« PreviousContinue »
his application, made after the return of an inventory, direct a sale of the personal property therein contained, or of such part as the court may think
proper, and in such manner and on such terms as the court may direct. The court shall have power to direct a sale as aforesaid, if deemed by the court advantageous to the persons interested in the administration, on the application of any of the said persons.
Sec. 323. ORDER FOR SALE. -No executor or administrator shall sell any property of his decedent without an order of the probate court authorizing such sale; and any such sale made without a previous order authorizing it shall be void and pass no title to the purchaser. If any executor or administrator shall sell, pledge, or dispose of any property without such previous order, his letters may be revoked and an administrator appointed, whose duty it shall be immediately to recover possession of said property, and such removed executor or administrator may be proceeded against by attachment; but where there are two or more executors or administrators, and a sale, pledge, or disposition of property has been made without the consent of all, the revocation shall only extend to the person or persons so offending, and the remaining executors or administrators shall have power to discharge the duties of their office and institute proceedings for the recovery of the property and attachment as aforesaid.
Sec. 324. The preceding section shall not be construed to apply to any case where an executor shall be authorized by will of his testator to make sale of any property.
Sec. 325. POWER OF SALE TO EXECUTOR.-In all cases in which a testator has directed his real estate to be sold for the payment of his debts or legacies, the executor may sell and convey the same, and shall account for the proceeds thereof to the probate court in the same manner that he is bound to account for the proceeds of personal estate; but such sale shall not be valid unless ratified by said court after notice given by publication according to the practice in equity. In case the executor shall refuse or decline to act, or shall die without executing the power vested in him, it shall be lawful for the court, on the application of any person interested, to appoint an administrator de bonis non with the will annexed to execute such power in the same manner in which the executor appointed by the will might have done.
Sec. 326. SURVIVOR OF SEVERAL TRUSTEES.—In all cases where two or more trustees shall be appointed by last will to execute a trust, or shall be empowered to sell, dispose of, or convey lands or other property devised to them jointly, upon the death of any one or more of them the survivor or survivors shall be held authorized to execute such trust or power; and if any one of such trustees shall in writing, signed by him and attested by a witness, relinquish or disclaim said trust or refuse to act under said will, and shall deliver such writing to the probate court of the District for record, the right of such trustee to act shall cease, and the remaining trustee or trustees appointed by said will shall be authorized to execute the trusts of said will and make all sales and execute all conveyances and other acts necessary for that purpose.
Sec. 327. SUITS BY
AND AGAINST EXECUTORS, AND SO FORTH. Executors and administrators shall have full power and authority to commence and prosecute any personal action at law or in equity which the testator or intestate might have commenced and prosecuted, except actions for [slander and for] injuries to the person or to the reputation; and they shall also be liable to be sued in the supreme court of said District in any action at law or in equity, except as aforesaid, which might have been maintained against the deceased; and they shall be entitled to or answerable for costs in the same manner as the deceased would have been, and shall be allowed for the same in their accounts, unless it shall appear that there were not probable grounds for instituting or defending the suits in which judgments or decrees shall bave been given against them.
Sec. 328. JUDGMENTS AGAINST EXECUTORS, AND SO FORTH.-If the verdict of the jury in any suit against an executor or administrator be against such executor or administrator, or if he shall be willing to confess judgment, and the debt or damages which the deceased (if he or she were alive) ought to pay be ascertained by verdict, or confession, or otherwise, the court shall thereupon assess the sum which the executor or administrator ought to pay, regard being had to the amount of assets in his hands and the debts due to other persons; and if it shall appear to the court that there are assets to discharge all just claims against the deceased, the judgment shall be for the whole debt or damages found by the jury, or confessed, or otherwise ascertained, and costs; and if it shall appear to the court that there are not assets to discharge all such just claims, the judgment shall be for such sum only as bears a just proportion to the amount of the debt or damages and costs, regard being had to the amount of all the just claims and of the assets—that is to say, as the amount of all the said claims shall be to the assets, so shall the amount of the said debt or damages and costs be to the sum required, for which judgment is to be given.
And in no case shall the court proceed to assess as aforesaid and to pass such judgment against an executor or administrator until the time limited by law or by the court for the executor or administrator to pass his account shall have expired: Provided, That the said exec. utor or administrator shall make oath (or affirmation, as the case may require) that he hath not assets to discharge all such just claims; and the account settled by the probate court, in which the debt or damages sued for ought to be stated, shall be evidence to show the amount of assets and claims; and the court shall have power, when the real debt or damages are ascertained, to refer the matter to an auditor to ascertain the sum for which judgment shall be given; and in case the judgment shall be for a sum inferior to the real debt or damage and costs, it shall go on and say “that the plaintiff be entitled to such further sum as the court shall hereafter assess on discovery of further assets in the hands of the defendant;" and the court, at any time afterwards, when applied to by the plaintiff, on three days' notice to the defendant or his attorney, may assess and give judgment for such further proportionable sum as the plaintiff shall appear entitled to, regard being had as aforesaid to the amount of the debt and other claims; and on any judgment passed as aforesaid a fieri facias may issue against the defendant, and either his own goods or the goods of the deceased may be thereupon taken and sold, and it shall be the duty of the executor or administrator to discharge said judgment or put it on a footing with other just claims, and on failure his administration bond may be put in suit by the plaintiff.
Sec. 329. FOREIGN EXECUTORS AND ADMINISTRATORS.—It shall be lawful for any person or persons to whom letters testamentary or of administration have been granted by the proper authority in any of the United States or the Territories thereof to maintain any suit or action and to prosecute and recover any claim in the District in the same manner as if the letters testamentary or of administration had been granted to such person or persons by the proper authority in the said District; and the letters testamentary or of administration, or a copy thereof certified under the seal of the authority granting the same, shall be sufficient evidence to prove the granting thereof, and that the person or persons, as the case may be, hath or have administration: Provided, nevertheless, That the probate court of the District shall have the power, upon the petition of anyone interested, to require from such person or persons the security required by law in like cases from a resident administrator or executor, or the said court may grant auxiliary or ancillary letters, as the case may require, to the same or other persons.
Sec. 330. DEBTS TO
No executor or administrator shall discharge any claim against his decedent (otherwise than at his own risk) unless the same be first passed by the probate court, or unless the said claim shall be proved according to the following rules:
Sec. 331. VOUCHERS.--The voucher or proof of a judgment or decree shall be a short copy thereof under seal, attested by the clerk of the court where it was obtained, who shall certify that the said judgment or decree hath not been satisfied. There shall likewise be a certificate of some person authorized to administer an oath, indorsed on or annexed to a statement of the debt due on such judgment or decree, that the creditor or his agent since the death of the deceased hath taken before him the following oath, to wit: “That the creditor hath not received any part of the sum for which the judgment or decree was passed except such part (if any) as is credited;" and if the creditor on the judgment or decree be an assignee of the person who obtained it, the oath shall go on and say further, and that to the best of his knowledge or belief no other person hath received any parcel of the said sum except such part (if any) as is credited," and an assignee shall also produce the assignment under the hand of the assignor; and if there be more than one assignment, each assignment shall be produced under the hand of the party assigning,
Sec. 332. In case of a specialty, bond, note, check, or protested bill of exchange, the vouchers shall be the instrument of writing itself, or a proved copy in case it be lost, with a certificate of the oath made as aforesaid since the death and indorsed on or annexed to the instrument, or a statement of the claim that no part of the money intended to be secured by such instrument hath been received or any security or satisfaction given for the same except what (if any) is credited.”
Sec. 333. If the creditor in such instrument be an assignee, there shall be the same oath of the creditor or agent, according to the best of his knowledge and belief, with respect to any payments prior to the time of the assignment.
Sec. 334. In case of a bill of exchange or other commercial paper, the protest or other things which would be required (if the deceased were alive) shall be necessary to justify an executor or administrator in making payment or distribution.
Sec. 335. If the claim be for rent, there shall be produced the lease itself, or the deposition of some credible witness or witnesses, or an acknowledgment in writing of the deceased, establishing the contract and the time which hath elapsed during which rent was chargeable, and a statement of the sum due for such rent, with an oath of the creditor or agent indorsed thereon “that no part of the sum due for said rent or any security or satisfaction for the same hath been received except what (if any) is credited.”
The proof of a claim for rent in arrear, so as to render the same a preferred claim, shall be the proofs and vouchers for rent aforesaid, and proof that the claim is such that an attachment therefor might be levied on said deceased's goods and chattels in the hands of the administrator, but the preference given for rent is not to impair the landlord's right of attachment if he thinks proper to exercise it.
Sec. 336. The vouchers or proofs of any claim on open account shall be a certificate of an oath taken by the creditor or agent since the death, indorsed on or annexed to the account, that the account as stated is just and true, and that he, the creditor, or any one for him, hath not received any part of the money stated to be due or any security or satisfaction for the same except what (if any) is credited.
Sec. 337. When an affidavit or deposition to prove claims shall bave been taken out of the District, the same shall be good if taken and certified as aforesaid by a notary public, or by some person there authorized to administer an oath, and certified to be such under the seal of the clerk of any court of record, or by any officer having official cognizance of the fact, and the said oath shall be as available as if taken before an officer authorized to administer an oath within this District: Provided, That such additional certificate shall not be required as to notaries public within the United States or any place under the jurisdiction thereof when the seal of such notary is attached.
Sec. 338. If the creditor be an executor or an administrator the claim shall not be received, although vouched and approved as aforesaid, unless he make oath, to be certified as aforesaid, "that it does not appear from any book or writing of his decedent that any part of the said claim hath been discharged except what (if any) is credited, and that to the best of the deponent's knowledge and belief no part of the said claim hath been discharged and no security or satisfaction given for the same except what (if any) is credited.”
Sec. 339. CLAIMS OF EXECUTORS, AND SO FORTH. -In no case shall an executor or administrator be allowed to retain for his own claim against the decedent, unless the same be passed by the probate court, and every such claim shall stand on an equal footing with other claims of the same nature.
[Sec. 340. No executor or administrator shall be allowed in his account for any claim discharged by him, unless he produce the claim passed by the probate court, or proven as herein directed.]
Sec. 341. PLEA OF LIMITATIONS. -It shall not be considered as the duty of an executor or administrator to avail himself of the act of limitations to bar what he supposes to be a just claim, but the same shall be left to his honesty and discretion.
Sec. 342. CLAIMS MAY BE DISPUTED.—No executor or administrator shall be obliged to discharge any claim of which vouchers and proofs shall be exhibited as aforesaid, but may reject and at law dispute the same in case he shall have reason to believe that the deceased never owed the debt, or had discharged the same, or a part thereof, or had a claim in bar.
Sec. 343. PASSING OF CLAIMS NOT CONCLUSIVE. In no case shall the order made by the probate court that an account or claim will pass when paid be deemed of validity to establish such claim or account; but in case the executor or administrator thinks fit to contest the same such account or claim shall derive no validity from the order aforesaid, but shall be proved in the same manner as if no such order had been made.
Sec. 344. PAYMENT OF CLAIMS. -An executor or administrator shall, within thirteen months from the date of his letters, or within such further time, not exceeding four months longer, as shall be allowed by the probate court on his making oath that he has reason to apprehend that the personal estate and assets which are or shall be in his hands will be insufficient to discharge the just debts of and claims against the deceased, discharge all such claims known to him or pay each claimant his just proportion of the money then in his hands (retaining as herein directed); it shall likewise be his duty once in every term of six months after the first distribution to make a distribution of the money which hath since come to his hands until he shall have fully administered, and on failure his administration bond may be put in suit.
Sec. 345. NOTICE OF DISTRIBUTION.—In all cases where an executor or administrator is to make payment or distribution among the creditors of his decedent, he may give notice three successive weeks previously in some convenient newspaper of the time and place for making it; and in case the creditor shall not attend in person or by agent or attorney to receive the amount or proportionable part of his claim, all interest on such claim or proportionable part shall cease from that time: Provided, That the executor or administrator shall at any time thereafter on demand pay the said claims, or a proportionable part, to the party, his agent, or attorney duly authorized; and whenever the executor or administrator shall proceed to made an additional payment or dividend he may advertise as aforesaid, and interest shall stop as aforesaid; and if at the time for the making of any additional dividend a just claim, established as hereinbefore directed, shall be exhibited, the creditor shall be entitled to such sum as will place him on an equal footing with those who have already received a dividend.
Sec. 346. RETAINING FOR CLAIMS. - It shall be the duty of an executor or administrator to pay all just claims against his decedent exhibited to him, or a just proportionable part thereof, according to the assets; and if any claim be known to him (although the same be not exhibited) he shall retain the same, or a just proportionable part, for the benefit of the creditor: Provided, That if any executor or administrator shall have actual knowledge of a claim which has not been exhibited or passed he shall give notice in writing to the creditor, requiring the