Petition showing ties and asking for further bonds. he may require sufficient additional security, within such SEC. 1395. (2 76.) If sufficient security is not given Page 56. 1396. When it is expressly provided in the will that no bond shall be required of the executor, letters testamentary may issue, and sales of real estate be made and confirmed without any bond, unless the Court, for good cause, require one to be executed; but the executor may at any time afterwards, if it appear from any cause necessary or proper, be required to file a bond, as in other cases. proponone, who is also the executrix, and a legatee under an alleged will of the testator, of a later date than that already admitted to probate, has such an interest in the estate of the deceased, pending proceedings on the probate of the paper propounded by her, as entitles her to petition for an order compelling the executrix of the will already admitted, to give security or be superseded. Cunningham v. Souza, 1 Redf. Sur. Rep. 462. SEC. 1397. (8 78.) Any person interested in an estate failing sure- may, by verified petition, represent to the probate judge, that the sureties of the executor or administrator thereof have become or are becoming insolvent, or that they have removed, or are about to remove from the State, or from any other cause that the bond is insufficient, and ask that further security be required. Statutes of 1851, p. 457, §78. Compare sections 1401 and 1402, post, and see section 1307, ante, and cases there cited. Any person interested in the estate of a testator, may apply for an order to show cause why the executor should not be superseded on the ground that his circumstances are so precarious as not to afford adequate security for the due administration of the estate. An apparent interest positively sworn to, will authorize the application, and the validity of the claim will not be tried on such application. Cotterall v. Brock. 1 Brad. 148. executor, show cause against such SEC. 1398. (79.) If the probate judge is satisfied that Citation to the matter requires investigation, a citation must be issued etc., to to the executor or administrator, requiring him to appear, application. at a time and place to be therein specified, to show cause why he should not give further security. The citation must be served personally on the executor or administrator, at least five days before the return day. If he has absconded, or cannot be found, it may be served by leaving a copy of it at his last place of residence, or by such publication as the court or judge may order. Statutes of 1851, p. 457, § 79. curity may be ordered. SEC. 1399. (2 80.) On the return of the citation, or at Further sesuch other time as the judge may appoint, he must proceed to hear the proofs and allegations of the parties. If it satisfactorily appears that the security is, from any cause, insufficient, he may make an order requiring the executor or administrator to give further security, or to file a new bond in the usual form, within a reasonable time, not less than five days. Statutes of 1851. p. 457, § 80. to obey SEC. 1400. (81.) If the executor or administrator Neglecting neglects to comply with the order within the time prescribed, order. the judge must, by order, revoke his letters, and his authority must thereupon cease. 1 Statutes of 1851, p. 457, § 81. Where the law does not declare the vacancy as a consequence flowing from a particular event, a revocation of the letters of the first administrator-he being still living--is essential to the appointment of another person to succeed him. The only competent proof of a revocation of letters in such case is an order of the court directing it. Haynes v. Meeks, 20 Cal. 288. powers of etc. SEC. 1401. (2 82.) When a petition is presented, pray- Suspending ing that an executor or administrator be required to give executor, further security, or to give bond, if by the terms of the will no bond was originally required, and it is alleged, on oath, that the executor or administrator is wasting the property of the estate, the judge may, by order, suspend his powers until the matter can be heard and determined. Statutes of 1851, p. 457, § 82. Compare section 1437, post. Further security ordered without ap party in interest. The power of the probate judge to remove in his discretion an administrator for any of the causes named in the statute, will not be interfered with by the appellate court, unless it should be clearly shown that there has been a gross abuse of discretion. Deck's Estate v. Gherke, 6 Cal. 666. SEC. 1402. (2 83.) When it comes to his knowledge that the bond of any executor or administrator is, from any plication of cause, insufficient, the probate judge, without any application, must cause him to be cited to appear and show cause why he should not give further security, and must proceed thereon as upon the application of any person interested. Statutes of 1851, p. 457, § 83. Release of sureties. New sureties. Neglect to give new sureties forfeits letters. SEC. 1403. (2 84.) When a surety of any executor or administrator desires to be released from responsibility on account of future acts, he may make application to the probate court or judge for relief. The court or judge must cause a citation to the executor or administrator to be issued, and served personally, requiring him to appear at a time and place to be therein specified, and to give other security; if he has absconded, left or removed from the State, or if he cannot be found, after due diligence and inquiry, service may be made as provided in section thirteen hundred and ninety-eight. Statutes of 1861, p. 634, § 26. See Fordyce v. Ellis, 29 Cal. 96, cited under section 1390, ante. SEC. 1404. (2 85.) If new sureties be given to the satisfaction of the judge, he may thereupon make an order that the sureties who applied for relief shall not be liable on their bond for any subsequent act, default or misconduct of the executor or administrator. Statutes of 1851, p, 457, § 85. SEC. 1405. (2 86.) If the executor or administrator neglects or refuses to give new sureties, to the satisfaction of the judge, on the return of the citation, or within such reasonable time as the judge shall allow, unless the surety making the application shall consent to a longer extension of time, the court or judge must, by order, revoke his letters. Statutes of 1851, p. 457, § 86; 1861, p. 634, § 27. tions to be SEC. 1406. (87.) The applications authorized by the Applicanine preceding sections of this chapter may be heard and determined determined out of term time. All orders made therein must time. be entered upon the minutes of the court. Statutes of 1851, p, 458, § 87. out of term ARTICLE VII. Page 59. 1407. (N. S.) The liability of principal and sureties upon the bond of any executor, administrator, or guardian, is in all cases to pay in the kind of money or currency in which the principal is legally liable. ministrator, when appointed. SEC. 1411. (22 88, 95, 282.) When there is delay in Special adgranting letters testamentary or of administration, from any cause, or when such letters are granted irregularly, or no sufficient bond is filed as required, or when no application is made for such letters, or when an administrator or executor dies or is suspended or removed, the probate judge must appoint a special administrator to collect and take charge of the estate of the decedent, in whatever county or counties the same may be found, and to exercise such other powers as may be necessary for the preservation of the estate; or he may direct the public administrator of his county to take charge of the estate. Statutes of 1851, p. 485, § 282; 1851, p. 458, §§ 88, 95; 1855, p. 133, § 4; 1861, p. 652, § 101. By our statute there are only two classes of administrators, special and general; and no such officer as an "administrator de bonis non" is known to our law. When the authority of a general administrator is terminated, and a new one appointed, the latter takes the place of the first-succeeds to the office clothed with the same powers, and subject to the same restrictionsand when he invokes the action of the court, must institute the same proceedings, and, so far as he is able, make a similar showing. Haynes v. Meeks, 20 Cal. 288. By the eighty-eighth section, which has reference to special administration, the court is authorized to "direct the public administrator to take charge of the estate." The phrase "take charge of the estate," is qualified by the scope of the section, and only means to give the public administrator the Special letters may be issued out of term time. Preference given to persons entitled to letters. Special administrator and take oath. same powers over the particular estate as he would have over the class of estates referred to in the 14th chapter. Beckett v. Selover, 7 Cal. 215. An appointment of an administer pro tem, which does not conform to the statute, may be treated as a nullity. Alexander v. Barfield, 6 Texas, 400. SEC. 1412. (2 89.) The appointment may be made out of term time, and without notice, and must be made by entry upon the minutes of the court, specifying the powers to be exercised by the administrator. Upon such order being entered, and after the person appointed has given bond, the clerk must issue letters of administration to such person, in conformity with the order. Statutes of 1851, p. 458, § 89. SEC. 1413. (2 90.) In making the appointment of a special administrator, the probate judge must give preference to the person entitled to letters testamentary or of administration, but no appeal must be allowed from the appointment. Statutes of 1851, p. 458, § 90. See section 1365, ante, and cases there cited. SEC. 1414. (2 91.) Before any letters issue to any speto give bond cial administrator, he must give bond in such sum as the probate judge may direct, with sureties to the satisfaction of the judge, conditioned for the faithful performance of his duties; and he must take the usual oath and have the same indorsed on his letters. Duties of special ad Statutes of 1851, p. 458, § 91. SEC. 1415. (92.) The special administrator must colministrator, lect and preserve for the executor or administrator, all the goods, chattels, debts and effects of the decedent, all incomes, rents, issues and profits, claims and demands, of the estate; must take the charge and management of, enter upon and preserve from damage, waste and injury, the real estate, and for any such and all necessary purposes, may commence and maintain, or defend, suits and other legal proceedings, as an administrator; he may sell such perishable property as the probate court may order to be sold, and exercise such other powers as are conferred upon him. by his appointment, but in no case is he liable to an action by any creditor on a claim against the decedent. Statutes of 1851, p. 458, §92; 1861, p. 634, § 28. |