ministration accounts, except when it appears that the action has been prosecuted or resisted without just cause. Hicox v. Graham, 6 Cal. R., 167.

An administrator is not responsible for a debt lost by mistake, where he acted in good faith, and under advice of counsel. King v. Morrison, 1 Penn., 188.

If an administrator sends wine belonging to the estate, abroad on speculation, and loses on it, he is responsible for the loss. Callaghan v. Hall, 1 Serg.

& Rawles' R., 241.

He is also liable for the interest and costs of a debt which he refused to pay, when assets were in his hands.

Ib.

CHAPTER XI.

PARTITION AND DISTRIBUTION OF ESTATES.

portion of estate.

§ 250. At any time subsequent to the third term of the Petition by heir probate court, after the issuing of letters testamentary or of or devisee for his administration, any heir, devisee, or legatee, may present' his petition to the court, that the legacy or share of the estate to which he is entitled may be given to him, upon his giving bonds with security for the payment of his proportion of the debts of the estate.

[Form No. 168, Appendix.]

Notice of appli

§ 251. Notice of the application shall be given to the executor or administrator, and to all persons interested in the cation. estate, in the same manner that notice is required to be given of the settlement of the account of an executor or administrator.

[Forms No. 169 and 170, Appendix.]

§ 252. The executor or administrator, or any person inte- Executor, etc., rested in the estate, may appear and resist the application, may resist appli or any other heir, devisee, or legatee, may make a similar application for himself.

prayed.

253. If, at the hearing, it appear that the estate is but Decree as little indebted, and that the share of the party or parties applying may be allowed to him or them, without injury to the creditors of the estate, the court shall make a decree in

conformity with the prayer of the applicant or applicants : Provided, each one of them shall first execute and deliver to the executor or administrator a bond in such sum as shall be designated by the probate judge, and with sureties to be approved by him, payable to the executor or administrator, conditioned for the payment by the heir, legatee, or devisee, whenever required, of his proportion of the debts due from the estate.

[Form No. 171, Appendix.]

§ 254. Such decree may order the executor or administraDecree may or tor to deliver to the heir, legatee, or devisee, the whole por

der whole or part

of share of heir, tion of the estate to which he may be entitled, or only a part

etc., delivered.

Where partition necessary.

Costs.

ment of bond.

thereof.

$255. If in the execution of such decree, any partition be necessary between two or more of the parties interested, it shall be made in the manner hereinafter prescribed.

256. The costs of the proceedings authorized by the preceding section shall be paid by the applicant, or, if there be more than one, shall be apportioned equally amongst them.

§257. Whenever any bond has been executed and delivOrder for pay- ered under the provisions of the preceding sections, and the executor or administrator shall ascertain that it is necessary for the settlement of the estate to require the payment of any part of the money thereby secured, he shall petition the court for an order requiring the payment, and shall have a citation issued and served on the party bound, requiring him to appear and show cause why the order shall not be made. At the hearing, the court, if satisfied of the necessity of such payment, shall make an order accordingly, designating the amount, and giving a time within which it Action on bond. shall be paid. If the money be not paid within the time allowed, an action may be maintained by the executor or administrator on the bond.

residue.

258. Upon the final settlement of the accounts of the Distribution of executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, or devisee, the court shall proceed to distribute the residue of the estate, if any, among the persons who are by law entitled.

[Forms No. 172, to 176, Appendix.]

§ 259. In the decree the court shall name the persons and the proportion or parts to which each shall be entitled, and Form of decree. such persons shall have the right to demand and recover their respective shares from the executor or administrator, or any person having the same in possession.

On whose appli

made.

§ 260. The decree may be made on the application of the executor or administrator, or of any person interested in the cation deeree estate, and shall only be made after notice has been given in the manner required in regard to an application for the sale of land by an executor or administrator. The court may order such further notice to be given as it may deem proper.

[Forms No. 172 and 173, Appendix.]

Partition of es

§ 261. When the estate, real or personal, assigned to two or more heirs, devisees, or legatees, shall be in common and tate in common. undivided, and the respective shares shall not be separated and distinguished, partition and distribution may be made by three disinterested persons, to be appointed commissioners for that purpose by the probate judge, who shall be duly sworn to the faithful discharge of their duties, and the court shall issue a warrant to them for that purpose.

[Forms No. 181 and 182, Appendix.]

Real estate in

§ 262. If the real estate shall be in different counties, the probate court may, if it shall judge proper, appoint different different counties commissioners for each county; and in such cases the estate in each county shall be divided separately, as if there was no other estate to be divided; but the commissioner first appointed shall, unless otherwise directed by the probate court, make division of such real estate wherever situated within this state.

[Form No. 182, Appendix.]

Who may apply

§ 263. Such partition and distribution may be ordered on the petition of any of the persons interested; but before for partition, etc. any partition shall be ordered, as directed in this chapter, notice shall be given to all persons interested who shall reside in this State, or their guardians, and to agents, attorneys or guardians, if there be any in this State, of such as reside out of the State either personally or by public notice as the probate court shall direct.

[Forms No. 178 and 179, Appendix.]

Partition may be

made although

etc., have parted

264. Partition of the real estate may be made as provisome of the heirs ded in this chapter although some of the original heirs or with their inter-devisees may have conveyed their shares to other persons, and such shares shall be assigned to the person holding the same, in the same manner as they otherwise should have been to such heirs or devisees.

est.

Shares to be set

bounds.

[Form No. 183, Appendix.]

§ 265. The several shares in the real and personal estate out by metes and shall be set out to each individual in proportion to his right, by such metes and bounds, or description, that the same can be easily distinguished, unless two or more of the parties interested shall consent to have their shares set out, so as to be held by them in common and undivided.

Whole estate

to one on certain

[Forms No. 183 and 184, Appendix.]

$266. When any such real estate cannot be divided withmay be assigned out prejudice or inconvenience to the owners, the probate conditions. court may assign the whole to one or more of the parties entitled to shares therein, who will accept it, always preferring the males to the females, and among children, preferring the elder to the younger: Provided, the party so accepting the whole shall pay to the other parties interested, their just proportion of the true value thereof, or shall secure the same to their satisfaction; and the true value of the estate shall be ascertained by commissioners appointed by the probate court, and sworn for that purpose.

§ 267. When any tract of land or tenement shall be of Payments for greater value than either party's share in the estate to be equality of partition. divided, and cannot be divided without injury to the same, it may be set off by the commissioners appointed to make partition, to either of the parties who will accept it, giving preference as prescribed in the preceding sections: Provided, the party so accepting shall pay or secure to one or more of the others such sums as the commissioners shall award, to make the partition equal, and the commissioners shall make their award accordingly; but such partition shall not be established by the court until the sums so awarded shall be paid to the parties entitled to the same, or secured to their satisfaction.

Estate may be sold and proceeds

[Form No. 183, Appendix.]

§ 268. When it cannot otherwise be fairly divided, the divided. whole or any part of the estate, real or personal, may be

recommended by the commissioners to be sold; and if the report be confirmed, the court may order a sale by the executor or administrator, or by an agent appointed for the purpose, and distribute the proceeds.

[Form No. 183, Appendix.]

ed,

Estate in com

§ 269. When partition of real estate among heirs or devi-mon, how dividsees shall be required, and such real estate shall be in common, and undivided with the real estate of any other person, the commissioners shall first divide and sever the estate of the deceased from the estate in which it lies in common, and such division so made and established by the probate court shall be binding upon all the persons interested.

[Form No. 183, Appendix.]

Guardians for

pointed before

$270. Before any partition shall be made, or any estate divided as provided in this chapter, guardians shall be ap- minors to be appointed for all minors and insane persons interested in the making partition estate to be divided; and some discreet person shall be appointed to act as agent for such parties as reside out of the State; and notice of the appointment of such agent shall be given to the commissioners in their warrant; and notice shall be given to all persons interested in the partition, their guardians or agents, by the commissioners, of the time when they shall proceed to make partition.

[Forms No. 180, 182 and 183, Appendix.

Probate court

partition.

§ 271. The commissioners shall make report of their proceedings to the probate court in writing, and the court may may set aside for sufficient reasons set aside such report, and commit the same to the same commissioners or appoint others; and the report, when finally accepted and established, shall be recorded in the records of the probate court, and a copy thereof, attested by the clerk under the seal of the court, shall be recorded in the office of the recorder of the county where the lands lie.

[Form No. 183, Appendix.]

partition not ne

§ 272. When the probate court shall make a decree When commisassigning the residue of any estate to one or more persons sioners to make entitled to the same, it shall not be necessary to appoint cessary. commissioners to make partition or distribution of such estate, unless the parties to whom the assignment shall be decreed, or some of them, shall request that such partition shall be made.