to compel him to an account of his administration, and to pay the creditors what may be payable to them respectively. Code, s. 1448; 1871-2, c. 213; 1876-7, c. 241, s. 6. 105. What rules govern. The said special proceeding shall be governed by the rules of practice prescribed for special proceedings, except so far as the same are modified by this chapter. Code, s. 1449; 1871-2, c. 213, s. 2. 106. When and where summons returnable. The summons in said special proceeding shall be returnable before the clerk of the superior court of the county in which letters testamentary or of administration were granted, and on a day not less than forty nor more than one hundred days from the issuing thereof, and not less than twenty days after the service thereof. Code, s. 1450; 1871-2, c. 213, s. 3. 107. Clerk to advertise for creditors, when. On issuing the summons, the clerk shall advertise for all creditors of the deceased to appear before him on or before the return day and file the evidences of their claims. Code, s. 1451; 1871-2, c. 213, s. 4. 108. How advertisement published. The advertisement shall be published at least once a week for not less than four weeks in some newspaper which may be thought by the clerk the most likely to inform all the creditors, and shall also be posted at the courthouse door for not less than thirty days. If, however, the estate does not exceed three thousand dollars in value, and the creditors are supposed by the clerk all to reside within the county or to be known, publication in a newspaper may be omitted, and in lieu thereof the advertisement shall be posted at four public places in the county, besides the courthouse door. Proof of personal service on a creditor or that a copy of the advertisement was sent to him by mail at his usual address shall be as to him equivalent to publication. Code, s. 1452; 1903, c. 134; 1871-2, c. 213, s. 5. 109. Creditors to file claims; appoint agent. The creditors of the deceased on or before the required day shall file with the clerk the evidences of their demands, and every creditor on filing such claim shall endorse thereon or otherwise name some person or place within the town in which the court is held, upon whom or where notices in the cause may be served or left, otherwise he shall be deemed to have notice of all motions, orders and proceedings in the cause filed or made in the clerk's office. Code, s. 1453; 1871-2, c. 213, s. 6. 110. How claims proven. If the evidence of the demand be other than a judgment, or some writing signed by the deceased, it shall be accompanied by the oath of the creditor, or if he be nonresident or infirm or absent, or in any other proper case, of some witness of the transaction, or of some agent of the creditor, that to the best of his knowledge and belief the claim is just, and that all due credits have been given. Code, s. 1454; 1871-2, c. 213, s. 7. 111. Representative to file claims; notice to creditors. On the day of his appearance the personal representative shall on oath give to the clerk a list of all claims against the deceased of which. he has received notice or has any knowledge, with the names and residences of the claimants to the best of his knowledge and belief; and if any person so named shall have failed to file evidence of his claim, the clerk shall immediately cause a notice requiring him to do so to be served on him, which may be done by posting the same, directed to him at his usual address. Code, s. 1455; 1871-2, c. 213, s. 8. 112. Clerk to exhibit claims to representative. On the day fixed for the appearance of the personal representative, the clerk shall exhibit to him a list of all the claims filed in his office with the evidences thereof. Code, s. 1456; 1871-2, c. 213, s. 9. 113. Representative denying claim, notice to creditor. Within five days thereafter the defendant shall state in writing on said list, or on a separate paper, which of said claims he disputes in whole or in part. The clerk shall then notify the creditor, as above provided, that his claim is disputed, and the creditor shall thereupon file in the office of the clerk a complaint founded on his said claim, and the pleadings shall be as in other cases. Code, s. 1457; 1871-2, c. 213, s. 10. 114. Issues joined, cause docketed for hearing. If the issues joined be of law, the clerk shall send the papers to the judge of the superior court for trial, as is provided for by the chapter on Civil Procedure in like cases. If the issues shall be of fact, the clerk shall send so much of the record as may be necessary to the next term of the superior court for trial. Code, s. 1458; 1871-2, c. 213, s. 11. 115. Costs paid by representative personally, when. If any personal representative shall deny the liability of his deceased upon any claim evidenced as is provided in this chapter, and the issue shall finally be decided against him, the costs of the trial shall be paid by him personally, and not allowed out of the estate, unless it shall appear that he had reasonable cause to contest the claim and did so bona fide. Code, s. 1459; 1871-2, c. 213, s. 12. 116. Representative failing to appear, procedure. If the personal representative shall fail to appear on the return day, the clerk or judge of the superior court may permit him afterward to appear and plead on such terms as may be just. Code, s. 1460; 1871-2, c. 213, s. 13. 117. Clerk to state an account. Immediately after the return day the clerk or judge shall proceed to hear such evidence as shall be brought before him, and to state an account of the dealings of the personal representative with the estate of his deceased according to the course of his court. Code, s. 1461; 1871-2, c. 213, s. 14. 118. Account stated; examined; excepted to; signed. After the clerk shall have stated the account and prepared his report, he shall notify all the parties to examine and except to the same. Any party may then except to the same in whole or in part. The clerk shall then pass on the exceptions and prepare and sign his final report and judgment, of which the parties shall have notice. Code, s. 1462; 1871-2, c. 213, s. 15. 119. Either party may appeal; security given for costs. Any party may appeal from a final judgment of the clerk to the judge of the superior court in term time, on giving an undertaking with surety, or making a deposit, to pay all costs which shall be recovered against him. If any creditor shall appeal and give such security, his appeal shall be deemed an appeal by all who are damaged by the judgment, and no other creditor shall be required to give any undertaking. Code, s. 1464; 1871-2, c. 213, s. 17. 120. Papers filed; cause docketed for trial. On an appeal the clerk shall file his report and judgment and all the papers in his office as clerk of the superior court, and enter the case on his trial docket for the next terin. Code, s. 1465; 1871-2, c. 213, s. 18. 121. Certain creditors may docket judgments, when. If the exceptions and questions, from the decision on which the appeal is taken, affect only the creditors in one or more classes, the creditors in the prior classes by the leave of the clerk, or of the judge of the superior court, may docket their judgments and issue execution thereon. Code, s. 1466; 1871-2, c. 213, s. 19. 122. Judgment, if assets sufficient to pay a class. If upon taking the account it shall be admitted, or be found, without appeal, that the defendant has assets sufficient, after the deduction of all proper costs and charges, to pay all the claims which have been presented of any one or more of the classes, the clerk shall give judgment in favor of the creditors whose debts of such classes have been admitted, or adjudged by any competent court; and if any claim in any preferred class be in litigation, the amount of such claim, with the probable costs of the litigation, shall be left in the hands of the personal representative, and not carried to the credit of any subsequent class until the litigation is ended. Code, s. 1467; 1871-2, c. 213, s. 20. 123. Judgment, if assets insufficient to pay a class. If the assets be insufficient to pay in full all the claims of any class, the amounts thereof having been found or admitted as aforesaid, the clerk may adjudge payment of a certain part of such claims, proportionate to the assets applicable to debts of that class. Code, s. 1468; 1871-2, c. 213, s. 21. 124. What judgment contains; execution. All judgments given by a judge or clerk of the superior court against a personal representative for any claim against his deceased shall declare 1. The certain amount of the creditor's demand. 2. The amount of assets which the personal representative has applicable to such demand. Execution may issue only for this last sum with interest and costs. Code, s. 1469; 1871-2, c. 213, s. 22. 125. When judgment to fix with assets. No judgment of any court against a personal representative shall fix him with assets, except a judgment of the judge or clerk, rendered as aforesaid, or the judgment of some appellate court rendered upon an appeal from such judgment. All other judgments shall be held merely to ascertain the debt, unless the personal representative by pleading expressly admits assets. Code, s. 1470; 1871-2, c. 213, s. 23. 126. Form and effect of execution. All executions issued upon the order or judgment of the judge or clerk or of any appellate court against any personal representative, rendered as aforesaid, shall run against the goods and chattels of the deceased, and if none, then against the goods and chattels, lands and tenements of the representative. And all such judgments docketed in any county shall be a lien on the property for which execution is adjudged as fully as if it were against him personally. Code, s. 1471; 1871-2, c. 213, s. 24. 127. Report evidence of assets only as of its date. The account and report and adjudication by the judge, clerk or any appellate court shall not be evidence as to the assets except on the day to which such adjudication relates. Code, s. 1472; 1871-2, c. 213, s. 25. 128. Assets subsequent to report, how shown. Any creditor may afterwards, on filing an affidavit by himself or his agent that he believes that assets have come to the hands of the personal representative since that day, and on giving an undertaking, with surety, or making a deposit for the costs of the personal representative, may sue out a summons against him alleging subsequent assets, and the proceedings thereon shall be as hereinbefore prescribed, so far as the same may be necessary. Code, s. 1473; 1871-2, c. 213, s. 26. 129. Suit for accounting or debt brought to term. In addition to the remedy by special proceeding, actions against executors, administrators, collectors and guardians may be brought originally to the superior court at term time; and in all such cases it shall be competent for the court in which said actions shall be pending to order an account to be taken by such person or persons as said court may designate, and to adjudge the application or distribution of the fund ascertained, or to grant other relief, as the nature of the case may require. Code, ss. 215, 1511; 1876-7, c. 241, s. 6. 130. Personal assets insufficient, land proceeded against. If it shall appear at any time during, or upon, or after the taking of the account of a personal representative that his personal assets are insufficient to pay the debts of the deceased in full, and that he died seized of real property, it shall be the duty of the judge or clerk, at the instance of any party, to issue a summons in the name of the personal representative or of the creditors generally, to the heirs, devisees and others in possession of the lands of the deceased, to appear and show cause why said lands should not be sold for assets. Code, s. 1474; 1871-2, c. 213, s. 27. |