NOTE.-Stats. 1851, p. 454, Sec. 58; 1861, p. 631, Sec. 19. Facts to give the Court jurisdiction are the death of the intestate, and his residence at the time must be stated and proved. If they are not in fact as alleged to be, the proceedings are not binding on those not actually before the Court.-Beckett vs. Selover, 7 Cal., p. 233; Haynes vs. Meeks, 10 Cal., p. 116. The Court must hear testimony, if offered, tending to show that decedent was not a resident of the county.-Beckett vs. Selover, supra. Proceedings ought not to be transferred to another county to advance the interest of heirs and others interested in and representing the estate.Estate of Scott, 15 Cal., p. 220. A petition "To the honorable, the Judge of the Probate Court of the County of Santa Clara, State of California, etc. The petition of Moses Shellenberger, of Monterey, etc., that Dr. John Townsend, late a resident of the county aforesaid, died in said county," etc., being objected to that it does not show that decedent was a resident of Santa Clara County at time of his death, the Supreme Court held that the objection was not sustained by the record.Townsend vs. Gordon, 19 Cal., pp. 201-206. "It would be well to state in the petition all the facts upon which petitioner relies to entitle him to letters in preference to others;" but those which are not jurisdictional are not necessarily essential.-Lucas vs. Todd, 28 Cal., p. 186. It would seem that a Public Administrator must petition for letters, as others.-Estate of Hamilton, 34 Cal., p. 468. Executor will not be necessarily appointed on the probate of a will, but on other proofs.-Estate of Wood, 36 Cal., p. 82.

granted.

1372. (§ 59.) Letters of administration may be When granted at a regular term of the Court, or at a special term appointed by the Judge for the hearing of the application.

NOTE.-Stats. 1851, p. 454, Sec. 59.

application

1373. (§ 60.) When a petition praying for letters Notice of of administration is filed, the Clerk must give notice thereof by causing notices to be posted in at least three public places in the county, one of which must be at the place where the Court is held, containing the name of the decedent, the name of the applicant, and the term of the Court at which the application will be

application

heard. Such notice must be given at least ten days before the hearing.

NOTE.-Stats. 1851, p. 454, Sec. 60. See Beckett vs. Selover, cited in note to Sec. 1376, post. Giving the notice is necessary to give jurisdiction; but if it is in fact given, and the proof only is defective, it may be cured by filing additional affidavit, nune pro tunc.

Contesting 1374. (§ 61.) Any person interested may contest the petition, by filing 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. In the latter case the contestant must file a petition and give the notice required for an original petition, and the Court must hear the two petitions together.

Hearing of application

Evidence of notice.

NOTE.-Stats. 1851, p. 455, Sec. 61; 1861, p. 631, Sec. 20. Under a petition for letters, by a nephew, others who are entitled to be preferred may appear (under this section) and contest the application or assert their own rights.-Lucas vs. Todd, 28 Cal., p. 186. Competency, and incompetency.-See Sec. 1350, and note, ante; also, Secs. 1352, 1358, ante.

1375. ($62.) (§ 62.) On the hearing, it being first proved that notice has been given as herein required, the Court must hear the allegations and proofs of the parties, and order the issuing of letters of administration to the party best entitled thereto.

NOTE.-Stats. 1851, p. 455, Sec. 62; see Beckett vs. Selover; Estate of Pacheco, and others cited in notes preceding Secs. 1373, 1376, and notes, post.

1376. (§ 63.) An entry in the minutes of the Court, that the required proof was made and notice given, shall be conclusive evidence of the fact of such notice.

NOTE.-Stats. 1851, p. 455, Sec. 63. That our statute intended, not only that the jurisdictional facts should actually exist, but that proper notice should then be given to bring the parties before the Court, in order to give it jurisdiction, would seem to be clear from its own language, which is exceedingly

simple and precise. The statute prescribes what facts
the petition and notice shall contain, and the manner
of giving notice, and the time; and then, in Sec. 63
(this Sec., 1376), specifies how an entry may be made in
the minutes, so as to be "conclusive evidence of the
fact of such notice."-Beckett vs. Selover, 7 Cal., p. 337.

to any

1377. (§ 64.) Letters of administration must be Grant granted to any applicant, though it appears that there applicant. are other persons having better rights to the administration, when such persons fail to appear and claim the issuing of letters to themselves.

1378.

NOTE.-Stats. 1851, p. 455, Sec. 64. Consult the case of Kirtlan, 16 Cal., p. 164, as to the rights of person to letters. At the time of the respondent's petition no one had applied for administration. The respondent might, therefore, as well apply as any other person. If, after notice, no one contested or claimed the office in priority to him, the Court might appoint him, subject to the right of the person in priority, as given in Sec. 67 (Code Sec. 1383, post). The brother had a right to contest or not, and he seems to have waived the right.

before

granting

letters of
adminis-

tration.

(§ 65.) Before letters of administration are What proofs must granted on the estate of any person who is represented be made to have died intestate, the fact of his dying intestate must be proved by the testimony of the applicant or others; and the Court may also examine any other person concerning the time, place, and manner of his death, the place of his residence at the time, the value and character of his property, and whether or not the decedent left any will, and may compel any person to attend as a witness for that purpose.

NOTE.-Stats. 1851, p. 455, Sec. 65; 1861, p. 631, Sec. 21. See note to Sec. 1376, ante, as to jurisdictional facts; also, Sec. 1373, ante.

may be

to others
than those

1379. (§ 66.) Administration may be granted to Letters one or more competent persons, although not entitled granted to the same, at the written request of the person entitled. entitled, filed in the Court. When the person entitled is a non-resident of the State, affidavits or depositions,

Same.

taken ex parte before any officer authorized by the laws of this State to take acknowledgments and administer oaths out of this State, may be received as primary evidence of the identity of the party, if free from suspicion, and the fact is established to the satisfaction of the Court.

NOTE.-Stats. 1851, p. 455, Sec. 66; 1861, p. 631, Sec. 22. Even other persons (under Sec. 1374, ante), "not entitled," may be "competent," and letters may be granted to such person on "request of the person entitled." The request must be in writing; but it is not stated that it must be contained in the petition.Lucas vs. Todd, 28 Cal., p. 186. It is sufficient if presented in writing when the petition is heard.-Id. The object of this section was to enable those who were entitled to administer, and felt themselves incompetent to discharge the duties, to name some one more competent.-Est. of Kirtlan, 16 Cal., p. 161. This does not restrict the powers of appointment contained in Sec. 1365, ante.-Id., Est. of Carr, 25 Cal., p. 585; Lucas vs. Todd, 28 Cal., p. 184.

Revocation of letters of administration.

ARTICLE V.

REVOCATION OF LETTERS AND PROCEEDINGS THEREFOR.

SECTION 1383. Revocation of letters of administration.
1384. When petition filed, citation to issue.

1385. Hearing of petition for revocation.

1386. Prior rights of relatives entitles them to revoke prior letters.

1383. (§ 67.) When letters of administration have been granted to any person other than the surviving husband or wife, child, father, mother, brother, or sister of the intestate, any one of them may obtain the revocation of the letters and be entitled to the administration, by presenting to the Probate Court a petition praying the revocation, and that letters of administration may be issued to him.

NOTE.-Stats. 1851, p. 455, Sec. 67; 1870, p. 400, Sec. 1; Estate of Pacheco, 23 Cal., p. 478, and the cases there cited; also, Estate of Carr, 25 Cal., p. 585, where it is

held that the right to have the letters revoked and others
issued is a personal right, and cannot be transferred;
that is to say, letters will not in such case be issued to a
stranger designated by one of those herein named as
entitled to administration. The "sister" was added
since the decision in the case of Carr, supra. See note
to Sec. 1850, ante. "The only parties who are author-
ized to obtain the revocation, under this section, are the
wife, child, father, mother, or brother of the intestate;
and such persons are only authorized to have the letters
revoked by presenting a petition 'praying the revoca-
tion, and that letters of administration may be issued
to him or her,' and not to parties not entitled to ad-
minister, otherwise than by the request of such par-
ties praying the revocation."-Estate of Carr, 25 Cal.,
p. 586. In this case Mrs. Bolton was the sister of
decedent, Mark Bolton the brother, and the Public
Administrator had the estate. At that time the origi-
nal section did not contain the word "sister," which
appears in the text. Mark Bolton had been adjudged
incompetent, and though letters were awarded to Bol-
ton he failed to give bond, and consented to the Public
Administrator receiving the estate; all these parties
then requested the revocation of the Public Adminis-
trator's authority, and the granting of letters to Ben-
nett and Addison, whom they named therefor. The
Court below denied their prayer, and the Supreme
Court, in the above opinion, sustained the order of the
Court below. See, also, Estate of Pacheco, 23 Cal.,
p. 479.

1384. (§ 68.) When such petition is filed, the Clerk must issue a citation to the administrator to appear and answer the same on some day of a regular term of the Court, or a special term appointed by the Court or Judge for the hearing thereof.

NOTE.-Stats. 1851, p. 455, Sec. 68; 1861, p. 633,
Sec. 23.

1385. (§ 69.) At the time appointed, the citation having been duly served and returned, the Court must proceed to hear the allegations and proofs of the parties; and if the right of the applicant is established, and he is competent, letters of administration must be

22-VOL. II.

When

petition

filed,

citation

to issue.

Hearing of revocation.

petition for