viving the testator, with the provision that if he shall not so survive the testator that the property so devised or bequeathed shall go to some other person, the property so devised or bequeathed to such absentee, contingently as aforesaid, shall thereupon immediately vest in such other person, as fully and completely as though positive proof of the death of such absentee had been produced to the court: Provided, however, That the person receiving such property shall give security, to be approved by the court, in such sum as the court shall direct, conditioned that if within five years after the date of such adjudication such absentee shall appear and assert his rights, that the person receiving the property, as aforesaid, shall reimburse to him the value of the property so received, together with interest; if the absentee shall fail to appear within such five year period, his rights shall be forever barred, Provided, further, That no order or proceeding had under this section shall have any force or effect, except as to the matters and property involved in the matter of the estate before the court.

Section 2 of the above act provides that the act be in force and effect from and after its passage.

[Acts 1915, p. 98. In force March 3, 1915.]

2748a. Trust, death presumed from absence, settlement.-1. That when any resident of this state shall have absented himself from his usual place of residence and gone to parts unknown for a space of five years, and when in such case thirty days' notice shall have been given to such person by publication in a newspaper of general circulation published at the capital of the state, and also in a paper published in the county where he last resided in such state, if there be any, it shall be presumed and taken by the court having probate jurisdiction in the county where such person last resided, or any county of said state where trust funds or an interest therein have been left to such person, as hereinafter set out, that such person is dead, upon presentation of proper proof of such absence and of publication of notice. Any interest any such absentee would have in any property under and by the terms of any will, shall be administered upon by the executor of such will, the same as though such person were in fact dead; and where, by the terms of any will, a trust has been created in favor of such absentee, such trust, shall be terminated and the executor of such will or the trustee in charge of said trust funds shall administer and dispose of such funds as are provided in such will, upon the death of the cestui que trust: Provided, however, That before any distribution of any such trust funds shall be made to the person or persons entitled to receive the same he or they shall give security to the approval of the proper circuit or superior court or probate court of the

county having jurisdiction thereof, in such sum as the court shall direct, and conditioned that if the absentee shall in fact be at the time alive, he or they will respectively refund the amounts received by each with interest on demand of said cestui que trust, said bond to run and be enforced for the period of three (3) years from the date of the judgment of the court declaring said absentee legally dead, and if during said period of three (3) years the absentee shall not appear and demand any rights he may have in said trust, the rights of the absentee thereto shall be barred; but if the person or persons entitled to receive the same is or are unable to give the security aforesaid, then the court shall appoint a trustee, who shall give bond for the faithful performance of his duties in one and one-half times the amount of such money, with sufficient sureties, who shall invest said money at interest, as the court may direct, which interest is to be paid annually to the person or persons entitled to it, and the money to remain at interest until the security aforesaid is given, and if the absentee does not appear and demand said money and his rights in said trust, within said period of three (3) years, the court shall order the money so held by such trustee so appointed by said court to be paid to the person or persons entitled to it absolutely. The provisions of this section shall apply to all pending and future administrations of trust funds left to absentees.

2753. Special letters of administration.

Courts have no authority to appoint a special administrator of an estate before the regular administrator of the estate has made his final settlement and has been discharged, or his power as such administrator has in some way terminated. Powell v. Jackson, 60 App. 597, 111 N. E. 208.

Under this section and sections 2755-2757, a probate court has no authority to appoint a special administrator to bring suit against an administrator regularly appointed, qualified and acting, on a note which the latter had executed to his decedent. Powell v. Jackson, 60 App. 597, 111 N. E. 208.

2755. Special administrator in contest of will.

See note to section 2753.

2757.

Administrator de bonis non after settlement.

See note to section 2828.

This section does not undertake to extend time limited by section 2828 for filing claims against estate but reaches only assets not administered upon. Storer v. Carney,

App. -, 127 N. E. 790.

Under this section an estate may be opened to administer omitted assets notwithstanding former settlement. Storer v. Carney, App. 127 N. E. 790. ARTICLE 4.-BOND AND REMOVAL.

SEC.

2762. Application for removal.
2769.

Application by surety for re-
lease.

2769a. Principal on bond, release, ap

SEC.

2769b. Additional bond, release of
surety.
2769c. Repeal.

plication.

2762. Application for removal.

Under this section, the probate court has a remedy against an administrator who fails to obey the orders of the court setting aside his report and ordering a new report. Powell v. Jackson, 60 App. 597, 111 N. E. 208.

2769. Application by surety for release.

Upon petition of a surety to be released from an administrator's bond it is the duty of the court to grant such relief and order the administrator to file a new bond. Fidelity & Deposit Co. v. Hall, App. -, 128 N. E. 702.

[Acts 1915, p. 298. In force March 8, 1915.]

2769a. Principal on bond, release, application.-1. That any principal in any bond given by any executor, administrator, administrator with the will annexed, administrator de bonis non, commissioner, trustee, guardian, committee, assignee, receiver or other fiduciary, may apply by verified petition to any circuit or superior court approving such bond, to terminate further liability upon said bond, and to release the surety or sureties thereon, whether the surety is an individual or a surety company, from all further liability thereon, from and after the execution and filing of a new bond by the principal with sureties in the same or a larger penalty, and its acceptance and approval by the court, which said new bond shall be taken in lieu and instead of said former bond, and as a substitute therefor from and after its acceptance and approval. But the principal and sureties upon said former bond shall be and remain liable for all acts of malfeasance or misfeasance occurring prior to the acceptance and approval of said new bond. Ten days' notice shall be given of the time and place of the hearing of said application. And in like manner and upon like notice the court approving any such former bond, may of its own motion, for good and satisfactory reasons appearing to the court, in its discretion, without petition filed, cause said new bond to be filed with like effect.

Upon the proof of the giving of such notice, and at the time and place fixed, a hearing shall be had before the court, without a jury; and if upon such hearing, the court shall be satisfied that it is for the best interest of the trust or estate or the parties interested, that said new bond shall be given, the court shall order the principal in said former bond, within five (5) days thereafter, to execute and file a new bond with sureties to the approval of the court, in the same or larger penalty, in lieu and instead of said former bond, and as a substitute therefor from and after the acceptance and approval of said new bond. Upon failure to execute and file such new bond within the time. limited, the court shall forthwith romove [remove] such executor, administrator, administrator with the will annexed, administrator de bonis non, commissioner, trustee, guardian, committee, assignee, receiver or other fiduciary; and upon such removal or upon the filing, acceptance and approval of such new bond, the surety or sureties on

said former bond, whether the surety is an individual or a surety company, shall be released from all liability for any malfeasance or misfeasance thereafter occurring, but shall remain liable on said former bond for all prior acts and omissions; and the principal and sureties in said new bond shall be and continue liable for all the acts and omissions of the principal thereafter occurring, in like manner and to the same extent that the obligors in said former bond would have been bound had it continued in force.

See section 2769 Revision of 1914; also see sections 5733, 5760 Revision of 1914. 2769b. Additional bond, release of surety.-2. Nothing contained in this act shall be construed to prevent the court from requiring or accepting any additional bond or security in any case, where the same is proper or is now required by law. Nor shall this act be construed to abridge in any way the right of any surety to apply in his own behalf to be released from any bond as now provided by law.

2769c. Repeal.-3. All laws and parts of laws in conflict with this act are hereby repealed.

SEC.

ARTICLE 5.-NOTICE AND INVENTORY.

2786. Widow's five hundred dollars.

2786. Widow's five hundred dollars.

If a testator makes provision in his will for his widow, which is more beneficial to her than the share of his estate given her by law, and she elects to take under the will, she can not claim the five hundred dollars of personalty given her by statute when to allow her to do so would defeat the evident intention of the testator. Manning v. Wilson, 52 App. 1, 100 N. E. 106; Stiglitz v. Migate, 61 App. 529, 109 N. E. 809.

SEC.

ARTICLE 6-SALE OF PERSONAL PROPERTY.

2793. Notice of sale.

SEC.

2794. Credits given-Notes.

[Acts 1921, p. 383. In force March 9, 1921.] 2793. Notice of sale.-52. In the sale of the personal property of decedent's estates, by administrator or executor, the notice and terms of such sale shall be left to the discretion of the court, and shall be sold upon such notice and terms of sale as the court may prescribe: Provided, That any court having probate jurisdiction shall have power and authority to make such order of sale in vacation.

This section amends section 2793 Revision of 1914.

Section 2 of the above act provides that section 2794 Revision of 1914 be repealed.

Section 3 of the above act provides that the act be in force and effect from and after its passage.

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

2794. Credits given-Notes.

This section, 2794 Revision of 1914, is repealed by section 2, Acts 1921, p. 383, in force March 9, 1921.

SEC.

ARTICLE 7.-SUITS BY EXECUTORS AND ADMINISTRATORS.

2810. Profert of letters.

2810. Profert of letters.

The right of an executor or administrator to sue, can only be questioned by a plea under oath denying such right. Powell v. Jackson, 60 App. 597, 111 N. E. 208.

This section has no application to an answer questioning the authority of the court to appoint plaintiff as special administrator while the regular administrator is still in office and acting. Powell v. Jackson, 60 App. 597, 111 N. E. 208. ARTICLE 8.-CLAIMS AGAINST THE ESTATE.

In presenting claims against an estate, it is only necessary to set forth a definite and succinct statement of the same, the rules for the construction of pleadings in civil actions not being applicable to such claims. Caldwell v. Ulsh, 184 Ind. 725, 112 N. E. 518.

See note to section 2839.

The provision of this section exempting the filing of a claim against a decedent's estate does not include claims for inheritance taxes. Nation v.

A petition by a purchaser of real estate on administrator's sale to cancel the sale was held not demurrable on the ground that the purchaser could only recover the payment by filing a claim against the estate of the deceased. Chaney v. Wood, 63 App. 687, 115 N. E. 333.

Where a claim was not filed within the time fixed by this section and is not excepted, it is barred, notwithstanding section 2757. Storer v. Carney, App. 127 N. E. 790.

This section has no application where the action is not brought against an executrix, but against her husband prior to his death, and upon her substitution as the representative of his estate she appeared in the action, since under section 318 there was no need for summons. Reed v. Farmers Bank of Frankfort, - App. - -, 119 N. E. 261.

2831. Suretyship of decedent.

When the principals on a note executed in another state are nonresidents of this state, the note may be filed as a claim against the estate of a surety on the note who died in this state. Patterson v. State Bank, 55 App. 331, 102 N. E. 880.