Chapter 44. ADMINISTRATION OF ESTATES AND TRUSTS.

§1. Executor Has No Powers Before Qualifying.—A person appointed by a will executor thereof shall not have the powers of executor until he qualify as such by taking an oath and giving bond before the county court in which the will, or an authenticated copy thereof, is admitted to record, or before the clerk thereof in vacation, except that he may provide for the burial of the testator, pay reasonable funeral expenses and preserve the estate from waste.(Code 1849, c. 130, §1; Code 1860, c. 130. §1; Code 1868, c. 85, §1; 1872-3, c. 122, §1; 1882, c. 37, §1; 1907, c. 56, §1; Code 1923, c. 85, §1.)

§2. Administration With the Will Annexed.—If there be no executor appointed by the will, or if all the executors therein named refuse the executorship, or fail when required to give such bond, which shall amount to such refusal, or have died, such court, or clerk thereof during the recess of the regular sessions of such court, may grant administration, with the will annexed, to the person who would have been entitled to administration if there had been no will, and he shall take such oath and give such bond.(Code 1849, c. 130, §2; Code 1860, c. 130, §2; Code 868, c. 85, §2; 1872-3, c. 122, §2; Code 1923, c. 85, §2.)

§3. Oath of Executor or Administrator With Will Annexed.—The oath of an executor, or of an administrator with the will annexed, shall be that the writing admitted to record contains the true last will and testament of the deceased, as far as he knows or believes, and that he will faithfully perform the duties of his office to the best of his skill and judgment.(Code 1849, c. 130, §3; Code 1860, c. 130, §3; Code 1868, c. 85, §3; 1872-3, c. 122, §3; Code 1923, c. 85, §3.)

§4. Appointment of Administrator.—When a person dies intestate the jurisdiction to hear and determine the right of administration of his estate shall be in the county court, or clerk thereof during the recess of the regular sessions of such court, which would have jurisdiction as to the probate of his will, if there were one. Administration shall be granted to the distributees who apply therefor, preferring first the husband or wife, and then such of the others entitled to distribution as such court or clerk shall see fit. If no distributee apply for administration within thirty days from the death of the intestate, such court or clerk may grant administration to one or more of his creditors, or to any other person.(Code 1849, c. 130, §4; Code 1860, c. 130, §4; Code 1868, c. 85, §4; 1872-3, c. 122, §4; 1903, c. 13, §4; Code 1923, c. 85, §4.)

§5. When Curator May be Appointed; His Duties.—The county court, or clerk thereof during the recess of the regular sessions of such court, may appoint a curator of the estate of a decedent, during a contest about his will, or during the infancy or in the absence of an executor, or until administration of the estate be granted, taking from him a bond in a reasonable penalty. The curator shall take care that the estate is not wasted before the qualification of an executor or administrator, or before such estate shall lawfully come into possession of such executor or administrator. He may demand, sue for, recover, and receive all debts due to the decedent, and all his other personal estate, and when there is a will may, or if a will be in contest shall, with respect to any real estate whereof the decedent or testator may have died seized or possessed, exercise such rights as the executor or administrator with the will annexed could exercise, including the collection of any rents and profits of such real estate and the leasing of the same for a term not exceeding the period of the curator’s incumbency. Upon the qualification of an executor or administrator, such curator shall account with the executor or administrator for, and pay over to him, such estate as came into such curator’s hands or for which he is liable.(Code 1849, c. 122, §24; Code 1860, c. 122, §24; Code 1868, c. 118, §3; 1882, c. 84, §23; Code 1923, c. 77, §23.)

§6. Bond and Oath; Termination of Grant in Certain Cases.—At the time of the grant of administration upon the estate of any intestate, the person to whom it is granted shall, in the court or before the clerk granting it, give bond and take an oath that the deceased has left no will so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment. If a will of the deceased be afterwards admitted to record, or if, after administration is granted to a creditor or other person than a distributee, any distributee who shall not have before refused shall apply for administration, there may be a grant of probate or administration, after reasonable notice to such creditor or other person theretofore appointed, in like manner as if the former grant had not been made, and such former grant shall thereupon cease.(Code 1849, c. 130, §5; Code 1860, c. 130, §5; Code 1868, c. 85, §5; 1872-3, c. 122, §5; 1903, c. 13, §5; 1907, c. 56, §5; Code 1923, c. 85, §5.)

§7. Penalty of Bond.—Every bond of an executor or administrator shall be in a penalty equal, at the least, to the full value of the personal estate of the deceased to be administered; and where there is a will which authorizes the executor or administrator to sell real estate, or receive the rents and profits thereof, the bond shall be in a penalty equal, at the least, to the full value both of such personal estate and of such real estate, or of such personal estate and of such rents and profits, as the case may be. If on the filing of the inventory or appraisement of the estate it shall appear that the penalty of the bond does not comply as to amount with the foregoing requirements, the court in which, or the clerk before whom, such bond was given, shall immediately notify such executor or administrant tor of such fact and require of him a new or additional bond, and the failure of such executor or administrator to give the same within a rea sonable time shall be sufficient cause for his removal.(Code 1849, c. 130, §6; Code 1860, c. 130, §6; Code 1868, c. 85, §6; 1872-3, c. 122, §6; Code 1923, c. 85, §6.)

§8. When Executor Not to Give Security on Bond.—Where the will directs that an executor shall not give security, it shall not be required of him, unless he be a nonresident of the State, or unless at the time the will is admitted to probate or at any time subsequently, on the application of any person interested, or from the knowledge of the court or clerk admitting the will to probate, it is deemed proper that security ought to be given.(Code 1849, c. 130, §7; Code a 1860, c. 130, §7; Code 1868, c. 85, §7; 1872-3, c. 122, §7; 1882, c. 37, §7; Code 1923, c. 85, §7.)

§9. Administration De Bonis Non Upon Death, Resignation or Removal of Executor; Executor of Executor Has No Authority Over Estate of First Testator.—On the death, resignation or removal of the sole surviving executor of any last will, administration of the estate of the testator, not already administered, may be granted with the will annexed, to such person as the court shall think fit to appoint; and no executor of an executor shall have any authority as such to administer the estate of the first testator.(Code 1849, c. 130, §8; Code 1860, c. 130, §8; Code 1868, c. 85, §8; 1872-3, c. 122, §8; Code 1923, c. 85, §8.)

§10. Marriage of Female Representative Does Not Extinguish Authority.—Where an unmarried woman who is personal representative, either alone or jointly with another, shall marry, her husband shall not be a personal representative in her right, and such marriage shall not operate as an extinguishment of her authority.(Code 1849, c. 130, §9; Code 1860, c. 130, §9; Code 1868, c. 85, §9; 1872-3, c. 122, §9; 1921, c. 72, §9; Code 1923, c. 85, §9.)

§11. When Sheriff to Administer Estate.—If at any time two months elapse without there being an executor or administrator of the estate of a decedent (except during a contest about the decedent’s will, or during the infancy or absence of the executor), the court or clerk before whom the will was admitted to probate, or having jurisdiction to grant administration, shall on motion of any person order the sheriff of the county to take into his possession the estate of such decedent and administer the same; whereupon such sheriff, without taking any other oath of office, or giving any other bond or security than he may have before taken or given, shall be the administrator or administrator de bonis non of the decedent, with his will annexed if there be a will, and shall be thenceforward entitled to all the rights and bound to perform all the duties of such administrator. Every such sheriff shall, in the month of January in each year, make a written report to the county court of his county, and if the court is not in session, then he shall file such report with the clerk of such court, of the receipts and disbursements of each estate so committed to him, and at the end of his term of office make a complete report and settlement of each estate so committed to him, and shall turn over to his successor in office all moneys or property in his hands remaining unadministered. Such court or clerk may, however, at any time afterward revoke such order and allow any other person to qualify as such executor or administrator; and the court, or the clerk thereof, shall, at the expiration of the term of office of any such sheriff, commit to his successor in office any and all estates which may appear, by the final report above required to be made by the sheriff at the end of his term, not to have been fully administered. Every sheriff to whom any estate shall have been committed, as aforesaid, who shall fail to render any report as required herein, or who shall fail to make such settlement within two months after the end of his term of office shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than fifty nor more than five hundred dollars.(Code 1849, c. 130, §10; Code 1860, c. 130, §10; Code 1868, c. 85, §10; 1872-3, c. 122, §10; 1903, c. 16, §10; Code 1923, c. 85, §10.)

§12. Letters of Administration.—A copy of the order whereby certificate is granted to any personal representative for obtaining probate or letters of administration, shall be as effectual as the probate or letters made out in due form. Nevertheless, the clerk of the court, in which such order is made, shall, when required by any personal representative, make out such probate or letters in due form.(Code 1849, c. 130, §11; Code 1860, c. 130, §11; Code 1868, c. 85, §11; 1872-3, c. 122, §11; Code 1923, c. 85, §11.)

§13. List of Heirs and Distributees; Record of Same.—At the time of the qualification of an executor or administrator, the court or clerk before whom he qualifies shall require such executor or administrator to file his own affidavit, or the affidavit of some credible person, showing the names, and, as far as possible, the addresses of the heirs and distributees of the decedent, and their relationship to decedent, and the clerk of the court shall record such affidavit in the fiduciary record, which affidavit and the record thereof shall be prima facie evidence of what is contained therein. The personal representative shall not receive any compensation for his services until such names and addresses be furnished by affidavit as aforesaid, unless he shows by affidavit that such heirs and distributees and their addresses are unknown to him and that after diligent inquiry he has been unable to ascertain their names and addresses.(1903, c. 13, §5; 1907, c. 56, §§1, 5; Code 1923, c. 85, §§1, 5.)

§14. Appraisal of Estates.—The real and personal estate of every deceased person shall be appraised as follows: The court or clerk by whose order any person is authorized to act as personal representative shall, upon the qualification of such personal representative, appoint not less than three nor more than five appraisers, any three of whom may act, in the county in which the will of the deceased is probated or administration is granted upon his estate, and a like number in every other county in which there may be any real or personal estate of the deceased. Such appraisers, after first taking an oath for the purpose, shall list and appraise at its real and actual value all the real estate and all the tangible personal property of every description owned by the deceased at the time of his death and located in their respective counties, and they shall also list and appraise all his intangible property of every description, including moneys, credits, investments, annuities, insurance policies, judgments and decrees for moneys, notes, bonds, accounts and all other evidences of debt, whether owing to him by persons or corporations in or out of the State, and the number and value, including both the par value, if any, and the actual value, of any shares of capital stock owned by him in any corporation, whether located in this State or elsewhere. Such appraisers shall designate such intangible property as good, bad or doubtful, as to them may appear to be correct, and by whom owing and when payable, and from what time such of them as are interest-bearing bear interest. Every note, bond or evidence of debt shall have indorsed thereon the word “appraised,” under which each acting appraiser shall sign his name. No judgment shall be rendered by any of the courts of this State upon such note, bond or evidence of debt unless and until the same shall be first shown to have been listed by the appraisers: Provided, however, That any note, bond or evidence of debt which bears the indorsement by the appraisers, as above required, shall need no further proof that the same was listed. The several appraisements and lists aforesaid shall be signed by the appraisers who made the same, and be forthwith returned to the commissioner of accounts to whom the estate of such deceased person has been referred as provided in section one of article two of this chapter. Said commissioner of accounts shall inspect such appraisements, see that the same are in proper form, and, within ten days after they are received and approved by him, deliver them to the clerk of the county court, who shall record the same, with the certificate of approval. The date of return of an appraisement shall be entered by such clerk in his record of fiduciaries. Every such appraisement and list shall be prima facie evidence of the value of the estate embraced therein, and that the personal estate embraced therein came to the hands of the personal representative. Such appraisers shall each receive a fee of not less than one dollar nor more than five dollars per day, to be fixed by said commissioner in accordance with the amount of the estate and the work involved in making the appraisement, and their actual expenses necessarily incurred in making such appraisement, and such fees and expenses and the commissioner’s approval thereof shall be noted in the commissioner’s certificate. No person shall be permitted by any means whatsoever to avoid the appraisement and listing of his estate as herein provided, nor shall his personal representative be permitted to do so.(Code 1849, c. 130, §12; Code 1860, c. 130, §12; Code 1868, c. 85, §12; 1872-3, c. 122, §12; 1904, c. 7, §12; 1907, c. 56, §12; Code 1923, c. 85, §12.)

§15. Duty of Personal Representative; Debt Not Extinguished by Appointment of Debtor as Executor.—It shall be the duty of every personal representative to administer well and truly the whole personal estate of his decedent. The appointment of a debtor as executor shall not extinguish the debt.(Code 1849, c. 130, §13; Code 1860, c. 130, §13; Code 1868, c. 85, §13; 1872-3, c. 122, §13; Code 1923, c. 85, §13.)

§16. When Administrator De Bonis Non May Administer Assets for Which Former Personal Representative Liable.—When the powers of a personal representative have ceased and an administrator de bonis non of the decedent’s estate has been appointed and qualified, it shall be lawful for the personal representative whose powers have ceased, or his personal representative if he shall have died, to pay and deliver to such administrator de bonis non, or for him to demand, receive, and recover the assets of his decedent, whether converted or not, for which such former personal representative is responsible: Provided, however, That the administrator de bonis non shall have given, or shall give, a bond sufficient to cover the additional assets, so to be paid or delivered to him, or so to be demanded and received by him. The administrator de bonis non shall administer the same as assets received in due course of administration, and his receipt therefor shall be a voucher in the settlement of the accounts of the former personal representative, and shall exempt such former personal representative from all liability for any of such assets paid over and delivered to such administrator de bonis non. But this section shall not be construed as exempting such former personal representative and his sureties from liability for any breach of duty, with respect to such assets, committed by him before they were paid over and delivered by him as aforesaid.

§17. Food and Fuel for Family.—The provisions and fuel (or so much thereof as may be necessary) which, at the death of any person, shall have been laid in for consumption in his family, shall remain for the use of such family, if the same be desired by any member of it, with out account thereof being made. Any live stock necessary for the food of the family may be killed for that use before the sale or distribution of the estate.(Code 1849, c. 130, §14; Code 1860, c. 130, §14; Code 1868, c. 85, §14; 1872-3, c. 122, §14; Code 1923, c. 85, §14.)

§18. What Estate Not to be Sold.—Unless it be necessary for the payment of funeral expenses, charges of administration or debts, the personal representative shall not sell estate which the will directs not to be sold.(Code 1849, c. 130, §15; Code 1860, c. 130, §15; Code 1868, c. 85, §15; 1872-3, c. 122, §15; Code 1923, c. 85, §15.)

§19. Sale of Goods Likely to be Impaired in Value.—Of the goods not mentioned in the preceding section, other than such as are exempt by any provision of law, the personal representative shall, as soon as convenient, sell at public auction such as are likely to be impaired in value by keeping, giving a reasonable credit (except for small sums) and taking bond with good security.(Code 1849, c. 130, §16; Code 1860, c. 130, §16; Code 1868, c. 85, §16; 1872-3, c. 122, §16; 1882, c. 37, §16; Code 1923, c. 85, §16.)

§20. When to Sell the Other Goods.—If the goods so sold be not sufficient to pay the funeral expenses, charges of administration, debts and legacies, the personal representative shall sell so much of the other goods and chattels as may be necessary to pay the same, having regard to the privilege of specific legacies.(Code 1849, c. 130, §17; Code 1860, c. 130, §17; Code 1868, c. 85, §17; 1872-3, c. 122, §17; Code 1923, c. 85, §17.)

§21. Estate for Life of Another is Assets.—Any estate for the life of another shall go to the personal representative of the party entitled to the estate, and be assets in his hands, and be applied and distributed as the personal estate of such party.(Code 1849, c. 130, §18; Code 1860, c. 130, §18; Code 1868, c. 85, §18; 1872-3, c. 122, §18; Code 1923, c. 85, §18.)

§22. Suits by and Against.—A personal representative may sue or be sued upon any judgment for or against, or any contract of or with, his decedent.(Code 1849, c. 130, §19; Code 1860, c. 130, §19; Code 1868, c. 85, §19; 1872-3, c. 122, §19; Code 1923, c. 85, §19.)

§23. Actions for Goods Carried Away, Waste or Damage to Estate of or by Decedent.—An action of trespass on the case may be maintained by or against a personal representative for the taking or carrying away of any goods, or for the waste or destruction of, or damage to, any estate of or by his decedent.(Code 1849, c. 130, §20; Code 1860, c. 130, §20; Code 1868, c. 85, §20; 1872-3, c. 122, §20; Code 1923, c. 85, §20.)

§24. Action for Waste by Representative.—A suit may be maintained against the personal representative of an executor in his own wrong, or the personal representative of a rightful executor or administrator by whom any waste may have been committed.(Code 1849, c. 130, §21; Code 1860, c. 130, §21; Code 1868, c. 85, §21; 1872-3, c. 122, §21; Code 1923, c. 85, §21.)

§25. Administrator De Bonis Non May Have Scire Facias.—Where a suit is pending or a judgment or decree has been rendered in this State in favor of a personal representative, upon a contract made or for a cause of action which accrued in the lifetime of the decedent, the administrator de bonis non of such decedent may sue forth a scire facias to have execution upon such judgment or decree, or to revive and prosecute to judgment or decree the suit so pending, if the personal representative who brought it could have maintained the same.(Code 1849, c. 130, §22; Code 1860, c. 130, §22; Code 1868, c. 85, §22; 1872-3, c. 122, §22; Code 1923, c. 85, §22.)

§26. Action on Bond of Personal Representative.—Where an execution on a judgment or decree against a personal representative is returned without being satisfied, there may be forthwith brought and prosecuted an action against the obligors in any bond given by such personal representative for the faithful discharge of his duties.(Code 1849, c. 130, §23; Code 1860, c. 130, §23; Code 1868, c. 85, §23; 1872-3, c. 122, §23; Code 1923, c. 85, §23.)

§27. Not Chargeable Beyond Assets; Pleas Allowed.—No personal representative or any surety of his shall be chargeable beyond the assets of the decedent by reason of any omission or mistake in pleading or false pleading of such representative. And in the action allowed by the preceding section the defendants may plead any pleas and offer any evidence which would be admissible in an action against a personal representative suggesting a devastavit.(Code 1849, c. 130, §24; Code 1860, c. 130, §24; Code 1868, c. 85, §24; 1872-3, c. 122, §24; Code 1923, c. c. 85, §24.)

§1. Estate of Decedent to be Referred to a Commissioner of Accounts.—Upon the qualification of any personal representative, the estate of his decedent shall, by order of the county court to be then made, be referred to a commissioner of accounts for proof and determination of debts and claims, establishment of their priority, determination of the amount of the respective shares of the legatees and distributees, and any other matter necessary and proper for the settlement of the estate: Provided, That in counties where there are two or more such commissioners, the estates of decedents shall be referred to such commissioners in rotation, in order that, as far as possible, there may be an equal division of the work.

§2. Commissioner to Publish Notice of Time for Receiving Claims Against Decedent’s Estate.—Within one month next succeeding the reference of the estate to a commissioner of accounts, he shall appoint a convenient time and place when and where claims against the estate may be presented, examined and allowed. The time so fixed by the commissioner shall be not less than six months from the date of the first publication of the notice hereafter provided for, nor more than eight months from the qualification of the personal representative. The commissioner shall give notice of such time and place by publishing once a week for three successive weeks, in some newspaper published in the county, a notice to the following

effect:

But if there be no newspaper published in the county, then the commissioner shall publish such notice in like manner in some newspaper of general circulation in the county and post the same, at least six months prior to the time fixed, at the front door of the courthouse of said county. The publication of such notice, or such publication and posting, as the case may be, shall be equivalent to personal service on the creditors, distributees and legatees, or any of them.

§3. Commissioner to Certify to Publication of Notice.—In his certificate to the report of claims against the estate, to be made as hereafter provided, the commissioner of accounts shall certify that the notice was published, or published and posted, as the case may be, giving the name of the newspaper and the dates of publishing and posting.

§4. Mailing of Notice to Creditors, Distributees and Legatees.—When the commissioner of accounts has fixed the time for presentation of claims, the personal representative shall file with such commissioner a list of the names and post-office addresses of all known creditors of the estate and of all distributees and legatees, to each of whom the commissioner shall cause a copy of such notice to be forwarded by United States mail, addressed according to such list. But failure to mail, or to receive, such notice shall not relieve any creditor, distributee or legatee of the duty to present and prove his claim as required by such notice, nor in any way affect the proceedings pursuant to such notice.

§5. Claims to be Proved by Vouchers and Affidavits in First Instance.—Every claim against the estate of a decedent shall be itemized, accompanied by proper vouchers, and verified by the affidavit of the creditor stating the character of the claim, whether open account, note, bond, bill, writing obligatory, judgment, decree or other evidence of debt, and the amount thereof and from what date and on what items interest runs and at what per cent per annum, and stating further that the claim is just and true and that the creditor, or any prior owner of the claim, if such there was, hath not received any part of the money stated to be due, or any security or satisfaction for the same, except what is credited. The vouchers for a judgment or decree shall be an abstract thereof; for a specialty, bond, note, bill of exchange, writing obligatory, or other instrument, shall be the instrument itself, or a true copy thereof, verified by the commissioner, or proof of the same in case the instrument be lost; and for an open account an itemized copy of the account. This section shall not apply to taxes.

§6. Objections to Claims, and When Claim to be Proved by Other Evidence; Excess Funeral Expenses.—Every claim so itemized, so accompanied by proper vouchers, and so verified, shall be taken to be proved, and shall be allowed, unless before the commissioner shall make up his report of claims the personal representative, or a distributee, or a legatee, or, in the case of estates that appear to be insolvent, a creditor, shall file before the commissioner a counter affidavit, denying the claim in whole or in part; and when such counter affidavit is so filed the commissioner shall fix a time and place for hearing evidence for and against such claim and give reasonable notice of such time and place to the claimant, the party objecting, and the personal representative: Provided, however, That where the funeral expenses of a decedent exceed three hundred dollars, his estate shall not be liable for the excess, unless his personal representative after qualification ratifies in writing the contract under which such excess expenses were incurred: Provided further, That where the creditor with whom such contract was made or an officer, stockholder, agent or employee of such creditor, is also such personal representative, all persons entitled to share in said estate shall join in such ratification.

§7. Claims May be Presented Before Publication of Notice.—Claims against any decedent’s estate may be filed with or presented to the commissioner of accounts to whom the estate has been referred, at any time following the qualification of the personal representative, not withstanding the notice to creditors shall not have been published previously to such filing or presentation.

§8. Proof of Contingent or Unliquidated Claims.—Whenever at the death of any person there shall be a contingent or unliquidated claim against his estate, or an outstanding bond, recognizance or undertaking upon which the deceased shall have been principal or surety or indemnitor, and on which at the time of his death the liability is still contingent or unliquidated, the claimant or the surety shall have the right to file with the commissioner at the time provided for in the notice, proof of his claim in the same manner as other claims, stating in his affidavit the facts upon which such contingent or unliquidated liability is based and the probable amount thereof. When so filed there shall be no distribution of the assets of the estate, except as otherwise provided in this article, without the reservation of sufficient moneys to pay, when the amount is finally determined, such contingent or unliquidated claim, or a proportion thereof equal to what is paid to other creditors of the same class. If such liability becomes fixed before the commissioner completes his report, then evidence of the same may be filed with the commissioner in lieu of the contingent claim herein provided or, and such claim as fixed shall be a debt of the estate.

§9. Continuances Until All Claims and Objections Passed on.—The commissioner may adjourn from time to time the hearing for the presentation of claims as well as the hearings for proof of disputed claims until all the presented claims and the objections to any claims be fully heard and passed on.

§10. Personal Representative to Exhibit Offsets to Claims.—When a creditor against whom the deceased had any claim or claims shall present a claim the personal representative may exhibit any offset, if the same be such as has survived, that he may have to such claim, and the commissioner shall ascertain and allow the balance against or in favor of the estate.

§11. How Heir or Devisee May Protect Himself Against Lien on Property.—Any heir or devisee entitled to have any lien on the real estate that descended or was devised to him discharged out of the personal estate, or any legatee entitled to have a lien on specific personalty discharged out of the other personalty, may, if the creditor holding any such lien fails to present and prove his claim, present and prove such claim, and have the same allowed or provided for, within the same time, to the same extent, and by the same means as such creditor.

§12. No Claim Barred by Statute of Limitations to be Allowed.—No claim barred by any statute of limitations shall be allowed by a commissioner against the estate of a decedent.

§13. Effect of Presenting Claim as to Statute of Limitations.—The filing with or presentation to the commissioner of accounts of any claim of against the estate of a decedent shall, so far as the running of any statute of limitations is involved, have the same effect as the institution of action or suit on such claim.

§14. Advance Payment of Certain Claims.—The commissioner of accounts may authorize, and the personal representative may make, payment of funeral expenses, claims of physicians and nurses for services rendered during the last illness of the decedent, and accounts of druggists, hospitals and sanitariums for articles furnished and services rendered during the same period, to the extent that any of the same are preferred; also of debts due the United States, debts due the State of West Virginia, and taxes, in advance of the determination of other claims.

§15. Personal Representative Not Precluded From Commencing Action or Suit; Set-off in Such Actions or Suits.—Nothing in this article contained shall be construed to prevent any personal representative, when he shall think it necessary, from commencing any action or suit against any person, or from prosecuting to final judgment or decree any action or suit commenced by the deceased in his lifetime, if the cause of such action or suit survives, for the recovery of any debt or claim, or from having execution on any judgment or decree. The defendant in any such action or suit shall, notwithstanding he may have already filed his claim before a commissioner of accounts, set-off any claim he may have against the deceased, if proper to be allowed as a set-off; and if final judgment or decree shall be rendered in favor of the defendant, the same shall be certified by the clerk of the court rendering it to the commisioner of accounts before whom the estate of the deceased is pending, and the amount thereof shall be allowed in the same manner as other claims against such estate filed and proved before the commissioner.

§16. Commissioner to Report on Claims of Creditors, Assets and Shares of Distributees and Legatees.—After the completion of the hearings or the presentation of claims and for reception of proof for and against disputed claims, but not later than ten months from the qualification of the personal representative, the commissioner shall prepare a report of claims against the estate, showing in such report all the claims presented, or exhibited in offset, or certified to the commissioner by any court, and stating as to each claim how much was allowed and how much disallowed, together with the final balance, whether in favor of the creditor or the estate. The commissioner shall also show in such report what assets are in the hands of the personal representative, and shall designate how the same shall be applied to the payment of debts and claims; also in what order of priority the claims shall be paid; and also what sum shall be reserved to pay contingent or unliquidated claims and claims not matured, or a proportion of any such equal to what is allowed to other creditors of the same class, when payment of such claims shall become proper. Such report shall also show what persons are entitled to share in the estate as legatees, and as such in what property or amounts; or as distributees, and as such in what proportions.

§17. How Contingent and Unliquidated Claims and Claims Not Matured May be Provided For.—The commissioner of accounts in his report on claims shall direct the personal representative to withhold from distribution to beneficiaries sufficient assets to take care of such contingent and unliquidated claims and claims not matured as shall be presented to and proved before the commissioner of accounts, or a proportion thereof equal to what is paid to other creditors of the same class, and such assets shall be so withheld until such contingent liability becomes fixed, or such unliquidated liability becomes liquidated, or until such claims not matured mature, as the case may be, at which time such assets shall be disbursed or distributed as the commissioner in his report may have designated and the circumstances may require. But in any case where there are sufficient assets to pay all liquidated claims against any estate, any legatee or distributee of the estate shall be entitled to be paid his or her share of the full surplus of the estate, after payment of, or provision for, all liquidated claims, both those matured and those not matured has been made, upon such legatee’s or distributee’s giving to the personal representative a bond, executed by himself or some other person, with sufficient security, to be approved by the county court, or the clerk thereof during the recess of such court, conditioned to refund a due proportion of any unliquidated or contingent debts or demands which may afterwards appear against the decedent or become liquidated or have their liability fixed, and of the costs attending their recovery. Such bond shall be filed in the clerk’s office where probate of the will or administration of the estate was had, and recorded by such clerk in the record of bonds. After the giving of any such bond or bonds, creditors holding unliquidated or contingent debts and demands shall, as to the estate distributed by virtue of the giving of such bond or bonds, look only to such bond or bonds for the payment of such debts and demands.

§18. Exceptions to Commissioner’s Report; Return of Report.—After preparing his report of claims the commissioner shall give notice thereof, either verbally or in writing, delivered personally or by mail, to all parties interested or their attorneys, and hold the report and the evidence taken in connection therewith in his office for ten days for the examination of parties interested. Any party may inspect such report and evidence and file exceptions thereto before said commissioner; and the commissioner, in all cases, shall return with his report all the evidence taken in connection with any claim listed in such report, and the exceptions, if any, taken to the report, and shall submit such remarks upon the exceptions as he may deem pertinent. After the expiration of such ten days the commissioner shall return the report, evidence, exceptions and remarks to the county court, and until the report is acted upon by the court it shall be subject to further exceptions by the same or other parties interested.

§19. Hearing on Report and Exceptions; Appeal; Effect of Confirmation.—The hearing on the report of claims returned by a commissioner shall be had at the first term of the county court occurring not earlier than ten days after its return. If there be no exceptions to such report it shall be confirmed, but if excepted to the court shall pass upon the exceptions and make its order thereon, without hearing or receiving any new evidence; but if good cause be shown for the introduction of further proof regarding any matter contained in such report, the report shall be referred back to the commissioner for the taking of further proof and the making of a supplemental report. An appeal from the decision of such county court on such report and exceptions and on the supplemental report and exceptions, if there be such supplemental report, may, without any formal bill of exceptions, be taken to the circuit court of the county. The appeal shall be tried and heard in the circuit court, or before the judge thereof in vacation, on the record made before the commissioner and the county court. After the report of the commissioner on the claims against the estate of any decedent has been confirmed by the county court, or the circuit court on appeal, or corrected and confirmed after appeal, the same shall be forever binding and final.

§20. Report of Claims to be Recorded.—The report of claims, and the supplemental report of claims, if there be one, when confirmed by the county court, shall be recorded by the clerk of the county court in his office.

§21. Order in Which Debts of Decedent to be Paid.—When the assets of the decedent in the hands of his personal representative, after the payment of charges of administration, are not sufficient for the satisfaction of all demands against him, they shall be applied in the following order:

(a) To the payment of funeral expenses, to an amount not exceeding three hundred dollars;

(b) To the claims of physicians, not exceeding fifty dollars, for services rendered during the last illness of the decedent; and accounts of druggists, not exceeding the same amount, for articles furnished during the same period; and claims of professional nurses or other person rendering service as nurse to the decedent, at his request or the request of some member of his immediate family, not exceeding the same amount, for services rendered during the same period; and accounts of hospitals and sanitariums, not exceeding the same amount, for articles furnished and services rendered during the same period;

(c) To debts due the United States;

(d) To debts due this State;

(e) To taxes and levies assessed upon the decedent previous to his death;

(f) To debts due as trustee for persons under disabilities, as receiver or commissioner under decree of court of this State, as personal representative, guardian, committee, or other fiduciary, where the qualification was in this State;

(g) To the balances on any items listed in paragraphs (a) and (b) hereof and to all other demands except those in the next class;

(h) To voluntary obligations.(Code 1849, c. 130, §25; Code 1860, c. 130, §25; Code 1868, c. 85, §25; 1872-3, c. 122, §25; Code 1923, c. 85, §25.)

§22. Creditors to be Paid in Order of Classification, and Classes Ratably When.—No payment shall be made to creditors of any one class until all those of the preceding class or classes shall be fully paid; and when the assets are not sufficient to pay all the creditors of any one class, the creditors of such class shall be paid ratably; but a personal representative who, after twelve months from his qualification, pays a debt of his decedent, shall not thereby be personally liable for any debt or demand against the decedent of equal or superior dignity, whether it be of record or not, unless before such payment he shall have notice of such debt or demand by action, suit or presentation thereof to the commissioner of accounts within the time allowed by law.(Code 1849, c. 130, §26; Code 1860, c. 130, §26; Code 1868, c. 85, §26; 1872-3, c. 122, §26; Code 1923, c. 85, §26.)

§23. When Personal Representative Not Liable for Funds Distributed.—If any personal representative after one year from the qualification of the first executor or administrator of the estate, and after the report of claims has been made by the commissioner of accounts and been confirmed by the county court, and after withholding such funds as the commissioner of accounts shall direct to meet any contingent and unmatured claims and claims in action or suit, shall pay any legacy given by the will, or distribute any of the estate of his decedent in accordance with the commissioner’s report as confirmed, such personal representative shall not, on account of what is so paid or distributed, be personally liable for any debt or demand against the decedent, whether it be of record or not, unless, within the time fixed for presentation of claims or for suing thereon, such claim was duly presented or action or suit thereon commenced and process served on such personal representative.(Code 1849, c. 132, §31; Code 1860, c. 132, §31; Code 1868, c. 87, §30; 1872-3, c. 234, §31; 1882, c. 68, §30; Code 1923, c. 87, §30.)

§24. When Claims and Legacies May be Paid and Estate Distributed.—After the report of a commissioner on the claims against the estate of any decedent has been confirmed as aforesaid, and after one year from the time of the qualification of the first executor or administrator shall have elapsed, the personal representative may pay the claims allowed by the commissioner against the decedent’s estate or certified to him by courts wherein judgments or decrees against the estate have been rendered, according to the order of payment set forth in the commissioner’s report, and pay legacies and distribute the surplus among the parties entitled thereto in the amounts and proportions determined by the commissioner in his report as confirmed, withholding such sum as such report as confirmed states to be necessary for the payment of any contingent, unliquidated, or disputed claims, or claims not matured, or the proportions of any such equal to what is allowed to other creditors of the same class, and upon the determination from time to time of any such claims further payments and distributions may be made as the circumstances require. If the personal representative shall fail or refuse to pay claims and make distribution within three months following the time when he may legally do so, and no appeal has been taken from the order of confirmation of the report on claims, any party interested may institute a suit in chancery against such personal representative to compel payment and distribution as provided by section twenty-two, article four of this chapter.

§25. When Personal Representative Not be Compelled to Make Distribution.—A personal representative shall not be compelled to pay any legacy given by the will, or make distribution of the estate of his decedent, until after a year from the date of the order conferring authority on the first executor or administrator of such decedent, and not then unless the report of claims against the estate made by the commissioner of accounts has been confirmed and no appeal has been taken from the order of confirmation.(Code 1849, c. 132, §30; Code 1860, c. 132, §30; Code 1868, c. 87, §29; 1872-3, c. 234, §30; 1882, c. 68, §29; Code 1923, c. 87, §29.)

§26. When Claims Not Presented and Proved Barred of Recovery From Personal Representative.—Every person having a claim against a deceased person, whether due or not, who shall not, when notice to creditors has been published as prescribed in this article, have presented his claim on or before the time fixed in such notice, or before that time have instituted action or suit thereon, shall, notwithstanding the same be not barred by some other statute of limitations that is applicable thereto, be barred from recovering such claim of or from the personal representative, or from thereafter setting off the same against the personal representative in any action or suit whatever; except that if a surplus remain after providing for all claims presented in due time, or on which action or suit shall have been commenced in due time, and such surplus shall not have been distributed by the personal representative to the beneficiaries of the estate, and the claimant prove that he had no actual notice of the publication to creditors nor knowledge of the proceedings before the commissioner of accounts, such creditor may prove his claim either before the commissioner or by action or suit and have the same allowed out of such surplus; and, in order that such late claims if proved may be provided for, the commissioner shall reopen his report if the same has not been returned to the county court, or if returned shall make and return a supplemental report.

§27. When Distributees and Legatees May be Sued on Claims; Extent of Liability; Costs.—Every creditor who shall not have presented his claim to the commissioner of accounts before distribution of the surplus by the personal representative, or before that time shall not have instituted action or suit thereon against the personal representative, may, if not barred by limitation, bring his action or suit against the distributees and legatees, jointly or severally, at any time within two years after such distribution. But no distributee or legatee shall be required to pay to creditors suing by virtue of this section a greater sum than the value of what was received by him out of the decedent’s estate, nor shall any distributee or legatee be required to pay to any one creditor a greater proportion of such creditor’s debt than the value of what was received by such distributee or legatee bears to the total estate distributed. A creditor suing by virtue of this section shall not recover against, such distributees and legatees the costs of his action or suit.

§28. When Enforcement of Lien to Secure Claim Barred.—When the right to bring action or suit against distributees and legatees on any a claim against the decedent shall become barred, the right to enforce any lien on property given to secure such claim shall also become barred to the extent and to the amount that such claim could have been collected out of the personal assets of the decedent.

§1. Commissioners of Accounts.—The county court of each county, and the clerk of the county court in each county in which there exists a separate tribunal for police and fiscal purposes, shall appoint not more than four commissioners of accounts.(1863, c. 36, §1; 1882, c. 68, §6; 1883, c. 28, §6; 1885, c. 26, §6; Code 1923, c. 87, §6.)

§2. Same; Powers and Duties Generally.—The commissioners of accounts shall have general supervision of all fiduciary matters that are referred to them, and of the fiduciaries in charge thereof, and shall make all ex parte settlements of the accounts of such fiduciaries. Such commissioners shall have power to summon and compel the attendance of witnesses, to swear, and examine witnesses, take their depositions and certify their testimony. They shall also be conservators of the peace.(1882, c. 68, §6; 1883, c. 28, §6; 1885, c. 26, §6; Code 1923, c. 87, §6.)

§3. Special Commissioner of Accounts.—When, from any cause, none of the commissioners of accounts can act as to any matter or matters which may be passed on under the provisions of this chapter, such court or clerk, as is mentioned in section one of this article, may appoint some other person to act as to such matter or matters, and such person, as to them, shall have the powers and compensation and perform the duties of a commissioner of accounts.(1882, c. 68, §6; 1883, c. 28, §6; 1885, c. 26, §6; Code 1923, c. 87, §6.)

§4. Matters That Will Disqualify Commissioner of Accounts.—No person shall perform the duties of a commissioner of accounts in any matter wherein he will be passing upon his own account or acts; nor, where he will be called to pass upon any account or acts with reference to which he served as attorney or counsellor in or out of court; nor shall he be in any manner interested in the fees or emoluments of any fiduciary whose account or acts are before him for any action required by this chapter; nor shall he be qualified to act in or pass upon any matter before him in which, were he a judge of the circuit court, and the matter were therein pending, he would for any reason be disqualified to serve. Any person who violates this section shall be guilty of a misdemeanor, and, upon conviction thereof shall, for each and every violation, be fined not less than fifty nor more than five hundred dollars, or imprisoned in the county jail for not more than six months, or punished by both fine and imprisonment at the discretion of the court; and upon such conviction his office shall ipso facto become vacant.

§5. Commissioner of Accounts to Inspect Inventories and Accounts.—The commissioner of accounts shall inspect all inventories and accounts of sales returned to him by fiduciaries, require that they be in proper form, and, within ten days after they are respectively received and approved by him, deliver them to the clerk of the county court.

§6. Commissioner of Accounts to Inspect Bonds of Fiduciaries.—Each commissioner of accounts shall, at least once each month, ascertain from the records of the county court of his county what estates and fiduciary matters have been referred to him by the county court, or the clerk thereof, since such commissioner’s last inspection of the records, and examine as to each fiduciary, in any such estate or matter, whether he has given such bond as the law requires, and, if it appears that he has given no bond, or that his bond is defective, or that the surety therein has removed from the State, died, or become insolvent, or is bound already in too many other bonds, the commissioner shall make report thereof to his court at its next term and at the same time shall have such fiduciary summoned to appear at such term to show cause why he should not give such bond as is required by law. At such term such fiduciary shall be required forthwith to give such bond as is required by law, or shall have his authority revoked. And until a fiduciary has fully administered the estate or trust under his charge, and made his final account, the commissioner of accounts shall annually make like inspections of the bond of such fiduciary, and make like reports thereof and issue like summons whenever facts exist requiring same, and the court shall make such order as may be warranted by the facts then determined. An appeal from the order of the county court on any such order shall lie to the circuit court of the county, on request of the fiduciary or of the commissioner of accounts, if applied for before the end of the term of the county court at which such order was made. When such appeal is taken, the clerk of the county court shall certify all papers in the matter, including a copy of the bond, to the clerk of the circuit court, where the same shall be docketed and proceeded with as other appeals from the county court.

§7. When County Court to Refer Controversies to Commissioner of Accounts; Rules of Procedure.—The county court, whenever any controversy arises in connection with the probate of any will, or with the appointment and qualification of personal representatives, guardians, committees, or curators, or with the settlement of the accounts of any fiduciary, may, of its own motion, or on the motion of any party thereto, and shall, on the joint demand of the parties then appearing of record to the proceeding, refer the matter to a commissioner of accounts, or to a person specially appointed to act as commissioner, to hear proof on the same, to make findings thereon, and to advise the court on the law governing the decision of the matter. Any party may except to such commissioner’s finding of fact and law, and the court shall hear the case on the commissioner’s report and the exceptions thereto, without taking any additional evidence. In hearing and reporting on any such matter the commissioner of accounts shall be governed as to procedure by the law and practice, so far as applicable, controlling commissioners in chancery.

§1. Inventories.—Every personal representative, guardian, curator, or committee, shall, within two months after the date of the order conferring his authority, or qualifying him, return to the commissioner of accounts to whom the estate or trust has been referred, an inventory, in proper form, of all the personal and real estate which has come to his possession or knowledge, or which is under his management or subject to his authority in his fiduciary character; and shall, within two months after any other such estate shall come to his possession or knowledge, return to such commissioner a further inventory thereof. If any fiduciary shall fail to make the return herein first mentioned, or such commissioner shall have reason to believe that a fiduciary has failed to make the further return herein required, such commissioner of accounts shall summon such fiduciary to make the return as to which he appears to be delinquent; and if such return be not made within thirty days after the date of service of the summons, such commissioner shall make report of the fact to the circuit court of the county, or to the judge thereof in vacation, as soon as possible, and shall cause such fiduciary to be summoned to appear before such a court, or judge in vacation, on a day to be fixed by the court or judge, and the attendance of such fiduciary may be compelled by rule and attachment. Such fiduciary upon appearing shall, unless excused for sufficient reason, be fined by the court not less than fifty nor more than five hundred dollars, and be ordered by the court to make a such return, within a time to be specified by the court, and if he fail to comply with such order he shall be deemed guilty of contempt of court, and be dealt with accordingly. An appraisement of an estate as required by law shall be considered such an inventory as is required by this section if it be signed by the personal representative.(Code 1849, c. 132, §3; Code 1860, c. 132, §3; Code 1868, c. 87, §2; 1872-3, c. 234, §3; 1882, c. 68, §2; Code 1923, c. 87, §2.)

§2. Accounts of Sales.—Every such fiduciary shall, within two months after selling any property as such, return, to the commissioner of accounts to whom the estate or trust has been referred, an account of such sale; and it shall be the duty of such commissioner of accounts to proceed against any such fiduciary who fails to return an account of any sale in the same manner, and such fiduciaries shall be subject to the same penalties, as fiduciaries who fail to return inventories.(Code 1849, c. 132, §4; Code 1860, c. 132, §4; Code 1868, c. 87, §3; 1872-3, c. 234, §4; 1882, c. 68, §3; Code 1923, c. 87, §3.)

§3. Record of Inventories, Appraisements and Sales.—Every inventory, appraisement and account of sales returned under this article shall be recorded by the clerk of the county court in appropriate books and indexed in the same manner as the record of fiduciaries.(Code 1849, c. 132, §5; Code 1860, c. 132, §5; Code 1868, c. 87, §4; 1872-3, c. 234, §5; 1882, c. 68, §4; Code 1923, c. 87, §4.)

§4. Fiduciaries to Exhibit Accounts for Settlement.—A statement of all the money which any personal representative, guardian, curator, or committee, shall have received, or become chargeable with, or have disbursed, within one year from the date of his qualification, or within any succeeding year, together with the vouchers for such disbursements, shall, within four months after the end of every such year, be exhibited by him before the commissioner of accounts to whom the estate or trust has been referred; and a statement of all the money which any trustee other than a trustee acting under a trust created to secure the payment of debts or to indemnify a surety, shall have received or become chargeable with, or have disbursed, within a year from the date of receiving any money under the provisions of his trust, or within any succeeding year, together with the vouchers for such disbursements, shall, within four months after the end of every such year, be laid by him before a commissioner of accounts to be designated by the county court of the county wherein the instrument creating the trust was first recorded; and such commissioner shall state, settle and report to the court or clerk appointing him an account of the transactions of any such fiduciary as provided by law. If any such fiduciary shall fail to make such exhibit, the commissioner of accounts before whom he should make such exhibit and the circuit court shall proceed against him in like manner, and the court shall impose the same penalties, unless such fiduciary is excused for sufficient reason, as are provided in cases where fiduciaries fail to return inventories of their respective estates.(Code 1849, c. 132, §7; Code 1860, c. 132, §7; Code 1868, c. 87, §6; 1872-3, c. 234, §7; 1882, c. 68, §6; 1885, c. 26, §6; Code 1923, c. 87, §6.)

§5. Fiduciaries From Whom Inventories Appraisals, or Accounts Are Due When This Article Effective May be Proceeded Against.—Any fiduciary who has been appointed or qualified before this article takes effect and has not given sufficient bond, nor returned any inventory and/or account as required by law, nor has had any appraisal made of the estate under his control and management, nor has fully and finally accounted, may be summoned, by such commissioner of accounts as the county court shall designate, to appear before him to return such inventory, appraisal or account as may be due from him, or to appear before the county court or clerk and give a sufficient bond, if one has not been given. Any fiduciary who fails to comply with such summons shall be proceeded against in the same manner, and be subject to the same penalties, as this article provides for fiduciaries who fail to return inventories or to render accounts.

§6. Fiduciaries of Small Estates May Account Once in Three Years.—A fiduciary who is in charge of a trust fund, the principal of which is not distributable until some future time, shall not be compellable by a commissioner of accounts or the court to make statement of his account, before the time for distribution of principal, oftener than once in every three years, if he shows to the satisfaction of such commissioner or the court that the income of the trust fund in his hands does not average annually more than three hundred dollars; nor shall the fiduciary, in such case, lose his commissions, or suffer any penalties, for failure to account oftener than herein provided for.

§7. Examination of Bonds at Time of Accounting, and When Requested by Interested Party.—When any fiduciary, except a sheriff, shall have laid the statement required of him by law before a commissioner of accounts or before a commissioner in chancery having before him the account of such fiduciary for settlement, such commissioner of accounts or in chancery, as the case may be, shall examine whether such fiduciary has given such bond as the law requires, and whether the penalty thereof and the sureties thereon are sufficient. The commissioner of accounts to whom the estate or trust was referred shall, at any time before such statement is laid before such commissioner, upon the application of any person who is interested or appears as next friend of a person under disability who is interested, after reasonable notice to such fiduciary, examine into any of such matters, or inquire whether security ought to be required of a fiduciary who may have been allowed to qualify without giving it, or whether, by reason of the incapacity, misconduct or removal of any fiduciary from this State, or for any other cause, it is improper to permit the esstate of the decedent, ward, beneficiary, or other person, to remain under his control. The result of every such examination and inquiry shall be reported by such commissioner to the court then having jurisdiction over such fiduciary and his account.(Code 1849, c. 132, §10; Code 1860, c. 132, §10; Code 1868, c. 87, §9; 1872-3, c. 234, §10; 1882, c. 68, §9; Code 1923, c. 87, §9.)

§8. Settlements for Previous Years; Objections to Account.—When a commissioner has before him for settlement the account of a fiduciary for any year, if there be any time prior to such year for which the fiduciary has not settled, the settlement shall be also for such time; and also if there be any errors or omissions in accounts for any previous years or periods the same shall be corrected in such settlement. Any person who is interested or appears as next friend for another interested in any such account may, before the commissioner, insist upon or object to anything which could be insisted upon or objected to by him, or for such other, before a commissioner acting under an order of a court of chancery for the settlement thereof made in a suit to which he or such other was a party.(Code 1849, c. 132, §17; Code 1860, c. 132, §17; Code 1868, c. 87, §16; 1872-3, c. 234, §17; 1882, c. 68, §16; Code 1923, c. 87, §16.)

§9. Failure to Account Forfeits Commissions Unless Allowed by Court.—If any such fiduciary shall wholly fail to lay before the commissioner of accounts, to whom the estate or trust has been referred, a statement of receipts for any year, within four months after its expiration, and though a statement be laid before such commissioner, yet if such fiduciary be found chargeable for that year with any money not embraced in such statement, he shall have no compensation for his services during such year, nor commission on such money, unless allowed by the court. This section shall not apply to a case in which, within four months after the end of any one year, such fiduciary shall have given to the parties entitled to the money received in such year, a statement of such money, and actually settled therefor with them; nor to a case in which, within such four months after the end of any one year, a fiduciary shall have laid a statement of his receipts within such year before a commissioner who may, in a pending suit, have been ordered to settle his account.(Code 1849, c. 132, §8; Code 1860, c. 132, §8; Code 1868, c. 87, §7 ; 1872-3, c. 234, §8; 1882, c. 68, §7; Code 1923, c. 87, §7.)

§10. How Accounting Compellable by Person Interested.—When any fiduciary shall have so failed to lay before a commissioner of accounts a statement of his receipts for any year, the county court shall, upon request made to it, within ten years from the commencement of such year, by any person who is interested as creditor, legatee, distributee, surety of such fiduciary, or otherwise, or who appears as next friend of a person under disability who is so interested, refer the matter to one of the commissioners of accounts, who shall issue a summons directed to the sheriff or other officer of any county, requiring him to summon such fiduciary to lay before such commissioner a statement of his receipts and disbursements, accompanied by his vouchers, for such year, and for the time which may have since elapsed. If the same be not, within one month after the service of such summons, laid before the commissioner, he shall report the fact to the circuit court of his county, or to the judge thereof in vacation, and such a fiduciary shall be proceeded against in like manner, and be subject to the same penalty, as is provided in cases where fiduciaries fail to return inventories of their respective estates.(Code 1849, c. 132, §9; Code 1860, c. 132, §9; Code 1868, c. 87, §8; 1872-3, c. 234, §9; 1882, c. 68, §8; Code 1923, c. 87, §8.)

§11. Publication and Posting of List of Fiduciaries Prior to Settlements.—Every commissioner of accounts shall, on the first Monday of every month, prepare a list of the fiduciaries whose accounts are at the date of such list before him for settlement, except those that may have been mentioned in some previous list, stating the names of such fiduciaries, the nature of their accounts, whether as personal representative, guardian, curator, committee, or trustee, and the names of their decedents, or of the persons for whom they are guardians, curators, or committees, or under whose deed or other instrument of trust they are acting; and shall also publish such list once a week for two successive weeks, beginning on said first Monday of the month, or on some following day of the same week, in some newspaper published in the county, or if no newspaper be published in the county, then the commissioner shall post such list on said first Monday at the front door of the courthouse of his county and publish the same as above prescribed in a newspaper of general circulation in the county. No account of any fiduciary shall be completed by any commissioner until it shall have been mentioned in such a list, nor until the completion of such publication and the expiration of ten days after such posting when required. Any commissioner of accounts who fails to publish, or to post and publish, such list shall be fined twenty dollars. The cost of the publication of such list shall be borne by the commissioner, but he may charge to, and collect from, each of the fiduciaries in the list his proportionate part of the cost thereof as and when the commissioner collects his fees for settling the accounts of such fiduciary.(Code 1849, c. 132, §16; Code 1860, c. 132, §16; Code 1868, c. 87, §15; 1872-3, c. 234, §16; 1882, c. 68, §15; Code 1923, c. 87, §15.)

§12. Securities and Moneys to be Exhibited to Commissioner of Accounts.—In settling the account of any fiduciary, the commissioner of accounts shall require him, or any of them, if there are more than one, to produce, before the completion of the account, any securities or moneys comprised in the account or any documents relating to the investments of the estate, and the commissioner shall check the same with the items with which such fiduciary has charged himself, and with the inventory and appraisement of the estate or trust, and the commissioner in his report shall show what money and securities were so produced before him. In case the commissioner finds a shortage of money or securities, he shall cause a rule to be issued against the fiduciary to show cause before the circuit court, or judge thereof in vacation, of the county wherein such fiduciary qualified, why such fiduciary should not be required to replace any moneys or securities that have been improperly applied or disposed of, or the value thereof; and the proceedings upon every such rule shall be considered for all purposes to be proceedings in equity, and the orders and decrees therein shall be enforceable accordingly; and such court or judge thereof shall have full power to require such fiduciary to replace any moneys, securities or property that have been improperly applied or disposed of, or the value thereof, or to pay or transfer the same or any moneys, securities, or property, with which such fiduciary may be charged, into a proper account or otherwise, as such court or judge thereof may order; and if such order or decree be not complied with within a time to be fixed by the court, the powers of such fiduciary shall be ipso facto revoked and annulled, and the court shall so order. The failure of such fiduciary to comply with such order or decree shall also be a breach of the bond of such fiduciary.

§13. Liability for Losses or Failure to Make a Defense.—If any personal representative, guardian, curator or committee shall, by his negligence or improper conduct, lose any debt or other money, he shall be charged with the principal of what is so lost and interest thereon in like manner as if he had received such principal. And if any personal representative, guardian, curator or committee shall pay any debt, the recovery of which could be prevented by reason of illegality of consideration, or lapse of time, or otherwise, when he knows, or by the exercise of due diligence could ascertain, the facts by which the same could be so prevented, no credit shall be allowed him therefor.(Code 1849, c. 132, §6; Code 1860, c. 132, §6; Code 1868, c. 87, §5; 1872-3, c. 234, §6; 1882, c. 68, §5; Code 1923, c. 87, §5.)

§14. Compensation and Expenses of Fiduciaries.—The commissioner in stating and settling the account shall allow the fiduciary any reasonable expenses incurred by him as such; and also, except in cases in which it is otherwise provided, a reasonable compensation in the form of a commission on receipts or otherwise. Any executor, administrator, guardian, committee, trustee, assignee, receiver, special commissioner, or other fiduciary, required by law, or by the order of any court or judge, to give a bond or obligation as such, may include, as a part of the a lawful expense of executing his trust, such reasonable sum paid a company, authorized under the laws of this State so to do, for becoming his surety on such bond or obligation, as may be allowed by the court in which, or the commissioner before whom, he is required to account, or a judge of such court, not exceeding, however, one-third of one per cent per annum on the amount of such bond or obligation.(Code 1849, c. 132, §18; Code 1860, c. 132, §18; Code 1868, c. 87, §17; 1872-3, c. 234, §18; 1882, c. 68, §17; 1901, c. 18, §1; Code 1923, c. 87, §§17, 17a.)

§15. Receipt to be Given Fiduciaries for Vouchers.—Any commissioner of accounts or commissioner in chancery, having before him the accounts of a fiduciary for settlement, shall, on request, execute and deliver to such fiduciary a receipt for all vouchers filed with him, which receipt, if such vouchers be afterwards lost or destroyed, shall, in any suit or proceeding against such fiduciary, be evidence of the delivery to such commissioner of the vouchers therein mentioned.

§16. Reports of Commissioner of Accounts.—Every account stated under this article shall be reported with any matters specially stated, deemed pertinent by the commissioner, or which may be required by any person interested to be so stated.(Code 1849, c. 132, §19; Code 1860, c. 132, §19; Code 1868, c. 87, §18; 1872-3, c. 234, §19; 1882, c. 68, §18; Code 1923, c. 87, §18.)

§17. Exceptions to Report.—Upon completion of such report of settlement of account the commissioner shall give notice thereof, either verbally or in writing, delivered personally or by mail, to all parties interested or their attorneys, and hold the report, vouchers, and any evidence taken in connection with the report, in his office for ten days, during which time any person interested may inspect the same and file exceptions thereto.(Code 1849, c. 132, §20; Code 1860, c. 132, §20; Code 1868, c. 87, §19; 1872-3, c. 234, §20; 1882, c. 68, §19; Code 1923, c. 87, §19.)

§18. Filing of Report and Vouchers.—The commissioner shall file the report in the office of the court by which he is appointed, as soon as practicable after the expiration of such ten days; and with his report he shall return all evidence taken before him and such exceptions, with such remarks as he may see fit to make, and such of the vouchers as any person interested may desire him to return, or as he may deem proper.(Code 1849, c. 132, §21; Code 1860, c. 132, §21; Code 1868, c. 87, §20; 1872-3, c. 234, §21; 1882, c. 68 §20; Code 1923, c. 87, §20.)

§19. Examination and Correction or Recommital of Report.—The court, at its first regular term occurring not less than ten days after the report has been filed in the office of its clerk, shall examine the same, with the evidence and such exceptions to the report as may be filed at any time before such examination. It shall correct any errors which shall appear from the exceptions, and any appearing on the face of the account, whether excepted to or not; and to this end may commit the report to the same, or to another commissioner, as often as the court sees cause; or it may confirm the report in whole or in a qualified manner. The county court, and the circuit court, if there be appeal from the county court in any such matter, shall hear no new evidence, but, if good cause therefor be shown, the court may recommit the report for the taking of further evidence and further report. The clerk shall, in a book kept for the purpose, record every report which may be confirmed, and at the foot of it the order of confirmation. The evidence and any exceptions shall remain on file in the clerk’s office, but any voucher returned with the report or remaining with the commissioner at the time of such confirmation, and not wanted for any further matter of inquiry before him, shall be returned by him to the party who filed the same.(Code 1849, c. 132, §22; Code 1860, c. 132, §22; Code 1868, c. 87, §21; 1872-3, c. 234, §22; 1882, c. 68, §21; 1883, c. 28, §21; Code 1923, c. 87, §21.)

§20. Effect of Confirmation of Report; How Made Conclusive.—The report, to the extent to which it may be so confirmed by the county court, or confirmed on appeal by the circuit court, shall be taken to be correct, and shall be binding and conclusive upon creditors of a decedent’s estate, and binding and conclusive upon every beneficiary of the estate or trust who has had notice that the report has been laid before the commissioner for settlement, or upon completion of the report was notified by the commissioner of its completion and that the same would remain in his office ten days subject to inspection and exception. Such notices to any creditor or beneficiary who is under disability shall be given by personal service on the guardian or committee of such person; and, where the report is that of a guardian, committee or curator, the notice shall be served personally on the infant, ward or beneficiary and on the person or persons having his custody, or upon the guardian ad litem of such infant, ward or beneficiary that may be appointed for the purpose by the county court.(Code 1849, c. 132, §23; Code 1860, c. 132, §23; Code 1868, c. 87, §22; 1872-3, c. 234, §23; 1882, c. 68, §22; Code 1923, c. 87, §22.)

§21. Investment of Funds May be Ordered.—When it appears by a report made as aforesaid or a special report of the commissioner of accounts that money is in the hands of any such fiduciary, the court, before which the report so comes, may order the same to be invested or loaned out as provided in article six of this chapter.(Code 1849, c. 132, §24; Code 1860, c. 132, §24; Code 1868, c. 87, §23; 1872-3, c. 234, §24; 1882, c. 68, §23; Code 1923, c. 87, §23.)

§22. Disbursement of Balance After Settlement; Suit to Compel Disbursement; Final Report of Fiduciary Following Disbursement.—When a court shall have confirmed, either in whole or in a qualified manner, a report of the accounts of any guardian, curator, committee, or trustee, as aforesaid, such court may order payment of what shall appear due on such accounts to such persons as would be entitled to recover the same by a suit in equity. If such order be not complied with, any person interested may bring a suit in chancery in the circuit court of the county wherein such order was made, to compel compliance therewith; and in such suit such order shall be taken as prima facie correct, and there shall be a decree according to such order, except so far as it may appear upon proper pleadings and proofs to be erroneous. If any fiduciary make any payment in accordance with such order of the county court more than three months after such order was made, and before suit shall have been commenced under this section, such payment shall not be disturbed nor shall such fiduciary be in any wise liable with respect thereto. And when such guardian, curator, committee, or trustee, shall have fully paid out all the funds in his hands as such, he shall within ninety days thereafter, or at the first term of such court thereafter, make a final, full and detailed report to such court of such payments, and file therewith the vouchers for such disbursements; and when the court, upon examination of such report and vouchers, ascertains the same to be correct, it shall approve and confirm such report and order the same to be recorded. And the clerk of such court shall record every such report which may be so confirmed, and at the foot of it the order of confirmation. It shall be the duty of the commissioner of accounts who made the report in this section first mentioned, to see that such fiduciary renders, in proper form, the final report herein required, and, in case of the failure of such fiduciary to render such final report, he shall be proceeded against in the same manner, and be subject to the same penalties, as a fiduciary who fails to return an inventory or to lay his accounts before a commissioner of accounts for settlement.(Code 1849, c. 132, §26; Code 1860, c. 132, §26; Code 1868, c. 87, §25; 1872-3, c. 234, §26; 1882, c. 68, §§25, 32; 1903, c. 14, §25; Code 1923, c. 87, §§25, 32.)

§23. How Fiduciary Accounts Settled in Suits to be Recorded.—When the account of any fiduciary is settled in a suit, it shall be the duty of the clerk of the court in which such suit is, within ten days after the close of the term of court at which the final decree in such suit is entered, to certify, to the clerk of the court wherein such fiduciary qualified, such account so far as the same has been confirmed, with a memorandum at the foot thereof stating the style of the suit and the date of the final decree rendered in such suit. The clerk receiving such account and memorandum so certified shall record the same in the same book in which the accounts settled before a commissioner of accounts are recorded, and after such recordation the original account and memorandum shall be returned to the clerk from whom the same were certified and transmitted. If in any proceedsings subsequent to such final decree, by appeal or otherwise, such account shall be reformed or altered, such reformed or altered account shall in like manner be certified and recorded, together with a memorandum stating the style of the suit and the date of the decree of confirmation. The fees for making such certification and for such recording shall be paid as the court in which the suit may be, or the judge hereof, shall direct. Any clerk failing to comply with this section shall be subject to the same penalties as clerks of the county court who fail to keep a list of fiduciaries.(1882, c. 68, §7; Code 1923, c. 87, §7.)

§1. List of Fiduciaries.—The clerk of the county court of each county shall keep a record, to be known as the “Record of Fiduciaries,” in which he shall enter, in separate columns, first, the name of every fiduciary authorized to act as such by such county court or clerk thereof; secondly, the name of the decedent for whose estate he is personal representative or curator; thirdly, the names of the distributees of such estate, showing their relation to the decedent; fourthly, the name of the living person or persons for whom he is guardian, curator, committee, or trustee; fifthly, the penalty of his bond; sixthly, the names of his sureties; seventhly, the date of the order conferring his authority, and a reference to the book and page where entered; eighthly, the date of any order revoking his authority, and a reference to the book and page where entered; ninthly, the date of the return of every inventory and appraisement of the estate; tenthly, the date of the confirmation of each report of settlement of the accounts of such fiduciary; and the clerk shall index such record in the name of the decedent, estate, ward, or person represented by such fiduciary. Any clerk failing to make such entry, as to any fiduciary, within ten days after the order conferring or revoking the authority, or the date of the return of such inventory and/or appraisement, or the date of the confirmation of any report of settlement, shall, for every such failure, forfeit twenty dollars.(Code 1849, c. 132, §§1, 2; Code 1860, c 132, §§1, 2; 1872-3, c. 234, §§1, 2; 1882, c. 68, §1; 1903, c. 12, §1; Code 1923, c. 87, §1.)

§2. Fiduciary Records of Circuit Court be Deposited in County Clerk’s Office.—The circuit court of each county shall, as soon as may be after this Code becomes effective, direct its clerk to transfer to the office of the clerk of the county court of its county any wills, records of wills, records of the appointment and qualification of personal representatives, guardians, curators, or committees, and records of their oaths, bonds, inventories, appraisements, and settlements, heretofore kept in their said courts, and the clerk of the county court shall keep an preserve the same among the other similar records of his office. If the same are not properly and completely indexed when deposited in his office, the county clerk shall make a full and complete index to the same.

§3. Nonresident Not to be Appointed.—Notwithstanding any other provision of law, no person not a resident of this State shall be appointed or act as executor, administrator, curator, guardian, or committee, except that a testator who is a nonresident of the State at the time of his death may name, and there may be appointed and act, a nonresident as his executor, and except that for the guardian of an infant who is a nonresident of the State there may be appointed the same person who was appointed guardian at the domicile of the infant.(1903, c. 13, §4; Code 1923, c. 85, §4.)

§4. Who Not to be Accepted as Surety on Fiduciary’s Bond.—A judge of the circuit court, member of the circut court, clerk or deputy clerk of the circuit or county court, sheriff or deputy sheriff, a commissioner of accounts, or an attorney at law, shall not be taken as surety in any bond required to be given by any fiduciary. When, for any reason, the provisions of this section shall be violated in the taking of any bond, the bond so given shall not be void, but upon the discovery of such fact a new bond shall be required of the fiduciary.

§5. When Additional or New Bond May be of Required of a Fiduciary, or His Authority be Revoked.—The court under whose order, or under the order of whose clerk, any such fiduciary derives his authority, when it appears proper on any report of the clerk or a commissioner of accounts, or a commissioner in chancery, or on evidence adduced before it by any party interested, may, at any time, whether such fiduciary shall or shall not have before given any bond, or whether he shall have given one with or without sureties, order him to give before such court an additional bond within a prescribed reasonable time, in such penalty, and with or without sureties, as may appear proper; or when any surety on the bond of a fiduciary, or the personal representative of any such surety, shall apply therefor, such court shall order such fiduciary to give before such court a new bond within a prescribed reasonable time, in such penalty, and with such sureties, as may appear proper; and may, in either case, if the order be not complied with, or whenever from any cause it appears proper, revoke and annul the powers of such fiduciary; but no such order shall be made unless reasonable notice shall have been given to such fiduciary by the clerk or the commissioner who made such report, or by the surety or the personal representative of the surety making the application aforesaid, or by the service of a rule or otherwise. And no such order of revocation shall invalidate any previous acts of such fiduciary.(Code 1849, c. 132, §11; Code 1860, c. 132, §11; Code 1868, c. 87, §10; 1872-3, c. 234, §11; 1882, c. 68, §10; Code 1923, c. 87, §10.)

§6. Jurisdiction of Court on Revocation of Fiduciary’s Authority.—After the date of any order revoking and annuling the powers of any fiduciary, the court in which he qualified shall exercise such jurisdiction, either by appointing an administrator de bonis non, or a new guardian, or otherwise, as it could have exercised if such fiduciary had died at that date.(Code 1849, c. 132, §13; Code 1860, c. 132, §13; Code 1868, c. 87, §12; 1872-3, c. 234, §13; 1882, c. 68, §12; Code 1923, c. 87, §12.)

§7. Authority of Fiduciaries to Compound and Compromise Liabilities Due to or From Them.—It shall be lawful for any guardian, committee, or trustee, to compound and compromise any liability due to or from him, provided that such compounding and compromise be ratified and approved by a court of equity of competent jurisdiction, all parties in interest being before such court by proper process. When such compounding and compromise shall have in been so ratified and approved, it shall be binding on all parties in interest before such court. It shall be lawful for any personal representative to compound and compromise any liability due to or from him, provided such compounding and compromise be ratified and approved by the commissioner of accounts, to whom the estate or trust has been referred, or a commissioner in chancery when the estate of the decedent is being settled in a chancery suit, and be reported by the commissioner to his court, and when such report is confirmed, such compounding and compromise shall be binding on all parties to he proceedings.

§8. How Transfer of Securities to Successor Compelled.—When any securities for money loaned or invested, or any money, or property of any kind or nature, shall be standing in the name of any fiduciary who shall have died or resigned, or whose powers shall have been revoked, and such fiduciary or his personal representatives shall not have transferred such securities, money, or property to his successor, the circuit court of the county, or the judge thereof in vacation, in which such fiduciary shall have qualified, upon the petition of such successor, or of any other person interested, may direct such securities, money, or property to be transferred to such successor, and may direct the dividends, interest, income, or proceeds of such securities, money or property to be received or paid in such manner as such court shall think proper.(Code 1849, c. 132, §25; Code 1860, c. 132, §25; Code 1868, c. 87, §24; 1872-3, c. 234, §25; 1882, c. 68, §24; Code 1923, c. 87, §24.)

§9. Costs in Proceedings to Compel Fiduciaries to Comply with Law.—The costs of any proceedings, authorized or directed to be brought against any fiduciary to enforce or compel his compliance with the requirements of the law, shall include a reasonable fee to the commissioner of accounts at whose instance the same are had, and shall be charged and paid as the court may direct; but in every case where the fiduciary is in default, without reasonable excuse therefor, such costs shall be adjudged against and paid by the fiduciary personally. In no case shall such costs be adjudged against the commissioner of accounts, unless he instituted such proceedings in bad faith.

§10. Powers of Clerk of County Court in Certain Counties.—In each county in which there exists a separate tribunal for police and fiscal purposes, created under article eight, section thirty-four, of the Constitution of eighteen hundred and seventy-two, the clerk of the county court shall have the powers and discharge the duties which by this chapter are vested in and imposed upon the county court.(Const. 1872, art. 8, §34; 1882, c. 68, §34; Code 1923, c. 87, §34.)

§1. Fiduciaries to Put Money Out at Interest.—Executors, administrators, guardians, curators, committees, or trustees may, by direction of the circuit court of the county where they were appointed or qualified, put out at interest all moneys in their hands which they are or may be lawfully required to retain, whether the same belongs to minors, legatees or other person or persons, upon such security, and for such length of time, as such court will allow, and if the security so taken, bona fide and without fraud, shall prove insufficient, it shall be the loss of the beneficiaries entitled thereto; and it shall be the duty of such executors, administrators, guardians, curators, committees or trustees, in cases where the estates in their hands may be materially benefited thereby, to make application to such circuit court for such direction, and in case they shall neglect so to do they shall be accountable for the interest that might have been made thereby; but if no person who may be willing to take such money at interest, giving such security, can be found by such executors, administrators, guardians, curators, committees, or trustees, then such executors, administrators, guardians, curators, committees, or trustees shall, in such cases, be accountable for the principal money only, until it can be put out at interest as aforesaid; but in any case where executors, administrators, guardians, curators, committees or trustees use the money of the estates which shall come to their hands, they shall be accountable not only for the principal, but also for the interest thereon.

§2. In What Securities Fiduciaries May Invest Trust Funds.—Any executor, administrator, guardian, curator, committee, trustee, or other fiduciary whose duty it may be to loan or invest money intrusted to him as such, may, without any order of any court, invest the same or any part thereof in any of the following securities:

(a) In bonds or interest-bearing notes or obligations of the United States, or those for which the faith of the United States is distinctly pledged to provide for the payment of the principal and interest thereof, including bonds issued under the Federal Farm Loan Act;

(b) In bonds or interest-bearing notes or obligations of this State;

(c) In bonds of any state of the United States which has not within ten years previous to the making of such investment defaulted in the payment of any part of either principal or interest on any of its bonds issued by authority of the legislature of such state;

(d) In the bonds or interest-bearing notes or obligations of any county, district, school district or independent school district, municipality, or any other political division, of this State that have been issued pursuant to the authority of any law of this State, since the ninth day of May of the year nineteen hundred and seventeen;

(e) In bonds and negotiable notes secured by first mortgage or first trust deed upon improved real estate in this State where the amount secured by such mortgage or trust deed shall not at the time of making the same exceed eighty per cent of the assessed value of the real estate covered by such mortgage or trust deed, and when such mortgage or trust deed is accompanied by a satisfactory abstract of title, certificate of title, or title insurance policy, showing good title in the mortgagor when making such mortgage or trust deed, and by a fire insurance policy in an old line company with loss, if any, payable to the mortgagee or trustee as his interest may appear: Provided, That the rate of interest upon any of the above enumerated securities, in which such investments may be made, shall not be less than four per cent, nor more than seven per cent, per annum.

This section shall not apply where the instrument creating the trust, or the last will and testament of any testator, or any court having jurisdiction of the matter, specially directs in what securities the trust funds shall be invested, and every such court is hereby given power specially to direct by order or orders, from time to time, additional securities in which trust funds may be invested, and any investment thereof made in accordance with any such special direction shall be legal, and no executor, administrator, guardian, curator, committee, trustee, or other fiduciary, shall be held liable for any loss resulting in any such case.

§3. Authority for Investment.—When any fiduciary desires the authority or direction of the circuit court with respect to the investment of any funds in his hands, he shall file his petition in the circuit court of the county in which he qualified, setting out fully the facts, and verifying such petition by his affidavit. Ten days’ notice of the time fixed for the hearing on the petition shall be served on the beneficiaries of such trust funds, who shall be made defendants thereto, and, for any who may be under a disability, a guardian ad litem shall be appointed. Such guardian ad litem shall answer the petition under oath, and be present at the hearing and represent the interests of the person or persons for whom he shall have been appointed guardian ad litem. The matters arising on such petition may be heard upon affidavits, or depositions duly taken and returned, or upon oral testimony. The court upon the hearing may make such order in relation to the investment of the trust funds as may be to the best interests of the beneficiaries thereof. Such petition may be filed, and the hearing thereon had, by the judge of the court in vacation, as well as by the court in term time.

§4. Beneficiaries May Have Fiduciary Instructed by Court as to Investments.—The circuit court of the county where any fiduciary qualified, or the judge of such court in vacation, may, on the application of any person interested in the estate or trust in charge of such fiduciary, after ten days’ notice to such fiduciary and all other persons interested therein, authorize or require the fiduciary to sell and transfer any securities, or any other personal estate or effects, held by him in his fiduciary capacity, and to invest the proceeds of such sale, and also any other moneys in his hands, in other securities, or in any other manner that shall to the court be deemed best for the interests of all concerned therein; and such circuit court or judge may make such further orders, and give such directions, as the case may require, for managing, investing and disposing of the estate and effects in the hands of the fiduciary.

§5. Application to Circuit Court for Directions Regarding Estate Held to Meet a Contingency.—Whenever, under the provisions of a will, it shall be necessary for the personal representative to retain in his hands the personal estate, or any part thereof, after all just claims are discharged, as where money or some other thing is directed to be paid at a distant period, or upon a contingency, the circuit court of the county in which such personal representative qualified, or the judge of such court in vacation, shall have the power, on the application of such personal representative, or of a party interested, after ten days’ notice to all parties interested in the retained funds or estate, to decree and give directions thereto; and in any such case it shall be the duty of such personal representative to make such application to such court, or judge thereof in vacation; and such court, or judge thereof in vacation, shall have full power to decree or direct what part of the personal estate shall be retained or appropriated for the purpose, in what manner it shall be disposed of, how the legacy or benefit intended by the will shall be secured to the person to be entitled at a future period or contingency, how the necessary part of the personal estate to be appropriated for the purpose shall be prevented from being unproductive, and how it shall be applied, agreeably to the intent of the will or the construction of law, in case the contingency shall not take place.

§1. Fiduciary Desiring to Resign to File Petition; Summons Thereon.—Any executor, administrator, guardian, curator or committee, desiring to resign his trust, may file his petition for that purpose in the county court of the county in which he was appointed as such, stating the names of all persons, so far as known by him, interested in the estate in his hands or under his control, and to which his duties as such fiduciary relate, and if any of them be under disability, or nonresidents of the State; or if there be persons interested in such estate whose names are unknown, all of such facts, and the names of the guardians and committees of such persons under disability, if there be such guardians or committees, shall be stated in the petition. Upon the filing of such petition the clerk of the court shall issue a summons against all the persons so named and the guardians and the committees of such as are under disability, if they have any, and against “the unknown parties in interest,’’ if any there be, mentioned in such petition, to appear before the court on a day to be named in the summons, which day shall be not less than thirty days from the filing of such petition, and answer the same, and state to the court the reasons, if any they have, why such petition should not be granted. If any of the persons so interested reside in an other county in this State, the summons as to them shall be directed and sent by mail by the clerk to the sheriff of that county to be served and returned by him; and as to the persons named in such petition who reside out of this State, or who can not by the use of due diligence be found, and as to such unknown parties, an order of publication shall be awarded against them, which shall be published or posted and published, as in cases of appointment and qualification of personal representatives.(1891, c. 87, §1; Code 1923, c. 118, §1.)

§2. Copy of Petition and Summons to be Served on Commissioner of Accounts.—Such fiduciary as is mentioned in the preceding section shall cause to be served, on the commissioner of accounts whom the county court shall designate, a copy of his petition and a copy of the summons issued thereon, at least ten days before the return day of the summons; and such commissioner of accounts shall investigate the records of the county court to see if such fiduciary has rendered such inventories, appraisements, and accounts as the law requires, and whether any further accounts should be required of him, and on or before the return day certify the facts relating to such matters to the county court. For making such investigation and certificate such commissioner of accounts shall be allowed a fee of not less than one dollar, nor more than ten dollars, as the court may direct, to be charged and collected as other costs on such petition.

§3. Hearing on Petition.—When the summons shall have been served upon all the parties named and referred to in the petition, and any necessary order of publication shall have been duly completed, the court shall, on the day named in the summons, or on some later day to which a continuance may have been taken, proceed to hear the matter. If no objection be made to the resignation of such fiduciary by any person interested in the estate mentioned in the petition, and if the commissioner’s certificate shows he has fully and properly rendered all inventories, appraisements and accounts due from him, his resignation may be accepted and entered of record by the court. But if objection be made by any such person on the ground that such fiduciary has not fully settled and accounted for the estate committed to his care, at the time of filing his petition, or for any other valid reason, or it appears from the commissioner’s certificate that an inventory, an appraisement, or an account is due from such fiduciary, the petition and objections or commissioner’s certificate shall be referred to such commissioner of accounts, or to some other commissioner of accounts, or to a special commissioner appointed for the purpose, to do and perform such duties, and report upon such matters and things as are stated in the order of reference, and report the same to the court. The same proceedings shall be had on such order of reference and the report when made as are had in the circuit court in a suit in chancery in that court. If it shall appear to the court in any such case that such fiduciary has not fully settled and accounted for the estate committed to his charge, or that there is money or other property in his hands, or under his control, not yet paid over or disposed of, such orders as may be necessary and proper for the disposition and safe keeping thereof shall be made by the court, and when such orders are complied with by such fiduciary, his resignation may be accepted. But his resignation when accepted shall not affect or impair the liability of the sureties of such fiduciary, on his official bond in force at the time of his resignation and the acceptance thereof, for any default by him in the discharge of his duties as such fiduciary, remaining unsettled or unsatisfied. The costs in such cases shall be paid as the court may order.(1891, c. 87, §1; Code 1923, c. 118, §1.)

§1. Sale of Property or Receipt of Rents and Profits by Executor or Administrator With Will Annexed.—Real estate devised to be sold shall, if no person other than the executors be appointed for the purpose, be sold and conveyed, and the proceeds of sale, or the rents and profits of any real estate which executors are authorized by the will to receive, shall be received by the executors who qualify, or the survivor of them. If none qualify, or those qualifying die, resign, or are removed before the trust is executed or completed, the administrator with the will annexed shall sell or convey the lands so devised to be sold, and receive the proceeds of sale, or the rents and profits aforesaid, as an executor might have done.(Code 1849, c. 131, §1; Code 1860, c. 131, §1; Code 1868, c. 86, §1; 1882, c. 69, §1; Code 1923, c. 86, §1.)

§2. Rents, Profits or Proceeds of Sale to be Paid to Persons Entitled.—It shall be one of the duties of an executor or administrator, by virtue of his office, and as such embraced by his official bond, faithfully to pay the rents and profits, or proceeds of sale, of real estate which may lawfully come to his hands, or to the hands of any person for him, to such persons as are entitled thereto.(Code 1849, c. 131, §2; Code 1860, c. 131, §2; Code 1868, c. 86, §2; 1882, c. 69, §2; Code 1923, c. 86, §2.)

§3. Real Estate to be Assets for Payment of Debts.—All real estate of any person who may hereafter die, as to which he may die intestate, or which, though he die testate, shall not by his will be charged with or devised subject to the payment of his debts, or which may remain after satisfying the debts with which it may be so charged, or subject to which it may be so devised, shall be assets for the payment of the decedent’s debts and all lawful demands against his estate, in the order in which the personal estate of a decedent is directed to be applied.(Code 1849, c. 131, §3; Code 1860, c. 131, §3; Code 1868, c. 86, §3; 1882, c. 69, §3; Code 1923, c. 86, §3.)

§4. By What Court Assets Administered.—Such assets, so far as they may be in the hands of the personal representative of the decedent, may be administered by the court in whose clerk’s office there is or may be filed a report of the accounts of such representative, and of the debts and demands against the decedent’s estate, or they may, in any case, be administered by a court of equity.(Code 1849, c. 131, §4; Code 1860, c. 131, §4; Code 1868, c. 86, §4; 1872-3, c. 119, §4, c. 200, §4; 1882, c. 69, §4; Code 1923, c. 86, §4.)

§5. Liability of Heir or Devisee for Real Estate Conveyed; When Such Real Estate Not Liable.—Any heir or devisee who shall sell and convey any real estate, which by this article is made assets, shall be liable to those entitled to be paid out of such assets, for the value thereof, with interest; in such case the estate conveyed shall not be liable, if at the time of the conveyance the purchaser shall have no notice of any fraudulent intent on the part of the grantor, and no suit shall have been commenced for the administration of such assets, nor any report have been filed, as aforesaid, of the debts and demands of those entitled. But no alienation of such estate, made by an heir or devisee, within one year after the death of the testator or intestate, shall be valid against creditors of such testator or intestate, although no such suit shall have been commenced or report of debts and demands filed within such year.(Code 1849, c. 131, §5; Code 1860, c. 131, §5; Code 1868, c. 86, §5; 1882, c. 69, §5; Code 1923, c. 86, §5.)

§6. Heir or Devisee Liable in Equity; Judgment Against Personal Representative Prima Facie Evidence.—An heir or devisee may be sued in equity by any creditor to whom a debt is due, for which the estate descended or devised is liable, or for which such heir or devisee is liable in respect to such estate; and he shall not be liable to an action at law for any matter for which there may be any redress by such suit in equity. And any judgment or decree, except one taken by default, for such debt hereafter rendered against the personal representative of the decedent, shall be prima facie evidence of such debt against the heir or devisee in such suit in equity.(Code 1849, c. 131, §6; Code 1860, c. 131, §6; Code 1868, c. 86, §6; 1882, c. 69, §6; Code 923, c. 86, §6.)

§7. Suit to Subject Real Estate to Payment of Debts; Parties; Evidence.—When the personal estate of a decedent is insufficient for the payment of his debts, his executor or administrator may commence and prosecute a suit in equity to subject his real estate to the payment thereof as provided in this article. The surviving wife or husband, heirs and devisees, if any, and all the known creditors of the decedent, shall be made defendants in such suit. If such suit be not brought within six months after the qualification of such executor or administrator, any creditor of such decedent, whether he has obtained a judgment at law for his claims or not, may institute and prosecute such suit on behalf of himself and the other creditors of such decedent, in which the personal representative, surviving wife or husband, heirs and devisees, if any, of the decedent shall be made defendants. If any creditors’ suit shall have been brought against the decedent in his lifetime, and be undisposed of at the time of the death of the decedent, a separate suit shall not be instituted by any other creditor, nor by the executor or administrator, but the plaintiff shall, or, if he fails to do so within six months after the qualification of the executor or administrator, such executor or administrator or any general creditor, by intervening, may, in the suit already pending, by amended and supplemental bill, cause all proper and necessary parties to be brought into such suit; and thenceforth the same shall proceed as a suit instituted under this section. In every suit under this section any one claiming to be a creditor of the decedent, whether he may have been made a party thereto or not, or whether he may have been served with process therein or not, may present his claim, and, upon such presentation, shall be deemed to have been made a party to the suit and to have been served with process therein. And evidence respecting such claim may be taken, and the same may be allowed and paid, in whole or in part, or rejected in the same manner and with the same effect, as if such claimant had been originally made a party and served with process.(Code 1868, c. 86, §7; 1882, c. 69, §7; Code 1923, c. 86, §7.)

§8. Reference to a Commissioner and Publication of Notice to Creditors in Such Suit.—No decree for the distribution of the proceeds of the real estate of such deceased person among his creditors shall be made until there shall have been a reference to a commissioner in chancery to ascertain and report all the liens on the real estate or any part thereof, the holders of such liens, the amount due to each, and the priorities thereof, and report made of all general claims and the priorities of the same, and until a notice to all creditors to present and prove their claims shall have been published as hereafter provided, which notice shall be in the following form or to the following effect:

Such notice shall be published once a week for three successive weeks in some newspaper published in the county; but if there be no newspaper published in the county, then the notice shall be posted at least fifteen days prior to the day named in the notice at the front door of the courthouse of said county and published in some newspaper of general circulation therein once a week for three successive weeks. In either case the court shall designate the newspaper in which such notice shall be published. The court may direct such other notice to be given as it may deem proper. Such publication, or such posting and publication, of such notice shall be equivalent to personal service thereof on all creditors, including those holding liens on such real estate, unless the court shall in the order directing publication, or posting and publication, otherwise order. Any creditor who may have filed his claim before a commissioner of accounts may withdraw the same and the proof thereof made before such commissioner, and may file such claim and proof before the commissioner in chancery, and such commissioner in chancery shall, unless there be objection by any party to the suit, accept such proof for what the same may legally show. No other publication to creditors than the one provided by this section shall be necessary, and when any notice of the reference is required by law or by the court to be published, or posted and published, such notice of the reference shall be included in the above notice, so that there may be but one publication.(Code 1868, c. 86, §8; 1872-3, c. 119, §8, c. 200, §8; 1882, c. 69, §8; Code 1923, c. 86, §8.)

§9. Decree of Distribution; Claims Barred When.—When such suit shall be fully matured for hearing and the report of any such commissioner shall have been confirmed, and the provisions of the preceding section shall have been fully complied with, the court may decree a distribution of the proceeds of such real estate among such of the creditors of the deceased as shall have shown themselves entitled thereto according to their several priorities, if any; which decree, so made, shall be a bar to the claim of any creditor of the deceased, or lienholder on real estate of the deceased, who has failed to present his claim to the commissioner as required by such notice, except that if a surplus remain after such distribution, the creditor or lien holder so failing may share in the same upon proving his claim at any time before a final decree is made in such suit. But if he fail to present his claim for adjudication before such final decree, he shall be forever barred of all right to participate in the proceeds of such real estate, so far as the other creditors of the said deceased, who have not so failed, are concerned.(Code 1868, c. 86, §9; 1882, c. 69, §9; Code 1923, c. 86, §9.)

§10. No Costs Recoverable in, and Injunction Against, a Second Suit.—After the commencement of any such suit as aforesaid, if any creditor of the deceased commence another suit, action or proceeding, upon a claim against him or his estate, no costs shall be recovered in such last mentioned suit, action, or proceeding; and the court, or judge thereof in vacation, may enjoin the plaintiff therein from the prosecution of any such suit, action or proceeding, and require him to assert his claim or lien in the suit provided for by this article, or make any other order or decree that may seem right and proper to protect the interests of all parties having claims or liens.(Code 1868, c. 86, §10; 1882, c. 69, §10; Code 1923, c. 86, §10.)

§1. When a Person Presumed to be Dead.—In case any person has been or shall be absent for seven or more successive years from the place of his last domicile within this State; or, having been a resident of this State, has heretofore gone from and has not returned to this State for seven or more successive years; or, being a resident of this State, shall hereafter go from and not return to this State for seven or more successive years; or, being a nonresident of this State and being entitled to, or having an interest in, property in this State, has been or shall be absent for seven or more successive years from the place of his last known domicile; and in any of the foregoing cases shall for such period of time have been, or shall be, unheard of by those who, had he been alive, would naturally have heard of him; such person shall, in any case where his death shall come in question, be presumed in law to be dead, in the absence of proof to the contrary, or unless proof be made that he was alive within that time.(Code 1849, c. 176, §41; Code 1860, c. 176, §42; Code 1868, c. 130, §44; 1882, c. 160, §44; 1917, c. 27, §12; Code 1923, c. 86, §12.)

§2. Jurisdiction of Estate of Supposed Decedent.—Whenever it is believed that facts giving rise to the presumption of death exist with reference to any person, the county court of the county of such person’s last known domicile in this State, or, if such person was a nonresident of this State, the county court of the county where the greater part of his property within this State may be situated, may be applied to by petition under oath, and shall have jurisdiction, to probate the will of such person, and to grant letters testamentary or of administration upon his estate to the same person, and upon the same procedure, except as otherwise provided in this article, as if such supposed decedent were in fact known to be dead.(1917. c. 27, 512; Code 1923, c. 86, §12.)

§3. Application for Probate or Administration, and Publication of Notice Thereof.—Whenever letters testamentary or of administration are applied for on the estate of any person supposed to be dead on account of the existence of facts giving rise to the presumption of death, the county court or clerk thereof, if satisfied that the person applying therefor, or presenting a will or codocil of the supposed decedent for probate, would be entitled to such letters, or to such probate, if the supposed decedent were in fact dead, shall cause to be published once a week for four successive weeks in a newspaper of general circulation published in such county, or, if none such, shall cause to be posted at the front door of the courthouse and to be published for such period in some newspaper of general circulation in the county, notice that such application has been made and that on a day certain, which shall not be less than two weeks after the last publication of such notice, the court will hear evidence concerning the alleged absence of the supposed decedent and the circumstances and duration thereof.(1917, c. 27, §12; Code 1923, c. 86, §12.)

§4. Ancillary Letters on Estates of Nonresidents Supposed to be Dead.—Whenever letters testamentary or of administration shall have been granted in any other state, territory or country, on the estate of a resident thereof presumed to be dead on account of absence for seven or more successive years from the place of his last domicile, the person to whom such letters have been granted, may present a petition to the county court of the county in this State in which all or the greater portion of the estate of such supposed decedent in this State may be found, accompanied by a complete exemplified copy of the record of the grant of such letters, praying for the grant of ancillary letters testamentary or of administration upon the estate of such supposed decedent situate, owing, or belonging to him within this State; and the court may grant to some fit person, resident of this State, such ancillary letters, after notice shall be given in the manner provided for in the preceding section.

§5. Evidence on Such Application; Record Thereof.—At the hearing in either of the cases provided for in the preceding two sections, the court shall receive such legal evidence as shall be offered, for the purpose of ascertaining whether the presumption of death is established; or may refer the matter to a commissioner of accounts to take such evidence, and report his findings thereon; and no person shall be disqualified as a witness by reason of relationship to the supposed decedent or interest in his estate. All the evidence shall be reduced to writing and preserved in the files of the court with the record of the case.(1917, c. 27, §12; Code 1923, c. 86, §12.)

§6. Order Declaring Presumption Established; Probate of Will; Letters Testamentary or of Administration; Their Effect.—If the court be satisfied, upon the hearing or from the report of such commissioner of accounts, that the legal presumption of death is established, the court shall so declare by order, and shall then proceed to hear, and to grant, if proper, the application for probate of the will of such supposed decedent, if such there be, and to grant letters testamentary or of administration, as the case may require, to the party entitled thereto, who shall qualify and give bond as in cases of persons known to be dead. The probate of any such will and such letters, until revoked, and all acts done in pursuance thereof and in reliance thereupon, shall be as valid as if the supposed decedent were in fact dead.(1917, c. 27, §12; Code 1923, c. 86, §12.)

§7. Powers of Clerk.—The clerk of any county court during the recess of the regular sessions of the county court may exercise the same powers as are herein conferred upon such court.(1917, c. 27, §12; Code 1923, c. 86, §12.)

§8. Personal Representative to Institute Suit to Settle Such Estate.—The personal representative of the estate of such supposed decedent shall, after qualifying, institute a suit in equity in the circuit court of the county in which such personal representative qualified, for the settlement of the estate of such supposed decedent. To such suit the surviving wife or husband, heirs, distributees, devisees, legatees, and all known creditors of the supposed decedent, shall be made parties defendant, and there shall be filed with the bill of complaint therein an attested copy of the complete record of the county court relating to the appointment and qualification of such personal representative, including a copy of the evidence taken to establish the presumption of death.(1917, c. 27, §13; Code 1923, c. 86, §13.)

§9. Publication in Such Suit.—Such personal representative, upon the institution of such suit, shall cause notice to the supposed decedent to be issued by the clerk of the circuit court, that such suit has been instituted and that such supposed decedent, if alive, is required to appear on a certain day of a regular or special term of said court not less than three nor more than six months from the date of the first publication of such notice as hereinafter required. Such notice shall be published once a week for four successive weeks in a newspaper published in the county where the suit is brought, or, if none such, posted at the front door of the court house and published for such period in a newspaper of general circulation in the county, and also, when practicable, for the same period in a newspaper published at or near the place where such supposed decedent was last known to reside beyond this State, or in this State, if the supposed decedent was not known to have left the same and such place is in a county other than the one where the suit is pending.(1917, c. 27, §13; Code 1923, c. 86, §13.)

§10. Procedure When Supposed Decedent Fails to Appear.—If such supposed decedent shall not appear, or satisfactory evidence that he is alive shall not be offered, on or before such date, the circuit court shall review the record from the county court filed in such suit, and, if satisfied that the county court improperly ruled on the facts before it with reference to the presumption of death, may call for and take further proof, and, when satisfied that the presumption of death is properly established, shall then refer the cause to a commissioner in chancery to convene the creditors of such supposed decedent, by publishing notice therefor in the manner provided in proceedings for subjection of a decedent’s real estate to the payment of his debts, and to take proof of the claims of creditors, the amount and nature of the estate of such supposed decedent and the persons entitled thereto; and the cause shall thenceforth be proceeded with as other causes in chancery of a similar nature.(1917, c. 27, §14; Code 1923, c. 86, §14; 1929, c. 38, §14.)

§11. Distribution of Estate; Refunding Bonds.—When the commissioner in chancery has rendered his report, and all exceptions thereto have been disposed of, the court may enter a decree authorizing the payment of creditors and assigning and transferring such estate to the persons entitled thereto, or directing sale thereof and distribution of the proceeds of sale among the creditors and persons entitled thereto. But before such assignment of the estate or distribution of the proceeds thereof the court shall require the persons, other than creditors, entitled to receive the same, to enter into a joint or separate bond before the clerk of the court, in a penalty to be fixed by the court, with sureties to be approved by the clerk, with condition that, if the supposed decedent shall at any time within fifteen years thereafter appear, they will refund the amounts received, on demand. If the persons entitled thereto are jointly or separately unable to give such security, then such estate may be sold and the proceeds thereof paid into the hands of the general receiver of the court until such security is given or until the further order of the court, but the interest arising therefrom shall be paid annually to the person or persons appearing to be entitled thereto, without the giving of any refunding bond.(1917, c. 27, §14; Code 1923, c. 86, §14; 1929, c. 38, §14.)

§12. Vacation of Prior Proceedings on Reappearance of Supposed Decedent.—The circuit court may at any time, on satisfactory proof that the supposed decedent is in fact alive, set aside and vacate all proceedings theretofore had in such suit, including the decree of distribution, if such has been entered, and any order or decree entered by it or the county court establishing the presumption of death, and upon doing so shall certify that fact to the county court. The county court shall thereupon revoke the probate of any will of such supposed decedent and the grant of letters testamentary or of administration on his estate: Provided, That in no case shall the supposed decedent file his petition or suit to set aside and vacate such adjudication after the lapse of fifteen years from the date of such adjudication.(1917, c. 27, §15; Code 1923, c. 86, §15; 1929, c. 38, §15.)

§13. Final Accounting of Personal Representative; Effect of His Acts; Title of Purchasers and Distributees.—The circuit court shall, when the prior proceedings have been vacated as provided in the preceding section, require a final settlement of the personal representative, and direct the transfer of all assets in the hands of such personal representative, and, if any property or proceeds thereof have been distributed, the retransfer or refunding thereof to the supposed decedent, or his duly authorized agent, attorney or representative. All acts of such personal representative while his letters were in force, and the title of bona fide purchasers to property under sales made by him, shall remain as valid as if such letters were unrevoked. But nothing in this section shall validate the title of any person to any money or property received as surviving wife or husband, next of kin, heir, legatee or devisee of such supposed decedent, but the same may be recovered from such person in like manner as if there had been no proceedings under the provisions of this article.(1917, c. 27, §15; Code 1923, c. 86, §15; 1929, c. 38, §15.)

§14. Substitution of Supposed Decedent in Pending Actions; Opening Judgments; Effect of Judgment After Substitution.—After revocation of the letters and vacation of the order or orders declaring the presumption of death established, the person erroneously supposed to be dead may, on suggestion filed of record of the proper fact, be substituted as plaintiff in all actions, suits, or proceedings brought by the personal representative, whether prosecuted to judgment or decree, or otherwise. He may, in all actions, suits or proceedings previously brought against the personal representative, be substituted as defendant, on proper suggestion filed by himself, or of the plaintiff therein, but shall not be compelled to go to trial in less than three months from the time of such suggestion filed. Judgments or decrees, recovered against the personal representative before revocation of the letters and vacation of such order or orders, may be opened on application by the supposed decedent, made within three months from such revocation of the letters and vacation of such order or orders, and supported by affidavit denying specifically, on the knowledge of the affiant, the cause of action, in whole or in part, or specifically alleging the existence of facts which would be a valid defense; but, if within such three months, such application shall not be made, or, being made, the facts exhibited shall be adjudged an insufficient defense, the judgment or decree shall be conclusive to all intents, saving the defendant’s right to have it reviewed as in other cases in the manner provided by law. After the substitution of the supposed decedent as defendant in any judgment or decree, as aforesaid, it shall have the same force and effect as if taken against him originally, and shall so continue as other judgments or decrees, unless and until it shall be set aside by the court below or reversed in the supreme court of appeals.

§15. When Laws Relating to Wills and Estates Generally to Govern.—As to matters not specially provided for in this article, the provisions of law relating to the probate of wills and the administration of estates of actual decedents shall govern, so far as applicable.

§16. Costs, By Whom Payable.—The costs attending the issuance of letters testamentary or of administration, or their revocation, and the probate of any will, and of the suit for the settlement of the estate, shall be paid out of the estate of the supposed decedent; and costs arising upon an application for letters which shall not be granted shall be paid by the applicant.

§1. Testamentary Guardians.—Every father, or mother, may, by last will and testament, appoint a guardian for his or her child, born or to be born, and for such time during its infancy as he or she may direct. Where both father and mother have so appointed guardians, only that guardian who is the appointee of the parent last living shall be entitled to the custody of the person of such child.(Code 1849, c. 127, §1; Code 1860, c. 127, §1; Code 1868, c. 82, §1; 1872-3, c. 149, §1; 1921, c. 80, §1; Code 1923, c. 82, §1.)

§2. Appointment Void for Renuniciation or Failure to Qualify.—If any person so appointed shall renounce the trust, or fail to appear before the county court before whom such will shall be proved, within six months after the probate thereof, and declare his acceptance of the trust, and give bond as provided in this article, such appointment shall be void.(Code 1849, c. 127, §2; Code 1860, c. 127, §2; Code 1868, c. 82, §2; 1872-3, c. 149, §2; Code 1923, c. 82, §2.)

§3. Appointment of Guardian by County Court.—The county court of any county in which any minor resides, or, if he be a nonresident of the State, in which he has any estate, may, unless he have a guardian appointed as aforesaid by his father or mother, appoint as guardian for him some suitable person, preferring first the father or mother; but in every case the competency and fitness of the person, and the welfare and best interests of the minor, shall govern the court in making the selection.(Code 1849, c. 127, §3; Code 1860, c. 127, §3; Code 1868, c. 82, §3; 1872-3, c. 149, §3; 1882, c. 53, §3; 1921, c. 80, §3; Code 1923, c. 82, §3.)

§4. Right of Minor to Nominate Guardian.—If the minor is above the age of fourteen years, he may in the presence of the county court, or in writing acknowledged before any officer authorized to take the acknowledgment of a deed, nominate his own guardian, who, if approved by the court, shall be appointed accordingly; and if the guardian nominated by such minor shall not be appointed by the court, or if the minor shall reside without the State, or if, after being summoned, he shall neglect to nominate a suitable person, the court may appoint the guardian in the same manner as if the minor were under the age of fourteen years.(Code 1849, c. 127, §4; Code 1860, c. 127, §4; Code 1868, c. 82, §4; 1872-3, c. 149, §4; 1882, c. 53, §4; 1923, c. 82, §4.)

§5. Bond of Guardian.—Every guardian, unless in the case of a testamentary guardian the will otherwise directs and the court in which the will is recorded deems it unnecessary for the safety of the ward, shall give bond with good security to be approved by the court by whom he is appointed, or before whom he accepts the trust, in such penalty as shall be prescribed by the court.(Code 1849, c. 127, §5; Code 1860, c. 127, §5; Code 1868, c. 82, §5; 1872-3, c. 149, §5; Code 1923, c. 82, §5.)

§6. Curator; Bond; Powers and Duties.—Until a guardian shall have given bond, or while there is no guardian, the court may, from time to time, appoint a curator, who shall give bond as aforesaid, and, during the continuance of his trust, have all the powers and perform all the duties of a guardian, and be responsible in the same way.(Code 1849, c. 127, §6; Code 1860, c. 127, §6; Code 1868, c. 82, §6; 1872-3, c. 149, §6; Code 1923, c. 82, §6.)

§7. Management of Ward’s Estate; Maintenance, Education, and Custody; Duration of Guardianship; Settlement.—Every guardian who is appointed as aforesaid, and gives bond when it is required, shall have the possession, care and management of his ward’s estate, real and personal, and out of the proceeds of such estate shall provide for his maintenance and education; and shall have also, except as otherwise provided in this article, the custody of his ward. Unless the guardian shall die, be removed, or resign his trust (and the court before which he qualified may allow him to resign), he shall continue in office until his ward shall attain the age of twenty-one years notwithstanding the ward may marry before that time, or, in the case of a testamentary guardianship, until the termination of the period limited therefor. At the expiration of his trust, he shall deliver and pay all the estate and money in his hands, or with which he is chargeable, to the person or persons entitled thereto. But the father or mother of any minor child or children shall be entitled to the custody of the person of such child or children, and to the care of his or their education. If living together, the father and mother shall be the joint guardians of the person of their minor child or children, with equal powers, rights and duties in respect to the custody, control, services, earnings, and care of the education of such minor child or children; and neither the father nor the mother shall have any right paramount to that of the other in respect to such custody, control, services or earnings, and care of the education of such minor child or children. If the father and mother be living apart, the court to which application is made for the appointment of a guardian, or before which any such matter comes in question, shall appoint, as guardian of the person of the minor child or children of such father and mother, that parent who is, in the court’s opinion, best suited for the trust, considering the welfare and best interests of such minor child or children. No corporation or trust company shall as guardian of any minor child or children be entitled to the custody, control, services, earnings, and care of the education of such minor child or children, and when any corporation or trust company is guardian of the estate of any minor child or children and neither of the parents of such child or children is living, or is a suitable person to act as guardian of the person of such child or children, then the court shall appoint a guardian of the person of such child or children who shall be entitled to the custody, control, services, earnings, and care of the education of such minor child or children. Any corporation or trust company appointed as guardian of the estate of any minor child or children shall, unless for such minor child or children a nonresident of this State may be appointed guardian, be a corporation organized under the laws of this State and doing business in this State.(Code 1849, c. 127, §7; Code 1860, c. 127, §7; Code 1868, c. 82, §7; 1872-3, c. 149, §7; 1882, c. 53, §7; 1921, c. 80, §7: Code 1923, c. 82, §7.)

§8. Disbursements Allowed Guardians; How and When Expenditures From Principal Authorized and Allowed.—No disbursements, beyond the annual income of the ward’s estate, shall be allowed to any guardian where the deed or will, under which the estate is derived, does not authorize it, unless the same shall have been authorized by the circuit court of the county in which the guardian was appointed or qualified. Any guardian, who may desire to spend more than the annual income of his ward’s estate for any purpose, shall file in such circuit court a petition, verified by his oath, setting forth the reasons why it is necessary to make such expenditure, to which petition the ward shall be made defendant. The court shall appoint a guardian ad litem for the ward, who shall answer such petition, be present at the hearing, and represent the infant. Five days’ notice shall be given to the defendant before such petition can be heard. At the hearing the evidence may be taken orally, and the court, if satisfied that such expenditure would be judicious and proper, may grant the prayer of the petition. Such petition may be filed and heard before the judge of such court in vacation as well as in term time. In the settlement of the guardian’s accounts no credit shall be allowed him by the commissioner of accounts or the court for expenditures for his ward, except for expenditures of the annual income of his ward’s estate and for expenditures of such amounts of the principal of the ward’s personal estate as shall have been authorized by the court as provided by this section.(Code 1849, c. 127, §8; Code 1860, c. 127, §8; Code 1868, c. 82, §8; 1872-3, c. 149, §8; 1882, c. 53, §8; 1883, c. 18, §8; Code 1923, c. 82, §8.)

§9. Sale of Personal Estate to Pay Excess Beyond Income.—When any such disbursements shall be so allowed, the court shall, if necessary, order the sale of such portions of the personal estate of the ward as may be necessary to pay the balance of such expenditures over and above the income of his estate.(Code 1849, c. 127, §9; Code 1860, c. 127, §9; Code 1868, c. 82, §9; 1872-3, c. 149, §9; 1882, c. 53, §9; Code 1923, c. 82, §9.)

§10. When Guardian to Pay Interest.—If any balance, whether of profits received or estimated, or of interest or principal, be due by any guardian, or other person acting as guardian, at the end of any year, which ought to be invested or loaned out within a reasonable time for the benefit of the ward, and the same remain in the hands of such guardian or other person, he shall be charged with interest thereon from the end of the year in which such balance arose, and so on, as often as such shall be the fact, during the continuance of the trust.(Code 1849, c. 127, §10; Code 1860, c. 127, §10; Code 1868, c. 82, §10; 1872-3, c. 149, §10; Code 1923, c. 82, §10.)

§11. Compound Interest Recoverable.—Any person acting as guardian shall have the right to demand and recover of any obligor in any bond or the maker of any other instrument in writing, payable to him as guardian, and held by him for the benefit of his ward, not only the principal sum due, with interest thereon after the rate prescribed by law; but also, when the interest on the principal sum is not paid punctually at the time stipulated in such bond or writing, to demand and recover interest upon the interest so due and unpaid.(Code 1860, c. 127, §11; Code 1868, c. 82, §11; 1872-3, c. 149, §11; Code 1923, c. 82, §11.)

§12. Time Allowed Guardian for Investment of Funds.—Whenever a guardian shall collect any principal or interest belonging to his ward, he shall have sixty days to invest or loan the same, and shall not be charged with interest thereon until the expiration of such time, unless he shall have made the investment previous thereto, in which case he shall be charged with interest from the time the investment or loan was made: Provided, That if by due diligence any guardian is unable to loan any principal or interest belonging to his ward within the time aforesaid, and it becomes necessary for him to apply to the circuit court for authority or direction concerning such funds, such guardian shall not, pending a hearing of the matter, be chargeable with interest on the funds in his hands uninvested, unless the court or judge otherwise order.(Code 1860, c. 127, §12; Code 1868, c. 82, §12; 1872-3, c. 149, §12; 1901, c. 104, §12; 1919, c. 91, §12; Code 1923, c. 82, §12.)

§13. Powers of Chancery Courts Over Guardians ; When and How Real Estate May be Sold for Maintenance and Education of Wards.—The circuit court, in chancery, may hear and determine all matters between guardians and their wards, require settlements of the guardianship accounts, remove any guardian for neglect or breach of trust, and appoint another, or order another to be appointed, in his stead, and make any orders for the custody and tuition of an infant, and the management, preservation and investment of his estate; and when it shall be made to appear to the satisfaction of a circuit court on a bill in chancery, or by petition in a summary way, filed for the purpose by the guardian, that the proper maintenance and education, or other interests of an infant, require that the proceeds of his real estate, beyond the annual income thereof, should be applied to the use of such infant, it shall be lawful for the court to order the sale of, or to authorize a loan upon, his real estate, or such part thereof as may be necessary for the purpose, and, from time to time, make such decrees and orders as may be proper to secure the due application of the proceeds of such sale or loan; and to the extent that such proceeds may be so applied they shall be deemed personal estate, but no further. Every bill or petition filed under this section, and the proceedings thereon, shall conform to the procedure provided by law for authority to sell the real estate of an infant.(Code 1849, c. 127, §11; Code 1860, c. 127, §13; Code 1868, c. 82, §13; 1872-3, c. 149, §13; 1882, c. 53, §13; Code 1923, c. 82, §13.)

§14. Authority of Guardian to Settle Claim of Ward for Injuries to Himself or His Property; Procedure.—In any case where an infant is injured in his person or his property by another, the legal guardian of such infant may negotiate with the person inflicting such injury for the settlement of any claim for damages therefor. But the guardian shall, when proceeding under this section, before making final settlement, file his petition in equity with the circuit court of the county, or judge thereof in vacation, in which he was appointed, for permission to settle such claim, in which petition he shall state the name and age of his ward, the nature and character of the injury, and the facts relied upon by him to induce the court or judge to approve such proposed settlement. The court, or judge thereof in vacation, shall appoint a guardian ad litem for the ward who shall answer the petition. Upon the hearing thereof, the court or judge thereof in vacation, may grant or refuse the petition by a proper order, as may seem just and proper. In case the court or judge shall grant the petition, there may be included in such order permission to the guardian to pay to his attorney such amount in connection with the settlement of the claim as in the discretion of the court or judge is reasonable and proper, taking into consideration the amount to be paid as damages, the necessities of the infant, the nature of the injury, the probability of recovery in case of suit, the difficulties involved in effecting the settlement, and such other matters as may properly have a bearing on the reasonable compensation to be allowed such attorney. In case the court or judge approves the prayer of the petition, the guardian may be authorized to settle and receive the amount of the settlement, and to execute to the tort feasor a release therefor. Before so doing he shall execute a bond in an amount equal to the approved settlement, unless he be already under bond sufficient for the purpose, with surety or sureties approved by the clerk of said court, conditioned to account for and pay over the amount of the approved settlement as required by law, which bond shall be filed and recorded by the clerk.

The release to the tort feasor may be in form or effect as follows:

After receiving such release from the guardian of an infant who has been injured in his person or in his property by such person, the tort feasor shall be forever equipped therefor.

Nothing in this section contained shall be construed as preventing any tort feasor from settling any such claim in any of the modes now recognized by law.(1929, c. 37.)

§1. Transfer of Securities of Nonresident Decedent.—Any bonds or other securities issued by this State or any political subdivision or municipality thereof, or any stocks, bonds or other securities issued by any corporation created by this State, or by any national banking association having its principal office in this State, standing in the name of a decedent, domiciled at the time of his death out of this State, and who is not known, by the officer or agent charged with the duty of transferring such stocks, bonds, or other securities, to have a personal representative qualified as such within this State, may be transferred by the executor or administrator of such decedent qualified according to the laws of the domicile, when affidavit shall have been filed as prescribed in the next section.(Code 1849, c. 129, §1; Code 1860, c. 129, §§1, 2; Code 1868, c. 84, §§1, 2; 1881, c. 6, §1; Code 1923, c. 84, §1.)

§2. Affidavit as to Publication of Notice.—There shall be filed, with such officer or agent as is mentioned in the preceding section, the affidavit of some credible person that notice of the proposed transfer has been published once a week for two successive weeks in some newspaper published in the county in which are kept the books upon which the transfer is proposed to be made, or, if no newspaper be so published, that such notice was posted at the front door of the courthouse of such county two weeks before the time of making such affidavit and published once a week for two successive weeks in a newspaper of general circulation in such county. But if, before such transfer be actually made, a notice in writing forbidding the same be served on such officer or agent, such transfer only shall be made as would have been lawful if this and the preceding section had not been enacted.(Code 1849, c. 129, §1, Code 1860, c. 129, §1; Code 1868, c. 84, §1; 1881, c. 6, §2; Code 1923, c. 84, §2.)

§3. Transfer of Property of Nonresident Infant or Insane Person to Foreign Guardian or Committee.—When any infant or insane person, entitled to property or money in this State, resides out of it, a petition to remove such property or money to the domicile of such infant or insane person may be filed by his guardian or his committee lawfully appointed or qualified in the state or country of his domicile, in the circuit court of the county wherein the guardian or committee in this State was appointed or qualified, or if there be none, in which the property or money, or some part thereof, is. To such petition the guardian of such infant or the committee of such insane person appointed or qualified in this State, if there be one, shall be made a party defendant. Upon a hearing of the case on its merits, the court may order the guardian or committee in this State, if there be one, to pay and deliver to such foreign guardian or committee, or his agent or attorney, all personal property and money in his hands belonging to such infant or insane person, and authorize such foreign guardian or committee to sue for, recover and receive all money or personal property which belongs to the infant or insane person, including the accruing rents of his real estate, in like manner as if he were appointed a guardian or committee of such infant or insane person in this State, and to remove the same to the state or country in which such foreign guardian or committee was appointed or qualified.(Code 1849, c. 129, §2; Code 1860, c. 129, §3; Code 1868, c. 84, §3; 1881, c. 6, §3; Code 1923, c. 84, §3.)

§4. How Proceeds of Sale of Real Estate of Nonresident Infant, Insane Person, or Cestui a Que Trust Transferred to Foreign Guardian, Committee or Trustee.—When the proceeds of sale of real estate of an infant, insane person or cestui que trust, under the laws now in force, are invested, or required to be invested, under the direction of a court, and such infant, insane person or cestui que trust resides out of this State, on the petition of a guardian, committee or trustee, lawfully appointed or qualified in the state or country of the domicile of such infant, insane person or cestui que trust, the court under whose directions such proceeds are so invested, or required to be invested, may, with the consent of the persons residing in this State who would be the heirs of such infant, insane person or cestui que trust, if he were dead, order such proceeds, to be paid and delivered to such foreign guardian, committee or trustee, or his agent or attorney, and the same may be removed by him to the state or country in which he was appointed or qualified: Provided, That whenever, in the judgement of the court, the removal of the trust subject will defeat or conflict with the provisions of the deed, will or other instrument creating the trust, the court may refuse to grant the prayer of the petition.(Code 1860, c. 129, §4; Code 1868, c. 84, §4; 1881, c. 6, §4; Code 1923, c. 84, §4.)

§5. Notice of Application and Evidence Required Before Order of Transfer Made.—No such order as is mentioned in the two preceding sections shall be made until notice of the application shall have been published once a week for three successive weeks in a newspaper published in the county in which the petition is filed, or, if there be none, posted at the front door of the courthouse of the county three weeks before the making of such application and published once a week for three successive weeks in a newspaper, of general circulation therein; nor until it shall be shown by authentic documentary evidence that such foreign guardian, committee or trustee has, where he qualified, given bond, with surety sufficient to insure his accountability for the whole amount of the estate of such infant, insane person, or cestui que trust in his hands, or which will probably be received by him as such guardian, committee or trustee; nor until the court shall be satisfied that the removal of such money or property from this State will not impair the rights or be prejudicial to the interests of such infant, insane person or cestui que trust or of any other person.(Code 1849, c. 129, §3; Code 1860, c. 129, §5; Code 1868, c. 84, §5; 1881, c. 6, §5; Code 1923, c. 84, §5.)

§6. How Personal Estate in Hands of Resident Trustee, Belonging to Nonresident Beneficiaries, Transferred.—When any personal estate in this State is vested in a trustee resident therein, or who acts by virtue of a deed, will, or other instrument, recorded or probated therein, or when any administrator or executor in this State has assets in his hands of a decedent who at the time of his death was domiciled in another state, and those having the beneficial interests in such estate or assets are nonresidents of this State, the circuit court of the county in a which such trustee, administrator, or executor may reside, or in which such estate may be, may, upon petition or bill in equity filed for that purpose, order such trustee or his personal representative, or such administrator or executor, to pay, transfer and deliver such estate or assets, or any part thereof, to a nonresident trustee, administrator or executor, appointed by some court of record in the state in which such beneficiaries reside.(Code 1849, c. 129, §4; Code 1860, c. 129, §6; Code 1868, c. 84, §6; 1881, c. 6, §6; 1882, c. 107, §6; Code 1923, c. 84, §6.)

§7. What Notice and Evidence Required Before Such Transfer Made.—No such order as is mentioned in the preceding section shall, when applied for by petition, be made until notice of the application shall have been given to all persons interested in such trust estate, either by personal service, or by publication of such notice once a week for three successive weeks in a newspaper published in the county wherein the petition is filed, or if there be none, by posting such notice at the front door of the courthouse of the county three weeks before the making of such application and publication thereof once a week for three successive weeks in a newspaper of general circulation in the county; and whether the application be by petition or bill in equity, such order shall not be made until the court shall be satisfied by authentic documentary evidence that the nonresident trustee, administrator, or executor, appointed as aforesaid, has given bond, with sufficient security for the faithful execution of the trust, nor until it is satisfied that the payment and removal of such estate out of the State will not prejudice the right of any person interested or to become interested therein.(Code 1849, c. 129, §6; Code 1860, c. 129, §7; Code 1868, c. 84, §7; 1881, c. 6, §7; 1882, c. 107, §7; Code 1923, c. 84, §7.)

§8. Court May Order Sale of Property.—If, in any proceeding or suit under the third or sixth sections of this article, it shall appear to the court to be proper, it may order the property, or any part of it, to be sold and the proceeds to be paid to the nonresident guardian, committee, trustee, administrator or executor.(Code 1849, c. 129, §5; Code 1860, c. 129, §8; Code 1868, c. 84, §8; 1881, c. 6, §8; 1882, c. 107, §8; Code 1923, c. 84, §8.)

§9. Discharge of Guardian, Committee, or Trustee Making Transfer.—When any guardian, committee, trustee, or other person in this State shall pay over, transfer or deliver any estate in his hands or vested in him, as directed by any order or decree made in pursuance of this article, he shall be discharged from all responsibility therefor.(Code 1849, c. 129, §7; Code 1860, c. 129, §9; Code 1868, c. 84, §9; 1881, c. 6, §9; Code 1923, c. 84, §9.)

§10. Judge of Circuit Court May Act in Vacation.—The judge of the circuit court in vacation, on such proof and notice as is required of the circuit court, may make any order that is authorized by this article to be made by the circuit court.

§1. What Clerk May Do in Vacation of County Court.—The clerk of any county court in the vacation of such court, may appoint appraisers of estates of decedents, admit wills to record, appoint and qualify executors, administrators, guardians, curators and committees, and require and take from them the necessary bonds, upon the same procedure and proof, and in the same manner and with like effect for the time being, as such county court could do if in session; but no contest as to such probate or appointment shall be heard or determined by such clerk, and when notice of contest is given the matter shall stand continued until the next regular session of the county court.(Const. 1863, art. 7, §6; 1863, c. 1, §1, c. 36, §1; Code 1868, c. 118, §§1, 2; Const. 1872, art. 8, §31; 1872-3, c. 178, §1; Const. 1872, as amended 1880, art. 8, §24; 1881, c. 11, §1; 1891, c. 87, §1; Code 1923, c. 118, §1.)

§2. Report by Clerk to County Court; Hearing on Same.—The probate of every will and the appointment of every appraiser of the estate of a decedent, executor, administrator, guardian, curator and committee so made by such clerk, shall be reported by him to the next regular session of the county court, when, if no objection be made thereto and none appears to the court, the court shall confirm the same. But if objection be made by any person interested, the county court shall hear and determine the same, and shall proceed in relation thereto in the same manner as if the application for the probate of such will, or for the appointment of such appraiser of the estate of a decedent, executor, administrator, guardian, curator or committee had been made to such court in the first instance. And the court may make from time to time, pending such proceedings, such orders as it may deem necessary for the protection and safe-keeping of the estate of the testator, intestate or ward.(Const. 1872, as amended 1880, art. 8, §24; 1881, c. 11, §2; 1883, c. 55, §26; Code 1923, c. 77, §26, c. 118, §2.)

§3. Confirmation of Action of Clerk.—Whe the probate of such will, or the appointment of such appraisers of estates of decedents, or the appointment of such executor, administrator, guardian, curator or committee is confirmed by the court, with or without contest, the same shall be held and treated in all respects as if the will had been probated and admitted to record, or the appointment had been made, by the county court in the first instance.(Const. 1872, as amended 1880, art. 8, §24; 1881, c. 11, §3; Code 1923, c. 118, §3.)

§4. Costs.—When objection is made to the action of the clerk, as mentioned in the second section of this article, the party prevailing in the trial of such objection shall recover from the opposite party his costs.(1881, c. 11, §4; Code 1923, c. 118, §4.)

§1. Powers of Clerk of County Court Where Separate Tribunal for Police and Fiscal Purposes.—In every county in which now exists a tribunal for police and fiscal purposes heretofore established under section thirty-four of article eight of the Constitution of eighteen hundred and seventy-two, the clerk mentioned in the twenty-sixth section of the amendment of eighteen hundred and eighty to the Constitution shall exercise any powers and discharge any duties conferred on or required of the court or tribunal heretofore established for judicial purposes in such county, or the clerk thereof, before the adoption of such amendment, and also any powers and duties now or hereafter conferred on or required of county courts in other counties, or the clerks thereof, except as it may be otherwise provided, respecting the recording and preservation of deeds and other papers presented for record, respecting matters of probate, the appointment and qualification of personal representatives, guardians, committees, curators, and the settlement of their accounts, and respecting all matters relating to apprentices.(Const. 1872, as amended 1880, art. 8, §24; 1881, c. 72, §1; 1885, c. 33, §1.)

§2. Who Shall Act When Such Clerk Interested.—In any matter with respect to which such clerk shall have power to act but in which he shall be interested, so that it will be improper for him to act therein, such powers and duties other than such as are judicial in their nature, may be exercised and discharged, in the office of the last mentioned clerk, by the clerk of the circuit court of the same county, and such powers and duties, so far as the same are judicial in their nature, may be exercised and discharged by any judge of the circuit court of the same county, in the office of the clerk of the county court.(1885, c. 33, §1.)

§3. Such Clerk Not to Impanel a Jury for Settlement of Questions of Fact.—No jury shall be impaneled before such clerk to settle questions of fact.(1881, c. 72, §2.)

§4. Record and Order Books to be Kept by Such Clerk.—Such clerk shall, respecting the matters of which he is given jurisdiction by this article, keep such record and order books as a county court is required by law to keep, and shall enter therein all proceedings before him.

§5. Duties of Such Clerk as to Acts to be Performed at Stated Times.—When any act is required to be done by clerks of county courts of other counties on the first day of the term of the county courts, such clerk of the county court in every county in which such special tribunal for police and fiscal purposes was established as aforesaid, shall perform such act, under the same regulations and penalties, on the first Monday of the month.(1881, c. 72, §4.)

§6. How Decisions and Orders of Such Clerk Reviewed.—Appeals from the decisions rendered and orders made by such clerk may be had to the circuit court of his county at the instance of the same persons, in the same manner, by the same procedure, and within the same time, as from decisions and final orders of a county court; and when carried into the circuit court such cases shall be heard and proceeded with there in the same manner as is provided by law for similar cases appealed from a county court.

§1. By Circuit Court or Judge, for Trustee in Deed, Will or Other Writing.—When the trustee, or, if there is more than one trustee, one or more of the trustees, in any will, deed or other writing, die or remove beyond the limits of the State, or decline to accept the trust, or, having accepted, resign the same, or refuse to act as trustee, the circuit court of the county in which such will was admitted to probate, or such deed or other writing is or may be recorded, or the judge of such court in vacation, may, on motion of any party interested, and upon satisfactory evidence of such death, removal, declination, resignation, or refusal, appoint a trustee or trustees in the place of the trustee or trustees named in such instrument and so dying, removing, declining, resigning or refusing.(Code 1860, c. 178, §5; Code 1868, c. 132, §5; 1882, c. 142, §5; Code 1923, c. 132, §5.)

§2. Procedure for Appointment by Court or Judge.—A motion under the preceding section shall be after ten days’ notice to all persons interested in the execution of the trust other than the plaintiff in such motion: Provided, however, That in the case of a trust deed to secure a debt or obligation notice to the grantor, his heirs, devisees or personal representatives, and the person appearing by such deed or by recorded assignment to be the party secured, or his personal representatives, shall be sufficient. If any of the parties on whom such notice is required to be served be under disability and have no guardian or committee, the court, judge or clerk shall appoint some discreet and competent attorney at law as guardian ad litem to such person, on whom notice may be served. If there be such guardian or committee the notice shall be served on him. It shall not be necessary to give notice to a trustee who has removed from the State, declined to accept the trust, refused to act as trustee, or has resigned, nor to the personal representative of one who has died."(Code 1860, c. 178, §5; Code 1868, c. 132, §5; 1882, c. 142, §5; Code 1923, c. 132, §5.)

§3. Remaining Trustees, or Personal Representative of Sole or Surviving Trustee, May Execute Trust.—The personal representative of a sole or surviving trustee, or if there be more than one trustee, and one or more of them die, resign, or remove from the State, or decline to accept the trust, or refuse to act as such trustee or trustees, the remaining trustee or trustees, may execute the trust, or so much thereof as remained unexecuted at the death, removal, declination, resignation, or refusal aforesaid (whether the trust subject be real or personal property), unless the instrument creating the trust directs otherwise, or some other trustee be appointed for the purpose by a court of chancery having jurisdiction of the case.(Code 1849, c. 178, §6; Code 1860, c. 178, §6; Code 1868, c. 132, §6; Code 1923, c. 132, §6.)

§4. Powers and Responsibilities of Substituted or Remaining Trustee.—Any trustee or trustees appointed under authority of this article, if he or they accept, or the personal representative of a sole or surviving trustee, or the surviving or remaining trustee, who has power to execute any trust or the remainder of any trust under authority of this article, shall be vested with all the estates, rights and powers, and charged with all the duties and responsibilities, of the trustee or trustees named in the trust instrument.(Code 1860, c. 178, §5; Code 1868, c. 132, §5; 1882, c. 142, §5; Code 1923, c. 132, §5.)

§1. Scope of Article.—Whenever, pursuant to any law of the United States or regulation of any bureau or agency thereof, the appointment of a guardian or committee for any person to act in a fiduciary capacity is required prior to a payment of benefits, pensions, compensation for service or for any other reason for which payments are due from the government of the United States or any agency thereof, such appointment shall be made in the manner hereinafter provided.(1929, c. 82, §1.)

§2. When Unlawful for Person to Accept Appointment as Guardian; Removal.—Except as hereinafter provided, it shall be unlawful for any person to accept appointment as guardian of any ward if such proposed guardian shall at that time be acting as guardian for five wards. In any case, upon presentation of a petition alleging that a guardian is acting in a fiduciary capacity for more than five wards and requesting his discharge for that reason, the court, upon proof substantiating the petition, shall require a final accounting forthwith from such guardian and shall discharge such guardian in such case, upon his delivering to a successor, properly qualified, the property with which he was chargeable: Provided, That the limitations of this section shall not apply where the guardian is a bank or trust company acting for the wards’ estates only: Provided further, That an individual may be guardian of more than five wards if they are all members of the same family.(1929, c. 82, §2.)

§3. Petition for Appointment.—A petition for the appointment of a guardian may be filed in any court of competent jurisdiction by or on behalf of any person who under existing law is entitled to priority of appointment. If there be no person so entitled, or if the person so entitled shall neglect or refuse to file such petition within thirty days after mailing of notice by the bureau or other agency of the government of the United States directly interested in the payment of the sums due the person or persons to the last known address of such person indicating the necessity for the same, a petition for such appointment may be filed in any court of competent jurisdiction by or on behalf of any responsible person residing in this State.

The petition for appointment shall set forth the name, age and place of residence of the ward, the name and place of residence of the nearest relative, if known, and the fact that such ward is entitled to receive moneys payable from the government of the United States, and shall set forth the amount of moneys then due and the amount of probable future payments.

The petition shall also set forth the name and address of the person or institution, if any, having actual custody of the ward.

In the case of a mentally incompetent ward the petition shall show that such ward has been rated incompetent on examination by an examining board employed or convened by the government of the United States in accordance with the laws and regulations governing the bureau or agency of the government from which payments are to be made.(1929, c. 82, §3.)

§4. Evidence of Necessity for Appointment of Guardian of Minor Ward.—Where a petition is filed for the appointment of a guardian of a minor ward, a certificate setting forth the age of such minor as shown by the records and the fact that the appointment of a guardian is a condition precedent to the payment of any moneys due the minor by the government of the United States shall be prima facie evidence of the necessity for such appointment.(1929, c. 82, §4.)

§5. Evidence of Necessity for Appointment of Guardian or Committee of Mentally Incompetent Ward.—Where a petition is filed for the appointment of a guardian or committee of a mentally incompetent ward, a certificate setting forth the fact that such person has been rated incompetent by an examining board employed or convened by the government of the United States, on examination in accordance with the laws and regulations governing such bureau or agency of government from which payments are to be made, and that the appointment of a guardian is a condition precedent to the payment of any moneys due such person, shall be prima facie evidence of the necessity for such appointment.(1929, c. 82, §5.)

§6. Notice.—Upon the filing of a petition for the appointment of a guardian of committee under the provisions of this article, the court shall cause such notice to be given as provided by law.(1929, c. 82, §6.)

§7. Qualifications and Bond of Guardian.—Before making an appointment under the provisions of this article the court shall be satisfied that the guardian whose appointment is sought is a fit and proper person to be appointed. Upon the appointment being made the guardian shall execute and file a bond to be approved by the court in an amount not less than the sum then due and estimated to become payable during the ensuing year. Such bond shall be in the form and be conditioned as required of a guardian appointed under the guardianship laws of this State. The court shall have power from time to time to require additional bond. No such bond tendered by a guardian or committee appointed under the provisions of this article shall be valid unless the surety thereon shall be a solvent surety or bonding company authorized to and legally doing business in this State. The premiums on such bond shall be properly payable out of the estate in the hands of such guardian or committee: Provided, however, That where the total estate coming into the hands of such guardian or committee shall at no time exceed the sum of five hundred dollars, then a bond with at least three personal sureties thereon may be accepted, if such personal sureties are solvent and are worth, respectively, the amount named as the penalty of the bond.(1929, c. 82, §7.)

§8. Settlement of Accounts.—Every guardian, who shall receive on account of his ward any moneys from the government of the United States or any agency thereof, shall file with a commissioner of accounts annually, on the anniversary date of the appointment, or within thirty days thereafter, in addition to such other accounts as may be required, a full, true, and accurate account under oath of all moneys so received by him, of all disbursements thereof, and showing the balance thereof in his hands at the date of such account and how invested. A certified copy of each of such accounts filed with such commissioner of accounts shall be sent by the guardian to the office of the bureau or other agency of the government having jurisdiction over the area in which such court is located and from which payments are made. The commissioner of accounts shall fix a time and place for the hearing on such account not less than fifteen nor more than thirty days from the date of filing same, and notice thereof shall be given by the commissioner of accounts to the aforesaid bureau or other agency of the government not less than fifteen days prior to the date fixed for the hearing. Notice of such hearing shall in like manner be given to the guardian.(1929, c. 82, §8.)

§9. Failure to Make Settlement.—If any guardian shall fail to file any account of the money received by him from the bureau or other agency of the government on account of his ward within thirty days after such account is required by either the commissioner of accounts or the bureau or other agency of the government, or shall fail to furnish the bureau or other agency of the government a copy of his accounts as required by this article, such failure shall be grounds for a removal.(1929, c. 82, §9.)

§10. Compensation.—Compensation payable to the guardian shall not exceed five per cent of the income of the ward during any year. In the event of extraordinary services rendered by such guardian the circuit court may, upon petition and after hearing thereon, authorize additional compensation therefor payable from the estate of the ward. Notice of such petition and hearing shall be given the proper office of the bureau or other agency of the government in the manner provided in section eight. No compensation shall be allowed on the corpus of an estate received from a preceding guardian. The guardian may be allowed from the estate of his ward reasonable premiums paid by him to any corporate surety upon his bond.(1929, c. 82, §10.)

§11. Investment of Funds.—Every guardian shall invest the funds of the estate in such manner or in such securities, in which the guardian has no interest, as allowed by law or approved by the court.(1929, c. 82, §11.)

§12. Disbursements.—A guardian shall not apply any portion of the estate of his ward for the support and maintenance of any person other than his ward, except upon order of the court, and after a hearing, reasonable notice of which has been given the proper office of the bureau or other agency of the government directly interested in the payment of moneys to such guardian for his ward, in the manner provided in section eight.(1929, c. 82, §12.)

§13. Certified Copies of Necessary Public Records Furnished Without Cost.—Whenever a copy of any public record is required by the bureau or other agency of the government to be used in determining the eligibility of any person to participate in benefits made available to such agency, the official charged with the custody of such public record shall, without charge, provide the applicant for such benefits, or any person acting on his behalf, or the representative of such agency, with a certified copy of such record.(1929, c. 82, §13.)

§14. Hospitalization of Veteran.—Whenever it appears that a veteran of any war, military occupation or expedition is eligible for treatment in a United States hospital and commitment to such hospital is necessary for the proper care and treatment of such veteran, the county court, or other tribunal in lieu thereof, of the county in which such veteran resides is hereby authorized to communicate with the official in charge of such hospital with reference to available facilities and eligibility, and upon receipt of a certificate from the official in charge of such hospital the court may then direct such veteran’s commitment to such United States hospital. Thereafter such veteran upon admission shall be subject to the rules and regulations of such hospital and the officials of such hospital shall be vested with the same powers now exercised by superintendents of state hospitals for mental diseases within this State with reference to the retention of custody of the veteran so committed. Notice of such pending proceedings shall be furnished the person to be committed and his right to appear and defend shall not be denied.(1929, c. 82, §14.)

§15. Discharge of Guardian.—When a ward for whom a guardian has been appointed under the provisions of this article or other laws of this State shall have attained his or her majority, and, if incompetent, shall be declared competent by the examining board employed or convened by the bureau or other agency of the government of the United States and the court, and when any incompetent ward, not a minor, shall be declared competent by such examining board employed or convened by the bureau or other agency of the government of the United States and the court, the guardian shall, upon making a satisfactory accounting, be discharged upon a petition filed for that purpose.(1929, c. 82, §15.)

§16. Construction of Article.—This article shall be construed liberally to secure the beneficial intents and purposes thereof, and shall apply only to beneficiaries of the government of the United States. It shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enacted it.(1929, c. 82, §§16,18.)

§17. How Cited.—This article may be cited as the “Uniform Veterans’ Guardianship Act.”(1929, c, 82, §17.)

§18. Invalidity of Part of Article.—The invalidity of any portion of this article shall not affect the validity of any other portion thereof which can be given effect without such invalid part.(1929, c. 82, §19.)