as such to a writ of error. Wooley v. Crane, 86 Mich. 360.

When to be taken. The custodian of a will is required in some states to deliver it to the Probate Court or to the executor within thirty days after testator's death. Arizona (1887 R. S. § 968), California (Code C. P. § 1298), Dakota (1887 C. L. § 5659), Idaho (1887 R. S. § 5296), Michigan (1882 An. Stats. § 5797), Montana (1887 R. S. p. 277, § 8), Rhode Island (1882 P. S. c. 183, § 2), Washington (1891 G. S. § 854), Wiscon sin (1889 An. Stats. § 3785). In New Jersey, if he neglects for forty days to prove the will, an administrator cum testamento annexo should be appointed (1877 Rev. p. 758, §. 28). Letters are granted "upon the death of a testator" in Alabama (1886 Code, § 1975), and "forthwith" in Maryland (1888 P. G. L. Art. 93, § 14). In California, the will may be proved any time after testator's death (Code C. P. § 1299); but no will can be proved until ten days after testator's death in New Jersey (1877 Rev. p. 755, 16); and administration must not be granted until fifteen days after the death of the intestate in Alabama (1886 Code, §2019); Curtis v. Williams, 33 Ala. 570. If there be a husband or widow surviving, no other person should be appointed until the expiration of forty days after the death of the intestate is known, unless the husband or widow, prior to that time, relinquishes the right. Curtis v. Williams, 33 Ala. 570. The failure of the widow to apply for letters of administration on the estate of her deceased husband within forty days after his death becomes known is an implied waiver of her right to the administration. Curtis v. Burt, 34 Ala. 729. After thirty days any creditor of the intestate may apply for administration in Michigan. Wilkinson v. Conaty, 65 Mich. 614. In West Virginia, it seems that no distributee is entitled, as against husband or wife,

"until the lapse of thirty days, and then any distributee, or a creditor, or a stranger, may be appointed at the discretion of the court. Bridgman . Bridgman, 3 W. Va. 212.

In some states there is a limit of time within which the letters must be applied for. No letters can be granted after twenty-one years from the death of the deceased, except upon cause shown, in Pennsylvania (1883 Purd. Dig. p. 510, § 17); after twenty years in Massachusetts (1882 P. S. c. 130, § 3), Wales v. Willard 2. Mass. 120; Kentucky (1883 G. S. c. 39 Art. 2, § 2), Maine (1883 R. S. c. 64, § i), and generally in Tennessee (1884 Code, § 3061); after ten years in Connecticut (1887 G. S. § 568); after five years in lowa (1886 R. C. § 2367); after four years in Texas (1888 R. S. Arts. 1827-28), Loyd v. Mason, 38 Tex. 212. And an administration on the estate of one who had died ten years before the administration was applied for, was held presumably void in Texas, even as to third parties, where the petition upon which such administration was granted alleged no fact to show any necessity for the delay. Paul v. Willis, 69 Tex. 261. But in Massachusetts, an administration de bonis non may be granted after the expiration of twenty years from the death of the former administrator. Bancroft v. Andrews, 6 Cush. 493. So, in Connecticut, the ten year statute does not apply to the appointment of an administrator cum testamento annexo. Lawrence's Appeal, 49 Conn. 411. So, in Tennessee, administration may be granted thirty years after the death of the intestate "to any person entitled to distribution who was an infant or married woman when the deceased died." Townsend v. Townsend, 4 Coldw. 70; Code, § 3061, ubi supra. In Michigan, acquiescence for fourteen years by adult children, in attempted disposition of the estate by the father, during which no

attempt is made to distribute it, will bar administration in the absence of creditors. Beardslee v. Reeves, 76 Mich. 661. And under the Iowa Code after five years no administration will be granted, and the next of kin become the owners of the personal property of the decedent, it being presumed that the debts have been paid. Murphy v. Murphy, 80 Iowa 740. Administration procured fourteen years after the death, and twelve years after an application in another county, which was never perfected, no reason being given for the delay, is void, Duncan v. Veal, 49 Tex. 603; or voidable. Harris v. Shafer, (Tex.) 21 S. W. Rep. 110.

Form of application. A written application is not essential to the jurisdiction of a probate court. Robbins v. Tafft, 12 R. I. 67. But it is required by the New York Code of Civil Procedure (§ 2644); Batchelor v. Batchelor, 1 Dem. 209; Fowler v. Walter, 1 Dem. 240. In New York, the petition must pray that all persons having a prior right, and who have not renounced, show cause why administration should not issue to the petitioner. Matter of Batchelor, 64 How. Pr. 350; S. C. 1 Dem. 209. The Code requires the petition to set forth the jurisdictional facts (Code C. P. § 2660). So in California. Beckett v. Selover, 7 Cal. 215; Townsend v. Gordon, 19 Cal. 189. And in some states the appointment is void if such averments are not made. Shipman v. Butterfield, 47 Mich. 487; Moore v. Moore (Neb.), 50 N. W. Rep. 443. But the appointment cannot be collaterally attacked because the petition fails to allege the death of the intestate, where the jurisdiction of the court does not depend upon the formality of the petition. Manning v. Leighton, 26 Atl. Rep. 258 (Vt.). And false representations by an applicant as to the place of intestate's death are not necessarily fatal to the jurisdiction, on

an application to set aside the grant of administration. Langmade v. Hamilton (Ga.), 15 S. E. Rep. 535. In California, an applicant for administration is estopped by a former application with another applicant, but upon removal of the first administrator for mismanagement, the estopped applicant may be appointed. Estate of Pico, 56 Cal. 413.

Notice. Probate practice and procedure to settle an estate are proceedings in rem, and judgments thereon relate to property and bind parties without personal notice. Such notice is only necessary when required by positive laws. Kearney v. Kearney, 72 Cal. 591. In a contest as to the right of administration there are strictly no plaintiffs or defendants, all applicantsare actors. Atkins v. McCormick, 4 Jones 274. When the administrator is next of kin, no notice is required prior to granting administration. Decker v. Decker, 74 Me. 465. But the applicant must give notice to all who are equally entitled to administer. Sayre v. Sayre, 3 Dick. (N. J.) 267; Gans v. Dabergott, 13 Stew. (N. J.) 184; Matter of Coursen, 89 N. Y. 401. So, of an application for letters of administration cum testamento annexo. Batchelor v. Batch

elor, 1 Dem. 209. One contesting an application for letters of administration may be required by the applicant to state his interest in the estate. Newton v. Newton, 61 Tex. 511. And one who has no interest has no right to be heard or resist the granting of letters. Augusta &c. Railroad Co. v. Peacock, 56 Ga. 146. On the other hand, in California, a prior right to the appointment may be set up at any time (Code C. P. § 1383). Estate of Wooten, 56 Cal. 332.

Renunciation. Under the North Carolina Code, § 1378, when any person applies for administration, he must produce and file the written renunciation of all persons having a prior right.

Williams v. Neville, 108 N. C. 559. So, New York (Code C. P. § 2664). It must appear of record that they refused. Stebbins v. Lathrop, 4 Pick. 33. In other states a verbal refusal is sufficient. Pollard . Mohler, 55 Md. 284; although the Code provides that it may be renounced in writing. In some states a renunciation may be retracted. McClellan's Appeal, 16 Pa. St. 110; at any time before letters issued to another. Casey v. Gardiner, 4 Bradf. 13. But this is not so in California, Estate of Kirtlan, 16 Cal. 162; Carpenter v. Jones, 44 Id. 625, where the renunciation was a letter requesting the appointment of another person and the writer mistook its legal effect. And a renunciation of the right to administration de bonis non filed in the Orphans' Court is final and binding upon the one making it, and cannot subsequently be retracted. Stockdale v. Conway, 14 Md. 99. But if the renunciation was obtained by misrepresentation, and letters de bonis non issued to another on the strength of it, both renunciation and letters may be revoked. Thomas v. Knighton, 23 Md. 327. The public administrator's renunciation of his preference over creditors may be retracted as a matter of right like that of a private party. Casey v. Gardiner, ubi supra.

Proofs. The New York statute (Code C. P. § 2661) provides that before any letters of administration shall be granted the fact of such person's dying intestate shall be proved to the satisfaction of the surrogate, who shall examine the person applying for such letters on oath touching the time, place, and manner of the death," &c. It seems, however, that this statute is merely directory, and that a failure to conform to its provisions is not a fatal objection to the validity of the letters issued. Bulkley v. Redmond, 2 Bradf. 281.

The death of the decedent may be proved by circumstantial or hearsay evidence, Woerner on Admn. § 207; Ringhouse . Keever, 49 Ill. 470; Primm v. Stewart, 7 Tex. 178; even by general reputation among acquaintances, in the case of one who left no kindred. Ringhouse v. Keever, ubi

supra.

At common law, and in many states by express statute, the presumption of death arises after an absence from home of more than seven years without news of the absentee's being alive within that time. Redf. Surr. Pr. 289; Best on Ev. § 409; Stephen on Ev. c. 14, Art. 99; Greenleaf on Ev. § 41; Wharton on Ev. § 1274; Abb. Trial Ev. § 72; Esterly's Appeal, 109 Pa. St. 222; Hoyt v. Newbold, 46 Vr. 219; Matter of Nolting, 43 Hun 456. And the presumption may be disproved. Stevens v. McNamara, 36 Me. 176. And the presumption is that he died at the end of the seven years, in the absence of further evidence. Eagle v. Emmet, 4 Bradf. 117. In this case the history of the presumption is given by Mr. Surrogate Bradford. An earlier date of death may be found as a fact, upon additional evidence of circumstances or probabilities. Davie v. Briggs, 97 U. S. 628. But the burden of proof is on the party maintaining it. Evans v. Stewart, 81 Va. 724. But where the statute creates a presumption on proof of such absence from the failure to prove that the absentee had left the state, it does not exclude evidence of death where the party did not leave the state. Bank of Louisville v. School Trustees, 83 Ky. 219. As to the effect of letters on the estate of a living person granted under such presumption—and also as to order of appointment and effect of letters generally-see Am. note, p. *486,. ubi infra.