final settlement, although such executor or administrator becomes insolvent after his appointment. Condit v. Winslow, 106 Ind. 142.

Payment of claims out of their order is cause for exceptions to a final report. Cunningham v. Cunningham, 94 Ind. 557.

An answer is not required to exceptions to a report, and no question is raised by a demurrer to such an answer. Dohle v. Stults, 92 Ind. 540.

By consent of parties exceptions to a report may be referred to a master commissioner. Cunningham v. Cunningham, 94 Ind. 557.

2547. (2392.) Order for final settlement or continuance.-166. If upon such accounting and approval, it shall appear to the court that the estate is solvent, and that there are claims allowed against the estate remaining unpaid, the court shall order the moneys remaining in the hands of the executor or administrator to be applied to the payment of expenses of administration and of such claims. If the moneys on hand be sufficient therefor, and there remain no claims pending for allowance, and no debts due the estate remaining for collection, the court shall enter an order for the final settlement of the estate, payment of claims unpaid, and distribution of the residue to the heirs and legatees of the decedent. If, in such case, the moneys on hand be not sufficient to pay the expenses of administration and claims allowed in full, and the estate be solvent, and there remain, in the hands of the executor or administrator, property or choses in action belonging to the estate and not converted into money, the moneys on hand shall, under the order of the court, be applied pro rata on the expenses and claims according to the order of classes herein before prescribed, and the estate shall be continued for further settlement, unless the amount necessary to discharge the liabilities of the estate be advanced by the heirs or legatees of the estate.

2548. (2393.) Citation to account.-167. If any executor or administrator shall fail to render the account herein before required at the end of the year next after notice of his appointment, he shall be cited by the court to file such account within a time limited by the court; and upon failure to comply with such requirement, he shall be proceeded against as for a contempt, and shall be liable to removal from his trust. Upon the filing of such account, like proceedings shall be had thereon as herein before provided.

Executors having power under wills to sell and convey real estate, may be cited to report as to the application of the proceeds of sale. Ex parte Hayes, 88 Ind. 1.

2549. (2394.) Further accounting.-168. After the expiration of one year from giving notice of appointment, the court may, at any time in its discretion, order a further accounting by the executor or administrator, and if it appear to the court that the settlement of the estate is being unreasonably or unnecessarily delayed, the court may enter a peremptory order for the final settlement, and enforce compliance with the order by attachment of the person of the executor or administrator, and punishment for contempt: Provided, however, It shall be the duty of the executor or administrator to make a final settlement

of the estate at the expiration of six months from the date of his last report, unless otherwise ordered by the court for good cause shown. (As amended, Acts 1883, p. 161. Ell. Supp., section 405. In force March 7, 1883.) 2550. (2395.) Final settlement, after year.-169. If an account be filed after the expiration of the year aforesaid, the day for hearing the same shall be fixed, and the same rules as to giving notice of the hearing shall be followed as hereinbefore provided for notice of accounts filed at the end of the year.

(As amended, Acts 1883, p. 161. Ell. Supp., section 406. In force March 7, 1883.) See section 2545.

This section as amended does not conflict with or repeal section 2403, R. S. 1881, as to the rights of persons not summoned or attending the hearing of final settlement reports. Crum v. Meeks, 128 Ind. 360.

2551. (2396.) Services and attorney's fees.-170. The court may make allowance to such executor or administrator, when he makes his report in partial or final settlement for his services as such executor or administrator, as the court may think just and reasonable, including expenses in the discharge of his duties, and reasonable attorney's fees where he employs an attorney in the management of such estate; but in no case shall such attorney's fees be included in the allowance to such executor or administrator for his personal services.

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

If such an allowance is made in approving an account current it is not binding on the heirs, and may be contested on the hearing of the final settlement report. Collins v. Tilton, 58 Ind. 374.

An executor or administrator residing a long distance from the place of holding court can not claim extra compensation on that account. Watkins v. Romine, 106 Ind. 378. In making allowances to executors and administrators for services, the nature of such service, peculiar qualifications of the trustee for the duties performed, and difficulties attending the settlement of the estate, should be considered. Pollard v. Barkley, 117 Ind. 40.

An allowance for services is not conclusive unless the court was in possession of all the facts necessary to make a proper allowance. Watkins v. Romine, 106 Ind. 378. An executor is entitled to an allowance for attorney's fees although the will is set aside and an administrator appointed. Nave v. Salmon, 51 Ind. 159.

An estate is liable for the services of an attorney employed by an executor or administrator in and about the settlement of the estate. Long v. Rodman, 58 Ind. 58; Scott v. Dailey, 89 Ind. 477.

Executors and administrators are personally liable for the services of attorneys employed by them in the absence of a contrary agreement. Long v. Rodman, 58 Ind. 58. An estate is not liable for the services of an attorney employed by legatees. Scott v. Dailey, 89 Ind. 477.

An executor or administrator can not charge the estate for services performed by himself as an attorney. Taylor v. Wright, 93 Ind. 121; Pollard v. Barkley, 117 Ind. 40.

2552. (2397.) Compensation by will.-171. When provision is made by a will for compensation to the executor thereof, the same shall be deemed a full satisfaction for his services, in lieu of the aforesaid commission and extra allowance or his share thereof, unless he

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shall, by a written instrument, filed in the court issuing his letters, renounce all claim to such compensation given by the will.

2553. (2398.) Attorney's fees.-172. No allowance shall be made to any executor or administrator for any service rendered by him as attorney in the settlement of the estate, but he may be allowed for the reasonable fees of an attorney rendering necessary service in such settlement.

See section 2551.

2554. (2399.) Vouchers.-173. In rendering an account, every executor or administrator shall produce vouchers for all debts, claims and legacies paid, and for all charges and expenses; which vouchers shall be filed and preserved in said court, except that on the settlement of an account, the executor or administrator may be allowed any items of expenditure not exceeding five dollars, for which no voucher is produced, if such item be supported by his own oath positively to the fact of payment, specifying when and to whom such payment was made, and if such oath be uncontradicted; but such items allowed shall not in all exceed one hundred dollars for payments in behalf of any one estate.

2555. (2400.) Creditor may take claim.-174. If at the time of the final settlement of any estate there be any claims due such estate uncollected, and not money enough on hand to pay all the creditors, if any such creditor, whose claim does not exceed the amount of such claim, will accept it in discharge of so much of his claim, it shall be delivered or assigned to him by the executor or administrator, and the estate shall be finally settled.

A guardian has no right under this section to accept claims due the estate for what is due his ward, and if he does so he assumes all risks as to the solvency of the persons owing such claims. Bescher v. State, ex rel., 63 Ind. 302.

2556. (2401.) Final settlement, with claim pending.-175. If at the time of final settlement of an estate any claim be pending against it unallowed, and the creditors, heirs devisees, or legatees shall execute, to the approval of the claimant, a bond conditioned for the payment of the claim and costs, if adjudged in favor of the claimant, if it shall be allowed, the estate shall be finally settled. The claim shall remain on the docket, and be disposed of as if such settlement had not been made, and the obligors in such bond may appear and make defense thereto.

If an appeal taken from a judgment rendered on a claim filed against an estate is pending in the supreme court, the estate can not be settled without providing for the payment of said claim in case of its allowance. Heaton v. Knowlton, 65 Ind. 255.

If undisposed of claims are pending when a final settlement is made, such settlement may be set aside when the claimants were not summoned and did not appear at the final settlement. Dillman v. Barber, 114 Ind. 403.

2557. (2402.) Settlement and discharge.-176. After the debts and legacies of an estate, and expenses of administration have been paid,

and all assets of the estate duly accounted for, and all claims in favor of the estate disposed of according to law, the executor or administrator shall pay into court the moneys, if any, remaining in his hands, or distribute the same under the order of the court to the persons entitled thereto, and be discharged from the further administration of the estate, and the estate shall be by the court declared finally settled, and no final settlement shall be revoked or reopened after the close of the term at which the same shall have been made except as provided for in the next section.

(As amended, Acts 1883, p. 162. Elliott Supp., section 407. In force March 7, 1883.) Settlements made by executors or administrators on resigning their trusts need not be set aside before suits will lie on their bonds. Parsons v. Milford, 67 Ind. 489; Lang v. State, ex rel., 67 Ind. 577. See Sanders v. Loy, 61 Ind. 298.

So long as a final settlement remains in force, it is binding on all persons. Pate ». Moore, 79 Ind. 20; Carver v. Lewis, 104 Ind. 438; Carver v. Lewis, 105 Ind. 44.

2558. (2403.) Setting aside settlement.-177. When final settlement of an estate shall have been made, and the executor or administrator discharged, any person interested in the estate, not appearing at the final settlement, nor personally summoned to attend the same, may have such settlement, or so much thereof as affects him adversely, set aside, and the estate re-opened, by filing in the court in which the settlement was made, within three years from the date of such settlement, his petition, particularly setting forth the illegality, fraud or mistake in such settlement or in the prior proceedings in the administration of the estate, affecting him adversely. The executor or administrator of the estate, and any of the creditors, heirs, devisees or legatees of the decedent adversely interested in the matters alleged in such petition, shall be made defendants thereto, and shall be entitled to such notice of the pendency thereof as is required to be given, under the code of civil procedure, to defendants in ordinary actions. If any person interested in an estate shall, at the time of the final settlement thereof, be under legal disabilities, he may file such petition within three years from the time of the removal or cessation of such disability.

Final settlement reports of executors or administrators may be set aside on application of interested parties when brought in the proper time. Reed v. Reed, 44 Ind. 429 ; Miller v. Steele, 64 Ind. 79; Zeek v. Reed, 69 Ind. 319; Chase v. Beeson, 92 Ind. 61; Pollard v. Barkley, 117 Ind. 40.

Applications to set aside final settlements must be brought within three years from the date of settlement. Spicer v. Hockman, 72 Ind. 120.

Final settlements can not be set aside on account of errors of law, appeal being the remedy in such cases, fraud or a mistake of fact being the only cause for setting aside such settlements. Camper v. Hayeth, 10 Ind. 528; Reed v. Reed, 44 Ind. 429. Failure to use diligence to collect claims, and obtaining credit therefor as worthless claims, is cause for setting aside a settlement. Miller v. Steele, 64 Ind. 79. Persons applying to set aside final settlements must show that they have such an interest in the estate that they are injured by the wrongs complained of. Spicer z. Hockman, 72 Ind. 120.

The payment by a debtor of more than he owes the estate, is no cause for setting

aside a final settlement when no cause is shown why the mistake was not discovered before settlement. Dickey v. Tyner, 85 Ind. 100.

If an administrator by false representations induces a creditor not to file his claim, and makes settlement without paying the same, the settlement may be set aside. Chase v. Beeson, 92 Ind. 61.

The settlement of an estate while a claim is pending and undisposed of is cause for setting aside the settlement. Dillman v. Barber, 114 Ind. 403.

When a claimant is summoned to appear at the hearing of a final settlement, or voluntarily appears thereat, such settlement can not be set aside for matters that might then have been presented and determined. Dillman v. Barber, 114 Ind. 403; Crum v. Meeks, 128 Ind. 360.

Applications to set aside final settlements must show that the complaining party was not notified to appear, and did not appear at the hearing of the final settlement report. Dillman v. Barber, 114 Ind. 403; Williams v. Williams, 125 Ind. 156. Allowing attorney's fees for services personally performed by an executor or administrator is cause for setting aside a final settlement. Pollard v. Barkley, 117 Ind. 40. If an estate is finally settled before the expiration of a year from the issuing of letters, an unpaid creditor may have the settlement set aside. Shirley v. Thompson, 123 Ind. 454.

2559. (2404.) Correcting errors.-178. In every settlement of an account rendered by an executor or administrator, all his former accounts may be so far opened as to correct any error or mistake therein; excepting that any matter in dispute between two parties, which had been previously heard and determined by the court shall not be brought again in question by either of the same parties, without notice to the opposite party and by leave of the court.

Accounts filed before final settlement are not conclusive, and may be contradicted or corrected. State, ex rel., v. Wilson, 51 Ind. 96; Goodwin v. Goodwin, 48 Ind. 584; Fraim v. Millison, 59 Ind. 123; Harrell v. Seal, 121 Ind. 193.

[Acts 1891, p. 377. In force June 3, 1891.]

2560. List of lands unsold-Names of heirs-Recording.-3. It shall be the duty of all administrators of estates, where lands descend to decedents' heirs, to file with his final settlement report a statement setting forth a description of the decedent's lands, which remain after the settlement of the estate; also the names of all heirs to whom such land will pass by the laws of descent, and the court shall make a finding and record of the facts stated and proved, and cause the same to be entered upon the order book of said court, and it shall be the duty of the clerk of such court to make out and cause to be recorded in the recorder's office of the proper county a certified copy of such order within forty-five days after the date of such order, and the clerk shall tax and collect a fee for the auditor and recorder equivalent to their fees for like services in the transfer and recording of deeds.