Defence by Executor, etc., to action.

When defendant discharged, etc.

To what extent heirs liable.

such claim, the creditor shall have a 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 and personal property from the estate.

(2966.) SEC. 51. If an action shall be commenced against an executor or Administrator on such claim, as is mentioned in the forty-ninth section, and for the payment of which sufficient assets shall not have been retained, as before provided in this chapter, 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.

(2967.) SEC. 52. 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 be lawfully 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.

(2968.) SEC. 53. When the heirs, devisees or legatees shall have received real or personal estate, and shall be liable for any debts as mentioned in this chapter, 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. Contribution, etc.

When all persons liable not included in suit, oth ers may be brought in.

Proceeding in
Chancery.

(2969.) SEC. 54. 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.

(2970.) SEC. 55. If all the persons liable for the payment of any such debt shall not be included in the 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.

(2971.) SEC. 56. 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 Circuit 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.

deceased heir,

(2972.) SEC. 57. If any of the heirs, devisees or legatees, when Estate of shall die without having paid his just share of the debts, his etc., liable. estate shall be liable therefor, as for his own debt, to the extent to which he would have been liable if living.

(2973.) SEC. 58. When any of the heirs, devisees or legatees, Contribution. 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 case of devisees and legatees in the preceding sixty-eighth chapter.

to If appointment of

Commissioners

of omitted, claim

ants not prevent

(2974.) SEC. 59. If the appointment of Commissioners allow claims shall in any case be omitted, the Judge Probate shall perform the duties devolving upon such ed from suing. Commissioners by law, [and] no person, having any contingent or other lawful claim against a deceased person, shall thereby be prevented from prosecuting the same against the executor, Administrator, heirs, devisees or legatees, as provided by law, and in such case a claimant having a lien upon real or personal estate of the deceased, by attachment previous to his death, may, on obtaining judgment, have execution against such real or personal estate. (c)

are

be

No action to be:

prosecuted

against Execu tors, etc., except. this Chapter.

(2975.) SEC. 60. In no other case, except such as expressly provided for in this chapter, shall any action commenced or prosecuted against an executor or Administrator; as provided in 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 payment of debts, except in the case provided for in the preceding section.

An Act to Amend Chapter Seventy-Two of the Revised Statutes of Eighteen Hundred and Forty-
Six, Relative to Appeals from the Decision of Commissioners upon the Estate of Deceased Persons.

[Approved February 17, 1857. Laws of 1857, p. 466.]

(2976.) SECTION 1. The People of the State of Michigan enact,

(c) As Amended by Act 190 of 1850, Laws of 1850, p. 190.

Appeals.

See Sec. 2935.

That the following be added to chapter seventy-two, to stand as section sixty-one:

SEC. 61. If any person shall fail to appeal from the decision and report of Commissioners, in pursuance of section twenty of said chapter, he may be authorized to appeal in pursuance of section thirty, chapter ninety-one, of the Revised Statutes, in the same manner as in cases of appeals from orders or decrees of Judges of Probate.

SEC. 2. This act shall take immediate effect.

What Executor, etc., chargeable with.

To account for Personal Estate at appraisal.

Chapter Seventy-Three of Revised Statutes of 1846.

(2977.) SECTION 1. 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 which shall in any way come to his hands from the estate of the deceased.

(2978.) SEC. 2. 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 sections.

increase, or lose

etc., without his

(2979.) Sec. 3. An executor or Administrator shall not make Not to profit by profit by the increase, nor suffer loss by the decrease or des- by destruction, truction, without his fault, of any part of the personal estate; fault. 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.

Personal Esta t

(2980.) SEC. 4. The Probate Court, on the application of the when Sale of executor or Administrator, may, at any time, order the per- may be ordered, sonal 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 auction, the Probate Court shall direct the mode of giving notice of the time and place of sale.

to account for

(2981.) SEC. 5. When the executor or Administrator shall Executor, etc., sell personal estate, under an order of the Probate Court, he proceeds of Sale. shall account for the same at the price for which it shall be sold.

countable for

(2982.) SEC. 6. No executor or Administrator shall be when not acaccountable for any debts due to the deceased, if it shall appear debts due dethat they remain uncollected without his fault.

ceased.

income of Real

(2983.) SEC. 7. The executor or Administrator shall also bero account for accountable for the income of the real estate while it shall Estate. remain in his possession; and if he shall use or occupy any part of it, he shall account for it as may be agreed upon between him and the parties interested, or adjudged by the Probate Court with their assent; and if the parties shall not agree upon the sum to be allowed, the same 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.

accountable for

neglect.

(2984.) SEC. 8. When an executor or Administrator shall Executor, etc., neglect or unreasonably delay to raise money, by collecting loss occasioned by 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 unnecesssary cost or interest shall accrue, or the persons

Accounts, when to be rendered.

etc., to Execu

istrators.

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.

(2985.) SEC. 9. Every executor or Administrator shall render his 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 the debts shall be extended; and he shall render such further accounts of his administration from time to time, as shall be required by the Court, until the estate shall be wholly settled; and he may be examined on oath upon any matter relating to his

account.

Compensation, (2986.) SEC. 10. The executor or Administrator shall be tors and Admin- 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 compensation to his executor, that shall be deemed a 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.

Ibid

Bond may be put

in suit on neglect

(2987.) SEC. 11. When no such compensation shall be provided by the will, or the executor shall renounce all claim thereto, he shall be allowed commissions 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 shall deem just and reasonable, for any extraordinary services, not required of an executor or Administrator in the common course of his duty.

(2988.) SEC. 12. When an executor or Administrator, after to render ac- being duly cited by the Probate Court, shall neglect to render

count.

his account, he shall be liable on his bond for all damages

which may accrue, and his bond may be put in suit by any person interested in the estate.