at any time within ten days after trial and decision therein, by the probate court, to the effect that the applicant requires the issue to be certified to a district court for trial; provided, if said trial has been had since the first day of October, one thousand, eight hundred and fifty-four, said notice may be given at any time within thirty days after the passage of this act. (a.) So much of this section as provides for the transfer to the district court of issues of fact already decided in the probate court, has been declared unconstitutional and void, upon the ground that its effect is, indirectly to confer appellate jurisdiction upon the district court. See opinion in Deck's Estate v. Gherke, 6 Cal. R., p. 669. ed in district § 296. An issue certified by a probate court to a district Issue, how tricourt, shall be tried like any other issue of fact in the dis- court. trict court; and at the trial, like objection and exception to the decisions of the court, may be taken and settled; after the trial of such issue, the district court shall remit the proceedings upon such trial, together with the finding and decision, to the probate court, which shall form part of the record of the cause in the probate court. The probate court shall render judgment according to the finding and decision in the district court. (b.) preme Court, in § 297. An appeal may be taken to the supreme court, from Appeal to Suan order, decree, or judgment, of the probate court, where what cases. the estate or amount in dispute, exceeds two hundred dollars, in the following cases: 1st, for or against granting or revoking letters testamentary or of administration; 2d, for or against admitting a will to probate; 3d, for or against the validity of a will, or revoking the probate thereof; 4th, for or against setting apart property, or making an allowance for a widow or child; 5th, for or against directing the sale or conveyance of real property; 6th, on the settlement of an executor or administrator; 7th, for or against declaring, allowing, or directing the payment of a debt, claim, legacy or distributive share. (c.) (a.) Amended May 7, 1855. Statute 1855, p. 300, Sec. 6; original section, Statute 1851, p. 487; Compiled Laws, p. 420. Statute 1855, p. 301, Sec. 7; original section, (b.) Amended May 7, 1855. time taken. perfected. § 298. The appeal may be taken within sixty days after Within what the order, decree, or judgment is made and entered in the minutes of the court; it shall be made by filing with the clerk of the probate court, a notice stating the appeal from the order, decree or judgment, or some specific part thereof, How taken and and by executing an undertaking, or giving surety on such appeal in the same manner, and to the same extent as upon an appeal to the supreme court from the district court; provided, the appeal of an executor or administrator, who has given an official bond, shall be complete and effectual withUndertaking by out the undertaking; provided, also, from an order, decree dispensed with, or judgment, made since the first day of October, one thousand eight hundred and fifty-four; the appeal may be taken within sixty days after the passage of this act. After the Suit on under appeal is determined, suit may be brought and prosecuted to judgment on the undertaking, in the name of any party beneficially interested therein. (a.) executor, when taking. Statement to be annexed to record. the Practice Act etc. § 299. When a party, who has a right to appeal, wishes a statement of the case, to be annexed to the record, he shall prepare and file the same within twenty days after the entry of the order, decree, or judgment; provided, if the order, decree, or judgment, has been made since the first day of October, one thousand eight hundred and fifty-four, he shall prepare and file such statement within twenty days after the passage of this act. (b.) § 300. The provisions, as amended, of chapter one, title Provisions of nine, of the act entitled "An act to regulate proceedings in made applicable, civil cases, in the courts of justice in this State," passed April twenty-ninth, one thousand eight hundred and fiftyone, so far as the same do not conflict with the provisions of this act, shall be applicable to appeals from the probate court. (c.) The provisions of the Practice Act, referred to in the foregoing section, have either been declared unconstitutional, or have become inoperative by the amendments to sections 295 to 301, inclusive. Compare sections 363 to 365, inclusive, of the Practice Act, and sections 295, 296, 297, 298 and 300, ante. (a.) Amended May 7, 1855. Statute 1851, p. 487; Compiled (b.) Amended May 7, 1855. Statute 1851, p. 487; Compiled (c.) Amended May 7, 1855. Statute 1855, p. 301, Sec. 9; original section, Statute 1855, p. 301, Sec. 10; original section, Statute 1855, p. 302, 11. Papers, etc. necessary for tridistrict court, etc 301. When an issue is certified for trial, the clerk of the probate court shall transmit all papers and records al to be sent to necessary for the trial of the issue, to the district court. After such trial, the clerk of the district court shall return the same with the proceedings of the court to the probate court. (a.) See Sec. 314, post. § 302. Where it is not otherwise prescribed by law, the costs. probate court, or the supreme court on appeal, may, in its discretion order costs to be paid by any party to the proceedings, or out of the estate, as justice may require; execution for the costs may issue out of the probate court. (a.) CHAPTER XIV. PUBLIC ADMINISTRATORS. (b.) [The following five sections are taken from the act of April 15, 1855, "Concerning the office of public administrator, and making it elective." Compiled Laws, p. 846.] tion and term of § 302 A. [Sec. 1.] There shall be elected at the general Public adminelection in and for each of the counties of this State, by the istrator. His elecelectors thereof, a public administrator, who shall continue office. in office for the term of two years, and until his successor is elected and qualified. (c.) Condition and § 302 B. [Sec. 2.] Before entering upon the duties of his office, he shall execute a bond, with sureties to be approved To execute bond. by the probate judge, in a sum not less than thirty thousand dollars, and which may at any time be increased, in the dis- amount. cretion of the probate judge, conditioned for the faithful performance of all the duties enjoined upon him by law, and (a.) Amended, Statute 1855, p. 302, Secs. 12 and 13. (b.) See cases noted at the end of the chapter. (c.) Amended by act of April 4, 1854. Statute 1854, p. 27. The original section did not fix the term of the office. Judge as to am't. particularly that he will account for, and pay over, all Discretion of moneys and property that may come into his hands as such public administrator; provided, that the probate judge may in his discretion, for good reason shown, fix the amount of the bond to be given by the public administrator, at any sum, not less than fifteen thousand dollars. (a.) Duties and compensation. Not to be inter ed in business, etc. Sec. 2 of the act "Concerning the office of public administrator for the county of San Francisco," (Compiled Laws, p. 848.,) fixed the bond of the pub lic administrator for that county, at the sum of fifty thousand dollars. That act was passed March 8, 1851. The act "Concerning the office of public administrator," etc., was passed April 15, 1851; and the former act would seem to be repealed, by the effect of sections 1 and 10 of the latter. See Sec. 302 A., ante, and observation under section 302 E., post. § 302 C. [Sec. 3.] He shall perform such duties, and receive such compensation, as may be prescribed by law. §302 D. [Sec. 4.] No public administrator now in office, or hereafter elected under this act, shall be interested, diested or associat-rectly or indirectly, in expenditures of any kind, made on account of any estates of deceased persons; nor shall he be associated in business or otherwise, with any person who shall be so interested; and he shall annex to his report every six months, as required by this act, an affidavit taken before a county or district judge to that effect. annually. Return to be published. § 302 E. [Sec. 5.] The public administrator, shall once in To make return every six months, make to the probate judge, under oath, a under oath semi- return of all estates of deceased persons, which have come into his hands, the value of the same, the expenses, if any paid thereon, and the balance, if any, remaining in his hands; said return to be published six times in some newspaper in the county, or if there be no newspaper published in the county, then it shall be posted, legibly written, or printed, in the office of the county clerk of the county; and he shall, after a final settlement of the affairs of any estate, Moneys unclaim- if there be no heir or heirs, or other claimant thereof, pay over to the county treasurer, to be by him paid into the State treasury, all moneys and effects in his hands, belonging to said estate; and in the event of all or any such ed. Or posted. (a.) Amended May 7, 1855. Statute 1855, p. 299. The original section fixed the bond at "not less than thirty thousand dollars," to be increased (but not diminished) in the discretion of the probate judge. Compiled Laws, p. 847. moneys and effects having escheated to the State, the same shall be disposed of as other escheated estates. (a.) See act of May 4, 1852, "Concerning escheated estates," post sections 327 to 335. The remaining sections of this act, of April 15, 1851, have been repealed or become inoperative. Sections 6, 7 and 8, were temporary in their object, and have been executed. Section 9, which provided that the district judge, of the district embracing the county in which a vacancy should occur in the office of public administrator, "should appoint some suitable person to fill the same," has been repealed. (Statute 1854, p. 27.) Sec. 10, which is the concluding section, repeals "All provisions of law conflicting with this act." [The three following sections are taken from the act of May 18, 1853, "Requiring county treasurers, and public administrators to settle their accounts." Compiled Laws, p. 849.] with county cl❜k. $302 F. [Sec. 2.] Public administrators in their respec- When to settle tive counties are hereby required to settle and adjust their accounts, relating to the collection, care and disbursement, of money or property, belonging to the estates of deceased persons, with the county clerk, on the first Monday of each month. Statement un § 302 G. [Sec. 3.] Such county treasurers and public administrators, for the purpose of making such settlement, der oath. shall make out a statement, under oath, of the amount of money or other property received preceding such settlement, and up to the period of such settlement, the sources from whence the same was derived, the amount of payment or disbursements, and to whom, with the amount remaining on hand; such statement shall be verified by the oath of such party to be a true and correct statement of the same. Contents. olation. § 302 H. [Sec. 4.] Any officer as aforesaid, failing or refusing to make such statement and settlement as aforesaid, Penalty for vi shall, for the first offence, upon conviction thereof by a competent court, be deemed guilty of a misdemeanor, and punishable by a fine not less than fifty dollars nor more than five hundred dollars, and for the second offence, on conviction thereof, be liable in addition to such fine to be removed from office by the judgment of the court of sessions of such county. § 303. For any wilful misdemeanor in office, the public misdemeanor in Penalty for (a.) Amended May 7, 1855. Statute 1855, p. 299, Sec. 2; original section, Statute 1851, p. 206; Compiled Laws, p. 846. office. |