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Oct. 11, 1862, 1086.

Oct. 11, 1862, 1087.

Property discovered after filing inventory.

Oct. 11, 1862, 1088.

Who entitled to possession and control of property of deceased.

5 Or. 203. 20 Or. 131.

Oct. 11, 1862, 1089.

Proceedings

charged with
secreting
property
or writing
relating
thereto.

purposes of administration is to be deemed and treated as a specific legacy of that amount.

§ 1119. [1087.] If, after the filing of the inventory, property not mentioned therein shall come to the knowledge or possession of the executor or administrator, it is his duty immediately to make an inventory thereof, and cause the same to be appraised in the manner prescribed in this title, and file the same with the clerk.

§ 1120. [1088.] The executor or administrator is entitled to the possession and control of the property of the deceased, both real and personal, and to receive the rents and profits thereof until the administration is completed, or the same is surrendered to the heirs or devisees by order of the court or judge thereof; but where such property, or any portion thereof, is in the possession of a third person, by virtue of a valid subsisting lease or bailment, the possession and control of the executor or administrator is subordinate to the right of the lessee or bailee. During the time the property is in the possession or control of the executor or administrator, it is his duty to keep the same in repair, and preserve it from loss or decay as far as possible.

Right to possession of dece dent's property: See this section followed in Page v. Tucker, 54 Cal. 121. The power of the probate court to surrender property to heirs or devisees is confined to the property and cases specified in §§ 1193, 1194 [1161,

1162]: Hamner v. Silver, 2 Or. 339. The executor's right to possession, and receipt of property, and payment of claims, precedes right of wife to receive her third as her dower: Leonard v. Grant, 8 Id. 276.

§ 1121. [1089.] Whenever it appears probable from the affidavit of an executor or administrator, or that of against person an heir or other person interested in the estate, that any person has concealed or in any way secreted or disposed of any property of the estate, or any writing relating or pertaining thereto, or that such person has knowledge of any such property or writing being so concealed, secreted, or disposed of, and refuses to disclose the same to the executor or administrator, the court or judge thereof, upon the application of such executor or administrator, may cite such person to appear and answer under oath concerning the matter charged.

20 Or. 600.

$1090.

§ 1122. [1090.] Such examination may be oral or Oct. 11, 1862, upon written interrogatories filed by the applicant, but Mode of

of such

in either case the answers of the person cited shall be examination reduced to writing, and subscribed by him and filed. If persons. such person be not in the county where administration is granted, the proceeding may be either before the court or judge thereof of such county, or before the court or judge thereof of the county where such person resides or may be found. In the latter case, a certified copy of the written interrogatories, if any, and the examination or other proceeding thereon or connected therewith, shall be filed with the clerk of the court where administration is granted.

$ 1091.

Proceedings in

case such

person refuses

§ 1123. [1091.] If the person so cited refuse to ap- Oct. 11, 1862, pear, or to answer such interrogatories as may be allowed to be put to him touching the matter charged, he may be punished for a contempt, or may at once be committed, to appear and by the warrant of the judge, to the county jail, there to remain in close custody until he submits to the order of the court or judge.

answer.

1092.

Proceedings to

compel acany person

count against

intrusted with

any portion of

the estate.

§ 1124. [1092.] The court or judge thereof, upon the Oct. 11, 1862, application of the executor or administrator, may cite any person who has been intrusted with any of the property of the deceased, to appear and answer concerning the same when it appears probable that such person refuses or neglects to render to the executor or administrator a true account thereof. The application shall be made and the proceeding conducted in the manner prescribed in sections 1121 [1089], 1122 [1090], and 1123 [1091], concerning property or writings alleged to be concealed, and with like effect.

20 Or. 600.

1093.

§ 1125. [1093.] If any person shall, before adminis- Oct. 11, 1862, tration is granted, embezzle, alien, or in any way convert Damages for to his own use any of the property of a deceased person, conversion of he is liable to the executor or administrator in double the amount of damages which may be assessed therefor.

admin

property
istration.

46

TITLE IV.

OF THE SUPPORT OF THE WIDOW AND MINOR CHILDREN.

§ 1126. Provision for widow or minor children before administration is

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§ 1129.

§ 1130.

When the whole of estate to be set apart to widow and children.
When estate all to be deemed assets.

Oct. 11, 1862, $ 1094.

Provision for widow or

minor children

istration

§ 1126. [1094.] Until administration of the estate has been granted and the inventory filed, the widow and minor children of the deceased are entitled to remain in before admin- the possession of the homestead, all the wearing apparel of the family and household furniture of the deceased, and also to have a reasonable provision for their support during such period, to be allowed by the court or judge thereof.

granted.

12 Or. 205.

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Provision in lieu of dower. The provision made for the widow in this section is intended to be in lieu of dower during the administration of the estate; and therefore she is not

entitled to an assignment of dower in the lands of her deceased husband until after the administration is completed: Leonard v. Grant, 8 Or. 276.

§ 1127. [1095.] Upon the filing of the inventory, the court or judge thereof shall make an order, setting apart, for the widow or minor children of the deceased, if any, all the property of the estate by law exempt from execution. The property thus set apart, if there be a widow, is her property, to be used or expended by her in the maintenance of herself and minor children, if any; or if there be no widow, it is the property of the minor child; or if more than one, of the minor children in equal shares, to be used or expended in the nurture and education of such child or children, by the guardian thereof, as the law directs.

§ 1128. [1096.] If the property so exempt is insufficient for the support of the widow and minor children, according to their circumstances and condition in life, for one year after the filing of the inventory, the court or judge thereof may order that the executor or adminis

$1096. Further order

when made.

trator pay to such widow, if any, and if not, then to the Oct. 11, 1862, guardian of such minor children, an amount sufficient for that purpose; but such order shall not be made unless for support it appear probable that the estate is sufficient to satisfy all the debts and liabilities of the deceased, and pay the expenses of administration in addition to the payment of such amount.

$ 1097.

When the whole estate to be set apart

children.

§ 1129. [1097.] If from the inventory of an intes- Oct. 11, 1862, tate's estate, who died leaving a widow or minor children, it appears that the value of the estate does not exceed one hundred and fifty dollars over and above property to widow and exempt from execution, upon the filing of the inventory the court or judge thereof shall make a decree providing that the whole of the estate, after the payment of funeral expenses and expenses of administration, be set apart for such widow or minor children, in like manner and with like effect, as in case of property exempt from execution. There shall be no further proceeding in the administration of such estate, unless further property be discovered.

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$1098.

§ 1130. [1098.] If an intestate leave neither widow Oct. 11, 1862, nor minor children, all the property of the estate is When estate assets in the hands of the administrator, for the payment all to be of funeral expenses, expenses of administration, payment of the debts of the deceased, or distribution according to law.

deemed assets.

TITLE V.

OF CLAIMS AGAINST THE ESTATE.

§ 1131. Publication of notice by executor or administrator, and contents thereof.

§ 1132. Proof of publication; effect of not presenting claim according to

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§ 1139. Claim of executor or administrator.

§ 1140. Such claim may be determined on the settlement of final account.

Oct. 11, 1862, 1099.

Publication of notice by executor or

and contents thereof.

§ 1131. [1099.] Every executor or administrator shall, immediately after his appointment, publish a notice thereof, in some newspaper published in the county, if administrator, there be one, or otherwise in such paper as may be designated by the court or judge thereof, as often as once a week, for four successive weeks, and oftener if the court or judge shall so direct. Such notice shall require all persons having claims against the estate to present them, with the proper vouchers, within six months from the date of such notice, to the executor or the administrator, . at a place within the county therein specified.

Oct. 11, 1862, 1100.

Proof of publication..

Effect of not presenting claim

according to notice.

Oct. 11, 1862, § 1101.

Claim, how

verification of.

§ 1132. [1100.] Before the expiration of the six months mentioned in the last section, a copy of the notice as published, with the proper proof of publication, shall be filed with the clerk. A claim not presented within six months after the first publication of the notice is not barred, but it cannot be paid until the claims presented within that period have been satisfied; and if the claim. be not then due, or if it be contingent, it shall nevertheless be presented as any other claim. Until the administration has been completed, a claim against the estate not barred by the statute of limitations may be presented, allowed, and paid out of any assets then in the hands of the executor or administrator not otherwise appropriated or liable.

§ 1133. [1101.] Every claim presented to the executor or administrator shall be verified by the affidavit of presented and the claimant, or some one on his behalf, who has personal knowledge of the facts, to the effect that the amount claimed is justly due, that no payments have been made thereon, except as stated, and that there is no just counterclaim to the same, to the knowledge of the affiant. When it appears or is alleged that there is any written evidence of such claim, the same may be demanded by the executor or administrator, or that its non-production be accounted for.

Claim must be verified by claimant: Zachary v. Chambers, 1 Ör. 321. Must be presented. When

there is no legal presentment of a claim to the administrator within the time prescribed, no action can be

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