Report of

appraisers, how may be confirmed.

the premises exceeded in value, at the time of their selection, the said amount of homestead exemption as provided in the Code of Civil Procedure, and that they cannot be divided without material injury, they must report such finding, and thereafter the court may make an order for the sale of the premises and the distribution of the proceeds to the parties entitled thereto.

SEC. 11. Any two of the appraisers concurring may discharge the duties imposed upon the three, and make the report. A dissenting report may be made by the third appraiser. The report must state fully the acts of the appraisers. Both reports may be heard and considered by the court in determining a confirmation or rejection of the Day to be set for majority report, but the minority report must in no case be confirmed.

confirming or rejecting, ap.

peal.

SEC. 12. When the report of the appraisers is filed, the court must set a day for hearing any objections thereto from any one interested in the estate. Notice of the hearing must be given for such time and in such manner as the court may direct. If the court be satisfied that the report is correct, it must be confirmed, otherwise rejected. In case the report is rejected, the court may appoint new appraisers to examine and report upon the homestead, and Costs, to whom similar proceedings may be had for the confirmation or rejection of their report as upon the first report.

chargeable.

Persons succeeding to

SEC. 13. The costs of all proceedings in the probate court provided for in this Chapter, must be paid by the estate as expenses of administration. Persons succeeding by purrights of home chase or otherwise to the interests, rights and title of successors to homesteads, or to the right to have homesteads set apart to them, as in this Chapter provided, have all the rights and benefits conferred by law on the persons whose interests and rights they acquire.

stead owners

have, etc.

Certified copies of certain orders

to be recorded.

SEC. 14. A certified copy of every final order made in pursuance of this Chapter, by which a report is confirmed, property assigned, or sale confirmed, must be recorded in the office of the recorder of the county where the homestead property is situated.

411

CHAPTER VI.

Of Claims Against the Estate.

Addition

al notice.

SEC. 1. Every executor or administrator must im- Notice to credimediately after his appointment, cause to be published in t some newspaper of the county if there be one, if not, then in such newspaper as may be designated by the court, a notice to the creditors of the decedent, requiring all persons having claims against him to exhibit them, with the necessary vouchers, to the executor or administrator, at the place of his residence or business, to be specified in the notice; such notice must be published as often as the judge or court shall direct, but not less than once a week for four weeks; the court or judge may also direct additional notice by publication or posting. In case such executor or administrator resigns, or is removed, before the time expressed in the notice, his successor must give notice only for the unexpired time allowed for such presentation.

in the notice.

SEC. 2. The time expressed in the notice must be Time expressed ten months after its first publication when the estate exceeds in value the sum of two thousand dollars, and four months when it does not.

filed and order

SEC. 3. Within thirty days after the notice is given, Copy and proof as required by the preceding section, a copy thereof, with of notice to be the affidavit of due publication, or of publication and made. posting, must be filed, and upon such affidavit or other testimony to the satisfaction of the court, an order or decree showing that due notice to creditors has been given, and directing that such order or decree be entered in the minutes and recorded, must be made by the court.

Time within

against an estate

SEC. 4. All claims arising upon contracts, whether the same be due, not due, or contingent, must be presented which claims within the time limited in the notice, and any claim not so must be prepresented is barred forever; Provided, however, That when sented. it is made to appear by the affidavit of the claimant, to the satisfaction of the court, or judge thereof, that the claimant had no notice as provided in this Chapter, by reason of being out of the Territory, it may be presented at any time before a decree of distribution is entered.

Claims to be

SEC. 5. Every claim which is due, when presented to the executor or administrator, must be supported by the when allowed to affidavit of the claimant, or some one in his behalf, that the

sworn to, and

bear interest.

Probate judge may present claim, and action thereon.

Allowance and rejection of claims.

amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim be not due when presented, or be contingent, the particulars of such claim must be stated. When the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reason why it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the claim. If the estate be insolvent, no greater rate of interest shall be allowed upon any claim after the first publication of notice to creditors than is allowed on judgments obtained in the courts of this Territory.

SEC. 6. The judge of the probate court may present a claim against the estate of a decedent for allowance to the executor or administrator thereof, and if the executor or administrator allows the claim, he must in writing designate the judge of the probate court of an adjoining county, who, upon the presentation of such claim to him, is vested with power to allow or reject it, and the judge presenting such claim, in case of its rejection by the executor or administrator, or by such judge as shall have acted upon it, has the same right to sue in a proper court for its recovery as other persons have when their claims against an estate are rejected.

SEC. 7. When a claim, accompanied by the affidavit required in this Chapter, is presented to the executor or administrator, he must endorse thereon his allowance or rejec tion, with the day and date thereof. If he allow the claim, it must be presented to the judge of the probate court for his approval, who must in the same manner indorse upon it his allowance or rejection. If the executor or administrator, or the judge, refuse or neglect to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect may, at the option of the claimant, be deemed equivalent to a rejection on the tenth day; and if the presentation be made by a notary, the certificate of such notary under seal, shall be prima facie evidence of such presentation and the date thereof. If the claim be presented to the executor or administrator before the expiration of the time limited for the presentation of

claims, the same is presented in time, though acted upon by the executor or administrator, and by the judge, after the expiration of such time. If the claim be payable in a particular kind of money or currency, it shall, if allowed, be payable only in such money or currency.

SEC. 8. Every claim allowed by the executor or administrator, and approved by the judge of the probate court, or a copy thereof, as hereinafter provided, must, within thirty days thereafter, be filed in the court, and be ranked among the acknowledged debts of the estate, to be paid in due course of administration. If the claim be founded on a bond, bill, note, or any other instrument, a copy of such instrument must accompany the claim, and the original instrument must be exhibited, if demanded, unless it be lost or destroyed, in which case the claimant must accompany his claim by his affidavit, containing a copy or particular description of such instrument, and stating its loss or destruction. If the claim or any part thereof, be secured by a mortgage, or other lien which has been recorded in the office of the recorder of the county in which the land affected by it lies, it shall be sufficient to describe the mortgage or lien, and refer to the date, volume and page of its record. If, in any case, the claimant has left any original voucher in the hands of the executor or administrator, or suffered the same to be filed in court, he may withdraw the same when a copy thereof has been already, or is then, attached to his claim. A brief description of every claim filed must be entered by the clerk in the register, showing the name of the claimant, the amount and character of the claim, rate of interest, and date of allowance.

Approved
ies to be filed.
Claims secured
described. Los:

claims or cop.

by liens may be

claims.

Rejected

sued for within three months.

SEC. 9. When a claim is rejected, either by the executor or administrator, or the judge of the probate court, claims to be the holder must bring suit in the proper court against the executor or administrator within three months after the date of its rejection, if it be then due, or within two months after it becomes due, otherwise the claim shall be forever barred.

Claims barred

and who judge may examine.

SEC. 10. No claim must be allowed by the executor or administrator, or the judge of the probate court, which by time. When is barred by the statute of limitations. When a claim is presented to the judge for his allowance, he may, in his discretion, examine the claimant and others on oath, and hear any legal evidence touching the validity of the claim.

Claims must be presented be. fore suit.

Time of limitation.

Claims in action

of decease.

SEC. 11. No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator, except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint; but no counsel fees shall be recovered in such action unless such claim be so presented.

SEC. 12. The time during which there shall be a vacancy in the administration must not be included in any limitations herein prescribed.

SEC. 13. If an action is pending against the decepending at time dent at the time of his death, the plaintiff must in like manner present his claim to the executor or administrator for allowance or rejection, authenticated as required in other cases; and no recovery shall be had in the action unless proof be made of the presentations required.

SEC. 14. Whenever any claim is presented to an executor or administrator, or the judge, and he is willing to allow the same in part, he must state in his endorsement the amount he is willing to allow. If the creditor refuse to accept the amount allowed in satisfaction of his claim, he shall recover no costs in any action therefor brought against the executor or administrator, unless he recover a greater amount than that offered to be allowed.

SEC. 15. A judgment rendered against an executor or administrator, upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the judge; and the judgment must be that the executor or administrator pay, in due course of administration, the amount ascertained to be due. A certified transcript of the original docket of the judgment must be filed among the papers of the estate in court. No execution must issue upon such judgment, nor shall it create any lien upon the property of the estate, or give to the judgment creditor any priority of payment.

SEC. 16. When any judgment has been rendered for or against the testator or intestate, in his lifetime, no execution shall issue thereon after his death, except as provided in the Code of Civil Procedure relative to executions. Judgment against the decedent for the recovery of money must be presented to the executor or administrator like any other claim. If execution is actually levied upon any property of the decedent before his death, the same may be