ing or succeeding executor or administrator, co-executor or co-administrator of the same estate, for any of the following causes, viz.: First. Failure to inventory the property of the decedent, to return inventories, appraisement-bills, sale-bills, reports, and accounts of sale according to law. Second. Failure to pay money of the estate into Court according to law. Third. Failure to use due diligence in collecting claims due the estate. Fourth. Want of reasonable care in taking solvent sureties to all obligations, to secure the purchase-money of any of the property of the decedent. Fifth. Embezzling, concealing, or converting to his own use such property. Sixth. Negligently permitting any of the property of the decedent to be injured. Seventh. For committing any waste upon the real estate of the decedent, or knowingly permitting the same to be done, when such real estate is in his possession and control as such executor or administrator. Eighth. Failure to render an account of his proceedings whenever required by the Court or the provisions of this Act. Ninth. Non-compliance with any order of the Court touching the estate. Tenth. Any other violation of the duties of his trust. 1. An administrator must insure assets in his hands subject to loss by fire, as prudent men would do with their own property in like circumstances.- Rubottom v. Morrow, 24 Ind. 202. 2. If an administrator lend money of the estate without order to do so, and it is lost, he is liable for waste.-Id.; State v. Johnson, 7 Blackf. 529. 3. An administrator is liable as for waste for any wrong use of the assets in his hands. Johnson v. Hedrick, 33 Ind. 129; Thomasson v. Brown, 43 id. 203. 4. Administrators are not liable for the mismanagement of their co-administrators when they are not themselves culpable. A colleague in the administration of the trust may be passive, without being chargeable.- Ray v. Doughty, 4 Blackf. 115; Davis v. Walford, 2 Ind. 88; Braxton v. State, 25 id. 82. 5. A modal legatee may sue on the bond of an executor.- Heady v. State, 60 Ind. 316. 6. Any misapplication of the trust fund is a conversion of it and a suable breach of the official bond.-State v. Sanders, 62 Ind. 562; Fleece v. Jones, 71 id. 340. 7. A legatee may maintain an action for the conversion of his legacy, and a previous demand is not necessary.-- Nelson v. Corwin, 59 Ind. 489. 8. Heirs-at-law may sue for any wrongful conversion, waste, or mismanagement of the assets of the estate. -State v. Johnson, 7 Blackf. 529; State v. Brutch, 12 Ind. 381; State v. Bennett, 24 id. 383; Owen v. State, 25 id. 371. 2459. Costs-Damages. 235. Such suit may be brought by and on the relation of any such creditor, heir, legatee, surviving or succeeding executor or administrator, co-executor or co-administrator; but no costs shall be taxed in such proceeding, against the estate, unless it be brought by such surviving or succeeding executor or administrator, or co-executor or co-administrator. And the measure of damages in all such suits shall be the value of the property converted, destroyed, embezzled, or concealed; the injury sustained by the estate, or any person interested therein; interest on money retained; such exemplary damages as the Court or jury trying the case may be willing to give; and ten per centum on the whole amount assessed. 2460. No stay or relief. 236. No stay of execution or benefit of valuation or appraisement laws shall be allowed on a judgment on such bond as to the property of the principal; and all damages so collected shall, by the officer collecting the same, be paid into the proper Court, when, after deducting and paying to the relator in such suit a reasonable compensation for his services therein, it shall be disposed of according to the laws regulating the distribution of the property of the decedent. 1. A judgment hereunder may be rendered generally; but if it be rendered repleviable as to sureties and not so as to the principal, it is no cause for reversal, unless a motion was made below to correct it.-Bunnell v. State, 15 Ind. 145. SEC. ARTICLE 19-GENERAL PROVISIONS. 2461. Filing, and proof of publication. SEC. 2464. Executor, etc., may administer oaths. [1881 S., p. 423. In force September 19, 1881.] 2461. Filing, and proof of publication. 237. An executor or administrator whose duty it is to give any of the notices required by the provisions of this Act shall file a copy of every such notice in the office of the Clerk of the Court having probate jurisdiction, with an affidavit thereon. made by such executor or administrator, or a competent witness before some officer duly authorized to administer oaths, stating the times and places when and where such notices were published or set up. 2462. Certified copy is evidence. 238. Such copy of any notice, verified as aforesaid, and duly certified by the Clerk of said Court, shall be received in evidence in any Court in this State, and be deemed sufficient proof of the matters and things therein contained, 2463. Proof aliunde. 239. Nothing contained in the two preceding sections shall preclude such executor or administrator, or any other person, from proving, in any suit or proceeding, that the provisions of this Act respecting such notice have been complied with, although no such copy or affidavit may have been filed as therein required. 2464. Executor, etc., may administer oaths. 240. Every executor and administrator is hereby invested with authority, in the adminis tration of the estate committed to his charge, to administer the oaths and take and certify the affidavits by this Act required to be made by the appraisers of the personal and real estate of the deceased, the clerk of the sale of such personal estate, and persons filing claims against the estate. 2465. Docket and blanks. 241. The Clerk of each Circuit Court shall, under the supervision and direction of the Court and at the expense of the county, procure and keep in his office a general entry, claim, and allowance docket, with printed headings as provided in this Act. [As amended by act in force March 7, 1883. S., p. 163. 2466. Proceedings legalized. 242. All proceedings had in good faith in the administration of estates pursuant to the provisions of sections one and two of an Act approved February 20, 1855, purporting to amend sections sixty-five and sixty-six of the Act for the settlement of decedents' estates, approved June 17, 1852, are hereby legalized. SEC. 2467. To children equally. CHAPTER 7. DESCENT. SEC. 2490. When all to husband or wife. 2468. When and how to grandchildren. sisters. 2493. Widow's rights. 2470. How brothers, sisters and parents 2494. take. 2471. When no heirs under preceding rules. 2479. Advancements. 2480. Advancement, how estimated. wife. Widow's rights. 2495. Widow's rights, in case of mortgage 2496. Adulterous wife. 2499. Wife's rights, in case of conveyances 2500. Wife barred by ante-nuptial provis sion. 2501. Husband barred by ante-nuptial provision. 2502. Wife's jointure. or 2503. Infant wife's jointure. 2482. Courtesy and dower abolished. 2487a. Estoppel of children by deed, when. etc. 2487c. Statute not applicable, when, 2489. When from husband or wife to sur- [1 R. S. 1852, p. 248. 2504. Widow's election as to jointure. to widow and 2508. Wife's right upon judicial sales. In force May 6, 1853.] 2467. To children equally. 1. The real and personal property of any person dying intestate shall descend to his or her children in equal proportions; and posthumous children shall inherit equally with those born before the death of the ancestor. 1. Degrees of kindred in this State are computed according to the rules of the civil law. Descent is governed exclusively by the statute of descent, which provides for every conceivable case.- Murphy v. Henry, 35 Ind. 442; Cloud v. Bruce, 61 id. 171. 2. Under this and the following section, if the heirs be all grandchildren, they take equal shares per capita; great grandchildren inherit, per stirpes, the shares of their ancestors. Cox v. Cox, 44 Ind. 368; Brown v. Taylor, 62 id. 295. 2468. When and how to grandchildren. 2. If any children of such intestate shall have died intestate, leaving a child or children, such child or children shall inherit the share which would have descended to the father or mother; and grandchildren and more remote descendants and all other relatives of the intestate, whether lineal or collateral, shall inherit by the same rule: Provided, That if the intestate shall have left, at his death, grandchildren only, alive, they shall inherit equally. 1. Children have no vested rights in lands owned by the father; neither do they stand to him in the relation of creditors.- Nesbitt v. Trindle, 64 Ind. 183. 2469. When to parents and brothers and sisters. 3. If any intestate shall die without lawful issue or their descendants alive, one-half of the estate shall go to the father and mother of such intestate, as joint tenants, or, if either be dead, to the survivor, and the other half to the brothers and sisters and to the descendants of such as are dead, as tenants in com mon. 2470. How brothers, sisters, and parents take. 4. If there be neither father nor mother, the brothers and sisters of the intestate living, and the descendants of such as are dead, shall take the inheritance as tenants in common. If there be no brothers or sisters of the intestate or their descendants, the father and mother shall take the inheritance as joint-tenants; and if either be dead, the other shall take the estate. 1. The mother of an adopted child dying intestate without brothers or sisters of the natural blood, inherits the whole of his estate under this section.-Barnhizle v. Ferrell, 47 Ind. 335. 2471. When no heirs under preceding rules. 5. If there be no person entitled to take the inheritance according to the preceding rules, it shall descend in the following order: First. If the inheritance came to the intestate by gift, devise, or descent from the paternal line, it shall go to the paternal grandfather and grandmother, as joint-tenants, and to the survivor of them; if neither of them be living, it shall go to the uncles and aunts in the paternal line, and their descendants, if any of them be dead; and if no such relatives be living, it shall go to the next of kin, in equal degree of consanguinity, among the paternal kindred; and if there be none of the paternal kindred entitled to take the inheritance as above prescribed, it shall go to the maternal kindred in the same order. Second. If the inheritance came to the intestate by gift, devise, or descent from the maternal line, it shall go to the maternal kindred in the same order; and if there be none of the maternal kindred entitled to take the inheritance, it shall go to the paternal kindred in the same order. Third. If the estate came to the intestate otherwise than by gift, devise, or descent, it shall be divided into two equal parts, one of which shall go to the paternal and the other to the maternal kindred, in the order above described; and on the failure of either line, the other shall take the whole. 1. The doctrine of tracing back title to a remote ancestor does not apply to our statute of descents. "Ancestor" means any one from whom the estate is immediately inherited.—Murphy v. Henry, 35 Ind. 442; Barnes v. Loyd, 37 id. 523. 2472. Kindred of the half-blood. 6. Kindred of the half-blood shall inherit equally with those of the whole blood; but if the estate shall have come to the intestate by gift, devise, or descent from any ancestor, those only who are of the blood of such ancestor shall inherit. Provided, That on failure of such kindred, other kindred of the half-blood shall inherit as if they were of the whole blood. 1. Hereunder, brothers and sisters of the half blood are only postponed in favor of half-brothers and half-sisters who are of the blood of the ancestor from whom the land descended.-Robertson v. Burrell, 40 Ind. 328; McClanahan v. Trafford, 46 id. 410. 2. "Kindred," in this section, means kindred of the person last seized of the lands.—Aldridge v. Montgomery, 9 Ind. 302; Smith v. Smith, 23 id. 202. 2473. When estate reverts to donor. 7. An estate which shall have come to the intestate by gift or by conveyance, in consideration of love and affection, shall, if the intestate die without children or their descendants revert to the donor, if living, at the intestate's death, saving to the widow or widower, however, his or her rights therein: Provided, That the husband or wife of such intestate shall hold a lien upon such property for the value at the intestate's death, of all improvementes by him or her made thereon, and for all moneys derived from the separate estate of such husband or wife expended in making such improvements. 1. Hereunder, the widow of an intestate who dies childless takes one-third and the donor of the estate two-thirds. Myers . Myers, 57 Ind. 307. 2474. To illegitimate child, from mother. S. Illegitimate children shall inherit from the mother as if they were legitimate, and through the mother if dead, any property or estate which she would, if living, have taken by gift, devise or descent from any other person. [1901 S., p. 288. Approved March 9, 1901.] 2475. When from father to illegitimate child. 1. That the illegitimate child or children of any man dying intestate and having acknowledged such child or children during his life time as his own, shall inherit his estate both real and personal, and shall be deemed and taken to be the heir or heirs of such intestate in the same manner and to the same extent as if such child or children had been legitimate: Provided, That the testimony of the mother of such child or children shall in no case be received to establish the fact of such acknowledgment: And be it further provided, That the provisions of this act shall not apply where the father of the illegitimate child, at his death, had surviving legitimate children or descendants of legitimate children. This section supersedes section 2475 Horner's R. S. 1897. [1 R. S. 1852, p. 248. In force May 6, 1853.] 2476. Bastard, how made legitimate. 9. If a man shall marry the mother of an illegitimate child, and acknowledge it as his own, such child shall be deemed legitimate. 1. If a man marry a woman pregnant with a bastard child, and afterward live with her as his wife, he thereby makes such child, hereunder, his legitimate heir.-Bailey v. Boyd, 59 Ind. 292. 2477. From illegitimate child to mother. 10. The mother of an illegitimate child dying intestate without issue or other descendants shall inherit his estate; and if such mother be dead, her descendants or collateral kindred shall take the inheritance in the order hereinbefore prescribed. 2478. When estate escheats. 11. The estate of a person dying intestate, without kindred capable of inheriting, shall escheat to the State, and shall be applied to the support of common schools, in the manner provided by law. 1. This section is to be construed, in pari materia, with the sections in the Decedents Estate Act on the same subject.-State v. Meyer, 63 Ind. 33. [1883, S., p. 98. In force March 5, 1883.] 2478a. Sale of estates escheated. I. In all cases where estates have escheated, or hereafter shall escheat, to the State, for want of heirs or kindred entitled to the inheritance, the board of commissioners of the county wherein such estate is situated are hereby authorized to dispose of the same by sale, in such manner as may seem best for the interests of the common school fund; and to reinvest the proceeds of such sale in the manner directed by law for the investment of other moneys belonging to the common school fund: Provided, That all real estate, so sold, shall be first appraised by three disinterested freeholders of the county, who shall be first sworn to faithfully perform their duty as such appraisers; and shall not be sold at less than said appraisement: And Provided, further, That in case said real estate fail to sell for the full amount of said appraisement, within six months after being first offered for sale, in such case, said commissioners may order a new appraisement thereof. 2478b. Warranty deed. 2. Upon full payment being made for such lands, a warranty deed therefor, to the purchaser, or his or her heirs or assignees, shall be executed by the county auditor, and be entered in the commissioners' record before delivery. [1 R. S. 1852, p. 248. In force May 6, 1853.] 2479. Advancements. 12. Advancements in real or personal property shall be charged against the child or descendants of the child to whom the advancement is made in the division or distribution of the estate, but if the advancement exceed the equal proportion of the child advanced, the excess shall not be refunded. 1. Conveyances, to operate as advancements, must have been so intended.-Shaw v Kent, 11 Ind. 80; McCaw v. Burk, 31 id. 56; Stokesberry v. Reynolds, 57 id. 425. 2. Declarations before or at the time of making a conveyance are evidence as to the intention of the grantor in advancement.— Harness v. Harness, 49 Ind. 384. 3. Advancements must be considered in partition.- Kepler v. Kepler, 2 Ind. 363; Dille v. Webb, 61 id. 85. |