sonal and real, of the decedent within the State. The record of such letters, and duly certified transcripts thereof, may be given in evidence with like effect as the originals.

1. For construction of a like section, see Jeff. R. R. Co. v. Swayne's Admr., 26 Ind. 477.

2. Real estate not otherwise disposed of goes to the heirs-at-law. An administrator or executor, without express authority, can make no use of it.- Rubottom v. Morrow, 24 Ind. 202. But, see 2372.

[1881 S., p. 423. In force September 19, 1881.]

2242. Bond-Oath-Examination-Recording. 20. Every per son appointed executor, administrator with the will annexed, or administrator, before receiving letters, shall execute a separate bond, with sufficient resident freehold sureties, to be approved by the proper Clerk or Court, jointly and severally bound, in a penalty payable to the State of Indiana of not less than double the value of the personal estate to be administered (and in case real estate is to be sold by the terms of a will, also double the value of such real estate), conditioned that he will faithfully discharge his duties as such executor or administrator; and shall take and subscribe an oath or affirmation that he will faithfully discharge the duties of his trust according to law; which oath or affirmation, attested by the Clerk, shall be filed and recorded as part of the proceedings of the estate. And such Clerk or Court shall examine, under oath, such person, or any other person, touching the value of such personal estate, and, in case real estate is to be sold by the terms of a will, the value of such real estate; and shall also examine such sureties, under oath, as to the value of the property they own, more than their indebtedness; which oaths shall be taken and subscribed by such person or persons and such sureties, respectively, and filed as a part of the proceedings in such estate.

1. The trust of an executor or administrator under his first bond relates only to personal estate, except where lands under the will are to be sold. Sureties in the several bonds required in administration of a trust are liable only for the respective funds the bonds are made to secure.- Reno v. Tyson, 24 Ind. 56.

2. Where two or more persons, administrators of the same estate, join in a bond with others as their sureties, each of such administrators will be held therein as liable upon a separate bond.-Moore v. State, 49 Ind. 558; State v. Wyant, 67 id. 25.

3. The bond first given is designed only to secure the faithful application of the personal property of deceased; and such bond can only cover breaches of that trust.Worgang v. Clipp, 21 Ind. 119.

4. A party is not in general liable for the default of his co-executor or adminis. trator.-Braxton v. State, 25 Ind. 82; Prichard v. State, 34 id. 137; Moore v. State, 49 id. 558.

5. The surety upon the first bond is not liable for the misappropriation of moneys received from the sale of real estate, unless it was sold under a testamentary direc tion.-Salyers v. Ross, 15 Ind. 130; State v. Steele, 21 id. 207; Potter v. State, 23 id. 607; Colburn v. State, 47 id. 310.

2243. Clerk's report. 21. Such Clerk shall report to the Circuit Court, at its succeeding term, his acts in the premises; when for good cause shown, such Court may supersede letters issued by such Clerk, or disapprove of the bond taken; in which case, such Court shall grant letters to some other person entitled to the same, or require a new bond or additional sureties. But if no such cause is shown, the Court shall ratify and adopt the letters and bond granted and taken by such Clerk; which fact shall be entered in the order book of such Court.

2244. Validity of bond. 22. No defect, informality, or illegality in the appointment of an executor or administrator, or in the execution, approval, or filing of his bond, shall affect the validity of such bond, but he and his sureties therein shall be as fully bound as if such appointment had been regularly made and such bond executed, approved, and filed in due form of law; nor shall any surety be released therefrom by reason of any condition, inducement, or consideration causing him to sign such bond as surety.

1. All defective bonds executed prior to the taking effect of this Act were made good by an Act of 1877, p. 27.

2245. Application for removal. 23. On a written application, verified by oath, of any person interested in the estate of any co-executor, co-administrator, or surety of such executor or administrator, specifying the grounds of complaint, any executor or administrator with the will annexed, or administrator, may be removed, and his letters superseded by the Court in which such letters issued, for (the) any of the following causes:

First. When, from sickness, habitual drunkenness, imbecility, change of residence, actual or intended, or other cause, he is rendered incapable of discharging his trust to the interest of the estate.

Second. When he shall fail to make and return inventories and sale bills, or to render account of his administration according to law or the order of the Court, or shall waste, or fail to pay over, according to law, the money of such estate.

Third. When it shall be shown to the Court, by his sureties, that such executor or administrator has become, or is likely to become insolvent, in consequence of which his sureties have suffered, or will suffer, loss.

Fourth. Where any administratrix or executrix, at the time letters issued, was unmarried, and shall afterwards marry, and her husband shall fail to file his consent, in open Court, in writing, to her continuing as such.

Fifth. But, whenever an executor or administrator shall be about removing from the county in which he resided at the time he became such executor or administrator, he shall, before leaving such county, make a true and final exhibit, under oath, to the Circuit Court, of the condition of the estate of which he is executor or administrator, at which time his letters of executorship or administration shall be revoked: Provided, That if any executor or administrator removes to another county in this State, his letters shall be revoked in the discretion of the Court.

Sixth. Where he shall fail to give additional bond and sureties, as required by the Court; or the Court may, without such application for any such cause, in cases of an emergency, remove such executor or administrator instantly, without citation. [As amended by Act in force March 7, 1883. S., p. 151.

I. An administrator can only be removed upon the verified petition of a surety or co-administrator or of some one interested in the estate. The petition should show the nature of the interest, by alleging the facts constituting it.—-Vail v. Given, 55 Ind. 59.

2. The only judgment the Court can render in such case is one removing or refusing to remove the administrator. This statute is not mandatory; its action is largely discretional.-Williams v. Tobias, 37 Ind. 345.

3. The widow may apply for removal.- Evans v. Buchanan, 15 Ind. 438.

4. A neglect to file reports and inventories within the time prescribed by law is good cause for removal.- Pace v. Oppenheim, 12 Ind. 533; Evans v. Buchanan, 15 Ind. 438.

5. Illiteracy is not good cause for removal.- Gregg v. Wilson, 24 Ind. 227.

2246. Citation. 24. On the filing of such application or upon the order of the Court, the Clerk shall issue a citation to the person complained against, requiring him to appear and answer; which citation shall be served on him ten days before the hearing of the cause.

2247. Notice to non-resident. 25. If such executor be not a resident of the State, notice of the filing of such application shall be given, three weeks successively, in some newspaper published in the county where such application is filed, or, if none be printed therein, then in some newspaper printed in this State nearest thereto.

2248. Hearing. 26. At the term of the Court next after notice has been given, the Court shall proceed to hear the proofs and allegations of the parties; and, upon such hearing, may examine such executor or admin. istrator on oath.

2249. Costs on removal. 27. If the determination of the Court be against the application to remove, the costs of the proceedings may be taxed against the applicants; but if such determination be against such executor or administrator, he shall be removed and his letters superseded immediately, or new or additional bond or surety be required, as the case may be, and the costs of the proceedings be taxed against him personally.

2250. Time for new bond. 28. If new or additional bond or other and additional sureties are required, two days' time shall be allowed therefor; when, if such order be not complied with, the Court shall remove such executor or administrator, and supersede his letters.

2251. Effect of marriage. 29. Whenever the ground of complaint is that any executrix or administratrix, being an unmarried woman, has, since the granting of letters, married, the Court shall not supersede such letters and remove her, if her husband will signify his assent, in writing, filed in open Court, to her continuing as such, and if she shall give further bond and surety to the satisfaction of the Court, if such surety be required.

2252. Application by surety for release. 30. Any surety upon any bond of any executor, administrator, administrator with the will annexed, or de bonis non, may apply to the Circuit Court approving such bond to be released therefrom, by filing his request therefor with the Clerk of said Court, and giving ten days notice thereof to the principal in such bond. Upon proof of such notice, the Court shall order such principal, within a time to be fixed by the Court, not exceeding five days, to execute a new bond with penalty and sureties to the approval of the Court. Upon failure to execute such new bond within the time limited, he shall forthwith be removed by the Court; and such surety shall, as soon as such new bond is furnished or such principal removed by the Court, be released from any liability for any malfeasance or misfeasance of such principal thereafter occurring, but shall remain liable for his prior acts and omissions. And if a new bond be executed, the principal and sureties therein shall be and continue liable for the administration of the estate or execution of the will,

as the case may be, in like manner and to the same extent that the obligors in the original bond would have been bound had it continued in force. 1. This provision applies to both original and additional bonds given in the course of the trust. It is, perhaps, the right of a surety hereunder to be discharged without any reason except his own request therefor.-Kendrick v. Wilkinson, 18 Ind. 206. 2. When the sureties, upon their application, are discharged, and the principal gives a new bond, which is approved, continuing him in the trust, they are released, without any formal order, from further liability therein.Lane v. State, 27 Ind. 108. 3. The release of the old and giving new bond and sureties is no defense to a complaint on the old bond for a prior breach thereof.-Page v. Page, 63 Ind. 209.

2253. Intermeddling after removal. 31. Whenever any executor or administrator is removed and his letters are superseded, if he, at any time afterward, unlawfully intermeddle with such estate, he shall be attached, and imprisoned not less than ten days nor more than one month, by the proper Circuit Court, upon complaint of any one interested.

1. Where an administrator resigns his trust before completing full administration thereof, he must pay the money of the estate in his hands to his successor. If he fail so to do, he may be sued therefor, without previous demand. Lane v. State, 27 Ind. 108.

2254. Appointment of successor. 32. Whenever any executor or administrator is so removed as aforesaid, all his power shall cease, and his acts as such be void; and the Court shall appoint his successor, to whom letters de bonis non shall issue.

2255. Embezzlement. 232. In addition to removing him, if any executor or administrator shall embezzle or conceal any of the property of the decedent, the Court shall attach his person and property, and examine him under oath touching such property; and on his refusing to answer in such examination, or to deliver up such property, or secure the value thereof to the persons interested in such estate, with ten per cent. damages thereon, shall commit him to jail until the order of the Court be complied with or he be discharged according to law.

I. Where the Court is satisfied that a removed administrator or executor has assets · of the estate in his hands which he refuses to surrender, it may compel him to deliver them up. Kelley v. Weddle, 1 Ind. 550.

2. If a Court revoke letters of administration, it will be presumed the same Court granted them.-State v. Johnson, 7 Blackf. 529.

2256. Citation and attachment. 233. In case of an unnecessary delay on the part of such executor or administrator, the Court may, by citation and attachment, compel him to render his account.

2257. Acts, when valid. 33. All lawful acts done by executors or administrators whose authority shall cease, or by administrators before notice of a will duly proved, shall be valid.

2258. Intermeddling. 34. Every person who shall unlawfully intermeddle with any of the property of a decedent, shall be liable in an action therefor in any Court of competent jurisdiction. Such action may be brought by the executor of the decedent or the administrator of his estate (or if there be none such, then by any creditor or heir of the decedent), and shall be for the use of the estate of the decedent. The defendant in such action may be examined, under oath, touching such alleged intermeddling; and testimony thus elicited shall not be used against him in any prosecution. The defendant shall be liable in such action to a judgment for the full value of the property converted, or to the extent of the injury

to said estate occasioned by such intermeddling, and ten per cent, damages in addition thereto. Execution on such judgment shall not be subject to stay of replevin-bail, and shall be without relief from valuation or appraisement laws, and returnable in ninety days. The Court may adjudge a return to the executor or administrator (or, if there be none, to such person for the time being as the Court may appoint) of any goods or choses in action remaining in the control of the defendant, and may enforce compliance with any judgment in the premises by attachment and imprisonment, in the discretion of the Court. If no administration of the estate be pending, the Court shall provide for the safe-keeping of the assets or damages recovered, until an executor or administrator, as the case may be, shall be duly appointed. Any creditor or heir recovering judgment as aforesaid shall be allowed a reasonable compensation therefor out of the assets of said estate by the Court in which the estate is administered.

1. In a proceeding by a creditor, under this section, there can be no personal judg ment but only that the intermeddler shall account to the Court in favor of the estate for the full value of the property and ten per cent, thereon.—McCoy v. Payne, 68 Ind. 327; Goff . Cook, 73 id. 351.

2. The legally appointed executor or administrator, as well as creditor, may sue an executor de son tort. The degree of unlawful intermeddling is not very material; and sometimes a slight circumstance will hold the party liable as such.-Leach v. Prebster, 35 Ind. 415; Ferguson v. Barnes, 58 id. 169.

3. Mere acts of kindness and charity in taking care of the property of a decedent will not make the party liable as an executor de son tort.-Brown v. Sullivan, 22 Ind. 359; Robinson v. Isenhower, 47 id. 199.

4. The person sued as executor de son tort is entitled to credits for the amount paid by him to the proper use of the estate.-Reagan v. Long, 21 Ind. 264.

2259. Notice of appointment. 35. Every executor or administrator, within thirty days after his appointment, shall give notice thereof by publi cation, three weeks successively, in some newspaper printed and published in the county, if any there be, and if not, by publishing the same in some newspaper printed and published nearest thereto; and such notice shall state whether the estate is probably solvent or insolvent. A copy of such notice, with proof of such publication and dates, shall be filed by the executor or administrator with the proper Clerk, within thirty days after the publication is complete.

1. The commencement of an administration as to the filing of claims by creditors dates from the time of giving notice.-Floyd v. Miller, 61 Ind. 224.

2260. Inventory. 36. Every executor or administrator, within sixty days after his appointment, shall make out a true and complete inventory of the personal estate of the decedent which shall have come to his knowledge, including all debts, demands, stocks, moneys, and goods,