any such cause, in cases of an emergency, remove such administrator instantly, without citation.

(As amended, Acts 1883, p. 151. Ell. Supp., section 382. In force March 7, 1883.) An application for the removal of an administrator may be verified by the oath of any competent person. McFadden v. Ross, 93 Ind. 134.

An administrator can only be removed upon the verified petition of some one interested in the estate, and the petition must show the interest of the applicant and set forth a cause for removal. Vail v. Givan, 55 Ind. 59.

Changes of venue from the county or judge can not be demanded in applications to remove executors or administrators. Bowen v. Stewart, 128 Ind. 507.

The only judgment that can be rendered is one removing, or refusing to remove, executor or administrator. Williams v. Tobias, 37 Ind. 345.

the

The widow may make an application for the removal of an executor or administrator for failure to discharge the duties of the trust. Pace v. Oppenheim, 12 Ind. 533; Evans v. Buchanan, 15 Ind. 438.

After letters of administration are revoked the administrator can no longer act as such. Leach v. Lewis, 38 Ind. 160.

2401. (2246.) Citation.-24. On the filing of such application or upon the order of the court, the clerk shall issue a citation to the person complained against, requiring him to appear and answer; which citation shall be served on him ten days before the hearing of the cause. The defendant may file an answer. McFadden v. Ross, 93 Ind. 134.

2402. (2247.) Notice to non-resident.-25. If such executor be not a resident of the state, notice of the filing of such application shall be given, three weeks successively, in some newspaper published in the county where such application is filed, or, if none be printed therein, then in some newspaper printed in this state nearest thereto.

2403. (2248.) Hearing.-26. At the term of the court next after notice has been given, the court shall proceed to hear the proofs and allegations of the parties; and, upon such hearing, may examine such executor or administrator on oath.

Changes of venue from the county or judge can not be demanded. Bowen v. Stewart, 128 Ind. 507.

If no exception is taken to the action of the court in removing an administrator, no question can be presented on appeal. Ex parte Simpson, 55 Ind. 415.

2404. (2249.) Costs on removal.-27. If the determination of the court be against the application to remove, the costs of the proceedings may be taxed against the applicants; but if such determination. be against such executor or administrator, he shall be removed and his letters superseded immediately, or new or additional bond or surety be required, as the case may be, and the costs of the proceedings be taxed against him personally.

2405. (2250.) Time for new bond.-28. If new or additional bond or other and additional sureties are required, two days' time shall be allowed therefor; when, if such order be not complied with, the court. shall remove such executor or administrator, and supersede his letters. 2406. (2251.) Effect of marriage.-29. Whenever the ground of complaint is that any executrix or administratrix, being an unmarried

woman, has, since the granting of letters, married, the court shall not supersede such letters and remove her, if her husband will signify his assent, in writing, filed in open court, to her continuing as such, and if she shall give further bond and surety to the satisfaction of the court, if such surety be required.

See Jenkins v. Jenkins, 23 Ind. 79.

2407. (2252.) Application by surety for release.-30. Any surety upon any bond of any executor, administrator, administrator with the will annexed, or de bonis non, may apply to the circuit court approving such bond to be released therefrom, by filing his request therefor with the clerk of said court, and giving ten days' notice thereof to the principal in such bond. Upon proof of such notice, the court shall order such principal, within a time to be fixed by the court, not exceeding five days, to execute a new bond with penalty and sureties to the approval of the court. Upon failure to execute such new bond within the time limited, he shall forthwith be removed by the court; and such surety shall, as soon as such new bond is furnished or such principal removed by the court, be released from any liability for any malfeasance or misfeasance of such principal thereafter occurring, but shall remain liable for his prior acts and omissions. And if a new bond be executed, the principal and sureties therein shall be and continue liable for the administration of the estate or execution of the will, as the case may be, in like manner and to the same extent that the obligors in the original bond would have been bound had it continued in force.

The sureties upon the new bond required and given under this section are liable for the proper application of all the assets on hand at the time such bond is executed. Bales v. State, ex rel., 15 Ind. 321.

This section applies to bonds given on orders for the sale of real estate the same as to other bonds. Kendrick v. Wilkinson, 18 Ind. 206.

If the administrator files a new bond which is approved, the sureties on the old bond are discharged without an order of court to that effect. Lane v. State, ex rel., 27 Ind. 108.

The executing of a new bond does not release the sureties on the old bond from liability for breaches before the new bond was given. State, ex rel., v. Page, 63 Ind. 209. The sureties on the old bond are not liable for any defalcation occurring after the execution of the new bond. State, ex rel., v. Gregory, 88 Ind. 110.

2408. (2253.) Intermeddling after removal.-31. Whenever any executor or administrator is removed and his letters are superseded, if he, at any time afterward, unlawfully intermeddle with such estate, he shall be attached, and imprisoned not less than ten days nor more than one month, by the proper circuit court, upon complaint of any one interested.

This section does not apply where an executor, prior to his removal, has converted all the assets to his own use, and after his removal he has had none of such assets in his possession or control. Phelps v. Martin, 74 Ind. 339.

2409. (2254.) Appointment of successor.-32. Whenever any executor or administrator is so removed as aforesaid, all his power shall

cease, and his acts as such be void; and the court shall appoint his successor, to whom letters de bonis non shall issue.

2410. (2255.) Embezzlement.-232. In addition to removing him, if any executor or administrator shall embezzle or conceal any of the property of the decedent, the court shall attach his person and property, and examine him under oath touching such property, and on his refusing to answer in such examination, or to deliver up such property, or secure the value thereof to the persons interested in such estate, with ten per cent. damages thereon, shall commit him to jail. until the order of the court be complied with or he be discharged according to law.

When there is no concealment of the assets of an estate, or refusal to answer as to the same, but a mere inability to pay assets converted, an executor or administrator can not be punished under this section. Ex parte Wright, 65 Ind. 504; Phelps v. Martin, 74 Ind. 339.

The only punishment that can be inflicted under this section is imprisonment until the order of the court is complied with. Ex parte Wright, 65 Ind. 504.

2411. (2256.) Citation and attachment.-233. In case of an unnecessary delay on the part of such executor or administrator, the court may, by citation and attachment, compel him to render his ac

count.

2412. (2257.) Acts, when valid.-33. All lawful acts done by executors or administrators whose authority shall cease, or by administrators before notice of a will duly proved, shall be valid.

2413. (2258.) Intermeddling.-34. Every person who shall unlawfully intermeddle with any of the property of a decedent, shall be liable in an action therefor in any court of competent jurisdiction. Such action may be brought by the executor of the decedent or the administration of his estate (or if there be none such, then by any creditor or heir of the decedent), and shall be for the use of the estate of the decedent. The defendant in such action may be examined, under oath, touching such alleged intermeddling; and testimony thus elicited shall not be used against him in any prosecution. The defendant shall be liable in such action to a judgment for the full value of the property converted, or to the extent of the injury to said estate occasioned by such intermeddling, and ten per cent. damages in addition thereto. Execution on such judgment shall not be subject to stay of replevin-bail, and shall be without relief from valuation or appraisement laws, and returnable in ninety days. The court may adjudge a return to the executor or administrator (or, if there be none, to such person for the time being as the court may appoint) of any goods or choses in action remaining in the control of the defendant, and may enforce compliance with any judgment in the premises by attachment and imprisonment, in the discretion of the court. If no administration of the estate be pending, the court shall provide for the safe keeping of the assets or damages recovered, until an executor or administrator, as the case may be, shall be duly appointed. Any creditor or heir recovering judgment as aforesaid shall be allowed a

reasonable compensation therefor out of the assets of said estate by the court in which the estate is administered.

If a widow in ignorance of the death of her husband uses his property in support of herself and children, and in the payment of the debts of the husband, she is not liable as an intermeddler. Brown v. Benight, 3 Blkf. 39.

If a widow having knowledge of the death of her husband disposes of his property, she will be liable therefor. Howkins v. Johnson, 4 Blkf. 21; McCoy v. Payne, 68 Ind. 327.

Persons taking and using property of a decedent for their own benefit are liable therefor. Ramsey v. Flannagan, 33 Ind. 305; Leach v. Prebster, 35 Ind. 415; Wilson v. Davis, 37 Ind. 141.

Creditors or legatees converting the property of a decedent to their own use are liable therefor. Wilson v. Davis, 37 Ind. 141; Robinson v. Isenhower, 47 Ind. 199; McCoy v. Payne, 68 Ind. 327.

The mere taking care of the property of a decedent as an act of kindness will not render a person liable as an intermeddler. Brown v. Sullivan, 22 Ind. 359.

Persons intermeddling with an estate are erty applied to the proper uses of the estate. Prebster, 35 Ind. 415.

entitled to credit for the amount of propReagan v. Long, 21 Ind. 264; Leach t.

An executor or administrator may sue to recover property converted by an intermeddler. Leach v. Prebster, 35 Ind. 415; Ferguson v. Barnes, 58 Ind. 169; Collier v. Jones, 86 Ind. 342.

An heir, or next of kin of a decedent, can not sue an intermeddler for their sole benefit. Ferguson v. Barnes, 58 Ind. 169.

When a creditor sues an intermeddler it must be for the benefit of all the creditors. Ferguson v. Barnes, 58 Ind. 169; McCoy v. Payne, 68 Ind. 327; Goff v. Cook, 73 Ind. 351.

When a creditor sues an intermeddler the complaint must show that the creditors are entitled to have the property converted applied to the payment of their debts. Goff v. Cook, 73 Ind. 351.

The parties are not competent witnesses, in a suit under this section, as to any matter occurring prior to the death of the decedent. Larch v. Goodacre, 126 Ind. 224.

[1881 S., p. 423. In force September 19, 1881.]

2414. (2259.) Notice of appointment.-35. Every executor or administrator, within thirty days after his appointment, shall give notice thereof by publication, three weeks successively, in some newspaper printed and published in the county, if any there be; and if not, by publishing the same in some newspaper printed and published nearest thereto; and such notice shall state whether the estate is prob

ably solvent or insolvent. A copy of such notice, with proof of such publication and dates, shall be filed by the executor or administrator with the proper clerk, within thirty days after the publication is complete.

The time for filing claims begins to run from the date of the publication of notice of appointment. Floyd v. Miller, 61 Ind. 224.

2415. (2260.) Inventory.-36. Every executor or administrator, within sixty days after his appointment, shall make out a true and complete inventory of the personal estate of the decedent which shall have come to his knowledge, including all debts, demands, stocks, moneys, and goods, due to and owned by the decedent at his death, and all his emblements and annual crops raised by labor, whether severed from the land or not at the time of his death. The inventory shall be made out in two parts, as follows: The debts, demands, stocks, and moneys shall be inventoried separately from the goods of the deceased. The inventory thereof shall be on printed blanks, furnished as hereinafter provided, and shall, as far as practicable, exhibit, in the appropriate columns under the proper headings, the number of the debt or other item, name of debtor, kind of claim, principal sum, date thereof, rate and commencement of interest, dates and amounts of credits, and appraised value. When the amount due upon the claim rests upon computation, the amount due on the claim, as inventoried, shall be taken as the appraised value. If the claim is for unliquidated damages, or based upon a contract obligating the person executing the same to the performance of anything other than the payment of money, it shall be appraised at its fair cash value, and so noted in the inventory. The claims and items inventoried as aforesaid shall be numbered in the margin of the inventory from one, upward, progressively. The goods, emblements, and annual crops aforesaid of the decedent shall be inventoried in detail, upon printed blanks furnished for that purpose as aforesaid. Such inventory shall contain printed headings for the number, kind and quantity of goods and appraised value, and the items shall be numbered from one, upward, progressively. The executor or administrator shall cause the personal estate of the decedent, embraced in said inventory, to be appraised by two reputable and disinterested householders of the neighborhood, who, before proceeding to the discharge of such duty, shall take and subscribe an oath that they will honestly appraise such estate at its fair cash value; which oath shall be returned with the inventory.

No action lies against an executor or administrator for failing to inventory property, unless he had knowledge thereof. State, ex rel., v. Scott, 12 Ind. 529.

Crops growing upon devised land at the death of the testator go to the executor and not to the devisee. Humphrey v. Merritt, 51 Ind. 197.

Crops growing upon lands which the widow and children of the decedent may occupy for a year after his death should not be inventoried. Swain v. Bartlow, 62 Ind. 546. Grass growing upon meadow lands at the death of the decedent belongs to the heirs, and should not be inventoried. Evans v. Hardy, 76 Ind. 527.