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$ 34. Administration may be granted to one or more competent persons, although not entitled to the same, with the consent of the person entitled, to be joined with such person; which consent shall ed in letters. be in writing, and be filed in the office of the surrogate.
may be join.
$ 35. When any person shall apply for administration, either with
having prior the will annexed, or in case of intestacy, and there shall be any other tion to such person having prior right to such administration, the applicant shall produce, prove, and file with the surrogate, a written renunciation of the persons having such prior right. If he fail to do so, before any such letters shall be granted, a citation shall be issued to all persons having such prior right, to show cause at a day to be therein specified, why administration should not be granted to such applicant.25
Citation how to be served.
Attorney-general to be
$37. In all cases of application for letters of administration in cases cited, unless of intestacy, a citation to show cause as aforesaid, shall be issued to
it be shown
that intestate and served on, the attorney-general, at least twenty days before the
return day thereof, previous to granting such letters, unless it shall be shown to the surrogate, by the affidavit of the applicant, or other written proof, that the intestate left kindred entitled to his estate, specifying the names of such kindred, and their places of residence, as far as the same can be ascertained.25
Collector when to be appointed.
$36. If any person to whom such citation shall be directed, shall reside within the county of such surrogate, such citation shall be served personally, or by leaving a copy at the residence of such person, at least six days before the return day thereof; if any such person reside out of such county, but within the state, and such residence can be ascertained, service shall be made in the same manner, at least forty days before the return day of the citation: if any such person reside out of the state, or his residence can not be ascertained, such citation may be personally served without the state, forty days before its return, or may be published once in each week, for six weeks successively, in the state paper.25.
Authority and duties
of such collector.
$ 38. In case of a contest relative to the proof of a will, or relative to the right to letters testamentary, or when by reason of the absence from this state of any executor named in a will, or by any other cause, a delay is necessarily produced, in granting such letters, the surrogate authorised to grant the same may, in his discretion, issue special letters of administration to one or more persons, authorising the collection and preservation of the goods of the deceased.
$ 39. Every collector so appointed, shall have authority to collect the goods, chattels, personal estate, and debts of the deceased; and to secure the same, at such reasonable expense as the surrogate shall allow; and for those purposes may maintain suits as an administra
(25) 1 R. L. 445, § 6.
$40. Upon letters testamentary, or of administration, being grant- Powers of ed, the power and authority of such collector shall cease; but any when to suit brought by him may be continued by the executor or administra- duty theretor, in the name of such collector, which he shall not have power to discontinue or release. And such collector shall, on demand, deliver to the executor or administrator, all the property and money of the deceased in his hands, and shall render an account, on oath, to the surrogate, of all his proceedings, upon being cited for that purpose, or without such citation. Such delivery and account may be enforced by an order of the surrogate, and by attachment to be issued by him as in other cases of administrators.
tor. Under the direction of the surrogate, he may sell such of the ART. 2.
$ 41. Before any letters of administration with the will annexed, Every admi or in cases of intestacy, shall be issued to any administrator or col- collector to lector, he shall take and subscribe an oath or affirmation before the surrogate, or in case of sickness or other inability to attend the surrogate, before any officer authorised to administer oaths, that he will well, honestly and faithfully, discharge the duty of administrator or collector, as the case may be, according to law.
$42. Every person appointed administrator shall, before receiving Administra letters, execute a bond to the people of this state, with two or more bond with competent sureties, to be approved by the surrogate, and to be jointly nalty and and severally bound. The penalty in such bond shall not be less thereof. than twice the value of the personal estate of which the deceased died possessed, which value shall be ascertained by the surrogate, by the examination on oath of the party applying, and of every other person he may think proper to examine. The bond shall be conditioned, that such administrator shall faithfully execute the trust reposed in him as such, and also that he shall obey all orders of such surrogate, touching the administration of the estate committed to him.26
$43. Every collector appointed by special letters, shall execute a Collector to bond, with sureties, to be approved as aforesaid, in the same penal-penalty and ty as in the case of an administrator, and the same proceedings shall thereof. be had to ascertain such penalty. The condition of such bond shall be, that he will make a true and perfect inventory of such of the assets of the deceased, as shall come to his possession or knowledge, and return the same within three months, to the office of the surrogate granting such letters; that he will faithfully and truly account for all property, money, and things in action, received by him as such collector, whenever required by the said surrogate, or any other court of competent authority, and will faithfully deliver up the same, to the
(26) 1 R. L. 447, § 10.
One executor, &c. becoming incompetent, &c.
person or persons who shall be appointed executors or administrators of the deceased, or to such other person as shall be authorised to receive the same by such surrogate.
General Provisions relating to Letters Testamentary and of Administration; Miscellaneous Provisions respecting the Duties of Surrogates, and the Recording of Wills and Letters.
SEC. 44. When one of several executors, &c. becomes incompetent, the others to proceed. 45. If all become incompetent, &c. new letters to issue, and effect thereof.
46. Upon will being proved, administration to be revoked, and letters to be issued. 47. What acts of executors, &c. removed or suspended, to be valid.
48. In what cases surrogate not to act in proving will or granting letters.
49. In such cases, first judge of county to act; his powers.
50. First judge of county to act when surrogate's office is vacant.
51. Powers of first judge in the cases provided.
52. To use seal of the common pleas, and to deposit papers with county clerk.
54. If surrogate and first judge interested, or offices vacant, district attorney to act.
56. Effect of letters testamentary, &c. as evidence.
57. Testimony on proof of will, &c. how taken, entered and preserved.
debts due them.
$44. In case any one of several executors or administrators, to whom letters testamentary or of administration shall have been granted, shall die, become lunatic, convict of an infamous offence, or otherwise become incapable of executing the trust reposed in him, or in case the letters testamentary or of administration shall be revoked or annulled according to law, with respect to any one executor or administrator, then the remaining executors and administrators shall proceed and complete the execution of the will or the administration, according to law.
$45. If all such executors or administrators shall die, or become incompetent, incapable, as aforesaid, or the power and authority of all of them shall be revoked according to law, the surrogate having authority to grant letters originally, shall issue letters of administration upon the goods, chattels, credits and effects of the deceased left unadministered, with the will annexed, or otherwise, as the case may be, to the widow or next of kin, or creditors of the deceased, or others, in the same manner as herein before directed, in relation to original letters of administration; which administrator shall give bonds in the like penalty, with like sureties and conditions, as herein before required of administrators, and shall have the like power and authority. And such letters shall supersede all former and other letters testamentary, and of administration, upon the same estate.
$46. If after granting any letters of administration on the ground of be revoked. intestacy, any will shall be subsequently proved, and letters testamen
Administration when to
tary or of administration, with the will annexed, be thereupon issued, ART. 3. a revocation of such letters of administration shall be made by the surrogate; and until the same be made and served on such administrator, his acts done in good faith shall be valid; and the executors to whom letters testamentary shall be issued, shall be entitled to demand, collect, and sue for, the goods, chattels, and effects remaining unadministered.27
$47. All sales made in good faith, and all lawful acts done, either Acts of oxeby administrators before notice of a will, or by executors or adminis- when valid. trators, who may be removed or superseded, or who may become incapable, shall remain valid, and shall not be impeached, on any will afterwards appearing, or by any subsequent revocation or superseding of the authority of such executors or administrators.2
gate shall not
$48. No surrogate shall admit to probate any will, or grant let- When surreters testamentary or of administration, in any case, or upon any estate, act. where he shall be interested as next of kin to the deceased, or as a legatee or devisee under such will, or where such surrogate shall be named as executor in such will.28
$49. When any surrogate who would otherwise be authorised to First judge to act, shall be so precluded from acting, upon a representation and due proof thereof, to the first judge of such county, such judge shall be vested with all the powers and authority of the surrogate, in relation to the proof of any such will, and the granting of letters testamentary or of administration thereon, and the granting of letters of administration, in case of intestacy; and shall retain jurisdiction in such cases, for all the purposes contemplated by this Chapter.
$50. When the office of surrogate in any county shall be vacant, I. the first judge of the county shall act as surrogate, until such vacancy be supplied.
$51. Whenever the first judge of any county shall act as surrogate, His powers. pursuant to the foregoing provisions, he shall possess all the powers and authority of a surrogate, in the same manner, under the same restrictions, as are herein prescribed, in relation to such surrogate; and his orders and decrees, shall in like manner be subject to appeal.
$52. Whenever it becomes necessary for the first judge to use a what seal to seal in the execution of any of his duties or powers as surrogate, he shall be authorised to use the seal of the court of common pleas of his County, without any charge therefor. All papers, vouchers and documents received by him, and which are required to be retained by the surrogate, shall be deposited in the office of the clerk of the coun
(27) 1 R. L. 313, § 15. (28) 1 R. L. 449, § 16.
Where to re-
District attor. ney when to act.
$53. Whenever any will, letters testamentary, or of administration, shall be entitled or required by law, to be recorded, by such first judge, acting as surrogate, he shall record the same, in the books kept for that purpose, by the surrogate, in his own hand writing, and shall certify the same under his own hand.
$54. Whenever the surrogate shall be precluded from acting in consequence of being named as executor in any will, or of being interested as legatee, or devisee, or next of kin of the deceased, and the first judge shall be named as executor in such will, with such surrogate, or shall be interested as next of kin to the deceased, or as a legatee or devisee under such will; and when the offices of surrogate and first judge shall both be vacant, the district attorney of the county shall have the same powers as are given by the preceding sections to the first judge, and may proceed in the same manner.
$55. All letters testamentary, letters of administration and letletters, &c. ters appointing any collector, shall be issued in the name of the people of this state, and shall be tested in the name of the surrogate, or other officer granting the same, and shall be signed by him, and sealed with the seal of his office; or with the seal of the court of common pleas of such county, when issued by the first judge, or district attorney.29
$56. The letters testamentary and of administration, and letters appointing a collector, granted by any officer having jurisdiction, shall be conclusive evidence of the authority of the persons to whom the same may be granted, until the same shall be reversed on appeal, or revoked, as in this Chapter provided.
$57. The testimony taken by any surrogate, in relation to the of testimony. proof of any written or unwritten will, and in any controversy relating to the granting of letters testamentary or of administration, or the revoking of the same, shall be reduced to writing, and shall be entered by him, in a proper book to be provided and preserved as part of the books of his office; if taken by any first judge, or district attorney, the same shall be filed in the office of the clerk of the county. $58. Each surrogate shall record in his books, to be provided by be recorded. him, all wills proved before him, and all letters testamentary or of administration, and all letters appointing a collector, with all things concerning the same. The records of such wills and letters, and the transcripts thereof duly certified by the surrogate having the custody of such records, under his seal of office, shall be evidence in all courts, so far as respects any personal estate, in the same manner as if the originals were produced and proved.30
Copies of wills when to
$59. The surrogate before whom any will of a person, not being be sent to see an inhabitant of this state at the time of his death, shall be proved,
retary of state
(29) 1 R. L. 445, § 3. (30) Ib. § 7.