Code, s. 1378; C. C. P., s. 459. Next of kin must make renunciation before clerk can appoint another within 6 months of decendent's death: Williams v. Neville, 108-559. Mere expressed intent to renounce will not do: Ibid; see Hill v. Alspaugh, 72-404.

If any

12. When person entitled deemed to have renounced. person, entitled to letters of administration, fails or refuses to apply for such letters within thirty days after the death of the intestate, the clerk, on application of any party interested, shall issue a citation to such person to show cause, within twenty days after service of the citation, why he should not be deemed to have renounced. If, within the time named in the citation, he neglects to answer or to show cause, he shall be deemed to have renounced his right to administer, and the clerk must enter an order accordingly, and proceed to grant letters to some other person. If no person entitled to administer shall apply for letters of administration on the estate of a decedent within six months from his death, then the clerk may, in his discretion, deem all prior rights renounced and appoint some suitable person to administer such estate.

Code, s. 1380; C. C. P., s. 460 (a); 1868-9, c. 203. Deemed to have renounced, when: Withrow v. DePriest, 119-541; Williams v. Neville, 108559; Hill v. Alspaugh, 72-404; Hughes v. Pipkin, 61-4; Stoker v. Kendall, 44-242. Renunciation not per se: In re Bailey Will, 141-194. Appointee of person entitled, not qualifying, so deemed: Williams v. Neville, 108559. Appointment after six months not revoked at instance of one having prior right applying after six months: Withrow v. DePriest, 119-541; In re Bailey Will, 141-195.

13. When executor deemed to have renounced. If any person appointed an executor does not qualify or renounce within sixty days after the will is admitted to probate, the clerk of the superior court, on the application of any other executor named in the same will, or any party interested, shall issue a citation to such person to show cause why he should not be deemed to have renounced. If, upon service of the citation, he does not qualify or renounce within such time, not exceeding thirty days, as is allowed in the citation, an order must be entered by the clerk decreeing that such person has renounced his appointment as executor.

Code, s. 2164; C. C. P., s. 451. Discussed generally in Ward v. Sparks, 18-389.

III. WILL ANNEXED.

14. Letters with, issued when. If there is no executor appointed in the will, or if, at any time, by reason of death, incompetency adjudged by the clerk of the superior court, renunciation, actual or decreed, or removal by order of the court, or on any other account there is no executor qualified to act, the clerk of the superior

court may issue letters of administration with the will annexed, to some suitable person or persons, in the order prescribed in this chapter.

Code, s. 2166; C. C. P., s. 453. Cases generally in point: In re Meyers, 113-545; Williams v. Neville, 108-559; Little v. Berry, 94-433; Suttle v. Turner, 53-403. Administrator c. t. a.'s duties as trustee: Clark v. Peebles, 120-31; Smathers v. Moody, 112-791; Saunders v. Saunders, 108327; Creech v. Grainger, 106-213; Gay v. Grant, 101-206; Council v. Averett, 95-131; Vaughan v. Farmer, 90-612; Hester v. Hester, 37-330; Jones v. Jones, 17-387. Letters of administration are void unless executor has renounced: Springs v. Irwin, 28-27; Mitchell v. Adams, 23-298.

15. Qualification of adminstrators with. Administrators with the will annexed shall have the same qualifications and give the same bond as other administrators; but the executor of an executor shall not be entitled to qualify as executor of the first testator.

Code, s. 2167; C. C. P., s. 454; 1905, c. 286.

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:

To take proof of wills: London v. R. R., 88-584; Millsaps v. McLean, 60-80; Wallis v. Wallis, 60-79. To appoint administrators. c. t. a.: In re Meyers, 113-545; Suttle v. Turner, 53-404. Jurisdiction of clerk presumed, when: Vance v. Railroad, 138-460. Jurisdiction exhausted, when: In re Bowman's Estate, 121-373. Clerk has same jurisdiction of former probate judge: Edwards v. Cobb, 95-4.

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.

See Grant v. Reese, 94-720; Johnson v. Corpening, 39-216; Collins v. Turner, 4-541.

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.

Page v. Ins. Co., 131-115; Morefield v. Harris, 126-626; Shields v. Life Ins. Co., 119-380; Hyman v. Gaskins, 27-267; Smith v. Munroe, 23-345. 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

Hartness v. Pharr, 133-566; Morefield v. Harris, 126-628; Grant v. Reese, 94-720.

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. Williams v. Neville, 108-563. Where clerk is appointed executor and will proven in another county, see Gregory v. Ellis, 82-225.

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. A public administrator is not such an office as the statute against holding two offices refers to: State v. Smith, 145-476 Quo warranto does not lie either to remove an administrator or to inquire into his appointment: Ibid.

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. Must give bond and obey all orders of court: In re Brinson, 73-278. Must renew bond, when: In re Trotter, 115-193; see sections 32-34.

20. When letters issue to. The public administrator shall apply for and obtain letters on the estates of deceased persons in the following cases:

Office of public administrator a property right: Trotter v. Mitchell, 115-190.

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.

Not entitled, even after six months, when: In re Bailey Will, 141. 193; Withrow v. DePriest, 119-544; Hill v. Alspaugh, 72-402.

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. Subject to orders of clerk: In re Brinson, 73-278.

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. When collector appointed: In re Palmer's Will, 117-133; Syme v. Broughton, 86-156. As to next of kin's right to collect pending appointment, see Whit v. Ray, 26-14.

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. For bond, see section 319.

24. Authority. Every collector has authority to collect the personal preperty, 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. Has no control of lands: Lee v. Lee, 74-70.

25. Authority ceases, when; duty to account. When letters testamentary, letters of administration or letters of administration 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 name. Such collector must, on demand, deliver to the executor or adminis

trator 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. Not entitled to allowance for counsel fees when he resists claim of rightful executor to funds: Johnson v. Marcom, 121-83.

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.

Letters upon estate of one living are void: State ex rel v. White, 29-116; Springer v. Shavender, 118-33. Letters issued pending contest over will void: Slade v. Washburn, 25-557.

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 residence 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. What are issues of fact hereunder: In re Tapp's Estate, 114-248. Letters already issued can not be collaterally attacked: Plemmons v. R. R., 140-286; Lyle v. Siler, 103-261; Granbery v. Mhoon, 12-456. Letters may be revoked at same term granted: Moore v. Moore, 12-352. Clerk can not appoint, pending appeal: Williams v. Neville, 108-559.

28. Executor gives bond, when. Executor shall give bond as prescribed by law in the following cases: