the elder to the younger. The parties accepting the whole must pay to the other parties interested their just proportion of the true value thereof, or secure the same to their satisfaction, or in case of the minority of such party, then to the satisfaction of his guardian; and the true value of the estate must be ascertained and reported by the commissioners. When the commissioners appointed to make partition are of the opinion that the real estate cannot be divided without prejudice or inconvenience to the owners, they must so report to the court, and recommend that the whole be assigned as herein provided, and must find and report the true value of such real estate. On filing the report of the commissioners, and on making or securing the payment as before provided, the court, if it appears just and proper, must confirm the report, and thereupon the assignment is complete, and the title to the whole of such real estate vests in the person to whom the same is so assigned.

The

Payment for equality of partition, by whom

and how.

SEC. 17. When any tract of land or tenement is of greater value than any one's share in the same estate to be divided, and cannot be divided without injury to the same, it may be set off by the commissioners appointed to make partition to any of the parties who will accept it, giving preference as prescribed in the preceding section. party accepting must pay or secure to the others, such sums as the commissioners shall award, to make the partition equal, and the commissioners must make their award accordingly; but such partition must not be established by the court until the sums awarded are paid to the parties entitled to the same, or secured to their satisfaction. SEC. 18. When it to the court from the Estate may be commissioners' report that it cannot otherwise be fairly sold. divided and should be sold, the court may order the sale of the whole or any part of the estate, real or personal, by the executor or administrator, or by a commissioner appointed for that purpose, and the proceeds distributed. The sale must be conducted, reported and confirmed, in the same manner and under the same requirements as provided in Chapter VII. of this Act relating to "The sale of real estate interests therein, and confirmation thereof."

appears

to all parties be

etc.

SEC. 19. Before any partition is made or any estate To give notice divided, as provided in this Chapter, notice must be given fore partition, to all persons interested in the partition, their guardians, agents, or attorneys, by the commissioners, of the time and place when and where they shall proceed to make partition. The commissioners may take testimony, order surveys, and

To make report and partition to be recorded.

When commissioners to make

partition are not necessary.

Advancements made to heirs.

Court may appoint agent to take possession for absentees.

Agent to give bond, and his compensation.

take such other steps as may be necessary to enable them to form a judgment upon the matters before them.

SEC. 20. The commissioners must report their proceedings, and the partition agreed upon by them to the court, in writing, and the court may, for sufficient reasons, set aside the report and commit the same to the same commissioners, or appoint others; and when such report is ́finally confirmed, a certified copy of the judgment or decree of partition made thereon, attested by the clerk, under the seal of the court, must be recorded in the office of the recorder of the county where the lands lie.

SEC. 21. When the court makes a judgment or decree assigning the residue of any estate to one or more persons entitled to the same, it is not necessary to appoint commissioners to make partition or distribution thereof unless the parties to whom the assignment is decreed, or some of them, request that such partition be made.

SEC. 22. All questions as to advancements made, or alleged to have been made, by the decedent to his heirs may be heard and determined by the court and must be specified in the decree assigning and distributing the estate; and the final judgment or decree of the court, or in case of appeal of the district court, is binding on all parties interested in the estate.

Agents for Absent or Interested Parties.-Discharge of Ex

ecutor or Administrator.

SEC. 23. When any estate is assigned or distributed by a judgment or decree of the court, as provided in this Chapter, to any person residing out of and having no agent in this Territory, and it is necessary that some person should be authorized to take possession and charge of the same for the benefit of such absent person, the court may appoint an agent for that purpose, and authorize him to take charge of such estate, as well as to act for such absent person in the distribution.

SEC. 24. The agent must execute a bond to the Territory of Utah, to be approved by the court or judge, conditioned that he shall faithfully manage and account for the estate. The court appointing such agent may allow a reasonable sum out of the profits of the estate for his services and expenses.

SEC. 25. When personal property remains in the Unclaimed hands of the agent unclaimed for a year, and it appears to estate, how disthe court that it is for the benefit of those interested, it posed of. shall be sold under the order of the court, and the proceeds, after deducting the expenses of the sale allowed by the court, must be paid into the county treasury of the county wherein administration is had. When the payment is made, the agent must take from the treasurer duplicate receipts, one of which he must file in the office of the county clerk of such county.

SEC. 26. The agent must render to the court appointing him, annually, an account, showing:

1. The value and character of the property received by him, which portion thereof is still on hand, what sold and for what;

2. The income derived therefrom;

3. The taxes and assessments imposed thereon, for what, and whether paid or unpaid;

4. Expenses incurred in the care, protection and management thereof, and whether paid or unpaid.

When filed, the court may examine witnesses and take proofs in regard to the account; and if satisfied from such accounts and proofs that it will be for the benefit and advantage of the persons interested therein, the court may, by order, direct a sale to be made of the whole or such parts of the real or personal property as shall appear to be proper, and the purchase money to be deposited in the county treasury.

When real and

personal property of absentee

to be sold.

bond.

SEC. 27. The agent is liable on his bond for the care Liability of and preservation of the estate while in his hands, and for agent on his the payment of the proceeds of the sale, as required in the preceding sections, and may be sued thereon by any person interested.

SEC. 28. When any person appears and claims the Certificate to money paid into the treasury, the court making the distri- claimant. bution must inquire into such claim, and being first satisfied of his right thereto must grant him a certificate to that effect, under its seal; and upon the presentation of the certificate to him, the county clerk must draw his warrant on the county treasurer for the amount.

charge.

SEC. 29. When the estate has been fully administered, Final settlement, and it is shown by the executor, or administrator, by the decree, disproduction of satisfactory vouchers, that he has paid all sums of money due from him, and delivered up, under the order of the court, all the property of the estate to the parties entitled, and performed all the acts lawfully required

Discovery of property.

of him, the court must make a judgment or decree discharging him from all liability to be incurred thereafter.

SEC. 30. The final settlement of an estate, as in this Chapter provided, shall not prevent a subsequent issue of letters testamentary, or of administration, or of administration with the will annexed, if other property of the estate be discovered, or if it becomes necessary or proper for any cause that letters should be again issued.

Orders and decrees to be entered in minutes.

How after publication to be made.

Recorded decree

part notice from date of filing.

CHAPTER XII.

Of Orders, Decrees, Process, Minutes, Records, Trials and Appeals.

SEC. 1. Orders or decrees made by the court, or judge, in probate proceedings, need not recite the existence of facts or the performance of acts upon which the jurisdiction of the court or judge may depend, but it shall only be necessary that they contain the matters ordered or adjudged, except as otherwise provided in this Act. All orders and decrees of the court or judge must be entered at length in the record books of the court provided and kept for that purpose.

SEC. 2. When any publication is ordered, such publication must be made daily or otherwise as often during the prescribed period as the paper is regularly issued, unless otherwise provided in this Act. The court, or judge, may, however, order a less number of publications during the period.

SEC. 3. When it is provided in this Act that any or order to im-order or decree of the court, or judge, or a copy thereof, must be recorded in the office of the county recorder from the time of filing the same for record, notice is imparted to all persons of the contents thereof.

Citation, how

directed and

SEC. 4. Citations must be delivered to the person to what to contain. be cited, signed by the clerk and issued under the seal of the court, and must contain:

1. The title of the proceeding;

2. A brief statement of the nature of the proceeding;

3. A direction that the person cited appear at a time and place specified.

SEC. 5. The citation may be issued by the clerk upon Citation, how the application of any party without an order of the judge, issued. except in cases in which such order is by the provisions of

this Act expressly required.

SEC. 6. The citation must be served in the same Citation, how manner as a summons in a civil action.

served.

given by citation

SEC. 7. When personal notice is required, and no Personal notice mode of giving it is prescribed in this Act, it must be given by citation.

served five days before return,

SEC. 8. When no other time is specially prescribed Citation to he in this Act, citations must be served at least five days before the return day thereof.

of real estate

SEC. 9. When a complete description of the real One description property of an estate sought to be sold has been given and published to be published in a newspaper, as required in the order to show sufficient. cause why the sale should not be made, such description need not be published in any subsequent notice of sale or notice of a petition for the confirmation thereof; it is sufficient to refer to the description contained in the publication of the first notice, as being proved and on file in the

court.

SEC. 10. Except as otherwise provided in this Act, Rules of prac the provisions of the Code of Civil Procedure are applic- tice generally. able to and constitute the rules of practice in the proceed

ings mentioned in this Act.

SEC. 11. The provisions of the Code of Civil Pro- New trials. cedure relative to new trials, except in so far as they are inconsistent with the provisions of this Act, apply to the proceedings mentioned in this Act.

and disposed of.

SEC. 12. All issues of fact joined in probate proceed- Issues joined in ings must be tried in conformity with the requirements of court, how tried Chapter II. of this Act, and in all such proceedings the party affirming is plaintiff, and the one denying or avoiding is defendant. Judgments therein, on the issue joined as well as for costs, may be entered and enforced by execution or otherwise by the court, as, in civil actions.

New trial may be moved, how,

etc.

SEC. 13. Either party may move for a new trial upon the same grounds and errors, and in like manner, as provided for civil actions tried by the district court without a jury. SEC. 14. At or before the hearing of petitions and Court to appoint contests for the probate of wills, for letters testamentary or attorney for of administration, for sales of real estate, and confirmations absent heirs, dethereof, settlements, partitions and distributions of estates, or creditors. setting apart homesteads, and all other proceedings where when and what all the parties interested in the estate are required to be

minors and

visees, legatees,

compensation.