[1881 S., p. 423. In force September 19, 1881.]

2561. (2405.) When and how made.-179. When the deceased shall have died intestate, the surplus of his estate remaining in the hands of the executor or administrator, after the payment of debts and expenses of administration (and in case the deceased died testate, after the payment of legacies also), shall be distributed to the legal heirs of the deceased according to the laws of this state in force at the time of his death, unless he was, at his death, an inhabitant of another state, in which case the surplus arising from the personal estate of the decedent shall be distributed according to the laws of that state; or if administration of his estate be pending in such foreign state, such surplus may, under the order of the court, be paid over to the executor or administrator appointed in such foreign state. If any part of such surplus shall have been derived from the sale of the decedent's real estate, by the executor or administrator, for the payment of debts or legacies, such part shall be distributed to the heirs or devisees to whom the real estate descended or was devised, according to their respective interests therein by descent or under the will.

The personal estate of a decedent, no matter where situate, is to be distributed in accordance with the laws of the state where the decedent resided at his death. McClerry t. Matson, 2 Ind. 79; Thieband v. Sebastian, 10 Ind. 454; Warren v. Hofer, 13 Ind. 167. When a will gives the executor control of the estate devised to minors during their minority, the guardian of such minors is not entitled to the possession of such estate. Branch v. Holcraft, 14 Ind. 237.

Legatees are not entitled to the possession of either general or specific legacies without the consent of the executor. Crist v. Crist, 1 Ind. 570.

Legatees can not claim the possession of legacies until after the debts of the testator are paid. Highnote v. White, 67 Ind. 596.

If a legatee is indebted to the estate, such indebtedness should be retained out of his legacy, and the claims of the estate has preference over the general judgment creditors of the legatee. Koons v. Mellett, 121 Ind. 585; Fiscus v. Fiscus, 127 Ind. 283; New v. New, 127 Ind. 576.

2562. (2406.) Proof of title.-180. When a final settlement account shall have been filed, and notice given to the heirs, devisees and legatees to prove their claims to the surplus, as herein before provided, they shall appear before the court, in person or by attorney, and, in the case of infants and persons of unsound mind, by their guardians, and make proof of their heirship or other title to such surplus.

(As amended, Acts 1883, p. 162. Ell. Supp., section 408. In force March 7, 1883.) See section 2545.

2563. (2407.) Advancements, how reckoned.-181. If any child or other lineal descendant of such deceased person shall have been ad

vanced by the deceased, by settlement or portion of real or personal estate, the value thereof shall be reckoned with that part of the surplus of the personal estate which shall remain to be distributed among the children; and if such advancement be equal or superior to the amount which would be distributed to such child as his share of such surplus and advancement, then such child or descendant, or those representing either of them, shall be excluded from any share in the distribution of such surplus. But if such advancement be not equal to such amount, such child or descendant, or those taking as their representatives, shall be entitled to receive so much only as shall be sufficient to make all the shares of all those entitled to be equal, as near as can be estimated.

See sections 2636-37.

If a father purchases lands with his own means and takes title in the names of his children, it is deemed an advancement. Stanley v. Brannon, 6 Blkf. 193; Hodgson v. Macy, 8 Ind. 121; Higham v. Vanosdol, 125 Ind. 74.

A voluntary conveyance of land by a parent to a child is presumed to be an advancement. Woolery v. Woolery, 29 Ind. 249; Dille v. Webb, 61 Ind. 85; Ruch v. Biery, 110 Ind. 444; Higham v. Vanasdol, 125 Ind. 74; Scott v. Harris, 127 Ind. 520.

Proof may be received to repel the presumption that a conveyance of property is an advancement. Hodgson v. Macy, 8 Ind. 121; Shaw v. Kent, 11 Ind. 80; Dillman v. Cox, 23 Ind. 440; Woolery v. Woolery, 29 Ind. 249; Dille v. Webb, 61 Ind. 85.

Whether a conveyance of property is an advancement or not, is purely a question of intention on the part of the grantor. Dillman v. Cox, 23 Ind. 440; Woolery v. Woolery, 29 Ind. 249; Ruch v. Biery, 110 Ind. 444.

Declarations of an ancestor made at the time of the conveyance are admissible to show the character of the transaction. Woolery v. Woolery, 29 Ind. 249; Duling v. Johnson, 32 Ind. 155; Harness v. Harness, 49 Ind. 384; Hamlyn v. Nesbit, 37 Ind. 284. Declarations of the ancestor prior to the taking possession of the property by the heir, may be proven to show the intention of the ancestor. Joyce v. Hamilton, 111 Ind. 163.

The ancestor must divest himself of all interest in the property in order that a conveyance shall be an advancement. Joyce v. Hamilton, 111 Ind. 163; Herkimer v. McGregor, 126 Ind. 247.

Advancements are regulated exclusively by statute. Barnes v. Allen, 25 Ind. 222. Money borrowed from the ancestor or estate by an heir may be treated as an advancement. Stokesberry v. Reynolds, 57 Ind. 425; New v. New, 127 Ind. 576.

A widow can not claim any greater interest in the remaining estate because of advancements made to heirs. Ruch v. Biery, 110 Ind. 444.

The widow of a decedent may be a competent witness as to advancements to heirs. Scott v. Harris, 127 Ind. 520.

A widow can not be charged with advancements so as to reduce the interest given her by law in the estate. Barnes v. Allen, 25 Ind. 222.

In the division of estates where advancements have been made, the value of the remaining estate is added to the advancements, and then each heir made equal by the distribution of the remaining estate, if that can be done. Scott v. Harris, 127 Ind. 520; Clark v. Helm, 130 Ind. 117.

Heirs who have received in advancements more than their share of the estate, can not be made to refund in order to make other heirs receive an equal portion. Clark v. Helm, 130 Ind. 117.

In order to carry out the intention of a testator where advancements have been made,

heirs not fully advanced may receive interest on what is due them from the death of the testator. Clark v. Helm, 130 Ind. 117.

2564. (2408.) What not an advancement.-182. The maintaining, or educating, or giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement within the meaning of the last preceding section.

2565. (2409.) Duty and order of court.-183. The court, upon hearing of the proof, shall order the distribution by the clerk, executor or administrator, among the parties applying and proving their titles to their respective shares in such surplus, and, if any surplus remains undistributed, it shall be paid into and retained in court until such persons as shall not have appeared and proved their interests in such surplus shall appear as aforesaid and make such proof, when further distribution shall be ordered by the court. If it shall appear to the court that any person claiming an interest in such surplus is an infant or of unsound mind, and has no guardian, the court may appoint a guardian ad litem, to appear for such person and protect his interests in the distribution of such surplus.

(As amended, Acts 1883, p. 162. Elliott's Supp., section 409. In force March 7, 1883.) In determining to whom money paid into court for distribution belongs it is proper to consider the amount each heir may have received. Roberts v. Huddleston, 93 Ind. 173.

A petition by a widow for payment to her of her share of an estate for distribution need not aver that she had not abandoned her husband and was not living in adultery at his death. Sherwood v. Thomasson, 124 Ind. 541.

An application for distribution of the surplus of an estate is not triable by jury. Sherwood v. Thomasson, 124 Ind. 541.

A widow of a decedent is a competent witness on an application for a distribution of the surplus of an estate. Sherwood v. Thomasson, 124 Ind. 541.

2566. (2410.) Bond to refund.-184. In making such order of distribution, the court may require of the distributees respectively, before receiving their shares, to file in the office of such clerk a bond with sufficient surety, payable to the state of Indiana, to be approved by the court or clerk, conditioned for the refunding of their ratable proportions of the estate to any heir who may afterward appear; but no heir shall bring suit on such bond unless he was a minor, insane, or a non-resident of this state at the time of such distribution.

See section 2536.

Heirs or legatees may be liable to refund what they have received for the payment of debts although no bond is executed. Smith v. Smith, 76 Ind. 236.

2567. (2411.) Real estate of absent owner.-185. If at the final settlement of an estate there remain real estate of the decedent undisposed of, and there be no executor authorized by will to take charge thereof, and no heirs or devisees entitled thereto shall appear and take possession of the same, the circuit court in which such final settlement was made shall direct the administrator who settled said estate to lease such real estate, if it be susceptible of producing rent, for one year, taking bond from the lessee, with sufficient surety, for the payment of

rent and taxes on the real estate and the keeping of the same in good order. Such administrator shall render to the court, whenever required, a verified account of such renting, and pay into court any moneys arising therefrom, after deducting costs and expenses allowed by the court.

See section 2528.

An administrator is not authorized to take possession of lands,except in the absence of the heirs and by the order of the court thereto. Comparet v. Randall, 4 Ind. 55.

2568. (2412.) Same subject.-186. Such court may, from time to time, order the re-leasing of such real estate, in case the heirs or devisees thereof do not appear and establish their title, until the expiration of five years after such final settlement; when, if no heirs appear, the court shall order such administrator to sell such real estate under the same regulations as are provided in case of sales of real estate where the personal is insufficient to pay debts, and upon the purchase money therefor being paid into court, the clerk shall pay the same to the treasurer of the county, who shall pay it to the treasurer of state, on whose books it shall be credited to the unknown heirs of the deceased.

2569. (2413.) Appearance of owner.-187. If at any time after such final settlement, and before the sale of said real estate, as provided in the last preceding section, the heirs or devisees appear in such court and prove their title to said real estate, the court shall suspend further proceedings touching the leasing or sale thereof; and if such real estate be then leased, the court shall order the administrator holding such lease to pay over the rents, and assign the same and the bond for the payment of the rent, to such heirs or devisees, and discharge him. from further duties in the premises, and shall tax the costs and expenses incurred in the execution of such trust to such heirs or devisees. 2570. (2414.) Same subject.-188. If at any time after the receipt of the proceeds of such estate by the treasurer of state, the heirs or devisees of such decedent appear before the court in which the estate was settled, and prove their heirship, such treasurer of state, on a certified copy of the record of such proceeding, signed by the clerk of such court and attested by his official seal, being presented to him, shall pay to such heirs the amount of their shares of such estate in the state treasury.

2571. (2415.) Money of absent owner.-189. If at the expiration of two years from the final settlement of an estate, no proof of heirship or title by will shall have been made as to all or any portion of the surplus, the court shall direct the same to be paid to the county treasurer, to be by him paid to the treasurer of state, who shall enter the same on his books to the credit of the unknown heirs of the decedent.

If no claim is made within two years from the settlement of an estate to the surplus for the distribution to heirs, the court should order the same paid into the county treasury. Fuhrer v. State, er rel., 55 Ind. 150.

A child properly adopted under the laws of another state may inherit property in

this state and thus prevent the property from escheating. State, ex rel., v. Meyer, 63 Ind. 33.

This section does not require the payment of money into the county treasury where proof of heirship is made and the money is not called for within two years after final settlement. State, ex rel., v. Taggart, 88 Ind. 269.

If money is not paid into the county treasury that should be so paid under this section the proper officers may bring suit therefor. Fuhrer v. State, ex rel., 55 Ind. 150; State, ex rel., v. Meyer, 63 Ind. 33; Reid v. State, ex rel., 74 Ind. 252; State, ex rel., v. Witz, 87 Ind. 190.

2572. (2416.) Report to state auditor.-190. The clerk of the circuit court shall report to the auditor of state, within thirty days after the same is paid into the court, the amount of money belonging to unknown heirs which has been directed to be paid to the county treasurer, with the names of the decedent and the executor or administrator; and such auditor shall enter the same on his account against the treasurer of state, who shall order suit to be brought against all officers on their bonds who are delinquent in the management of the

same.

2573. (2417.) Notice to absentees.-191. The court may direct notice to such unknown heirs of the pendency of such proceedings to be given at any time before such five years have elapsed in any newspaper printed and published in the United States.

2574. (2418.) Liability of executor or administrator.-192. Any administrator failing to pay into court any moneys received on account of the rent or sale of real estate of unknown heirs or devisees, when required to do so by the provisions of this act or by the court, shall be liable on his bond therefor; and in the absence of such owners, suit on the bond shall be prosecuted by the prosecuting attorney, who shall be allowed compensation for his services out of the damages recovered.

SEC.

ARTICLE 14.-ESTATES UNDER FIVE HUNDRED DOLLARS.

2575. Widow's petition-Appraisement.

2576. Clerk's duty-Decree.

SEC.

2577. Contest and proceedings thereon. 2578. Certificate, and its effect.

[1881 S., p. 423. In force September 19, 1881.] 2575. (2419.) Widow's petition-Appraisement.-193. If the widow of a decedent, or any one in her behalf, shall file a petition in the proper clerk's office that the estate of such decedent, real and personal, is not worth over five hundred dollars, such clerk shall select one disinterested householder of the county, and such widow, on her part, another, as appraisers, who shall proceed to inventory and appraise each solvent demand due the deceased, and each article of personal estate, other than those exempt by law from administration, and each tract of real estate; which inventory and appraisement they shall return to such clerk's office, when such clerk shall cause them to take and subscribe an oath that such appraisement is a true valuation of all the personal and real estate of the decedent exhibited to them. And the widow shall take and subscribe an oath, to be filed with such