IV. JURISDICTION. 16. Of clerk of superior court. The clerk of the superior court of each county has jurisdiction, within his county, to take proof of wills and to grant letters testamentary, letters of administration with the will annexed, and letters of administration in cases of intestacy, in the following cases: 1. Where the decedent at, or immediately previous to, his death was domiciled in the county of such clerk, in whatever place such death may have happened. 2. Where the decedent at his death had his fixed place of domicil in more than one county, the clerk of any such county has jurisdiction. 3. Where the decedent, not being domiciled in this state, died out of the state, leaving assets in the county of such clerk, or assets of such decedent thereafter come into the county of such clerk. 4. Where the decedent, not being domiciled in this state, died in the county of such clerk, leaving assets in the state, or assets of such decedent thereafter come into the state. Code, s. 1374; C. C. P., s. 433; R. C., c. 46, s. 1; 1868-9, c. 113, s. 115. 17. What clerk has exclusive. The clerk who first gains and exercises jurisdiction under this chapter thereby acquires sole and exclusive jurisdiction over the decedent's estate. Code, s. 1375; C. C. P., 434. V. PUBLIC ADMINISTRATOR. 18. How appointed. There may be a public administrator in every county, appointed by the clerk of the superior court for the term of eight years. Code, s. 1389; 1868-9, c. 113. 19. Takes and subscribes oath; gives bond. The public administrator shall take and subscribe an oath (or affirmation) faithfully and honestly to discharge the duties of his trust; and the oath so taken and subscribed must be filed in the office of the clerk of the superior court, and he must give the bond required by law. Code, ss. 1393, 1390; 1868-9, c. 113, ss. 2, 5. Note. For bond, see Bonds, s. 320. 20. When letters issue to. The public administrator shall apply for and obtain letters on the estates of deceased persons in the following cases: 1. When the period of six months has elapsed from the death of any decedent, and no letters testamentary, or letters of administration or collection, have been applied for and issued to any person. 2. When any stranger, or person without known heirs, shall die intestate in any county. 3. When any person entitled to administration shall request, in writing, the clerk to issue the letters to the public administrator. Code, s. 1394; 1868-9, c. 113, s. 6. 21. Powers; duties; when term expires. The public administrator shall have, in respect to the several estates in his hands, all the rights and powers, and be subject to all the duties and liabilities of other administrators. On the expiration of the term of office of a public administrator, or his resignation, he may continue to manage the several estates committed to him prior thereto until he shall have fully administered the same, if he shall then enter into a bond as required by law for administrators. Code, s. 1395; 1868-9, c. 113, s. 7; 1876-7, c. 239. VI. COLLECTORS. 22. When and how appointed. Whenever, for any reason, a delay is necessarily produced in the admission of a will to probate, or in granting letters testamentary, letters of administration, or letters of administration with the will annexed, the clerk may issue to some discreet person or persons, at his option, letters of collection, authorizing the collection and preservation of the property of the decedent. Code, s. 1383; C. C. P., s. 463; R. C., c. 46, s. 9; 1868-9, c. 113, s. 115. 23. Qualification; bond. Every collector shall have the qualifications and give the bond prescribed by law for an administrator. Code, s. 1384; C. C. P., s. 464. 24. Authority. Every collector has authority to collect the personal property, preserve and secure the same, and collect the debts and credits of the decedent, and for these purposes he may commence and maintain or defend suits, and he may sell, under the direction and order of the clerk, any personal property for the preservation and benefit of the estate. He may be sued for debts. due by the decedent, and he may pay funeral expenses and other debts. Code, s. 1385; C. C. P., s. 465; R. C., c. 46, s. 6; 1868-9, c. 113, s. 115. 25. Authority ceases, when; duty to account. When letters testamentary, letters of administration or letters of administration name. with the will annexed are granted, the powers of such collector shall cease, but any suit brought by the collector may be continued by his successor, the executor or the administrator in his own Such collector must, on demand, deliver to the executor or administrator all the property, rights and credits of the decedent under his control, and render an account, on oath, to the clerk of all his proceedings. Such delivery and account may be enforced by citation, order or attachment. Code, s. 1386; C. C. P., s. 466; R. C., c. 46, s. 7; 1868-9, c. 113, s. 115. VII. APPLICATION FOR LETTERS. 26. What to contain. On application for letters of administration, the clerk must ascertain by affidavit of the applicant or otherwise 1. The death of the decedent and his intestacy. 2. That the applicant is the proper person entitled to administration, or that he applies after the renunciation of the person or persons so entitled. 3. The value and nature of the intestate's property, the names. and residence of all parties entitled as heirs or distributees of the estate, if known, or that the same can not, on diligent inquiry, be procured; which of said parties are minors, and whether with or without guardians, and the names and residences of such guardians, if known. Such affidavit or other proof must be recorded and filed by the clerk. Code, s. 1381; C. C. P., s. 461. 27. How contest over, instituted. Any person interested in the estate may, on complaint filed and notice to the applicant, contest the right of such applicant to letters of administration, and on any issue of fact joined, or matter of law arising on the pleadings, the cause may be transferred to the superior court for trial, or an appeal be taken, as in other special proceedings. Code, s. 1382; C. C. P., s. 462. 28. Executor gives bond, when. Executors shall give bond as prescribed by law in the following cases: 1. Where the executor resides out of the state. And no foreign executor has any authority to intermeddle with the estate until he shall have entered into bond, which must be done within the space of one year after the death of the testator, and not afterwards. 2. When a man marries a woman who is an executrix, and if the husband in such case fail to give bond, the clerk, on application of any creditor or other party interested in the estate, shall revoke the letters issued to the wife and grant letters of administration with the will annexed to some other person. 3. Where an executor, other than such as may have already given bond, obtains an order to sell any portion of the real estate for the payment of debts, as hereinafter provided, the court or clerk to whom application is made shall require, before granting any order of sale, such executor to enter into bond. Code, s. 1515; R. C., c. 46, ss. 12, 13. 29. Oath taken; bond given. Before letters testamentary, letters of administration with the will annexed, letters of administration or letters of collection are issued to any person, he must give the bond required by law and must take and subscribe an oath or affirmation before the clerk that he will faithfully and honestly discharge the duties of his trust, which oath must be filed in the office of the clerk. Code, ss. 1387, 1388, 2169; C. C. P., ss. 467, 468; 1870-1, c. 93. 30. Persons injured may sue on bond. Every person injured by the breach of any bond given by an executor, administrator or collector, may put the same in suit and recover such damages as he may have sustained. Code, s. 1516; 1868-9, c. 113, s. 87. 31. Letters revoked, bond liable to successor for default. Whenever the letters of an executor, administrator or collector are revoked, his bond may be prosecuted by the person or persons succeeding to the administration of the estate, and a recovery may be had thereon to the full extent of any damage, not exceeding the penalty of the bond, sustained by the estate of the decedent by the acts or omissions of such executor, administrator or collector, and to the full value of any property received and not duly administered. Moneys so recovered shall be assets in the hands of the person recovering them. Code, s. 1517; 1868-9, c. 113, s. 88. 32. When new bond or new sureties required. If complaint be made on affidavit to the clerk of the superior court that the surety on any bond of an executor, administrator or collector is insufficient, or that one or more of such sureties is or is about to become a nonresident of this state, or that the bond is inadequate in amount, the clerk must issue an order requiring the principal in the bond to show cause why he should not give a new bond, or further surety, as the case may be. On the return of the order duly executed, if the objections in the complaint are found valid, the clerk shall make an order requiring the party to give further surety or a new bond in a larger amount within a reasonable time. Code, s. 1518; 1868-9, c. 113, s. 89. 33. Remedy of surety in danger of loss. Any surety on the bond of an executor, administrator or collector, who is in danger of sustaining loss by his suretyship, may exhibit his petition on oath to the clerk of the superior court wherein the bond was given, setting forth particularly the circumstances of his case, and asking that such executor, administrator or collector be removed from office, or that he give security to indemnify the petitioner against apprehended loss, or that the petitioner be released from responsibility on account of any future breach of the bond. The clerk shall issue a citation to the principal in the bond, requiring him, within ten days after service thereof, to answer the petition. If, upon the hearing of the case, the clerk deem the surety entitled to relief, he may grant the same in such manner and to such extent as may be just. And if the principal in the bond gives new or additional security, to the satisfaction of the clerk, within such reasonable time as may be required, the clerk may make an order releasing the surety from liability on the bond for any subsequent act, default or misconduct of the principal. Code, s. 1519; 1868-9, c. 113, s. 90. 34. Failing to give new bond, letters revoked. If any person required to give a new bond, or further security, or security to indemnify, under the two preceding sections, fails to do so within the time specified in any such order, the clerk must forthwith revoke the letters issued to such person, whose right and authority, respecting the estate, shall thereupon cease. Code, s. 1520; 1868-9, c. 113, s. 91. 35. Letters revoked; successor appointed; estate protected. In all cases of the revocation of letters, the clerk must immediately appoint some other person to succeed in the administration of the estate; and pending any suit or proceeding between parties respecting such revocation, the clerk is authorized to make such interlocutory order as, without injury to the rights and remedies of creditors, may tend to the better securing of the estate. Code, s. 1521; 1868-9, c. 113, s. 92. 36. Form of letters. All letters must be issued in the name of the state, and tested in the name of the clerk of the superior court, signed by him, and sealed with his seal of office, and shall have attached thereto copies of sections forty-two and ninety-nine. Code, ss. 1399, 2172; C. C. P., ss. 471, 478; 1871-2, c. 46. |