No suit to be

or Administrator,

ment, etc.

(2930) SEC. 15. When Commissioners shall be appointed, commenced as provided in this chapter, for examining and allowing claims against Executor against any estate, no action shall be commenced against the except eject executor or Administrator, except actions of ejectment, or other actions to recover the seizin or possession of real estate, and actions of replevin, nor shall any attachment or execution be issued against the estate of the deceased, until the expiration of the time limited by the Court for the payment of debts.

to be prosecuted

judgment to be

(2931.) SEC. 16. All actions and suits which may be pending Actions pending against a deceased person at the time of his death, may, if the to judgment, and cause of action survives, be prosecuted to final judgment, and certified, etc. the executor or Administrator may be admitted to defend the same, and if judgment shall be rendered against the executor or Administrator, the Court reudering it shall certify the same to the Probate Court, and the amount thereof shall be paid in the same manner as other claims duly allowed against the estate.

ministrator not

bringing suits.

(2932.) Sec. 17. Nothing in this chapter shall be construed Executor or Adto prevent an executor or Administrator, when he shall think prevented from it necessary, from commencing and prosecuting any action. against any other person, or from prosecuting any action commenced by the deceased in his lifetime, for the recovery of any debt or claim, to final judgment, or from having execution on any judgment.

Executors, etc.

(2933.) SEC. 18. In such case, the defendant may set off any Set-offs in suits by claim he may have against the deceased, instead of presenting it to the Commissioners, and all mutual claims may be set off in such action; and if final judgment shall be rendered in favor of the defendant, the same shall be certified by the Court rendering it to the Probate Court, and the judgment shall be considered the true balance.

(2934.) SEC. 19. When two or more persons shall be indebted Joint contract. on any joint contract, or upon a judgment founded on a joint-2 Mich. Rep., 105 contract, and either of them shall die, his estate shall be liable therefor, and it may be allowed by the Commissioners, as if the contract had been joint and several, or as if the judgment had been against him alone, and the other parties to such, joint contract may be compelled to contribute or to pay the same, if they would have been liable to do so upon payment thereof by the deceased.

Appeal, how made.

See Sec. 2976.

Bond to be given

by claimant appeal.

on

2 Mich. Rep., 337.

Cases in which appeal may be allowed.

Notice of appeal and of hearing.

to procure and

cord.

OF APPEALS FROM THE DECISION OF COMMISSIONERS.

(2935.) SEC. 20. Any executor, Administrator or creditor, may appeal from the decision and report of the Commissioners, to the Circuit Court for the same county, if application for such appeal be made in writing, filed in the Probate Office within sixty days after the returning of the report of the Commissioners.

(2936.) SEC. 21. In case of an appeal by a claimant against the estate, he shall, within the time aforesaid, and before such appeal shall be allowed, give a bond to the adverse party, with sufficient surety to be approved by the Judge of Probate, and filed in his office, with a condition that he shall prosecute his appeal to effect, and pay all damages and costs which may be awarded against him on such appeal.

(2937.) SEC. 22. No appeal shall be allowed from the decision and report of the Commissioners, except in the following cases:

1. When such Commissioners shall disallow any claim in favor of any creditor or of the estate, in whole or in part, to the amount of twenty dollars;

2. When the Commissioners shall allow any claim, in whole or in part, and the sum allowed, being objected to, shall amount to twenty dollars; in either of which cases the aggrieved party may appeal.

(2938.) SEc. 23. In all cases of appeal from the decision of the Commissioners, the person appealing shall give notice of such appeal, and of the hearing thereof in the Circuit Court, in such manner as the Judge of Probate shall direct, at least twelve days before the next term thereof after the appeal is allowed, if there shall be so many days; and if not, as soon as may be.

Party appealing (2939.) SEC. 24. The party appealing shall procure and file file copy of re in the Circuit Court to which the appeal is taken, at or before the next term of such Court after the appeal is allowed, a certified copy of the record of the allowance or disallowance appealed from, of the application for the appeal and the allowance of the same, together with the proper evidence that notice has been given to the adverse party according to the order of the Probate Court.

Trial of appeal.

(2940.) SEC. 25. When such certified copy shall have been filed in the Circuit Court, such Court shall proceed to the

trial and determination of the same according to the rules of law, allowing a trial by jury of all the questions of fact in cases where such trial may be proper; and such Court may direct an issue to be made up between the parties in a brief form when it shall be deemed necessary; and questions of law may be carried to the Supreme Court, and costs may be allowed or denied, in the discretion of the Court.

certified to Pro

(2941.) Sec. 26. The final decision and judgment in cases so Judgment to be appealed, shall be certified by the Circuit Court or Supreme bate Court, etc. Court, as the case may be, to the Probate Court; and the same proceedings shall be had thereon, as if such decision had been reported by the Commissioners.

red.

(2942.) SEC. 27. If any claimant, appealing on account of When claim barthe disallowance of his claim by the Commissioners, shall fail to prosecute his appeal in the Circuit Court to which the appeal is taken, such claim shall be forever barred, and said. Court may allow costs to the appellee.

Court shall affirm

pealed from.

(2943.) SEC. 28. If the person objecting. to a claim, and When Circuit appealing on account of the allowance of such claim, shall allowance apneglect to prosecute his appeal, the Court to which the appeal shall be taken, on motion of the adverse party, and on his producing an attested copy of the record of the Probate Court showing such appeal, shall affirm the allowance appealed from, and may allow costs against the appellant.

son interested in

peal, etc.

(2944.) SEC. 29. When an executor or Administrator declines When any perto appeal from the decision of the Commissioners, any person Estate may ap interested in the estate, as creditor, devisee, legatee or heir, may appeal from such decision in the same manner as the executor or Administrator might have done, and the same proceedings shall be had in the name of the executor or Administrator: Provided, That the person appealing in such case shall, before the appeal shall be allowed, give a bond, to be approved by the Judge of Probate, as well to secure the estate from damages and costs, as to secure the intervening damages and costs to the adverse party.

appeal by Execu

allowance of his

(2945.) SEC. 30. When an executor or Administator shall Notice in case of have a claim against the estate which he represents, which tor, etc., on disshall be disallowed by the Commissioners, and he shall take claim. an appeal therefrom to the Circuit Court, notice of such appeal shall be given to all concerned, by personal service thereof, or by publication under an order of the Probate Court, in some newspaper which circulates in the county,

three weeks successively, the last publication of which shall be four weeks before hearing of the appeal.

Order allowing time for paying debts, etc.

Court may extend time.

Application for extension and

LIMITATION OF TIME FOR PAYING DEBTS.

(2946.) SEC. 31. The Probate Court, at the time of granting letters testamentary, or letters of administration, shall make an order allowing to the executor or Administrator a time for disposing of the estate, and paying the debts and legacies of the deceased person, which time shall not, in the first instance, exceed one year and six months.

(2947.) SEC. 32. The Probate Court may, on the application of the executor or Administrator, from time to time, as the circumstances of the estate may require, extend the time for paying debts and legacies, not exceeding one year at a time, nor so that the whole time allowed to the original executor or Administrator shall exceed four years.

(2948.) SEC. 33. When an executor or Administrator shall notice of hearing make application to have the time for paying debts and legacies extended beyond one year and six months from the time of granting letters testamentary or of administration, the Probate Court shall appoint a time for hearing and deciding on such application, and shall cause notice of such application, and of the time and place of hearing, to be given to all persons interested, by publication, three weeks successively, in some newspaper to be designated by the Court; and no such order extending the time shall be granted, unless such notice shall have been previously given.

When new Ad

ministrator ap

may extend time,

etc.

(2949.) SEC. 34. When an executor or Administrator shall pointed, Court die, or become incapable of discharging his trust, and a new Administrator of the same estate shall be appointed, the Probate Court may extend the time for the payment of the debts and legacies beyond the time allowed to the original executor or Administrator, not exceeding one year at a time, and not exceeding six months beyond the time which the Court might by law allow to such original executor or Administrator, upon due notice being given as required in the preceding section.

OF THE DISTRIBUTION

OF ASSETS AMONG THE CREDITORS, AND OF INSOLVENT ESTATES.

(2950.) SEC. 35. If, after the report of the Commissioners,

etc., to pay debts,

and ascertaining the claims against any estate, it shall appear when executor, that the executor or Administrator has in his possession etc. sufficient to pay all the debts, he shall pay the same in full within the time limited or appointed for that purpose.

ment.

(2951.) SEC. 36. If the assets which the executor or Admin- Order of paytrator may have received, and which can be appropriated to the payment of debts, shall not be sufficient, he shall, after paying the necessary expenses of administration, pay the debts against the estate in the following order: 1. The necessary funeral expenses; 2. The expenses of the last sickness; 3. Debts having a preference by the laws of the United States; 4. Debts due to other creditors.

to be paid divi

(2952.) SEC. 37. If there shall not be assets enough to pay when creditors all the debts of any one class, each creditor shall be paid a dend. dividend in proportion to his claim; and no creditor of any one class shall receive any payment until all those of the preceding class shall be fully paid.

order payment

tribution of as

(2953.) SEC. 38. After the return of the report of the Com- when Court to missioners, and at or before the expiration of the time limited or debts and disfor the payment of debts, the Probate Court shall make an sets. order or decree for the payment of the debts, and the distribution of the assets which may have been received by the executor or Administrator at the time for that purpose, among the creditors, as the circumstances of the estate shall require, according to the provisions of this chapter.

pend decree in

undetermined.

(2954.) SEC. 39. If an appeal shall have been taken from Court may sus the decision of the Commissioners as provided in this chapter, case of appeal and shall remain undetermined, the Probate Court may suspend the decree for the payment of debts mentioned in the preceding section, or may order a distribution among the creditors whose claims shall have been allowed, leaving in the hands of the executor or Administrator sufficient assets to pay the claim which may have been disputed and appealed. (2955.) SEC. 40. When the disputed claim shall have been When disputed finally settled, the Probate Court shall order the same to be be paid. paid out of the assets retained, to the same extent, and in the same proportion as the claims of the other creditors. (2956.) SEC. 41. If the whole of the debts shall not have Further decree been paid by the first distribution, and if the whole assets shall not have been distributed, or if other assets shall afterwards come to the hands of the executor or Administrator, the Probate Court may, from time to time, according to the

claim ordered to

for distribution.