ment of account.

§ 233. When the account is rendered for settlement, no Notice of settle tice thereof shall be given by the clerk, by causing notices to be posted up, in three public places in the county. The notice shall set forth the name of the estate and of the executor or administrator, and the day appointed for the settlement of the account, which shall be on some day of a term of a court.

Exceptions to the account.

represented.

[Forms No. 151 and 152, Appendix.]

§ 234. On the day appointed, or any subsequent day tɔ which the hearing may be adjourned by the court, any person interested in the estate, may appear and file his exceptions in writing to the account, and contest the same.

[Forms No. 154 and 164, Appendix.]

§ 235. If there be any minor interested in the estate, who Minors to be has no legally appointed guardian, the court shall appoint some disinterested person to represent him, who, on behalf of the minor, may contest the account as any other person having an interest might contest it, and who shall be allowed by the court for his services a reasonable compensation. [Form No. 153 and 159, Appendix.]

Adjournments.

appointed.

§ 236. The hearing and allegations of the respective parties may be adjourned from time to time as shall be neAuditors to be cessary, and the court may appoint one or more auditors to examine the accounts and make report thereon, subject to confirmation, and may allow a reasonable compensation to such auditors, to be paid out of the estate of the deceased. [Forms No. 155, Appendix.]

Allowance of

§ 237. The settlement of the account and the allowance thereof by the court, or upon appeal, shall be conclusive account. Against against all persons in any way interested in the estate, whom conclusive saving, however, to all persons laboring under any legal disability, their rights to proceed against the executor or administrator, either individually or upon his bond, within two years after their respective disabilities shall cease, and in any action brought by any such person, the allowance and settlement of the account shall be deemed presumptive evidence of its correctness.

Notice must be proved, etc.

[Forms No. 156, 160, 165, 166 and 167, Appendix.]

§ 238. The account shall not be allowed by the court until it be first proved that notice has been given as required by

this chapter, and the decree shall show that such proof was made to the satisfaction of the court, and shall be conclusive evidence of the fact.

[Forms No. 152, 156, 160, 165, to 167, Appendix.]

Order of pay

$239. The debts of the estate shall be paid in the followlng order: 1st, Funeral expenses; 2d, The expenses of the ment of debts. last sickness; 3d, Debts having preference by the laws of the United States; 4th, judgments rendered against the deceased in his lifetime, and mortgages in the order of their date; 5th, All other demands against the estate.

[Forms No. 156 and 167, Appendix.]

§ 240. The preference given in the preceding section to a mortgage, shall only extend to the proceeds of the property Mortgage. mortgaged. If the proceeds of such property be insufficient to pay the mortgage, the part remaining unsatisfied shall be classed with other demands against the estate.

[Form No. 167, Appendix.]

If estate insuf

§ 241. If the estate be insufficient to pay all the debts of any one class, each creditor shall be paid a dividend in pro- ficient. portion to his claim; and no creditor of any one class shall receive any payment until all those of the preceding class shall be fully paid.

[Forms No. 156, 161, 163 and 165, Appendix.]

Payments to

utor, etc.

§ 242. It shall be the duty of the executor or administrator, as soon as he has sufficient funds in his hands, to pay the funeral expenses and the expenses of the last sickness, and be made by execthe allowance made to the family of the deceased; and he may retain in his hands the necessary expenses of administration, but he shall not be obliged to pay any other debt, or any legacy until, as prescribed in this act, the payment has been ordered by the court.

[Forms No. 156, 165 and 167, Appendix.

§ 243. Upon the settlement of the accounts of the executor or administrator, at the end of the year, as required in this chapter, the court shall make an order for the payment of the debts as the circumstances of the estate shall require. debts. If there be no sufficient funds in the hands of the executor or administrator, the court shall specify in the decree the sum to be paid to each creditor.

[Forms No. 156, 160, 161, 163 and 166, Appendix.]

Payment of

disputed and con

§ 244. If there is any claim not due, or any contingent or Provision for disputed claim against the estate, the amount thereof, or tingent claims. Such part of the same as the holder would be entitled to if the claim were due, or established, or absolute, shall be paid into the court, where it shall remain to be paid over to the party when he shall become entitled thereto, or if he fail to establish his claim, to be paid over or distributed as the circumstances of the estate require: Provided, that if any creditor whose claim has been allowed, but is not yet due, shall appear and assent to a deduction therefrom of the legal interest for the time the claim has yet to run, he shall be entitled to be paid accordingly.

After decree for payment of debts

ally liable there

for.

§ 245. Whenever a decree shall be made by the probate executor person court for the payment of creditors, the executor or administrator shall be personally liable to each creditor for his claim, or the dividend thereon, and execution may 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 shall also be liable on his bond to each creditor.

Also liable on

bond.

Claims not in

for payment of

debts.

§ 246. When the accounts of the administrator or execucluded in order tor have been settled, and an order made for the payment of debts and distribution of the estate, no creditor whose claim was not included in the order for payment shall have any right to call upon the creditors who have been paid, or upon the heirs, devisees, or legatees to contribute to the payment of his claim; but if the executor or administrator shall have failed to give the notice to the creditors as prescribed by this act, 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: Provided, that 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.

Order for pay

§ 247. If the whole of the debts shall have been paid by ment of legacies. the first distribution, the court shall proceed to direct the payment of legacies and the distribution of the estate among the heirs, legatees, or other persons entitled. But if there

be debts remaining unpaid, the court shall give such extension of the time as may he reasonable for a final settlement of the estate.

[Forms No. 156, 173 and 174, Appendix.]

account.

§ 248. At the time designated, or sooner, if within that time all the property of the estate shall have been sold, or there Executor's final shall be sufficient funds in his hands for the payment of all the debts due by the estate, the executor or administrator shall render a final account and pray a settlement of his administration.

[Form No. 167, Appendix.].

Neglecting to

count.

$ 249. If he neglect to render his account, the same proceedings may be had as prescribed in this chapter, in regard render final ac to the first account to be rendered by him; and all the pro-" visions of this chapter relative to the last mentioned account, and the notice and settlement thereof, shall apply to his account presented for final settlement.

Cases bearing upon the general subject of the preceding division of the
Statute.

If an executor or administrator, receive from the debtor, an allowance over and above the amount of the demand, for extra trouble in adjusting and settling it, he is not bound to account for it; and if he receive extra interest, he cannot be charged with it in his administration account. Gordon v. West, 8 New Hamp. R., 444.

But see Sec. 217, ante.

The time and expenses of an executor in procuring an injunction upon a fraudulent judgment against the estate, may be allowed. Evarts v. Mason, 11 Verm., 122.

The fact that an executor or administrator has charged a gross sum in his account for personal services, furnishes no legal reason for rejecting the charge in toto. Ib.

An administrator who has purchased a judgment against a plaintiff since the rendition of a judgment against him, for a debt owing by intestate, cannot set off such judgment. Hills v. Tallman, 21 Wend., 674.

On an application for leave to issue execution apon a judgment against an executor for costs, in defence of a proceeding instituted by an executor, the latter sought to off-set, a judgment against the applicant, recovered by C. B. and assigned to the executor: Held, that as the judgment for costs, was in terms against the executor in his representative capacity, it must abide the course of distribution of the estate. The judgment purchased by the execu tor, belongs to him individually. To authorize a set-off, the debts must be mutual, and must be due to and from the same persons in the same capacity; and it is against sound policy to permit executors to buy up claims against creditors of the deceased, for the purpose of obtaining a set-off in equity. Dudley v. Griswold, 2 Bradford's R., 24.

Executors may be allowed for their expenses in the management of the estate; but the charges must be reasonable. If necessary, an agent may be

employed at the expense of the estate. R., 291.

Glover v. Holley, 2 Bradford's

An administrator will be allowed for expenses of communicating intelligence of the death of the deceased to his family; for all necessary charges attending his interment, and for his own traveling expenses. Hasler v. Hasler, 1 Bradford's R., 248.

If an agent has been necessarily employed in the collection of the rents of leasehold estate by the executors, his commissions may be allowed; but if the executor has himself performed the service, he can only receive his regular statutory commissions. Fisher v. Fisher, 1 Bradford's R., 335.

Reasonable repairs and improvements, enhancing the value of the property, may be made by an executor, upon leasehold estate, occupied by the legatees or parties in interest, etc. Ames v. Downing, 1 Bradford's R., 321.

On an accounting, the Surrogate has jurisdiction to try every question necessary to the settlement of the accounts. The legatees can adduce evidence to charge the executor with more assets than he acknowledges to have received; and it is competent for him, on the other hand, to show in defence, that the assets were his own property, and not part of the testator's estate, at the time of the death. Merchant v. Merchant, 2. Bradford's R., 432.

Where partnership property has come into the hands of an administrator, he is no further accountable than for the share of the deceased in the partnership assets, after payment of all the liabilities, and a full settlement of all the partnership accounts. Montgomery v. Dunning, 2 Bradford's R., 220.

The administrator of a surviving partner, stands in the same position as the surviving partner in his life time, and although he has the legal title to the partnership effects, yet they are assets of the firm, and not of his intestate, and should neither be inventoried nor accounted for, as property of his intestate. Thomson v. Thomson, 1 Bradford's R., 24.

An executor who is also named as a trustee in a will, though not entitled to commissions in each capacity, shall have his full commissions both for receiving and paying out, on the final settlement of his account as executor. Mann v. Lawrence, 3 Bradford's R., 424.

Interest will be charged against the executor if he mix the funds of the estate with his own, and make use of them. Olgivie v. Olgivie, 1 Bradford's R., 356.

An administrator having the funds of the estate in cash for six years, not showing that the money was kept in bank, or otherwise, ready, to be paid over, and not explaining the delay in closing the estate: Held, that he was chargeable with interest on the presumption of use of the funds. Hasler v. Hasler, 1 Bradford R., 248.

An administrator will be chargeable with interest accruing on claims against the estate, which have been approved, if he have funds, and neglect to take proper steps to have them applied to the discharge of the claims. Finley v. Carothers, 9 Texas R., 517.

Although a claim be an open account, it bears interest from the date of its approval; the allowance and approval, being a judgment. Ib.

A settlement in the probate court is a final settlement, but a complainant who was no party to it, may treat it as a nullity, and proceed to invoke the equitable powers of the district court, and compel the administrators to a full account, disregarding the proceeding or settlement in the probate court. Clarke v. Perry 5 Cal. R., 58.

Administrators and executors are individually responsible for costs recovered against them in every case; but they shall be allowed them, in their ad