SEC. 209. [Sale of estate.]—Any real estate so held by an executor or administrator, or which may be purchased by him as such, upon a sale on execution, for the recovery of a debt due the estate, may be sold for the payment of debts or legacies and the charges of administration, in the same manner as if the deceased had died seized thereof, upon obtaining a license therefor in the manner provided by law.

SEC. 210. [Distribution of estate if not sold.]-If any land so held by an executor or administrator, as mentioned in the preceding section, shall not be sold by him as therein provided, it shall be assigned and distributed to the same persons and in the same proportions as if it had been part of the personal estate of the deceased; and if, upon such distribution, the estate shall come to two or more persons, partition thereof may be made between them in like manner as if it were real estate which the deceased held in his lifetime.

SEC. 211. [Powers of executor.]-When there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate or any right or interest therein, with the intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator may, and it shall be his duty to commence and prosecute to final judgment any proper action or suit at law or in chancery, for the recovery of the same, and may recover, for the benefit of the creditors, all such real estate so fraudulently conveyed, and may also, for the benefit of the creditors, sue and recover for all goods, chattels, rights, or credits which may have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance.

SEC. 212. [Same.]-No executor or administrator shall be bound to sue for such estate as mentioned in the preceding section, for the benefit of the creditors, unless on application of creditors of the deceased, nor unless the creditors making the application shall pay such part of the costs and expenses, or give such security to the executor or administrator therefor, as the probate court shall judge just and equitable.

SEC. 213. [Real estate may be sold.]—All real estate so recovered as provided in the two hundred and eleventh section of this chapter shall be sold for the payment of debts in the same manner as if the deceased had died seized thereof, upon obtaining a license therefor from the probate court, and the proceeds of all goods, chattels, rights, and credits received as aforesaid shall be appropriated in payment of the debts of the deceased, in the same manner as other debts in the hands of the executor or administrator.

PAYMENT OF DEBTS AND LEGACIES OF DECEASED PERSONS.

SEC. 214. [Examination of claims-Commission.]-When letters testamentary or of administration shall be granted by any probate court, it shall be the duty of the probate judge to receive, examine, adjust, and allow all claims and demands of all persons against the deceased, giving the same notice as is required to be given by commissioners in this subdivision; Provided, That the parties interested, or either of them, shall have the right to demand that two or more suitable persons be appointed commissioners, in which case said commissioners shall receive, examine, and adjust all claims and demands against the estate, as provided for in this subdivision, except when the value of the whole estate, exclusive of the furniture and other personal property allowed to the widow, shall not exceed one hundred and fifty dollars, and shall be assigned for the support of the widow and children, as provided by law, in which case such

SEC. 211. The creditors of an insolvent estate may maintain an action against the executor who is also the fraudulent mortgagee, to have a chattel mortgage declared void on the ground that it was executed in fraud of such creditors. And if it appear that the executor is insolvent and is about to sell the property under the mortgage, an injunction to restrain the sale will issue. 6 Neb. 503.

BEG, 214, A judgment rendered by a foreign state in an action wherein personal service is had on the defend. ant, who appears and answers, but dies before the trial, and his administrator defends, is final and conclusive and a charge upon his estate here, 8 Neb. 356, All claims must be filed. 16 Neb, 268,

assignment shall be deemed a full and final administration and bar to all claims against the estate. When such commissioners shall be appointed, it shall be their duty to appoint convenient times and places when and where they will meet for the purpose of examining and allowing claims; and within sixty days after their appointment they shall give notice of the times and places of their meeting, and of the time limited for creditors to present their claims, by posting a notice thereof in four public places in the same county, and by publishing the same at least four weeks successively in some newspaper printed in this state, or in any other manner which the court may direct.

SEC. 215. [Notice.]-The judge of probate, in the commission issued to the commissioners, shall designate the paper in which such notice shall be published and the number of places in the several towns in which it shall be required to be posted, or other mode of notifying which he may deem necessary and proper.

SEC. 216. [Filling vacancy.]—If any commissioner appointed by the probate court shall at any time die, remove out of the state, refuse, or become in any other way incapacitated to perform the duties of his appointment, the court may appoint another commissioner in his place, and no further notice of the meetings of the commissioners shall be required in consequence of such appointment.

SEC. 217. [Time allowed to present claims.]—The probate court shall allow such time as the circumstances of the case shall require for the creditors to present their claims to the commissioners for examination and allowance, which time shall not, in the first instance, exceed eighteen months, nor be less than six months, and the time allowed shall be stated in the commission.

SEC. 218. [Same.]-The probate court may extend the time allowed to creditors to present their claims, as the circumstances of the case may require; but not so that the whole time shall exceed two years from the time of appointing such commissioners.

SEC. 219. [Renewal of commission.]-On the application of a creditor who has failed to present his claim, if made within six months from the time previously limited, the court may, for good cause shown, renew the commission, and allow further time, not exceeding three months, for the commissioners to examine such claims, in which case the commissioners shall personally notify the parties of the time and place of hearing, and, as soon as may be, make return of their doings to the probate court.

SEC. 220. [Judge may examine claim.]-In the case mentioned in the preceding section, if the judge of probate shall think proper, instead of renewing the commission he may appoint a time and place for examination and adjustment of such claim before himself, and cause personal notice thereof to be given to the parties, and in that case he shall proceed to examine and adjust such claim in like manner as the same might have been done by such commissioners.

SEC. 221. [Set-off.]-When a creditor against whom the deceased has had claims shall present a claim to the commissioners, the executor or administrator shall exhibit the claim of the deceased in off-set to the claims of the creditor, and the commissioners shall ascertain and allow the balance against or in favor of the estate, as they shall find the same to be, but no claim barred by the statute of limitation shall be allowed by the commissioners in favor of or against the estate as a set-off or otherwise.

SEC. 222. [Oath of commissioners.]-The commissioners shall be sworn to the faithful discharge of their duties, and any one of them shall be authorized to administer oaths to parties and witnesses, when the same shall be required or proper for the investigation and trial of questions before them.

SEC. 223. [Report.]-At the expiration of the time limited, or as soon thereafter as they shall have time to complete the hearing of the claims presented, the commissioners shall make up a report of their doings to the probate court, embracing lists of the claims presented or exhibited in off-set, and stating how much was allowed and how much was disallowed, together with the final balance, whether in favor of the creditor or the estate, and the report shall state particularly the manner of giving notice to the claimants.

SEC. 224. [Powers of commission.]-The commissioners shall have power to try and decide upon all claims which by law survive against or in favor of executors and administrators, except claims for the possession or title of real estate, and may examine and allow all demands at their present value which may be payable at a future day, including claims payable in specific articles, and may set off such demands in the same manner in favor of the estate.

SEC. 225. [Powers of executor.]-Nothing in the preceding section shall be construed to prevent any executor or administrator from paying any debt which shall be payable at a future day according to the terms and at the time specified in the

contract.

SEC. 226. [Claims barred.]—Every person having a claim against a deceased person proper to be allowed by the judge or commissioners, who shall not, after the giving of notice as required in the two hundred and fourteenth section of this chapter, exhibit his claim to the judge or commissioners, within the time limited by the court for that purpose, shall be forever barred from recovering such demand or from setting off the same in any action whatever. [Amended,,G. S. 320.]

SEC. 227. [Limitation of action.]-No action shall be commenced against the executor or administrator except actions to recover the possession of real or personal property, and actions for relief other than for the recovery of money only, and such actions as are permitted in this chapter; nor shall any attachment or execution be issued against the estate of the deceased until the expiration of the time limited by the court for the payment of the debts, except in the actions mentioned in this section, and in the cases provided for in section two hundred and seventy-two of this chapter. [Amended, G. S. 320.]

SEC. 228. [Actions pending at time of death.]—All actions and suits which may be pending against a deceased person at the time of his death may, if the cause of action survives, be prosecuted to final judgment; and the executor or administrator may be admitted to defend the same, and if the judgment shall be rendered against the executor or administrator, the court rendering it shall certify the same to the probate court, and the amount thereof shall be paid in the same manner as other claims duly allowed against the estate.

SEC. 229. [Actions by executor.]-Nothing in this chapter shall be construed to prevent an executor or administrator, when he shall think it necessary, from commencing and prosecuting any action against any other person, or from prosecuting any action commencod by the deceased in his lifetime, for the recovery of any debt or claim, to final judgment, or from having execution on any judgment.

.SEC. 230. [Set-off.]-In such case the defendant may set off any claim he may have against the deceased, instead of presenting it to the commissioners, and all mutual claims will be set off in such action, and if final judgment shall be rendered in favor of the defendant, the same shall be certified, by the court rendering it, to the probate court, and the judgment shall be considered the true balance.

SEC. 231. [When intestate is a joint contractor.]-When two or more persons shall be indebted on any joint contract, or upon a judgment founded on a joint contract, and either of them shall die, his estate shall be liable therefor, and it may be allowed by the commissioners as if the contract had been joint and several, or as if the judgment had been against him alone; and the other parties to such joint contract may be compelled to contribute or pay the same, if they would have been liable to do so upon payment thereof by the deceased.

SEC. 232. [Fees of commissioners.]-The commissioners provided for by this subdivision shall receive two dollars per day as compensation for every day of

actual service.

SEC. 227. A mortgagee, after death of the mortgagor, may foreclose his mortgage, and cannot be compelled to relinquish his lien and share in the general assets of the estate. 9 Neb. 60. The mortgagee is not barred by a failure to present it for allowance as a claim against the estate, but unless it is presented the mortgagee is confined to the mortgaged property and cannot share in the general assets. 5 Neb. 504.

SEC. 228. Cited 7 Neb. 266.

SEC. 233. [Appeals.]-Any executor, administrator, or creditor may appeal from the decision of the judge or commissioners to the district court for the same county, if application for such appeal be made in writing and filed in the probate court within ten days after the entry of the decision in the records of the probate court. [Amended, G. S. 321.]

SEC. 234. [Appeal bond.]-In case of an appeal by a claimant against the estate, he shall, within ten days, give a bond to the adverse party, with sufficient security, to be approved by the probate judge, and filed in his office, with a condition that he shall prosecute his appeal to effect and without unnecessary delay, and pay all damages and costs which may be awarded against him on the appeal. No executor or administrator shall be required to enter into bond to entitle him to appeal. [Amended, G. S. 321.]

SEC. 235. [Appeals not allowed.]-No appeal shall be allowed from the decision of the judge or commissioners except in the following cases: I. When such judge or the commissioners shall disallow any claim or set-off in whole or in part, to the amount of twenty dollars. II. When the judge or commissioners shall allow any claim or set-off in whole or in part, and the sum allowed being objected to shall amount to twenty dollars. [Amended, G. S. 321.]

SEC. 236. [Notice of hearing appeal.]-The party appealing shall, after the appeal is taken, give notice of such appeal and of the hearing thereof in the district court, by service of notice on the adverse party, or if personal service cannot be had, by causing the same to be published for two successive weeks in some weekly newspaper of general circulation in the county, which service or publication must be complete at least ten days before the next term of such court, otherwise the notice must be given for the next succeeding term thereafter. [Amended, G. S. 322.]

SEC. 237. [Transcript.]-The party appealing shall, on or before the first day of the term of said court next after the expiration of the time within which notice might have been given as required in the last preceding section, procure and file in the district court a certified copy of the bond, if any, given on appeal, and of the record of the allowance or disallowance appealed from, and of the claim or set-off filed, together with the proper evidence that notice has been given as aforesaid to the adverse party. [Id.] SEC. 238. [Trial in district court.]-The district court shall proceed to a trial and determination of the case in like manner as upon appeals brought from the judgments of justices of the peace; and such court may direct an issue to be made up between the parties when it shall be deemed necessary; and questions of law may be carried to the supreme court, and costs may be allowed or denied in the discretion of the court. [Id.]

SEC. 239. [Decision and judgment.]-The final decision and judgment in cases so appealed shall be certified to the probate court, and proceedings shall be had thereon necessary to carry the judgment of the appellate court into execution. [Id.]

SEC. 240. [Failure to perfect appeal.]—If any claimant, appealing on account of the disallowance of his claim by the judge or commissioners, shall fail to enter such appeal in the district court as herein required, or shall in any way fail to prosecute his action on his claim in the district court, such court may dismiss the appeal, or a certificate may be filed in the probate court, as the case may require, in like manner as in cases of appeals from judgments of justices of the peace, and thereupon such claim shall be forever barred, and the probate court shall proceed in the same manner as if such appeal had never been taken. [Id.]

SEC. 241. [Same.]-If the person objecting to a claim and appealing on account of the allowance thereof shall neglect to prosecute his appeal as aforesaid, the court to which the appeal shall be taken may dismiss the appeal, or a certificate may be filed as

332.

SEC. 233. An order allowing a claim against an estate may be reviewed on error in the district court. 10 Neb. SEC. 234. Where a party was prevented from taking the appeal within ten days on account of the absence of the judge from the county, there being no laches on his part, he was allowed to perfect the appeal and have a new trial in the district court. 7 Neb. 296.

SECB. 234-238. Repealed so far as there is a conflict with secs. 42-47, chap. 20. 27 Neb. 859.

aforesaid as the case may require, and thereupon the probate court may proceed in the same manner as if the appeal had never been taken, or on motion of the adverse party, and upon his producing an attested copy of the record and papers showing such appeal, the district court shall cause the appeal to be docketed and affirm the allowance appealed from, and enter judgment for costs against the appellant. [Id.]

SEC. 242. [Appeals by persons interested in estate.]-When an executor or administrator declines to appeal from the decision of the judge or commissioners, any person interested in the estate as creditor, devisee, legatee, or heir, may appeal from such decision by filing a written application therefor, within ten days after the expiration of the time allowed to such executor or administrator for the filing of his application as herein before provided; and the same proceedings shall be had in the name of the executor or administrator as if the appeal had been taken by him; Provided, That the person appealing in such case shall give bond, to be approved by the judge of probate and filed in his office, as well to secure the estate from damages and costs, as to secure the intervening damages and costs to the adverse party; and actions upon such bond may be maintained by the party sustaining damages thereby. [Amended, G. S. 323.]

SEC. 243. [Report of commissioners.]-The said commissioners shall file with their report all the claims and off-sets presented to and passed upon by them, and in the hearing and determination upon such claims and off-sets the judge or commissioners shall be governed by the same rules of evidence as prescribed in civil actions in the district court, and depositions may be taken, filed, and used in evidence before the probate court as in actions in the district court; and such depositions shall be transmitted to the district court with the transcript used in cases taken by appeal to said court, if such depositions are sought to be used upon the trial of such cause in the district court. [Id.]

LIMITATION OF TIME FOR PAYING DEBTS.

SEC. 244. [Court to fix time for payment.]-The probate court, at the time of granting letters testamentary or letters of administration, shall make an order allowing to the executor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased person, which time shall not, in the first instance, exceed one year and six months.

SEC. 245. [Extension of time.]-The county (probate) court may, on application of the executor or administrator, from time to time, as the circumstances of the estate may require, extend the time for the payment of debts and legacies, not exceeding six months at a time, nor so that the whole time allowed the original executor or administrator shall exceed three years, and at the expiration of three years such executor or administrator shall at once settle such estate as provided in section 282 of this act. [Amended 1887, chap. 36.]

SEC. 246. [Notice on application for extension of time.]-When an executor or administrator shall make application to have the time for paying debts and legacies extended beyond one year and six months from the time of granting letters testamentary or of administration, the probate court shall appoint a time for hearing and deciding on such application, and shall cause notice of application and of the time and place of hearing to be given to all persons interested, by publication, three 'weeks successively, in some newspaper to be designated by the court, and no such order extending the time shall be granted unless such notice shall have been previously given.

SEC. 247. [Appointment of new administrator.]—When an executor or administrator shall die, be removed, or become incapable of discharging his trust, and a new administrator of the same estate shall be appointed, the probate court shall, when necessary, make an order allowing to such new administrator a time for the disposing of the estate unadministered, and paying the debts and legacies, which time shali

SEC. 245. Cited 19 Neb. 491.

SEC. 247. Cited 19 Neb. 491.