Against whom conclusive.-A legatee who has been represented by counsel at the allowance of accounts against the estate, will not be allowed, after a lapse of time, to come in and have the allowance set aside on a mere general averment of newly-discovered evidence. Williams v. Price, 11 Cal. 212. Quere: Where one of several executors files a separate account in which the existence of his coëxecutor is entirely ignored, and the latter does not appear and consequently takes no part in the proceedings, whether he is included among the persons described in the two hundred and thirty-seventh section of the probate act, against whom the settlement and allowance of the account is there declared to be conclusive. Hope v. Jones, 24 Cal. 89. Section 237 of the act provides that the settlement of the account and the allowance thereof by the court and upon appeal shall be conclusive against all persons in any way interested in the estate, saving, however, to persons laboring under any legal disability, their right to proceed against the executor or administrator and his sureties within two years after the removal of their disabilities; and in any action brought by them the allowance and settlement of the account shall be deemed presumptive evidence of its correct ness. 105. Racouillat v. Requena, 36 Cal. 651; see, also, Estate of Isaacs, 30 Cal. Upon an application to open a decree on accounting, error or fraud must be clearly shown, the lapse of time must be explained, and the application must be generally meritorious. Estate of Totten, 1 Tucker's Sur. Rep. 115. The correctness and effect of a settlement by an administrator with a probate judge, cannot be assailed in a collateral action; especially where there is no basis therefor laid in the pleadings. Harlan v. Stevenson, 40 Iowa. K. and M. being partners, M. died, and K.. in settling the End of Section 1638, Page 202. hear 1639. Whenever it appears to the Court on any ing of an application for the sale of real property, that it would be for the interest of the estate that personal property of the estate, or some part of such property should be first sold, the Court may decree the sale of such personal property, or any part of it, and the sale thereof shall be conducted in the same manner as if the application had been made for the sale of such personal property in the first instance. 1640. Pending the settlement of any estate on the petition of any party interested therein, the Probate in the hands of the execuCourt may order any moneys tors or administrators to be invested for the benefit of the estate in securities of the United States or of this State. Such order can only be made after publication of notice of the petition in some newspaper to be designated by the Judge. ARTICLE III. THE PAYMENT OF DEBTS OF THE ESTATE. SECTION 1643. Order in which debts to be paid. 1644. Where property insufficient to pay mortgage. 1646. Funeral expenses and expenses of last sickness. 1647. Order for payment of debts and discharge of the executor or 1648. Provision for disputed and contingent claims. 1649. After decree for payment of debts, executor personally liable to creditors. 1650. Claims not included in order for payment of debts, how dis posed of. 1651. Order for payment of legacies and extension of time. 1652. Final account, when to be made. 1653. Neglect to render final account, how treated. which debts SEC. 1643. (239.) The debts of the estate subject to order in the provisions of section twelve hundred and five, must be to be paid. paid in the following order: 1. Funeral expenses. 2. The expenses of the last sickness. 3. Debts having preference by the laws of the United States. 4. Judgments rendered against the decedent in his lifetime, and mortgages, in the order of their date. 5. All other demands against the estate. (a) Statutes of 1851, p. 479, § 239. See Estate of Woodworth, 31 Cal. 579, cited under section 1563, ante. See sections 1377 and 1384, Civil Code, given in full in the chapter on wills and testaments, post. (a) NOTE. (Code of Civ. Proc.)-SEC. 1205. In case of the death of any employer, the wages of each miner, mechanic, salesman, clerk, servant and laborer, for services rendered within the forty days next preceding the death of the employer, not exceeding one hundred dollars, rank in priority next after the funeral expenses, expenses of the last sickness, the charges and expenses of administering upon the estate, and the allowance to the widow and infant children, and must be paid before other claims against the estate of the deceased person. (From Political Code.)-SEC. 3752. The probate judge must require every administrator and executor to pay out of the funds of the estate all taxes due from such estate; and no order or decree for the distribution of any property of any decedent, among the heirs or devisees must be made until all taxes against the estate are paid. SEC. 3639. When a person is assessed as agent, trustee, bailee, guardian, executor or administrator, his representative designation must be added to his name, and the assessment entered on a separate line from his individual assessment. SEC. 3642. The undistributed or unpartitioned property of deceased persons may be assessed to the heirs, guardians, executors or administrators; and a payment of taxes made by either binds all the parties in interest for their equal proportions. When administrator to pay debts.-When an administrator has funds in his hands over the expense of the funeral and last sickness of the intestate, and the allowance to his family, he should obtain an order at his next annual settlement to apply the same to the payment of debts. Walls v. Walker, 37 Cal. 424. Where the administrator under order of the probate court, sells land of deceased which is subject to a mortgage, the proceeds of sale after deducting the necessary expenses thereof, must be applied, first to the satisfaction of the mortgage, and the residue, if any, in due course of administration. Estate of Murray, 18 Cal. 686. Order of priority cannot be changed.-Neither the administrator nor the probate court have any power to change the order in which the debts of the estate are directed to be paid by the probate act, and an order of the probate court made with the consent of the administrator, directing him to pay partnership debts, before the debts of the estate are paid, is void, and if he obey the same he cannot be allowed in his account the money used until all the debts of the estate are paid. Ibid. See, also, Tompkins v. Weeks, 26 Cal. 50, cited under section 1645, post. Under our law generally the personal estate which comes into the hands of the executor is first chargeable with the payment of the debts of the deceased. Estate of Woodworth, 31 Cal. 595. The rents and profits of the real estate accruing subsequent to the death of the testator, are not personal property in the hands of the executor to be first applied to the payment of debts in exoneration of the general personalty. Ibid. Under our law as between the legatee of the personalty and the devisee of the realty, the executor is not authorized to appropriate the rents of the real estate which accrued subsequent to the decease of the testator, to the satisfaction of a debt of the deceased secured by mortgage on the realty in exoneration of the personalty. lbid. An executor de son tort, at common law, though his acts are for many purposes valid, cannot derive from such acts any benefit to himself. He cannot retain assets to pay a debt of his own, and if the estate be insolvent, it is no answer to an action to recover the assets, that he has paid debts equal to or exceeding their value. De la Guerra v. Packard, 17 Cal. 182. A payment in the due course of administration means the payment by the legal representative of the deceased, acting under the orders of the probate court, out of the assets of the estate of the deceased, and in the manner and order that other debts of the same rank are by the probate act required to be paid. Myers v. Mott, 29 Cal. 359. Incumbrances on realty.-An administrator cannot pay out the money of the estate to remove an incumbrance from the property of the estate, which debt the estate is in no way responsible for. Estate of Knight, 12 Cal. 200. He is to take care of, manage and preserve the estate committed to him, but this does not mean that he is at discretion to pay off all incumbrances resting on the property, upon the notion that property may increase in value, and thereby a speculation may be made for the estate. Ibid. Attachment lein.-If the defendant die after the levy of an attachment on his property, and before judgment, his death destroys the lien of the attachment, and the attached property passes into the hands of the administrator, to be administered on in due course of administration. Myers v. Mott, 29 Cal. 359; see, also, sections 1504 and 1506, ante, and cases cited there. Equitable conversion.-Lands ordered in a will to be sold will be regarded as money in constructing will. Postell v. Postell, 1 De Saussure, 173. It seems, upon the doctrine of equitable conversion, that under such a will the whole estate is to be considered as personal estate from the death of the testator, so that the rents and profits of the real estate received by the executor, and the proceeds of a sale thereof made by him, become legal assets in his hands, for which he is bound to account as personal estate. Stagg v. Jackson, 1 Comstock, 206. property to pay SEC. 1644. (240.) The preference given in the preced- Where ing section to a mortgage only extends to the proceeds of insufficient the property mortgaged. If the proceeds of such property mortgage. are insufficient to pay the mortgage, the part remaining unsatisfied must be classed with other demands against the estate. Statutes of 1851, p. 479, § 240. Compare sections 1493 and 1500, ante. Estate insufficient, a be paid. SEC. 1645. (2 241.) If the estate is insufficient to pay all the debts of any one class, each creditor must be paid a dividend to dividend in proportion to his claim; and no creditor of any one class shall receive such payment until all those of the preceding class are fully paid. Statutes of 1851, p. 479, § 241. Compare with section 1648, post. Neither the administrator nor the probate court have any power to change the order in which the debts of the estate are directed to be paid by the probate act, and an order of the probate court, made with the consent of the administrator, directing him to pay partnership debts before the debts of the estate are paid, is void, and if he obeys the same, he cannot be allowed in his account the money used until all the debts of the estate are paid. Tompkins v. Weeks, 26 Cal. 50. penses and expenses of last sickness SEC. 1646. (2 242.) The executor or administrator, as Funeral exsoon as he has sufficient funds in his hands, must pay the funeral expenses and the expenses of the last sickness, and the allowance made to the family of the decedent. He may retain in his hands the necessary expenses of administration, but he is not obliged to pay any other debt or any legacy until, as prescribed in this article, the payment has been ordered by the court. Statutes of 1851, p. 479, § 242. See note to section 1643, ante. It seems that funeral expenses, expenses of the last sickness, expenses of Provision for disputed gent claims. administration, the allowance to the widow and children, and the expenses incurred in the preservation, safe keeping, and management of the estate, have preference over a specific lien, created in the lifetime of the decedent, except when such lien is for the purchase money of the property to which it is attached. Robertson v. Paul, 16 Texas, 472. Obiter.-Where an administrator makes premature payment of a claim and takes a bond of indemnity, such a bond would be held legal and binding. Comstock v. Breed, 12 Cal. 289. When an administrator has funds in his hands over the expenses of the funeral and last sickness of the intestate, and the allowance to his family, he should obtain an order at its next annual sotilamunt de Page 206. 1647. Upon the settlement of the accounts of the executors or administrator† as required in this chapter, the court must make an order for the payment of the debts, as circumstances of the estate require. If there is not sufficient funds in the hands of the executor or administrator, the court must specify in the decree the sum to be paid to each creditor. If the whole property of the estate be exhausted by such payment or distribution, such account must be considered as a final account, and the executor or administrator is entitled to his discharge on producing and filing the necessary vouchers and proofs showing that such payments have been made, and that he has fully complied with the decree of the court. [Approved March 11, 1876-ninety days.] ~~uvшy capacity for the use of those interested in the estate, and it is his duty to retain the money thus received until it can be distributed in the manner required by law. Magraw v. McGlynn, 26 Cal. 420. The probate court may require an executor, in his account, to state the kind of money received by him from the proceeds. Ibid. See, also, Fox v. Minor, 32 Cal. 126. When executors or administrators have sold the property of the estate for, and received pay in legal tender notes for the payment of creditors, it is error for the probate court to order payment to be made in gold coin. Estate of Den, 39 Cal. 70. SEC. 1648. ( 244.) If there is any claim not due, or and contin- any contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be entitled to if the claim were due, established or absolute, must be paid into the court, and there remain, to be paid over to the party when he becomes entitled thereto; or, if he fails to establish his claim, to be paid over or dis |