To be certified. recorded, and letters thereon granted. Court to restrain injurious acts of executors or administrators during proceedings to prove lost will. the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. NOTE.-See Subd. 1, Sec. 1855, and note, post. The will alleged to be lost must be shown to have had an existence at the death of the testator. If it is traced to his possession, and cannot be found after his decease, after diligent search and inquiry, it is presumed to be destroyed by him, with the intention of revocation.Buckley vs. Redmond, 2 Brad., p. 282; see, also, Holland vs. Ferris, id., p. 334; see Civil Code, "Wills." 1340. (§ 39.) When a lost will is established, the provisions thereof must be distinctly stated and certified by the Probate Judge, under his hand and the seal of his Court, and the certificate, together with the testimony upon which it is founded, must be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration with the will annexed, must be issued thereon, in the same manner as upon wills produced and duly proved. NOTE.-Stats. 1851, p. 452, Sec. 39. 1341. (§ 40.) If, before or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator, or letters testamentary of any previous will of the testator are granted, the Court may restrain the administrators or executors, so appointed, from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will. NOTE.-Stats. 1851, p. 452, Sec. 40. ARTICLE VI. THE PROBATE OF NUNCUPATIVE WILLS. SECTION 1344. Nuncupative wills, when and how admitted to probate. 1345. Additional requirements in probate of nuncupative wills. 1346. Contests and appointments to conform to provisions as to other wills. 4 tive wills, when and how admitted 1344. (§ 8.) Nuncupative wills may at any time, Nuncupawithin six months after the testamentary words are spoken by the decedent, be admitted to probate, on to probate. petition and notice as provided in Article I, Chapter II of this Title. The petition, in addition to the jurisdictional facts, must allege that the testamentary words or the substance thereof were reduced to writing within thirty days after they were spoken, which writing must accompany the petition. NOTE.-Stats. 1850, p. 178, Sec. 8. cupative will, see Civil Code, Vol. I, What is a nun- and note; requisites of such will, see Civil Code, Sec. require tive wills. 1345. (§ 9.) The Probate Court must not receive Additional or entertain a petition for the probate of a nuncupa- ments in tive will, until the lapse of fourteen days from the nuncupa death of the testator, nor must such petition at any time be acted on unless the testamentary words are, or their substance is, reduced to writing and filed with the petition, nor until the surviving husband, or wife (if any), and all other persons resident in the State or county, interested in the estate, are notified as hereinbefore provided. NOTE.-Stats. 1850, p. 178, Sec. 9; see Civil Code, 1346. Contests of the probate of nuncupative wills and appointments of executors and administrators of the estate devised thereby must be had, conducted, and made as herein before provided in cases of the probate of written wills. NOTE.-OLOGRAPHIC WILL.-No special provisions relating to olographic wills are made other than provided in Secs. 1309, ante; 1929-1950, post, and Sec. 1277, Civil Code. Contests pointments and ap to conform to provis as to other wills. OF EXECUTORS CHAPTER III. AND ADMINISTRATORS, THEIR LETTERS, BONDS, REMOVALS, AND SUSPENSIONS. ARTICLE I. LETTERS TESTAMENTARY AND OF ADMINISTRATION, V. REVOCATION OF LETTERS AND PROCEEDINGS THEREFOR. VI. OATHS AND BONDS OF EXECUTORS AND ADMINISTRATORS. VII. SPECIAL ADMINISTRATORS AND THEIR POWERS AND DUTIES. VIII. WILLS FOUND AFTER LETTERS OF ADMINISTRATION GRANTED. IX. DISQUALIFICATION OF JUDGES AND TRANSFERS Of ad MINISTRATION. X. REMOVALS AND SUSPENSIONS IN CERTAIN CASES. To whom letters on to issue. ARTICLE I. LETTERS TESTAMENTARY AND OF ADMINISTRATION, WITH THE WILL SECTION 1349. To whom letters on proved will to issue. 1350. Who are incompetent as executors or administrators. Letters with will annexed to issue, when. 1351. Interested parties may file objections. 1352. Unmarried woman, executrix or administratrix, marrying, her authority ceases. Married woman named may be executrix, but not administratrix. 1353. Executor of an executor. 1354. Letters of administration durante minore ætate. 1355. Acts of a portion of executors valid. 1356. Authority of administrators with will annexed. Let ters, how issued. 1349. (§ 41.) The Court admitting a will to pro proved will bate, after the same is proved and allowed, must issue letters thereon to the persons named therein as executors, who are competent to discharge the trust, who must appear and qualify, unless objection is made, as provided in Section 1351. NOTE.-Stats. 1851, p. 452, Sec. 41. Beckett vs. Selover et al., 7 Cal., p. 215. “Notice of application for the probate of the will is required by Sec. 1303 (? 13), ante, but no notice is required specifically of application for letters. They issue as a consequence of the probate of the will" to the executor named therein.-Will of Warfield, 22 Cal., p. 66. "We are not aware of any provision of law which limits the period within which letters of administration on the estates of deceased persons may be granted."-Crockett, J., in the case of Healy vs. Buchanan, 34 Cal., p. 571. Who are competent, see Sec. 1365; who not, Secs. 1369, 1370, post, and notes. Though not named as such, if it appears from the terms of the will that the testator intended to commit the execution of his will to a certain person, such person is entitled to be appointed executor.-See Sec. 1371, Civil Code, p. 386, Vol. I. No person has any power as executor until he qualifies, except to pay funeral expenses and take steps to preserve the estate. Id., Sec. 1373. Where the judgment of the Probate Court, refusing the probate of a will, was rendered on a petition, as well for letters as for probate, is reversed by the Supreme Court, that Court will not direct letters to be issued on the prayer of the petition when it appears that the question as to who should be appointed administrator with the will annexed, had not been reached in the Court below.-In Re Est. of Wood, 36 Cal., p. 82. 1350. (§§ 42, 55.) No person is competent to serve as executor who, at the time the will is admitted to probate, is: 1. Under the age of majority; 2. Convicted of an infamous crime; 3. Adjudged by the Court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. If the sole executor or all the executors are incompetent, or renounce or fail to apply for letters, or to appear and qualify, letters of administration with the will annexed must be issued. 20-VOL. II. NOTE.-Stats. 1851, pp. 453, 454, Secs. 42, 45; 1861, p. 631, Secs. 13, 18. If a brother is the surviving partner, he may not be appointed.-Cornell vs. Gallaher, 16 Cal., p. 367; see Sec. 1365, post. One entitled to administer may not be adjudged incompetent under the third subdivision. In Coope vs. Lowrre, 1 Barb. Ch., p. 45, under a similar provision it was held that the Surrogate in New York had no discretion to exclude one entitled to administer by preference under the statute, it being held that no degree of legal or moral guilt or delinquency was sufficient to exclude a person from the administration as next of kin in the cases preferred by the statute, unless such person had been actually convicted of an infamous crime.-Subd. 2. In this case administration was granted to one proved to be dishonest and adjudged guilty of crim. con., and a large judgment recovered against him. This principle was affirmed in the case of Harrison vs. McMahon, 1 Brad., p. 283, where one charged with gambling, and having no regular business other than gambling, was granted letters. On this same principle in the matter of the Estate of Pacheco, 23 Cal., p. 480, letters were granted to one of great age-who could neither read nor write-nor well understand the English language, the Court holding that though it might be difficult yet the discharge of the duty was not impossible, nor was the statutory want of understanding thereby sufficiently shown.-Est. of Pacheco, 23 Cal., p. 480; see sequel to this case, Est. Pacheco, 29 Cal., p. 226. Letters properly issued, after notice, will not be revoked and others issued on request of one entitled thereto in his own right, to a person whom he may designate.-Est. of Carr, 25 Cal., p. 586. The statute, by Secs. 42, 48, 97, and 178 (Code Secs. 1350, 1356, 1426, and 1561), in express terms provides for the execution of the will of the testator in case of the death, failure to act, or other disability of the executor named in the will.-Kidwell vs. Brummagim, 32 Cal., p. 441. Letters testamentary or of administration will not issue of course on the admission of a will to probate; this is only done in the case where an executor is named; the admission to probate is based on certain proofs, the letters are issued on others entirely different, though additional. This view is sustained by Est. of Wood, 36 Cal., p. 82. 1351. (§ 43.) Any person interested in a will may file objections in writing, to granting letters tes |