The completion of the administration of an estate partly administered is subject to the general rules regarding administration de bonis non.89 Where an executor or administrator has given cause for his removal from office, upon a proper showing his letters may be revoked, in which case letters of administration de bonis non should be granted. And it is generally provided that an executor or administrator may be removed from office if he either permanently removes beyond the jurisdiction of the court wherein he is appointed or has wrongfully neglected the estate or has long omitted to perform any act as such executor or administrator.40 An executor or administrator can be removed only after a hearing,11 and the appointment of a special administrator does not operate as a removal of one who was not cited to appear and show cause why his letters should not be revoked.42

§ 1283. Administration Pendente Lite.

It often happens that by reason of delay in granting regular letters testamentary or of administration because of some controversy concerning the will or the right of administration, it is advisable or necessary to appoint some one to conserve the estate in the meantime. The rule which prevailed in the ecclesiastical courts was that the ordinary could appoint an administrator pendente lite of the estate of an intestate. It was at first held that this power could not be exercised where the decedent left a will; but later decisions altered the rule so that

89 As to administration de bonis non, see §§ 1246-1252.

40 See Cal. Code Civ. Pro., § 1436.

41 Estate of Moore, 88 Cal. 583,

25 Pac. 915; Estate of Healy, 137 Cal. 474, 70 Pac. 455.

42 Schroeder v. Superior Court, 70 Cal. 343, 11 Pac. 651.

43 Robin's Case, Moore (K. B.) 636; Smyth v. Smyth, 3 Keb. 54.

the ordinary had the same power to grant letters of administration pendente lite in the case of a testate decedent as in the case of intestacy. Such administration

could be had upon motion if all interested parties agreed that such administration was necessary and as to who should be appointed;45 otherwise such administration could be had only upon petition and a showing of the necessity therefore and that the applicant was a suitable person to be granted letters." Courts of equity have authority pending litigation regarding an estate, to appoint a receiver to preserve the property.18

§1284. Reason for Appointment of Administrator Pendente Lite, and Termination of Authority.

Except as regulated by statute, an administrator pendente lite may always be appointed by the court when the granting of regular letters is delayed because the right to administer the estate or the validity of the will is contested. At any time pending a contest of the

49

44 Walker V. Woollaston, 2 P. Wms. 576, 589; Maskeline v. Harrison, 2 Cas. temp. Lee. 258. 45 Northey v. Cock, 1 Addams 329.

46 Northey v. Cock, 1 Addams 329; Young v. Brown, 1 Hagg. 54; Godrich v. Jones, 2 Curt. 453.

47 Northey v. Cock, 1 Addams 329.

48 King v. King, 6 Ves. Jun. 172; Edmunds v. Bird, 1 Ves. & B. 542; Atkinson v. Henshaw, 2 Ves. & B. 85; Wood v. Hitchings, 2 Beav. 289.

The duties of a special administrator under the California Code

are similar to those of a receiver in equity appointed in such cases. -Matter of Moore, 88 Cal. 1, 25 Pac. 915.

49 Davenport v. Davenport, 68 N. J. Eq. 611, 6 Ann. Cas. 261, 60 Atl. 379.

An administrator pendente lite can be appointed only where there is a contest as to the right to letters testamentary or of administration, mere delay in the appointment of the one regularly entitled being insufficient.-Munnikhuysen v. Magraw, 57 Md. 172.

Long delay before letters testamentary can be granted, due to

will, wherever such contest may be pending, it is not only the right but the duty of the court, whenever it is necessary for the preservation of the estate, to appoint an administrator pendente lite, with such powers as the circumstances may require; and such temporary administrator should be continued in force until the termination of the contest and the appointment of an executor or administrator with full powers.50

In determining whether or not such a special administrator should be appointed pending the final determination of a will contest, the real question is whether there is substantial evidence of real danger of loss to the estate; it is not a question as to whether the evidence would warrant setting the will aside. 51 It has been held, however, that an administrator pendente lite may be appointed in case there is a contest, even though there is no showing of likelihood of loss to the estate.52

The authority of an administrator pendente lite ceases upon the termination of the litigation which was the cause of his appointment;

the necessity of having the decedent's will forwarded from India, is sufficient to justify the appointment of a temporary administrator, the property of the estate requiring protection. - Goods of Metcalf, 1 Addams 343. To the same effect, see Sager v. Mead, 164 Pa. St. 125, 30 Atl. 284.

50 Huth v. Huth, (Tex. Civ.) 187 S. W. 523.

A special administrator will continue to hold the property of the estate and is responsible therefor, notwithstanding his appointment

however, if an appeal be

as administrator with the will annexed, until the security required by the statute under such appointment has been given by him, or expressly waived by the parties in interest.-Estate of Fisher, 15 Wis.

511.

51 Ellenberger's Estate, 171 Iowa 225, 153 N. W. 1036; In re Marsh, (N. J.) 55 Atl. 299.

52 Bellew v. Bellew, 4 Sw. & Tr. 58.

53 Wieland v. Bird, (1894) P. 262; Cole v. Wooden, 18 N. J. L 15; Robards v. Lamb, 89 Mo. 303,

54

taken his authority continues pending the determination of the appeal. After the appointment and qualification of the regular executor or administrator, the court has no authority, if such letters are unrevoked, to appoint a temporary administrator.55

§ 1285. Powers and Duties of Administrator Pendente Lite.

An administrator pendente lite is an officer of the court rather than the representative of interested parties who request his appointment.56 His duties are generally limited to the conservation of the property of the estate until the appointment and qualification of the regular executor or administrator, at which time he must deliver the assets to the regular appointee.57 Originally the powers of an administrator pendente lite were limited to conserving the assets of the estate, although he could bring suit to collect debts due the decedent.58 Such is the general rule today. An administrator pendente lite is authorized to

1 S. W. 222; Commonwealth v. Mateer, 16 Serg. & R. (Pa.) 416.

54 Taylor v. Taylor, L. R. 6 Pro. Div. 29; Mayer v. Schneider, 112 Ill. App. 628; State v. Guinotte, 156 Mo. 513, 50 L. R. A. 787, 57 S. W. 281; Carroll v. Reid, 158 Mo. 319, 59 S. W. 69.

Compare: Matter of Hopkins, 95 App. Div. (N. Y.) 57, 87 N. Y. Supp. 793.

55 McClure v. Allphin's Exr., 19 Ky. L. 576, 41 S. W. 1; Munnikhuysen v. Magraw, 35 Md. 280, 285; Baldwin v. Mitchell, 86 Md. 379, 38 Atl. 775; State v. Moehlenkamp, 133 Mo. 134, 34 S. W. 468.

56 Davenport v. Davenport, 68 N. J. Eq. 611, 6 Ann. Cas. 261, 60 Atl. 379.

Where the court has appointed a special administrator, the presumption must be indulged that he will act faithfully within the limits set by the law, and that he will be at all times under full control of the court.-Ellenberger's Estate, 171 Iowa 225, 153 N. W. 1036.

57 Goods of Graves, 1 Hagg. 313; Adair v. Shaw, 1 Sch. & Lef. 243, 254.

58 Knight v. Duplessis, 1 Ves. Sen. 325; Ball v. Oliver, 2 Ves. & B. 97; Adair v. Shaw, 1 Sch. & Lef. 243, 254.

collect the assets of the estate and preserve them," and to that end may institute legal actions where the same are necessary, and be substituted for the decedent as party plaintiff or defendant in actions still pending which were prosecuted by or against the decedent in his lifetime.60 The right to prosecute or defend actions is, in fact, a necessary incident to the right to collect and conserve