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Where property insufficient to pay mortgage.

SEC. 240. The preference given in the preceding section to a mortgage, shall only extend to the proceeds of the property mortgaged. If the proceeds of such property be insufficient to pay the mortgage, the part remaining unsatisfied shall be classed with other demands against the estate.

Estate insufficient, a divi

SEC. 241. If the estate be insufficient to pay all the debts of any

dend to be paid. one class, each creditor shall be paid a dividend in proportion to his

claim; and no creditor of any one class shall receive any payment until all those of the preceding class shall be fully paid.

SEC. 242. It shall be the duty of the executor or administrator, as soon as he has sufficient funds in his hands, to pay the funeral expenses and the expenses of the last sickness, and the allowance made to the family of the deceased; and he may retain in his hands the necessary expenses of administration, but he shall not be obliged to pay any other debt, or any legacy until, as prescribed in this act, the payment has been ordered by the court.

SEC. 243. Upon the settlement of the accounts of the executor or administrator, at the end of the year, as required in this chapter, the court shall make an order for the payment of the debts as the circumstances of the estate shall require. If there be not sufficient funds in the hands of the executor or administrator, the court shall specify in the decree the sum to be paid to each creditor.

SEC. 244. If there is any claim not due, or any contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be entitled to if the claim were due, or established, or absolute, shall be paid into the court, where it shall remain to be paid over to the party when he shall become entitled thereto, or if he fail to establish his claim, to be paid over or distributed as the circumstances of the estate require: Provided, that if any creditor whose claim has been allowed, but is not yet due, shall appear and assent to a deduction therefrom of the legal interest for the time the claim has yet to run, he shall be entitled to be paid accordingly.

SEC. 245. Whenever a decree shall be made by the probate court

Funeral expenses and expenses of last sickness.

Order for payment of debts.

judgments rendered against the deceased in his lifetime, and mortgages in the order of their date; 5th, all other demands against the


Provision for
disputed and

After decree for

payment of debts for the payment of creditors, the executor or administrator shall be

executor personally liable therefor.

personally liable to each creditor for his claim, or the dividend thereon, and execution may be issued on such decree, as upon a judgment in the district court, in favor of each creditor, and the same proceeding may be had under such execution as if it had been issued from the

district court. The executor or administrator shall also be liable on personally liable his bond to each creditor.


of debts.

SEC. 246. When the accounts of the administrator or executor have Claims not included in order been settled, and an order made for the payment of debts and distri- for payment bution of the estate, no creditor whose claim was not included in the order for payment shall have any right to call upon the creditors who have been paid, or upon the heirs, devisees, or legatees to contribute to the payment of his claim; but if the executor or administrator shall have failed to give the notice to the creditors as prescribed by this act, such creditor may recover on the bond of the executor or administrator the amount of his claim, or such part thereof as he would have been entitled to had it been allowed: Provided, that this section shall not apply to any creditor whose claim was not due ten months before the day of settlement, or whose claim was contingent and did not become absolute ten months before such day.

payment of

SEC. 247. If the whole of the debts shall have been paid by the Order for first distribution, the court shall proceed to direct the payment of legacies. legacies and the distribution of the estate among the heirs, legatees, or other persons entitled. But if there be debts remaining unpaid, the court shall give such extension of time as may be reasonable for a final settlement of the estate.


SEC. 248. At the time designated, or sooner, if within that time all Executor's final the property of the estate shall have been sold, or there shall be sufficient funds in his hands for the payment of all the debts due by the estate, the executor or administrator shall render a final account and pray a settlement of his administration.


SEC. 249. If he neglect to render his account, the same proceed- Neglecting to ings may be had as prescribed in this chapter, in regard to the first account. account to be rendered by him, and all the provisions of this chapter relative to the last-mentioned account, and the notice and settlement thereof, shall apply to his account presented for final settlement.



for devisee for


SECTION 250. At any time subsequent to the third term of the pro- Petition by heir bate court, after the issuing of letters testamentary or of administration, his portion of any heir, devisee, or legatee, may present his petition to the court, that the legacy or share of the estate to which he is entitled may be given to him, upon his giving bonds with security for the payment of his proportion of the debts of the estate.

SEC. 251. Notice of the application shall be given to the executor or administrator, and to all persons interested in the estate, in the notic is required to be given of the settlement of

same manner
the account of an executor or administrator.

SEC. 252. The executor or administrator, or any person interested in the estate, may appear and resist the application, or any other heir, devisee, or legatee, may make a similar application for himself.

SEC. 253. If, at the hearing, it appear that the estate is but little indebted, and that the share of the party or parties applying may be allowed to him or them, without injury to the creditors of the estate, the court shall make a decree in conformity with the prayer of the applicant or applicants: Provided, each one of them shall first execute and deliver to the executor or administrator a bond in such sum as shall be designated by the probate judge, and with sureties to be approved by him, payable to the executor or administrator, conditioned for the payment by the heir, legatee, or devisee, whenever required, of his proportion of the debts due from the estate.

SEC. 254. Such decree may order the executor or administrator to deliver to the heir, legatee, or devisee, the whole portion of the estate to which he may be entitled, or only a part thereof.

SEC. 255. If in the execution of such decree any partition be necessary between two or more of the parties interested, it shall be made in the manner hereinafter prescribed.

SEC. 256. The costs of the proceedings authorized by the preceding section shall be paid by the applicant, or, if there be more than one, shall be apportioned equally amongst them.

SEC. 257. Whenever any bond has been executed and delivered under the provisions of the preceding sections, and the executor or administrator shall ascertain that it is necessary for the settlement of the estate to require the payment of any part of the money thereby secured, he shall petition the court for an order requiring the payment, and shall have a citation issued and served on the party bound, requiring him to appear and show cause why the order shall not be made. At the hearing, the court, if satisfied of the necessity of such payment, shall make an order accordingly, designating the amount, Action on bond. and giving a time within which it shall be paid. If the money be not paid within the time allowed, an action may be maintained by the executor or administrator on the bond.

Notice of application.

Executor, etc., may resist application.

Decree as prayed.

Decree may order whole or part of share

of heir, etc., delivered.

Where partition necessary.


Order for payment of bond.

Distribution of residue.

SEC. 258. Upon the final settlement of the accounts of the execu tor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, or devisee, the

court shall proceed to distribute the residue of the estate, if any among the persons who are by law entitled.

SEC. 259. In the decree the court shall name the persons and the Form of decree. proportion or parts to which each shall be entitled, and such persons shall have the right to demand and recover their respective shares from the executor or administrator, or any person having the same in possession.


SEC. 260. The decree may be made on the application of the exe- On whose cutor or administrator, or of any person interested in the estate, and decree made. shall only be made after notice has been given in the manner required in regard to an application for the sale of land by an executor or administrator. The court may order such further notice to be given as

it may

deem proper.

estate in

SEC. 261. When the estate, real or personal, assigned to two or Partition of more heirs, devisees, or legatees, shall be in common and undivided, common. and the respective shares shall not be separated and distinguished, partition and distribution may be made by three disinterested persons, to be appointed commissioners for that purpose by the probate judge, who shall be duly sworn to the faithful discharge of their duties, and the court shall issue a warrant to them for that purpose.

in different

SEC. 262. If the real estate shall be in different counties, the pro- Real estate bate court may, if it shall judge proper, appoint different commission- counties. ers for each county; and in such cases the estate in each county shall be divided separately, as if there was no other estate to be divided; but the commissioner first appointed shall, unless otherwise directed by the probate court, make division of such real estate wherever situated within this state.

for partition, etc.

SEC. 263. Such partition and distribution may be ordered on the Who may apply petition of any of the persons interested; but before any partition shall be ordered, as directed in this chapter, notice shall be given to all persons interested who shall reside in this state, or their guardians, and to agents, attorneys or guardians, if there be any in this state, of such as reside out of the state either personally or by public notice as the probate court shall direct.

made although

have parted

SEC. 264. Partition of the real estate may be made as provided in Partition may be this chapter, although some of the original heirs or devisees may have some of the heirs, conveyed their shares to other persons, and such shares shall be as- with their signed to the person holding the same, in the same manner as they otherwise should have been to such heirs or devisees.


set out by metes

SEC. 265. The several shares in the real and personal estate shall Shares to be be set out to each individual in proportion to his right, by such metes and bounds. and bounds, or description, that the same can be easily distinguished,

SEC. 266. When any such real estate cannot be divided without to one on certain prejudice or inconvenience to the owners, the probate court may as

Whole estate may be assigned


sign the whole to one or more of the parties entitled to shares therein, who will accept it, always preferring the males to the females, and among children preferring the elder to the younger: Provided, the party so accepting the whole shall pay to the other parties interested their just proportion of the true value thereof, or shall secure the same to their satisfaction; and the true value of the estate shall be ascertained by commissioners appointed by the probate court, and sworn for that purpose.

Payments for equality of partition.

Estate may be sold and proceeds divided.

unless two or more of the parties interested shall consent to have their shares set out, so as to be held by them in common and undivided.

Estate in common, how divided.

SEC. 267. When any tract of land or tenement shall be of greater value than either party's share in the estate to be divided, and cannot be divided without injury to the same, it may be set off by the commissioners appointed to make partition to either of the parties who will accept it, giving preference as prescribed in the preceding sections Provided, the party so accepting shall pay or secure to one or more of the others such sums as the commissioners shall award to make the partition equal, and the commissioners shall make their award accordingly; but such partition shall not be established by the court until the sums so awarded shall be paid to the parties entitled to the same, or secured to their satisfaction.


SEC. 268. When it cannot otherwise be fairly divided, the whole or any part of the estate, real or personal, may be recommended by the commissioners to be sold; and if the report be confirmed, the court may order a sale by the executor or administrator, or by an agent appointed for the purpose, and distribute the proceeds.

SEC. 269. When partition of real estate among heirs or devisees shall be required, and such real estate shall be in common, and undivided with the real estate of any other person, the commissioners shall first divide and sever the estate of the deceased from the estate in which it lies in common, and such division so made and established by the probate court shall be binding upon all the persons interested.

Guardians for to be

SEC. 270. Before any partition shall be made, or any estate dividappointed before ed as provided in this chapter, guardians shall be appointed for all making partition. minors and insane persons interested in the estate to be divided; and

some discreet person shall be appointed to act as agent for such parties as reside out of the state; and notice of the appointment of such agent shall be given to the commissioners in their warrant; and

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