ters testa of admin SEC. 1416. (2 93.) When letters testamentary or of When letadministration on the estate of the decedent have been mentary or granted, the powers of the special administrator cease, and istration are granted, he must forthwith deliver to the executor or administrator special adall the property and effects of the decedent in his hands; powers and the executor or administrator may prosecute to final judgment any suit commenced by the special administrator. Statutes of 1851, p. 458, § 93. ministrators cease. ministrator SEC. 1417. (2 94.) The special administrator must ren- Special adder an account, on oath, of his proceedings, in like manner to render as other administrators are required to do. Statutes of 1851, p. 458, § 94. account. ARTICLE VIII. WILLS FOUND AFTER LETTERS OF ADMINISTRATION GRANTED, AND MISCELLANEOUS PROVISIONS. SECTION 1423. On proof of will, after grant of letters of administration, letters revoked. 1424. Power of executor in such a case. 1425. Remaining administrator or executor to continue when others are disqualified. 1426. Who to act when all acting are incompetent. 1427. Eexecutor or administrator may resign, when. Court to ap point successors. Liability of out-goer. 1428. All acts of executor, etc., valid until his power is revoked. will, after letters of tion, letters SEC. 1423. (98.) If, after granting letters of adminis- On proof of tration on the ground of intestacy, a will of the decedent grant of is duly proved and allowed by the court, the letters of ad- administra ministration must be revoked, and the power of the admin- revoked. istrator ceases, and he must render an account of his administration within such time as the court shall direct. Statutes of 1851, p. 459, § 98. On application by one of the next of kin for a revocation of letters of alministration on the ground that deceased left a will, and it being proved that a will had been executed: Held, that in the absence of proof that the will was in the possession of deceased, or unrevoked, at the time of his death, it was improper to revoke the letters. Holland v. Ferris, 2 Brad. 513. Power of executor in SEC. 1424. (2 99.) In such case, the executor or the such a case, administrator with the will annexed is entitled to demand, sue for, recover and collect all the rights, goods, chattels, debts and effects of the decedent remaining unadministered, and may prosecute to final judgment any suit commenced by the administrator before the revocation of his letters of administration. Remaining executor or administra tor to con colleagues fied. Statutes of 1851, p. 459, § 99. SEC. 1425. (96.) In case any one of the several executors or administrators, to whom letters are granted, dies, betinue when comes lunatic, is convicted of an infamous crime, or otherare disquali- wise becomes incapable of executing the trust, or in case the letters testamentary or of administration are revoked or annulled, with respect to any one executor or administrator, the remaining executor or administrator must proceed to complete the execution of the will or administration. Who to act when all incom petent. Statutes of 1851, p. 459, § 96, See section 1355, ante, and cases cited there. SEC. 1426. (2 97.) If all such executors or administraacting were tors die or become incapable, or the power and authority of all of them is revoked, the probate court must issue letters of administration with the will annexed, or otherwise, to the widow or next of kin, or others, in the same order and manner as is directed in relation to original letters of administration. The administrators so appointed must give bond in the like penalty, with like sureties and conditions, as herein before required of administrators, and shall have the like power and authority. Executor or administrator may resign, when. See section 1365, ante. Statutes of 1851, p. 459, § 97. If the testator appoints an executor of his will, and the executor dies and an administrator with the will annexed is appointed, the administrator with the will annexed, under the statutes of California, possesses all the power conferred on the executor named in the will, and can sell the land devised, if the executor could have sold it. Kidwell v. Brummagim, 32 Cal. 437. SEC. 1427. ( 100.) Any executor or administrator may, at any time, by writing, filed in the probate court, resign his appointment, having first settled his accounts and delivered up all the estate to the person whom the appoint court shall appoint to receive the same. If, however, by Court to reason of any delays in such settlement and delivering up successor. of the estate, or for any other cause, the circumstances of the estate or the rights of those interested therein require it, the court may, at any time before settlement of accounts and delivering up of the estate is completed, revoke the letters of such executor or administrator, and appoint, in his stead, an administrator, either special or general, in the same manner as is directed in relation to original letters of administration. The liability of the outgoing executor or Liability of administrator, or of the sureties on his bond, shall not be in any manner discharged, released or affected by such appointment or resignation. Statutes of 1851, p. 457, § 100; 1858, p. 105, § 1. See sections 1383 to 1386, incl. ante, and cases cited there. See also section 1622, post. Resignation of administrator.-Upon the resignation of an administrator the court must appoint another to receive the estate, unless it is in a condition for distribution. The probate judge is not a fiscal agent, and cannot order the money to be paid into court. Wilson v. Hernandez, 5 Cal. 443, An administrator cannot resign by permission of the probate court without first settling up his accounts and delivering over the estate to his successor appointed by the court. The permission given in one case by the one hundredth section of the statute is a negative upon the right in others. Haynes v. Meeks, 10 Cal. 110. Though the probate court has no right to accept the resignation of an administrator until he has settled his administration accounts, such an acceptance of his resignation is only a voidable error, and not void. Ibid. The acceptance by the probate court of the resignation of an administrator is sufficiently established by the appointment of his successor. Ibid. A resignation is not a matter absolutely in the power of an administrator to be made at any time he may choose. The statute only confers upon him a conditional right to resign, and the statutory conditions must be complied with, or dispensed with by the court, before a resignation tendered will take effect. Ibid. Where an administrator filed in the probate court his resignation, and on the same day the court made an order reciting that the administrator had filed his resignation, and requiring him to turn over to the public administrator all the effects of the estate, and that he settle with the public administrator by the first day of the next term, and when such settlement should be fully made, the administrator and his sureties be released, and where no final settlement was made: Held, that such act was an acceptance on the part of the court of such resignation. Haynes v. Meeks, 10 Cal. 110. If the administrator or executor of an estate resigns his trust, and an order is made by the probate court accepting his resignation and the resignation and order of acceptance are in proper form, when the proceeding is collaterally questioned in another court, the presumption is that the order out-goer. All acts of executor, until his accepting the resignation was properly made, and that the executor or administrator had settled his accounts and delivered up all the estate to some person appointed by the court. Lucas v. Todd, 28 Cal. 182. One attacking a judgment or order of a probate court made within the scope of its jurisdiction, must affirmatively show error. Ibid. Compensation when administrator resigns.-Where an administrator resigns, or is removed, leaving the administration incomplete, there is no fixed rule of compensation. The probate court should apportion it, in reference to the compensation fixed by law for the whole, according to sound judgment. Ord v. Little, 3 Cal. 287. New administrator. To vest the incoming administrator with title to the estate, there must be a grant of administration to him; the mere handing over the papers by the old administrator to the new is not sufficient. Rogers v. Hoberlein, 11 Cal. 120. The appointment of a new administrator, the former administrator not having been removed nor his resignation accepted is a void proceeding. Haynes v. Meeks, 20 Cal. 288. An existing administrator is not removed simply by force of the appointment of another person as administrator. The office must first become vacant before a second appointment can be made. Ibid. SEC. 1428. (8 101.) All acts of an executor or adminetc., valid istrator, as such, before the revocation of his letters testamentary or of administration, are as valid, to all intents and purposes, as if such executor or administrator had continued lawfully to execute the duties of his trust. power is revoked. Transcript of court, be evidence. Statutes of 1851, p. 459, § 101. NOTE.-Section 102 (Stat. 1851, p. 459) is omitted, its office being supplied in Part IV of this code, under title "Evidence." SEC. 1429. ( 102.) A transcript from the minutes of the minutes to court, showing the appointment of any person as executor or administrator, together with the certificate of the clerk, under his hand and the seal of his court, that such person has given bond and been qualified, and that letters testamentary or of administration have been issued to him, and have not been revoked, shall have the same effect in evidence as the letters themselves. ARTICLE IX. DISQUALIFIED JUDGES AND TRANSFERS OF ADMINISTRATORS. SECTION 1430. When judge not to act. 1431. Judge being disqualified, proceedings to be transferred, and where. 1432. Transfer not to change right to administer. Re-transfer, how 1433. When proceedings to be returned to original court. not to act. SEC. 1430. ( 103.) No probate court shall admit to pro- When judge bate any will, or grant letters testamentary or of administration, in any case where the judge thereof is interested as next of kin to the decedent, or as a legatee or devisee under the will, or when he is named as executor or trustee in the will, or is a witness thereto, or is in any other manner interested or disqualified from acting. Statutes of 1851, p. 459, § 103; 1863-4, p. 369, § 9. A probate judge who has a power of attorney from any of the persons claiming to be heirs of the deceased, authorizing him to receive any money or property to which they might be entitled from the estate, and also letters offering him a percentage upon said proceeds coming to said alleged heir, is interested in the estate, and cannot act as judge in any matter pertaining to such estate except to arrange the calendar, or change the venue. Estate of White, 37 Cal. 190. When the probate judge is interested in an estate, or in money coming to the heirs therefrom, he has no jurisdiction to act as judge therein, and should grant a change of venue. It is no excuse for refusing a change of venue in such case to say that the judge decided correctly upon the matter before him after refusing such change of venue. Ibid. disqualified to be trans where. SEC. 1431. (2 104.) When a petition is filed in the pro- Judge being bate court, praying for admission to probate of a will, or proceedings for granting letters testamentary or of administration, or ferred, and when proceedings are pending in the probate court for the settlement of an estate, and the presiding judge of the court is disqualified to act from any cause, upon his own or the motion of any person interested in the estate, he must make an order transferring the proceeding to the probate court of an adjoining county; and the clerk of the court ordering the transfer, must transmit to the clerk of the court to which the proceeding is ordered to be transferred, a certified copy of the order, and all the papers on file in |