PROBATE CODE

We will proceed at once to the discussion of the probate code, a copy of which has been provided for each member of the association. Amendments to the proposed code have not been drafted, and only the substance of such recommendations will be reported, leaving the drafting of such amendments as may be recommended by the Association to the individual or committee authorized by the Association to do such work.

Sec. 2 It is recommended that the amount of recording provided for in Section 2 be reduced. In Section 2, there are some eight separate books of record provided for to be kept in the clerk's office. All the matters provided for in subdivision 6 of said section should be contained in the reports of the executor, administrator or guardian. To record everything as required by this section would involve no small amount of work and expense, and we favor the reduction of work and expense rather than increase. We are aware of the fact that much of the recording provided for in this code is required by present law.

We recommend that all orders, decrees, judgments, letters testamentary and of administration and of guardianship, all bonds and obligations required by law and all petitions for orders of sale of real estate be required to be drawn on paper of a size and quality to enable the same to be bound in a record book. These papers may be punched uniformly for the purpose of inserting in the binders. When presented to the clerk, they should be marked with the date of filing, and date of entry, placed in the proper record book as a page therein, and stand as a permanent original record. As a matter of practice, the clerk copies on a loose leaf all papers required to be recorded, and this leaf is inserted in a binder and given a page number. It occurs to us that all this extra work and expense incident to the clerk's office could be eliminated.

While we have not overlooked the fact that this method might inconvenience attorneys to a certain extent in making it impossible to carry away from the clerk's office important orders of the court with the files sometimes borrowed for convenience, we are of the opinion that the diminution of the extra work and expense of the clerk's office, together with the preservation of the original record may be of more importance than the slight convenience of lawyers. Clerks are inclined to be proud of the appearance of their records, and might complain of the appearance of the records made by some lawyers, but, under the proposed method, the record would be made by courts and lawyers, and the clerks' responsibility would extend only to proper entry and preservation.

Sec. 8 We recommend that a section be inserted after Section 8, making it the duty of executors, administrators and guardians to record in the office of the county auditor of any county other than

a county where the estate is probated, certified copies of all letters and orders relating to real estate situated in such county.

Sec. 13 We recommend the insertion of a section following Section 13, which will provide for the withdrawal from the files of all wills admitted for probate, upon a showing to the court of the necessity of probating such will in a foreign jurisdiction.

Sec. 18. There should be added to Section 18 a proviso to the effect that the probate shall not be annulled nor the letters revoked until the costs and fees connected with the probate proceedings have been paid under the direction of the court.

Sec. 25. After the word "testatrix" in line 7, Section 25, we would insert the following: "in the presence of such witnesses who subscribe their names in the presence of each other and in the presence of, and at the request of, the testator or testatrix."

Sec. 26. To Section 26 should be added: "and the two attesting witnesses mentioned in Section 25 shall also state in their attestation that the testator's name was signed in their presence by the party so signing, at the request of the testator."

Sec. 32. To Section 32, should be added: "Nothing shall be considered an advancement unless charged in writing by the decedent as an advancement, or acknowledged in writing as such by the child or other successor or heir."

Sec. 35. We should strike from Section 35 everything after the word "sickness" in line 8.

Sec. 39. In lines 4 and 5 of Section 39, we would strike the words "to the heirs of said devisee."

Sec. 43. After the word "attached" in line 2 of Section 43, we would insert a comma, and insert: "referring or relating."

Sec. 46 After Section 46, and as a separate section, we would add: “a surviving spouse shall be entitled to administer the community property notwithstanding any provision in a will to the contrary, providing the said surviving spouse shall file with the court in which the will is presented for probate, at or prior to the time of hearing on the probate of said will, a petition for letters of administration on such community property."

Sec. 48. To Section 48, we would add: "provided that before such letters shall be revoked, all fees and costs shall be paid from the estate under the direction of the court."

Sec. 54. We would amend Section 54 to read as follows: "The clerk shall preserve in a well bound book for that purpose all letters testamentary and of administration, and shall deliver to the executors or administrators certified copies thereof, and shall certify that such letters have been recorded."

Sec. 60. To Section 60, we would add: "providing further that if there be a surviving spouse, and the petition is presented by anyone other than the surviving spouse, service of the notice of hearing

provided for herein shall be made upon such surviving spouse at least ten days prior to the date of the hearing of said petition if said surviving spouse is a resident of this state, and if said spouse is not a resident of this state, then proof of mailing a copy of said notice to the last known address of said spouse at least fifteen days prior to the date of said hearing shall be made."

Sec. 60. Following Section 60, we would insert the following section, copied from the California code:

"At any time after the issuance of letters testamentary or of administration upon the estate of any decedent, any person interested în said estate, whether as heir, devisee, or legatee, or the attorney for such heir, devisee, or legatee, may serve upon the executor or administrator (or upon the attorney for the executor or administrator) and file with the clerk of the court wherein administration of such estate is pending, a written request, stating that he desires special notice of any or all of the following mentioned matters, steps or proceedings in the administration of said estate, to-wit:

"(1) Filing of petitions for sales, leases or mortgages of any property of the estate.

"(2) Filing of accounts.

"(3) Filing of petitions for distribution.

"(4) Filing of petitions for partition of any property of the estate.

"Such request shall state the post office address of such heir, devisee, or legatee, or his attorney, and thereafter a brief notice of the filing of any of such petitions or accounts, except petitions for sale of perishable property or other personal property, which will incur expense or loss by keeping, shall be addressed to such heir, devisee, or legatee, or his attorney, at his stated post office address, and deposited in the United States Post Office with the postage thereon prepaid, within two days after the filing of such petition or account; or personal service of such notices may be made on such heir, devisee, or legatee, or his attorney, within said two days and such personal service shall be equivalent to such deposit in the post office, and proof of mailing or of personal service must be filed with the clerk before the hearing of such petition or account. If upon the hearing it shall appear to the satisfaction of the court that the said notice has been regularly given, the court shall so find in its order or judgment and such judgment shall be final and conclusive upon all persons, so notified."

Sec. 64. To Section 64, we would add: "If the bond and sureties are found by the courts to be sufficient, the costs incident to such hearing shall be taxed to the party instituting such hearing, and, as a part of such costs, the sureties appearing shall be allowed such fees and mileage as witnesses are allowed in civil pro

ceedings, providing that when the citation herein referred to is issued on the motion of the court, no costs shall be imposed."

Sec. 70. We have some doubts as to the wisdom of the powers given the courts in Section 70. In some counties, practically all estates are probated before poorly paid court commissioners, and to invest courts and court commissioners with power to revoke letters of an administrator or executor without any notice whatever may be in the interest of economic administration of estates, but we are convinced that such is not the case. We call the attention of the Association to this section, without making any recommendation.

Sec. 80. We suggest that after Section 80, there be added a section providing for a hearing and settlement by the court of questions concerning the administration of estates where there are two or more executors who cannot agree concerning matters relative to the estate.

Partnership Estates.

Sec. 82. The second proviso of Section 82, beginning in line 18, appeals to us as being too indefinite. The same criticism is made of the third proviso. Our idea is that causes for which a partner should be required to surrender the partnership estate should be more than what the court might say, in the finding, was "a good cause." The right of a surviving partner to administer the partnership estate is a naked right if he may be appointed and immediately removed by the court because "in its judgment it should appear best." We realize that it is easy to criticize and difficult to offer acceptable advice. We suggest that causes of removal should be embezzlement of the property of the estate, the committing of a fraud upon the estate, conviction of a crime, inexcusable delay in settlement of the estate, and removal from the state. The estate of the deceased partner is protected by a bond, and the surviving partner may know better how to handle the estate and realize on its assets than does the court. Sec. 88. In line 13 of Section 88, the word "debts" should be changed to "credits."

Sec. 94. After the word "estate" in line 13 of Section 94, should be inserted the words, "which costs shall be fees and mileage of witnesses, statutory attorneys' fees, and such per diem and mileage for the person so charged as allowed to witnesses in civil proceedings."

Sections 99 and 100. We believe the executor or administrator should be permitted to pay claims if he so desires, before presenting them to the court. According to the provisions of sections 99 and 100, this cannot be done. Many estates are administered some distance from the county seat and the executor or administrator should be permitted to pay claims and take his chances of proving them valid when asking for approval. There should be added to Section 99, the following: "and file in the court proof of such notification. Such notification shall be by personal service or registered mail." The

necessity of this appears in Section 102, which bars such claims unless suit is brought within thirty days after notification.

Sec. 106. For Section 106, we would substitute the following:

"If any action be pending against the testator or intestate at the time of his death, the plaintiff shall serve on the executor or administrator, a motion to have such executor or administrator, as such, substituted as defendant in such action, and, upon the hearing of such motion, such executor or administrator shall be so substituted, unless, at or prior to such hearing, the claim of plaintiff, together with costs, be allowed by the executor or administrator and the court. After the substitution of such executor or administrator, the court shall proceed to hear and determine the action as in other civil cases."

Sec. 109. After the word "lifetime" in line 2 of section 109, we would insert the following: "and not recorded in the county in which the estate is being administered." After the word "administration” in line 7, of said section, we would add: "when any judgment is rendered against the testator or intestate in his lifetime, where the judgment is of record in the county in which the estate is being administered, no execution shall issue thereon after the death of such testator or intestate, but if justly due and unsatisfied, shall be paid in due course of administration, and the executor or administrator shall take notice of such judgments." After the word "be," where it first appears in line 8 of said section, we would insert the words, "for the foreclosure of."

Sec. 110. To section 110, we would add the following: "provided there has been a hearing thereon by the court after not less than ten days' written notice of said hearing has been given to the known heirs and devisees. Unless there has been such a hearing after such notice, the allowance of the judge shall be no evidence of the correctness of the claim."

Sec. 113. In line 23 of Section 113, we would substitute the word "ten" for the word "five."

Sec. 114. We do not believe the real estate should be sold or mortgaged without notice where there are heirs or devisees. Section 114 provides for the selling or mortgaging of real estate without notice. We believe this section should be amended to provide for notice to heirs or devisees, if there are any.

Sec. 116. After the word "devised" in line 14 of Section 116, we would insert the following: "If any real estate which may have been devised was, at the time of the death of the testator, burdened with any lien, the devisee will take such real estate subject to such lien unless there is an expressed intention of the testator to the contrary."

Sec. 144. In line 4 of Section 144, we would strike the word "not" after the word "shall," and we would strike the last two words