AN ACT to Amend Chapter 100 of the Revision of 1860, in relation APRIL 15. to the Estates of Decedents.

SECTION 1. Be it enacted by the General Assembly of

the State of Iowa, That sections 2308, 2323, 2325, 2326, Rev.: ch, 100. 2329, 2334, 2335, 2339, 2348, 2349, 2351, 2352, 2360, 2376, 2386, 2387, 2389, 2391, 2393, 2395, and 2399 of the Revision of 1860, be, and the same are hereby, repealed, and there is enacted in lieu thereof, and as such sections, the following:

filled.

where

SEO, 2. (Sec. 2308.) That all bonds relating to pro- Bonds in probate bate matters shall be filed in the office of the clerk of the matters, circuit court, and shall not be deemed sufficient until ex- Clerk's approval. amined by the clerk, and his approval indorsed thereon.

SEC. 3. (Sec. 2323.) Any person, having the custody Reading of will; of a will, shall, at the first stated term of the court after being informed of the death of the testator, bring the same into open court, when it shall be publicly read; or such will may be filed with and opened by the clerk in in vacation. vacation.

SEC. 4. (Sec. 2325.) After being thus produced and Probat. read, a day shall be fixed by the court, or clerk, for proving the same, which day shall be during a term of court, and which hearing may be postponed, from time to time, in the discretion of the court.

SEC. 5. (Sec. 2326.) Notice of such hearing shall be Notice; given, which shall be signed by the clerk of the court and addressed to all whom it may concern, and be published in

a weekly or daily newspaper, printed in the county where to be printe3. the will is filed, for three consecutive weeks, the last of which publications shall be at least ten days before the

time fixed for such hearing, If, however, the court direct Other notice. other or different kind of notice, it shall be such as by it prescribed.

sive, unless, etc.

SEC. 6. (Sec. 2329.) Wills shall not be carried into Probate conclueffect unless thus allowed, and such allowance is conclusive as to the due execution of the will, unless set aside by an original or appellate proceeding.

SEC. 7. (Sec. 2334.) They may in each case consist of one or more, and, if not designated by will, they may be appointed by the court in term, or in vacation by the clerk subject to the approval of the court.

Executors,

to give bond,

Refusal to accept SEC. 8. (Sec. 2335.) If a person appointed executor trust; or neglect refuse to accept the trust, or, if when duly notified of his makes necessiry; appointment, he neglects to appear within thirty days an d give bond as hereinafter prescribed, or when an executor removes from the State, a vacancy will be deemed to have occurred.

of vacancy.

SEC. 9. (Sec. 2339.) In case of vacancy the court Provision in case may appoint a substitute, or it may allow another executor (if there is another) to proceed by himself in administering the estate. When such vacancy leaves the estate without an executor, the clerk may, in vacation, appoint such substitute subject to the approval of the court.

bond.

SEC. 10. (Sec. 2348.) Every executor, except as Executor to give herein otherwise declared, before entering on the discharge of his duty, must give bond in such penalty as the clerk approves, conditioned for the faithful discharge of the duties imposed on him by law, according to the best of his abilities.

Oath,

Commission.

cutors.

SEC. 11. (Sec. 2349.) He must also take and subscribe an oath, the same in substance as the condition of the bond aforesaid, which oath and bond must be filed with the clerk.

SEC. 12. (Sec. 2351.) After the filing of the bond aforesaid, the clerk shall issue a commission under the seal of the court, giving the executor the powers authorized by law.

SEC. 13. (Sec. 2352.) When for any cause there is a Temporary exe- necessary delay in granting such commission, the court in term, or the clerk in vacation, may, in their discretion, appoint one or more executors to collect and preserve the property of the deceased, who shall qualify as above required.

sonal effects.

SEC. 14. (Sec. 2360.) Within thirty days after their Inventory of per- appointment, unless for good cause an extension of that time is specially given by the court, or if in vacation by the clerk, the executors shall make and return to the clerk an inventory of all the personal effects of the deceased, of every description, which have come within their knowledge, embracing all book-accounts which appear by the books or papers of the deceased to be unsettled.

SEC. 15. (Sec. 2376.) Before any order to that effect Notice of sale of can be made, all persons interested in such real estate, shall be served with notice in the same manner as prescribed for the commencement of civil actions.

real estate.

Conveyances.

SEC. 16. (Sec. 2386.) Where real estate is sold, conveyances thereof executed by the executors pass to the pur

chaser all the interest of the decedent therein; but such conveyance shall not be valid until approved by the court. SEC. 17. (Sec. 2387.) Such approval shall be entered Presumption. of record. A certificate thereof must be indorsed upon the deed, with the signature of the clerk and the seal of the court affixed thereto, and the deed so indorsed shall be presumptive evidence of the validity of the sale, and of the regularity of all the proceedings connected therewith.

SEC. 18. (Sec. 2389.) The executors shall, within Executors' notice how published. thirty days after the receipt of their commission, publish notice of their appointment, either by posting, or by publication in a newspaper, in such manner as the court, or if in vacation, the clerk may direct; which direction shall be indorsed on the commission when issued.

SEC. 19. (Sec. 2391.) Claims against the estate must Claims. be clearly stated, sworn to and filed, if the claim be less than one hundred dollars, ten days' notice of the hearing indorsed on a copy of the claim must be served upon one of the executors in the manner required for commencing actions in the district court. The executor may with the Executor approbation of the court, admit claims with the correctness of which he is satisfied, but not until the claimant has sworn to their correctness, and the like rule shall be observed in relation to payments or set-offs to any demands due the estate.

allow.

may

where

SEC. 20. (Sec. 2393.) Where claims are filed, and Remedy not allowed as provided in the preceding section, the not allewed. claimant's remedy thereon shall be by action in the circuit court, if the claim exceeds one hundred dollars. SEC. 21. (Sec. 2395.) executors and guardians, the circuit court shall have may appoint reauthority to appoint one or more referees, who shall have and their duties. all the powers, and perform all the duties, as now provided

In matters of accounts

of Circuit cour

ferees, when:

in relation to referees appointed by the district court under Rev.: ch., 123, chapter 123 of the Revision of 1860.

ments.

SEC. 22. (Sec. 2399.) Unsatisfied judgments rendered Unsatisfied judg prior to the death of the decedent, sworn to as provided in section 2391, shall be entered in the catalogue of claims, but possess no preference over other claims, except the lien allowed by law. And should the executor wish to make defense to said judgment, or establish a set-off Set-off, etc. thereto, or cross demand against the owner thereof, he may do so by action in the circuit court.

repealed.

SEC. 23. Sections 2392 and 2394 of Revision of 1860 Rev.: §2892 & 94 are hereby repealed.

Taking effect.

SEC. 24. This act, being deemed by the General Assembly of immediate importance, shall take effect from and after its publication in the Iowa State Register and Des Moines Statesman, newspapers published in Des Moines, Iowa.

Approved, April 15, 1870.

I hereby certify that the foregoing act was published in The Des Moines Daily Statesman, April 25th, and in the Daily Iowa State Register, April 28, 1870.

ED WRIGHT, Secretary of State.

APRIL 15.

ure where own

ditches through

ty.

CHAPTER 159.

DRAINAGE ACT.

AN ACT to Provide for the Draining of Land.

SECTION 1. Be it enacted by the General Assembly Mode of proces- of the State of lowa, That any person owning or possessers desire to drain ing any swamp, marsh, or wet land, who shall desire to lands by opening drain the same, and when he shall deem it necessary, in adjoining proper order thereto, that a ditch or ditches should be opened through lands belonging to other persons, in case the owners of any such land shall refuse to permit the opening of such ditch, or ditches, through the same, or if the parties cannot agree upon the terms thereof, he may make Application to application, in writing, to the township trustees of the township where such marsh or swamp lands shall be situated, to inquire and determine whether such marsh, swamp, or wet lands are a source of disease to the inhabQuestions rela- itants, and whether the public health would be promoted health and culti by draining the same, and to inquire and determine vation of lands to whether such ditch or drain is necessary for the proper cultivation of the same, and whether the permanent assessed value of said lands will be increased by such drain. Said application shall be filed with the township clerk.

tp. trustees.

tive

to public

be inquired into.

shall state.

SEC. 2. Such application shall state through whose What application premises, if known, it is necessary for said ditch or ditches to pass, and shall also describe said lands. Ten days' notice shall be served upon the owners of said lands, in like manner as notices are required to be served in com

to

to be posted.

be

notice of meeting

of trust es.

mencement of actions before justices of the peace, and Notice said notice shall state at what time said application will served. be filed, and in case the owner of any [of] said land shall be unknown to the applicant, or a non-resident of the State On non-residents or county, then three written notices shall be posted for ten days, in three public places in the neighborhood of the said land, and in the township in which it is situated. SEC. 3. Upon the filing of said application, the trustees Trustees to give shall agree upon a time when they will hear and determine upon said application, and also shall agree upon the place of their meeting. They shall give five days' notice of such time and place of meeting to all persons interested, by posting up three written notices thereof, in three public places in said township. And, upon the day set for hear. Hearing: powers ing said application, said trustees shall, (or if any of the said township trustees should not be present, the trustee or trustees present shall) have power to hear and determine the matters contained in said application, or such trustee or trustees may adjourn the hearing thereof not more than ten days. And, upon the final hearing, said Determination, trustee or trustees, shall determine whether it is necessary to pass through any of said land; and, if they find it necessary, they shall also determine the direcion in which said drain shall run, and the depth and width thereof, as near as may be and said trustees may employ the county surveyor to assist them if Co. surveyor. necessary, the fees of the surveyor being paid in the same manner as the other costs of this proceeding. SEC. 4. The person or persons making the applica- ment of damages tion for the drain, may, under the order of the trustees, enter upon the premises through which said drain is located and construct the same in accordance with said specifications, upon the payment of the damages as hereinafter provided.

Construction of drain, on pay.

Assessments of damages.

SEC. 5. If the trustees shall be of the opinion that the drain will be of damage to the land through which it is to pass, then they shall assess the amount of damage to be paid to the owner thereof, and after payment of the amount so assessed, the person or persons making the application may enter upon said land and construct the Applicant may same, and, if no damages be assessed, then the applicant where, shall have full power to enter upon the land through which said drain passes, with the necessary implements to accomplish said work.

SEC. 6. The trustees, after having decided in favor of, or against said application, shall reduce their decision to writing, and file the same with the township clerk.

construct drain;

Decision
filed.

to be