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 giving 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. 46 N. W. R.717. SEO. 272. A mortgagee cannot be compelled to relinquish his lien and share in the general assets of the estate. Neb. 00.

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 ex"ecutor 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 mount du 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 shall deem just and reasonable for any extraordinary services not required of an executor or administrator in the common course of his duty.

SEC. 285. [Citation to executor.]-Every executor or administrator may be cited by the probate court to render account of his administration at any time after the expiration of six months from the time of his receiving letters testamentary or of administration, when it is made to appear to the satisfaction of the probate court by the application, under oath, of any party interested in the estate, that there are assets in the hands of such executor or administrator, the whole or any portion of which ought to be immediately decreed to be paid to such applicant. Every executor or administrator failing to render his account within one year, as required by section two hundred and eighty-two of this chapter, may be cited by such court to render such account upon the application, under oath, of any party interested in the estate. When a new administrator shall be appointed in the place of any former executor or administrator of the same estate, the probate court shall have power, upon the application of such new administrator, to cite such former executor or administrator to render account of his administration; and such order or decree thereupon as may be proper shall be made by such court, requiring such former executor or administrator to turn over and deliver to such new administrator any estate or effects remaining in the hands of such former executor or administrator unadministered. When an executor or administrator, after being duly cited by the probate court, shall neglect to render his account, or shall render a false account, he shall be liable on his bond for all damages that may accrue, and such court may also proceed against him as for a contempt, in like manner as in cases in other courts of record. An executor or administrator shall not be cited as herein provided, when there shall be in force an order of such court giving him permission to delay the rendering of his account. [Amended, G. S. 332.]

SEC. 286. [Costs.]-When costs are allowed in any case against an executor or administrator, execution shall not issue against the estate of the deceased in his hands therefor, but shall be awarded against him as his own debt; and the amount paid by him shall be allowed in his administration account, unless it shall appear that the suit or proceeding in which the costs shall be taxed shall have been prosecuted or resisted without just cause.

SEC. 287. [Notice.]-Before the administration account of any executor or adninistrator shall be allowed, notice thereof shall be given to all persons interested of the time and place of examining and allowing the same, and such notice may be given personally to such persons as the judge of probate shall judge to be interested, or by public notice under the direction of the court; Provided, That if notice to creditors to present their claims and demands against such estate has been duly given as provided by law, and such time has fully expired, and no claims have been filed against such estate, or in case claims have been so filed against such estate, but the same have been fully paid and satisfied by such executor or administrator under the order of the court, and such estate is fully solvent, then, in either case, the county court may, on the written request of the heirs of such estate, settle with such executor or administrator, without either public or personal notice being given to such heirs of such settlement, shall be as valid as though public and personal notice had been given as required by law; Provided further, That nothing in this section contained shall be construed to include any debt against any deceased person which may be secured by a mortgage or other lien by reason of which such debt may be secured, and in such case such creditor may rely on his security; Provided further, That nothing herein contained shall be construed to prevent any creditor from prosecuting such claim to the court for allowance against such estate if an administrator thereof has been appointed within three years next after the death of such person. [Amended 1887, chap. 36.]

PARTITION AND DISTRIBUTION OF ESTATES.

SEC. 288. [Allowance to children.]-Before any partition or division of any estate among the heirs, devisees, or legatees, as provided in this subdivision, the probate court shall make an allowance for the necessary expenses of the support of any

SECS. 288-292. Cited 26 Neb. 68.

children of the deceased under seven years of age; and it shall be the duty of the executor or administrator to retain in his hands sufficient estate for that purpose, except when some provision is made by will for their support. [Amended, G. S. 333.]

SEC. 289. [Assignment of estate.]-After the payment of the debts, funeral charges, and the expenses of administration, and after the allowances made for the expense of the maintenance of the family of the deceased, and for the support of the children under seven years of age, and after the assignment to the widow of her dower, and of her share in the personal estate, or when sufficient assets shall be reserved in the hands of the executor or administrator for the above purposes, the county court shall, by a decree for that purpose, assign the residue of the estate, if any, to such other persons as are by law entitled to the same. [Amended and took effect March 1, 1881.] SEC. 290. [Decree.]—In such decree the court shall name the persons, and the proportions or parts to which each shall be entitled, and such persons shall have the right to demand and recover their respective shares from the executor or administrator, or any person having the same.

SEC. 291. [Same-Bond from heirs, etc.]-Such decree may be made on the application of the executor or administrator or of any person interested; but no heir, devisee, or legatee shall be entitled to a decree for his share until payment of the debts and allowances and expenses mentioned in the preceding section shall have been made or provided for, unless he shall give a bond to the county judge, with such surety or sureties as he may direct, to secure the payment of the just proportion of such heir, devisee, or legatee of such debts and expenses, or such part thereof as shall remain unprovided for, and to indemnify the executor or administrator against the same. Amended and took effect March 1, 1881.]

SEC. 292. [Partition.]—When such estate shall consist in part of real estate, and shall descend to two or more heirs, devisees, or legatees, and the respective shares shall not be separate and distinguished, partition thereof may be made as provided by law. [Amended and took effect March 1, 1881.]

SECS. 293-303. [Repealed by 1881, 235.]

SEC. 304. [Appeal.]-Any person aggrieved by an order, decree, or denial of a court in pursuance of the provisions of this subdivision, may appeal therefrom as provided for in other cases.

SEC. 305. [Confirmation.]-The partition, when finally confirmed and established, shall be conclusive on all the heirs and devisees, and all persons claiming under them, and upon all persons interested.

SECS. 306-310. [Repealed by 1881, 235.]

PROBATE BONDS, AND THE PROSECUTION OF THEM.

SEC. 311. [How given.]-All bonds required by law to be taken in or by order of the probate court shall be for such sum and with such sureties as the judge of probate shall direct, except when the law otherwise prescribes; and such bonds shall be for the security and benefit of all persons interested, and shall be taken to the judge of probate except where they are required by law to be taken to the adverse party. [R. S. 123. G. S. 337.]

SEC. 312. [Suit on bond.]-A suit may be brought on the bond of an executor or administrator by any creditor, when the amount due to him has been ascertained and ordered by the decree of distribution to be paid, if the executor or administrator shall peglect to pay the same when demanded.

SEC. 313. [By whom brought.]-Such a suit may be brought by any person as next of kin to recover his share of the personal estate, after a decree of the probate court declaring the amount due to him, if the executor or administrator shall fail to pay the same when demanded.

SEC. 289. Cited 12 Neb. 281.

SEO. 811. The omission to personally name the judge will not invalidate the bond. 9 Neb. 293.