curity without

cient, it shall be the duty of the probate judge, without any Judge to reapplication, to cause him to be cited to appear and show quire further secause why he should not give further security, and to pro- application. ceed thereon as upon the application of any person interested.

ing to be releas

§ 84. When either or all of the sureties of any executor Sureties wishor administrator shall desire to be released from responsi-ed. bility, on account of his future acts, they may make application to the probate judge for relief, and the judge shall cause a citation, to the executor or administrator, to be issued and served, requiring him to appear, at a time and place to be therein specified, and to give other security. See also No. 51, Appendix.] § 85. If new sureties be given to the satisfaction of the judge, he may, thereupon, make an order that the surety or securities who applied for relief, shall not be liable on their bond for any subsequent act, default, or misconduct of the executor or administrator.

[Forms No. 54 to 56.

[Form No. 54, Appendix.]

§ 86. If the executor or administrator neglect or refuse 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, not exceeding five days, he shall by order revoke the letters granted.

[Forms No. 55 and 56, Appendix.]

New sureties.

Application may be made out

§ 87. The applications authorized by the nine preceding sections of this chapter, may be heard and determined out of term. of term time. All orders made therein, shall be entered upon the minutes of the court.

Special admin

§ 88. When there shall be a delay in granting letters testamentary or of administration, from any cause, or when istrator. such letters shall have been granted irregularly, or no sufficient bond shall have been filed as required by law, or when no application shall have been made for such letters, the probate judge shall appoint a special administrator to collect and take charge of the estate of the deceased, 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. (a.)

(a.) Amended April 23, 1855. The amendment added the portions of the sec

Order must spe

[Form No. 57, Appendix.]

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 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. R., 215.

An appointment of an administrator pro tem. which does not conform to the statute, may be treated as a nullity. Alexander v. Barfield, 6 Texas R., 400. § 89. The appointment may be made, out of term time, and without notice, and shall be made by entry upon the minutes cify powers of the court, which shall specify the powers to be exercised by the administrator. Upon such order being entered, and after the person appointed has given bond, the clerk shall issue letters of administration to such person, in conformity with the order.

granted.

Who to be ap

[Form No. 57 and 58, Appendix.]

§ 90. In making the appointment of a special administrapointed. No ap- tor, the probate judge shall give preference to the person or pointment. persons entitled to letters testamentary or of administration. But no appeal shall be allowed from the appoint

peal from ap

Bond to be giv

en.

administrator.

ment.

See ante Sec. 52, and cases cited.

§ 91. Before any letters shall issue to any special administrator, he shall give bond in such sum as the probate judge may direct, with sureties to the satisfaction of said judge, conditioned for the faithful performance of his duties.

[Form No. 38, Appendix.]

$92. The special administrator shall collect and preserve for the executor or administrator, all the goods, chattels and debts of the deceased, and for that purpose may commence Duties of special and maintain suits as an administrator. He may sell such perishable property as the probate court may order to be sold, and may exercise such other powers as may have been conferred upon him by his appointment; but in no case shall he be liable to an action by any creditor on a claim against the deceased.

tion in italics, substituting "shall" appoint for "may" appoint, and omitting the words "if there be one," which came after "public administrator" in the statute of 1851. Statutes of 1850, p. 383; Statutes of 1851, p. 458; Compiled Laws, p. 388. Amended section Statutes of 1.55, p. 133, § 4.

In regard to actions by and against executors, etc., see post sections, 195 to 200, inclusive, and cases noted at the end of chapter VIII.

ers to cease.

§ 93. When letters testamentary or of administration, on the estate of the deceased have been granted, the powers of the special administrator shall cease, and he shall forthwith when his powdeliver to the executor or administrator, all the property and effects of the deceased in his hands; and the executor or administrator may be permitted to prosecute to final judgment, any suit commenced by the special administrator.

To account on

§ 94. The special administrator shall also render an account, on oath, of his proceedings, in like manner as other oath. administrators are required to do.

In reference to accounts to be rendered by administrators, etc., see post chapter X.

§ 95. Whenever an executor or administrator shall die, or his letters be revoked, and the circumstances of the estate require the immediate appointment of an administrator, the probate judge may appoint a special administrator as provided in the preceding sections.

§ 96. In case any one of several executors or administrators, to whom letters shall have been granted, shall die, become lunatic, be convicted of an infamous offence, or otherwise become incapable of executing the trust, or in case the letters testamentary or of administration, shall be revoked or annulled according to law, with respect to any one executor or administrator, the remaining executor or administrator shall proceed and complete the execution of the will or administration.

Special admincases.

istrator in other

In case of one or more, of sev

eral executors

becoming incom

petent to act.

If all become

act.

§ 97. If all such executors or administrators shall die or become incapable, or the power and authority of all of them shall be revoked according to law, the probate court shall issue letters of administration with the will annexed, incompetent to or otherwise, to the widow or next of kin, or others, in the same manner as is directed in relation to original letters of administration. The administrators so appointed, shall 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.

[Forms No. 32, 23, 42, 43 and 38, Appendix.]

§ 98. If, after granting letters of administration on the 7

after grant of let

ground of intestacy, a will of the deceased shall be duly If will proved proved and allowed by the court, the letters of administraters of adminis- tion shall be revoked, and the power of the administrator shall cease, and he shall render an account of his administration within such time as the court shall direct.

tration.

utor in such a

case.

[Form No. 59, Appendix.]

On application by one of the next of kin for a revocation of letters of administration 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 Bradford's R., 513.

§ 99. In such case, the executor of the will, or the adminPowers of exec-istrator with the will annexed, shall be entitled to demand, sue for and collect, all the rights, goods, chattels and effects of the deceased remaining unadministered, and may be admitted to prosecute to final judgment, any suit commenced by the administrator before the revocation of his letters of administration.

ministrator may resign.

§ 100. Any executor or administrator may, at any time, by writing, filed in the probate court, resign his appointExecutor or ad- Iment, having first settled his accounts and delivered up all the estate to such person as the court shall appoint; Provided, if, by reason of any delays in such settlement and delivering up of the estate, or for any other cause, the circumstances of the estate or the rights of those interested in the estate, shall in the opinion of the court require it, the court may, at any time before such settlement of accounts and deCourt may re-livering up of the estate shall have been completed, revoke the powers, or the letters testamentary or of administration of such executor or administrator, and appoint in his stead, an administrator, either special or general as the case may require, and in the same manner as is directed in relation to original letters of administration. The liability of the outgoing executor or administrator, or of the sureties on his bond, shall not be in any manner discharged, released or affected, by such appointment of a special or general administrator in his stead. (a.)

woke letters, etc.

See Sec. 222, post.

[Form No. 139, Appendix.]

(a.) Amended March 30, 1858. See Statutes 1858, p. 105. The amendment adds all that portion of the present section from the word "provided," to the end.

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 100th section of the statute, is a negative upon the right in others. Haynes v. Meeks, July term, 1857.

Same case, after re-argument, January term, 1858.

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. Ib, January term, 1858.

The acceptance by the probate court of the resignation of an administrator, is sufficiently established by the appointment of his successor. Ib.

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. R., 287.

tor valid until his power is revoked.

§ 101. All acts of an executor or administrator, as such, Acts of execu before the revocation of his letters testamentary or of administration, shall be as valid to all intents and purposes as if such executor or administrator had continued lawfully to execute the duties of his trust.

minutes to be ev

§ 102. A transcript from the minutes of the court, showing the appointment of any person as executor or administrator, together with the certificate of the clerk under his Transcript from hand and the seal of his court, that such person has given idence. 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.

§ 103. No probate judge shall admit to probate, any will, or grant letters testamentary or of administration, in any judge not to act.

case where he shall be interested as next of kin to the deceased, or as a legatee or devisee under the will, or where he shall be named as executor or trustee in the will, or shall be a witness thereto.

When probate

In such case

adjoining county

§ 104. When any probate judge, who would otherwise be authorized to act, shall be precluded from acting from the causes mentioned in the preceding section, or when he shall probate judge of he in any manner interested, upon a representation and due to act. proof thereof to the probate judge of an adjoining county, such judge shall be vested with all the powers and authority of the proper probate judge, in relation to the proof of any will and the granting of letters testamentary or of adminis