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Sec. 115. All demands against the estate of any testator or intestate shall be divided into classes, in manner following, to-wit: First: All funeral and other expenses attending the last sickness, shall compose the first class. Second: All expenses of proving the will, and taking out letters testamentary or of administration, and settlement of the estate, and the physician's bill in the last illness of the deceased, shall
the second class. Third: Where any executor, administrator or guardian has received money as such, his executor or administrator shall pay out of his estate, the amount thus received and not accounted for, which shall compose third class. Fourth: All other debts and demands of whatsoever kind, without regard to quality or dignity, which shall be exhibited within two years from the granting of letters as aforesaid, shall compose the fourth and last class. And all demands not exhibited within two years as aforesaid, shall be forever barred, unless such creditor shall find other estate of the deceased, not inventoried or accounted for by the executor or administrator; in which case, his claim shall be paid, pro ruta, out of such subsequently discovered estate; saving, however, to femes covert, infants, persons of unsound mind, or imprisoned, or beyond the seas, the term of two years after their respective disabilities be removed, to exhibit their claims.
Sec. 116. The manner of exhibiting claims against the estate of any testator or intestate, may be by serving a notice of such claim on the executors or administrators, or presenting them the account, or filing the account, or a copy thereof, with the court of probate.
Sec. 117. When a claim shall be filed, or suit brought, against any such executor or administrator, and it shall appear on trial, that such claimant or plaintiff is indebted to such executor or administrator, it shall be lawful for such court of probate to give judgment therefor, and issue an execution, or any other final process, which a justice of the peace might issue in like cases.
Sec. 118. Persons having claims against estates, upon giving the executor or administrator ten days' notice of the time they intend to present the same to said court, the court, upon examination, shall allow or reject such claims: Provided, The court may allow further time for either party to produce other or further evidence in his favor: Provided, also, That judgments regularly obtained, and a copy thereof duly certified and filed with the court of probate, shall be taken as duly proven; and all instruments in writing, signed by the testator or intestate, if the hand writing be proven, and nothing be shown to the contrary, shall be deemed duly proved.
Sec. 119. No person making a claim against the estate of any testator or intes tate, shall be permitted to prove the same by his or her own oath, except in cases specified in section ninety-five hereof: but said court may, in its discretion, before giving judgment against any executor or administrator, require the claimant to make oath that such claim is just and unpaid: Provided, That the amount of such judgment shall not be increased upon the testimony of the claimant.
Sec. 120. All claims and demands against estates, when allowed by the court of probate as aforesaid, shall be classed and paid by the executor or administrator, in the manner provided in this chapter, commencing with the first class; and when the estate is insufficient to pay the whole of the demands, such demands in any one class shall be paid, pro rata, whether the same shall be due by judgment, writing obligatory or otherwise, except in such cases as shall be herein excepted.
Sec. 121. When any executor or administrator shall have any demand against his testator or intestate's estate, he shall be required to file his demand with the court
of probate, as other persons; and the court shall appoint some discreet person to appear and manage the defence for the estate ; and upon a final hearing, said court shall allow said demand, or such part thereof as shall be legally established, or reject the same, as to said court shall appear just. Should an executor or administrator appeal in such case, the court of probate shall appoint some person to defend as aforesaid.
Sec. 122. The court of probate shall make an entry of all demands allowed against estates, and file and preserve the papers belonging to the same, and shall, also, class said demands as is required by this chapter; and when any executor or administrator shall pay any claim before the same is allowed as aforesaid, said court shall require such executor or administrator to establish the validity of such claim by the like evidence as is required in other cases, before the same is classed and he credited therewith.
Sec. 123. All executors and administrators shall exhibit accounts of their administration, for settlement, to the court of probate from which the letters testamentary or of administration were obtained, at the first term thereof which shall happen after the expiration of one year after the date of their letters as aforesaid; and in like manner every twelve months thereafter, or sooner, if required, until the duties of their administration be fully completed.
Sec. 124. Upon each and every settlement of the accounts of any executor or administrator, as provided by this chapter, it shall be the duty of the court, to ascertain the whole amount of moneys which shall have come into the hands of such executor or administrator, belonging to the estate of the deceased, and the whole amount of debts established against such estate ; and if there be not sufficient to pay the whole of the debts, the moneys aforesaid shall be appropriated among the several creditors, pro rata, according to their several rights, as established by this chapter ; and thereupon, the court shall make an order, directing such executor or administrator to pay the claims which have been allowed by the court, according to such apportionments; and the court, upon each and every settlement, shall proceed in like manner, until the whole debts be paid, or the assets exhausted.
Sec. 125. Whenever it shall appear that the personal estate of any person deceased, is insufficient to discharge the debts of such estate, and there is real estate belonging to the same, the court of probate shall make out such an abstract from its records, of the debts and credits of such estate, and of the lands owned by such testator or intestate, from the inventory of such estate, whether the title be complete or not; which abstract shall be presented to the circuit court, by the executor or administrator, who may
then obtain an order to sell the same in the manner hereinbefore directed; and the proceeds of such sales shall be assets in the hands of such executor or administrator, for the payment of debts, and be subject to the same order, by the court of probate, in the payment of debts, as other assets. Sec. 126. If any executor or administrator shall fail
refuse to pay over any moneys or dividend to any person entitled thereto, in pursuance of the order of the court of probate, lawfully made, within thirty days after demand made for such meneys or dividend, the court of probate, upon application made, shall attach such delinquent executor or alministrator, and may cause him to be imprisoned until he shall comply with the order aforesaid, or until such delinquent is discharged by due course of law; and moreover, such failure or refusal on the part of such executor or administrator, shall be deemed and taken in law to amount to a devástavit, and an action upon such executor's or administrator's bond, and against his or their securi
ties, may be forthwith instituted and maintained; and the failure aforesaid to pay such moneys or dividend, shall be a sufficient breach to authorize a recovery thereon.
Sec. 127. Whenever it shall appear that there are sufficient assets to satisfy all demands against the estate, the court of probate shall order the payment of all legacies mentioned in the will of the testator, the specific legacies being first satisfied.
Sec. 128. Where any heir of an intestate has received money, goods, chattels or real estate, from such intestate, if the amount so received shall be charged to such heir by said intestate, the same shall be taken into computation in making distribution of the estate upon being brought into hotchpot, as aforesaid : Provided, That an heir who has received from the intestate, more than his share, shall in no case be required to refund.
Sec. 129. Executors and administrators shall not be compelled to pay legatees or distributees, until bond and security be given by such legatees or distributees, to refund the due proportion of any debt which may afterwards appear against the estate and the costs attending the recovery thereof: such bond shall be made payable to such executor or administrator, and shall be for his indemnity, and filed in the court of probate.
Sec. 130. When, at any time after the payment of legacies or distributive shares, it shall become necessary that the same or any part thereof be refunded for the payment of debts, it shall be the duty of the court of probate, on application made, to apportion the same among the several legatees or distributees, according to the amount received by them, except the specific legacies, which shall in no case be required to be refunded, unless the residue be insufficient to satisfy such debts; and if any distributee or legatee shall refuse to refund, according to the order of the court of probate, made as aforesaid, within sixty days thereafter, and upon demand made, such refusal shall be deemed a breach of his bond given to the executor or administrator as aforesaid, and an action may be instituted thereon to the use of such party entitled ; and in all cases where there may be no bond, an action of debt may be maintained against such distributee or legatee, and the order of the court of probate shall be evidence of the demand.
Sec. 131. Where there are two or more executors or administrators of an estate, and any one of them take all or a greater part of such estate, and refuse to pay the debts of the testator or intestate, or refuse to account with the other executors or administrators, in such case the executor or administrator so aggrieved, may have his action of account, or suit in equity, against such delinquent executor or administrator, and recover such proportionate share of said estate as shall belong to him; and every executor, being a residuary legatee, may have an action of account, or suit in equity, against his co-executor or co-executors, and recover his part of the estate in his or their hands; and any other legatee may have the like remedy against the executors : Provided, That before any action shall be commenced for legacies as aforesaid, the court of probate shall make an order directing them to be paid.
Sec. 132. Actions of trover, detinue or replevin, shall survive for and against executors and administrators, and may be maintained in the same manner and with like effect as such actions could be for or against their testator or intestate, if living.
Sec. 133. When the mortgagee of any lands or tenements shall die, leaving minor heirs, the executors or administrators of such mortgagee shall be, and they are hereby authorized, on recciving the amount due the estate of such deceased mortgagee, to release to the mortgagor the legal title of the said mortgaged premises ; and such deed of release shall be valid.
Sec. 134. Real estate may be mortgaged or leased by executors or guardians : Provided, Such mortgage or lease shall not be for a longer term than until the heir entitled to such estate shall attain the age of twenty-one years, if a male, or eighteen years, if a female.
Sec. 135. Before any mortgage or lease shall be made as aforesaid, the executors or guardians shall petition the court of probate for an order authorizing such mortgage or lease to be made, and which the court may grant, if the interests of the estate may require it: Provided, That the executor or guardian making application as aforesaid, upon obtaining such order, shall enter into bond with good security, faithfully to apply the moneys to be raised upon such mortgage or lease, to the payment of the debts of the testator, or for the benefit of the ward or wards of such guardian: And all moneys so raised, shall be assets in the hands of such executor for the payment of debts, and shall be subject to the order of the court of probate, in the same manner as other assets, or shall be applied to the use of such ward or wards, where the same shall be received by a guardian as aforesaid.
Sec. 136. Executors and administrators shall be allowed, as a compensation for their trouble, a sum, not exceeding six per centum on the whole amount of personal estate, and not exceeding three per cent. on the money arising from the sales or letting of land, with such additional allowances for costs and charges in collecting and defending the claims of the estate, and disposing of the same as shall be reasonable.
Sec. 137. If any executor or administrator shall fail to comply with the provisions of this chapter, or shall fail to comply with any or all of the covenants in his bond, an action may be forthwith instituted and maintained upon such bond, against the principal or securities, or both; and the failure aforesaid shall be a sufficient breach to authorize a recovery, in the same manner as though a devastavit had been previously established against such executor or administrator.
Sec. 158. Appeals shall be allowed from all judgments, orders or decrees of the court of probate, to the circuit court, in favor of any person who may consider himself or herself aggrieved by any judgment, order or decree of the court of probate as aforesaid, and from the circuit court to the supreme court, as in other
Sec. 139. The courts of probate, respectively, shall have power to enforce due observance of all orders, decisions, judgments and decrees which shall, at any time; be made in the discharge of their official duties, and may issue attachments for any contempt offered such court, or its process, by any executor, administrator, witness or other person or persons; and may fine and imprison, or either, all such offenders, in the same manner as the circuit courts may or can do, in all similar cases, except in such cases as have been hereinbefore provided for : Provided, That the fine inflicted in such cases shall in no instance exceed the sum of fifty dollars, nor shall any such imprisonment be extended beyond the term of twenty days.
Sec. 140. For the purpose of enabling the courts of probate respectively, to execute the powers vested in them by this chapter, it shall be the duty of the sheriff of each county in which such courts shall be held, when required by the court of probate, to attend all regular and special sittings of said court, either by himself or deputy, and to keep and preserve good order in the same; and also, to serve and execute all writs of attachment, summonses, subpænas, citations, notices and other processes, which may, at any time, be legally issued by such court of probate, and to make due return thereof. And all such sheriffs shall be entitled to the same fees
and compensation as is, or may be allowed for the time being, for the performance of similar services in the circuit courts, to be taxed and allowed by the court of probate, against the county, party liable, or delinquent, (as near as may be applicable,) according to the rules and practice in the circuit courts respectively.
Sec. 141. In all cases where executors and administrators have been heretofore appointed, and who shall not have completed their respective administrations or executorships, before this chapter takes effect, such executors or administrators shall be deemed to be within the provisions of this chapter, in relation to the revocation of their powers. giving of new or additional bonds, bonds to save securities harmless, and in relation to the payment of debts to creditors, and the remainder of the estate to the distributees, and in relation to the performance of their duties generilly, whenever the provisions of this chapter shall be deemed applicable: And the courts of probate, in such cases, shall cause the settlements to be made, and the administrations completed, according to the rules and regulations herein prescribed, without delay.
APPROVED: March 3, 1845. (AMENDED:-See Appendix, Acts Nos. 34, 35, 36 and 37.]
ties on wolf scalps; certificates thereof
receivable for taxes due the county from the commissioners' court, from which it issued.
Section 1. The county commissioners' court of any county in this State, may hereafter allow such bounty on the big wolf and prairie wolf, of six months old and upwards, us said court may deem reasonable ; said bounty to be paid out of the treasury of the county wherein said wolf or wolves may be taken and killed, upon the certificate of the county commissioners' court; and said certificate shall be receivable by the collector of the county wherein such allowance of bounty may have been made, for any taxes due said county.
APPROVED: March 3, 1845. [AMENDED :
-Sce Appendix, Act No. 38.)