Instead of dividing the homestead, who may take a deed thereof at value. the person entitled to the homestead by descent has the right to pay to the estate the excess of value at which the same is appraised over five thousand dolappraised lars, and the Court must make an order directing the executor or administrator to execute a deed therefor, conveying to him all the interest of the estate therein. If the claimant declines to make such payment, and prefers receiving the value of the homestead rather than a partition between him and the estate, any of the heirs or devisees may pay the appraised value and take a deed from the estate and the homestead claimant. Five thousand dollars of the purchase money must be paid by order of the Court, to the person entitled to the homestead. If no homestead and recorded prior to death of decedent. one may be for. 1481. If no homestead is selected, designated, and is selected recorded prior to the death of the decedent, any of the persons named in Section 1474, entitled to succeed to a homestead, may petition the Probate Court to petitioned admeasure, appraise, and set apart to them a homestead, from the real estate belonging to the decedent. The petition must set forth the name of the petitioner, his relation to decedent, the land from which it is desired to make the selection, the portion thereof selected, and its estimated value, and whether the same is community or separate property of the decedent, or owned by decedent as joint tenant or tenant in common. Court to direct partition suit in the District Court, whon. 1482. If the land from which the selection of the homestead is to be made, is owned by the decedent as joint tenant or tenant in common, the Probate Court must so order, and the executor or administrator must proceed to have partition thereof made by action in the District Court, as provided in this Code; and when partition is so made and certified to the Probate Court, the Probate Court must, if the portion set apart to the estate does not exceed five thousand dollars in value, ings set the same apart to the claimant, if entitled thereto, Proceedand cause the same to be recorded; or, if a sale is had thereon. of the land by decree of the District or Probate Court, the proceeds of the sale belonging to the estate, not exceeding five thousand dollars, must be paid to such claimant. 1483. If the land and appurtenances from which the selection of a homestead is sought, is community or separate property of the decedent, on filing the petition the Court must appoint appraisers, and cause the same to be admeasured, appraised, reported, and confirmed or rejected, as provided in the preceding sections of this Article. 1484. If it is made to appear to the Probate Court that any appraisement of property, constituting the homestead, or from which it is claimed, is either too high or too low, or is unfairly or fraudulently made, the appraisement, by order of the Court, must be annulled and another had, as provided in this Article in case of rejection of a report. Instead of allowing the homestead claimant, or other heirs or devisees, to take the property in this section before mentioned, at its appraised value, as provided in Section 1480, the Court may, in its discretion, or on petition, direct a sale thereof to be had at public auction, after notice of sale given as provided for sales of real estate of a decedent in the course of administration, for the payment of debts or legacies. If more than five thousand dollars is not bid, no sale shall take place, but on report of the facts the property must be set apart as a homestead. to whom 1485. The costs of all proceedings in the Probate Costs, Court, provided for in this Chapter, must be paid by chargeable. the estate, as expenses of administration. Persons succeeding by purchase or otherwise to the interests, Persons succeeding rights, and title of successors to homesteads, or to the to rights of right to have homesteads set apart to them, as in this homestead owners have all their powers and rights. Certified copies of certain orders to be recorded. Chapter provided, have all the rights and benefits conferred by law on the persons whose interests and rights they acquire. 1486. A certified copy of every final order made in pursuance of this Article, by which a report is confirmed, property assigned, or sale confirmed, must be recorded in the office of the Recorder of the county where the homestead property is situated. CHAPTER VI. OF CLAIMS AGAINST THE ESTATE. SECTION 1490. Notice to creditors. Additional notice. 1491. Time expressed in the notice. 1492. Copy and proof of notice to be filed and order made. 1493. Time within which claims against an estate must be presented. 1494. Claims to be sworn to, and when allowed, to bear same interest as judgments. 1495. Probate Judge may present claim, and action thereon. 1498. Rejected claims to be sued for within three months. who Probate Judge may examine. 1500. Claims must be presented before suit. 1501. Time of limitation. 1502. Claims in action pending at time of decease. 1503. Allowance of claim in part. 1504. Effect of judgment against executor. 1505. Execution not to issue after death. If one is levied the property may be sold. 1506. What judgment is not a lien on real property of estate. 1507. May refer doubtful claims. Effect of referee's allow ance or rejection. 1508. Trial by referee, how confirmed and its effect. 1509. Liability of executor, etc., for costs. 1510. Claims of executor, etc., against estate. SECTION 1511. Executor neglecting to give notice to creditors, to be removed. 1512. Executor to return statement of claims. creditors. 1490. (§ 128.) Every executor or administrator Notice to must, immediately after his appointment, cause to be published in some newspaper of 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 decedent, requiring all persons having claims against him to exhibit them, with the necessary vouchers, to the executor or administrator, at the place of his residence or business, to be specified in the notice. Such notice must be published as often as the Judge or Court shall direct, but not less than once a week for four weeks. The Court or Judge Additional may also direct additional notice by publication or posting. In case such executor or administrator resigns, or is removed, before the time expressed in the notice, his successor must give notice only for the unexpired time allowed for such presentation. notice. expressed notice. 1491. (§ 128.) The time expressed in the notice Time must be ten months after its first publication, when the in the estate exceeds in value the sum of ten thousand dollars, and four months when it does not. 1492. (§ 129.) After the notice is given, as required by the preceding section, a copy thereof, with the affidavit of due publication, or of publication and posting, must be filed, and upon such affidavit or other testimony to the satisfaction of the Court, an order or decree showing that due notice to creditors has been given, and directing that such order or decree be entered in the minutes and recorded, must be made by the Court. Copy and notice to be order made proof of filed and Time within claims 1493. (§ 130.) If a claim is not presented within which the time limited in the notice, it is barred forever, against except as follows: If it is not then due, or if it is must be an estate presented. Same. Claims to be sworn to, and when allowed, to bear same interest as judgments. contingent, it may be presented within one month after it becomes due or absolute; when it is made to appear by the affidavit of the claimant, to the satisfaction of the executor or administrator and the Probate Judge, that the claimant had no notice, as provided in this Chapter, by reason of being out of the State, it may be presented any time before a decree of distribution is entered; a claim for a deficiency remaining unpaid after a sale of property of the estate mortgaged or pledged must be presented within one month after such deficiency is ascertained. 1494. (§ 131.) Every claim presented to the administrator must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the claimant or affiant. When the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reasons why it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the claim. If the estate is insolvent, no greater rate of interest shall be allowed upon any claim, after the first publication of notice to creditors, than is allowed on judgments obtained in the District Court. NOTE.-Stats. 1871-2, p. 696. An Act supplementary to an Act entitled an Act to regulate the settlement of the estates of deceased persons, passed May first, eighteen hundred and fifty-one. [Approved March 30, 1872.] [Enacting clause.] SECTION 1. When it shall appear, upon the settlement of the accounts of any executor or administrator, that debts against the deceased have been paid without the affidavit and allowance prescribed by Sec. 131 of |