NOTES TO CHAPTER 6.

DECEDENTS' ESTATES.

ARTICLE 3- LETTERS OF ADMINISTRATION.

2227. To whom issued. The circuit court has a wide discretion in matters concerning the appointment of administrators. The supreme court will not control that discretion, nor interfere with its exercise, except where it has been abused; Wallis v. Cooper, 123-40.

2240. Vacancy - Administrator de bonis non. That an administrator has failed to discover assets belonging to the estate he was appointed to administer and been by the court discharged from further execution of the trust is no valid cause on which to prevent the appointment of an administrator de bonis non; Langsdale v. Woollen

120-81.

ARTICLE 4--BOND AND REMOVAL.

2242. Bond - Oath-Examination - Recording. Where persons, on the request of the principal obligor to become co-sureties with others named in an administrator's bond, go to the clerk's office and find the bond in the custody of the clerk, already filled out, with the names of the other proposed sureties written in the body thereof and, thereupon, without making inquiry or seeking explanation, but in the expectation that the bond will be signed by the other persons named as obligees, sign it and leave it with the clerk and he approves it on the same day, without other signatures, the bond is valid and a binding obligation as to the persons who so signed it; State, ex rel. v. Gregory, 119–507.

In an action on an administrator's bond, an answer alleging that defendant has fully administered the estate of the decedent and all the rights, credits, moneys and effects of said estate which came in to his hand to be administered, and that the estate is indebted to him, in a sum named, shows that he has fully administered and properly paid out and accounted for the assets that came in to his hand as administrator. Nevertheless such an answer is subject to a motion to make more specific. On a complaint alleging a breach of such a bond the defendant administrator is entitled to credit for any moneys coming to his hand, virtute officii, expended to the liquidation of claims against the estate. He may plead such payments by way of counter claim. If it should be claimed that he paid claimants in excess of the amounts they were entitled to receive, by reason of the insolvency of the estate, such facts should be set forth in a reply. That question can not be raised by demurrer; State, ex rel. v. Barrett, 121-95.

In an action on an administrator's official bond a paragraph of answer by a surety alleging the release of his co-surety and the occurrence of the breaches of the bond assigned in the complaint after the execution of a new bond is not subject to demurrer. The sureties on the old bond would be liable for any breach thereof before the new one was accepted and approved by the court. For subsequent breaches the liability is on the new bond - not on the old; State, ex rel. v. Barrett, 121-98.

2258. Intermeddling. An allegation in a complaint in an action by a creditor of a decedent's estate against the widow of deceased, to compel her to account for the value of personal property of the estate alleged to have been taken and converted by her, and to enforce the application of the proceeds to the payment of the late husband's debt, charging her as an administratrix de son tort, will not change the character of the action so as to make the plaintiff competent to testify as to a matter which occurred prior to the death of decedent, from whom the widow takes as heir (§ 499); Larch v. Goodacre, 126-225.

ARTICLE 5-NOTICE AND INVENTORY.

2260. Inventory. The failure of an administrator to make an inventory of a claim due from himself to the estate is not material as to the liability of his sureties, unless

actual damage resulted therefrom. Where a person at the time of his appointment as administrator is indebted to the estate, he should inventory and charge himself with the debt. If he fails to account for such indebtedness, however, his sureties are not liable, if they show that he was insolvent beyond the amount that could have been saved to the estate by the exercise of diligence. There is not in this state as there is in some others, any statutory provision making the administrator liable for the amount of his debt as for so much cash in his hand; State, ex rel. v. Gregory, 119–509.

2269. Widow's $500. The correct rule in respect to testamentary dispositions in favor of a wife is that she will be put to her election when it clearly appears that the provision made for her in the will was intended to take the place of that which the law makes. Whenever it is reasonably clear that the provisions of the will were intended to be in lieu of the provision made for the widow by law, and the husband has, also, disposed of all his other property in such a way as to make it apparent that the assertion by the widow of the right to take both under the law and under the will, will defeat the manifest purpose of the testator, she will be confined to the provision made by the will. The acceptance of a testamentary disposition made for her is a confirmation of the disposition and waives the widow's right under the law; Hurley v. M'Iver, 119-54.

A complaint by a child of a deceased widow asking that the $500 allowed the widow from the estate of her deceased husband be adjudged to her does not make a showing entitling such child, as the heir of such deceased widow, when it fails to show that there is no administration on the estate of the mother and that the mother's estate owes no debts; Williams v. Williams, 125-161.

Where a person comes to his death by violence and an inquest is held over his body and he leaves a widow and an estate of value less than $500, the statutory claim of the widow to the estate is superior to the claim of the county for the payment of the expenses of the inquest; Board etc. v. Wertz, 112-272.

The provision of section 790 must be read in connection with this section as the widow's award. It provides that "the death of a defendant, after the execution is placed in the hands of the sheriff to be executed, shall not affect his proceedings, except that the amount of property allowed absolutely to the widow of the decedent shall be exempt from levy and sale under such execution." It follows that the right of the widow to the award of $500, allowed by this section, is not defeated by a levy made by a sheriff on the property of her deceased husband during his life and that a sale of such property by the sheriff is forbidden; Dixon v. Aldrich, 127-296.

2269, 2270. Widow's $500. The right of a widow to select and take at the appraised value articles mentioned in the inventory, not exceeding $500 in value, is a right which continues up to the time of sale. It is not in the power of the executor or administrator to impair or abridge this right by demanding of her that she select the articles to be taken before the inventory is returned; nor is her right to make selection, after the return of the inventory, affected by the fact that she may have made a partial selection before. It does not follow, because of provisions concerning the manner of noting thereon, verifying and returning the inventory, that the affirmative right of the widow to select articles at any time before the sale is limited or controlled; Denny v. Denny, 113-24.

ARTICLE 6-SALE OF PERSONAL PROPERTY.

2275. Sale by executor etc. Where a note, executed by a decedent, is secured by a chattel mortgage, and the mortgaged property is sold, by order of the court, freed from the lien, to pay the debt, the creditor is entitled to his pay, from the proceeds of the sale, in advance of the settlement of the estate and before the expiration of one year from the date of the issuing of the letters of administration. In such a case, where the administrator, instead of paying over the proceeds of sale to the extent of the debt, retains the money and requires the claimant to come in to court and obtain an order on him to pay it, the creditor is entitled to an allowance for attorney's fees; Jewett v. Hurrle, 121-405:

ARTICLE 7-SUITS BY EXECUTORS ETC.

2291. Suits, what for. Where an administrator is sued in his individual capacity for the recovery of personal property of which he has taken possession in his repre

sentative capacity, believing it to belong to the decedent's estate, the costs which he, in good faith, incurs in defense of the suit, which are taxed against him personally, are a proper charge against the estate; Mackey v. Ballou, 112-202.

The estate of a deceased administrator can not be subjected to the costs of a suit, unless the administrator has neglected some duty, or unless he had been guilty of some fault, for which a suit might have been maintained against him in case he had lived; Lucas v. Donaldson, 117–141.

2303. Worthless sale notes. An administrator who sells the personal property of the intestate and takes in payment promissory notes executed by insolvent principals and sureties is liable, on his bond, to the estate for the amount of the notes and interest thereon; he is entitled to the notes; Lindley v. State, ex rel., 116–236.

ARTICLE 8 - CLAIMS AGAINST THE ESTATE.

2310. When and how filed. Under this section, as amended in 1883 (edit., 1888, § 2310) a claim against a decedent's estate will be barred if not filed, at least, thirty days before the filing of the final settlement report by the executor or administrator, subject to the exceptions therein stated. Exceptions to such final settlement, filed by a creditor, based on the ground that he has a valid claim against such estate, which has not been filed within the time provided by statute, in the absence of an excuse for the delay being shown and of any allegation of fraud on the part of the executor, should be stricken out on motion; Roberts v. Spencer, 112-83.

A claim not filed within thirty days before final settlement of the estate is barred. The fact that it is on file before the final settlement report is approved does not delay the settlement; Schrichte v. Stites' Est., 127-473.

The phrase "final settlement of the estate," as used in the last sentence of this section, implies more than the mere order of the court declaring the estate to be finally settled. It intends that if a claim is not filed thirty days before the account for final settlement is presented, at a time and in the manner authorized by law, it shall be barred; Roberts v. Spencer, 112-88.

To present a claim against an estate the complaint need not be technically formal; but it must state the facts essential to show that the estate is liable under the statute; Lucas v. Donaldson, 117-143.

A

The statute does not require any formal complaint to be filed against an estate. claim sufficient to bar another action for the causes therein set forth is a sufficient statement of the claimant's claim; Stricker v. Barnes, 122-349.

The "succinct and definite statement" of his claim which the holder of a claim is required to file must contain all the facts necessary to constitute, prima facie, a cause of action in his favor, due, or to become due, from the estate; Thomas v. Merry, 113-86.

In presenting a claim against a decedent's estate a formal and regular complaint, under the ordinary rules of pleading, was not and is not required; the statement of the claim, to withstand a demurrer for want of facts, must be succinct and definite and contain all such facts as are necessary to show, prima facie, that the decedent's estate is lawfully indebted to the claimant and as will indicate to the representative of the estate what he is called on to meet; Culver v. Yundt, 112–402.

In filing a claim against a decedent's estate it is not necessary that there should be a formal complaint. If the statement shows the nature and amount of the claim with sufficient precision to bar another action and a prima facie right to recover it answers the statutory requirement. A claim for work and labor is presumably due after the person for whom the work is performed is dead; although it is not essential, under this section, that it should be due in order to constitute a valid cause of action against the estate; Lockwood v. Robbins, 125-398.

A claim filed against a decedent's estate is sufficient if the demand is stated succinctly and definitely, as to the character of the claim. The statute requires that the statement filed shall set forth the credits and deductions to which the estate is entitled. It does not require succinctness and definiteness as to these, but simply that the credits etc. shall be given; Miller v. Eldridge, 126-463.

2320. Effect of order. This section, amended by the statute of 1883, (edit., 1888, § 2320) intends that the allowance of a claim shall put an end to all litigation as to the validity and amount of the claim, so far as the administrator of the estate is concerned. It provides equally as stringent a process for the allowance of claims in favor

of an administrator as claims in favor of third persons, and that the same rule shall apply to one as to the other. An adjustment and allowance, by the court, in favor of an administrator bind the representative of the estate, and it binds a subsequent administrator of the estate as would the allowance of a claim in favor of a third party. The order differs from an ordinary judgment on which execution may issue, yet it is, as to the validity and amount of the claim, a judgment and binding on the estate and the executor and administrator, as representatives of the estate; Bentley v. Brown, 123-558.

2324. Pleadings - New parties. The effect of this section is to authorize an executor or administrator to prove any defense to a claim-except a set off or counter claim - without special plea. It contemplates, however, that an executor or administrator may plead any special defense, as in other cases, and that a defense so pleaded may be tested by demurrer as in other cases; Castetter v. State, ex rel., 112-449.

2326. Creditors etc. may resist. In a proceeding by an administrator for the sale of real estate to pay an alleged claim against the estate, the owner or owners of the real estate have the right, in order to protect it, to defend against the claim on its merits, notwithstanding it may have been allowed by the administrator; O'Haleran v. O'Haleran, 115-494, affirming Scherer v. Ingerman, 110-428.

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A purchaser of real estate which - there being no personal property- is liable to be sold by the administrator to make assets to pay a claim allowed, if it is a legal charge against the estate, has such an interest as gives him a right to contest its validity; Mackey v. Ballou, 112–201.

ARTICLE 9-SALE ETC. OF REAL ESTATE TO PAY DEBTS.

2338. Requisites of petition — Parties. A widow is a proper party to a petition to sell real estate for the payment of the debts of her deceased husband; Smock v. Reichwine, 117-200.

2340. Notice of petition. Real estate of one deceased descends to the widow and heirs on the death, and notice of an application to sell for the payment of debts of the estate must be given to those interested in such real estate, that they may be heard and offer evidence controverting the justice or policy of ordering a sale. This rule applies, also, in reference to mortgaging or leasing such property. Some notice must be given that they may be heard on the matter of incumbering or leasing, and an application to mortgage or lease can not be grafted upon and made a part of a proceeding to sell. An administrator de bonis non filed an application for the sale of real estate for the payment of the decedent's debts. Notice of this application was given to the widow and heirs. Later, and at a subsequent term of court, the administrator filed an application in the same cause setting forth his inability to sell the property and recommending that he be authorized to mortgage it and to take possession of and lease it. The court made an order to that effect on the day the application was filed. Afterward a further application was filed, by the administrator, praying for a modification of the latter order, which modification was made on the day the application was filed. The mortgage and lease were approved by the court. No notice of the application or proceedings to mortgage and lease was given to the widow or heirs. The order of court authorizing the mortgaging of the land and the leasing thereof for a term not exceeding five years was void and could be assailed collaterally. It constituted no defense to an action by the widow to recover the possession of the real estate and damages for its detention; Martin v. Neal, 125-552.

2341. Waiver of notice. Where real estate of one deceased, mortgaged to secure debts, is sold, by order of the court having probate jurisdiction, on application of the administrator, the widow and her minor children being made parties to the proceeding, the widow waiving, by an instrument in writing, the publication and posting of notice required by statute (§ 2340) and assenting to the sale of the whole, on agreement that one-third of the proceeds should be paid to her, the sale is void, the court having exceeded its jurisdiction. In such a case, the right of the heirs to assert title to the undivided one-third of the land is not affected by the invalid order of sale; unless their ancestor, through whom they claim, received the purchase money or was estopped to assert title by making the administrator her agent. If she received and retained her share of the purchase price, the widow, as well as her heirs, would be estopped; Roberts v. Lindley, 121-57.

2342. Creditor may require petition. Proceeding instituted under this section to compel an administrator to file a petition for the sale of certain land for the payment of decedent's debts. The real estate was that of a member of the Miami tribe of Indians and of the band of Ma-to-sin-ia, always a resident of this state. He died in 1880, leaving him surviving children but no widow. He received title to his land under the act of congress of 1872, and the lands did not descend to his heirs free from the ancestor's debts. On a proper petition the lands might be sold to pay the debt due to a creditor, whose claim did not fall within the class the payment of which the act of congress expressly provided should never be enforced against the lands to which the act referred; Taylor v. Vandegrift, 126-326.

2346. Hearing and orders. An administrator has no right to an order for the sale of an amount of real estate in excess of the amount necessary to pay the debts of the decedent; Fralich v. Moore, 123-78.

2354. Sale. A statement made by an administrator at a sale of real estate, that the crops thereon are not reserved, can not prejudice the rights of the heirs in crops sowed by them or their tenants. The purchaser at such a sale acquires title to the freehold and to whatever belonged to it at the time of his purchase, but he acquires nothing more. Crops which the heirs have sown and cultivated and which are growing do not pass, nor cord wood situate on the farm; Barrett v. Choen, 119–57.

2359, 2360. Sales under will. It has never been and it should not be held that, in cases falling within these sections, it is necessary to obtain an order of court to authorize the sale of real estate specifically devised for the payment of debts or legacies. Section 2360 now expressly provides that, in such cases, it is not necessary. If the testator directs his estate to be disposed of for certain purposes, without declaring by whom the sale shall be made, if the proceeds be distributable by the executor he shall have the power by implication. So, where the duties imposed upon some person by the will are such as ordinarily devolve on an executor or administrator with the will annexed - who, generally, takes all the power under the will which would have devolved upon an executor had one been named - and there is no person named to execute the trust, the power in the administrator to proceed will be implied; Davis v. Hoover, 112–426.

2360. Sales under will. Where the will directs that real estate shall be appraised before sale, as by the will directed, it will be presumed, after a sale by the executor or administrator cum testamento annexo, in the absence of proof to the contrary, where the deed purports to have been made in accordance with the will, and where the public records have been destroyed, that an appraisement was had (see § 462a); Davis v. Hoover, 112-428.

2364. Sale, when not avoided for defects. The failure of a guardian to give the additional bond required by section 2532, on a sale of his ward's real estate, is not available, in a collateral attack, to defeat the sale. The utmost that can be said of such failure to file the additional bond is that such failure rendered the sale of the real estate void, or, rather, that for such a failure the sale might have been avoided, in a direct suit or proceeding instituted for that purpose within the proper time; Davidson v. Bates, 111-401.

2369. Mortgage or lease-Bond. An administrator is not entitled to the rents and profits of land which descended to the heirs of his decedent, without filing a petition and obtaining an order of the court, under this section. In such case he would be required to file an additional bond. A bond executed to secure the faithful administration of personal property does not, therefore, cover rents and profits derived from the real estate belonging to the decedent at the time of his death; State, ex rel. v. Barrett, 121-98.

ARTICLE 11 - PAYMENT OF DEBTS AND LEGACIES.

2378. Order of paying debts. Section 2435 is not in conflict herewith, nor does either section modify the other. This section has reference to the general fund in the hand of the administrator, the other refers to a particular fund or property; Ryker v. Vawter, 117-428.

The court sitting in probate can not change the order of priority of claims hereby fixed. Claims may be allowed without inquiry as to the sufficiency of assets to pay them and their classification, as to priority, may be afterward determined. Such ques