Imagens das páginas

ditioned that they will pay the pro rata share of such claim in the event it be allowed; in which case such estate shall be finally settled. 2441. Final settlement - Notice.

215. Upon the filing of an account for final settlement, the creditors of the estate shall be notified of the filing and time of hearing of the final settlement account, in the manner hereinbefore provided in case of solvent estates. [As amended by act in force March 7, 1883. S., p. 163.




2442. Liability of heirs, devisees, and distributees. 2448. Provisions of will to be complied with. 2443. Suit, and where brought.

2449. Joint suit - New parties. 2444 Decree against real estate.

2450. Infancy. 2445. Personal judgment, when.

2451. Delay of, as to infants - Contribution. 2446. What property to be first sold,

2452. Infants to appear by guardian. 2447 xtent of liability.

2453. Judgment, when opened. (1881 S., p. 423. In force September 19, 1881.] 2442. Liability of heirs, devisees, and distributees. 216. The heirs, devisees, and distributees of a decedent shall be liable, to the extent of the property received by them from such decedent's estate, to any cred. itor whose claim remains unpaid, who, six months prior to such final settlement, was insane, an infant, or out of the State; but such suit must be brought within one year after the disability is removed : Provided, That suit upon the claim of any creditor out of the State must be brought within two years after such final settlement.

1. One who buys at a partition sale, and afterward, to prevent an administrator's sale, pays the debt of the estate, can not recover the amount from the widow and children of the decedent.-Weakley v. Conradt, 56 Ind. 430.

2. Without administration there is no liability of heirs or devisees.- Leonard o. Blair, 59 Ind. 510.

3. For further construction, see Blair 0. Allen, 55 Ind. 409.

4. A creditor of a decedent's estate must proceed to enforce his claim against it through an administration ; and can not, in the first instance, sue the heirs, devisees, and legatees where there has been no administration. – Wilson v. Davis, 37 Ind. 141.

5. An action was brought against the widow and heirs of a subscriber to a church, alleging the receipt, by them, of assets, but that there had been no administration. Held, That the suit would not lie.- N. W., etc., Conference v. Myers, 36 Ind. 375.

2443. Suit, and where brought. 217. Such suit shall be instituted in any Court of competent jurisdiction against all who are liable who can be reached with process, and their representatives, by petition; and the costs of such suit shall be apportioned among the defendants in proportion to the amount recovered of each of them.

2444. Decree against real estate. 218. Unless it shall appear to the Court that the real estate which has descended or was devised to any such defendant, and on account of which the creditor is entitled to recover against him, was alienated by him in good faith subsequently to the final settlement of the estate of the ancestor or devisor, by the executor or administrator, and before the commencement of such suit, the Court may decree that the debt of the claimant shall be levied of such real estate; and every such decree against the same shall have preference as a lien thereon to any judgment or decree obtained against such defendant personally for any debt or demand in his own right.

2445. Personal judgment, when. 219. But no real estate thus descended or devised to such heir or devisee, and alienated by him in good faith after the final settlement of the estate of the ancestor or devisor, and before the commencement of such suit, shall be liable to execution, or in any manner affected by a decree against such defendant in the premises; but he shall be personally liable on such execution or decree for the amount proper to be recovered against him, as for his own debt, not to exceed the value of such real estate, unless he be liable on account of persunal assets; in which case he shall be also liable to an amount not to exceed the value of such assets.

2446. What property to be first sold. 220. When such real estate has been alienated by any such defendant, but is liable to be reached by such decree, the same shall not be taken and sold by virtue thereof until the other property of the defendant, subject to execution, has been exhausted; and in that case, any deficiency shall be supplied by resort to the property thus alienated.

2447. Extent of liability. 221. No more shall be recovered against any such defendant than his just proportion of any such debt, whether he has become liable therefor on account of real estate or any interest therein, or on account of personal assets, unless the others are beyond the reach of process, or unless, after due diligence, the amount can not be recovered from the others who are liable with him; in which case he shall be liable therefor to the extent of the real and personal assets received by him.

2448. Provisions of will to be complied with. 222. If, by the will of the deceased, any part of his estate, or any one or more of the devisees or legatees, shall be made exclusively liable for the debt, in exoneration of the estate or of the devisees or legatees, the provisions of the will shall be complied with in that respect; and the real estate, and the persons so exempted by the will, shall be liable only for so much of the debt as can not be recovered from those first chargeable therewith.

2449. Joint suit — New parties. 223. Heirs, devisees, and distributees may be sued jointly in any such suit; and no such suit shall be barred or dismissed for want of including all the persons as defendants who might have been included; and in any stage of the proceedings, the Court may award to the complainant proper process to bring in other parties, and may allow such amendments as may be necessary to charge them as defendants, on such terms as the Court shall think reasonable.

2450. Infancy. 224. No such suit shall be delayed, nor shall the remedy of a claimant be suspended, by reason of the infancy of any heir, devisee, or distributee; but guardians, to defend their rights in such suit, shall be appointed as in other cases,

2451. Delay of, as to infants - Contribution. 225. When a decree shall be rendered against defendants who are infants, no execution issued thereon shall be executed against them until the expiration of one year after the rendition of such decree; but such execution may be executed against other defendants in the same suit, who are of full age, as in other cases; and whenever any heir, devisee, or distributee shall have been compelled to pay more than his just proportion, he may have his action severally, or jointly with others, to recover of the other heirs, devisees, or distributees liable therefor the amount which he may have thus been compelled to pay.

2452. Infants to appear by guardian. 226. In all suits and proceedings instituted under the provisions of this Act in which infants may be plaintiffs, complainants, or defendants, such infants shall appear by their guardian at law or guardian ad litem, appointed by the Court; and such suits or proceedings, if conducted in good faith, shall not be liable to be opened by such infants, upon arriving at full age.

2453. Judgment, when opened. 227. Any such infant, after arriving at full age, may, within three years thereafter, upon the proper proceedings being instituted by him, have any judgment, order or decree, opened or annulled, or set aside, if he can show that the same was obtained by mistake or through fraud.

Where minors are represented, in proceedings relating to the settlement of estates, by their guardians at law, or guardians ad litem, and the proceedings are conducted in good faith and are free from fraud, such minors can not, after arriving at age, have the proceedings set aside. Seward v. Clark, 67 Ind. 289.

Selling property that does not belong to a decedent, and which descends to an heir, is such a mistake as will authorize such heir, when a minor ,to have the proceedings authorizing such sale set aside and corrected. Edwards v. Beall, 75 Ind. 401.

A minor may bring a suit to correct proceedings on account of fraud or mistake before he arrives at age. Edwards v. Beall, 75 Ind. 401.

[blocks in formation]

2454. By whom and how taken - Bond. 228. Any person considcring himself aggrieved by any decision of a Circuit Court, or Judge thereof in vacation, growing out of any matter connected with a decedent's estate, may prosecute an appeal to the Supreme Court, upon filing, with the Clerk of such Circnit Court, a bond with penalty in double the sum in controversy, in cases where an amount of money is involved (or where there is none, in a reasonable sum, to be designated by such Clerk), with sufficient surety, payable to the opposite party in such appeal, conditioned for the diligent prosecution of such appeal, for the payment of the judgment which may be affirmed, and all costs, if costs be adjudged against the appellant.

1. The provisions of the Civil Code with reference to appeals are not applicable to probate procedure.- State v. Hughes, 15 Ind. 105; Thieband v. Dufour, 57 id. 598; Seward v. Clark, 67 id. 289; Bell v. Mousset, 71 id. 347.

Appeals taken to the supreme court from all orders, decisions and judgments relating to the settlement of decedents' estates must be taken under this section. Seward v. Clark, 67 Ind. 289; Bell v. Moussett, 71 Ind. 347; Yearley v. Sharp, 96 Ind. 469; Browning v. McCracken, 97 Ind. 279; Miller v. Carmichael, 98 Ind. 236; Bennett v. Bennett, 102 Ind. 86; Rinehart v. Vail, 103 Ind. 159.

An appeal from a judgment in a proceeding to set aside a final settlement must be taken under this section. Webb v. Simpson, 105 Ind. 327.

An appeal will not lie from an order setting aside an order for the distribution of an estate. Wood v. Wood,, 51 Ind. 141.

An appeal can not be taken from orders made in a partial settlement of an es-tate. Goodwin v. Goodwin, 48 Ind. 584; Thiebaud v. Dufour, 57 Ind. 598.

An appeal may be taken from a judgment approving a final settlement without awaiting the final discharge of the executor or administrator. Taylor v. Burk, 91 Ind. 252.

Appeals from judgments in actions brought by executors or administrators ta collect debts, or assets, due the estate, are governed by the provisions of the civil code. Rusk v. Gray, 74 Ind. 231; Hillenberg v. Bennett, 88 Ind. 510; Walker v. Steele, 121 Ind. 436.

If an executor or administrator is substituted in a suit in the place of a decedent, an appeal in such a case will be governed by the civil code. Wright v. Vanns, 111 Ind. 422; May v. Hoover, 112 Ind. 455; Holland v. Holland, 131 Ind. 196.

An appeal from a proceeding to have a will construed is governed by the civil code. Simmons v. Beazel, 125 Ind. 362.

When an action is not necessarily brought in the court having probate jurisdiction, then the appeal lies under the civil coole. Mason v. Roll, 130 Ind. 260.

In a proceeding by a creditor of a legatee to have a iegacy applied on a debt owing by the legatec, the appeal is governed by the civil code. Koons v. Mellett, 121 Ind. 585.

Persons made parties to claims filed against estates when they are not jointly bound by contracts with the decedent, may appeal from judgments rendered, under the civil code. Claypool v. Gish, 108 Ind. 424.

Appeals can not be taken without filing a bond. Brook v. Maxwell, 5 App. 353.

2455. Bond and transcript, when filed. 229. That such appeal bond shall be filed within ten days after the decision complained of is made, unless, for good cause shown, the court to which the appeal is prayed shall direct such appeal to be granted, on the filing of such bond, within one year after such decision. But any person who is aggrieved, desiring such appeal, may take the same in his own name without joining any other person. The transcript shall be filed in the Supreme Court within ninety days after filing the appeal bond: Provided, That this act shall not affect pending suits or litigation, and the same shall be heard and determined the same as though this act was not in force. [As amended 1899 S., p. 397. Approved March 3, 1899.

1. After submission of a cause it is too late to move for the dismissal of the cause for want of an appeal bond. West v. Cavins, 74 Ind. 265.

2. When an executor or administrator appealed under the statute of 1881, the transcript was required, to be filed in the Supreme Court within twenty days after the decision was made, unless the time for appeal was extended. Yearley v. Sharp, 96 Ind. 469; Miller v. Carmichael, 98 Ind, 236,

3. Under the statute of 1881 the transcript was required to be filed in the Supreme Court within ten days after the filing of the bond. Browning v. McCracken, 97 Ind. 279.

4. Under this act as amended, 1885 S., p. 194, similar in effect to the 1899 amendment, the appeal bond must be filed within ten days after the decision is made, and the transcript must be filed in the Supreme Court within thirty (now ninety) days after filing the bond, when there is no extension of time for taking an appeal. Rinehart v. Vail, 103 Ind. 159.

5. Forty days are given from the time the decision is rendered for filing the transcript in the Supreme Court, and filing the board before the expiration of the ten days allowed will not shorten the time for filing the transcript. Simons v. Simons, 129 Ind. 248.

6. Parties should be given notice of an application to extend the time for an appeal, but the appeal will not be dismissed for the want of such notice when both parties are brought into court. Duncan v. Gainey, 108 Ind. 579.

7. A second motion to dismiss an appeal will not be entertained although the ruling on the prior motion was erroneous. Walker v. Heller, 104 Ind. 327.

2456. Costs. 230. In taxing costs against the parties to such appeal, the same rules shall be observed as in cases of appeals from Justices of the Peace to the Circuit Court. 2457. Executor, etc., appeals without bond. 231. In

any appeal prayed for by an executor or administrator from the decision of any Court, or Judge thereof in vacation, it shall not be necessary for such person to file an appeal-bond.

Executors and administrators may prosecute appeals without filing appeal bonds. Bake v. Smiley, 84 Ind. 212; Yearley 1. Sharp, 96 Ind. 469; Ruch v. Bierry, 110 Ind. 444.


2458. Who may sue, and for what.
2459. Costs-Damages.

2460. No stay or relief.

[1881 S., p. 423. In force September 19, 1881.] 2458. Who may sue, and for what.234. Any executor or administrator may be sued, on his bond, by any creditor, heir, legatee, or surviv

« AnteriorContinuar »