An adjudication of the county court settling the final account of an administrator and directing the distribution of the estate, is a decree and not a judgment, and on an appeal the evidence must accompany the transcript, and the case be tried anew: Re Plunkett's Estate, 33 Or. 414, 54 Pac. 152.

Probate proceedings being in the nature

of a suit, a decree for the payment of money can not be enforced as for a contempt; the proper process is an execution: Rostel v. Morat, 19 Or. 185, 23 Pac. 900.

The power of the court is wholly statutory, and is brought into action only by the means provided in this section: Wright v. Edwards, 10 Or. 301.

§ 1101. Probate Proceedings Recorded in What Books.

The proceedings in probate matters shall be entered and recorded in the following books:

1. A register, in which shall be entered a memorandum of all official business transacted by the court or judge thereof, appertaining to the estate of each person deceased under the name of such person; that pertaining to the guardianship of an infant under the name of such infant; that pertaining to an insane person or a drunkard under his name;

2. A record of wills, in which shall be recorded all wills proven before the court or judge thereof, with the order of probate thereof, and of all wills proved elsewhere upon which letters of administration are issued by the direction of such court or judge;

3. A record of the appointment of administrators, whether general or special, or of a partnership, and of executors;

4. A record of the appointment of guardians of infants, insane persons, and drunkards;

5. A record of accounting and distribution, in which shall be entered a summary balance sheet of the accounts of administrators, executors, and guardians, with the orders and decrees relating to the same; a memorandum of executions issued thereon, with a note of satisfaction when satisfied; also orders and decrees relating to the sale of real property and to the distribution of the proceeds thereof; and notices of all money or securities paid or deposited in court as proceeds of such sales or otherwise; and a statement showing the names of creditors, and the debts established and entitled to distribution, the amount to which each person is entitled out of such funds, and the amount actually paid to each person, and when paid;

6. A record of the appointment of admeasurer of dower, with all orders and decrees relating to the same, and the admeasurer's report;

7. An order book, in which shall be entered orders directing the conduct of executors, administrators, or guardians; orders for publication of notice to creditors; orders in behalf of creditors directing debts to be paid, or allowing an execution to be issued; appointments of special guardians, appraisers, and referees; orders relating to the production of a will, to removal of executors, administrators, or guardians, or to sureties therefor; and generally, all other orders not required to be entered in some other book. To each of such books there shall be attached an index, securely bound in the volume, referring to the entries or records in alphabetical order, under the name of the person to whose estate or business they relate, and naming the page of the book where the entry or record is made. [L. 1862; D. Cd. §§ 1047, 1048; H. C. §§ 1079, 1080.]

§ 1102. Costs and Disbursements, How Awarded - Decrees for Payment of Money, How Enforced.

Costs may be awarded in favor of one party against another, to be paid personally or out of the estate or fund, in any proceedings contested adversely, but such costs can not exceed those allowed in the trial of a civil action in the county court. Witness' fees and other disbursements similar to those allowed on the trial of a civil action may also be allowed, to be paid in like manner. Orders or decrees for the payment of money may be enforced by execution, or otherwise, in the same manner as orders or decrees for the payment of money in the circuit court. [L. 1862; D. Cd. §§ 1049, 1050; H. C. §§ 1081, 1082.]

As to the amount of costs allowed to parties, see § 564, ante.

CHAPTER II.

OF THE PRODUCTION AND PROOF OF WILLS, AND THE APPOINTMENT OF EXECUTORS AND ADMINISTRATORS.

§ 1103. Custodian of Will Must Deliver Same to County Court Having Jurisdiction.

Every custodian of a will, within thirty days after receipt of information that the maker thereof is dead, must deliver the same to the county court having jurisdiction of the estate, or to the executor named. therein, and any such custodian who shall fail or neglect to comply with the provisions of this section shall be held responsible for any damages sustained by any person injured thereby. [L. 1893, p. 31, § 1.]

§ 1104. Who May Petition for Probate of Will.

Any executor, devisee, or legatee named in any will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will proved, whether the same be in his possession or not, or is lost or destroyed, or beyond the jurisdiction of the estate, or is a nuncupative will. [L. 1893, p. 31, § 2.]

$ 1105. Order for Production of Will

Disobedience of, How Punished.

If it is alleged in any petition that any will is in possession of a third person, and the court is satisfied that the allegation is correct, an order must be issued and served upon the person having possession of said will, requiring him to produce it at a time and place named in the order. If said third person has possession of the will, and refuses or neglects to produce it in obedience to the said order, he may be punished for contempt, as in other cases of disobedience of the order of the court. [L. 1893, p. 32, § 3.]

§ 1106. In What County Will May be Proven, and When.

Proof of a will shall be taken by the county court as follows:

1. When the testator, at or immediately before his death, was an inhabitant of the county, in whatever place he may have died;

2. When the testator, not being an inhabitant of this state, shall have died in the county, leaving assets therein;

3. When the testator, not being an inhabitant of this state, shall have died out of the state, leaving assets in the county;

4. When the testator, not being an inhabitant of this state, shall have died out of the state, not leaving assets therein, but where assets thereafter came into the county;

5. When real property, devised by the testator, is situated in the county, and no other county court has gained jurisdiction under either of the preceding subdivisions of this section. [L. 1862; D. Cd. § 1051; H. C. § 1083.]

When the court of a county has taken jurisdiction, and granted letters of administration upon a petition showing that the testator was an inhabitant of the county at or immediately before his death, the jurisdiction of such court is exclusive, and while such administrator is acting the court of no other county has power to appoint another administrator of such deceased: Holmes v. Oregon & Cal. R. Co. 5 Fed. 523; Chow v. Brockway, 21 Or. 440, 28 Pac. 384.

The word "inhabitant" has a narrower and more limited meaning than "domicile," and implies personal presence in the county

as a dweller therein: Holmes v. Oregon & Cal. R. Co. 5 Fed. 523.

The decision of a county court on the question of inhabitancy, properly presented for its adjudication, is not open to examination in subsequent proceedings in a federal court: Holmes v. Oregon & Cal. R. Co. 9 Fed. 229.

In probating a will in this state there are no "adverse parties" to be notified, since the proceeding is entirely ex parte, and it is the duty of the county court to probate a will with convenient speed after its presentation, and no one is entitled to notice as a matter of right: Malone v. Cornelius, 34 Or. 196, 55 Pac. 536.

§ 1107. Who to be Appointed Executor or Administrator With the Will Annexed.

When a will is proven, letters testamentary shall be issued to the persons therein named as executors, or to such of them as give notice of their acceptance of the trust and are qualified. If all the persons therein named decline to accept, or be disqualified, letters of administration with the will annexed shall be issued to the person to whom the administration would have been granted if there had been no will. [L. 1862; D. Cd. § 1052; H. C. § 1084.]

Where a will has been probated in common form, and the validity thereof is attacked by direct proceeding, it lies upon the person seeking to maintain the validity of the will to reprobate the same by original proof in the same manner as if no probate thereof had been had, except as to such matters as are admitted by the pleadings. In every such case the onus probandi is upon the party propounding the will: Hubbard v. Hubbard, 7 Or. 42.

An order appointing or removing an administrator can not be collaterally attacked: Ramp v. McDaniel, 12 Or. 108, 6 Pac. 456.

Administration is void when granted by a wrong ordinary, but voidable when granted to the wrong person: Ramp v. McDaniel, 12 Or. 108. 6 Pac. 456.

A will that appoints an executor is entitled to probate regardless of whether it purports to dispose of anything_or not: In re John's Will, 30 Or. 494, 47 Pac. 341, 36 L. R. A. 242.

A will appointing executors, and directing the payment of funeral expenses and expenses of administration, is entitled to probate, though its other provisions creating a charitable trust are invalid: In re John's Will, 30 Or. 494, 47 Pac. 341, 36 L. R. A. 242.

The payment of claims against an estate by one who assumes to act as administrator thereof, under an appointment void for want of jurisdiction in the court making the appointment, will not constitute a defense to an action brought by the rightful administrator for conversion of the property of the estate: Chow v. Brockway, 21 Or. 440, 28 Pac. 384.

An executor is a person to whom the decedent has confided the execution of his last will, and he derives his appointment from it. Letters testamentary issued by the probate judge are but the authentic evidence of the power conferred by the will, and are founded upon the probate of that instrument: Holladay v. Holladay, 16 Or. 147, 19 Pac. 81.

§ 1108. Contest as to Validity of Will, Must be Begun Within what Time.

When a will has been admitted to probate, any person interested may, at any time within one year after such probate, contest the same or the validity of such will; and in case a will has been heretofore admitted to probate, such contest may be made at any time within one year from the taking effect of this act; and all proceedings for such contests or for probating wills must be begun within the time herein specified: Provided, that if a person entitled to contest the probate of a will or the validity thereof be laboring under any legal disability, the time in which he may institute such contest shall be extended one year from and after the removal of such disability. [L. 1893, p. 32, § 4.]

§ 1109. Record of Will, Must be Made Where Testator Left Real Property.

That in all cases where any will is admitted to probate in the State of Oregon, in addition to having the same recorded in the county where the same is admitted to probate, it shall be the duty of the executor or administrator, with the will annexed, to have such will (or a copy thereof duly certified to be such copy by the officer having the custody of such will,) recorded in every county in the state in which the testator left any real property in the record of deeds of such counties. [L. 1891, p. 3, §1; L. 1893, p. 196, § 1.]

§ 1110. Any Person May have Certified Copy of Probated Will Made, and Record the Same Where Testator Left Real Property.

Any person desiring to do so may have a certified copy made of any will heretofore probated in this state, and have the same recorded in any county in the state in which the testator left any real property, such person paying the necessary expense of such copy and record. [L. 1891, p. 3, § 2.]

§ 1111. Original Record or Certified Copy Competent Testimony.

In all such cases the original record of such will or copy, or a duly certified copy of the same, shall be received as competent testimony in all controversies relating to real property situate in any county where such record is made. [L. 1891, p. 4, § 3.]

§ 1112. In What Court Administration to be Granted, and Who is Entitled Thereto.

Administration of the estate of an intestate shall be granted by the county court authorized to take proof of a will, as prescribed in section. 1106, in case such intestate had made a will. Administration shall be granted and letters thereof issued, as follows:

1. To the widow or next of kin, or both, in the discretion of the court; 2. To one or more of the principal creditors; or,

3. To any other person competent and qualified whom the court may select. [L. 1862; D. Cd. § 1053; H. C. § 1085.]

Granting letters of administration out of the order prescribed in this section will be erroneous, but not a nullity. The person claiming the right to administer should apply to be appointed, or the right will be waived: Ramp v. McDaniel, 12 Or. 108, 6 Pac. 456.

A petition by one who alleges himself to be the principal creditor of the decedent's

estate, asking for the appointment of petitioner as administrator of the estate and for the removal of another creditor who has been appointed, is insufficient unless he avers the facts which make him the principal creditor; a general allegation to that effect is not sufficient: Cusick v. Hammer, 25 Or. 473, 36 Pac. 525.

§ 1113. When Person Entitled Must Apply.

The persons named in the subdivisions of the last section, if qualified and competent for the trust, shall be entitled to the administration in the order therein named. If those named in subdivision 1 do not apply for the administration within thirty days from the decease of the intestate, they shall be deemed to have renounced their right thereto; but the court or judge thereof in its discretion may, if they reside within the county, direct that a citation issue to them, requiring them within such period to apply for or renounce their right of administration; and if the persons named in subdivision 2 do not make such application within forty days from such decease, they shall be deemed to have renounced their right to the administration also. [L. 1862; D. Cd. § 1054; H. C. § 1086.]

§ 1114. Administration, when Granted to the Husband.

If the deceased were a married woman, the administration of her estate shall in all cases be granted to her husband, if he be qualified and competent for the trust, and apply therefor within thirty days from her decease, unless by force of a marriage settlement, or otherwise, she shall have made some testamentary disposition of her property which shall render it necessary and proper to grant the administration to some other person. [L. 1862; D. Cd. § 1055; H. C. § 1087.]

§ 1115. Undertaking of Executor or Administrator.

No executor or administrator is authorized to act as such until he shall file with the clerk of the county court having jurisdiction of the estate an undertaking in a sum not less than double the probable value of the estate, with one or more sufficient sureties, to be approved by the county judge, to be void upon the condition that such executor or administrator shall faithfully perform the duties of his trust according to law: Provided, that when by the terms of his will a testator shall expressly declare that no bonds shall be required of his executors, such executors may act upon taking an oath to faithfully fulfill his trust without filing the undertaking in this section mentioned: Provided further, that such executor shall be criminally and civilly liable as other executors and administrators are for any dereliction of duty. [L. 1862; D. Cd. § 1056; L. 1870, p. 45, § 1; H. C. § 1088.]

The county court may, when it has reason to believe that an estate has been or will be mismanaged, or fraudulently administered, require an executor to give a bond on a proper application by a legatee or creditor, notwithstanding an express declaration in the will that no bond or security shall be required of the executor: Bellinger v. Thompson, 26 Or. 333, 37 Pac. 714.

A bond voluntarily given for the faithful performance of his duty by an executor, which contains no provisions that are either unauthorized by law or against public policy, is valid as a common-law obligation, though the court had no authority to require such a bond: Bellinger v. Thompson, 26 Or. 336, 37 Pac. 714.

Where an executor is also appointed trus