and be subject to all his official liabilities and duties until so discharged. 2388. (2234.) Wife of absentee.-3. The wife of such departed person shall have all the rights and independent powers of a feme sole to make contracts and execute deeds and acquittances for herself, from the time of the appointment of such administrator until the return of her husband and the resumption of his rights as such husband. 2389. (2235.) Guardianship of absentee's children.-4. Such court shall have power to appoint guardians of the persons and estates of the minor children of such departed person, who shall have all the powers and rights, and be subject to all the duties and liabilities in relation to such minor children and their estates, which appertain to guardians of minor heirs and their estates, under chapter 12 of Revised Statutes of 1852, being "An act touching the relation of guardian and ward," and of any acts amendatory thereto. [Section 2512 et seq.] 2390. (2236.) Effect of proceeding in absentee's estate.-5. The property of such departed person, real and personal, and all his rights, obligations and choses in action, shall be subject to the same liabilities, incidents, rights, management, and disposal, under this act, in all respects as if such person were known to be deceased; and all adjudication, and acts done by such administrator or guardian shall be valid, effectual, and binding on such person, should he return, as if they were his own acts, the acts and doings of such administrator and guardian being in good faith, and without fraud. [1881 S., p. 423. In force September 19, 1881.] 2391. (2237.) Special letters.-16. If, from any cause, delay is necessarily occasioned in granting letters, or if, before the expiration of the time allowed by law for the issuing thereof, any competent person shall file his affidavit with the clerk of the court that any one is intermeddling with the estate, or that there is no one having authority to take care of the same, the proper clerk or court shall issue special letters of administration to some competent person, to collect and preserve the property of the testator or of the intestate until demanded by an executor or administrator duly authorized to administer the same, when such special letters shall be deemed revoked. 2392. (2238.) Powers of special administrator.-17. Such special administrator may prosecute suits to collect debts, secure the possession of and preserve the property of the decedent; and, under the direction of the court, may sell property of a perishable nature, after appraisement and notice, as in sales of personal property by an administrator. [1857, p. 4. In force February 19, 1857.] 2393. (2239.) Special administrator in contest of will.-1. When any person shall have died testate, and notice of contest of the will of said testator shall have been given, as required by law, it shall be lawful for the proper court to appoint a special administrator, who shall proceed to collect the debts due said testator, by suit or otherwise, and to sell the personal property of said testator, and also to pay the claims against his estate, in the same manner and under the same regulations as are now required of administrators of intestates, so far as the same may be done consistent with the terms of such will. When a judgment is rendered declaring a will invalid, the court may appoint a general administrator, who will succeed the special one, although an appeal has been taken from such judgment. Hayes v. Hayes, 75 Ind. 395. [1881 S., p. 423. In force September 19, 1881.] 2394. (2240.) Vacancy-Administrator de bonis non.-18. If any executor, administrator with the will annexed, or administrator, shall die, resign, remove from the state, or his authority be revoked or superseded, the remaining executor or administrator shall complete the administration of the estate; but if no such executor or administrator be remaining in the state, the proper clerk or court shall grant letters of administration, or of administration with the will annexed, to any person entitled thereto, under the same regulations as in case of issuing the original letters; and which administrator, or administrator with the will annexed, thus appointed de bonis non, shall have the same rights and be subject to the same liabilities as the executor or administrator first appointed. See next succeeding section. An administrator of the estate of an administrator can not administer upon the estate of the first decedent. Ray v. Doughty, 4 Blkf. 115. If the only executor of a will residing in this state dies, or resigns, the letters of a non-resident executor should be set aside and an administrator with the will annexed appointed. Ewing v. Ewing, 38 Ind. 390. An administrator de bonis non may sue on the bond of the former administrator, and may join as defendant the executor of a deceased surety. Myers v. State, ex rel., 47 Ind. 293. If the first administrator receives no assets and is discharged, another administrator may be appointed. Langsdale v. Woollen, 99 Ind. 575; Langsdale v. Woollen, 120 Ind. 78. Under this section an administrator de bonis non can not be appointed so long as a final settlement of the estate remains in force. Croxton v. Renner, 103 Ind. 223; Pate v. Moore, 79 Ind. 20. [Acts 1891, p. 107. In force March 5, 1891.] 2395. Administrator de bonis non after settlement.-1. Whenever hereafter it shall be shown to the satisfaction of any court of probate jurisdiction of this state that the administrator or executor of the estate of any decedent has been finally discharged and that there is no administration of said estate pending in any court of this state, and that there are assets belonging to the estate of said decedent within the jurisdiction of said state that have not been and should be administered, then upon application of any creditor or legatee whose debt or legacy, in whole or in part, remains unpaid, or of any person entitled to share in the distribution of said estate, such court may appoint an administrator de bonis non of said estate, who shall be required to file bonds, inventories and reports, and have the same powers now given to administrators and executors by law and be governed in all things by the laws now in force or that may hereafter be enacted for the settlement of decedents' estates. [1881 S., p. 423. In force September 19, 1881.] 2396. (2241.) Letters conclusive evidence.-19. Letters testamentary and of administration, and of administration with the will annexed, or de bonis non, attested by the clerk, and under the seal of the court issuing them, shall be conclusive evidence of the authority of the person to whom they are granted, until superseded or revoked, and shall extend to all the estate, personal 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. Letters of administration can not be collaterally questioned. Ferguson v. State, 90 Ind. 38. If letters are issued to a person not entitled thereto, they remain in force until set aside. Jones v. Bittinger, 110 Ind. 476. An executor has power to administer upon all the estate of the decedent, whether devised by the will or not. Landers v. Stone, 45 Ind. 404. [1881 S., p. 423. In force September 19, 1881.] 2397. (2242.) Bond-Oath-Examination-Recording.-20. Every person 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 ex amine 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. See section 2613. Joint executors or administrators should each execute a separate bond, and if a joint bond is executed it will be considered the separate bond of each, and each considered as the surety of the other. Prichard v. State, ex rel., 34 Ind. 137; Moore v. State, ex rel., 49 Ind. 558; State, ex rel., v. Wyant, 67 Ind. 25. The bonds given by executors and administrators upon their appointment, are designed to secure the proper application of the personal estate, and the proceeds of lands directed by the will to be sold. Worgang v. Clipp, 21 Ind. 119; Reno v. Tyson, 24 Ind. 56; State, ex rel., v. Cloud, 94 Ind. 174. Sureties on the bonds of executors and administrators are only liable for the future acts of their principals. State, ex rel., v. Hood, 7 Blkf. 127. Sureties on the bonds of executors and administrators are liable for all breaches of such bonds occurring after the execution thereof. Bales v. State, ex rel., 15 Ind. 321; Owen v. State, ex rel., 25 Ind. 371. The bond given by an executor as such will not cover his acts in executing a trust created by the will. Hinds v. Hinds, 85 Ind. 312. If sureties sign a bond at the clerk's office with the expectation that other sureties are afterwards to sign, and the bond is approved without such other sureties signing, the sureties who did sign the bond will be liable thereon. State, ex rel., v. Gregory, 119 Ind. 503. Bonds given to secure the administration of the personal estate do not cover rents derived from the real estate of the decedent. State, ex rel., v. Barrett, 121 Ind. 92. 2398. (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. Unless good cause is shown the acts of the clerk should be ratified by the court. Brown v. King, 2 Ind. 520. Letters issued by the clerk are conclusive upon all persons until set aside, whether confirmed by the court or not. Collier v. Jones, 86 Ind. 342. 2399. (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. All defective bonds executed prior to the taking effect of this act were made good by an act of 1867, p. 27, 2 R. S. 1876, p. 500. 2400. (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, adminis trator, 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. Habitual drunkenness is cause for removal of an administrator without it being shown that he is incapable of discharging his duties. Gurley v. Butler, 83 Ind. 501. 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. When a removal is asked on account of a failure to file an inventory, and the answer filed does not deny the allegations of the petition, the removal may be made without any proof. McFadden v. Ross, 93 Ind. 134. A failure to make and return inventories and sale bills is cause for removal. Pace v. Oppenheim, 12 Ind. 533. Failure to render accounts as required by law is cause for removal. Evans v. Buchanan, 15 Ind. 438. It is within the discretion of the court to remove an administrator for failing to file an inventory. Williams v. Tobias, 37 Ind. 345. 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. When 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. If an unmarried executrix or administratrix marries, and the husband fails to file his consent to her continuing as such, she may be removed. Jenkins v. Jenkins, 23 Ind. 79. 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 |