-where repre

Provided, however, That where the representative of the deceased sentative of de- is an executor or administrator the plaintiff shall have six months after the issuance of letters testamentary or of administration within which to make such representative a party:

ceased an executor.

Substitution of

And provided further, That in case the summons above provided for publication for shall be returned "Not to be found," publication may be substituted therefor in all cases in which proceeding by publication is authorized by this code.

summons.

Summons to ex

SEC. 237. SUMMONS TO EXECUTOR, AND SO FORTH.-If the plaintiff ecutor, etc., of in any such action shall die before judgment is given, the heir, devisee, plaintiff. executor, administrator, or other proper person to prosecute such action may appear and prosecute the same; and if such person does not appear to prosecute such action during the term of said court in which the death may be suggested, the defendant may cause a summons to be issued, directed to the proper person to prosecute such action, requiring him to appear and prosecute the same on or before the twentieth day, exclusive of Sundays and legal holidays, occurring after service of the Abatement of same; and if it shall appear to the court that such summons has been action on nonap- duly served, and the party summoned shall fail to appear in obedience thereto to prosecute the action, or if said party be not found in the District of Columbia and shall not appear to prosecute such action by the fourth day of the second term of the court after the term at which the death is suggested, the action shall abate; but if the proper person to prosecute such action shall appear therein, either voluntarily or after being summoned as aforesaid, before said suit shall so abate, all proceedings in the action had before the death of the plaintiff shall be considered as proceedings in the cause, and such other proceedings shall be had to bring the cause fairly to trial as the court may deem proper.

pearance, etc.

Death of party.

Pleadings.

new

Costs before new

SEC. 238. DEATH OF NEW PARTY. In all cases where a new party has been made to any action under the provisions aforesaid, and the new party so made shall die before judgment, or if an executor or administrator shall be removed from his office, the proper person to prosecute or defend such action in the place of the party so dying or removed may be made a party thereto by the same proceeding herein authorized on the death of the original plaintiff or defendant.

SEC. 239. PLEADINGS.-Any new party to any action may use and rely upon any pleadings put in by his predecessor in such action, or shall have the same right to amend the pleadings or proceedings in such action as if he had been an original party thereto.

SEC. 240. COSTS.-In all cases where a new party is made to an action party is made to the costs which accrued before such new party was made shall be taxed be taxed, etc. as part of the costs in such action, and the judgment rendered shall be the same as if the action had been originally commenced between the persons who are parties to such action:

Provided, That no defendant who is made a new party to such action shall be burdened with debts, damages, or costs beyond the amount of property or assets descended or come to his hands from the deceased.

SEC. 241. JOINT PARTIES.-In case of the death of one of several joint defendants to an action, where the right of action will survive as aforesaid, the same proceedings shall be had to make the proper representative of the deceased a party to the action as in the case of a sole defendant.

SEC. 242. APPEALS FROM JUSTICES OF THE PEACE.-An appeal from a judgment rendered by any justice of the peace shall be deemed an action within the meaning of the aforegoing provisions.

SEC. 243. EQUITY SUITS.-No suit in equity shall abate by the death of any of the parties in cases where the rights involved in the suit survive.

Death of party

SEC. 244. DEATH OF PARTY TO EQUITY SUIT.—If any of the parties to a suit in equity, whether complainant or defendant, shall die after the to equity suit. filing of the bill or petition, it shall not be necessary to file a bill of revivor; but any of the surviving parties may file a suggestion of such death, setting forth when the death occurred, and who is the legal representative of such deceased party, and how he is the representative, whether by devise, descent, or otherwise.

resentatives.

Death after decree for account,

etc.

SEC. 245. SUBPOENA TO REPRESENTATIVES. Upon such a suggestion Subpoena to repa subpoena shall issue for the legal representative of the deceased party, commanding him to appear and be made a party to such suit, if such representative reside within the District of Columbia; and if such representative is a nonresident, then such notice shall be given instead of the subpoena as is herein elsewhere provided for nonresident defendants. SEC. 246. DEATH AFTER DECREE FOR ACCOUNT, AND SO FORTH.—If any defendant shall die after a decree for an account, sale, or partition, or after such other proceedings shall have been had after appearance as would have warranted the passing of such a decree, or if such deceased defendant shall have answered, confessing the facts stated in the bill, or shall have set up no defense to the relief therein prayed, the court may, in its discretion, order the cause to be proceeded in as if no death had occurred, or may order a bill of revivor or a supplemental bill to be filed, and the proper representative of such deceased defendant to be made a party, as may seem best calculated to advance the purposes of justice:

Appearances be

Provided, That the heir or other proper representative of such deceased defendant, at any time before final decree, may appear and fore final decree, be made a party on such reasonable terms as the court may direct; and etc. such new party may file an answer to the original bill, subject to such terms as the court may impose, in which he may insist on such defenses, and none other, as might have been made to a bill of revivor or supplemental bill in the nature of a bill of revivor filed against him.

Marriage of

SEC. 247. MARRIAGE OF PARTY.-No suit at law or in equity shall abate by the marriage of any of the parties; but on application of any party. of the parties the court may, on such terms and notice as it shall deem proper, allow and order any amendment in the pleadings and the making of any new or additional parties that such marriage may render necessary or proper.

Death after final

SEC. 248. DEATH AFTER FINAL DECREE. -If any of the parties to a suit die after final decree, the court may order execution of such decree decree. as if no death had occurred, or the court may order a subpoena scire facias to be issued, or a bill of revivor to be filed against the proper representatives of such deceased party, or pass such other order or direct such other proceedings as may seem best calculated to advance the purposes of justice:

Appearance be

Provided, That the heir or other proper representative may appear at any time before execution of said decree and be admitted as a fore execution. party to the suit, on such terms as the court may prescribe, and such further proceeding may be had as may be appropriate to the merits of the cause.

Failure to ap

SEC. 249. FAILURE TO APPEAR.-If any representative of a deceased party shall fail to appear, after being summoned, within the time therein pear. limited, or shall fail to appear after notice by publication, the court may order the appearance of such representative to be entered, to have the same effect as if such representative had appeared in person and been made a party.

SEC. 250. EVASION OF SERVICE OF PROCESS.---In all cases where any representative of a deceased party to a suit shall evade any process issued against him, or shall leave the District before any such process can be served on him, he may be proceeded against as a nonresident defendant.

Evasion of service of process.

Auditor's re

port.

SEC. 251. BILL OF REVIVOR.-A bill of revivor or supplemental bill in the nature of a bill of revivor may be filed, instead of a suggestion of the death of a party, and notice thereof shall be given to the defendant by subpoena or the service of a copy of such bill, if he be found within the District, as the court may direct; or, if the party be a nonresident or secrete himself or evade the service of the summons, or if his residence be unknown, then notice by publication may be given as against nonresident defendants.

CHAPTER THREE.

ABSENCE FOR SEVEN YEARS.

SEC. 252. PRESUMPTION OF DEATH.-If any person shall leave his domicile without any known intention of changing the same, and shall not return or be heard from for seven years from the time of his so leaving, he shall be presumed to be dead, in any case wherein his death shall come in question, unless proof be made that he was alive within that time.

SEC. 253. PERSON FOUND LIVING.-If the person so presumed to be dead be found to have been living, any person injured by such presumption shall be restored to the rights of which he shall have been deprived by reason of such presumption.

CHAPTER FOUR.

ACCOUNT.

SEC. 254. AUDITOR'S REPORT AND EXCEPTIONS.-In actions at common law grounded upon an account, or in which it may be necessary to examine and determine upon accounts between the parties, the court, in its discretion, at any stage of the cause, may order the accounts and dealings between the parties to be audited and stated by the auditor of the court or by a special auditor to be appointed by the court for the purpose; in which case, if a jury shall have been sworn, they shall be discharged. The course of proceedings before the auditor shall be the same as in cases in equity referred to him. When his audit is completed the auditor shall file his report and account in the clerk's office and give notice thereof to the parties or their attorneys, and at the expiration of thirty days after said notice judgment may be entered, on motion of either party, in accordance with said report and account, unless exceptions are filed thereto for errors in law or fact therein. -exceptions to. The party excepting thereto shall point out particularly the item or items in such report and account excepted to, and state the grounds of such exception, and annex to his exceptions a certificate of counsel that, in his opinion, the matters of law therein stated are well founded in law, and an affidavit of such party that the exceptions are not filed for delay, and that the allegations of fact in said exceptions are true, and a copy of said exceptions shall be served on the opposite party or his attorney.

-trial of exceptions.

Directions

to

SEC. 255. TRIAL OF EXCEPTIONS.-When such exceptions are filed, the court shall enter the cause on the trial calendar of the term in which they are filed in its proper place, and the issues made by said exceptions shall be tried and determined in the same manner as other issues of law or fact made by the pleadings in an action at common law, and any part of such report and account not so excepted to shall be adjudged to be conclusive between the parties on such trial.

SEC. 256. DIRECTIONS TO JURY.-If, in the opinion of the court, jury as to part of such issues are so numerous as to create confusion the court may, in issues, etc. its discretion, direct evidence to be received and considered by the

jury as to a part of said issues, and direct the jury to retire and conclude as to the same before hearing the evidence as to the other issues, and this to repeat as often as may be necessary, the final conclusion of the jury as to all the issues to be announced as their verdict; or may submit the different issues to the same jury at different times for their separate verdicts thereon, or submit such issues to different juries; or may pursue such other course as the rules of the court may prescribe to facilitate the determination of such issues.

Frivolous excep

SEC. 257. FRIVOLOUS EXCEPTIONS.-If only general, immaterial, or frivolous exceptions are made or they are filed without the certificate tions. of counsel and affidavit of exceptant, required as aforesaid, they may be overruled by the court or a justice at chambers, on notice and motion, and judgment entered as if no exceptions had been filed.

SEC. 258. JUDGMENT.-Upon the conclusion of such trial or trials the court shall enter judgment upon the auditor's report as affirmed or corrected by the findings of the jury.

CHAPTER FIVE.

ADMINISTRATION.

SUBCHAPTER ONE.

EXECUTORS, ADMINISTRATORS, AND COLLECTORS.

SEC. 259. ESTATE TO BE ADMINISTERED. On the death of any person domiciled in the District of Columbia leaving real or personal estate, or both, therein, all his personal estate and so much of his real estate as shall be necessary in addition thereto for the payment of his debts shall be the subject of administration under authority and direction of the probate court.

Judgment.

Administration.

Executors, administrators, and collectors.

Estate to be administered.

SEC. 260. LIEN OF CREDITORS.-On the death of any person not Administration lomiciled in the District of Columbia at the time of his death so much of real estate of of his real estate in the District of Columbia as may be necessary for claims of resident nonresident to pay the payment and discharge of just claims against him of creditors and creditors. persons domiciled in the District of Columbia shall also be the subject of administration under authority and direction of the probate court, irrespective of the personal estate of such decedent:

Provided, The prosecution of such claims is begun in said court time for proswithin one year after the death of such decedent.

SEC. 261. COMPETENCY OF EXECUTORS, AND SO FORTH.-No letters testamentary or of administration shall be granted to a person convicted of an infamous offense, or to an idiot or lunatic, or person non compos mentis, or one under eighteen years of age, or to an alien; and all questions as to the disqualification on any of said grounds of any person claiming to be entitled to letters testamentary or of administration shall be determined by the probate court, after such notice to the said persons as the court may direct.

ecuting claims.

Competency of executors, etc.

Letters testa

SEC. 262. LETTERS TESTAMENTARY.-When any will or codicil respecting either real or personal property shall have been authenticated mentary. and admitted to probate, letters testamentary thereon shall be issued to the executor named therein, if he is legally competent and will accept the trust:

Provided, That he shall first execute a bond to the United States, with security to be approved by the court, in such penalty as the court may require, with a condition that he will administer according to law and to the will of the testator all his goods, chattels, rights, and credits, and the proceeds of all his real estate that may be sold for the payment of his debts or legacies which shall at any time come to the possession SUP R S VOL 2- -105

Bond of execu tor.

-limit of pen

alty.

-increase were

etc.

of the executor or to the possession of any other person for him, and in all other respects faithfully perform the trusts reposed in him:

And provided further, That said executor shall take and subscribe and file an oath that he will well and truly administer the estate of the deceased according to law and will give a just account of his administration when thereto lawfully called:

Provided, That the above conditions as to bond and oath shall not apply to corporations authorized to act as executors.

SEC. 263. BOND, WHEN NOT REQUIRED.-Whenever a testator shall, by last will and testament, request that his executor be not required to give bond for the performance of his duty, in such case the bond required of the executor shall be in such penalty as the court may consider sufficient to secure the payment of the debts due by the tes

tator:

Provided, however, That the penalty of such bond shall not exceed double the value of the personal estate; and when less than this sum it may be increased, or an additional bond may be required, whenever it shall be made to appear to the court that the bond as given is insufficient to secure the payment of the debts of the testator:

And provided further, That whenever any creditor, distributee, or assets in danger, legatee entitled to take under the will shall make it appear to the court that any executor who has given such bond only as is herein provided for is wasting the assets of the estate, or that the assets are in danger of being lost, wasted, or misappropriated, then the said executor may be removed or required to give additional bond with security in a penalty sufficient to secure the interests of all the creditors, distributees, and legatees entitled to take said estate, and on his failure to give bond as required his letters may be revoked; and upon such revocation the same results shall ensue as hereinafter provided in section two hundred and ninety-six.

Bond of execu

tor who is residuary legatee, etc.

-liability of sureties.

Joint executor.

Letters of ad

SEC. 264. EXECUTOR RESIDUARY LEGATEE.-If the executor is the

residuary legatee of the personal estate of the testator, or provided the residuary legatee of full age shall notify his consent to the court, he may, instead of the bond prescribed as aforesaid, give bond with security approved by the court, and in a penalty prescribed by the court, conditioned to pay all the debts and just claims against the testator, and all damages which shall be recovered against him as executor, and all legacies bequeathed by the will, in which case he shall not be required to file any inventory or render any account. And if such bond be given by the executor, he shall be answerable for the full amount of all debts, claims, and damages that may be recovered against him as executor as if he were sued in his own right, and any legatee may recover the full amount of his legacy in a suit on the executor's bond or in equity, and the giving of the bond shall be considered an assent to the legacy:

Provided, That the surety or sureties in said bond shall not be liable for a greater amount than the penalty thereof.

SEC. 265. JOINT EXECUTOR.-When two or more persons are appointed executors, the court may take a separate bond with security from each of them or a joint bond with security from all of them together.

SEC. 266. LETTERS OF ADMINISTRATION CUM TESTAMENTO ANNEXO.— ministration cum If there be only one executor named in the will, and he shall have testamento an- been present at the probate of the will, and shall not within twenty days thereafter file a bond and qualify as executor by taking the oath aforesaid, letters of administration with the will annexed may be granted as if no executor had been named.

nexo.

tor.

Absent execu

SEC. 267. ABSENT EXECUTOR.-If said executor shall not have been present at the probate of the will, but shall be within the District, a summons may be issued to him, either at the instance of any person