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intestate took title to land in the child's name, paying the consideration himself.

The principle we are referring to applies only where there is an intestacy, and not to a case where the decedent has left a valid will disposing of all his property.

82. No distribution without administration.

The meaning of this is that, although the statutes point out who are the next of kin and what their shares are, these shares cannot legally be paid to them without an administration of the estate under the direction of the court. We have already seen (ante §§ 1,36) why an administration of an estate by an executor is so necessary before the legatees named in the will can get possession and control of their legacies, and how their rights of ownership are suspended in the meantime. Precisely the same thing may be said respecting the shares of the next of kin pending administration by the administrator. An administrator is the counterpart of the executor, and although his powers are not quite so extensive, he occupies substantially the same position in an intestate estate as the executor does in the case of a will.

We will therefore proceed to inquire in what cases the court will grant letters of administration, and how the appointee is to be selected.

83. Jurisdiction of courts to grant administration. Before the probate court can entertain an application for the grant of letters of administration, certain facts must exist; for we must remember that these courts have no broad general powers, but are tribunals having only such jurisdiction as is expressly conferred upon them by the statutes of the legislature, and such incidental authority as is to be inferred therefrom.

The facts of death and intestacy must, of course, always be present, and in some cases the questions as to the decedent's residence, place of death and location of his assets are of vital importance. If the deceased was at the time of his death a resident of the county in which the court is located, administration may be granted by that court, no matter where he died. So, too, where he left real or personal property in that county, or where, since his death, personal property has come into that county, irrespective of the question of his residence, letters may also be granted.

Actual death of the decedent must be shown, but this may sometimes be inferred from prolonged and unexplained absence over a period of years. Civil death, resulting from conviction of crime, is of course never sufficient.

84. Who entitled to letters.

The policy of the law is to grant priority in the issue of letters to those who have the greatest and most immediate interest in the distribution of the personal property. As the real property of the intestate does not pass through the hands of the administrator, it follows that his heirs are not affected by, and are not considered in, the matter of selection.

The order in which those entitled to share in the estate are given the right of appointment is given in the statute as follows: (1) the surviving husband or wife, (2) the children, (3) the grandchildren, (4) the father, (5) the mother, (6) the brothers, (7) the sisters, and (8) any other next of kin entitled to share in the estate. If none of these apply or are willing to act, the public administrator (see post § 88), county treasurer or creditors are entitled to the appointment. The right to letters is absolute and the court must grant them to the persons entitled, if competent and will'ng to serve, in the order stated.

The non-residence of a claimant does not affect his right, so long as he is a citizen and has a priority over resident relatives. In the case of alien intestates, letters may issue to the consulgeneral of his country or to his nearest friend.

Sometimes it happens that there are several

persons in the same class entitled to the appointment. In such case the court in making the selection will prefer males to females, relatives of the whole blood to those of the half blood, and But if this process

unmarried to married women.

of elimination does not yield a proper candidate, then the court, in its discretion, must make its own selection, having in view the circumstances of each case, and the interest and qualifications of those from whom the choice is to be made. A divorced woman, having no right to share in the distribution of her husband's personal estate, is not qualified to act. A stranger to the estate may be joined in the grant of letters with one who is entitled, upon the written consent of all next of kin who are within the state, and this course is frequently adopted, particularly where it is desired that some Trust Company shall assist in the administration. This course is expressly authorized by statute.

85. Application for letters.

The application is usually made by the person seeking the appointment himself, but it is not necessarily so, for any one who is interested in having an administrator appointed may ask for it. Thus, a creditor, seeking to expedite the payment of his claim, may file his petition, and

upon its being granted, the court will appoint one of those specified in the statute as being entitled.

Whether any notice of the application need be given depends upon whether there are any persons resident of the state, who have a right to receive letters prior or equal to that of the petitioner. If so, notice must be given to them, unless they have renounced the appointment. If no notice is necessary, it is the usual practice to go to the office of the surrogate or probate judge, file the petition, oath and proposed bond, and if the same are in due form and sufficient, the letters will issue as a matter of course. The bond is in an amount equal to the value of the personal property, but it may be dispensed with if the applicant is entitled to the whole personal estate.

Sometimes the only asset of an estate is a cause of action for damages for causing the death of the intestate. In such case, it is usual to issue letters which limit the authority of the administrator to the prosecution of the action, and to dispense with, or greatly reduce, the penalty of his bond.

Of course, there is always the possibility of a contest in this proceeding, as in any other. Some one may deny that the intestate is dead, or that he left property within the court's jurisdiction. It may be asserted that he left a will, or that the

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