PAYMENT OF DEBTS AND LEGACIES.

[CHAP.

Third. Judgments entered and perfected prior to the death of the deceased, and docketed at the time of his death in the county in which he resided: provided, that the preference of such judgment shall only extend to assets of the estate derived from real property upon which such judgment was a lien during the lifetime of the deceased. And all judgments entered and docketed in this state, of which the executor or administrator shall have had actual notice within six months from the date of the death of the deceased.

Fourth. Debts due to other creditors. (As amended 1878, c. 5, § 1.) $39. (SEC. 36.) Decree for payment and distribution to be made, when. After the return of the report of commissioners, and at or before the expiration of the time 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 have been received by the executor or administrator at the time for that purpose, among the creditors, according to the provisions of this chapter.

$40. (SEC. 37.) Proceedings when decree is appealed from. If an appeal is taken from the decision of the commissioners, and remains 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 are allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim which has been disputed and appealed.

§ 41. (SEC. 38.) Payment of disputed claims, when settled. finally settled, the probate court shall order the same to be paid out of the assets When the disputed claim is retained, to the same extent and in the same proportion as the claims of the other creditors.

$42. (SEC. 39.) Further decree of distribution. If the whole of the debts were not paid by the first distribution, and if the whole assets have not been distributed, or if other assets afterward come to the hands of the executor or administrator, the probate court may, from time to time, make further decree for the distribution of assets.

§ 43. (SEC. 40.) Executor, etc., personally liable, when. Whenever a decree is made by the probate court, for the distribution of the assets among the creditors, the executor or adininistrator, after the time of payment arrives, shall be personally liable to the creditors for their debts, or the dividend thereon, as for his own debt, to the extent of the assets in his hands applicable thereto; 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 is not paid as above mentioned.

§ 44. (SEC. 41.) Notice of time limited for payment of debts. When the time for paying the debts of a deceased person is finally limited, by order of the probate court, or by the expiration of the time allowed for that purpose, whether the estate is 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, 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.

§ 45. (SEC. 42.) Neglecting to demand debt or dividend within two years. If, after notice, as is provided in the preceding section, any creditor neglects 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 is given after such time, within two years from the last publication, the claim of such creditor shall be forever barred.

CONTINGENT CLAIMS.

$46. (SEC. 43.) Contingent claims, how presented and paid. If any person is liable as security for the deceased, or has any other contingent claim against his estate which cannot be proved as a debt before the commissioners.or allowed by them,the same • 38 a. See slip.

may be presented, with the proper proof, to the commissioners, who shall set forth the claim and proof in their report; and said court may order the executor or administrator to retain in his hands sufficient to pay such contingent claim when the same becomes absolute; or, if the estate is insolvent, sufficient to pay a proportion equal to the dividends of the other creditors.

$47. (SEC. 44.) Contingent claim, becoming absolute, may be presented, etc. If such contin gent claim becomes absolute, and is presented 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 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.

$48. (SEC. 45.) Contingent claim entitled to payment, when. When such contingent claim is allowed, as mentioned in the preceding section, or established on appeal, the creditor is entitled to receive payment to the same extent as other creditors, if the estate retained by the executor or administrator is sufficient for that purpose; but if the claim is not finally established, or if the assets retained in the hands of the executor or administrator are not wholly exhausted in the payment of such claims, such assets, or the residue, shall be disposed of by order of the probate court, to the person entitled to the same, according to law.

$49. (SEC. 46.) Contingent claim may be presented to probate court, when. If the claim of any person accrues or becomes 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 accrues or becomes absolute; and if established in the manner provided in this chapter, the executor or administrator shall pay it if he has sufficient assets for that purpose, or such part as he has assets to pay; and if real or personal estate afterward comes to his possession, he shall pay such claim, or such part as he has assets sufficient to pay, not exceeding the proportion of the other creditors, in such time as the probate court may prescribe.

$50. (SEC. 47.) Creditor may recover of heirs, etc., when. When a claim is presented within one year from the time it accrues, and is established, as mentioned in the preceding section, and the executor or administrator has not sufficient assets to pay the whole of such claim, the creditor may recover such part of his claim as the executor or administrator has not assets to pay, against the heirs, devisees or legatees, who have received sufficient real or personal property from the estate.

ACTIONS AGAINST EXECUTORS, ETC.

§ 51. (SEC. 48.) Defence of plene administravit. If any action is commenced against an executor or administrator, on such claim as is mentioned in the preceding forty-sixth section, and for the payment of which sufficient assets have not been retained, the executor or administrator may plead that he has fully administered the estate which has come to his possession or knowledge; and if it is found that the defendant had fully administered at the time the claim was presented, and had no assets which could be lawfully appropriated for that purpose, judgment shall be rendered in his favor; but if it is 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 is equal to the amount of assets in his hands.

§ 52. (SEC. 49.) Actions where no commisioners have been appointed. If the appointment of commissioners to allow claims in any case is omitted, no person having any contingent or other lawful claim against a deceased person shall thereby be prevented from prosecuting the same against the executor, administrator, heirs, devisees, or legatees, as provided by law; and in such a case a claimant

RENDERING ACCOUNTS BY EXECUTORS, &C.

having a lien upon real or personal estate of the deceased, by attachment pre[CHAP. vious to his death, may, on obtaining judgment, have execution against such real or personal estate.

15 M. 159; 20 M. 313

§ 53. (SEC. 50.) No action to be brought against executor, etc., except etc. 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 allowed him for the payment of debts: provided, that nothing in this chapter contained shall be construed to prevent an action against an executor or administrator to foreclose a mortgage given by a mortgagor deceased. (As umended 1878, c. 11, § 1.)

21 M. 172, 174.

Execution for costs against estate,
Notice of examination of account.

6. Not accountable for uncollected debts, when. 13.

7. Shall account for income of real estate.

8. Accountable for loss occasioned by neglect.

§ 1. With what executor, etc., is chargeable. Every executor and administrator is chargeable, in his account, with the whole of the goods, chattels, rights and credits of the deceased which come to his possession; also with all the proceeds of the real estate which is sold for the payment of debts and legacies; and with all the interest, profit and income that in any way comes to his hands from the estate of the deceased.

§ 2. To account for personal estate. Every executor and administrator shall account for the personal estate of the deceased, as the same is appraised, except as provided in the following section.

§ 3. Not to make profit or suffer loss. An executor or administrator shall not make profit by the increase, nor suffer loss by the decrease or destruction, without his fault, of any part of the personal estate; and he shall account for the excess when he sells any part of the personal estate for more than the appraisal; and if he sells any for less than the appraisal, he is not responsible for the loss, if it appears to be beneficial to the estate to sell it.

§ 4. Sale of personal estate. The probate court, on the application of the executor or administrator, may, at any time, order the personal estate to be sold at private sale, or at public auction, when it appears to be necessary for the purpose of paying debts or legacies, or expenses of administration, or for the preservation of the property, or when it is requested by all the heirs residing in this state; or the court may order such personal estate to be sold, either at private sale or public auction, as the executor or administrator may find most beneficial. If the order is to sell at auction, the probate court shall direct the mode of giving notice of the time and place of sale.

19 M. 221.

§ 5. Account of sale to be rendered. When the executor or administrator sells personal estate under an order of the probate court, he shall account for the same at the price for which it is sold."

§ 6. Not liable for debts uncollected without fault. No executor or administrator is accountable for any debts due to the deceased, if it appears that they remain uncollected without his fault.

§ 7. To account for income of real estate. The executor or administrator is accountable for the income of the real estate, while it remains in his possession; and if he uses or occupies part of it, he shall account for it as may be agreed upon between him and the parties interested, or adjudged by the court, with their assent; and if the parties do not agree upon the sum to be allowed, the same may be ascertained by one or more disinterested persons appointed by the probate court, whose award, being accepted by such court, shall be final.

§8. Accountable for loss or delay from neglect. When an executor or administrator neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened, or unnecessary cost or interest accrues, or the person interested suffer loss, the same shall be deemed waste, and the damages sustained may be charged against the executor or administrator in his account, or he shall be liable therefor on his administration bond.

§ 9. Account to be rendered, when. Every executor or administrator shall render his account of his administration, within one year from the time of his receiving letters testamentary or of administration, unless the court gives permission to delay, in consideration that the time for selling the estate and paying the debts is extended; and he shall render such further accounts of his administration, from time to time, as are required by the court, until the estate is wholly settled.

§ 10. Examination on oath as to account. The judge of probate shall examine every executor and administrator upon oath as to the truth and correctness of his account, before the same is allowed; but such examination may be omitted when no objection is made to the allowance of the account, and there is no reason to doubt the justness and correctness thereof; and the heirs, legatees and distributors may be examined on oath upon any matter relating to the account of any executor or administrator, whenever the correctness thereof is called in question.

§ 11. Compensation of executors and administrators. The executor or administrator shall be allowed all necessary expenses in the care, management and settlement of the estate, and, for his services, such fees as the law provides, together with all extra expenses: provided, that when the deceased, by his will, makes some other provision for compensation to his executor, that shall be deemed a full compensation for his services, unless, by a written instrument filed in the probate court, he renounces all claim to the compensation provided by the will.

§ 12. Liability for neglect to account. When an executor or administrator, after being duly cited by the probate court, neglects to render his account, he is liable on his bond for all damages which may accrue; and his bond may be put in suit by any person interested in the estate.

§ 13. No execution for costs against estate. When costs in any case are allowed against an executor or administrator, execution shall not issue against the estate of the deceased in his hands therefor, but shall be awarded against him as for his own debt; and the amount paid by him shall be allowed in his administration account, unless it appears that the action or proceeding in which the costs are taxed has been prosecuted or resisted without just cause.

§ 14. Notice of examination of account. Before the administration account of any executor or administrator is allowed, notice shall be given to all persons interested,

of the time and place of examining and allowing the same; and such notice may be given personally, to such persons as the probate court deems interested, or by public notice, under the direction of the court.

§ 1. Bonds to be taken-amount-sureties-obligee-record-action-evidence. All bonds required by law to be taken in, or by order of, the probate court or judge of probate, shall be for such sums and with such sureties as the judge of probate directs; they shall run to the judge of probate, unless otherwise provided; and the same shall be recorded in the office of the judge of probate in a book to be provided by the county; and said bonds shall be filed and preserved with the records of the probate court of the county, and, in case of any breach of the conditions thereof, may be prosecuted in the name and for the benefit of any person interested therein, whenever the judge of probate directs. The record of such bond, or a copy thereof, duly certified by the judge of probate, shall be received and read in evidence in the same manner and like effect as the original bond. (As amended 1871, c. 55, § 1.)

*§ 2. Additional bonds may be required. Whenever any judge of probate is satisfied that the bond of an executor, administrator or guardian is insufficient, he may, on his own motion, or on application of any one or more of the relatives of the deceased, or of the ward, require an additional bond; and a refusal or failure to furnish or give the same within a reasonable length of time shall be deemed a sufficient cause for the removal of such executor, administrator or guardian. (1873, c. 60, § 1.)

§ 3. (SEC. 2.) Action on bond by creditor. An action may be brought on the bond of any executor or administrator, by any creditor, when the amount due to him has been ascertained and ordered by the decree of distribution to be paid, if the executor or administrator neglects to pay the same when demanded.

16 M. 494; 22 M. 261.

§ 4. (SEC. 3.) Action on bond by next of kin. Such an action may be brought by any person as next of kin, to recover his share of the personal estate, after a decree of the probate court declaring the amount due to him, if the executor or administrator fails to pay the same when demanded.

§ 5. (SEC. 4.) Other actions on bond by persons interested. When it appears, on the representation of any person interested in the estate, that the executor or administrator has failed to perform his duty in any other particular than those before specified, the judge of probate may authorize any creditor, next of kin,