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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 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. is
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 in 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 enongh 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.' *** When the account is rendered and settled, and a payment of debts ordered, if the amount of debts equals or exceeds the amount of estate on hand, there being no further estate to administer upon, the executor or administrator, after making such payments, should report the same to the court and be at once finally discharged.
1 Comstock v. Brecd, et al., January Term, 1859.
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 coinmissioners 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 receipts 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 de