VIII. REVOCATION. 37. On proof of will. If, after the letters of administration are issued, a will is subsequently proved and letters testamentary are issued thereon; or, if after letters testamentary are issued, a revocation of the will, or a subsequent testamentary paper revoking the appointment of executors is proved and letters are issued thereon, the clerk of the superior court must thereupon revoke the letters first issued, by an order in writing to be served on the person to whom such first letters were issued; and, until service thereof, the acts of such person, done in good faith, are valid. Code, s. 2170; C. C. P., s. 469. 38. For disqualification or default. If, after any letters have been issued, it appears to the clerk, or if complaint is made to him. on affidavit, that any person to whom they were issued is legally incompetent to have such letters, or that such person has been guilty of default or misconduct in the due execution of his office, or that the issue of such letters was obtained by false representations made by such person, the clerk shall issue an order requiring such person to show cause why the letters should not be revoked. On the return of such order, duly executed, if the objections are found valid, the letters issued to such person must be revoked and superseded, and his authority shall thereupon cease. Code, s. 2171; C. C. P., s. 470. IX. ADVERTISEMENT FOR CREDITORS. 39. Advertisement for claims, when and how made: cost. Every executor, administrator and collector, within twenty days after the granting of letters, shall notify all persons having claims against the decedent to exhibit the same to such executor, administrator or collector, at or before a day to be named in such notice; which day must be twelve months from the day of the first publication of such notice. The notice shall be published once a week for six weeks in a newspaper, if any there be published in the county. If there shall be no newspaper published in the county, then the notice shall be posted at the courthouse and four other public places in the county. The cost of publishing in a paper shall in no case exceed two dollars and fifty cents. Code, ss. 1421, 1422; 1868-9, c. 113, s. 29; 1881, c. 278, s. 2. 40. How proved. A copy of the advertisement directed to be posted or published in pursuance of the preceding section with an affidavit, taken before some person authorized to administer oaths, of the proprietor, editor or foreman of the newspaper wherein the same appeared, to the effect that such notice was published for six weeks in said newspaper, or an affidavit stating that such notices were posted shall be filed in the office of the clerk by the executor, administrator or collector. The copy so verified or affidavit shall be deemed a record of the court, and a copy thereof, duly certified by the clerk, shall be received as conclusive evidence of the fact of publication in all the courts of this state. Code, s. 1423; 1868-9, c. 113, s. 31. 41. Notice may be served on creditor personally. The executor, administrator or collector may cause the notice to be personally served on any creditor, who shall, thereupon, within six months after personal service thereof, exhibit his claim, or be forever barred from maintaining any action thereon. Code, s. 1424; 1868-9, c. 113, s. 32; 1885, 96. X. INVENTORY. 42. Taken and returned within three months. Every executor, administrator and collector, within three months after his qualification, shall return to the clerk, on oath, a just, true and perfect inventory of all the real estate, goods and chattels of the deceased, which have come to his hands, or to the hands of any person for him, which inventory shall be signed by him and be recorded by the clerk. He shall also return to the clerk, on oath, within three months after each sale made by him, a full and itemized account thereof, which shall be signed by him and recorded by the clerk. Code, s. 1396; R. C., c. 46, s. 16; 1868-9, c. 113, s. 8. 43. How compelled. If the inventory and account of sale specified in the preceding section are not returned as therein prescribed, the clerk must issue an order requiring the executor, administrator or collector to file the same within the time specified in the order, which shall not be less than twenty days, or to show cause why an attachment should not be issued against him. If, after due service of the order, the executor, administrator or collector does not, on the return day of the order, file such inventory or account of sale, or obtain further time to file the same, the clerk shall have power to vacate the office of administrator, executor or collector. Code, s. 1397; 1868-9, c. 113, s. 9. Note. For additional remedy, see Crimes. 44. New assets inventoried. Whenever further property of any kind, not included in any previous return, shall come to the hands or knowledge of any executor, administrator or collector, he must cause the same to be returned, as hereinbefore prescribed, within three months after the possession or discovery thereof; and the making of such return of new assets, from time to time, may be enforced in the same manner as in the case of the first inventory. Code, s. 1398; 1868-9, c. 113, s. 10. XI. WHAT ARE ASSETS. 45. Distinction between legal and equitable abolished. The distinction between legal and equitable assets is abolished, and all assets shall be applied in the discharge of debts in the manner prescribed by this chapter. Code, s. 1406; 1868-9, c. 113, s. 14. 46. Trust estate in personalty. If any trustee, or any person interested in any trust estate, shall die leaving any equitable interest in personal estate which shall come to his executor, adminstrator or collector, the same estate shall be deemed personal assets. Code, s. 1403; 1868-9, c. 113, s. 11. 47. Crops ungathered at death. The crops of every deceased person, remaining ungathered at his death, shall, in all cases, belong to the executor, administrator or collector, as part of the personal assets, and shall not pass to the widow with the land assigned as dower; nor to the devisee by virtue of any devise of the land, unless such intent be manifest and specified in the will. Code, s. 1407; 1868-9, c. 113, s. 15. 48. What proceeds of real estate deemed personal assets. All proceeds arising from the sale of real property, for the payment of debts, as hereinafter provided, shall be deemed personal assets in the hands of the executor, administrator or collector, and applied as though the same were the proceeds of personal estate. Code, s. 1404; 1868-9, c. 113, s. 12. 49. What proceeds of real estate deemed real assets. All proceeds from the sale of real estate, as hereinafter provided, which may not be necessary to pay debts and charges of administration, shall, notwithstanding, be considered real assets, and as such shall be paid by the executor, administrator or collector to such persons as would have been entitled to the land had it not been sold. Code, s. 1405; 1868-9, c. 113, s. 13. 50. Personalty fraudulently conveyed recovered. If there be not sufficient real and personal assets of the deceased to satisfy all the debts and liabilities of deceased, together with the costs and charges of administration, the personal representative shall have the right to sue for and recover any and all personal property which the deceased may in anywise have transferred or conveyed with intent to hinder, delay, or defraud his creditors, and any money or property so recovered shall constitute assets of the estate in the hands of the personal representative for the payment of debts. But if the fraudulent alienee of deceased has sold the property or estate so fraudulently acquired by him to a bona fide purchaser for value without notice of the fraud, then such fraudulent alienee shall be liable to the personal representative for the value of the property and estate so acquired and disposed of. If the whole recovery from any fraudulent alienee of a decedent shall not be necessary for the payment of the debts of decedent and the costs and charges of administration of his estate, the surplus shall be returned to such fraudulent alience or his assigns. 51. Debt of executor not discharged by appointment. The appointing of any person executor shall not be a discharge of any debt or demand due from such person to the testator. Code, s. 1431; 1868-9, c. 113, s. 40. 52. Heirs jointly liable for debts, when. All persons succeeding to the real or personal property of a decedent, by inheritance, devise, bequest or distribution, shall be liable jointly, and not separately, for the debts of such decedent. Code, s. 1528; 1868-9, c. 113, s. 99. 53. Limit of liability of heir. No person shall be liable, under the preceding section, beyond the value of the property so acquired by him, or for any part of a debt that might by action or other due proceeding have been collected from the executor, administrator or collector of the decedent, and it is incumbent on the creditor to show the matters herein required to render such person liable. Code, s. 1529; 1868-9, c. 113, s. 100. 54. Recovery apportioned among heirs. In any such action the recovery must be apportioned in proportion to the assets or property received by each defendant, and judgment against each must be entered accordingly. Costs in such actions must be apportioned among the several defendants, in proportion to the amount of the recovery against each of them. Code, s. 1530; 1868-9, c. 113, s. 101. 55. Priority of debts as affecting liability of heir. Every person who is liable for the debts of a decedent must observe the same preferences in the payment thereof as are established in this chapter; nor shall the commencement of an action by a creditor give his debt any preference over others. Code, s. 1531; 1868-9, c. 113, s. 102. 56. Defense, other debts of equality or priority. The defendants in such action may show that there are unsatisfied debts of a prior class or of the same class with that in suit. If it appears that the value of the property acquired by them does not exceed the debts of a prior class, judgment must be rendered in their favor. If it appears that the value of the property acquired by them exceeds the amount of debts which are entitled to a preference over the debt in suit, the whole amount which the plaintiff shall recover is only such a portion of the excess as is a just proportion to the other debts of the same class with that in suit. Code, s. 1532; 1868-9, c. 113, s. 103. 57. Debts paid, estimated as unpaid in suit against heir, when. If any debts of a prior class to that in which the suit is brought, or of the same class, has been paid by any defendant, the amount of the debts so paid shall be estimated, in ascertaining the amount to be recovered, in the same manner as if such debts were outstanding and unpaid, as prescribed in the preceding section. Code, s. 1533; 1868-9, c. 113, s. 104. 58. Contribution among devisees, where heir is liable. The remedy to compel contribution shall be by petition or action in the superior court or before the judge in term time against the personal representatives, devisees, legatees and heirs also of the decedent, if any part of the real estate be undevised, within two years after probate of the will, and setting forth the facts which entitle the party to relief; and the costs shall be within the discretion of the court. Code, s. 1534; 1868-9, c. 113, s. 106. XII. WRONGFUL DEATH. 59. Action for wrongful death; recovery not assets. Whenever the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their executors, administrators, collectors or successors, shall be liable to an action. for damages, to be brought within one year after such death, by the executor, administrator or collector of the decedent; and this not |