If the widow of a decedent pays off claims against the estate she is subrogated to the rights of the claimants against the estate. Brown v. Forst, 95 Ind. 248.

2466. (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.

Prior to the adoption of this section an executor or administrator might be joined in a suit as a defendant with others, when the decedent, if living, would have been a proper party. Braxton v. State, ex rel., 25 Ind. 82; Stanford v. Stanford, 42 Ind. 485; Corbaley v. State, ex rel., 81 Ind. 62.

An administrator or executor can not be joined as a defendant in an action on a joint obligation executed by the decedent and others. Norwood v. Harness, 98 Ind. 134; State, ex rel., v. Cunningham, 101 Ind. 461.

If an action is pending against a decedent at his death, the suit may be continued against his personal representatives. Clodfelter v. Hulett, 92 Ind. 426.

2467. (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.

On the death of the principal in a joint contract, such contract may be filed as a claim against his estate. Milam &. Milam, 60 Ind. 58.

The finding and allowance of a joint obligation as a claim against the estate of one of the makers does not prevent a suit against the other makers. Greathouse v. Kline, 93

Ind. 598.

2468. (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 dili

gently prosecuted the principal to insolvency, or that such prosecution would not have availed, the court shall order his claim to be paid.

The death of a surety does not discharge his estate from liability on joint contracts. McCoy v. Payne, 68 Ind. 327; Hudelson v. Armstrong, 70 Ind. 99.

2469. (2314.) Co-suretyship of decedent.-90. If the decedent be bound as a co-surety in any joint or joint and several contract, or judg ment founded thereon, his estate shall, in case of non-residence or insolvency 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.

If the decedent is only a surety, his estate is only liable for his proportionate share of a joint obligation. Fiscus v. Robbins, 60 Ind. 100.

2470. (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 orderbook, and the estate of the deceased be discharged from further liability touching it.

2471. (2316.) Claimant's remedy on 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.

2472. (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 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 adminis trator, 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 docket of said estate; it shall be provided with columns and printed headings thereto, for number of the claim, name of claimant, date of 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, Acts 1883, p. 154. Ell. Supp., section 386. In force March 7, 1883.)

2473. (2318.) Clerk's duty.-94. Immediately upon the filing of a claim against an estate, the clerk shall enter the same in the claimdocket 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.

The executor or administrator need not be formally made a party as defendant, and when the claim is filed and entered on the docket the suit is commenced. Taggart v. Tevanny, 1 App. 339.

2474. (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, Acts 1883, p. 155. Ell. Supp., section 387. In force March 7, 1883.)

In order to have a claim transferred for trial it must be filed ten days before the beginning of a term of court, and not admitted before the last day of such term. Scott v. Dailey, 89 Ind. 477.

The allowance of a claim by an administrator is not conclusive upon the heirs in a proceeding to sell lands to pay debts. Cole v. Lafontaine, 84 Ind. 446.

If a claim is just it may be allowed although it is not in an itemized form. Lancaster v. Gould, 46 Ind. 397.

An executor or administrator can not allow their own claims, but they must be tried or allowed by the court. Hubbard v. Hubbard, 16 Ind. 25; Chidester v. Chidester, 42 Ind. 469; Wright v. Wright, 72 Ind. 149; Collins v. Tilton, 58 Ind. 374; Bentley v. Brown, 123 Ind. 552; Jenkins v. Jenkins, 63 Ind. 120.

2475. (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, Acts 1883, p. 155. Ell. Supp., section 388. In force March 7, 1883.)

The allowance of a claim by an administrator does not have the effect of a judgment so as to merge the cause of action. Fiscus v. Robbins, 60 Ind. 100.

The allowance of a claim by an administrator is not conclusive against the heirs in a proceeding to sell lands to pay debts. Cole v. La Fontaine, 84 Ind. 446; Scherer v. Ingerman, 110 Ind. 428.

The allowance by the court of a claim in favor of an executor or administrator is conclusive upon the claimant and all subsequent representatives of the estate. Bentley v. Brown, 123 Ind. 552.

In the allowance of a claim by an executor or administrator he can not determine the question of preference, that being a matter to be settled on a distribution of the assets of the estate. Good bub v. Hornung, 127 Ind. 181; Jenkins v. Jenkins, 63 Ind. 120. If heirs of a decedent assist in defending a claim, they will be estopped from disputing the correctness of an order allowing the same in a proceeding to sell lands to pay debts. Smith v. Gorham, 119 Ind. 436.

2476. (2321.) Claims of executors and administrators.-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, Acts 1883, p. 155. Ell. Supp., section 389. In force March 7, 1883.) An executor or administrator can not allow his own claim against an estate. Hubbard v. Hubbard, 16 Ind. 25; Chidester v. Chidester, 42 Ind. 469; Wright v. Wright, 72 Ind. 149.

An allowance to an executor or administrator for services must be made by the court. Collins v. Tilton, 58 Ind. 374.

When the court allows the claim of an administrator or executor, it is binding on all parties. Bentley v. Brown, 123 Ind. 552.

2477. (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 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, Acts 1883, p. 156. Ell. Supp. section 390. In force March 7, 1883.)

2478. (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.

2479. (2324.) Transfer for trial-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 any subsequent pleading, may be tested by demurrer, and if objection be made that the assignor of a claim not 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 upon 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, Acts 1883, p. 156. Ell. Supp., section 391. In force March 7, 1883.) All defenses except set-off and counter-claims may be proven without being pleaded. When special defenses are pleaded they may be tested by demurrer. Carsteller v. State, ex rel., 112 Ind. 445; Griffin v. Hodshire, 119 Ind. 235.

It is not necessary to plead the statute of limitations in order to obtain the benefit thereof. Zeller v. Griffith, 89 Ind. 80.

Proof of the execution of written instruments which are the foundation of claims, and of the assignments thereof, must be made, although such execution, or assignment, is not denied under oath. Riser v. Snoddy, 7 Ind. 442; Mahon v. Sawyer, 18 Ind. 73; Barnett v. Cabinet Makers' Union, 28 Ind. 254; Cawood v. Lee, 32 Ind. 44; Jennings v. McFadden, 80 Ind. 531.

New parties defendant can only be made where such parties are jointly liable on a contract with the decedent, and such contract is the basis of the claim. Claypool v. Gish, 108 Ind. 424.

It is error to sustain a demurrer to an answer setting up a good defense, although the defense might have been proven without pleading it. Sheeks v. Fillion, 3 App. 262.

2480. (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. 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