Mode of exami disposed of any property of the estate, or any writing relating or pertaining thereto, or that such person has knowledge of any such property or writing being so concealed, secreted, or disposed of, and refuses to disclose the same to the executor or administrator, the commissioner, upon the application of such executor or administrator, may cite such person to appear and answer under oath concerning the matter charged. SEC. 811. Such examination may be oral or upon written interrognation of such per- atories filed by the applicant, but in either case the answers of the persons cited shall be reduced to writing and subscribed by him and filed. If such person be not in the precinct where administration is granted, the proceeding may be either before the commissioner of such precinct or before the commissioner of the precinct where such person resides or may be found. In the latter case a certified copy of the written interrogatories, if any, and the examination or other proceeding thereon, or connected therewith, shall be filed with the commissioner where administration is granted. sons. Proceeding in refuses to appear. SEC. 812. If the person so cited refuses to appear or answer such case such person interrogatories as may be allowed to be put to him touching the matter charged, he may be punished for a contempt or may at once be committed, by the warrant of the commissioner, to jail, there to remain in close custody until he submits to the order of the commissioner. Proceeding to compel account. Damages for conversion before administration. SEC. 813. The commissioner, upon the application of the executor or administrator, may cite any person who has been intrusted with any of the property of the deceased to appear and answer concerning the same when it appears probable that such person refuses or neglects to render to the executor or administrator a true account thereof. application shall be made and the proceeding conducted in a manner prescribed in sections eight hundred and ten, eight hundred and eleven, and eight hundred and twelve, concerning property or writings alleged to be concealed, and with like effect. The SEC. 814. If any person shall, before administration is granted, embezzle, alien, or in any way convert to his own use any of the property of a deceased person, he shall be liable to the executor or administrator in double the amount of damages which may be assessed therefor. CHAPTER EIGHTY-THREE. OF THE SUPPORT OF THE WIDOW AND MINOR CHILDREN. Provision for children before administration. 815. Provision for widow and minor chil- made. 818. When the whole of estate to be set SEC. 815. Until administration of the estate has been granted and the widow and minor inventory filed, the widow and minor children of the deceased are entitled to remain in possession of the homestead, all the wearing apparel of the family, and household furniture of the deceased, and also to have a reasonable provision allowed for their support during such period, to be allowed by the commissioner. Property to be set apart, and effect of. SEC. 816. Upon the filing of the inventory the commissioner shall make an order setting apart for the widow or minor children of the deceased, if any, all the property of the estate by law exempt from execution. The property thus set apart, if there be a widow, is her property, to be used or expended by her in the maintenance of herself and minor children, if any; or if there be no widow, it is the property of the minor child, or if more than one, of the minor children, in equal shares, to be used and expended in the nurture and education of such child or children by the guardian thereof as the law directs. made. SEC. 817. If the property so exempt is insufficient for the support Further order for of the widow and minor children, according to their circumstances and support, when condition in life, for one year after the filing of the inventory, the commissioner may order that the executor or administrator pay to such widow, if any, and if not, then to the guardian of such minor children, an amount sufficient for that purpose. When the whole of estate to be set apart to widow and SEC. 818. If from the inventory of an intestate's estate, who died leaving a widow or minor children, it appears that the value of the estate does not exceed one hundred and fifty dollars over and above children. property exempt from execution, upon the filing of the inventory the commissioner shall make a decree providing that the whole of the estate, after the payment of funeral expenses and expenses of administration, be set apart for such widow or minor children in like manner and with like effect as in case of property exempt from execution. There shall be no further proceeding in the administration of such estate unless further property be discovered. SEC. 819. If an intestate leave neither widow nor minor children all the property of the estate is assets in the hands of the administrator, for the payment of funeral expenses, expenses of administration, payment of the debts of the deceased, or distribution according to law. When estate all deemed assets. Claims against estate. -notice to be SEC. 820. Every executor or administrator shall, immediately after publication of his appointment, publish a notice thereof in some newspaper published notice. in the precinct, if there be one, or otherwise in such paper as may be designated by the commissioner, as often as once a week for four successive weeks, and oftener if the commissioner shall so direct. In case of publication in a paper published without the precinct, the executor or administrator shall also post a notice in at least three public places, to be designated by the commissioner in his order, one of which shall posted. be at or immediately adjacent to the post-office nearest the residence of the decedent at the time of his death. Such notice shall require all persons having claims against the estate to present them, with the proper vouchers, within six months from the date of such notice, to notice. the executor or the administrator, at a place within the precinct therein specified. -contents of Proof of publi -effect of not SEC. 821. Before the expiration of the six months mentioned in the last section, a copy of the notice as published, with the proper proof cation. of publication, shall be filed with the commissioner. A claim not presented within six months after the first publication of the notice is presenting claim. not barred, but it can not be paid until the claims presented within that period have been satisfied, and if the claim be not then due, or if it be contingent, it shall nevertheless be presented as any other claim. Until the administration has been completed a claim against the estate not barred by the statute of limitations may be presented, allowed, and paid out of any assets then in the hands of the executor or administrator not otherwise appropriated or liable. fied. Claim, how pre- SEC. 822. Every claim presented to the executor or administrator sented and veri- shall be verified by the affidavit of the claimant or some one on his behalf who has personal knowledge of the facts, to the effect that the amount claimed is justly due, that no payments have been made thereon, except as stated, and that there is no just counterclaim to the same, to the knowledge of the affiant. When it appears or is alleged that there is any written evidence of such claim, the same may be demanded by the executor or administrator, or that its nonproduction be accounted for. -allowance of. -rejection of. SEC. 823. When the claim is presented to the executor or administrator, as prescribed in the last section, if he shall be satisfied that the claim thus presented is just, he shall indorse upon it the words "examined and approved," with the date thereof, and sign the same officially, and shall pay such claim in due course of administration; but if he shall not be so satisfied, he shall indorse thereon the words "examined and rejected," with the date thereof, and sign the same officially. Every executor or administrator shall keep a list of all demands legally exhibited against the estate of the testator or intestate, and shall, every three months, file with the commissioner a statement of all such claims as have been presented, and whether the same have been allowed or rejected by him. If any executor or administrator shall refuse to allow any claim or demand against the deceased after the same may have been exhibited to him in accordance with the provisions of this Act, the claimant may present his claim to the commissioner having jurisdiction or to the district court or the judge thereof for allowance, giving the executor or administrator thirty days' notice of such appliCourt may de- cation to the court. The district court or the judge thereof shall have termine claims power to hear and determine in a summary manner all demands summarily. against any estate agreeably to the provisions of this chapter, and which have been so rejected by the executor or administrator, and shall cause a concise entry of the order of allowance or rejection to be made on the record, which order shall have the force and effect of a judg ment, from which an appeal may be taken as in ordinary cases: -when previously rejected. Effect of judgment against ex ecutor or administrator. Judgment his lifetime. Provided, No claim which shall have been rejected by the executor or administrator, as aforesaid, shall be allowed by any court, judge, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant. No claim shall be allowed by the executor or administrator or the district court or judge which is barred by the statute of limitations. SEC. 824. The effect of a judgment against an executor or administrator, on account of a claim against the estate of his testator or intestate, is only to establish the claim as if it had been allowed by him, so as to require it to be satisfied in due course of administration, unless it appear that the complaint alleged assets in his hands applicable to the satisfaction of such claim, and that such allegation was admitted or found to be true, in which case the judgment may be enforced against such executor or administrator personally. SEC. 825. A claim established by judgment against the deceased in against deceased in his lifetime need not be verified by affidavit, but it is sufficient to present a certified copy of the judgment docket thereof to the executor or administrator for allowance or rejection, as in other cases; but this section is not to be construed to prevent an execution from being issued upon such judgment, as elsewhere provided in this code. When and how ferred. SEC. 826. If the executor or administrator doubt the validity of any claim may be re- claim presented to him, he may agree, in writing, with the claimant that an order of reference be made by the commissioner thereof concerning the same. Upon the filing of such agreement, the commissioner shall make the order accordingly. Proceeding by SEC. 827. The referee shall proceed to hear and examine the matter, referee, and effect and report thereon to the commissioner, where the order of reference of. was made, in the same manner and with like effect as if the order was made in an action upon such claim. Claim of execu tor. SEC. 828. If the executor or administrator is himself a creditor of the testator or intestate, his claim, duly verified, may be presented to tor or administrathe commissioner for allowance or rejection; but the allowance of such claim by such commissioner does not conclude a creditor, heir, or other person interested in the estate in any action or proceeding between Such executor or administrator and such creditor, heir, or other person. mined. SEC. 829. If the commissioner reject the claim of the executor or How such claim administrator, either in whole or in part, or in case the same is not may be deter. presented for allowance, as provided in the last section, the executor or administrator may retain the amount thereof until the final settlement of his accounts, when, if the same is controverted or objected to by any person interested in the estate, the right of the executor or administrator to have the allowance claimed shall be tried and determined by the court. If the claim is not presented to the commissioner, as provided in the section last preceding, before it is barred by the statute of limitations, such claim can not be allowed, retained, or recovered. CHAPTER EIGHTY-FIVE. OF THE SALE OF PROPERTY BY EXECUTORS OR ADMINISTRATORS. 830. Sale of property, how made, and application therefor. 831. Order of sale of personal property. 833. May be sold at private sale. 835. Petition for order of sale of real 836. Citation to heirs and devisees to show cause. 837. Service of citation. 838. Hearing and order of sale. 840. Return of sale, and objections there- 841. When sale confirmed and when vacated. 842. Recitals in conveyance and effect thereof. 843. When real property may be sold to pay legacy, etc. 844. Sale of property under will. Personal prop SEC. 830. No sale of the property of an estate is valid unless made Sale of property, by order of the commissioner, as in this chapter prescribed, unless how made, and apherein otherwise provided. The application for an order of sale shall plication therefor. be by the petition of the executor or administrator, and in case of real property a citation to the heirs and others interested in such property. SEC. 831. Upon the filing of the inventory the executor or administrator may make an application to sell the personal property of the erty, order of safe. estate for the purpose of paying the funeral charges, expenses of administration, the claims, if any, against the estate, and for the purposes of distribution; and it shall be the duty of the commissioner to grant such order, if in his judgment it is for the best interest of the estate, and to direct and prescribe the terms of sale upon which such property shall be sold, whether for cash or on credit. -conduct of SEC. 832. Thereafter the executor or administrator shall sell such personal property from time to time for the purposes specified in the sales. -may be sold private sale. last section, and as often and as much thereof as may be necessary. Such sale shall be conducted in the same manner as a sale of personal property on execution, unless otherwise provided in this chapter. at SEC. 833. If, upon the application for an order of sale, or upon a subsequent application for that purpose, it appears to the commissioner that it would be for the interest of the estate, he may order that the executor or administrator may sell all the personal property of the estate or any article thereof at private sale. If any articles of personal property have been specially bequeathed, they are to be exempt from the operation of the order of sale so long as any property of the estate not specially devised or bequeathed remains unsold or appropriated to the purposes specified in section eight hundred and sixty-eight. When real prop devised. SEC. 834. When the proceeds of the sale of personal property have erty may be sold been exhausted, and the charges, expenses, and claims specified in secwhere specially tion eight hundred and thirty-one have not all been satisfied, the executor or administrator shall sell the real property of the estate, or so much thereof as may be necessary for that purpose. If any of such real property have been specially devised, it shall be exempt from the operation of the order of sale in the same manner as personal property specially bequeathed. Petition for or SEC. 835. The petition for the order of sale of real property shall der of sale of real state the amount of the sales of personal property, the charges, property. expenses, and claims still unsatisfied, so far as the same can be ascertained, a description of the real property of the estate, the condition and probable value of the different portions or lots thereof, the amount and nature of any liens thereon, the names, ages, and residence of the devisees, if any, and of the heirs of the deceased, so far as known. Citation to heirs and devisees show cause. SEC. 836. Upon the filing of the petition a citation shall issue to the to devisees and heirs therein mentioned, and to all others unknown, if any such there be, to appear at a time therein mentioned, not less than thirty days after the service of such citation, to show cause, if any exist, why an order of sale should not be made as in the petition prayed for. Service of citation. Hearing and order of sale. Sale, how made; chase money. SEC. 837. Upon an heir or devisee known and resident within the district such citation shall be served and returned as a summons, and upon an heir or devisee unknown or nonresident it may be served by publication or posting, or both, not less than four weeks, or for such further time as the commissioner may prescribe. When service is had by posting, the citation shall be posted at not less than three public places within the precinct, one of which shall be the post-office nearest to the place where the decedent resided at the time of his death. When service of the citation is made by publication or posting, there shall be given with it a brief description of the property described in the petition. SEC. 838. If, upon the hearing, the court find that it is necessary that the real property, or any portion thereof, should be sold, it shall make the order accordingly, and prescribe the terms thereof, whether of cash or credit, or both; and if such property can not be divided without probable injury and loss to the estate, it may order that it, or any specific lot or portion thereof, shall be sold wholly, whether otherwise necessary or not. SEC. 839. Upon the order being made, the executor or administrator security for pur- shall sell the property therein specified upon the terms directed and in the manner herein otherwise provided. Such sale shall be made in the same manner as like property is sold on execution: Provided, however, The commissioner may, if thought best, order said property to be sold on the premises. When the sale is upon credit the executor or administrator shall take the note of the purchaser for the purchase money, with a mortgage upon the property to secure the payment thereof. |