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SEC. 314. [Action against executor.]-When it shall appear, on the representation of any person interested in the estate, that the executor or administrator has failed to perform his duty in any other particular than those before specified, the judge of probate may authorize any creditor, next of kin, legatee, or other person aggrieved by such mal-administration, to bring an action on the bond.
SEC. 315. [Prosecuting bond of executor.]-Whenever an executor or administrator shall refuse or omit to perform any order or decree made by a judge of probate having jurisdiction, for rendering an account or upon a settlement of any account, or for the payment of debts, legacies, or distributive shares, or for the delivery of specific legacies, such probate judge may authorize the party aggrieved by such refusal or omission to bring an action on the bond of such executor or administrator. [Amended, G. S. 338.]
SEC. 316. [Proceedings.]-In all suits upon such bonds as are mentioned in this subdivision the action shall be brought in the name of the party authorized to bring the same, or in the name of the guardian of such party; and in such action the plaintiff shall be entitled to recover such damages as he may have sustained to the amount of the bond and no more; and a-judgment in favor of a party for one delinquency shall not preclude the same, or another party, from an account on the same bond for other delinquencies; but the aggregate of all the recoveries on such bond cannot exceed the amount for which the bond was given. [Amended, G. S. 338.]
SEC. 317. [Copy of bond.]—On the application of any person authorized by this subdivision to commence a suit on such bond, the judge of probate may grant permission to such person to prosecute the same, and shall thereupon furnish to the applicant, on his paying the legal fee, a certified copy of the bond, together with a certificate that permission has been granted to prosecute it, and the name and residence of the applicant.
SEC. 318. [New administrator.] - When an executor or administrator shall, for any of the causes mentioned in this chapter, be removed from his trust, or shall die, or his authority shall otherwise be extinguished, and a new administrator shall be appointed, such new administrator shall be the party entitled to bring an action upon the bond of the former executor or administrator, for any damages sustained by reason of his neglect or refusal, or the neglect or refusal of his representatives, to turn over to such new administrator, pursuant to the order or decree of the probate court, or according to law, any estate remaining unadministered. [Amended, G. S. 338.
SEC. 319. [New guardian.]-When the guardian of a minor, insane person, or spendthrift shall be removed from his trust, shall die, or his authority shall otherwise be extinguished, and a new guardian shall be appointed, such new guardian shall be the party entitled to bring an action upon the bond of the former guardian, for any damages sustained by reason of his neglect or refusal, or the neglect or refusal of his representatives, to turn over to such new guardian, according to the order or decree of the probate court, or according to law, any estate of the ward. [Amended, G. S. 339.] SEC. 320. [Judgment.]-When an action is brought by any creditor, heir at law, next of kin, or legatee, or devisee, upon the bond of any executor or administrator, as provided in this chapter, the judgment thereon, if in favor of the plaintiff, shall be deemed a satisfaction, so far as such plaintiff is concerned, of so much of such order or decree, for the omission or refusal to perform which the judgment was rendered. [Id.] SEC. 321. [Money collected to be assets.]-When an action is brought pursuant to section three hundred and eighteen of this chapter, by any new administrator, the money collected therein by such new administrator shall be assets in his hands, to be administered according to law; and the probate court may make such new order or decree for the distribution thereof as the circumstances of the case may require. [[d.]
SEC. 322. [Actions barred.]—Whenever an action is rightfully brought by
BEC. 318. Duty of administrator de bonis non, who is the sole surety on bond of original administrator, to charge himself with the penalty of said bond as assets in his hands belonging to said estate. 21 Neb. 237. See also 24 Neb. 714.
any creditor, heir at law, next of kin, or legatee, pursuant to the provisions of this chapter, the same shall, so far as the causes of action therein are concerned, be a bar to any other case of action which might have accrued under the provisions of this chapter, but no farther; nor shall such bar arise from the failure of any such creditor, heir at law, next of kin, legatee [or] devisee to bring an action after the same shall have accrued and before the appointment of an administrator. [Id.]
CONVEYANCE OF REAL ESTATE BY EXECUTORS AND ADMINISTRATORS IN CERTAIN CASES.
SEC. 323. [Contracts enforced.]-When any person who is bound by a contract in writing to convey any real estate shall die before making the conveyance, the court may make a decree authorizing and directing the executor or administrator to convey such real estate to the person entitled thereto, in all cases where such deceased person, if living, might be compelled to execute such conveyance. [1867, 127.]
SEC. 324. [Petition.]-On the presentation of a petition, by any person claiming to be entitled to such conveyance from any executor or administrator, setting forth the facts upon which such claim is predicated, the judge shall appoint a time and place of hearing such petition, and shall order notice of the pendency thereof, and of the time and place of hearing, to be published at least six successive weeks before such hearing in such newspaper or newspapers in this state as he may deem necessary.
SEC. 325. [Hearing.]—At the time and place appointed for such hearing, or at such other time as the same may be adjourned to, upon proof by affidavit of the due publication of the notice, the court shall proceed to a hearing, and all persons interested in the estate may appear before the court and defend against such petition, and the court may examine on oath the petitioner, and all others who may be produced before them for that purpose.
SEC. 326. [Decree.]—After a full hearing upon such petition, and examination of the facts and circumstances of such claim, if the judge of the district court shall be satisfied that the petitioner is entitled to a conveyance of the real estate described in his petition, according to the provisions of this subdivision, he shall thereupon make a decree authorizing and directing the executor or administrator to make and execute a conveyance thereof to the petitioner.
SEC. 327. [Appeal.]-Any person interested may appeal from such decree to the district court for the same county, as in other cases, but if no appeal be taken from such decree within the time limited therefor by law, or if such decree be affirmed on appeal, it shall be the duty of the executor or administrator to execute the conveyance according to the direction contained in such decree; and a certified copy of the decree shall be recorded with the deed, in the office of the register of deeds in the county where the lands lie, and shall be evidence of the correctness of the proceedings, and of the authority of the executor or administrator to make the conveyance.
SEC. 328. [Dismissal of petition.]-If, upon a hearing in the district court as heretofore provided, the judge shall doubt the right of the petitioner to have a specific performance of the contract, he shall dismiss the petition without prejudice to the rights of the petitioner, who may at any time thereafter have a bill in chancery to enforce a specific performance of the contract, as hereinafter provided.
SEC. 323. Cited 19 Neb. 401.
SEC. 329. [Specific performance.]-Whenever any person who is bound by any contract to convey any real estate shall die before making the conveyance, the person entitled thereto may have a bill in the court of chancery to enforce a specific performance of the contract, by his heirs, devisees, or the executor or administrator of the deceased party who made such contract.
SEC. 330. [Proceedings.]—The court of chancery shall hear and determine every such case brought in said court, according to the course of proceedings in chancery, and shall make such decree therein as justice and equity shall, require.
SEC. 331. [Decree of conveyance.]—If it shall appear that the complainant is entitled to have a conveyance, the court may authorize and require the executor or administrator of the deceased party to convey the estate in like manner as the deceased party might and ought to have done if living; and if the heirs or devisees of such deceased person, or any of them, shall be within this state, and competent to act, the court may require them, or either of them, instead of the executor or administrator, to join in such conveyance with the executor or administrator.
SEC. 332. [Effect of conveyance.]-Every conveyance made in pursuance of a decree of the district court, or the court of chancery, as provided in this subdivision, shall be effectual to pass the estate contracted for, as fully as if the contracting party himself was still living and then executed the conveyance.
SEC. 333. [Record of decree.]-A copy of the decree for conveyance, made by the court, and duly certified and recorded in the office of the county clerk in the county where the lands lie, or a copy of the decree of the court of chancery for that purpose, duly certified by the clerk or register of that court, and recorded as aforesaid, shall give the person entitled to such conveyance a right to the possession of the lands contracted for, and to hold the same according to the terms of the intended conveyance, in like manner as if they had been conveyed in pursuance of the decree.
SEC. 334. [Same.]-The recording of any decree, as provided in the preceding section, shall not prevent the court making such decree from enforcing the same by any proper process according to the course of proceedings therein.
SEC. 335. [Death of person entitled to conveyance.]—If the person to whom the conveyance was to be made shall die before the commencement of proceedings according to the provisions of this subdivision, or before the conveyance is completed, any person who would have been entitled to the estate under him as heir, devisee, or otherwise, in case the conveyance had been made according to the terms of the contract, or the executor or administrator of such deceased person, for the benefit of the person so entitled, may commence such proceedings, or may prosecute the same, if already commenced, and the conveyance shall thereupon be so made as to vest the estate in the same persons who would have been so entitled to it, or in the executor or administrator for their benefit.
SEC. 335 a. [Completion of contracts made by a deceased person.]-When a person who has entered into a written contract for the sale and conveyance of an interest in land dies before the completion thereof, and his executor, administrator, or other legal representative desires to complete the contract, he may file a petition therefor in the district court of the county in which the land or any part thereof is situated; the application for hearing on such petition, and service of notice of the pendency of such action shall be made in the same manner as in actions against the representatives of a decedent to compel the conveyance of land, as provided in section 324 of chapter 23 of the compiled statutes, entitled "Decedents," and the heirs at law, devisees, or other legal representatives of the deceased vendor, when not plaintiffs must be made defendants in the action. [1889, § 1, chap. 60.]
SEC. 335 b. [Several contracts.]-When there is more than one of such contracts so made by such deceased vendor in his lifetime, although with different persons, and for different tracts of land, which the legal representatives of such deceased vendor desire to complete, such contracts may all be described and included in one petition, and deeds may be ordered to the different persons entitled thereto, as provided in the next section. [Id. § 2.]
SEC. 335 c. [Jurisdiction of court.]-The court, after causing to be secured to, and for the benefit of the estate of the deceased its just part and proportion of the consideration of the contract or contracts, may authorize the executors, administrator, or other legal representative to complete the same, and to execute a deed or deeds for
SECS. 335 a-c. "An act providing for the conveyance of real estate by executors and administrators in certain Saes." Passed and took effect March 12, 1889, Laws 1889, chap. 60.
and on behalf of the heirs at law, to the purchaser or purchasers which shall recite the order, and be as binding on the heirs at law, and all other persons interested, as if it or they had been made by the deceased in his lifetime. [Id. § 3.]
SEC. 336. [Death, etc., of executor.]-When an executor or administrator shall die, be removed from office, or resign, or when his letters shall be revoked during the pendency of any suit in which he is a party, the suit may be prosecuted by or against the executor or administrator appointed in his place, if any shall be appointed, in like manner as if it had originally been commenced by or against such last executor or administrator. [1869, § 1, 169. G. S. 342.]
SEC. 337. [Foreign executor.]-An executor or administrator duly appointed in any other state or county may commence and prosecute any action or suit in any court in this state, in his capacity of executor or administrator, in like manner and under like restrictions as a non-resident may be permitted to sue; Provided, That in case any executor or administrator shall have been appointed in this state, such person only shall be entitled to commence and prosecute actions or suits within this state in his capacity as such executor or administrator. [Amended 1885, chap. 48.]
SEC. 338. [Appeal by executor, no bond required.]-Every executor or administrator who may have given bond in this state, with surety agreeably to law, shall be authorized, in all cases of appeal from one court to another, by him made, to prosecute the same without filing an appeal bond, such appeal to be prosecuted to the district court as appeals are now taken from courts of justices of the peace. [G. S. § 3, 342.]
SEC. 339. [Jurisdiction of judge at chambers.]-The judge of the district court of the state may, upon the application of an executor, administrator, or guardian, to sell or dispose of the real estate of decedents, spendthrifts, or minors, hear and determine the same at chambers in vacation; Provided, That in all cases where the judge shall order a sale of any real estate, while sitting at chambers, he shall make out in writing a copy of said order, and cause the same to be filed in the office of the clerk of said court, and said clerk shall thereupon record said order, in the record book of said court, before any sale shall be made as aforesaid. [Id. § 4.]
SEC. 340. [Sale of partnership property.]-The county court which shall have issued letters testamentary or of administration upon the estate of a deceased partner may, upon due notice to all parties interested, authorize the executor or administrator of such deceased partner to sell at public auction his interest in the partnership property, and the surviving partner may be a purchaser at such sale the same as any disinterested party. The administrator or executor making such sale shall report his proceedings thereon to the court, and upon due notice to all persons interested, the court may confirm the sale, or, good reason therefor appearing, may set the same aside and order another sale. The court shall also direct the execution of such paper titles to the property sold as the circumstances require. [1883, § 1, chap. XXXIX.]
SEC. 341. [Accounting.]-The executor or administrator making such sale shall account for the partnership interest so sold at the price at which it shall be sold. [Id. § 2.]
SEC. 342. [Settlement.]-The executor or administrator of a deceased partner shall settle with the surviving partner all the dealings and transactions of the partnership as well as those remaining unsettled before the death of the deceased partner, as of the said parties thereafter, and shall present to the county court appointing such execu tor or administrator a full statement of the matter and manner of such settlement, and
SEC. 336. "An act in reference to executors and administrators and probate judges, and for disposing of the real estate of decedents, spendthrifts, or minors." Laws 1889, 169.
SEC. 337. If the plaintiff in a suit under this provision die, and the cause of action survive, the suit may be rerived in the name of his executor or administrator. 6 Neb, 522,
SECS. 340-343. "An act providing for selling the interests of a deceased partner and settling the accounts be tween him and his surviving partners." Took effect Feb. 28, 1883.
upon due notice to all parties interested, the said court shall examine, review, correct, approve, or dissalow such settlement. But if the said legal representatives of such deceased partner and the surviving partner cannot agree upon such settlement, the accounts of the dealings and transactions of the partnership shall be settled as heretofore. [Id. § 3.]
SEC. 343. [Special administrator.]—In case the executor or administrator of a deceased partner be also his surviving partner, the county court appointing him shall appoint a special administrator to discharge the duties herein provided, and his powers shall be limited thereto. Such appointment shall be made upon the same proceedings as are provided by law for the appointment of special administrators, when there is delay in the granting general letters testamentary or of administration. [Id. §4.]
SEC. 344. [Mortgaging real estate of intestate.]—The county judge may, upon proper showing by petition supported by competent testimony, showing that the best interests of the estate demand it, grant authority to the administrators of intestate estates to mortgage any real estate belonging to such estate, where mortgages existing on such real estate are due, or are about to become due, and there is no money belonging to such estate with which to pay or redeem such mortgages; Provided, That in no instance shall authority be granted by such county judge to such administrators to mortgage such real estate for a greater sum than the amount secured by the original mortgage. [1887, § 1, chap. 37.]
SEC. 345. [Same-Special administrator.]-That where no administrator has been appointed the county judge may appoint a special administrator to carry out the provisions contained in section 1 of this act. [Id. § 2.]
SECS. 344-345, "An act to permit county judges to grant authority to administrators of intestate estates to mortgage real estate for certain purposes, and if necessary, appoint special administrator therefor." Laws 1887, chap. 87. Took effect April 2, 1887.