compound with him and give him a discharge upon receiving a fair and just proportion of his effects; but if such compounding is procured or induced by the false or fraudulent representations or conduct of such debtor, such payment shall only operate to discharge a like amount of the debt. [L. 1862 ; D. Cd. § 1150; H. C. § 1182.] CHAPTER VIII. OF THE PAYMENT OF CLAIMS AND CHARGES. § 1212. Order of Payment of Charges and Claims. The charges and claims against the estate which have been presented and allowed, or presented and disallowed, but subsequently established by judgment or decree within the first six months after the date of the notice of appointment of the executor or administrator, shall be paid in the following order, and those presented and allowed or established in like manner within each succeeding period of six months thereafter, during the continuance of the administration, in the same manner:— 1. Funeral charges; 2. Taxes of whatever nature due the United States; 3. Expenses of last sickness; 4. Taxes of whatever nature due the state, or any county or other public corporation therein; 5. Debts preferred by the laws of the United States; 6. Debts which, at the death of the deceased, were a lien upon his property, or any right or interest therein, according to the priority of their several liens; 7. Debts due employees of decedent for wages earned within the ninety days immediately preceding the death of the decedent; 8. All other claims against the estate. [L. 1862; D. Cd. § 1151; L. 1891, p. 86, § 1; H. C. § 1183.] § 1213. Proceeds of Real Property, when Applied in Satisfaction of Lien. The preference given by subdivision 6 of the last section shall only extend to the proceeds of the property upon which the lien exists, and as to such proceeds, such debt is to be preferred to any of the classes mentioned in such section other than the taxes upon such property. [L. 1862; D. Cd. § 1152; H. C. § 1184.] § 1214. How Judgment or Decree Given in Lifetime of Deceased Satisfied. If such debt has been established by judgment or decree against the deceased in his lifetime, such judgment or decree, if the proceeds of the personal property be not sufficient to satisfy it, may, in the discretion of the court or judge thereof, be either satisfied from the proceeds of the sale of the property by the executor or administrator, upon which it is a lien, or enforced by execution against such property. Such sale by the executor or administrator discharges the property from the lien of the judgment or decree, but the same attaches to the proceeds thereof after deducting therefrom the expenses of sale. [L. 1862; D. Cd. § 1153; H. C. § 1185.] A judgment creditor whose judgment was recovered against the debtor during the lifetime of the latter, is entitled to have an execution issued on the judgment against the property of the debtor, or for the delivery of real or personal property, notwith standing the death of such debtor: Bower v. Holladay, 18 Or. 496, 22 Pac. 553. A person whose debt has been reduced to a judgment is not compelled to present his claim to the executor for allowance: Knott v. Shaw, 5 Or. 484. § 1215. If Estate Insufficient to Pay Claims of One Class, Payment to be in Proportion. Except as specially provided in the last three sections, if the estate be insufficient to pay all the claims and charges of any one class, payable within any period of six months during the administration, as provided in section. 1212, each creditor of such class shall be paid in proportion to the amount of his claim, and not otherwise. [L. 1862; D. Cd. § 1154; H. C. § 1186.] § 1216. Funeral Charges, Who May Incur Them, and when Allowed. The executor named in the will, or if there be none, or if he do not attend to it, then the husband, widow, or next of kin, in the order herein named, are authorized to incur funeral charges, on account of the estate, in the burial of the deceased before administration of the estate is granted; and the burial of the deceased may be in a manner and at a cost according to his circumstances and condition in life, but no funeral charges, except those necessary to give the deceased a plain and decent burial, shall be allowed out of the estate where the assets are not sufficient to satisfy all other claims against it, including the legacies and devises, if there be any. [L. 1862; D. Cd. §1155; H. C. § 1187.] § 1217. Administrator May Retain Compensation and Expenses. The executor or administrator may retain in his hands, in preference to any claim or charge against the estate, the amount of his own compensation and the necessary expenses of administration. [L. 1862; D. Cd. § 1156; H. C. § 1188.] This section does not give the executor a lien for the amount of his expenses against the land of the testator, prior to that of a mortgage thereon, although the other prop erty is not sufficient to pay such executor's expenses: Shepard v. Saltzman, 34 Or. 41, 54 Pac. 882. § 1218. Debts not Due or Contingent, how Paid. A debt due and payable is not entitled to preference over one of the same class not due, if the latter be presented within the same period. A debt not due, whether contingent or absolute, upon being presented shall, if absolute, be satisfied by the payment of such sum as the court or judge thereof may prescribe by order, to be equal to its present value, and if contingent, by the payment into court for the benefit of the creditor, subject to the contingency, of a sum to be ascertained in like manner, equal to its present value. [L. 1862; D. Cd. § 1157; H. C. § 1189.] § 1219. Administrator Liable to Creditor Personally, When. When, upon the filing of a semiannual account, an order is made deter mining and prescribing the amount of assets applicable to the claims then presented, as provided in section 1201, thereafter the executor or administrator is personally liable to each creditor included in such order for such amount. [L. 1862; D. Cd. § 1158; H. C. § 1190.] The principle that a judgment creditor, whose claim has been reduced to a judgment during the lifetime of the decedent, need not present his claim to the executor, must be construed in connection with this section, since the operation of such a principle seems in conflict with this section: Bower v. Holladay, 18 Or. 498, 22 Pac. 553. § 1220. Distribution and Payment of Legacies, When Decreed. If all the charges and claims shall have been satisfied upon the first distribution of the assets, or as soon thereafter as they may be, the court or judge thereof shall direct the payment of legacies and the distribution of the remaining proceeds of the personal property among the heirs or other persons entitled thereto. [L. 1862; D. Cd. § 1159; H. C. § 1191.] § 1221. When Real Property Discharged From Administration. The real property of the deceased is the property of those to whom it descends by law or is devised by will, subject to the possession of the executor or administrator, and to be applied to the satisfaction of claims against the estate, as by this title provided; but upon the settlement of the estate, and the termination of the administration thereof, so much of such real property as remains unsold or unappropriated is discharged from such possession and liability without any order or decree therefor; but if there be any surplus of the proceeds of the sale of such real property, or any part thereof, the court or judge thereof shall order and direct a distribution of such surplus among those who would have been entitled to such land if the same had not been sold. [L. 1862; D. Cd. § 1160; H. C. § 1192.] Under this and other sections of the code, the county court has, by necessary implication, the power to construe wills so far as they may dispose of personalty, and perhaps, also, as to real property; but the probate court ought not to entertain a proceeding instituted merely for the purpose of having a judicial construction of a will. The construction of such an instrument should be only a step in the attainment of some other object: In re John's Will, 30 Or. 504, 47 Pac. 341, 36 L. R. A. 292. The estate descends immediately to the heir on the death of the ancestor, and the heir is entitled to take and hold possession, unless the administrator exercises his right of possession in the administration of the estate. If the administrator exercises such right the operation of the statute of limitation against the heir is suspended during the administrator's possession, but the mere appointment of an administrator does not affect the operation of the statute, as it is not necessary that he should take possession: Clark v. Bundy, 29 Or. 193, 44 Pac. 282. A widow is not entitled immediately on the death of her husband to receive one third of the rents and profits of the lands of which he was the owner and died seised in right of her dower interest therein; but the executor or administrator of the estate is entitled to the possession and control of the same, and to receive the rents and profits thereof, to be applied to the satisfaction of claims against the estate: Leonard v. Grant, 8 Or. 278. § 1222. Application of Heir or Other Person for Share of Real Estate. At any time after the filing of the first semiannual account, any heir, devisee, or legatee may apply to the court, by petition, for an order that he have the possession and rents and profits thereof of the portion of the real property to which he may be entitled, and that payment be made to him. of his legacy or distributive share of the personal property of such estate, as the case may be. [L. 1862; D. Cd. § 1161; H. C. § 1193.] § 1223. Notice of Application, and Proceedings Thereon. Notice of the application shall be given to the executor or administrator ten days before the term at which it is made. If upon the hearing it appear that the estate is but little in debt, the court in its discretion may grant the petition or some part thereof, upon the condition that such applicant file with the clerk, within a time in the order specified, an undertaking, with one or more sufficient sureties, for the benefit of whom it may concern, in a sum double the value of such real property, legacy, or distributive share, to be void upon the condition that such heir, legatee, or devisee will pay, when required, his proportion towards satisfying any claim against the estate. [L. 1862; D. Cd. § 1162; H. C. § 1194.] § 1224. Qualification of Sureties and Undertaking - Costs of Application. The sureties in such undertaking shall have the same qualifications as sureties in bail upon arrest, and shall justify before the court or judge. thereof in like manner. The costs of the proceeding shall be paid by the applicant. [L. 1862; D. Cd. § 1163; H. C. § 1195.] § 1225. Application for Decree to Refund — Notice Thereof. If, after the giving of such undertaking, it shall become necessary to satisfy any claim against the estate, to require the payment of all or any part of the sum therein specified, it shall be the duty of the executor or administrator to apply by petition to the court for a decree to that effect. Notice of the application shall be given to the party filing the undertaking ten days before the term at which the application is made. [L. 1862; D. Cd. § 1164; H. C. § 1196.] § 1226. Proceedings Thereon, and How Decree Enforced. If, upon the hearing, it appear necessary and proper that such payment should be made, the court shall decree accordingly, specifying therein the amount to be paid, and within what time; and if the amount be not paid within the time specified, the decree may be enforced against such party and the sureties in the undertaking, by execution, in the same manner as a decree in the circuit court. [L. 1862; D. Cd. § 1165; H. C. § 1197.] TITLE XVII. OF THE STYLE OF PROCESS. § 1227. Style of Process. All process authorized by this code, to be issued by any court or officer thereof, shall run in the name of the State of Oregon, and be signed by the officer issuing the same; and if such process be issued by a clerk of a court, he shall affix thereto his seal of office. In all actions, suits, or proceedings by or against the state, it is to be styled the State of Oregon. [L. 1862; D. Cd. § 1166; H. C. § 1198. A summons is not a process in such a sense as that it must run in the name of the state: Bailey v. Williams, 6 Or. 71. It is doubtful whether a notice of election contest is process in the technical sense: Whitney v. Blackburn. 17 Or. 571, 21 Pac. 874, 11 Am. St. Rep. 857. VI. VII. OF THE POWERS AND DUTIES OF THE GRAND JURY 1277 1294 X. OF TRIALS, VERDICTS, AND NEW TRIALS IN CRIMI- 1375 XI. OF ARREST OF JUDGMENT 1426 . XII. OF JUDGMENTS AND THE ENFORCEMENT THEREOF XV. XVI. OF COMPELLING THE ATTENDANCE OF WITNESSES 1541 1554 OF DISMISSAL OF ACTION FOR WANT OF PROSECU- CUSTODY AND DISPOSAL OF STOLEN PROPERTY 1565 1572 OF THE EXAMINATION OF THE CASE AND DIS- XXIII. OF THE PREVENTION OF CRIMES AND SECURITY TO XXIV. OF THE CORONER'S INQUEST AND THEREON 1620 XXV. OF SEARCH WARRANTS, AND PROCEEDINGS THEREON 1700 JUSTICE 1718 |