TESTAMENTARY SYSTEM.
granted by the orphans court of the county wherein was the probat or
authentication,
to such person as they might be granted to in case of intestacy; and of
the said executor or executrix, so procuring an attested copy, shall not
obtain
letters testamentary in some other county, within seventy days from the
date of
the copy, letters of administration may be granted as aforesaid by the
orphans
court of the county where the will was proved or authenticated, and it
shall not
be incumbent on the party applying for or taking such letters of administration,
to shew that letters testamentary have not been obtained in some other
county
on the copy aforesaid; but such letters of administration shall not be
granted,
if it shall be proved to the court, by affidavit, or certificate under
the seal of
office, or if they shall have reason to believe that such letters testamentary
have
been granted in a county proper for granting them.
4. In case the said sole executor or executrix
shall not have been present at
the authentication or probat, but shall have been within the state, a summons
may issue against him or her, either at the instance of a person interested,
or
ex officio by the orphans court, or (in their recess) the register
of wills of the
county wherein the will was authenticated or proved, returnable not less
than
twenty, nor more than thirty days after date; and of the summons shall
be returned
summoned, and the executor or executrix shall not appear accordingly,
or appearing shall not, within twenty days thereafter, file a bond or bonds
as
aforesaid; or if two such summonses shall be returned non est, and
the party shall
not appear, according to the tenor of the second summons, or appearing
shall
not, within twenty days thereafter, file a bond as aforesaid, letters of
administration
may be granted as aforesaid; provided nevertheless, that in case of sickness
of, or accident to, such executor or executrix, or reasonable excuse made
in his
or her behalf, the court may, at discretion, allow a further time, not
exceeding
forty days after such return or appearance, for filing such bond.
5. If the said sole executor or executrix be
out of the state at the time of
authentication or probat, and shall not, within six months thereafter,
return and
file a bond as aforesaid, letters of administration may be granted as aforesaid;
but in case the said executor be out of the state as aforesaid, and shall
return, at
any time before the expiration of the said six months, in order to expedite
the
granting of letters, there may be a summons, and the same proceedings thereon,
as if he or she had been in the state at the time of authentication and
probat,
and upon the said proceedings, letters of administration may be granted
before
the expiration of six months; but it shall not be held necessary to proceed
by
summons as aforesaid, in case the party be as aforesaid out of the state
at the
time of authentication or probat, and shall return as aforesaid; but letters
of
administration, after the expiration of the said six months, may be granted,
without
such proceeding by summons against the executor or executrix so returning.
6. If there shall be more than one executor
or executrix named in a will containing
any disposition relative to any personal estate, there may be the same
proceedings with respect to each of them as if he or she were the only
executor
or executrix named; and any circumstances under which letters of administration
may be granted, on failure of a sole named executor or executrix, shall
authorise
the granting letters testamentary to one or more of the executors, on the
failure of one or more of the rest; and any circumstances under which letters
of
administration may be granted, on failure of a sole named executor or executrix,
shall authorise the granting of such letters of administration, on failure
of all
the executors; and in no case, where there are several executors named
in a will,
shall letters testamentary be granted to one only, or to any number of
them less
than the whole, or shall letters of administration be granted, until there
shall be
such proceedings against each of them failing as would authorise the issuing
letters of administration in case of the failure of a sole named executor.
7. If any executor or executrix named in a
will shall file, or transmit to the
orphans court of the county wherein the will shall have been authenticated
or
proved as aforesaid, an attested renunciation in writing of his or her
trust, there
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