be published for two successive weeks in some weekly newspaper of general circulation in the county, which service or publication must be complete at least ten days before the next term of such court, otherwise the notice must be given for the next succeeding term thereafter.

1896. The party appealing shall, on or before the first day of the term of said court next after the expiration of the time within which notice might have been given as required in the last preceding section, procure and file in the district court a certified copy of the bond, if any given on appeal, and of the record of the allowance or disallowance appealed from, and of the claim or set-off filed, together with the proper evidence that notice has been given as aforesaid to the adverse party.

1297. The district court shall proceed to a trial and determination of the case in like manner as upon appeals brought from the judgments of justices of the peace; and such court may direct an issue to be made up between the parties when it shall be deemed necessary; and questions of law may be carried to the supreme court, and costs may be allowed or denied in the discretion of the court.

1298. The final decision and judgment in cases so appealed shall be certified to the probate court, and procedings shall be had thereon necessary to carry the judgment of the appellate court into execution.

1299. If any claimant, appealing on account of the disallowance of his claim by the judge or commissioners, shall fail to enter such appeal in the district court as herein required, or shall in any way fail to prosecute his action on his claim in the district court, such court may dismiss the appeal, or a certificate may be filed in the probate court, as the case may require, in like manner as in cases of appeals from judgments of justices of the peace, and thereupon such claim shall be forever barred, and the probate court shall proceed in the same manner as if such appeal had never been taken.

1300. If the person objecting to a claim and appealing on account of the allowance thereof shall neglect to prosecute his appeal as aforesaid, the court to which the appeal shall be taken may dismiss the appeal, or a certificate may be filed as aforesaid, as the case may require, and thereupon the probate court may proceed in the same manner as if the appeal had never been taken, or on motion of the adverse party, and upon his producing an attested copy of the record and papers showing such appeal, the district court shall cause the appeal to be docketed and affirm the allowance appealed from, and enter judgment for costs against the appellant.

1301. When an executor or administrator declines to appeal from the decision of the judge or commissioners, any person interested in the estate as creditor, devisee, legatee, or heir may appeal from such decision by filing a written application therefor, within ten days after the expiration of the time allowed to such executor or administrator for the filing of his application as hereinbefore provided; and the same proceedings shall be had in the name of the executor or administrator as if the appeal had been taken by him; Provided, That the person appealing in such case shall give bond, to be approved by the judge of probate and filed in his office, as well to secure the estate from damages and costs as to secure the intervening damages and costs to the adverse party; and actions upon such bond may be maintained by the party sustaining damages thereby.

1302. The said commissioners shall file with their report all the claims and offsets presented to and passed upon by them, and in the hearing and determination upon such claims and offsets the judge or commissioners shall be governed by the same rules of evidence as prescribed in civil actions in the district

court, and depositions may be taken, filed, and used in evidence before the probate court as in actions in the district court; and such depositions shall be transmitted to the district court with the transcript used in cases taken by appeal to said court, if such depositions are sought to be used upon the trial of such cause in the district court.

LIMITATION OF TIME FOR PAYING DEBTS.

1303. The probate court, at the time of granting letters testamentary or letters of administration, shall make an order allowing to the executor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased person, which time shall not, in the first instance, exceed one year and six months.

1304. The county court may, on application of the executor or administrator, from time to time, as the circumstances of the estate may require, extend the time for the payment of debts and legacies, not exceeding six months at a time, nor so that the whole time allowed the original executor or administrator shall exceed three years and at the expiration of three years such executor or administrator shall at once settle such estate as provided in section 282 of this act [1341].

*

1305. When an executor or administrator shall make application to have the time for paying debts and legacies extended beyond one year and six months from the time of granting letters testamentary or of administration, the probate court shall appoint a time for hearing and deciding on such application, and shall cause notice of application and of the time and place of hearing to be given to all persons interested, by publication, three weeks successively, in some newspaper to be designated by the court, and no such order extending the time shall be granted unless such notice shall have been previously given.

1306. When an executor or administrator shall die, be removed, or become incapable of discharging his trust, and a new administrator of the same estate shall be appointed, the probate court shall, when necessary, make an order allowing to such new administrator a time for the disposing of the estate unadministered, and paying the debts and legacies, which time shall not, in the first instance, exceed one year from the time such new administrator shall be appointed; but such time may be extended in like manner and upon like notice as required in case of the original executor or administrator; and nothing contained in this subdivision shall be construed to take away the liability of an executor or administrator to make immediate payment when demanded, upon a decree for the distribution of assets among creditors, legatees, or heirs at law.

Amended 1873, G. S., p. 324.

OF THE DISTRIBUTION OF ASSETS AMONG THE CREDITORS, AND OF INSOLVENT ESTATES.

1307. If, after the report of the commissioners and ascertaining the claims against any estate, it shall appear that the executor or administrator has in his possession sufficient to pay all the debts, he shall pay the same in full within the time limited or appointed for that purpose.

1308. If the assets which the executor or administrator may have received and which can be appropriated to the payment of debts shall not be sufficient, he shall, after paying the necessary expenses of administration, pay the debts against the estate in the following order: First-The necessary funeral expenses. Second-The expenses of the last sickness. Third-Debts having a preference by the laws of the United States. Fourth-Debts due to other creditors.

Treasurer cannot distrain personal property for taxes due from deceased in his lifetime. .8, 185.

1309. If there shall not be assets enough to pay all the debts of any one class, each creditor shall be paid a dividend in proportion to his claim, and no creditor of any one class shall receive any payment until all those of the preceding class shall be fully paid.

1310. After the return of the report of the commissioners, and at or before the expiration limited for the payment of debts, the probate court shall make an order or decree for the payment of the debts and the distribution of the assets which may have been received by the executor or administrator at the time fixed for that purpose, among the creditors, as the circumstances of the estate shall require, according to the provisions of this subdivision.

1311. If an appeal shall have been taken from the decision of the commissioners, and shall remain undetermined, the probate court may suspend the decree for the payment of debts mentioned in the preceding section, or may order a distribution among the creditors whose claims have been allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim which may have been disputed and appealed.

1312. When the disputed claim shall have been finally settled, the probate court shall order the same to be paid out of the assets retained, to the same extent and in the same proportion as the claims of other creditors.

1313. If the whole of the debts shall not have been paid by the first distribution, and if the whole assets shall not have been distributed, or if other assets shall afterwards come to the hands of the executor or administrator, the probate court may, from time to time, according to the circumstances of the case, make further decree for the distribution of assets.

1314. Whenever a decree shall have been made by the probate court for the distribution of the assets among the creditors, the executor or administrator of the estate, after the time of payment shall arrive, shall be personally liable to the creditors for their debts, or the dividend thereon, as for his own debts, or he shall be liable on his bond, and the same may be put in suit on the application of the creditor whose debt or dividend shall not be paid as above mentioned.

1315. When the time for paying the debts of a deceased person shall be finally limited by order of the probate court or by the expiration of the time allowed for that purpose, whether the estate shall be insolvent or not, the probate court may, on the application of the executor or administrator, by an order for that purpose, cause notice to be given to the creditors of the time appointed or limited for the payment of such debts, which notice shall be given by publishing the same at least three weeks successively in some paper to be designated by the court, or in such other manner as the court may direct.

1316. If, after notice shall have been given, as provided in the preceding section, any creditor shall neglect to demand from the executor or administrator his debt or the dividend thereon within two years from the time so limited for the payment of the debts, or if the notice shall have been given after such time, within two years from the last publication, the claim of such creditor shall be forever barred. Does not apply to mortgages. 5, 504.

CONTINGENT CLAIMS.

1317. If any person shall be liable as security for the deceased, or have any other contingent claim against his estate which cannot be proved as a debt before the commissioners, or allowed by them, the same may be presented, with the proper proof, to the probate court or to the commissioners, who shall state the same in their report, if such claim was presented to them.

1318. If the court shall be satisfied, from the report of the commissioners, or by the proof exhibited, said court may order the executor or administrator to retain in his hands sufficient to pay such contingent claim, when the same shall become absolute; or, if the estate shall be insolvent, sufficient to pay a proportion equal to the dividends of other creditors.

1319. If such contingent claim shall become absolute, and shall be presented to the probate court, or to the executor or administrator, at any time within two years from the time limited for other creditors to present their claims to the commissioners, it may be allowed by the probate court upon due proof, or it may be proved before the commissioners already appointed or before others to be appointed for that purpose, in the same manner as if presented for allowance before the commissioners had made their report; and the persons interested shall have the same right of appeal as in other cases.

1320. If such contingent claim shall be allowed, as mentioned in the preceding section, or established on appeal, the creditors shall be entitled to receive payment to the same extent as other creditors, if the estate retained by the executor or administrator shall be sufficient for that purpose; but if the claim shall not be finally established, as provided in the preceding section, or if the assets retained in the hands of the executor or administrator shall not be wholly exhausted in payment of such claim, such assets, or the residue of them, shall be disposed of, by order of the probate court, to the persons entitled to the same according to law.

1321. If the claim of any person shall accrue or become absolute at any time after the time limited for creditors to present their claims, the person having such claim may present it to the probate court, and prove the same at any time within one year after it shall accrue or become absolute; and if established in the manner provided in this subdivision, the executor or administrator shall be required to pay it, if he shall have sufficient assets for that purpose, and shall be required to pay such part as he shall have assets to pay, and if real or personal estate shall afterwards come to his possession, he shall be required to pay such claim, or such part as he may have assets sufficient to pay, not exceeding the proportion of the other creditors, in such time as the probate court may prescribe.

1322. When a claim shall be presented within one year from the time when it shall accrue and be established, as mentioned in the preceding section, and the executor or administrator shall not have sufficient to pay the whole of such claim, the creditor shall have the right to recover such part of his claim as the executor or administrator has not assets to pay, against the heirs, devisees, or legatees who shall have received sufficient real or personal property from the estate.

1323. If any action shall be commenced against an executor or administrator on such claim as mentioned in section two hundred and sixty-two [1321], and for the payment of which sufficient assets shall not have been retained, as before provided, the executor or administrator may give notice, under his plea to such action, that he has fully administered the estate which has come to his possession or knowledge.

1324. If it shall appear on the trial of such action that the defendant had fully administered at the time the claim was presented, and had no assets which could lawfully be appropriated for that purpose, he shall be discharged, and shall have judgment for his costs; but if it shall be found that he had assets sufficient to pay only a part of such claim, judgment shall be rendered against him for such sum only as shall be equal to the amount of assets in his hands.

1325. When the heirs, devisees, or legatees shall have received real or personal estate, and shall be liable for any debts, as mentioned in this subdivision, they

shall be liable in proportion to the estate they may have respectively received; and the creditor may have any proper action or suit in law or equity, and shall have a right to recover his claim against a part or all of such heirs, devisees, or legatees, to the amount of the estate they may have respectively received; but no such action shall be maintained unless commenced within one year from the time the claim shall be allowed or established.

1326. If, by the will of the deceased, any part of his estate, or any devisees or legatees, shall be made exclusively liable for the debt, the devisees or legatees shall be liable to contribute among themselves only, according to the will.

1327. If all the persons liable for the payment of any such debt shall not be included in any such action or suit as defendants, the suit or action shall not thereby be in any way dismissed or barred, but the court before which it shall be pending may order any other parties brought in, by any proper process, and may allow such amendments as may be necessary to make them defendants, on such terms as the court shall prescribe.

1328. If more than one person shall be liable, as aforesaid, and the creditor shall bring a suit in chancery against all or a part of the persons so liable, and and the persons liable shall dispute the debts or the amount claimed, the court of chancery may order an issue to be formed, and direct that the amount may be ascertained by a jury in the district court of the county in which the estate is settled; and the court of chancery shall ascertain and determine how much each is liable to pay, and may award execution therefor.

1329. If any of the heirs, devisees, or legatees shall die without having paid his just share of the debts, his estate shall be liable therefor, as for his own debt, to the extent to which he would have been liable if living.

1330. When any of the heirs, devisees, or legatees shall pay more than his share of such debt, the other persons liable shall be holden and compelled to contribute their just proportion of the same, as is provided in the cases of devisees and legatees in this chapter.

1331. If the giving of notice for the examination and allowance of claims against the estate, before the judge or commissioners, shall in any case be omitted for the period of one year after the granting of letters testamentary or administration, any person having any contingent or other lawful claim against a deceased person may at once commence an action therein, and prosecute the same against the executor, administrator, heirs, devisees, or legatees, as the same may be, who shall have received real or personal property from the estate; Provided, That in case notice to creditors shall have not been given for the period of one year, as above provided, any person having any contingent or other lawful claim against a deceased person, and shall neglect to commence action thereon against the executor, administrator, heirs, devisees, or legatees, as the same may be, who shall have received real or personal property from the estate within five years next after the granting of letters testamentary or administration, the same shall be forever barred; and in all cases a creditor having a lien upon the real or personal estate of the deceased by judgment, execution, or attachment previous to his death may proceed to enforce said lien the same as if such death had not occurred.

Rewritten 1887, p. 386. Mortgagee cannot be compelled to relinquish his mortgage and share in general assets of the estate. 9, 60 (1 N. W., 867).

1332. In no other case, except such as are expressly provided for in this chapter, shall any action be commenced or prosecuted against an executor or administrator; nor shall any writ of attachment or execution issue against such executor or administrator, or against the estate of the deceased in his hands, during the time