§ 94. The special administrator shall also render an account, on oath, of his proceedings, in like manner as other administrators are required to do.

In reference to accounts to be rendered by administrators, etc., see post, Chapter X.

§ 95. Whenever an executor or administrator shall die, or his letters be revoked, and the circumstances of the estate require the immediate appointment of an administrator, the probate judge may appoint a special administrator as provided in the preceding sections.

[Forms Nos. 69 to 71, Appendix.]

See Sec. 100, post, and cases cited.

To account on oath.

Special administrator in other cases.

In case of one

eral executors

§ 96. In case any one of several executors or administrators to whom letters shall have been granted shall die, become lunatic, be convicted of an infamous crime, or otherwise become incapable of executing the trust, or in case the letters testamentary or of admin- or more, of sev istration shall be revoked or annulled according to law with respect becoming into any one executor or administrator, the remaining executor or act. administrator shall proceed and complete the execution of the will or administration.

See Sec. 47, ante.

§ 97. If all such executors or administrators shall die or become incapable, or the power and authority of all of them shall be revoked according to law, the probate court shall issue letters of administration with the will annexed, or otherwise, to the widow or next of kin, or others, in the same manner as is directed in relation to original letters of administration. The administrators so appointed shall give bond in like penalty, with like sureties and conditions as hereinbefore required of administrators, and shall have the like power and authority.

See Sec. 52, ante.

[Forms Nos. 35, 36, 46 to 48, 52, Appendix.]

§ 98. If, on granting letters of administration on the ground of intestacy, a will of the deceased shall be duly proved and allowed If will proved

by the court, the letters of administration shall be revoked, and the power of the administrator shall cease, and he shall render an

after grant of

letters of ad

ministration.

ecutor in such a

case.

account of his administration within such time as the court direct.

[Form No. 72, Appendix.]

On application by one of the next of kin for a revocation of letters of admini on the ground that deceased left a will, and it being proved that a will had be cuted: Held, that in the absence of proof that the will was in the possession of de or unrevoked, at the time of his death, it was improper to revoke the letters. } v. Ferris, 2 Brad. 513.

§ 99. In such case, the executor of the will, or the ad int Powers of ex tor with the will annexed, shall be entitled to demand, sue fo collect all the rights, goods, chattels and effects of the dec remaining unadministered, and may be admitted to prosecu final judgment any suit commenced by the administrator befor revocation of his letters of administration.

Executor or

may resign.

§ 100. Any executor or administrator may, at any tim writing, filed in the probate court, resign his appointment, h administrator first settled his accounts and delivered up all the estate to such son as the court shall appoint; provided, if, by reason of delays in such settlement and delivering up of the estate, any other cause, the circumstances of the estate or the rigl those interested in the estate shall in the opinion of the require it, the court may, at any time before such settleme accounts and delivering up of the estate shall have been compl Court may re- revoke the powers or the letters testamentary or of administr of such executor or administrator, and appoint in his stea administrator, either special or general, as the case may rec and in the same manner as is directed in relation to original le of administration. The liability of the out-going executor or a istrator, or of the sureties on his bond, shall not be in any ma discharged, released or affected by such appointment of a sp or general administrator in his stead. (a.)

voke letters etc.

[Forms Nos. 73, 74, Appendix.]

See Secs. 101 and 222, post, and see Sec. 95, ante.

Upon the resignation of an administrator the court must appoint another to r the estate, unless it is in a condition for distribution. The probate judge is not a

(a) Amended March 30th, 1858. (See Statutes 1858, p. 105.) The amendmen all that portion of the present section from the word "provided" to the end.

[Statutes 1865-'6, p. 328.-Took effect on passage.]

104. When any petition shall be filed in the Probate Court praying for the admission to probate of any will, or for the granting of letters testamentary or of administration, or when proceedings have been commenced and are pending in the Probate Court in relation to the settlement of an estate, and the presiding Judge of said Court shall be disqualified to act from any of the causes mentioned in the preceding section, or from any cause whatever, it shall be the duty of such Judge, either upon his own motion or on the motion of any person interested in the estate, to make an order transferring the proceeding to the Probate, Court of an adjoining county; and the Clerk of the Court ordering the transfer shall transmit to the Clerk of the Court to which the proceeding is transferred a certified copy of the order, and also all the papers on file in his office in said proceeding; and thereafter the Probate Court to which the said proceeding shall have been transferred shall be clothed with the same authority and jurisdiction over the estate and all matters relating to the administration thereof, as if the proceeding had been originally commenced therein; provided, that the transfer of a proceeding from one Court to another, as provided for in this section, shall not affect the right of any person to letters testamentary or of administration on the estate transferred, but the same persons shall be entitled to letters testamentary or of administration on the estate in the same order in which they would have been entitled had the proceeding not have been transferred; and provided, further, that if before administration shall be closed of any estate which shall have been transferred from one county to another by reason of the disqualification of the Judge as aforesaid, another person shall have been elected or appointed and qualified as Probate Judge of the county wherein such proceeding was originally commenced, and such Judge is not disqualified to act in the settlement of the estate, and the causes for which the proceeding was transferred no longer exist, any person interested in the estate may have the proceeding removed back to the Court from which it was originally transferred, and for such purpose may file a petition setting forth the facts, and move the Court to transfer the proceeding back to the Court where it was originally commenced; and if it shall satisfactorily appear to the Court that the causes for which the proceeding was transferred no longer exist, and that the Probate Judge of the county where the proceeding was originally commenced is not disqualified to act in the matter of said estate at the time such motion is made, and that the convenience of parties interested would be promoted by such change, the Judge shall make an order transferring the proceeding back to the Probate Court where it was originally commenced; and the Clerk of the Court ordering the transfer shall transmit to the Clerk of the Court in which the proceeding was originally commenced a certified copy of the order, and also all the original papers on file in his office in said proceeding; and the Court where the proceeding was originally commenced shall thereafter have jurisdiction and power to make all necessary orders and decrees to close up the business of the administration of the estate.

agent, and cannot order the money to be paid into court. Cal. 443.

Wilson v. Hernandez, 5

An administrator cannot resign by permission of the probate court without first settling up his accounts and delivering over the estate to his successor appointed by the court. The permission given in one case by the one hundredth section of the statute is a negative upon the right in others. Haynes v. Meeks, 10 Cal. 110.

Though the probate court has no right to accept the resignation of an administrator until he has settled his administration accounts, such an acceptance of his resignation is only a voidable error, and not void. Ibid.

The acceptance by the probate court of the resignation of an administrator is sufficiently established by the appointment of his successor. Ibid.

Where an administrator resigns, or is removed, leaving the administration incomplete, there is no fixed rule of compensation. The probate court should apportion it, in reference to the compensation fixed by law for the whole, according to sound judgment. Ord v. Little, 3 Cal. 287.

§ 101. All acts of an executor or administrator, as such, before Acts of exeo

autor valid until

Amendments to Secs. 103 and 104.-Passed April 4th, 1864.

[Took effect on passage.]

§ 103. No Probate Court shall admit to probate any will or grant letters testamentary or of administration in any case where the Judge of such Court shall be interested as next of kin to the deceased, or as a legatce or devisee under the will, or when he shall be named as executor or trustee in the will, or shall be a witness thereto, or shall be in any manner interested or disqualified from acting.

§ 104. When the Probate Court of any county shall be precluded from admitting to probate a will, or granting letters testamentary or of administration, from any of the causes mentioned in the preceding section, the will may be proved, and letters testamentary or of administration may be granted, and all proceedings necessary thereto or consequent thereon may be had in the Probate Court of an adjoining county, and the Probate Judge and Probate Court of such adjoining county shall be vested with as full and complete power, authority, and jurisdiction in the premises as would pertain to them if the testator or intestate had been a resident of such adjoining county at the time of his death, and shall retain jurisdiction in all subsequent proceedings in relation to the estate.