Same. When letters testamentary or of adminis tration are granted, special administrator's powers cease. Special adminis trator to render account. agement of, enter upon and preserve from damage, waste, and injury, the real estate, and for any such and all necessary purposes may commence and maintain, or defend, suits and other legal proceedings, as an administrator; he may sell such perishable property as the Probate Court may order to be sold, and exercise such other powers as are conferred upon him by his appointment, but in no case is he liable to an action by any creditor on a claim against the decedent. NOTE.-Stats. 1851, p. 458, Sec. 92; 1861, p. 634, Sec. 28. Rents and profits.-See Abel vs. Love, 17 Cal., p. 238. 1416. (§ 93.) When letters testamentary or of administration on the estate of the decedent have been granted, the powers of the special administrator cease, and he must forthwith deliver to the executor or administrator all the property and effects of the decedent in his hands; and the executor or administrator may prosecute to final judgment any suit commenced by the special administrator. NOTE.-Stats. 1851, p. 458, Sec. 93. 1417. ($ 94.) The special administrator must render an account, on oath, of his proceedings, in like manner as other administrators are required to do. NOTE.-Stats. 1851, p. 458, Sec. 94. Sec. 95 is embodied in Sec. 1411, ante. ARTICLE VIII. WILLS FOUND AFTER LETTERS OF ADMINISTRATION GRANTED, AND SECTION 1423. On proof of will, after grant of letters of administration, letters revoked. 1424. Power of executor in such a case. 1425. Remaining administrator or executor to continue when his colleagues are disqualified. 1426. Who to act when all acting are incompetent. SECTION 1427. Executor or administrator may resign, when. Court to appoint successor. Liability of outgoer. 1428. All acts of executor, etc., valid until his power is re voked. 1429. Transcript of Court minutes to be evidence. On proof of grant of will, after letters of adminis letters 1423. (§ 98.) If, after granting letters of administration on the ground of intestacy, a will of the decedent is duly proved and allowed by the Court, the letters of tration, administration must be revoked, and the power of the revoked. administrator ceases, and he must render an account of his administration within such time as the Court shall direct. NOTE.-Stats. 1851, p. 459, Sec. 98; Haynes vs. Meeks, 20 Cal., p. 316. The accounting must be made to the satisfaction of the Court, and the estate turned over to the newly appointed administrator or executor. It would be error to direct it to be paid into Court.Wilson vs. Hernandez, 5 Cal., p. 443. See powers of Probate Judge at chambers, Sec. 167, ante, and note. 1424. (§ 99.) In such case, the executor or the administrator with the will annexed is entitled to demand, sue for, recover, and collect all the rights, goods, chattels, debts, and effects of the decedent remaining unadministered, and may prosecute to final judgment any suit commenced by the administrator before the revocation of his letters of administration. The incoming NOTE.-Stats. 1851, p. 459, Sec. 99. administrator entitled to recover the estate from the one Power of such a case. executor in adminis executor to continue when his colleagues are dis qualified. 1425. (§ 96.) In case any one of several execu- Remaining tors or administrators, to whom letters are granted, trator or dies, becomes lunatic, is convicted of an infamous crime, or otherwise becomes incapable of executing the trust; or in case the letters testamentary or of administration are revoked or annulled, with respect to any one executor or administrator, the remaining executor or administrator must proceed to complete the execution of the will or administration. NOTE.-Stats. 1851, p. 459, Sec. 96. Who to act when all acting are incompetent. Executor resign, when. Court to appoint successor. 1426. (§ 97.) If all such executors or adminis trators die or become incapable, or the power and authority of all of them is revoked, the Probate Court must issue letters of administration with the will annexed, or otherwise, to the widow, or next of kin, or others, in the same order and manner as is directed in relation to original letters of administration. The administrators so appointed must give bond in the like penalty, with like sureties and conditions, as hereinbefore required of administrators, and shall have the like power and authority. NOTE.-Stats. 1851, p. 459, Sec. 97. 1427. (§ 100.) Any executor or administrator trator may may, at any time, by writing, filed in the Probate Court, resign his appointment, having first settled his accounts and delivered up all the estate to the person whom the Court shall appoint to receive the same. If, however, 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 therein require it, the Court may, at any time before settlement of accounts and delivering up of the estate is completed, revoke the letters of such executor or administrator, and appoint in his stead an administrator, either special or general, in the same manner as is directed in relation to original letters of administration. The liability of the outgoing Liability of executor or administrator, or of the sureties on his bond, shall not be in any manner discharged, released, or affected, by such appointment or resignation. outgoer. NOTE.-Stats. 1858, p. 105, Sec. 1. "The fair inference to be drawn from the statute, following the ordinary rules of construction, is that the permission given in the one case is a negative upon the right in all others." This is the only case wherein the Probate Court can accept the resignation of the administrator, and it is not unreasonable to suppose that the Legislature intended to cast upon those who voluntarily took upon themselves the administration of an estate the 1428. (§ 101.) All acts of an executor or administrator, as such, before the revocation of his letters testamentary or of administration, are as valid, to all intents and purposes, as if such executor or administrator had continued lawfully to execute the duties of his trust. NOTE.-Stats. 1851, p. 459, Sec. 101. 1429. (§ 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 hand and the seal of his Court, that such person has given 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. ARTICLE IX. DISQUALIFICATION OF JUDGES AND TRANSFERS OF ADMINISTRATORS. SECTION 1430. When Judge not to act. 1431. Judge being disqualified, proceedings to be transferred, and where. 1432. Transfer not to change right to administer. Retrans fer, how made. 1433. When proceedings to be returned to original Court.. Judge 1430. (§ 103.) No Probate Court shall admit to When probate any will, or grant letters testamentary or of not to act. administration, in any case where the Judge thereof Same. Judge being disqualified, proceedings ferred, and where. is interested as next of kin to the decedent, or as a legatee or devisee under the will, or when he is named as executor or trustee in the will, or is a witness thereto, or is in any other manner interested or disqualified from acting. causes. NOTE.-Stats. 1851, p. 459, Sec. 103; 1863-4, p. 369, Sec. 9. When transferable, see Sec. 398, ante, for the When a Judge is disqualified, see Sec. 170; McCauley vs. Weller, 12 Cal., p. 523. Relationship.People vs. De la Guerra, 24 Cal., p. 77. The Probate Judge was authorized, by power of attorney from persons claiming to be heirs, to receive their portion of the estate, and by letter, offering him a percentage upon their portion on settlement and distribution. Held: that he was interested and disqualified.-Estate of White, 37 Cal., p. 192. The case of Oakley vs. Aspinwall, 3 N. Y., p. 547, is cited as sufficient authority. The Judge can only change the venue, or arrange the calendar; he cannot decide at all. 1431. (§ 104.) When a petition is filed in the Probate Court, praying for admission to probate of a to be trans will, or for granting letters testamentary or of administration, or when proceedings are pending in the Probate Court for the settlement of an estate, and the presiding Judge of the Court is disqualified to act from any cause, upon his own or the motion of any person interested in the estate, he must make an order transferring the proceeding to the Probate Court of an adjoining county; and the Clerk of the Court ordering the transfer must transmit, to the Clerk of the Court to which the proceeding is ordered to be transferred, a certified copy of the order, and all the papers on file in his office in the proceeding; and thereafter the Probate Court to which the proceeding is transferred shall exercise the same authority and ' jurisdiction over the estate, and all matters relating to the administration thereof, as if it had original jurisdiction of the estate. NOTE.-Stats. 1851, p. 460, Sec. 104; 1865-6, p. 328, Sec. 1. See note to preceding section. Proceedings |