Final distribution, which includes the decree of distribution by the court directing to whom and to what extent the assets of the estate shall be distributed, delivery to and receipt by the distributees, and the discharge of the personal representative from further liability or duty, can be had only after the settlement of the final account of the executor or administrator. Prior to such time it is impossible to say with precision what portion of the estate remains for distribution." It is the policy of the law, however, that the estate of a decedent should be settled and distributed at the earliest possible moment consistent with the affairs thereof, and, when an estate is in a condition to be distributed, distribution should not be delayed.® The statute usually provides that a certain period must elapse before an estate can be finally distributed, such as a period within which creditors may present claims, or other interests in or against the estate may be asserted. The personal representative can not be compelled to make a distribution prior to the time allowed by law for the filing of claims against the estate," nor until after the period fixed by statute for the settlement of the estate has elapsed. When the time for presenting claims against tion of the estate until a subsequent date, this does not prevent a distribution of that part of the estate regarding which distribution is not deferred and which is not required for the payment of debts.-Hutchins v. Hutchins, 41 App. Cas. (D. C.) 122. 5 In re Spreckels' Estate, 165 Cal. 597, 133 Pac. 289. 6 Sterrett v. National Safe Deposit etc. Trust Co., 10 App. Cas. (D. C.) 131; Succession of Hasley, 27 La. Ann. 586. As to the liability of the personal representative for unduly delaying the settlement of the estate, see § 1512. 7 Sinnott v. Kenaday, 12 App. Cas. (D. C.) 115. 8 Horton v. Averett, 20 Ala, 719; Browne v. Doolittle, 151 Mass. 595, 25 N. E. 23; Nagle v. Conard, 79 the estate has elapsed and all claims presented have been paid, it is the duty of the personal representative to cause the property to be distributed to those entitled thereto." And where the estate is in a condition to be distributed and the probate court refuses to assume jurisdiction or distribute the estate, the distributees may go into equity to enforce such distribution.10 In those jurisdictions where the statutes provide for a decree of distribution, the personal representative can not be compelled to distribute the estate among those entitled thereto until the probate court has decreed and made an order of distribution;11 and this rule applies even though the plaintiff claims as the sole heir at law of the decedent.12 § 1597. Division of Estate Without a Decree of Distribution. The force and effect of a decree of final distribution is largely statutory and its actual effect depends upon the manner in which, by whom, and upon what grounds it is attacked. The decree of distribution, while it may be an indicium of title, is not the source of the title of the distributees. The rights of devisees, legatees, heirs or next of kin do not originate in the decree of distribution, but come from the ancestor, either according to his will or the statute of distribution. The settlement of the estate in probate and the final decree of distribution simply serve to release the property from the conditions to which it is subject.18 Letters of administration are more N. J. Eq. 124, 81 Atl. 841; affirmed, 80 N. J. Eq. 252, 87 Atl. 1119. 9 Brown v. Forsche, 43 Mich. 492, 5 N. W. 1011. 10 Noble v. Tate, 119 Ala. 399, 24 So. 438. 11 Neubrecht v. Santmeyer, 50 Ill. 74; Ordinary v. Smith's Exrs., 15 N. J. L. 92. 12 Cathaway v. Bowles, 136 Mass. 54. 13 Bates v. Howard, 105 Cal. 173, 38 Pac. 715. As to distributees by mutual or less temporary, the primary object of such letters being to enable the representative to collect the assets and pay the debts. Distribution of the residue follows as an incident, the right of the heirs or next of kin in fact. taking effect at the date of the decedent's death, subject to the claims of creditors and the purposes of administration. After letters of administration have once been granted, notice to creditors published, the accounts of the administrator settled, all debts paid or barred, and the estate has vested for a number of years in those entitled to it, the court should not assume jurisdiction and grant new letters of administration merely for the purpose of causing distribution of the estate to be made to those in whom the estate has already vested.11 Where the will of a testator has been duly admitted to probate and his executor has qualified, all those interested under the will may, if they so desire, subject to the rights of creditors, divide and distribute the property of the estate among themselves in accordance with the terms of the will. Where a trustee for a distributee signs a receipt acknowledging payment to him of the trust funds, neither he nor his bondsmen can escape liability upon the claim that the estate had not been distributed by order of court.15 An administrator may voluntarily distribute agreement, paying all debts and dividing the estate without administration, see § 1180. Where no administration has been had upon the estate of an intestate, but the heirs and next of kin have divided the assets among themselves by agreement, one to whom has been allotted a promissory note due the decedent is entitled to bring an action thereon, and the claim of the defendant that there has been no administration of the decedent's estate is not in itself a cause for dismissing the action.-Granger v. Harriman, 89 Minn. 303, 94 N. W. 869. 14 State ex rel. Speckart v. Superior Court for Thurston County, 48 Wash. 141, 92 Pac. 942. 15 Thompson v. Rush, 66 Neb. funds in his hands to those entitled thereto and such distribution is valid as against a personal creditor of the distributee. The order of distribution is more in the nature of a final accounting to protect the administrator and his sureties; it is an order of court which protects the administrator against any claim that might be made on him for funds of the estate in his hands. If he wishes to dispose of the assets of the estate without such an order, no claim can be made upon him by any person except creditors of the estate and those entitled to such funds on distribution. It operates as a satisfaction of the distributive shares as far as concerns the distributees or any one whose rights are not paramount to those of the distributees.16 If the personal representative is willing to waive the protection of a decree of distribution by the court, there is nothing to prevent him from turning over the assets of the estate to those entitled thereto, without an order of the court.17 § 1598. As to Rights and Liabilities Where Executor Paya Legacies Thereafter Declared Invalid. By statute in many jurisdictions, where the will has been duly admitted to probate and the executor has qualified, all lawful acts performed by the executor are valid even though the will be thereafter set aside or a later will be produced. Under such a statute an executor who pays a legacy under an order of court and as directed by the will, is not personally liable for the amount so paid 758, 92 N. W. 1060; Weaver v. Roth, 105 Pa. St. 408, 413. 16 Henshaw v. Whitney, 11 Gray (77 Mass.) 223; Kraus v. Kraus, 81 Minn. 484, 84 N. W. 332; In re Scott's Account, 36 Vt. 297; III Com. on Wills-39 Lyle v. Williams, 65 Wis. 231, 26 17 Brown v. Forsche, 43 Mich. 492, 5 N. W. 1011; Clarke v. Sinks, 144 Mo. 448, 46 S. W. 199. even though the legacy be thereafter declared invalid.18 And even though there be no statute on the subject, the executor is justified in assuming the will to be valid unless there is something shown to the contrary or unless he has notice of a contest. If the executor, in good faith and without notice of any invalidity, makes payment of a legacy authorized or directed by the will, he will be protected although the will or the legacy be thereafter declared invalid.19 An executor derives his authority from the will, and if he is not protected in the performance of acts directed by the will to be done, and which he performs in good faith without notice of any invalidity of the will or its provisions, or of any contest of the will, it would lead to disastrous consequences and destroy faith in the effect of judgments of courts.20 But in those jurisdictions where the statutes require the direction and a decree of distribution by the court in order that the personal representative may divide the property among the distributees, an executor who makes payments to any legatees without an order of court, does so at his peril and will be held responsible should the will subsequently be declared invalid.21 18 Trustees for Home for Poor Catholic Men v. Coleman, 122 Ky. 544, 92 S. W. 342. As to the validity of prior acts of an executor where will is declared invalid or a subsequent will is produced, see §§ 1340, 1341. As to the effect of the removal of a personal representative from office, see §§ 1540, 1541. 19 Le Baron v. Fauntleroy, 2 Fla. 276; Wood's Admrs. v. Nelson's Admr., 9 B. Mon. (48 Ky.) 600; Kelly v. Davis, 37 Miss. 76. Where the will is proved only in common form, administration with the will annexed granted ex parte and distribution thereunder are void if the will is thereafter declared invalid.-Smith v. Stockbridge, 39 Md. 640. As to the distinction between probate of a will in common form and in solemn form, see §§ 1291 et seq. 20 Poag v. Carroll, Dudley's Law (S. C.) 1. 21 McPaxton v. Dickson, 15 Ark. |