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Whenever, any claim is presented to an executor or administrator, or to a Judge, and he is willing to allow the same in part, he must state in his indorsement the amount he is willing to allow. If the creditor refuse to accept the amount allowed in satisfaction of his claim, he shall recover no costs in any action therefor brought against the executor or administrator, unless he recover a greater amount than that offered to be allowed.
A judgment rendered against an executor or administrator, upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and a Judge; and the judgment must be that the executor or administrator pay, in due course of administration, the amount ascertained to be due. A certified transcript of the original docket of the judgment must be filed among the
of the estate in Court. No execution must issue upon such judgment, nor shall it create any lien
the property of the estate, or give to the judgment creditor any priority of payment.
Six months after his appointment, and at any time when required by the Court, either upon its own motion or upon the application of any person interested in the estate, the executor or administrator must render, for the information of the Court, an exhibit under oath, showing the amount of money received and expended by him, the amount of all claims presented against the estate, and the names of the claimants, and all other matters necessary to the condition of its affairs.
Every executor or administrator must render a full account and a report of his administration at the expiration of one year from the time of his appointment.
Upon the settlement of the accounts at the end of the year, as required, the Court must make an order for the payment of the debts, as the circumstances of the estate require.
In case of the death of any employer, the wages of each miner, mechanic, salesman, clerk, servant and laborer, for services rendered within the sixty days next preceding the death of the employer, not exceeding one hundred dollars, rank in priority next after the funeral expenses, expenses of the last sickness, the charges and expenses of administering upon the estate, and the allowance to the widow and infant children, and must be paid before other claims against the estate of the deceased person.
The debts of the estate, subject to the foregoing provision, must be paid in the following order :
1. Funeral expenses.
4. Judgments rendered against the decedent in his lifetime, and mortgages in the order of their date.
5. All other demands against the estate.
The preference in the case of a mortgage only extends to the proceeds of the property mortgaged. The deficiency, if any, must be classed with the other demands against the estate.
COMPENSATION TO EXECUTORS AND ADMINISTRATORS.
When no compensation is provided by the will, or the executor renounces all claim thereto, he must be allowed commission upon the amount of the whole estate accounted for by him as follows: on first $1,000 seven per cent., above that sum and not exceeding $10,000 five per cent, on all above that sum four per cent.
Same compensation allowed to administrators.
The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate subject to the control of the Probate Court, and to the possession of any administrator appointed by that Court for the purpose of administration.
When any person having title to any estate not otherwise limited by marriage contract dies, without disposing of the estate by will, it is succeeded to, and must be distributed, subject to the payment of his debts, in the following manner
1. If the decedent, leave a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband or wife and child, or issue of such child. If the decedent leave a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one-third to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child by right of representation ; but if there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all of the descendants are in the same degree of kindred to the decedent, they share equally; otherwise they take according to the right of representation. If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or one child living and the lawful issue of one or more deceased chlldren, then the estate goes in equal shares to the children living, or to the child living, and the issue of the deceased child or children by right of representation ;
2. If the decedent leave no issue, the estate goes, one half to the surviving husband or wife and the other half to the decedent's father and mother, in equal shares, and if either be dead, the whole of said half goes to the other; if there be no father or mother, then one half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister by right of representation. If the decedent leave no issue, nor husband, ñor wife, the estate must go to his father and mother, in equal shares, or if either be dead, then to the other.
3. If there be neither issue, husband, wife, father nor mother, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister by right of representation.
5. If the decedent leave a surviving husband or wife, and neither issue, father, mother, brother, nor sister, the whole estate goes to the surviving husband or wife.
6. If the decedent leave neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claimed through the nearest ancestors must be preferred to those claiming through an ancestor more remote.
7. If the decedent leave several children, or one child, and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent, descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation.
8. If at the death of such child, who dies under age, not having been married, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his parents decends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation,
9. If the decedent be a widow or widower, and leave no kindred, and the estate, or any portion thereof, was common property of such decedent, and his or her deceased spouse, while such spouse was living, such common property shall go the father of such deceased spouse, or if he be dead, to the mother. If there be no father nor mother, then such property shall go the brothers and sisters of such deceased spouse, in equal shares, and to the lawful issue of any deceased brother or sister of such deceased spouse, by right of representation.
10. If the decedent have no husband, wife or kindred, and there be no heirs to take his estate, or any portion thereof, under subdivision nine of this section, the same escheats to the State for the support of common schools.
The above provisions, as to the inheritance of the husband and wife from each other, apply only to the separate property of the decedents.
Upon the death of the wife, the entire community property, without administration, belongs to the surviving husband, except such portion thereof as may have been set apart to her by judicial decree, for her support and maintenance, which portion is subject to her testamentary disposition, and in the absence of such disposition goes to her descendants or heirs, exclusive of her husband.
Upon the death of the husband, one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition goes to his descendants, equally, if such descendants are in the same degree of kindred to the decedent; otherwise, according to the right of representation; and in the absence of both such dispositions, and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance, and the charges and expenses of administration.
Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them intestate, and without issue, the others in