When granted. Notice of application. counsel, and filed with the clerk of the court, stating the facts essential to give the court jurisdiction of the case, and when known to the applicant, he must state the names, ages and residence of the heirs of the decedent, and the value and character of the property. If the jurisdictional facts existed, but are not fully set forth in the petition, and afterwards proved in the course of administration, the decree or order of administration and subsequent proceedings are not void on account of such want of jurisdictional averments. Statutes 1851, p. 454. Residence. See decisions cited under sections 1294, ante, and 1375, post. A petition for letters of administration on an estate, stating that the deceased was "late a resident" of the county, etc., instead of stating that his residence was there "at or immediately preceding his death," in the language of the statute, is sufficient to give jurisdiction. Abel v. Love & Fowler, 17 Cal. 233. Where a petition for letters of administration is addressed "To the Hon. the Judge of the Probate Court of the County of Santa Clara," and goes on, "the petition of M. S., of Monterey, etc., shows that Dr. John T., late a resident of the county aforesaid, died in said county," etc.: Held, that the word "aforesaid" refers to the county named, to wit: "Santa Clara," and not "Monterey," and hence, that the petition sufficiently shows that Dr. T. was a resident of Santa Clara county at the time of his death. Townsend v. Gordon, 19 Cal. 188. In the Probate Act, the fifty-eighth section formerly provided, "that the petition must state facts essential to give the court jurisdiction of the case," and as the residence of the defendant at the time of his death in the county is a jurisdictional fact, it was properly held, under this provision, that this fact may be stated in the petition for letters of administration. But it was afterwards provided, that if the jurisdictional facts existed and were not fully set forth in the petition, but were afterwards proved in the course of administration, the judgment should not be void for want of such jurisdictional averment. Barrett v. Garney, 33 Cal. 530. Value of Estate.-The amount and value of an estate are not jurisdictional facts in an application for letters of administration. Lucas v. Todd, 28 Cal. 182. Petition, when sufficient.-A petition for letters of administration is sufficient, if it states facts showing that the petitioner is one of the persons entitled to administer. Townsend v. Gordon, 19 Cal. 188. SEC. 1372. (2 59.) Letters of administration may be granted at a regular term of the court, or at a special term appointed by the judge for the hearing of the application. Statutes of 1851, p. 454, § 59. SEC. 1373. (60.) When a petition, praying for letters of administration, is filed, the clerk must give notice thereof by causing notices to be posted in at least three public places in the county, one of which must be at the place. where the court is held, containing the name of the decedent, the name of the applicant and the term of the court at which the application will be heard. Such notice must be given at least ten days before the hearing. Statutes of 1851, p. 454, § 60. applications SEC. 1374. (8 61.) Any person interested may contest Contesting the petition, by filing written opposition thereto, on the N. 8. ground of the incompetency of the applicant, or may assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant must file a petition and give the notice required for an original petition, and the court must hear the two petitions together. Statutes of 1851, p. 455, § 61; 1861, p. 631, § 20. Upon the application of the public administrator to the probate court of the city and county of San Francisco for letters of administration upon the estate of John C. Cabaniss, deceased-opposed by a relative of deceased, praying the issuance of letters to himself-the contestant claimed that under the last clause of this section he could come in, under the proceedings instituted by the public administrator, upon merely filing his opposition thereto at the time fixed for the hearing, without previous notice of his application as prescribed by section sixty, and that letters could be awarded to him in like manner as upon a regular application upon notice under that section, provided he could show a better title than the first applicant. The court held that letters could not be issued to a contestant of whose application the usual notice had not been given, and continued the hearing to afford time for such notice. application. SEC. 1375. (2 62.) On the hearing, it being first proved Hearing of that notice has been given as herein required, the court must hear the allegations and proofs of the parties, and order the issuing of letters of administration to the party best entitled thereto. Statutes of 1851, p. 455, § 62. Authority of executor.-The order for the appointment as provided in section sixty-two of the probate act, the qualification of the appointee, and the issuing of letters to him thereon, are all necessary proceedings to invest such appointee with the office of administrator of an estate. The appointment is in fieri until the appointee has qualified and received his letters. Est. of Hamilton, 34 Cal. 464. The judgment of the supreme court settling the right of two persons to be appointed executors of an estate, should be carried into effect by the probate Evidence, notice of. Grant to cant. court, notwithstanding the death of one of the persons before the probate court acts on the matter. Est. of Pacheco, 29 Cal. 224. Letters of general administration granted pending a contest respecting the probate of a will, are void, and cannot be supported as a grant of administration, pendente lite. Slade v. Washburn, 3 Iredell's N. C. R. 557. Omission to issue letters.-Letters of administration are but evidence of authority, and the administrator may act without them if the records of the court show his appointment. Hosey v. Brasher, 8 Port. Ala. 559. Where the court made a regular order that letters should issue to the public administrator, and no bond or oath was required as a condition precedent; the omission to issue letters is not fatal. Beckett v. Selover, 7 Cal. 215. SEC. 1376. (8 63.) An entry in the minutes of the court, that the required proof was made and notice given, shall be conclusive evidence of the fact of such notice. Statutes of 1851, p. 455, § 63. SEC. 1377. (8 64.) Letters of administration must be any appli granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuing of letters to themselves. What proofs must be granting administra tion. Statutes of 1851, p. 455, § 64. See section 1365, ante, and cases cited there, and section 1390, post. By the provisions of the fifty-second section, together with those of section sixty-four, it would seem clear that the public administrator is entitled to administration upon all estates not otherwise administered. V. Selover, 7 Cal. 215. Beckett et al. SEC. 1378. (2 65.) Before letters of administration are made before granted on the estate of any person who is represented to letters of have died intestate, the fact of his dying intestate must be proved by the testimony of the applicant or others, and the court may also examine any other person concerning the time, place and manner of his death, the place of his residence at the time, the value and character of his property, and whether or not the decedent left any will, and may compel any person to attend as a witness for that purpose. Statutes of 1851, p. 455, § 65; 1861, p. 631, § 21. Intestacy of decedent.-The fact that decedent died intestate is ordinarily shown by establishing that no will can be found. Buckley v. Redmond, 2 Brad. 281. Where a will was duly executed by the deceased and left in the possession of his counsel, and a few months after the testator sent for it, avowing the . purpose of destroying it, and a day or two subsequently stated that he had destroyed it: Held, that although the facts raised a presumption that the will had been destroyed by the deceased, it was proper to examine his papers for the purpose of ascertaining whether the instrument had in fact been canceled. lbid. Upon an application for letters of administration, if a will be alleged, the proceeding may be stayed, to afford an opportunity to prove the will. Whether deceased died intestate must be determined by the law of the place where he was domiciled. Isham v. Gibbons, 1 Brad. 69. But see section 1322, ante. Presumption of death.-Where a person was once shown to have been living, the common law presumed the continuation of life until the contrary was established. But from analogy to the provisions of the statutes relating to bigamy and life estates, the rule has been adopted, that a party absent seven years without intelligence is presumed to be dead. This length of time may be abridged, and the presumption be applied earlier, by proof of special circumstances tending to show death within a certain period. Eagle v. Emmet, 4 Brad. 117. The law does not undertake to presume, in the absence of facts indicating the time of death, when the death actually occurred; but the party will be deemed for all legal purposes to have lived through the period of seven years. This is an artificial rule, founded upon reasons of convenience and the necessity of fixing upon some limit within which the relations of the living to the absent are to be determined. Ibid. Proof of death.-Reputation in the family and family conduct admissible in cases of pedigree, are admissible in proof of the death of a member of the family. 2 Greenl. Sec. 278, g; see, also, Sec. 278, a to h; also, vol. 1, Secs. 103 to 196. Letters may be granted ; entitled to the to others 12 661 Administration may be granted to one 1379. Administration may, in the discretion of the court be granted to one or more competent persons, although not entitled to the same, at the written request of the person entitled, filed in the court. [In effect May 31, 1878.] than those entitled, filed in entitled. non-resident of ex parte before the State, affidavits or depositions, tant Statutes of 1851, p. 455, § 66; 1861, p. 631, § 22. The mere fact that one is not of kin to the deceased, does not incapacitate him to hold the office of administrator. A stranger is legally competent, though the other parties named in the fifty-second section of the act concerning the estates of deceased persons, are entitled to priority. Estate of Kirtlan, 16 Cal. 161. The sixty-sixth section of that act does not restrict the power of appointment given in the fifty-second section. The object of this section-the sixty-sixth-authorizing the appointment of some competent person, at the request of the person entitled, to be joined with such person, was to allow those entitled to letters, the aid of others more competent. Estate of Richard Kirtlan, 16 Cal. 161. The right of persons entitled to administer on an estate, to have upon their written request, letters of administration granted to persons not entitled to administer, only exists where there is a vacancy in the administration. Estate of Carr, 25 Cal. 585. But a person not entitled cannot be joined as administrator with one who is entitled, except with the consent of the latter. The surrogate has no discretion for such purpose. Peters v. Public Administrator, 1 Brad. 200. Even other persons "not entitled," may be "competent," and letters may be granted to such person, "on the request of the person entitled." The request shall be in writing, and shall be filed in the court. The act does not say that the request shall be stated in the petition. It would be well to state in the petition all the facts upon which the petitioner relies to entitle him to preference over other parties. Per Sawyer J., in Lucas v. Todd, 28 Cal. 182. Revocation of letters of tion. ARTICLE V. REVOCATION OF LETTERS AND PROCEEDINGS THEREFOR. SECTION 1383. Revocation of letters of administration. 1384. When petition filed, citation to issue. 1385. Hearing of petition for revocation. 1386. Prior rights of relatives entitles them to revoke prior letters. SEC. 1383. (67.) When letters of administration have administra. been granted to any person other than the surviving husband or wife, child, father, mother, brother or sister of the intestate, any one of them may obtain the revocation of the letters, and be entitled to the administration, by presenting to the probate court a petition praying the revocation, and that letters of administration may be issued to him. Statutes of 1851, p. 455, § 67; 1870, p. 400, § 1. See section 1365, ante; see also cases cited under section 1379, ante. Who may apply for revocation of letters.-Where notice in the manner prescribed by law, has been given of an application for letters of administration, and upon the hearing no opposition is made, and letters are issued to the applicant, who is not within the degrees of consanguinity mentioned in the sixty-seventh section of the act to regulate the settlement of the Estate of Deceased Persons, the only parties who can obtain a revocation of the letters of an absolute, unqualified right are, the wife, child, father, mother, or brother of the intestate, and they are only authorized to have the letters revoked by presenting a petition praying the revocation, and that letters may be issued to him or her. Estate of Carr, 25 Cal. 585. |