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Patten v. Glover, 1 D. C. App.,

132; Ib., Md. act,

Stat., p. 25.

Sec. 347. And if any action shall be commenced against an executor or administrator for the recovery of a larger debt or damages than he shall think due, so that the same can not be ascertained before verdict, the executor or administrator shall be allowed to retain such sum to meet Tb., Md. act, the said debt or damages as the probate court shall allow, Stat., p. and if more than enough be allowed, the party shall afterwards account for it, but nothing shall be retained on account of such further debt or damages where the court shall be satisfied that there will be money sufficient coming in after such dividend to meet the said damages, or a just proportion thereof, regard being had to other claims. Sec. 348. If a claim be exhibited against an executor or 466; 21 D.C. App., administrator which he shall think it his duty to dispute sec. 18; Comp. or reject, he may retain in his hands assets proportioned to the amount of the claim, which assets shall be liable to other claims, or to be delivered up or distributed in case the claim be not established; and if on any claims exhibited and disputed as aforesaid the creditor or claimant shall not, within nine months after such dispute or rejection, commence a suit for recovery the creditor shall be forever barred; and the executor or administrator may plead this section in bar, together with the general issue or other plea proper to bring the merits of the cause to trial; and on any dividend to be made nine months after such dispute or rejection and failure to bring suit the executor or administrator may proceed to pay or distribute as if he had not knowledge or notice of such claim or as if it did not exist; but if the claim be put in suit within the nine months it may be ascertained by verdict or otherwise, and the court shall proceed as herein directed, regard being had to the rules herein laid down as to the notice to be given by the executor or administrator and distribution or payment be made after such notice.

Ib., Md. act, sec. 15; Comp. Stat., p. 24.

Sec. 349. CLAIMS MADE AFTER DISTRIBUTION.-In case all the assets have been paid away, delivered, or distributed as herein directed, and a claim shall afterwards be exhibited of which the executor or administrator hath not knowledge or notice by the exhibition of the claim legally authenticated, as herein required, he shall not be answerable for the same; and if he be sued for any claim and shall make it appear to the court in which suit is brought that he hath so paid away, delivered, or distributed, and the plaintiff can not prove that the defendant had notice as aforesaid before such payment, delivery, or distribution, the court shall not proceed to give judgment (although the amount of the claim against the deceased may be ascertained) until the plaintiff shall be able to show further assets coming into the defendant's hands, but if the plaintiff shall prove notice, as aforesaid, of the said claim against the defendant, judgment may be immediately given for such sum as the plaintiff ought to have received at the dividend, and fieri facias may issue and have effect, and further judgment may be given on coming in of further assets,

Sec. 350. NOTICE TO CREDITORS TO FILE CLAIMS.-No, Ib., Md. act, sec. 13; Comp. Stat., executor or administrator who shall, after the lapse of one p.' year after the date of his letters, have paid away assets to the discharge of just claims shall be answerable for any claim of which he had no knowledge or notice by an exhibition of the claim legally authenticated: Provided, That at least six months before he shall make distribution he shall have caused to be inserted in so many newspapers as the probate court may direct an advertisement as follows, or fully to the following effect, namely:

hath obtained from the probate

This is to give notice that the subscriber, of. court of the District of Columbia letters testamentary (or of administration) on the personal estate of ...., late of.. ........., deceased. All persons having claims against the deceased are hereby warned to exhibit the same, with the vouchers thereof legally authenticated, to the subscriber on or before the day of ...... next; they may otherwise by law be excluded 'rom all benefit of said estate. "Given under my hand this day of

Sec. 351. REPORT AND PROOF OF NOTICE.-The execu tor or administrator may report to the court, with an affidavit of the proof thereof annexed, the fact of having given such notice, and the court, on being satisfied that [their] its order has been complied with and the said notice has been given, shall indorse on said report [their] its certificate that it has been proven to their satisfaction that said notice hath been given as therein reported, and shall order said report and certificate to be recorded among the records of the court.

Sec. 352. The said report and certificates shall be prima facie evidence, in all cases whatever, of the giving of such notice as therein stated.

Sec. 353. A copy of said report, certificate, and order, under the seal of the register of wills, shall be legal and competent evidence.

Sec. 354. DOCKET OF CLAIMS.-The register of wills shall enter in a suitable book, to be provided by him for that purpose, all claims against a decedent as they are regularly passed by the probate court, giving the date of the passage, the name of the creditor, the character of such claim, whether on note or open account, bond, bill, obligation, judgment, or other evidence of debt, and the amount thereof, and the entry of a claim upon such docket shall be taken as notice to the executor or administrator of its existence.

Sec. 355. The claim thus entered shall not afford any evidence as to the justice or correctness of any debt therein entered whenever the same shall be controverted by an executor or administrator in any suit instituted for the recovery of such debt; nor shall the same be construed to take any debt out of the operation of a plea of limitations. Sec. 356. PRIORITIES. In paying the debts of a dece-,.14 D. C. App.. dent, after the payment of funeral expenses according to lb., Md. act, sec. the condition and circumstances of the deceased, not ex- p. 25. ceeding six hundred dollars, an executor or administrator shall observe the following rules: Claims for rent in arrear against deceased persons, for which an attachment might be levied by law, shall have preference. Judgments and

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1; 34 L. R., 261;

17; Comp. Stat.,

Ib., Md. act, sec. 6; Comp. Stat., p. 30.

decrees of courts in the District of Columbia shall next be wholly discharged. After such claims for rent, judgments, and decrees shall be satisfied, all other just claims shall be on an equal footing without priority or preference. If there be not sufficient to discharge all such judgments and decrees, a proportionate dividend shall be made between the judgment and decree creditors.

Sec. 357. No CLAIMS TO BE NOTICED UNLESS LEGALLY AUTHENTICATED.-No executor or administrator shall be bound to discharge any claim against his decedent unless the same shall be exhibited to him, legally authenticated, or unless such claim shall have been passed by the probate court and entered by the register of wills upon his docket.

Sec. 358. MEETING OF CREDITORS.-Any executor or administrator shall be entitled to appoint a meeting of creditors on some day by the court approved, and passage of claims, payment, or distribution may be there made under the court's direction and control.

Sec. 359. DISTRIBUTION OF RESIDUE.-Whenever it shall appear by the first or other account of an executor or administrator that all the claims against, or debts of, the decedent which have been known by or notified to him have been discharged or allowed for in his account, it shall be his duty to deliver up and distribute the surplus or residue of the personal estate not disposed of by any will, as hereinafter directed: Provided, That his power and duty with respect to future assets shall not cease; and after such delivery he shall not be liable for any debts afterwards notified to him, provided he shall have advertised as herein before directed, unless assets shall afterwards come into his hands which shall be answerable for such debts.

Sec. 360. SUITS ON BONDS AGAINST HEIRS.-No creditor by a bond which purports to bind the heirs of the obligor shall be entitled to sue the heirs at common law in respect of assets descended to them, but debts by specialty and by simple contract, without distinction, shall be payable primarily out of the personal estate, and, if that be insufficient, shall be payable equally and without preference out of the proceeds of the real estate.

Subchapter VII.-ACCOUNTS.

Humphry v. Sec. 361. FIRST ACCOUNT WITHIN TWELVE MONTHS.Conger, 7 D. C. App., 23; Comp. Every executor and administrator shall render to the proStat., p. 21. bate court within the period of twelve months from the date of his letters the first account of his administration.

Ib., Md. act, sec. 3; Comp. Stat., p. 30.

Sec. 362. SUBSEQUENT ACCOUNTS.-If the first account shall not show the estate which was on hand to be fully administered, other accounts shall be rendered from time to time until the estate is fully administered under such rules as the supreme court of the District may establish.Act of June 30, 1902 (32 Stat., Part I, p. 529).


[Sec. 362. SUBSEQUENT ACCOUNTS.-If the first account shall not show the estate which was on hand to be fully administered, another account shall be returned within six months thereafter, and within every term of six months thereafter an account shall be returned until the estate shall appear to be fully administered; and whenever a discovery or receipt of assets shall take place after rendering an account another account shall be rendered within six months thereafter; but an administrator shall not be obliged to render accounts when it appears to the court that the estate has been fully administered, except as to debts which the court shall deem desperate.]

Sec. 363. FAILURE TO ACCOUNT.-If an executor or administrator shall fail to return an account within the time limited by law or fixed by the rules of the court, or within such further time as the probate court shall allow, his letters, on application of any person interested, may be revoked and administration granted at the discretion of the court.-Act of June 30, 1902 (32 Stat., Part I, p. 529).


[Sec. 363. FAILURE TO ACCOUNT.-If an executor or administrator shall fail to return an account, as before directed, within the time limited by law, or within such further time as the probate court shall allow, not exceeding six months, his letters, on application of any person interested, may be revoked, and administration may be granted at the discretion of the court; and the administrator to whom letters may be granted shall be entitled to put the delinquent's bond in suit, and to recover such damages thereon as the jury may find; and in assessing such damage the jury shall allow such sum as will be equal to six per centum per annum on the amount of the inventory or inventories from the time of the return or returns to the time of the verdict over and beyond the damages for such loss or injury as the estate may have sustained by the delinquent's conduct.]

Sec. 119; 3 D. C. App., 456; 5 D. C. App., 276 7 D. C. App., 23; ib., Md.

act, sec. 9; Comp. Stat p. 31.

2 D. C. App.;

2 D. C. App., 455;

24 S. C. Rp., 196;

1; Comp. Stat.,

Sec. 364. ASSETS TO BE CHARGED.-In such account Nash v. Ober, shall be stated, on one side, the assets which have come Mades v. Miller, to his hands, according to the inventory or inventories 14 D. C. App. returned to the court or received and appraised as herein 337192 S., 116 directed, after the inventory or inventories returned, and Ib., Md. act, sec. the sales made under the court's direction-that is to say, p. 29. the inventory or inventories are to show the articles of the estate, and the sales the amount of their value, where they have been sold, and for articles so sold he shall be charged the price according to the return; and if any articles have been sold for credit and not yet paid for they shall be accounted for in a subsequent account, and all moneys received for debts due the decedent shall be included in said account.

337, 1; 30 L. R., 9; 19 D. C. App.,

sec. 2: Comp.

Sec. 365. DISBURSEMENTS AND ALLOWANCES.-On the 14 D. C. App., other side shall be stated the disbursements by him made, 288; 22 D.C. APP.; namely: First. Funeral expenses, to be allowed at the 463; 18 D.C. App., discretion of the court, according to the condition and cir- 225; b, Md. act, cumstances of the deceased, not exceeding [six] three Stat.. p. 29. hundred dollars: Provided, That for special cause shown the court may make such additional allowance not exceeding three hundred dollars, as such special circumstances may warrant. Second. The debts of the deceased proved or passed as herein directed, and paid or retained. Third.

Sinnott v. Kenady, 14 D. C.

App. 342; ib.,

The allowance for things lost, or which have perished without the party's fault, which allowance shall be according to the appraisement. Fourth. His commissions, which shall be at the discretion of the court, not under one per centum nor exceeding ten per centum on the amount of the inventory or inventories, excluding what is lost or perished. Fifth. His allowance for costs, attorneys' fees, and extraordinary expenses which the court may think proper to allow. (32 Stat., Part 1, p. 529.)

Sec. 366. BEQUESTS TO EXECUTORS.-If anything be App., 1; 25 D. C. bequeathed to an executor by way of compensation, no Md. act, sec. 5; allowance of commission shall be made unless the said Comp. Stat., p.30. compensation shall appear to the court to be insufficient; and if so, it shall be reckoned in the commission to be allowed by the court.

Sec. 123; Mades

v. Miller, 2 D. C.

(Repealed-32 Stat., Part I, p. 530.)

[Sec. 367. LIST OF DEBTS.-Every executor or administrator may within one year after the date of his letters, return to the probate court a list of the debts due from his decedent which may be made known to him, stating the principal and the time at which interest is to commence on each respective debt, to which list of debts shall be annexed the oath of the administrator that the same is a correct list of the debts due from his decedent so far as the said debts have come to his knowledge; and every six months thereafter until the estate may be finally settled a similar return may be made of such debts as shall come to the knowledge of the executor or administrator within that period, which list of debts shall be recorded by the register of wills, and a copy thereof, certified under the hand of the register of wills and the seal of his office, shall be prima facie evidence of the amount of debts due by the decedent in any court where the administrator alleges that he has not assets sufficient to discharge the claim in controversy or any part thereof.]

[Sec. 368. Such lists shall not afford any evidence of the justice or correctness of any claim therein when controverted by the executor or administrator in any suit instituted for the recovery of such debt, nor shall the same be construed to take any debt out of the operation of any plea of limitation.]

Sec. 369. INVESTMENT OF FUNDS.-Whenever, under App., 455, 25 D. the provisions of a will, it shall be necessary for an exC. App., 342; 26 D. C. App. 283; ecutor or an administrator cum testamento annexo to Md act 1789, retain in his hands the personal estate or any part thereof Comp. Stat., p. after all just claims are discharged, as where money or

ch. 101, sec. 11;


some other thing is directed to be paid at a distant period or upon a contingency, the probate court shall have the power, on the application of such executor or administrator or of a party interested, to decree or give directions in relation thereto; and it shall be the duty of said executor or administrator to apply to the said probate court, and the said court shall have full power to decree or direct what part of the personal estate shall be retained or appropriated for the purpose and in what manner it shall be disposed of, and the legacy or benefit intended by the will shall be secured to the person to be entitled at a future period or contingency, and how the necessary part of the personal estate to be appropriated for the purpose shall be prevented from lying dead or being un

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