tion he should be removed without regard a may, An administrator selling real estate under order of court, and ordered by the court to deliver the deed to the vendee upon receipt of the purchase price, may be removed as being guilty of neglect of his trust in delvering such deed without receiving the purchase price: Knight V. Hamakar, 40 Or. 67 Pac. 107. An order of the county court allowing certain attorney's fees against an estate, which is not set aside, modified, or reversed, is sufficient evidence of the attorney's interest in the estate to support a petition to remove the administrator: Knight v. Hamakar, 40 Or., 67 Pac. 107. The probate court has large discretion in passing upon an application to remove an administrator, and an abuse must be shown to justify reversal: Re Barnes' Estate, 36 Or. 279, 59 Pac. 464. When an administrator appears in response to a petition for his removal, and contests the matter on its merits, he will not thereafter be heard to object that the petition was insufficient; technical objections were waived by answering: Re Barnes' Estate, 36 Or. 278, 59 Pac. 464. $ 1122. If Executor or Administrator Became Nonresident, May be Removed. If an executor or an administrator become a nonresident of this state, he may be removed and his letters revoked in the manner prescribed in the last section, except that the notice may be given by publication for such time as the court or judge thereof may direct. [L. 1862; D. Cd. § 1063; H. C. § 1095.] See note to preceding section. In case of removal of an executor or administator from the estate, no notice is required: Moore v. Willamette Transp. Co. 7 Or. 368. § 1123. New Undertaking when Old Insufficient. Whenever the amount of an executor's or administrator's undertaking is insufficient, or the sureties therein or either of them have become nonresidents of this state, or are likely to or have become insolvent, such executor or administrator shall be required to give a new and sufficient undertaking. The application for such new undertaking may be made by any heir, legatee, devisee, creditor, or other person interested in the estate, and in the manner prescribed in section 1121 for the removal of executors and administrators. [L. 1862; D. Cd. §1064; H. C. § 1096.] The giving of a second or subsequent bond by an executor, pursuant to an order of substitution made solely on his own application, and not under the provisions of this and the succeeding section, does not relieve the sureties on the first or prior bond; they are still liable for the conduct of their principal, the bond being cumulative: Thompson v. Dekum, 32 Ör. 512, 52 Pac. 517; Bellinger v. Thompson, 26 Or. 345, 37 Pac. 714, 40 Pac. 229. See Vol. II, § 5770, statute authorizing release of surety from bond on application. The final settlement of the accounts of an executor is conclusive on both the executor and his bondsmen, in the absence of fraud, and can not be attacked in a subsequent suit brought for that purpose by one of such sureties: Thompson v. Dekum, 32 Or. 516, 52 Pac. 517, 755; Bellinger v. Thompson, 26 Or. 320, 37 Pac. 714, 40 Pac. 229. When an administrator is ordered to file a new undertaking, and fails to comply with such order, thenceforward his authority shall cease, and he shall be deemed removed and his letters revoked: Levy v. Riley, 4 Or. 393. § 1124. Effect of New Undertaking or the Failure to Give It. Such new undertaking, when given and received, shall discharge the sureties in the former undertaking from any liabilities on account of their principal, arising from his acts or omissions subsequent thereto. When a new undertaking is ordered, if the executor or administrator fail to comply therewith within five days from the entry thereof, or such further time as the order may prescribe, thenceforward the authority of such executor or administrator shall cease, and he shall be deemed removed and his letters revoked. [L. 1862; D. Cd. § 1065; H. C. § 1097.] See note to preceding section. § 1125. Death, Resignation, or Removal of Executors or Administrators, Effect Whenever an executor or administrator shall die, resign, or be removed, if there be a coexecutor or administrator he shall thenceforward exercise the powers and perform the duties of the trust; and if all the executors or administrators shall die, resign, or be removed, administration of the estate remaining unadministered shall be granted to those next entitled, if they be competent and qualified. [L. 1862; D. Cd. § 1066; H. C. § 1098.] An appeal from an order deposing an administrator does not suspend the operation of the order. Such is the effect of the statutes which provide that upon the removal of an administrator or executor his power shall terminate, and the further management of the estate shall devolve upon a cotrustee, or whoever may be appointed: Knight v. Hamaker, 33 Or. 154, 54 Pac. 277, 659. Under this and the succeeding section an administrator de bonis non may recover from the representative of the former administrator, or his surety, assets converted by the first administrator: Herren's Estate, 40 Or. —, 66 Pac. 688. § 1126. New Administrator May Maintain Action Against Former one, his Sureties or Representatives. The surviving or remaining executor or administrator, or the new administrator, as the case may be, is entitled to the exclusive administration of the estate, and for that purpose may maintain any necessary and proper action, suit, or proceeding on account thereof, against the executor or administrator ceasing to act, or against his sureties or representatives. [L. 1862; D. Cd. § 1067; H. C. § 1099.] An administrator de bonis non may maintain an action upon the former administrator's bond upon his failure to turn over and account for all property, upon proper citation: Rutenic v. Hamakar, 40 Or. 67 Pac. 196. This section does not authorize an action on the bond of an administrator who has been removed, until after final settlement of his accounts in the county court: Adams v. Petrain, 11 Or. 304, 3 Pac. 163. W. A. B. was administrator with will annexed of G. J. B. deceased; he filed his final account as such, but before he obtained an order discharging him from his trust he died. Mary L. B. qualified as administratrix of W. A. B., deceased, and E. C. C. qualified as administrator de bonis non with will annexed of G. J. B., deceased, and then filed a petition to have Mary L. B. file an account of the estate of G. J. B. It was held, that, where it is not charged that any of the property or estate of G. J. B., deceased, came into the possession or under the control of Mary L. B., she can not be called upon to file an account; that her trust as administratrix of W. A. B., deceased, does not create the duty of filing an account in the estate of G. J. B., deceased: Cross v. Baskett, 17 Or. 84, 21 Pac. 47. In an action by an administrator with the will annexed against his predecessor in the trust for devastavit in failing to redeem certain stock in a private corporation belonging to said estate, and which had been sold under a decree of the United States court, and was, by the terms of said sale, subject to redemption within six months. the complaint must allege that there were assets in the executor's hands available and applicable to the purpose of redemption, and that the proper county court ordered the redemption to be made: Steel v. Holladay, 20 Or. 76, 25 Pac. 69. 1127. Power of the Court Over an Administrator. Whenever it appears probable to the court or judge that any of the causes for removal of an executor or administrator exist or have transpired, as specified in section 1121, it shall be the duty of such court or judge to cite such executor or administrator to appear and show cause why he should not be removed, and if he fail to appear or to show sufficient cause, an order shall be made removing him and revoking his letters; and it is the duty of the court or judge thereof to exercise a supervisory control over an executor or administrator, to the end that he faithfully and diligently perform the duties of his trust according to law. [L. 1862; D. Cd. § 1068; H. C. § 1100.] See note to § 1121, ante. Section 1121 provides for the manner of removal upon the petition of an heir, legatee, devisee, creditor, or other person interested in the estate, while this section provides for the removal by the court upon its own motion: Ramp v. McDaniel, 12 Or. 114, 6 Pac. 456; Re Partridge's Estate, 31 Or. 307, 51 Pac. 82; Re Barnes' Estate, 36 Or. 282, 59 Pac. 464. The supervisory control given by this and other sections to the probate court over executors and administrators is sufficient authority for the county court to require an additional bond when it believes that the estate is liable to mismanagement: Bellinger v. Thompson, 26 Or. 335, 37 Pac. 714. Where the administrator is before the court to have his report allowed, if it appears therefrom that there has been gross mismanagement of the estate, the court may remove such executor without further citation or notice: Re Partridge's Estate, 31 Or. 307, 51 Pac. 82. The court has a large discretionary power in removing an executor or administrator: Re Holladay's Estate, 18 Or. 168, 22 Pac. 750; Re Barnes' Estate, 36 Or. 282, 59 Pac. 464. The court in its supervisory control over executors has certain powers; it may, perhaps, incidentally pass upon the question of title, so far as to determine whether the administrator has been unfaithful to his trust in not inventorying the property, but it has no power to strike from an inventory property listed by him, where there is a dispute between him and another as to the possession thereof. Such controversy involves a pure question of title, and must be determined in the regular courts for determining such questions: Re Bolander's Estate, 38 Or. 493, 63 Pac. 689; Gardner v. Gillihan, 20 Or. 598, 27 Pac. 220. This section, taken in connection with others, makes it evident that an appeal from an order deposing an administrator does not suspend the operation of the order: Knight v. Hamaker, 33 Or. 156, 54 Pac. 659. § 1128. Inventory and Appraisement of Estate, when Deceased a Member of Copartnership. The executor or administrator of a deceased person, who was a member of a copartnership, shall include in the inventory of such person's estate, in a separate schedule, the whole of the property of such partnership; and the appraisers shall estimate the value thereof, and also the value of such person's individual interest in the partnership property, after the payment or satisfaction of all the debts and liabilities of the partnership. [L. 1862; D. Cd. § 1069; H. C. § 1101.] § 1129. Partnership Property May be Administered by Surviving Partner — Application Therefor. After the inventory is taken, the partnership property shall be in the custody and control of the executor or administrator for the purposes of administration, unless the surviving partner shall, within five days from the filing of the inventory, or such further time as the court or judge may allow, apply for the administration thereof, and give the undertaking therefor hereinafter prescribed. [L. 1862; D. Cd. § 1070; H. C. § 1102.] § 1130. Denominated an Administrator of the Partnership - His Powers and Duties. If the surviving partner apply therefor, as provided in the last section, he is entitled to the administration of the partnership estate, if he have the qualifications and competency required for a general administrator. He is denominated an administrator of the partnership, and his powers and duties VOL. I.-32. extend to the settlement of the partnership business generally, and the payment or transfer of the interest of the deceased in the partnrship property remaining after the payment or satisfaction of the debts and liabilities of the partnership, to the executor or general administrator within six months from the date of his appointment, or such further time, if necessary, as the court or judge may allow. In the exercise of his powers and the performance of his duties, the administrator of the partnership is subject to the same limitation and liabilities, and control and jurisdiction of the court, as a general administrator. [L. 1862; D. Cd. § 1071; H. C. § 1103.] The administrator of a partnership has no power, and the county court, in the exercise of jurisdiction of a court of probate, can not confer upon him power, to parti tion real property: Burnside v. Savier, 6 Or. 154. The partnership estate should be closed up before the individual estate: Palicio v. Bigne, 15 Or. 147, 13 Pac. 765. § 1131. Undertaking of Administrator of the Partnership. The undertaking of the administrator of the partnership shall be in a sum not less than double the value of the partnership property, and shall be given in the same manner and be to the same effect as the undertaking of a general administrator. [L. 1862; D. Cd. § 1072; H. C. § 1104.] § 1132. When Administration of Partnership Property Devolves upon General Administrator. In case the surviving partner is not appointed administrator of the partnership, the administration thereof devolves upon the executor or general administrator; but before entering upon the duties of such administration he shall give an additional undertaking in double the value of the partnership property. [L. 1862; D. Cd. § 1073; H. C. § 1105.] Where the surviving partner is made administrator of the general estate of a deceased, and qualifies as such, and also causes himself to be appointed administrator of the partnership estate, he should be required to give bond as executor of the partnership estate, notwithstanding the will provided that he should not be required to give bonds: Palicio v. Bigne, 15 Or. 146, 13 Pac. 765. § 1133. Duty of Surviving Partner Towards Administrator. Every surviving partner, on the demand of an executor or administrator of a deceased partner, shall exhibit and give information concerning the property of the partnership at the time of the death of the deceased partner, so that the same may be correctly inventoried and appraised; and in case the administration thereof shall devolve upon the executor or administrator, such survivor shall deliver or transfer to him on demand all the property of the partnership, including all books, papers, and documents pertaining to the same, and shall afford him all reasonable information and facilities for the performance of the duties of his trust. [L. 1862; D. Cd. § 1074; H. C. § 1106.] § 1134. How Last Section May be Enforced. Any surviving partner who shall refuse or neglect to comply with the requirements of the last section may be cited to appear before the court or judge, and unless he show cause to the contrary, the court or judge shall require him to comply with such section in the particular complained of. [L. 1862 ; D. Cd. § 1075; H. C. § 1107.] § 1135. Who not qualified to Act as Executor or Administrator. The following persons are not qualified to act as executors or administrators: nonresidents of this state; minors, judicial officers, other than justices of the peace; persons of unsound mind, or who have been convicted of any felony, or of a misdemeanor involving moral turpitude; or a married woman. [L. 1862; D. Cd. §1076; H. C. § 1108.] The code has disqualified many persons who, at common law, were competent to serve as executors. All persons not expressly forbidden may serve as executors, and when one or more are so appointed by the testator, the court must give heed to his choice, and issue the necessary letters to enable such representative to per § 1136. Letters Testamentary, Form Of. form his trust. When, therefore, a will is Letters testamentary may be in the following form:STATE OF OREGON, COUNTY OF SS. To all persons to whom these presents shall come, greeting: Know ye, that the will of deceased, a copy of which is hereto annexed, has been duly proven in the county court, for the county deceased, according to law. In testimony whereof, I, [L. S.] hereunto subscribed my name and day of, A. D. 19—. [L. 1862 ; D. Cd. § 1077 ; H. C. § 1109.] $1137. Letters of Administration, Form Of. clerk of the county court, have affixed the seal of said court, this A. B., Clerk County Court. Letters of administration may be in the following form:STATE OF OREGON, COUNTY OF }ss. To all persons to whom these presents shall come, greeting: Know ye, that it appearing to the court aforesaid, that has died intestate, leaving at the time of his death property in this state, such In testimony whereof, etc., the same as in letters testamentary. Letters to an administrator of the partnership with the will annexed, or to a special administrator, may be issued according to the foregoing forms, with such variations as may be proper in the particular case. [L. 1862; D. Cd. § 1078; H. C. § 1110.] |