As soon as there are funds available for the purpose the liens on the property of the decedent should be paid, and before payment of the general debts. Newcomer v. Wallace, 30 Ind. 216; Hunsucker v. Smith, 49 Ind. 114; State, ex rel., v. Brown, 80 Ind. 425. After mortgaged property is exhausted the balance of the mortgaged debt is only an ordinary claim. Cole v. McMickle, 30 Ind. 94; Rodman v. Rodman, 64 Ind. 65; La Plante v. Convery, 98 Ind. 499; Kimmel v. Burns, 84 Ind. 370. Mortgages on personal estate are preferred claims as to such estate, and insolvency of the estate does not affect the same. Evans v. Pence, 78 Ind. 439. A lien upon a judgment should be paid out of the proceeds of the judgment, and the court by an order may compel such payment. Blankenbaker v. Bank of Commerce, 85 Ind. 459. When property is sold to discharge a lien thereon, no portion of the proceeds can be applied on the expenses of administration, funeral expenses or of last sickness, until the lien is fully satisfied. Ryker v. Vawter, 117 Ind. 425. The question as to whether or not a claim should be paid as preferred can be raised in considering the final report by petition or on exceptions. Goodbub v. Hornung, 127 Ind. 181. 2535. (2379.) Legatee, etc., may apply.-153. Any person, entitled to any legacy or to a distributive share of the estate of any deceased person, may at any time previous to the settlement of such estate apply to the court, either in person or by guardian, after giving reasonable notice to the executor or administrator, to be allowed to receive a portion of such legacy or distributive share. (As amended, Acts 1883, p. 158. Ell. Supp., section 398. In force March 7, 1883.) Minor legatees can not appoint an agent or attorney to receive their distributive shares. Tapley v. McGee, 6 Ind. 56. In an application under this section the court may inquire into advancements made to heirs by the decedent. Chapell v. Shuee, 117 Ind. 481. If money is voluntarily advanced to distributees without an order of court, it can not be recovered back. Egbert v. Rush, 7 Ind. 706. See Smith v. Smith, 76 Ind. 236. 2536. (2380.) Bond required.-154. If it appear to the court that there be at least one-third more of assets in the hands of such executor or administrator or in court than will be sufficient to pay all debts and legacies against the estate then known, such court may, in its discretion, allow such portion of such legacy or distributive share to be advanced as it may deem proper, upon satisfactory bond being executed to such executor or administrator, with sufficient penalty and surety for the return of any portion with interest, whenever necessary for the payment of debts, legacies, or claims, or to equalize the shares and legacies among those entitled thereto. No order for distribution should be made unless the distributees are required to file a refunding bond. Tapley v. McGee, 6 Ind. 56. A failure to require a bond to be executed will not invalidate the proceedings as to the parties in court. Chapell v. Shuee, 117 Ind. 481. If a guardian of minor distributees executes a bond under this section, he and his sureties will be liable thereon in case the money received is required for the payment of debts. Chandler v. Morrison, 123 Ind. 254. Failure to require a bond when advances are made to distributees or legatees will not release them from liability to refund. Smith v. Smith, 76 Ind. 236. 2537. (2381.) Legacies, when paid.-155. After the expiration of one year from the granting of letters, the executor or administrator may, if the estate be solvent, discharge the specific legacies and pay the general legacies bequeathed by any will, if there be sufficient assets; and if there shall not be sufficient assets to pay the general legacies, then an abatement thereof shall be made in proportion to the amount of each. 2538. (2382.) Payment to guardian.-156. In case any legatee be a minor, his legacy, if so directed by the court, and no other provision for the payment thereof be made by the will, may be paid to the guardian of such minor; and such court may require an additional bond of such guardian, if the amount of such legacy was not taken into consideration at the time he gave bond as such guardian. SEC. ARTICLE 12.-ACCOUNTING AND SETTLEMENT. 2539. First account. 2540. Payment to creditors by order. 2541. Payment of claims-Penalty for de lay. 2542. Accounts current-Citation. 2543. Verification. 2544. Charges and credits. 2545. Notice of hearing. 2546. Hearing and order. 2547. Order for final settlement or continuance. 2548. Citation to account. 2549. Further accounting. SEC. 2550. Final settlement, after year. 2554. Vouchers. 2555. Creditor may take claim. 2556. Final settlement, with claim pend ing. 2557. Settlement and discharge. 2558. Setting aside settlement. 2560. List of lands unsold [1881 S., p. 423. In force September 19, 1881.] Names of 2539. (2383.) First account.-157. At the end of one year from the issuing of letters and notice thereof, or so soon thereafter as the sale notes for personal property shall mature, the executor or administrator shall file in the court issuing his letters, a true and complete account of all the assets of the estate of the decedent which shall have come to his hands, and of all disbursements made by him, and all credits to which he may be entitled; in such account he shall charge himself with the amount of each inventory of personal and real estate filed by him with each item, of principal or interest, or both, collected by him in addition to the amounts thereof, as shown by the inventories and sale bills filed by him, with the profits realized in the sales of property; with the kind and value of all property of the decedent received by him and not inventoried with each claim and amount thereof due the deceased and not inventoried, and with all income, rents and other increase of the estate received by and chargeable to him as such executor or administrator. He shall also exhibit in such account the total amount of moneys received by him and the total amounts thereof paid out on account of the estate and the particulars and amount of each claim due or owing to the estate and remaining unpaid, and his claim for services, expenses and attorney's fees; such account shall be accompanied by the affidavit of the executor or administrator subscribed by him, that the account is a true and complete exhibit of his administration of the estate, and upon the finding of the court upon any report showing the receipts and expenditures by the executor or administrator, an appeal will lie to the supreme court as in final judgment. (As amended, Acts 1883, p. 159. Ell. Supp., section 399. In force March 7, 1883.) An administrator is chargeable with interest collected on debts due the estate. Ray v. Doughty, 4 Blkf. 115. Accounts filed before final settlement are not conclusive, but may be set aside or corrected at any time before final settlement. Goodwin v. Goodwin, 48 Ind. 584; State, ex rel., v. Wilson, 51 Ind. 96; Fraim v. Millison, 59 Ind. 123; Harrell v. Seal, 121 Ind. 193. 2540. (2384.) Payment to creditors, by order.-158. Upon the filing of any of the accounts required by this act, and upon its appearing to the court that the estate is clearly solvent, the court shall order the distribution of the moneys so received among the creditors of the deceased, whose claims have been allowed according to order of classes before set forth in this act: Provided, That the court may, if the same be found necessary to protect the interest of the estate, or to secure to the widow of the decedent her interest in his real estate, order the payment out of such moneys of any specific lien upon the real estate of the decedent; the court may order the moneys to be distributed by the executor or administrator, or may require the same to be paid in the court and distributed by the clerk thereof. (As amended, Acts 1883, p. 159. Ell. Supp., section 400. In force March 7, 1883.) Executors having power under wills to sell and convey property may be required by the court to properly apply the proceeds of sale. Ex parte Hayes, 88 Ind. 1. 2541. (2385.) Payment of claims-Penalty for delay.-159. Nothing in the preceding section shall operate to prevent or delay the payment of any claim that shall have been allowed, if the estate be clearly solvent; but it shall in such case be the duty of the executor or administrator, as fast as money shall come in his hands, to pay off the claims that have been allowed, giving preference, if any exist at the time of payment, as prescribed in the section prescribing the order of payment in this act. If any executor or administrator fail or refuse. to pay any claim when he has moneys in his hands applicable to that purpose, he shall be chargeable with the interest on such claim for such time as payment thereof shall have been wrongfully delayed, and shall also be liable in a suit on his bond, for the amount of the claim and ten per cent. damage thereon. (As amended, Acts 1883, p. 160. Ell. Supp., section 401. In force March 7, 1883.) So long as there are debts to be paid, a creditor can not complain because the money is not paid into court. State, ex rel., v. Lemonds, 29 Ind. 437. If property is sold to pay a specific lien thereon, and the executor refuses to pay the lien without an order of court before the expiration of a year from the issuing of let ters, the creditor is entitled to such order, and may recover attorney's fees when the contract creating the lien provides for such fees. Jewett v. Hurrle, 121 Ind. 404. 2542. (2386.) Accounts current-Citation.-160. It shall be the duty of the judge, on the first day of each term of court, to call the estates pending in court for reports due from executors.or administrators, as provided for in this act, and if any executor or administrator shall fail to file a report when due, such judge shall enter an order that a citation be issued for such executor or administrator, requiring him to make and file such report, if the same is not filed within twenty days, and compel the making and filing of such report by attachment, and the executor or administrator shall be individually liable for all the cost occasioned by such citation and attachment, said citation to be issued within ten days before the next term of court thereafter. (As amended, Acts 1883, p. 160. Ell. Supp., section 402. In force March 7, 1883.) 2543. (2387.) Verification.-161. When any account is rendered by one or more joint executors or administrators, the court may, in its discretion, allow the same to be verified by any one of them. Section 2388, R. S. 1881, being section 162 of act of April, 1881, relating to settlement of decedents' estates, was repealed by section 35 of act of March, 1883, Acts 1883, p. 164; Ell. Supp., section 415. 2544. (2389.) Charges and credits.-163. Every executor and administrator shall be chargeable, at their value, with all goods, chattels, moneys, rights, credits and effects of the deceased which shall have come to his hands, and which by law are to be administered, although they may not have been included in any inventory; also, with all inventories of real estate sold, leased or mortgaged for the payment of debts or legacies, and with all increase, interest, profit and income, which shall in any way come to his hands from the estate of the deceased. And in accounting therefor, he shall be entitled to credit for the amount taken by the widow of the deceased; the loss, if any, on the sale of personal or real estate; the appraised value of property inventoried by him, and lost or destroyed without any fault or negligence of his own; the losses and deductions by reason of the compounding of debts; the discharge from the collection of insolvent and desperate claims, set-offs, counter-claims, and payments allowed against claims due the estate, and for moneys legally paid out on expenses of administration and claims against the estate and legacies, and advanced to the heirs under the order of court. 2545. (2390.) Notice of hearing.-164. Upon the filing of such account, the clerk shall fix a day, in term, by indorsement on the account, not less than three weeks from the date of filing, when the account will be heard; and if the account is for final settlement, or if partial only, yet in the opinion of the executor or administrator is of sufficient importance to require final action thereon, said executor or administrator shall give notice to all persons interested in said estate to appear in court on such day and show cause why such account should not be approved, which notice shall be given by publication in some weekly newspaper of general circulation, published in the county in which the administration is pending, and by posting at the courthouse door for two successive weeks. If the account is filed for final settlement, the notice shall also require the heirs of the decedent, and all others interested, to appear and make proof of their heirship or claim to any part of said estate: Provided, however, That when an account is filed, and no notice of the hearing of the same is required, it shall not be necessary for the clerk to fix a day in the future for the hearing thereof, but the same may be acted on at any time by the court. (As amended, Acts 1883, p. 160. Elliott Supp., section 403. In force March 7, 1883.) The notice provided for in this section may be signed by the clerk of the court, and is not insufficient because directed to the heirs, creditors and legatees of the estate, instead of to all persons interested. Roberts v. Spencer, 112 Ind. 81. If the time for hearing is fixed by the court instead of being fixed by the clerk, it will be no cause for setting aside the final settlement. Williams v. Williams, 125 Ind. 156. A defective notice will not oust the court of jurisdiction to hear the report. Jones v. Jones, 115 Ind. 504. 2546. (2391.) Hearing and order.-165. The court shall proceed upon the day fixed to hear said account; the executor or administrator shall attend the hearing and submit, if required, to an examination, under oath, touching the account and expenses of administration. Any person interested in the distribution of the assets may appear and contest the correctness of the account, and witnesses may be compelled to attend and testify touching any matters material thereto; if the court find that the account is erroneous, it shall order an immediate amendment or new account as the case may require. If the same be found correct, the court shall approve the same and fix the amount to be paid and allowed for expenses of administration to date. (As amended, Acts 1883, p. 161. Ell. Supp., section 404. In force March 7, 1883.) Exceptions to an account current are proper under this section, only for the purpose of testing its correctness. Christie v. Wade, 87 Ind. 294. Costs made in prosecuting suits in favor of, or defending suits against, an estate, are to be allowed as expenses of administration, but costs adjudged in favor of claimants are paid in the same order as their claims are paid. Taylor v. Wright, 93 Ind. 121. Jury trials are not allowed on exceptions filed to reports of executors or administrators. Taylor v. Wright, 93 Ind. 121. On the trial of exceptions filed to a report the burden of proof is upon the executor or administrator to show the correctness thereof. Taylor v. Burk, 91 Ind. 252. A final settlement is the ascertainment of the final cash balance in the hands of the executor or administrator, and its payment to the proper parties, leaving nothing to be done in the execution of the trust. Dufour v. Dufour, 28 Ind. 421. When there is unreasonable delay in making a final settlement executors or administrators may be charged with compound interest. Johnson v. Hedrick, 33 Ind. 129. An estate can not be finally settled until the expiration of a year after the issuing of letters. Fleece v. Jones, 71 Ind. 340; Shirley v. Thompson, 123 Ind. 454. A final settlement can not be attacked in a collateral proceeding on account of defects in the notice of settlement. Jones v. Jones, 115 Ind. 504. Debts owing by an executor or administrator to an estate must be accounted for on |