tion of such interests, shall cause such finding to be entered of record, and thereupon shall appoint some competent person, resident of the county, as probate commissioner of such court, and in such finding and order of appointment, on proof first heard in open court, shall fix and specify the annual salary of such commissioner and the times of the payment thereof, and shall thereupon cause to be certified to the auditor of such county a copy of such finding and order, which shall be sufficient authority for said auditor to draw his warrant for the payment thereof at the times and in the amounts in said record set forth.' 2370. Oath and term of office.-2. Said commissioner shall take and subscribe an oath for the faithful discharge of his duties, and shall hold his office for the term of four years, subject to the provisions of this act, and for his services as such commissioner shall receive or be allowed no fees, emoluments or compensation whatever, other than the salary fixed by said court and required to be paid out of the treasury of said county as aforesaid, and which salary shall not be increased during his said term of office. 2371. Powers of commissioner-Removal.-3. Said commissioner shall have power to administer oaths, take acknowledgments and do all other acts legally pertaining to said office and necessary to carry into effect the rules or orders of said court, and he may, at any time, be removed by the court for failure to properly discharge the duties of his trust. 2372. Duties to be defined.-4. At the time of the appointment of said commissioner, or as soon thereafter as may be practicable, the court shall define the duties of such commissioner and cause a record thereof to be made upon the order book of said court. 2373. Rules of court-commissioner may enforce.-5. Such court shall have power to make and enforce all necessary rules for the protection of the several trusts pending therein, and the requiring of delinquent guardians, administrators or other trustees to make reports, give new or additional bonds, or discharge any other duty required of them by law, or the rules of said court, and may vest such commissioner with all necessary power in the premises looking to the protection of such trusts and enforcement of the law and rules of said court in reference thereto, and the proper and speedy transaction of the probate business of such court, as the court in its discretion may deem advisable and necessary. 2374. Services, when suspended.-6. At any time after the appointment of such commissioner when such court shall deem that his services may be dispensed with either for a certain or indefinite length of time, without detriment to the business of said court, or the interests of the trusts therein pending, the court shall enter of record its finding to that effect and cause the same to be certified to the auditor of such county, and thereupon during the time so specified in such finding the salary of such commissioner shall cease and his services during said time be dispensed with, the said commissioner to again assume nis duties and receive his salary therefor only when the court shall so order. ARTICLE 2.-LETTERS TESTAMENTARY. SEC. 2375. When and to whom issued. 2376. Executor must be named. 2377. Renunciation. SEC. 2378. Power of executor before letters 2379. Letters with the will annexed. [1881 S., p. 423. In force September 19, 1881.] 2375. (2222.) When and to whom issued.-6. Whenever any will shall have been duly admitted to probate, the clerk of the circuit court in which the same shall have been probated shall issue letters testamentary thereon to the person or persons therein named as executors who are competent by law to serve as such, and who shall appear and qualify. No person shall be deemed competent to serve as an executor who at the time of application for letters shall, upon proof made before such court or clerk, be shown to be First. Under the age of twenty-one years. Third. Who shall be adjudged by said court or clerk incompetent to discharge the duties of an executor by reason of improvidence, habitual drunkenness, or other incapacity. 2376. (2223.) Executor must be named.-7. Every person named in the will as executor, who shall qualify and give bond, shall be named in such letters; and every person not thus named shall be deemed superseded. 2377. (2224.) Renunciation.-8. Any person who is appointed executor, who shall renounce his trust in writing filed with the clerk, or who shall fail to qualify and give bond within twenty days after probate of such will, shall be deemed to have renounced such appointment, and such letters shall issue to any other person named in the will, capable and willing to accept such trust. 2378. (2225.) Power of executor before letters.-9. No executor named in the will shall interfere with the estate intrusted to him, further than to preserve the same until the issuing of letters; but, for that purpose, he may prosecute any suit to prevent the loss of any part thereof. 2379. (2226.) Letters with the will annexed.-10. If there be no person named in the will as executor, or if those named therein have failed to qualify, have renounced, or have been removed, letters of administration with the will annexed shall be granted by the proper clerk or court to any competent residuary legatee named in such will, willing to accept, or if there be none willing to accept, then to a competent specific legatee, or if there be none such willing to accept, then to any competent person, under the same regulations as in granting letters of administration in the case of intestacy. Letters testamentary empowers the testator to administer upon the entire estate whether it is all devised by the will or not. Landers v. Stone, 45 Ind. 404. [1881 S., p. 423. In force September 19, 1881.] 2380. (2227.) To whom issued.-11. At any time after the death of an intestate, the proper clerk or court, having examined the person applying for letters and such persons as may be deemed proper to be examined, under oath, touching the time and place of the death of the intestate, whether he left a will, and concerning the qualifications of such person, and there being no such will, shall grant letters of administration, in their order: First. To the widow or widower. Second. To the next of kin. Third. To the largest creditor applying and residing in the state. Fourth. If no person thus entitled to administer shall apply within twenty days after the death of the intestate, the clerk or court shall appoint a competent inhabitant of the county, to whom the letters shall issue. If the persons having the preference under the statute to letters are eligible and qualified, and make a proper application, letters must be issued to them. Hayes v. Hayes, 75 Ind. 395. Letters issued to a person not entitled thereto remain in force until set aside. Jones v. Bittinger, 110 Ind. 476. If no one having a preference to letters shall apply within twenty days after the death of the decedent, the court or clerk may appoint any competent inhabitant of the county. Bowen v. Stewart, 128 Ind. 507. Letters of administration can not be issued while letters testamentary on the same estate are in force. Landers v. Stone, 45 Ind. 404. The same person may be appointed administrator of two or more estates. Wright v. Wright, 72 Ind. 149. 2381. (2228.) In what county.-12. Such letters shall be granted in the county First. Where, at his death, the intestate was an inhabitant. Second. Where, not being an inhabitant of this state, he leaves assets. Third. Where, not being an inhabitant, and dying out of the state, he leaves assets. Fourth. Where, not being an inhabitant, he dies out of the state, not leaving assets in any county thereof, but assets of such intestate shall afterward come into it. Fifth. But where, not being an inhabitant, he shall die out of the state, leaving assets in several counties, or assets of such intestate shall, after his death, come into several counties, letters may be granted in any one of the counties in which such assets may be at the time of his death, or into which they come thereafter; and the administration first lawfully granted shall extend to all the estate of the intestate, and exclude the jurisdiction of administration in the same estate in all other counties. If a non-resident dies in this state leaving no assets here, and none comes into the state after such death, letters can not be issued in this state. A claim in favor of heirs on account of the death of a decedent by negligence, is not such assets as will authorize the issuing of letters in this state. Jeffersonville, etc., Co. v. Swayne, 26 Ind. 477; McCord v. Thompson, 92 Ind. 565. Whenever it appears that letters have been improperly issued, the court may, on its own motion, or on the application of any one, set the same aside. Croxton v. Renner, 103 Ind. 223. 2382 (2229.) Preference.-13. If several persons of the same degree of kindred are entitled to administration, letters may be granted to one or more of them; but males shall be preferred to females, relatives of the whole blood to those of the half blood, and unmarried to married women; and any other competent person may be associated in such administration, the person entitled thereto assenting. If a creditor apply for letters, he shall prove the amount of his debt by affidavit filed with the clerk; and if two or more creditors are equally entitled, the clerk or court shall decide who is to administer. 2383. (2230.) Who not entitled.-14. No letters of administration shall be granted to any person incompetent to serve as an executor; and no such letters shall be granted to a married woman, unless her husband file his consent thereto in writing with the clerk issuing the letters, which consent shall make him, jointly, with her, responsible for her acts in the premises. Married women were competent at common law to act as executors or administrators. Ex parte Maxwell, 19 Ind. 88. When a married woman, with consent of her husband, is appointed administratrix, he is not a co-administrator, and she may sue alone. Jenkins v. Jenkins, 23 Ind. 79. 2384. (2231.) Foreign executor, etc.-15. If, before the granting of letters here, in case any person, not an inhabitant of the state, shall die, leaving assets therein, or assets shall come into it after his death, it shall appear that letters testamentary or of administration with the will annexed have been granted on such estate, by competent authority, in any other of the United States, then the person so appointed, on producing such letters, shall be entitled to letters in preference to all other persons, except creditors, legatees, and heirs of the deceased, entitled to distribution, who are inhabitants of this state. [1861, p. 116. In force March 9, 1861.] 2385. (2232.) Estate of absentee.-1. When any resident of this state shall have absented himself from his usual place of residence, and gone to parts unknown, for the space of five years, leaving property, real or personal, without having made any sufficient provision for the management of the same; and when, in such case, at any time, it shall be made to appear to the satisfaction of the court having probate jurisdiction in the county where such person last resided or where such property is situated, by complaint and proof,-after thirty days' notice to such person by publication in a newspaper of general circulation, published at the capital of the state, and also in a paper published in such county, if there be any, that such property is suffering waste for want of proper care, or that the family of such person are in need of the use and proceeds of such property for their support or education, or that the sale of any such property or part thereof shall be necessary for the payment of his debts, it shall be presumed and taken by such court that such person is dead, and the court shall have jurisdiction over the estate of such person in the same manner and to the same extent as if dead, and shall appoint an administrator of his estate, who shall have all the powers and rights over such estate, and be subject to all the liabilities and duties in relation thereto that appertain to administrators of decedents' estates. Where a person is absent for five years without tidings, letters of administration may issue on his estate. Baugh v. Boles, 66 Ind. 376; Jones v. Detchon, 91 Ind. 154. A conveyance by the heirs of an absentee, where there is no administration, and he is in fact alive, vests no title in the purchaser. Fleetwood v. Brown, 109 Ind. 567. [Acts 1883, p. 209. In force March 10, 1883.] 2386. (E. S. 421.) Presumption of death of absentee.-1. The presumption of death recited in the first section of the said act above entitled as amended, in the case of any person who, since the passage of said act and the amendment above recited, has absented himself from his usual place of residence and gone to parts unknown, or who has not been heard of for the period of five years, shall relate back to the time of the first disappearance of such absentee; and it shall be presumed and taken by all courts that such absentee was dead on the first day of his disappearance: Provided, however, That this section. shall not apply to any suit now pending; neither shall a party holding or entitled to the proceeds of any policy of insurance upon the life of such absentee, where the five years have expired prior to the passage and taking effect of this act, and whose duty it is to make proof of the death of such absentee be required, when such proof is not prohibited by the contract with the insurer, to make other proof of death than the fact of the disappearance of the insured for five years continuously. The act and section referred to in this section is the first section of the act of 1859, as amended by the act of March 9, 1861, being the next preceding section. [1859, p. 33. In force March 5, 1859.] 2387. (2233.) Return of absentee.-2. Such administrator shall not be discharged on the return and reappearance of such person until discharged by the court, but shall retain his powers and rights |