CHAPTER 71. TITLE XVII by the judge of probate having jurisdiction of the case, or by a disinterested justice of the peace of such other county. Appointment of appraisers by justices of the peace. Appraisal, how fied. SEC. 3. When appraisers shall be appointed by a justice of the he shall issue an order to them in substance as follows: County of peace, SS. in said county: You are hereby appointed to appraise on oath, the estate and ef- administrator as the case may be) of said deceased. in the year day of Justice of the Peace. SEC. 4. The appraisers shall set down opposite to each item in de and certi- 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. Separate inventory and apprai sal of household furniture, &c. Personal estate, first chargeable SEC. 5. A separate and distinct inventory and appraisement shall be made and returned as aforesaid, of all the household furniture and other personal property which be allowed to the widow, pursumay ant to the provisions of the preceding chapter, but the same shall not be considered assets in the hands of the executor or administrator. SEC. 6. The personal estate of the deceased which shall come into the hands of the executor or administrator, shall be first chargable with payment of with the payment of the debts and expenses; and if the goods, chattels, rights and credits, in the hands of the executor or administrator, estate to be sold. 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. debts, and if not sufficient, real Executor, &c., possession of real and personal estate. SEC. 7. The executor or administrator shall have a right to the posto have right to session 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. Proceeding in embezzlement, &c. SEC. 8. If any executor or administrator, heir, legatee, creditor or case of suspected 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, conveyed 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. Person cited re SEC. 9. If the person so cited shall refuse to appear and submit to and answer, &c., such examination, or to answer such interrogatories as may be put to fusing to appear TITLE XVII. CHAPTER 71. him touching the matter of such complaint, the court may, by warrant for that purpose, commit him to the common jail of the county, there to remain in close custody until he shall submit to the order of may be committhe 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. ted. by persons en SEC. 10. The judge of probate, upon the complaint on oath of any Proceeding to executor or administrator, may cite any person, who shall have been compel account entrusted by such executor or administrator, with any part of the es- trusted with any tate of the deceased person, to appear before such court, and may re- part of estate. quire 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 per.. son so cited, shall refuse to appear and render such account, the court may proceed against him as provided in the peceding section. debtor. gaged premises SEC. 11. When any debtor of a deceased person shall be unable to When executor, pay all his debts, the executor or administrator, with the approbation &c., to comof the judge of probate, may compound with such debtor, and give pound with him a discharge upon receiving a fair and just dividend of his effects. SEC. 12. When any mortgagee of real estate, or any assignee of Interest in mortsuch mortgage, shall die without having foreclosed the right of re- to be considered demption, all the interest in the mortgaged premises conveyed by such personal assets, 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 could have had if living, or may continue any proceeding commenced by the deceased for that purpose, &c. lease. If premi. whom executor, SEC. 13. In case of the redemption of any such mortgage, or the When executor, sale of the mortgaged premises by virtue of a power of sale contained, may give retherein or otherwise, the money paid thereon shall be received by the ses bid in, for executor or administrator, and he shall thereupon give all necessary &c., to be seized' 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. cutor, may be cense. SEC. 14. Any real estate so held by an executor or administrator, Real estate puror which may be purchased by him as such upon a sale on execution chased by exefor the recovery of a debt due the estate, may be sold for the payment sold under liof 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 from the probate court in the manner provided by law. SEC. 15. If any land so held 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 life time. SEC. 16. When there shall be a deficiency of assets in the hands of If such land be not sold, how as signed and dis tributed. TITLE XVII. CHAPTER 72. an executor or administrator, and when the deceased shall, in his life time, have conveyed any real estate, or any right or interest therein, When suit to be with the intent to defraud his creditors, or to avoid any right, debt or prosecuted to duty of any person, or shall have so conveyed such estate that by law recover lands, &c., fraudulently the deeds or conveyances are void as against creditors, the executor conveyed by deor administrator may, and it shall be his duty to commence and proseceased. cute 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 fraudulently 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 life time, whatever may have been the manner of such fraudulent conveyance. Executors, &c., not bound to on application of creditors, &c. SEC. 17. No executor or administrator shall be bound to sue for such estate as mentioned in the preceding section, for the benefit of proscente except 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.. Disposition of SEC. 18 All real estate so recovered as provided in the sixteenth estate recovered. section of this chapter, 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 recovered as aforesaid, shall be appropriated in payment of the debts of the deceased, in the same manner as other assets in the hands of the executor or administrator. Commissioners CHAPTER 72. OF THE PAYMENT OF DEBTS AND LEGACIES OF DECEASED PERSONS. SECTION 1. When letters testamentary or of administration shall to examine and be granted by any probate court, it shall be the duty of such court to adjust claims, when to be ap pointed. Commissioners and place of meeting, and give notice. appoint two or more suitable persons to be commissioners, to receive, examine and adjust all claims and demands of all persons against the deceased, except in the following cases: 1. When it shall appear that there are no debts existing against such deceased person : 2. 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. SEC. 2. When such commissioners shall be appointed, it shall be to appoint time their duty to appoint convenient times and places, when and where they will meet for the purpose of examining and allowing the 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 ESTATES OF DECEASED PERSONS. ITY 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. SEC. 3. 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 townships in which it shall be required to be posted, and any other mode of notifying which he may deem necessary and proper. 291 TITLE XVII. CHAPTER 72. Judge of probate to designate paper in which no tice to be pub lished, &c. sioner shall die, SEC. 4. If any commissioner, appointed by the probate court, shall at any time die, remove out of the state, refuse, or become in any oth- When commiser way incapacitated to perform the duties of his appointment, the &c., court to apcourt may appoint another commissioner in his place; and no further point another in his place. notice of the meetings of the commissioners shall be required, in consequence of such appointment. claims. SEC. 5. The probate court shall allow such time as the circumstan- Time allowed for ces of the case shall require, for the creditors to present their claims presenting to the commissioners for 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. SEC. 6. The probate court may extend the time allowed to creditors to present their claims, as the circumstances of the case may require; ended, not ex but not so that the whole time shall exceed two years from the time ceeding two of appointing such commissioners. Time may be ex years. SEC. 7. On the application of a creditor who has failed to present When commishis claim, if made within six months from the time previously limited, sioner may be the court may, for good cause shown, renew the commission, and al- removed, &c. low further time, not exceeding three months, for the commissioners to examine such claim; 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. may examine SEC. S. In the case mentioned in the preceding section, if the judge When court of probate shall think proper, instead of renewing the commission, and adjust claim. 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. SEC. 9. When a creditor against whom the deceased had claims, Set-offs. shall present a claim to the commissioners, the executor or administrator shall exhibit the claims 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 limitations, shall be allowed by the commissioners in favor of or against the estate, as a set-off or otherwise. Commissioners SEC. 10. The commissioners shall be sworn to the faithful discharge of their duties, and any one of them shall be authorized to administer to be sworn, and may administer oaths to parties and witnesses, when the same shall be required or ouths. proper for the investigation and trial of questions before them. Report of com SEC. 11. At the expiration of the time limited, or as soon thereafter as they shall have time to complete the hearing of the claims present- missioners. ed, the commissioners shall make 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 disallowed, TITLE XVII. CHAPTER 72. What claims commissioners cide, &c. 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. SEC. 12. The commissioners shall have power to try and decide may try and de- 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 then present value, which may be payable at a future day, including claims payable in specific articles, and may offset such demands in the same manner in favor of the estate. Debts payable at a future day. Persons failing to present claims to be barred. No suit to be commenced against executor except ejectment, &c. SEC. 13. 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. SEC. 14. Every person having a claim against a deceased person proper to be allowed by the commissioners, who shall not, after the publication of notice as required in the second section of this chapter, exhibit his claim to the 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. SEC. 15. When commissioners shall be appointed, as provided in this chapter, for examining and allowing claims against any estate, no or administrator, action shall be commenced against the executor or administrator, except actions of ejectment, or other actions to recover the seizin or possession of real estate, and actions of replevin, 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 debts. Actions pending judgment to be certified, &c. SEC. 16. All actions and suits which may be pending against a deto be prosecuted ceased person at the time of his death, may, if the cause of action surto judgment, and vives, be prosecuted to final judgment, and the executor or administrator may be admitted to defend the same, and if 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 Executor or adninistrator not prevented from bringing suits. Set-offs in suits the estate. SEC. 17. 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 life time, for the recovery of any debt or claim, to final judgment, or from having execution on any judgment. SEC. 18. In such case, the defendant may set off any claim he may by executors, &c. have against the deceased, instead of presenting it to the commissioners, and all mutual claims may 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. Joint contract. SEC. 19. 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 ta |