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Appointment of Executors and Adminis Trators and the Letters Testamentary or of Administration

bond, person, app, administrators, evidence and law

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APPOINTMENT OF EXECUTORS AND ADMINIS TRATORS AND THE LETTERS TESTAMENTARY OR OF ADMINISTRATION. The' appointment of ex ecutors and administrators is made upon ap plication to the proper officer having juris diction, in some states by a petition followed by a citation to the interested parties, to be served upon them or published according to law. Any one of such interested parties may appear and show cause against the appoint ment. In other states the appointment is made without notice, upon proof to the pro bate officer of the jurisdictional facts. The evidence of appointment which is delivered to the appointee is termed, in the case of ad ministrators, Letters of Administration, and in the case of executors, Letters Testamen tary. In either case the letters certify that there is given to the executor or adminis trator, as the case may be, full power of administration of the goods, chattels, rights, and credits which were of the deceased, and the person appointed is required to make an inventory and file the same, to pay the debts of the deceased so far as the property will extend, in the legal order of payment, and render a true and just account of his trans actions in the administration of -the trust. In respect to all matters relating thereto, there is little or no difference in the law re lating to letters of administration or letters testamentary. The grant of such letters is a judicial act and recorded as such, and the letters themselves should be duly authenti cated under the seal of the court; Schou'. Ex. & Ad. § 118. For the form of letters, see Smith, Prob. Pract. App.; Witzel v Pierce, 22 Ga. 112.

In most of the states it is provided by law that both executors and administrators shall be required to give bond before receiving their letters from the probate authority. Such requirements have been held to impose on the executors and administrators no new duties, but their effect is merely to give addi tional remedy to creditors, legatees, and distributees; Eaton v. Benefield, 2 Blackf.

(Ind.) 52. In some jurisdictions it is quite usual to find a provision in the will dispens ing with the giving of the bond by the execu tors and such indication of the will of the testator is respected. It has been held, how ever, that a provision of a will that the executor may act without executing a bond is at all times subject to the control of the courts ; Busch v. Rapp, 63 S. W. 479, 23 Ky. L. Rep. 605. One who is not interested in the assets of the estate can raise no ques tion as to the sufficiency or legality of the bond which has been accepted ; Jones v. Smith, 120 Ga. 642, 48 S. E. 134. The fail ure of an administrator to give a bond is ground for removal; Toledo, St. L. & K. C.

R. Co. v. Reeves, 8 Ind. App. 667, 35 N. E. 199; but the fact that an executor's bond is invalid, is no ground for his removal ; Barricklow v. Stewart, 31 Ind. App. 446, 68 N. E. 316.

Executors and administrators are charged with a trust, and liable for the want of due care such as prudent men exercise in manag ing their own affairs ; State v. Dickson, 213 Mo. 66, 111 S. W. 817 ; In re Chadbourne, 15 Cal. App. 363, 114 Pac. 1012.

The grant of letters has been held to be prima facie evidence of all the essential ju risdictional facts; Davis v. Swearingen, 56 Ala. 31; but it is generally considered that the probate court, in granting letters of ad ministration does not adjudicate that the person is dead, but that letters shall be granted to the applicant ; Carroll v. Carroll, 60 N. Y. 121, 19 Am. Rep. 144 ; Newman v. Jenkins, 10 Pick. (Mass.) 515; and the let ters are not legal evidence of the death; Mutual Ben. Life Ins. Co. v. Tisdale, 91 U.

S. 238, 23 L. Ed. 314. Letters of administra tion upon the estate of a person who is in fact alive have no validity or effect as against him; Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896.

As to the grant of letters of administration upon the estate of a person presumed to be dead, see supra.

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