TITLE 3 value of all the property of the deceased received, and not duly administered, by such executor or administrator. And the monies collected thereon, shall be deemed assets in the hands of the person, to whom such subsequent letters shall have been issued. Administrator, &c. im discharged. $22. Every executor or administrator committed to prison as aforeprisoned, how said, may be discharged by the surrogate, or a justice of the supreme court, or a circuit judge, on his delivering upon oath, all the property of the deceased under his control, to such person as shall be authorised by the surrogate to receive the same Any one to return inven tory. Now assets. $23. Any one or more of the executors or administrators named in any letters, or the neglect of the others, may return an inventory; and those so neglecting, shall not thereafter interfere with the administration, or have any power over the personal estate of the deceased; but the executor or administrator so returning an inventory, shall have the whole administration, until the delinquent return and verify an inventory, agreeably to the provisions of this Article. $24. Whenever personal property, or assets of any kind, not mentioned in any inventory that shall have been made, shall come to the possession or knowledge of an executor or administrator, he shall cause the same to be appraised in manner aforesaid, and an inventory thereof to be returned, within two months after the discovery thereof; and the making of such inventory and return, may be enforced in the same manner, as in the case of the first inventory. ARTICLE SECOND. Of the Duties of Executors and Administrators, in the Payment of Debts and Legacies. SEC. 25. When personal property to be sold, to pay debts, manner and terms of sale. 26. Certain articles to be first sold. 27. Order in which debts are to be paid. 28. Preferences not to be given in payment of certain debts. 29. Debts not due, may be paid, on deducting interest. 30. In certain cases, preference may be given by surrogate, to rents due. 35. Upon exhibition of claims, vouchers and affidavits of claimant may be required. 37. Proceedings on reference, report, judgment and effect thereof. 38. Suit to be brought on a rejected claim, within six months. 39. If suit brought upon claim not presented within six months after notice to credi- 40. Plaintiff to recover only for assets in hand; or to take judgment for future assets. 46. Legacy under fifty dollars, to a minor, may be paid to his father. 47. If legacy exceed fifty dollars, to be paid to guardian of minor on security being given. Src. 48. If not paid to guardian, legacy to be invested în permanent securities. 49. When no guardian, surrogate to keep securities, and collect interest and principal. ART. 2. perty when sold. $25. If any executor or administrator shall discover that the debts Personal pro against any deceased person, and the legacies bequeathed by him, can and how to be not be paid and satisfied without a sale of the personal property of the deceased, the same, so far as may be necessary for the payment of such debts and legacies, shall be sold. The sale may be public or private, and, except in the city of New-York, may be on credit, not exceeding one year, with approved security. Such executor or administrator shall not be responsible for any loss happening by such sale, when made in good faith, and with ordinary prudence. sold first. $26. In making such sales, such articles as are not necessary for What to be the support and subsistence of the family of the deceased, or as are not specifically bequeathed, shall be first sold; and articles so bequeathed, shall not be sold, until the residue of the personal estate has been applied to the payment of debts. ment of debts. § 27. Every executor and administrator shall proceed with dili- Order of paygence, to pay the debts of the deceased, and shall pay the same according to the following order of classes: 1. Debts entitled to a preference, under the laws of the United States: 2. Taxes assessed upon the estate of the deceased, previous to his death: 3. Judgments docketed, and decrees enrolled, against the deceased, according to the priority thereof, respectively : 4. All recognizances, bonds, sealed instruments, notes, bills and unliquidated demands and accounts. ferences abo $28. No preference shall be given in the payment of any debt, Certain preover other debts of the same class, except those specified in the third lished. class; nor shall a debt due and payable, be entitled to preference over debts not due; nor shall the commencement of a suit for the recovery of any debt, or the obtaining a judgment thereon against the executor or administrator, entitle such debt to any preference over others of the same class. due. $ 29. Debts not due, may be paid by an executor or administra- Debts not tor, according to the class to which they may belong, after deducting a rebate of legal interest upon the sum paid, for the time unexpired. $30. Preference may be given by the surrogate, to rents due or Rents. accruing, upon leases held by the testator or intestate, at the time of his death, over debts of the fourth class, whenever it shall be made to appear to his satisfaction, that such preference will benefit the estate of such testator or intestate. TITLE 3. Defence of sets. $31. In any suit against an executor or administrator, the defendant may show, under a notice for that pupose, given with his plea, want of us that there are debts of a prior class unsatisfied, or that there are unpaid debts of the same class with that on which the suit is brought, and judgment shall be rendered only for such part of the assets in his hands, as shall remain after satisfying the debts of the prior class, and as shall be a just proportion to the other debts of the same class, with that on which the suit is brought. But the plaintiff may, as in other cases, take judgment for the whole or part of his debt, to be levied of future assets. Executions. Executors, $32. No execution shall issue upon a judgment against an executor or administrator, until an account of his administration shall have been rendered and settled, or unless on an order of the surrogate who appointed him. And if an account has been rendered to the surrogate by such executor or administrator, execution shall issue only for the sum that shall have appeared on the settlement of such account, to have been a just proportion of the assets applicable to the judg ment. $ 33. No part of the property of the deceased shall be retained by &c. retaining. an executor or administrator, in satisfaction of his own debt or claim, until it shall have been proved to, and allowed by, the surrogate; and such debt or claim shall not be entitled to any preference over others of the same class. Notice to creditors. Vouchers, required. $34. Any executor or administrator, at any time, at least six months after the granting of the letters testamentary or of adminis tration, may insert a notice once in each week for six months, in a newspaper printed in the county, and in so many other newspapers, as the surrogate may deem most likely to give notice to the creditors of the deceased, requiring all persons having claims against the deceased, to exhibit the same with the vouchers thereof, to such executor or administrator, at the place of his residence or transaction of business, to be specified in such notice, at or before the day therein named, which shall be at least six months from the day of the first publication of such notice. $35. Upon any claim being presented against the estate of any &c. may be deceased person, the executor or administrator may require satisfactory vouchers in support thereof, and also the affidavit of the claimant that such claim is justly due, that no payments have been made thereon, and that there are no offsets against the same to the knowledge of such claimant; which oath may be taken before any justice of the peace, or other officer authorised to administer oaths. Reference to $36. If the executor or administrator doubt the justice of any settle claims. claim so presented, he may enter into an agreement in writing, with the claimant, to refer the matter in controversy to three disinterested persons, to be approved by the surrogate; and upon filing such agreement and approval of the surrogate in the office of a clerk of the supreme court, or of the clerk of the court of common pleas of the county, in which the parties, or either of them, reside, a rule shall be entered by such clerk, either in vacation or in term, referring the matter in controversy to the persons so selected. ART. 2 $37. The referees shall thereupon proceed to hear and determine Proceedings. the matter, and make their report thereon to the court in which the rule for their appointment shall have been entered. The same proceedings shall be had in all respects, the referees shall have the same powers, be entitled to the same compensation, and subject to the same control, as if the reference had been made in an action in which such court might by law, direct a reference; and the court may set aside the report of the referees, or appoint others in their places, and may confirm such report, and adjudge costs, as in actions against executors; and the judgment of the court thereupon shall be valid and effectual in all respects, as if the same had been rendered in a suit commenced by the ordinary process. jected claims. $38. If a claim against the estate of any deceased person be ex-Suits on rehibited to the executor or administrator, and be disputed or rejected' by him, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the debt, or any part thereof, be then due, or within six months after some part thereof shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon; and no action shall be maintained thereon after the said period, by any other person deriving title thereto from such claimant; and any executor or administrator may, on the trial of any action founded upon such demand, give in evidence, in bar thereof, under a notice annexed to the general issue, the facts of such refusal and neglect to commence a suit. &c. not liable assets. $39. In case any suit shall be brought upon a claim, which shall Executors, not have been presented to the executor or administrator of a deceased for certain person, within six months from the first publication of such notice, as herein before directed, such executor or administrator shall not be chargeable for any assets or monies, that he may have paid in satisfaction of any claims of an inferior degree or of any legacies, or in making distribution to the next of kin, before such suit was commenced, but may prove such notice published by him as aforesaid, and such payment and distribution, in support of his plea of having administered the estate of the deceased. $40. In such action, the plaintiff shall be entitled to recover only t to the amount of such assets, as shall have been in the hands of such executor or administrator, at the time of the commencement of the suit; or he may take judgment for the amount of his claim, or any TITLE 3. Costs. part thereof, to be levied and collected of assets, which shall thereafter come into the hands of such executor or administrator. $41. In such suit, no costs shall be recovered against the defendants; nor shall any costs be recovered in any suit at law, against any executors or administrators, to be levied of their property, or of the property of the deceased, unless it appear that the demand on 1288: 195 itid 278 itid hd 354 which the action was founded, was presented within the time afore Next of kin, Legacies Bond. Payment of said, that its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same, pursuant to the preceding provisions; in which cases the court may direct such costs to be levied of the property of the defendants, or of the deceased, as shall be just, having reference to the facts that appeared on the trial. If the action be brought in the supreme court, such facts shall be certified by the judge, before whom the trial shall have been had. $42. But any creditor, who may have neglected to present his claims as aforesaid, may, notwithstanding, recover the same, in the manner prescribed by law, of the next of kin, and legatees of the deceased, to whom any assets shall have been paid or distributed. S43. No legacies shall be paid by any executor or administrator, until after the expiration of one year from the time of granting letters testamentary or of administration, unless the same are directed by the will to be sooner paid. $ 44. In case a legacy is directed to be sooner paid, the executor or administrator may require a bond, with two sufficient sureties, conditioned, that if any debts against the deceased shall duly appear, and which there shall be no other assets to pay, and there shall be no other assets to pay other legacies, or not sufficient, that then the legatee shall refund the legacy so paid, or such rateable proportion thereof, with the other legatees, as may be necessary for the payment of the said debts, and the proportional parts of such other legacies, if there be any, and the costs and charges incurred by reason of the payment to such legatee; and that if the probate of the will, under which such legacy is paid, shall be revoked, or the will declared void, then that such legatee shall refund the whole of such legacy, with interest, to the executor or administrator entitled thereto.40 $45. After the expiration of one year from the granting of any letters testamentary or of administration, the executors or administrators shall discharge the specific legacies bequeathed by any will, and pay the general legacies, if there be assets; and if there be not sufficient assets, then an abatement of the general legacies shall be made in equal proportions. Such payment may be enforced by the surrogate in the same manner as the return of an inventory, as herein before (40) 1 R. L. 314, § 18. |