Слике страница
PDF
ePub

notice shall be given to all persons interested in the partition, their guardians or agents, by the commissioners, of the time when they shall proceed to make partition.

may set aside

SEC. 271. The commissioners shall make report of their proceed- Probate court ings to the probate court in writing, and the court may for sufficient partition. reasons set aside such report, and commit the same to the same commissioners or appoint others; and the report, when finally accepted and established, shall be recorded in the records of the probate court, and a copy thereof, attested by the clerk under the seal of the court, shall be recorded in the office of the recorder of the county where the lands lie.

sioners to make

necessary.

SEC. 272. When the probate court shall make a decree assigning When commisthe residue of any estate to one or more persons entitled to the same, partition not it shall not be necessary to appoint commissioners to make partition or distribution of such estate, unless the parties to whom the assignment shall be decreed, or some of them, shall request that such partition shall be made,

SEC. 273. All questions as to advancements made, or alleged to have been made, by the deceased to any heirs, may be heard and determined by the probate court, and shall be specified in the decree assigning the estate, and in the warrant to the commissioners, and the final decree of the probate court, or in case of appeal, of the district or supreme court, shall be binding on all parties interested in the

estate.

Questions as to

advancements

to be decided by probate court.

appoint agent to

for absentees.

SEC. 274. When any estate shall be assigned by decree of the Court may court, or distributed by commissioners, as provided in this chapter, take possession to any person residing out of this state, and having no agent therein, and it shall be necessary that some person should be authorized to take possession and charge of the same for the benefit of such absent person, the court may appoint an agent for that purpose, and authorize him to take charge of such estate, as well as to act for such absent person in the partition and distribution.

bond.

SEC. 275. Such agent shall give a bond to the judge of probate, to Agent to give be approved by him, faithfully to manage and account for such estate, before he shall be authorized to receive the same; and the court appointing such agent may allow a reasonable sum out of the profits of the estate for his services and expenses.

estate.

SEC. 276. When the estate shall remain in the hands of the agent Unclaimed unclaimed for a year, it shall be sold under the order of the court, and the proceeds, deducting the expenses of the sale, to be allowed by the court, shall be paid into the state treasury. When the payment is made, the agent shall take from the treasury duplicate

Liability of agent.

Certificate to claimant.

Decree discharging executor, etc.

Powers of executors, etc, may be suspended.

receipts, one of which he shall file in the office of the comptroller, and the other in the probate court.

Special administrator may be appointed.

SEC. 277. The agent shall be liable on his bond for the care and preservation of the estate while in his hands, and for the payment of the proceeds of the sale, as required in the preceding section, and may be sued thereon by any person interested.

SEC. 278. When any person shall appear and claim the money paid into the treasury, the probate court making the distribution being first satisfied of his right shall grant him a certificate under its seal; and upon the presentation of the certificate to the comptroller, he shall draw his warrant on the treasurer for the amount.

Letters of administration

may issue after subsequent issuance of letters of administration, should other property

such decree.

SEC. 279. When the estate has been fully administered, and it is shown by the executor or administrator, by the production of satisfactory vouchers, that he has paid all sums of money due from him, and delivered up under the order of the court all the property of the estate to the parties entitled, the court shall make a decree discharging him from all liability to be incurred thereafter.

SEC. 280. The final settlement of an estate shall not prevent a

Executor to have notice of his

of the estate be subsequently discovered, or should it become necessary or proper from any cause that letters should again be issued.

CHAPTER XII.

REMOVAL OF EXECUTORS AND ADMINISTRATORS IN CERTAIN CASES.

SECTION 281. Whenever the probate judge has reason to believe, from his own knowledge, or from credible information, that any executor or administrator has wasted, embezzled, or mismanaged, or is about to waste or embezzle the property of the estate committed to his charge, or has committed, or is about to commit, a fraud upon the estate, or has become incompetent to act, it shall be his duty, by an order entered upon the minutes of the court, to suspend the powers of such executor or administrator until the matter can be investigated.

SEC. 282. During the suspension of the powers of the executor or administrator, under the authority of the preceding section, the probate judge may, if the condition of the estate requires it, appoint a special administrator to take charge of the effects of the estate, who shall give the bond, and account as other special administrators are required to do.

SEC. 283. When such suspension has been made, notice thereof suspension and shall be given to the executor or administrator, and he shall be cited

to be cited to appear.

to appear and show cause why his letters should not be revoked. If

he fail to appear in obedience to the citation, or if, appearing, the court be satisfied that there exists cause for his removal, his letters shall be revoked, and letters of administration granted anew, as the case may require.

interested may

hearing.

SEC. 284. At the hearing, any person interested in the estate may Any party appear and file his allegations in writing, showing that the executor appear on or administrator should be removed. Such allegations shall be heard and determined by the court.

absconding.

SEC. 285. If the executor or administrator has absconded, or con- Executor, etc., ceals himself, or has removed from the county, notice may be given him of the pendency of the proceedings, by publication, in such manner as the court may direct; and the court may proceed upon such notice as if the citation had been personally served.

to compel

SEC. 286. In the proceedings authorized by the five preceding Attachments sections of this chapter, for the removal of an executor or adminis- attendance. trator, the court may compel his attendance, by attachment, and may compel him to answer questions, on oath, touching his administration, and upon his refusal so to do may commit him until he obey.

CHAPTER XIII.

MISCELLANEOUS PROVISIONS.

etc., to be

SECTION 287. All orders and decrees made by the probate court, dur- Orders, decrees, ing its terms, shall be entered at length in the minute-book of the court; entered. and also all orders which the probate judge is empowered to make out of term-time, and which are, by this act, specially required to be so entered. Upon the close of each term, the judge shall sign the minutes of the proceedings.

SEC. 288. Whenever personal notice is required by this act to be personal notice given to any party to a proceeding in the probate court, and no other how given. mode of giving notice is prescribed, it shall be given by citation, isqued from the court, signed by the clerk, and under the seal of the court, directed to the sheriff of the proper county, and requiring him to cite such person to appear before the court or judge, as the case may be, at a time and place to be named in the citation. In the body of the citation shall be briefly stated the nature or character of the proceeding.

served.

SEC. 289. The officer to whom the citation is directed shall serve Citation, how it by delivering a copy to the person named therein, or to each of them if there be more than one, and shall return the original to the court according to its direction, endorsing thereon the time and manner of service.

Time for service and return.

Clerk of probate court may

SEC. 291. Unless otherwise specially prescribed, the clerk of the administer oaths, probate court shall have power to administer all oaths necessary and

issue citations,

etc.

proper to be taken, touching any matter pending in the probate court, or in any manner connected with any proceedings of which the court has jurisdiction, and he shall have power to issue citations and subpœnas upon the application of any party, without the order of the judge, except in those cases in which such order is specially required by law for the issuing of a citation.

SEC. 292. All writs and processes issuing from the probate court shall be signed by the clerk and authenticated with the seal of the court, except subpoenas, which need not be under seal.

SEC. 293. The practice in the district court shall be applicable to proceedings in the probate court, so far as the same does not conflict with any enactment specially applicable to the probate court, or is not inconsistent with the provisions of this act, or the act to provide for the appointment and prescribe the duties of guardians.

SEC. 294. Appeals shall be allowed from the decisions of the probate court to the district court of the same county in the following cases: First, on all decisions issuing letters testamentary or of administration or guardianship; second, on all decrees admitting any will to probate or determining the validity of any will; third, on all decrees admitting any will to probate; fourth, on all orders setting apart property or making allowances for the widow or child or children; fifth, on all orders for the sale or conveyance of real estate; sixth, on all settlements of executors or administrator or administrators; seventh, on all orders directing the payment of debts or legacies, or the distribution of the estate among heirs, legatees, or distributees; eighth, on all orders revoking letters testamentary or of administration; ninth, on any allowance, order, decree, rule, or decision whatever, made by the probate court or judge manifestly irregular or unjust.

Process.

Practice.

Appeals.

SEC. 290. When no other time is specially prescribed, citation shall be served and returned at least five days before the return day thereof.

Who may appeal.

SEC. 295. Any person interested in or affected by the decision of the probate court may appeal therefrom, by giving notice in open court during the term at which the decision complained of is made, an entry of which notice shall be made on the minutes or by filing a notice of appeal with the clerk of the court, and serving written notice upon all others interested, if within the county at any time within twenty days after the decision complained of is made.

taken, and when

SEC. 296. The appeal shall be deemed waived unless the appellant Appeal, how shall, within twenty days after the appeal is taken, file in the court deemed waived. the bond of himself or some other person in a sum and with security to be approved by the probate judge, conditioned that he will prosecute the appeal, and pay any debt and all damages and costs which may be adjusted against him. The bond shall be payable to the state of California, and upon any breach of the condition thereof, may be sued upon by any one or more of the parties interested, in his or their own names; but the appeal of any executor or administrator shall be complete and effectual without any bond being filed. When the appeal is taken from any decision made by the probate judge out of term, it may be heard by the district judge out of term, at any time after the appeal is perfected, upon previous notice of five days being given to all parties interested, if in the county.

SEC. 297. The appeal shall not be a supersedeas in any other mat- Effect of appeal ter relating to the administration of the estate, except that upon which the appeal is specially taken. When the appeal is taken and perfected, the clerk shall deposit in the office of the district court all the original papers in his office relating to the subject matter of the appeal.

disregarded.

SEC. 298. Upon the filing of the papers in the district court, that Errors, etc.. court shall be possessed of the cause, and shall proceed to hear, try, and determine the same anew, without regarding any error, defect, or other imperfection in the proceedings of the probate courts.

of fact.

SEC. 299. Issues of fact joined in the probate court shall be tried Trial of issues by the district court on appeal, as herein provided, and in no other

manner.

SEC. 300. When judgment upon an appeal from the probate court Remittitur. has been rendered by the district court, the clerk shall return into the probate court all the original papers, together with a certified transcript of the judgment or decree, and shall carry the same into effect.

SEC. 301. In all cases in which it is not otherwise specially prescribed by law, the probate court, or the district court on appeal, may award costs to any party in its discretion, to be paid by any other party or parties, or to be paid out of the estate which is the subject of controversy, as justice shall require.

Execution

SEC. 302. When costs are awarded to one party to be paid by an- for costs. other, the said courts respectively may issue execution therefor.

36

Costs.

« ПретходнаНастави »