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Sec. 137. The time during which there shall be a vacancy in the administration shall not be included in any limitations herein prescribed.
Art. 2288, Sec. 138. If an action be pending against the testator or intestate, at the time of his death, the plaintiff shall in like manner present his claim to the executor or administrator for allowance or rejection, authenticated as required in other cases, and no recovery shall be had in the action, unless proof be made of the presentments.
Sec. 139. Whenever any claim shall be presented to any executor or administrator, or to the probate judge, and'he 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 he may bring against the executor or administrator, unless he shall recover a greater amount than that offered to be allowed.
Sec. 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.
ART. 2289, Sec. 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 making the sale shall account to the executor or administrator for any surplus in his hands.
ART. 2290, Sec. 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 either in vacation or in term, etter a rule referring the matter in controversy to the person so selected.
Sec. 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 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.
Art. 2291, Sec. 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.(1) Sec. 145. If the executor or administrator is himself a creditor of the testator
(1) Hicox v. Graham, April T. 1856.
or intestate, his claim, duly authenticated by affidavits, shall be presented for allowance or rejection to the probate judge, and its allowance by the judge shall be sufficient evidence of its correctness.
Sec. 146. If any executor or administrator shall neglect for two months after his appointment to give notice to creditors, as prescribed by this chapter, it shall be the duty of the court to revoke his letters.
Art. 2292, Sec. 147. At the same term at which he is required to return his inventory, the executor or administrator shall also return a statement of all claims against the estate, which shall have been presented to him when required by the court, and from term to term thereafter shall present a statement of claims subsequently presented to him. In all such statements he shall designate the names of the creditors, the nature of each claim, when it became due or will become due, and whether it was allowed or neglected by him.
VII.—SALES OF PROPERTY BY EXECUTORS OR ADMINISTRATORS. Art. 2293, Sec. 148. No sale of any property of an estate shall be valid unless made under order of the probate court.
Sec. 149. All applications for orders of sale shall be by petition in writing, in which shall be set forth the facts showing the sale to be necessary, and upon the hearing, any person interested in the estate may file his written objections, which shall be heard and determined.
Sec. 150. At the term of the court to which the inventory is returned, the executor or administrator shall apply for an order to sell the perishable property of the estate, and so much other property as may be necessary to be sold to pay the allowance made to the family of the deceased. If claims against the estate have been allowed, and a sale of property shall be necessary for their payment, or of the expenses of the administration, he shall also apply for an order to sell so much of the personal property as shall be necessary. He shall make a similar application, either in vacation or term, giving five days' previous notice in a newspaper, or by the usual public posting from time to time, so long as any personal property remains in his hands, and a sale is necessary to pay any demands against the estate.
Art. 2294, Sec. 151. If it appear that a sale is necessary, the court shall order it to be made. In making such sales, the court shall order such articles as are not necessary for the support and subsistence of the family of the deceased, or are not specially bequeathed, to be first sold. Anticles so bequeathed shall not be sold until the residue of the personal estate has been applied to the payment of the debts.
Sec. 152. The sale of personal property shall be made at public auction, and after public notice given for at least ten days, unless for good reason shown the probate judge shall order a private sale; but no private sale shall be effectual for any purpose till the same shall be approved by the probate judge. · Public sales of such property shall be made at the court-house door, at the residence of the deceased, or at some other public place to be mentioned in the notice; and no sale shall be made of any property which is not present at the time of selling. [Am. May 7, 1855 ; R. S. St. 1851, 467; St. 1850, 389 ; C. L. 398.
Sec. 153. The notice shall be given by notices posted in the public places in the county, or by publication in a newspaper, if the judge shall so order, in which shall be specified the time and place of the sale.
Art. 2295, Sec. 154. When the personal estate in the hands of the executor or administrator shall be insufficient to pay the allowance to the family, and all the debts and charges of the administration, the executor or administrator may sell the real estate for that purpose upon the order of the county judge.
Sec. 155. To obtain such order, he shall present a petition to the probate court, setting forth the amount of personal estate that has come to his hands, and how
much thereof, if any, remains undisposed of, the debts outstanding against the deceased, as far as the same can be ascertained, a description of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions and lots, the names and ages of the devisees, if any, and of the
eirs of the deceased, which petition shall be verified by the oath of the party presenting the same.
Sec. 156. If it shall appear by such petition that there is not sufficient personal estate in the hands of the executor or administrator to pay the allowance to the family, the debts outstanding against the deceased, and the expenses of administration, and that it is necessary to sell the whole or some portion of the real estate for the payment of such debts, the probate judge shall thereupon make an order directing all persons interested to appear before him at a time and place specified, not less than four, nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell so much of the real estate of the deceased as shall be necessary to pay
such debts. ART. 2296, Sec. 157. A copy of such order to show cause shall be personally served on all persons interested in the estate at least ten days before the time appointed for hearing the petition, or shall be published at least four successive weeks in such newspaper as the court shall order ; provided, however, if all persons interested in the estate shall signify in writing their assent to such sale, the notice may be dispensed' with.
Sec. 158. The probate judge, at the time and place appointed in such order, or at such other time as the hearing may be adjourned to, upon proof of the due service or publication of a copy of the order, or upon filing the consent in writing to such sale, of all parties interested, shall proceed to the hearing of such petition; and if such consent be not filed, shall hear and examine the allegations and proofs of the petitioners, and of all persons interested in the estate who may oppose the application.
Art. 2297, Sec. 159. If any of the devisees or heirs of the deceased are minors, and have a general guardian in the county, the copy of the order shall be served upon the guardian. If they have no such guardian, the court shall
, before proceeding to act upon the petition, appoint some disinterested person their guardian, for the sole purpose of appearing for them and taking care of their interests in the proceedings.
Sec. 160. The executor or administrator may be examined on oath, and witnesses may be examined by either party, and process to compel their attendance, and testimony may be issued by the probate judge, in the same manner and with like effect as in other causes.
Sec. 161. If it shall appear to the court that it is necessary to sell a part of the real estate, and that by a sale of such part the residue of the estate, or some specific part or piece thereof would be greatly injured, the court may authorize the sale of the whole estate, or of such part thereof as may be judged necessary, and most for the interests of all concerned.
ART. 2298, Sec. 162. If the probate judge shall be satisfied, after a full hearing upon the petition, and an examination of the proofs and allegations of the parties interested, that a sale of the whole or some portion of the real estate is necessary for the payment of the allowance of the family and all valid claims against the deceased, and charges of administration, or if such sale be assented to by all the persons interested, he shall make an order of sale, authorizing the executor or administrator to sell the whole, or so much and such parts of the real estate described in the petition, as he shall judge necessary or beneficial.
Art. 2299; Sec. 163. The order shall specify the lands to be sold and the terms of sale, which may be either for cash or on a credit not exceeding six months, as the court may direct. If it appears that any part of such real estate has been devised, and not charged in such devise with the payment of debts, the court shall order that part descended to heirs to be sold, before that so devised.
Art. 2300, Sec. 164. If the executor or administrator shall neglect to apply for an order of sale whenever it may be necessary, any person interested in the estate may make application therefor, in the same manner as the executor or administrator, and notice thereof shall be given to the executor or administrator before the hearing.
Sec. 165. Upon the making of such order a certified copy of the order of sale shall be delivered by the court to the executor or administrator, who shall be thereupon authorized to sell the real estate as directed.
Art. 2301, Sec. 166. When a sale is ordered, notice of the time and place of holding the same shall be posted up in three of the most public places in the county in which the land is situated, and shall be published in a newspaper, if there be one printed in the same county, and if there be none, then in such paper as the court may direct, for three weeks successively next before such sale, in which notice the lands and tenements to be sold shall be described with common certainty.
Sec. 167. Such sale shall be in the county where the lands are situated, at public auction, between the hours of nine o'clock in the morning, and the setting of the sun the same day.
Sec. 168. The executor or administrator shall, when the sale is made upon a credit, take the note or notes of the purchaser for the purchase money, with a mortgage on the property to secure their payments. Art. 2302, Sec
. 169. The executor or administrator making any sale of any real estate shall, at the next term of the court thereafter, make a return of his proceedings to the probate judge, who shall examine the same, and if he shall be of opinion that the proceedings were unfair, or that the cum bid is disproportionate to the value, and that a sum exceeding such bid at least ten per cent. exclusive of the expenses of a new sale may be obtained, he shall vacate such sale, and direct another to be had, of which notice shall be given, and the sale shall be in all respects conducted as if no previous sale had taken place.
Sec. 170. When the return of the sale is made, any person interested in the estate may
file written objections to the confirmation of the sale, and may be heard and may produce witnesses in support of his objections.
Art. 2303, Sec. 171. If it appear to the court that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or if disproportionate, that a greater sum as above specified cannot be obtained, the court shall make an order confirming the sale, and directing conveyances to be executed; and such sale from that time shall be confirmed and valid, and a certified copy of the order authorizing the sale, and of the order confirming the same and directing conveyances to be executed, shall be recorded in the office of the recorder of the county within which the land sold is situated. -[Am. Feb. 1, 1856 ; R. S. St. 1851, 470; St. 1850, 391; C. L. 401.
Sec. 172. Such conveyances shall thereupon be executed to the purchaser by the executor or administrator. They shall refer to the orders of the probate court authorizing and confirming the sale of the property of the testator or intestate, and directing conveyances thereof to be executed, and to the record of such orders in the office of the county recorder, and such reference shall have the same effect as if the said orders were at large inserted in the conveyance. The conveyances so made shall be deemed to convey all the right, title, interest and estate of the testator or intestate in the premises at the time of his death.—[Id.
The last two sections shall also apply to all cases wherein either an order of sale or an order confirming a sale and directing a conveyance to be executed, or both, may
have been heretofore made, and wherein the conveyance has not been executed at the date of the passage of this act.—[Id.
Sec. 173. Before any order is entered confirming the sale, it shall be proved to the satisfaction of the court that notice was given of the sale as herein prescribed, and the order of confirmation shall state that such proof was made.
ART. 2304, Sec. 174. If at the time appointed for the same, the executor or administrator shall deem it for the interest of all persons concerned therein that the sale shall be postponed, he may adjourn the same from time to time, not exceeding in all three months.
Sec. 175. In case of the adjournments, notice thereof shall be given by a public declaration at the time and place first appointed for the sale; and if the adjournment be for more than one day, further notice shall be given by printing or publishing the same or both, as the time and circumstances may admit.
Art. 2305, Sec. 176. When a testator shall have given any legacy by will that is effectual to pass or charge real estate, and his goods, chattels, rights and credits, shall be insufficient to pay a legacy, together with his debts and the charges of administration, the executor or administrator, with the will annexed, may obtain an order to sell his real estate for that purpose in the same manner and upon the same terms and conditions as are prescribed in this chapter in case of a sale for the payment of debts.
Sec. 177. If the testator shall make provision by his will, or designate the estate to be appropriated for the payment of his debts, the expenses of administration or family expenses, they shall be paid according to the provisions of the will and out of the estate thus appropriated, so far as the same may be sufficient.
Sec. 178. When such provision has been made, or any property directed by the will to be sold, the executor or administrator, with the will annexed, may proceed to sell without the order of the probate court, but he shall be bound as an administrator to give notice of the sale, and to return accounts thereof to the court, and to proceed in making the sale in all respects as if it were made under the order of the court, unless there are special directions given in the will, in which case he shall be governed by such directions.
ART. 2306, Sec. 179. If the provision made by the will, or the estate appropriated be not sufficient to pay the debts and expenses of administration and family expenses, such part of the estate as shall not have been disposed of by the will, if any, shall be appropriated for that purpose according to the provisions of this act.
Sec. 180. The estate, real and personal, given by will to any legatees or devisees, shall be held liable to the payment of debts, expenses of administration and family expenses, in proportion to the value or amount of the several devises or legacies, except specific devises or legacies may be exempted, if it shall appear to the court necessary to carry into effect the intention of the testator, if there shall be other sufficient estate.
Art. 2307, Sec. 181. When the estate given by any will has been sold for the payment of debts and expenses, all the devisees and legatees shall be liable to contribute according to their respective interests, to any devisee or legatee from whom the estate devised to him may have been taken for the payment of debts or expenses; and the probate court when distribution is made, shall, by decree for that purpose, settle the amount for the several liabilities, and decree how much each person shall contribute.
Art. 2308, Sec. 182. If a deceased person at the time of his death was possessed of a contract for the purchase of lands, his interest in such land, and under such contracts, may be sold on the application of his executor or administrator, in the same manner as if he had died seized of such land, and the same proceedings may be had for that purpose as are prescribed in this chapter in respect to
ART. 2309, Sec. 183. Such' sale shall be made subject to all payments that may thereafter become due on such contracts; and if there be any such payments thereafter to become due, such sale shall not be confirmed by the probate judge, until