be liable for costs, in any such suit, out of his own property nor the property of the deceased. 2309. Liability of party suing. 85. The person suing on such claim may be cited to render an account in the proper Circuit Cout; and if he fail to account or to pay over any sums of money collected thereon, he and his sureties may be sued on his bond, at the instance of any creditor or other person, for his proportion of the amount recovered on any such debt or claim; and the action on such bond shall be instituted and judgment recovered as in actions upon the bonds of executors or administrators. [1899 S., p. 504. In force March 6, 1899.] 2309a. Administrator claiming property of estate. 1. That in all cases where any person interested in an estate files a petition to the Court alleging that the administrator or executor or any person named in said petition, claims in his own right any personal property, note or chose in action, or said administrator or executor acquiesces in the claim of any person thereto, which personal property, note or chose in action is alleged to be the property of the estate and that it was the property of the decedent in his lifetime, such petitioner shall be allowed to make proof of his allegations and summons shall issue and issues shall be joined and trial had as in ordinary civil cases, but such petition shall be accompanied by a bond for costs with sufficient surety, to be approved by the Clerk, if filed in vacation or by the Court, if filed during term time, conditioned for the payment of all costs which may be adjudged against the petitioner. CLAIMS AGAINST THE ESTATE. SEC. ARTICLES 2310. When and how filed. 2311. Suits forbidden. 2312. Joint contracts and judgments. 2316. Claimant's remedy on the bond. 2319. Adjustment of claims. 2520. Effect of order. 2321. Transfer for trial. [1881 S., p. 423. SEC. 2322. Duty of executor concerning. 2326. Creditors, etc., may resi. 2328. No execution. 2329. Entry of allowance. 2330. When to pay claims. 2831. Proceedings to enforce liens, suspended. In force September 19, 1881.] 2310. When and how filed. 86. No action shall be brought by complaint and summons against the executor or administrator of an estate, for the recovery of any claim against the decedent; but the holder thereof, whether such claim be due or not, shall file a succinct and definite statement thereof in the office of the Clerk of the Court in which the estate is pending; any claims of the executor or administrator against the decedent shall be, in like manner, made out and filed in the office of the Clerk of the Court in which the estate is pending; if any claim against the decedent be founded upon any written instrument, alleged to have been executed by him, the original, or a complete copy thereof, shall be filed with the statement; the statement shall set forth all credits and deductions to which the estate is entitled, and shall be accompanied by the affidavit of the of the claimant, his agent or attorney, that the claim, after deducting all credits, set-offs and deductions to which the estate is entitled is justly due and wholly unpaid, and no claim shall be received unless accompanied by such affidavit; if the claim be secured by a lien on any real or personal property, such lien shall be particularly set forth in such statement, and a reference given to where the lien, if of record, will be found; if such claim be filed after the expiration of one year from the giving of notice by the executor or administrator of his appointment, it shall be prosecuted solely at the cost of the claimant; and if not filed at least thirty days before the final settlement of the estate, it shall be barred except as hereinafter provided, in the case of the liabilities of heirs, devisees and legatees. [As amended by act in force March 7, 1883. S. p. 153. 1. The only way to collect a claim against a decedent's estate is that prescribed by statute. The method by complaint and summons is not available.-Hyatt . Mavity, 34 Ind. 415, Leonard r. Blair. 59 id. 510. 2. If a defendant die after service of process upon him in the Circuit Court, the suit may be prosecuted against his administrator, in the same Court, to its end.-Lawson v. Newcomb, 12 Ind. 489. 3. Where an administrator is a necessary co-party in any suit, he may be sued in any county where any of his co-defendants reside, by complaint and summons in the usual mode.-Braxton v. State, 25 Ind. 82; Owen . State, id. 107. 4. All claims but those excepted herein, if not filed as required, are barred.—Cincinnati, etc., R. R. Co. v. Heaston, 43 Ind. 172. 5. Taxes upon lands, accrued before death, may be paid by the administrator as preferred liens, without filing thereof; otherwise, with those accruing after the death.Henderson v. Whitinger, 56 Ind. 131. 6. If a previous demand be necessary in a suit against the administrator of an agent, filing the claim is not such demand.-Hannum r. Curtis, 13 Ind. 206. 7. In a suit against an administrator or executor, judgment should be rendered de bonis, not personality.-Crane v. Hopkins, 6 Ind. 44. S. The claim filed against a decedent's estate need not be a complaint regularly drafted. A succinct statement, clearly enough drawn to bar another suit, is sufficient.-Post v. Pedrick, 52 Ind. 490. 2311. Suits forbidden. 87. No action shall be brought by complaint and summons against any executor or administrator and any other person or persons, or his or their legal representatives, upon any contract executed jointly, or jointly and severally, by the deceased and such other person or persons, or upon any joint judgment founded thereon; but the holder of said contract or judgment shall enforce the collection thereof against the estate of the decedent only, by filing his claim as provided in the preceding section. 2312. Joint contracts and judgments. 88. Every contract executed jointly by the decedent with any other person or persons, and every joint judgment founded on such contract, shall be deemed to be joint and several for the purpose contemplated in the last preceding section; and the amount due thereon shall be allowed against the estate of the decedent as if the contract were joint and several. 2313. Suretyship of decedent. 89. If the decedent be a surety only in any joint or joint and several contract, or in any judgment founded thereon, his estate shall not be liable for the payment thereof, unless it be shown that the principal is a non-resident of this State or is insolvent: Provided, That, although the principal be a resident of this State and his insolvency be not proved, nevertheless the claim may be allowed against the estate provisionally, to be paid on subsequent proof of the diligent prosecution of the principal to insolvency, or that such prosecution would not have availed. The final settlement of the estate shall not be delayed by reason of such allowance, but an amount of money sufficient to discharge the claim, or its pro rata share in case the estate be insolvent, may be paid into Court for that purpose. After notice to the creditor, and on proof that his demand has been paid, or that he has failed to diligently prosecute the principal, and that such prosecution would have availed, the Court shall order the money reserved to be distributed to the heirs or legatees. The creditor may, at any time after notice to the parties interested, apply for the payment of his claim; and if it appear that he has diligently prosecuted the principal to insolvency, or that such prosecution would not have availed, the Court shall order his claim to be paid. 2314. Co-suretyship of decedent. 90. If the decedent be bound as a co-surety in any joint or joint and several contract, or judgment founded thereon, his estate shall, in case of the non-residence or insolv ency of the principal as aforesaid, be liable only for its proportional part of the debt according to the number of solvent sureties resident in the State. 2315. Claims not due. 91. If any person interested in such estate shall execute bond, with penalty and surety to the acceptance of a creditor whose claim is not due, for the payment thereof when it shall fall due, if the same shall prove to be a legal demand, the Court, on such bond being delivered and accepted and a statement thereof, subscribed by such creditor, filed in such Court, shall direct a minute thereof to be made on its order book, and the estate of the deceased to be discharged from further liability touching it. 2316. Claimant's remedy on the bond. 92. If such person fail to pay such claim when it shall be due, such creditor may maintain a suit on such bond; and the persons executing the same may show any matter of valid defense. 2317. Entry and allowance docket. 93. The book required by this Act to be kept by the Clerk for general entry, claim, and allowance docket shall contain, on each page, a printed heading, No.. Estate of executor (or administrator)." On the left hand page 66 shall be kept the general entry docket, and on the corresponding right hand page the claim and allowance docket. As soon as letters testamentary or of administration shall be issued on an estate, the Clerk shall note the estate on the general entry docket, and note thereon the number of the estate, name of the executor or administrator, his post-office address, date of letters, penalty of bond, and sureties thereon. When an inventory or sale bill shall be filed, he shall note thereon the amount and date of filing; he shall, from time to time thereafter, note thereon, briefly, the proceedings of the Court and date thereof. Each estate set off to a widow without administration, and the number thereof, shall also be noted on said docket. Estates shall be numbered from one upwards, consecutively, and shall retain the same number pending the settlement thereof. On the right hand page, opposite the general entry docket of an estate, shall be kept the claim and allowance of said estate; it shall be provided with columns and printed headings thereto, for number of the claim, name of claimant, date of the filing, date of allowance, and amount thereof, and remarks. The claims, when filed, shall be, by the Clerk, numbered from one upwards, and bear the same number in all subsequent proceedings thereon; and for all services in filing and recording on such docket any claims, the clerk shall be allowed ten cents and no more. [As amended by act in force March 7, 1883. S., p. 154. 2318. Clerk's duty. 94. Immediately upon the filing of a claim against an estate, the Clerk shall enter the same in the claim docket of the estate, under the appropriate headings; and if the same, as shown by the statement thereof, be secured by a lien, the Clerk shall briefly note the kind of lien upon such docket. The filing of the claim and entry thereof upon the claim docket, shall be deemed the commencement of the action upon such claim, and shall be all the notice necessary to be given to the executor or administrator of the pendency of the action. 2319. Adjustment of claims. 95. Whenever any claim against the estate of any decedent shall have been filed and placed upon the appearance docket of such court ten days before the first day of the ensuing term thereof, the executor or administrator of such estate shall admit or refuse to admit such claim in writing, on the margin of such appearance docket, opposite such claim. If such claim is not so admitted before the last day of said term, the same shall be transferred to the issue docket of such court, and shall stand for trial at the next term thereof, as other civil actions pending therein: Provided, That the Court may, in its discretion, require further proof as to any claim, notwithstanding the executor or administrator may have admitted the claim in the manner provided in this act. As amended by act in force March 7, 1883. S., p. 154. 2320. Effect of order. 96. The allowance of a claim, as provided for in this Act, shall, as between the claimant and the executor or administrator, be operative, and as an adjudication of the validity and amount of the claim and presumptive evidence thereof in any proceeding by the executor or administrator for the sale of the real estate of the decedent to discharge the liabilities of his estate. [As amended by act in force March 7, 1883. S., p. 155. 2321. Transfer for trial. 97. Whenever a claim in favor of an executor or administrator against the estate he represents, which accrued before his [the] death of such decedent, shall be filed against said estate, with the affidavit of the claimant attached, thirty days before the commencement of the term of said court during which the claim is to be presented for allowance, the judge of said court shall represent said estate, and shall examine into the nature of said claim, and if the same be by said court deemed just and right, said court shall allow said claim, and order the same paid out of said estate, as other claims of the same class, and said court may, in its discretion, examine under oath such executor or administrator, or any other person touching said claim, and if such court shall be of the opinion that the interests of said estate will be promoted by active opposition to such claim, it shall be the duty of such court to appoint a practicing attorney of said court to represent said estate, and the same pleadings, issues and trial may be had [as] in other claims, and such court shall allow to such attorney, to be paid out of said estate, such fees for his services as may be deemed by said court just and right, and no attorney shall be allowed compensation for representing the estate of a decedent in defense of such a claim, except when appointed in pursuance of this act. [As amended by act in force March 7, 1883. S., p. 155. 2322. Duty of executor concerning claims. 98. It shall be the duty of every executor or administrator to inquire into the correctness of all claims filed against the estate that he represents, and to make all available defenses thereto, and if he fails so to do, he shall be liable on his bond, at the suit of any person interested in the estate, for all damages sustained by the estate in consequence of such neglect. [As amended by act in force March 7, 1883. S., p. 156. 2323. Default of claimant. 99. If any claimant fail to attend and prosecute his claim at the time the same shall be set down for trial, the Court shall dismiss the claim; and any subsequent prosecution of the claim. against the estate shall be at the costs of the claimant, unless good cause for such failure to prosecute be shown. 2324. Pleadings- New party. 100. When any claim is transferred for trial, it shall not be necessary for the executor or administrator to plead any matter by way of answer, except a set-off or counter-claim; to which the plaintiff shall reply. If the executor or administrator plead any other matter by way of defense, the claimant shall reply thereto; the sufficiency of the statement of the claim or of any subsequent pleading may be tested by demurrer; and if objection be made that the assignor of a claim assigned by indorsement is not a party to the action, leave shall be given the claimant to amend, by making him a party to answer to his interest in the claim and to sue out process against the assignor to answer in that behalf. And if it shall be shown to the Court that any person is bound with the decedent in any contract which is the foundation of the claim, the Court shall direct that the claim be amended by making such person a defendant in the action, and process shall be issued against [and] served pon him, and thereafter the action shall be prosecuted against him as a co-defendant with such executor or administrator, and judgment shall be rendered accordingly. [As amended by act in force March 7, 1883. S., p. 156. 1. In an action against an estate, upon a written instrument signed by the decedent, its execution must be proved, though not denied under oath.-Wells v. Estate, 71 Ind. 509. 2325. Trial and judgment. 101. The trial of such claims shall be conducted as in ordinary civil cases; and if the finding be for the claimant in damages, the Court shall render judgment against the executor or administrator for the amount thereof, and six per cent. interest thereon, and for cost, if allowed by the provisions of this Act, to be paid out of the assets of the estate to be administered; if the claims sued on be secured by a lien upon property of the deceased, the date and extent shall be ascertained and fixed by the finding and judgment; if the finding be in favor of the executor or administrator upon a set-off or counter-claim, judgment shall be rendered thereon, as in ordinary cases; if a set-off or counter-claim be pleaded, and the claim be afterward dismissed, the executor or administrator may, nevertheless, proceed to trial and judgment on the set-off or counter-claim. [As amended by act in force March 7, 1883. S., p. 156. 1. Claims against decedents' estates are within the statute on the subject of change of venue.-Lester v. Lester, 70 Ind. 201. 2326. Creditors, etc., may resist. 102. In all cases where a claim is filed against the estate of a decedent, and has been allowed by the executor or administrator, any person interested in the estate, upon written petition to the Court, shall be allowed at his expense to defend such claim, notwithstanding such allowance; but such petition must be filed with the Clerk of the proper Court within sixty days after the claim has been by such executor or administrator indorsed, allowed on the claim docket and before the final settlement of such estate, and such petition shall be accompanied by a bond with sufficient surety, payable to the executor of administrator, to be approved by the Clerk, conditioned for the payment of the costs that shall be adjudged against him; if the amount of the claim be reduced ten per cent. on such trial, the Court shall order the cost and all expenses incurred by such persons in contesting said claim, paid out of |