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resides, if the defendant is a resident of this state, requiring him to appear and answer the petition on the return day of the summons; and where there are several defendante, residing in different counties, a separate summons shall be issued to each county, including all the defendants residing therein. Every summons shall be made returnable to the first term of the county court after the date thereof, unless the petition is filed within ten days immediately preceding any term, in which case the summons shall be returnable to the next term thereafter.
§ 103. The service of summons shall be made by read- Service of suming thereof to the defendant, or leaving a copy thereof at the usual place of abode, with some member of the family of the age of ten years and upwards, and informing such person of the contents thereof, which service shall be at least ten days before the return of such summons.
$ 104. Whenever any petitioner or his attorney shall When process file, in the office of the clerk of the court in which his peti-ed. tion is pending, an affidavit showing that any defendant resides or hath gone out of this state, or on due inquiry cannot be found, or is concealed within this state, so that process cannot be served upon him, and stating the place of residence of such defendant, if known; or that, upon diligent inquiry, his place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county, and if there is no newspaper published in his county, then in the nearest newspaper published in this state, containing notice of the filing of the petition, the names of the parties thereto, the title of the court, and the time and place of the return of summons in the case, and a description of the premises described in the petition; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose place of residence is stated in such affidavit. The certificate of the clerk that he has sent such notice in pursuance of this section, shall be evidence.
$ 105. The notice required in the preceding section may Notice. be given at any time after the filing of the petition, and shall be published at least once in each week for four successive weeks, and no default or proceeding shall be taken against any defendant not served with summons, and not appearing, unless forty days shall intervene between the first publication, as aforesaid, and the first day of the term at which such default or proceeding is proposed to be taken, § 106. When it appears
persons required Minors defendto be made parties defendant, who have been served with summons or notified as aforesaid, are minors under the age of twenty-one years if males, or eighteen years if females, without a guardian resident in this state, or are persons having conservators, or where such guardian, if any, or
Court to examine.
conservator shall not be personally served with summons or shall not appear, the court shall appoint a guardian ad litem, who shall appear and defend in behalf of such minors, and be allowed such compensation as may be fixed by the court.
§ 107. Upon hearing the cause upon the issues formed or taken, the court shall hear and examine the allegations and proofs of the parties and of all other persons interested in the estate who may appear and become parties; and if, upon due examination, the court shall find that the executor or administrator has made a just and true account of the condition of the estate, and that the personal estate of the decedent is not sufficient to pay the debts against such estate, the court shall ascertain, as nearly as can be, the amount of deficiency, and how much of the real estate described in the petition it is necessary to sell to pay such deficiency, with the expenses of administration then due or to accrue, and make a decree for the sale thereof: Provided, that where any houses and lots, or other real estate are so situated that a part thereof cannot be sold without manifest prejudice to the heirs, devisees or owner, the court may order the sale of the whole or such part as it may deem best; and the overplus arising from such sale shall be distributed among the heirs and devisees, owners, or such other persons as may be entitled thereto.
$ 108. All such sales of real estate shall be made and conveyances executed for the same, by the executor or administrator applying for such order, and shall be valid and effectual against the heirs and devisees of such decedent, and all other persons claiming by, through or under him or them. In case of the death of the executor or administrator applying for an order of sale before conveyance is made, the administrator de bonis non shall proceed in the premises and make conveyance in the same manner as if he had originally applied for such order, which conveyance shall be good and valid.
$ 109. No lands or tenements shall be sold by virtue of any such order of the county court, unless such sale is at public vendue, and between the hours of ten o'clock in the forenoon and five o'clock of the afternoon of the same day; nor unless the time and place of holding such sale were previously published for the space of four weeks, by putting
notices thereof in at least four of the most public places in the county where such real estate shall be sold, and also by causing a similar notice thereof to be published four successive weeks prior to the sale, in the nearest newspaper in this state; nor unless such real estate shall be described with common certainty in such notices. And if any executor or administrator, so ordered to make sale of any real estate, shall sell the same contrary to the provisions of this act, he shall forfeit and pay the sum of five hundred dollars,
Lands or tenements.
to be recovered by action of debt, in the name of the People of the State of Illinois, for the use of any person interested, who may prosecute for the same: Provided, that no such offense shall be deemed to affect the validity of such sale: And, provided, further, that such executor or administrator may sell the same on a credit of not less than six nor more than twelve months, by taking note, with good personal security and a mortgage or sale mortgage on the premises for the payment of the purchase money, and after eale is made and lands conveyed by the executor or administrator under the provisions of this act, the executor or ad. ministrator shall, at the first terın of court thereatter, file in the office of the county clerk a complete report of said sale, giving a description of the premises sold, to whom and where sold, and the price for which sold, and in general a statement of the manner in which the terms of the decree were executed.
$ 110. When real estate is sold, the moneys arising ce Money from such sale shall be received by the executor or administrator applying for the order to sell, and shall be assets in his hands for the payment of debts, and shall be applied in the same manner as assets arising from the sale of personal property.
$ 111. In all cases where a decedent is seized of a legal Title to real or equitable title to real estate, the payment whereof has not been completed, and the estate of such decedent is un. able to make complete payment therefor, with advantage to sach estate, the administrator or executor may sell or dispose of such real estate upon the order of the county court, and the money arising from such sales shall be assets in the bands of such executor or administrator, as in other cases. But in all cases where the estate of any such decedent shall be solvent, and such lands as aforesaid may be paid for without prejudice to the creditors, heirs and devisees of the estate, the executor or administrator shall complete the payment for the same out of the proceeds of the personal property, in the name of the heirs or legal representatives of the decedent entitled thereto; and he shall be allowed a credit for the amount of such payments, and all reasonable expenses incurred in making the same, upon final settlement of such estate: Provided, that the provi. sions of this section shall, in nowise, interfere with the provisions of any last will or testament.
SETTLEMENT BY ADMINISTRATORS AND EXECUTORB.
$ 112. All executors and administrators shall exhibit Accounts 'for accounts of their administration for settlement, to the county
settlement. court from which the letters testamentary or of administration were obtained, at the first term thereof after the expiration of one year after the date of their letters; and in
like manner every twelve months thereafter, or sooner, if required, until the duties of their administration are fully completed : Provided, that no final settlement shall be made and approved by the court, unless the heirs of the decedent have been notified thereof, in such manner as the court
Assets and debts $ 113. Upon every such settlement of the accounts of
an executor or administrator, the court shall ascertain the whole amount of inoneys and assets belonging to the estate of the deceased, which have come into the hands of such executor or administrator, and the whole amount of debts established against such estate; and if there is not sufficient to pay the whole of the debts, the moneys aforesaid shall be apportioned among the several creditors pro rata, according to their several rights, as established by this act; and thereupon, the court sball order such execu. tor or administrator to pay the claims which have been allowed by the court, according to such apportionments; and the court, upon every settlemert, sball proceed in like man
ner until all the debts due are paid, or the assets exhausted. Settlements to $ 114. The county courts of this state shall entorce the be enforced.
settlements of estates within the time prescribed by law, and upon the failure of an executor or administrator to make settlement at the next term of the court after the expiration of said time, the court shall order a citation to issue to the sheriff of the county where the executor or administrator resides, or may be found, requiring said executor or administrator to appear at the next term of the court and make settlement of the estate, or show cause why the same is not done; and if an executor or admiuistrator fajls to appear at the time required by such citation, the court shall order an attachment requiring the sheriff of the county where the executor or administrator resides, or may be found, to bring the body of said executor or administrator before the court; and upon a failure of an adıoinistrator or executor to make settlement under the order of the court after having been so attached, he may be dealt with as for contempt, and shall be forth with removed by the court, and some discreet person appointed in his stead the costs of such citation or attachment to be paid by the delinquent
executor or administrator, and the court shall enter a Moneys, bonds, judgment therefor, and a fee bill may issue thereon. All notes, etc.
moneys, bonds, notes and credits which any administrator or executor may have in his possession or control as property or assets of the estate, at a period of two years and six months from the date of his letters testamentary or of administration, shall bear interest, and the executor or administrator shall be charged interest thereon from said period at the rate of ten per cent., or after two years and six months from any subsequent time that he may have dis
Failure to pay over moneys.
covered and received the same, unless good cause is shown to the court why such should not be taxed.
$ 115. If any executor or administrator shall fail or refuse to pay over any moneys or dividend to any person entitled thereto, in pursuance of the order of the county court, lawfully made, within thirty days after demand made for
such moneys or dividend, the court, upon application, may E attach such delinquent executor or administrator, and may
cause him to be imprisoned until he shall comply with the order aforesaid, or until such delinquent is discharged by due course of law; and moreover, such failure or refusal on the part of such executor or administrator shall be deemed and taken in law to amount to a devastavit, and an action apon such executor's or administrator's bond, and against his securities, may be forthwith instituted and maintained and the failure aforesaid to pay such moneys or dividend, shall be a snfficient breach to authorize a recovery thereon. § 116. Whenever it shall appear that there are sufficient Payment of
legacies. assets to satisfy all demands against the estate, the court shall order the payment of all legacies mentioned in the will of the testator, the specific legacies being the first to be satisfied.
$ 117. Execators and administrators shall not be com- Bond and secupelled to pay legatees or distributees until bond and secu- rity by legatee. rity is given by such legatees or distributees to refund the due proportion of any debt which may afterwards appear against the estate, and the costs attending the recovery thereot; such bond shall be made payable to such execator or administrator, and shall be for his indemnity and filed in the court.
3 118. When, at any time after the payment of legacies Refunded for or distributive shares, it shall be necessary that the same or debts. any part thereof be refunded for the payment of debts, the county court, op application made, shall apportion the same among the several legatees or distributees according to the amount received by them, except the specific legacies, which shall not be required to be refunded, unless the residue is insufficient to satisfy such debts; and if any distributee or legatee refuses to refund according to the order of the court, within sixty days thereafter, and upon demand made, such refusal shall be deemed a breach of his bond given to the executor or administrator as aforesaid, and an action may be instituted thereon for the use of the party entitled thereto; and in all cases where there is no bond, an action of debt may be maintained against such distributee or legatee, and the order of the court shall be evidence of the amount due.
$119. Where there are two or more executors or admin. Two or more istrators of an estate, and any one of them takes all or a execators. greater part of such estate and refuses to pay the debts of the decedent, or refuses to account with the other executor or administrator, in such case the executor or administrator