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will annexed, shall be signed by the clerk and be under the seal of the court.

§ 50. Letters testamentary may be in substantially the following form:-"The State of California, county of The last will of A. B., deceased, a copy of which is hereto annexed, having been proved and recorded in the probate court of the county of, C. D., who is named therein, is hereby appointed executor. Witness, G. H., clerk of the probate court of the county of —, with the seal of the court affixed, the day of ————————, A. D. 18—. (Seal.) By order of the court. G. H., G. H., clerk."

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51. Letters of administration with the will annexed, may be substantially in the following form :-" The State of California, county of. The last will of A. D., deceased, a copy of which is hereto annexed, having been proved and recorded in the probate court of the county of and there being no executor named in the will (or as the case may be), C. D. is hereby appointed administrator with the will annexed. Witness, G. H., clerk of the probate court of the county of, with the seal of the court affixed, the day of, A. D. 18-. (Seal.) By order of the G. H., clerk."

court.

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Order of administration upon intestates'

§ 52. Administration of the estate of a person dying intestate, shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively enti- estates. tled in the following order: 1st., the surviving husband or wife, or such person as he or she may request to have appointed; 2d., the children; 3d., the father or mother; ith., the brothers; 5th., the sisters; 6th., the grand children; 7th., any other of the next of kin who would be entitled to share in the distribution of the estate; 8th., the public administrator; 9th., creditors; 10th., any person or persons legally competent; provided, that when there was any partnership existing between the intestate, at the time Surviving partof his death, and any other person, the surviving partner administer. shall in no case be appointed administrator of the estate of such intestate. (a.)

See Sec. 64, post.

(a.) This section as originally passed, in the statute of 1851, ended with the words, "legally competent." The remainder of the present section, begin

ner in no case to

Proof of desertion, ill-treatment, and the like, and even an agreement of separation, are not sufficient to deprive a husband of his right to administer upon his wife's estate. Case of Altemus, 1 Ashmead's R., 49.

So, too, if there has been an actual divorce, a mensa et thoro. Clark v. Clark, 6 Watts & Serg., 85.

That section of the statute which provides that "any other of the next of kin who would be entitled to share in the distribution of the estate," shall be entitled to administer, must be construed to mean the next of kin capable of inheriting, or who would be entitled to distribution, if there were no nearer kindred. Anderson v. Potter, 5 Cal. R., 63.

The phraseology of the New York statute on the same subject, by which administration is given "to the relatives of the deceased who would be entitled to succeed to his personal estate," or "who would be entitled to share in the distribution of the estate" (both forms of expression being employed in the same section, 2 Rev. Stat., 3rd ed., p. 138, Sec. 28), is examined and discussed, and a somewhat different construction given to it in the case of The Public Aministrator v. Peters, 1 Bradford's R., p. 100. The question in that case was, whether a relative of deceased, who had no interest in the estate (i. e., was entitled to no distributive share), was entitled to administration in preference to the public administrator. And it was held that "a relative who has no interest or no title to a distributive share, is to be considered as a stranger."

The Surrogate says, in the opinion in that case, "The counsel for the administrator contended that this expression (would be entitled) allows any one to administer before the public administrator who by any possible contingency may be entitled to a share at the time of the distribution; and that any relative therefore, who may, by the decease of the next of kin, be placed in the line of succession, can administer; because, by possibility, he may be entitled to share in the distribution. But this is not so; the distributive shares in an estate become vested on the decease of the intestate, according to the relative positions of his next of kin at that time." * * * "The rights of all are settled at the time of the decease. The words 'would be' in the statute, cannot refer to what cannot possibly happen." * * * "The nature of a distributive share is sufficiently contingent to justify and account for the use of the subjunctive form in the expression which defines the class of relatives entitled to administration." 1 Bradford's R., p. 103. (a.)

On a contest for preference as to administration between relatives whose priority is not settled by statute, the single point to be ascertained is, who will be entitled to the surplus of the personal estate. Sweezy v. Willis, 1 Bradford's R., 495.

(a.) The same question was raised at the March term (1858) of the probate court of the city and county of San Francisco, upon the adverse applications of R. C. Rogers, public administrator, and M. G. Noble, for letters of administration upon the estate of John C. Cabanis, deceased. Noble claimed the issuance of letters to himself as a second cousin of deceased, though not entitled to a distributive share of the estate, there being nephews of the deceased living out of the State. The matter was fully argued by Eugene Casserly and D. Rogers, Esqs., for the public administrator, and E. D. Baker and W. H. Tompkins, Esqs., for Noble. The court (Blake, probate judge,) held, that the words "next of kin," as used in the seventh classification of persons entitled

ning with the words "provided that," was added by the amendment of April 23, 1855. Original section, statute 1851, p. 454; Compiled Laws, p. 383; amended section, statute 1855, p. 132.

Who are the next of kin, is to be determined by the rule of the ecclesiastical law, which, in such matters, is a part of the common law. Ib.

And see section 4 of the act of April 13, 1850, (section 318, post,) to regulate descents and distributions, which provides that, "the degrees of kindred shall be computed according to the rules of the civil law." Compiled laws, p. 188.

A person not entitled to administration, cannot be joined as administrator with one who is entitled, on the suggestion of the surrogate, without or against the consent of the party entitled. Peters v Pub. Adm., 1 Bradford's R., 200.

Of persons who have pre

§ 53. When there shall be several persons claiming, and equally entitled to the administration, males shall be pre- equally entitled, ferred to females, and relatives of the whole blood to those of the half blood.

ference.

Discretion of

§ 54. When there are several persons equally entitled to the administration, the court may, in its discretion, grant court in granting letters to one or more of them.

Between brothers, administration will be committed to the one having most interest to execute it faithfully. Moore v. Moore, 1 Dev. N. C. R. 352. And see Churchill v. Prescott, noted under next section.

; or

letters.

Persons who

titled to administer.

§ 55. No person shall be entitled to letters of administration who shall be: 1, under the age of twenty-one years; or shall not be en2, who shall have been convicted of an infamous crime 3, who upon proof shall be adjudged by the court incompetent to execute the duties of the trust, by reason of drunkenness, improvidence, or want of understanding.

See Sec. 42, ante, and cases there cited.

Indebtedness to the estate does not render a person incompetent to administer, nor take away his priority. But where several applicants are equally

under our statute to administer, mean the next of kin to the deceased, after those before named in the same section. "Any person who is in that degree, however remote it may be from the deceased, is entitled to administration if he would be entitled to distribution in case there were no nearer kindred. The persons constituting this seventh class, though often more numerous than those in the preceding classes, are as much as any of them, a class by themselves, as really distinct from the mass of the kindred, and capable of being ascertained with the like legal and actual precision.

"A second cousin may be entitled to administer, because he may be of the 'next of kin.' But if between him and the first six classes enumerated in the statute there are any of a degree of kindred nearer than himself to the deceased, he is not of the next of kin,' according to the intendment of the statute. As there are recognized degrees of kindred between those in which the persons named in the first six classes alluded to are placed, and the degree to which a second cousin belongs, Noble, in order to entitle himself to administration, should show that there are no persons living belonging to the intermediate degrees. But as it appears in evidence that the deceased left nephews surviving, it is clear that Noble is not, in the sense of the statute, of the next of kin.' His application is accordingly denied, and letters must be granted to the public administrator."

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Marriage of administratrix.

Minor.

Application for

made.

entitled, such a fact may be taken into consideration by the Surrogate in deciding between them. Churchill v. Prescott, 5 Bradford's R. 304.

The bare fact that the applicant is a gambler will not be sufficient to exclude him as an improvident person; the matter of improvidence, as a disqualification, discussed. Harrison v. McMahon, 1 Bradford's R. 283.

56. When any unmarried woman, who shall have been appointed administratrix, shall marry, her marriage shall extinguish her authority.

See Sec. 44, ante.

§ 57. If any person entitled to administration shall be a minor, administration shall be granted to his or her guardian.

§ 58. Application for letters of administration shall be letters, how made by petition in writing, signed by the applicant or his counsel, and filed with the clerk of the court. The petition must state the facts essential to give the court jurisdiction of the case.

[Forms No. 9, 35, 39, 42 and 44, Appendix.]

§ 59. Letters of administration shall only be granted at When granted. a regular term of the court, or at a special term appointed by the judge for the hearing of the application.

sation for letters.

60. When any petition praying for letters of adminisNotice of appli- tration has been filed, the clerk shall give notice thereof by causing notices to be posted up in at least three public places in the county, one of which shall be at the place. where the court is held. The notice shall state the name of What to state. the deceased, the name of the applicant, and the term of the court at which the application will be heard. Such notice shall be given at least ten days before the hearing. [Forms No. 17 and 36, Appendix.]

§ 61. Any person interested, may contest the application by filing a written opposition thereto, on the ground of the incompetency of the applicant, or may assert his own rights to the administration, and pray that letters be issued to himself.

[Form No. 40, Appendix.]

See Sec. 18, ante, and cases there cited.

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 oppositon 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.

Hearing of ap.

§ 62. On the hearing, it being first proved that notice has been given according to law, the court shall proceed to plication. hear the allegations and proof of the parties, and to order the issuance of letters of administration as the case may require.

]Forms No. 17, 36, 37, 41, 41 A, 43 and 47, Appendix.]

Minutes of

court conclusive

§ 63. An entry in the minutes of the court that proof was made that notice had been given according to law, shall be as to notice. conclusive evidence of the fact of such notice.

§ 64. Letters of administration may be 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 issuance of letters to themselves.

See Sec. 73, post.

[Forms No. 44 and 47, Appendix.]

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. Becket et al. v. Selover, 7 Cal. R., 215.

$65. Before letters of administration shall be granted on the estate of any person who is represented to have died intestate, the fact of his dying intestate shall be proved by the oath of the applicant, and the court may also examine any other person concerning the time, place and manner of the death, and whether or not the deceased left any will; and may compel any person to attend as a witness for that purpose.

[Form No. 37, Appendix.]

The fact that decedent died intestate, is ordinarily shown by establishing that no will can be found. Buckley v. Redmond, 2 Bradford's R., 281.

Where a will was duly executed by the deceased and left in the possession of his counsel, and a few months afterwards the testator sent for it, avowing the purpose of destroying it, and a day or two subsequently stated that he

Grant to any applicant.

Proof of death of intestate, &c,

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