one or more legal objections to granting letters to one or more of the executors, or stating that he is advised and believes that there are such objections, and that he intends to file a specific statement of the same.

Where such an affidavit is filed, the surrogate must stay the granting of letters at least thirty days, or until the matter is sconer disposed of. A specification or statement of an objection made as prescribed in this section and not contained in the original affidavit, must be verified by the oath of the objector or his attorney to the effect that he believes it to be true.

[Code, § 2636, last part of second sentence, and third and fourth sentences, and § 2641, all except last sentence, combined and rewritten but without intended change of substance.]

§ 194. Surrogate to inquire into objections.-The surrogate must inquire into an objection filed as prescribed in the last section; and for that purpose he may receive proof by affidavit or otherwise, in his discretion. If it appears that there is a legal and sufficient objection to any person, named as executor in the will, letters shall not be issued to him, except as prescribed in the next section.

[Code, § 2637, without change.]

§ 195. Executor's bond.-In either of the following cases, a person named as executor in a will may entitle himself to letters testamentary thereon by giving a bond as prescribed by law, although an objection against him has been established to the satisfaction of the surrogate:

1. Where the objection is that his circumstances are such that they do not afford adequate security to the creditors, or persons interested in the estate, for the due administration of the estate.

2. Where the objection is that he is not a resident of the state, and he is a citizen of the United States.

But a person against whom there is no objection except that of non-residence is entitled to letters testamentary, without giving a bond, if he has an office within the state for the regular

transaction of business in person, and the will contains an express provision, to the effect that he may act without giving security.

If an executor is required to give a bond he must, before letters are issued to him, qualify as prescribed by law with respect to an administrator of an intestate decedent's estate, and the provisions of this code concerning an administrator's bond apply to an executor's bond, except that in fixing the penalty thereof, the surrogate must take into consideration the value of the real property, or of the proceeds thereof which may come to the hands of the executor by virtue of any provision contained in the will.

[Code, § 2638, without change. The last sentence is § 2645 rewritten and applied solely to executors.]

§ 196. Renunciation; retraction thereof.-A person named as executor in a will may renounce the appointment by an instru. ment in writing, signed by him and acknowledged or proved and certified, in like manner as a deed to be recorded in the county, or attested by one or more witnesses and proved to the satisfaction of the surrogate. Such a renunciation may be retracted by a like instrument, at any time before letters testamentery or letters of administration with the will annexed have been issued to any other person in his place; or, after they have been so issued, if they have been revoked or the person to whom they were issued has died or become a lunatic, and there is no other acting executor or administrator. Where a retraction is so made, letters testamentary may, in the discretion of the surrogate, be issued to the person making it. An instrument specified in this section must be filed and recorded in the surrogate's office.

[Code, § 2639, without change.]

§ 197. Executor failing to qualify or renounce, how excluded.If a person named as executor in a will does not qualify or renounce within thirty days after probate thereof; or if a person

chosen by virtue of a power in the will does not qualify or renounce within thirty days after the filing of the instrument designating him; or, in either case, if objections are filed and the executor does not qualify or renounce within five days after they are determined in his favor, or, in a case specified in section 195 within five days after an objection has been established; the surrogate must, upon the application of any other executor or any creditor or person interested in the estate, make an order requiring him to qualify within a time therein specified and directing that, in default of so doing, he be deemed to have renounced his appointment. Where it appears, by affidavit or other written proof, to the satisfaction of the surrogate, that such an order cannot, with due diligence, be served personally within the state upon the person therein named, the surrogate may prescribe the manner in which it must be served which may be by publication. If the person so appointed executor does not qualify within the time fixed, or within such further time as the surrogate allows for that purpose, an order must be made and recorded, reciting the facts and declaring that he has renounced his appointment as executor. Such an order may be revoked by the surrogate in his discretion and letters testa mentary may be issued to the person so failing to renounce or qualify, on his application in a case where he might have retracted an express renunciation as prescribed in section 196.

[Code, § 2642, all except last sentence, without change. Last sentence of such section is contained in the following section of the revision.]

§ 198. Executors who qualify may execute power.—Where a power to sell, mortgage or lease real estate, or any interest therein, is given to executors as such, or as trustees, or as executors and trustees, and any such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under such a power, made by the executors who shall qualify, shall be equally valid as if the other executors or trustees had joined in such sale.

[Code, § 2642, last sentence, without change.]

§ 199. If disability removed executor entitled to letters.—If the disability of a person under age, or of an alien named as executor in a will, be removed before the execution of a provision of such will is completed, he shall be entitled, on application, to supplementary letters testamentary, to be issued in the same manner as the original letters, and authorized to join in the execution of the will with the persons previously appointed.

[Code, § 2613, first sentence, without change.]

§ 200. When executor deemed superseded.-A person named in a will as executor and not named as such in the letters testamentary or in letters of administration with the will annexed, shall be deemed to be superseded thereby and shall have no power or authority whatever as such executor until he appears and qualifies.

[Code, § 2613, second sentence, without change.]

§201. Application to open decree.-A person interested in the estate of the decedent, who was not a party to the probate proceedings, may apply to the surrogate's court in which the will was proved for an order opening the decree admitting such will to probate. Such application must be made within two years after the entry of the decree, except that when the person entitled to make it is then a minor or insane or imprisoned on a criminal charge or in execution on conviction of a criminal offense, for a term less than for life, the time of such disability is not a part of such two years. A notice of such application must be served on the executor or the administrator with the will annexed and on each person who was a party to the probate proceeding, or, if dead, on his personal or other representative, in the manner required by this code for the service of a citation.

If it appears to the surrogate that such person should have been a party to or was entitled to appear in the probate proceeding, he may make an order opening the decree and permitting the applicant to interpose an answer with the same force and effect as if he had been cited in the original proceeding. This section

does not affect an application under subdivision six of section 44 of this code.

[This section is new. It is a substitute for the proceeding for the revocation of the probate of a will authorized by sections 2647 to 2653 inclusive of the Code. It is proposed to repeal these sections, but the commissioners think that some provision should be made for cases where, through inadvertence or otherwise, persons interested in the estate are omitted from the probate proceeding. In those cases they are of course not parties, and they should be given an opportunity to present any objection to the will which they might have presented if they had been parties to the original proceeding. This section is intended to afford such relief. See Revisers' Preliminary Note.]

§ 202. Hearing; decree.-The testimony of a witness examined on the probate who is out of the jurisdiction of the court, dead, or has become incompetent since the probate, shall be admitted in evidence on the trial of an issue presented by an answer under the last section. If the allegations of the answer are not sustained, the surrogate must make a decree confirming the probate.

[Code, § 2651, applied to proceedings to open the decree.]

§ 203. Suspension of proceedings by executor or administrator with the will annexed.-After service on the executor or administrator with the will annexed of notice of the application to open the decree admitting the will to probate, he must suspend all proceedings relating to the estate, except for the recovery or preservation of property, the collection and payment of debts and such other acts as he is expressly allowed to perform by the order of the surrogate made on notice to the applicant, until a new decree is made admitting the will to probate.

[This section is new. But see Code, § 2650.]

§ 204. Disposition of will after probate.-Except where special provision is otherwise made by law, a written will, after it has been proved and recorded, must be retained by the surrogate, until