, the bar of the probate act does not apply as to the wife: Siehel v. Carrillo, 42 Cal. 493. BEPEBENCES. Exceptions to and interruptions of statutes of non-claim: See note 3 Am. & Eng. Ann. Cas. 576. Contingency of claim as affecting limita- tion of time for its presentation: See note 58 L. E. A. 82-90. (3) Barred claims not to be allowed. Ezceptiou. The statute pro- hibits the allowance of a claim against the estate of a deceased person, which has been barred by the statute of limitations: Dorland V. Dorland, 66 Cal. 189; 5 Pac. Eep. 77; McGrath v. Carroll, 110 Cal. 79; 42 Pae. Eep. 466; Etchas v. Orena, 127 Cal. 588; 60 Pae. Eep. 45; Barclay v. Blackinton, 127 Gal. 189; 59 Pac. Eep. 834; Eeay v. Heazel- ton, 128 Cal. 335; 60 Pae. Eep. 977; In re Mouillerat's Estate, 14 Mont. 245; 36 Pac. Eep. 185. Neither the executor nor the judge has any right to allow any part of a claim against the estate of a decedent, which has been barred by the statute of limitations: Etchas v. Oren.a, 127 Cal. 588, 592; 60 Pac. Eep. 45; Parrow v. Nevin, 44 Or. 496; 75 Pae. Eep. 711. Where the claim against the estate of a decedent appears to have been barred by limitation, it will not be presumed to have been allowed by the court, unless that fact affirmatively appears by the record; and a mere indorsement upon an account of its 750 PROBATE LAW AND PEACTICE. approval by some one styling himself " probate judge " is not suffi- cient evidence of its allowance by that officer: Janes v. Brunswick, 8 N. M. 345; 45 Pac. Kep. 878. Where the claim presented is a simple demand for money lent, accompanied by a demand for legal interest, and there is no hint or suggestion made of a trust, and the debts have long been barred by the statute" of limitations, the executor or administrator has no discretion in the matter, but it is his plain duty to reject it: McGrath v. Carroll, 110 Cal. 79, 84; 42 Pac. Bep. 466. Notwithstanding the right to foreclose a mortgage or to collect a debt out of the real property of a deceased debtor is barred by the statute of limitations, the creditor still has the right to have his claim allowed by the administrator to be paid, as other claims of the estate must be paid, out of the personal property in the hands' of the administrator belonging to the estate. The statute destroys the lien of the debt at the end of six years upon the deceased debtor's real property, but keeps it alive in so far as his personal property is con- cerned. The debt should, for that reason, be allowed as a claim against the estate: Gleason v. Hawkins, 32 Wash. 464; 73 Pae. Eep. 533, 534. (4) Suits to be commenced when. Though the statute provides that if a claim is not presented within a designated time after the first publication of notice to creditors, it shall be forever barred, yet there is no bar if no publication was made: Smith v. Hall, 19 Cal. 85, 86. A suit not brought within such specified time after the rejection of the claim is not, of course, in time to avoid the bar of the statute: Consolidated Bank v. Hayes, 112 Cal. 75, 84; 44 Pac. Kep. 469. If the claim is presented to the executor, and allowed by him within the statutory time after its presentation, no action can fca maintained thereon until the lapse of such time after its presentation to the judge, unless he rejects it within that period: Nally v. McDonald, 66 Cal. 530, 532; 6 Pac. Rep. 300. Where the statute requires the execu- tor or administrator, to whom a claim is presented, to indorse thereon his allowance or rejection, with the day and date thereof, and pro- vides that if he refuses or neglects to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect may, at the option of the claimant, be deemed equivalent to a rejection on the tenth day, but does not require that the executor or administrator shall reject a claim before an action can be maintained upon it, it is optional with the plaintiff, if his claim has not been so indorsed within ten days to deem it rejected, and he may bring an action thereon within three months after notice of such election; and, in the absence of other proof, suit brought is conclusive evidence of such election and notice thereof: GowgUl v. Dinwiddle, 98 Cal. 481, 483; 33 Pac. Eep. 439; Bank of Ukiah v. Shoemake, 67 Cal. 147; 7 Pac. Eep. 420. See Eice'v. Inskeep, 34 Cal. 224. Where the statute requires one whose claim against the estate CLAIMS AGAINST ESTATES. 751 of a decedent has been rejected to bring suit within three months after such rejection, he cannot maintain a suit brought nearly eight months after the presentation of the claim, in the absence of any showing entitling him to equitable relief: Underwood v. Brown, 7 Ariz. 19; 60 Pac. Eep. 700, 702. If one who has a claim against the estate of a decedent commences an action thereon within the time in which a claim should have been presented, before giving the executor or administrator an opportunity to pass on the claim, such action is, at most, only prematurely brought. A premature institution of a suit may be ground for a plea in abatement, which, if interposed, has the efiEect of defeating or suspending the suit for the time being; but it is not ground for a plea in bar, and cannot have the effect of impair- ing or defeating the action altogether: Clayton v. Dinwoodey (Utah), 93 Pac. Eep. 723, 728. (5) Statute commences to run when. The statute of limitations does not begin to run, where no administration exists on the dece- dent's estate at the time the cause of action accrues; Heeser v. Taylor, 1 Cal. App. 619, 621; 82 Pac. Eep. 977; Estate of BuUard, 116 Cal. 355, 357; 48 Pac. Eep. 219; Smith v. Hall, 19 Cal. 85; Danglada V. De la Guerra, 10 Cal. 886. A claim may be conclusively rejected by either the administrator or the judge; and when there is a rejection by either, the statute commences to run from the date of such rejec- tion: Jones v. Walden, 145 Cal. 523, 525; 78 Pac. Eep. 1046; Bank of TTkiah v. Shoemake, 67 Cal. 147, 148; 7 Pac. Eep. 420. The statute of limitations does not run against the claim between the date of its presentation to the execuJ;or or administrator and that of its rejection by the judge: Nally v. McDonald, 66 Cal. 530, 531; 6 Pac. Eep. 390. It is only where a claim has been allowed by an executor or adminis- trator that there is any necessity of presenting it to the judge: Jones V. Walden, 145 Cal. 523, 525; 78 Pac. Eep. 1046. A statute which regulates actions upon rejected claims against the estates of deceased persons does not begin to run until a claim has been properly pre- sented and rejected. If a party makes an attempt to present a claim for allowance, but from some cause fails to do so properly, this does not prevent him from subsequently presenting the claim in due form, if within proper time, and the statute of limitations does not begin to run until proper presentation of the claim is made, provided that it is made within the time prescribed by the statute: Westbay v. Gray, 116 Cal. 660, 668; 48 Pac. Eep. 800. The statute which fixes a limitation for the presentation of claims against an estate does not commence to run until a claim becomes absolute: Gleason v. White, 34 Cal. 258, 265. Where a claim has been twice presented and twice rejected the statute of limitations commences to run from the date of the first rejection: Gillespie v. Wright, 93 Cal. 169, 171; 28 Pac. Eep. 862. The fiJing aild withdrawal of a claim does not constitute the commencement of an action such as will prevent the statute of 752 PEOBATE LAW AND PRACTICE. limitations from running: Morse v. Clark, 10 Col. 216; 14 Pae. Eep. 327, 328. The general statute of limitations does not begin to run against a claim until it matures and can be enforced: Thompson v. Orefia, 134 Cal. 26, 28; 66 Pae. Eep. 24. The statute does not run against a trust claim until some repudiation of the trust made by the trustee is brought home to the knowledge of the trustor: McGrath v. Carroll, 110 Cal. 79, 81; 42 Pae. Kep. 466. (6) Arrest, staying, or suspension of statute. The time during which a claim is in the hands of the executor or administrator for examination, without notifying the claimant that it has been rejected, should not be taken as a part of the time limited by the statute for the commencement of an action thereon: In re Morgan's Estate, 46 Or. 233; 77 Pao. Eep. 608, 610. The statute of limitations does not run, while the administration is pending and unsettled, as to a claim against the estate that has been allowed: Estate of Schroeder, 46 CaL 304, 316; Estate of Arguello, 85 Cal. 151, 153; 24 Pae. Een. 641. Hence the statute of limitations will not disqua,lify a creditor whose claim has been allowed from petitioning for an order of sale: Estate of Arguello, 85 Cal. 151, 154; 24 Pae. Eep. 641. Nor does the statute of limitations run, while the administration is pending and unsettled, as to a judgment that has been recovered against an executor or administrator for a debt of the estate: Estate of Schroeder, 46 CaL 304, 317. When claims have been presented and allowed, none of the statutory limitations run against them: In re Tuohy's Estate, 33 Mont. 230; 83 Pae. Eep. 486, 491. Until the entry of a decree dis- charging the executor or administrator, the administration of the estate is still pending, and until then no claim against the estate which has been presented and allowed is affected by the statute of limitations: Dohs v. Dohs, 60 Cal. 255, 260. The allowance of a claim by an executor or administrator, and its approval by the judge, stops' the running of the statute of limitations: Barclay v. Blackinton, 127 Cal. 189, 194; 59 Pao. Eep. 834; Wise v. Williams, 88 Cal. 30; 25 Pae. Eep. 1064; Wise v. Williams, 72 Cal. 544; 14 Pae. Eep. 204; Willis v. Farley, 24 Cal. 490; and this applies to a claim arising upon a mort- gage and notes secured thereby: Hibernia Sav. & L. Soc. v. Conlin, 67 Cal. 178; 7 Pae. Eep. 477; German Sav. & L. Soc v. Hutchinson, 68 Cal. 52; 8 Pae. Eep. 627; Wise v. Williams, 72 Cal. 544; 14 Pae. Eep. 204; 88 Cal. 30; 25 Pao. Eep. 1064. An executor's repeated promise to pay a claim against an estate which has not been barred by the statute of limitations does not suspend the running of the statute; the" creditor is chargeable with knowledge of his legal' rights, and is bound to know that the statute of limitations is constantly running against his claim; and if he allows the period of limitation to expire, his claim is thereafter barred, although the executor neglects his duty in failing to proceed with the administration, as that is no reason why the creditor should remain idle and allow the statute to continue to CLAIMS AGAINST ESTATES. 75S run against his claim: Bank of Montreal v. Buchanan, 32 Wash. 480; 73 Pae. Eep. 482, 484. The time in which a creditor is prohibited from commencing an action upon his claim, either because the statutory- time after the granting of letters testamentary or of administration has not expired, or because the question of allowance of the claim is pending before the executor and undecided, will not be deemed a part of the time limited for the commencement of the action thereon. The creditor must, of course, present his claim before it is barred by the statute of limitations; otherwise the executor or administrator is not authorized to allow it. The statute cannot be tolled by a mere failure to present the claim. After it has been presented, however, the claim- ant is prohibited from suing until it is disallowed, and the operation of the statute will be suspended during the time of such prohibition: In re Morgan's Estate, 46 Or. 233; 77 Pae. Eep. 608, 609. An action on a judgment claim against the estate of a decedent is barred, under the general statute o"f limitations, unless it is brought within six years; but the time intervening between the death of the judgment debtor and the qualification of his executor or administrator may be excluded in the computation of such period: Whiteside v. Catching, 19 Mont. 394; 48 Pae. Eep. 747, 748. When the statute of limitations has commenced to run, it continues to run, notwithstanding the death of defendant or an intervening disability, unless it is expressly provided otherwise in the statute. Disability of the defendant does not, in any case, pre- vent the running of the statute, nor will ignorance of the creditor as to the residence of the debtor, or that he has property which can be reached, or even of his own right of action, prevent the running of the statute. Whenever the statute has commenced to run, delay in bringing an action is always at the risk of an intervening disability, t^hieh may, in the absence of a statutory saving, prevent suit from being brought at all: Davis v. Hart, 123 Cal. 384, 388; 55 Pae. Eep. 1060. If not barred by the statute of limitations, the right of action on a claim against the estate of a decedent cannot be lost by reason of the negligence of the plaintiff in the prosecution of the claim on which the action is founded: Nally v. McDonald, 66 Cal. 530, 532; 6 Pae. Eep. 390. (7) Revival of actions. Waiver of statute. An. executor or admin- istrator will not be permitted to waive either the general statute of limitations or the failure of a party to present his claim: Boyce v. Fisk, 110 Cal. 107, 117; 42 Pae. Eep. 473; Eeay v. Heazelton, 128 Cal. 335; 60 Pae. Eep. 977; Clayton v. Dinwoodey (Utah), 93 Pae. Eep. 723. His waiver of the statute and allowance of a claim barred thereby are invalid: Jones v. Powning, 25 Nev. 399; 60 Pae. Eep. 833. An execu- tor or administrator cannot, by appearing and answering a supple- mental complaint in an action originally brought against the decedent, in which the summons was not returned within the time limited by the statute, waive the statute of limitations: "Vrooman v. Li Po Tai, Probate — 48 754 PROBATE LAW AND PRACTICE. 113 Gal. 302, 306; 45 Pac. Eep. 470; Beay v. Heazelton, 128 Cal. 335; 60 Pac. Eep. 977; TJnion Sav. Bank v. Barrett, 132 Cal. 453; 64 Pae. Eep. 713, 1071. But a testator may express on the face of his will his intent that all his actual obligations shall be paid without reference to the law of limitations; and there is no good reason why that testamentary intent should not be carried out by his executors and administrators, as well as any other part of the will: Glassell v. Glassell, 147 Cal. 510, 512; 82 Pac. Eep. 42. If the statute of limitations has run, the debt cannot be revived, except by a promise in writing signed by the debtor: Estate of Galvin, 51 Cal. 215, 217. (8) Action is not barred when. Where it has been agreed, by the terms of a written contract, entered into by defendant's testator and plaintiff's assignor, for the sale of land by the former to the latter, to return a deposit of money in case of failure to make title as agreed upon, the liability is upon the contract, and does not arise by impli- cation. Hence an action to recover the deposit is not controlled by the two-year statute of limitations, and is not barred until the lapse of four years from the accrual of the cause of action: Melone v. Euffino, 129 Cal. 514, 525; 79 Am. St. Eep. 127; 62 Pae. Eep. 93. Where a daughter executed and delivered to her father a general power of attorney, which authorized him to sell and convey her real property and to manage the proceeds without any restrictions whatever, and he Bold the land, and died about seventeen years afterwards, without ever having informed his daughter of the condition of her property, and of his receiving any money on account of its sale, and fraudulently mis- informed her concerning the facts, which she did not discover until after her father's death, and hence failed to demand the proceeds of such sale during his lifetime, her claim against his estate is not barred by the statute of limitations. The agency was a continuing one, and the statute would not commence to run until it was terminated, or until the agent had notified the principal that the proceeds of the sale of her property were at her disposal, and then, if she failed to demand them within the statutory period, her right of action would be barred. The agency being general and continuing, the money received by the testator on account of the sale of plaintiff's land must, in the absence of proof of the termination of such agency, be considered as held by him for her use and benefit: Quinn v. Gross, 24 Or. 147; 33 Pae. Eep. 535, 536. The Colorado statute does not prevent a claimant against the estate of a decedent from bringing an action at any distance of time, provided the same is not barred by some other statute, if the creditor can discover property not inventoried or accounted for by the executor or administrator, and such creditor has the right to have his claim passed upon by the court, and recover a judgment presently for the amount due, if any, to be satisfied out of any estate that may be found not inventoried or accounted for. by the executor or adminis- trator. Hence, although the claim of the creditor is not sued upon CLAIMS AGAINST ESTATES. 755 within one year, nevertheless the same is not barred. The only effect of such failure to sue within that time is, that the creditor is deprived of the right to a distributive share in the inventoried assets. The suit may proceed to judgment that, however, must be special in character, and limited to a satisfaction out of the uuinventoried property of tho estate: McClure v. Commissioners etc., 23 Col. 130; 46 Pac. Eep. 677, 679. In a case where an executor or administrator is empowered by will to administer an estate without the intervention of the court, the claim of a creditor against such estate is not barred by the fact that he did not present his claim within one year from the first publica- tion of the notice to creditors, especially where his claim did not exist until after the expiration of the year specified in such notice: In re MacDonald's Estate, 29 "Wash. 422; 69 Pac. Eep. 1111, 1115. (9) Action is barred -when. Under the statute, all claims must be presented within the time limited in the notice to credttors, or they are barred forever, except in cases where it is made to appear, by the affidavit of the claimant, to the satisfaction of the court or judge, that the claiihant had no notice, by reason of being out of the state. Hence if a claim is not presented within such time, it is barred: Melton V. Martin, 28 Mont. 150; 72 Pac. Rep. 414; Consolidated ISTat. Bank v. Hayes, 112 Cal. 75; 44 Pac. Bep. 469; Morse v. Clark, 10 Col. 216; 14 Pac. Eep. 327; In re Hobson's Estate (Col.), 91 Pac. Eep. 929; and the claimant cannot be given relief on the ground of mistake, if the court is not satisfied that a mistake was ever made, and that the claimant could have discovered its existence within the time limited in the notice, by the exercise of reasonable diligence: Melton v. Martin, 28 Mont. 150; 72 Pac. Eep. 414. Under the Colorado statute of non-claim, a claim that has not been exhibited as the statute requires, within one year from the granting of letters testamentary, is barred except as to property that may be subsequently discovered or inventoried by the executor; and where there is no claim that there is any such property of the estate, the claim is completely barred: In re Hobson's Estate (Col.), 91 Pac. Eep. 929, 931. Where no administrator has been appointed, the claim of a creditor will become barred by limita- tion at the end of three years after the last date at which the adminis- trator might have been appointed: Brown v. Baxter (Kan.), 94 Pac. Eep. 155, 574. A promissory note which has not been presented as a claim against the estate of a decedent is barred by .the statute of limitations, where more than six years have elapsed since the note became due: In re Hobson's Estate (Col.), 91 Pac. Eep. 929, 931. In the ease of non-intervention wills, creditors must present their claims within one year of the publication of notice, and failure so to do bars such claim: Foley v. McDonnell (Wash.), 93 Pac. Eep. 321, 322. KEFEBENCES. Claims against decedent's estate are barred when: See note 8 L. K. A. 651-652. 756 PROBATE LAW AND PEACTICE. (10) Pleading. Defense. As between parties acting in their own right, the plea of the statute of limitations is unquestionably a personal privilege which may be waived. But an executor or admin- istrator acting for others, and in a trust capacity, is not vested with this privilege, and has no power to waive such a defense. He will not be permitted, by his failure to invoke the plea of the statute of limitations, to suffer judgment upon the claim, which, when presented to him, he was bound by law to reject because of the bar of the statute: Eeay v. Heazelton, 28 Cal. 335, 338; 60 Pac. Eep. 977. The failure of the executor or administrator to plead the bar of the statute of limitations cannot avail the claimant, since the duty to set up the bar of the statute rests upon the executor or administrator. In pleading the statute of limitations, the facts relied upon, or the facts constitut- ing the defense, should be stated. A defense of the statute of limitations may be presented by demurrer when the pleadings show that the statu- tory time has- elapsed. But the statute of limitations cannot be raised under a demurrer that the complaint does not state facts sufficient to constitute a cause of action. The statute must be pleaded: FuUerton V. Bailey, 17 Utah, 85; 53 Pac. Eep. 1020. To be raised by demurrer, the bar must affirmatively appear on the face of the petition; other- wise the objection must be taken by answer: Columbia Sav. & L. Assoc. V. Clause, 13 Wyo. 166; 78 Pac. Eep. 708, 709; Wise v. WUliams, 72 Cal. 544, 548; 14 Pac. Eep. 204; McCann v. Pennie, 100 Cal. 547, 553; 35 Pac. Eep. 158. If it does not affirmatively appear upon the face of the complaint that the claim is barred by the statute of limitations, a demurrer based upon such statute is not allowable. The question as to whether the claim is or is not barred is a matter to be determined at the trial, if the claim does not appear on its face to have been barred when presented. The fact that it does not show upon its face whether it was or was not barred would not defeat a recovery: Wise V. Hogan, 77 Cal. 184, 187; 19 Pac. Rep. 278. If the statute provides that suit must be brought upon a rejected claim within three months after its rejection, and that if not so brought it is forever barred, an answer, in an action upon a rejected claim which alleges that the claim was duly presented at a date named, and that the same was not acted on within ten days thereafter, nor at allj and that more than three months after such ten-day period had expired before suit was commenced, states a complete defense: Boyd v. Von Neida, 9 N. D. 337; 83 N. W. Eep. 329. 7. Judgment against executor or administrator. (1) In general. It is one of the very elements of the 'law, that, when a suitor reaches the parting of the ways in the pursuit of incon- sistent remedies, he must elect which road he shall follow. The first step taken is an election, and the election, when made, is irrevocable. But this principle has no application to a case where there is no choice between two inconsistent remedies. Thus the mere filing of a com- CLAIMS AGAINST ESTATES. 757 plaint, which cannot be sustained, and which was abandoned, cannot be urged as an estoppel against the assertion of a judgment against the estate which has not been satisfied and still remains in full force and effect. In such a case there is no election of remedies: Shively v. Harris (Cal. App.), 90 Pac. Eep. 971, 972. A judgment on a rejected claim against the estate of a decedent 'is subject to be afterward con- tested by any person interested in the estate, in the same manner and to the same extent as other allowed claims may be contested. But in all such cases the burden is upon the party contesting to show that the claim was not properly allowed: Estate of More, 121 Cal. 635, 639; 54 Pae. Eep." 148. (2) Default. Amendment. A judgment by default may be taken against an executor or administrator, as well as any other party. A default must be taken as an admission of all the material allegations of the complaint: Chase v. Swain, 9 Cal. 130, 137. If a judgment against an executor or administrator is informal, in that it omits the provision that it is to be paid out of the estate " in the due course of administration," such omission may be supplied by an amendment, though made some years after the judgment was rendered, where such amendment is made by the records in the action: Estate of Schroeder, 46 Cal. 304, 316. Thus it is error to render a personal judgment against him, and such error being apparent on the judgment roll, it may be corrected even on appeal: Davis v. Lamb (Cal.), 35 Pac: Eep. 306, 307. (3) Form of judgment. Upon the issue as to whether the estate of a decedent is indebted to the plaintiff upon a claim, a judgment in personam cannot be rendered against the executor or administrator: Myers v. Mott, 29 Cal. 359, 363; 89 Am. Dec. 49; Eice v. Inskeep, 34 Cal. 224, 226. A judgment against an executor or administrator should first ascertain the amount due, and adjudge the same to be a valid claim against the estate, and then provide that the same be paid by the defendant " in the due course of administration ": Fisher V. Chadwick, 4 Wyo. 379; 34 Pac. Eep. 899; Eice v. Inskeep, 34 Cal. 224, 226; Eacouillat v. Sansevain, 32 Cal. 376; Kelly v. Bandini, 50 Cal. 530; Drake v. Foster, 52 Cal. 225. In an action to foreclose a mort- gage against the estate of a decedent, brought after the note and mortgage have been presented to the excutor or administrator, and rejected, the judgment for a deficiency should provide that it be paid "in due course of administration": Moore v. EusseU, 133 Cal. 297, 301; 85 Am. St. Eep. 166; 65 Pae. Eep. 624. No valid judgment can be entered against a testator after his death, and upon the substitu- tion of the executor or administrator of defendant as defendant, in an action to recover money; and where plaintiff obtains judgment, such judgment should be made payable " in due course of administration," and not otherwise: Preston v. Knapp, 85 Cal. 559, 560; 24 Pac. Eep. 758 PROBATE LAW AND PRACTICE. 811; Estate of Brennan, 65 CaL 517, 518; 4 Pae. Rep. 561. At common law, there eould not be a joint judgment, even on the joint demand against the executor or administrator of a deceased obligor and the surviving obligors, for the reason that, as to the former, the judgment would be payable de bonis testatoris, and as to the latter, de bonis propriis. Nor has the rule been changed by the statute in California. There cannot be a joint judgment against all, for the reason stated: Bank of Stockton v. Howland, 42 Cal. 129, 130, 133. But an error in the judgment as to the executor or administrator does not invalidate the judgment as to the other defendants: Bank of Stockton v. How- land, 42 Cal. 129, 133; Kelly v. Bandini, 50 Cal. 530. At common law, the rule is absolute that the estate of a deceased joint contractor was not liable to the obligee in the joint contract except in case of the insolvency of the surviving joint obligor. If the survivor was solvent, there was a plain and adequate remedy by action at law against him. In such a case the liability of the estate of the deceased joint obligor was to contribute to him after the debt was collected from or paid by him. In case of his insolvency, the obligee in the joint contract could bring his action in equity against the administrators of the deceased joint obligor. But the English courts no longer follow the old common law, making the solvent surviving joint obligor alone liable to the obligee in the joint contract. They permit the action to be brought against the exectuors or administrators in the first instance, whether the survivor be solvent or not; and a statute which provides that any person may be made a defendant, who has or claims an interest in the controversy adverse to plaintiff, or who is a necessary party to a complete determination of the question involved does away with the common-law rule, where the petition alleges a joint and several con- tract, and one of the joint contractors is dead: Fisher v. Chadwick, 4 Wyo. 379; 34 Pac. Eep. 899, 900. The judgment rendered in an action in equity for an accounting against the administrator of a deceased administrator must be made payable out of his estate " in due course of administration": Vance v. Smith, 124 Cal. 219, 222; 56 Pac. Eep. 1031. A judgment against executors on a claim against the estate should be that they pay, " in due course of administration, the amount ascertained to be due." It should not be entered against them per- sonally: Clayton v. Dinwoodey (Utah), 93 Pac. Eep. 723, 728. Under the statute of Utah, a judgment against an executor or administrator upon any claim for money against the estate of a deceased person must be, that the executor or administrator pay, in due course of adminis- tration, the amount ascertained to be due. No execution must issue upon such judgment, nor shall it create any lien upon the property of the estate or give to the judgment creditor any priority of payment. In such a case it is error to enter a personal judgment against the rep- resentative: Smith V. Hanson (Utah), 96 Pac. Eep. 1087, 1091. (4) Recovery. Costs. In an action upon a rejected claim against the estate of a decedent, the claimant can recover only upon the cause CliAIMS AGAINST ESTATES. 759 of action set fortli in that claim: Estate of Dutard, 147 Cal. 253; 81 Pac. Eep. 519, 520; Enscoe v. Fletcher, 1 Cal. App. 659; 82 Pao. Rep. 1075. If the court finds that the claim has been paid and that nothing is due, no further finding on the evidence concerning the usury law of the place in which the debt was contracted is necessary: Sanguinetti v. Pelligrini, 2 Cal. App. 294; 83 Pae. Eep. 293, 296. A judgment on a claim draws interest at the legal rate: Estate of Glenn, 74 Cal. 567, 568; 16 Pae. Eep. 396; Quivey v. Hall, 19 Gal. 97. If the executor or administrator neglects or fails to indorse his allowance or rejection on a claim within ten days after its presentation, and the claimant elects to consider his claim rejected, but, pending an action thereon, it is approved and filed as an allowed claim, a judgment for costs is the maximum of plaintiff's relief: Hall v. Cayot, 141 Cal. 13, 16; 74 Pac. Eep. 299. (5) Effect of judgment The sole object of an action upon a rejected claim .for money is to place it among the allowed claims against the estate. The judgment rendered against an executor or administrator upon any claim for money against the deceased only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the judge, and such judgment is no more effectual as an estoppel than an allowance of a claim would be, for it can be contested by the heirs on the settlement of an account in the same manner as a claim allowed by the executor or administrator and judge can be contested: Hall v. Cayot, 141 Cal. 13, 16; 74 Pae. Eep. 299; Estate of More, 121 Cal. 635; 54 Pac. Eep. 148; McLean v. Crow, 88 Cal. 644; 26 Pae. Eep. 596; Estate of Glenn, 74 Cal. 567; 16 Pac. Eep. 396; "Wells, Fargo & Co. v. Eobinson, 13 Cal. 133. And a judgment in favor of an executor or administrator upon a claim presented by him and rejected by the judge has no greater force and effect than a judgment upon any other rejected claim. It merely establishes the claim in the same manner and to the same extent as if it had been allowed: Estate of More, 121 Cal. 635, 638; 54 Pac. Eep. 148. A judgment against the estate of a decedent does not have the effect of giving the creditor any further right than if his claim had been allowed, nor does it determine the right of priority over other claims. That must be determined by the probate court when the assets are finally marshaled and the order of payment deter- mined by that court: McLean v. Crow, 88 Cal. 644, 647; 26 Pac. Eep. 596. A judgment at common law was no evidence in an action against the heir: Beckett v. Selover, 7 Cal. 215, 228; 69 Am. Dec. 237; but in this country, where the real estate is a fund in the hands of the execu- tor or administrator for the payment of debts, a judgment against the estate is prima facie evidence of indebtedness as against the heir: Estate of More, 121 Cal. 635, 638; 54 Pae. Eep. 148; Estate of Schroe- der 46 Cal. 304, 318. A judgment may afterward be contested by any person interested in the estate, but in all cases the burden is upon the 760 PROBATE LAW AND PRACTICE. •contestant to show that the claim is without merit: Estate of More, 121 Cal. 635, 639; 54 Pae. Eep. 148. If one is sued as an adminis- trator, but he is not an administrator, a judgment against him in a representative capacity is void: Willis v. Farley, 24 Cal. 491, 502. A judgment against an executor, after the resignation of his trust and acceptance thereof by the probate court, and where the heirs were not made parties, does not bind the heirs: liuco v. Commercial Bank, 70 Cal. 339, 341; 11 Pac. Eep. 650. No judgment can properly be ren- dered against an executor or administrator, pending an appeal from an order removing him, and such judgment should be vacated, as the appeal does not revive or restore his powers, but he remains sus- pended from of&ce pending the appeal, and has ceased from the date of the removal to be practically and in effect the executor or admin- istrator of the estate until such time as the order may be reversed: More V. More, 127 Cal. 460, 463; 59 Pac. Eep. 823. As the presenta- tion of a judgment lien as a claim against an estate does not destroy the lien, the recovery of another judgment upon the claim, if rejected, does not merge the original judgment nor destroy its lien. The executor or administrator cannot, by rejecting the claim and compelling the creditor to establish it by suit, take from the latter any right that would have attached to the claim had it been allowed with- out suit; and no difference is observable between the allowance of the claim by the executor or administrator or the court, and the judgment of the court allowing the claim on suit brought after its rejection; the judgment establishes the claim, the same as if it had been allowed: Estate of Wiley, 138 Cal. 301, 306; 71 Pae. Eep. 449. The mere dis- missal of an action against an estate of a decedent by the plaintiff, and a judgment entered thereon without prejudice to his right to bring a new action on the same cause of action, is no bar to another action on the same claim: Moore v. Eussell, 133 Cal. 297, 299; 85 Am. St. Eep. 166; 65 Pac. Eep. 624. When a judgment lien has attached to land, it continues two years from its inception, whether or not any execution has been levied. The issuance of execution is not necessary to the life of the judgment lien: Estate of Wiley, 138 Cal. 301, 305; 71 Pae. Eep. 441. (6) Execution. After the death of the judgment debtor, no execu- tion can issue; the creditor must then present his claim to the executor or administrator, like any other claim, and if rejected, may bring suit thereon: Estate of WUey, 138 Cal. 301, 305; 71 Pac. Eep. 441; Eice v. Inskeep, 34 Cal. 224, 226. Upon a judgment rendered against the deceased in his lifetime, no execution can issue; but where an execu- tion is issued before the death of the decedent, and actually levied, the property may be sold under it: Bailee v. Eogers, 9 Cal. 123, 127. A decree for the payment of money in probate proceedings cannot be enforced as for a contempt. The proper process is an execution; Eostel V. Morat, 19 Or. 181; 23 Pac. Eep. 900. CLAIMS AGAINST ESTATES. 761 8. Enforcement of claims against estates. (1) In general. If an administrator uses money belonging to an estate with which to buy property in his own name, and to all appearances in his individual capacity the administrator has the legal title, but he holds it in trust for the heirs, and one who, without notice of the rights of the estate, supplies labor and materials for a building thereon, acquires a mechanic's lien on the building and land, superior to the rights of the heirs: Seibel v. Bath, 5 Wyo. 409; 40 Pac. Eep. 756, 760. A creditor has the right to reduce his collaterals and to pursue his debtor by a judgment and execution until his claim is satisfied, subject to the limitation that the creditor may only have one satisfaction; and if he is a creditor of an insolvent estate of a decedent, who holds collateral security for his claim, but disposes of such collateral security after his claim has been proved, the amount received for the security is a paym^ent pro tanto, and to that extent the debt is extinguished. He is therefore entitled to dividends only on the amount remaining due on the claim. He is not entitled to divi- dends on the whole claim as allowed, though the authorities on this question are divided: Sullivan v. Erie, 8 Col. App. 1; 44 Pac. Eep. 948, 949, 953. A creditor of an estate which cannot pay all claims in full is entitled to come in upon notice at the settlement of the adminis- trator's account, and contest any allowed claim. He is injured by the allowance of a claim, for the reason that it reduces the percentage which he is to receive in case the estate does not pay its debts in full. He is interested in the estate, and there is facing him a final judgment, which is to his injury, given without his knowledge, and without his having a day in court. There has been no hearing to which he has been invited; there has been no adjudication at which he has been notified to appear. Of course, it may be said that he can be present at the probate court, or before the probate judge, during all the period during which claims may be filed, and watch for the presentation of the claim to which he believes he has a valid objection. But the law does not require anything of this sort: In re Mouillerat's Estate, 14 Mont. 245; 36 Pac. Eep. 185, 187. Where the note of a decedent is secured by shares of corporate stock, but the claim is not acted upon within the statutory time by the executor or administrator, and the claimant, deeming his claim rejected, brings suit upon the rejected note and security, he is entitled to enforce both, and to have an order of sale of his stock as against the executor who occupies the same position that the decedent would have occupied had he lived: Hall v. Cayot 141 Cal. 13, 18, 19; 74 Pac. Eep. 299. A claimant against the estate of a decedent cannot recover the amount of his debt from the administrator's bondsmen, where he failed to file his claim against the estate until after the time set therefor, and made no attempt to have its validity determined by the court. The filing of the claim in the county court proves nothing, and, unless there is an allowance and an adjudication there is no establishment of the debt as against the 762 PROBATB LAW AND PKACTIOB. estate, and no proof of its liability to pay: Metz v. People, 6 Col. App. 57; 40 Pac. Eep. 51, 53. A judgment obtained against the sureties on the bond of an official cannot be enforced by them as a claim against his estate, after his death, until they have paid such bond: Estate of Hill, 67 Gal. 238, 244; 7 Pac. Eep. 664. The holder of a note, delivered to him as the heir of an estate, may maintain an action thereon against the executor, though such note has not been indorsed or assigned to him: Perry v. Wheeler, 63 Kan. 870; 66 Pac. Eep. 1007. A creditor whose claim against the estate of a decedent has been pre- sented, and rejected in whole or in part, may maintain a suit in equity for the enforcement of his rights: Walkerly v. Bacon, 85 Cal. 137, 141; 24 Pac. Eep. 638. In an action to foreclose the lien of a street assess- ment, after the death of the owner, the personal representatives of the deceased owner are not necessary parties defendant. His heirs or devisees are the only necessary defendants: Phelan v. Dunne, 72 Cal. 229, 231; 13 Pac. Eep. 662. (2) By attachment. A probate judge has no authority to issue an order of attachment in an action pending in the district court upon a claim not due, and any levy of an order of attachment issued only by the probate judge is void: Noyes v. Phipps, 10 Kan. App. 580; 63 Pac. Eep. 659. Funds in the hands of an executor or administrator of an estate cannot be reached by a garnishment proceeding in an action against a distributee, before an order of distribution has been made, and whUe the estate remains unsettled: Nelson v. Stull, 65 Kan. 585; 68 Pac. Eep. 617, 618; Norton v. Clark, 18 Nev. 247; 2 Pac. Eep. 529; but property vested in a non-resident executor or administrator is sub- ject to attachment and other process: Barlow v. Cogan, 1 Wash. Ter. 257. Even if a lien by execution could be levied upon specific prop- erty sold to a person before his death to satisfy a judgment for the purchase price, it does not follow that the prdceeds of such property after sale by the administrator could be levied upon to satisfy such judgment, especially if the same has passed into the hands of the administrator, with other property, and has become so mixed that it cannot be ascertained how much of the goods sold by the adminis- trator was sold by the plaintiff to the deceased, nor how much such goods brought. If the plaintiff has a right to any lien at all, it is for the specific goods sold to the deceased under and by virtue of the execution. The plaintiff has no legal claim to money in the hands of the administrator, even though the money accrued in part from the sale of the goods which had previously been sold to the decedent: In re Farmer's Estate, 17 Utah, 80; 53. Pac. Eep. 972. By the levy of an attachment at the commencement of an action, only a contingent lien upon the land is created; and until it is matured by a judgment the lien cannot be enforced against the property; and when judgment is finally obtained the plaintifiE acquires no other than a creditor's interest in the land, except the right to enforce the lien by a sale of CLAIMS AGAINST ESTATES. 763 the land. The rendition of the judgment, and of an order decreeing the sale of the real estate, does not transfer the title thereto, nor give any right of possession to the judgment creditor. Until the sale and conveyance are made, the right of possession remains in the debtor, and until the sale is completed in pursuance of the judgment and decree, neither the plaintiff nor the purchaser at the sale acquires any right to the lands, issues, or profits of the real estate. Hence where an administrator takes possession of the real estate of an intestate under an order of the probate court, and collects and receives rent for the same, an attaching creditor has no special right to the rents received, and no interest therein beyond that of a general creditor of the estate: Kothman v. Markson, 34 Kan. 542; 9 Pac. Eep. 218, 222. Where the creditor of the devisee attached real property devised before the distribution of the estate, his rights under the attachment levied will in no way be affected by the decree of distribution. He is not required to present his claim to the probate court, and is not entitled to participate in the distribution of the estate, but the prop- erty distributed continues to be subject to the lien of his attachment, if properly levied: Martinovich v. Marsicano (Cal.), 89 Pac. Eep. 333. Property of a decedent attached in his lifetime cannot be sold after his death to satisfy a judgment against him. The death of defendant destroys the attachment lien: Myers v. Mott, 29 Cal. 359, 367; Ham v. Cunningham, 50 Cal. 365, 367. The death of a defendant destroys the lien of an attachment, and the attached property passes into the hands of the executor or administrator, to be administered upon in due course of administration: Myers v. Mott, 29 Cal. 359, 367; 89 Am. Dec. 49. If the defendant died after the service of summons and the levy of an attachment, and before judgment, and the executor or administrator is substituted, and the action is continued against him, it is error for the court to render a judgment and enforce the lien of the attachment by a sale of the attached property and an application of the proceeds to the satisfaction of the demand: Myers v. Mott, 29 Cal. 359, 367; 89 Am. Dec. 49. 9. Action pending against decedent at time of his death. Presentation of claim. (1) In general. The plaintiff in an action pending against a deceased person at the time of his death must present his claim against the estate to the executor or administrator of the estate of the deceased, where such presentation is necessary under the law, and cannot recover in his action unless proof of such presentation is made: Derby & Co. v. Jackman, 89 Cal. 1, 4; 26 Pac. Eep. 610; Hibernia etc. Soc. V. Waekenreuder, 99 Cal. 503, 507, 508; 34 Pac. Rep. 219; Falkner v. Hendy, 107 Gal. 49, 52; 40 Pac. Eep. 21, 386; Vermont Marble Co. v. Black, 123 Cal. 21, 22; 55 Pac. Eep. 599; Gregory v. Clabrough's Executors, 129 Cal. 475, 479; 62 Pac. Eep. 72; Frazier v. Murphy, 133 Cal. 91, 95; 65 Pac. Eep. 326. All that is required of the 764 PROBATE LAW AND PEACTICE. plaintiff in such a case is. simply to present his claim: Gregory v. Clabrough's Executors, 129 Cal. 475, 479; 62 Pac. Rep. 72. The presen- tation of a claim must be proved, although not denied in the answer, and no judgment for the plaintiff can be properly rendered upon the pleadings: Derby & Co. v. Jackman, 89 Cal. 1, 4; 26 Pac. Eep. 610. If the plaintiff fails to make the required proof, upon a trial had, against the personal representatives of the decedent, he should be nonsuited: Vermont Marble Co. v. Black, 123 Cal. 21, 23; 55 Pac. Eep. 599. A statute limiting the commencement of an action upon a rejected claim, which is past due, to a specified time, has no application to an action already pending; and the fact that the suit may have been revived against the executors more than three months after the rejec- tion of the claim cannot affect the cause of action: Gregory v. Cla- brough's Executors, 129 Cal. 475, 479; 62 Pac. Eep. 72. Proof of the presentation of a claim to the executor or administrator of the estate of defendant, where he died during the pendency of an action against him, and where the executor or administrator of his estate has been substituted as defendant, is not a fact essential to the valid- ity of the judgment, where no issue has been made upon that ques- tion, but the failure to make the proof is ground for reversal, when objection is made in the trial court, and the exception is properly pre- served, although the appeal was not taken within sixty days after the rendition of the judgment: Falkner v. Hendy, 107 Cal. 49, 58; 40 Pac. Eep. 21, 386. The objection must be first made in the court below; it is too late to raise the point for the first time in the supreme court: Drake v. Foster, 52 Cal. 225, 227. A statute which requires the plaintiff to present his claim to the representative of the estate, where the defendant dies pending the suit, simply means that, when an action is pending against the decedent at the time of his death, the plaintiff therein is not relieved from the duty of presenting for allow- ance the claim upon which it is based, when the claim is of that char- acter that he would have been required to make such presentation in order to preserve its validity as a claim against the estate if such action had not been brought in the lifetime of the decedent: Hibernia etc. Soc. V. Waekenreuder, 99 Cal. 503, 507; 34 Pae. Eep. 219; Frazier v. Murphy, 133 Cal. 91, 96; 65 Pac. Eep. 326. BEFEBENCES. Death of defendant pending action against him; effect of, as to attachment: See head-line 8, subd. (2), supra. (2) Practice. Substitution. Supplemental complaint. If a defend- ant dies pending an action against him, the proper practice is for the plaintiff to file a supplemental complaint, alleging the death, and due presentation of the claim: Falkner v. Hendy, 107 Cal. 49, 52; 40 Pac. Eep. 21, 386; Bemmerly v. Woodward, 124 Cal. 568, 570; 57 Pac. Eep. 561. The proper practice on the suggestion of the death of a party CLAIMS AGAINST ESTATES. 765 after verdict and before judgment is to direct the entry of the judg- ment provided for in the statute, and then to suspend all further pro- ceedings in the cause until an executor or administrator shall qualify and be substituted as a party: Estate of Page, 50 Cal. 40, 42. If the judgment in such a case is entered against the executor by name, payable in due course of administration, instead of being against the testator by name, such error does not render the judgment void, and it is not necessary to present it to the executor for allowance as a claim against the estate, but the executor must pay out of money in his hands applicable for that purpose: Estate of Page, 50 Cal. 40, 43. If a party against whom a money judgment has been rendered moves for a new trial, but dies before the motion is determined, and his executor is substituted as defendant, and prosecutes the motion, and obtains an order modifying the judgment, but no new judgment is rendered, the judgment as modified is a claim against the estate which should be paid in due course of administration, and no presentation thereof to the executor is necessary: Estate of Breunan, 65 Cal. 517, 518; 4 Pac. Eep. 561. If an appellant dies pending an appeal, a motion by his substituted executors to remand the cause to the lower court upon the ground that the judgment is incapable of enforcement for the reason that there was a want of proper presentation of it as a claim against the estate of the deceased will be denied. The enforcement of a judg- ment, or the right to withhold its enforcement, is a matter primarily within the jurisdiction of the court by which it was rendered. Upon the death of the appellant, the power of the lower court to enforce its judgment by execution terminated, and the respondent was remitted for its collection to the probate jurisdiction of the court having charge of the administration of the estate of the decedent, and to that court the executors must present any defense there may have been to its payment out of the assets of that estate: People's Home Sav. Bank v. Sadler, 1 Cal. App. 189, 193, 194; 91 Pac. Eep. 1029. Wiere a judg- ment had been obtained against a joint debtor in his lifetime, and he died pending his appeal from the judgment, and his executors were substituted pending the appeal, and obtained a reversal of the judg- ment, the executors are not released because of a failure to present the claims to them: Megrath v. Gilmore, 15 Wash. 558; 46 Pac. Eep. 1032. If a widow has no children, and dies pending her appeal from an order refusing to grant her application to have the whole estate set apart to her, her right does not survive to any one, and the proceed- ings abate by her death: Estate of Bachelder, 123 Cal. 466, 467; 56 Pac. Eep. 97. Although an order substituting the representative of a deceased person as a party to an action pending an appeal to the supreme court has been made, the regular and orderly method of pro- cedure is to procure upon a proper showing a like substitution in the lower court. The propriety, if not the necessity, of such procedure must become manifest when it is considered that there will be thus avoided vexatious questions of the responsibility for costs and of the 766 PROBATE LAW AND PEACTICB. effect which a judgment may have as a lien upon the property of the personal representative who may be found chargeable with costs, and whose name does not appear in the judgment-books: Eeay v. Heazel- ton, 128 Cal. 335, 338; 60 Pac. Eep. 977. Where the statute provides that an action shall not abate by the death of a party, and that the same may be continued against his representative, or his successor in interest, the filing of a supplemental complaint,, and the bringing in as defendants such executors or administrators is not the commencement of any action against them, but. only a step in the progress of the original action to judgment; and where the original action was com- menced within the time limited by the statute, the cause of action stated in the supplemental complaint is not barred by the provisions of such statute, though the time therein specified had expired before the filing of the latter complaint: Hibernia etc. Soe. v. Wackenreuder, 99 Cal. 508, 510; 34 Pac. Eep. 219. In the absence of proof of the presenta- ■ tion of the claim, a judgment against the executor or administrator as a substituted defendant, payable in due course of administration, and against their objection for want of such proof, is erroneous: Frazier v. Murphy, 133 Cal. 91, 95; 65 Pac. Eep. 326. 10. Death of one against whom right of action exists. (1) Bight of action preserved. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and the statute provides that an action may be commenced against his execu- tors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary or of administration, such statute applies only to cases where the statute of limitations has commenced to run. The object of the statute is, not to curtail, but to prolong the period for suing in the given category: Smith v. Hall, 19 Cal. 85, 86; Estate of BuUard, 116 Cal. 355, 357; 48 Pac. Eep. 219. The evident purpose of such a statute is to secure to a party, who has a cause of action against a decedent, one year after the appoint- ment of a legal representative within which to bring his action. This may or may not have the efieet of extending the time: Barclay v. Blaekinton, 127 Cal. 189, 192; 59 Pac. Eep. 834. A party having a cause of action against the estate of a deceased person is not bound to cause administration to be had because the statute expressly extends his time for one year after the issuance of letters: Davis v. Hart, 123 Cal. 384, 388; 55 Pac. Eep. 1060. Upon the death of a judg- ment debtor, the plaintiff's right of action ceases; but the statute substitutes the presentation of the claim for suit, allowing the execu- tor or administrator to acknowledge it and place it on the list of recognized debts of the estate. The right to sue does not come from the existence of the claim and the non-payment, but comes from the refusal of the executor or administrator to acknowledge it as a just claim against the estate. This right, therefore, does not accrue until CLAIMS AGAINST, ESTATES. 767 the presentation of the claim, and the party is not bound to present it until after publication of the notice to creditors. It would be unjust to hold that the claim is barred by the statute of limitations when the claimant was in no default: Quivey v. Hall, 19 Cal. 97, 100. It is a general rule of law, that when a right of action has accrued against a party who may be sued, the statute of limitations begins to run, and its running will not be suspended by the happening of any subsequent event, unless within some saving clause of the statute; and the subse- quent death of the debtor or the lapse of time before the appoint- ment of his personal, representative is no exception to the rule. And this is true, although the debtor may die within the period fixed by the statute, and, by reason of litigation as to the right to probate, an executor or administrator may not be appointed until after the expira- tion of the time limited. To avoid the harshness and injustice of this rule, that often barred a cause of action, without any fault or laches on the part of the creditor, statutes have been passed that preserve to a creditor the right to bring an action within a specified time after the appointment of an executor or administrator, when the time limited would otherwise expire subsequently to the death of the debtor, and before the appointment of his personal representative. Hence, under statutes which provide that an action cannot be main- tained against an executor or administrator until the rejection of the claim and the expiration of six months from the granting of letters testamentary, it is manifest that the allowance of six months after the issuing of letters testamentary, before an executor or adminis- trator can be sued, is a statutory prohibition, and has the effect of suspending the operation of the statute during the time of the con- tinuance of such prohibition: Blaskower v. Steel, 23 Or. 106; 31 Pae. Bep. 253, 254. (2) Effect of, as to statute of limitations. Where no cause of action accrued to a person in his lifetime, but did accrue after his death, the statute of limitations began to run at the date of accrual, though there was no person in existence competent to sue, and con- tinued to run from such date without cessation; but, where the cause of action has accrued to the testator or intestate in his lifetime, the running of the statute will not be stayed by his death until the grant of administration. "It is not easy," said Sanderson, J., " to perceive why, upon principle, any distinction should be made between the case where the cause of action accrues in the lifetime of the testator or intestate, and where it does not accrue until after his death. The only reason which can be given why the statute should not run in any case is, that there is no person to sue, therefore no person to whom laches can be imputed, but the reason applies to the latter case as well as to the former, and if an exception is allowed in the former, it ought also to be extended to the latter ": Tynan v. Walker, 35 Cal. 634, 638; 95 Am. Dee. 152; Hibernia Sav. & L. Soc. v. Conlin, 768 PROBATE LAW AND PEACTICE. 67 Cal. 178, 180; 7 Pac. Rep. 477; Estate of Bullard, 116 Cal. 355, 356; 48 Pac. Eep. 219. If a cause of action accrues after the death of a person, the statute of limitations begins to run at the date of the accrual, though there is no person in existence competent to sue, and the statute continues to run from such date without cessa- tion; and it makes no difference whether the cause of action was one accruing after the death of a person who would, if he had sur- vived the accrual, been plaintiff in the action, or whether it is one where the action would have been against a person as defendant if he had lived until the cause of action came into existence: Hibernia Sav. & L. Soc. V. Conlin, 67 Cal. 178; 7 Pac. Eep. 477, 478. A claim against the estate of a decedent, which did not exist until after the expiration of the year specified in the notice to creditors, could not be affected by such notice, nor be barred because not presented to the executor or administrator within that time: In re MacDonald's Estate, 29 Wash. 422; 69 Pac. Eep. 1111, 1115. The statute of limita- tions will run upon a demand against the estate of a deceased person after a reasonable time has elapsed after the death of such person, and this, even though no executor or administrator has been appointed: Black V. Elliott, 63 Kan. 211; 65 Pac. Eep. 215. Where the plaintiff has failed to serve summons within the time prescribed by the statute after its issuance, his action must be. dismissed, and it is immaterial that the defendant died within less than one year after the com- mencement of the action. The time, having begun to run during his lifetime, was not suspended by his death, nor by a failure to appoint an administrator of his estate. When once the statute of limitations begins to run, its running is not suspended by any subsequent dis- ability. There is no exception to the bar of the statute, except it is found in the statute itself: Davis v. Hart, 123 Cal. 384, 388; 55 Pac. Eep. 1060; Union Sav. Bank v. Barrett, 132 Cal. 453; 64 Pac. Eep. 713, 1071. But the doctrine that when the statute of limitations begins to run, a subsequent disability, such as death of the party bound, etc., has no application where a judgment is obtained against an intestate in his lifetime and no execution is levied. In such a case, the judgment creditor being prevented by the statute from suing after the death of the debtor, the statute ceases to run until presen- tation of the claim to the administrator: Quivey v. Hall, 19 Cal. 97, 100, 11. Foreclosure of mortgages. In general. (1) Presentation of claim. Purpose of. The presentation and allow- ance of a mortgage claim against the estate of decedent is to prevent the debt from being barred and the mortgage extinguished by limita- tion; but it does not preclude a subsequent action for the foreclosure of the mortgage, in. which the estate may be subjected to costs and counsel fees: Moran v. Gardemeyer, 62 Cal. 96, 100; 23 Pac. Eep. 6; and, whether the claim be allowed or rejected, the creditor may at once proceed to foreclose his mortgage: Willis v. Farley, 24 Cal. 490, 499. CLAIMS AGAINST ESTATES. 769 (2) Presentation. When necessary. If a mortgagee relies on the general assets in the hands of the executor or administrator of an estate for the payment of his debt, or any part of it, he must present the same in the manner and within the time required by the statute relating to the presentation of claims; and failing to do this, he is limited to the proceeds arising from the sale of the mortgaged prop- erty. In other words, a mortgage, to be available as a claim against the estate, must be presented as other claims: Estate of Turner, 128 Cal. 388, 392; 60 Pae. Eep. 967; Pitte v. Shipley, 46 Gal. 154; EUissen V. Halleck, 6 Cal. 386; Ellis v. Polhemus, 27 Cal. 350; Andrews v. Morse (Kan.), 32 Pac. Eep. 640; Keid v. Sullivan, 20 Col. 498; 89 Pac. Eep. 338; Seammon v. Ward, 1 Wash. 179; 23 Pac. Eep. 439. Under the Colorado statute, a foreclosure of a mortgage can be had within one year from the death of the testator or intestate only by permission of the county court; and before a foreclosure can be had in any case, although one year may have elapsed, the debt or claim secured must have been presented and allowed by such court. The time within which such claims may be allowed is not fixed by statute, but where the claim is presented before the discharge of the adminis- trator, and while the estate is still in process of administration, it is a sufficient compliance with the statute: Sullivan v. Sheets, 22 Col. 153; 43 Pae. Eep. 1012, 1013; Eeid v. Sullivan, 20 Col. 498; 39 Pac. Eep. 338. (3) Presentation. When not necessary. A mortgagee may fore- close his mortgage against the property of a decedent, described in the mortgage, without presentation of his claim to the executor or administrator of the estate, where he .waives all claim to any other property of the estate: Dreyfuss v. Giles, 79 Cal. 409; 21 Pac. Eep. 840; Anglo-Nevada Assur. Corp. v. Nadeau, 90 Cal. 393; 27 Pac. Eep. 302; German S. & L. Soc. v. Fisher, 92 Cal. 502; 28 Pac. Eep. 591; Heeser v. Taylor, 1 Cal. App. 619; 82 Pae. Eep. 977; Security Sav. Bank v. Connell, 65 Cal. 574; 4 Pac. Eep. 580; Andrews v. Marsh (Kan.), 32 Pac. Eep. 640; Fullerton v. Bailey, 17 Utah, 85; 53 Pae. Eep. 1020; Teel v. Winston, 22 Or. 489; 28 Pac. Eep. 142; Eoed V. Miller, 1 Wash. 426; 25 Pac. Eep. 334; Bank of Sonoma v. Charles, 86 Cal. 322, 327; 24 Pae. Eep. 1019; Bank of Suisun v. Stark, 106 Cal. 202; 39 Pac. Eep. 531. But, to do this, there must be an express waiver in the complaint: Security Sav. Bank v. Con- nell, 65 Cal. 574; 4 Pac. Eep. 580; Dreyfuss v. Giles, 79 Cal. 409; 21 Pae. Eep. 840; Anglo-Nevada Assur. Corp. v. Nadean, 90 Cal. 393; 27 Pac. Eep. 302; Bank of Sonoma County v. Charles, 86 Cal. 322, 327; 24 Pac. Eep. 1019. The presentation of a note secured by mort- gage as a claim against the estate, without the presentation of the mortgage, does not waive the mortgage, if there was no intention to waive or abandon it: Bank of Sonoma County v. Charles, 86 Cal. 322, 327 • 24 Pac. Eep. 1019. The purpose of the statute as to waiving Probate — 49 770 PROBATE LAW AND -PEACTICE. recourse is to require the plaintiff to put his waiver upon record in his complaint, so that there may be no question that he has waived recourse, etc.; and it is immaterial whether or not he made the waiver before his complaint was drawn by failure to present the claim to the executors within the time prescribed by the statute, or other- wise: Anglo-Nevada Assur. Corp. v. Nadeau, 90 Cal. 393, 396; 27 Pae. Eep. 302. It is not essential to a waiver that the claim of right waived should be enforceable. There may be a waiver or relinquish- ment of a claim to something without right: Anglo-Nevada Assur, Corp. v. Nadeau, 90 Cal. 393, 396; 27 Pac. Eep. 302. A suit to fore- close a mortgage given by a decedent may be maintained, though it was not due at the time the estate was closed and discharge made^ and was not presented as a claim against the estate, where the com- plaint expressly waives all claim against any other property of the- estate except the land described in the mortgage: Dreyfuss v. Giles,. 79 Cal. 409; 21 Pae. Eep. 840. With the exception of a deficiency found to exist after a foreclosure sale, it is not necessary to present to an administrator a claim secured by mortgage upon the real prop- erty of a decedent: Eelsey v. Welch, 8 S. D. 255; 66 N. W. Eep. 390. (4) Distinct proceedings. Where the statute gives to the holder of the mortgage the right to enforce the same " against the property of the estate subject thereto " without presentation of the claim to the executor or administrator, the holder of a claim secured by mortgage has two modes in which he may enforce its payment. He may insti- tute an action for its foreclosure under such statute, in which the amount of his recovery will be limited to the proceeds of his security ^ or he may present his claim to the executor or administrator foi allowance, and, under another provision of the statute, receive the amount allowed therefor from the proceeds of a sale made under the- supervision of the probate court; and, if those proceeds are insuffi- cient therefor, may share equally, with the other creditors, in the- general assets of the estate, for the amount of such deficiency. The- two proceedings are entirely independent of each other, and may be conducted in different forums. The proceedings to foreclose the mort- gage may be taken after the presentation and allowance of his claim,, or even after its rejection: Visalia Sav. Bank v. Curtis, 135 Cal. 350, 352; 67 Pac. Rep. 329; Moran v. Gardmeyer, 82 Cal. 96; 23 Pac. Eep. 6; Hibernia etc 8oe. v. Conlin, 67 Cal. 178; 7 Pac. Eep. 477. The manifest intention of the California statute is to give to the holder of a mortgage, where he holds a claim against the estate secured by it, that, if allowed, would rank with the acknowledged debts of the- estate, an election to present the claim for allowance, have it allowed,. and proceed to foreclose for the whole amount due on the claim,, including any deficiency arising on the sale of the mortgage premi- ses, or to present no claim, and sue on the mortgage alone, and obtain whatever may be realized on the sale of the mortgaged^ CLAIMS AGAINST ESTATES. 771 premises under the decree of foreclosure: Hibeiuia etc, Soc. v. Conlin, 67 Cal. 178, 180; 7 Pac. Eep. 477. (5) Presentation. Form of. Where the statute does not require the presentation of the mortgage to the administrator for allowance as a claim against the estate, as a condition to foreclosure, and the requirement as to filing the mortgage is not mandatory, the filing of a verified claim for the amount due, with the execute* or adminis- trator, apprising him of the nature and character of the claim, is a sufficient compliance with the statute relative to filing: Kirman v. Powning, 25 Nev. 378; 60 Pae. Eep. 834, 838. If the holder of a mortgage note seeks judgment against the estate of the decedent upon the debt, he must substantially comply with the provisions of the statute relative to the presentation of claims, and if he makes no attempt to comply with such provisions as to the affidavit, etc., by which a claim may be supported, he cannot maintain an action against the estate upon the note secured by his mortgage: Perkins v. Onyett, 86 Cal. 348, 351; 24 Pac. Eep. 1024. In presenting a mort- gage claim against the estate of the deceased mortgagor, it is neces- sary to accompany, the claim by a copy of the mortgage, or to describe it by reference to the date, volume, and page of its record. It is not sufficient to present a copy of the note which states that it is secured by mortgage of even date therewith: Bank of Sonoma County V. Charles, 86 Cal. 322, 327; 24 Pac. Eep. 1019. Nor does the mere recital in a promissory note, presented as a claim against the estate of a deceased person, that it is secured by mortgage, constitute a presentation of the mortgage, where no copy of the mortgage is set out in the claim, and no reference is made therein to the date, vol- ume, or page of its record: Estate of Turner, 128 Cal. 388, 390; 60 Pac. Eep. 967. If a note secured by mortgage is presented as a claim against the estate, but no copy of the mortgage is attached to or presented with the note, and the mortgage is not described in the claim, and no reference is made therein to the date, volume, or page of its recordation, there is no presentation of the mortgage: Evans v. Johnston, 115 Cal. 180, 182; 46 Pac. Eep. 906. The presen- tation of a note secured by mortgage, and a claim against the estate of a decedent, is sufficient in form where there is attached to the claim a copy of the note and mortgage, showing all the indorsements on the mortgage, the date, volume, and page of its record in the recorder's office, and also containing a full and complete copy of the note: Consolidated Nat. Bank v. Hayes, 112 Cal. 75, 79; 44 Pac. Eep. 469. If a widow, who is the administratrix of the deceased, pur- chased with her own funds a note secured by mortgage upon all the real property of the deceased to preserve it from foreclosure, and took an assignment of the mortgage, the presentation by her of a secured claim against the estate is not based upon the assignment, but upon the note and mortgage; and if she presents a claim against the estate 772 PROBATE LAW AND PRACTICE. for the debt, it is a sufficient description of the mortgage to comply with the statute, where it is stated in the claim that the note was secured by a mortgage upon the real property of the deceased described in the inventory on file, to which reference is made for further particulars, where the date of its execution and its acknowledgment is given in the claim, with the volume and page of record where it was recorded, to which reference was also made, and where the mort- gage covered all the real property belonging to the deceased at the time of his death, and included all the real property described in the inventory. In such a case there could be no mistake as to the par- ticular mortgage intended to be relied upon, and the only purpose of the required description is to identify the mortgage: Estate of McDougald, 146 Cal. 191, 193; 79 Pac. Eep. 878. The presentation of a claim against the estate of a decedent, founded on a note secured by a mortgage, is sufficient, without a description of the mortgage, if the presentation refers to the date, volume, and page of the record of the mortgage, showing that it is all real property, situated in a county stated, and was given to secure a note a copy of which is contained in the presentation: Moore v. Eussell, 133 Cal. 297, 299; 85 Am. St. Bep. 166; 65 Pao. Eep. 624. (6) Pleadings. Fatties. In an action to foreclose a mortgage securing a note, the breach of the contract to pay the note is of the essence of the cause of action, and must be alleged; and a failure to aver non-payment of the note is fatal to the complaint, although no demurrer is interposed, and judgment goes by default, as the defect goes to the statement of a cause of action, and such defect is not waived by a failure to demur: Eyan v. HoUiday, 110 Cal. 335, 337; 42 Pac. Eep. 891. The foreclosure of a mortgage is a case of equitable cognizance: Willis v. Parley, 24 Cal. 490. . It is not necessary, in an action for the foreclosure of a mortgage, where all recourse against property of the estate, other than that mortgaged, ia waived, to allege that the claim has been presented to an executor or administrator for allowance or rejection: Security Sav. Bank v. Connell, 65 Cal. 574; 4 Pac. Eep. 580. So if the mortgage was not executed by the deceased person, though the mortgaged land was afterwards purchased by the decedent in his lifetime, and became a part of his estate, it is not necessary, in an action to foreclose the mortgage, either to aver a presentation of a claim against the estate of the decedent, or an express waiver of any recourse against his general assets: Eyan v. Holliday, 110 Cal. 335, 338; 42 Pac. Eep. 891. The waiver, in an amended complaint in a former action, of all recourse against the estate, except as to the mortgaged premises, is effectual only in that action, and if the action is dismissed, it ceases to have any efficacy or binding force in a subsequent action, and does not preclude the proper presentation of a claim against the estate, or the enforcement of such a claim in the subsequent action: CLAIMS AGAINST ESTATES. 773 Westbay v. Gray, 116 Cal. 660, 669; 48 Pao. Eep. 800, In an action to foreclose a mortgage against an estate, the executor represents the estate, and it is not necessary to make the heirs parties to the suit. A judgment against the executor would bind the heirs and devisees, and a sale under the judgment would relate to the date of the mortgage, and cut off the interest of all persons to the suit derived under the deceased mortgagor subsequently thereto: Dickey v. Gib- son, 121 Cal. 276, 278; 53 Pac. Bep. 704; Finger v. MeCaughey, 119 Cal. 59; 51 Pac. Eep. 13. Nor is it necessary that the administrator should be sued individually, in order to bar his right of succession to the mortgaged premises: Finger v. MeCaughey, 119 Cal. 59; 51 Pac. Eep. 13. (7) Presentation. Failure to present. The mortgagee's failure to exhibit his mortgage debt as a demand against the estate of a deceased mortgagor within the time prescribed by the statute for the presentation of claims after letters of administration have been granted will not ordinarily preclude him from foreclosing his mort- gage lien and subjecting the mortgaged property to the payment of the debt: Andrews v. Morse (Kan.), 32 Pac. Eep. 640; Eeid v. Sulli- van, 20 Col. 498; 39 Pac. Eep. 338; Eeed v. Miller, 1 Wash. 426; 25 Pac. Eep. 334; Scammon v. Ward, 1 Wash. 170; 23 Pac. Eep. 438; Teel V. Winston, 22 Or. 489; 29 Pac. Eep. 142; Kirman v. Powning, 25 Nev. 378; 60 Pac. Eep. 834; Bank of Sonoma County v. Charles, 86 Cal. 322; 24 Pac. Eep. 1019; Dreyfuss v. GUes, 79 Cal. 409; 21 Pac. Eep. 840. A mortgagee who has failed to present his claim to the administrator of a deceased mortgagor within the time prescribed by the statute does not thereby lose his remedy by foreclosure: Kaikainahaole v. Allen, 14 Haw. 527, 529. (8) Effect of allowance. Bight to foreclose. The allowance of a mortgage as a claim against the estate of a decedent does not bar its foreclosure: German S. & L. Soc. v. Hutchinson, 68 Cal. 52; 8 Pac, Eep. 627; Wise v. WiUiams, 72 Cal. 544; 14 Pac. Eep 204; Moran v. Gardemeyer, 82 Cal. 96; 23 Pac. Eep. 6. Contra: Falkner v. Fol- som's Executors, 6 Cal. 412. The allowance and acknowledgment of a debt against the estate of a decedent is sufficient to keep alive the mortgage securing it, and to entitle the plaintiff to foreclose such mortgage, without any express waiver of recourse against the estate: Consolidated Nat. Bank v. Hayes, 112 Cal. 75, 82; 44 Pac. Eep. 469. Where a claim against a mortgagor, as indorser of a note of a third party, which was purchased by the mortgagee from the mortgagor, was not presented to the estate as a secured claim, but was pre- sented and allowed as an unsecured claim against the estate, to be paid in due course of administration, the mortgagee is not authorized to buy up notes of a third party upon which the mortgagor was the simple indorser, and hold the same as secured by the ^lortgage: 774 PROBATE LAW AND PRACTICE. Moran v. Gardemeyer, 82 Cal. 96, 99, 101; 23 Pac. Eep. 6. If an executor or administrator takes a mortgage to secure himself against a doubtful payment of a claim to the mortgagor, and the adminis- trator afterwards goes into bankruptcy, a claim by the mortgagor for the money paid him by the administrator, and for the payment of which the mortgage was ordered foreclosed, la properly disallowed: In re Myer (N. M.), 89 Pac. Eep. 246, 249. Where appellant paid a mortgage to prevent a foreclosure thereof, and the mortgage, at the time of the payment, was a proper claim upon the land and against the estate of the deceased, but, after appellant had paid the mortgage, a claim was allowed in favor of the brothers of the deceased, which absorbed the entire estate, and left the appellant without anything to reimburse him for money paid to satisfy the mortgage, he is entitled to subrogation to an interest in the land equal to the amount of the mortgage debt paid: FuUerton v. Bailey, 17 Utah, 85; 53 Pac. Eep. 1020. If there has been no contest in the probate court in regard to a claim against the estate of a decedent upon a note secured by mortgage, the allowance of the plaintiff's claim is sufficient to make it an accepted debt of the estate, to keep alive the mortgage, and to entitle the plaintiff to have it foreclosed: Consolidated Nat. Bank v. Hayes, 112 Cal. 75, 82; 44 Pae. Eep. 469. The presentation or allowance of a mortgage claim does not affect the running of the statute of limitations against a mortgage, where it is not necessary to present such mortgage claim: Hibernia S. & L; Soo. V. Conlin, 67 Cal. 178; 7 Pac. Eep. 477. If a mortgagor has no interest in the property mortgaged, the mortgage creates no lien, and cannot properly be foreclosed: Otto v. Law, 127 Cal. 471; 59 Pac. Eep. 895. (9) Judgment. Interest. Where the mortgage claim has been presented to the estate, and allowed, there can be no deficiency judg- ment. The amount of any deficiency will be payable, if at all, in the due course of administration, without any judgment to that effect: Pechaud v. Binquet, 21 Cal. 76, 77. Where a mortgage claim was presented to the executor or administrator of a decedent, and an action to foreclose the mor-tgage against the estate has been brought, a judgment for a deficiency should provide that it be paid " in duo course of administration": Moore v. Eussell, 133 Cal. 297, 301; 85 Am. St. Eep. 166; 65 Pac. Eep. 624. Although a mortgage against the property of a deceased person provides for a deficiency judgment, the mortgagee's claim is barred, where he did not present it to the executors or administrators within the time limited in the notice to creditors, published by the executors, and did not, after that, and before bringing an action, or at any time, present the notes sued on in the action, or any claim on account thereof, to said executors or their successors. The conclusion that he is not, under such cir- cumstances, entitled to a deficiency judgment is in full accord with CLAIMS AGAINST ESTATES. 775 the statute requiring the claim to be presented in such cases within one month after the deficiency is ascertained: Thurber v. Miller, 11 S. D. 124; 75 N. W. Rep. 900. A decree of foreclosure in an action brought against an executor or administrator after his discharge, is a nullity, and is no bar to a subsequent suit against the heirs of the deceased' to enforce the mortgage and a sale of the mortgaged prop- erty: Willis V. Farley, 24 Cal. 490, 501. A mortgagee may enforce the lien of his mortgage against the property for the full amount thereof, including the conventional rate of interest. He is not limited to legal interest upon the mortgage debt, notwithstanding the insolvency of the estate: Visalia Sav. Bank v. Curtis, 135 Cal. 350, 353; 67 Pac. Eep. 329. (10) Sale. Holder as purchaser. While the holder of a mortgage may become a purchaser at any sale under order of the court of the lands included in the mortgage, yet if, by reason of the failure to have the mortgage allowed as a claim against the estate, the mort- gagee has waived "his right to have the same considered as a lien upon the property, he is not entitled to demand a conveyance from the executor or administrator, without payment of the price at which such mortgagee had purchased the land. He cannot claim an appli- cation of the purchase-money as a credit upon the mortgage not presented and allowed as a claim against the estate: Estate of Tur- ner, 128 Cal. 388, 392, 393; 60 Pac. Eep. 967. (11) Redemption. Surplus. Unless the owner of a mortgage has, within one year, presented his claim against the estate of a decedent, he is not entitled to apply to the probate court to have his mortgage redeemed out of the personal assets of the estate, nor, in the alter- native, to have the land sold and the proceeds applied on the debt: Scammon v. Ward, 1 Wash. 179; 23 Pac. Eep. 439, 440. If a mort- gage is foreclosed upon an insolvent estate of a deceased mortgagor, the surplus, if any, should be paid to the administrator, and not to the heirs of the mortgagor, when it is required for the payment of debts. The administrator, in such a case, may recover from the assignee of the mortgagee: Whitney v. Eoss, 17 Haw. 453, 454. 12. Foreclosure of mortgages. Limitation of actions. (1) In general. Where a mortgage claim has been allowed and approved, the right of the mortgagee to maintain an action to fore- close the mortgage is not affected by the statute of limitations, pend- ing the procedings for the settlement of the estate of the mortgagor: German Sav. & L. Soc. v. Hutchinson, 68 Cal. 52, 54; 8 Pac. Eep. 627; 'Wise v. Williams, 72 Cal. 544; 14 Pac. Eep. 204; but the assignee of a mortgage has no right to foreclose it against the estate of a deceased mortgagor for the benefit of the assignor, where the mort- gagee is administrator of the estate of the mortgagor; and if he 776 PROBATE LAW AND PRACTICE. commences a suit for foreclosure while the mortgagee is administra- tor, but such mortgagee, after ceasing to be administrator, is sub- stituted as plaintiff in place of the assignee, the statute of limita- tions will run against the mortgage debt until the date of the sub- stitution. If the action is then barred, no suit can be maintained: Brown v. Mann, 71 Cal. 192; 12 Pac. Eep. 51. The failure to appoint an administrator of the estate of a deceased mortgagor and debtor does not prevent the statute of limitations from running in favor of the mortgagor's heirs against an action to foreclose the mortgage: Colonial etc. Mtge. Co. v. Tlemington (N. D.), 103 N. W. Eep. 929. Where a mortgagor died intestate, seised of the mortgaged land, before the mortgage debt was due, and left four heirs, only one of whom was a resident of the state; where no administrator was ever appointed; and where nearly fourteen years after the debt was due the heirs conveyed the land to defendant, — it was held that an action to foreclose the mortgage was barred as to one fourth of the land, but was not barred as to the remaining three fourths: Colonial etc. Mtge. Co. v. Plemington (N. D.), 103 N. W. Eep. 929. Under the California statute, " no claim against any estate, which has been presented and allowed, is affected by the statute of limitations, pend- ing the proceedings for the settlement of the estate," etc. But it has been held, in an action where a husband and wife executed a joint promissory note, secured by mortgage on their community prop- erty, where, after the husband died testate, and the claim of the mortgage was filed against his estate, and where the claim was allowed and approved by the administrator, and duly allowed by the judge, that such statute has application alone to claims against the estate, and does not apply to any person who may happen to be jointly or severally indebted with the deceased upon such claim, and that, in such case, the general statute of limitations applies to all obligations of eo-mortgagors or co-obligors generally, and in all cases where exception to its operation is not specifically made: Van- dall V. Teague, 142 Cal. 471, 476; see Tynan v. Walker, 35 Cal. 634; 95 Am. Dec. 152. The settlement and distribution of the estate is no bar to the right to foreclose the mortgage against the distributee of the mortgaged property, or the grantee of such distributee: Drey- fuss V. Giles, 79 Cal. 409; 21 Pac. Eep. 840. The fact that the action was not commenced until after the expiration of the time for the presentation of claims against the estate does not bar the right of action: German Sav. & L. Soc. v. Fisher, 92 Cal. 502; 28 Pac. Eep. 591. Where the law as to the presentation of mortgage claims has been amended, after notice to creditors has been given and the time to present claims has expired, so that claims must be presented which would not before have to be presented, a mortgage, given by the deceased, falling due after the amendment is not barred by a failure to present the claim to the administrator: Hibernia Sav. & L. Soc. V. Hayes, 56 Cal. 297, 299. CLAIMS AGAINST ESTJ^TES. 777 13. Foreclosure of mortgages. Death of mortgagor. (1) In general. If a husband and wife, during the husband's life, give a mortgage on a tract of land, such mortgage may be enforced, after the husband's death, against the heirs, but the mort- gagee has no right to a personal judgment against any of the defend- ants: Brown v. Orr, 29 Cal. 120, 122. Where a mortgagor died, and the mortgagee filed a claim against his estate for the amount of the mortgage debt, without referring to the mortgage, an allowance of the same as an unsecured claim is not void, where there was in fact no mortgage: Otto v. Long, 127 Cal. 471; 59 Pac. Eep. 895. In an action to foreclose a mortgage executed by a person before his death, and where his widow was made administratrix of his estate as a party defendant, the purchaser at the foreclosure sale, after receiving his deed, is entitled to a writ of assistance against the administra- trix for possession of the premises, where her answer to the applica- tion for the writ fails to show that she claims the property, or the possession thereof, by any right or title adverse to that of her deceased husband: Finger v. McCaughey, 119 Cal. 59, 61; 51 Pac. Eep. 13. (2) Enforcement without presentation. If the mortgagor dies after selling land upon which he has given a mortgage, the mortgagee may enforce the mortgage against the subsequent purchaser, without pre- senting his claim to the executor or administrator for allowance: Christy v. Dana, 42 Cal. 174, 179. A failure to present a claim against an estate before bringing suit thereon is a mere matter of abatement, which is waived unless pleaded: Bemmerly v. Woodward, 124 Cal. 568, 574; 57 Pac. Bep. 561. An action to foreclose a mort-- gage does not abate by the death of the mortgagor pending the suit, but survives against his estate, and may be prosecuted against the representative of such estate, with the same effect as if the original defendant had not died: Union 8av. Bank v. Barrett, 132 Cal. 453, 454; 64 Pac. Eep. 713, 1071; Hibernia etc. Soc. v. Waekenreuder, 99 Cal. 508; 34 Pac. Eep. 219. If a married woman, having authority, 'executes a mortgage in her own name and afterwards dies, and the mortgagee seeks to foreclose, but does not ask for any judgment against the estate, and the estate no longer has any interest whatever in the property, it is unnecessary for the mortgagee to present the note and mortgage to the executor or administrator for allowance, and he can maintain an action for the foreclosure of the mortgage against the property without making the executor or administrator a party to the foreclosure suit: Eiekards v. Hutchinson, 18 Nev. 215; 2 Pac. Eep. 52, 54; 4 Pac. Eep. 702. If a mortgage has been given to secure the debt of a third person, and the mortgagor afterwards dies, no presentation of the mortgage claim need be made to his personal representative: Hibernia Sav. & L. Soc. v. Conlin, 67 Cal. 178; 7 Pac. Eep. 477. If the mortgagor in a chattel mortgage agrees that, upon default, the mortgagee may take possession of the mortgaged prop- erty, either preliminary to foreclosure or for preservation, the right 778 PROBATE LAW AND PRACTICE. of the mortgagee to take possession is not defeated by the death of the mortgagor; his right of possession ig good against the mort- gagor's administrator; and the mortgagee's claim to such possession i» not such a claim as must be presented to the administrator for allow- ance or rejection: Purdin v. Archer, 4 S. D. 54; 54 N. W. Bep. 1043. (3) Express waiver in complaint. In an action to foreclose a mortgage against the property of a deceased mortgagor, where the complaint contains a waiver, in the exact language of the statute, against any other property of the estate, the effect of such express waiver is not destroyed by a prayer for relief in which the plaintiff asks for judgment for " the amount due upon the said note and mort- gage," and for costs " and counsel fees," and " that a receiver be appointed to take charge of the real estate until the same be sold, and to collect the rents and all the net income therefrom, to be applied on any deficiency which may remain due to plaintiff after said sale": Hibernia etc. Soc. v. Wackenreuder, 99 Cal. 503, 509; 34 Pac. Eep. 219. (4) Limitation of actions. In general. The fact that one of two mortgagors dies does not have the effect of suspending the running of the statute of limitations as to the other mortgagor or as to his grantee: Hibernia etc. Soc. v. Poland, 145 Cal. 626, 628; 79 Pac. Eep. 365; Vandall v. Teague, 142 Cal. 471; 76 Pac. Eep. 35. If a mortgage is given by one person to secure the promissory note of another per- son, and the payor of the note dies, and the holder thereof fails to present either the note or mortgage to his administrator for allowance within the time prescribed by the statute after publication of notice to creditors, the claim is barred as against the estate, but the mort- gage remains in force, and may be foreclosed at any time before it is barred, as against the mortgagor, by the statute of limitations; and this applies to a note made by the husband for his own debt, and where the wife gives a mortgage on her separate property to secure it, and the husband signs the mortgage to show his assent to it. The wife's liability on the mortgage, in such a case, is not affected by the death of the husband and the failure of the holder of the note to present the claim for allowance to the administrator of his estate: Sichel v. Carrillo, 42 Cal. 493, 504. A mortgage is capable of enforcement against the mortgaged property, though the mortgagor be deceased, in a direct suit brought for that purpose against the heirs of the mortgagor, or the person or persons in whom the legal title to the mortgaged property is vested at the time of the fore^ closure; and such mortgaged property may be subjected to the pay- ment of the debt it is pledged to secure without a presentation of the debt to the executor or administrator in a probate proceeding; but the statute of limitations runs against such right, and the action must be begun within the statutory period: Gleason v. Hawkins, 32 Wash. 464; 73 Pac. Eep. 533, 534; but, notwithstanding the right to fore- CLAIMS AGAINST ESTATES. 779 close the mortgage, or to collect the debt out of the real property of the deceased debtor, is barred by the statute, the creditor still has the right to have his claim allowed by the administrator to be paid, as other claims of the estate must be paid, out of the personal property in the hands of the administrator belonging to the estate. The statute destroys the lien of the debt at the end of six years upon the deceased debtor's real property, but keeps it alive, in so far as his personal property is concerned. The debt should for that reason be allowed as a claim against the estate: Gleason v. Hawkins, 32 Wash. 464; 73 Pac. Eep. 533, 534. (5) Limitation of actions. Death before maturity. Where a note and mortgage were not mature at the death of the mortgagor, they are not barred by the statute of limitations, although letters of admin- istration were not issued until more than four years after the maturity of the note and mortgage; and the claim thereon, presented to the administrator immediately after the publication of notice to credi- tors, is properly allowed: Estate of Bullard, 116 Cal. 355, 356; 48 Pac. Eep. 219. If a mortgage debt was not due at the time of the mortgagor's death, the statute of limitations would not begin to run against the mortgagee's right to foreclose while there was no admin- istration on the mortgagor's estate: Heeser v. Taylor, 1 Cal. App. 619; 82 Pac. Bep. 977. Where a decedent had given a mortgage, but died before its maturity, the statute of limitations does not bar a recovery, although more than four years had elapsed from the maturity of the mortgage before foreclosure, if loss than one year had elapsed after the issuing of letters testamentary or of administration, before such foreclosure suit was brought: Heeser v. Taylor, 1 Cal. App. 619, 620; 82 Pac. Eep. 977. (6) Limitation of actions. Death of defendant pending action. The rule that if an action is pending against a decedent at the time of his death, the plaintiff must present his claim against the estate in order to recover, does not apply to an action for the foreclosure of a mortgage other than homestead premises, thpugh it was com- menced before the death of the mortgagor, and was pending undeter- mined at his death. Such action may be continued against the executors of the deceased mortgagor without presentation of the claim to them for allowance, where the plaintiff expressly waives recourse against all other property of the decedent: Hibernia etc. Soc. V. Waekenreuder, 99 Cal. 508, 507, 508; 34 Pae. Eep. 219. An action is deemed to be pending until its final determination on appeal, unless the judgment is sooner satisfied: Vermont Marble Co. v. Black, 123 Cal. 21, 23; 55 Pae. Eep. 599. If an action to foreclose a mortgage does not abate by the death of a mortgagor pending the suit, but survives against his estate, and can be prosecuted against the person who shall thereafter be appointed his personal representative, the plaintifE has the same right to proceed against him as it would have 780 PROBATE LAW AND PRACTICE. to proceed against the original defendant had he not died, and the cause of action is not extinguished or affected by the fact that the summons was not personally served upon the mortgagor, and that the action was begun more than one year prior to his death. The power expressly conferred upon the court to continue the proceeding against the mortgagor's personal representative carries with it an implied power to order a. new summons to bring in the executrix as a new party, after the lapse of a year: Union Sav. Bank v. Barrett, 132 Cal. 453, 455, 456; 64 Pae. Eep. 713, 1071. (7) Sedemptlon. Upon the death of a mortgagor or owner of redemption, his heir at law may redeem. The widow and the admin- istrator may also redeem; but the right of the heirs at law to redeem is independent of that of the widow or administrator, and the exer- cise of such right by the heirs, in bringing a suit in equity to redeem, is not an interference with the administration of the estate. Such suit may therefore be brought without asking leave of the probate court: Kahoomana v. Carvalho, 11 Haw. 516, 517. 14. Mortgages on homesteads. (1) In general. Parties to foreclosure. Where a homestead is mortgaged, or is declared on land subject to a mortgage, it is not the exemption that is mortgaged, but the whole property, and the • homestead exemption still exists, and is to be recognized subject only to a reduction in amount to satisfy the just demand of the mortgagee: White V. Horton, 36 Cal. Dec. 103, 105 (Aug. 4, 1908). In the case of a mortgage against a probate homestead, the exeeutbr or administrator of the estate is not a necessary party to the foreclosure of the mort- gage, if no present claim is made against the estate: Sehadt v. Heppe, 45 Cal. 433. Where a recorded homestead has been set apart to the widow by the court, the executor or administrator is no longer a necessary or proper party to an action of foreclosure. Nothing being claimed against the estate, it is a matter of no concern to him whether the mortgage is foreclosed or not: Sehadt v. Heppe, 45 Cal. 433, 437. But if recourse is had to property of the estate other than that mortgaged, the executor or administrator is a necessary party to the suit: Belloe v. Eogers, 9 Cal. 123, 126. Where the whole estate has been set apart for the use of the family, and the executor or administrator has been discharged, he is not a necessary party defendant to the foreclosure of a mortgage on the real estate set apart to the family as a homestead: Browne v. Sweet, 127 Cal. 332, 335; 59 Pae. Bep. 774. (2) Presentation of claim. When necessary. No action to fore- close a mortgage on the homestead of a deceased mortgagor can be maintained, unless the claim secured by the mortgage is first duly presented for allowance to the personal representative of the mort- gagor, although the estate has no assets other than the mortgaged CLAIMS AGAINST ESTATES. 781 homestead which can be subjected to the payment of the mortgage debt; and, notwithstanding an action of foreclosure had been com- menced and a lis pendens filed prior to the mortgagor's death, and that the plaintifiE has expressly waived all recourse against any other property of the estate: Bollinger v. Manning, 79 Gal. 7, 12; 21 Pae. Eep. 375. Liens and encumbrances on the homestead must be pre- sented for allowance against the estate of a decedent of which it forms a part. The purpose in requiring the presentation of liens and encumbrances on the homestead for allowance against the estate is to preserve the homestead, if possible: Camp v. Grider, 62 Cal. 20, 26. Where an action to foreclose a mortgage given by a husband and wife upon the homestead has been brought, and all recourse against the property of the estate other than the property mortgaged has been waived, such mortgage must, upon the death of the husband, be presented as a claim against his estate, notwithstanding such waiver: Wise v. Williams, 88 Cal. 30, 33; 25 Pac. Eep. 1064. A mortgage given by a husband and wife upon property upon which a homestead is afterwards declared must, upon the death of the husband, be pre- sented as a claim against his estate, although recourse against any other property of the estate than that mortgaged is waived: Wise v. Williams, 88 Cal. 30, 33; 25 Pac. Eep. 1064. So a mortgage of a homestead on community property must be presented before an action can be brought for its foreclosure, and a judgment of fore- closure without such presentation is erroneous, even if all recourse against other property has been waived in the complaint; and a presentation of a mortgage note without a presentation of the mort- gage is insuf5cient: Perkins v. Onyett, 86 Cal. 348, 350; 24 Pae. Eep. 1024. If the mortgage is upon property which is subject to a claim of homestead, and the statute provides that if there be subsisting liens or encumbrances on the homestead left by a deceased person, the claims secured thereby must be presented and allowed as other claims against the estate, and the plaintiff has failed to present to the executor or administrator of the estate his claim upon the debt set forth in the complaint, he is not only unable to maintain an action for the foreclosure of the mortgage, but is also precluded from maintaining an action on the note independently of the mortgage. The extinguishment of the mortgage Uen by reason of his failure to present his claim does not give him the right to bring an action upon the debt without such presentation: Hibernia Sav. & Ii. Soe. v. Hinz (Cal. App.), 88 Pac. Eep. 730. BE7EBE1ICES. Concerning the presentation of mortgage claims against home- steads, before bringing suit, see note, subd. 19, § 420, ante. (3) Presentation of claim. When not necessary. If the mortgage covers a homestead upon the separate property of the wife, and the creditor waives all claims against the husband's estate, no presenta- 782 PROBATE LAW AND PRACTICE. tion of the claim is necessary: Bull v. Coe, 77 Cal. 54; 11 Am. St. Rep. 235; '18 Pac. Bep. 808. A mortgage on a homestead, exceeding the statutory limit in value, need not be presented as a claim against the estate of the deceased mortgagor prior to the commencement of an action to enforce the mortgage against the excess. The rule that a mortgage upon the homestead cannot be enforced unless a claim therefor has been duly presented to the executor or adminis- trator does not apply to a probate homestead. Hence, if a part of the mortgaged premises has been apportioned to the widow of a decedent, the mortgagee may, without presenting his claim to the executor or administrator, foreclose as to the other part, where the premises described in the homestead declaration exceed the statutory limit: Bank of Woodland v. Stephens, 144 Cal. 659, 664; 79 Pae. Eep. 379. (4) Limitation of actions. A mortgage on an antemortem home- stead cannot be foreclosed, unless the claim is presented for allow- ance against the estate of the decedent within the time limited for the presentation of claims: Building and Loan Assoc, v. King, 83 Cal. 440; 2*3 Pac. Eep. 376. Where a husband and wi£e have mortgaged the homestead selected from the community property, and the husband dies and the wife conveys her interest, an action to foreclose the mortgage on such homestead cannot be maintained, unless it is brought within four years from the maturity of the mortgage: Van- dall V. Teague, 142 Cal. 471; 76 Pae. Eep. 35, 37. A statute which provides that claims against the estate of a decedent secured by " subsisting liens or encumbrances on the homestead " " must be pre- sented and allowed as other claims against the estate," and that if the funds of the estate are inadequate to pay all claims, the claims 80 secured must be first paid, does not forbid the commencement of a proceeding to foreclose a mortgage given by a husband and wife upon a homestead selected from community property; and the statute of limitations will bar such action unless it has been commenced within the statutory period of four years: Vandall v. Teague, 142 Cal. 471; 76 Pae. Eep. 35, 37. Where a husband and wife jointly executed a mortgage upon their homestead declared on community property, title to the homestead vests absolutely in the wife upon the husband's death. Hence the allowance of a claim against the estate of the deceased husband has the effect only of suspending the statute of limitations as against the estate. It does not have that effect as against the surviving wife. She and her successor in interest may therefore plead the statute of limitations in bar of a foreclosure against them if not brought within the time prescribed by the gen- eral statute of limitations after the maturity of the mortgage: Van- daU V. Teague, 142 Cal. 471, 474, 476; 76 Pac. Eep. 35. 16. Trusts. Deeds of trust. (1) In geneial. Equity will enforce a trust against the personal representatives of a deceased trustee, and without the presentation CLAIMS AGAINST ESTATES. 7S3 ■of the claim against the estate, -when the identical trust property, or its product in a new form, can be traced into the estate, and so ilito the possession of the representatives. But a beneficiary who is unable to do this must rely upon the personal liability of the trus tee, and, so relying, has only a claim against the estate that must be •duly presented for allowance. Such a claim, however, is still based upon the trust, whatever that may have been. It had its origin in the trust, and depends for its validity upon the legality and sufii- ciency of the trust. The fact that the beneficiary is obliged to present his claim, and to look, like a general creditor, to the assets of the •estate for payment, does not change the nature of his demand, which is still one for property due under a trust account; it merely has •changed his remedy: McGrath v. Carroll, 110 Cal. 79, 83; 42 Pac. Eep. 466. Where deposits in bank are community property, and were made in the name of the husband, and it is found that these deposits would not pass to the wife, either as donee or beneficiary of a trust, they may be recovered, so far as they can be identified, without the presentation of a claim against the estate of the wife. The right to sue an executor or administrator in cases like this, without the presentation of a claim against his decedent's estate, arises from the fact that the specific thing sued for is not a part of decedent's estate, and the action will lie whenever the thing demanded can be identified in specie as the property of another: . Sprague v. Walton, 145 Cal. 228, 235; 78 Pac. Eep. 645. In an action to enforce a trust against the executor ■ of a deceased trustee, and the due presentation of a proper claim against the estate is averred in an amended and supple- mental complaint, but which shows that such presentation and rejec- tion was after the commencement of the action, the failure to present the claim before suit is a mere matter in abatement of the action, which is not favored, and is waived if not set up in answer either to the original or to the supplemental complaint in proper time: Bem- merly v. Woodward, 124 Cal. 568, 570, 575; 57 Pac. Eep. 561. (2) Presentation is necessary when. If one of two executors of the estate of a deceased person dies, having in his hands a portion of the estate, which could not be identified as a trust fund, the other ■executor must present a claim against his estate, and if the time for such presentation has expired, the amount due from the deceased •executor to the estate of the original decedent cannot be deducted from his distributive share of that estate: Estate of Smith, 108 Cal. 115, 122; 40 Pac. Eep. 1037. The beneficiary of a trust, who is unable to follow the trust funds through its mutations, is placed, upon the death of the trustee, in the position of a general creditor of the •estate: Byrne v. Byrne, 133 Cal. 294, 299; 45 Pac. Eep. 536; Lathrop V. Bampton, 31 Cal. 17; 89 Am. Dec. 141. Whenever a trust fund has been wrongfully converted into another species of property, if its identity can be traced, it will be held, in its new form, liable to the 784 PROBATE LAW AND PRACTICE. cestui que trust. No change of its state and form can devest it of such trust. So long as it can be identified, either as the original property of the cestui que trust, or as the product of it, equity will foUow it; and the right of reclamation attaches to it until detached by the superior equity of a bona fide purchaser for a valuable con- sideration without notice. The substitute for the original thing fol- lows the nature of the thing itself, so long as it can be ascertained to be such. But the right of pursuing it fails when the means of ascertainment fails. This is always the case where the subject- matter is turned into money, and mixed and confounded in a general mass of property of the same description: Lathrop v. Bampton, 31 Cal. 17, 22; 89 Am. Dec. 141. Hence where trust moneys held and used by a deceased person were so commingled that they are incapable of identification as a, distinct fund, and no fruit or product thereof is susceptible of identification, the only remedy of a beneficiary is to present a claim for the money so held and used against the estate, and to sue thereon if the claim is rejected; and no suit against thp executor or administrator can be maintained to enforce the trust without such presentation: Oreutt v. Gould, 117 Cal. 315, 316, 317; 49 Pae. Eep. 188; Bemmerly v. Woodward, 124 Cal. 568, 573; 57 Pac. Eep. 561; Estate of Smith, 108 Cal. 115, 122; 40 Pac. Eep. 1037> McGrath v. Carroll, 110 Cal. 79, 83; 42 Pac. Eep. 466; Eoach v. CarafEa, 85 Cal. 436, 444; 25 Pac. Eep. 22; Gunter v. Janes, 9 Cal. 643. Nor can any action against the executor or administrator to recover a trust fund be maintained, unless it is shown that such fund, or some specific property or fund to which it can be traced, has come into the possession of the defendants: Gillespie v. Winn, 65 Cal. 429; 4 Pae. Eep.' 411; Eowland v. Madden, 72 Cal. 17; 12 Pac. Eep. 226, 870. (3) Kecovery of specific property. Where recovery is sought of specific property alleged to have been held in trust by the decedent at the time of his death, a party seeking such recovery is not asking payment of the claim from the assets of the estate, and is therefore not required to present his claim as a creditor of the estate: Brown v. Town of Sebastopol (Cal.), 96 Pac. Eep. 363, 364. One who seeks to recover from the representatives of an estate specific property alleged to have been held in trust by the decedent at the time of his death is not a " creditor of the estate." He is not seeking payment of a claim from the assets of the estate, and is not required to present a claim as a creditor. His action is not founded upon a claim or demand against the estate: Estate of Dutard, 147 Cal. 253, 256; 81 Pae. Eep. 519. The presentation of a claim against the estate of a decedent is not required in order to maintain an action to recover property held in trust by him. It is only whera payment of a claim is sought out of the assets of decedent's estate where such presentation is necessary. Property held by the decedent in trust is not a part of his estate, and cannot be applied in satisfaction of CLAIMS AGAINST ESTATES. 785 Mb debts, or from a portion of his estate to be distributed by his heirs: Elizalde v. Elizalde, 137 Cal. 634, 642; 66 Pae. Eep. 369; 70 Pae. Eep. 861. If it appears that a decedent was the sole devisee of an estate that he received on distribution, subject to a parol trust to pay out of the estate a certain sum to the plaintiff, and that a claim against the estate of the decedent was presented by the plain- tiff and allowed in part by the executors of the estate, and approved by the judge, a bill in equity will lie against the executors, without a previous demand upon them, to enforce the trust against the estate as to the remainder of the claim: Walkerly v. Bacon, 85 Cal. 137, 141; 24 Pae. Rep. 638. So where a trust fund received by a deceased ^ husband in his lifetime, under the will of his deceased wife, was invested by him as directed by the decree of distribution of her estate, and was kept separate by the husband from his other estate, such fund was no part of his estate, and it was not necessary for the trustees of a Masonic lodge appointed to receive such fund to- present a claim against the husband's estate, as a condition precedent to the recovery of such fund from his administrator. It is only where payment of a claim is sought out of the assets of decedent's estate that a presentation of a claim against the executor or admin- istrator is necessary: Kauffman y. Foster, 3 Cal. App. 741, 743; 8& Pao. Eep. 1108. (4) Deeds of trust. The right to execute powers of sale conferred by a deed of trust, and to apply the proceeds arising therefrom to the payment of debts and charges named in the deed, is not dependent upon a compliance with the statute prescribing the time within which claims must be presented against the estate of a deceased person: More v. Calkins, 95 Cal. 435, 438; 29 Am. St. Bep. 128; 30 Pae. Eep. 583. If a husband executes a deed of trust to secure money loaned to him, and empowers the trustees to sell the land for default in payment, and his wife afterwards declares a homestead upon the property, which is community property, and the- husband dies before any sale is made by the trustees, and his widow becomes executrix of his estate, it is not necessary that any presen- tation of the debt as a claim against the estate of the deceased husband be made as a prerequisite to the execution of the power of sale. Such deed of trust is not a lien or encumbrance requiring pres- entation or allowance. It passed title to the trustees, and a sale by them under the power would extinguish the homestead which was- subjeet thereto. la legal effect, a deed of trust does not create a lien or encumbrance on the land, but conveys the legal title to the trus- tee, and if the homestead applies only to the title vested in one or both of the spouses, and does not affect titles vested in third persons, it follows that the legal title thus vested in the trustee forms no part of a subsequently declared homestead, and that the deed of trust or the title of the trustee is not a subsisting lien or encumbrance upon. Probate — 50 786 PROBATE LAW AND PRACTICE. the homestead interest: Webber v. McCleverty, 149 Gal. 316, 318, 320; 86 Pae. Eep. 706, 708, 709. See, also, Athern v. Byan, 36 Gal. Dee. 416, 417 (Nov. 20, 1908). In Colorado, where a claim against the estate of a decedent is secured by a deed of trust, it is error for the court, in entering judgment, to prohibit the claimant from proceeding to sell the property covered by his lien. The statute of non-claims does not apply to a claim secured by a deed of trust; and, after the expi- ration of one year, the only condition precedent of the claimant's right to a foreclosure is the allowance of his claim: Townsend v. Thompson, 24 Gol. 411; 51 Pac. Eep. 433. 16. Appeal. (1) In general. In the trial of an action appealed by an admin- istrator from the decision of the probate court in allowing a claim against an estate, the district court sits as a court of probate. In such a case it is incumbent upon the plaintiff to establish his demand by competent testimony, the same as would be required of him in the probate court:' Phillips v. Paherty, 9 Kan. App. 380; 58 Pac. Bep. 801. On appeal to the district court from an order of the probate court allowing a claim against the estate of a deceased person, where the case is tried on the appeal upon the transcr.i^t from the probate court, without pleadings being filed, a promissory note purporting to have been given by the deceased in his lifetime doeq not prove itself, the execution thereof not having been* denied under oath, under the provisions of the statute: Haffiamier v. Hund, 10 Kan. App. 579; 63 Pac. Kep. 659. To give the probate court jurisdiction to hear and determine a claim, it is necessary that such claim be verified. If it is not verified, the claimant cannot, on appeal, supply the defect: Clancey v. Glancey, 7 N. M. 405; 37 Pae. Kep. 1105. An administra- tor's appeal from the order of a county court, allowing a claim against an estate, should be dismissed, where the order recites that the administrator " was present, took part in the examination of witnesses, but stated that he declined to regularly appear in person or by attorney": In re Garver's Estate, 10 S. D. 609; 74 N. W. Eep. 1056. Objections to a claim against the estate of a decedent, not raised in the court below, cannot be raised for the first time in the supreme court: Colman v. Woodsworth, 28 Gal. 567, 569; Hentsch v. Porter, 10 Cal. 555; Bank of Stockton v. Howland, 42 Gal. 129, 134. A judgment for defendant in an action on a claim against an estate wiU not be reversed on appeal, though based on a ground not stated in the pleadings, where the complaint does not state a cause of action, and it is apparent that it cannot be amended to do so; Brown v. Daly, 33 Mont. 523; 84 Pac. Eep. 883, 884. If objection is made that a claim against an estate was not properly presented, the objection should be ruled upon by the court at some time during the trial, in order that the required proof may be supplied, if necessary, and a failure to make such ruling is reversible error: Thurber v. CLAIMS AGAINST ESTATES. 787 Miller, 14 S. D. 352; 85 N. W. Eep. 600, 601. An objection to the recovery on a claim against the estate of a deceased person on the ground that it was not presented to the executor for allowance cannot be made for the first time in the supreme court, nor on motion for a new trial: Clayton v. Dinwoodey (Utah), 93 Pac. Kep. 723, 727. While proof of the presentation of a claim is not a fact essential to the validity of a judgment, where any issue has been made upon that question, failure to make proof is ground for rever- sal, if an objection is made in the trial court, and an exception is properly preserved: Falkner v. Hendy, 107 Cal. 49; 40 Pac. Bep. 49; Frazier v. Murphy, 133 Cal. 91, 95; 65 Pac. Kep. 91. (2) Bight of appeal. Jurisdiction. "While an appeal does not lie from a decree establishing due notice to creditors, as such, it is otherwise if such decree is embraced in a decree settling the final account of the executor and making final distribution of the estate, and the appellant, in terms, appeals from such decree: Estate of Wilson, 147 Cal. 108; 81 Pac. Bep. 313, 314. An erroneous judgment against the estate of a decedent may be modified upon appeal: Pres- ton v. Knapp, 85 Cal. 559; 24 Pac. Bep. 811; Moore v. Eussell, 133 Cal. 297, 301; 85 Am. St. Bep. 166; 65 Pac. Bep. 624; and the judg- ment, as modified according to directions, is a final adjudication of the rights of the parties to the action, and the lower court is without jurisdiction to make any further judgment or order: Vance v. Smith, 132 Cal. 510, 511; 64 Pac. Bep. 1078. Where a judgment against executors established a claim against the estate of a decedent, the subsequent affirmance of that judgment in the appellate court would not create a new or dififerent judgment, nor impose upon the plaintiff therein the necessity of " filing among the papers of the estate in court " a certified copy of the transcript of the docket of judgment on the remittitur from the appellate court: Estate of Kennedy, 93 Cal. 16, 28 Pac. Bep. 839. A judgment, against the estate of a decedent will not be reversed for a mere informality in the presenta- tion of the claim: Smith v. Furnish, 70 Cal. 424, 427; 12 Pac. Bep. 392. An administrator of the estate of a deceased person, who seeks to appeal from an allowance of a demand against the estate, must give notice of such appeal, either during the term at which the decision is made or within ten days after the date of the allowance: Mcintosh V. Wheeler, 58 Kan. 324; 49 Pac. Bep. 77. An order dis- allowing a claim against the estate of a decedent is not appealable. The remedy of the claimant is exclusively by suit: In re Barker's Estate, 26 Mont. 279; 67 Pac. Bep. 941; Wilkins v. Wilkins, 1 Wash. 87- 23 Pac. Bep. 411. If the claim of an executor or administrator against the estate is disallowed, his only remedy is to resign his trust and sue like any other creditor: Wilkins v. Wilkins, 1 Wash. 87" 23 Pac. Eep. 411, 412; and a person, in his representative capacity as executor or administrator, cannot appeal from an order disallow- 788 PROBATE LAW AND PEACTICE. ing his individual claim against tlie estate: In re Barker's Estate, 26 Mont. 279; 67 Pae. Eep. 941, 943. Where trustees are not named in the will, and claim no rights under it, and have presented no claim against the estate, they are not " aggrieved " persons, and have no right of appeal from a decree distributing the funds of the estate to the heirs: Estate of Burdick, 112 Cal. 387, 396; 44 Pae. Eep. 734. Where the statute prohibits the county court from allowing the claim of an executor or administrator, unless it has been presented to the county judge for allowance before it is barred by the statute of limi- tations, and a claim is not so presented, the court exceeds its juris- diction in allowing the executor or administrator credit for the claim on final settlement, and its order allowing the claim is reviewable on a writ of review: Farrow v. Nevin, 44 Or. 496; 75 Pae. Eep. 711, 713; but matters which were properly within the jurisdiction of the county court will not be disturbed on such writ, although the determination of the county court was erroneous: Farrow v. Nevin, 44 Or. 496; 75 Pae. Eep. 711, 713. In New Mexico, the general administration of an estate in the probate court is in the nature of a proceeding in equity, and an appeal from the decision of such court allowing or dis- allowing a claim is an appeal to the district court sitting as a court of equity, and the action of the latter may be reviewed in the supreme court on appeal: Clancey v. Clancey, 7 N. M. 405; 37 Pae. Eep. 1105, 1106. In Nevada, a person whose claim against the estate of a decedent has been rejected may institute a suit thereon in which there are adverse parties, and, under the statutory rules, reserve all questions affecting his rights for review in the appellate court. Hence, where he has made application to the court for leave to amend a defective afS.davit to a claim, which application is refused, an appeal from the order refusing permission to amend will be dismissed: In re Powning's Estate, 25 Nev. 428; 62 Pae. Eep. 235, 236. PAET VIIT. SALES AND CONVEYANCES OF PROPERTY OF DECEDENTS. CHAPTER I. SALES IN GENBEAL. § 482. Estate is chargeable with" debts. No priority. § 483. No sales valid, unless made under order of court. § 484. Petitions for orders of sale. § 485. But one petition, order, and sale must be had when. I 486. Form. Petition for order of sale of all the property of the estate at one sale. § 487. Porm. Order of sale of all property of estate at one sale. § 488. Form. Objections to sale of decedent's property. § 482. Estate is chargeable with debts. No priority. All the property of a decedent shall be chargeable with the pay- ment of the debts of the deceased, the expenses of administra- tion, 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 shaU be no priority as between personal and real property for the above purposes. Kerr's Cyc. Code Civ. Proc, § 1516. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1763. Idaho. Code Civ. Proc. 1901, sec. 4156. Montana.* Code Civ. Proc, sec. 2640. North Dakota. Eev. Codes 1905, § 8093. Oklahoma. 'Kev. Stats. 1903, sec. 1641. South Dakota. Probate Code 1904, § 192. Wyoming.* Eev. Stats. 1899, sec. 4768. (789) 790 PKOBATE LAW AND PRACTICE. § 483. No sales valid, unless made under order of court. No sale of any property of an estate of a decedent is valid unless made under order of "the superior court, except as otherwise provided in this chapter. AH sales must be under oath reported to and confirmed by the court before the title to the property sold passes. Kerr's Cyc. Code Civ, Proc, § 1517. AKAIiOaOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 830, p. 316. Arizona.* Eev. Stats. 1901, par. 1764. Idaho.* Code. Civ. Proe. 1901, sec. 4158. Montana.* Code Civ. Proc, see. 2642. Nevada. Comp. Laws, sec. 2909. North Dakota. Eev. Codes 1905, § 8127. Oklahoma. Eev. Stats. 1903, see. 1642. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1168. South Dakota. Probate Code 1904, § 193. Utah.* Eev. Stats. 1898, sec. 3878. Washington. Pierce's Code, § 2557. Wyoming.* Eev. Stats. 1899, see. 4769. § 484. 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 objections, which must be heard and determined. A failure to set forth the facts showing the sale to be necessary will not invalidate 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. Kerr's Cyc. Code Civ. Proc, § 1518. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 830, p. 316. Arizona.* Eev. Stats. 1901, par. 1765. Colorado. 3 Mills's Ann. Stats., sec. 4756. Idaho.* Code Civ. Proc. 1901, sec. 4159. Montana.* Code Civ. Proc, sec. 2643. Nevada. Comp. Laws, sec. 2910. North Dakota. Eev. Codes 1905, § 8127. Oklahoma.* Eev. Stats. 1903, sec 1643. SALES IN GENERAL. 791 Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1168. South Dakota.* Probate Code 1904, § 194. Washington. Pierce's Code,.§ 2559. Wyoming.* Eev. Stats. 1899, sec. 4770. § 485. But one petition, order, and ^ale must be had when. "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 administration, and debts, there need be but one petition filed, but one 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 purposes herein named is presented, must inquire f uUy into the probable amount required to make all such pay- ments, and if there be no more estate than sufflcient 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 seotion fifteen hundred and thirty-seven. Kerr's Cyc. Code Civ. Proc, § 1519. ANAliOGOUS AND IDENTICAL STATUTES. The * indicates identity. , Arizona. Eev. Stats. 1901, par. 1766. Idaho.* Code Civ. Proc. 1901, sec. 4160. Montana. Code Civ. Proc, sec. 2644. North Dakota. Eev. Codes 1905, § 8128. Oklahoma. Eev. Stats. 1903, sec. 1644. South Dakota. Probate Code 1904, § 195. Utah. Eev. Stats. 1898, sec. 3879. Wyoming. Eev. Stats. 1899, sec. 4771. § 486. Form. Petition for order of sale of all the prop- erty of the estate at one sale. [Title of court.] [Title of estate.] P° ' Dept. No I [Title of form.] To the Honorable the " Court of the County ' of , State of The petition of , administrator* of the estate of , deceased, respectfully shows: 792 PEOBATE LAW AND PRACTICE. That said died intestate,^ on or about the day of , 19 — , in the county * of , state of , being at the time of his death, a resident of the said county' of ; and that he left estate, consisting of both real and personal property, in said state; That your petitioner is the duly appointed, qualified, and acting administrator ' of the estate of , deceased ; and That your petitioner has made and returned to this court a true inventory and appraisement of all the estate of the said deceased which has come to his knowledge, and also published notices to the creditors of said decedent as required by law. All of which will more fully appear by the papers on file in the clerk's ofSce and the records of said court, in the matter of said estate, to which reference is hereby made. That the following described personal property has come into the hands of your petitioner: ■ — ; ' valued at dollars ($ ) ; That ^° of said personal property has been disposed of, as follows, to wit: ; ^^ That ^^ remains to be disposed of ; That the debts outstanding against the said deceased, as far as can be ascertained or estimated, amount, at this date, to the sum of dollars ($ ), and are fully set forth in Exhibit A, hereunto annexed and made a part of this peti- tion; That the amount due upon the family allowance is the sum of dollars ($ ) ; That the amount that will be due upon said family allow- ance, after the same shall have been in force for one year, is the sum of dollars ($ ) ; That the debts, expenses, taxes, and charges of adminis- tration already accrued amount to the sum of dollars ($ ), and are fully set forth in Exhibit B, hereimto annexed ?nd made a part of this petition; 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 dollars ($ ), SALES IN GENEEAL. 793 and are set forth in Exhibit C, hereunto annexed and made a part of this petition; That the total amount of debts outstanding against the deceased, of the amount due and to become due upon the family allowance, of the debts, expenses, and charges of administration already accrued and remaining unpaid, state and county taxes, and of the estimated debts, expenses, and charges of administration that will or may accrue is dollars ($ ) ; That a fuU description of all the real estate of which the said decedent died seised, or in which he had any interest, or in which the said estate has acquired any interest, and the condition and the value of the ^' said real estate are set forth in Exhibit D, hereunto annexed and made a part of this petition; That all of said real estate was acquired by said deceased after marriage,^* and is therefore community ^^ property ; That the following are the names and ages of the heirs of the said deceased, to wit, and ; That it is necessary " to sell all of the property of the estate, of every character, to pay the family allowance, ex- penses of administration, and the debts of the estate. Wherefore petitioner prays for an order directing that all of the property of said estate, of every character, be sold at public sale, and that only one sale be had. Dated , 19 — , Administrator " and Petitioner. [Add usual verification.] ^* Exhibit A. The following is an itemized statement of all claims pre- sented against the estate, whether allowed and approved, and an estimate of debts outstanding : Name of Claimant. Nature of Claim. Amount. Total 794 PEOBATE LAW AND PRACTICE. Exhibit B. The following is a statement of debts, expenses, taxes, and charges of administration, already accrued: Paid clerk's fees, as per voucher No. 1 $ Paid appraisers, as per voucher No. 2 Paid printer, as per voucher No. 3 Paid probate tax, as per voucher No. 4 Paid taxes for the year 19 — , as per voucher No. 5 . . Total $ Exhibit C. The foUowiug is an estimate of the debts, expenses, and charges of administration that will or may accrue : Attorneys' fees for administrator $ Collateral inheritance tax Commissions upon appraised value of estate Other expenses Total $ Exhibit D. The foUowiag is a description of each parcel of real estate, with a statement of its condition, whether improved or imimproved, amount of rents received, etc., and its value : Total value,^* $ . Explanatory notes. 1. Give file number. 2. Title of court, or name of judge. 3. Or, City and County. 4. Or, executor of the last will and testament of, etc. 5. Or according to the fact. 6, 7. Or, city and county. 8. Or, executor, etc., as the case may be. 9. Give descrip- tion and value. 10. A portion, or all. 11. State how. 12. As, part thereof, stating it, with value; or, that none of said property. 13. Eespective portions and lots of. 14. Or according to the fact. 15. Or, separate property, as the case may be. 16. To show this necessity, the footings of the exhibits must show that the debts, etc., are equal to or greater than the assets. 17. Or, executor. 18. Although section 1519 of California Code of Civil Procedure does not require a verified petition, yet where real estate is to be sold, the petition should be verified as required by section 1537 of the same code. 19. The value of each parcel should be stated separately and the total given at foot of exhibit. SALES IN GENERAL. 795 § 487. Form. Order of sale of all property of estate at one sale. [Title of court.] [Title of estate.] P° ' ^«P*- ^° ' \ [Title of form.] , the administrator " of the estate of , deceased, having presented his petition for the sale of all of the prop- erty of said estate, of every character, both real and per- sonal; and it appearing to the court that due notice of the hearing of said petition has been given as required by law, the court thereupon finds that it will require a sale of all the property of the estate, of every character, to pay the family allowance, expenses of administration, and debts. It is therefore ordered by the court. That said , administrator ^ as aforesaid, after due notice given, proceed to sell the whole of the personal property* of said estate, and the whole of the real property thereof,^ at public auction, to the highest bidder, upon the following terms, to wit, for cash, in gold coin of the United States of America ; and that but one sale be had for the entire estate. The personal property to be sold as aforesaid is described as follows : The following is a description of the real estate to be sold under said order : Dated , 19 — , Judge of the Court. Explanatoiy notes. 1. Give file number. 2, 3. Or, executor of the last wUl, etc. 4. An order for the sale of perishable property may be made without notice. 5. Eeal property should not be sold without complying with sections 1537-1544 of the Code of Civil Pro- cedure. § 488. Form. Objections to sale of decedent's property. [Title of court.] \ No 1 Dept. No. [Title of estate.] j ^^.^^ ^^ ^^^^^ A petition for an order of sale of the property of , deceased, having been filed by , administrator ^ of the' estate of said decedent, , one of the heirs at law * of said deceased, now comes and files his written objections to said petition, and alleges as follows : 796 PROBATE LAW AND PEACTICB. That it is not true, as alleged in said petition, that it is for the best interests of said estate that the propery described in such application be sold, because ; * That the rents and interest, money due the estate, and money on hand, are more than sufficient to pay all debts of the estate and the expenses of administration. The contestant therefore asks that said petition be denied. , Attorney for Contestant. , Contestant. Explanatory notes. 1. G-ive file number. 2. Or, executor, etc. 3. Besiduarj legatee, creditor, or other person interested in said estate. 4. State the reasons. SALES OP PERSONAL PKOPEBTT. 797 CHAPTER II. SALES OF PEESONAL PEOPEETY. I 489. Perishable and depreciating property to be sold. § 490. Form. Petition for order to sell perishable and other personal property likely to depreciate in value. § 491. Form. Order to sell perishable property. § 492. Form. Return of sale of perishable property. § 493. Form. Exhibit A. Affidavit of posting notice of adminis- trator's sale of perishable property. § 494. Form. Order confirming sale of perishable property. § 495. Order to sell personal property. § 496. Partnership interests and ehoses in action, how sold. § 497. What property to be sold first. § 498. Sale of personal property. How to be made. § 499. Sale of personal property, for interest of estate, on hearing of application for sale of real property. § 500. Form. Petition for order of sale of personal property. § 501. Form. Order to show cause on petition for the sale of personal property. § 502. Form. Notice of hearing of petition for sale of personal property at private sale. § 503. Form. Objections to sale of personal property. § 504. Form. Notice of administrator's sale of personal property. § 505. Form. Order for sale of personal property. § 506. Form. Eeturn of sale of personal property, and petition for confirmation and approval. § 507. Form. Exhibit A. Affidavit of posting notices of adminis- trator's sale of personal property. § 508. Form. Exhibit B. Affidavit of publication of notice of ad- ministrator's sale of personal property. § 509. Form. Order approving sales of personal property. § 510. Form. Short form of order confirming sale of personal prop- erty. § 489. Perishable and depreciating property to be sold. At any time after receiving letters, the executor, adminis- trator, or special administrator may apply to the court or judge and obtain an order to sell perishable and other per- sonal property likely to depreciate in value, or which will incur loss or expense by being kept, and so much other per- 798 PEOBATE LAW AND PEACTICE. sonal property as may be necessary to pay the allowance made to the family of the decedent. The order for the sale may be made without notice; but the executor, administra- tor, or special administrator is responsible for the property, unless, after making a sworn return, and on a proper show- ing, the court shall approve the sale. Kerr's Cyc. Code Civ. Proc, § 1522. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity, Arizona.* Eev. Stats. 1901, par. 1767. . Idaho.* Code Civ. Proc. 1901, sec. 4161. Montana.* Code Civ. Proc, sec. 2650. Nevada. Comp. Laws, sec. 2911. North Dakota.* Eev. Codes 1905, § 8129. Oklahoma.* Eev. Stats. 1903, sec. 1647. South Dakota.* Probate Code 1904, § 196. Utah. Eev. Stats. 1898, sec. 3885. Washington. Pierce's Code, § 2560. Wyoming.* Eev. Stats. 1899, sec. 4772. § 490. Form. Petition for order to sell perishable and other personal property likely to depreciate in value. [Title of court.] [Title of estate.] I^"' -^' ^fPj- ^°- ' "■ ■" \ [Title of form.] To the Honorable the * Court of the County * of , State of Tour petitioner respectfully represents, That he is the duly appointed, qualified, and acting administrator* of the estate of , deceased ; That there is belonging to said estate, at ," in the county * of , one thousand sacks of potatoes and one hundred barrels of apples ; ' that said property is of a per- ishable nature ; * and that it is necessary, and for the best interest of said estate, that such property be immediately sold; That there is belonging to said estate, at ,• in the said county ^° of , two thousand sacks of onions and five hundred head of sheep,^^ all of which property will be liable to depreciate in value if not sold without delay ; ^' and that SALES OF PEESONAIi PEOPEETY. 799 it is for the best interest of said estate that such property be sold. Wherefore your petitioner prays for an order, made with- out notice being given, authorizing him to sell all of said property hereinbefore described, and that such other or fur- ther order may be made as is meet in the premises. , Attorney for Petitioner. , Petitioner. Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, City and County. 4. Or, special administrator; or, that on the day of , 19 , letters testamentary of the last will and testament of said deceased were issued to your petitioner, and that he is now the duly qualified and acting executor of said will. 5. Give name of place. 6. Or, city and county. 7. Or, other property of a perish- able nature. 8. State cause, briefly, of immediate danger of diminu- tion in value. 9. Give location. 10. Or, city and county. 11. Or other personal property likely to depreciate in value. 12. If keeping and care is expensive, state that fact, or any other fact likely to cause the property to depreciate in value. § 491. Form. Order to sell perishable property. [Title of court.] [Title of estate.] I^°- ^T' ^?^- ^°; "■ ^ \ [Title of form.] Now comes , the administrator^ of said estate, and presents his application for an order to sell personal prop- erty of the estate; and it appearing therefrom, and from proofs taken, that the following described personal property belonging to said estate is by nature perishable; that it is likely soon to depreciate in value; and that the estate will incur loss and expense by said property being kept, — It is ordered by the court. That the said administrator * proceed to sell at public auction,* upon ^ days' notice, in the manner required by law, all of the following described personal property, to wit : ° Dated , 19 , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor of the last will and testament of , deceased. 3. Or, executor. 4. Or, at private sale, without notice, all the following described personal property, to wit (giving description). 5. As prescribed by the court or judge. 6. Give description. 800 PEOBATE LAW AND PRACTICE. § 492. Form. Eetuni of sale of perishable property. [Title of court.] rm-ti £ 3- 1 (No. 1 Dept. No. — [Title of proceeding.] } ^^.^, „*\, ^ "• , ' * •* ( [Title of form.] To the Honorable the Court of the Comity " of The undersigned, , administrator * of the estate of -, deceased, respectfully makes the following return of his proceedings under the order of this court dated the . day of ,19 — , authorizing said administrator* to sell certain personal property of said estate, and reports as follows : That, in pursuance of said order of sale, he gave public notice of the time and place of sale, for at least ten days, by posting ° notices thereof, as shown by affidavit Exhibit A, hereto annexed and made part hereof; That, at the time and place specified in said notice, to wit, ,' he caused to be sold at public auction ' the property in said order and hereinafter described, to the persons and for the sums hereinafter shown, to wit : ; * , Administrator " of the Estate of , Deceased. Subscribed and sworn to before me this day of , 19 — , Notary Public, etc. Explanatoiy notes. 1. Give file numbeT. 2. Or, City and County. 3. Or, executor of the last will. 4. Or, executor. 5. Or, publishing. 6. Give time and place of sale. 7. Or, sold at private sale. 8. Give names and sums. 9. Or, executor. § 493. Form. Exhibit A. AfSdavit of posting notice of administrator's sale of perishable property. [Title of court.] [Title of proceeding.] P° ' I>«Pt- ^'> • ( [Title of form.] State of ' ss. County* of .}■ , being duly sworn, says. That on the day of , 19 — , he posted full, true, and correct copies of the annexed notice of the time and place of the sale therein mentioned, in three of the most public places in said county,' to wit, one copy at ,* one at ,° and one at ° SALES OF PERSONAL PROPEETT. 801 Subscribed and sworn to before me this day of 19 — Explanatory notes. 1. Give file number. 2, 3. Or, City and County. 4-6. State place at whicli each was posted. § 494. Form. Order confirming sal^ of perishable prop- ^^^' [Title of court.] [Title of estate.] J^" ' ^^P*- ^° 1 [Title of form.] Comes now , the administrator '' of said estate, and presents his sworn report of the sale of perishable property Tinder the order hereinbefore made, showing that in pursu-" ance of said order, and after giving notice as prescribed by law and by the order of the court, he sold said property for the aggregate sum of dollars ($ ) , and he asks that said sales be confirmed. And the court, after hearing the evidence, approves said sales. It is therefore ordered by the court that said sales be con- firmed. , Judge of the Court. Dated , 19 — Explanatory notes. 1. Give file number. 2. Or, executor of the last will and testament of , deceased. § 495. Order to sell personal property. K claims against the estate have been allowed, and a sale of property is neces- sary for their payment, or for the expenses of administra- tion, or for the payment of legacies, the executor or admin- istrator may apply for an order to seU so much of the per- sonal 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 advertising. 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 giving like notice, apply for and obtain an order to sell the whole of the personal property belonging to the estate, whether neces- Probate — 61 802 PROBATE LAW AND PRACTICE. sary to pay debts or not. Kerr's Cyc. Code Civ. Proc, § 1523. ANAIiOGOUS AND rDENTICjUli STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 831, p. 317. Arizona.* Eev. Stats. 1901, par. 1768. Idaho. Code Civ..Proe. 1901, see. 4162. Montana.* Code Civ. Proe., see. 2651. Nevada. Comp. Laws, sec. 2911. North Dakota. Eev. Codes 1905, § 8130. Oklahoma. Eev. Stats. 1903, sec. 1648. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1169. South Dakota.* Probate Code 1904, § 197. Utah. Eev. Stats. 1898, sees. 3877, 3880, 3885. Washington. Pierce's Code, § 2561. Wyoming. Eev. Stats. 1899, sec. 4773. § 496. Partnership interests and choses in action, how sold. Partnership interests or interests belonging to any estate by virtue of any partnership formerly existing, inter- est in personal property pledged, and choses in action, may be sold in the same manner as other personal property, 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 partnership affairs, and must examine the surviving part- ner, if in the county and able to be present in court. Kerr's Cyc. Code Civ. Proc, § 1524. ANALOGOUS AND IDENTICAI. STATUTES. The * indicates identity. Arizona.* Kev. Stats. 1901, par. 1769. Idaho.* Code Civ. Proc. 1901, sec. 4163. Montana.* Code Civ. Proc, sec. 2652. North Dakota.* Eev. Codes 1905, § 8131. Oklahoma.* Eev. Stats. 1903, sec. 1649. South Dakota.* Probate Code 1904, § 198. Utai. Eev. Stats. 1898, see. 3885. Wyoming.* Eev. Stats. 1899, see. 4774. § 497. 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 SALES OF PERSONAL PROPERTY. 803 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 m^st 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. Kerr's Cyc. Code Civ. Proc, § 1525. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sees. 831, 833, p. 317. Arizona.* Eev. Stats. 1901, par. 1770. Idaho. Code Civ. Proc. 1901, see. 4164. Montana.* Code Civ. Proc., sec. 2653. Nevada. Coipp. Laws, sec. 2911. North Dakota.* Eev. Codes 1905, § 8132. Oklahoma.* Eev. Stats. 1903, sec. 1650. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1169, 1171. South Dakota.* Probate Code 1904, § 199. Utah. Eev. Stats. 1898, sees. 3877, 3885. Washington. Pierce's Code, § 2562. § 498. Sale of personal property. How to be made. 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 publica- tion in a newspaper, or both, containing the time and place of sale, and a brief description of the property to be sold, unless for good reason 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 decedent, 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. Kerr's Cyc. Code Civ. Proc, § 1526. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sees. 832, 833, p. 317. Arizona.* Eev. Stats. 1901, par. 1771. Idaho. Code Civ. Proc. 1901, sec. 4165. 804 PKOBATE LAW AND PEACTICE. Kansas. Gen. Stats. 1905, § 2945. Montana. Code Civ. Proc, sec. 2654. Nevada. Comp. Laws, sees. 2912, 2913. North Dakota. Bev. Codes 1905, § 8133. ' Oklahoma. Eev. Stats. 1903, sec. 1651. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1170, 1171. South Dakota. Probate Code 1904, § 200. Utah. Eev. Stats. 1898, sec. 3886. Washington. Pierce's Code, §§ 2563, 2564. Wyoming. Eev. Stats. 1899, sec. 4775. § 499. Sale of personal property, for interest of estate, on hearing of application for sale of real property. Whenever it appears to the court on any hearing of an application for a 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 first be sold, the court may decree the sale of said personal property, or any part of it, and the sale thereof shall be conducted in the same manner as if the application had been made for the sale of such personal property in the first instance. Kerr's Cyc. Code Civ. Proc, § 1527. ANAIiOGOUS AND XDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1873. Idaho.* Code Civ. Proc. 1901, sec. 4157. Montana.* Code Civ. Proc, see. 2797. North Dakota.* Eev. Codes 1905, § 8201. Oklahoma.* Eev. Stats. 1903, sec. 1737. South Dakota.* Probate Code 1904, § 289. Utah.* Eev. Stats. 1898, see. 3887. Wyoming.* Eev. Stats. 1899, sec. 4825. § 500. Form. Petition for order of sale of persons^! prop- ^'^y- [Title of court.] [Title of estate.] (No. .i- Dept. No. . "• ■■ \ [Title of form.] To the Honorable , Judge of the Court of the County of ,^ State of The petition of respectfully shows : That he is the duly appointed; qualified, and acting admin- istrator of the estate ' of , deceased ; SALES OF PERSONAL PEOPEETY. 805 That claims against said estate have been allowed,* amounting to dollars ($ ), and a sale of personal property of said estate is necessary to provide for the pay- ment thereof; That the following described personal property, belonging to said estate, can be sold for that purpose, to the best advan- tage for the estate, to wit, ° Wherefore petitioner prays that, after due notice given of the hearing hereof, an order be made authorizing and direct- ing your petitioner to sell the above-described property, and for such other or further order as may be meet. Dated , 19 , Petitioner. Explanatory notes. 1. Give file number. 2. Or, City and County. 3. Or, executor of the last will. 4. Or, expenses of administration have been incurred and are unpaid; or, legacies are provided for in said will, etc. 5. Grive description. § 501. Form. Order to show cause on petition for the sale of personal property. [Title of court.] [Title of estate.] 1^° ' ^^P*- ^° ■^ X [Title of form.] The petition of , administrator '" of the estate of . -, deceased, praying for an order to sell so much of the personal property of said estate as may be necessary for the payment of claims against said estate, and for the payment of expenses of administration, and the allowance to the family of said deceased, having been presented to this court, and it appearing that such sale is necessary for said pur- poses, — It is ordered. That all persons interested in said estate appear before the judge of the court, at the court-room thereof, at ,^ in said county * and state, on the day of , 19 , at the hour of o'clock in the forenoon * of said day, and then and there show cause, if any they have, why such order should not be made. And it is further ordered. That a copy of this order be published in the , a newspaper printed in said county ° 806 PROBATE LAW AND PRACTICE. and state, for at least five days ' previous to the time set for the hearing of said order.* Dated , 19 — . , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor of the last will, etc. 3. State location of court-room. 4. Or, city and county. 5. Or, afternoon. 6. Or, city and county. 7. Or other time pre- scribed by statute. 8. Or, that notice be given in such other manner as the court may direct. § 502. Form. Notice of hearing of petition for sale of personal property at private sale. [Title of court.] [Title of estate.] S^" ' Dept. No. [Title of form.] Notice is hereby given. That , the executor ^ of the last will and testament of , deceased, has filed with the clerk of this court a petition praying that said court grant its order directing the sale, at private sale,^ of certain per- sonal property belonging to the estate of said decedent, and described in said petition ; and that ,* the day of , 19 — , at o'clock in the forenoon,^ at the court- room of said court, at ,° in said county ' of , state of , has been set for hearing said petition, when and where any and all persons interested may appear and show cause, if any they have, why the said petition should not be granted. , Clerk. Dated , 19 — By , Deputy Clerk. Explanatory notes. 1. Give file number. 2. Or, administrator of the estate, etc. 3. Or, at public auction, according to the fact. 4. Day of week. 5. Or, afternoon. 6. Give location of court-room. 7. Or, city and county. § 503. Form. Objections to sale of personal property. [Title of court.] [Title of estate.] !^° ' I'ept. No (. [Title of form.] Now comes , and alleges that she is the widow of said , deceased, and that said deceased left surviving him SALES OF PERSONAL PEOPERTY. 807 three minor children, to wit, , three years of age ; , five years of age ; and , seven years of age ; That she objects to the granting of the petition of , administrator ^ of the estate of , deceased, filed herein on the day of , 19. — , praying for an order aiithor- izing him to seU the personal property belonging to said estate, for the following reasons : ; That a certain portion of said property, which said admin- istrator seeks to sell, which is hereinafter described, "and which is mentioned in the inventory made and filed in said estate, is exempt from execution ; ^ that the same ought to be set apart by this court for the use of said widow and chil- dren; and that said widow has already filed her petition herein, praying that the same be so set apart; That the property so claimed as exempt, and to the sale of which the undersigned objects, is particularly described as follows, to wit : * Wherefore she objects to an order that the property here- inbefore described, or any part thereof, be sold, for any pur- pose, and asks that it be set apart for the use and benefit of the family. — — , "Widow of said Deceased. , Attorney for Widow. Explanatory notes. 1. Give file number. 2. Or, executor of the last will and testament, etc. 3. Or, state any other reasons why the sale should not be made. 4. Give description. § 504. Form. Notice of administrator's sale of personal property. [Title of court.] t— — J {""--I^itle^fir] — Notice is hereby given. That, pursuant to an order of the above court made and entered on the day of , 19 , in the above-entitled proceeding, the undersigned, administrator ^ of said estate, will sell at public auction,^ to the highest bidder, for cash, on ,* the day of 19 , at o'clock in the forenoon ^ of that day. 808 PROBATE LAW AND PKACTICE. at — : — ,• the following described personal property, to wit: ' Said sale will be made subject to confirmation by the court. Dated , 19 — , Administrator of the Bsiate of , Deceased. Explanatory notes. 1. Give file number. 2. Or, executor of the last will. 3. Or, private sale; and if at private sale, state time to which and place at which bids will be received. 4. Give day of week. 5. Or, 'afternoon. 6. Give place of sale. 7. Give description. § 505. Form. Order for sale of personal property. [Title of court.] [Title of estate.] P"' -7;^-' ^ff ^°; ~ "■ ■■ ( [Title of form.] Comes now , the administrator " of said estate, and presents his petition for the sale of certain personal property of said estate, and it appearing to the court that due notice of the hearing of said petition has been given by posting notices " as required by lav, and that the said sale is for the best interests of said estate,* — It is ordered by the court. That said proceed to sell at public auction, after the notice and in the manner as provided by law, all the following personal property, to wit: " Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor. 3. Or, by advertising. 4. Or, is necessary for the payment of claims, expenses of administration, or legacies. 5. Describe the property. § 506. Form. Return of sale of personal property, and petition for confirmation and approval. [Title of court.] -.1 Dept. No. [Title of estate.] S^°- \ [Title of form.] To the Honorable the * Court of the County » of - State of The undersigned, , administrator* of the estate of , deceased, respectfully returns the following account SALES OF PERSONAL PEOPEETY. 809 of sales made by him under the order of the judge of this court, dated on the day of , 19 — , and reports as follows, to wit: That in pursuance of said order of sale he gave public notice for at least ten days, by posting notices in three public places in said county," in which notices were specified the time and place of sale, as wUl more fully appear by the affidavit marked " Exhibit A," hereimto annexed and made a part hereof, and also by publication in the , a news- paper published in said county," in which published notice were specified the time and place of sale, as will more fully appear by the affidavit marked " Exhibit B," hereunto an- nexed and made a part hereof ; ^ That at the time and place specified in said notice, to wit, ,* he caused to be sold, to the highest bidder for cash, the property described in said notice, and hereinafter mentioned ; That at such sale the persons hereinafter named became the purchasers of the articles, and at the prices set opposite their names, respectively ; that aU * of the said property was present at the time of selling ; that the said sales were fairly conducted and legally made; and that the sums bid were not disproportionate to the value of the property sold. The following are the names of the articles sold, the names of the purchasers, and the highest bid for each article, to wit : Article Sold. Purchaser. Highest Bid, Wherefore the said administrator ^° prays that a hearing be had upon this return, and that said sales be confirmed and approved, and declared valid. ^ Administrator ^^ of the Estate of , Deceased. Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, City and County. 4. Or, executor of the last will and testament of, etc. 5, 6. Or, city and county. 7. Notice, either by posting or pub- lication, is sufficient, unless both are ordered by the court. 8. State time and designate location of auction salesrooms. 9. Or as the fact may be. 10, 11. Or, executor. 810 PROBATE LAW AND PEACTICE. § 507. Form. Exhibit A. Affidavit of posting notices of administrator's sale of personal property. [Title of court.] LTitle of estate.] i^°- ^;;:-' ^^i" ^"i ' *■ ■' I [Title of form.] State of , -i County ^ of , ) , being duly sworn, says: That on the day of , 19 — , he posted true, full, and correct copies of the annexed ^ notice of the time and place of sale mentioned in said notice, in three of the most public places in said county,* to wit, one copy of said notice at ,^ one at ," and one at ' Subscribed and sworn to before me this day of , 19 , Notary Public, etc' Explanatory notes. 1. Give file number. 2. Or, City and County. 3. Or, following; ending the form with the words, " said notice is as follows " (giving a copy thereof). 4. Or, city and county. 5. As, at the auction salesrooms of . 6. As, at the United States post- ofBce. 7. As, at the sheriff's office of said county, or city and county. 8. Or other of&cer taking the oath. §508. Form. Exhibit B. Affidavit of publication of notice of administrator's sale of personal property. [Title of court.] ( No. 1 Dept. No. ( [Title of form.] [Title of estate.] State of , County '' of - -, } ^^- , being duly sworn, says: That he is the principal clerk * of the , a newspaper . published in the said county * of ; that a notice, of which the annexed ° is a true copy, was published in said newspaper for at least ten days next before the sale mentioned therein, and as often during the period of said ten days as said newspaper was regularly issued, to wit, daily, commencing on the day of , 19: — , and ending on the day of , 19 — . SALES OF PERSONAL PKOPERTY. 811 Subscribed and sworn to before me this day of > 19 , Notary Public, etc.* Explanatory notes. 1. Give file number. 2. Or, City and County. 3. Or, printer, or foreman. 4. Or, city and county. 5. Or, following is a true copy, to wit (inserting such copy). 6. Or other o£S.cer taking the oath. § 509, Form. Order approving sales of personal prop- erty. [Title of court.] [Title of estate.] i^° ' ^«Pt- ^° ■ I [Title of form.] , administrator ^ of the estate of , deceased, hav- ing duly returned to this court an account and report, veri- fied by his affidavit; of sales made by him under the order of this court dated on the day of , 19 — , and having also filed a petition praying that said sale be confirmed and approved ; And it appearing from said account and report, to the satisfaction of the judge of said court, that, in pursuance of said order of sale, said administrator ^ gave public notice for at least ten days,* by posting notices,^ in which notices were specified the time and place ot sale ; that at the time and place mentioned in said public notice he sold to the highest bidders, for cash, the property described in said notice, and mentioned in said account of sales; that the said place of sale was a public place ; that all of the said property was present at the time of selling ; that the said sales were legally made and fairly conducted ; that the sums bid were not dis- proportionate to the value of the property sold; and that said account and report are in all respects true; and no exceptions or objections being'made or filed by any person interested in the said estate, or otherwise, to the granting of the said order prayed for, — It is ordered, That the said sales be, and the same are hereby, confirmed and approved, and declared valid. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2, 3. Or, executor. 4. Or, as directed by the court. 5. Or, by publication, etc. 812 PROBATE LAW AND PEACTICE. } 510. Form. Short form of order confirming sale of personal property. [Title of court.] ^ [Title of estate;j J^"- ' Pept. No , . . . . ) [Title, of form.] The administrator ' of said estate now presents his sworn report of sales of personal property under the order herein- before made,' showing that he has made sales thereof amount- ing to dollars ($— ) ; and, after hearing the evi- dence, — It is ordered by the court, That said sales be approved and confirmed. Dated , 19^. , Judge of the Court. Explanatory notes. 1. Grive file number. 2. Or, executor. 3. Or, under the terms of the will. SUMMARY SALES OF MINES. 813 CHAPTEE III. SUMMARY SALES OF MINES AND MINING INTERESTS. f 511. Mines may be sold how. § 512. Petition for sale, who may file, and what to contain. § 513. Order to show cause, how made, and on what notice. § 514. Order of sale, when and how made. § 515. Further proceedings to conform with what provisions. § 516. Form. Petition for sale of mining property. § 517. Form. Order to show cause. Sale of mines. § 518. Form. Order for sale of mining property. § 511. Mines may be sold how. When it appears from the inventory of the estate of any decedent that his estate con- sists in whole or in part of mines, or interests in mines, such mines or interests may he sold under the ordjer of the court having jurisdiction of the estate, as hereinafter provided. Kerr's Oyc. Code Oiv. Proc, § 1529. AtTAIiOGOTTS AND IDENTICAIi STATUTES. The * indicates identity. Arizona.* Rev. Stats. 1901, par. 1772. Idaho. Code Civ. Proc. 1901, sec. 4166. Montana. Code Civ. Proc, sec. 2660. Wyoming.* Rev. Stats. 1899, sec. 4776. § 512. Petition for sale, who may file, and what to con- tain. 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 interests 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 de- scribing the mine, interest, or shares which it is 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. Kerr's Oyc. Code Civ. Proc, § 1530. 814 PROBATE LAW AND PRACTICE. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1773. Idaho. Code Civ. Proc. 1901, sec. 4167. Montana.* Code Civ. Proc, sec. 2661. Wyoming.* Eev. Stats. 1899, sec. 4777. § 513. Order to show cause, how made, and on what 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 interests, 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 aU persons interested in the estate, at least ten days before the time appointed for hearing the petition, or pub- lished 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. Kerr's Cyc. Code Civ. Proc, § 1531. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1774. Idaho. Code Civ. Proe. 1901, sec. 4168. Montana.* Code Civ. Proc, sec. 2662. Wyoming.* Eev. Stats. 1899, sec. 4778. § 514. Order of sale, when and how made. If, upon hear- ing the petition, it appears to the satisfaction of the court that it is to the interest of the estate that such mining prop- erty or interests of the estate should be sold, or that an im- mediate sale is necessary in order to secure the just rights or interests of the mining partners, or tenants in common, such court must make an order authorizing the executor or administrator to sell such mining interests, mines, or shares, as hereinafter provided. Kerr's Cyc. Code Civ. Proc, § 1532. SUMMARY SALES OF MINES. 815 ANAI.OGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1775. Idaho. Code Civ. Proc. 1901, sec. 4169. Montana.* Code Civ. Proc, sec. 2663. Wyoming.* Eev. Stats. 1899, sec. 4779. § 515. Further proceedings to conform with what provis- ions. After the order of sale is made, all further proceed- ings for the sale of such mining property, and for the notice, report, and confirmation thereof, must be in conformity with the provisions of article four of this chapter. Kerr's Cyc. Code Civ. Proc, § 1533. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1776. Idaho. Code Civ. Proc. 1901, sec. 4170. Montana. Code Civ. Proc, sec. 2664. § 516. Form. Petition for sale of mining property. [Title of court.] Now comes your petitioner, , and alleges : That he is ; = That the said died intestate, in the county ^ of , state of , on the , day of , 19 — , and was, at the time of his death, a resident of said county ; * That is the duly appointed, qualified, and acting administrator ° of said estate ; That a true inventory and appraisement of all of the estate of the said deceased was returned by said administrator, and filed herein on the day of , 19 — ; That due and legal notice to the creditors of said decedent has been published as required by law ; * That it appears from said inventory that the whole' of decedent's estate consists of mines ' hereinafter particularly described in Schedule A, annexed hereto, hereby referred to, and made a part of this petition, the same as if incorporated herein ; 816 PEOBATE LAW AND PEACTICE. That the said mine ° is appraised in said inventory at the sum of dollars ($ ), and that said amount is now the value of said mine ; "" That the condition of said mine is as follows, to wit: That it is for the advantage, benefit, and best interests of the said estate, and of those interested therein, that a sum- mary sale of such mine ^^ be made, for the following reasons, namely: ^^ Tour petitioner therefore prays that this court issue an order authorizing the said administrator to sell such mine at public auction,^* after the making and service of an order, to show cause, as prescribed by statute. , Attorney for Petitioner. , Petitioner. [Add ordinary verification.] Exhibit A. [Give a full and particular description of the mine, or mining interests.] • Explanatory notes. 1. Give file number. 2. A partner or mem- ber of the Mining Company, in which said estate owns or holds interests or shares. 3, 4. Or, city and county. 5. Or, executor. 6. State any further facts, so far as administration has progressed. 7. Or, part. 8. Or, mining shares or other interests, as the case may be. 9. Or, mining interest. 10. Or as the case may be. li. State whether the mine is being worked or is lying idle; whether it is a source of profit or loss to the estate; whether the property is improved or unimproved, etc., so as to enable the court intelligently to exercise its judgment in the selection of the property of the estate which can be most advantageously sold. 12. Or, mining shares or interests. 13. Specify reasons; as, that a sale is necessary to secure the just rights or interests of the mining partners, or tenants in common of the property; or, that, by reason of remoteness of the mine from lines of transportation, it Is difficult of access, and cannot be worked without great expense, etc. 14. Or as the case may be. § 617. Form. Order to show cause. Sale of mines. [Title of court.] [Title of estate.] (No. i Dept. No . "• ( [Title of form.] It is ordered by the court, That all persons interested in said estate appear before the ^ court of the county* SUMMARY SALES OP MINES. 817 of , state of , in department thereof, at the court-house* in said county ° and state, on the day of , 19 — , at o'clock in the forenoon* of said day, then and there to show cause, if any they have, why an order should not be granted to , as administrator ' of the estate of , deceased, authorizing him to sell the mine, mining interests, shares, and stocks belonging to said estate, and set forth in the petition of for the sale thereof, filed herein on the day of , 19 — Dated , 19 — , Judge of the Court. Explanatory notes. 1., Give file number. 2. Title of court. 3. Or, city and county. 4. Designate its location. 5. Or, city and county. 6. Or, afternoon. 7. Or, executor. § 518. Form. Order for sale of mining property. [Title of court.] [Title of estate.] P° ' ^«P*- N° \ [Title of form.] It being shown to the court, from the verified petition of , now on file herein, that the estate of , deceased,. consists wholly ^ of mines ; and it appearing to the satisfac- tion of the court that it is to the int^ferest of said estate that such mining propery be sold ; ' and that the order to show cause herein made has been personally served by copy, and as required by law,* — It is hereby ordered, adjudged, and decreed. That ^ the administrator " of said estate, be, and he is hereby, authorized to sell, at public auction,' to the highest bidder, the following described mining property,,to wit: ; ' the said sale to be made for eash, gold coin, of the United States;, ten per cent of the bid to be paid at the time of the sale, and the balance upon confirmation of such sale. , jjij,dge of the Court.. Explanatory notes. 1. Give file number. 2. Or, in part. 3. Or,, that an immediate sale of said property is necessary to secure the just rights, or interests of the mining partners, or tenants in com- mon of said property. 4. Or, published, etc. 5. Or, executor. 6. Or, private sale; or, either at public or private sale, as said administrator shall deem most beneficial. 7. Describe it. Probate — 62 818 PROBATE LAW AND PRACTICE. CHAPTER IV. SALES OF REAL ESTATE, INTERESTS THEREIN, AND CONEIRMATION THEREOF. § 519. Executor or administrator may sell property when. § 520. Verified petition for sale must contain what. § 521. Form. Petition for order of sale of real estate for best inter- ests of estate, including application for the sale of personal property. § 522. Order to persons interested to appear. § 523. Form. Order to show cause why order of sale of both real estate and personal property should not be made. § 524. Form. Order to show cause why order of sale of real estate should not be made. § 525. Service of order to show cause. Assent. Publication. § 526. Hearing after proof of service. Presentation of claims. § 527. Form. Objections to order of sale of .real estate. § 528. Administrator, executor, and witnesses may be examined. § 529. To sell real estate or any part when. § 530. Order of sale, when to be made. § 531. Order of sale must contain what. Public auction or private sale. § 532. Form. Petition for order of sale of real estate where per- sonal property is insufScient. § 533. Form. Verification of petition. § 534. Form. Order for sale of real estate. § 535. Form. Order for sale of real estate, in one parcel, or in sub- divisions, and at either private or public sale. § 536. Interested persons may apply for order of sale. Form of peti- tion. § 537. Notice of sale of land. § 538. Time and place. § 539. Form. Notice of administrator's or executor's sale of real estate at public auction. § 540. Private sale of real estate, how made, and notice. Bids, when and how received. § 541. Form. Order for sale of real estate. Private sale. Short notice. § 542. Form. Notice of administrator's or executor's sale of real estate at private sale. § 543. Ninety per cent of appraised value must be offered. § 544. Purchase-money of sale on credit, how secured. § 545. Return of proceedings. Notice of hearing. Setting aside sale. Resale. SALES OF REAL ESTATE AND CONFIRMATION. 819 § 546. Form. Return and account of sale of real estate, and petition for order confirming sale. § 547. Form. Verification of return, and account of sale. § 548. Form. Exhibit A to return of sale. Afadavit of posting notices of sale of real estate. § 549. Form. Exhibit B to return of sale. Affidavit of publication of notice of time and place of sale of real estate. § 550. Form. Fixing time for hearing on return of sale. § 551. Form. Order appointing day of hearing return of sale of real estate. § 552. Form. Notice of hearing return of sale of real estate. § 553. Form. Offer of ten per cent advance on sale of real estate. § 554. Form. Order vacating sale of real estate. § 555. Objections to confirmation of sale. Hearing. § 556. Order of confirmation to be made when. § 557. Form. Objections to confirmation of sale of real estate. § 558. Form. Order confirming sale of real estate. § 559. Form. Order confirming sale of real estate on bid in open court. § 560. Form. Notice of motion to vacate sale of real estate, and for a resale thereof. § 561. Form. Order for resale of real estate. § 562. Conveyances. § 563. Form. Administrator's deed. § 564. Form. Acknowledgment of administrator's deed. § 565. Form. Administrator's deed to one offering ten per cent advance. § 566. Form. Executor's deed. § 567. Order of confirmation, what to state. § 568. Sale may be postponed. § 569. Notice of postponement. § 570. Payment of debts, etc., according to provisions of will. § 571. Sales without order, under provisions of will. § 572. Form. Order confirming sale of real estate under will. § 573. Where provision by will insufficient. § 574. Liability of estate for debts. § 575. Contribution among legatees. § 576. Contract for purchase of land may be sold how. I 577. Form. Order confirming sale of contract to purchase land. § 578. Same. Conditions of sale. § 579. Same. Purchaser to give bond. § 580. Form. Bond on sale of contract for purchase of land. § 581. Same. Executor to assign contract. § 582. Sales of land under mortgage or lien. § 583. Same. Holder of mortgage or lien may purchase land. Re- ceipt as payment. § 584. Misconduct in sale. Liability. § 585. Fraudulent sales. 820 PROBATE LAW AND PRACTICE. § 586. Limitation of actions: for vacating sale, etc. § 587. To what cases preceding section not to apply. § 588. Account of sale to be returned. § 589. Form. Order to show cause why letters should not be revoked for failure to return account of sales. § 590. Form. Order to show cause why attachment should not issue for failure to return account of sales. § 591. Form. Ord^r for attachment for neglecting to return account , of sales. § 592. Executor, etc., not to be purchaser. PROBATE SALES. I. Nature of Jurisdiction, Law Governing. Nature of proceedings. (1) In general. (2) Proceedings are statutory. (3) Policy of law as to titles. S. Jurisdiction. (1) When acquired. (2) Nature and extent. (3) Basis of jurisdiction. (4) Not dependent on truth petition. Law governing probate sales. (1) In general. (2) Statute of frauds. (3) Statute of limitations. of II. Sales of Real and Personal Property in Oeneral. 1. Property capable of sale in general. (1) Rule at common law. (2) Rule under codes and stat- utes. (3) Rule where personalty is in- suf&cient. 2. Particular interests in property. (1) Sales of mines and mining interests. (2) Sale of property subject to lease. (3) Sale of partnership interests. (4) Sale of community interests. (5) Homestead under United States land laws. (6) Sale of contracts for pur- chase 'of realty. (7) Property under mortgage or other lien. (8) Same. Application of pur- chase-money. (9) Choses in action. 3. When sale is not authorized. 4. Petition for order. (1) In general. (2) Defects. Mistakes. Omissions. (3) May be made when. Laches in filing. (4) Parties to the proceeding. (5) Necessity for sale. (6) Condition of property. (7) Description of property. (8) Reference to other paperi. (9) Verifying the petition. (10) Amending the petition. (11) Defects cured by the order of sale. (12) Defects not cured by the or- der. (13) Creditor's petition. s. Opposing the application. (1) In general. (2) Demurrer to the petition. 6. Sale for payment of debts. (1) In general. (2) Contesting debts on i the hearing. (3) "Demand." VThen not » debt or claim. (4) Expenses of administration 7. Sale to pay funeral expenses. 8. Specific devises to contribute payment of debts. to 9. Sale to pay legacies. 10. Sale for best interests of the tate. es- 11. Order to show cause. Notice hearing. (1) In general. (2) Service of notice. of 12. Hearing. (1) Demand for jury trial of is- (2) Questions not considered. (S) Findings. SALES OF REAL ESTATE AND CONFIRMATION, 821 13 . Notice after appeal. 84 . Voidable sales. 14, . Order of sale. 85, , Void sales. (1) In general. 36 . Vacating sales. (2) Validity of. 37, . Rights of heirs. 15. . Notice of sale. (1) In general. (1) In general. (2) Heirs under guardianship. (2) Publication. (3) Actions by heirs in general 16. Ordering resale. to set aside sales. 17. Nunc pro tunc order of sale. (4) Actions by minor heirs to 18. Public sale. set aside sales. 19. Private sale. 38. Sales under power in the will. 20. Return of salea. (1) In general. 21. Irregularities in sales. Mutual (2) No implied power when. mistake. (3) Discretion of executor. 22. Fraudulent sales. U) For best interests of estate. 23. Executor purchasing at his own (5) Devesting estate. sale. (6) Agent to sell. Compensation. (1) Generally prohibited. ' (7) Purchasers. Estoppel. (2) Invalidity of such purchase. (8) Validity of sale. Remedy. (9) Equitable conversion. Elec- (3) Such purchase is not void tion for reconversion. when. (10) Devise in trust with power 24. Substitution of purchasers. to sell. 25. Illegal contracts with executor op administrator. (11) Directions coupled with the trust. Effect of. 26. Irregularities cured by retroactive acts. (12) Power passes to adminis- trator with will annexed. 27. Sales by guardian. (13) Particular sales under power 28. Sales by foreign executor. in the will. 29. Exchange is not a sale. (14) Purchase by executor failing 30. Sales without order. to qualify. 31. 32. Title conveyed by sale. Bona fide purchasers. (15) Return of sales under power in will. Confirmation. (1) Rights of. 39. Sale of pretermitted child's inter- (2) How affected by adverse pos- est. session. 40. Limitation of actions for vacating 33. Necessary sale is valid when. sale. III. Confirmation of Sales ; and Conveyances. 1. Discretion of court as to confirma- 9. Refusal to report sale for confirma- tion. tion. Effect of. 2. Authority to confirm, when pre- 10. Action to set aside confirmation. sumed. 11. Conveyance. 8. When required. (1) In general. 4. When not required. (2) May be ordered when. 5. No power to confirm when. (3) Is individual deed when. 6. Objections to confirmation. W Conditions not to be im- 7. Effect of the order. posed. 8. Refusing confirmation. Effect of (5) Title carried by. the order. (6) (7) Is void when. Mandate to compel. rV, Direct and Collateral Attack upon Sales. 1. Direct attack in general. 2. Distinction between direct and col- lateral attack. 8. Collateral attack. (1) In general. (2) What cannot be questioned. (3) Presumptions on. (4) What is good on collateral attack. 822 PROBATE LAW AND PRACTICE. V. Appeal. 1. In general. 6. A£Grming tlie order of Bale on ap- 2-. Non-appealable orders. peal. 3. Appealable orders. 7. Record on appeal. 4. Parties interested or aggrieved. 8. Decree. Effect of, on appeal. 5. Parties not interested or aggrieved. 9. Res judicata. Law of the case. § 519. Executor or administrator may sell property when. 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 admin- istration, or legacies; or when it appears to the satisfaction of the court that it is for the advantage, benefit, and best interests of the estate, and those interested therein, that the real estate, or, some part thereof, be sold, the executor or administrator may sell any real as well as personal property of the estate, upon the order of the court; and an applica- tion for the sale of real property may also embrace the sale of personal property. Kerr's Cyc. Code Civ. Proc, § 1536. ANAI.OGOUS AND IDENTICAI. STATUTES. No identical statute found. Alaska. Carter's Code, sec. 834, p. 317. Arizona. Eev. Stats. 1901, par. 1777. Colorado. 3 Mills's Ann. Stats., sees. 4749, 4750, 4795. Idaho. Code Civ. Proc. 1901, sec. 4171. Kansas. Gen. Stats. 1905, §§ 2988, 3021. Montana. Code Civ. Proc, sec. 2670. Nevada. Comp. Laws, sec. 2914. New Mexico. Comp. Laws 1897, see. 2065. North Dakota. Eev. Codes 1905, § 8134. Oklahoma. Eev. Stats. 1903, sec. 1652. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1172. South Dakota. Probate Code 1904, § 201. Utah. Eev. Stats. 1898, sec. 3877. Washington. Pierce's Code, § 2565. Wyoming. Eev. Stats. 1899, sec. 4781. § 520. Verified petition for sale must contain what. To obtain such order for the sale of real property, he must present a verified petition to the superior court, or a judge thereof, setting forth the amount of the 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 SALES OP EEAL ESTATE AND CONPIEMATION. 823 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 administration already accrued, and an esti- mate 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 condi- tion and value thereof, and whether the same be community or separate property ; the names of the legatees and devisees, if any, and the heirs of the deceased, so far as known to the petitioner; and if said order for sale of real estate is peti- tioned for on the ground that it is for the advantage, bene- fit, and best interests of the estate, and those interested therein, that a sale be made, the petition, in addition to the foregoing facts, must set forth in what way an advantage or benefit would accrue to the estate, and those interested therein, by such sale. If any of the matters here enumerated cannot be ascertained, it must be so stated in the petition; but a failure to set forth facts hereinbefore enumerated will not invalidate the subsequent proceedings, if the defect be supplied by the proofs at the hearing, and the general facts, showing that such sale is necessary, or that such sale is for the advantage, benefit, and best interests of the estate, and those interested therein, be stated in the decree. Kerr's Oyc. Code Civ. Proc, § 1537. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, Sec. 835, p. 317. Arizona. Eev. Stats. 1901, par. 1778. Colorado. 3 Mills's Ann. Stats., sec. 4751. Idaho. Code Civ. Proc. 1901, sec. 4172. Kansas. Gen. Stats. 1905, §§ 2989, 2991. Montana. Code Civ. Proc, sec. 2671. Nevada. Comp. Laws, sec. 2915. New Mexico. Comp. Laws 1897, see. 2066. North Dakota. Bev. Codes 1905, § 8134. Oklahoma. Bev. Stats. 1903, sec. 1653. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1173. South Dakota. Probate Code 1904, § 202. Utah. Bev. Stats. 1898, sec. 3888. Washington. Pierce's Code, § 2565. Wyoming. Eev. Stats. 1899, sec. 4782. 824 PKOBATE LAW AND PRACTICE. § 521. Form. Petition for order of sale of real estate for best interests of estate, including application for the sale of personal property. [Title of court.] .[Title of estate.] J^° ' Dept. No _^ ■" [ [Title of form.] To the Honorable the ' Court of the County ^ of , State of The petition of the undersigned, , administrator * of the estate of , deceased, respectfully shows : That said died intestate,^ on or about the day of , 19 — ^, in the county * of , state of , being at the time of his death a resident of the said county' of ; and that he left estate, consisting of both real and personal property, in said state ; That your petitioner is the duly appointed, qualified, and acting administrator ' of said estate ; That your petitioner has made and returned to this court a true inventory and appraisement of all the estate of the said deceased, which has come to his possession or knowl- edge, and also published notices to the creditors of said dece- dent as required by law; That the following is a general description of all the real property of which the decedent died seised, or in which he had any interest, or in which his estate has acquired any interest, and the condition and value thereof, to wit: ; ' and that all of said real property is the separate property of decedent ; ^° That the names, ages, and places of residence of the heirs of said deceased, so far as known to your petitioner, are as follows, to wit : ; ^^ That said real estate is expensive to maintain and manage properly; that a portion of the same is planted to vines, which need the constant care and attention of some person qualified to attend to the same; that circumstances require the remainder of said real estate to be cultivated, and the fruit-trees growing thereon to be attended to; that the fences and buildings on said premises will become dilapi- dated unless properly attended to ; that said real estate, by SALES OF RPAL ESTATE AND CONFIRMATION. 825 reason of its not being occupied by some person interested therein, will deteriorate and depreciate in value; that said real estate can be sold at the present time for a better price than if sold later; that it will be difficult to lease said prem- ises for a fair compensation, by reason of there being no dwelling-house thereon ; that the expense of maintaining and caring for said premises by said administrator, if he is com- pelled to employ labor and help therefor, will largely exceed the revenues derived therefrom, and, coupled with the taxes to be annually collected on said premises, will be a source of expense, which will be a disadvantage to the parties en- titled to said estate ; and that it will be for the advantage, benefit, and best interests of the estate, and of those inter- ested therein, that said real esate, and the whole thereof, be sold, for the reasons aforesaid, and the proceeds distributed among the said heirs in accordance with their respective in- terests ; ^^ That the following is the amount of the personal estate of said deceased which has come to the hands of your petitioner, to wit : , of the value of dollars ($ ) ; That a portion of said personal property has been disposed of as follows, , and the proceeds paid out as follows, , leaving in' the hands of your petitioner the sum of dollars ($ ), and the remainder of said personal property ; That the debts outstanding against the said deceased, as far as can be ascertained or estimated, amount, at this date, to the sum of dollars ($ ) ; " That the debts, expenses, and charges of administration already accrued are the following : ; ^* That an estimate, by your petitioner, of the debts, ex- penses, and charges of administration which will or may accrue during the administration of the said estate is the following: ;" That there is now due upon the family allowance the sum of dollars ($ — — ) ; That the said debts outstanding against the deceased, the said debts, expenses, and charges of administration already 826 PROBATE LAW AND PRACTICE. accrued and remaimng impaid, and the estimated debts, expenses, and charges of administration that will or may accrue, amount to the sum of dollars ($ ).^° Your petitioner therefore alleges that the personal estate in his hands is not sufficient to pay the debts outstanding against the said , deceased, and the debts, expenses, and charges of administration. Wherefore your petitioner prays for an order of this court directing that all persons iuter.ested in said estate 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 sell the real estate of deceased for the benefit of all persons interested therein, and to sell the whole of the personal property of said estate to pay the debts outstanding against the deceased, and the debts, expenses, and charges of admin- istration; that, after a full hearing of this petition, and an examination of the allegations and proofs of the parties interested, and due proof of the publication of the said order to show cause, an order be made by this court, authorizing and directing your petitioner to sell the whole of said real and personal property, either at public or private sale, as your petitioner shall judge to be the most beneficial for the said estate ; and that such other or further order as may be proper be made in the premises. , Petitioner. , Attorney for Petitioner. [Add usual verification.] Explanatory notes. 1. Give file number. 2. Title of court, or name of judge. 3. Or, City and County. 4. Or, executor of the last will and testament of, etc. 5. Or according to the fact. 6, 7. Or, city and county. 8. Or, executor, etc. 9. Insert description, con- dition, and value. 10. Or, community property; or as the fact may be. 11. Insert names, etc. 12. Or other reasons. 13. Give list of claims allowed, approved, and filed. 14-16. Give detailed statement. That the statute authorizing a sale of the property of an estate, whether real or personal, when it is for the advantage, benefit, and best interest to do so, is valid, see Estate of Porter, 129 Cal. 86- 79 Am. St. Kep. 78; 61 Pac. Eep. 659. SALES OF REAL ESTATE AND CONPIEMATION. 827 § 522. Order to persons interested to appear. If it appears to the court or judge, from such petition, that it is neces- sary, or that it would be for the advantage, benefit, and best interests of the estate, and those interested therein, 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 such order, to show cause why an order should not be granted to the executor or administrator for the sale of such estate. Kerr's Oyc. Code Civ. Proc, § 1538. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 836, p. 317. Arizona. Eev. Stats. 1901, par. 1779. Colorado. 3 Mills's Ann. Stats., sec. 4752. Idaho. Code Civ. Proc. 1901, sec. 4173. Kansas. Gen. Stats. 1905, § 2992. Montana. Code Civ. Proc, sec. 2672. Nevada. Comp. Laws, sec. 2916. New Mexico. Comp. Laws 1897, sees. 2067, 2068. North Dakota. Eev. Codes 1905, § 8134. Oklahoma. Kev. Stats. 1903, sec. 1654. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1174. South Dakota. Probate Code 1904, § 203. Utah. Eev. Stats. 1898, sec. 3889. Washington. Pierce's Code, § 2566. Wyoming. Eev. Stats. 1899, see. 4783. § 523. Form. Order to show cause why order of sale of both real estate and personal property should not be made. [Title of court.] ™.., - ^ i 1 (No. 1 Dept. No. [Txtle of estate.] j ^^.^^^ ^/^^^^^ , the administrator ^ of the estate of , deceased, having presented to this court and filed herein his verified petition, in due form of law, praying for an order for the sale of all the real property and allthe personal property of said , deceased, for the purposes therein set forth, and 828 PEOBATE LAW AND PRACTICE. it appearing to this court, by said petition, that it would be for the advantage, benefit, and best interests of the estate, and those interested therein, to sell the whole of the real estate, and that it is necessary to sell the whole of the per- sonal property to pay the debts outstanding against said , deceased, and the debts, expenses, and charges of administration, — It is therefore hereby ordered by this court, That all per- sons interested in the estate of said deceased appear before said court on ,^ the day of , 19 — ,at o'clock in the forenoon* of said day, at the court-room of said court, in the said county ° of , to show cause why an order should not be granted to said administrator* to sell the whole of the real estate and the whole of the per- sonal .estate of said deceased, at either private or public sale, as said administrator ' shall judge to be most beneficial for the estate, and that a copy of this order be published once a week for four successive weeks,* in a daily newspaper of general circulation printed and published in said county' of The following is a description of the real estate and per- sonal property hereinbefore referred to, and which is sought to be sold under said petition: ^^ Dated the day of , 19 — . , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor, etc. 3. Day of week. 4. Or, afternoon. 5. Or, city and county. 6, 7. Or, executor, etc. 8. Or as prescribed by statute. 9. Or, city and county. 10. Insert description. § 524. Form. Order to show cause why order of sale of real estate should not be made. [Title of court.] [Title of estate.] \^° ' ^^P*- ^° I [Title of form.] It appearing to the satisfaction of the court from the veri- fied petition of , administrator ^ of the estate of ,' on file herein, that it is necessary * to sell the whole ° of the estate of said deceased, — SALES OP BEAL ESTATE AND CONFIEMATION. 829 It is ordered by the court, That all persons interested in the estate of said ,« deceased, appear before the ^ court of the county " of , state of , at the court- room thereof,® in said county ^° and state, on the day of , 19 — , at o'clock in the forenoon ^^ of said day, then and there to show cause, if any they have, why an order, as prayed for in the petition, should not be granted to the said administrator^^ to sell the real estate^' of said deceased, at either public or private sale,, for the purposes mentioned in the petition, as he shall judge to be for the best interests of said estate and of the parties interested therein ; It is further ordered, That a copy of this, order be published at least once a week for four (4) successive weeks,^* in the , a newspaper printed and published in said county .^° Dated this day of , 19 — , Judge of said Court. Explanatory notes. 1. Give file number. 2. Or, administratrix; or, administrator or administratrix with the will annexed; or, execu- tor or executrix of the last will and testament of , deceased; or the plural of any of these, as the case may be. 3. Also known as , also known as , if known by different names. 4. To pay the debts, expenses, and charges of administration of the estate of said deceased, which have already accrued, and which will or may accrue hereafter during the administration of said estate; or, for the payment of legacies in said estate; or, would be for the advantage, benefit, and best interests of said estate, and those interested therein. 5. Or, some portion. 6. Also known as , where known by more than one name. 7. Giving title of court, and number of depart- ment, in which matter will be heard, and location of the court. 8. Or, city and county. 9. Designate its location. 10. Or, city and county. 11. Or, afternoon. 12. Or, administratrix. 13. Or, some portion of the said real estate. 14. Must be not less than four (4) nor more than ten (10) weeks, or as otherwise provided by the statute. 15. Or, city and county. § 525. Service of order to show cause. Assent. Publica- tion. 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 hear- ing the petition, or be published four successive weeks in 830 PROBATE LAW AND PRACTICE. such newspaper in the comity as the court or judge shall direct. If all persons interested 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. Kerr's Cyc. Code Civ. Proc, § 1539. ANALOGOUS AND IDENTICAIj STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 837, p. 317. Arizona. Eev. Stats. 1901, par. 1780. Colorado. 3 Mills-s Ann. Stats., sec. 4753. Idaho. Code Civ. Proc. 1901, sec. 4174. Montana.* Code Civ. Proc, sec. 2673. Nevada. Comp. Laws, sec. 2917. New Mexico. Comp. Laws 1897, sees. 2070, 2071. North Dakota. Eev. Codes 1905, § 8135. Oklahoma.* Kev. Stats. 1903, sec. 1655. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1175. South Dakota.* Probate Code 1904, § 204. Utah. Eev. Stats. 1898, sec. 3889. Washington. Pierce's Code, §§ 2567, 2569. Wyoming.* Eev. Stats. 1899, sec. 4784. § 526. Hearing after proof of service. Presentation of claims. The court, at the time and place appointed la 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 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 appli- cation. All claims against the decedent not before presented, if the period of presentation has not elapsed, may be pre- sented and passed upon at the hearing. Kerr's Cyc. Code Civ. Proc, § 1540. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1781. Colorado. 3 Mills's Ann. Stats., sec. 4758. ' Idaho. Code Civ. Proe. 1901, see. 4175. Montana. Code Civ. Proc, sec 2674. Nevada. Comp. Laws, sec 2918. New Mexico. Comp. Laws 1897, sec 2073. SALES OP REAL ESTATE AND CONFIEMATION. 831 North Dakota. Rev. Codes 1905, § 8135. Oklahoma.* Eev. Stats. 1903, sec. 1656. South Dakota.* Probate Code 1904, § 205. Washington. Pierce's Code, § 2568. Wyoming.* Eev. Stats. 1899, sec. 4785. § 527. Porm. Objections to order of sale of real estate. [Title of court.] [Title of estate.] \^° ' Dept. No ■• ■" \ [Title of form.] Now comes , one of the devisees '■' of said decedent, and opposes the application herein made by the adminis- trator ^ of the estate of said deceased, for an order of sale of real estate as prayed for in his petition, on the following grounds : That the order to show cause made herein was not pub- lished as required by law, and as directed by this court ; nor was it personally served, as required by law, on any of the persons interested in said estate ; That said estate is not indebted to , as set forth in said .application, because his claim was, at the time of its allowance by the administrator, barred by the statute limit- ing the time within which claims against the estate must be presented.* The contestant therefore asks that said application be denied. , Contestant. , Attorney for Contestant. Explanatory notes. 1. Give file number. 2. Or, heir at law, or other party interested, according to the fact. 3. Or, executor, etc., as the case may be. 4. Make other objections, if any exist. § 528. Administrator, executor, and witnesses may be examined. The executor, 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 eases. Kerr's Oyc. Code Civ. Proc, §1541. ANALOGOUS AND IDENTICAL STATUTES. The * . indicates identity. Arizona.* Eev. Stats. 1901, par. 1782. Idaho.* Code Civ. Proc. 1901, sec. 4176. 832 PROBATE LAW AND PEACTICE. Montana.* Code Civ. Proe.y see. 2675. Nevada.* Comp. Laws, sec. 2920. North Dakota. Eev. Codes 1905, § 8135. Oklahoma.* Eev. Stats. 1903, sec. 1657. South Dakota.* Probate Code 1904, § 206. Washington. Pierce's Code, § 2570. Wyoming.* Bev. Stats. 1899, sec. 4786. § 529. To sell real estate or any part when. If it appears to the satisfaction of the court, or a judge thereof, that it is necessary, or that it is for the advantage, benefit, and best interests of the estate, and those interested therein, 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 unprofitable, 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 any part thereof, as in the judgment of the court is necessary, or for the advantage, benefit, and best interests of the estate, and those interested therein. Kerr's Oyc. Code Civ. Proc, § 1542. ANAIiOGOUS AND IDENTICAIi STATUTES. No identical statute found. Alaska. Carter's Code, sec. 838, p. 318. Arizona. Eev. Stats. 1901, par. 1783. Colorado. 3 Mills's Ann. Stats., sec. 4759. Idaho. Code Civ. Proc. 1901, sec. 4177. Kansas. Gen. Stats. 1905, § 2995. Montana. Code Civ. Proc, see. 2676. Nevada. Comp. Laws, see. 2921. North Dakota. Eev. Codes 1905, | 8135. Oklahoma. Eev. Stats. 1903, sec. 1658. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1176. South Dakota. Probate Code 1904, § 207. Utah. Eev. Stats. 1898, sec. 3880. Washington. Pierce's Code, § 2571. Wyoming. Eev. Stats. 1899, see. 4787. SALES OF REAL ESTATE AND CONFIRMATION. 833 § 530. Order of sale, when to be made. If it appears to the satisfaction of the court, 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 that a sale of the whole or some portion of the real estate is for the advantage, benefit, and best interests of the estate and those interested therein, 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 for the advantage, benefit, and best interests of the estate and those interested therein. Kerr's Cyc. Code Civ. Proc, § 1543. ANALOGOUS AND IBBNTICAL STATUTES. No identical statute found. Alaska. Carter's Code, see. 838, p. 318. Aiizoua. Eev. Stats. 1901, par. 1784. Colorado. 3 Mills's Ann. Stats., sec. 4759. Idaho. Code Civ. Proc. 1901, sec. 4178. Kansas. Gen. Stats. 1905, § 2994. Montana. Code Civ. Proc, sec. 2677. New Mexico. Comp. Laws 1897, sec. 2076. North Dakota. Bev. Codes 1905, § 8135. Oklahoma. Eev. Stats. 1903, sec. 1659. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1176. South Dakota. Probate Code 1904, §208. Utah. Bev. Stats. 1898, sec. 3890. Washington. Pierce's Code, §§ 2572, 2602, Wyoming. Bev. Stats. 1899, sec. 4788. § 531. Order of sale mnst contain what. Public auction or private sale. 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 instalments, 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 other- wise specially directs* If it appears that any part of such real estate has been devised and not charged in such devise Probate — 53 834 PEOBATE LAW AND PRACTICE. 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 public 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 administrator 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 compelled to sell, by order of the court, made on motion, after due notice, by any party interested. Kerr's Cyc. Code Civ. Proc, § 1544. ANAIiOaOUS AND IDENTICAIi STATUTES. The "^ indicates identity. Alaska. Carter's Code, see. 838, p. 318. Arizona.* Eev. Stats. 1901, par. 1785. Colorado. 3 Mills's Ann. Stats., sees. 4760, 4763. Idaho.* Code Civ. Proc. 1901, see. 4179. Kansas. Gen. Stats. 1905, § 2994. Montana.* Code Civ. Proc, sec. 2678. Nevada. Comp. Laws, sec. 2922. New Mexico. Comp. Laws 1897, sees. 2077, 2081. North Dakota. Eev. Codes 1905, § 8135. Oklahoma. Bev. Stats. 1903, sec. 1660. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1176, 1177, South Dakota. Probate Code 1904, § 209. TJtah.* Eev. Stats. 1898, see. 3891. Washington. Pierce's Code, §§ 2573, 2603. Wyoming. Eev. Stats. 1899, sec. 4789. §532. Form. Petition for order of sale of real estate where personal property is insufficient. [Title of court.] [Title of estate.] \^° ^ I>ept. No ( [Title of form.] To the Honorable the ^ Court of the County ^ of ^ State of The petition of , the administrator * of the estate of deceased, respectfully shows: SALES OF EEAL ESTATE AND CONPIEMATION. 835 That said — ■ — died intestate,' on or about the day of , 19 — , in the county " of , state of , being at the time of his death a resident of the said county ' of ; and that he left estate, consisting of both real and personal property, in the said state of ; That on the day of , 19 — , your petitioner was duly appointed administrator of said estate; that on the same day he qualified as such administrator ; that letters of administration, signed by the clerk, and under the seal of said court, were thereupon issued to your petitioner, a com- petent person ; that said letters have not been revoked ; and that your petitioner is now the duly appointed, (Qualified, and acting administrator * of said estate ; and That your petitioner duly made and returned to this court, within days after his appointment, to wit, on the day of -, 19 — , a true inventory and appraisement of all the estate of the said deceased, which has come to his possession or knowledge, and also published notices to the creditors of said decedent, as required by law. All of which will more fully appear by the papers on file in the clerk's office and the records of said court, in the matter of said estate, to which reference is hereby made. That the following described personal property has come into the hands of your petitioner: ; * Valued at dollars ($ ) ; That ^° of said personal property has been disposed of, as follows, to wit: ; ^^ That ^^ remains to be disposed of ; That the debts outstanding against the said deceased, as far as can be ascertained or estimated, amount, at this date, to the sum of dollars ($ ), and are fully set forth in Exhibit A, hereunto annexed and made a part of this petition ; That the amount due upon the family allowance is the sum of dollars ($ ) ; That the amount that will be due upon said family allow- ance, after the same shall have been in force for one year, is the sum of dollars ($ ) ; 836 PROBATE LAW AND PRACTICE. That the debts, expenses, taxes, and charges of administra- tion already accrued amount to the sum of dollars ($ ), and are fully set forth in Exhibit B, hereunto annexed and made a part of this petition ; 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 dollars ($ ), and are set forth in Exhibit C, hereunto annexed and made a part of this petition ; That the whole amount of debts outstanding against the deceased, of the amount due and to become due upon the family allowance, of the debts, expenses, and charges of administration already accrued and remaining unpaid, state and county taxes, and of the estimated debts, expenses, and charges of administration that will or may accrue, is dollars ($ ) ; That a full description of all the real estate of which the said d-ecedent died seised, or in which he had any interest, or in which the said estate has acquired any interest, and the condition and the value of the ^^ said real estate, are set forth in Exhibit D, hereunto annexed and made a part of this petition ; That the whole of said real estate was acquired by said deceased after marriage,^* and is therefore community^* property ; That the following are the names and ages of the heirs of the said deceased, to wit, and Your petitioner therefore alleges that the personal estate in the hands of your petitioner is insufficient " to pay the allowance of the family, the debts outstanding against the deceased, and the debts, expenses, and charges of the admin- istration ; and that it is necessary to sell the whole " of the said real estate for such purposes. "Wherefore your petitioner prays that an order be made by this court, directing all persons interested in said estate to appear before said court, at a time and place specified,^' to show cause why an order should not be granted to your peti- tioner to sell so much of the real estate of the deceased as may be necessary for the purpose aforesaid ; SALES OF REAL ESTATE AND CONFIRMATION. 837 And that after a full hearing of this petition, 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 peti- tioner to seU all, or so much, and such parts of the said real estate as said court shall judge necessary or beneficial, at public or private sale, as petitioner shall judge most bene- ficial for the estate, and that such other or further order may be made as i§ meet in the premises. Dated , 19 — . , Petitioner. Exhibit A. The following is an itemized statement of all claims pre- sented against the estate, whether allowed and approved, and an estimate of debts outstanding: Name of Claimant. Nature of Claim. Amount. Total $- Exhibit B. The following is a statement of debts, expenses, taxes, and charges of administration already accrued: Paid clerk's fees, as per Voucher No. 1 $ Paid appraisers, as per Voucher No. 2 Paid printer, as per Voucher No. 3 Paid probate tax, as per Voucher No. 4 , Paid taxes for the year 19 — , as per Voucher No. 5. . Total $ Exhibit C. The following is an estimate of the debts, expenses, and charges of administration that will or may accrue : Attorneys' fees for administrator $ Collateral inheritance tax Commissions upon appraised value of estate Other expenses _ Total $ 838 PROBATE LAW AND PEAOTICE. Exhibit D. The following is a description of each parcel of real estate, with a statement of its condition, whether improved or unimproved, amount of rents received, etc., and its value : Total value," $ Explanatory notes. 1. Give file number. 2. Title of court, or name of judge. 3. Or, city and county. 4. Or, executor of the last will and testament of, etc. 5. Or according to the fact. 6, 7. Or, city and county. 8. Or, executor, etc., as the case may be. 9. Give description. 10. A portion, or all. 11. State how. 1^. Part thereof, stating it, and giving value; or, that none of said property. 13. Ee- speotive portions and lots of. 14. Or according to the fact. 15. Or, separate property, as the case may be. 16. Real estate may be sold without the personal property being exhausted, and the allegations of a petition for the sale of realty before the personal property is exhausted should, of course, conform to the statute author- izing such a sale. See §§519, 520, 521, ante. 17, Or, part thereof. 18. Not less than four (4) nor more than ten (10) weeks, from the making of such order. 19. The value of each parcel should be sep- arately stated, and the total given at bottom of exhibit. § 533. Form. Verification of petition. State of , County 1 of Jss. , the petitioner above named, being duly sworn, says : That he has read the foregoing petition, and knows the con- tents thereof, and that the same is true of his own knowl- edge, except as to the matters which are therein stated on his information or belief, and as to those matters, that he believes them to be true. Subscribed and sworn to before me this day of , 19 — , Notary Public, etc.= Explanatory notes. 1. Or, city and county. 2. Or other officer taking the oath. § 534. Form. Order for sale of real estate. [Title of court.] TTitle of estate 1 i^° ' "^P*- ^'' [Title of estate.j | ^^.^^^ ^^ ^^^^^ Comes now, , the administrator^ of said estate, by Mr. , his attorney, and presents his verified petition for SALES OF REAL ESTATE AND CONFIEMATION. 839 authority to sell the real estate of said decedent, at public or private sale; and it being proved to the satisfaction of the court that due publication of the order to show cause has been made as required by law and by the order of the eourt,^. the court proceeds to the hearing of said petition, and from the proofs offered the court finds that a sale of the real property of said estate, as prayed for in said petition, is necessary, in order to raise funds to pay the debts, family allowance, and expenses of administration of said estate ; * that said real estate is of the value of dollars ($ ) , and is unimproved and unproductive ; ^ and that all the alle- gations of said petition are true ; — • It is therefore ordered by the court, That said , as administrator® of said estate, be, and he is hereby, author- ized to sell, in manner and form required by law, all of the real estate hereinafter described, at private sale,^ to the highest bidder, upon the following terms, to wit : ; ' It is further ordered, That before making the sale the said administrator ' shall give a bond in the form required by law, in the penal sum of dollars ($ ) . The real estate hereby authorized to be sold is described as follows, -to wit: ^° , County Clerk. Entered , 19 — By , Deputy." Explanatory notes. 1. Give file number. 2. Or, executor. 3. Or, that all persons interested in said estate have filed their written consent to said sale. If the matter has been continued, say, " and the hearing having been regularly postponed to this day." 4. Or, to pay the lien thereon, if any, described in the petition; or, will be for the advantage, benefit, and best interests of the estate and of those interested therein. 5. Or, is in need of repairs, and produces no income; or other brief statement of condition. 6. Or, executor. 7. Or, public auction, according to the fact. 8. Name the terms. 9. Or, executor. 10. Describe the land. 11. See § 77, ante. § 535. Form. Order for sale of real estate, in one parcel, or in subdivisions, and at either private or public sale. [Title of court.] r^. , . ^ ^ y (No. 1 Dept. No. [Title of estate.} { ^^.^^^ J^^.^_^ , administrator " of the estate of , deceased, hav- ing on the day of , 19 — , presented to the judge 840 PROBATE LAW AND PRACTICE. of said ' court, and filed herein his petition in due form, verified by his oath, praying for an order authorizing him to sell so much and such parts of the real, estate belonging to the estate of said deceased, for purposes therein stated, as this court shall deem necessary or beneficial ; and said matter coming on regularly to be heard this day of , 19 — , it is, upon proof to the satisfaction of the court of the due publication of a copy of the order to show cause, as required by law and the order of this court, and after a full examination, — Ordered, adjudged, and decreed. That said , the ad- ministrator * of the estate of said , deceased, be, and he is hereby, authorized to sell, either in one parcel or in sub- divisions, as the said administrator ^ shall judge most bene- ficial to said estate, the real estate belonging to said estate, hereinafter described, at public auction,* to the highest bidder, upon the following terms, to wit : ' And it is further ordered. That, before making such sale, the said , administrator,* as aforesaid, execute an addi- tional bond to the state of , with two or more sufficient sureties, in the penal sum of dollars ($ ), condi- tioned that the said administrator ° shall faithfully execute the duties of his trust according to law. The following is the real estate hereby authorized to be sold, being situate in the said county^" of , state of , and bounded and described as follows, to wit : ^^ Dated , 19-! — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor. 3. Title of court. 4, 5. Or, executor. 6. Or, private sale, the same having been asked for in the petition. 7. State the terms. 8, 9. Or, executor. 10. Or, city and county. 11. Describe the land. § 536. Interested persons may apply for order of sale. Perm of petition. If the executor or administrator neglects or refuses to apply for an order of sale when it is necessary, or when it is for the advantage, benefit, and best interests of the estate, and those interested therein, that the real estate, or some portion thereof, be sold, any person inter- ested may make application therefor in the same manner SALES OF REAL ESTATE AND CONFIRMATION. 841 as the executor or administrator, and notice thereof must be given to the executor or administrator before the hear- ing. The petition of such applicant must contain as many of the matters set forth in section one thousand five 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. Kerr's Cyc. Code Civ. Proc, §1545. AlfALOGOUS AND IDENTICAIi STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1786. Idaho. Code Civ. Proc. 1901, sec. 4180. Montana. Code Civ. Proc, sec. 2679. Nevada. Comp. Laws, sec. 2923. New Mexico. Comp. Laws 1897, see. 2094. North Dakota. Eev. Codes 1905, § 8136. Oklahoma. Eev. Stats. 1903, sec. 1661. South Dakota. Probate Code 1904, § 210. Utah. Eev. Stats. 1898, sec. 3888. Washington. Pierce's Code, § 2574. Wyoming. Eev. Stats. 1899, sec. 4790. § 537. Notice of sale of land. 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 pub- lished in 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 tenements to be sold must be described with common certainty in the notice. Kerr's Cyc. Code Civ. Proc, § 1547. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 839, p. 318. Arizona.* Eev. Stats. 1901, par. 1787. Colorado. 3 Mills's Ann. Stats., sec. 4763. Idaho.* Code Civ. Proc. 1901, sec. 4182. Kansas. Gen. Stats. 1905, § 3003. Montana. Code Civ. Proc, sec. 2680. Nevada. Comp. Laws, sec. 2925. New Mexico. Comp. Laws 1897, sec. 2081. North Dakota. Eev. Codes 1905, § 8137. 842 PROBATE LAW AND PEACTICE. Oklahoma* Eev. Stats. 1903, see. 1662. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1177. South Dakota.* Probate Code 1904, § 211. Utah. Eev. Stats. 1898, sees. 3892, 4030. Washington. Pierce's Code, § 2576. § 538. Time and place. Sales at public auction must be made in the county where the land is situated; but whei) the land is situated in two or more counties, it may be sold in either. The sale must be made between the hours of nine 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. Kerr's Cyc. Code Civ. Proc, § 1548. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 839, p. 318. Arizona.* Eev. Stats. 1901, par. 1788. Colorado. 3 MiUs's Ann. Stats., see. 4763. Idaho. Code Civ. Proc. 1901, see. 4183. Kansas. Gen. Stats. 1905, § 3005. Montana.* Code Civ. Proc., see. 2681. Nevada. Comp. Laws, sec. 2926. New Mexico. Comp. Laws 1897, sec. 2081. North Dakota. Eev. Codes 1905, § 8137. Oklahoma.* Eev. Stats. 1903, see. 1663. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1177. South Dakota.* Probate Code 1904, § 212. Utah.* Eev. Stats. 1898, sec. 3893. Washington. Pierce's Code, § 2577. Wyoming.* Eev. Stats. 1899, see. 4791. §539. Form. Notice of administrator's or executor's sale of real estate at public auction. [Title of court.] [Title of estate.] P° ^ ^ept. No ( [Title of form.] Notice is hereby given. That, in pursuance of an order duly made by said court on the day of , 1 9 , in the matter of the estate of , deceased, the undersigned, administrator ^ of said estate, will sell at public auction, to the highest bidder, for cash, in gold coin of the United States, 'and subject to the confirmation of said court, on ,3 the day of , at the hour of twelve o'clock, SALES OF REAL ESTATE AND CONFIRMATION. 843 noon,* at the auction salesrooms of ,° in said county ' of , all the right, title, interest, and estate of said , at the time of his death, being an undivided ' interest in and to the property hereinafter described, and all the right, title, and interest that the said estate has acquired, by operation of law or otherwise, other than or in addition to that of said deceased at the time of his death, in and to all that certain lot, piece, or parcel of land situate in said county" of , and bounded and described as follows, to wit: » Terms and conditions of sale: Cash, in gold coin of the United States ; ten (10) per cent of the purchase price to be paid to the auctioneer on the day of sale, and the balance upon confirmation of sale by said ^° court and the delivery of a conveyance.^^ Dated , 19 , Administrator ^^ of the said Estate. , Attorney for Administrator.^^ Explanatory notes. 1. Give file number. 2. Or, executor. 3. Day of week. 4. Or according to tlie fact. 5. State where. 6. Or, city and county. 7. State fractional part. 8. Or, city and county. 9. De- scribe the land. 10. Title of court. 11. Or as the terms may be. 12, 13. Or, executor. § 540. Private sale of real estate, how made, and notice. Bids, when and how received. When a sale of real estate is ordered to be made at private sale, notice of the same must be posted up in three of the most pub- lic places in the county 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 de- scribed 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 wiU be received. The day last referred 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 844 PROBATE LAW AND PRACTICE. or offers must be in writing and may be left at the place designated in the notice, or delivered to the executor or administrator personally, or may be filed in the ofBce of the clerk of the court to which the return 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 day 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. Kerr's Cyc. Code Civ. Proc, § 1549. ANALOGOUS AND IDEKTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 839, p. 318. Arizona.* Eev. Stats. 1901, par. 1789. Colorado. 3 Mills's Ann. Stats., sec. 4763. Idaho.* Code Civ. Proo. 1901, sec. 4184. ' Montana.* Code Civ. Proc, sec. 2682. Nevada. Comp. Laws, sec. 2925. New Mexico. Comp. Laws 1897, sec. 2081. North Dakota. Eev. Codes 1905, § 8137. Oklahoma.* Eev. Stats. 1903, sec. 1664. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1177. South Dakota.* Probate Code 1904, §213. Utah. Eev. Stats. 1898, sees. 3894, 4031. Washington. Pierce's Code, § 2604. § 541. Form. Order for sale of real estate. Private sale. (Short notice.) [Title of court.] [Title of estate.] \^° ' Dept. No ■■ ■' \ [Title of form.] Comes now , the administrator'' of said estate, bj' Mr. , his attorney, and presents his verified petition for authority to sell the real estate of said decedent at public or private sale. And it being proved to the satisfaction of the court that due publication of the order to show cause has been made as required by law and by the order of the court,' the court proceeds to the hearing of said petition, and from SAliES OP REAL ESTATE AND CONPIEMATION. 845 proofs offered the court finds that a sale of the real property of said estate, as prayed for in said petition, is necessary in order to raise funds to pay the debts, family allowance, and expenses of administration of said estate ; * that said real estate is of the value of dollars ($ ), and is unim- proved and unproductive ; " and that all the allegations of said petition are true, — It is therefore ordered by the court. That said , as administrator ' of said estate, be, and he is hereby, author- ized to sell in manner a,nd form required by law all of the real estate hereinafter -described, at private sale,^ to the highest bidder, upon the following terms, to wit : — ' It is further ordered. That before making the sale the said administrator' shall give a bond in the form required by law, in the penal sum of doUars ($ ) . It is also ordered. That the time of notice of said sale be shortened so that a sale may be made on or after a day not less than eight ^'' days from the first publication of the notice of sale. The real estate hereby authorized to be sold is described as f oUows, to wit : ^^ . County Clerk. Entered , 19 — By , Deputy." Explanatory notes. 1. Give file number. 2. Or, executor. 3. Or, that all persons interested in said estate have filed their written con- sent to said sale. If the matter has been continued, say, " and the hearing having been regularly postponed to this day." 4. Or, to pay the lien thereon, if any, described in the petition; or, will be for the advantage, benefit, and best interests of the estate and of those interested therein. 5. Or, is in need of repairs, and produces no income; or other brief statement of condition. 6. Or, executor. 7. Or, public auction, according to the fact. 8. Name the terms. 9. Or, executor. 10. Or, as limited by statute. 11. Describe the land. 12. Orders need not be signed: See note, § 77, ante. § 642. Form. Notice of administrator's or executor's sale of real estate at private sale. [Title of court.] [Title of estate.] j ^^.^^^ J^^^^ Notice is hereby given, That, in pursuance of an order of the " court of the county^ of , state of , »46 PROBATE LAW AND PRACTICE. made on the day of , 19 — , in the matter of the estate of ,* deceased, the undersigned, the adminis- trator ** of the estate of ," deceased, will sell at private sale, in one parcel, to the highest bidder, upon the terms and conditions hereinafter mentioned, and subject to confirmation by said '' court, on or after ,* the day of , 19 — , all the right, title, interest, and estate of the said , also known as , deceased, at the time of his death, which was an undivided one-half ° interest in and to the real property hereinafter described, and all the right, title, and interest that the said estate has, by operation of law, or otherwise, acquired, other than or in addition to that of said deceased, at the time of his death, of, in, and to that certain lot, piece, or parcel of land situate, lying, and being in the county ^° of , state of , and more particu- larly described as follows, to wit : ^^ Terms and conditions of sale: Cash, in gold coin of the United States; ten (10) per cent of the purchase-money to be paid at the time of sale; balance on confirmation of sale. Deeds and abstract at the expense of the purchaser. The purchaser to assume the payment of, and take the property purchased by him subject to, all the state and county taxes, and aU assessments of whatsoever name or nature, which are now or may become hereafter chargeable to or a lien against the property purchased by him.^^ AU bids or offers must be in writing, and may be left at the office of , attorney for said administrator,*^ at ,** or may be delivered to said administrator *" person- ally, in said county ** of , or may be filed in the office of the clerk of this court, at any time after the first publica- tion of this notice and before the making of the sale.*' Dated , 19 — , Administrator ** of the Estate of , also known as , Deceased. , Attorney for Administrator.*' Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, city and county. 4. Also known as ; also known as 5. Or, administratrix; or, administrator or administratrix with the wUl annexed; or, executor or executrix of the last will and testament of ; or the plural of any of these, as the case may be. If more SALES OF EEAL ESTATE AND CONFIEMATION. 847 than one person is acting as administrator or executor, etc., use appropriate verbs and pronouns; and if the administrator or execu- tor, etc., is a woman, change pronouns to correspond. 6. Also known as 7. Title of court. 8. Day of week. 9. Or whatever the interest may be. 10. Or, city and county. 11. Give description. 12. Or whatever the terms and conditions may be. 13. Or, executor. 14. Give definite location of place. 15. Or, executor. 16. Or, city and county. 17. If the land is to be sold either as a whole or in parcels, say here, " The above described property will be sold as a whole or in subdivisions, and bids must be made and will be received and considered accordingly." 18, 19. Or, executor (giving specific address). § 543. Ninety iier 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 unless 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 appraisement thereof in the same manner as in case of an original appraise- ment of an estate. This may be done at any time before the sale or the confirmation thereof. Kerr's Cyc. Code Civ. Proc, §1550. ANALOGOUS AND IDENTICAL STATUTES. - The * indicates identity. Alaska. Carter's Code, sec. 839, p. 318. Arizona.* Eev. Stats. 1901, par. 1790. Colorado. 3 Mills's Ann. Stats., sec. 4763. Idaho.* Code Civ. Proc. 1901, sec. 4185. Kansas. Gen. Stats. 1905, § 3004. Montana.* Code Civ. Proc, sec. 2683. Nevada. Comp. Laws, sec. 2926. North Dafeota. Rev. Codes 1905, § 8138. Oklahoma.* Eev. Stats. 1903, see. 1665. South Dakota.* Probate Code 1904, § 214. Utah.* Bev. Stats. 1898, see. 3895. Washington. Pierce's Code, § 2605. Wyoming. Eev. Stats. 1899, sec. 4792. § 544. Purchase-money of sale on credit, how secured. The executor or administrator must, when the sale is made 848 PEOBATE LAW AND PRACTICE. upon a credit, take the notes of the purchaser for the pur- chase-money, with a mortgage on the property to secure their payment. Kerr's Oyc. Code Civ. Proc., § 1551. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 839, p. 318. Arizona.* Rev. Stats. 1901, par. 1791. Colorado. 3 Mills's Ann. Stats., sec. 4760. Idaho.* Code Civ. Proc. 1901, see. 4186. Montana.* Code Civ. Proc., see. 2684. Nevada. Comp. Laws, sec. 2922. • New Mexico. Comp. Laws 1897, see. 2077. North Dakota. Eev. Codes 1905, § 8138. Oklahoma.* Eev. Stats. 1903, sec. 1666. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1177^ South Dakota.* Probate Code 1904, § 215. Utah. Eev. Stats. 1898, see. 3896. Washington. Pierce's Code, §§2579, 2606. Wyoming.* Eev. Stats. 1899, see. 4793. § 545. Return of proceedings. Notice of hearing. Setting aside sale. Resale. The executor or administrator, after making any sale of real estate, must make a return of his proceedings to the court, which must be filed in the office 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 publication in a newspaper, and must briefly indicate the land sold, the sum for which it was sold, and must refer to the return for fur- ther 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 sum bid disproportionate to the value, and if it appears that a sum exceeding such bid at least ten per cent exclusive 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 of ten per cent more in amount than that named in the SAIiBS OP EEAL ESTATE AND CONFIRMATION. 849 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. Kerr's Cyc. Code Civ. Proc, § 1552. ANAIiOaOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, see. 840, p. 318. Arizona. Eev. Stats. 1901, par. 1792. Colorado. 3 Mills's Ann. Stats., sees. 4764, 4765. Idaho. Code Civ. Proe. 1901, sec. 4189. Kansas. Gen. Stats. 1905, § 3006. Montana. Code Civ. Proe., see. 2685. Nevada. Comp. Laws, sec. 2927. New Mexico. Comp. Laws 1897, sec. 2083, North Dakota. Kev. Codes 1905, § 8138. Oklahoma. Eev. Stats. 1903, sec. 1667. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1178, South Dakota. Probate Code 1904, § 216. Utah. Bev. Stats. 1898, sees. 3898, 3899. Washington. Pierce's Code, §§2580, 2607, 2751. Wyoming. Eev. Stats. 1899, see. 4794. § 546. Form. Return and account of sale of real estate, and petition for order confirming sale. [Title of court.] [Title of estate.] \^° ' ^^P*- ^° ( [Title of form.] To the Honorable the '■' Court of the County ' of State of , the administrator of the estate of , deceased, respectfully makes the following return of his proceedings, under the order of this court dated on the day of , 19 — , authorizing said administrator to sell certain real estate, and reports as follows, to wit : That, in pursuance of said order of sale', he caused notice of the time and place of holding such sale to be posted up in three of the most public places in the county * of , in which the land ordered to be sold is situated, and to be pub- lished in the , a newspaper printed and published in the same county,^ for three weeks successively next before such. Probate — 64 850 PROBATE LAW AND PRACTICE. f?ale, in which notice the lands and tenements to be sold were described with common certainty, all of which will also and more fnlly appear by the affidavits ° marked respectively " Exhibit A " and " Exhibit B," hereunto annexed and made a part of this return ; That, at the time and place of holding such sale specified in such notice, to wit, on , the day of ■—, 19 — , between the hour of nine o'clock in the morning and the set- ting of the sun on the same day, to wit, at o'clock in the forenoon^ of said day, and at ,' in said county,' , he caused to be sold in solido, judging it most bene- ficial to said estate, at public auction, to the highest bidder, upon the following terms, to wit, ,^'' and subject to confirmation by this court, the real estate described in said order of sale and in said notice; That, at such sale, became the purchaser of the whole of said estate, for the sum of dollars ($ — ), he being the highest and best bidder, and said sum being the highest and best sum bid ; That the said sale was legally made and fairly conducted ; that, as said believes, the sum bid is not dispropor- tionate to the value of the property sold, and that a sum exceeding such bid by at least ten per cent, exclusive of the expenses of a new sale, cannot be obtained. The real estate so sold is situated in the county ^^ of , state of , and is described as follows: ^^ That, before making such sale, to wit, on the day of , 19 — , said , as required in and by said order of sale, duly executed an additional bond to the state of , with sufficient sureties, duly approved, on the day last aforesaid, by the judge of this court, in the penal sum of dollars ($ ), conditioned that the said faith- fully execute the duties of his trust according to law. Wherefore the said prays that a hearing be had upon this return; that this honorable court make an order con- firming the said sale, and directing conveyances to be exe- cuted to the said purchaser, conveying aU the right, title, interest, and estate of said intestate in the said premises at the time of his death, and all the right, title, and interest of SALES OP REAL, ESTATE AND CONFIRMATION. 851 said estate in the same ; and that such other or further order may be made as is meet in the premises. And your petitioner will ever pray, etc. Dated , 19 , Administrator of the Estate of , Deceased. Explanatory notes. 1. Give file number. 2. Title of court. 3-5. Or, City and County. 6. Or, if the afSdavits are filed separately from the return,- say, " by the afidavits of and , to that effect, this day filed "; or, " filed herein on the day of , 19 " 7. Or, afternoon. 8. State place. 9. Or, city and county. 10. State the terms. 11. Or, city and county. 12. Give description. § 547. Form. Verification of return, and account of sale. [Title of court.] No. Dept. No. [Title of form.] [Title of estate.] State of , County ^ of , ) , who, as the administrator of the estate of deceased, has subscribed the foregoing return and account of sales, being duly sworn, says that he has read the said return and account, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters that he believes the same to be true. . Subscribed and sworn to before me this day of , 19 — — , Clerk of the Court. By , Deputy. Explanatory note. 1. Or, City and County. § 548. Form. Exhibit A to return of sale.^ Affidavit of posting notices of sale of real estate. [Title of court.] FTitle of estate 1 /^° ^ ^^P*- ^° Llitle ot estate.] | ^^^^^^ ^^ ^^^^.^ State of County ^ of -,} ss. ., being duly sworn, says : That he is, and at all times hereinafter named was, a male citizen of the United States, 852 PROBATE LAW AND PRACTICK. of the age of twenty-one years and upwards, not interested in the estate of , deceased, and is competent to be a wit- ness in the matter of said estate; that on the day of , 19 — , he posted correct and true copies of the annexed notice of time and place of sale of real estate in three of the most public places in said county,* to wit : one of said copies at the place at which the court is held,° one at ,° and one at ,' in said county.* Subscribed and sworn to before me this day of , 19 — , Notary Public, etc. Explanatory notes. 1. This may be used as a separate form, or as an exhibit with the return. 2. Give file number. 3, 4. Or, City and County. 5. State place. 6, 7. United States post-office, eity hall, land-offiee, or sherifiE's office, etc. 8. Or, city and county. § 549. Form. Exhibit B to return of sale.^ Affidavit of publication of notice of time and place of sale of real estate. [Title of court.] Ko. 2 Dept. No. [Title of form.] [Title of estate.] State of , County * of - J' -, of said county,^ being duly sworn, says : That he is a white male citizen of the United States of America, of the age of twenty-one years and upwards, not interested in the estate of , deceased, and is competent to testify in the matter of said estate ; That he is the principal clerk of the printer and publisher • of the , a newspaper printed and published in said county," and, as such principal clerk,' has charge of all adver- tisements in said newspaper ; That a true, full, and correct copy of the annexed notice of the time and place of holding the sale of real estate ordered by the * court of the county " of , in the matter of said estate, on tbe day of , 19 — , was published in said newspaper, for three weeks successively " next before the day of sale mentioned in said notice, and as often during the period of said three successive weeks as the said paper was regularly issued, to wit : .^^ SALES OP EBAL ESTATE AND CONFIRMATION. 853 Subscribed and sworn to before me this day of , 19 — , Notary Public, etc.^" Explanatory notes. 1. This may be used as a separate form, or as an exhibit with the return. 2. Give file number. 3, 4. Or, City and County. 5. Or, printer, or foreman. 6. Or, City and county. 7. Or, printer, or foieman. 8. Title of court. 9. Or, city and county. 10. Or as prescribed by statute. 11. Give dates of publication. 12. Or other officer taking the oath. § 550. Form. Fixing time for hearing on return of sale. [Title of court.] [Title of estate.] P° ' ^^P*- ^° ( [Title of form.] , the administrator ^ of the estate of , deceased, having this day filed with the clerk of this court his return of sale of real estate, under the previous prder of this court ; " and a hearing thereon having been asked for in said return, — Now, I, , clerk of said court, do hereby fix and appoint ,* the day of , 19 — , at o'clock in the forenoon of said day, and the court-room of said court, at the court-house ^ in said county ° of , as the time and place for the hearing upon said return. Dated , 19 — , Clerk of the Court. By , Deputy Clerk. Explanatory notes. 1. Give file number. 2. Or, executor, etc. 3. Or, under a power, contained in the will of said deceased. 4. Give day of week. 5. Give location. 6. Or, city and county. § 551. Form. Order appointing day of hearing return of sale of real estate. [Title of court.] , administrator ^ of the estate of , deceased, having this day made a return to this court of his proceed- ings under the order of sale of real estate heretofore made •herein, and filed the said return, — 854 PROBATE LAW AND PBACTICE. It is ordered, That the hearing of said return be had before this court on , the -day of , 19^-, at o'clock in the forenoon* of said day, in the court-room of said court, at ,* in the said county* of , state of ; and that notice of at least ten days* be given thereof, by the clerk, by publication^ in the , a news- paper printed in said county ^ and state. The said return is referred to for further particulars. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor of the last will, etc. 3. Or, afternoon. 4. Give location of court-room. 5. Or, city and county. 6. Or other time prescribed by statute. 7. Or, by posting notices thereof according to law. 8. Or, city and county. By the present statute of California the clerk is required to fix the day of hearing. § 552. Form. Notice of hearing return of sale of real estate. [Title of court.] [Title of estate.] \^° ' ^«Pt- ^o . i [Title of form.] Notice is hereby given, That , administrator ^ of the estate of , deceased, has made to the said court, and filed in the office of the clerk thereof, a return of sale of real estate of the said deceased, made by him on the day of , 19 — , under a previous order of said court ; ^ and that ,* the day of , 19 — , at o'clock in the forenoon of said day, and the court-room of said court, at ,° in said county ° and state, have been fixed by the clerk of said court as the time and place for hearing the said return, when and where any person interested in the said estate may appear and file written objections to the confir- mation of said sale, and may be heard and may produce wit- nesses in support of such objections. The following is a description of the land sold and the sum for which it was sold: Said land is situated in the county ' of , state of , and described as follows : SALES OP EBAL ESTATE AND CONFIRMATION. 855 For further particulars, reference is hereby made to the return on file herein. — ■ — , Clerk of the Court. By , Deputy Clerk. Explanatory notes. 1. Give file number. 2. Or, executor, etc. 3. Or, under a power contained in the will of said deceased. 4. Give day of week. 5. Give location. 6, 7. Or, city and county. 8. Give description, and state price for whicli each parcel sold. § 553. Form. Offer of ten per cent advance on sale of real estate. [Title of court.] [Title of estate.] i^° ' Dept. No . [ [Title of form.] The matter of the confirmation of the sale of real estate, made by , administrator '-^ of the estate of , coming on this day for hearing, the undersigned, a responsible per- son, now comes and offers for the property hereinafter de- scribed the sum of dollars ($ ) , which is an offer of ten per cent advance upon the price named in said admin- istrator's ^ return of sale. The property sold, and for which such advance is offered, is particularly described as follows, to wit : * Dated , 19 — Explanatory notes. 1. Give file number. 2, 3. Or, executor, etc. 4. Insert description. § 554. Form. Order vacating sale of real estate. [Title of court.] [Title of estate.] \^°- -;;^:'. ^fP]- ^°- ■■ ■' \ [Title of form.] , administrator * of the estate of , deceased, having made a return of his proceedings on the sale of real property belonging to said estate, and the matter coming on regularly this day ^ to be heard, the court proceeds to hear the same, and finds, upon the allegations made and testi- mony offered, that the sum bid at the sale returned as afore- said was disproportionate to the value of the property offered for sale ; and that a sum exceeding the sum bid and reported, 856 PROBATE LAW AND PKACTICB. by at least ten per cent, exclusive of the expenses of a new sale, can be obtained, — It is therefore ordered, That said sale be, and the same is hereby, vacated, and it is directed that another sale be had, after proper notice given, to be conducted in aU respects as if no previous sale had ever been made. The property sold, as appears by the return aforesaid, and the sale of which is hereby vacated, is particularly described as follows, to wit : Dated , 19 — , Judge of the Court. Explanatoiy notes. 1. Give file number. 2. Or, executor of the last will and testament of , etc. 3. Or, having been regularly continued hy the court to the present time. § 555. Objections to confirmation of sale. Hearing. 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. Kerr's Cyc. Code Civ. Proc, § 1553. AlTAIiOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1793. Idaho.* Code Civ. Proc. 1901, sec. 4190. Montana. Code Civ. Proc, sec. 2686. North Dakota.* Eev. Codes 1905, § 8139. Oklahoma.* Eev. Stats. 1903, sec. 1668. South Dakota.* Probate Code 1904, § 217. Washington. Pierce's Code, §§ 2581, 2608. Wyoming.* Eev. Stats. 1899, sec. 4795. § 556. Order of confirmation to be made when. If it appears to the court that the sale was legally made and fairly conducted, and that the sum bid was not dispropor- tionate to the value of the property sold, and that a greater sum, as above specified, cannot be obtained, or if the in- creased bid mentioned in section fifteen hundred and fifty- two be made and accepted by the court, the court must make an order confirming the sale, and directing convey- ances to be executed. The sale, from that time, is confirmed SALES OF EEAL ESTATE AND CONFIRMATION. 857 and .valid, and a certified copy of the order confirming it and directing conveyances to be executed must be recorded in the office of the recorder of the county within which the land sold is situated. If, after the confirmation, the pur- chaser 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. Kerr's Oyc. Code Civ. Proc, § 1554. ANAIiOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 841, p. 318. Arizona. Eev. Stats. 1901, par. 1794. Colorado. 3 Mills's Ann. Stats., sec. 4766. Idaho.* Code Civ. Proc. 1901, sec. 4191. Kansas. Gen. Stats. 1905, § 3006. Montana.* Code Civ. Proc, sec. 2687. Nevada. Comp. Laws, see. 2928. New Mexico. Comp. Laws 1897, sees. 2084, 2085. North Dakota. Eev. Codes 1905, §§ 8140, 8141. Oklahoma. Eev. Stats. 1903, sec. 1669. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1179. South Dakota.* Probate Code 1904, § 218. Utah. Eev. Stats. 1898, sec. 3900. Washington. Pierce's Code, § § 2582, 2609. Wyoming. Eev. Stats. 1899, sec. 4796. § 557. Form. Objections to confirmation of sale of real estate. [Title of court.] A return of sale of certain real estate belonging to the estate of said deceased having been made and filed by , administrator ^ of the said estate, , one of the creditors * of said estate, now comes and opposes the confirmation of said sale on the grounds : That no notice of said sale was posted or published, as required by law ; 858 PROBATE LAW AND PRACTICE. That said sale was not legally made or fairly conducted ; * and That the price oflEered is disproportionate to the value of the property sold; and that a bid therefor of at least ten per cent more than the amount named in the said return, exclusive of the expenses of a new sale, can be obtained therefor. The contestant therefore asks that said sale be vacated, and that the court direct another sale to be had. , Attorney for Contestant. , Contestant. Explanatory notes. 1. Give file number. 2. Or, executor of the last win, etc. 3. Or, heirs at law, or residuary legatee under the will of , deceased. 4. State wherein this was so; such as mis- conduct of the auctioneer, or the executor's lack of business methods in advertising the sale, or any other irregularity in the proceedings prior to and leading up to the sale. § 558. Form. Order confirming sale of real estate. [Title of court.] fTitle of estate.] I^°- -TT', ^^P*" ^°: " -■ \ [Title of form.] Now comes , the of said estate, by Mr. , his attorney, and proves to the satisfaction of the court that his return of sale of real estate, under the order of sale hereinbefore made, was duly filed in the office of the clerk of this court on , the day of , 19 — ; that the clerk thereupon fixed , the day of , 19 — , as the day for the hearing thereof,, and gave due notice of said hearing by posting notices in form and man- ner as required by law ; ^ and thereupon, after examining the return and hearing the evidence, the court finds therefrom that said sale was legally made and fairly conducted; that notice of the time, place, and terms of said sale was duly given in manner and form as prescribed by law and by the order of this court, and that said notices/described said land as the same is hereinafter described ; ^ that the price obtained thereat was the reasonable value of the property «old, and that no greater sum can be obtained, and no per- son objecting thereto or offering a higher price, — SALES OF REAL ESTATE AND CONFIRMATION. 859 It is ordered by the court, That the sale of the real es- tate, hereinafter described, to for the sum of ■- dollars ($ ), in cash,* be, and the same is hereby, eon- firmed ; and upon payment of the price aforesaid,^ said , executor is directed to execute to said purchaser a deed of conveyance thereof. Said land is described as follows, to wit : ' Entered , 19 — , County Clerk. By , Deputy. Explanatory notes. 1. Give file number. 2. If continued, add, " and the hearing having been regularly postponed to this day." 3. If sale was private, add, " that said property was appraised within one year of said sale, and that the price obtained at such sale is at least ninety per cent of said appraised value." 4. Or, payable as follows (stating terms). 5. Or, upon compliance with the terms of said sale. 6. Give description. 559. Form. Order confirming sale of real estate on bid in open court. [Title of court.] [Title of estate.] P° ' ^^pt. No 1 [Title of form.] Now comes , the administrator^ of said estate, by his attorney, and proves to the satisfaction of the court that his return of sale of real estate, under the order of sale heretofore made, was duly filed in the office of the clerk of this court on the day of , 19 — ; that thereupon the clerk fixed the day of , 19 — , as the day for hearing thereof, and gave due notice of said hearing by posting notices in form and manner as required by law, and the matter having come regularly on for hear- ing,^ the court, after examining the return and hearing the evidence, finds that notice of the time, place, and terms of said sale was duly given in manner and form as prescribed by law and by the order of this court ; that said notices de- scribed said land as the same is hereinafter described ;* and that said sale was legally made and fairly conducted; and thereupon, in open court, , in writing, offered the sum of dollars ($ ) for said land, upon the terms pre- 860 PROBATE LAW AND PRACTICE. scribed in the order of sale, and he being a responsible person, the court accepted said offer and confirmed said sale to him accordingly. It is therefore ordered by the court, That the sale of said land, so made in open court, to said , for the sum of dollars ($ ), in cash," be, and the same is hereby, confirmed, and upon payment of the price " as aforesaid by said purchaser, the said , as administrator ' of said estate, is directed to execute to said purchaser a deed of conveyance of said land, which is described as follows, to wit : ' , Judge of the Court. Dated , 19 — Explanatory notes. 1. Give file number. 2. Or, executor. 3. Or, the hearing haying been regularly postponed to this day. 4. If the property was sold at private sale, say, " that said property was appraised within one year of the time of such sale, and that the price obtained at such sale is at least ninety (90) per cent of said appraised value." 5. Or, payable as follows (stating terms). 6. Or, compliance with the terms of sale. 7. Or, executor. 8. Describe the land. § 560. Form. Notice of motion to vacate sale of real estate, and for a resale thereof. [Title of court.] [Title of estate.^ i^"' I^L oft.m!]- — To 2 You are hereby notified, That the administrator ^ of the above-entitled estate will move the court, at the time and place hereinafter stated, to vacate, annul, and set aside the sale of certain real property of said estate hereinafter de- scribed, heretofore made to you by said administrator,* as well as the order confirming the sale of said property, on the ground that you have neglected and refused, and stiU neglect and refuse, to comply with the terms of sale, in that you have not paid to said administrator ^ the balance of the pur- chase price due from you to him for said property. Ton are further notified, That said administrator " will move the court, at said time and place, to order a resale of said property. SALES OF REAL ESTATE AND CONFIRMATION. 861 The real property sold as aforesaid, the sale of which is sought to be vacated, annulled, and set aside, is particularly described as follows, to wit : ' Said motion wUl be made on the day of , 19 — , at the hour of o'clock in the forenoon * of said day, at the court-room of said court, at ,° in said county " and state ; and will be based upon the papers on file herein,^^ the orders of court in the matter of the sr'd estate, and upon oral and documentary proofs to be made on the hearing of said motions. , Attorney for Administrator." Dat^d , 19 — E^lanatory notes. 1. Give file number. 2. Name of purchaser. 3-6. Or, executor, etc. 7. Give description. 8. Or, afternoon. 9. Give location of court-room. 10. Or, city and county. 11. The California statute requires that " if any such paper has not previously been served upon the party to be notified, and was not filed by him, a copy of such paper must accompany the notice." See Kerr's Cal. Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts.. p. 473), § 1010. 12. Or, executor. § 561. Form. Order for resale of real estate. [Title of court.] t-"— -J r-l^ieS^ormO — , administrator ^ of the estate of , deceased, hav- ing filed a motion in this court to vacate, annul, and set aside the sale of certain real property of said estate, herein- after described, and it being shown to the court that due notice of said motion has been given as required by law, and served upon , the person to whom said sale was made, and to whom it was thereafter confirmed ; and that said has neglected and refused, and still neglects and refuses, to comply with the terms of said ^ale, — It is ordered. That the sale of said property made by said administrator* to on , the day of , 19 , as well as the order made on , the day of , 19 , confirming said sale, be, and the same are hereby, vacated, annulled, and set aside; and that said ad- ministrator * proceed as if said sale and order of confirmation had never been made. 862 PROBATE LAW AND PRACTICE. The real property aforesaid, the sale of which is by this order vacated, annulled, and set aside, is particularly described as follows, to wit : Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2-4. Or, executor, ete. § 562. Conveyances. Conveyances must thereupon be exe- cuted fo 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 direct- ing 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 in the premises, other than or in addi- tion to that of the decedent at the time of his death, such right, title, or interest also passes by such conveyances. Kerr's Cyc. Code Civ. Proc, § 1555. ANAI.OGOUS AND IDENTICAI. STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 842, p. 318. Arizona.* Eev. Stats. 1901, par. 1795. Colorado. 3 Mills's Ann. Stats., sec. 4767. Idaho.* Code Civ. Proc. 1901, sec. 4192. Kansas. Gen. Stats. 1905, § 3007. Montana.* Code Civ. Proc, sec. 2688. Nevada. Comp. Laws, sec. 2929. New Mexico. Comp. Laws 1897, see. 2082.' North Dakota. Eev. Codes 1905, § 8142. Oklahoma. Eev. Stats. 1903, sec. 1670. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1180. South Dakota.* Probate Code 1904, § 219. Utah. Eev. Stats. 1898, sec. 3901. Washington. Pierce's Code, § 2583. Wyoming. Eev. Stats. 1899, sec. 4797. SALES OF SEAL ESTATE AND CONFIRMATION. 863 1 563. Form. Administrator's deed. This indenture, Made on the day of , 19 — , by and between as the duly appointed, qualified, and acting administrator^ of the estate of — , deceased, late of , the party of the first part, and , of , the party of the second part, — ^ Witnesseth, That, whereas, on the _-l_i_ day of '^\^-"-, 19 — , the court of the county ^ of , state of , made an order of sale authorizing the said party of the first part to sell certain real estate of the said , deceased, situate in the county ' of , state of , and particularly described in said order of sale, which said order is now on file and of record in the said court, and is hereby referred to for greater certainty; And whereas, under and by virtue of said order of sale, and pursuant to legal notices given thereof, the said party of the first part, on the —i^ — day of \h<^ , 19 — , at the time and place and in the manner specified in said notices, did offer for sale and sell, subject to confirmation by said court, to the party of the second part, the said real estate herein- after particularly described for the sum of dollars ($ ), he being the highest and best bidder,' and that being the highest and best sum bid ; And whereas the said court, upon the due and legal return of the proceedings under the said order of sale, made by the said party of the first part on the -ia — day of 'S ^ <>-^ 19.3^ and after due notice of hearing on said return given, did, on the 7-^ day of '--, i^ '-> 19-^ make an order decree- ing said sale to be valid aiid confiring said sale, and directing a conveyance to be executed to the said party of the second part,^ certified- copy of which order of confirmation was recorded in the oAce'of the county recorder of the county* of _^_^within which the said land sold is situate, on the I day of , 19 — , which said order of confirmation is now on file and of record in said court, which said record thereof in said recorder's office is hereby referred to for greater certainty;-^ Now, therefore, the said , as administrator ° of the estate of , decea.-ed, as aforesaid, the party of the first 864 PBOBATE LAW AND PEACTICB. part, pursuant to the order last aforesaid of the said court, for and in consideration of the sum of — — dollars ($ ) to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these pres- ents does grant, bargain, sell, and convey, unto the said party of the second part, his heirs and assigns forever, all the right, title, interest, and estate of the said , de- ceased, 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 said intestate at the time of his death, in and to all that certain lot, piece, or parcel of land lying and being in said county ' of , state of , and bounded and par- ticularly described as follows, to wit : ; ' together with all the tenements, hereditaments, and appurtenances whatso- ever to the same belonging, or in any wise appertaining. To have and to hold, all and singular, the above mentioned and described premises, together 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, as administrator * of the estate of said deceased, as aforesaid, has executed these presents the day and year first above written. , Administrator,* etc. [Seal] Signedi sealed, and delivered in the presence of - and Explanatory notes. 1. Or, executor of the last will, etc. 2-4. Or, city and covinty. 5. Or, executor, etc. 6. Or, city and county. 7. De- scribe the land. 8, 9. Or, executor, etc. § 564. Form. Acknowledgment of administrator's deed. State of , County^ of -}''- • On this day of , in the year one thousand nine hundred and (19 — ) , before me, , a notary public * in and for the said county * of , state of , appeared , personally known * to me to be the person whose name is subscribed to the foregoing instrument as the adminis- SALES OP REAL ESTATE AND CONPIEMATION. 865 trator " 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 at the said county ' of , the day and year in this certificate first' above written. ,. Notary Public, etc' Explanatory notes. 1. Or, City and County. 2. Or other officer authorized to take the proof of instruments. 3. Or, city and county. 4. Or, satisfactorily proved to me, by the oath of , a competent and credible witness upon the question of identity, to be the per- son, etc. 5, 6. Or, executor of the last will, etc. 7. Or, city and county. 8. Or other officer taking the oath. § 565. Form. Administrator's deed to one offering ten per cent advance. This indenture. Made on the day of , 19 — , by and between , the duly appointed, qualified, and acting administrator ^ of the estate of , deceased, and , both parties of the county ^ of , state of , — Witnesseth : That the court of the county * of , state of , having, on the — 2lA. day of " -^■'"^ 19^^-1, made . an order of sale, authorizing the said administrator * to sell certain real estate belonging to said estate, being the same as ° that hereinafter described, which order is now on file and of record in said court and is hereby referred to ; that said administrator,* under and by virtue of said order of sale, did, on the -^5 — day of . ifi-t g,, 19 — , and pursuant to legal notices given therefor, sell said real estate,^ subject to con- firmation by said court, to , for the sum of twenty thousand dollars ($20,000) ; that upon the hearing of the retur n of said sale, which came on regularly for hearing in this court, on the day of ,19 — , the said , the grantee herein, made his written offer in due form, of the sum of twenty-two thousand dollars ($22,000) for said realty, and that no further or greater sum was offered ; that on the day of , 19 — , said court made an order accepting said written offer, and confirming the sale of said property to said , and directing a conveyance to be executed to him ; that a certified copy of said order of con- Probate — 55 866 PEOBATE LAW AND PRACTICE. firmation of sale was recorded in the office of the county recorder of said comity * of , state of , on the day of , 19 — ; * and that said order of confirmation of sale is now on file and of record in said court, and which said record thereof in said recorder's office is hereby referred to and made a part hereof, the same as if incorporated herein. The said , administrator ^° of said estate, in pursuance of said order confirming the sale and directing a convey- ance to be executed to the said , and for and in consid- eration of the sum of twenty-two thousand dollars ($22,000), gold coin of the United States of America, to him in hand paid by the said , the receipt whereof is hereby acknowl- edged, has granted, bargained, sold, and conveyed, etc.'' , Administrator of the Estate of , Deceased. Explanatory notes. 1. Or, executor. 2, 3. Or, city and county. 4. Or, executor. 5. Or, including. 6. Or, executor. 7. Or, hereinafter described. 8. Or, city and county. 9. Give date, volume, and page of record. 10. Or, executor of the last will, etc. 11. As in § 563. § 566. Form. Executor's deed. This indenture, Made on the day of , 19 — , between , the duly appointed, qualified, and acting executor of the last wiU and testament of , deceased, and , both of the county ' of , state of , — Witnesseth : That the said court of the county '' of , state of , having, on the day of , 19- made an order admitting a certain instrument, in writing, to probate as the last will and testament of said , deceased, which said order is hereby referred to and made a part hereof, the same as if incorporated herein ; that, by the terms of said last will and testament, to which reference is hereby made, the real estate hereinafter described was directed to be sold; that, under and by virtue of said authority contained iQ said last will and testament, the said executor, on the day of , 19 — , sold said real estate, subject to confirmation by said court, to the said , for the sum of dollars ($ ) ; and that ' said court, on the day of , 19 — , made an order confirming said sale, and SALES OF EEAL ESTATE AND CONFIRMATION. 867 directing a conveyance to be executed to the said , a certified copy of which order of confirmation was recorded in the office of the county recorder of the county * of , state of , on the day of , at ,° and which said order of confirmation is now on file and of record in said court, and which said record thereof in said recorder's office is hereby referred to for greater cer- tainty ; — Now, therefore, the said , executor of the last will and testament of , deceased, pursuant to said order confirming said sale and directing a conveyance to be exe- cuted to the said , and for and in consideration of the sum of dollars ($ ) , gold coin of the United States of America, to him in hand paid by the said , the receipt whereof is hereby acknowledged, has granted, etc.* , Executor of the Estate of , Deceased. Explanatory notes. 1, 2. Or, city and county. 3. In ease it is desired to refer to the return, insert: " on the day of 1, 19 , said executor filed, in said court, his verified return of said sale, and, after due notice given of the hearing on said return." 4. Or, city and county. 5. Give exact time, and volume and page of record. 6. Continue as in § 563, substituting " executor," etc., for " adminis- trator." § 567. 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. Kerr's Oyc. Code Civ. Proc, § 1556. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1796. Colorado. 3 Mills's Ann. Stats., sec. 4764. Idaho.* Code Civ. Proc. 1901, sec. 4193. Montana.* Code Civ. Proc, sec. 2689. Nevada.* Comp. Laws, sec. 2930. North Dakota.* Eev. Codes 1905, § 8143. Oklahoma.* Kev. Stats. 1903, see. 1671. South Dakota.* Probate Code 1904, § 220. Washington.* Pierce's Code, §2584. 868 PROBATE LAW AND PRACTICE. § 568. 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 exceed- ing in all three months. Kerr's Cyc. Code Civ. Proc, § 1557. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1797. Colorado. 3 Mills's Ann. Stats., see. 4763. Idaho.* Code Civ. Proc. 1901, sec. 4187. Montana.* Code Civ. Proc, sec. 2690. Nevada. Comp. Laws, sec. 2931. North Dakota. Eev. Codes 1905, § 8137. Oklahoma. Eev. Stats. 1903, sec. 1672. South Dakota. Probate Code 1904, § 221. Utah. Eev. Stats. 1898, sec. 3897. Washington. Pierce's Code, § 2577. Wyoming.* Eev. Stats. 1899, sec. 4798. § 569. Notice of postponement. In case of a postpone- ment, 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 notice must be given, by posting notices in three or more public places in the county where the land is situated, or publish- ing the same, or both, as the time and circumstances will admit. Kerr's Cyc. Code Civ. Proc, § 1558. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1798. Idaho.* Code Civ. Proc. 1901, sec. 4188. Montana.* Code Civ. Proc, see. 2691. Nevada.* Comp. Laws, sec. 2932. North Dakota. Eev. Codes 1905, § 8137. Oklahoma.* Eev. Stats. 1903, sec. 1673. South Dakota.* Probate Code 1904, § 222. Utah. Eev. Stats. 1898, sec. 3897. Washington. Pierce's Code, § 2578. Wyoming. Eev. Stats. 1899, see. 4799. § 570. Payment of debts, etc., according to provisions of will. If the testator makes provision by his will, or desig- SALES OP KEAL ESTATE AND CONFIRMATION. 869 nates 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 designa- tion, out of the estate thus appropriated, so far as the same is sufficient. Kerr's Cyc. Code Civ. Proc, § 1560. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 844, p. 319. Arizona.* Eev. Stats. 1901, par. 1799. Idaho.* Code CIt. Proe. 1901, sec. 4194. Kansas. Gen. Stats. 1905, §§2997, 8726, 8728. Montana.* Code Civ. Proc, see. 2692. Nevada.* Comp. Laws, sec. 2934. North Dakota.* Eev. Codes 1905, § 8094. Oklahoma.* Eev. Stats. 1903, sec. 1674. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1182. South Dakota.* Probate Code 1904, § 223. Washington.* Pierce's Code, §2586. Wyoming.* Eev. Stats. 1899, see. 4800. § 571. Sales without order, under provisions of will. 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 private sale, and with or without notice, as the executor may determine ; but the executor must make, return of such sales as in other cases; and if directions are given in the wiU as to the mode of selling, or the particular property to be sold, such directions must be observed. In either case no title passes unless the sale be confirmed by the court. Kerr's Cyc, Code Civ. Proc, § 1561. ANALOGOUS AND IDENTICAL STATUTES Tlie * indicates identity. Alaska. Carter's Code, sec. 844, p. 319. Arizona.* Eev. Stats. 1901, par. 1800. Colorado. 3 Mills's Ann. Stats., sec. 4747. Idaho.* Code Civ. Proc. 1901, sec. 4195. Kansas. Gen. Stats. 1905, § 3011. Montana.* Code Civ. Proc, sec. 2693. Nevada. Comp. Laws, sec. 2935. New Mexico. Comp. Laws 1897, sees. 1960, 2063. [Title of estate.] 870 PROBATE LAW AND PEACTICE. North Dakota.* Bev. Codes 1905, § 8144. Oklahoma.* Eev. Stats. 1903, see. 1675. Oregon. BeUinger and Cotton's Ann. Codes and Stats., § 1182. South Dakota.* Probate Code 1904, § 224. Utah.* Eev. Stats. 1898, sec. 3881. Washington.* Pierce's Code, § 2600. Wyoming.* Eev. Stats. 1899, sec. 4801. § 572. Form. Order confirming sale of real estate under will. [Title of court.] J No. 1 Dept. No. t [Title of form.] Now comes , the executor of said estate, by Mr , his attorney, and proves to the satisfaction of the court that his return of sale of real estate, made under the authority given in the will of said deceased filed in the office of the clerk of this court on , 19 — ; that the clerk thereupon fixed the day of , 19 — , as the day for the hearing thereof, and gave due notice of said heariag by posting notices in form and manner as required by law; and the matter having come regularly on for hearing,^ the court, after examining the return and hearing the evidence, finds therefrom that said sale was legally made and fairly con- ducted, and in aU respects according to the directions given in the said will as to the mode of selling the same ; ' that notice of the time, place, and terms of said sale was duly given in manner and form as prescribed by law and by the order of this court, and that said notices described said land as the same is hereinafter described ; that the price obtained thereat was the reasonable value of the property sold; and that no greater sum can be obtained, and no person objecting thereto or offering a higher price ; — It is ordered by the court. That the sale, so made, of the real estate hereinafter described to for the sum of dollars ($ ) in cash,* be, and the same is hereby, con- firmed ; and upon payment of the price ° aforesaid, the said executor is directed to execute forthwith to said purchaser a deed of conveyance thereof. SALES OF REAL ESTATE AND CONFIEMATION. 871 Said land is described as follows, to wit : • Entered , 19 — , County Clerk. By , DeputyJ Explanatory notes. 1. Give file number. 2. If the matter has been continued, say, " the hearing having been regularly postponed to this day." 3. If the property was sold at private sale, say, " that said property was appraised within one year of the time of such sale, and that the price obtained at such sale is at least ninety (90) per cent of said appraised value." 4. Or, payable as follows (stating the terms). 5. Or, compliance with the terms of sale. 6. Describe land sold. 7. Orders need not be signed: See note, § 77, ante. § 573. Where provision by will insufficient. If the pro- vision 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. Kerr's Oyc. Code Civ. Proc, § 1562. ANAX-OGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 845, p. 319. Arizona.* Eev. Stats. 1901, par. 1801. Idaho.* Code Civ. Proc. 1901, sec. 4196. Kansas. Gen. Stats. 1905, § 8726. Montana.* Code Civ. Proc, sec. 2694. Nevada.* Comp. Laws, sec. 2936. North Dakota. Kev. Codes 1905, § 8095. Oklahoma.* Eev. Stats. 1903, sec. 1676. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1183. South Dakota.* Probate Code 1904, § 225. Washington. Pierce's Code, § 2588. ' Wyoming.* Eev. Stats. 1899, see. 4802. § 574. Liability of estate for debts. 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 872 PROBATE LAW AND PRACTICE. into effect the intention of the testator, and there is other sufficient estate. Kerr's Cyc. Code Civ. Proc, § 1563. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. , Carter's Code, see. 846, p. 319. Arizona. Eev. Stats. 1901, par. 1802. Idaho.* Code Civ. Proc. 1901, sec. 4197. Kansas. Gen. Stats. 1905, § 8728. Montana.* Code Civ. Proc, sec. 2695. Nevada.* Comp. Laws, sec. 2937. North Dakota.* Eev. Codes 1905, § 8096. Oklahoma.* Eev. Stats. 1903, sec. 1677. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1184. South Dakota.* Probate Code 1904, § 226. Washington. Pierce's Code, § 2589. Wyoming.* Eev. Stats. 1899, sec. 4803. § 575. 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 contribute ac- cording 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 de- cree the amount each person shall contribute, and reserve the same from their distributive shares, respectively, for the purpose of paying such contribution. Kerr's Cyc. Code Civ. Proc, § 1564. ANALOGOUS AND IDENTICAL STATUTES. Tile * indicates identity. Alaska. Carter's Code, sec. 162, p. 384. Arizona.* Eev. Stats. 1901, par. 1803. Idaho.* Code Civ. Proc. 1901, sec. 4198. Kansas. Gen. Stats. 1905, § 8727. Montana.* Code Civ. Proc, sec. 2696. Nevada. Comp. Laws, sec. 2938. North Dakota.* Eev. Codes 1905, § 8145. Oklahoma.* Eev. Stats. 1903, sec. 1678. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5574. South Dakota.* Probate Code 1904, § 227. Utah. Eev. Stats. 1898, sec. 2805. Washington. Pierce's Code, §§ 2357, 2358, 2590. Wyoming.* Eev. Stats. 1899, sec. 4804. SALES OP EBAL ESTATE AND CONFIRMATION. 873 § 576. Contract for purchase of land may be sold how. 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 application 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 chap- ter for the sale of lands of which he died seised, except as hereinafter provided. Kerr's Cyc. Code Civ. Proc, § 1565. ANALOGOUS AND IDENTICAI. STATUTES. The * indicates identity, Alaska. Carter's Code, see. 847, p. 319. Arizona.* Eev. Stats. 1901, par. 1804. Idaho.* Code Civ. Proc. 1901, sec. 4199. Montana.* Code Civ. Proc, sec. 2697. Nevada.* Comp. Laws, sec. 2939. North Dakota.* Rev. Codes 1905, §8146. Oklahoma.* Eev. Stats. 1903, sec. 1679. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1185. South Dakota.* Probate Code 1904, § 228. Utah. Eev. Stats. 1898, -sec. 3902. Washington.* Pierce's Code, § 2591. Wyoming.* Eev. Stats. 1899, sec. 4805. § 577. Form. Order confirming sale of contract to pur- chase land. [Title of court.] [Title of estate:] \^° ' ^^P*- ^o ( [Title of form.] Now comes , the administrator ^ of said estate, by Mr. , his attorney, and proves to the satisfaction of the court that his return of sale of the contract to purchase land, under the order of sale hereinbefore made, was duly filed in the office of the clerk of the court on , the day of , 19 — ; that the clerk thereupon fixed the day of , 19 — , as the day for the hearing thereof, and gave due notice of said hearing by posting notices in form and manner as required by law ; ^ and the court thereupon, after examining the return and hearing the evidence, finds there- from that said sale was legally made and fairly conducted; that notice of the time, place, and terms of said sale was duly 874 PROBATE LAW AND PRACTIGE. given in manner and form as prescribed by law and by the order of this court; and that said notices described said contract to purchase land as the same is hereinafter de- scribed ; * that the price obtained thereat was the reasonable value of the property sold ; and that no greater sum can be obtained; and no person objecting thereto or offering a higher price ; ° And the said purchaser having executed a bond to the said , as administrator * of said estate for the benefit and indemnity of said administrator,' and of the persons entitled to the interest of the decedent in the land so con- tracted for, in the sum of dollars ($ ), the same being double the whole amount of payments hereafter to become due on said contract, and conditioned as required by law, and the court having approved said bond and the sure- ties thereon, the said sale is now confirmed ; — It is therefore ordered by the court, That said sale, so made to for the sum of dollars ($ ), of the contract of purchase possessed by said decedent hereinafter described, be in all things confirmed, and that upon payment of said price the said administrator ° shall execute to said'purchaser an assignment of said contract, the same being described as follows, to wit: * , County Clerk. Entered , 19 — . By , Deputy.^" Explanatory notes. 1. Give file number. 2. Or, executor. 3. If the matter has been continued, say, " and the hearing having been regularly postponed by the court to this day.'' 4. If sold at private Bale, say, " that said property was appraised within one year of the time of such sale, and that the price obtained at such sale is at least ninety (90) per cent of said appraised value." 5. If any pay- ments are to become due, insert, " that said sale was made subject to all payments that may thereafter become due on said contract." 6-8. Or, executor. 9. Describe the contract, according to its legal effect, giving times of payment, amounts of each, etc., with a descrip- tion of the land. 10. Orders need not be signed: See note, § 77, ante. § 578. Same. Conditions of sale. The sale must be made subject to all payments that may thereafter become due on such contracts, and if there are any such, the sale must not be confirmed by the court until the purchasers execute a SALiES OP REAL ESTATE AND CONFIRMATION. 875 bond to the executor or administrator for the benefit and indemnity of himself and of the persons entitled to the inter- est 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. Kerr's Cyc. Code Civ. Proc, § 1566. ANAIiOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 848, p. 319. Arizona.* Rev. Stats. 1901, par. 1805. Idaho.* Code Civ. Proc. 1901, sec. 4200. Montana.* Code Civ. Proc, sec. 2698. Nevada.* Comp. Laws, sec. 2940. North Dakota. Rev. Codes 1905, § 8147. Oklahoma.* Rev. Stats. 1903, sec. 1680. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1186. South Dakota.* Probate Code 1904, § 229. Utah. Eev. Stats. 1898, see. 3903. Washington.* Pierce's Code, § 2592. Wyoming.* Eev. Stats. 1899, sec. 4806. § 579. Same. 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 persons so entitled against all demands, costs, charges, and expenses, by reason of any covenant or agreement con- tained in such contract. Kerr's Cyc. Code Civ. Proc, § 1567. ANALOGOUS AND IDENTICAL STATUTES. * The * indicates identity. Alaska. Carter's Code, sec. 848, p. 319. Arizona.* Eev. Stats. 1901, par. 1806. Idaho.* Code Civ. Proc. 1901, sec. 4201. Montana.* Code Civ. Proc, sec. 2699. Nevada. Comp. Laws, see. 2941. North Dakota. Eev. Codes 1905, § 8147. Oklahoma.* Eev. Stats. 1903, see. 1681. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1186. South Dakota.* Probate Code 1904, § 230. Utah. Eev. Stats. 1898, see. 3908. Washington. Pierce's Code, § 2593. Wyoming.* Eev. Stats. 1899, sec. 4807. 876 PROBATE LAW AND PRACTICE. § 580. Form. Bond on sale of contract for purchase of land. [Title of court.] [Title of estate.] I^"' -^^ir'', ^!^t ^°; ■" \ [Title of form.] Know all men by these presents, That as principal, and and as sureties, are held and firmly bound in the sum of dollars ($ ) unto , administrator ' of the estate of , deceased, for the benefit and indemnity of himself and of the persons entitled to the interest of said decedent in the lands contracted for as hereinafter stated, to be paid to the said , or his successors, heirs, or such persons interested, or their 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. The condition of the above obligation is such, that, whereas the said , deceased, was at the time of his death pos- sessed of a contract for the purchase of certain lands, partic- ularly described as follows, to wit: ; and whereas the said contract has, by order of said court, been sold to ; and whereas the said purchaser has agreed to perform all of the covenants in said contract agreed to be performed by the said , deceased, and to make aU payments now due, or which shall become due thereon; — Now, therefore, if the said * will well and truly make all payments for such lands that become due after the date of such sale, namely, the day of , 19 , and will fully indemnify the administrator,* and the persons entitled to ttie interest of the decedent in the lands so con- tracted for, against aU demands, costs, charges, and expenses, by reason of any covenant or agreement contained in such contract, then this obligation is to be void; otherwise to remain in full force and effect. Dated, signed, and sealed with our seals this day of , 19^ [Seal] [Seal] [Seal] Explanatoiy notes. 1. Give file number. 2. Or, executor. 3. Pur- chaser. 4. Or, executor. SALES OF EEAL ESTATE AND CONFIRMATION. 877 § 581. Same. Executor to assign contract. Upon the con- firmation of the sale, the executor or administrator must execute to the purchaser an assignment of the contract, which vests in the purchaser, his heirs and assigns, all the right, title, and interest of the estate, or of the persons entitled 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 dece- dent would have had if he were living. Kerr's Cyc. Code Civ. Proc, § 1568. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 849, p. 320. Arizona.* Rev. Stats. 1901, par. 1807. Idaho.* Code Civ. Proc. 1901, sec. 4202. Montana.* Code Civ. Proc, sec. 2700. Nevada. Comp. Laws, sec. 2942. North Dakota.* Eev. Codes 1905, § 8148. Oklahoma.* Bev. Stats. 1903, sec. 1682. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1187. South Dakota.* Probate Code 1904, § 231. Utah.* Kev. Stats. 1898, sec. 3904. Washington. Pierce's Code, § 2594. Wyoming.* Eev. Stats. 1899, sec. 4808. § 582. Sales of land under mortgage or lien. When any sale is made by an executor or administrator, pursuant to provisions of this chapter, of lands subject to any mort- gage 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 necessary expenses of the sale, first, to the payment and satisfaction of the mortgage or lien, and the residue, if any, in due course of administration. 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 mort- gage or lien until the purchase-money has been actually so applied. No claim against any estate, which has been pre- sented 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 878 PROBATE LAW AND PEACTICE. 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 payment 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. Kerr's Cyc. Code Civ. Proc, § 1569. ANAI.OGOUS AND IDENTICAIi STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 852, p. 320. Arizona.* Eev. Stats. 1901, par. 1808. Idaho.* Code Civ. Proc. 1901, see. 4203. Kansas. Gen. Stats. 1905, § 3009. Montana.* Code Civ. Proc, see. 2701. Nevada. Comp. Laws, sec. 2943. North Dakota. Eev. Codes 1905, §§ 8120, 8149. Oklahoma. Eev. Stats. 1903, sec. 1683. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1190. South Dakota.* Probate Code 1904, § 232. Utah. Eev. Stats. 1898, sees. 3859, 3905. Washington. Pierce's Code, § 2597. Wyoming.* Eev. Stats. 1899, sec. 4809. § 583. Same. Holder of mortgage or lien may purchase land. Receipt as pajrment. At any sale, tmder order 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 tanto. If the amount for which he purchased the property is insufficient to defray the expenses and dis- charge his mortgage or lien, he must pay to the court, or the clerk thereof, an amount sufficient to pay such expenses. Kerr's Cyc. Code Civ. Proc, § 1570. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1809. Idaho.* Code Civ. Proc. 1901, sec. 4204. SALES OF KEAL ESTATE AND CONFIBMATION. 879 Montana.* Code Civ. Proc, sec. 2702. North Dakota. Eev. Codes 1905, § 8150. Oklahoma. Eev. Stats. 1903, sec. 1684. South Dakota.* Probate Code 1904, § 233. Utah.* Eev. Stats. 1898, sec. 3906. Wyoming.* Eev. Stats. 1899, see. 4810. § 584. Misconduct in sale. Liability. If there is any neglect or misconduct in the proceedings of the executor in relation to any sate, by which any person interested in the estate suffers damage, the party aggrieved may recover the same in an action upon the bond of the executor or admin- istrator, or otherwise. Kerr's Cyc. Code Civ. Proc, § 1571. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1810. Idaho.* Code Civ. Proc. 1901, sec. 4207. Montana.* Code Civ. Proc, sec. 2703. Nevada.* Comp. Laws, sec. 2945. North Dakota. Eev. Codes 1905, § 8150. Oklahoma.* Eev. Stats. 1903, sec. 1685, South Dakota.* Probate Code 1904, § 234. Utah.* Eev. Stats. 1898, sec. 3882. Washington. Pierce's Code, § 2598. Wyoming.* Eev. Stats. 1899, sec. 4811. § 585. Fraudulent sales. Any executor or administrator who fraudulently sells any real estate of a decedent contrary to or otherwise than imder the provisions of this chapter, is liable in double the value of the land sold, as liquid«,ted damages, to be recovered in an action by the person having an estate of inheritance therein. Kerr's Cyc. Code Civ. Proc, §1572. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1811. Colorado. 3 Mills's Ann. Stats., sec. 4769. Idaho. Code Civ. Proc. 1901, sec. 4208. Montana.* Code Civ. Proe., see.' 2704. Nevada. Comp. Laws, sec. 2946. North Dakota.* Eev. Codes 1905, § 8166. Oklahoma.* Eev. Stats. 1903, sec. 1686. South Dakota.* Probate Code 1904, § 235. 880 PROBATE LAW AND PEACTICE. Utah* Eev. Stats. 1898, sec. 3907. Washington. Pierce's Code, § 2599. Wyoming.* Eev. Stats. 1899, sec. 4812. § 586. Limitation of actions for vacating sale, etc. No action for the recovery of any estate sold by an executor or administrator, under the provisions of this chapter, can be maintained by any heir or other person claiming tinder 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 insti- tuted and maintained at any time within three years from the discovery of the fraud, or other grounds upon which the action is based. Kerr's Cyc. Code Civ. Proc, § 1573. ANALOGOUS AND IDENTICAIi STATUTES. The * indicates identity. Arizona. Bev. Stats. 1901, par. 1812. Colorado. 3 Mills's Ann. Stats., see. 4770. Idaho. Code Civ. Proc. 1901, sec. 4205. Montana.* Code Civ. Proc, sec. 2705. Nevada. Comp. Laws, see. 2947. North Dakota. Eev. Codes 1905, §§ 8151, 8171. Oklahoma. Eev. Stats. 1903, sec. 1687. South Dakota. Probate Code 1904, § 236. Wyoming.* Eev. Stats. 1899, sec. 4813. § 587. 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 aU such persons may commence an action at any time within three years after the removal of the disability. Kerr's Cyc. Code Civ. Proc, § 1574. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1813. Colorado. 3 Mills's Ann. Stats., sec. 4770. Idaho.* Code (!iv. Proc. 1901, see. 4206. Montana.* Code Civ. Proc, sec. 2706. Nevada. Comp. Laws, see. 2947. North Dakota.* Eev. Codes 1905, § 8172. Oklahoma.* Eev. Stats. 1903, see. 1688. South Dakota.* Probate Code 1904, § 237. Wyoming.* Eev. Stats. 1899, sec. 4814. SAIiES OF REAL ESTATE AND CONFIRMATION. 881 § 588. Account of sale to be returned. When a sale ha& been made by an executor or administrator of any property of the estate, real or personal, he must return to the court, within thirty days thereafter, an account of sales, verified by his affidavit, or in case of his absence from the county, or other inability, by the affidavit of his attorney. If he ne- glects to make such return, he may be punished by attach- ment, or his letters may be revoked, one day's notice having been first given him to appear and show cause why such attachment should not issue, or such revocation should not be made. Kerr's Cyc. Code Civ. Proc, § 1575. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, sec. 840, p. 318. Arizona. Eev. Stats. 1901, par. 1814. Colorado. 3 Mills's Ann. Stats., sec. 4764 Idaho. Code Civ. Proc. 1901, sec. 4209. Montana. Code Civ. Proc, sec. 2707. Nevada. Comp. Laws, sees. 2927, 2948. New Mexico. Comp. Laws 1897, sec. 2083. North Dakota. Bev. Codes 1905, § 8152. Oklahoma. Eev. Stats. 1903, sec. 1689. Oregon. Bellinger and Cotton's Ann. Codes and Stats., 1 1178. South Dakota. Probate Code 1904, § 238. Utah. Eev. Stats. 1898, sees. 3883, 3898. Washington. Pierce's Code, §§ 2580, 2607, 2751. Wyoming. Eev. Stats. 1899, sec. 4815. § 589. Form. Order to show cause why letters should not be revoked for failure to return account of sales. [Title of court.] rm-i.1 t 4. 4. ^ (No. 1 Dept. No. ITxtle of estate.] { ^^.^^^ J^^^^^ It being shown to the court " that the administrator ^ of the above-entitled estate has sold property of such estate, and has neglected, for more than thirty (30) days* after the making of such sale, to return an account thereof, — It is ordered, That the clerk of this court give the said , administrator ° as aforesaid, notice ° to appear before this court on ,'' the day of , 19 — , and show Probate — 66 882 PROBATE LAW AND PKAOTICE. cause, if any lie can, why his letters " should not be revoked for such failure. , Judge of the Court. Explanatory notes. 1. Give file number. 2. By the affidavit of 3. Or, executor, etc., according to the fact. 4. Or other time prescribed by statute. 5. Or as the ease may be. 6. One day's notice, at least, is required. 7. Day of week. 8. Of administration, or letters testamentary, according to the fact. § 590. Form. Order to show cause why attachment should not issue for failure to return account of sales. [Title of court.] LTitle of estate.] i^"' —-J^ ^^^^ ^°- *• ■" \ [Title of form.] It being shown to the court '' that the administrator' of the above-entitled estate has sold property of such estate, and has neglected for more than thirty (30) days * after the making of such sale to return an account thereof, — It is ordered, That the clerk of this court give the said , administrator,^ as aforesaid, notice * to appear before this court, at the court-room thereof,' on ,* the day of , 19 — , at o'clock in the forenoon " of that day, and show cause, if any he can, why an attachment should not issue to compel him to make such return. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. By the af&davit of 3. Or, executor, etc., according to the fact. 4. Or other time prescribed by statute. 5. According to the fact. 6. One day's notice, at least, is required. 7. Give number of department, if any, and location of court-room. 8. Day of week. 9. Or, afternoon. § 591. Form. Order for attachment for neglecting to return account of sales. [Title of court.] [Title of estate.] (No. i Dept. No *■ ( [Title of form.] It appearing to the court that , the administrator ' of the estate of , deceased, has neglected for thirty (30) days ' to make a return of sale of property of said estate SALES OF EEAL ESTATE AND CONFIEMATION. 883 sold by him on the day of , 19 — ; that a citation has been issued requiring the said to. appear and show cause why an attachment should not issue as directed in said citation, and it further appearing that said citation has been served and returned in the manner and form provided by law, and the direction of this court ; — It is ordered, That a warrant of attachment issue, and that the said be arrested and brought before this court to show cause, if any he can, why he should not be commited for contempt of court in disobeying said citation. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Crive file number. 2. Or, executor, etc., according to the fact. 3. Or other time prescribed by the statute § 592. Executor, etc., not to be purchaser. No executor or administrator must, directly or indirectly, purchase any property of the estate he represents, nor must he be inter- ested in any sale. Kerr's Cyc. Code Civ. Proc, § 1576. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sec. 855, p. 321, Arizona. Eev. Stats. 1901, par. 1815. Colorado. 3 Mills's Ann. Stats., sec. 4763. Idaho. Code Civ. Proc. 1901, sec. 4210. Kansas. Gen. Stats. 1905, § 3004. Montana.* Code Civ. Proc, sec. 2708. Nevada. Comp. Laws, sec. 2949. New Mexico. * Comp. Laws 1897, sees. 1960, 2081. North Dakota. Eev. Codes 1905, § 8152. Oklahoma.* Eev. Stats. 1903, sec. 1690. Oregon. Bellinger and Cotton's Ann. Codes and Stats., 5 1193. South Dakota.* Probate Code 1904, § 239. Utah.* Eev. Stats. 1898, sec. 3884. Wyoming.* Eev. Stats. 1899, sec. 4816. 884 PROBATE LAW AND PRACTICE. PROBATE SAI.ES. I. Nature of Jurisdiction. Law GoTernins. 1. Nature of proceedings. (1) In general. (2) Proceedings are statutory, (3) Policy of law as to titles. 3. 2. Jurisdiction. (1) Wlien acquired. (2) Nature and extent. n. Sales of Real and Personal 1. Property capable of sale in general. (1) Bule at common law. (2) Sule under codes and stat- utes. (3) Bule where personalty is in- sufficient. 2. Particular Interests In property. (1) Sales of mines and mining Interests. (2) Sale of property subject to lease. (3) Sale of partnership interests. (4) Sale of community interests. (6) Homestead under United States land laws. (6) Sale of contracts tor pur- chase of realty. (7) Property under mortgage or other lien. (8) Same. Application of pur- chase-money. (9) Choses in action. 3. When sale is not authorized. 4. Petition for order, (1) In general. (2) Defects. Mistakes. Omissions. (5) May he made when. Laches in filing. (4) Parties to the proceeding. (5) Necessity for sale. (6) Condition of property. (7) Description of property, (8) Beference to other papers. (9) Verifying the petition. (10) Amending the petition, (11) Defects cured by the order of sale. (3) Basis of jurisdiction. (4) Not dependent on truth of petition. Law governing probate sales. (1) In general. (2) Statute of frauds. (3) Statute of limitations. nal Property in General. (12) Defects not cured by the or- der. (13) Creditor's petition. 6. Opposing the application. (1) In general. (2) Demurrer to the petition. 6. Sale for payment of debts. (1) In general. (2) Contesting debts on the hearing. (3) "Demand." When not k debt or claim. (4) Expenses of administration. 7. Sale to pay funeral expenses. 8. Specific devises to contribute to payment of debts. 9. Sale to pay legacies. 10. Sale for best interests of the es- tate. 11. Order to show cause. Notice of hearing. (1) In general. (2) Service of notice. 12. Hearing. (1) Demand for Jury trial of issues. (2) Questions not considered. (3) Findings. 13. Notice after appeal. 14. Order of sale. (1) In general. (2) VaUdlty of. 16. Notice of sale. (1) In general. (2) Publication. 16. Ordering resale. 17. Nunc pro tunc order of sale. SALES OF KEAL ESTATE AND CONPIEMATION. 885 18. 19. no. 21. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. Public sale. Ifilvate sale. Betarn of sales. Iriegularlties In sales. Mutual mis- take. Fraudulent sales. Ezecutoi purchasing at his own sale. (1) Generally prohibited. (2) Invalidity of such purchase. Bemedy. (3) Such purchase is not void when. Substitution of purchasers. Illegal contracts with executor or administrator. Irregularities cured by retroactive acts. Sales by guardian. Sales by foreign executor. Exchange is not a sale. Sales without order. Title conveyed by sale. Bona fide purchasers. (1). Bights of. (2) How affected by adverse pos- session. Necessary sale is valid when. Voidable sales. Void sales. Vacating sales. Bights of heirs. (1) In general. (2) Heirs under guardianship. (3) Actions by heirs in general to set aside sales. (4) Actions by minor heirs to set aside sales. 38. Sales under power in the will. (1) In general. (2) No implied power when. (3) Discretion of executor. (4) For best interests of estate. (5) Devesting estate. (6) Agent to sell. > Compensation. (7) Purchasers. Estoppel. (8) Validity of sale. (9) Equitable conversion. Elec- tion for reconvc sion. (10) Devise in trust with power to sell. (11) Directions coupled with the trust. Effect of. (12) Power passes to adminis- trator with will annexed. (13) Particular sales under power in the wiU. (14) Purchase by executor failing to qualify. (16) Betnrn of sales under power in will. Confirmation. 39. Sale of pretermitted child's inter- est. 40. Limitation of actions for vacating sale. m. Conflrmation of 1. Discretion of court as to confirma- tion. 2. Authority to confirm, when pre- sumed. 3. When required. 4. When not required. 6. No power to confirm when. 6. Objections to confirmation. 7. Effect of the order. 8. Befusing confirmation. Effect of the order. Sales and Conveyances. 9. Befusal to report sale for conflrma- , tion. Effect of. 10. Action to set aside confirmation. 11. Conveyance. (1) In general. (2) May be ordered when. (3) Is individual deed when. (4) Conditions not to be im- posed. (6) Title carried by. (6) Is void when. (7) Mandate to compel. 886 PROBATE LAW AND PRACTICE. IV. Diiect and Collateral Attack npon Sales. 1. Direct attack In general. (2) Wbat cannot be questioned. 2. Distinction between direct and col- (3) Presumptions on. lateral attack. (4) What is good on collateral 3. Collateral attack. attack. (1) In general. V. Appeal. 1. In general. 6- Affirming the order of sale on ap- 2. Non-appealable orders. peal. 3. Appealable orders. 7. Becord on appeal. 4. Parties interested or aggrieved. 8. Decree. Effect of, on appeal. 5. Parties not Interested or aggrieved. 9. Bes Judicata. Law of the case. I. NATUBE OF JUBISDICTION. I.AW GOVEBNINO. 1. Natuie of proceedings. (1) In general. One prominent purpose of administration is to pay the debts of the estate from the real and personal property of the deceased. The administrator is, by law, charged with this duty. To sell real estate of the decedent to pay the debts is as plainly a step in the administration as is the sale of personal property for the same purpose. But, although it is within the scope of the administration to sell either real or personal property, the legislature has power to direct how this shall be done: Burris v. Kennedy, 108 Cal. 331, 338; 41 Pac. Kep. 458. The application of the executor or of an administrator for the sale of lands belonging to the estate is a special and independent proceeding. The jurisdiction of the probate court depends absolutely on the sufficiency of the petition; in other words, on its substantial compliance with the requirements of the statute. Though the pro- ceeding for a sale occurs in the general course of administration, it is a distinct proceeding in the nature of an action in which the petition is the commencement and the order of sale is the judgment: Pryor v. Downey, 50 Cal. 388, 398; 19 Am. St. Eep. 656. What is meant when it is said that an application to sell real estate of a decedent is an independent proceeding is, simply, that it is essential that the application should be made substantially as provided by statute; otherwise the court has no power to order the sale, or the administrator to sell: Burris v. Kennedy, 108 Cal. 331, 338; 41 Pac. Eep. 458. While an application to sell real estate of a deceased person does partake somewhat of the nature of an action, it is not, in any sense of the term, an action to recover real estate, or the possession of it. Nor is it an action arising out of the title thereto, or the rents and profits thereof: In re Tuohy's Estate, 33 Mont. 230; 83 Pac. Eep. 486. In Colorado, the proceeding to sell real estate of a decedent is separate and distinct from the administration of the estate proper, and is a special proceeding recognized by the statute: Kyan v. Geigel (Col.), 89 Pac. Eep. 775. The rule that the applica- SALES OF EEAL ESTATE AND CONEIEMATION. 887 tion of the administrator for the sale of lands belonging to the estate of a decedent is an independent proceeding; that the jurisdic- tion of the probate court over such sale does not come from its gen- eral jurisdiction over the administration of the estate, but from the petition for the sale; and that the petition must comply with the requirements of the code, — is not changed by the provisions of the present constitution, which give jurisdiction of probate business to a court of general jurisdiction, or by the fact that the code no longer requires a deficiency of personal property to be shown before there can be any valid sale of real property: Eichardson v. Butler, 82 Cal. 174, 176; 23 Pae. Eep. 9; 16 Am. St. Eep. 101. So long as the administration of the estate is pending, the executors are at all times subject to the control and direction of the superior court, and that court may at any time order a sale of the lands, if necessary for the payment of creditors, or when it will be for the advantage of those interested in the estate, or when they assent to its sale. There is therefore no point of time at which the beneficiaries under a will may not unite in a conveyance made at a sale under the order of the court, and thus give to the grantee an absolute interest in possession of the estate of the testator in the property conveyed: Estate of Pforr, 144 Cal. 121, 127; 77 Pac. Eep. 825. Upon the death of the wife, the husband, in succeeding to the estate, takes the same subject to the claims against it; and the only interest in the estate, therefore, that can be taken at a sale under execution upon a judg- ment recovered against the husband is the distributive share of the husband in the estate of the wife after the payment of all debts: Nichols V. Lee, 16 Col. 147; 26 Pac. Eep. 157. BEFEBENCES. Additional bond, when required to be given on sale of real estate: See §§ 281, 282, ante. (2) Proceedings are statutory. Proceedings for the sale of real property of a decedent are statutory, and such sale will be void, unless the requirements of the statute are complied with: Hellman v. Merz, 112 Cal. 661, 666; 44 Pac. Eep. 1079. The provision of the statute declaring that no sale of any property of an estate shall be valid unless made upon an order of the probate court applies only to sales made by executors or administrators. It has no reference to judicial sales under the decrees of the district courts (superseded by the superior courts, in California), or to sales in pursuance of testamen- tary authority: Fallon v. Butler, 21 Cal. 24, 31. The administration of an estate is a proceeding in rem: See Dooly v. Eussell, 10 Wash. 195; 38 Pac. Eep. 1000. (3) Policy of law as to titles. The policy of the statute is to quiet titles to real estate sold by order of the probate courts: Harlan v Peek, 33 Cal. 521; 91 Am. Dee. 653. 888 PKOBATE LAW AND PRACTICE. 2. Jurisdiction. (1) When acquired. There are three methods, under the California Btatute, by which jurisdiction of an application for leave to sell may be acquired: 1. By a personal service on all persons interested in the estate; 2. By publication for four successive weeks; 3. By the assent, in writing, to the order of sale by all persons interested in the estate: Pearson v. Pearson, 46 Cal. 610, 636. Where the court acquires jurisdiction, all parties interested in the estate are bound by its action as fully by default, for not appearing, as if they had appeared and contested the sufficiency of the petition: Estate of Gouts, 100 Cal. 400, 402; 34 Pae. Eep. 865. When the record discloses what was done to acquire jurisdiction, it will not be presumed that something different was done: Hahn v. Kelly, 34 Cal. 407; Pearson v. Mitchell, 43 Cal. 610, 636. The authority of a court to order the sale of real property of a decedent's estate is not general, but limited, is derived from the statute conferring the right, and can be exercised only in the manner prescribed: flaynes v. Meeks, 20 Cal. 288, 312; In re Noon's Estate (Or.), 88 Pae. Eep. 673, 675. The legislature has prescribed, as a prerequisite to the sale of the property of a decedent, that a petition shall be filed; that notice shall be given; and that an opportunity for a hearing shall be afforded. These acts, therefore, are essential to power on the part of the court to order the sale, and in that sense the petition and the order are jurisdictional: Burris v. Kennedy, 108 Cal. 331, 339; 41 Pao. Rep. 458. (2) Nature and extent. In proceedings to sell real estate to pay the debts of a deceased person, the decedent's title or interests in the land described in the petition shall not be put in issue, but, otherwise, the jurisdiction of the court extends to the adjudication of all questions, in such proceedings, involving the rights of those before the court, interested in the real estate sought to be sold, whose rights therein will be injuriously affected by a decree of sale. As to such proceedings, the constitutional prohibition that county courts shall not exercise jurisdiction where the value of the property involved exceeds two thousand dollars does not apply: New York Life Ins. Co. v. Brown, 32 Col. 365; 76 Pae. Eep. 799. (3) Basis of jurisdiction. The legislature has prescribed that a petition shall be filed, that notice shall be given, and that an oppor- tunity for a hearing shall be afforded. Since the procedure is one in which there are no adversary parties present at all times in court, it is reasonable to hold, as has always been held, that these acts are essential to the power on the part of the court to order the sale. In that sense the petition and notice are jurisdictional: Burris v. Kennedy, 108 Cal. 331, 338; 41 Pae. Eep. 458. In acting upon the petition for an order of sale, the superior court of the state of Cali- fornia is still a court of general jurisdiction, etc.: Estate of Cook, 137 SALES OF REAL ESTATE AND CONFIRMATION. 889 Cal. 184, 186; 69 Pae. Eep. 968. The petition for a sale is a neces- sary prerequisite to the jurisdiction of the court to ordelr a sale: Burris V. Kennedy, 108 Cal. 331, 345; 41 Pac. Eep. 458; Gager v. Henry, 5 Saw. 244; Wright v. Edwards, 10 Or. 298, 306. Without jurisdic- tion, the probate court has no power to confirm the sale or to impart any validity to it: Gregory v. Taber, 19 Cal. 397, 410. See Gregory V. McPherson, 13 Cal. 562, 573. (4) Not dependent on truth of petition. It is immaterial, so far as the question of jurisdiction is concerned, whether the statements of the petition are true or not; the jurisdiction rests upon the averments of the petition, not upon proof of them: Pryor v. Downey, 50 Cal. 388, 398; Eichardson v. Butler, 82 Cal. 174, 178; 16 Am. St. Eep. 101; 23 Pae. Eep. 9. The truth of averments respecting personal property, so far as they affect the validity of the order, is to be determined at the hearing of the petition: Haynes v. Meeks, 20 Cal. 288, 316. 3. Law governing probate sales. (1) In general. A statute in force at the time of the death of an intestate, concerning authority to sell his property, governs the rights of the heirs: Estate of Porter, 129 Cal. 86, 88; 79 Am. St. Eep. 78; 61 Pac. Eep. 659. Upon an application for an order of sale, the court must be governed by the statute in force at the death of the testator, at which time the estate vests in the devisees: Estate of Eoaeh, 139 Cal. 17, 19; 72 Pac. Eep. 393. See Halleck v. Moss, 22 Cal. 266, 276. Such proceedings must be in accordance with local laws in force at the time, in the state or territory where suit is commenced, and this principle applies, though the United States itself is a suitor: United States V. Hailey, 2 Ida. 26; 3 Pac. Rep. 263. It is undoubtedly within the scope of legislative authority to direct that the debts of an estate be paid from the realty instead of the personal property; or (as is done in some states) that the heir need not be made a party to the proceeding to obtain a sale of the real estate; or that the administrator may sell without any order of the court whatever. But all these acts must be for the satisfaction of liens of creditors, or for the support of the family of the deceased, which matters are held to be paramount to the claim of the heirs or devisees: Brenham V. Story, 39 Cal. 179, 185. The limitation placed upon actions for the recovery of real estate sold by an executor or administrator, under the provisions of the probate law, are not applicable, where the premises in controversy were not subject to sale, and were not sold under the provisions of such law: McNeil v. Congregational Soc, 66 Cal. 105 111; 4 Pac. Eep. 1096. An order of the probate court, made after the passage of the act of April 22, 1850, authorizing a person, appointed by an alcalde's court as administrator of the estate of a decedent, to sell the real estate of the intestate, was void for want of jurisdiction, because there was no provision for the transfer of 890 PROBATE LAW AND PRACTICE. such proceeding from the alcalde's court to the probate court: McNeil V. Congregational Soc, 66 Cal. 105, 108; 4 Pac. Eep. 1096. (2) Statute of frauds. The statute of frauds does not apply to sales made by executors or administrators under our probate system, inasmuch as such sales are judicial and not ministerial. The admin- istrator is under the control of the court, and the contract for the sale in probate, therefore, need not be in writing, nor is it required to be subscribed by the parties: Ealleck v. Guy, 9 Cal. 181, 195; 70 Am. Dec. 643. (3) Statute of limitations. The statute of limitations does not run against an allowed claim of a creditor while the administration is pending and unsettled, and he is not, for that reason, precluded from petitioning for an order of sale: Estate of Arguello, 85 Cal. 151, 153; 24 Pac. Eep. 641; Estate of Schroeder, 46 Cal. 305, 316. n. SALES OF REAL AND FEBSONAI. FBOFEBTT IN GENEBAI.. 1. Property capable of sale in general. (1) Bule at common law. At common law, the representative could sell personal property without restraint, so long as his acts were not fraudulent; but under the code his power to sell is dependent upon the assent of the court: Wickersham v. Johnson, 104 Cal. 407, 412; 38 Pac. Eep. 89; 43 Am. St. Eep. 118; Eankin v. Newman, 114 Cal. 635, 660; 46 Pac. Eep. 742; 34 L. E. A. 265; Bovard v. Dickenson, 131 Cal. 162, 164; 63 Pac. Eep. 162. The rule at common law with reference to the application of lands and personalty for the payment of debts has been modified by the code provisions. Under our statute, both lands and personalty, as assets in the hands of the executor, are liable for all the debts, and both, if generally devised, are therefore, like specific legacies and devises, chargeable with the same debts, and stand upon precisely the same footing, so far as the reasons for charging them pro rata are concerned: Estate of Woodworth, 31 Cal. 595, 614. Eule of the common law relating to vesting of legal title: See Welder v. Osborn, 20 Of. 307; 25 Pac. Eep. 715. (2) Eule und^r codes and statutes. There is no priority, under the code, between real and personal property, where a sale of property is necessary for the payment of debts: Estate of Montgomery, 60 Cal. 645, 647. Under the Washington statute providing for the order of payment of the debts of an estate, including funeral expenses, and further providing that " no real estate of a deceased person shall be liable for his debts unless letters testamentary or of administration be granted within six years from the date of the death of such decedent," the real estate is stamped with the charges and expenses of administration only within the limitation provided, but, after the lapse of that time, purchasers who have taken possession of the real SAIiES OF REAL ESTATE AND CONFIKMATION. 891 property in good faith, and who have paid taxes thereon, shall not be disturbed in their possession: In re Smith's Estate, 25 Wash. 539; 66 Pac. Eep. 93. It is competent for the legislature to change the rule of inheritance, or to restrict the testamentary power. It may provide that the heir or devisee shall take, subject to certain burdens as the payment of the debts, etc.; but this is far from saying that the legislature may, after the title has vested in the heir, empower the administrator to sell the inheritance for purposes not authorized at the time the title vested, and to which it was not subject when it vested: Estate of Freud, 131 Cal. 667, 670; 63 Pac. Hep. 1080; 82 Am. St. Eep. 407. Upon the death of the ancestor, the heir at once becomes vested with the full property, subject only to liens then existing or created by the statute then in force: Brenham v. Story, 38 Cal. 177; Smith v. Olmstead, 88 Cal. 582, 586; 26 Pac. Eep. 521; 22 Am. St. Eep. 335; 12 L. E. A. 46. See also Estate of Packer, 125 Cal. 396, 399; 58 Pac. Eep. 59. The entire estate, both real and per- sonal, is liable in the hands of the executor to the charge of all the debts: Estate of Woodworth, 31 Cal. 595, 614; Murphy v. Farmers etc. Bank, 131 Cal. 115, 119; 63 Pac. Eep. 368. The executor has no more right to sell personal than real estate, unless necessary for its preservation, to pay charges upon it. Personal estate not bequeathed, like real estate, goes to the heir, under our statute, and not to the executor, except for the purpose of settling the estate and paying the debts and charges upon it. The executor no more owns it (as he did at common law), than he does real estate; and he is no more authorized to sell it unless necessary, than he is to sell real estate: Estate of Woodworth, 31 Cal. 595, 606. The whole property of a decedent, not exempt, both real and personal, is charged with the payment of debts: McNutt v. McComb, 61 Kan. 25; 58 Pac. Eep. 965; Lake v. Hathaway (Kan.), 89 Pac. Eep. 666. As to the real estate, the title of the decedent, upon his death, descends at once to the heir, who is entitled to the possession thereof. No right or title therein goes to the administrator; not even possession: Black v. Elliott, 63 Kan. 211; 65 Pac. Eep. 215; following Bauserman v. Char- lotte, 46 Kan. 480; 26 Pac. Eep. 1051; and Kulp v. Kulp, 51 Kan. 341; 32 Pac. Eep. 1118; 21 L. E. A. 550. The whole of the estate, both real and personal, goes into the possession of the executor or admin- istrator, first for the payment of debts, and then for distribution under the will or the laws of succession: In re Tuohy's Estate, 33 Mont. 230; 83 Pac. Eep. 6. Therefore any question of title to the property belong- ing to the estate of a deceased person must be settled in an appro- priate action brought in the district court as a court of general juris- diction: In re Tuohy's Estate, 33 Mont. 230; 83 Pac. Eep. 486; Estate of Burton, 63 Cal. 36; Estate of Groome, 94 Cal. 69; 29 Pac. Eep. 487; Stewart v. Lohr, 1 Wash. 341; 25 Pac. Eep. 457; 22 Am. St. Eep. 150. Upon the appointment of an administrator, the court obtains jurisdic- tion of the real and personal estate of the deceased, and the admin- 892 PSOBATE LAW AND PEACTICE. istration of the estate is a proceeding in rem: Furth v. TTnited States etc. Trust Co., 13 Wash. 73; 42 Pae. Eep. 523. Under the rule that prior possession of public lands will entitle the possessor to main- tain an action against a trespasser, the right of enjoyment of posses- sion of public lands descends among the effects of a deceased person to the executor or administrator, and may be the subject of a sale under the order of a probate court, entitling the purchaser to be subrogated to the rights of the first holder: Grover v. Hawley, 5 Cal. 485, 486. (3) Bule where personalty is insoflcient.. If there is not sufieient personalty to pay the aggregate of all classes of claims, — family allowance, debts, expenses, and charges of administration, — be the same more or less, or be it made up of items belonging to one or more of these classes of charges, real estate may be sold to pay the deficiency left over the amount which the personalty will pay: Estate of Bentz, 36 Cal. 687, 690. The California statute does not require all of the personal property to be exhausted before an order can be made for the sale of the realty: Stuart v. Allen, 16 Cal. 473, 503; 76 Am. Dec. 551. The long-established rule of priority in marshaling assets, as between legatees, devisees, and heirs, has not been disturbed by our statute. It follows that, as between a legatee of the person- alty and a devisee of the realty, the executor is not authorized to appropriate the rents of real estate, which accrued subsequent to the decease of the testator, to the satisfaction of a mortgage debt in exoneration of the personalty: Estate of Woodworth, 31 Cal. 595, 609. The title to both real and personal property of one who dies without disposing of it by will passes, under the statute of Idaho, to the heirs of the intestate, subject, however, to the control of the probate court, and to the possession of any administrator appointed by that court for the purpose of administration. This being true, the minor heirs, in a proceeding for the confirmation of a sale of real estate and the conveyance thereof, are adverse parties to said proceeding, and to a proceeding to set aside the sale, and their guardian ad litem should be served with notice of appeal from the order in the premises: Eeed V. Stewart (Ida.), 87 Pac. Eep. 1002. It is the duty of the court first to ascertain whether the proceeds of a sale of personal property is sufficient to meet legitimate charges, expenses, and claims, before ordering a sale of the realty: In re Houck's Estate, 23 Or. 10; 17 Pac. Eep. 461. Provision is made in the state of Washington, by the statute, for the sale of real estate for the payment of the debts of decedent only in cases where there is not sufS.cieut personal estate in the hands of the representative for that purpose: Prefontaine v. McMieken, 16 Wash. 16; 47 Pac. Eep. 231. A statute providing that, whenever it shall appear, after an inventory and appraisement, that the personal estate of any decedent is insufficient to discharge the just debts, resort may be had to the real estate, cannot be regarded SALES OP KEAL ESTATE AND CONFIRMATION. 8i)3 as prescribing a condition precedent to the exercise of the right, by the administrator, to resort to the real estate for the satisfaction of the payment of the debts. The right to resort to the realty is given whenever it appears that the personalty is insufScient for the pur- pose, independently of whether an inventory of the personal property and its appraisement has been filed or not: Nichols v.' Lee, 16 Col. 147; 26 Pae. Eep. 157. There are two separate and distinct methods in Kansas by which real property in that state may be sold to satisfy the debts of a non-resident testator. One method is as follows: When a will has been duly proved in another state, upon the production, by the executor or other interested person, of an authenticated copy of the will and probate thereof, the probate court of any county in Kansas in which there is property upon which the will may operate may admit it to record; and the executor taking out letters, or the administrator with the will annexed, shall have the same power to sell and convey the real and personal estate, by virtue of the will or the law, as other executors or administrators with the will annexed shall or may have by law. The other method referred to does not contemplate the appointment of a Kansas executor or administrator, or any appointment in Kansas whatever. This latter method merely relates to the recognition, for the purpose of effecting the sale of real estate situated in Kansas, of an appointment made elsewhere: Albright v. Bangs, 72 Kan. 435; 83 Pae. Rep. 1030. BEFESENCES. Order of sale of personal property for the payment of debts, etc.: See § 497, ante. 2. Particular interests in property. (1) Sales of mines and mining interests. No sale of a decedent's estate is authorized, except when it is necessary, — 1. To pay family allowance; 2. Debts of the decedent; 3. Expenses of administration; or 4. Legacies. But mines and mining interests belonging to estates of decedents are an exception to this rule. Such interests may be sold, when it is expedient to do so, for the benefit of the estate, although the proceeds are not needed to pay debts, expenses, etc.; and where it is sought to sell mining property for the benefit of the estate, it is not required that the petition shall set forth the condition of any property except that which is to be sold. The manifest reason of this is, that the expediency of such sales is in no wise dependent upon the condition of other portions of the estate: Smith v. Biseailuz, 83 Cal. 344, 349; 21 Pae. Eep. 15; 23 Pae. Eep. 314. (2) Sale of property subject to lease. The executor may sell prop- erty held under a lease, where there is no provision in the lease itself prohibiting a sale of the property during its term, and where the sale is made subject to such lease: Estate of Brannan (Cal.), 51 Pae. Eep. 320. 894 PROBATE LAW AND PEACTICE. (3) Sale of partnership interests. When a partnership is dissolved by the death of one of the partners, its assets, debts, and credits remain as distinct from those of its late members, until its affairs are wound up, as before the dissolution: Gleason v. White, 34 Cal. 258. It would seem to be equally clear, that, if all die (whether within the jurisdiction of the same or of different probate courts), the assets, debts, and credits of the partnership do not become confused with the estate of the last survivor, but continue a separate existence, and that the rights of the representatives or successors of the several partners can only be determined in a court of equity, which has the power and machinery for settling those rights by appropriate decree: Theller v. Such, 57 Cal. 447, 461. (4) Sale of community interests. The interest of the surviving widow in the community property is that of an heir, and her title to one half of the community property is to be administered as part of the estate of her husband, and is subject to sale for the payment of his debts: Sharp v. Loupe, 120 Cal. 89, 93; 52 Pac. Eep. 134, 586. Section 1402 of the Civil Code of California provides that, " 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." This is the same rule expressed in different terms by section 1516 of the Code of Civil Procedure of that state. The latter section declares that " all the property of a decedent shall be chargeable with the payment of the debts of the deceased, the expenses of administra- tion, and the allowance to the family, except as otherwise provided in this code and in the CivU Code." The phrase, " all the property of a decedent," in the latter section, is the equivalent of " the entire community property," in the former: Estate of Burdick, 112 Cal. 387, 399; 44 Pac. Eep. 734; Sharp v. Loupe, 120 Cal. 89, 92; 52 Pac. Eep. 134, 586. (5) Homestead under United States land laws. The homestead law of the United States vests the right in the land in the claimant him- self, for his exclusive benefit, and if he dies before patent issues, leaving no widow, then in his heirs, or devisees, if they are at the time citizens of the United States. There is no authority under the land laws for an executor or administrator to consummate, the inchoate claim of the decedent's homestead, or to sell his rights thereunder, for the benefit of the creditors: Towner v. Eodegeb, 33 Wash. 153; 74 Pac. Eep. 50, 51. If the homestead claimant dies before patent issues, or before the right to demand a patent has accrued, the land does not become a part of his estate. Upon his death, all his rights under the homestead entry cease, and his heirs become entitled to a patent, not because they have succeeded to his equitable interest, but because the law gives them preference as new homesteaders, and SALES OF REAL ESTATE AND CONFIRMATION. 895 allows them the benefit of the residence of their ancestor upon the land: Gjerstadengen v. Van Duzen, 7 N. D. 612; 76 N. W. Eep. 233; 66 Am. St. Eep. 679; Chapman v. Price, 32 Kan. 446; 4 Pac. Eep. 807. The same principle, under similar statutory provisions, is applied in case of the death of a pre-emptor. The subsequently perfected title inures to the benefit of the heirs, and can. neither by devised by the pre-emptor nor sold in satisfaction of his debts or expenses of admin- istration: "Wittenbrock v. Wheadon, 128 Cal. 150; 60 Pae. Eep. 664; 79 Am. St. Eep. 32. Moreover, a homestead cannot be sold for debts contracted before patent issues: Barnard v. Boiler, 105 Cal. 214; 38 Pac. Eep. 728; Bank v. Eiley, 29 Or. 289; 45 Pac. Eep. 766. It follows that such debts cannot be enforced against the homestead by the pro- cesses of administration; and an attempted sale of the inchoate right thereof for the benefit of the creditors is void: Towner v. Eodegeb, 33 Wash. 153; 74 Pae. Eep. 50. Where a patent conveys land to the heirs, and not to the decedent, the heirs have the right to convey and give possession as grantees of the United States, and any attempted sale of such lands made by the administrator of the estate of the deceased is an absolute nullity, and no title is communicated thereby to any purchaser: Coulson v. Wing, 42 Kan. 507; 22 Pac. Eep. 570. Under the Eevised Statutes of the United States, directing that, in case of the death of the claimant before perfecting title, it shall be competent for his administrator, or one of his heirs, to file the necessary papers to perfect the same, but that entry in such cases shall be made in favor of the heirs of the deceased pre-emptor, and that a patent thereon shall cause the title to inure to such heirs, as if their names had been specially mentioned, the right of possession of pre-empted land to which title is inchoate passes, on the death of the pre-emptor, to his administrator. The right of possession thus acquired is subject to a trust, which requires the administrator to proceed to perfect title in favor of the heirs, provided there are heirs, and the estate is in such condition as to enable him to do so, and the interest of the heirs, all things considered, so. demand. But, aside from this trust, he is free to dispose of the possession for the best advantage of the estate. No fraud in the premises, on the part of the administrator, will be presumed; but, when there is no admin- istrator, or, if there is one, and he consents, an heir may perfect the title. The statute puts only one limitation upon the administrator in dealing with the possession, which limitation is, that he should, for all purposes of perf eeing the title, stand in possession as representing the ancestor for the benefit of the heirs and creditors alike; and, aside from such limitation, a salable possessory right passes to the administrator: Burch v. MeDaniel, 2 Wash. Ter. 58, 63; 3 Pac. Eep. 586. (6) Sale of contracts for purchase of realty. Contract for purchase of lands may be sold how: See § 576, ante. 896 PROBATE LAW AND PEACTICE. (7) Property under mortgage or other lien. Where thrj court has jurisdiction of land, with power to order a sale, and a mortgagee claimant has subjected his mortgage to the jurisdiction of the court, by consent, and the proceedings have been fully carried out, and a deed issued to the mortgagee thereunder, it is thereafter too late to raise any question relating to the regularity of the proceedings, where there are no jurisdictional questions involved: Dooly v. Eussell, 10 Wash. 195; 38 Pac. Eep. 1000. When mortgaged property of a dece- dent is sold at a probate sale, such sale of the decedent's interest in the land does not in any way affect the indebtedness of his widow to the estate, except to alter the security held by the" estate for the payment of such debt. Instead of holding her interest as heir in the land of the estate, as security, it thereafter holds her interest as heir in the proceeds of such land: Estate of Angle, 148 Cal. 102; 82 Pac. Eep. 668. Where a mortgage is given by an heir, by which he mort- gages his interest in an estate, and where the mortgaged land was subsequently sold by the administrator at probate sale, the mortgagee acquires, upon foreclosure, only a lien on the funds of the mortgagor in the hands of the defendant administrator; and, for the purpose of securing the amount due, is the assignee of the mortgagor's interest therein, with pow^ as his attorney, to demand and receive the same. The mortgagee is therefore entitled to recover of the administrator, payable out of the share of the mortgagor, the amount due, with costs as found by the court: Gutter v. Dallamore, 144 Cal. 665, 669; 79 Pac. Eep. 383. The purchaser at a mortgage sale, which is void for any reason, becomes the assignee of the mortgage and the debt secured thereby: Spiithson Land Co. v. Brautigam, 16 Wash. 174; 47 Pac. Eep. 434; Bryan v. Brasuis, 162 IT. S. 415; 16 Sup. Ct. Eep. 803; 40 L. ed. 1022. The heirs and a mortgagor cannot recover in an action against the mortgagee, who makes a void foreclosure, and in good faith takes possession under cover of such proceedings, where no claim is made that the debt was ever paid: Investment Security Co. v. Adams, 37 Wash. 211; 79 Pac. Eep. 625. (8) Same. AppUcatiou of purchase-money. Where a bidder has the privilege of paying the whole sum on the date of sale, it is error for the court to direct the entire amount to be credited upon a mort- gage held by the purchaser against the property for an amount exceeding the amount of his bid, which mortgage debt was drawing interest at the rate of two and a half per cent per month, whereas, by the terms of the sale, half of the purchase-money was to have been cash in hand, and the remainder in ninety days, with interest from the date of sale, at the rate of one per cent per month: Halleck v. Guy, 9 Cal. 181, 197. Where property is sold by an administrator, and the purchaser has a mortgage claim against the property, which he presented to the estate, and the claim was allowed by the adminis- SALES OF KEAL ESTATE AND CONFIRMATION. 897 trator and by the court, the amount of such claim upon the mortgage is a credit upon the purchase price, and the purchaser will not be compelled to pay such amount to the administrator of the estate in cash, before he is entitled to a conveyance of the property upon the sale and confirmation. It is sufficient, where the purchaser, or, in the event of his death, his administrator, credits the amount due upon the mortgage claim against the estate of the mortgagor, for such credit is equivalent to an actual payment of the amount in cash: Estate of Lewis, 39 Cal. 306, 309. The provision of the statute, that, ■■ when any sale is made by an executor or administrator of land subject to any mortgage or lien, which is a valid claim against the estate of the deceased, the purchase-money shall be applied, after paying the necessary expense of the sale, first to the payment and satisfaction of the mortgage, and the residue in due course of admin- istration," is not controlled by the general provisions of the statute in reference to the distribution of assets and payment of debts. The creditor merely gets the benefit of the contract made with the deceased, and is under no obligation to pay any other expenses than those incurred in the enforcement of the mortgage security: Estate of Murray, 18 Cal. 686, 687. (9) Glioses in actiou. It was not the intention of legislation, chan- ging the rule at common law, to require an order for the sale of per- sonal property to include choses in action, or to deprive the executor or administrator of the power of disposition over them: Weider v. Osborn, 20 Or. 307; 25 Pac. Rep. 715. In California, choses in action must be sold in the same manner as other personal property: Bovard V. Dickenson, 131 Cal. 162, 164; 63 Pac. Eep. 162. The statute has curtailed the power of the executor or administrator to sell or dis- .pose of the personal property of the decedent, and limited it to such as is visible and tangible, except by an order of the probiate court, either at public or private sale, as may be provided therein; but with this difference, the power of disposition of the executor or adminis- trator remains as at common law, and the title of all choses in action is vested in him, with authority to collect and otherwise dispose of them: Weider v. Osborn, 20 Or. 307; 25 Pac. Eep. 715. An executor or administrator may sell or dispose of choses in action by indorse- ment to another, or to a distributee, without an order of the probate court and such transfer passes the title, so as to enable the trans- feree or distributee to maintain an action on them; and the makers, in the absence of fraud, cannot abate such an action for a want of authority to make the transfer: Weider v. Osborn, 20 Or. 307; 25 Pac. Kep. 715. An a.dministrator cannot sell the property under adminis- tration to pay for improvements on land of the heirs, erected by some unauthorized person years after the decedent's death: Cain Heirs v. Young, 1 Utah, 361. Probate — 57 898 PKOBATE LAW AND PKACTIOB. 3. When sale is not authorized. Before a probate court, in Utah, i'g authorized to order an administrator to sell the lands of a decedent, two prerequisites must be observed: 1. There must be debts and charges against the estate unpaid; and 2. The personal property of the decedent must be insufScient to pay these debts and charges. Where, therefore, the petition for such a sale did not allege that there existed debts or charges against the estate unpaid, and did not allege that there was no personal property to pay such debts or charges, if any existed, there is no escape from the conclusion that the court had nothing before it to give it jurisdiction, and an order of sale based upon such petition is void: Needham v. Salt Lake City, 7 Utah, 319; 26 Pae. Eep. 920. 4. Petition for order. (1) In general. A petition for the order of sale of the estate of a decedent, for the purpose of paying debts, whether made by the executor, or administrator, or a judgment creditor, must set out all the facts required to be shown by the statute: Prefontaine v. MeMicken, 16 Wash. 16; 47 Pac. Eep. 231, 233. A substantial compliance with the statute is sufficient in setting forth the facts in the petition for an order of sale: Estate of Arguello, 85 Cal. 151, 152; 24 Pac. Eep. 641; Eiehardson v. Butler, 82 Cal. 174; 23 Pae. Eep. 9; Silverman v. Gundelfinger, 82 Cal. 548, 549; 23 Pac. Eep. 12; Estate of O'Sullivan, 84 Cal. 444, 447; 24 Pac. Eep. 281. The court gets jurisdiction, not merely by the actual existence of jurisdictional facts, but by their averment in the petition: Holmes v. Oregon etc. E. E. Co., 7 Saw. 387; Wright v. Edwards, 10 Or. 298, 304. A petition for the sale of real property should show the facts required, since not only the judgment of the court is invoked to determine whether there shall be any sale, but also, if any, what property it is best for the interests of the heir should be sold: Townsend v. Gordon, 19 Cal. 189, 208. The general rule that matters of substance must be alleged in' direct terms, and not by way of recital or reference, much less by exhibits merely attached to the pleading, is applicable with equal force and propriety to petitions for the sale of real estate to pay debts and expenses of administration: Estate of Cook, 137 Cal. 184, 186; 69 Pae. Eep. 968. The sufficiency of the particulars, in a petition for the sale of property, as to the condition of the property, must be deter- mined by the circumstances of each case. Therefore, in a case where it is shown to be necessary to make a sale of some of the property of the. estate for the purpose of paying claims against it, and the estate of the decedent consists of a single piece of real property a court will require less particularity in the petition than where the estate comprises several pieces of property, and only one of such pieces is to be sold: Estate of Devincenzi, 119 Cal. 498, 501; 51 Pac. Eep. 845, 846; Burris v. Kennedy, 108 Cal. 331; 41 Pac. Eep. 458. If the court has, by the petition and notice, acquired jurisdiction, errors SALES OF REAL ESTATE AND CONFIRMATION. 899 afterward ma^e in the exercise of it will not render the decree invalid: Burris v. Kennedy, 108 Cal. 331, 339; 41 Pac. Eep. 458. (2) Defects. Mistakes. Omissions. A petition for the sale of the property of an estate is defective, and an order based thereon con- veys no title, where there is no attempt at a statement of the con- dition of the property of the estate, nor of the value of the property asked to be sold, except a statement that it is of uncertain value, on account of litigation with reference thereto, and where the defects in the petition itself are not supplied by proofs at the hearing, and where the decree authorizing the sale does not state any general or other facts' showing a necessity for the sale: Estate of Eose, 63 Cal. 346, 348. There is no difference between no petition at all, and a petition lacking the substantial averments required by statute: Gregory v. McPherson, 13 Cal. 562, 578. A petition may set forth inaccurately the amount of the personal property which has come to the hands of the administrator; it may even omit valuable portions thereof: yet, if it purports, on its face, to set forth the whole of such property, and how much of it, if any, remains undisposed of, the order for the sale which may follow cannot be attacked by reason of the inaccuracies or omissions: Haynes v. Meeks, 20 Cal. 288, 315. When the petition states that the personal property of the estate which will be shown by the inventory is insu£S.cient, this aver- ment, though informal and indirect, is equivalent to saying that the personal estate mentioned in the inventory is still on hand, and , therefore undisposed of. No nice criticism of the mere form of statement for the purpose of ousting a court of jurisdiction will be made, where it is sought to declare its proceedings void: Stuart v. Allen, 16 Cal. 473, 503; 76 Am. Dec. 551. A recital in a petition for an order of sale as follows: " This petition respectfully represents that, in order to settle up the business of the estate of said deceased, to pay certain debts and demands due and owing by such estate," etc., — is not a sufficient allegation that legal debts and legal charges exist unpaid against the estate: Needham v. Salt Lake City, 7 Utah, 319- 26 Pac. Rep. 920. A mistake in the petition, in stating the amount of the estate, is not fatal to the- jurisdiction, as not truly setting forth the condition of the estate, or the amount of the prop- erty, so as to present to the court the proper data by which it can judge of the portion necessary to be sold: Fitch v. Miller, 20 Cal. 352 383. The omission, in a petition for an order to sell real estate of a decedent, to state that the persons who were named in the peti- tion as the devisees and legatees were also the heirs of the deceased, as appears from the order of sale, is not fatal to the validity of the order: Estate of Levy, 141 Cal. 639, 645; 75 Pac. Bep. 317. No sale is invalid on account of the omission to state in the petition any of the matters enumerated in the statute, provided the general facts show- ing that the sale is necessary are proven and found. The facts show- 900 PKOBATE LAW AND PEACTICE. ing that the sale is necessary are: that there are debts; that an allowance has been made for the support of tUe family, or that there are expenses of "administration; and that there is not sufficient money in the hands of the administrator to pay them. Where such facts are alleged in the petition, even though erroneous, the decree is not void, nor the sale invalid on that ground: Burris v. Kennedy, 108 Cal. 331, 340; 41 Pac. Eep. 458. (3) May be made when. Laches in £.Uag. The administrator is justified in assuming that creditors will exhibit and prove their claims against the estate, and he is not required to wait until they do so before preparing to pay them. When he ascertains that the personal property will not be sufficient to pay the debts, he may then petition the court to sell the real estate: Bandel v. Bandel, 64 Kan. 254; 67 Pac. Eep. 837. A creditor may petition the court for a sale of the land, of the estate, where the administrator neglects to perform his duty, at least within a reasonable time after the claim is presented and filed: Estate of Wiley, 138 Cal. 301, 307; 71 Pac. Eep. 441. An application for an order authorizing the sale of the real estate of a decedent should be refused, where there has been long delay pre- ceding the filing of- the petition without any satisfactory explanation: Estate of Crosby, 55 Cal. 574, 588. The right to sell real property in a proceeding for the payment of expenses and charges of adminis- tration accrued and to accrue is not lost by laches, where the applica- tion is made upon the double necessity of redeeming the mortgaged premises from an existing lien, and to pay the " debts, expenses, and charges of the administration accruing and to accrue": Estate of Freud, 131 Cal. 667, 673; 63 Pac. Eep. 1080; 82 Am. St. Eep. 4G7. Gross negligence or palpable laches on the part of the executor or administrator is sufficient reason for denying an order of sale in a given case: Estate of Crosby, 55 Cal. 574. No hard and fast rule has ever been promulgated defining what lapse of time in applying for a license to sell real property will amount to laches, and every case must necessarily be governed by its own particular facts and circum- stances: In re Smith's Will, 43 Or. 595; 75 Pac. Eep. 133. The rule that laches wiU, in some cases, defeat a creditor's application for the sale of property of the estate goes only to the extent that a probate court has discretionary power to deny a petition for the sale of real estate when there has been unreasonable delay without circumstances to excuse it: Estate of Arguello, 85 Cal. 151, 154; 24 Pac. Eep. 641. An objection that there was an unreasonable delay in applying for the order of sale finds no support in facts showing a persistent and long-continued effort, on the part of the creditors, to bring the admin- istrator to an accounting, and where litigation assumed so many phases and had been so protracted as to account for the delay which occurred: Estate of Sehroeder, 46 Cal. 305, 320. Laches in applying for an appointment as administrator, and for a license to seb real SALES, OF REAL ESTATE AND CONFIEMATION. 901 property, wiU not bar the right of the administrator to sell the realty, where delay in applying for letters of administration or license to sell has resulted in no such changes of ownership or physi- cal conditions as to render it inequitable to sell, or where, by analogy to the statute of limitations prescribed in the jurisdiction, sufficient time has not run to bar the relief in the form proposed: In re Smith's Will, 43 Or. 595; 75 Pac. Eep. 133. There is no limitation in the state of Oregon as to the time when a claim against the estate of a deceased person may be presented, nor as to when an application for an order of sale of real property for the purpose of paying debts, etc., may be made: In re Houck's Estate, 23 Or. 10; 17 Pac. Kep. 461. Where a question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, pro- vided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence: Johnston v. Mining Co., 148 U. S. 360; 13 Sup. Ct. Rep. 585. BEFERENCES. Laches of executors or administrators in applying for orders author- izing them to sell property for the payment of debts: See note 26 Am. St. Eep. 22-29. (4) Parties to the proceeding. The creditor of an heir is in no sense a necessary party to a proceeding in an estate for leave to sell: Nichols V. Lee, 16 Col. 147; 26 Pac. Eep.' 157. Under the statute of New Mexico, the surviving wife is a party to the proceeding, where it is sought to sell lands of the decedent in which she has an interest, which are not susceptible of division; but in such case her interest should be ascertained, so that her rights at the sale may be protected without putting her under the burden of protecting incidentally the rights of the creditors. And the proceedings to sell of real estate be joined in one suit with proceedings- for the sale of real estate belonging to the decedent: First Nat. Bank v. Lee, 8 N. M. 589; 45 Pac. Eep. 1114. (5) Necessity for sale. The necessity for a sale is not a matter for an executor or administrator to determin-e> but is a conclusion which the court must draw from the facts stated, and the petition must furnish the materials for its judgment: Pryor v. Downey, 50 Cal. 388, 398; 19 Am. St. Eep. 656. The executor has no more right to sell personal estate than he has to sell real estate, unless necessary for its preservation, or to pay charges upon it; but there may be as great a necessity for selling it, for the purpose of marshaling the assets between the legatees, heirs, and devisees, as to pay debts: Estate of Woodworth, 31 Cal. 595, 605. The facts showing that a sale is necessary are: that there are debts; that an allowance has been made for the support of the family, or that there are expenses 902 PROBATE LAW AND PBACTICE. of administration; and that there is not sufficient money in the hands of the executor or administrator to pay them: Burris v. Kennedy, 108 Cal. 331, 339; 41 Pae. Eep. 458. It is not necessary to the right of the administrator to petition for, or to the power of the court to order, a sale, that there should first be a demand upon the adminis- trator to sell. It is his duty to petition for a sale whenever a neces- sity arises under the statute. The creditor, or any one interested, may make application, if the administrator neglects to apply for the order: Estate of Eoach, 139 Cal. 17, 19; 72 Pac. Eep. 393. The statute in California does not make it necessary that an account of the execu- tor's transactions shall be rendered and a final adjudication had upon it before the court can make an order for the sale of the real estate to meet the expenses of administration. It cannot, therefore, be said that where an executor applies for an order authorizing him to sell real property belonging to the estate of his testator for the purpose of satisfying a claim in his own favor, for services and expenses as executor, that an account should be first presented and settled. It is proper, and not premature, for the court to make an order of sale on finding a legal necessity for such sale: AbUa v. Burnett, 33 Cal. 658, 665. The description and condition of the property quite fully appear, and the necessity for a sale sufficiently appears, when it is shown that there are debts or expenses of administration, and that there is no money, or personal property, or income from which to meet these liabilities: Estate of Eoach, 139 Cal. 17, 21. A petition which discloses the nature, extent, -and value of the personal property belong- ing to the estate, and contains a detailed statement of facts from which it sufficiently appears that the personal property is not suffi- cient to meet the claims and costs allowed against the estate, suffi- ciently shows the necessity for resorting to the real property: Bate- man V. Eeitler, 16 Col. 547; 36 Pac. Eep. 548. The question as to whether there was a necessity for a sale is one for the probate court to decide, and its unreversed decision, whether right or wrong, is absolutely binding upon the parties in a collateral attack thereon: Lake v. Hathaway (Kan.), 89 Pae. Eep. 666. (6) Condition of property. The court should be informed, by the petition, of the condition of the property; that is, whether the prop- erty is improved or unimproved, productive or unproductive, occupied or vacant, and the like. Such information is necessary to enable the court to intelligently exercise its judgment in the selection of the property of the estate, which can be most advantageously sold. Where the condition of the property is not stated, the petition is substantially defective, and the provision found in the statute, as to supplying defects by proof at the hearing, has no application to a petition, the sufficiency of which is directly attacked by general demurrer, or by objection to its sufficiency, taken upon appeal from the order of sale: Estate of Smith, 51 Cal. 563, 565. An objection that the petition SALES OP REAL ESTATE AND CONFIRMATION. 903 faila to state the condition of the property will not be considered on appeal, where such objection was not made in the court below, where the petition states the jurisdictional facts required by the statute, and where the attack is collateral and not direct: Baum v. Eoper, 132 Gal. 42, 48; 64 Pao. Eep. 128. In the case of mining property, which a guardian seeks to sell for the interest of his ward's estate, it is not required that the petition should set forth the condition of any property except that which is to be sold. The manifest reason of this is, that the expediency of such sales is in no wise dependent upon the condition of other portions of the estate: Smith v. Biscailuz, 83 Cal. 344, 349; 21 Pac. Eep. 15; 23 Pac. Eep. 314. (7) Description of property. The sufaeiency of a description of one parcel of land does not cure defects of description as to other parcels; for the statute requires that all of the real estate of the deceased should be described: Wilson v. Hastings, 66 Cal. 243, 245; 5 Pac. Eep. 217. Where a petition for an order of sale describes the land as in " Township 29 N.," etc., instead of in " Township 25 N.," where the same is situated, and in connection with the statement that the land is in " Township 29 N." is the further statement that it is in " King County," in which said township is not situated, the descrip- tion is fatally defective, and a sale under such petition is void: Hazelton v. Bogardus, 8 Wash. 102; 35 Pac. Eep. 602. Where, in a contract for the sale of land, the property is described as " the whole of the Bedding ranch,'' purchased by deed of a certain date, and the place of record of such deed is specified, the description is sufficient; and where the land, so described in a decree of distribu- tion, has been distributed to the heirs of a deceased person, they have a marketable title thereto: Bates v. Howard, 105 Cal. 173, 183; 38 Pac. Eep. 715. (8) Reference to other papers. Eeference may be made in the petition to other papers to show the facts: Wilson v. Hastings, 66 Cal. 243, 246; 5 Pac. Eep. 217. The petition may refer to the inven- tory for the description of the real property, and the inventory there- upon becomes a part of the petition for that purpose: Eichardson v. Butler, 82 Cal. 174, 178; 23 Pac. Eep. 9; 16 Am. St. Eep. 101. But a reference to the inventory in the petition for one purpose cannot be taken as a reference for any other purpose to supply an omission of some necessary statement: Townsend v. Gordon, 19 Gal. 189, 208. A petition for an order of sale may refer to the inventory for the description of the real estate to be sold; but where the inventory is deficient as to the description, the petition itself is insufficient to give the probate court jurisdiction to order a sale of the property: Wilson v. Hastings, 66 Cal. 243, 246; 5 Pac. Eep. 217. See Stuart v. Allen, 16 Cal. 473. Where a petition sufficiently shows to the court what the interest of the deceased in the land was at the time of his 904 PROBATE LAW AITO PRACTICE. death, and contains, by reference to the inventory, a full description of all real property of the estate at the time the sale is asked, and gives to the court all the information on that subject contemplated by the code, the sale cannot be held void for want of a sufficient descrip- tion of the real property in the petition itself, apart from the inven- tory: Richardson v. Butler, 82 Cal. 174, 179; 23 Pac. Eep. 9; 16 Am. St. Eep. 101. Schedules attached to the petition constitute a part thereof, and if, in the body of the petition, it is stated that the values and conditions of the realty are set forth in a particular schedule, naming it, and the only values there set forth are the appraised values, this, in the absence of special objection, is a suffi- cient statement as to present value: Estate of Levy, 141 Cal. 639, 643; 75 Pac. Eep. 317. The requirement of the statute, that the facts prescribed shall be stated in the petition, is peremptory. If the petition refers to another paper on file, for the purpose of a more full and explicit statement of facts, that paper might be con- sidered in connection with the petition, and both be taken together as a statement of all the required facts. But it is apparent that no such result can be attained, unless the petition itself make the reference. It is not sufficient for the administrator to file a separate paper, not a part of, nor referred to in, the petition, though this paper contains part of the facts which the statute requires the petition to state: Gregory v. Taber, 19 Cal. 397, 410. See Gregory v. McPherson, 13 Cal. 562, 573. A reference, " for greater certainty," without stating for what the reference is made, whether for description, or value, or condition, is an insufficient reference to make the inventory a part of the petition as to description, or value, or condition: Wil- son V. Hastings, 66 Cal. 243, 246; 5 Pac. Eep. 217. A reference to an inventory may be construed as justifying the omission to include in the petition a more particular statement of personal effects than that made in it, but such reference does not make the inventory a part of the petition for any other purpose: Townsend v. Gordon, 19 Cal. 188, 208. A petition for the sale of mining interests, referring to the inventory for a description of the real property, while suffi- cient as to the description, is defective in failing to set forth the condition and value of the estate, as required by the statute, if there is nothing in the petition, or the inventory and appraisement referred to therein, which indicates the condition of the mining interests, or of the mining company in which such interests are held, or of the mining claims, or whether they are being worked or are lying idle, or whether they are sources of profit or of loss to the estate: Estate of Boland, 55 Gal. 310, 314. (9) Verifying the petition. A petition lacking a verification is invalid. The description of the property, its condition, value, and character, are jurisdictional facts, which must affirmatively appear in a verified petition, before a probate court can make any valid SALES OF REAL ESTATE AND CONFIRMATION. 905 order for the sale of the real property of an estate to pay debts. These are of the essence of the petition, without which it has no legal existence: Estate of Boland, 55 Cal. 310, 315. In the state of "Washington, it has been held that a failure to verify the petition, which is the foundation of proceedings to sell real estate, is a mere irregularity; for, if the petition is in other respects sufS.cient, the court is given jurisdiction: McCoy v. Ayers, 2 Wash. Ter. 203; 3 Pac. Eep. 273. Schedules attached to the petition are a part of it, and are included in the verification. An objection that the petition is not properly verified because the certificate of verification is placed before the schedules which were attached to it, is not tenable: Eichardson v. Butler, 82 Cal. 174, 180; 23 Pac. Kep. 9; 16 Am. St. Eep. 101. (10) Amending the petition. The petition must contain a general description of all the real property of which the decedent died seised; and if it does not contain any such description, it is error to make the order of sale on such petition, though amended, without further notice. The court should treat the petition, when amended, as a new petition, and proceed de novo: Gharky v. Werner, 66 Cal. 388, 389. A petition based upon a former petition is, in effect, a continuation of a first application, where there was no revocation of the order made upon such first application, and the statute of limitations can- not be considered as barring the subsequent proceeding, where the first application on which it was based is not barred: Estate of Montgomery, 60 Cal. 645, 648. (11) Defects cured by the order of sale. If the petition substan- tially complies with the requirements of the code, it may be aided by the order of sale as to all the facts showing the sale to be neces- sary, and giving the court jurisdiction, if the defect is supplied by proofs at the hearing, and the general facts showing such necessity are stated in the decree: Dennis v. Winter, 63 Cal. 16, 17. A defect in the petition, which consists in the failure to state whether the real property was separate or community property, is remedied by the fact that it is stated in the order directing the sale that the property was separate property: Estate of Arguello, 85 Cal. 151, 152; 24 Pac. Eep. 641. (12) Defects not cured by the order. If the petition for the sale of real estate does not set forth the value of the real estate sought to be sold, the petition is fatally defective, and cannot be cured by recitals in the order of sale, or by inferences to be drawn from the inventory and appraisement of the estate referred to in the petition generally, but not specifically, as to the lands or their value: Estate of Cook, 137 Cal. 184, 190, 191; 69 Pac. Eep. 968. A petition in which the only recital upon the subject of condition and value of the land is that it was an " unperf ected claim under the homestead laws of 906 PROBATE LAW AND PKACTICE. Congress," and which does not state what the land was worth, whether it was improved or unimproved, productive or unproductive, occupied or vacant, nor any other information by which the court might intelligently have exercised its judgment that the property could be most advantageously sold, is fatally defective, and a sale thereof is void for want of jurisdiction in the court to order it: Kertchem v. George, 78 Cal. 597, 599; 21 Pae. Bep. 372. A petition for an order of sale is fatally defective, where, with reference to personal prop- erty, there is no attempt to comply with the statute, and the court is left in entire ignorance as to the condition of the estate with respect to such property, information in respect to which is essential to its jurisdiction, and where, in respect to the real property asked to be sold, the petition does not show the condition of the land, whether it is improved or waste land, or whether it is yielding an income or is burdening the estate with expense, and does not purport to give a description of all the real estate of which the intestate died seised. The condition of the land that it is desired to sell should be stated so that the court may judge of the necessity of its sale: Haynes v. Meeks, 20 Oal. 288, 317. See Estate of Boland, 55 Cal. 514; Janes v. Throckmorton, 57 Cal. 386. (13) Creditor's petition. A creditor of the estate of a decedent, whose claim has been allowed by the court, may petition for the sale of the real estate of such estate: Estate of Couts, 87 Cal. 480, 481; 25 Pac. Eep. 685. When the proceeding for a sale is not instituted by the representative of the estate, but by a creditor, his standing, as such, must be averred and shown, in order to qualify him to insti- tute the proceeding; but, when the real estate of the decedent is sold under the decree, the proceeds are to be paid over to the executor or administrator for administration under the direction of the probate court. The allowance of an ordinary claim against the estate of a deceased person does not give the creditor any superior right or lien over the real estate, or the proceeds arising from the sale thereof, prior and superior to the rights of any other creditor whose claim against the estate may be allowed: First Nat. Bank v. Lee, 8 N. H. 589; 45 Pac. Bep. 1114. A creditor of an estate, having a valid lien, may petition for an order of sale of the lands covered by the lien, and has the right, upon purchasing the property at the sale, to have the amount of his bid, less the necessary expense of sale, credited on his claim by reason of his lien upon said lands: Estate of Wiley, 138 Cal. 301, 303; 71 Pac. Eep. 441. The petition of a creditor, whose claim is secured by a lien upon specific property of the estate, to sell the land to enforce payment of the claim and lien, filed before the statute of limitations has expired, has the effect of arresting the further operation of the statute: Estate of Wiley, 138 Gal. 301, 308; 71 Pac. Bep. 441. Where a creditor of the executor files a petition asking for an order lequiring the executor to sell so much of the real SALES OF EEAIi ESTATE AND CONFIRMATION. 907 estate as shall be necessary to pay his claim, and, upon the hearing, evidence upon every material allegation of his petition is intro- duced, it is error to grant a nonsuit, on motion of the devisees, upon the ground that the claim is against the executor; that, until he pays it and presents it in his account as an expense of administra- tion, the court cannot act upon it; that the order allowing the claim is void; and that the claim is barred by the statute of limitations: Estate of Gouts, 87 Gal. 480, 481; 25 Pac. Rep. 685. 5. Opposing the application. (1) In general. A grantee of one of the heirs of the deceased, being entitled, upon distribution of the estate, to the share of the heir so conveyed to him, is a person " interested " in the estate, and is entitled to oppose an application for an order of sale: Estate of Steward, 1 Gal. App. 57, 60; 81 Pac. Eep. 728; Estate of Baum, 92 Gal. 192; 28 Pac. Eep. 221. The court is not bound to refuse an order of sale whenever it appears that the required money can be obtained by mortgage. It may inquire into the wisdom of mort- gaging the property, and the means of payment thereof possessed by the heirs, and, if it appears that the distributees must inevitably lose the entire property at some time before default and foreclosure, in case a mortgage be made, unless they can make a sale of the prop- erty, the court does not err in finding that a sale is necessary: Estate of Newlove, 142 Gal. 377, 382; 75 Pac. Eep. 1083. The pro- visions of the statute allowing objections to be made to the sale, and requiring, for its efficacy, a confirmation by the court, are intended to secure only such an execution of the order of sale that a just and fair price may be obtained for the property for the benefit of the estate. The authority of the court is limited to such a super- vision and control, that this end may be effected: Estate of Spriggs, 20 Gal. 121, 126. The pendency of a suit involving title to a part of the real proprety is not, in itself, sufficient cause for refusing to make an order of sale; especially where the evidence taken concern- ing the merits of the action tends strongly to show that it was insti- tuted in good faith. Whether a sale would impair the value of the land, under such circumstances, is a matter largely within the dis- cretion of the court to determine: Estate of Newlove, 142 Gal. 377, 382; 75 Pac. Eep. 1083. (2) Demurrer to the petition. The point that a statement is insufficient, which is easily understood as an admitted statement of a particular fact, and is merely shadowed by some uncertainty or want of fullness or aptness of expression, can be reached only by a special demurrer or objection in the court below: Estate of Heyden- feldt, 127 Gal. 456, 458; 59 Pac. Eep. 839; Estate of Levy, 141 Gal. 639, 643. See also Silverman v. Gundelfinger, 82 Cal. 548; 23 Pac. Eep. 12; Estate of Devincenzi, 119 Cal. 498, 500; 51 Pac. Eep. 845. 908 PROBATE LAW AND PRACTICE. Upon a special demurrer the court might require a little more cer- tainty, where the value is informally alleged; but where there is not such a total want of a statement of values as renders the petition defenseless against a collateral attack, which is in the nature of an objection, in an ordinary civil action, that the complaint does not state facts sufficient to constitute a cause of action, the petition will be held sufficient: Silverman v. Gundelfinger, 82 Cal. 548, 549; 23 Pac. Eep. 12. If a defect of parties plaintiff or defendant does not appear upon the face of the petition filed in a proceeding to sell, the objec- tion may be taken by answer; but if no objection is taken, either by demurrer or by answer, the defendant is deemed to have waived the same: Coulson v. Wing, 42 Kan. 507; 22 Pac. Eep. 570. So far as the question of the insufficiency of the petition is concerned, an appellant occupies a no more advantageous position by reason of the filing of a general demurrer, than he would have occupied had he presented no demurrer and simply appealed from the order of sale. Tn either event the question for determination is as to whether or not the petition is substantially defective in any of the requirements of the code: Estate of Levy, 141 Cal. 639, 642; 75 Pac. Eep. 317. The provision of the statute, that a failure to set out the necessary facts in the petition will not invalidate the subsequent proceedings, if the defects are supplied by proof at the hearing and stated in the decree, has no applicability to a petition, the insufficiency of which is directly attacked by general demurrer in the probate court, or by objection to its sufficiency taken upon appeal from the order of sale: Estate of Smith, 51 Cal. 563, 565; Estate of Boland, 55 Cal. 310, 315j Estate of Cook, 137 Cal. 184, 188; 69 Pac. Eep. 968. 6. Sale foi payment of debts. (1) In general. One prominent purpose of administration is to pay the debts of the estate from the real and personal property of the deceased. To sell real estate to pay the debts is as plainly a step in the administration as is the sale of personal property for the same purpose; and while it is within the scope of the administration to sell either real or personal property, yet the legislature has the power to direct how this shall be done: Burris v. Kennedy, 108 Cal. 331, 338; 41 Pac. Eep. 458. An order for the sale of certain personal property to pay debts, set forth in a schedule of claims against the estate, is not a determination that the claim is a valid debt due from the estate: Estate of Wells (Cal. App.), 94 Pac. Eep. 856, 858. An executor or an administrator cannot be compelled, by a probate court, to sell the real estate of a decedent which has been distributed by order of the proper court, to pay debts established after such distribu- tion. It is only property in the hands of the personal representa- tive that can be sold by him, and such sale must be made in accord- ance with the statute: Prefontaine v. McMicken, 16 Wash. 16; 47 Pac. Eep. 231, 233. A probate court does not have any authority SALES OF REAL ESTATE AND CONFIEMATION. 909- to order a sale of the homestead for the purpose of paying debts of the deceased, although they are secured by a valid mortgage on the same: Estate of Orr, 29 Cal. 101, 104. "While it is the duty of the administrator to preserve the estate, yet this does not mean that he is, at his discretion, to pay off all encumbrances resting on the prop- erty, upon the notion that the property may increase in value, and that thereby a speculation may be made for the estate. He cannot advance money to remove encumbrances, unless his intestate was bound to pay the money: Estate of Knight, 12 Cal. 200, 207; 73 Am. Dec. 531. A sale may be ordered when necessary to meet the pros- pective charges or expenses, though there be no debts or expenses of administration accrued and unpaid at the time the application is made: Eichardson v. Butler, 82 Cal. 174, 179; 23 Pac. Kep. 9; 16 Am. St. Bep. 101; Estate of Freud, 131 Cal. 667, 670; 63 Pac. Eep. 1080; 82 Am. St. Rep. 407. The executor or administrator has power to use the money in his hands for the purpose of redeeming property of the estate from liens existing on it: Estate of Freud, 131 Cal. 667, 671; 63 Pac. Eep. 1080; 82 Am. St. Eep. 407. This power arises from the general character of the executor or administrator as a trustee charged with the duty of preserving the property of the estate: Estate of Smith, 118 Cal. 462, 466; 50 Pac. Eep. 701; Estate of Freud, 131 Cal. 667, 671; 63 Pac. Eep. 1080; Burnett v. Lyford, 93 Cal. 114, 118, 119; 28 Pac. Eep. 855. The same principle applies in the case of taxes, tax sales, etc.: People v. Olvera, 43 Cal. 492, 494; Wein- reich v. Hensley, 121 Gal. 647, 657; 54 Pac. Eep. 254. And in cases, of cattle or horses impounded and held for the expense of pasture: Estate of Armstrong, 125 Cal. 603, 605; 58 Pac. Eep. 183. But the principle does not apply where the lien is not a charge against the estate, and no part of it could ever be paid out of the estate: Tompkins v. Weeks, 26 Cal. 50, 60. Under the Washington statute, funeral expenses are a debt against the estate, and may be given preference in payment: In re Smith's Estate, 25 Wash. 93; 66 Pac. Eep. 93. The probate court has no authority to reach out and dis- pose of property belonging to the heirs of the decedent, which is in, no respect subject to the debts or the liabilities of such decedent: Coulson V. Wing, 42 Kan. 507; 22 Pac. Eep. 570. BEFEBENCES. Order of payment of debts provided for by will: See § 570, ante. Payment of debts provided for by will, where the fund or estate appropriated therefor is insuflcient to pay: See § 573, ante. Order of resort to the property of the testator for the payment of debts: See §§570, 573, 574, ante. (2) Contesting debts on the hearing. Upon an application to sell real estate to pay debts, the heir can dispute the validity of the claims allowed, and to pay which the application is made. The peti- 910 PROBATE LAW AND PRACTICE. tion to sell the real estate of an intestate is the substitute, under our system, for an action against the heir at common law. The heir is required to be cited, and is allowed to be heard. The hearing amounts to a re-examination of the claim, to test its validity as against the heir, and to produce or to prevent a decree for the sale of the land. If the claim is not valid, then, of course, the land ought not to be sold, if the application is made for the purpose of meeting such claim: Beckett v. Selover, 7 Cal. 215, 229; 68 Am. Dec. 237. See Estate of Schroeder, 46 Cal. 305, 318. Upon this question, it has been held that the allowance by the administrator, and the approval by the probate judge, of a claim against the estate is a quasi-judgment, and, in attacking it, the burden of proof is on the heir: Hillebrant v. Burton, 17 Tex. 138; approved in Estate of Schroeder, 46 Cal. 305, 319. " Allowance " is only prima facie proof of the validity of the claim; therefore, on an application to sell, the heir may dispute the claims, upon which the petition is based, although they have been allowed by the executor or administrator and probate judge: Wingerter v. Wingerter, 71 Cal. 105, 111; 11 Pac. Rep. 853. See Beckett v. Selover, 7 Cal. 215; 68 Am. Dec. 237. A judgment, in the state of Kansas, against the executor, in favor of a creditor, although binding upon the personalty, is not necessarily binding upon the heirs to the extent of subjecting the real estate descended to them for the satisfaction of any such judgment. Before there can be a valid order devesting them' of their title by a sale for the payment of debts, the heirs must have an opportunity to be heard, and to contest not only the necessity or propriety of the sale, but also the justice and validity of the debts for the payment of which the sale is demanded: Black v. Elliott, 63 Kan. 211; 65 Pac. Eep. 215; following Bauserman v. Charlott, 46 Kan. 480; 26 Pae. Eep. 1051, and Kulp v. Kulp, 51 Kan. 341; 32 Pac. Eep. 1118; 21 L. E. A. 550. See also O'Flynn v. Powers, 136 N. Y. 419; 32 N. E. Eep. 1087. (3) " Demand." When not a debt or claim. A demand against an estate, based on an instrument upon which the testator never could be made liable, is not a " claim " against the estate, within the meaning of the statute conferring power upon administrators, with license from the proper court, to seU the real estate of decedents to pay claims against their estates in the event of a deficiency of per- sonal assets: Weill v. Clark's Estate, 9 Or. 387, 391. See also Walker v. Diehl, 79 HI. 473, and Gray v. Palmer, 9 Cal. 616. (4) Expenses of administration. The provisions of the statute which authorizes a sale of the property of a decedent for certain purposes are maintained to afford to creditors of the executors, as well as creditors of the decedent, the means of securing payment of their claims against the estate, and necessarily contemplate expenses of administration which the executor neglects or refuses to pay: Estate of Couts, 87 Cal. 480, 482; 25 Pac. Eep. 685. SALES OF REAL ESTATE AND CONFIRMATION. 911 7. Sale to pay funeral expenses. An executor mayi petition for a sale of the real property in order to meet the expense of erecting a monument over the grave of the deceased person, pursuant to a pro- vision in the will. The expense, in such a case, is included in funeral expenses: Estate of Koppikus, 1 Cal. App. 84; 81 Pac. Eep. 732; Van Emou v. Superior Court, 76 Cal. 589; 18 Pae. Eep. 877; 9 Am. St. Bep. 258. 8. Specific devises to coutribute to payment of debts. Under the statute of Oregon, if any article of personal property has been spe- cially bequeathed, it is exonerated from the operation of the order of sale until resort thereto becomes necessary for the payment of claims, by reason of a deficiency, in the proceeds of the sale of other prop- erty: In re Noon's Estate (Or.), 88 Pac. Eep. 673, 675. A devise made in the will for the payment of an indebtedness due from the testator is required to contribute with the other devises to the pay- ment of the debts of the estate and charges of administration. There is no exception made in the statute as to such devise: Estate of Thayer, 142 Cal. 453, 456; 76 Pac. Eep. 453. The remedy of a legatee, whose special bequest is applied to the payment of a claim, where there are other special bequests which would bear their proportion in the payment of a debt, is to seek contribution from the legatees of such other bequests: Estate of Moulton, 48 Cal. 191, 192. BEFEBENCES. Devises or legacies, when subject to and when exempt from pay- ment of debts of administration: See § 574, ante. Contribution among legatees for the payment of debts, expenses of administration, etc.: See § 575, ante. 9. Sale to pay legacies. The probate court is not bound to decree a sale of the assets of an estate for the payment of legacies until there is an ascertained balance of assets, real or personal,, in the hands of the executor or administrator. If the assets are merely claimed to exist, and the right to them is involved in litigation, either by an action brought by the executor or administrator to recover them for the estate, or by an action against the executor or administrator to recover them from the estate, then the estate is not ready for distri- bution, and the probate court, in the exercise of judicial discretion, may delay the distribution until the right to the assets is judicially determined, and the balance for distribution ascertained: Estate of Eieaud, 57 Cal. 421, 423. BEFEBEITCES. Order of resort to the property of the testator for the payment of legacies: See § 709, post. 912 PROBATE LAW AND PRACTICE. 10. Sale foi liest interests of the estate. The California statute, which authorizes the property of a decedent to be sold, whether real or personal property, where it appears to be for the advantage, bene- fit, or best interests of the estate, is constitutional and valid: Estate of Porter, 129 Cal. 86, 87; 79 Am. St. Eep. 78; 61 Pac. Hep. 659. The provisions of section 1536 of the Code of Civil Procedure of California, as amended in 1893, in so far as they authorize a sale " for the advan- tage, benefit, and best interests of the estate," are unconstitutional as to titles that vested prior to such amendment, but such a sale is valid as to titles which vested subsequently to that amendment: Gutter v. Dallamore, 144 Cal. 665, 668; 79 Pac. Rep. 383. An amendment to the code, authorizing a sale to be made when it appears to be for the advantage, benefit, and best interest of the estate, cannot affect the title to the land vested in the heirs at the death of the decedent, which occurred prior to the enactment of such amendment; the right of the heirs is subject only to such powers to order a sale in the course of administration as were possessed by the court at the time of testa- tor's decease, and are unaffected by subsequent legislation giving the power of sale for new purposes different from and greater than those conferred by the law in force at the death of the deceased: Estate of Newlove, 142 Cal. 377, 380; 75 Pac. Eep. 1083. Whether it be for the advantage, benefit, and best interests of the estate, or those inter- ested therein, to order a sale of more than one parcel of real estate, is a question of fact to be determined by the court upon the evidence before it in reference thereto; and to the extent that its decision depends upon inferences to be drawn from the situation of the property, or of the parties who are interested therein, it is not open to review: Estate of Steward, 1 Cal. App. 57; 81 Pac. Bep. 728. Upon the death of the ancestor, the property of the intestate at once vests in the heir; it vests subject to conditions imposed by the statute, such as the qualified possession and control of the administrator, under the direction of the court, for its care and its appropriation to the payment of the debts of the decedent, expenses of administration, and other liabilities enumerated in the statute; but, as the right of the heir to inherit the estate is itself a creature of the statute, there can be no question as to the power to impose these liabilities upon the estate, subject to which the property vests in the heir. Directions for the control of the estate have no other basis than that of the preservation of the best interests of those in whom the statute vests the right of property. An amendment to a statute adding, as a ground upon which an order of sale may be made, the following: " Or when it appears to the satisfaction of the court that it is for the advantage, benefit, and best interests of the estate, and those interested therein, that the real estate, or some part thereof, be sold, the executor or administrator may sell any real as well as personal property of the estate upon an order of the court," is not unconstitutional, and where a testator died after the enactment of such amendment to the code. SALES OP REAL ESTATE AND CONFIRMATION. 913 the court may order a sale, upon the ground mentioned in such amend- ment, under such circumstances that the consent of the owner, if he were capable of giving it, would be presumed: Estate of Porter, 129' Cal. 86, 99; 61 Pac. Eep. 659; 79 Am. St. Eep. 78. 11. Order to show cause. Notice of hearing. (1) In general. The absence of any order to show cause, and of any service of the notice upon all persons interested in the estate, as- provided by statute, is fatal to the validity of the sale: Campbell v. Drais, 125 Cal. 253, 258; 57 Pac. Eep. 994. The court may proceed at. once, on completion of the publication of the order, at the time named in the order. It is not required that thirty days shall have elapsed after the completion of publication of the order to show cause before the court has jurisdiction of persons interested in the estate, even though some of such persons reside in a foreign country. There is no- analogy between this method of obtaining jurisdiction of the person in probate proceedings, and by the publication of summons in ordinary civil actions: Estate of Eoach, 139 Cal. 17, 21; 72 Pac. Eep. 393. The posting of a notice on the twelfth day of July, giving notice of a hearing of the petition on the twenty-second, day of the same month,, is sufficient as a ten-day notice: Bates v. Howard, 105 Cal. 173, 182; 38 Pac. Eep. 715. An administrator's deed is void, even upon a col- lateral attack, if there was no notice to the heirs of the time and place at which the application to sell real estate to pay debts could be heard: Chicago etc. E. Co. v. Cook, 43 Kan. 83; 22 Pac. Eep. 988. See Mickel V. Hicks, 19 Kan. 578. An order to show cause why a sale should not be granted, directed only " to all persons interested," is not required to be addressed to the heirs of the deceased by 'name. While- it would be proper to name the parties interested, where the same are known, yet it has been held by the supreme court, in the state of Washington, that it is not essential, under existing legislation: Purth. v. United States etc. Trust Co., 13 Wash. 73; 42 Pac. Eep. 523. Nor is it required, under the Washington statute, that an order for the publi- cation of the notice, with the designation of the particular newspaper,, shall be contained in the order to show cause why a sale should not be granted: Furth v. United States etc. Trust Co., 13 Wash. 73; 42: Pac. Eep. 523. Upon the hearing of a petition by an administrator for an order of sale of real estate to pay judgments, and costs, and expenses of administration, an objection was made to the introduction in evidence of the said judgments, on the ground that they had not been filed in time, and because of omissions which were supplied by amendments made some years after the judgments were rendered, and before the hearing; but it was held that the provision as to the time of filing was merely directory; that the amendments in the judgments were to correct clerical errors and misprisions by the record itself; and that the court did not exceed its powers in permitting the amendr ments: Estate of Schroeder, 46 Cal. 305, 316. Under the Kansas statute Probate — 68 914 PROBATE LAW AND PRACTICE. relating to proceedings of the probate court for the sale of lands of decedents, the court has full authority and discretion to fix the time of the notice as it sees fit, and, in doing so, is in no wise restricted by law. The • defect in the notice must have rendered the proceedings void in order to avail the heir, upon collateral attack, in an action of ejectment: Thompson v. Burge, 60 Kan. 549; 57 Pac. Eep. 110. See also Wyant v. Tuthill, 17 Neb. '495; 23 N. W. Eep. 342. (2) Service of notice. Where objection is made that the order of sale is void because there wa,s no service of the order to show cause entered, after the filing of the petition, upon the minor heirs, and it is urged that the appointment of the guardian ad litem was made on the same day on which the order of sale was entered, the act of the court and of the guardian in making a sale cannot be held void, because the statute does not prescribe that service must be made of a copy of the order before such appointment, and the statute is silent as to the time of the appointment: Stuart v. Allen, 16 Cal. 473, 504; 76 Am. Dec. 551. The order to show cause must be personally served at least ten days before the hearing, on all persons interested, etc., or be published in some newspaper, as the court may direct. If all persons interested join in the petition for the sale, or assent in writing thereto, the notice may be dispensed with, and the hearing had at any time. The language of the statute, that the appearance of an appointed attorney " is sufficient proof of the service of the notice on the parties he is appointed to represent," implies that there must be notice to the parties and proof of the service of such notice, and merely means that after such service the " appearance " of the attorney, under certain circumstances, may be taken as sufficient proof of the fact of service. But where it affirmatively appears that there was neither notice nor service, there is no jurisdiction. The attorney cannot waive both notice and service: Campbell v. Drais, 125 Cal. 253, 258; 57 Pac. Eep. 994. An attorney for minor heirs can represent them only in a proceeding which has been duly inaugurated, and in which the court has already jurisdiction of the minors by such service of summons or notice as the code provides. Therefore he has no authority to repre- sent them in a proceeding to sell the real estate of a decedent untU after the court has obtained jurisdiction of their persons by the service of notice upon them. He cannot waive such notice, nor by any of his acts invest the court with jurisdiction of their persons, which it has not already acquired: Campbell v. Drais, 125 Cal. 253, 258; 57 Pac. Eep. 994. 12. Hearing. (1) Demand for jury trial of issues. Where a demand for a trial by jury of the issues raised upon an opposition to the executor's peti- tion to sell real property belonging to the estate to pay debts, etc., was made in the lower court only in the objections filed, and not by a written demand for a trial by jury as required by the statute, and, so SALES OF EKA.L ESTATE AND CONFIRMATION. 915 far as the record shows, the demand was never called to the attention of the court or judge until the hearing began, a trial by jury was properly denied, no matter what the issues were: In re Tuohy's Estate, 33 Mont. 230; 83 Pac. Rep. 486. (2) Questions not considered. Upon an application for an order to sell property, the court will not hear and determine a question of heirship. Such fact may be determined at the final settlement of the estate, in proceedings connected therewith. When parties appear, claiming to be heirs of the intestate, they should be permitted to show any relevant and pertinent cause why a sale of the real property should not be made in accordance with the petition, without questioning their heirship: In re Houck's Estate, 23 Or. 10; 17 Pac. Eep. 461. (3) Findings. It has never been definitely determined that findings are necessary in probate orders, such as an order for the sale of real property; but where the record does not show that findings were not waived, the error, if any, is immaterial: Estate of Arguello, 85 Cal. 151, 153. See Reynolds v. Brumagim, 54 Cal. 258; Estate of Crosby, 55 Cal. 574; Estate of Sanderson, 74 Cal. 199; 15 Pac. Eep. 758; Campbell v. Coburn, 7.7 Cal. 36; 18 Pac. Eep. 860. A finding, in a former proceeding, which is not necessary to the judgment in that proceeding, cannot operate as an estoppel as against any one in a sub- sequent proceeding upon an application for an order to sell real estate for the payment of debts and costs of administration: Estate of Heydenfeldt, 127 Cal. 456; 59 Pac. Eep. 839. See Lillis v. Emigrant Bitch Co., 95 Cal. 553; 30 Pac. Eep. 1108. 13. Notice after appeal. After the remittitur of the appellate court has been filed in the probate court, the last-named court is at liberty to hear and dispose of a petition upon such notice as may be provided by its general rules, or as it may deem reasonable in the particular ease; and, unless it should be made to appear that it has abused its discretion in this respect, or that the parties entitled thereto have been prevented from having a hearing, its action wiU not be set aside. It is not necessary for the court below, after reversal of its former order, again to give the notice required by the statute, where it origi- nally complied with the requirements of the statute, and had obtained jurisdiction in the matter and over all persons interested therein. The court's subsequent action upon the petition is a movement within its jurisdiction, to be reversed only for some error in law which might be shown upon a direct appeal: Estate of Gouts, 100 Cal. 400, 403; 34 Pac. Bep. 865. 14. Order of sale. (1) In general. An order of sale, after notice to all parties inter- ested, and after examination of the proofs presented, is an adjudica- tion of the court that the sale of the property described is necessary. 916 PROBATE LAW AND PEACTICE. From this order the administrator, and any person interested in the estate, may appeal, but, unless taken, the order is conclusive and bind- ing upon them: Estate of Spriggs, 20 Cal. 121, 125. An order for the sale of real estate is not one made in the pre-existing proceeding, in which the court has already acquired jurisdiction, but it is in reality a judgment in a new, separate, and independent proceeding; depending for its validity upon the sufficiency of the facts contained in the petition: Ethell v. Nichols, 1 Ida. 741, 745. It is not necessary to particularize, in an order for the sale of a decedent's property, items constituting the debts and expenses of administration accrued and to accrue: Estate of Eoach, 139 Cal. 17, 21; 72 Pac. Eep. 393. The order of sale imports a finding of the truth of the general facts showing that the sale is necessary, and that evidence of that effect was given at the hearing: Burris v. Kennedy, 108 Cal. 331, 339; 41 Pac. Eep. 458. It will be presumed that the evidence sustains the findings and the order, where the court finds that outstanding debts existed, and that there were charges of administration accrued and to accrue: Estate of Eoach, 139 Cal. 17, 21; 72 Pac. Eep. 393. The order of sale cannot be obviated, nor can its efficacy be impaired, by the fact that it may subsequently appear that too low an estimate was placed by the court upon the value of the property ordered to be sold, or as to the price it would bring: Estate of Spriggs, 20 Cal. 121, 125. The order for a sale of perishable personal property is not required to state that such property was ' ' perishable property, and liable to assessment and taxa- tion," inasmuch as such statements are not necessary to the order, and are, in truth, mere surplusage: Halleek v. Moss, 22 Cal. 266, 275. The order for the sale and the order of confirmation are both judicial acts. The sale is a judicial sale, and therefore not within the statute of frauds: Halleek v. Guy, 9 Cal. 181, 196; 70 Am. Dee. 643. (2) Validity of. It would be better practice for the court, in all cases where there are several distinct parcels of property, to insert in its order a direction that the sale cease when the amount required has been obtained; but the omission of such a direction cannot invalidate the order or the sales made in pursuance of it: Estate of Spriggs, 20 Cal. 121, 125. The principle that no sale can be had without the order of the court applies also to claims of causes of action existing in favor of the estate. So where an executrix, appointed in another state, attempted to assign and transfer to the plaintiff, by an instrument in writing executed by her as such executrix, presumably in such foreign state, all the claim and cause of action of said estate, under instru- ments of writing held by the estate against the plaintiff, it was held that such transfer and assignment, without authority of the probate court, was invalid, the presumption being that the laws of such foreign state, prohibiting probate sales without order of court, are the same as the laws of this state, in the absence of evidence to the contrary: Bovard v. Dickenson, 131 Cal. 162, 164; 63 Pac. Bep. 162. See also SALES OF REAL ESTATE AND CONFIRMATION. 917 Wiekersham v. Johnson, 104 Cal. 407; 38 Pac. Eep. 89; 43 Am. St. Eep. 118; Rankin v. Newman, 114 Cal. 635, 660; 46 Pae. Kep. 742; 34 L. E. A. 265. The provision of the statute declaring that no sale of any property of an estate shall be valid unless made upon an order of the probate court applies only to sales by executors and administrators. It has no reference to judicial sales under the decrees of the district courts, nor to sales in pursuance of testamentary authority: Fallon v. Butler, 21 Cal. 24, 31; 81 Am. Dec. 140. See Larco v. Casaneuava, 30 Cal. 561, 567. An order of sale, where it appears that the person applying for the order never had letters issued to him, and never qualified as adminis- trator, is void, and a statute passed for the purpose of curing defects of form, omissions, or errors, etc., is without effect, in so far as it attempts to validate such judgment or order: Pryor v. Downey, 50 Cal. 388, 398. Where the order of sale provides " that such sale shall cease when an amount not less than ten thousand dollars and not exceeding eleven thousand dollars has been obtained," such provision does not render the whole order void: Richardson v. Butler, 82 Cal. 174, 180; 23 Pao. Eep. 9; 16 Am. St. Eep. 101. An order of sale providing for the sale of other property before a sale is made of a particular lot or tract described therein, is in conformity with the requirements of the Washington code, and a sale of the property that was last to be resorted to will not be set aside, where it appears that the adminis- trator complied with the order by first offering the other property for sale in the manner provided: In re Bryant's Estate, 38 Wash. 337; 80 Pac. Eep. 555. 15. Notice of sale. (1) In general. A sale upon insufficient notice is at least voidable, if not absolutely void: Haynes v. Meek, 10 Cal. 119; Halleck v. Moss, 17 Cal. 840, 344. The probate court, in its order confirming a sale, declared that the notice of sale had been posted in three public places. Evidence was introduced with the intent to show that one of the places was not a " public " place, within the meaning of the code. It was held that the court, having jurisdiction of the proceeding, could, within that jurisdiction, find the fact that the place was a public place, and that such finding eould not be attacked collaterally: Richardson v. Butler, 82 Cal. 174, 180; 23 Pae. Eep. 9; 16 Am. St. Rep. 101. (2) Publication. Under the California statute, notice of a sale must be published " for two weeks successively next before the day on or after which the sale is to be made," and the publication must be "as often, during the prescribed period, as the paper is regularly issued." This means that the publication must be for two successive weeks, and in each successive issue of the paper up to the day on or after which the sale is to take place. Under this statute, a notice published on January 27th, February 3d, and February 10th is sufScient 918 PROBATE LAW AND PRACTICE. for a sale which takes place on February 15th: Estate of O'SulUvan, 84 Cal. 444, 448; 24 Pac. Rep. 281. Where publication of a notice of administrator's sale, under a statute and order requiring publication for " at least four successive weeks," etc., was made for three weeks in a paper, at which time the paper discontinued publication, and the fourth publication was in a paper not mentioned in the order, it has been held that the discontinuance of the paper did not annul the order, nor turn the question of publication, or of further publication, over to the discretion of the administrator, and that the order of sale was void from the beginning, for that reason: Townsend v. Tallant, 33 Cal. 45, 51; 99 Am. Dec. 617. On an appeal from an order confirming a sale of real property on the ground of insufficiency of the notice of sale, it has been held that where a statute prescribes that the notice shall be published in a newspaper for three weeks successively, etc., the phrase "three weeks successively" has the same meaning as "three successive weeks."' It simply indicates the time during which the sale must be advertised, and not the manner of the publication, as that it shall be published successively during the period. The word " succes- sively " refers to weeks, and not to the publications of the paper. Therefore it is not required, where a publication under such an order is had in a daily newspaper, that the notice be published in each issue of the paper: Estate of Cunningham, 73 Gal. 558, 559; 15 Pac. Eep. 136. Publication, under a statute which requires notice of the sale to be published " for three weeks successively next before such sale," is insufficient, where the notice of sale was published in a weekly news- paper for thrae successive weeks, but not during the last week next before the day named for the sale, there being an interval of nine days between the completion of the last publication and the day of sale: Hartley v. Croze, 3S Minn. 325. So, also, where a notice of sale named April 21, 1892, as the day on or after which the sale would be made, and the notice was published in a daily newspaper from the fifth to the nineteenth day of that month, such publication is insufficient; for if publication in the daily paper may be omitted for one day, it may be omitted for two or more days, and there can, in such case, be no certainty as to when the last publication must be made: Hellman v. Merz, 112 Cal. 661, 666; 44 Pac. Eep. 1079. Where there is nothing in the statute to indicate a legislative intent that the publication of the notice of sale shall be in a daily rather than a weekly paper, the publication in a weekly paper is sufficient to meet all requirements of the law: Estate of O'SulUvan, 84 Cal. 444, 447; 24 Pac. Rep. 281. Where notice of sale had been given by publication in a newspaper, but it is not shown that it had been so given under the authority of any order directing it to be done, this is a fatal defect of proof in relation to the notice under which the sale was made, and for this reason, and for the additional reason that no notices had ever been posted, the sale was invalid: Halleck v. Moss, 17 Cal. 340, 344. SALES OF REAL ESTATE AND CONPIEMATION. 919 16. Ordering resale. Where no other course is open, it is proper for the court, in its discretion, to order a resale: Estate of Long (Cal. App.), 91 Pac. Bep. 169. A resale of real estate, made after annulment of the first sale, but based upon the original unverified petition, is, as was the first sale, void for want of jurisdiction: Estate of Boland, 55 Cal. 310, 316. Where an executor, upon a resale of property, — directed by the court, at the hearing for confirmation, because of an advanced bid having been made, — contracted with the pur- chaser at the second sale, after the sale but before confirma- tion, and received a deed from the purchaser, immediately after confirmation to such purchaser, the executor holds the legal title to the property in trust for the devisees under the will, subject to a proper accounting for money paid on the purchase, for repairs, etc., less rents received, and for any other proper transactions that may exist between the parties: O'Connor v. Plynn, 57 Cal. 293, 295. Where the executors of a vendor have canceled his contract for the sale of land, for default of the purchaser, and thus regained title, they may sell and convey such real estate, and account to the court of their appointment for the proceeds as personalty, and the title so con- veyed is good as against the heirs of the decedent claiming title by succession: Clapp v. Tower (N. D.), 93 N. W. Eep. 862. 17. Nunc pro tunc order of sale. Where, on the return-day men- tioned in the order to show cause, a hearing was had and proofs made, and a decree directing a sale was also made on that day; and subse- quently, seven days later, another decree or order of sale was made, referring to the same petition, and reciting that the order theretofore made in the matter had been vacated for errors, and where the sale took place under a later order, although the later order was not in form a nunc pro tunc order, it must be so regarded, as it was evidently in lieu of the order made on the first day of the hearing, although, by mistake, a different decree was then entered: Burris v. Kennedy, 108 Cal. 331, 340; 41 Pac. Eep. 458. 18. Public sale. Under the provisions of the statute of California, all sales must be made at public auction, unless, in the opinion of the court, the best interests of the estate would be subserved by a private sale. When, however, a private sale is asked for, the court may act upon the opinion of the executor or administrator and order such a sale to be made. Where, upon a petition of a creditor for an order of sale at public auction, and where a private sale is not asked for by the administrator, the court does not improperly exercise its judgment in ordering a public sale, although the administrator is present at the hearing of the petition, and objects to having the property sold at public auction, on the ground that a private sale would be most bene- ficial to the estate and to the creditors thereof: Estate of Dorsey, 75 Cal. 258, 260; 17 Pac. Eep. 209. The duty of an administrator is not. 920 PROBATE LAW AND PEACTICE. necessarily, inconsistent with an agreement to ask for an order of sale, upon consideration that the purchaser wUl give an agreed sum at the sale, nor does this amount to a private sale, for the very agreement ■contemplates that the sale shall be public, and the court has no power to make or to authorize any other sale, or a sale in any other mode: Stuart V. Allen, 16 Cal. 474, 499; 76 Am. Dee. 551. 19. Private sale. Where land is sold by the executor at private sale, and return made thereof, and not at public sale, as directed in the order of sale, the court has no jurisdiction to confirm it, and the sale is void on the face of the record: Schlicker v. Hemenway, 110 Cal. 579, 581; 42 Pac. Eep. 1063; 52 Am. St. Eep. 116. Neither an executor nor a legatee can authorize a sale of the property of a decedent, and therefore neither can ratify such sale; nor can an agent, empowered by a decedent in his lifetime to sell certain property, effect a sale thereof after the decease of his principal. The agency is terminated by death, and thereafter the estate acquires the property for purposes of administration, and for the benefit of all classes of creditors, in the manner prescribed by the statute: Krumdick v. White, 107 Cal. 37, 41; 39 Pac. Eep. 1066. Under the Oregon statute, the county court is vested with discretion in the matter of ordering private sales of the personal property of an estate, and may allow the administrator com- pensation for clerk's rent of a store, and other expenses connected therewith, but the court is powerless to authorize the purchase of £oods to replenish the stock. As to such expenses, the administrator will be charged on his own account: In re Osburn's Estate, 36 Or. 8; 58 Pac. Eep. 521. 20. Betum of sales. At the hearing of a return of sale of certain real estate, made by the administrator, under order of the court, it is within the jurisdiction of the court to postpone a further hearing upon the matter until another day to receive additional bids, even though an offer is made, at the time of the original hearing, of ten per cent more in amount than that named in the return. The provision of the Cali- fornia statute, giving the court discretion to accept the offer of an made or of ordering a new sale. It is authorized to receive as many discretion to the alternative of accepting the first offer that may be made or of ordering a new sale. It is authorized to receive as many bids as may be made, and, upon a consideration of all the bids, may then determine whether to accept the highest, or to order a new sale: Estate of Griffith, 127 Cal. 543, 544; 59 Pac. Eep. 988. A recital in the decree confirming the fact that the return of the sale was duly verified by affidavit is conclusive as to that fact, and a finding of fact to the contrary does not in any manner affect the conclusiveness of the recital in the decree. The fact is not a jurisdictional one, and the principle applied to the inconclusiveness of statements or recitals in judgments, conferring jurisdiction, does not apply: Dennis v. Winter, 63 Cal. 16, 18. SALES CP KEAL ESTATE AND CONFIRMATION. 921 21. Irregularities in sales. Mutual mistake. Informality as to the delivery of personal property upon a probate sale does not make the sale so far void that it cannot be ratified by the probate court in some subsequent order: Brewster v. Baxter, 2 Wash. Ter. 135; 3 Pac. Kep. 844. Irregularities, in no wise fatal to the proceedings, may be subse- quently cured by the order of the court confirming the sale: Furth v. United States etc. Trust Co., 13 Wash. 73; 42 Pac. Eep. 523. Irregula- rities, defects, and inconsistencies in the proceedings do not necessarily render a decree ordering a sale void, for, where it appears that the court was acting within the scope of its jurisdiction in making its final decree, such inconsistencies, irregularities, and defects may be corrected upon appeal, and the decree will not be nullified in an indi- rect attack: Stuart v. Allen, 16 Gal. 474, 499. Technical objections to a sale, where there is no pretense that the sale under which appellants claim was in fact fraudulent, or that it was without adequate consid- eration, or in any way unfair, will not be regarded as sufficient to overturn, for want of jurisdiction, the judgment of a court, or to destroy a title to realty honestly acquired: Richardson v. Butler, 82 Gal. 174, 180; 23 Pae. Eep. 9; 16 Am. St. Eep. 101. Mere irregularities do not affect the title, and such objections cannot prevail in a collat- eral attack upon the order of sale: Dennis v. Winter, 63 Cal. 16, 18. See Irwin v. Scriber, 18 Cal. 499; Halleok v. Moss, 22 Cal. 266, 276. The failure of a probate court to require a new or an additional bond from the executor, if any is necessary, with resident sureties, does not render void the sale of real estate which was subsequently confirmed by the probate court: Higgins v. Eeed, 48 Kan. 272; 29 Pae. Eep. 389. Though the petition for a sale is irregular and defective, in not stating some of the things that the statute requires it to state, yet if it is sufii- eient to give the court jurisdieion, questions raised in a collateral pro- ceeding as to the publication of the order to show cause, a failure of the petition to state the amount of the personal estate undisposed of, to state that a sale of the real estate was necessary in the course of administration, or to state whether the deceased left any debts, are defects insufficient to affect the title in the hands of bona fide pur- chasers: Ackerson v. Orchard, 7 Wash. 377; 34 Pac. Eep. 1106. In a case where there is no misstatement or concealment of any fact, and no misrepresentation as to the law, and which presents only a mutual mistake of the purchaser of certain land sold under the order of the probate court and the administrator as to the law, each believing that, under the facts, the land was part of the decedent's estate, there can be no estoppel based on such error: Gjerstadenjen v. Van Duzen, 7 N. D. 612; 76 N. W. Bep. 233. 22. Fraudulent sales. If the administrator and another person enter into a contract with the purchaser at a probate sale, after the sale and before confirmation, to purchase the property from the latter, such con- tract is a violation of the statute which prohibits an executor or 922 PKOBATE LAW AND PRACTICE. administrator from being interested in a sale made by him, and is voidable, at the election of heirs or other persons interested in the estate, but is not absolutely void: Burris v. Kennedy, 108 Cal. 331, 341; 41 Pac. Eep. 458. In such cases the sale is always virtually to the administrator, and it is that fact which renders it voidable: Burris v. Kennedy, 108 Cal. 331, 343; 41 Pac. Bep. 458. Where, in order to overthrow title to property purchased at a probate sale, by proof of a fraudulent conspiracy between the administrator and the real pur- chaser, the facts constituting the fraud must be averred; and this rule applies in an action to quiet title, where the only possible defense would be proof of such fraudulent conspiracy. The defendant, in such a case, could not give proof without an averment of the facts consti- tuting the fraud: Burris v. Adams, 96 Cal. 664, 668; 31 Pac. Eep. 565; Wetherly v. Straus, 93 Cal. 283; 28 Pae. Eep. 1045. An executor or administrator, as the case may be, who fraudulently sells any real estate of the decedent, is made, by statute, liable in double the value of the land sold, as liquidated damages, to be recovered in an action by the person having an estate of inheritance therein, but this liability does not apply to the sureties, and the statute affords no warrant for an action upon the bond of the administrator for the recovery of double the value of the land alleged to have been fraudulently sold by him: Weihe v. Statham, 67 Cal. 245, 248; 7 Pac. Eep. 673. Where fraud is not established by the record, or the evidence, and the court acquires jurisdiction to order and confirm the sale, the proceedings are not void, and their regularity is not subject to attack in a collateral manner as against a bona fide purchaser: Ackerson v. Orchard, 7 Wash. 377; 34 Pac. Eep. 1106; 35 Pac. Eep. 635; McKenna v. Cosgrove, 41 Wash. 332; 83 Pac. Eep. 240; Otis Brothers Co. v. Nash, 26 Wash. 39; 66 Pae. Eep. Ill; Huberman v. Evans, 46 Neb. 784; 65 N. W. Eep. 1045; Phillips v. Phillips, 13 S. D. 231; 83 N. W. Eep. 94; Hahn v. Kelly, 34 Cal. 391; 94 Am. Dee. 742. 23, Executor purchasing at his own sale. (1) Generally prohibited. The rule that prohibits an executor from purchasing at his own sale is based upon the principle that a trustee is disabled from purchasing trust property, whether the purchase is made directly by himself or through another: Webb v. Branner, 59 Kan. 190; 52 Pac. Eep. 429. If an administrator purchases property of the estate at a foreclosure sale, he cannot claim title thereto adversely to the estate, but he is a trustee thereof, and will be compelled to reconvey to the estate upon payment to him of the amount equitably due him from the estate: Smith v. Goethe, 147 Cal. 725; 82 Pac. Eep. 384, 387. If two executors lend money of the estate, taking a trust deed on certain real estate as security, and, the money not being paid, a foreclosure is had, and one of the executors bids in the property, taking a deed investing him personally with the title, his creditors, who have attached the land, are entitled to subject it to their claims, SALES OP REAL ESTATE AND CONFIRMATION. 923 where the statute declares that all conveyances or agreements in writing affecting title to real estate shall, -when recorded, take effect as to subsequent bona fide encumbrancers without notice. They are supposed to have known that the executor ijiight lawfully purchase for himself at the sale by the trustee, and, finding upon the record a deed from which it appears that he has so purchased, they have the right, in the absence of other knowledge, to regard the property as his: Perkins V. Adams, 16 Col. App. 96; 63 Pac. Eep. 792, 795. BEFEBENCES. Validity of sale to surety on executor's bond: See note 4 L. E. A. (N. S.) 820, 821. Purchases in the interest of executors or adminis- trators at sale made by them: See note 12 Am. Dee. 85, 86. An executor or administrator is not permitted to purchase any property of the estate, directly or indirectly, at sales thereof: See § 592, ante. (2) Invalidity of such purchase. Remedy. An executor who bar- gains with the purchaser of property sold by the estate, after purchase and before confirmation, places his interest in confiiet with his duty, and such purchases will be set aside as void, at the instance of the cestui que trust, and a resale ordered: O'Connor v. Plynn, 57 Cal. 293, 296. Where the agent of the administrator purchases the property at a tax sale, while he or his tenants are in possession, such purchase does not pass, or otherwise affect the title to the property: Burnall v. Lynch, 36 Cal. 135, 146. While, upon the face of the proceedings, the sale may appear to be a bona fide sale and an actual transfer, yet where it was only a device by which the administrator undertook to acquire, indirectly, title for himself, as trustee, this is as much a violation of the fiduciary relation, and as great a fraud, in the eye of the law, as though the administrator had made a direct sale to himself: Webb v. Branner, 59 Kan. 179; 52 Pac. Eep. 429. A corrupt agreement entered into by an executrix, while acting as such, with a person, by which, upon a sale of the property of the estate, such person is to purchase the same and share with the executrix the profits of the transaction, is interdicted by the law, and any contract sued upon by such purchaser, as, for instance, for commissions in purchasing and selling the property, and for interest on the advances, etc., cannot be enforced in court, either against the representative of the estate or any person who knowingly indorsed instruments relating to the transaction, as such contract is not only contrary to the express provisions of the statute, but is also contrary to public policy, and is void: Jones v. Hanna, 81 Cal. 507, 509; 22 Pac. Eep. 883. If the administrator, in effect, pur- chases at his own sale, the cestui que trust has several remedies which may afford him adequate relief. He may have the sale set aside and the administrator declared a trustee; he may sue upon the adminis- trator's bond; or he may proceed to recover the penalty of double the value of the land sold, where the statute provides for such penalty: Boyd V. Blankman, 29 Cal. 20, 35; 87 Am. Dec. 140. Though an heir 924 PROBATE LAW AND PRACTICE. acquieseed in the settlement of the administrator's accounts, and was paid the amount awarded thereunder, yet, if the administrator failed to act in good faith, and. effected a fraudulent and indirect sale to himself, and the heir, by reason of his fraud and concealment, was not aware of the facts in the case, he is not estopped from bringing his action to recover his interest in the property thus fraudulently sold, together with the rents and profits thereof: Webb v. Branner, 59 Kan. 190; 52 Pae. Eep. 429. (3) Such purchase is not void wheu. An executor or administrator is prohibited by the statute from purchasing the property of the estate he represents: Burnett v. Lyford, 93 Cal. 114, 120; 2.8 Pac. Eep. 855; Danielwitz v. Sheppard, 62 Cal. 339. A violation, however, of such prohibition does not render a sale or conveyance to the administrator absolutely void. It is only voidable within a reasonable time, at the election of the heirs or other persons interested in the estate, who must rescind, and, in doing so, restore to the purchaser the money which has been paid as a consideration: Burris v. Kennedy, 108 Cal. 331, 342; 41 Pac. Eep. 458; Burnett v. Lyford, 93 Cal. 114, 118; 28 Pac. Eep. 855. If an administrator has, without actual fraud, purchased property of the estate at his own sale, the transaction is not absolutely void, but only voidable, at the suit of the cestui que trust: Purth v. Wyatt, 17 Nev. 180; 30 Pae. Eep. 828. There is nothing in the law to prohibit the executor from becoming interested and acquiring an interest in property after the estate has ceased to have an interest therein. So where an executor acquired an interest after a sale, for its fuU value, although an interest so acquired may create a suspicion that he was interested in the first sale, it is, nevertheless, not sufficient to authorize setting the sale aside: Estate of Millenovich, 5 Nev. 161. Where the administrator, in good faith, and to save the estate from costs, and to preserve the same, purchased a mortgage claim, and such purchase resulted in benefit to the estate, without gain to the admin- istrator, the administrator is entitled to be protected and remunerated: Purth V. Wyatt, 17 Nev. 180; 30 Pac. Eep. 828. An executor or admin- istrator may purchase the property of a decedent he represents, to protect it from a sacrifice by foreclosure at the suit of a mortgagee. In such a case it will be considered that he is acting within the exer- cise of his duties as a representative, rather than as a purchaser of the claim for his own benefit: Burnett v. Lyford, 93 Cal. 114, 118; 28 Pac. Eep. 855. 24. Substitution of purchasers. The mere substitution of one pur- chaser for another cannot afEeot the validity of the sale. The order directing the sale, and the order confirming it, give vitality to the pur- chase: Halleck v. Guy, 9 Cal. 181, 197; 70 Am. Dec. 643. 25. Illegal contracts with executor or administrator. A contract entered into between the widow of a decedent as administratrix of the SALES OF REAL ESTATE AND CONFIRMATION. 925 estate, and by another person as heir, with a third person, by which it was agreed that all moneys derived from the sale of real property belonging to the estate over and above a stated figure should be paid to such third party for services, etc., is an agreement unauthorized by any provision of the statute, and is contrary to the policy of the law. Hence a judgment recovered by such third person for the amount derived from the property, over and above the amount stated in the contract in such agreement, will not be sustained: Danielwitz v. Shep- pard, 62 Cal. 339, 342. 26. Irregularities cured by retroactive acts. Where the sale is void, merely in consequence of a failure of those having the direction of it to observe conditions imposed by the legislature itself, and which it could have dispensed with in the beginning, and the sale has been other- wise valid, the legislature may, by a retroactive act, cure the defect: MitcheU v. Campbell, 19 Or. 198; 24 Pac. Rep. 455, 457. The title of heirs to the property is subject to the paramount right of the government to direct its disposition, if necessary, for the purpose of liquidating existing claims against the estate of the decedent. The title of the heirs vests in them by operation of law, but is subject to such right of dis- position. If, therefore, the property is sold under an order of the probate court, by a duly appointed and qualified executor or adminis- trator, for the purposes mentioned, and a valuable consideration has been paid therefor by the purchasers in good faith, the heirs are not deprived of any vested right, although the conditions upon which the general statute authorized the sale to be made were not strictly com- plied with: Mitchell v. Campbell, 19 Or. 198; 24 Pac. Eep. 455. 27. Sales by guardian. The provision of the statute requiring the petition to show the amount of personal estate, and how much remains undisposed of, is inapplicable to a guardian's sale. The reasons requir- ing that the personal estate of a deceased person should be first sold do not apply to the estates of a ward. In the latter case, the court, in determining whether the real or personal estate should be sold, should ordinarily be governed by the same reasons which would influence a competent adult in disposing of his own property. A determination of ' what is for the best interest of the ward must control: Estate of Ham- ilton, 120 Cal. 421, 424; 52 Pac. Rep. 708. The petition for a sale by a guardian is required to state only the condition of the estate to be sold, when the sale is asKed upon the sole ground that it is for the benefit of the ward that his real estate, or some part of it, should be sold and the proceeds otherwise invested: Smith v. Biscailuz, 83 Cal. 344, 351; 21 Pac. Rep. 15; 23 Id. 314. The order for a guardian's sale must describe the land to be sold with sufficient certainty, and this must be so without reference to any extraneous matter. The record cannot be helped out by reference to a document not found in the order itself: Hill v. Wall, 66 Cal. 130, 132; 4 Pac. Rep. 1139. See 926 PKOBATE LAW AND PEACTICE. Crosby v. Dowd, 61 Cal. 557. Where the statute relating to a guar- dian's sale provides for the publication of notice, and further provides that the relatives living in the county, if the court thinks proper, shall be given such notice as the court deems reasonable, this clearly implies that the kind or character of the notice to be given is a matter for the judge to determine, and that a personal notice is not absolutely demanded by the statute. Furthermore, it is a matter of discretion, upon the part of the court, whether to give any notice whatever to the relatives residing in the county: Asher v. Yorba, 125 Cal. 513, 515; 58 Pao. Rep. 137. See also Burroughs v. De Couts, 70 Cal. 373; 11 Pae. Rep. 734. Though a non-resident guardian of non-resident minor devisees assumes to consent to a probate sale in this state on behalf of such minor devisees, such consent is insuficient to give the court here jurisdiction to make an order of sale of their property in this state. Such guardianship gives no authority here to bind the estate of non-resident minor devisees, that is situated in this state: Wilson V. Hastings, 66 Cal. 243, 246; 5 Pac. Rep. 217. Where a collateral attack is made upon a guardian's sale of the land of a minor, the burden of showing that the sale was not a valid one, or that it was void, is upon the person who attacks the same. The absence of evi- dence in the record, upon such collateral attack, showing the jurisdic- tional facts, may be taken as evidence of their existence: Asher v. Yorba, 125 Cal. 513, 516; 58 Pac. Eep. 137. 28. Sales by foreign executor. An executor or administrator in another jurisdiction, with power to sell, and having property of his testator or intestate, may sell the same, and vest title in the pur- chaser. The title of the purchaser is complete, as between the parties, when the property (in this case indorsed certificates of stock) has been delivered. And with reference to such sale and transfer of stock, it is not necessary to have letters of administration issued in this state in order to obtain a transfer on the books of the corporation. Nor is it necessary that the bond provided for in section 326 of the Civil Code of California be required by the corporation from the purchaser of the stock: Brown v. San Francisco Gas Light Co., 58 Cal. 426,' 428. 29. Exchange is not a sale. The exchange, by an executor, of one form of currency, belonging to the estate, for another form, cannot be treated as a sale: Estate of Sanderson, 74 Cal. 199, 214; 15 Pac. Eep. 753. 30. Sales without order. Section 1561 of the Code of Civil Proce- dure of California implies an authority in the testator to confer power on his executor to sell property without the order of the court, and declares that when such authority ia given, the executor may sell any " property of the estate " without such order. The " property of the estate " here referred to " must receive the same construction as the SALES OP KBAL ESTATE AND CONFIKMATION. 927 same words have -when used in other sections of this title, and must include the entire estate and the property of which the decedent died seised, including the interest of the surviving widow as well as that of the other heirs": Sharp v. Loupe, 120 Cal. 89, 92; 52 Pac. Eep. 134, 586. Where an administrator sells property belonging to the estate, without an order of the court authorizing him to do so, and in the absence of any authority under the will, he, in legal effect, converts such property to his own use, and becomes responsible for its value, with legal interest thereon: Estate of Eadovieh, 74 Cal. 536, 539; 16 Pae. Rep. 321; 5 Am. St. Eep. 466. 31. Title conveyed by sale. The rule of caveat emptor applies to a purchaser at an administrator's sale: Towner v. Eodegeb, 33 Wash. 153; 74 Pac. Eep. 50; Gjerstadengen v. Van Duzen, 7 N. D. 612; 76 N. W. Eep. 233; 66 Am. St. Eep. 679; Smith v. Wildman, 178 Pa. St. 245; 35 Atl. Eep. 1047; 36 L. E. A. 834; 56 Am. St. Eep. 760; Lindsay v. Cooper, 94 Ala. 170; 11 So. Eep. 325; 16 L. E. A. 813; 33 Am. St. Eep. 105. In the absence of any special agreement as to the title of the property sold, it is incumbent upon the vendee to examine the title for himself, and to point out any objections he may have to the title tendered him by the vendor: Easton v. Montgomery, 90 Cal. 307, 313; 27 Pac. Eep. 280; 25 Am. St. Eep. 123; Estate of Pearsons, 98 Cal. 603, 613; 33 Pac. Eep. 431. Sales made under orders of the probate court pass only such title as the decedent had at the time of his death, and such as the estate may have subsequently acquired: Meyers v. Far- quharson, 46 Cal. 190, 200. Under this principle, that a sale by an executor passes only such interest in and title to the property sold as the decedent had at the time of his death, a sale of the interest of the estate in community property, made by the wife in her capacity as executrix, does not affect the wife's one-half interest in the property sold: Estate of Wickersham, 139 Cal. 652, 656; 73 Pac. Eep. 541. No distinction is made between sales of community property to pay debts and to pay expenses of administration. Such a sale passes the wife's title, and also the title of any heir, under the statutory provision declaring that the community property shall be subject to claims against the estate and for purposes of administration: Sharp v. Loupe, 120 Cal. 89, 93; 52 Pac. Eep. 134. If an executor or admin- istrator sells the land of a decedent, under an order of the court, to pay the debts and expenses of administration, the title vests as of the date of the death of the decedent, and devests the lien of a mortgage made thereon by an heir. Hence such mortgage cannot be foreclosed as against the purchaser: Gutter v. Dallamore, 144 Cal. 665, 669; 79 Pac. Eep. 383. The statement of a witness regarding the claim of title of the plaintiff, where too indefinite to be the basis of a judgment as to title cannot in any sense be considered as an estoppel: Wilson v. Hast-\ ings' 66 Cal. 243, 246; 5 Pac. Eep. 217. The question of the power of the executor to sell any property of the decedent under a power in 928 PROBATE LAW AND PEACTICB. the will is not involved in proceedings before the court, upon petition filed by the executor, praying for the construction of certain clauses of the will, and for the determination of his duties in reference thereto, prior to the sale of the land. Nor can the purchaser, upon an appeal from an order confirming a sale, urge that, by such proceeding, the executor had doubts as to his power to sell any portion of the estate of the testator, that thereby the title to the land sold by him was ren- dered uncertain, and therefore that the purchaser ought not to be com- pelled to take the same, and that the court should not have made a confirmation of the sale: Estate of Pearsons, 98 Cal. 603, 610; 33 Pac. Bep. 431. 82. Bona fide purchasers. (1) Rights of. A bona fide purchaser, at a probate sale to pay a mort- gage executed, under authority of the court, by the executor, takes the land from the estate free of any claim of lien or charge against it for a personal obligation of the widow: McKenna v. Gosgrove, 41 Wash. 332; 83 Pac. Rep. 240. When one purchases land at a void or voidable judicial sale, in entire ignorance that it is void, and in good faith pays money thereon, which is applied to the satisfaction of a lien or encum- brance on the land, he should be put in the place of the creditor, to the the extent, at least, that his money has satisfied the lien: Russell v. Mixer, 42 Cal. 475; Waldrip v. Black, 74 Cal. 409, 412; 16 Pac. Rep. 226; Favill v. Roberts, 50 N. Y. 222. But where the purchaser knew of the want of power of the executor to sell without an order of the probate court, was warned not to purchase without an order and sanction of said court, but purchased in the face of this knowledge and caution, he is not an ignorant purchaser in good faith to which the doctrine of subrogation would, under any circumstances, apply: Huse v. Den, 85 Cal. 390, 400; 24 Pac. Rep. 790; 20 Am. St. Rep. 232. Where the sale is a fraud upon the heirs, a purchaser of the property can only be protected upon the hypothesis that he was a purchaser for a valuable consideration, in good faith and without notice. Where the fact of notice is clearly charged in a bill to set aside the sale for fraud, and a specific denial of such facts, and knowledge thereof, are not made in the answer, the answer does not contain a sufB.cient denial of notice, though it contains af^mative averments to the effect that the defendant purchased the property for a valuable consideration, in good faith, and without any knowledge or suspicion, on his part, of any unfairness, illegality, or wrongfulness on the part of the administrator: Scott V. Umbarger, 41 Cal. 410, 418. (2) How affected by adverse possession. In an action to recover possession of real property sold at an administrator's sale, adverse pos- session thereof for the period prescribed by the statute of limitations vests a perfect title in the possessor as against the former holder of the title and all the world, and the tenure in the property is as certain under the proof of an adverse holding during the period prescribed by SALES OF REAL ESTATE AND CONFIEMATION. 929 the statute of limitations, as it would be under an absolute deed of conveyance: Mitchell v. Campbell, 19 Or. 198; 24 Pac. Rep. 455, 459. 33. Necessary sale is valid when. No sale of the real estate of a decedent, made by an administrator or executor, is invalid on account of a failure to set forth, in the petition therefor, the facts showing such sale to be necessary, if the general facts showing the necessity of the sale are proved and found: Blackman v. Mulhall (S. D.), 104 N. W. Rep. 250, 253. A failure to s.et forth any of the facts enumerated in section 1537 of the Code of Civil Procedure of California, prescribing what the verified petition for the sale of real property of a decedent shall contain, will not invalidate the sale, provided the general facts showing that a sale is necessary are proved and found: Burris v. Ken- nedy, 108 Cal. 331, 339; 41 Pac. Rep. 458. 34. Voidable sales. Where an executor, as a trustee, charged with the duty of selling the property, purchases the same from his cestui - >^ ^^ \ [Title of form.] , administrator* of the estate of , deceased' having filed herein his petition, duly iverified by affidavit, praying for an order of this court authorizing, empowering, and directing him, as such administrator,* to mortgage the real property of said deceased therein, and hereinafter de- scribed, for the purpose set forth in said petition; and it appearing that it will be of advantage to said estate that said mortgage be made, — It is ordered by the court, That all persons interested in the estate of , deceased, do appear before this court on the day of , 19 — , at p_ o'clock in the fore- noon ° of said day, then and there to show cause, if any they have, why the real property of said estate, described below, or some part thereof, should not be mortgaged for the sum of dollars ($ ) , as prayed for in the petition of , the administrator, ° this day filed, or for such lesser amount as to the court shall seem meet. Eeference is made to said petition for further particulars. Said real estate, the prop- erty to be mortgaged, is situated in the county^ of , state of , and is more particularly described *as follows, to wit-: * MORTGAGES AND LEASES. 985 It is further ordered, That this order to show cause be published once a week for four successive weeks before the day of hearing, in , a newspaper of general circulation, published in said county * of Dated this day of , 19 — , Judge. Explanatory notes. 1. Give file number. 2. Or, executor of the last wiU; or, guardian of the estate, etc. 3. Or, minor or incompe- tent person. 4. Or, executor, or guardian. 5. Or, afternoon. 6. Or, executor, or guardian. 7. Or, city and county. 8. Give description of property, and interest therein. 9. Or, city and county. § 615. Form. Order authorizing mortgage. [Title of court.] [Title of estate.] 5^° ' Dept. No I [Title of form.] Comes now — , the administrator ^ of the estate of said deceased, by Mr , his attorney, and presents his petition for authority to mortgage the real estate of' said deceased, and proves to the satisfaction of the court that the order herein made, requiring all persons interested to show cause why said estate should not be mortgaged, has been duly and personally served on all persons interested in said estate at least ten days before the time appointed for this hearing,* and the matter coming on regularly this day to be heard,* the court thereupon proceeds to hear the said petition, and, after hearing the evidence, the court being satisfied that the same is for the advantage of said estate, grants said petition. It is therefore ordered by the court. That said , as administrator ° of the estate of said deceased, be, and he is hereby, authorized to borrow the sum of doUars ($ ) , and to execute his promissory note therefor, and a mortgage in form as mentioned in said petition, to secure the payment thereof, on the property hereinafter described, said notes to be payable ° from date, in gold coin of the United States, and to bear interest from date, not exceeding per cent per annum,^ and attorneys' fees not exceed- ing per cent on principal, if suit is brought to foreclose said mortgage, and the buildings on said property shall be insured for the further security of the lender. 986 PEOBATE LAW AND PEACTICE. The property to be mortgaged is situated in the county* of , state of , and is described as follows, to wit : " , Judge of the Court. Dated , 19— . Ezplauatoiy notes. 1. Give file number. 2. Or, executor. 3. Or, was duly published four successive weeks before the time appointed for this hearing, in a newspaper of general circulation, published in said county. 4. Or, if the matter has been continued, say, " and the matter having been regularly postponed by the court to this time." 5. Or, executor. 6. State time. 7. The said interest to be paid solely out of the income of said property; or as otherwise directed. 8. Or, city and county. 0. Describe the property, and interest therein. § 616. Form. Mortga.ge of decedent's real estate. This indenture. Made on the day of , 19 — , between , the duly appointed, qualified, and acting administrator^ of the estate of , deceased, and , both parties being of the county ^ of , state of , — Witnesseth : That the court of the county * of , state of ^j.having, on the day of , 19 — , made an order, which is now on file and of record in said court, and a certified copy of which order is duly recorded in the office of the county recorder of the county of , and which is hereby referred to and made a part hereof, the same as if incorporated herein, authorizing, empowering, and directing the said admiuistrator * to mortgage certain realty of said estate ; and that said administrator " has, Tinder and by virtue of said order, agreed to mortgage the said real estate to said to secure the sum of dollars ($ ), which said has agreed to loan to the said administrator * for the use and benefit of said estate, — The said administrator,' in consideration of said loan, hereby mortgages to said — all that certain real property situated in the county * of , state of , particularly described as follows, and which is the same land as that described in said order, to wit: ; ° said mortgage being given as security for the payment, on the day of , 19 — , to said mortgagee, of the said sum of dollar? MORTGAGES AND, LEASES. 987 ($ ). gold coin of the United States of America, with interest thereon from date hereof until paid." It is agreed between the mortgagor and the mortgagee, that the former shall keep the buildings upon said land insured for the sum of dollars ($ ), and will have the policies of insurance made payable to the mortgagee, for the latter's further security. In witness whereof. The said mortgagor hereunto sets his hand and seal this day of , 19 , Administrator,^^ etc. [Seal] Explanatory notes. 1. Or, executor of the last wiU, etc. 2, 3. Or, city and county. 4-7. Or, executor. 8. Or, city and county. 9. In- sert description. 10. If it is deemed desirable to provide against default in the payment of principal or interest, or both, etc., pro- ceed as in an ordinary mortgage. If the mortgage is given to secure the payment of a note given by the administrator or executor, as such, insert copy thereof, as, " said mortgage being given as security for the payment of the promissory note of , given and signed by him as administrator [or executor] of the estate of , deceased, and in the words and figures as follows, to wit: " 11. Or, exec- utor of the last will, etc. § 617. Proceedings to obtain order to lease realty. To obtain an order to lease the realty, the proceedings to be taken and the effect thereof shall be as follows : [Petition.] First. The executor, administrator, guardian of a minor or of an incompetent person, or any person inter- ested in the estate of such decedents, minors, or incompetent persons, may file a verified petition showing : [Requirements.] 1. The advantage or advantages that may accrue to the estate from giving a lease. 2. A general description of the property proposed to be leased. 3. The term, rental, and general conditions of the pro- posed lease. 4. 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, so far as known to the petitioner. [Order to show cause.] Second. Upon filing such petition an order shall be made by the court or judge requiring all 988 PROBATE LAW AND PRACTICE. persons interested in the estate to appear before the court or judge, at a time and place specified, not less than two nor more than four weeks thereafter, 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 referrinc to the petition on file for further particulars. [Service of order.] Third. 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 two successive weeks in a newspaper of general circulation in the county. [Hearing. Witnesses. Appraisers. Minimum rental.] Fourth. 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 pro- ceed to hear the petition, and any objections that may have been filed or presented thereto. Upon such hearing, wit- nesses may be compelled to attend and testify in the same manner and with like effect as in other cases, and the court may, in its discretion, appoint one or more, not exceeding three, disinterested persons to appraise the rental value of the premises, and direct that a reasonable compensation for the services, not exceeding five doUars 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 estate to lease the whole or any portion of the real estate, an order must be made authorizing, empowering, and directing the executor, 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 ten years, and may prescribe the other terms and conditions of such lease. [Conditions of lease.] Fifth. After the making of the order to lease, the executor, administrator, or guardian of a minor or of an incompetent person shall execute, acknowl- MORTGAGES AND LEASES. 989 edge, and deliver a lease of the premises for the term and period and with the conditions specified 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 ofiSce of the county recorder of every county in which the leased land or any portion thereof lies. [Effect of lease. Errors and omissions.] Sixth. 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 ad- minister 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 Tienefit of the lessee, his heirs and assigns. No omission, error, or irregularity in the proceedings shall impair or invalidate the same, or the lease made in pursuance thereof. Kerr's Oyc. Code Civ. Proc, § 1579. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1824. Colorado. 3 Mills's Ann. Stats., sec. 4729. Kansas. Gen. Stats. 1905, §§ 3411, 4159, 4160-4169. Montana. Code Civ. Proc, see. 2722. New Mexico. Comp. Laws 1897, sees. 1445, 1446, 2065-2068, 2070, 2071, 2073, 2076, 2079, 2082. North Dakota. Kev. Codes 1905, § 8074. Utah. Kev. Stats. 1898, sees. 3908, 3909. § 618. Form. Petition for leave to lease realty. [Title of court.] -.1 Dept. No. . [Title of proceeding.] {^°- ^^itle of form.] To the Honorable the Court of the County ^ of .. The petition of respectfully shows : That he is, and has been since the day of ,19 — , the duly qualified and acting guardian* of the estate of , a minor ; * and That the inventory and appraisement of the said ward has been duly made and filed, — 990 PROBATE LAW AND PEACTICB. Wherefore petitioner hereby asks leave of the court to exe- cute, on behalf of said ward, a lease on the real estate of his ward hereinafter described; and shows that the advantages that may accrue to said ward and his estate therefrom are as follows: • That the property of said ward proposed to be leased is described as follows: ; ' That the term, rental, and general conditions of the pro- posed lease are as follows: ; ^ That the names of the heirs * of said ward are : * Wherefore petitioner prays that an order be made requir- ing all persons interested in said estate to appear and show cause, at a time and place to be fixed in said order, then and there to show cause why the realty above described should not be leased as above proposed; and that, after due notice and hearing, an order be made authorizing and directing your petitioner, as guardian as aforesaid, to execute a lease of the above-described premises, at the rental, for the period, and on the terms and conditions above set forth ; and for such other or further order as to the court shall seem meet. , Attorney for Petitioner. , Petitioner. [Add usual verification.] Explanatory notes. 1. Give file number. 2. Or, City and County. 3. Or, administrator of the estate, or executor of the last will of : , deceased. 4. Or, an incompetent person. 5. Set forth the advantages. 6. Give description of property, and interest of ward. 7. State duration, rental, and general conditions of the proposed lease. 8, 9. Give names of heirs of ward, or names of heirs and of devisees and legatees, if any, of deceased. § 619. Form. Order to show cause on petition to lease realty. [Title of court.] [Title of proceeding.] |Ko. __.^^ Dept. No. _ , the guardian ^ of the estate of , a minor,' hav- ing this day filed a verified petition for authority to lease the real property belonging to said estate hereinafter described, for the period and at the rental hereinafter stated, and it MORTGAGES AND LEASES. 991 appearing that the giving of said lease will be advantageous to said estate, — It is ordered, That all persons interested in said estate be, and they are hereby, required to appear before this court on ,* the day of , 19 — , at o'clock, — m., at the court-room of said court, then and there to show cause, if any they have, why an order should not be made author- izing and directing said , as such guardian,' to execute a lease of the real property belonging to said estate herein- after described for the period of ' years, at the ' rental. of dollars per , as mentioned in said peti- tion. Said real property is situated in the county* of , state of , and is described as f oUows : ' For further particulars, reference is hereby made to the above petition on file. It is further ordered, That a copy of this order be pub- lished once a week for two successive weeks in" , a news- paper of general circulation in said county.^" Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, administrator of the estate; or, executor of the last will of , deceased. 3. Or, an incompetent person. 4. Give day of week. 5. Or, administrator or executor. 6. Give period of proposed lease. 7. Give rental as stated in petition. 8. Or, city and county. 9. Give description of property, and interest therein. 10. Or, city and county. Authority may be given to lease land located in another county: See Kerr's Cal. Cyc. Code Civ. Proc, § 1295. Persons interested may be required to show cause why the administrator should not be authorized to lease the building he proposes to construct on the property belonging to the estate of said deceased, and situated in the county of , for a term of years from and after the full completion of said building, in accordance with certain plans, and tendering possession thereof to the lessee; such lessee to pay a rental, based so that the estate of said deceased derive per cent per annum upon all the moneys that may be expended in the construction of the said build- ing, plus the value of the real estate fixed, at dollars ($ ), such annual rental to be paid in equal monthly instalments, commencing at the date of the completion of said building, the lessee also to pay the premiums on the fire insurance for said building, taxes and all costs and expenses of keeping said building in good and 992 PEOBATB LAW AND PRACTICE. substantial repair during the term of the lease; the rental and cove- nants of the lessee to be guaranteed by a bond not exceeding in amount one year's rental, " as will fully appear by reference to the petition on file herein, for full particulars," where such is the nature of the petition. Or, persons interested may be required to show cause why an order should not be granted to the said executors, authorizing them to lease for one to three years, with or without temporary improvementB, such parts or portions of said real estate as may be to the benefit and advantage of said estate, at the best rental they can obtain, but not below the minimum, to be named by the court. § 620. Form. Affidavit of publication of order to show cause. [Title of court.] ( No. 1 Dept. No , \ [Title of form.] [Title of estate.] State of , Comity * of - J' , of the said comity ' and state, having been first duly sworn, deposes and says : That he is, and at all times embraced in the publication herein mentioned was, the principal clerk* of the printers and publishers of the , a newspaper of general circula- tion, printed and published daily (Sundays excepted) in said county ; ° That deponent, as such clerk, during all times mentioned in this af&davit has had, and stUl has, charge of all the adver- tisements in said newspaper ; and That an order to show cause, of which the annexed is a true printed copy, was published in the above-named news- paper on the following dates, to wit, ,' being as often as said newspaper was published during said period; and further deponent saith not. Subscribed and sworn to before me this day of , 19—. , Notary Public, etc.'' E'xplanatoiy notes. 1. Give file number. 2, 3. Or, City and County. 4. Or, the printer; or, the foreman of the printer: See Estate of Melone, 141 Cal. 331, 334; 74 Pac. Eep. 991. 5. Or, city and county. 6. Put in each date. 7. Or other of&cer taking the oath. MOETGAGES AND LEASES. 993 § 621. Form. Order authorizing lease. [Title of court.] [Title of estate.] f^° ^ I'ep*- No ( [Title of form.] Now comes , the administrator = of said , by Mr. , his attorney, and presents his petition for authority to let, lease, and demise certain real estate of said deceased; and, having proved to the satisfaction of the court that the order herein made requiring all persons interested to show cause why said real estate should not be leased has been duly and personally served on all persons interested in said estate at least ten days ^ before the time appointed therein for this hearing,* the court thereupon proceeds to the hearing of said petition, and, after hearing the evidence, the court, being satisfied that the same is for the advantage of the estate, grants said petition as follows, to wit : — It is ordered by the court. That , as administrator" of the estate of , be authorized, empowered, and directed to make a lease of the land herein described for a period not less than * nor more than ,' at a rental of not less than dollars ($ ) per * nor more than dollars ($ ) per ,' and upon the terms and condi- tions following, to wit: ^^ Said real property is described as follows, to wit : ^^ Entered , 19 — . , County Clerk. By , Deputy.i^ Explanatory notes. 1. Give file number. 2. Or, executor. 3. Or, ■was published in a newspaper of general circulation in this county [or city and county] for two successive weeks. 4. If the matter has been continued, say, " and the hearing having been regularly post- poned to this time "; and if objections are made, say, " and hav- ing appeared and filed objections to the granting of said petition.'" 5. Or, executor. 6, 7. Months or years. 8, 9. Month or year. 10.' State terms and conditions of petition, or other terms and conditions, if any. 11. Describe the land. 12. Orders need not be signed:. See note, § 77, ante. § 622. Form. Lease of decedent's real estate. This indenture, Made on the day of , 19 — , between , the duly appointed, qualified, and acting Probate — 63 ?94 PEOBATE LAW AND PRACTICE. administrator^ of the estate of , deceased, and , both parties of the comity "= of , state of , — Witnesseth : That the court of the county ' of , state of , having, on the day of , 19 — , made an order, which is now on file and of record in said court, and a certified copy of which order was duly recorded in the office of the county recorder of the county of ^ on the day of , 19 — , and which is hereby referred to and made a part hereof, the same as if incorporated herein, authorizing, empowering, and directing the said adminis- trator * to lease certain realty of said estate ; and that said administrator ° has, under and by virtue of said order, agreed to lease the said real estate, on the terms and condi- tions hereinafter stated, to the said for the term of . years ; That said administrator,* in consideration of the premises, has demised and let, and by these presents does demise and let, unto the said , that certain real property situated in the county ' of , state of , particularly described as follows, and which is the same land as that described ia said order, to wit: ; with the appurtenances, for the term of * from the day of , 19 — , at the • rental or sum of dollars ($ ), payable in gold coin of the United States of America, in advance, on the day of each and every month during said term.^" In witness whereof, The said parties have hereunto set their hands and seals the day and year first above written. • , Administrator,^^ etc. [Seal] , Lessee. [Seal] Explanatory notes. 1. Or, executor of the last will, etc. 2, 3. Or, city and county. 4-6. Or, executor. 7. Or^ city and county. 8. Tears or months. 9. Yearly or monthly. 10. As to any further agreements, follow the form of an ordinary lease. 11. Or, executor of the last will, etc. MORTGAGES AND IiEASES. 995 laOBTGAGES AND LEASES. 1. Mortgages. (8) Foreclosuie. Xitl8 of pur- <1) Construction and vaUdlt; of chaser, statute. 2. Leases. (2) Authority to mortgage. Jn- (1) Power of executor or ad- risdlctional facts. mlnlstrator to lease. (3) Purpose to be shown. (2) Validity of lease. (4) Sufficiency of petition. (3) Power of court to revoke or (5) Validity of mortgage. modify order authorizing (6) Presumptions. Creditor's lease. right. (4) Power of representative to (7) Procedure. Practice. Col- alter or modify existing lateral attack. Appeal. lease. 1. Mortgages. (1) Construction and validity of statute. The court has, undoubt- edly, in a proper case, power to authorize the mortgaging of estates of decedents; and, within the limitations placed by law upon the power to sell to pay charges against the estate, if the law existed at the decedent's death, the court may, on cause shown, as required by the statute, authorize such mortgage, whether the decedent died before or after passage of the act of 1887, the time at which sec- tions 1577 and 1578 of the Code of Civil Procedure of California were originally enacted: Murphy v. Farmers etc. Bank, 131 Cal. 115, 120; 63 Pae. Eep. 368; Howard v. Bryan, 133 Cal. 257, 259; 65 Pae. Eep. 462. To authorize the mortgaging of such property for the express purpose of raising money with which to pay charges or liens resting upon it is but to change the form of the lien, and adds no new burden not already borne by the property, or to which the property may be subjected under the law as it existed when the testator died; and even if the mortgage, under the statute, may bear a greater rate of interest than the legacies may bear, that fact does not affect the question of power, nor can it reasonably be said to be a new burden, as the increased rate of interest allowed by law is but an incident of the power by which the burden or lien already on the property may be changed by changing the form of the statutory burden to a mort- gage Uen: Murphy v. Farmers etc. Bank, 131 Cal. 115, 119; 63 Pac- Eep. 368. For cases where probate mortgages given under said sec- tions 1577 and 1578 have been upheld, see Thomas v. Parker, 97 Cal. 456; 32 Pae. Eep. 562; Stow v. Schiefferly, 120 Cal. 609; 52 Pae. Eep. 1000; Weinreich v. Hensley, 121 Cal. 647; 54 Pae. Eep. 254; Fast V. Steele, 127 Cal. 202; 59 Pae. Eep. 585. The authority of the court to order a mortgage for the purpose of -paying liens on the realty of a decedent's estate, or to pay debts, legacies; or expenses of admin- istration, is expressly given by the provision of the statute; and it is not essential to the jurisdiction of the court that the order shall include the payment of all debts: Estate of Freud, 131 Cal. 667, 674; !)i)6 PROBATE LAW AND PRACTICE. 82 Am. St.,Eep. 407; 63 Pac. Eep. 1080; Stambaeh v. Emerson, 139 Cal. 282, 285; 72 Pac. Eep. 991. The statute of Oregon does not, in express terms, authorize the borrowing of money with which to redeem real property, belonging to the decedent's estate, that may have been sold under a decree or judgment; but, as a lien of this character is an indebtedness against said estate, the right to borrow money for the purpose of funding such indebtedness necessarily carries with its . exercise a grant of power to borrow money to be used in redeeming real property from such sale: Lawrey v. Sterling, 41 Or. 518; 69 Pac. Eep. 460, 462. The statute of Oregon authorizing an executor or administrator to borrow money upon any property belonging to the estate of his decedent for the purpose of funding the indebtedness against the estate is not unconstitutional because of the title of the act containing more than one subject. The subject of the act is the granting of power by the county court to an executor or adminis- trator to borrow money, and the incident to the exercise of such power is the right to use the money so borrowed in paying the indebt- edness against the estate of a decedent, including the redemption of the real property, though that may be sold under a decree or judg- ment. The purpose for which the money may be used is properly connected with an exercise of the power to borrow it: Lawrey t. Sterling, 41 Or. 518; 69 Pac. Eep. 460, 462. (2) Authority to mortgage. Juiisdictioual facts. A mortgage or sale of the real estate of a deceased person is in derogation of the common law, and is authorized, if at all, by statute. And when authorized by statute, the statute must, in substance at least, be com- plied with: Wallace v. Grant, 27 Wash. 170; 67 Pac. Eep. 578, 579. In the statute of Washington the basis of the statutory provision is the exhaustion of the personal estate in the hands of the executor or administrator, and it is only when the personal estate in the hands of the executor or administrator shall be insufficient to pay the debts of the administration that the executor or administrator may sell or mortgage the real estate. There must be a showing that the per- sonal property is insufficient to pay the expenses of the estate: Wallace v. Grant, 27 Wash. 170; 67 Pac. Eep. 578, 579. The founda- tion of jurisdiction in cases of this sort is the petition filed by the applicant for leave to mortgage; and the essential fact to be found by the court, under the present statute of California, as the basis of its order is, that it will be for the advantage of the estate to raise money by a loan, and the statute prescribes the matters which must be set forth in the petition as a basis for the judgment of court: Howard v. Bryan, 133 Cal. 257, 260, 263; 65 Pac. Eep. 462. Where a petition to mortgage real estate was not verified, and failed to show that the personal estate was exhausted, or that the same was insuffi- cient to pay the debts of the administration, the probate court would not £|,cquire jurisdiction to make an order to mortgage: Wallace T. Grant, 27 Wash. 170; 67 Pac. Eep. 578, 580. MORTGAGES AND LEASES. 997 (3) Purpose to be shown. The first requisite of the petition is that it must disclose the particular purpose for which the money is to be used. And, in the ease of a minor's estate, that purpose must \>e either to pay debts or charges of administration, or to pay, reduce, extend, or renew some lien or mortgage already subsisting on the realty which it is proposed to mortgage: Howard v. Bryan, 133 Cal. 257, 263; 65 Pac. Eep. 462. A petition which shows that the purpose is to obtain the money wherewith to pay a debt of the deceased sufficiently shows a purpose authorized by statute to clothe the court with* jurisdiction to make the order. The language of the statute, providing that the petition shall state the particular purposes, and which enumerates them, was intended simply to designate the various objects for which a mortgage, binding the property of the estate, may be given, to the end that the court should not impose a lien for some purpose not included within the proper functions of the admin- istration of the estate. It is necessary, before there can be any final distribution of the realty, that the expenses of administration, debts of deceased, and legacies be paid. It was to confine the authority to mortgage to these general purposes that the language of the statute was used, and subdivision one of section 1578 of the Code of Civil Procedure of California should be read precisely as if the word " the " were omitted, and the statute was, " which shall be either to pay debts, legacies, or charges of administration": Stam- bach V. Emerson, 189 Cal. 282, 284; 72 Pac. Eep. 991. (4) Sufficeucy of petition. To mortgage the land of a decedent, a verified petition, in substantial conformity with the statute, must be filed to give the court jurisdiction to proceed. The omission to file it would be more than a mere irregularity; and the petition must disclose the particular purpose for which the money is to be used: Howard v. Bryan, 133 Cal. 257, 263, 265; 65 Pac. Eep. 462; Stambach v. Emerson, 139 Cal. 282, 284; 72 Pac. Eep. 991. In the state of Washington the petition to mortgage the realty of a decedent is insufficient unless it shows that there is not enough personal property to pay the expenses of the estate, and such petition must be verified by the oath of the party presenting the same: Wallace v. Grant, 27 Wash. 170; 67 Pac. Eep. 578, 579, 580. ' The county court in Oregon, in the administration of estates, exercises its powers by means of an affidavit, or the verified petition or statement of a party, and this applies to an application for an order to mortgage the real estate of a decedent: Lawrey v. Sterling, 41 Or. 518; 69 Pae. Eep. 460, 463. (5) Validity of mortgage. The power to borrow money, conferred upon an executor or administrator by the statute of Oregon, evidently carries with it, by implication, authority to execute promissory notes evidencing the loan, expressing the rate of interest stipulated for, and fixing the day of payment, and also the right to execute an 998 PEOBATE LAW AND PEACTICB. instrument in common form, and containing the provisions in common use. It is the common practice, in that state, to include in a promis- sory note a stipulation for the payment of such sum as the court may adjudge reasonable for attorneys' fees in ease suit or action is instituted to collect the sum specified in the note, or any part thereof; and this being so, the executor or administrator is authorized to include such a promise in the note: Lawrey v. Sterling, 41 Or. 518; 69 Pac. Eep. 460, 464. A power to mortgage, given in general terms, without specifying what provisions the deed shall contain, includes the power to make it in the form and with the provisions customvily used within the state or county where the land is situated: Lawrey V. Sterling, 41 Or. 518; 69 Pac. 460, 464. Under the Calif omia statute, no irregularity in the proceedings impairs or invalidates the note or notes, or the mortgage given in pursuance thereof. Hence, if the executor follows the statute, and executes a promissory note for the money borrowed, though the order made by the court omitted the direction to execute a promissory note, such omission is a mere irregu- larity, whether such irregularity consists in the omission of the court to direct the execution of the note, or in the action of the execntor in giving it. In any event, no injury is done, and the proceedings are not affected by such irregularity. Neither does the fact that the note and mortgage were made payable on or before one year after their date, while the order directed that the mortgage should be made payable "on or before two years " after its date " impair or invali- date " the note or mortgage. Such departure from the order is a mere irregularity. Kor will an oral direction of the judge to the executor to pay, or individually secure to the mortgagee the whole of the interest which was to become due on the note, which was to be secured by the mortgage, and that the executor, in order to secure to the mortgagee one year's interest, assigned to him his commissions as executor to the extent of one year's interest, aSect the rights of the mortgagee. He is charged with notice of all that the order con- tains, but is not bound by such oral direction of the judge to the executor: Fast v. Steele, 127 Cal. 202, 205; 59 Pac. Bep. 585. A mortgage is sufficient to show that it was intended as a mortgage of property belonging to the estate of which the mortgagor was adminis- trator, and was executed by him in his character as administrator in pursuance of law, and the order of the court directing its execution, where it refers to the order of the court authorizing its execution, and recites that " the said mortgagor, pursuant to the order," mortgages to the mortgagee, etc.: Thomas v. Parker, 97 Cal. 456, 457; 32 Pac. Eep. 562. Where a testator has given his executors certain directions to be observed in carrying out the provisions of his will, such direc- tions are nugatory, to the extent that they are inconsistent with law. The executors, as such, are not trustees of an express trust in such a case, and the authority which the testator gives them creates only such a trust as pertains to the office of executor, where he has not MORTGAGES AND LEASES. 999 conferred upon them the power to make any sale or disposition of his estate other than that they "shall have the property sold" at the expiration of two years after his death, and shall distribute the pro- ceeds among his designated beneficiaries. The sale which is thus directed is to be made by them as executors of his will, and as a part of their administration of the estate, and not as the trustees of an express trust, and will be inefEective without a confirmation by the court. In such a case, a mortgage, by them, of the property of the estate will not be effective unless made by an order of the court as prescribed by the statute. Otherwise they would be able to trans- fer the estate without the approval of the court, and thus to do indirectly what they are forbidden to do directly, since the right to mortgage includes a right in the mortgagee to have a sale of the remainder in satisfaction of the obligation for which the mortgage was given: Estate of Pforr, 144 Cal. 121, 125; 77 Pac. Eep. 825. The law cannot be construed to authorize the mortgage of a minor's estate to pay any debt but his own. It must be such a mortgage as he can discharge by paying what he is individually bound for, and such as will admit of a redemption by the payment of that which is due from him on his own account. Hence, if a court authorizes a mortgage of the interest of five minors to secure a sum in excess of their aggregate indebtedness, or to mortgage their separate interests for their aggregate debt, it exceeds its jurisdiction, however advan- tageous it may seem to pursue that course. The proceeding cannot be sustained without establishing a dangerous precedent, from which serious abuses would be certain to fiow: Howard v. Bryan, 133 Cal. 257, 264; 65 Pac. Eep. 462. No bond is required as a condition to the making of a mortgage upon the estate of a decedent: Howard v. Bryan, 133 Cal. 257, 265; 65 Pac. Eep. 462. (6) Presumptions. Creditor's right. In examining the record of a mortgage authorizing the sale of a decedent's property, the same presumptions are indulged in view of the regularity and validity of the proceeding as those which govern the construction of the record in an ordinary action: Howard v. Bryan, 133 Cal. 257, 262; 65 Pac. Eep. 462. Presumably the mortgaged property has a market value greater than the mortgage debt, for the lender would rarely lend up to the full cash value. But the mortgage is not a sale, and the creditors may at any time petition to sell, and pay the mortgage, and they will thus have an opportunity to realize the margin of value above the mortgage debt; and if a sale cannot be made for an amount in excess of the loan, it will show that the estate has realized on the mortgage all the property is worth in the market, and creditors would have no cause of complaint, for no deficiency judgment can be entered. The mortgagee must look alone to the property: Murphy v. Farmers etc. Bank, 131 Cal. 115, 120; 63 Pac. Eep. 368. 1000 PROBATE LAW AND PEACTICB. (7) Procedure. Practice. Collateral attack. Appeal. An order to show cause why the real estate of a decedent should not be mort- gaged, having been duly published, is not insufficient because it does not direct or require personal service on minor heirs: Thomas v. Parker, '97 Cal. 456, 458; 32 Pae. Eep. 562. And the non-appointment of a guardian ad litem is merely an irregularity. The statute does not require any guardian ad litem to be appointed, and provides that if the court has jurisdiction to administer the estate of decedent, it has jurisdiction to make the order for the mortgage: Thomas v. Parker, 97 Cal. 456, 458; 32 Pac. Eep. 562. In making an order directing that the estate of a decedent shall be mortgaged, the inter- est of one who is seeking to acquire title to the property adversely to the estate cannot be considered: Estate of Freud, 133 Cal. 667, 674; 82 Am. St. Eep. 407; 63 Pac. Eep. 1080. If, by mistake, the court authorizes a mortgage to be given on property which is subject to a probate homestead, such mortgage should be paid out of moneys realized from the sale of other property belonging to the estate, where it is solvent: Estate of Shively, 145 Cal. 400, 402; 78 Pac. Eep. 869. The statute controls the probate court in the exercise of its jurisdic- tion in the matter of the payment of debts of the estate, and a disregard thereof would be error reviewable on appeal taken by any person interested. But the court has jurisdiction to make an order erroneously preferring one creditor to another, and its action in so doing is only error in the exercise of jurisdiction, and cannot be col- laterally attacked. If the effect of an order authorizing the mortgage of decedent's property is to prefer erroneously certain creditors of the estate, the action of the court can be reviewed only on appeal from the order: Stambach v. Emerson, 139 Cal. 282, 284; 72 Pac. Eep. 991. In a collateral attack upon an order authorizing the estate of a decedent to be mortgaged, only those facts and matters appearing upon the face of the record are to be considered; and if they show no excess or defect of jurisdiction, no mere error of the court in the exercise of its jurisdiction, or irregularity in the proceeding, wUl invalidate the order: Howard v. Bryan, 133 Cal. 257, 262; 65 Pac. Eep. 462. (8) Foreclosure. Title of purchaser. Where an order authorizing the mortgaging of a decedent's property declares that it was made and entered upon a verified petition, it will be presumed, if a verifi- cation to the petition was essential to jurisdiction, that such verifi- cation appeared upon the original as filed. The court must assume the fact to be as stated in the complaint and in the order, although the verification does not appear on the exhibit. It is not necessary to a good complaint, that all the proceedings leading to the mortgage should be set out in the complaint. It is only necessary to set forth the, mortgage in hsBC verba or in substance; it is not necessary to set out the petition or order; both of these exhibits may be wholly MORTGAGES AND LEASES. 1001 disregarded, and there will remain a good complaint: Stone v. Sohief- ferly, 120 Cal. 609, 612; 52 Pac. Kep. 1000. If the purpose of the mortgage authorized is to pay an indebtedness of the estate, but such mortgage is executed in part for a private debt of the executor or administrator, and in part for money loaned to the estate, the title obtained by the mortgagee under foreclosure is not void, but the application of the mortgage-money to pay the personal debt of the executor or administrator is a breach of trust on the part of the representative, and if the mortgagee iJecame a party to the violation of the trust, such mortgagee acquired no right to the money received from the representative, so far as a minor heir is concerned, and the minor heir's right- to the money is unaffected by the mortgage, or by the payment to the representative: Murphy v. Farmers etc. Bank, 131 Cal. 115, 118; 63 Pac. Eep. 368. 2. Leases. (1) Power of executor or administrator to lease. An executor or administrator of the estate of the deceased person has authority to lease the real property of the estate during the period of adminis- tration; but any lease for a term definite is subject to be terminated by final distribution of the estate and the discharge of the represent- ative: Doolan v. McCauley, 66 Cal. 476; 6 Pac. Eep. 130. A resident of Ohio, owning, in Kansas, a farm that had never been used for other than agricultural purposes, executed a will in Ohio, providing that the executor and trustee should take charge of said premises, and " lease and maintain the same in repair and good condition, with a view to obtaining the best income therefrom without permitting the same to deteriorate in value or quality." It was held that the executor and trustee was not, by said will, authorized to execute an oil and gas lease granting to the lessee all the oil and gas under said premises and bind the legatees thereby. Where an executor and trus- tee, without having sufficient authority under the will to bind the legatees thereby, executed an oil and gas lease on a farm that had never been used for other than agricultural purposes; but, prior to the execution of the lease, he had individually acquired the interest of one of the legatees in the premises, and soon thereafter acquired the interest of another of the legatees, he is estopped, in an action of partition, under such circumstances, from denying that the interest acquired by him was not subject to the lease: Lanyou Zine Co. v. Freeman, 68 Kan. 691; 75 Pac. Bep. 995. BEFEBENCES. Power of executor to make oil and gas lease: See note 1 Am. & Eng. Ann. Cas. 406. Eight to rents on lease of intestate's property: See note 40 L. B. A. 321-345. (2) Validity of lease. Under the statutes of Utah, requiring, a. lease for more than one year to be in writing, if one of six duly 1002 PKOBATE LAW AND PRACTICE. qualified executors of the estate of a decedent, having no written authority from the others, or any of them, who are all within that jurisdiction, and free from any disability, executes a lease for more than one year, such lease is not valid, where the statute requires the act of a majority, if there are more than two executors or adminis- trators: Utah L. & T. Co. v. Garbutt, 6 Utah, 342; 33 Pao. Eep. 758. The proceedings to obtain an order to lease the realty of a decedent, in Montana, are set out at length in State v. Second Jud. Dist. Court, 24 Mont. 1; 60 Pac. Bep. 489, 491. In that state, 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. The notice to be given must contain mention of the term and rental contemplated by the proposed lease. The lease may also be conditioned upon the furnishing of security for the faithful per- formance thereof, as there may be circumstances indicating that rents will fiuetuate during the term, and it may fix a rental for the time being, with provisions for the payment of a greater or less amount upon the happening of certain contingencies, but never a less amount than a specified minimum. A verified petition by some authorized person, and notice to all parties interested, cannot be dispensed with. It has no power to authorize the execution of a lease to parties who are not before it, and where no one is petitioning for them. If the court could grant them the lease, it could, of its own motion, without any application, or notice, or hearing, grant a lease to any person making it known that a lease was desired. This the court cannot do: State V. Second Jud. Dist. Court, 24 Mont. 1; 60 Pac. Eep. 489, 493. (3) Power of court to revoke or modify order authorizing lease. Under the statute of Montana, the court has power to make an order modifying its former order authorizing a lease, where the lessees and executors agree to the modification; and it is also the duty of the court to refuse to revoke an order authorizing a lease, without the consent of the lessees, after they have accepted its terms, and com- plied with them on their part. After this has been done, the court has no authority to revoke it: State v. Second Jud. Dist. Court, 24 Mont. 1; 60 Pac. Kep. 489, 493. (4) Power of representative to alter or modify existing lease. The representative of a deceased lessor has no power to alter or modify a lease, which would be, in effect, making a new lease, without an order of the probate court under proceedings had for that purpose; nor can he compromise or reduce the rent provided for in the lease with- out the approval of the probate court, on a showing that it is for the best interest of the estate, or that the lessee is not abundantly able to pay the full sum stipulated in the lease as rent: Brosnan v. Kramer, 135 Cal. 36, 40; 66 Pac. Eep. 979. PAET X. POWERS AND DUTIES OF EXECUTORS AND ADMIN- ISTRATORS, AND MANAGEMENT OF ESTATES. CHAPTBE I. POWERS, DUTIES, AND MANAGEMENT. § 623. ExecutoTS to take possession of entire estate. § 624. Form. Petition for a patent. § 625. Representative may sue and be sued. § 626. May maintain actions for waste, conversion, or trespass. § 627. May be sued for waste or trespass of decedent. § 628. Surviving partner to settle up business. Appraisement. Ad- counting. § 629. Form. Petition that surviving partner render an account. § 630. Form. Alternative order that surviving partner account to ad- ministrator, or show cause. I 631. Form. Order for attachment to compel surviving partner to render an account. 5 632. Action on bond of one administrator may be brought by an- other. § 633. What executors are not parties to actions. § 634. May compound. § 635. Form. Petition for authority to compromise debt. i 636. Form. Order approving administrator's agreement to compro- mise with debtor. § 637. Recovery of property fraudulently disposed of by testator. i 638. When executor to sue, as provided in preceding section. § 639. Form. Creditors' application that suit be brought to recover property fraudulently disposed of by decedent. § 640. Form. Order that administrator bring suit to recover property fraudulently disposed of by decedent. § 641. Disposition of estate recovered. § 642. Pending settlement, court may order moneys to be invested. § 643. Form. Petition for leave to invest moneys of estate in United States bonds. § 644. Form. Order directing publication of notice of petition for leave to invest. (1003) 1004 PROBATE LAW AND PRACTICE. § 645. Form. Notice of hearing of petition for leave to invest moneys of estate. § 646. Form. Order directing investment of moneys of estate in United States bonds. POWERS AND DUTIES OP EXECUTORS AND ADMINISTRATORS. ACTIONS. MANAGEMENT OP ESTATES. PARTNERSHIP ESTATES. I. Powers and Duties of Executors and Administrators. 1. Title to property. 2. Become trustees when. 3. Executors de son tort. 4. Duties of executors and adminis- trators. 5. Power of executors and adminis- trators. (1) In general, (2) To dispose of personal prop- erty. (3) To compound or compromise, in general. (4) Same. Restrictions. Approval of court. (5) Same. Distinction. (6) To bind estate. (7) Not to purchase claims against estate. (8) Not to purchase estate. (9) Cannot do what. (10) With respect to leases and mortgages. (11) Cannot litigate what claims. (12) In judicial proceedings. Joint administrators and co-execu- tors. (1) In general, (2) Obligations and liability. Bond. (3) Same. Foundation of liability. Poreign and ancillary administra- tration. (1) Foreign administration. (2) Same. Ancillary administra- tion. II. Actions by Executors or Administrators. 1. In general. 20. aifts. 2. Abatement. Discontinuance. 21. For injunction. 3. Parties. 22. For life insurance, and sick bene- 4. By ancillary administrators. fits. S. By foreign executors. 23. On mortgages. 6. Executor or administrator as rep- 24. Partition. resentative. 25. To quiet title, or to determine ad- 7. By a co-executor. verse claims. 8. Substitution. EeviTal of action. 26. Replevin. 9. Pleading. 27. To set aside fraudulent convey- 10. Evidence. ances. 11. Judgment. (1) In general. 12. Costs. (2) May be brought by special 13. On contracts. administrator when. 14. Conversion. (8) May be brought by creditor (1) In general. when. (2) Wbat is a conversion. (4) Elements necessary to main- (3) Suits in individual capacity. tain. (4) Action must fall wlien. 28. Set-off and counterclaim. 15. For damages in causing death. 29. For trespass on land. 16. Ejectment. 30. Unlawful detainer. 17. To enforce trusts. SI. Limitation of actions. 18. To recover excessive fees charged. 32. Termination of right to sue. 19. On foreign judgments. POWEES, DUTIES, AND MANAGEMENT. "1005 HI. Actions against Executors 1. In general. 2. Parties. 3. By distributees. 4. Against foreign executor or ad- ministrator. 5. Pleadings. 6. Evidence. Stipulations. 7. Judgments. (1) In general. (2) Must be payable in course of administration. (3) Foreign judgments. (4) Void if made after termina- tion of office. S. Costs. 9. Actions on accounts. 10. Attachment. 11. Suits on contracts. (1) On contracts by decedent. (2) On contracts by executor or administrator. 12. For conversion. 13. To recover deposit on void sale. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. or Administrators, Ejectment. Eminent domain. To enforce trust. ( 1 ) In general. (2) Presentation of claims. (3) Action by creditors. (4) Collateral attack. For fraud. On mortgages. To quiet title. Keplevln. For torts. (1) Acts done by the executor or administrator. (2) Acts commenced before db- cedent's death. Unlawful detainer. To vacate sale. For waste. On street assessments. Limitation of actions. Appeals. lY. Management of Estates. 1. In general. 2. Discovery of assets. 3. Advances by administrator. 4. Making improvements. 5. Investment of funds. 6. Effect of chattel mortgage. 7. Faying off liens. Bedemption. 9. Continuing business of decedent. (1) In general. (2) Exception to the rule. ( 3 ) Individual liability. (4) Liability created by court. (5) Administrator's report and account. 8. Other questions relating to mort- 10. Advice and instructions. T. Estates where Partnership Existed. 1. Interest of deceased partner. As- sets of estate. 2. Presentation of claims. 3. Jurisdiction. Probate court. Equity. 4. Bequest of interest in firm. Pay- ment of partnership debts. 5. Authority of executor or adminis- trator. 6. Surviving partner as executor or administrator. 7. Surviving partner. Bights and powers. 8. Surviving partner. Settlement of partnership affairs. 9. Surviving partner. Completion of executory contracts. 10. Surviving partner. Accounting. (1) In general. (2) Court may compel accounting. (3) Actions for accounting. 11. Accounts of executors may be set- tled, regardless of order. 12. Actions by or against surviving partners, and by or against executors or administra- tors. (1) Actions by or against sur- viving partners. (2) Actions by or against execu- tors or administrators. 13. Purchase of deceased partner's in- terest. 14. New partnership. Carrying on de- cedent's business. 15. Conveyances by one partner to an- other. Death before pay- ment. 1006 PROBATE LAW AND PEACTICE. § 623. Executors to take possession of 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 administrators 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 admin- istration, as provided in this title. Kerr's Cyc. Code Civ. Proc, § 1581. ANAIiOaOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1825. Coloiado. 3 Mills's Ann. Stats., see. 4721. Idaio.* Code Civ. Proc. 1901, sec. 4211. Kansas. Gen. Stats. 1905, § 2936. Montana.* Code Civ. Proc, sec. 2730. Nevada. Comp. Laws, see. 2950. New Mexico. Comp. Laws 1897, see. 1995. North Dakota. Kev. Codes 1905, § 8159. Oklahoma. Eev. Stats. 1903, sec. 1691. South Dakota. Probate Code 1904, § 242. Utah. Eev. Stats. 1898, sees. 3912, 3913. Washington. Pierce's Cod^e, § 2616. Wyoming.* Eev. Stats. 1899, see. 4693. § 624. Form. Petition for a patent. [Title of court.] [Title of estate.] (No. .i Dept. No , "• ■" ( [Title of form.] To the Commissioner of Patents, Washington, D. C. Your petitioner, , administrator ' of the estate of , , deceased, as will more fully appear by reference to the duly certified copy of letters of administration ' hereto annexed, prays that letters patent may be granted to him for the invention of the said ,* set forth in the annexed specification. , Petitioner. Explanatory notes. 1. Give file number. 2. Or, executor of the last will, etc. 3. Or, of letters testamentary. 4. Deceased. POWERS, DUTIES, AND MANAGEMENT. 1007 § 625, Representative may sue and be sued. Actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any adverse claim thereon, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates. Kerr's Cyc. Code Civ. Proc, § 1582. ANAIiOaOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona. Eev. Stats. 1901, par. 1826. Colorado. 3 MiUs's Ann. Stats., sees. 4721, 4731, 4815 i. Idaho. Code Civ. Proo. 1901, sec. 4212. Montana. Code Civ. Proc, sec. 2731. Nevada. Comp. Laws, sec. 2951. North DakoU. Eev. Codes 1905, § 8160. Oklahoma. Eev. Stats. 1903, sec. 1692. South Dakota. Probate Code 1904, § 243. Utah.* Eev. Stats. 1898, sec. 3914. Washington.* Pierce's Code, § 2617. Wyoming. Eev. Stats. 1899, sec. 4694. § 626. May maintain actions for waste, conversion, or trespass. Executors and administrators may maintain actions against any person who has wasted, destroyed, taken, or carried away, or converted to his own use, the goods of their testator or intestate, in his lifetime. They may also maintain actions for trespass committed on the real estate of the decedent in his lifetime. Kerr's Cyc. Code Civ. Proc, 1 1583. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1827. Colorado. 3 Mills's Ann. Stats., sees. 4731, 4815 i. Idaho.* Code Civ. Proo. 1901, sec. 4214. Montana. Code Civ. Proc, sec. 2732. Nevada.* Comp. Laws, sec. 2952. North Dakota. Eev. Codes 1905, § 8162. Oklahoma. Eev. Stats. 1903, sec 1693. South Dakota.* Probate Code 1904, § 244. Utah.* Eev. Stats. 1898, see. 3915. Washington.* Pierce's Code, § 2618. Wyoming.* Eev. Stats. 1899, sec. 4695, 1008 PROBATE LAW AND PEACTICB. § 627. May be sued for waste or trespass of decedent. Any person or his personal representatives may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, destroyed, taken, or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of such person. Kerr's Cyc. Code Civ. Proc., § 1584. ANALOGcOVS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1828. Colorado. 3 Mills's Ann. Stats., sees. 4731, 4815 i. Idaho.* Code Civ. Proo. 1901, sec. 4215. Montana.* Code Civ. Proc, sec. 2733. Nevada.* Comp. Laws, see. 2953. Oklahoma. Bey. Stats. 1903, sec. 1694. South Dakota.* Probate Code 1904, § 245. Utah.* Eev. Stats. 1898, sec. 3916. Washington.* Pierce's Code, § 2619. Wyoming.* Eev. Stats. 1899, see. 4696. § 628. Surviving partner to settle up business. Appraise- ment. Accounting. When a partnership exists between the decedent, at the time of his death, and any other person, the surviving partner has the right to continue in possession of the partnership, and to settle its business, but the interest of the decedent in the partnership must be included in the inventory, and be appraised as other property. The sur- viving partner must settle the affairs of the partnership without delay, and account with the executor or administra- tor, and pay over such balances as may from time to time be payable to him, in right of the decedent. Upon the appli- cation of the executor or administrator, the court, or a judge thereof, may, whenever it appears necessary, order the surviving partner to render an account, and in case of neglect or refusal may, after notice, compel it by attach- ment; and the executor or administrator may maintain against him any action which the decedent could have main- tained. Kerr's Cyc. Code Civ. Proc, § 1585. POWERS, DUTIES, AND MANAGEMENT. 1009' ANAIiOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, sees. 790-792, p. 308; sees. 795, 796, p. 309. Arizona. Eev. Stats. 1901, par. 1829. Idaho.* Code Civ. Proc. 1901, sec. 4216. Kansas. Gen. Stats. 1905, §§2906, 2908. Montana. Code Civ. Proc, sec. 2734. Nevada.* Comp. Laws, sec. 2954. North Dakota. Eev. Codes 1905, §§ 8075, 8163. Oklahoma. Eev. Stats. 1903, sec. 1695. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1128, 1130, 1133, 1134. South Dakota. Probate Code 1904, § 246. Utah. Eev. Stats. 1898, see. 3918. Washington. Pierce's Code, §§2482, 2483, 2486, 2487. Wyoming. Eev. Stats. 1899, sec. 4697. § 629. Form. Petition that surviving partner render an account. [Title of court.] [Title of estate.] P° ^ I'ept. No ( [Title of form.] To the Honorable the = Court of the County ^ of .. State of The undersigned, , administrator* of the estate of deceased, respectfully represents: That, at the time of the death of said deceased, to wit, on the day of , 19 — , and for a long time prior thereto, there was a partnership existing between deceased and , who were doing business, in said county" and state, as wholesale liquor dealers, under the firm name and style of ; That the surviving partner, the said , continued in possession of the effects of the said partnership, and is still in such possession, for the purpose of settling up the busi- ness thereof; That the interest of the decedent in the partnership prop- erty was included in the inventory heretofore filed herein, and was appraised as other property, and that more than months have elapsed since the said inventory was. filed, but that said surviving partner has neglected and refused, and still neglects and refuses, to account " with said administrator,' or to give any information as to the affairs. Probate — 64 1010 PROBATE LAW AND PRACTICE. of the said partnership, and has never paid over any such balances as may, from time to time, have been payable to said administrator * in right of the decedent ; That the deceased owed many debts, and that it has become essential to determine the value of said partnership interest in order to determine whether a sale of real estate is necessary to pay said debts, and the debts, expenses, and charges of administration. Wherefore your petitioner prays for an order directed to the said , requiring him to render an aeeoimt of the said partnership, and of his dealings with the same, showing a full statement of its affairs, property, and effects at the time of and since the death of the deceased, including a statement of the true value and condition of the interest of said deceased, and of the moneys, if any, due and owing to your petitioner as the administrator * of said estate. , Administrator^" and Petitioner. — : — , Attorney for Administrator ^^ and Petitioner. Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, City and County. 4. Or, executor of the last will and testament of , deceased. 5. Or, city and county. 6. Or, that said surviving partner has promised to account, but has neglected and refused, and still neglects and refuses to do so. If he has rendered an unsatis- factory account, say, " that said surviving partner has rendered to your petitioner what pfurports to be a full account of the affairs of said partnership, but your petitioner is informed and believes that said account does not exhibit a full, true, and particular statement of all the affairs, property, effects, and assets of said partnership, and of such surviving partner's dealings therewith; that it does not show the true value and condition of decedent's interest at and subsequent to the time of his death; and that it does not contaia a full and true statement of all moneys due and owing to petitioner as administrator, or executor, of said estate." 7'11. Or, executor. § 630. Form. Alternative order that surviving partner account to administrator, or show cause. [Title of court.] [Title of estate.] \'^° ^ I'ept. No ( [Title of form.] It being shown by the application of , adminis- trator^ of the estate of , deceased, filed herein, that , the surviving partner of said deceased, has delayed. POWEES, DUTIES, AND MANAGEMENT. 1011 and is delaying, settlement of the partnership affairs, and neglects and refuses to render an account to said adminis- trator,^ — It is ordered. That , the said surviving partner, be cited to render an account of the partnership existing at the time of the death of said deceased, and to file the same herein * within = days from this date, or show cause, within that time, why he should not account. Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor of the last will, etc. 3. Or, executor. 4. Or, render to, and serve the same upon, the administrator, or executor. 5. As fixed hj the court. § 631. Form. Order for attachment to compel surviving partner to render an account. [Title of court.] [Title of estate.] {^° ' ^^^pt. No ( [Title of form.] It appearing to the court that ^ , surviving partner of deceased, has neglected to make settlement of the partner- ship affairs, and to account with the administrator ^ of said estate ; that a citation has been issued requiring the said to appear and show cause why an attachment should not issue to compel him to render an account of the affairs of the partnership existing between him and the deceased at the time of the latter's death; that said citation has been served and returned in the form and manner provided by law ; and that the said has failed to appear and render said account, or to show cause why an attachment should not issue as directed in said citation, — It is ordered, That a warrant of attachment issue, and that said be arrested and brought before this court to show cause why he should not be committed for con- tempt of court in disobeying said citation. Dated ,19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, executor. § 632. Action on bond of one administrator may be brought by another. An administrator may, in his own name, for 1012 PROBATE LAW AND PRACTICE. the use and benefit of all parties interested in the estate, maintain actions on the bond of an executor, or of any for- mer administrator of the same estate. Kerr's Cyc. Code Oiv. Proc, § 1586. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Alaska. Carter's Code, see. 788, p. 308. Arizona.* Eev. Stats. 1901-, par. 1830. Colorado. 3 Mills's Ann. Stats., see. 4781. Idaho.* Code Civ. Proc. 1901, sec. 4217. Montana.* Code Civ. Proc., see. 2735. Nevada. Comp. Laws, sec. 2955. New Mexico. Laws 1907, sec. 10, p. 159. North Dakota. Eev. Codes 1905, § 8164. Oklahoma.* Eev. Stats. 1903, sec. 1696. South Dakota.* Probate Code 1904, § 247. Utah.* Eev. Stats. 1898, sec. 3919. Washington.* Pierce's Code,- § 2620. Wyoming.* Eev. Stats. 1899, sec. 4700. § 633. What executors are not parties to actions. In actions by or against executors, it is not necessary to join those as parties to whom letters were issued, but who have not qualified. Kerr's Cyc. Code Civ. Proc, § 1587. ANALOGOUS AND IDENTICAL STATUTES. The * indicates identity. Arizona.* Eev. Stats. 1901, par. 1831. Idaho.* Code Civ. Proc. 1901, sec. 4218. Montana.* Code Civ. Proc, sec. 2736. Nevada. Comp. Laws, sec. 2956. Oklahoma.* Eev. Stats. 1903, sec. 1697. South Dakota.* Probate Code 1904, § 248. Utah. Eev. Stats. 1898, sec. 3920. Wyoming.* Kev. Stats. 1899, sec. 4701. § 634. May compound. Whenever a debtor of the decedent is unable to pay all his debts, the executor or administrator, with the approbation of the court, or a judge thereof, may compound with him and give him a discharge, upon receiv- ing a fair and just dividend of his effects. A compromise may also be authorized when it appears to be just, and for the best interest of the estate. Kerr's Cyc. Code Civ. Proc, § 1588. POWERS, DUTIES, AND MANAGEMENT. 1013 ANALOaOUS AND IDENTICAL STATUTES. The * indicates identity, Alaska. Carter's Code, sec. 871, p. 324. Arizona.* Eev. Stats. 1901, par. 1832. Colorado. 3 Mills's Ann. Stats., sec. 4742. Idaho.* Code Civ. Proe. 1901, sec. 4219. Kansas. Gen. Stats. 1905, §§2937, 2942. Montana.* Code Civ. Proc, sec. 2737. Nevada.* Comp. Laws, see. 2957. North Dakota. Eev. Codes 1905, § 8176. Oklahoma.* Eev. Stats. 1903, sec. 1698. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1211. South Dakota.* Probate Code 1904, § 249. Utah.* Eev. Stats. 1898, sec. 3921. Washington. Pierce's Code, § 2621. Wyoming.* Eev. Stats. 1899, see. 4702. § 635. Form. Petition for authority to compromise debt. [Title of court.] [Title of estate.] P° ^ ^®P*- '^° I [Title of form.] To the Honorable the . * Court of the County = of , State of The undersigned, your petitioner, respectfully represents : That he is the duly appointed, qualiiied, and acting admin- istrator* of the estate of — -■ , deceased; That there is owing from a debt to said estate, of the sum of dollars ($ ), which debt was ap- praised at said amount in the inventory and appraisement on file herein; That said debtor declines to pay said debt in full, but does offer to pay ° thereof in liquidation of the whole demand; that, in view of all the circumstances that would surround the enforcement of such demand, the said offer appears to be just ; and that it is for the best interest of said estate that such offer be accepted. Your petitioner therefore prays that he may be author- ized to compromise said debt by accepting the said amount in liquidation of the whole sum due. , Attorney for Petitioner. , Petitioner. Explanatory notes. 1. Give file number. 2. Title of court. 3. Or, City. and County. 4. Or, executor. 5. State what part or percentage. 1014 PEOBATE LAW AND PRACTICE. § 636. Form. Order approving administrator's agree- ment to compromise with debtor. [Title of court.] [Title of estate.] i^° ' Dept. No. [Title of form.] It being shown to this court '' by , administrator ^ of the estate of , deceased, that there is owing from a debt to said estate, of the sum of dollars ($ ), which debt was appraised at said amount in the inventory and appraisement on file herein; that said debtor is unable to pay all his debts ; that he has made an assignment of all his property, in manner and form provided by law, for the benefit of creditors; that said administrator* has accepted a payment of dollars ($ ) in satisfaction of said debt due said estate; that other creditors of the said have agreed to accept a like amount in satisfaction of their respective demands; and that it is not probable that any greater amount can be obtained on said debt, due the estate from said , as aforesaid, — The court hereby approves of the aforesaid compoimding of said debt, and orders that the said , as adminis- trator" of said estate, give the said a discharge in fuU of said debt. Dated , 19 — . , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, to the judge of this court. 3-5. Or, executor. § 637. Eecovery of property fraudulently disposed of by testator. When there is a deficiency of assets in the hands of an executor or administrator, and when the decedent, in his lifetime, has conveyed any real estate, or any rights or interests therein, with intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or has so con- veyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator must commence and prosecute to final judgment any proper action for the recovery of the same ; and may recover for the benefit of the creditor all such real estate so fraudulently conveyed ; POWERS, DUTIES, AND MANAGEMENT, 1015 and may also, for the benefit of the creditors, sue and recover all goods, chattels, rights, or credits which have been so conveyed by the decedent in his lifetime, whatever may have been the manner of such fraudulent conveyance. Kerr's Cyc. Code Civ. Proc, § 1589. ANALOGOUS AND IDENTICAL STATUTES. The * Indicates identity. Alaska. Carter's Code, sees. 856, 857, p. 321. Arizona.* Eev. Stats. 1901, par. 1833. Colorado. 3 Mills's Ann. Stats., sec. 4731. Idaho.* Code Civ. Proc. 1901, see. 4220. Montana.* Code Civ. Proc, sec. 2738. Nevada. Comp. Laws, sec. 2958. North Dakota.* Eev. Codes 1905, § 8173. Oklahoma.* Eev. Stats. 1903, see. 1699. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1196, 1197. South Dakota.* Probate Code 1904, § 250. Utah.* Eev. Stats. 1898, see. 3922. Washington,* Pierce's Code, § 2622. Wyoming.* Eev. Stats. 1899, see. 4703. § 638. When executor to sue, as provided in preceding^ section. No executor or administrator is bound to sue for such estate, as mentioned in the preceding section, for the benefit of the creditors, unless on application of creditors, who must pay such part of the costs and expenses of the suit, or give such security to the executor or administrator therefor, as the court, or a judge thereof, shall direct. Kerr's Cyc, Code Civ, Proc, § 1590. ANALOGOUS AND IDENTICAL STATUTES, The * indicates identity. Alaska. Carter's Code, sees. 856, 857, p. 321. Arizona.* Eev. Stats. 1901, par. 1834. Idaho.* Code Civ. Proc. 1901, sec. 4221. Montana.* Code Civ. Proc, see. 2739. Nevada. Comp. Laws, sec 2959. North Dakota.* Eev. Codes 1905, § 8174. Oklahoma.* Eev. Stats. 1903, sec. 1700. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 1196, 1197. South Dakota.* Probate Code 1904, § 251. Utah.* Eev. Stats. 1898, see. 3923. Washington.* Pierce's Code, § 2623. Wyoming.* Eev. Stats. 1899, sec. 4704. 1016 PEOBATB LAW AND PRACTICE. § 639. Form. Creditors' application that suit be brought to recover property fraudulently disposed of by decedent. . [Title of court.] [Title of estate.] P°- — -•' ^fP*" ^°: "■ ■■ \ [Title of form.] This, the application of the undersigned, respectfully shows : That they are creditors of said estate; that their respec- tive claims have been duly presented, allovi^ed, approved, and filed; and that the aggregate amount of said claims is . dollars ($ ) ; That there is a deficiency of assets in the hands of the administrator '■' of said estate to pay the claims of applicants, as is shown by a copy of the inventory and appraisement on file herein, marked " Exhibit A," and by a copy of the account of the administrator " of said estate filed herein, marked " Exhibit B," which said copies and exhibits are hereby referred to, and made a part of this application, the same as if the originals of said papers were incorporated herein ; That decedent, in his lifetime, was possessed of the fol- lowing described real estate, particularly described as follows, to wit, ; and also of certain goods and chattels, particularly described as follows, to wit, ; That said decedent, in his lifetime, to wit, on the day of , 19 — , conveyed all of the property hereinbefore described to -^ ; and your applicants are informed and believe, and therefore allege the fact to be, that said con- veyance was made by the said , now deceased, with intent to defraud his creditors; and that said conveyance was accepted by the said * wilfully, knowingly, and fraudulently, and with intent, both on the part of the ' grantor and of the grantee, to defraud the creditors of , now deceased, and to hinder and delay said creditors from collecting the amounts justly due them; That, in law and in equity, said property should now be in the hands of the administrator" of said deceased, to be applied toward payment of the debts aforesaid; POWERS, DUTIES, AND MANAGEMENT. 1017 That said applicants have requested said administrator' to sue for the property hereinbefore described for the bene- fit of creditors of said estate, and have offered; and now offer, to pay such part of the costs and expenses of such suit, or to give security to the administrator ' therefor, as this court shall direct, but that said administrator » has wholly neglected and refused, and now neglects and refuses, to bring such suit. Said applicants therefore pray that a citation issue to said administrator," requiring him to show cause why he should not bring said suit upon payment by applicants of costs as aforesaid, or giving security therefor, ■ ' ■ I Applicants. ■ , Attorney for Applicants. Exhibit A. [Give copy of inventory and appraisement.] Exhibit B. [Give copy of administrator's account.] Explanatory notes. 1. Give file number. 2,3. Or, executor. 4. Grantee. 5-9. Or, executor. § 640. Form. Order that administrator bring suit to recover property fraudulently disposed of by decedent. [Title of court.] [Title of estate.] P° ' ^^P*- ^° ' } [Title of form.] It appearing from the application of and , filed herein, that said decedent, in his lifetime, fraudulently dis- posed of certain property, hereinafter described, with intent to defraud his creditors, and that said and have heretofore applied to the said administrator" to bring suit to recover said property for the benefit of creditors of said estate, but that said administrator ^ has neglected and re- fused, and still neglects and refuses, to do so; and it fur- ther appearing that a citation has issued to said administra- tor * requiring him to show cause why he should not bring 1018 PKOBATE LAW AND PRACTICE. such suit, and the matter now coming regularly on for hear- ing at the time and place appointed in said citation to show cause, — The court proceeds to hear the proofs adduced, and, after such hearing, finds that said citation was served and returned as required by law ; that said applicants are credi- tors of the estate of said deceased; that the assets in the hands of said administrator" are not sufficient to pay the debts due to said applicants; and that the allegations of said application as to the fraudulent disposition of said property by decedent are true. It is therefore ordered. That said administrator* forth- with institute suit to recover said property, and that he prosecute the same to final decree. It is further ordered. That said applicants give to said administrator' a bond, to be approved by this court,* in the sum of dollars ($ ), conditioned that they will, from time to time, pay to said administrator,' on his demand, a sum sufficient to pay the costs and expenses of such suit, and save said administrator ^'' and said estate harmless from all expense by reason of said suit; and that, in the event of a recovery of said property, said adminis- trator ^^ will refund to said applicants, out of the property so recovered, all costs and expenses of suit, which may have been paid by them. The property hereinbefore referred to, and which the said administrator^^ is ordered to bring suit to recover, is par- ticularly described as follows, to wit: ^' Dated , 19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2-7. Or, executor. 8. Or, a judge thereof. 9-12. Or, executor. 13. Give description. § 641. Disposition of estate recovered. All real estate so recovered must be sold for the payment of debts, in the same manner as if the decedent had died seised thereof, upon obtaining an order therefor from the court; and the pro- ceeds of all goods, chattels, rights, and credits so recovered must be appropriated in payment of the debts of the dece- POWERS, DUTIES, AND MANAGEMENT. 1019 dent in the same manner as other property in the hands of the executor or administrator. The remainder of the pro- ceeds, after all the debts of the decedent have been paid, must be paid to the person from whom such property was recovered. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 501), § 1591. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Alaska. Carter's Code, see. 858, p. 321. Arizona. Eev. Stats. 1901, par. 1835. Idaho. Code Civ. Proc. 1901, sec. 4222. Montana. Code Civ. Proc, sec. 2740. Nevada. Comp. Laws, see. 2960. North Dakota. Kev. Codes 1905, § 8175. Oklahoma. Eev. Stats. 1903, sec. 1701. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 1198. South Dakota. Probate Code 1904, § 252. Utah. Eev. Stats. 1898, sec. 3924. Washington. Pierce's Code, § 2624. Wyoming. Eev. Stats. 1899, sec. 4705. Note. — At first blush the last sentence of this section seems to place a premium upon fraud; and one might be inclined, without due consideration, to imagine that the section is unconstitutional, on the ground that it takes the property of the heirs without due process of law, that is, without giving them their day in court. But a man may do what he will with his own property, and, unless his heirs take by will or the law of succession, they have no interest in it, and they cannot take in either way where the ancestor has conveyed it. If the conveyance was fraudulent, it could be fraudu- lent only as to creditors, for no one else was, at the time, interested. And it is only the executor or administrator, who can attack the deed as fraudulent, and even this must be for the benefit of the creditors. No other person is authorized to sue. As said in Campbell V. Whitson, 68 HI. 240; 18 Am. Eep. 553: "It Is well settled and familiar doctrine, that, although voluntary conveyances are or may be void, as to existing creditors, yet they are valid and effectual as between the parties, and cannot be set aside by the grantor if he should become dissatisfied with the transaction; the law regards it as his own folly to have made such a conveyance, and leaves him to bear the consequences without means of redress. ' They are,' says Story, ' not only valid as to the grantor, but also as to his heirs, and all other persons claiming under him in privity of the estate with notice of the fraud. A conveyance of this sort (it has been said 1020 PROBATE LAW AND PRACTICE. with great truth and force), is void only as against creditors, and then only to the extent in which it may be necessary to deal with the conveyed estate for their satisfaction. To this extent, and to this only, it is treated as if it had not been made. To every other purpose it is good. Satisfy the creditors, and the conveyance stands ': 1 Story's Eq. Jur., § 371, and eases cited in notes." If a grantor, since deceased, conveyed his property in fraud of, creditors, and the assignee of money demands against his estate brings suit to have the deed declared fraudulent as against the plaintiff " the judgment ", said McFarland, J., in Emmons v. Barton, 109 Cal. 662, 668, " should be that the property fraudulently conveyed, or so much thereof as is necessary, be applied to the satisfaction of the debts, and that the residue, if any, go to the grantee. It is not to go into the assets of the estate for any purpose other than the payment of the debts. The residue does not go to the heir; for he stands in the shoes of the fraudulent grantor." See, also, TuUy v. TuUy, 137 Cal. 60, 66; Burtch v. Elliott, 3 Ind. 99, 101; showing that the residue after satisfying creditors, goes to to the grantee or the latter's heirs. Where the invalidity of a mortgage has been estab- lished, as to creditors, the surplus, if any, may be paid to the mort- gagee: Fleischner v. First Nat. Bank, 36 Or. 553; 61 Pac. Eep. 345, 346. In case of a gift fraudulent as to creditors, the surplus, upon settlement of the doner's estate, goes to the donee, not to the heirs: Abbott V. Tenney, 18 N. H. 109, 114; Williams v. Avent, 40 N. C. 47. A conveyance, though fraudulent as to creditors, passes title to the grantee against all except such creditors: Mellen v. Ames, 39 Iowa 283, 286. § 642. Pending settlement, court may order moneys to be invested. Pending the settlement of any estate, on the peti- tion of any person interested therein, and upon good cause shown therefor, the court may order any moneys in the hands of the executors or administrators to be invested for the benefit of the estate in securities of the United States or of this state. Such order can only be made after publication of notice of the petition for not less than ten days in some newspaper, to be designated by the court or a judge thereof. Kerr's Cyc. Code Civ. Proc. (Kerr's Stats, and Amdts., p. 501), § 1592. ANALOGOUS AND IDENTICAL STATUTES. No identical statute found. Arizona. Eev. Stats. 1901, par. 1874. Colorado. 3 Mills's Ann. Stats., sec. 4728, POWERS, DUTIES, AND MANAGEMENT. 1021 Idaho. Code Civ. Proe. 1901, sec. 4223. Montana. Code Civ. Proc, sec. 2798. North Dakota. Eev. Codes 1905, § 8202. Oklahoma. Eev.. Stats. 1903, sec. 1738. South Dakota. Probate Code 1904, § 290. Utah. Rev. Stats. 1898, sec. 3925. § 643. Porm. Petition for leave to invest moneys of estate in United States bonds. LTitle of court.] [Title of estate.] i Department No. . ( [Title of form.] To the Honorable the , ^ Court of the County ^ of , State of The petition of and , executors of the last will and testament of , deceased, respectfully repre- sents : That said executors now have on deposit in the , a commercial bank of said county,^ over forty thousand dollars ($40,000) of the moneys belonging to said estate; that said moneys are not drawing any interest, nor pro- ducing any revenue or income to said estate; that all of said moneys are not required for the ordinary expenses and disbursements of said estate, and that said executors deem it for the best interest of said estate that, pending the set- tlement thereof, the sum of thirty-five thousand dollars ($35,000), or thereabouts, or such other sum as may be advised^ be invested for the benefit of said estate, in bonds of the government of the United States, pursuant to * Wherefore the said executors pray that, upon the filing of this petition, an order be made fixing a day for the hearing thereof, and for the publication of notice thereof for not less than ten (10) days in some newspaper to be designated in said order by the court, or a judge thereof; and that after such hearing the court make an order authorizing said executors to invest said sum* of thirty-five thousand dollars ($35,000), or such other sum as this honorable court may determine upon, for the benefit of said estate, in bonds of the government of the United States, pending the settlement 1022 PROBATE LAW AND PRACTICE. of said estate; and that such other and further order be made in the premises as is meet and proper. Dated , 19 , Executor. _, Attorney for Executor . -, Attorney for Executor . -, Executor. Explanatory notes. 1. Title of court. 2, 3. Or, city and county. 4. Section of code authorizing such investment. 5, 6. Give names, where two or more executors are represented by diCEerent attorneys. § 644. Form. Order directing publication of notice of petition for leave to invest. [Title of court.] ( No 1 Dept. No [Title of estate.] | l-^i^lg „f f „^ -j and , executors of the last will and testament of , deceased, having this day filed their petition for an order authorizing them to invest moneys of the above- entitled estate in bonds of the government of the United States, and good cause appearing therefor, — It is hereby ordered, That notice of sucli petition be given by publishing said petition in the , a daily news- paper published in the county ^ of , state of , for days previous to the hearing thereof. , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, city and county. § 645. Form. Notice of hearing of petition for leave to invest moneys of estate. [Title of court.] ,„. , „ , (No. 1 Dept. No. . [Title of estate.] | ^^j^l^ ^^ ^^^^ and , executors of the last will and testament of , deceased, having this day filed their petition for an order authorizing them to invest moneys of the above- entitled estate in bonds of the government of the United States, — The hearing of said petition is hereby set for , 19 — , at the court-room of said court,^ at the hour of POWERS, DUTIES, AND MANAGEMENT. 1023 o'clock in the forenoon* of said day, at wMcli time and place objections, if any, may be interposed to tbe making of such order. Dated , 19 . [Seal] ^ Judge of the Court.* Explanatory notes. 1. Give file number. 2. State location of court-room. 3. Or, afternoon. 4. Or, clerk of the court. Form. Order directing investment of moneys of estate in United States bonds. [Title of court.] [Title of estate.] [No 1 Dept. No ( [Title of form.] Now come and , executors of the last will and testament of , deceased, and show to the court that on the day of , 19 — , they filed a petition for an order authorizing them to invest moneys of the above- entitled estate in bonds of the government of the United States; that publication of notice of such petition has been made as required by law and the order of this court; and that due and legal notice of the time and place of the hear- ing of said petition has been given; and it appearing that there is a large amount of money, to wit, the sum of dollars ($ ), now on deposit in the ■ bank of this county,^ which is not drawing any interest; and that it will be for the benefit of such estate ^that such money be invested in bonds of the government of the United States, — It is therefore ordered. That said money be invested in ' 3 bonds of the United States. Dated , ,19 — , Judge of the Court. Explanatory notes. 1. Give file number. 2. Or, city and county. 3. Designate the kind of bonds; as, three-per-cent, etc. 1024 PKOBATE LAW AND PKACTICB. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRA- TORS. ACTIONS. MANAGEMENT OF ESTATES. PART- NERSHIP ESTATES. I. Powers and Duties of Executors and Administrators. 1. Title to property. 2. Become trustees vben. 5. Executors de son tort. i. Duties of executors and adminis- trators. 6. Power of executors and administra- tors. (1) In general. (2) To dispose of personal prop- erty. (3) To compound or compro- mise, in general. (1) Same. Restrictions. Approval of court. (6) Same. Distinction, (6) To Mnd estate. (7) Not to purchase claims against estate. (8) Not to purchase estate. (9) Cani^ot do wbat. (10) Witli respect to leases and mortgages. (11) Cannot litigate wbat claims. (12) In judicial proceedings. 6. Joint administrators and co-execu- tors. (1) In general. (2) Obligations and liability. Bond. (3) Same. Foundation of liability. 7. Foreign and ancillary administra- tion. (1) Foreign administration. (2) Same. Ancillary administra- tion. II. Actions by Executors or Administrators. 20. Gifts. In general. Abatement. Discontinuance. Parties. By ancillary administrators. By foreign executors. 6. Executor or administrator as rep- resentative. 7. By a co-executor. 8. Substitution. Kevival of action. 9. Pleading. 10. Evidence. 11. Judgment. 12. Costs. 13. On contracts. 11. Conversion. Cl) In general. (2) What is a conversion. (3) Suits in individual capacity. (4) Action must fail when. 16. For damages In causing death. 16. Ejectment. 17. To enforce trusts. 18. To recover excessive fees charged. IS. On foreign judgments. 21. For injunction. 22. For life insurance, and sick bene- 23. On mortgages. 24. Partition. 26. To quiet title, or to determine ad- verse claims. 26. Beplevin. 27. To set aside fraudulent convey- ances. (1) In general. (2) May be brought by special administrator when. (3) May be brought by cieditor when. (4) Elements necessary to main- tain. 28. Set-off and counterclaim. 29. For trespass on land. 30. Unlawful detainer. 31. Limitation of actions. 32. Termination of right to sue. POWEKS, DUTIES, AND MANAGEMENT. 1025 III. Actions against Esecutois or Administrators. 11. Ejectment. 8. 9. 10. 11. 12. 13. In general. Parties. By distributees. Against foreign executor or admin- istrator. Pleadings. Evidence. Stipulations. Judgments. (1) In general. (2) Must be payable in course of administration. (3) Foreign judgments. (4) Void if made after termina- tion of office. Costs. Actions on accounts. Attacbment. Suits on contracts. (1) On contracts by decedent. (2) On contracts by executor oi administrator. Por conversion. To recover deposit on void sale. 15. Eminent domain. 16. To enforce trust. (1) In general. (2) Presentation of claims. (3) Action by creditors. (4) Collateral attack. 17. Por fraud. 18. On mortgages. 19. To quiet title. 20. Beplevln. 21. Por torts. (1) Acts done by tbe executor or administrator. (2) Acts commenced before de- cedent's deatb. 22. Unlawful detainer. To vacate sale. Por waste. On street assessments. Limitation of actions. Appeals. 23 24. 26. 26. 27, IV. Management of Estates. 1. In general. 2. Discovery of assets. 5. Advances by administrator. 4. Making improvements. 6. Investment of funds. 6. Effect of chattel mortgage. 7. Paying off liens. Bedemptlon. 8. Otber questions relating to mort- gages. 8. Continuing business of decedent. (1) In general. (2) Exception to the rule. (3) Individual Uability. (4) lilabillty created by court. (6) Administrator's report and account. 10. Advice and instructions. V. Estates where 1, Interest of deceased partner. As- sets of estate. 2. Presentation of claims. 5. Jurisdiction. Probate court. Equity. 4. Bequest of interest in firm. Pay- ment of partnership debts. 6. Authority of executor or adminis- trator. 6. Surviving partner as executor or administrator. Probate — 65 Partnership Existed. 7. Surviving partner. Bights and powers. 8. Surviving partner. Settlement of partnership affairs. 9. Surviving partner. Completion of executory contracts. 10. Surviving partner. Accounting. (1) In general. (2) Court may compel accounting. (3) Actions for accounting. 1026 ' PROBATE LAW AND PRACTICE. 11. Accounts of executors may be set- (2) Actions by or against ezecu- tled, regardless of order. tors or administrators. 12. Actions by or against surviving 13. Purchase of deceased partner's in- partners, and by or against terest. executors or administra- 11. New partnership. Carrying on de- tors. cedent's business. (1) Actions by or against sur- 15. Conveyances by one partner to an- viving partners. other. Death before pay- ment. I. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS. 1. Title to property. At common law, the legal title to all per- sonal property of the deceased is vested in the executor or adminis- trator, with absolute power to dispose of it; Welder v. Osborn, 20 Or. 307; 25 Pae. Eep. 715. The real estate descends directly to the heirs of the deceased, subject to the payment of the debts of the deceased. The administrator has no title or interest in the real estate, except the rents thereof, and then only when it becomes necessary to have recourse to the real estate to pay the debts of the deceaseds Adams v. Slattery (Col.), 85 Pac. Eep. 87, 88. The right of posses- sion of pre-empted land to which the title is inchoate, passes, on the death of the pre-emptor to his administrator: BUrch v. McDaniel, 2 Wash. Ter. 58; 3 Pac. Eep. 586. 2. Become trustees when. In a general sense, every executor is a trustee for the legatees and next of kin: In re Eoach's Estate (Or.),. 92 Pac. Eep. 118, 121. One who qualifies as trustee under a will becomes the trustee of an express trust: Fox v. Tay, 89 Gal. 339, 349;. 23 Am. St. Eep. 474; 24 Pac. Eep. 855; 26 Pae. Eep. 897. If an. administrator, by false representations, procures the heir of his estate to convey to him all of the heir's interest in the estate, the admin- istrator becomes an involuntary trustee of the property conveyed for the benefit of the heir, though such representations were not made with a fraudulent intent: Wingerter v. Wingerter, 71 Cal. 105; 11 Pae. Sep. 853, 855. If an executor or administrator purchases real property from the funds of the estate in his hands, a trust in the- property results to the heirs, though the representative added funds- of his own to the purchase-money: Merket v. Smith, 33 Kan. 66; 5 Pac. Eep. 394, 396. And an administrator who becomes a trustee cannot defeat heirs by afterwards becoming a guardian: Merket v. Smith, 33 Kan. 66; 5 Pac. Eep. 394, 396. The right of possession of pre-empted land, acquired by an administrator, is subject to a trust which requires the administrator to proceed to effect title in favor of the heirs, provided there are heirs, and the estate is in such a. condition as to enable him to do so, and the interest of the heirs, all things considered, so demand: Burch v. McDaniel, 2 Wash. Ter. 58;. 3 Pac. Eep. 586, 588. POWERS, DUTIES, AND MANAGEMENT. 1027 3. Executors de son tort. There Is no such office recognized under the probate practice of California as an executor de son tort: Bowdon V. Pierce, 73 Cal. 459, 463; 14 Pao. Rep. 302; 15 Pac. Rep. 84. Such an executor was regarded by the common law as an intermeddler and a wrongdoer. He had no rights, but there is no doubt that his acts, for some purposes, were regarded as valid: De la Guerra v. Packard, 17 Cal. 182, 192. It was formerly considered that if an individual Interfered with the property of the deceased, he thereby made him- self an executor in his own wrong, or, as it is generally termed, an executor de son tort. This rule has long been modiHed, if not abolished, by the statute; and whoever intermeddles with an estate, without rightful authority so to do, is answerable to the rightful executor or administrator. The statutory change, however, produced some important consequences. It takes away the remedy the creditor before had to charge the intermeddler as an executor de son tort. He can no longer proceed against him in that character, but must procure the appointment of an administrator, and have suit instituted in his name to recover the property from such person, who has con- verted it to his own use. In a word, he is merely sent to the rightful representative of the estate, and cannot pursue his action against an executor de son tort. The rightful executor or administrator is constituted the trustee of the assets of the deceased, whose duty it is to receive and hold them in his hands as a fund to be disposed of in the best manner for the benefit of creditors. The person who inter- meddles with the goods of the deceased, is now answerable only to the rightful executor or administrator, in an action brought by the representative. The fiction of ofS.oe may be gone, but the unauthor- ized act of intermeddling remains to be dealt with judicially, accord- ing to the principles of right and justice as applied by the law in such a case: Rutherford v. Thompson, 14 Or. 236; 12 Pac. Rep. 382, 383. Under our system, there is probably no such thing as an executoi de son tort; at all events, no man can be executor de son tort in regard to land: Pryor v. Downey, 50 Cal. 388, 399; 19 Am. Rep. 656. BEFEBENCES. Executors de son tort: See notes 98 Am. St. Rep. 190-205; 85 Am. Dec. 423-427; 17 Am. Dee. 561-562. 4. Duties of executors and administrators. An executor or admin- istrator, while he must act in the utmost good faith, and must strictly perform his official duties, is bound to perform only such duties as are imposed upon him by statute: Royce v. Hampton, 16 Nev. 25; but he is presumed to have done his duty until the contrary appears: Territory v. Mix, 1 Ariz. 52. An executor or administrator is not clothed, under the statute, with discretion in any ease to determine whether or not it is necessary and proper that he should take posses- 1028 / PROBATE LAW AND PRACTICE. sion of the real estate. It is his duty to take charge of the entire estate of the deceased: Balch v. Smith, 4 Wash. 497; 30 Pac. Eep. 648, 650. The measure of an administrator's duty is to act with fidelity and with that degree of prudence and diligence which a man of ordinary judgment would be expected to bestow upon his own affairs of a like nature: Elizalde v. Murphy, 4 Cal. App. 114, 117; 87 Pae. Eep. 245, 246; and it is his duty to settle and to distribute the estate with as little delay as possible: McNabb v. Wixom, 7 Nev. 163, 171. The duties of an executor or administrator are active, and not passive. He' cannot be permitted to neglect those things which are plainly required at his hands, by law or the order of the court, and when complaint is made of such neglect, excuse himself by alleging that such delay or omission was for the benefit of the estate: In re HoUaday's Estate, 18 Or. 168; 22 Pac. Kep. 750. The duties of the executor are to preserve the estate, pay the indebted- ness of tHe deceased, the charges of administration, and to put the estate in such condition that distribution may be had to those entitled to it under the wUl; and they have no right to go outside of their duties: Estate of Willey, 140 Cal. 238, 241; 73 Pac. Eep. 998; O'Neile V. Ternes, 32 Wash. 528; 73 Pae. Eep. 692, 696. It is the duty of the executor to give the decedent a decent burial, and he cannot be absolutely limited in the performance of such duty by the provisions of a will: Estate of Galland, 92 Cal. 293, 295; 28 Pac. Eep. 287. Under the provisions of a will, directing that the body of the testa- tor be buried in a certain cemetery, and that a monument be erected over the grave, the executor is obliged to erect a monument over the place of burial, though the body has been removed: Estate of Kop- pikus, 1 Cal. App. 84; 81 Pac. Eep. 732, 733. The doctrine that ofScers and directors of a corporation ate trustees of the stockholders applies only in respect to their acts relating to the property or business of the corporation. It does not extend to their private dealings with stockholders or others, though in such dealings they take advantage of knowledge gained through their of&eial position. Hence where corporate stock has been bequeathed, as a specific legacy, by the terms of a will, the legatee has the right to sell it to whomsoever ho pleases, and the executor or administrator has the right to purchase it; and the executor is under no duty to give to the legatee informa- tion as to the value of corporate stock bequeathed to such legatee and bought by the executor: O'Neile v. Ternes, 32 Wash. 528; 73 Pac. Eep. 692, 696. If an executrix holds a mortgage on the estate, it is her duty to list her mortgage interest for assessment, and not to allow the land to be taxed in the same manner as if there were no mortgage thereon. The taxes consequently levied on that interest would therefore be her individual debt, and not the debt of the estate; and if the debt is greater than the value of the land, there can be no excess on which the estate could be taxed. The mortgage POWERS, DUTIES, AND MANAGEMENT. 1029 debt would cover it all. Equity will regard that done which ought to have been done, and the matter must be adjusted by requiring her to bear the burden of the taxes which she should have paid, as fully as she would have borne it had she listed her mortgage interest for taxation, as she ought to have done: Estate of MeDougald, 146 Cal. 196, 198; 79 Pac. Eep. 875. And it is her duty to pay taxes on the estate, though she is not in possession: Stanford v. San Tran- cisco, 131 Cal. 34, 36; 63 Pac. E