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render, for the information of the court, an exhibit under oath, showing the amount received and expended by him, the claims presented against the estate, and the condition of the estate.
When the ten months after the first publication of notice to creditors have expired, the estate may be closed if it be in a condition for that purpose. But the executor or administrator is allowed one year, at which time he should make a report and render his account, and if the estate is not then in a condition to be closed he should ask the court for an extension of time. He should render an annual account as long as the' administration is pending, and after the lapse of one year may be required to render an account at any time.
Whenever an account is rendered, it should be passed upon by the court after notice duly given, so that all persons interested in the estate may come in and make their opposition. When the account is settled the court makes an order for the payment of the debts, as the circumstances of the case may require. If there be not money enough to pay all the debts, a payment pro rata is ordered.
The executor or administrator is not obliged to pay any debts until the year has expired and the order of the court is made for that purpose, except the funeral expenses, the expenses of the last sickness, and the allowance to the family of the deceased, which latter he must pay as soon as he has funds of the estate iu hand sufficient for that purpose.
It is a common practice, however, to pay debts that have been duly allowed and approved before that time, if he is confident that they will not be finally disallowed, and that there will be money enough to pay in full all the debts and claims against the estate, and to have the final order of the court for the payment of debts so paid and those to be paid. Such payments, however, are made upon the judgment and at the personal risk of the administrator or executor. Sometimes he takes security to indemnify himself against any loss, and the Supreme Court has held that a bond given for such a purpose will be good.1
When the account is rendered and settled, and a payment of debts ordered, if the amount of debts equals or exceeds the
1 Cornstock v. Breed, et aL, January Term, 1859.
amount of estate on hand, there being no further estate to administer upon, the executor or administrator, after making such payments, si lould report the same to the court and be at once finally discharged.
If, however, there be a surplus, he should apply for an order of distribution of the estate to the heirs or devisees, and for this purpose, publication being made for four weeks, the heirs or devisees, and parties interested, should appear at the time appointed, that the court may ascertain to whom and in what proportions the balance of the estate belongs.
Upon the hearing of this matter, it may be necessary to make division of real estate; and unless the parties can agree among themselves as to a division, the court will appoint commissioners to ascertain the character and value of the land, and to make a partition of the same, and report to the court.
After the division and distribution is settled upon, and the heirs and persons entitled are ascertained, the court makes its decree of distribution.
The executor or administrator should then deliver up to the person or persons entitled, respectively, all the property in his hands less his own commissions, and take receipts and acquittances therefor.
The commissions are seven per cent, upon the first thousand dollars' worth of property administered upon, five per cent, upon the next ten thousand, and four per cent, upon the balance.
The amount of commissions should be ascertained and settled by the Probate Court'in the final account of receipt* and disbursements of the executor or administrator. In the case of public administrators the commissions are four per cent. upon the whole estate.
After delivering up and paying over the balance of the estate, the executor or administrator should report the same to the court. and file the receipts and acquittances; and is then entitled to an order of final discharge.
The foregoing is an outline of the office and duties of an executor or administrator under the California probate system, which must be necessarily very brief for the purposes of a work of this character.
For a full and complete collection of all the statutes and decisions of the Supreme Court upon this subject, and also upon the subject of guardians and the estate of minors, with forms and directions of proceeding, the reader is referred to "The California Probate Practice," published in San Francisco by the author of the present work, from which a few forms are taken to conclude this chapter.
Petition for Probate of Will in the County^ of which Deceased was a Resident at the time of his Death.
To the Honorable the Probate Court [or, the Probate Judge] of the City and County of San Francisco, State of California: Your petitioner, John Clay, of San Francisco, herewith presents to this court the last will and testament of Henry Clark, deceased, and showeth as follows:
That said Henry Clark died, in the county of Los Angeles in this state, on or about the fifth day of January, 1858, being at that time a resident of the city and county of San Francisco, and leaving real and personal estate of the value of ten thousand dollars.
That Mary W., the wife, and Alexander C, the father of the deceased, residents of this county, are the only heirs at law.
That John Black and Susan Black, minors, residing in the county of Sacramento, and the said wife and father of said deceased and your petitioner are the devisees under said will.
That your petitioner and Richard Ross are named therein as executors, ana the said Richard Ros*, intending to decline said trust, presents and files herewith his renunciation thereof.
"Wherefore your petitioner prays that said will may be admitted to probate, and letters testamentary issued to hint, and that this honorable court would for that purpose appoint a day, and order notice of the same to be given by publication, and that citations may issue to the heirs residing in this county and all other necessary and proper orders may be made in the premises.
And your petitioner will ever pray, &c.
April 12th, 1858. John Gray.
Petition for the Probate of a Will in the County in which Deceased may have died, leaving Estate therein and not being a Resident of this State.
To the Honorable the Probate Court [or, the Probate Judge] of the County of Sacramento, State of California: The petition of Albert Bull, of the city of Sacramento, respectfully showeth—
That John Porter died in this county on the first day of Feb
ruary last, leaving personal estate therein to the value of twelve thousand dollars, or thereabouts. That said deceased was at the time of his death a resident of the state of Kentucky, at which place all the heirs of deceased reside, as your petitioner is informed and believes.
That said deceased left a will wherein your petitioner and Peter Thomas and James Rose are named as executors, winch is herewith presented and filed in this court as the last will and testament of said John Porter, deceased.
And your petitioner prays that the same may be admitted to probate, and that letters testamentary thereon may be issued after proper hearing and proof, and for that purpose, that a day may be appointed, and due notice be given by publication, and that citations issue to said executors [insert names of those executors residing in the county], and, that all other orders be made, and proceedings be had, m the premises, according to law.
Dated, Sacramento, February 5th, 1858. Albert Bull.
Petition for Probate of Will in tlte County in which any Instate may be, Deceased having died ant of the State, and not being a Resident thereof at the time of his Death.
To the Probate Court [or, the Probate Judge] of El Dorado County, State of California:
The petition of Abel Williams respectfully shows to this court—
That your petitioner has received information of the death of Andrew Reed, a resident of the territory of Oregon, who died at his residence in the said territory on the tenth day of Julv, 1857.
That said deceased left a will in which, as your petitioner has learned within the last thirty days, he is named as one of the executors, and which is herewith presented and filed in court.
That said deceased left estate in this county and in other counties of this state, but no application for letters testamentary upon said will has been made in any other county.
Wherefore your petitioner would humbly pray that said will may be admitted to probate, and that letters testamentary thereon may be issued to him, and for such purpose that a time be appointed and all persons interested be notified and cited as required by law, and that all other necessary orders in the premises be made by this honorable court. Abel Williams.
State of California, City and )
The last will of Henry Clark, deceased, a copy of which is hereto annexed, having been proved and recorded m the Probate Court of the city and county of San Francisco, John Clay, who is named therein, is hereby appointed executor.
Witness: William Duer, clerk of the Probate Court, of [l. s.] the City and County of San Francisco, with the seal of
the court affixed, the 26th day of April, A. D. 1858. By order of the Court. William Duer, Clerk.
State of California, City and )
I do splemnly swear that I will support the Constitution of the United States and the Constitution of the State of California; that I will faithfully discharge the duties of executor of the estate of Henry Clark, deceased, according to law.
Subscribed and sworn [or, affirmed, as the case may be] before me, this 26th day of April, 1858. John Clay.
D. P. Belknap, Deputy Clerk of the Probate Court.
Petition for Letters of Administration.
To the Honorable, the Judge of the Probate Court of the City and County of San Francisco:
The petition of Sarah Mark, widow of said deceased, respectfully showeth, that Harris Mark died in the county of Alameda, state of California, on or about the 3d day of January, A. D. 1858. That said deceased, at, or immediately previous to the time of his death, was a resident of the city ana county of San Francisco, state of California, and that he has left estate in this city and county, and within the jurisdiction of this court. [ Vary this paragraph according to the circumstances under the provisions of section 2.]
That due search and inquiry have been made to ascertain if said deceased left any will and testament, but none has been found, and according to the best knowledge and belief of your petitioner, said deceased died intestate.
Your petitioner further shows that the estate of said deceased, so far as she has been able to ascertain the same, is of about the value of twenty thousand dollars, and consists of as follows: real estate in the city and county of San Francisco, of the value of $15,000, or thereabouts; personal estate, stock in trade in the painting business, about $3,000; notes, debts, &c, about $2,000; that the only heirs at law of said deceased, so far as known to