ed possessed an nership. other person, the surviving partner shall have the right to Where deceas- continue in possession of the effects of the partnership, and interest in a part- to settle its business; but the interest of the deceased shall be included in the inventory, and appraised as other property. The surviving partner shall proceed to settle the affairs of the partnership without delay, and shall account with the executor or administrator, and pay over such balances as may from time to time be payable to him, in right of his testator or intestate. Upon the application of the Surviving part-executor or administrator, the probate judge may, whenever it may appear necessary, order the surviving partner to render an account, and in case of neglect or refusal, may, after notice, compel it by attachment. And the executors or administrators, may maintain against him, any action which his testator or intestate could have maintained. ner to account. See Thomson v. Thomson, noted ante, pp. 57 and 58. § 199. Any administrator may, in his own name, for the Actions on use and benefit of all parties interested in the estate, maintain actions on the bond of an executor, or of any former administrator of the same estate. bond of executor, etc. $ 200. In actions brought by or against executors, it shall What execu- not be necessary to join those as parties, to whom letters shall have been issued, and who have not qualified. tors to join as parties § 201. Whenever a debtor of a deceased person, shall be unable to pay all his debts, the executor or administrator, Compounding with the approbation of the probate judge, may compound with him, and give him a discharge, upon receiving a fair and just dividend of his effects. debts. Recovery of lently disposed of by testator. 202. When there shall be a deficiency of assets in the hands of an executor or administrator, and when the deproperty fraudu ceased shall, in his life time, have conveyed any real estate, or any rights or interests therein, with 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 Duty of execu- 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 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 tor, etc, to commence suits. all goods, chattels, rights, or credits, which may have been so fraudulently conveyed by the deceased in his life time, whatever may have been the manner of such fraudulent conveyance. See Danzey v. Smith, noted at the end of the chapter. to sue as provid section. § 203. No executor or administrator shall be bound to sue for such estate as mentioned in the preceding section, when executor for the benefit of the creditors, unless on application of ed in preceding 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 judge shall direct. Disposition of § 204. All real estate so recovered, shall be sold for the payment of debts, in the same manner as if the deceased had died seized thereof, upon obtaining an order therefor from estate recovered. the probate court, and the proceeds of all goods, chattels, rights, and credits, so recovered, shall be appropriated in payment to the debts of the deceased, in the same manner as other property in the hands of the executor or administrator. Cases bearing upon the matters treated of in Chapter VIII., not noted under the preceding sections. Wherein an action against an administrator, the complaint is founded upon an instrument alleged to have been executed by the intestate, it is not necessary under the statute that the administrator should deny the signature of the intestate on oath. It must be proved. Heath v. Lent, 1 Cal. R., 410. Where a bill is filed in chancery against an administrator, to compel him to account, by one who has not been an actual party to a proceeding or settlement in the probate court, he may totally disregard such proceeding or settlement. Clarke v. Perry, 5 Cal. R., 58. Where the administrator of a defaulting tax collector was sued in equity, in the name of the People, to compel him to pay into the hands of the county treasurer, money collected by intestate as such tax collector: Held, that he occupied the position of one who takes possession, without authority, of property belonging to another, and may be treated as trustee de son tort. People v. Houghtaling, 7 Cal. R., 348. Though defendant be described in such action as administrator (in the caption of the complaint), yet if the allegations and facts set forth show that he is not sought to be charged as administrator, and no relief is sought against the estate, an objection that he is improperly sued in his representative capacity, is untenable. Ib. In actions upon joint and several contracts or obligations, an administrator cannot be joined with the survivor, because the one is sued de bonis testatoris, and the other de bonis propriis. Humphrey v. Yale, 5 Cal. R., 173; May v. Hanson, 6 Cal. R., 642. Where a bill for the foreclosure of a mortgage, made by the deceased, is filed against his executor, and no averment of presentation and rejection of the account is made in the bill, it is demurrable. Ellisen v. Halleck, 6 Cal. R., 386. The general right to sue an administrator being taken away by the statute, the declaration must bring the case within the exception so as to give the court jurisdiction.-Ib. An executor has no authority until the will is proved. Tucker v. Starkes, Brayt. R., 99. One, of two joint executors or administrators, may discharge a debt. Gleason v. Lillie, 1 Aiken's R., 28. Where there are two executors, each has a right to receive the debts and assets, and each is answerable for what he receives. Edmonds v. Cranshaw, 14 Peters' Sup. Ct. R., 166. It is sufficient that a claim is presented to, and rejected by, one of several administrators, to authorize a suit. Dean v. Duffield, 8 Texas R., 235. Joint administrators stand on the same footing, and are invested with the same authority in respect to the administration, as co-executors; like them, they are regarded in law as one person, and consequently the acts of one, in respect to the administration, are deemed to be the acts of all, inasmuch as they have a joint and entire authority over the whole property. Ib. Under a will authorizing the “executors" to sell lands, it was held that a sale by one executor, who alone of three appointed, qualified, was valid, without showing that the others renounced or refused to join. Wood v. Sparks, 1 Dev. & Bat., N. Carolina R., 389. Co-administrators stand as sureties for each other; and if one is misapplying and squandering the assets of the estate, the liability of the other to be seriously injured, is a sufficient ground for relief on general principles of equity. Davis v. Thorn, 6 Texas R., 482. After an administrator has been discharged, the jurisdiction of the county court as to him is terminated, and he cannot be cited to come into court and re-state his account. Francis v. Northcote, 6 Texas R., 185. An administrator who has been removed, cannot be required to surrender his own vouchers, or any papers necessary to his own defence. Miller v. Jasper, 10 Texas R., 513. An administrator is bound to defend the estate of his intestate against claims which he does not think just, and he is entitled to charge legal expenses to the estate. Scott's Estate, 9 Watts & Serg., 98; Davis v. Rawlins, 2 Harring, 125. The administrator of a fraudulent vendor, must use proper means to secure the property fraudulently sold, to the creditors; otherwise he will be liable to an action by them. Danzy v. Smith, 4 Texas R., 411. But see Sec. 203, ante. The acts of an administrator may be set up as an estoppel in pais, to bar a recovery by the estate which he represents. Thomas v. Brooks, 6 Texas R., 869. In the case of a mortgage debt due by the estate of a deceased person, which has been allowed by the executor and the probate judge, there is no necessity for a foreclosure against the estate, and the policy of the law being against burdening an estate with unnecessary costs, such a bill will not lie. Falkner v. Folsom's Executors, 6 Cal. R., 412. A judgment against an administrator, though in the form of a common money judgment by default, is valid, its only effect being to establish the validity of the claim. Chase v. Swain, Jan. term, 1858. A judgment by default may as well be taken against an administrator as any other party. Ib. The representatives of a deceased joint mortgagor, should not be joined with the survivor in a suit to foreclose a mortgage. The mortgagee should pursue his remedy against the representative of the deceased mortgagor in the probate court, while the remedy against the surviving mortgagor would be by foreclosure in the district court. Martin v. Harrison, 2 Texas R., 456. The administrator being under our system, entitled to the possession of the real property, must be made a party to all suits affecting it. Harwood v. Marye et al., Oct. term, 1857. The complaint after setting out the note and mortgage sued on, alleges that Smith, one of the mortgagors, is dead; that one William Smith, a resident of Virginia, is his heir. It not appearing by the complaint whether there was any administrator of the estate of Smith, and no presentation of the claim for allowance being alleged: Held, that the action could not be maintained, and that the fact of there being no administrator will not excuse want of presentation. Ib. CHAPTER IX. CONVEYANCE OF REAL ESTATE BY EXECUTORS AND ADMINIS- Executor, etc., tate. § 205. When any person who is bound by contract in writing, to convey any real estate, shall die before making the when directed to conveyance, the probate court may make a decree, authori- convey real es zing and directing the executor or administrator, to convey such real estate to the person entitled thereto, in all cases where such deceased person, if living, might be compelled to make such conveyance. [Forms No. 132, 135, 136 and 138, Appendix.] § 206. On the presentation of a petition of any person claiming to be entitled to such from conveyance, any executor or administrator, setting forth the facts upon which such claim is predicated, the probate judge shall appoint a time and place for hearing such petition, which shall be at a a regular term of the court; and shall order notice of the pendency thereof, and of the time and place of hearing, to Fetition for conveyance. ing Notice of hear parties interested tions. be published at least four successive weeks before such hearing, in such newspaper in this State, as he may designate. [Forms No. 131, 137, 133 and 134, Appendix.] § 207. At the time and place appointed for such hearing, The hearing or at such other time, as the same may be adjourned to, upon may file objec proof by affidavit, of the due publication of the notice, the court shall proceed to a hearing, and all persons interested in the estate, may appear and defend such petition, by filing their objections in writing, and the court may examine on oath the petitioner, and all who may be produced before him for that purpose. may be decreed, [Form No. 134, Appendix.] § 208. After a full hearing upon such petition and objections, and examination of the facts and circumstances of the Conveyance claim, if the probate judge is satisfied that the petitioner is entitled to a conveyance of the real estate described in his petition, he shall make a decree authorizing and directing the executor or administrator to execute a conveyance thereof to the petitioner. Appeal from [Forms No. 132, 135, 136 and 138, Appendix.] § 209. Any person interested, may appeal from such decree, to the district court for the same county, as in other decree. Copy to cases; but if no appeal be taken from such decree within evi- the time limited therefor by law, or if such decree be affirm be recorded its effects as dence. When petition ed on appeal, it shall be the duty of the executor or administrator to execute the conveyance according to the directions contained in the decree, and a certified copy thereof shall be recorded with the deed, in the office of the recorder, in the county where the lands lie, and shall be evidence of the correctness of the proceedings, and of the authority of the executor or administrator to make such conveyance. (a.) § 210. If, upon a hearing in the probate court, as herein before provided, the probate judge shall doubt the right of the petitioner to have a specific performance of the contract, er may proceed he shall dismiss the petition, without prejudice to the rights of the petitioner, who may at any time within six months thereafter, proceed in the district court to enforce a specific performance. in district court. Effect of conveyance. § 211. Every conveyance made in pursuance of a decree (a.) See aute, p. 19-21. |