not, in the first instance, exceed one year from the time such new administrator shall be appointed; but such time may be extended in like manner and upon like notice as required in case of the original executor or administrator; and nothing contained in this subdivision shall be construed to take away the liability of an executor or administrator to make immediate payment when demanded, upon a decree for the distribution of assets among creditors, legatees, or heirs at law. [Amended, G. S. 324.]

OF THE DISTRIBUTION OF ASSETS AMONG THE CREDITORS, AND OF INSOLVENT ESTATES.

SEC. 248. [Sufficient assets, debts to be paid.]—If, after the report of the commissioners and ascertaining the claims against any estate, it shall appear that the executor or administrator has in his possession sufficient to pay all the debts, he shall pay the same in full within the time limited or appointed for that purpose.

SEC. 249. [Order of payment of debts.]-If the assets which the executor or administrator may have received and which can be appropriated to the payment of debts shall not be sufficient, he shall, after paying the necessary expenses of administration, pay the debts against the estate in the following order: First-The necessary funeral expenses. Second-The expenses of the last sickness. Third-Debts having a preference by the laws of the United States. Fourth-Debts due to other creditors.

SEC. 250. [Same.]-If there shall not be assets enough to pay all the debts of any 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. 251. [Decree.]-After the return of the report of the commissioners, and at or before the expiration limited for the payment of debts, the probate court shall make an order or decree for the payment of the debts and the distribution of the assets which may have been received by the executor or administrator, at the time fixed for that purpose, among the creditors, as the circumstances of the estate shall require, according to the provisions of this subdivision.

pre

SEC. 252. [Suspension of decree in case of appeal.]—If an appeal shall have been taken from the decision of the commissioners, and shall remain undetermined, the probate court may suspend the decree for the payment of debts mentioned in the ceding section, or may order a distribution among the creditors whose claims have been allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim which may have been disputed and appealed.

SEC. 253. [Settlement of disputed claim.]-When the disputed claim shall have been finally settled, the probate court shall order the same to be paid out of the assets retained, to the same extent and in the same proportion as the claims of other creditors.

SEC. 254. [Further decree.]-If the whole of the debts shall not have been paid by the first distribution, and if the whole assets shall not have been distributed, or if other assets shall afterwards come to the hands of the executor or administrator, the probate court may, from time to time, according to the circumstances of the case, make further decree for the distribution of assets.

SEC. 255. [Liability of executor.]-Whenever a decree shall have been made by the probate court for the distribution of the assets among the creditors, the executor or administrator of the estate, after the time of payment shall arrive, shall be personally liable to the creditors for their debts, or the dividend thereon, as for his own' debts, or he shall be liable on his bond, and the same may be put in suit on the application of the creditor whose debt or dividend shall not be paid as above mentioned.

SEC. 256. [Notice to creditors.]-When the time for paying the debts of a deceased person shall be finally limited by order of the probate court or by the expiration of the time allowed for that purpose, whether the estate shall be insolvent or not, SEC. 249. Payment of taxes comes under the fourth class, and a county treasurer cannot distrain personal property for taxes due from deceased in his lifetime. 8 Neb. 185.

the probate court may, on the application of the executor or administrator, by an order for that purpose, cause notice to be given to the creditors of the time appointed or limited for the payment of such debts, which notice shall be given by publishing the same at least three weeks successively in some paper to be designated by the court, or in such other manner as the court may direct.

SEC. 257. [Claims barred.]-If, after notice shall have been given, as provided in the preceding section, any creditor shall neglect to demand from the executor or administrator his debt or the dividend thereon within two years from the time so limited for the payment of the debts, or if the notice shall have been given after such time, within two years from the last publication, the claim of such creditor shall be forever barred.

CONTINGENT CLAIMS.

SEC. 258. [Presentation and proof.]-If any person shall be liable as security for the deceased, or have any other contingent claim against his estate, which cannot be proved as a debt before the commissioners, or allowed by them, the same may be presented, with the proper proof, to the probate court or to the commissioners, who shall state the same in their report, if such claim was presented to them.

SEC. 259. [Retention of funds to pay.]-If the court shall be satisfied, from the report of the commissioners, or by the proof exhibited, said court may order the executor or administrator to retain in his hands sufficient to pay such contingent claim, when the same shall become absolute; or, if the estate shall be insolvent, sufficient to pay a proportion equal to the dividends of other creditors.

SEC. 260. [When claim becomes absolute.]-If such contingent claim shall become absolute, and shall be presented to the probate court, or to the executor or administrator, at any time within two years from the time limited for other creditors to present their claims to the commissioners, it may be allowed by the probate court upon due proof, or it may be proved before the commissioners already appointed or before others to be appointed for that purpose, in the same manner as if presented for allowance before the commissioners had made their report; and the persons interested shall have the same right of appeal as in other cases.

SEC. 261. [Same.]-If such contingent claim shall be allowed, as mentioned in the preceding section, or established on appeal, the creditors shall be entitled to receive payment to the same extent as other creditors, if the estate retained by the executor or administrator shall be sufficient for that purpose; but if the claim shall not be finally established, as provided in the preceding section, or if the assets retained in the hands of the executor or administrator shall not be wholly exhausted in payment of such claim, such assets, or the residue of them, shall be disposed of, by order of the probate court, to the persons entitled to the same according to law.

SEC. 262. [Same.]—If the claim of any person shall accrue or become absolute at any time after the time limited for creditors to present their claims, the person having such claim may present it to the probate court, and prove the same at any time within one year after it shall accrue or become absolute; and if established in the manner provided in this subdivision, the executor or administrator shall be required to pay it, if he shall have sufficient assets for that purpose, and shall be required to pay such part as he shall have assets to pay, and if real or personal estate shall afterwards come to his possession, he shall be required to pay such claim, or such part as he may have assets sufficient to pay, not exceeding the proportion of the other creditors, in such time as the probate court may prescribe.

SEC. 263. [Recovery from heirs, etc.]-When a claim shall be presented within one year from the time when it shall accrue and be established, as mentioned in the preceding section, and the executor or administrator shall not have sufficient to pay the whole of such claim, the creditor shall have the right to recover such part of his claim as the executor or administrator has not assets to pay, against the heirs, devisees, or legatees, who shall have received sufficient real or personal property from the estate.

SEC. 264. [Action against executor.]-If any action shall be commenced against an executor or administrator on such claim as mentioned in section two hundred and sixty-two, and for the payment of which sufficient assets shall not have been retained, as before provided, the executor or administrator may give notice, under his plea to such action, that he has fully administered the estate which has come to his possession or knowledge.

SEC. 265. [Judgment.]—If it shall appear on the trial of such action that the defendant had fully administered at the time the claim was presented, and had no assets which could lawfully be appropriated for that purpose, he shall be discharged, and shall have judgment for his costs; but if it shall be found that he had assets sufficient to pay only a part of such claim, judgment shall be rendered against him for such sum only as shall be equal to the amount of assets in his hands.

SEC. 266. [Liability of heirs, etc.]—When the heirs, devisees, or legatees shall have received real or personal estate, and shall be liable for any debts, as mentioned in this subdivision, they shall be liable in proportion to the estate they may have respectively received; and the creditor may have any proper action or suit in law or equity, and shall have a right to recover his claim against a part or all of such heirs, devisees, or legatees, to the amount of the estate they may have respectively received; but no such action shall be maintained unless commenced within one year from the time the claim shall be allowed or established.

SEC. 267. [Contribution among legatees.]-If, by the will of the deceased, any part of his estate, or any devisees or legatees, shall be made exclusively liable for the debt, the devisees or legatees shall be liable to contribute among themselves only, according to the will.

SEC. 268. [New parties to action.]—If all the persons liable for the payment of any such debt shall not be included in any such action or suit as defendants, the suit or action shall not thereby be in any way dismissed or barred, but the court before which it shall be pending may order any other parties brought in, by any proper process, and may allow such amendments as may be necessary to make them defendants, on such terms as the court shall prescribe.

SEC. 269. [Issues, how tried.]-If more than one person shall be liable, as aforesaid, and the creditor shall bring a suit in chancery against all or a part of the persons so liable, and the persons liable shall dispute the debt or the amount claimed, the court of chancery may order an issue to be formed, and direct that the amount may be ascertained by a jury in the district court of the county in which the estate is settled; and the court of chancery shall ascertain and determine how much each is liable to pay, and may award execution therefor.

SEC. 270. [Estate of heir, devisee, etc., liable.]-If any of the heirs, devisees, or legatees shall die without having paid his just share of the debts, his estate shall be liable therefor, as for his own debt, to the extent to which he would have been liable, if living.

SEC. 271. [Liability of others.]-When any of the heirs, devisees, or legatees shall pay more than his share of such debt, the other persons liable shall be holden and compelled to contribute their just proportion of the same, as is provided in the cases of devisees and legatees in this chapter.

SEC. 272. [Action against executor-Lien of creditor.]-If the giv ing of notice for the examination and allowance of claims against the estate, before the judge or commissioners, shall in any case be omitted for the period of one year after the granting of letters testamentary or administration, any person having any contingent or other lawful claim against a deceased person may at once commence an action therein and prosecute the same against the executor, administrator, heirs, devisees, or legatees, as the same may be, who shall have received real or personal property from the estate SEC. 266. Action a special proceeding. District court has jurisdiction. Statute runs from entry of certificate in county court. 30 Neb., 558. SEC. 272. A mortgagee cannot be compelled to relinquish his lien and share in the general assets of the estate. 9 Neb,, 60.

Provided, That in case notice to creditors shall have not been given for the period of one year as above provided, any person having any contingent or other lawful claim against a deceased person and shall neglect to commence action thereon against the executor, administrator, heirs, devisees, or legatees, as the same may be, who shall have received real or personal property from the estate within five years next after the granting of letters testamentary or administration, the same shall be forever barred; and in all cases a creditor having a lien upon the real or personal estate of the deceased by judgment, execution, or attachment previous to his death may proceed to enforce said lien the same as if such death had not occurred. [Amended 1887, chap. 36.]

SEC. 273. [Limitation.]—In no other case, except such as are expressly provided for in this chapter, shall any action be commenced or prosecuted against an executor or administrator; nor shall any writ of attachment or execution issue against such executor or administrator, or against the estate of the deceased in his hands, during the time allowed him for the payments, except in the case provided for in the preceding section.

RENDERING ACCOUNTS BY EXECUTORS AND ADMINISTRATORS.

SEC. 274. [Liability of executor.]-Every executor and administrator shall be chargeable in his account with the whole of the goods, chattels, rights, and credits of the deceased, which may come to his possession; also, with all the proceeds of the real estate which may be sold for the payment of debts and legacies, and with all the interest, profit, and income that shall in any way come to his hands from the estate of the deceased.

SEC. 275. [Personal estate.]-Every executor and administrator shall account for the personal estate of the deceased as the same shall be appraised, except as provided in the following section.

SEC. 276. [Not profit by increase, etc.]-An executor or administrator shall not make profit by the increase, nor suffer loss by the decrease or destruction without his fault, of any part of the personal estate, and he shall account for the excess when he shall sell any part of the personal estate for more than the appraisal, and if he shall sell any for less than the appraisal he shall not be responsible for the loss, if it shall appear to be beneficial to the estate to sell it.

SEC. 277. [Sale of personalty.]-The probate court, on the application of the executor or administrator, may, at any time, order the personal estate to be sold at private sale, or at public auction, when it shall appear to be necessary for the purpose of paying debts or legacies, or expenses of administration, or for the preservation of the property, or when it shall be requested by all the heirs residing in this state; or the court may order such personal estate to be sold, either at private sale, or public auction, as the executor or administrator may find most beneficial. If the order be to sell at public auction, the probate court shall direct the mode of giving notice of the time and place of sale.

SEC. 278. [Account.]-When the executor or administrator shall sell personal estate under an order of the probate court, he shall account for the same at the price for which it shall be sold.

SEC. 279. [Debts uncollected.]-No executor or administrator shall be accountable for any debts due to the deceased if it shall appear that they remain uncollected without his fault.

SEC. 280. [Income from real estate.]-The executor or administrator shall also be accountable for the income of the real estate while it shall remain in his possession; and if he shall use or occupy a part of it, he shall account for it as shall be agreed upon between him and the parties interested, or adjudged by the court with their assent; and if the parties shall not agree upon the sum to be allowed, the same

SEC. 274. If an executor fraudulently invests assets of the estate in land, taking the title in his own name and never accounting for the same in his reports, a creditor of the deceased has an equitable lien thereon for the amount due him. 4 Neb. 60.

may be ascertained by one or more disinterested persons to be appointed by the probate court, whose award, being accepted by such court, shall be final.

SEC. 281. [Waste.]-When an executor or administrator shall neglect or unreasonably delay to raise money, by collecting the debts, or selling the real or personal estate of the deceased, or shall neglect to pay over the money he shall have in his hands, and the value of the estate shall thereby be lessened, or unnecessary cost or interest shall accrue, or the persons interested shall suffer loss, the same shall be deemed waste, and the damages sustained may be charged against the executor or administrator in his account, or he shall be liable therefor on his administration bond.

SEC. 282. [Accounts of executor.]-Every executor or administrator shall render an account of his administration within one year from the time of his receiving letters testamentary or of administration, unless the court shall give permission to delay, in consideration that the time for selling the estate and paying debts shall be extended; and he shall render such further account of his administration from time to time as shall be required by the court, until the estate shall be wholly settled; Provided, That at the expiration of the year from the time of the granting of letters testamentary or administration, such executor or administrator shall at once, and the court is hereby directed to compel such executor or administrator to at once make final settlement in such estate; Provided further, That if by reason of any suit at law or equity, then pending in any court of law in which said estate is interested, and by reason thereof a full settlement of such estate cannot then be had, a settlement of such estate shall be had as far as may be, and the administration of such estate may be continued for the purpose only of contesting such suits to a full settlement. Upon the hearing of the accounts of any executor or administrator he may be examined on oath upon any matter relating to his account, and witnesses in like manner may be examined on behalf of such executor or administrator, or other party interested in such account. Such account shall have annexed thereto the oath of the executor or administrator to the effect that such account is in all respects just and true, and that to the best of his knowledge and belief he has therein accounted for all the estate and effects of the deceased that have come into his possession or knowledge. Such executor or administrator shall, at least seven days before the time fixed for hearing such account, file in the county court all vouchers to be used in support thereof, and any voucher not so filed cannot be used in support of such account. Nothing contained in this section shall be construed to take away the power of the county court to settle and allow an account not certified as aforesaid, but in such case the burden of proof as to the correctness of such account and of each item thereof shall rest upon such executor or administrator. [Amended 1887, chap. 36.]

SEC. 283. [Allowance for expenses.]—The executor or administrator shall be allowed all necessary expenses in the care, management, and settlement of the estate, and for his services such fees as the law provides, together with all extra expenses, Provided, That when the deceased shall, by his will, make some other provision for the compensation of his executor, that shall be deemed full compensation for his services, unless he shall, by a written instrument filed in the probate court, renounce all claim to the compensation provided by the will.

SEC. 284. [Commissions.]-When no such compensation shall be provided by the will, or the executor shall renounce all claim thereto, he shall be allowed commission upon the amount of personal estate collected and accounted for by him, and of the proceeds of real estate sold under an order of the court for the payment of debts, as follows: For the first thousand dollars, at the rate of five per cent.; for all above that sum and not exceeding five thousand dollars, at the rate of two and one-half per cent.; and for all above five thousand dollars, at the rate of one per cent.; and the same commissions shall be allowed to administrators; and in all cases such further allowances may be made as the judge of probate shali deem just and reasonable for any extraordinary services not required of an executor or administrator in the common course of his duty.