Sidebilder
PDF
ePub

Appointment of Appraisers of Estray Animals.
In the matter of the estray horse) Alameda County,

township, posted by John Bart.

G. H., Justice. John Bart having this 15th day of June, 1859, appeared before me and made affidavit as to a certain bay horse found upon his premises in this township, June 5th, 1859, and that he has put up written notices of the same, according to law, which affidavit has been duly filed with me, I do hereby appoint A. B. and C. D., appraisers, they being resident householders of this county, to appraise and describe said animal.

G. H., Justice.

Appraisement of Estray Animal. In the matter of the estray horse

posted by John Bart. We, the undersigned, the appraisers in this matter, duly appointed by G. H., justice of the peace of this county, do certify that on the 16th day of June, 1859, we proceeded to view the said horse, and we find, according to our best knowledge and

judgment, that the said horse, being a bay horse, fifteen hands high, with four white feet, white nose, full mane and tail, and branded with the letter K on the left hip, is about ten years of age, and of the value of seventy-five dollars or thereabouts. June 18th, 1859.

A. B.

C. D. County of Alameda, ss :

A. B. and C. D., the appraisers named in the above certificate, being duly sworn, each for himself says, that the matters therein set forth are true. Sworn before me, June 17th, 1859,

A. B.. : G. H., Justice. I

C. D.

· Order of Restitution of Estray. County of Alameda,

Township. 88: : : Justices' Court. John Bart having taken up a bay horse found on his premises, and having duly posted the same, and filed his affidavit thereof with me on the 15th day of June, 1859, and M. N. now appearing before me on this 25th day of May, 1860, claiming to be the owner of said horse, and having made satisfactory proof of such ownership, I do hereby order that the said horse be delivered up to said M. N., on paying the costs of the proceeding before me, taxed at.

dollars, and the sum of

[ocr errors]

dollars awarded by me to said John Bart, as his expenses for keeping said horse [or, without any payment to said John Bart, that he has worked, ridden and used said estray horse sufficiently to compensate for all expenses of keeping). G. H., Justice.

Notice of Sale.

(UNDER SECTION 7 OF ESTRAY AOT AS AMENDED.)

ESTRAY SALE.

By virtue of an order of sale to me directed by G. H., justice of the peace of

township, county of Alameda, notice is hereby given, that I will offer for sale at public auction, on the 25th day of June, 1860, at twelve o'clock M., in front of the office of said justice in said county, one bay horse, branded K on the left hip, the same being an estray taken up on the 5th day of June, 1859, by John Bart, and duly posted, to pay the sum awarded to said John Bart by said justice, for the expense of keeping said horse and the costs. May 25th, 1859.

P. Q., constable of said township. [Or, where the appraised value is over hundred dollars).

R. S., sheriff of said county.

Notice to Show Cause.
County of Alameda.
The People, &c., ex rel. X. Y., district
attorney of said county,

Justice's Court,
against

township. John Bart. The People of the State of California to John Bart, defendant: · Take notice, that you are required to appear before G. H., justice of the peace, at his office in the county of Alameda, on the

day of June, 1860, to show cause, if any you can, why judgment should not be taken against you for the sum of

dollars, the one-half of the appraised value of a certain bay horse taken up by you on the 5th day of June, 1859, with costs, For, under the act of 1859, the sum of dollars, the appraised value of, &c., &c.] June 1860.

SWIFT Brown, District Attorney.

CHAPTER X VIII.

EXECUTORS AND ADMINISTRATORS.

OUTLINE OF CALIFORNIA PROBATE SYSTEM. THE duties and liabilities of executors and administrators being so nearly alike, are considered together in this chapter; and in connection herewith the reader is referred to the chapter on Wills.

The objects of administering upon the estate of a deceased person are, principally, to collect what may be owing to him, to pay what he may legally owe, and in some cases to establish record evidence of the title to real estate in the heirs or devisees.

Where these objects can be safely and legally accomplished without the formula of proceedings in the Probate Court, and the will of the deceased does not render it necessary, administration may be dispensed with.

The right of administration upon an estate is obtained from the Probate Court of the county in which the deceased resided, by filing a petition stating the facts, which must be sufficient to give the court jurisdiction; and after due notice has been given, upon the day appointed, a hearing is had before the court, and if the applicant is so entitled, the court makes an order granting him the administration; and upon filing a bond approved by the judge, in a penalty double the amount of the personal property of the deceased, he receives his letters of administration and is qualified to act.

The same general mode of procedure is necessary for an executor, except that, in addition to the petition, he files also the will of the deceased, which must be duly proved and admitted to probate; and where the will in terms dispenses with the bond, the executor is entitled to letters testamentary without giving any security,

When the executor or administrator las qualified, he becomes liable for the safe keeping, protection and proper management of the estate, and for the collection of whatever property is due to the deceased.

The whole real and personal estate is vested in the heir, but the executor or administrator is entitled to the possession until the estate is settled or delivered over by the order of the court to the heirs or devisees.

He is required immediately to advertise in some newspaper of the county, for as long a time as the court shall direct, at least once a week for four weeks, a notice to all creditors of the de. ceased, to present their claims to him, either at his residence or place of business, within ten months from such publication. If such claims be not presented within ten months from the first publication of the notice, or within ten months from the day they fall due, they are forever barred, and the executor or administrator has no right to pay them.

The claim, when presented, must be accompanied by the written affidavit of the claimant, and by vouchers, where such exist, to establish and prove the claim. It is held by the Supreme Court that this course must be pursued even when the claim is secured by a mortgage upon real estate.

If the claim be a just one, the administrator or executor should endorse his approval upon it, and the claimant should then, without delay, present it to the probate judge for his approval, which being obtained, the claim should be filed in the Probate Court, to be paid in due course of administration; subject, however, to the right of the heirs to question the same, whenever thereafter the court is asked to order a sale of real estate, to pay the debts of the deceased.

If the claim be rejected by the executor or administrator, or by the judge, a suit must be brought upon it against the executor or administrator, within three months after such rejection, or within three months after the same becomes due, or it will be forever barred.

It is not lawful to allow any claim that is barred by the statute of limitations or in popular language-outlawed.

If the executor or administrator doubts the correctness of a claim, he may have it determined by a referee selected under the approval of the probate judge.

At every term of the court during the pendency of the administration, the executor or administrator is required to file in court a statement of the claims presented, with the names of the creditors, the amount, when due, and whether approved or rejected by him.

The next step in the administration, is to file a sworn inventory of all the property of the estate which has come to the knowledge and possession of the executor or administrator, and to have the same appraised by appraisers to be appointed for that purpose by the court; and if this be neglected, it is the duty of the court to revoke the letters of the executor or administrator.

When the appraisers return the inventory with the appraisement, the same is filed in the court; and if there be a family, application should be made to the court for an order setting aside for the family the homestead and all property exempt from execution; and making an allowance out of the estate for the support of the family. An allowance for the family support may also be made at the time of granting letters, to serve until the inventory comes in.

As soon as the probable amount of legal indebtedness of the deceased can be ascertained, if the amount of money of the estate will not prove sufficient to pay the same, and also the allowance to the family and the expenses of administration, the executor or administrator must proceed to sell enough of the property of the estate to raise a fund for that purpose.

This sale can only be made upon the order of the court to be obtained after petition, and notice of the application duly published; or, upon the hearing of this application, all persons interested may come in and make opposition; and the heirs may question any claims against the deceased, which have been duly presented and allowed, and ranked as established debts against the estate, except where the will especially directs the executor to sell; but in all cases a report of sale must be made to the Probate Court for its confirmation, before it becomes complete and binding. No real estate can be sold to pay debts until the personal estate is first disposed of.

At the third term of the court after his appointment, and thereafter whenever required, the executor or administrator must

« ForrigeFortsett »