Administration granted to sev

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 cancelled. Ib.

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 Bradford's R., 69.

But see Sec. 27, ante.

§ 66. Adminstration may be granted to one or more competent persons, although not entitled to the same, at the reeral at request, quest of the person entitled to be joined with such person. The request shall be in writing and shall be filed in the court.

etc.

Revocation of

[Form No. 44, Appendix.]

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. Pub. Admr., 1 Bradford's R., 200.

§ 67. When letters of administration have been granted to any other persons than the surviving husband or wife, the child, the father, mother, or the brother of the intestate, any letters of admin- one of them may obtain the revocation of the letters by presenting to the probate court a petition praying the revocation, and that letters of administration may be issued to him or her.

istration.

Citation to administrator.

Hearing of pe

tion.

[Form No. 44, Appendix.]

§ 68. When any such petition is filed, the clerk shall issue a citation to the administrator to appear and answer the petition at the next regular term of the court, or at any special term that may be appointed by the judge.

[Forms No. 45, 46, Appendix.]

§ 69. At the time appointed, the citation having been duly tition for revoca- served and returned, the court shall proceed to hear the allegations of the parties; and if the right of the applicant is established, and he or she be competent, letters of administration shall be granted to the applicant, and the letters of the former administrator be revoked.

Revocation in other cases.

[Forms No. 46, 47, Appendix.]

§ 70. The surviving husband or wife, where letters of administration have been granted to a child, to the father, or to a brother of the intestate, or any of such relatives when letters have been granted to any other of them, may assert

his or her prior right and obtain letters of administration, and have the letters before granted revoked in the manner prescribed in the three preceding sections.

Form of letters

tion.

$71. Letters of administration shall be signed by the clerk and be under the seal of the court, and may be in sub- of administrastantially the following form:-"The State of California, county of -. C. D. is hereby appointed Administrator of the estate of A. B., deceased. [Seal.] Witness, G. H., clerk of the probate court of the county of seal of the court affixed, the By order of the court. G. H., clerk."

day of

[Form No. 48, Appendix.]

with the

-, A. D. 18-.

Oath to be ta

ters issued.

$ 72. Before letters testamentary or of administration shall be issued to the execuior or administrator, he shall ken before lettake and subscribe, an oath or affirmation, before the probate judge or clerk, that he will perform, according to law, the duties of executor or administrator.

[Forms No. 33, 34 and 58, Appendix.]

given.

§ 73. Every person to whom letters testamentary or of Bonds to be administration, shall have been directed to issue, shall, before receiving the letters, execute a bond to the State of California, with two or more sufficient sureties, to be approved by the probate judge.. In form, the bond shall be Its form. joint and several, and the penalty shall not be less than twice the value of the personal property belonging to the estate, which value shall be ascertained by the probate judge, by the examination on oath of the party applying, and of any other persons he may think proper to examine. The probate judge shall require an additional bond whenever the sale of any real estate belonging to an estate is ordered by him. on sale of real The bond shall be conditioned that the executor or administrator shall faithfully execute the duties of the trust according to law. He shall also require bond and sufficient surety for Further secuthe annual rents, issues and profits, of all real estate in his charge as such executor or administrator, to be approved by the probate judge. (a.)

See Sec. 64, ante.

[Form No. 38, Appendix.]

(a.) Amended May 3d., 1852. See statutes of 1852, p. 105. The amendment added the portions of the section in italics. Statute 1851, p. 456; Compiled Laws, p. 385.

Additional bond

estate.

rity.

Separate bonds.

Several suits on one bond.

Justification of sureties.

The party entitled may receive letters where they have been ordered to be issued to another applicant, such applicant neglecting to perfect the requisite bond. Harrison v. McMahon, 1 Bradford's R., 283.

See Spencer v. Cahoon, noted at the end of the chapter.

§ 74. When two or more persons shall be appointed executors or administrators, the probate judge shall take a separate bond from each of them.

[Form No. 38, Appendix.]

Joint administrators and co-executors, are regarded in law as one person; and consequently the acts of one, in respect to the administration, are deemed to be the acts of all, in as much as they have a joint and entire authority over the whole property. Dean v. Duffield, 8 Texas R., 235.

And see cases noted at the end of chapter VIII., concerning the powers and duties of executors and administrators.

75. The bond shall not be void upon the first recovery, but may be sued upon from time to time, by any person aggrieved, in his own name, until the whole penalty is exhausted.

$76. In all cases where bonds are required by this act, the sureties must justify on oath, before the judge or clerk of some court having a seal, to the effect that they are householders or freeholders, resident within this State, and worth the amount justified to, over and above their debts and liabilities, exclusive of property exempt from execution; such justification shall be in writing, signed by the person justifying, and To be filed, etc. certified to by the judge or clerk who takes the same, and attached to and filed with the bond. Whenever the penal sum of the bond amounts to more than two thousand dollars, the sureties may be allowed to become liable for portions of said penal sum, making in the aggregate the whole penal sum of such bond. (a.)

Sureties for portions.

Citation to securities to appear and be examined, etc.

[Form No. 38, Appendix.]

§ 76 A. (SEC. 3.) Before the probate judge approves any bond, required by said act, (the probate act) he may of his own motion, or at any time after the approval of such bond, upon the motion of any person interested in said estate, sup

(a.) Amended May 7, 1855. Stat. 1855, p. 299. The italics indicate the changes.made by the amendment. By the statute of 1851, the sureties were required to justify in double the amount for which they became liable, and were allowed to become liable for portions of the penal sum where it amounted to more than five thousand dollars. See Stat. 1851, p. 456; Compiled Laws, p. 136.

ported by affidavit, that any one, or all of such securities, are not worth as much as they have justified to, order a citation to issue, requiring such security or securities to appear before him, at a particular time and place, to testify touching his or their property, and its value; and the judge shall, at the time such citation is issued, cause a notice to be issued utor, etc. to the executor or administrator, and requiring his appearance at the return of said citation. Upon the return of the

Notice to exec

ties.

citation, the judge may swear the securities and such wit- Proof touching nesses as may be produced, touching the property of such property of sure securities and its value, and if, upon such investigation, the judge is satisfied that the bond is insufficient, he may require sufficient additional security, within such time as may be reasonable, not less than five days. (a)

In case securi

§ 76 B. (Sec. 4.) If sufficient security is not given within the time fixed by the judge's order, the right of such executor or administrator to the administration shall cease, and ty not given. the person next entitled to the administration on the estate who will execute a sufficient bond, shall be appointed the administrator.

with.

§77. When it is expressly provided in the will of a testator that no bond shall be required of the executor, letters testamentary may issue without any bond having been giv- When bond may en; but an executor, to whom letters have been issued without bond, may, at any time afterwards, whenever it may be shown from any cause to be necessary or proper, be required to appear and file a bond as in other cases.

[Form No. 21, Appendix.]

Application for

§78. Whenever any person interested in any estate shall discover that the sureties of any executor or administrator, further security. have become, or are becoming insolvent, that they have removed or are about to remove from the state, or that from any other cause, the bond is insufficient, he may apply by petition to the probate judge, and require that further secu- rity be given.

[Form No. 49, Appendix.]

Compare secs. 82, 83, post, and see ante, sec. 18, and cases there cited.

(a) This, together with the following section, are the 3d and 4th sections of the act of May 7, 1855, amending section 76, (stat. 1855, p. 299.) They are inserted here, and designated as above, for convenience of reference.

Citation to show cause

such application.

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. Cotterell v. Brock, 1 Bradford's R, 148.

§ 79. If the probate judge shall be satisfied that the matter requires investigation, a citation shall be issued to the against executor or administrator, requiring him to appear at a time and place to be therein specified, to show cause why he should not give further security. The citation shall be served personally on the executor or administrator, at least five days before the return day. If he shall have absconded or cannot be found, it may be served by leaving a copy of it at his last place of residence.

Further secu

dered.

[Forms No. 50 and 51, Appendix.]

$80. On the return of the citation or at such other time as the judge shall appoint, he shall proceed to hear the rity may be or proofs and allegations of the parties. If it shall satisfactorily appear 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 exceeding five days.

Powers of exe

[Forms No. 51 and 52, Appendix.]

§ 81. If the executor or administrator, neglect to comply with the order within the time prescribed, the judge shall, by order, revoke his letters, and his authority shall thereupon cease.

See post Sec. 283.

[Form No. 53, Appendix.]

§ 82. When a petition is presented praying that an executor or administrator be required to give further security, and when it shall also be alleged, on oath or affirmation, pended, etc. 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.

cutor to be sus

Compare Sec. 281, post.

[Form No. 50, Appendix.]

§ 83. When it shall come to his knowledge that the bond of any executor or administrator is from any cause insuffi