suitable person to appear and manage the defence on the part of those interested, who shall have all the powers and perform the same duties required of executors or administrators, in such case, by this article. Real estate to be SEC. 150. If, upon the settlement of the accounts of any ex- sold. ecutor or administrator, it appear that the personal estate is not sufficient to satisfy all demands established against such estate, the probate court may make such order as it may think necessary for the sale of the real estate for that purpose, and the sale shall be conducted, and the same proceedings had in relation thereto, as is provided in this chapter in relation to the sale of real estate, for the payment of debts upon the petition of the executor or administrator, creditor or other person interested. estates classed. Of the allowance of Demands against Estates. SEC. 151. All demands against the estate of any deceased Demands against person shall be divided into the following classes: First, Funeral expenses. Second, Expenses of the last sickness, wages of servants, and demands for medicines and medical attendance during the last sickness of the deceased. Third, Debts due the Territory. Fourth, Judgments rendered against the deceased in his lifetime; but if any such judgments shall be liens upon the real estate of the deceased, and the estate shall be insolvent, such judgments, as are liens upon the real estate, shall be paid as provided in this chapter, without reference to classification, except the classes of demands mentioned in the first and second subdivisions of this section, shall have precedence of such judgments. Fifth, All demands, without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate. Sixth, All demands thus exhibited, after the end of one year and within two years after letters granted. Seventh, All demands thus exhibited, after the expiration of two years and within three years after granting of such letters. SEC. 152. All demands, not thus exhibited within three years, shall be forever barred, saving to infants, persons of unsound mind, imprisoned or absent from the United States, three years after the removal of their disabilities. SEC. 153. All actions pending against any person at the time of his death, which, by law, survive against the executor or administrator, shall be considered demands legally exhibited against such estate, from the time such action shall be revived, and classed accordingly. After three years, demands barred, &c. Suits against dewhen and how ceased persons, classed. Demands shall be considered as ex cess served. SEC. 154. All actions commenced against such executor or hibited when pro- administrator, after the death of the deceased, shall be considered demands legally exhibited against such estate, from the time of serving the original process on such executor or administrator. Proceedings to establish demands and from what time legally exhibited! Executor &c. to keep a list of demands. Demands may be exhibited in court, copy of SEC. 155. Any person may exhibit his demand against such estate, by serving upon the executor or administrator a notice, in writing, stating the nature and amount of his claim, with a copy of the instrument of writing or account upon which the claim is founded, and such claim shall be considered legally exhibited from the time of serving such notice. SEC. 156. Every executor and administrator shall keep a list of all demands thus exhibited, classing them, and make return thereof to the probate court every year, at the term at which he is to make settlement. SEC. 157. Any person having a demand against an estate, judgment exhibit may establish the same by the judgment or decree of some court of record, in the ordinary course of proceeding, and exhibit a copy of such judgment or decree to the probate court. ed, &c. Jurisdiction in allowing demands Court not to allow Not to allow demands without oath or affidavit of claimant. vit. SEO. 158. The probate court shall have jurisdiction to hear and determine all demands against any estate, and a concise entry of the order of allowance shall be made on the record of the court, which shall have the force and effect of a judgment. SEC. 159. No probate court shall allow any demand against. any estate, when the estate is indebted to any claimant, after allowing all just credits and offsets, unless the claimant first make oath in open court, or file an affidavit with such claim, stating to the best of his knowledge and belief, he has given credits to the estate for all payments and offsets to which it is entitled, and that the balance claimed is justly due. SEC. 160. No probate court shall allow any demand against any estate, when the claimant is indebted to said estate, after allowing all just credits and offsets, unless the claimant first make oath in open court, or file an affidavit with such claim, stating, Nature of affida- to the best of his knowledge and belief, he has given credits to the estate for all payments and offsets to which it is entitled, and that his account or demand, as presented, is correctly stated; and the affidavit in this section and the preceeding one shall not be Demand to be es- received as any evidence of the demand, but the same shall be established by competent legal testimony, before it is allowed or adjusted. tablished. May be made by agent in certain SEC. 161. The affidavit or oath required by the two preceding sections may be made by an agent of the claimant, when such agent has had the management and transaction of the business SEC. 162. Any person desiring to establish a demand against and by whom SEC. 163. Such notice shall be served on the executor or ad- Notice, when,how ministrator ten days before the beginning of such term of the served. court, and may be served by the party, his agent or attorney, or by any competent witness, who shall make affidavit to such ser vice. SEC. 164. The executor or administrator may appear in court May be waived, and waive the service of any such notice. To determine de mary way. SEO. 165. The probate court shall hear and determine all de- mands in a summands in a summary way, without the form of pleading, and shall take the evidence of competent witnesses, or other legal evidence. and when taken. SEC. 166. Any person may take depositions in support of Depositions, how his demand, at his own expense, if he first procure the written consent of the executor or administrator, and such depositions may be taken in the ordinary manner, at such time and place as may be agreed upon, and read in evidence in support of such demand. SEC. 167. If the demands do not exceed twenty dollars, or if neither party require a jury, the court may decide on the validity of such demand. If the claim does dollars. not exceed twenty If the demand SEC. 168. If the demand exceed twenty dollars and either par- exceed twenty ty require a jury, one shall be immediately summoned, and the dollars. trial shall be conducted in a summary manner, without the form of pleading; and when the demand is not due at the time of trial, the court or jury may adjust the same by rebating therefrom at the rate of six per cent. per annum from the time of trial until due. claims as creditor SEC. 169. Any executor or administrator may establish a de- When executor mand against his testator or intestate, by proceeding against his co-executor or co-administrator in the manner prescribed for other persons; but if there be no co-executor or co-administrator, he shall file his claim and other papers, and the court shall appoint some suitable person to appear and manage the defence on the part of the estate. Who shall pay cost. Clerk to keep an abstract. Demands to be glassed. Amount and class to be endorsed. In what order debts to be paid. Commencement of suits, &c. Shall appoint an agent to act during temporary absence. SEC. 170. When a demand shall be presented to the probate court for allowance, if the demand be allowed, the estate shall pay the costs; if disallowed, the party presenting the claim shall pay the costs. SEC. 171. The clerk of the probate court shall keep an abstract of all judgments of other courts filed, and of all demands. established in the probate court against such estate, which shall show their amount, date, class, and to whom payable. SEC. 172. If any judgment of a court of record be filed in the probate court, and when demands are allowed against any estate in the propate court, such court shall determine its class, and the clerk shall make an entry thereof in his abstract, and when thus classed, the executor or administrator may satisfy such demand according to such classification. SEO. 173. When any such demand has been allowed, the clerk shall endorse, on the back thereof, the amount allowed thereon, and the class to which it belongs, and deliver the same to the demandant. SEC. 174. All demands against any estate shall be paid by the executor or administrator, as far as he has assets, in the order in which they are classed, and no demand of one class shall be paid until all previous classes be satisfied; and if there be not sufficient to pay the whole of any one class, such demands shall be paid in proportion to their amounts. SEC. 175. If any person commence a suit of any kind, in any court, against an estate, within one year from the date of administration, he may recover judgment, but shall pay all costs. SEC. 176. If any executor or administrator shall temporarily absent himself from this Territory, he shall appoint an agent, in writing, for whose acts such executor or administrator and his sureties shall be responsible, (and file such appointment in the office of the court having jurisdiction of his testator or intestate's In case of failure. estate,) to whom notice of demands against his testator or in Effect of notice to agent. In case of imroper allowance. testate's estate, as provided in this chapter, may be given; and upon failure to appoint such agent, such notice may be filed in the office of the court having jurisdiction of the estate. SEC. 177. Notice given to such agent, or filed, as aforesaid, among the papers relating to the estate against which the demand is claimed, shall be as effectual as if it had been given to the executor or administrator. SEC. 178. If the executor or administrator shall within four month after any demand shall have been allowed, upon notice given as prescribed in the two preceding sections, file in the office of the court having jurisdiction of the estate, the affidavit of himself or some other credible person, stating that the affiant has good reason to believe, aud does believe, that such demand has been improperly allowed, the court shall vacate such order of allowance, and try the matter anew, and allow or reject such demand, as shall be right; and if, upon such new hearing, such demand shall be allowed, it shall be classed and paid as if such new hearing had not been granted. Of the settlement of their Accounts. tlements to be re SEC. 179. The clerk of each probate court shall provide well Accounts and setbound books, and enter therein the accounts and settlements of corded by clerk. all executors and administrators made in the court, in such manner as to form a complete record of all such accounts settled in that court. SEC. 180. Every executor and administrator shall exhibit a statement of the accounts of his administration for settlement, with proper vouchers, to the probate court, at its first term after the end of one year from the date of his letters, and at the corresponding term of such court every year thereafter, until the administration be completed. Annual settle ment to be made. docket. SEC. 181. The clerk of the probate court shall keep a docket, Clerk to keep s and enter therein a list of all executors and administrators who have not made final settlement of their accounts, the date of their letters, and the term at which they are required to make settle ment. by clerk. SEC. 182. The clerk shall put up in some conspicuous place in List to be put up his office, thirty days before each term, a list of the executors and administrators, whose settlements are required to be made at that term. settlement, citation to issue. SEC. 183. If any executor or administrator fail to present such Failure to make settlement, the clerk shall immediately issue a citation, to any county in the Territory, requiring him to present his accounts for settlement at the next term of the probate court, and show cause why an attachment should not issue against him for not exhibiting his accounts at the term at which he was required to settle. SEC. 184. If such citation be not served, the clerk shall, under Citation not the direction of the court, issue an alias citation, which may be sue served, or may be published in some newspaper in this Territory, one month before the return thereof. served, alias to is |