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sold for the satisfaction thereof, and the officer making the sale must account to the executor or administrator for any surplus in his hands. A judgment creditor having a judgment which was rendered against the testator or intestate in his life time may redeem any real estate of the decedent from any sale under foreclosure or execution, in like manner and with like effect as if the judgment debtor were still living.

SEC. 17. A judgment rendered against a decedent What judgment dying after a verdict or decision on an issue of fact, but be- is not a lien, etc. fore judgment is rendered thereon, is not a lien on the real property of the decedent, but is payable in due course of administration.

ful claims.

or rejection.

SEC. 18. If the executor or administrator doubts the May refer doubtcorrectness of any claim presented to him, he may enter into an agreement, in writing, with the claimant to refer the matter in controversy to some disinterested person to be approved by the probate court or judge Upon filing the agreement and approval of the probate court or judge in Effect of referthe office of the clerk of the court for the county in which ees' allowance the letters testamentary or of administration were granted, the clerk must enter a minute of the order referring the matter in controversy to the person so selected, or if the parties consent a reference may be had in the court and the report of the referee, if confirmed, establishes or rejects the claim the same as if it had been allowed or rejected by the executor or administrator and judge.

how conformed

SEC. 19. The referee must hear and determine the Trial by referee, matter, and make his report thereon to the court in which and its effect. his appointment is entered. The same proceedings shall be had in all respects, and the referee shall have the same powers, be entitled to the same compensation, and subject to the same control as in other cases of reference. The court may remove the referee, appoint another in his place, set aside or confirm his report and adjudge costs as in actions against executors or administrators, and the judgment of the court thereon shall be as valid and effectual in all respects as if the same had been rendered in a suit commenced by ordinary process.

SEC. 20. When a judgment is recovered, with costs, against any executor or administrator, he shall be individually liable for such costs, but they must be allowed him in his administration accounts, unless it appears that the suit or proceeding in which the costs were taxed was prosecuted or defended without just cause.

Liability of executor, etc.,

for costs.

Claims of execu

the estate.

SEC. 21. If the executor or administrator is a credtor, etc., against itor of the decedent, his claim, duly authenticated by affidavit, must be presented for allowance or rejection to the judge of the probate court, and its allowance by the judge is sufficient evidence of its correctness, and must be paid as other claims in due course of administration. If, however, the judge reject the claim, action thereon may be had against the estate by the claimant, and summons must be served upon the judge, who may appoint an attorney, at the expense of the estate, to defend the action. . If the claimant recover no judgment, he must pay all costs, inclnding defendant's reasonable attorney's fees, to be fixed by the court.

Executor neg. lecting to give

notice to creditors, etc,

Executor to

to return statement of claims.

Interest-bearing debt may be paid without presentation of claim.

SEC. 22. If an executor or administrator neglects, for two months after his appointment, to give notice to creditors, as prescribed by this Chapter, the court must revoke his letters, and appoint some other person in his stead, equally or the next in order entitled to the appointment.

SEC. 23. At the time at which he is required to return his inventory, the executor or administrator must also return a statement of all claims against the estate which have been presented to him, if so required by the court, or judge, and from time to time thereafter he must present a statement of claims subsequently presented to him, if so required by the court or judge. In all such statements he must designate the names of the creditors, the nature of each claim, when it became due, or will become due, and whether it was allowed or rejected by him.

SEC. 24. If there be any debt of the decedent bearing interest, whether presented or not, the executor or administrator may, by order of the court, pay the amount then accumulated and unpaid, or any part thereof, at any time when there are sufficient funds properly applicable thereto, whether said claim be then due or not; and interest shall thereupon cease to accrue upon the amount so paid. This section does not apply to existing debts, unless the creditor consent to accept the amount.

CHAPTER VII.

Of Sales and Conveyances of Property of Decedents.

first chargeable.

SEC. 1. All the property of a decedent shall be chargeable with the payment of the debts of the deceased, the expenses of administration, and the allowance to the family, except as otherwise provided in this Act. And the Personal estate said property, personal and real, may be sold as the court Real estate, may direct, in the manner prescribed in this Chapter. There shall be no priority as between personal and real property for the above purposes.

when sold.

SEC. 2. No sale of any property of an estate of a decedent is valid unless made under order of the probate court, except as otherwise provided in this Chapter. All sales must be reported under oath to and confirmed by the No sales valid court before the title to the property sold passes.

except by order of court.

order of sale,

SEC. 3. All petitions for orders of sale must be in writing, setting forth the facts showing the sale to be necessary and, upon hearing, any person interested in the estate may file his written objections, which must be heard Applications for and determined. A failure to set forth the facts showing the sale to be necessary will not invalidate the subsequent proceedings, if the defects be supplied by the proofs at the hearing, and the general facts showing the necessity be stated in the order directing the sale.

order and sale

SEC. 4. When it appears to the court that the estate is insolvent, or that it will require a sale of all the property of the estate of every character, to pay the family allowance, expenses of administration, and debts, there need But one petition, be but one petition filed, but one order of sale made, and must be had but one sale had, except in the case of perishable property, when possible. which may be sold as provided in Section 5 of this Chapter. The court, when a petition for the sale of any property for any of the purposes herein named is presented must inquire fully into the probable amount required to make all such payments, and if there be no more estate than sufficient to pay the same, may require but one proceeding for the sale of the entire estate; in such case the petition must set forth substantially the facts required by Section 16 of this Chapter.

Sales of Personal Property.

SEC. 5. At any time after receiving letters, the ex

depreciating property to be

sold.

Perishable and ecutor, administrator, or special administrator may apply to the court or judge and obtain an order to sell perishable and other personal property likely to depreciate in value, or which will incur loss or expense by being kept, and so much other personal property as may be necessary to pay the allowance made to the family of the decedent. The order for the sale may be made without notice, but the executor, administrator, or special administrator is responsible for the property, unless after making a sworn return, and on a proper showing, the court shall approve the sale.

Order to sell personal prop. erty.

Partnership interests and

how sold.

SEC. 6. If claims against the estate have been allowed, and a sale of property is necessary for their payment, or for the expenses of administration, or for the payment of legacies, the executor or administrator may apply for an order to sell so much of the personal property as may be necessary therefor. Upon filing his petition. notice of at least five days must be given of the hearing of the application, either by posting notices or by advertising. He may also make a similar application from time to time so long as any personal property remains in his hands, and sale thereof is necessary. If it appears for the best interests of the estate, he may, at any time after filing the inventory, in like manner, and after giving like notice, apply for and obtain an order to sell the whole of the personal property belonging to the estate, whether necessary to pay debts or not.

SEC. 7. Partnership interests or interests belonging to any estate by virtue of any partnership formally exist choses in action, ing, interests in personal property pledged, and choses in action may be sold in the same manner as other personal property, when it appears to be for the best interests of the estate. Before confirming the sale of any partnership interests, whether made to the surviving partner or to any other person, the court or judge must carefully inquire into the condition of the partnership affairs, and must examine the surviving partner, if in the county and able to be present in court.

Order of sale, what to direct and what to be first sold.

SEC. 8. If it appears that the sale is necessary for the payment of debts or the family allowance, or for the best interests of the estate and the persons interested in the property to be sold, whether it is or is not necessary to pay the debts or family allowance, the court or judge must order it to be made. In making orders and sales for the payment of debts or family allowance, such articles as are not nec

essary for the support and subsistence of the family of the decedent, or are not specially bequeathed, must be first sold, and the court or judge must so direct.

SEC. 9. The sale of personal property must be made

at public auction for such money or currency as the court Sale of personal may direct, and after public notice given for at least ten property. days by notices posted in three public places in the county, or by publication in a newspaper, or both, containing the time and place of sale, and a brief description of the property to be sold, unless for good reason shown, the court, or judge, orders a private sale or a shorter notice. Public sales of such property must be made at the court house door, or at the residence of the decedent, or at some other public place; but no sale shall be made of any personal property which is not present at the time of sale, unless the court otherwise orders.

Summary Sales of Mines and Mining Interests.

SEC. 10. When it appears from the inventory of the Mines may be estate of any decedent that his estate consists in whole sold, how. or in part of mines, or interests in mines, such mines. or interests may be sold under the order of the court having jurisdiction of the estate, as herein provided.

and what to

SEC. 11. The executor or administrator, or any heir Petition for sale, at law, or creditor of the estate, or any partner or member who may file of any mining company, in which interests or shares are contain. held or owned by the estate, may file in court a petition, in writing, setting forth the general facts of the estate being then in due course of administration, and particularly describing the mine, interest, or shares which it is desired to sell, and particularly the condition and situation of the mines or mining interests, or of the mining company in which such interests or shares are held, and the grounds upon which the sale is asked to be made.

SEC. 12. Upon the presentation of such petition, the court or judge must make an order directing all persons interested to appear before such court, at a time and place specified, not less than four or more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell such mine, mining interests, shares, or stocks, as are set forth in the petition and belonging to the estate. A copy of the order to show cause must be personally served on all persons interested in the estate at least ten

Order to show

cause, how made and on

what notice.

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