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CHAPTER VI.

OF CLAIMS AGAINST THE ESTATE.

tors.

presented within

§ 128. Every executor or administrator shall, immediately Notice to credi- after his appointment, cause to be published in some newspaper, printed in the county, if there be one, if not, then in such newspaper as may be designated by the court, a notice to the creditors of the deceased, requiring all persons havClaims to be ing claims against the deceased to exhibit them with the neten months. cessary vouchers, within ten months after the date of the notice, to such executor or administrator, at the place of his residence or transaction of business, to be specified in the notice. Such notice shall be published as often as the judge may deem necessary, but not less than once a week for four weeks.

Notice, how long.

Copy, with affi

filed.

[Form No. 74, 75, Appendix.]

$ 129. After the notice shall have been published, a copy davit, etc., to be thereof, together with an affidavit attached thereto, of the publisher or printer of the paper in which the same was published, shall be filed by the executor or administrator.

When barred.

ed by affidavit,

etc.

[Form No. 75, Appendix.]

§ 130. If a claim be not presented within ten months after the first publication of the notice, it shall be barred forever; provided, if it be not then, due, or if it be contingent, it may be presented within ten months after it shall become due or absolute.

Compare sec. 246.

A claim not presented to the administrator within the time allowed, is barred, not only as against him, but as against heirs, and all other creditors of the estate. Graham v, Vining, 2 Texas R., 433.

To be support-131. Every claim presented to the administrator shall be supported by the affidavit of the claimant that the amount is justly due, that no payments have been made thereon, and that there are no offsets to the same to the knowledge of the

claimant. The oath may be taken before any officer author- Vouchers. ized to administer oaths. The executor or administrator may also require satisfactory vouchers to be produced in support of the claim.

[Forms No. 76, 77, Appendix and see errata-form No. 77.]

estate by probate

§ 131. A. (Sec. 1.) Any probate judge may present a claim against the estate of any deceased person for allowance, to Claim against the executor or administrator of such estate; and if the judge. executor or administrator allows such claim, he shall in writing, designate some probate judge of an adjoining county; and the probate judge so designated by the executor or administrator, shall, upon the presentation of such claim to him, have the same power to allow or reject it, as he would have, if the will had been proved, or administration granted in his own county; and the probate judge presenting such claim, shall, in case of its rejection by the executor or administrator, or by such probate judge, as shall have acted upon it, have the same right to sue in a proper court for its recovery, as other persons have, when their claims against an estate are rejected. (a.)

endorsed, etc.

§ 132. When a claim, accompanied by the affidavit requir ed in the preceding section, has been presented to the execu- Allowance or tor or administrator, he shall indorse thereon his allowance rejection to be or rejection, with the day and date thereof. If he allow this claim, it shall be presented to the probate judge for his approval, who shall in the same manner indorse upon it his allowance or rejection.

[Form No. 76, 77, Appendix.]

If an administrator indorse on a claim his reasons for rejecting it, he will not be permitted to plead, or urge in abatement of the suit, any other reason, which goes merely to the sufficiency of the presentation for allowance. Hansell vs. Gregg, 7 Texas R. p. 223.

Effect of allow.

$133. Every claim which has been allowed by the executor, shall be filed in the probate court, and be ranked among ance, etc. the acknowledged debts of the estate, to be paid in due course of administration.

See Sec. 158, and cases noted.

The words "and approved by the probate judge," have probably been omitted by inadvertence, after the word "administrator," in the last section.

(a.) Section 1 of act of April 14, 1856, (stat. 1856, p. 93.) Inserted here, and noted § 131 A, for convenience of reference.

claim when rejected.

By our probate law, claims against an estate which have been allowed by the administrator and the probate judge, have the force and effect of judgments; and it is error in the probate court to reject on the final settlement of the administrator's accounts, sums paid by him on claims so allowed. Deck's Estate v. Gherke, 6 Cal. R., 666. But this rule applies only to such claims as are debts against the estate, and not to expenses incurred, or disbursements made by the administrator, the policy of the law being merely to prevent estates from being squandered in useless litigation. Ib.

There is no doubt, but that the allowance and approval of the claim is a quasi judgment, binding as between the actual parties. But the heirs of the deceased have a right to go behind the allowance and approval, and to require proof of the original indebtedness, after petition and notice for the sale of real estate to pay debts.

And on the hearing of such petition, it is error in the probate judge to refuse to hear testimony that the deceased did not die in the county where the estate is being administered; and also to refuse to allow the heirs to question the justice of the claims allowed. Beckett et. al. v. Selover, January term 1857, where the effect of the allowance and approval of the claim is consider ed at length, and cases from the Texas Reports cited.

§ 134. When a claim is rejected, either by the executor or Action upon administrator, or the probate judge, the holder shall bring suit in the proper court against the executor or administrator, within three months after the date of its rejection, if it be then due, or within three months after it becomes due, otherwise the claim shall be forever barred.

Claim barred by Stat. Lim.

Action not

§ 135. No claim shall be allowed by the executor or administrator, or by the probate judge, which is barred by the statute of limitations.

[Form No. 77, Appendix.]

It seems that the presentation to the administrator is the commencement of a suit upon it, and stops the running of the statute. Beckett v. Selover, 7 Cal. R. p. 215.

§ 136. No holder of any claim against an estate, shall maintainable till maintain any action thereon, unless the claim shall have been first presented to the executor or administrator.

claim presented.

As to actions against administrators etc., see sec. 195, and cases noted. Mortgages, and liens of record, form no exception to the rule prescribed by sec. 136. The claims secured by them must have been presented to the executor or administrator, and rejected by him before an action can be maintained on them. Ellisen v. Halleck, 6 Cal. 386, and see Harwood v. Marye et. al. Oct. term, 1857.

137. The time during which there shall be a vacancy in Panem ad the administration, shall not be included in any limitations

Vacancy in

ministration.

herein prescribed.

ing at testator's

$138. If an action be pending against the testator or intestate at the time of his death, the plaintiff shall in like man- If action pendner present his claim to the executor or administrator for death. allowance or rejection, authenticated as required in other cases, and no recovery shall be had in the action, unless proof be made of the presentment.

[Forms No. 76 and 77, Appendix.]

in part.

§ 139. Whenever any claim shall be presented to any executor or administrator, or to the probate judge, and he, Claim allowed shall be willing to allow the same in part, he shall state in his indorsement the amount he is willing to allow. If the creditor refuse to accept the amount allowed, in satisfaction of his claim, he shall recover no costs in any action which Refusal to ache may bring against the executor or administrator, unless he shall recover a greater amount than that offered to be allowed.

[Form No. 77, Appendix.]

See Hansell v. Gregg, noted under section 132.

§ 140. The effect of any judgment rendered against any executor or administrator, upon any claim for money against the estate of his testator or intestate, shall be only to establish the claim in the same manner as if it had been allowed by the executor or administrator, and the probate judge; and the judgment shall be that the executor or administrator pay in due course of administration, the amount ascertained to be due. A certified transcript of the judgment shall be filed in the probate court. No execution shall issue upon such judgment, nor shall it create any lien upon the property of the estate, or give to the judgment creditor any priority of payment.

Compare Sec. 133, ante, and cases noted.

§ 141. When any judgment has been rendered against the testator or intestate, in his lifetime, no execution shall issue thereon after his death; but it shall be presented to the executor or administrator as any other claim, but need not be supported by the affidavit of the claimant; and if justly due and unsatisfied, shall be paid in due course of administration; provided, however, that if the execution shall have been actually levied upon any property of the deceased, the same may be sold for the satisfaction thereof, and the officer

cept.

[blocks in formation]

Agreement to refer claim.

upon reference.

making the sale, shall account to the executor or administrator, for any surplus in his hands.

§ 142. If the executor or administrator doubt the correctness of any claim presented to him, he may enter into an agreement in writing with the claimant, to refer the matter in controversy to some disinterested person to be approved by the probate judge. Upon filing the agreement and approval of the probate judge, in the office of the clerk of the district court for the county in which the letters testamentary or of administration were granted, the clerk shall, cither in vacation or in term, enter a rule referring the matter in controversy to the person so selected.

[Forms No. 78, 79, Appendix.]

§ 143. The referee shall thereupon proceed to hear and determine the matter, and make his report thereon to the court in which the rule for his appointment shall have been Proceedings entered. The same proceedings shall be had in all respects; the referee shall have the same powers-be entitled to the same compensation, and subject to the same control, as if the reference had been made in an action in which such court might by law direct a reference. The court may set aside the referee or appoint another in his place, or may set aside or confirm the report, and adjudge costs, as in actions against executors and administrators, and the judgment of the court thereon shall be valid and effectual, in all respects, as if the same had been rendered in a suit commenced by ordinary process.

Liability of executor, etc., for costs.

§ 144. When a judgment has been recovered, with costs, against any executor or administrator, the executor or administrator shall be individually liable for the costs, but they shall be allowed him in his administration accounts, unless it shall appear that the suit or proceeding in which the costs were taxed shall have been prosecuted or resisted without just cause.

Executors and administrators are individually responsible for costs recovered against them in every case; but they shall be allowed them in their administration accounts, except when it appears that the action has been prosecuted or resisted without just cause. The provisions of the 144th section of the Probate Act, are not limited to settlements in the probate court. Hicox v. Graham, 6 Cal, R., 667.

§ 145. If the executor or administrator, is himself a

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