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
proven, it is the plain duty of the court to
grant letters testamentary to the person
named in the will, upon his application,
provided he should not be disqualified by
the statute: Holladay v. Holladay, 16 Or.
148, 19 Pac. 81.

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
aforesaid, and that
who is named executor therein, has

been duly appointed such executor by the court aforesaid; this therefore
authorizes the said
to administer the estate of the said

-, 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 court has duly appointed
administrator of the estate of
such
-; this therefore authorizes the said
to
administer the estate of the said

deceased, according to law.

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.]

§ 1138. Resignation of Executor or Administrator Allowed in Discretion of Court How Made.

The court or judge thereof, in its discretion, may allow an executor or administrator to resign, when it appears that such executor or administrator has published a notice of his intention to apply therefor in some newspaper in general circulation in the county, for the period of four weeks prior to such application, and that he is not in default in any matter connected with the duties of his trust. Such executor or administrator shall pay the cost of the proceeding, and if the application is allowed, he shall surrender his letters to be canceled, and his powers as such shall cease from that time forward. [L. 1862; D. Cd. § 1079; H. C. § 1111.]

It is not necessary that a resignation should be made in conformity with this section, requiring notice of intention to resign to be published. Apart from such

section, it would seem that an administrator may, with the consent of the court, resign his office: Ramp v. McDaniel, 12 Or. 108, 6 Pac. 456.

CHAPTER III.

OF THE INVENTORY OF THE ESTATE.

§ 1139. Inventory of Estate, when and how Made.

An executor or administrator shall, within one month from the date of his appointment, or, if necessary, such further time as the court or judge thereof may allow, make and file with the clerk an inventory, verified by his own oath, of all the real and personal property of the deceased which shall come to his possession or knowledge. [L. 1862; D. Cd. § 1080; H. C. § 1112.]

A failure to file the inventory as here provided is a sufficient violation of duty to authorize the removal of the executor or administrator: In re Holladay's Estate, 18 Or. 171, 22 Pac. 750; In re Mill's Estate, 22 Or. 210, 29 Pac. 453; Marks v. Coats, 37 Or. 610, 62 Pac. 488; Re Barnes' Estate, 36

Or. 282, 59 Pac. 464; Re Bolander's Estate, 38 Or. 493, 63 Pac. 689.

A judgment in favor of the estate should be inventoried by the executor: Conser's Estate, 40 Or. 66 Pac. 607. The word "appointment,' as here used, means the actual installment into office: Wells v. Applegate, 10 Or. 520.

§ 1140. Inventory, What to Contain.

The inventory shall contain an account of all money belonging to the deceased, or a statement that none has come to the possession or knowledge of the executor or administrator; also a statement of all debts due the deceased, the written evidence thereof, and the security therefor, if any exist, specifying the name of each debtor, the date of each written evidence of debt, and security therefor, the sum originally payable, the indorsements thereon, if any, and their dates, and the sum appearing then to be due thereon. [L. 1862 ; D. Cd. § 1081; H. C. § 1113.]

§ 1141. Appraisement, and Appointment of Appraisers.

Before the inventory is filed, the property therein specified shall be appraised at its true cash value by three disinterested and competent persons, who shall be appointed by the court or judge thereof; but if any part of the

property shall be in a county other than that where the administration is granted, the appraisers thereof may be appointed by such court or judge, or the court or judge thereof of the county where the property shall be; in the latter case, a certified copy of the order of appointment shall be filed with the inventory. [L. 1862; D. Cd. § 1082; H. C. § 1114.]

$ 1142. Oath of Appraisers.

Before making the appraisement, the appraisers shall each take and subscribe an affidavit, to be filed with the inventory, to the effect that he will honestly and impartially appraise the property which shall be exhibited to him according to the best of his knowledge and ability. [L. 1862; D. Cd. § 1083; H. C. § 1115.]

$ 1143. Appraisement of Money and Debts.

The appraisers shall appraise each article of property separately, and set down the value thereof in dollars and cents, opposite the entry of the article in the inventory. Money, of whatever nature, that is a legal tender, is to be appraised at its nominal value; but debts, of all descriptions or kinds, are to be appraised at that sum which, in the judgment of the appraisers, may be realized from them by due process of law. When the appraisement is completed, the inventory shall be signed by the appraisers. [L. 1862; D. Cd. § 1084; H. C. § 1116.]

$ 1144.

Debt Due by Person Named in Will as Executor.

The naming any one executor in a will shall not operate to discharge such executor from any claim which the testator had against him, but the claim shall be included in the inventory; and if the person so named afterwards take upon himself the administration of the estate, he shall be liable for such claim as for so much money in his hands at the time the claim became due and payable; otherwise he is liable for such claim as any other debtor of the deceased. [L. 1862; D. Cd. § 1085; H. C. § 1117.]

$ 1145. Discharge or Bequest of a Claim by Will, Effect of.

The discharge or bequest in a will of any claim of the testator against a person named as executor therein, or against any other person, shall, as against the creditors of the deceased, be invalid. Such claim shall be included in the inventory, and for all the purposes of administration is to be deemed and treated as a specific legacy of that amount. [L. 1862; D. Cd. §1086; H. C. § 1118.]

$ 1146. Property Discovered After Filing Inventory.

If, after the filing of the inventory, property not mentioned therein shall come to the knowledge or possession of the executor or administrator, it is his duty immediately to make an inventory thereof, and cause the same to be appraised in the manner prescribed in this title, and file the same with the clerk. [L. 1862; D. Cd. § 1087; H. C. S § 1119.]

§ 1147. Who Entitled to Possession and Control of Property.

The executor or administrator is entitled to the possession and control of the property of the deceased, both real and personal, and to receive the rents and profits thereof until the administration is completed, or the same is surrendered to the heirs or devisees by order of the court or judge thereof; but where such property, or any portion thereof, is in the possession of a third person, by virtue of a valid subsisting lease or bailment, the possession and control of the executor or administrator is subordinate to the right of the lessee or bailee. During the time the property is in the possession or control of the executor or administrator, it is his duty to keep the same in repair, and preserve it from loss or decay as far as possible. [L. 1862; D. Cd. § 1088; H. C. § 1120.]

The power of the probate court to surrender property to heirs or devisees is confined to the property and cases specified in §§ 1222 and 1223, post: Hanner v. Silver, 2 Or. 339.

The executor's right to the possession and receipt of property and payment of claims precedes the right of the wife to receive her third as her dower: Leonard v. Grant, 8 Or. 276.

The right of the widow to dower in no wise interferes with the possession of the administrator until the administration is complete. The county court has the power to make the necessary orders to protect the widow's right to dower: Butler v. Smith, 20 Or. 131, 25 Pac. 381.

The possession of the executor may be tacked to that of his decedent in order to establish an estate by adverse possession: Rowland v. Williams, 23 Or. 524, 32 Pac. 402.

The executor has not such an estate in the lands of the decedent as to entitle him to maintain an action for the possession

thereof, as against the wife of the testator, to whom the use was given by will, until disposition should be made thereof by the executor. The right of the possession of the property of a deceased person, given by law to executors and administrators, is a mere statute power, to be exercised by them for the purposes of administration: Humphreys v. Taylor, 5 Or. 261.

The administrator does not necessarily take possession of the estate, but may do so for the purpose of administration by means of this section. The real estate descends to the heirs immediately upon the death of the ancestor, and such heirs are entitled to take possession thereof, unless the administrator exercises his power to do so. If the administrator take possession, the running of the statute of limitation against the heir is suspended during such possession, but the mere appointment of an administrator does not affect the operation of the statute: Clark v. Bundy, 29 Or. 193, 44 Pac. 282.

$ 1148. Proceedings for Secreting Property or Writing Relating Thereto. Whenever it appears probable from the affidavit of an executor or administrator, or that of an heir or other person interested in the estate, that any person has concealed or in any way secreted or disposed of any property of the estate, or any writing relating or pertaining thereto, or that such person has knowledge of any such property or writing being so concealed, secreted, or disposed of, and refuses to disclose the same to the executor or administrator, the court or judge thereof, upon the application of such executor or administrator, may cite such person to appear and answer under oath concerning the matter charged. [L. 1862; D. Cd. § 1089; H. C. § 1121.] This section and the three succeeding au- 598. 27 Pac. 220. To the same effect, see thorize the probate court to entertain proceedings in the nature of a discovery, but it can not determine title to property as between the executor and a third person. In case such a question is to be examined, it must be done in the courts of ordinary jurisdiction: Gardner v. Gillihan, 20 Or.

Dray v. Bloch, 29 Or. 353, 45 Pac. 772.

A county court exercising probate jurisdiction has no power to determine an issue between the administrator and a claimant to property inventoried by the administrator as an asset of his estate: Re Bolander's Estate, 38 Or. 490, 63 Pac. 689.

§ 1149. Mode of Examination of Such Persons.

Such examination may be oral or upon written interrogatories filed by the applicant, but in either case the answers of the person cited shall be reduced to writing, and subscribed by him and filed. If such person be not