on oath, the estate and effects of

late of

executor or adminis

deceased, which may be in said county, and when you have performed that service you are required to deliver this order, and your doings in pursuance thereof, to trator, as the case may be, of said deceased. Given under my hand this of, in the year A. D. 18-. Justice of the Peace.

day

1258. The appraisers shall set down opposite to each item in such inventory, distinctly, in figures, the value thereof in money, and deliver the same, certified by them, together with their appointment, if made by a justice of the peace, to the executor or administrator.

1259. A separate and distinct inventory and appraisement shall be made and returned, as aforesaid, of all the household furniture and other personal property which may be allowed to the widow, pursuant to the provisions of this chapter, but the same shall not be considered assets in the hands of the executors or administrators.

1260. The personal estate of the deceased which shall come into the hands of the executor or administrator shall be first chargeable with the payment of the debts and expenses; and if the goods, chattels, rights, and credits in the hands of the executor or administrator shall not be sufficient to pay the debts of the deceased, and the expenses of administration, the whole of his real estate, except the widow's dower, or so much thereof as may be necessary, may be sold for that purpose by the executor or administrator, after obtaining license therefor in the manner provided by law.

1261. The executor or administrator shall have a right to the possession of all the real as well as personal estate of the deceased, and may receive the rents, issues, and profits of the real estate, until the estate shall have been settled, or until delivered over, by order of the probate court, to the heirs or devisees, and shall keep in good tenantable repair all houses, buildings, and fences thereon which are

under his control.

107).

Administrator may maintain ejectment. 27, 641 (43 N. W., 399). See 27, 344 (43 N. W., 1262. If any executor or administrator, heir, legatee, creditor, or other person interested in the estate of any deceased person shall complain to the judge of probate, on oath, that any person is suspected to have concealed, embezzled, carried away, or disposed of any money, goods, or chattels of the deceased, or that such person has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings which contain evidence of or tend to disclose the right, title, interest, or claim of the deceased to any real or personal estate, or any claim or demand, or any last will and testament of the deceased, the said judge may cite such suspected person to appear before the court of probate, and may examine him on oath upon the matter of such complaint.

1263. If the person so cited shall refuse to appear and submit to such examination, or to answer such interrogatories as may be put to him touching the matter of such complaint, the court may, by warrant for that purpose, commit him to the county jail of the county, there to remain in close custody until he shall submit to the order of the court; and all such interrogatories and answers shall be in writing, and shall be signed by the party examined, and filed in the probate

court.

1264. The judge of probate, upon the complaint on oath of any executor or administrator, may cite any person who shall have been entrusted by such executor or administrator with any part of the estate of the deceased person, to appear before such court, and may require such person to render a full account, on

oath, of any money, goods, chattels, bonds, accounts, or other papers belonging to such estate which shall have come to his possession, in trust for such executor or administrator, and of his proceedings thereon, and if the person so cited shall refuse to appear and render such account, the court may proceed against him as provided in the preceding section.

1265. When any debtor of any deceased person shall be unable to pay all his debts, the executor or administrator, with the approbation of the judge of probate, may compromise with such debtor and give him a discharge, upon receiving a fair and just dividend of his effects.

1266. When any mortgagee of real estate, or any assignee of such mortgagee, shall die without having foreclosed the right of redemption, all the interest in the mortgaged premises conveyed by such mortgage, and the debt secured thereby, shall be considered as personal assets in the hands of the executor or administrator, and he may foreclose the same and have any other remedy for the collection of such debt which the deceased would have had if living, or may continue any proceedings commenced by the deceased for that purpose.

1267. In case of the redemption of any such mortgage, or the sale of the mortgaged premises, by virtue of a power of sale contained therein, or otherwise, the money paid thereon shall be received by the executor or administrator, and he shall thereupon give all necessary releases and receipts; and if, upon a sale of the mortgaged premises, the same shall be bid in by the executor or administrator for such debt, he shall be seized of the same for the same persons, whether creditors, next of kin, or others, who would have been entitled to the money if the premises had been redeemed or purchased at such sale by some other person.

1268. Any real estate so held by an executor or administrator, or which may be purchased by him as such, upon a sale on execution, for the recovery of a debt due the estate, may be sold for the payment of debts or legacies and the charges of administration, in the same manner as if the deceased had died seized thereof, upon obtaining a license therefor in the manner provided by law.

1269. If any land so hled by an executor or administrator, as mentioned in the preceding section, shall not be sold by him as therein provided, it shall be assigned and distributed to the same persons and in the same proportions as if it had been part of the personal estate of the deceased; and if, upon such distribution, the estate shall come to two or more persons, partition thereof may be made between them in like manner as if it were real estate which the deceased held in his lifetime.

1270. When there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate or any right or interest therein, with the intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator may, and it shall be his duty to commence and prosecute to final judgment any proper action or suit at law, or in chancery, for the recovery of the same, and may recover, for the benefit of the creditors, all such real estate so frauduleutly conveyed, and may also, for the benefit of the creditors, sue and recover for all goods, chattels, rights, or credits which may have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance.

Creditors of deceased may bring action against the executor who claims to have a chattel mortgage on effects of the estate and who is about to sell the same, and injunction will lie. 6, 503.

1271. No executor or administrator shall be bound to sue for such estate as mentioned in the preceding section, for the benefit of the creditors, unless on

application of creditors of the deceased, nor unless the creditors making the application shall pay such part of the costs and expenses, or give such security to the executor or administrator therefor, as the probate court shall judge just and equitable. 1272. All real estate so recovered as provided in the two hundred and eleventh section of this chapter [1270] shall be sold for the payment of debts in the same manner as if the deceased had died seized thereof, upon obtaining a license therefor from the probate court, and the proceeds of all goods, chattels, rights, and credits received as aforesaid shall be appropriated in payment of the debts of the deceased, in the same manner as other debts in the hands of the executor or administrator.

PAYMENT OF DEBTS AND LEGACIES OF DECEASED PERSONS.

1273. When letters testamentary or of administration shall be granted by any probate court, it shall be the duty of the probate judge to receive, examine, adjust, and allow all claims and demands of all persons against the deceased, giving the same notice as is required to be given by commissioners in this subdivision; Provided, That the parties interested, or either of them, shall have the right to demand that two or more suitable persons be appointed commissioners, in which case said commissioners shall receive, examine, and adjust all claims and demands against the estate, as provided for in this subdivision, except when the value of the whole estate, exclusive of the furniture and other personal property allowed to the widow, shall not exceed one hundred and fifty dollars, and shall be assigned for the support of the widow and children, as provided by law, in which case such assignment shall be deemed a full and final administration and bar to all claims against the estate. When such commissioners shall be appointed, it shall be their duty to appoint convenient times and places when and where they will meet for the purpose of examining and allowing claims; and within sixty days after their appointment they shall give notice of the times and places of their meeting, and of the time limited for creditors to present their claims, by posting a notice thereof in four public places in the same county, and by publishing the same at least four weeks successively in some newspaper printed in this state, or in any other manner which the court may direct.

Taxes on personal property may be filed as a claim against his estate. 16, 268 (20 N. W., 352). A judgment of account in a foreign state is "a claim." 8, 356.

1274. The judge of probate, in the commission issued to the commissioners, shall designate the paper in which such notice shall be published and the number of places in the several towns in which it shall be required to be posted, or other mode of notifying which he may deem necessary and proper.

1275. If any commissioner appointed by the probate court shall at any time die, remove out of the state, refuse, or become in any other way incapacitated to perform the duties of his appointment, the court may appoint another commissioner in his place, and no further notice of the meetings of the commissioners shall be required in consequence of such appointment.

1276. The probate court shall allow such time as the circumstances of the case shall require for the creditors to present their claims to the commissionersfor examination and allowance, which time shall not, in the first instance, exceed eighteen months, nor be less than six months, and the time allowed shall be stated in the commission.

1277. The probate court may extend the time allowed to creditors to present their claims, as the circumstances of the case may require; but not so that the whole time shall exceed two years from the time of appointing such commissioners.

1278. On the application of a creditor who has failed to present his claim, if

made within six months from the time previously limited, the court may, for good cause shown, renew the commission and allow further time, not exceeding three months, for the commissioners to examine such claims, in which case the commissioners shall personally notify the parties of the time and place of hearing, and, as soon as may be, make return of their doings to the probate court.

1279. In the case mentioned in the preceding section, if the judge of probate shall think proper, instead of renewing the commission he may appoint a time and place for examination and adjustment of such claim before himself, and cause personal notice thereof to be given to the parties, and in that case he shall proceed to examine and adjust such claim in like manner as the same might have been done by such commissioners.

1280. When a creditor against whom the deceased has had claims shall present a claim to the commissioners, the executor or administrator shall exhibit the claim of the deceased in offset to the claims of the creditor, and the commissioners shall ascertain and allow the balance against or in favor of the estate, as they shall find the same to be, but no claim barred by the statute of limitation shall be allowed by the commissioners in favor of or against the estate as a set-off or otherwise.

1281. The commissioners shall be sworn to the faithful discharge of their duties, and any one of them shall be authorized to administer oaths to parties and witnesses, when the same shall be required or proper for the investigation and trial of questions before them.

1282. At the expiration of the time limited, or as soon thereafter as they shall have time to complete the hearing of the claims presented, the commissioners shall make up a report of their doings to the probate court, embracing lists of the claims. presented or exhibited in offset, and stating how much was allowed and how much was disallowed, together with the final balance, whether in favor of the creditor or the estate, and the report shall state particularly the manner of giving notice to the claimants.

1283. The commissioners shall have power to try and decide upon all claims which by law survive against or in favor of executors and administrators except claims for the possession or title of real estate, and may examine and allow all demands at their present value which may be payable at a future day, including claims payable in specific articles, and may set off such demands in the same manner in favor of the estate.

1284. Nothing in the preceding section shall be construed to prevent any executor or administrator from paying any debt which shall be payable at a future day according to the terms and at the time specified in the contract.

1285. Every person having a claim against a deceased person proper to be allowed by the judge or commissioners, who shall not, after the giving of notice as required in the two hundred and fourteenth section of this chapter, exhibit his claim to the judge or commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand or from setting off the same in any action whatever.

*"judge or " added 1873, G. S., p. 320.

1286. No action shall be commenced against the executor or administrator except actions to recover the possession of real or personal property, and actions for relief other than for the recovery of money only, and such actions as are permitted in this chapter; nor shall any attachment or execution be issued against the estate of the deceased until the expiration of the time limited by the court for the payment of the debts, except in the actions mentioned in this section, and in the cases provided for in section two hundred and seventy-two of this chapter [1331].

Amended 1873, G. S., p. 320. A mortgagee may foreclose his mortgage after the death of the mortgagor. 9, 60; 5, 504.

1287. All actions and suits which may be pending against a deceased person at the time of his death may, if the cause of action survives, be prosecuted to final judgment, and the executor or administrator may be admitted to defend the same; and if the judgment shall be rendered against the executor or administrator, the court rendering it shall certify the same to the probate court, and the amount thereof shall be paid in the same manner as other claims duly allowed against the

estate.

See 8, 356.

1288. Nothing in this chapter shall be construed to prevent an executor or administrator, when he shall think it necessary, from commencing and prosecuting any action against any other person, or from prosecuting any action commenced by the deceased in his lifetime, for the recovery of any debt or claim, to final judgment, or from having execution on any judgment.

1289. In such case the defendant may set off any claim he may have against the deceased, instead of presenting it to the commissioners, and all mutual claims will be set off in such action; and if final judgment shall be rendered in favor of the defendant, the same shall be certified, by the court rendering it, to the probate court, and the judgment shall be considered the true balance.

1290. When two or more persons shall be indebted on any joint contract or upon a judgment founded on a joint contract, and either of them shall die, his estate shall be liable therefor, and it may be allowed by the commissioners as if the contract had been joint and several, or as if the judgment had been against him alone; and the other parties to such joint contract may be compelled to contribute or pay the same, if they would have been liable to do so upon payment thereof by the deceased.

1291. The commissioners provided for by this subdivision shall receive two dollars per day as compensation for every day of actual service.

1292*. Any executor, administrator, or creditor may appeal from the decision of the judge or commissioners to the district court for the same county, if application for such appeal be made in writing and filed in the probate court within ten days after the entry of the decision in the records of the probate court.

These sections are in part repealed by implication by secs. 1114 to 1117 of ch. 11, "Courts.” Appeal bond can be filed within thirty days, and no notice of appeal is necessary. 25, 267 (41 N. W., 157); 27, 861 (44 N. W., 40).

1293. In case of an appeal by a claimant against the estate, he shall, within ten days, give a bond to the adverse party, with sufficient security, to be approved by the probate judge and filed in his office, with a condition that he shall prosecute his appeal to effect and without unnecessary delay, and pay all damages and costs which may be awarded against him on the appeal. No executor or administrator shall be required to enter into bond to entitle him to appeal.

Amended 1873, G. S., p. 321.

1294. No appeal shall be allowed from the decision of the judge or commissioners except in the following cases: I. When such judge or the commissioners shall disallow any claim or set-off in whole or in part, to the amount of twenty dollars. II. When the judge or commissioners shall allow any claim or set-off in whole or in part, and the sum allowed being objected to shall amount to twenty dollars.

1295. The party appealing shall, after the appeal is taken, give notice of such appeal and of the hearing thereof in the district court, by service of notice on the adverse party, or if personal service cannot be had, by causing the same to

*Secs. 1292 to 1301 amended 1873, G. S., pp. 321-3.