For actions on bond, see section 30. Bond only guarantees good faith: Moore v. Eure, 101-11; Atkinson v. Whitehead, 66-296. Clerk has power to compel: Barnes v. Brown, 79-401; see section 32. Bond required when executor, uses estate: McFayden v. Council, 81-195; Gray v. Gaither, 74237. Not required because of insolvency alone, when insolvency known to testator: Neighbors v. Hamlin, 78-42.

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 spaceof 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.

Executrix of husband marrying again: Godwin v. Watford, 107-168. 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.

For conditions and penalties of bond, see section 319.
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. For bond, see section 319. Letters not void because bond not justified: Garrison v. Cox, 95-353-or because bond lacks securities, Jones V. Gordon, 55-352. Oath taken and bond given: Armstrong v. Stowe, 77362. Amount of bond, see Williams v. Neville, 108-565.

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. See also section 319. Bonds of administrators only guarantee good faith: Smith v. Patton, 131-397; Moore v. Eure, 101-11.

WHO PARTIES PLAINTIFF. Must be State ex rel'': Norman v. Walker, 101-24; Carmichael v. Moore, 88-29. Administrator d. b. n. as relator: Neagle v. Hall, 115-415; Brown v. McKee, 108-387; Clement

v. Cozart, 107-695; Tulburt v. Hollar, 102-406; Wilson v. Pearson, 102290; Grant v. Rogers, 94-755; Merrill v. Merrill, 92-657; Neal v. Becknell, 85-299; Lansdell v. Winstead, 76-366; Goodman v. Goodman, 72-508; Carlton v. Byers, 70-691; Latham v. Bell, 69-135; Badger v. Jones, 66305; Latta v. Russ, 53-111; Ferrabee v. Baxter, 34-64; State v. Britton, 33-110; State v. Johnston, 30-31; State v. Moore, 33-160. Party aggrieved as relator: Lafferty v. Young, 125-296; Alexander v. Wolfe, 88-398; Allison v. Robinson, 78-227; State v. McKay, 28-397. See also cases under next section.

NO NECESSITY OF JUDGMENT AGAINST ADMINISTRATOR TO CHARGE BONDSMEN. Bratton v. Davidson, 79-423; Strickland v. Murphy, 52-242; Chairman, etc., v. Moore's Admr., 6-22; Williams v. Hicks, 5437.

CERTAIN ACTS HELD TO BE COVERED BY THE BOND. Administrator d. b. n.'s liability measured by administrators, when: Roper v. Burton, 107-526. His collecting from administrator's estate: Grant v. Reese, 94-720. Administrator collecting debt from himself: Gay v. Grant, 101-206.

Good faith as

PROPERTY COVERED BY BOND. Lafferty v. Young, 125-296; Shuffler v. Turner, 111-297; Reaves v. Davis, 99-425; Grant v. Reese, 94-720; Morton v. Ashbee, 46-312; Governor v. Williams, 25-152. BREACH OF BOND; WHAT IS AND WHAT IS NOT. a test; Smith v. Patton, 131-397; Moore v. Eure, 101-11. See Settle v. Settle, 141-553; Caviness v. Fidelity Co., 140-58; Gill v. Cooper, 111-311; Gay v. Grant, 101-206; Lee v. Beaman, 101-294; Roper v. Burton, 107526; Summers v. Reynolds, 95-404; Grant v. Edwards, 92-442; Worthy v. Brower, 93-344; Syne v. Badger, 92-706; Grant v. Bell, 90-558; Hawkins v. Carpenter, 88-403; McLean v. McLean, 88-394; Ruffin v. Harrison, 81-212; Pratton v. Davidson, 79-423; Williams v. Williams, 73-413; Green v. Green, 69-25; Hagans v. Huffsteller, 65-443; Finger v. Finger, 64-183; Ramsay v. Hanner, 64-668; Womble v. George, 64-759; Nelson v. Hall, 58-32; Holderness v. Palmer, 57-107; Cain v. Hawkins, 50-192; Fanshaw v. Fanshaw, 44-166; Beall v. Darden, 39-76; Williams v. Britton, 33-110; Green v. Collins, 28-139; McLean v. Peoples, 20-133; Harrison v. Ward, 14-417; Washington v. Hunt, 12-475; Smith v. Fagan, 13-292. See also section 167.

SURETIES. Released: Atkinson v. Farmer, 6-291; Tulburt v. Hollar, 102-406. Not released: Clancy v. Carrington, 14-529. Though released, property mortgaged to them to secure them can be taken: Hooker v. Yellowley, 128-297. Bonds being cumulative, sureties on all bonds held. Pickens v. Miller, 83-543. When surety responsible for debt due estate by administrator: Moseley v. Johnson, 144-257.

VENUE. Administrator must be sued as such in the county in which he took out letters, if he or any of his sureties live there: Foy v. Morehead, 69-512. See section 421.

When

31. Letters revoked, bond liable to successor for default. ever the letters of an executor, administrator or collector are revoked, his bond may be prosecuted by the person or persons suc

ceeding 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. For actions by administrator d. b. n. as relator, see under preceding section "Who parties plaintiff.'' Actions for waste brought by administrator d. b. n., see under section 167. Assets must be recovered from prior administrator before any land sold: Carlton v. Byers, 70-691; Latham v. Bell, 69-135. See generally: Brittain v. Dickson, 104-547; Grant v. Reese, 94-720; University v. Hughes, 90537; Ham v. Kornegay, 85-119; Duke v. Ferebee, 52-10; Hackney v. Steadman, 46-207.

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. Can not give in lieu of bond mortgage on intestate's property even though an heir: In re Sellars, 118-573. Clerk passes upon necessity for renewal: Ibid. Executor converting funds may be compelled to give bond: McFayden v. Council, 81-195; see also Neighbors v. Hamlin, 78-42; Hunt v. Sneed, 64-180; Barnes v. Brown, 79-401. Public administrator offering to renew, after notice clerk must accept: In re Trotter, 115-193.

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. New bond to save former sureties taken: Governor v. Gowan, 25-342. See Barnes v. Brown, 79-406.

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. Revocation void unless notice issued to show cause, Trotter v. Mitchell, 115-190; in re Palmer's Will, 117-133. Generally discussed: Edwards v. Cobb, 95-4. See Barnes v. Brown, 79-406; Neighbors v. Hamlin, 78-42; Hunt v. Sneed, 64-180; McIntyre v. Proctor,

145

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. Clerk must immediately appoint successor, and may order settlement: In re Brinson, 73-278; Taylor v. Biddle, 71-1.

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.

37. On proof of will. If, after the letters of administration are issued, a will is subsequently proved and letters testamentary are issued thereon; or, if after letters testamentary are issued, a revocation of the will, or a subsequent testamentary paper revoking the appointment of executors is proved and letters are issued thereon,

the clerk of the superior court must thereupon revoke the letters. first issued, by an order in writing to be served on the person to whom such first letters were issued; and, until service thereof, the acts of such person, done in good faith, are valid.

Code, s. 2170; C. C. P., s. 469. Case supporting section: Shober v. Wheeler, 144-403. Jurisdiction of clerk generally as compared with probate judge: Edwards v. Cobb, 95-4. Practice under this section discussed: Ibid; Daniel v. Bellamy, 91-78. See Slade v. Washburn, 25-557; Ralston v. Telfair, 22-414. Cited in In re Palmer's Will, 117-139.

38. For disqualification or default. If, after any letters have been issued, it appears to the clerk, or if complaint is made to him on affidavit, that any person to whom they were issued is legally incompetent to have such letters, or that such person has been guilty of default or misconduct in the due execution of his office, or that the issue of such letters was obtained by false representations made by such person, the clerk shall issue an order requiring such person to show cause why the letters should not be revoked. On the return of such order, duly executed, if the objections are found valid, the letters issued to such person must be revoked and superseded, and his authority shall thereupon cease.

Code, s. 2171; C. C. P., s. 470.

JURISDICTION. McLaurin v. McLaurin, 106-331; Tulbert v. Hollar, 102-406; Edwards v. Cobb, 95-4; Battle v. Duncan, 90-550; Merrill v. Sandlin, 86-54; Barnes v. Brown, 79-401; Taylor v. Riddle, 71-1. This power exists for the good of the estate and should never be exercised for convenience of parties such as to allow executor to resign: McIntyre v. Proctor, 145-288. Must be exercised with caution: Smith v. Collier, 2060; County Court v. Bissell, 47-388. Superior Court's powers on appeal in removal cases discussed in Pearce v. Lovinier, 71-248.

PROCESS AND PLEADINGS. Without order to show cause, removal void: In re Palmer's Will, 117-133; Trotter v. Mitchell, 115-190. Complaint and answer: Patterson v. Wadsworth, 94-538; Neighbors v. Hamlin, 78-42.

"DEFAULT OR MISCONDUCT."

Generally construed in McFayden v. Council, 81-195. Motion to remove for fraud not entertained in application to set aside sale of land for assets: McLaurin v. McLaurin, 106-331. Failure to account: Barnes v. Brown, 79-401; Armstrong v. Stowe, 77-360. Poverty of executor no ground: McFayden v. Council, 81195; Wilkins v. Harris, 60-592. Failure to give or renew bond, see section 32. Failure to defend action when his interest adverse to estate: Simpson v. Jones, 82-323. Disagreement between executors no reason per se to remove: Fairbairn v. Fisher, 57-390.

IX. ADVERTISEMENT FOR CREDITORS.

39. Advertisement for claims, when and how made; cost. Every executor, administrator and collector, within twenty days after the granting of letters, shall notify all persons having claims against