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 adminis

trator.

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.

If an executor or administrator misapplies the assets of the estate, they and their sureties are liable to persons injured thereby. Fleece v. Jones, 71 Ind. 340; Nelson v. Corwin, 59 Ind. 489; Beardsley v. Marsteller, 120 Ind. 319.

No demand is necessary before an action is brought against an executor or administrator for a conversion of the assets of the estate. Nelson v. Corwin, 59 Ind. 489.

The widow of a decedent may sue on the bond of an administrator for misapplying the assets of the estate to her injury. State, ex rel., v. Mason, 21 Ind. 171.

Heirs may sue on the bond of an administrator for a conversion of the assets of the estate. State, ex rel., v. Bennett, 24 Ind. 383; Owen v. State, ex rel., 25 Ind. 371.

An administrator de bonis non may sue on the bond of a former administrator. Myers v. State, ex rel., 47 Ind. 293.

Legatees and devisees may sue on the bond of an executor for failure to pay a legacy or devise. Nelson v. Corwin, 59 Ind. 489; Heady v. State, ex rel., 60 Ind. 316.

Claimants whose claims have been allowed may sue on the bond of an administrator when he wrongfully refuses to pay their claims. Pence v. Makepeace, 75 Ind. 480; Embree v. State, ex rel., 85 Ind. 368.

An administrator in this state of an estate of a non-resident must use due diligence in collecting claims in this state, though there is an administrator first appointed in another state. State, ex rel., v. McClamrock, 88 Ind. 110.

The tenth clause of this section covers all breaches of the bond of an executor or administrator which are not included in the other clauses of the section. Stanton v. State, ex rel., 82 Ind. 463.

An executor or administrator must account to the estate for debts owing by them to the decedent, although they may become insolvent after their appointment. Condit v. Winslow, 106 Ind. 142.

If an administrator does not use caution in taking security on notes given on the sale of property, he will be liable on his bond therefor. Lindley v. State, ex rel., 116 Ind.

235.

If an administrator loans money of the estate without authority of court he will be liable for any loss that occurs. State, ex rel., v. Johnson, 7 Blkf. 529.

Executors and administrators must adopt such means to prevent loss of the property of the estate by fire, or otherwise, as prudent persons would adopt under similar circumstances. Rubottom v. Morrow, 24 Ind. 202.

A joint executor or administrator is not liable for the acts of his associates in which he did not participate. Ray v. Doughty, 4 Blkf. 115; Davis v. Walford, 2 Ind. 88; Braxton v. State, ex rel., 25 Ind. 82.

Joint executors and administrators executing a joint bond are each liable for the acts of the other. Braxton v. State, ex rel., 25 Ind. 82.

Bonds given by executors or administrators at the time of their appointment only

cover the personal estate and the proceeds of lands directed by will to be sold. Worgang v. Clipp, 21 Ind. 119; Reno v. Tyson, 24 Ind. 56.

Bonds given at the time of obtaining orders to sell lands are only to secure the proper application of the proceeds of such sales. Worgang v. Clipp, 21 Ind. 119.

Bonds given to secure the administration of the personal estate do not cover rents of lands accruing after the death of the decedent. State, ex rel., v. Barrett, 121 Ind. 92. Suits can not be brought on bonds of executors or administrators after the approval of a final settlement until such settlement is set aside. Sanders v. Loy, 61 Ind. 298; Carver v. Lewis, 104 Ind. 438.

If an executor or administrator resigns his trust before the completion thereof, the settlement made at such time need not be set aside before suing on his bond. Parsons v. Milford, 67 Ind. 489; Lang v. State, ex rel., 67 Ind. 577.

Judgments rendered in actions on bonds of executors and administrators are liens on the lands of the defendants from the commencement of the action. Day v. Worland, 92 Ind. 75.

2614. (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 executor or administrator, or coexecutor 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.

Ten per cent. should be added to the whole amount of damages assessed. Potter . State, ex rel., 23 Ind. 607; Baldridge v. State, ex rel., 69 Ind. 166; Stroup v. State, ez rel., 70 Ind. 495.

The judgment must be for the entire liability on the bond, and the money collected and brought into court for distribution. Moody v. State, ex rel., 84 Ind. 433.

The ten per cent. penalty can only be added when money or property has been converted, destroyed, embezzled or concealed. Buchanan v. State, ex rel., 106 Ind. 251. As against sureties the damages can not exceed the penalty of the bond. Meadows v. State, ex rel., 114 Ind. 537.

2615. (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 a 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.

If a general judgment is rendered against all the defendants, objection thereto can not first be made in the supreme court. Bunnell v. State, ex rel., 15 Ind. 145.

The money when collected should be paid into court, and after an allowance to the relator for services, it becomes assets of the estate. Moody v. State, ex rel., 84 Ind. 433 ; Embree v. State, ex rel., 85 Ind. 368.

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

2616. (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.

2617. (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. 2618. (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.

2619. (2464.) Executor, etc., may administer oaths.-240. Every executor and administrator is hereby invested with authority, in the administration 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.

2620. (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, Acts 1883, p. 163. Elliott Supp., section 414. In force March 7, 1883.) The clerk of the circuit court can only purchase books and blanks at the expense of the county under the direction and supervision of the court. Board v. Mitchell, 93 Ind. 307.

2621. (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.

See section 2517.

ᏟᎻᎪᏢᎢᎬᎡ 7.

DESCENT.

[1 R. S. 1852, p. 248. In force May 6, 1853.]

2622. (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.

Neither the common nor civil law canons of descent were ever in force, as such, in this state, but the degrees of kindred are computed by the rules of the civil law. Cloud v. Bruce, 61 Ind. 171; Bruce v. Bissell, 119 Ind. 525.

Alien children will not inherit from their parents. Eldon v. Doe, 6 Blkf. 341. The lands of aliens will not descend to their heirs. Doe v. Lazenby, 1 Ind. 234. Title to personal estate vests in heirs on the death of the ancestor, subject to be divested on the appointment of personal representative. Coldron v. Rhode, 7 Ind. 151. A lease of land for the life of the lessor is a chattel, and on the death of the lessee it goes to his personal representative. Cunningham v. Baxley, 96 Ind. 367.

Adopted children inherit from the adopted parent the same as a natural child. Barnhizel v. Ferrell, 47 Ind. 335.

Children adopted jointly by a husband and wife inherit the same as their natural children. Krug v. Davis, 87 Ind. 590; Humphries v. Davis, 100 Ind. 274; Paul v. Davis, 100 Ind. 422.

2623. (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.

When grandchildren and great-grandchildren are the heirs, the grandchildren inherit equally, and the great-grandchildren take together the share of their ancestor. Cox v. Cox, 44 Ind. 368.

When grandchildren are the only heirs, they take equally and inherit directly from the decedent. Brown v. Taylor, 62 Ind. 295.

Where an intestate died leaving no father or mother, but leaving a widow by whom he had no children, and a grandchild who was the issue of his child by a former marriage, it was held that on the death of such widow the property of the intestate descended to such grandchild. Scott v. Silvers, 64 Ind. 76.

2624. (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 common.

When nephews and nieces and the children of deceased nephews and nieces are the only heirs, the nephews and nieces inherit equally, and the children of the deceased nephews of and nieces take the shares that their parents would have inherited if living. Blake v. Blake, 85 Ind. 65.

When nephews and nieces are the only heirs, they inherit equally and directly from the decedent. Baker v. Bourne, 127 Ind. 466.

The word "descendants" means an heir in the descending line, and does not include collateral kindred, such as a brother. West v. West, 89 Ind. 529.

2625. (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.