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thenticated copy of his appointment shall be first filed; and such Court shall have exclusive jurisdiction to direct the sale of any lands of the deceased situated in any county in this State.
2368. Mortgage and lease. 141. Instead of ordering the sale of real estate for the payment of debts or legacies, the Court may authorize the executor or administrator io mortgage or lease such real estate, or any part thereof, for any period not longer than five years, if it shall appear that the money necessary to be raised can be procured thereby to the interest of the estate.
2369. Mortgage or lease — Bond. 142. A lease or mortgage, executed by the executor or administrator, under the authority of the Court, shall be as valid as if executed by the deceased in his life time ; but before the Court shall make any order to authorize an executor or administrator to execute such lease or mortgage, he shall execute bond in a like manner as is required, previous to making an order for the sale of real estate.
2370. Accounting. 143. The Court granting the order for the mortgage, lease, or sale of such real estate, shall possess the same power to compel such executor or administrator to account for the proceeds thereof as in case of personal estate,
2371. Bond to prevent sale, etc. 144. An order for the sale, lease, or mortgage of such real estate shall not be granted, if any of the persons interested in such estate shall give bond to the execintor or administrator, in a sum, and with sureties to be approved by the Court, conditioned to pay all liabilities eventually due from the estate, with charges of administration, so far as the personal estate is insufficient.
2372. · Possession of real estate. 145. If there be no heir or devisee of a testator or intestate present at the death of the decedent, to take possession of the real estate left by any such testator or intestate, the executor or administrator of his personal estate may, as trustee for the proper heirs or devisees, take possession of such real estate, and demand and receive the rents and profits arising therefrom, and sue for and recover the same, and do all other acts relating to such real estate which may be for the benefit of the persons entitled thereto and consistent with their rights and interests, until the settlement of such estate, and until the Court make further order in the premises,
2373. Accounting for rents. 146. Such executor or administrator shall account to such Court for any rents or profits or use of such premises which he shall have received; and the same may be applied to the payment of the debts of the decedent, after the personal property shall have been exhausted.
(1885 S., p. 40. In force March 5, 1885.] 2373a. Sales of real estate legalized, 1. In all cases in which eal estate belonging to any decedent has been sold under an order of any Circuit Court, upon the petition of an administrator or executor, for the payment of debts, or pursuant to the provisions of a will, and the proceedings upon such petition, and in making such sale and in the confirmation thereof, and in making conveyance to the purchaser, have been, in all respects, regular, except that the sale was made by a Commissioner appointed by the Court, instead of the executor or administrator, and the proceeds of such sale have been fully paid over and accounted for to the proper person or authority, such sale shall not be deemed void by reason of having been made by such Commissioner, but the same is hereby legalized, and the deed made in pursu. ance thereof shall be as effectual to pass title as if such sale had been made by the administrator or executor: Provided, however, That this act shall only apply in cases where, at the time of its taking effect, the title to said real estate would be, but for such sale, still vested in persons who were parties to the proceedings under which such sale was made, their heirs, devisees or voluntary grantees. ARTICLE 10– - CONVEYANCE UPON TITLE BOND.
2377. Suit for purchase money. (1881 S., p. 423. In force September 19, 1881.] 2374. Petition by executor or administrator. 147. Whenever any person who has executed a title bond or contract for the conveyance of teal estate to any person or corporation shall die before such conveyance is executed, and shall have made no legal provisions, by will or otherwise, for the execution of such conveyance, and the whole or any part of the
SEC. 2374 2375.
purchase-money be unpaid at his death, the executor or administrator of such deceased person may file a petition in the Circuit Court of the county where the real estate or any part thereof lies, or where letters testamentary or of administration are granted, against the obligee, vendee, or assignee, or all of them, as may be necessary, and also the heirs and devisees, if any, of the deceased, praying in such petition for the appointment of a commissioner to execute a conveyance to the proper holder of such bond or contract.
2375. Proceedings of Court. 148. The Court in such case, where process has been served ten days or publication made in case of non-residence of the defendant for thirty days before the first day of the term, may appoint a commissioner to execute a conveyance in conformity with the requisitions of the title-bond or agreement and to report the conveyance as soon as executed to the Court; and if the Court shall approve the deed, the same shall be entered of record and delivered to the executor or administrator.
2376. Tender and demand for payment. 149. The executor or administrator may tender such deed to the person to whom such tender should be made, and demand payment of the purchase-money due and unpaid.
2377. Suit for purchase-money. 150. If, apon due tender of the deed, the person liable to an action for the recovery of the purchase-money refuse to pay the same, such executor or administrator may maintain an action for the recovery of the purchase-money due and unpaid against the person thus liable.
ARTICLE II - PAYMENT OF DEBTS AND LEGACIES.
SEC. 2378. Order of paying debts.
2381, Legacies, when paid. 2379. Legatee, etc., may apply.
2382. Payment to guardian, 2380. Bond required.
(1881 S., p. 423. In force September 19, 1881.] 2378. Order of paying debts. 152. Unless otherwise provided in this Act, the debts and liabilities of a decedent shall, if his estate be solvent, be paid in the following order of classes:
First. The expenses of administration,
Fourth. Taxes accrued upon the real and personal estate of the deceased at his death, and taxes assessed upon the personal estate during the course of the administration,
Fifth. Debts secured by liens upon the personal and real estate of the decedent, created or suffered by him in his life-time, and continuing in force: Provided, That if the real estate of the decedent shall have been sold subject to any lien, and the holder thereof shall have accepted the bond of the purchaser as provided in this Act, the debt secured by such lien shall be omitted in the distribution.
Sixth. A sum not exceeding fifty dollars, for wages due any employé for work and labor performed for the decedent within two months prior to his death.
Seventh. General debts.
1. Rights of priority and the order of payment of claims against a decedent's estate are fixed by the statute, and can not be determined otherwise by the judgment of a Court.-Jenkins o. Jenkins, 63 Ind. 120.
2. Individual creditors of the deceased member of a firm have priority in the distribution of the assets of his estate. Partnership creditors can only have distribution after the personal indebtedness is paid.—Bond v. Nave, 62 Ind. 505.
3. The provision of this section in relation to liens on real property are not designed to give a mortgayee a general lien upon the property of the estate, but to preserve the mortgage-lien as to its property after the death of the mortgagor.-Rogers o. State, 6 Ind. 31; Kirkpatrick o. Caldwell, 32 id. 299; Hunsucker v. Smith, 49 id. 114.
2379. Legatee, etc., may apply. 153. Any person entitled to any legacy or to a distributive share of the estate of any deceased person may, at any time previous to the settlement of such estate, apply to the Court, either in person or by guardian, after giving reasonable notice to the executor or administrator, to be allowed to receive a portion of such legacy or distributive share. [As amended by act in force March 7, 1883. S., p. 158.
1. An infant can not appoint an agent; and an order of Court directing payment of a distributive share to a person, as agent of an infant heir, is erroneous.-Tapley v. McGee, 6 Ind. 56.
2. An administrator who, without an order of Court, pays to distributees, in advance, the money of the estate, can not, upon a lack of assets to pay the expenses of the trust, recover the same from them.-Egbert v. Rush, 7 Ind. 706.
2380. Bond required. 154. If it appear to the Court that there be at least one-third more of assets in the hands of such executor or administrator or in Court than will be sufficient to pay all debts and legacies against the estate then known, such Court may, in its discretion, allow such portion of such legacy or distributive share to be advanced as it may deem proper, upon satisfactory bond being executed to such executor or administrator, with sufficient penalty and surety for the return of any portion with interest, whenever necessary for the payment of debts, legacies, or claims, or to equalize the shares and legacies among those entitled thereto.
2381. Legacies, when paid. 155. After the expiration of one year from the granting of letters, the executor or administrator may, if the estate be solvent, discharge the specific legacies and pay the general legacies bequeathed by any will, if there be sufficient assets; and if there shall not be sufficient assets to pay the general legacies, then an abatement thereof shall be made in proportion to the amount of each.
2382. Payment to guardian. 156. In case any legatee be a minor, his legacy, if so directed by the Court, and no other provision for the payment thereof be made by the will, may be paid to the guardian of such minor; and such Court may require an additional bond of such guardian, if the amount of such legacy was not taken into consideration at the time he gave bond as such guardian.
ARTICLE 12- ACCOUNTING AND SETTLEMENT.
2383. Semi-annual account.
Order for final settlement or continuance. 2393. Citation to account.
Final settlement, after year.
(1883 S., p. 159. In force March 7, 1883.) 2383. Semi-annual account. 157. At the end of one year from the issuing of letters, and notice thereof, or so soon thereafter as the sale notes for personal property shall mature, the executor or administrator shall file in the Court issuing his letters, a true and complete account of all the assets of the estate of the dece. dent which shall have come to his hands, and of all disbursements made by him, and all credits to which he may be entitled; in such account he shall charge himself with the amount of each inventory of personal and real estate filed by him with each item, of principal or interest, or both, collected by him in addition to the amounts thereof, as shown by the inventories and sale bills filed by him, with the profits realized in the sales of property; with the kind and value of all property of the decedent received by him and not inventoried, with cach claim and amount thereof due the deceased, and not inventoried, and with all income, rents and other increase of the estate, received by and chargeable to him as such executor or administrator. He shall also exhibit in such account the total amount of moneys received by him, and the total amounts thereof paid out on account of the estate, and the particulars and amount of each claim, due or owing to the estate and remaining unpaid, and his claim for services, expenses and attorney's fees; such account shall be accompanied by the affidavit of the execu. tor or administrator, subscribed by him, that the account is a true and complete exhibit of his administration of the estate, and upon the finding of the Court upon any report, showing the receipts and expenditures by the executor or administrator, an appeal will lie to the Supreme Court as in final judgment.
1. An administrator is liable for any interest he may have collected upon the debts due the estate. — Ray v. Doughty, 4 Blackf. 115.
(1881 S., p. 423. In force September 19, 1861.) 2384. Payment to creditors, by order. 158. Upon the filing of any of the accounts required by this act, and upon its appearing to the Court that the estate is clearly solvent, the Court shall order the distribution of the moneys so received among the creditors of the deceased whose claims have been allowed, according to order of classes before set forth in this Act: Provided, That the Court may, if the same be found necessary to protect the interest of the estate or to secure to the widow of the decedent her interest in his real estate, order the payment out of such moneys of any specific lien upon the real estate of the decedent; the Court may order the moneys to be distributed by the executor or administrator, or may require the same to be paid in the Court and distributed by the Clerk thereof. (As amended by act in force March 7, 1883. S., p. 159.
2385. Payment of claims - Penalty for delay. 159. Nothing in the preceding section shall operate to prevent or delay the payment of any claim that shall have been allowed, if the estate be clearly solvent; but it shall, in such case, be the duty of the executor or administrator, as fast as moneys shall come in his hands, to pay off the claims that have been allowed, giving preference, if any exist at the time of payment, as prescribed in the section prescribing the order of payment in this Act. executor or administrator fail or refuse to pay any claims when he has moneys in his hands applicable to that purpose, he shall be chargeable with the interest on such claim for such time as payment thereof shall have been wrongfully delayed, and shall also be liable in a suit on his bond for the amount of the claim and ten per cent damage thereon. [As amended by act in force March 7, 1883. S., p. 159.
2386. First account current. 160. It shall be the duty of the Judge, on the first day of each term of Court, to call the estates pending in Couri for reports due from executors or administrators, as provided for in this act, and if any executor or administrator shall fail to file a report when due, such Judge shall enter an order that a citation be issued for such ex
ecutor or administrator, requiring him to make and file such report, if the same is not filed within twenty days, and compel the making and filing of such report by attachment, and the executor or administrator shall be individually liable for all the cost occasioned by such citation and attachment, said citation to be issued within ten days before the next term of Court thereafter. [Act in force March 7, 1883. S., p. 159.
1. Partial settlements or accounts current filed by an executor or administrator are not conclusive either for or against him, but may be corrected or reformed at any time before final settlement, for cause shown. They are prima facie correct. -Goodwin v. Goodwin, 48 Ind. 584; State v. Wilson, 51 id. 96.
2. The final settlement of an administrator or executor is held to be conclusive upon all parties, and can only be disturbed in very clear cases of fraud or mistake.
- Ray v. Doughty, 4 Blackf. 115; Reed v. Reed, 44 Ind. 429; Barnes v. Bartlett, 47 id. 98; Holland v. Fenton, 18 id. 391.
3. When final settlement has been made any party interested may appeal therefrom; or for mistake or fraud, it may be re-opened and set aside in the Court where made. Beard v. Church, 15 Ind. 490; Dufour v. Dufour, 28 id. 421; Reed v. Reed, 44.id. 429; Lancaster v. Gould, 46 id. 397.
(1881 S., p. 423. In force September 19, 1881.] 2387. Verification. 161. When any account is rendered by one or more joint executors or administrators, the Court may, in its discretion, allow the same to be verified by any one of them.
2388. List of expenses and charges. 162. At the time of filing the account required by the section next before the last, the executor or administrator shall file therewith, for allowance, a list of the expenses of administration, including a transcript from the fee book of the Clerk of all costs taxed against the estate; and his claims for services and attorney fees incurred in administering the estate. [Repealed March 7, 1883,
2389. Charges and credits : 163. Every executor and administrator shall be chargeable, at their value, with all goods, chattels, moneys, rights, credits and effects of the deceased which shall have come to his hands, and which, by law, are to be administered, although they may not have been included in any inventory; also, with all inventories of real estate sold, leased or mortgaged for the payment of debts or legacies, and with all increase, interest, profit and income, which shall in any way come to his hands from the estate of the deceased. And in accounting therefor, he shall be entitled to credit for the amount taken by the widow of the deceased; the loss, if any, on the sale of personal or real estate; the appraised value of property inventoried by him, and lost or destroyed without any fault or negligence of his own; the losses and deductions by reason of the compounding of debts; the discharge from the collection of insolvent and desperate claims, set-offs, counter-claims and payments allowed against claims due the estate, and for moneys legally paid out on expenses of administration and claims against the estate and legacies, and advanced to the heirs under the order of Court.
2390. Notice of hearing. 164. Upon the filing of such account, the Clerk shall fix a day, in term, by indorsement on the account, not less than three weeks from the date of filing, when the account will be heard; and if the account is for final settlement, or if partial only, yet in the opinion of the executor or administrator is of sufficient importance to require final action thereon, said executor or administrator shall give notice to all per