2454. Collecting and compounding claims. The statute relating to the collection and compounding of debts by executors and administrators does not apply to claims that accrue because the death of a person is caused by the wrongful act of another, and an administrator may compromise and settle such a claim without order of court. Pittsburgh Ry. Co. v. Gipe, 160 Ind. 360. Claims against estates need not be filed within a year after the notice of appointment of an executor or administrator, but they may be filed at any time within thirty days before final settlement of the estate. Davis v. Kenall, 161 Ind. 412. It is not necessary in filing a claim against an estate to name the administrator as a party. Bowman v. Citizens' Bank, 25 App. 38. 2473. Entry of claims on docket. The filing of a claim against an estate and the entry thereof on the docket by the clerk is the commencement of a suit, and it is not necessary to name the administrator in the claim and he must take notice of its filing. Bowman v. Citizens' Bank, 25 App. 38. [Acts 1903, p. 430. In force April 23, 1903.]. 2474. Claims, allowance, transfer, trial.-95. Executors and administrators of estate shall, on the first Monday of January, March, May, July, September and November of each year, examine all claims upon the claim and allowance docket in the proper court and filed against the estate represented by them. All such claims which have thus been so filed for more than thirty (30) days shall either be allowed or disallowed by such executor or administrator at the next succeeding bimonthly examination, which action shall be expressed in writing on the margin of such claim and allowance docket opposite such claim. If any claim is so disallowed in toto, it shall at once be transferred to the issue docket and stand for issue and trial as other causes where return day has passed. Should such executor or administrator fail, or refuse to either allow or disallow any such claim, after the same has been filed for more than sixty days, as herein provided, then the clerk of such circuit court shall at once transfer such claim to and enter the same upon the issue docket, where the same shall stand for trial as other causes; and in case the court, upon final hearing of such action, allows in full the claim which such executor or administrator has neglected or refused to either allow or disallow, then the costs of such action shall be taxed against such executor or administrator as an individual. Or if the executor or administrator, after investigating the merits of such claim shall be of the opinion that the estate is liable for a part thereof only, he shall state in writing on the margin of such claim and allowance docket, opposite such claim, his offer to allow a certain amount of such claim, and if the claimant desires to accept the offer so made, in full settlement of his claim, he shall note his acceptance thereof on said docket. If any such claim is not so allowed in full, or if any such offer to allow in part is not so accepted before the first Monday of the month next following the action thereon by said executor or administrator, then such claim shall be transferred to and entered upon the issue docket of the court and shall stand for trial, as other civil actions pending therein; and if, upon the trial of any such claim on which an offer to allow a part has been so made, the claimant fails to recover more than the amount offered, such claimant shall be liable for all costs occasioned after the making of such offer: Provided, That the court may, in its discretion, require further proof as to any claim, notwithstanding the executor or administrator may have allowed the elaim in the manner provided in this act. This section amends section 2474, Burns' R. S. 1901. 2479. Transfer for trial, pleadings, new party. If an administrator is made a party to a suit on a note transferred by the decedent to answer as to the interest of the estate in the note, the statute permitting the proof of defenses without special pleadings does not apply. Johnson v. Johnson, 156 Ind. 592. If a claim filed against an estate is based on a contract executed by the decedent, the claimant must prove the execution of such contract without a denial thereof under oath by the administrator. Bowen v. O'Hair, 29 App. 466. The defense of the statute of limitations may be proven without being specially pleaded. McBride v. Ulmer, 30 App. 154. When a claim filed against an estate is based on a contract executed jointly by the decedent and others, and such claim is transferred to the issue docket for trial, the other joint obligors may be made parties to the action and the rights of all parties investigated and judgment rendered accordingly. Bowman v. Citizens Bank, 25 App. 38. 2484. Liens, proceedings suspended. The statute prohibiting the enforcement of a lien against the real estate of a decedent before the end of a year after the death of the decedent, does not apply when an execution was issued on a judgment in the lifetime of a decedent. Blumenthal v. Tibbits, 160 Ind. 70. Judgments cease to be a lien on the lands of a deceased debtor in eleven years from the date of their rendition when the creditor is not prevented from enforcing his judgment by injunction, appeal, or agreement of the parties. Taylor v. McGrew, 29 App. 324. 2491. Requisites of petition-Parties. When a petition is filed to obtain an order to sell real estate of a testator to pay debts, it must be alleged that there is no personal estate or undevised real estate that is subject to the payment of debts before an order is made for the sale of devised lands. Hunt v. Hinshaw, 33 App. 75. 2501. Lands, sale, hearing, orders. If persons are made parties to proceedings to sell the lands of a decedent as heirs of such decedent, they will be bound by the judgment, although they may afterwards claim title to the land as the heirs of another person. Armstrong v. Hufty, 156 Ind. 606. The only manner in which the granting of an order to sell land to pay debts owing by a decedent can be prevented is by the execution of a bond as provided by statute for the payment of such debts. Davis v. Kendall, 161 Ind. 412. 2503. Widow, interest, partition, sale. The court has power under the statute to order the sale of the entire interest of the lands of a decedent and to direct the payment to the widow of her interest out of the proceeds of sale. Cullen v. State, 28 App. 335. 2512. Report of sale, confirmation, deed. The statute requiring reports of sales of land of decedents to be made at the next term of court after the order of sale, does not prevent a report of sale being made at the same term that the order is entered. Custer v. Holler, 160 Ind. 505. 2524. Mortgage and lease. The court has power to order an administrator to execute notes and a mortgage on lands of the decedent to obtain money to pay the debts of the estate, and such notes and mortgage may waive the benefit of appraisement laws, and heirs who are parties to the proceedings are bound thereby. Smith v. Eels, 27 App. 321. 2527. Bond to prevent sale. The only manner in which the granting of an order for the sale of real estate to pay debts owing by a decedent can be prevented is by the execution of a bond as provided by statute. Davis v. Kendall, 161 Ind. 412. [Acts 1905, p. 40. In force April 15, 1905.] 2527a. Petition to prevent sale.-1. That any one interested in any real estate in this state, liable for the debts of any decedent and desirous of protecting the same from sale to make assets for the payment of such debts, may file a petition in any circuit court of this state, authorized to issue letters of administration on the estate of such decedent, or with the clerk thereof in vacation, setting forth such facts, giving the name of such decedent and the date of his or her death, if known, and if unknown and by diligent inquiry can not be ascertained, alleging such fact, and shall also indorse thereon the time for hearing such petition, which shall not be less than thirty days from such filing. 2527b. Notice of petition.-2. Upon the filing of such petition it shall be the duty of the clerk of such court to give notice of the filing of such petition, its nature and object, and the date set for hearing as indorsed on said petition, by three successive weekly publications in some newspaper published in the county in which said petition has been filed. 2527c. Hearing, decree.-3. Upon the day fixed for such hearing the court, if it shall appear by proof that due notice has been given, as provided in the preceding section, and no letters of administration have been issued on such estate, shall proceed to hear such petition, and if the court be satisfied that the material averments thereof are true, it shall so find, and enter a decree that if no letters of administration be issued on the estate of such decedent for a period of twelve months from that date, all claims against such estate shall be barred, except as now provided in case of liabilities of heirs, devises [devisees] and legatees, but if it shall appear that letters of administration have been issued on the estate of such decedent, the court shall dismiss the petition and proceed with the administration of such estate under existing laws. 2527d. Claims, when barred.-4. If the decree provided in the preceding section shall be made and no letters of administration be issued on the estate of such decedent for a period of twelve months thereafter, all claims against the same shall be barred except as now provided in case of liabilities of heirs, devises [devisees] and legatees, and no letters of administration shall thereafter be issued on the estate of such decedent. 2527e. Costs.-5. All costs of such proceedings and publication shall be paid by such petitioner or petitioners. ARTICLE 11.-PAYMENT OF DEBTS AND LEGACIES. SEC. 2534. Debts, order of payment. 2534. Debts, order of payment. The reasonable cost of a tombstone or monument erected at the grave of a decedent may be paid as a part of the funeral expenses of the decedent. Pease v. Christman, 158 Ind. 642. If by mistake of fact a creditor of an estate is paid more than he is entitled to receive, an action will lie to recover the amount of the overpayment. Tarplee v. Capp, 25 App. 56. In an action by a legatee to recover a legacy it is not necessary to allege that there are assets out of which the legacy should be paid, as want of assets is a matter of defense. ley, 163 Ind. 311. Coulter v. Bradley, 30 App. 421, disapproved. Coulter v. Brad In an action by a legatee to recover a legacy it should be alleged that the conditions upon which the legacy was to be paid have been performed. Rogers v. State, 26 App. 144. ARTICLE 12.-ACCOUNTING AND SETTLEMENT. SEC. 2558. Setting aside settlement.. 2558. Setting aside settlement. If an administrator has notice of a claim against an estate and by his representations as to payment of the claim he prevents the claim being filed and he makes final settlement of the estate and falsely reports to the court the payment of all claims the settlement will be set aside. Kingan Co. v. Hawley, 29 App. 376. ARTICLE 13.-DISTRIBUTION. SEC. 2562. Proof of title. 2562. Proof of title. In applications by legatees for the payment of legacies it need not be alleged that there are assets out of which the legacies can be paid, as want of assets is matter of defense. The case of Coulter v. Bradley, 30 App. 421, disapproved. Coulter v. Bradley, 163 Ind. 311. In an action by a legatee to recover a legacy it should be alleged that there are assets out of which the legacy should be paid and that the conditions upon which the legacy is payable have been performed. Rogers v. State, 26 App. 144. SEC. ARTICLE 14.-ESTATES UNDER FIVE HUNDRED DOLLARS. SEC. 2576. Duty of clerk, notice, hearing. 2577. Creditors contesting, reappraisement. [Acts 1903, p. 145. In force April 23, 1903.] 2576. Duty of clerk, notice, hearing.-194. Upon the return of such inventory, if the value of such estate does not exceed five hundred dollars, the clerk shall not issue letters, but shall continue further proceedings in the premises until the next term of the court thereafter; when the court, if no opposition be made thereto, as provided in the next section, shall enter a decree vesting in the widow all the title and interest of the decedent in such estate at his death, and directing that no letters issue thereon: Provided, That should the next succeeding term of the circuit court not commence within fifty-one days from the date of the filing of such inventory, such widow may cause a brief no |