tributed as the circumstances of the estate require. If any creditor whose claim has been allowed, but is not yet due, appears and assents to a deduction therefrom of the legal interest for the time the claim has yet to run, he is entitled to be paid accordingly. The payments provided for in this section are not to be made when the estate is insolvent, unless a pro rata distribution is ordered.

Statutes of 1851, p. 479, § 244.

See Estate of M. E. Cook, 14 Cal. 130, cited under next section.

Under the two hundred and forty-fourth section of the statute, a contingent claim may be presented to the probate judge, without the affidavit required by section thirty-six; and the effect might be to cause the money to which the party may be prospectively entitled to be paid into court. But this does not relieve the party from the necessity of presenting such claim to the executor, after it becomes absolute, with the proper affidavit before he can be compelled to act on it. Pico v. De la Guerra, 18 Cal. 422.

The statute does not provide for the approval of a contingent claim; and where such a claim is presented to the executor and the probate judge, and is by them allowed, such allowance does not give validity to the claim as a judgment against the estate. Ibid.

See section 1643, ante, and cases cited there; also, cases cited under preceding section.

for payment

executor

liable to

SEC. 1649. (3245.) When a decree is made by the pro- After decree bate court for the payment of creditors, the executor or of debts, administrator is personally liable to each creditor for his personally allowed claim, or the dividend thereon, and execution may creditors. be issued on such decree, as upon a judgment in the district court, in favor of each creditor, and the same proceeding may be had under such execution as if it had been issued from the district court. The executor or administrator is liable therefor, on his bond, to each creditor.

Statutes of 1851, p. 480, § 245.

This decree is a judicial determination of the rights of the parties, and possesses all the elements of a final judgment. Estate of M. E. Cook, 14 Cal. 130.

See Magraw v. McGlynn, 26 Cal. 420, cited under section 1647, ante.

included in

payment of

disposed of.

SEC. 1650. (246.) When the accounts of the adminis- Claims not trator or executor have been settled, and an order made for order for the payment of debts and distribution of the estate, no debts, how creditor whose claim was not included in the order for payment has any right to call upon the creditors who have been paid, or upon the heirs, devisees or legatees, to contribute

Order for payment of

extension of

to the payment of his claim; but if the executor or administrator has failed to give the notice to the creditors, as prescribed in section fourteen hundred and ninety-one, such creditor may recover on the bond of the executor or administrator the amount of his claim, or such part thereof as he would have been entitled to had it been allowed. This section shall not apply to any creditor whose claim was not due ten months before the day of settlement, or whose claim was contingent and did not become absolute ten months before such day.

Statutes of 1851, p. 480, § 246.

See cases cited under sections 1643, 1647, and 1650, ante.

SEC. 1651. (2247.) If the whole of the debts have been legacies and paid by the first distribution, the court must direct the paytime. ment of legacies and the distribution of the estate among the heirs, legatees, or other persons entitled, as provided in the next chapter; but if there be debts remaining unpaid, or if, for other reasons, the estate be not in a proper condition to be closed, the court must give such extension of time as may be reasonable for a final settlement of the

estate.

Statutes of 1851, p. 480, § 247; 1861, p. 648, § 83.

See section 1665, post, and decisions there noted; see, also, Est. of Isaacs, 30 Cal. 105, cited under section 1628, ante.

It would be dangerous doctrine to hold that the omission of the administrator to obtain an extension of time, or of the court to make the entry of such order upon its minutes, would have the effect to invalidate acts done by the acting administrator to the extent of defeating the title of a bona fide purchaser. Poor v. Boyce, 12 Tex. 440.

The legal title to a decedent's property is vested in the administrator for certain special purposes; collecting assets, paying debts, and for distribution. But subject to this, the whole interest in the estate vests immediately on decedent's death in the persons entitled under the statute of distribution; and where there are no debts to be collected or paid, and when it is unnecessary for the purpose of distribution that an administrator should be appointed, the legal title to the personal estate vests without distribution in the distributee, in the same way and manner that the real estate descends to the heir. Hall v. Hall, 27 Miss. 458; Anderson v. Brumfield, 32 Miss. 107.

Where an executor or administrator pays a debt, or discharges a contract constituting a just charge against the estate of his testator or intestate, out of his private funds, he will be entitled to an allowance for the same in his administrator's account; and in case the estate has passed away, he can enforce the same against the heirs and distributees. Woods v. Ridley, 27 Miss. 119.

count, when

SEC. 1652. (2248.) At the time designated in the last Final acsection, or sooner, if within that time all the property of to be made. the estate has been sold, or there are sufficient funds in his hands for the payment of all the debts due by the estate, and the estate be in a proper condition to be closed, the executor or administrator must render a final account and pray a settlement of his administration.

Statutes of 1851, p. 480, § 248; 1861, p. 648, §84.

render final

how treated.

SEC. 1653. (2249.) If he neglects to render his account, Neglect to the same proceedings may be had as prescribed in this account. chapter in regard to the first account to be rendered by him, and all the provisions of this chapter relative to the last mentioned account, and the notice and settlement thereof, apply to his account presented for final settlement.

Statutes of 1851, p. 480, § 249.

See sections 1622 and 1651, and cases cited there.

14

CHAPTER XI.

OF THE PARTITION, DISTRIBUTION AND FINAL SETTLEMENT OF

ESTATES.

ARTICLE I. PARTIAL DISTRIBUTION PRIOR TO FINAL SETTLEMENT.

II. DISTRIBUTION ON FINAL SETTLEMENT.

III. DISTRIBUTION AND PARTITION.

IV. AGENT FOR ABSENT INTERESTED PARTIES, AND DISCHARGE OF EXECU

TOR OR ADMINISTRATOR.

Payment of legacies

bonds.

ARTICLE I.

PARTIAL DISTRIBUTION PRIOR TO FINAL SETTLEMENT.

SECTION 1658. Payment of legacies upon giving bonds.

1659. Notice of application for legacies.

1660. Executor or other person may resist application.

1661. Decree prayed for to require bond, which must be given. May order whole or part of share to be delivered. Where partition necessary, how made. Costs.

1662. Order for payment of bond, and suit thereon.

SEC. 1658. (2250.) At any time after the lapse of four upon giving months from the issuing of letters testamentary or of administration, any heir, devisee or legatee may present his petition to the court for the legacy or share of the estate to which he is entitled, to be given to him upon his giving bonds, with security, for the payment of his proportion of the debts of the estate.

Statutes of 1851, p. 480, § 250; 1861, p. 248, § 85.

See section 1452, ante, and cases cited there.

Undoubtedly, after the personalty, the rents and profits must be exhausted before the land can be sold; for, although, as far as I have been able to discover, the statute contains no express provision to that effect, yet an intent not to sell the land, except as a last resort, is shown by the whole tenor of the act. This intent is especially shown by the provisions of sections 250 to 257, both inclusive, where it is provided that the heirs, devisees and legatees may be put in the possession of their respective shares, upon their giving bonds for the payment of their proportion of the debts, in which

event, of course, the executor or administrator ceases to be entitled to the possession of the land or its rents, and thereafter each heir, devisee, or legatee comes into the perception of the rents which issue from his share." Per Sanderson, J., in Estate of Woodworth, 31 Cal. 595.

Bill filed by a judgment creditor of J. upon order of court permitting it, against the defendants as executors, avers that the will of deceased directed “by written or oral instructions,” the executors to sell certain cattle and retain the proceeds for the use and benefit of J., after discharging his then debts. That it also declared that he, the testator, had made a secret assignment to J., which the executors would carry into effect, according to his instructions, when convenient. Bill charges that defendants have not sold the cattle, but had converted them to their own use: Held, that a demurrer was properly sustained, that a pleading must be taken most strongly against the pleader, and that there is no law giving effect to an oral instruction of a testator as a will or part of a will; and that the creditor of J. can have no more rights than J. himself. Sparks v. De la Guerra, 14 Cal. 108.

At most J. is only a legatee, and the executors the trustees of the legacy. And the bill, not stating that the estate is settled, nor that the property or the money is not necessary to pay off debts or expenses of administration, nor that J. would be entitled, before final settlement, to his legacy, without tendering a refunding bond cannot be maintained. Ibid.

Rents and profits belong to heir or legatee of land from the death of testator unless personalty is exhausted. "The claim of the respondent in this connection, that the rents and profits of the real estate, coming in subsequent to the death of the testator, are personal property in the hands of the executor or administrator, within the meaning of the foregoing provisions of the statute, is without foundation. Under the statute of descent and under the will, if there is one, if not otherwise provided, the entire estate, both real and personal, with all accretions, rests in the heirs and devisees immediately on the death of the testator or intestate, subject only to the lien of the executor or administrator; for the purpose of administration, and hence, if not required for that purpose, the subsequent rents and profits go to the party who takes the land from which they issue." Per Sanderson, J. in Estate of Woodworth, 31 Cal. 595.

See section 1643, ante, note a, in relation to payment of taxes before distribution.

application

SEC. 1659. (2251.) Notice of the application must be Notice of given to the executor or administrator, personally, and to for legacies. all persons interested in the estate, in the same manner that notice is required to be given of the settlement of the account of an executor or administrator.

Statutes of 1851, p. 480, § 251; 1861, p. 248, § 86.

See sections 1633 and 1634, ante.

other per

sist applica

SEC. 1660. (2 252.) The executor or administrator, or Executor or any person interested in the estate, may appear at the time son may renamed and resist the application, or any other heir, devisee tion. or legatee may make a similar application for himself. Statutes of 1851, p. 481, § 252.