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tions to the account since he is not a person interested in the estate. But even in the absence of objections, the court should carefully scrutinize the account and reject all claims which are illegal or unjust.75 The probate court has the power to determine whether any items of expense or disbursement are proper to be allowed.76

§ 1580. How Objections to an Account Should Be Stated.

Where the statute prescribes no rules of practice as to objections to an account, the better procedure seems to be that the account and the objections thereto represent the pleadings of the parties and that the issues to be tried are to be determined therefrom, the objecting parties being required to specify the particular items to which they take exception and to state any matters of fact in connection therewith upon which they rely for the purpose of attaching liability to the representative." Where the alleged exceptions to the account do not object to the account in any particular, but in effect constitute a demand that the executors be required to do their duty by paying a sum of money to the excepting parties, such exceptions can not be allowed. If the rule were otherwise, any creditor might take a like exception to the

74 Estate of Kruger, 143 Cal. 141, 145, 76 Pac. 891.

75 Estate of Sanderson, 74 Cal. 199, 210, 15 Pac. 753; Estate of Franklin, 133 Cal. 584, 587, 65 Pac. 1081; Estate of Willey, 140 Cal. 238, 243, 73 Pac. 238.

76 Dodson v. Nevitt, 5 Mont. 518, 6 Pac. 358.

77 Estate of Sylvar, 1 Cal. App. 35, 37, 81 Pac. 663; Estate of San

derson, 74 Cal. 199, 205, 15 Pac. 753; In re Heuser's Estate, 87 Hun (N. Y.) 262, 33 N. Y. Supp. 831; Peck v. Sherwood, 56 N. Y. 615; In re Conser's Estate (Warren v. Hendricks), 40 Ore. 138, 66 Pac. 607; In re Roach's Estate, 50 Ore. 179, 92 Pac. 118; In re Hart's Estate, 203 Pa. St. 480, 53 Atl. 364.

account, seek to establish the validity of his claim and demand its payment.78

§ 1581. Statute of Limitations Does Not Apply, but Laches May Be Urged.

The duty to account is a continuing one and in an action for an accounting the plea of limitations is not open either to an executor or administrator, to the sureties on his bond, or to the personal representative of a deceased executor or administrator." Any assets of the estate coming into the hands of the personal representative and not disbursed or distributed by him, are impressed with a trust in favor of the beneficiaries entitled thereto, and while the trust continues the statute of limitations does not begin to run. But although the statute of limitations may be inapplicable, yet the defense of laches may be raised. Whenever one neglects or omits to assert a right for an extended period of time, the defense of laches becomes a bar where circumstances have arisen which have altered the situation of the parties, or where acts done during the interval injuriously affect either party so that an enforcement of the demand would result in injurious consequences directly referrable to such changed conditions and to the delay.80 Although a party have a provable claim against an estate, yet, if without sufficient cause he neglects to prove and exhibit it in due time, it may be that in a subsequent attempt to pursue

78 Carey v. Monroe, 54 N. J. Eq. 632, 35 Atl. 456.

79 Elizalde v. Murphy, 163 Cal. 681, 126 Pac. 978; Estate of Sanderson, 74 Cal. 199, 215, 15 Pac. 753; Fuller, Probate Judge, v.

Cushman, 170 Mass. 286, 49 N. E. 631; Daves v. Eastman, 68 Vt. 225, 35 Atl. 73.

80 Wollaston v. Tribe, L. R. 9 Eq. 44, 50; Constable v. Camp, 87 Md. 173, 39 Atl. 807.

the assets into the hands of the legatees or distributees he will be successfully met with the defense of laches.81

§ 1582. Personal Representative May Explain Loss, but Can Not Make a Profit out of the Estate.

The personal representative stands charged with the appraised value of the estate, but it is not conclusive, for if there has been a loss, he may explain the loss and receive credit therefor. It is incumbent upon him, however, to show the cause and reason for such loss and that it was incurred without his fault. 82 Under no conditions, however, is he entitled to make a personal profit by dealing with the assets of the estate. 88 Any balance which remains in the hands of the personal representative after paying creditors a pro rata dividend as ordered by the court, belongs to the estate and is not the property of the representative, even though there was a contest and a settlement as to the amount of the dividend to which the creditors were entitled. If the amount is fixed by a compromise, any balance is the property of the estate and not that of the personal representative, since he can not be allowed to make a profit for himself by buying in claims of the estate or by paying them at a discount.84 Where the court has ordered a pro rata dividend to be paid to the creditors of the estate, the personal representative! has no authority to demand that they execute a receipt in full of their claims. He has no authority to demand'

81 Zollickoffer v. Seth, 44 Md. 359.

82 Ex parte Jones, 4 Cranch C. C. 185, Fed. Cas. No. 7443; Mussey v. Sanborn, 15 Mass. 155; In re Jones, 1 Redf. (N. Y.) 263.

As to the operation and effect of the inventory, see § 1410.

As to the operation and effect of the appraisement, see § 1411. 83 See § 1509.

84 Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12.

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of the creditors that they should relinquish their right to participate in the future assets of the estate as a condition of receiving the money directed to be paid to them."

85

§ 1583. Where Representative Fails to Account: Suit on Bond. Where a personal representative who has been cited to file an account fails so to do, unless the statute prescribes that a decree first be entered requiring the representative to file an account before leave can be granted to bring suit on his bond, the fact that the record shows that after citation he has failed to file an account is sufficient to authorize the court to grant leave to bring an action on his bond. This may be done without notice to the representative or his sureties, but they are not precluded from any defense which may be open to them.86

§ 1584. Suit by Creditor Against Distributees of Estate.

Where a claim against the decedent does not arise until after his estate has been settled, it being impossible in such a case to present the claim to the probate court for allowance, the claimant should recover what is due him from the heirs or next of kin if the decedent died intestate, or from the legatees and devisees of a testate decedent, to an amount not exceeding the value of the property which they received from the estate. But the rules for the payment of debts must be taken into consideration; and in a suit against the distributees of an estate for the collection of a claim against the decedent, the rule that the personal property of the estate is primarily liable for the payment of debts and that the realty may not be Cushman, 170 Mass. 286, 49 N. E. 631.

85 Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12.

86 Fuller,

Probate Judge, V.

87 Forbes v. Harrington, 171 Mass. 386, 50 N. E. 641.

resorted to unless the personalty is insufficient for such purpose, and the further rule that residuary and general legacies must be resorted to for the payment of debts before demonstrative or specific legacies are liable, should determine among the distributees upon whom the primary obligation rests for the payment of such claim.88

88 Constable ▼, Camp, 87 Md. 173, 39 Atl. 807.