dent, and the costs and charges of the administration of his estate, and the amount of the estate of a dead person, or of a ward, or of a person of unsound mind, committed by a court of record to, and remaining in the hands of a decedent, shall be paid in full before any pro rata distribution shall be made; but this preference shall not extend to a demand foreign to this State. All other debts and liabilities shall be of equal dignity, and paid ratably in the administration of his estate; and should more than the ratable share of any debt be paid, his personal representative shall only receive credit for its proper proportion.

Rule

met as to pay

ment.

postponed.

$ 34. When such an estate is covered by liens, giving a Liens on estate. creditor a priority on such property, the proceeds thereof shall be first applied to the discharge of such lien, and the residue shall be subject to a pro rata division among the When lien-holder other creditors. But when any creditor has a lien, and the property subject to the lien is not sufficient to discharge the debt, he shall not be entitled to any portion of the residue of the estate, until all the creditors not having liens shall have received a sum equal, pro rata, with such lien creditor. § 35. All demands against the estate of a decedent shall How claims to be be verified by the written affidavit of the claimant, or in his absence from the State by his agent, or if dead, by his personal representative, stating that the demand is just, and has never, to his knowledge or belief, been paid, and that there is no offset or discount against the same, or any usury therein.

36. If any part of the demand has been paid, or there be any offset or discount against the same, or any usury therein, the affidavit shall state the amount of the payment or usury, when the payment was made, and when the offset or discount was due, to the best of the affiant's knowledge and belief. This verification shall not be held to dispense with other proof of the demand, as required by law.

$37. Before such affidavit is made, no action shall be brought, or recovery had, on any such demand, nor until demand of payment thereof has been made of the personal representative, accompanied by affidavit of its justice. (a)

38. When any person has such a demand, and in his

verified.

what affidavit

must show in re

spect of set-off or

discount.

when other proof may be offered.

No action on a

claim unless afcompanied by afActs 1868, 31.

ter demand ac

fidavit.

When suit may be brought upon affidavit without other proof.

(a) In an action against a personal representative, a trial commenced waives the right to object to the further progress of the suit because the plaintiff has failed to prove or show that he had made a demand, accompanied with the requisite affidavit. The proper time to make the motion to dismiss, for the want of demand and affidavit, is before the trial; and the mode of

affidavit states he is unable to prove it otherwise than by the personal, or other representatives of the decedent, and that they refuse to make affidavit, he may bring an action therefor, after proper demand made of said personal representatives, without proof, or affidavit other than his own.

$ 39. No demand against a decedent's estate shall be paid No demand to be by his personal representative, or allowed as a credit by any without the requi- commissioner or court, which is not verified by affidavit as

paid or allowed

site affidavit.

Plaintiff or his

assignors may be

examined touch

ing usury payment, set-off, or discount.

The balance due

after all usury,

&c., deducted, to

required herein. (a)

$ 40. In a proceeding to coerce a claim against the estate of a decedent, his personal representative shall have the right to compel the attendance of the claimant, the original obligee or intermediate assignors, and interrogate any of them touching the usury embraced in the claim, a payment of all or a part thereof, or of the existence of an offset or discount against the same.

$ 41. No personal representative shall pay, or be adjudged to pay any more of any demand against the decedent's estate than what remains due of the same after the usury embraced therein, and the payments made thereon, and the offsets and Representative discounts against the same are deducted.

be the judgment.

paying too much under a mistake as to solvency, may recover the overpayment.

$42. When a personal representative shall pay to a creditor an undue proportion of his demands, or to a distribudoing so is by filing an affidavit, stating that the requisitions of the statute have not been complied with. (Thomas vs. Thomas, 15 B. M., 184.)

2. If proper affidavit be filed, and in point of fact no demand was made before the institution of the action, the same must be dismissed. It cannot be cured. (Rogers vs. Mitchell's executor, 1 Metcalfe, 24.)

3. If a personal representative be sued as such jointly with others, he may have the action dismissed as to him for want of proper demand, although the action may be proceeded with as to the others. (Idem, 26.)

4. The objection that claims against the estate were not supported by the requisite affidavit may be made on appeal from a settlement with the county judge, approved by the county court. (Overly vs. Overly, 1 Metcalfe, 122.)

5. The law only requires the affidavit of the claimant, and proof aliunde, when necessary, as to those claims which are properly demands created by the decedent, or against his estate, not as to those created by the personal representative. (Berry vs. Grady, or Belt's administrator, 1 Metcalfe, 555.)

6. "Offset" and "discount" are separate and distinct matters. The affidavit must embrace both terms. (Trabue's executor vs. Harris, 1 Metcalfe, 598.)

7. The only affidavit required as to a claim, evidenced by note or other writing, is that of the claimant; but on an account there must be the additional affidavit of some third party, stating that the account is just. The statement that it is just and true, "as affiant verily believes," will not do. (Idem, 600.)

8. No previous demand of the personal representatives is required to entitle a defendant to plead a claim against decedent as a set-off to an action commenced by the representative. (Millett & Co. vs. Watkins, 4 Bush, 642.)

(a) A personal representative may pay a debt barred by the statute of limitation. He is not compelled to plead the statute, but may be required to do so by the heir or devisee, or the heir or devisee will be let in to plead it himself. (Payne and wife vs. Pusey, 8 Bush, 564.)

tee or devisee a part, or all of his share or legacy, under a mistake as to the solvency of the estate or otherwise, such personal representative may recover from the creditor, distributee, or devisee, the amount of the overpayment, with interest thereon.

Non-resident ex

ecutors, &c., may

sue by giving

bond.

must be filed.

before judgment.

$ 43. By giving bond, with surety resident of the county in which the action is brought, non-resident executors, or administrators of persons who at the time of their death were non-residents of this Commonwealth, may prosecute actions for the recovery of debts due to such decedents. (a) $44. In such actions, the plaintiff's letters testamentary, Authority as such or of administration granted by a competent tribunal, properly authenticated, must be filed; and no judgment shall be Bond to be given rendered until the plaintiff executes bond, with good surety resident of the county, to the Commonwealth, conditioned to pay any debt due by his decedent to any resident of this State, to the extent assets shall come to his hands. Actions Condition theremay be brought on this bond for the use of any creditor of said decedent, for three years after the date of each receipt of assets by such executor or administrator in this State, but not after.

§ 45. If there be an executor or administrator of such decedent, qualified by a court of this Commonwealth, he alone shall have power to sue; but any debtor who shall pay his debt, or part of it, according to the provisions of the foregoing sections, without notice thereof, shall be discharged to the extent of such payment.

of.

Resident admin

istrator alone can

sue.

Debtors paying

to foreign admin

istrator protected

Acts 1856, 8. Duty of personal representative

his trust.

§ 46. Before any personal representative can resign his R. S., 514: trust, he must settle his accounts as such; then apply to the court in which he qualified, and said court shall accept his wishing to resign resignation and appoint another in his place, to whom the court shall order the estate of the decedent to be delivered. § 47. There shall be appointed in each county in this State, by the county court thereof, a discreet, fit person to act as administrator of decedent's estates of which there is no personal representative, and as guardian of such orphans as have none.

Myers' Sup., 368

Public adminis

trator and guard

ian.

(a) No commissions will be allowed an executor upon the amount of a debt which he himself owed the testator. He must pay the entire debt to the distributees. (Worsley's executor vs. Worsley, 16 B. M., 472.)

2. Though five per cent. is the customery allowance to administrators, yet in a proper case that amount may be increased in the exercise of a sound and proper discretion. (Hutchings vs. Hutchings, MS. Opinion, by Duvall, Fudge; see also Wood vs. Lee, 5 Mon., 64.)

Term of office,

manner of remov

al, oath, & bond.

When adminis

tration of estates

to be confided to

himals of guardianship.

§ 48. He shall continue in office two years, and until his successor is qualified; but may be removed by the court in the same manner and for the same causes for which administrators or guardians may be removed. He shall be sworn and execute bond, with good surety to the Commonwealth, for the faithful discharge of his duties, and shall be styled "Public Administrator and Guardian of -county."

$49. The several county courts of this Commonwealth, in which there is a public administrator and guardian, shall confide to him the administration on the estate of deceased persons, in all cases in which, by law, the jurisdiction to grant letters testamentary or administration applies, if it shall appear, after the expiration of three months from the death of the decedent, that no one will qualify as executor or apply for administration; and shall also confide to said public administrator and guardian the care and control of the persons and estates of all minors, in case it shall appear that such minor hath no testamentary guardian, and no one will apply for or serve as such by the appointment of the

court.

$ 50. The public administrator and guardian shall have all Powers, &c., of the powers, be subject to the same liabilities, and be gov erned by the same laws, in all respects, as are prescribed for administrators and guardians.

public adminis-
trator and
dian.

guar

$51. In actions for the settlement of decedents' estates, Choses in action the court may direct the sale of choses in action, including

& judgments may

be ordered to be judgments.

sold.

$ 52. The allowance to executors, administrators, and cuAllowance lim- rators, shall not exceed five per cent. on the first thousand dollars, four per cent. on the second, three per cent. on the third, and two per cent. on the remainder.

ited.

decedent estate

§ 53. No interest accruing after his death shall be allowed Interest against or paid on any claim against a decedent's estate, unless the claim be verified and authenticated as required by law, and demanded of the executor, administrator, or curator, within one year after his appointment.

when and when

not to be allowed.

CHAPTER 40.

FEEBLE-MINDED CHILDREN.

Institution con

tinued.

§ 1. The Institution for the Education and Training of Acts 1859-'60, 23 Feeble-minded Children, established by an act of the General Assembly of Kentucky, approved February 11, 1860, shall be continued under the corporate name of "The Commissioners of the Kentucky Institution for the Education and Training of Feeble-minded Children."

§ 2. The commissioners of said institution now appointed, and their successors, shall be, and they are hereby, constituted a body-corporate, with all the usual powers of a corporation, necessary to carry out the objects of the establishment of said institution, with perpetual succession; with authority to purchase and hold, or to rent or hire, or to receive, by gift or bequest, property, real or personal, for the objects of said institution; with capacity of contracting and of being contracted with; of suing and being sued; of pleading and being impleaded, and of using a common seal, and of altering the same at pleasure.

Commissioners

created a body

politic, and their

authority, duties,

and capacities.

Governor to apmissioners - five

point seven com

to reside in the

county of Frank

lin.

§ 3. The Governor is authorized to appoint seven commissioners, five of whom shall reside in Franklin county, and two in counties adjoining thereto, any four of whom shall constitute a quorum, who shall be confirmed by the Senate before they go into office. Each of said commission- Term of office. ers shall hold his office for two years, and until his successor is qualified. It shall be the duty of said commissioners to Superintendent & select a superintendent of said institution, who shall be a competent physician. The superintendent shall reside in the institution, and give his entire time and attention to the duties of his office.

his duties.

sioners.

4. Said commissioners shall, before they enter upon Oath of commistheir duty, take an oath, before some properly authorized officer, to support the Constitutions of the United States and the State of Kentucky, and to be true and faithful to said State, so long as they continue to be citizens thereof, and faithfully discharge the duties of their office, a certificate of which, from the officer who may administer the same, shall be recorded by the secretary.