# 1862 Territory of Dakota Session Laws/Chapter 2

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CHAPTER 2.
AN ACT RELATING TO INVENTORY AND COLLECTION OF THE EFFECTS OF DECEASED PERSONS.
Be it enacted by the Legislative Assembly of the Territory of Dakota:
Return inventory of real estate, &c.Section 1. Every executor or administrator shall, within three months after his appointment, make and return into the probate court a true inventory of the real estate, and of all the goods, chattels, rights, and credits of the deceased, which shall have come to his possession or knowledge; excepting, only, that an executor who shall be a residuary legatee and shall have given bond to pay all the debts and legacies, as provided by the law, shall not be required to return an inventory.
To be appraised by two disinterested persons.Sect. 2. The estate and effects, comprised in the inventory, shall be appraised by two or more disinterested persons, appointed by the judge of probate for that purpose, who shall be sworn to the faithful discharge of their trust; and if any part of such estate or effects shall be in any other county, appraisers thereof may be appointed, either by the judge of ​probate having jurisdiction in the case, or by a disinterested justice of the peace of such other county.
Order issued to appraisers.Sect. 3. When appraisers shall be appointed by a justice of the peace, he shall issue an order to them, in substance as follows:
Territory of Dakota, County of
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Το , of , in said county:
You are hereby appointed to appraise, on oath, the estate and effects of , late of , deceased, which may be in said county; and when you have performed that service, you are required to deliver this order, and your doings in pursuance thereof, to , executor (or administrator, as the case may be,) of said deceased.
Given under my hand this day of , in the year
——— ———, Justice of the Peace.
Appraisement carefully noted and certified.Sect. 4. The appraisers shall set down opposite to each item in such inventory, distinctly, in figures, the value thereof in money, and deliver the same, certified by them, together with their appointment, if made by a justice of the peace, to the executor or administrator.
A separate inventory of personal property allowed the widow.Sect. 5. A separate and distinct inventory and appraisement shall be made and returned, as aforesaid, of all the household furniture and other personal property, which may be allowed to the widow, pursuant to law; but the same shall not be considered assets in the hands of the executor or administrators.
Debts paid out of personal estate; if not sufficient, then out of real estate.Sect. 6. The personal estate of the deceased, which shall come into the hands of the executor or administrator, shall be first chargeable with the payment of the debts and expenses; and if the goods, chattels, rights, and credits, in the hands of the executor or administrator, shall not be sufficient to pay the debts of the deceased and the expense of administration, the whole of his real estate, not exempt by law, except the widow's dower, or so much thereof as may be necessary, may be sold for that purpose by the executor or administrator, after obtaining license therefor, in the manner provided by law.
​Have possession of all real estate, and keep in tenantable repair.Sect. 7. The executor or administrator shall have a right to the possession of all the real as well as personal estate of the deceased, and may receive the rents, issues, and profits of the real estate, until the estate shall have been settled, or until delivered over by order of the probate court, to the heirs or devisees; and shall keep in good tenantable repair, all houses, buildings, and fences thereon, which are under his control.
If complaint made of embezzlement, &c., person may be cited to appear and answer.Sect. 8. If any executor or administrator, heir, legatee, creditor, or other person interested in the estate of any deceased person, shall complain to the judge of probate, on oath, that any person is suspected to have concealed, embezzled, carried away, or disposed of any money, goods, or chattels of the deceased, or that such person has in his possession or knowledge, any deeds, conveyances, bonds, contracts, or other writings, which contain evidence of or tend to disclose the right, title, interest, or claim of the deceased to any real or personal estate, or any claim or demand, or any last will and testament of the deceased, the said judge may cite such suspected person to appear before the court of probate, and may examine him on oath upon the matter of such complaint.
If person cited does not appear.Sect. 9. If the person so cited shall refuse to appear and submit to such examination, or to answer such interrogatories as may be put to him touching the matter of such complaint, the court may, by warrant for that purpose, commit him to the common jail of the county, there to remain in close custody until he shall submit to the order of the court; and all such interrogatories and answers shall be in writing, and shall be signed by the party examined, and filed in the probate court.
Person intrusted with parts of estate required to report, when.Sect. 10. The judge of probate, upon the complaint, on oath, of any executor or administrator, may cite any person who shall have been intrusted by such executor or administrator with any part of the estate of the deceased person, to appear before such court, and may require such person to render a full account, on oath, of any money, goods, chattels, bonds, accounts, or other papers belonging to such estate, which shall have come to his possession, in trust for such executor or administrator, and of his proceedings thereon; and if the person so cited shall refuse to appear and render such ​account, the court may proceed against him as provided in the preceding section.
When debtor unable to pay all his debts.Sect. 11. When any debtor of a deceased person shall be unable to pay all his debts, the executor or administrator, with the approbation of the judge of probate, may compound with such debtor and give him a discharge upon receiving a fair and just dividend of his effects.
When mortgagee die without foreclosing.Sect. 12. When any mortgagee of real estate, or any assignee of such mortgagee, shall die without having foreclosed the right of redemption, all the interest in the mortgaged premises conveyed by such mortgage and the debts secured thereby, shall be considered as personal assets in the hands of the executor or administrator, and he may foreclose the same, and have any other remedy for the collection of such debts which the deceased could have had if living; or may continue any proceedings commenced by the deceased for that purpose.
In case of redemption or sale.Sect. 13. In case of the redemption of any such mortgage, or the sale of the mortgaged premises, by virtue of a power of sale contained therein, or otherwise, the money paid thereon shall be received by the executor or administrator, and he shall thereupon give all necessary releases and receipts; and if, upon the sale of the mortgaged premises, the same shall be bid in by the executor or administrator for such debt, he shall be seized of the sum for the same persons, whether creditors, next of kin, or others who would have been entitled to the money if the premises had been redeemed or purchased at such sale by some other person.
Real estate so held may be sold for payment of debts and legacies.Sect. 14. Any real estate so held by an executor or administrator, or which may be purchased by him as such, upon a sale on execution for the recovery of a debt due the estate, may be sold for the payment of debts or legacies, and the charges of administration, in the same manner as if the deceased had died seized thereof, upon obtaining a license therefor from the probate court, in the manner provided by law.
If not sold, may be partitioned among legatees.Sect. 15. If any land so held by an executor or administrator, as mentioned in the preceding section, shall not be sold by him, as therein provided, it shall be assigned and distributed to the same persons and in the same proportions as if it had been part of the personal estate of the deceased; and if upon ​such distribution the estate shall come to two or more persons, partition thereof may be made between them, in like manner as if it were real estate which the deceased held in his lifetime.
When there is deficiency of assets.Sect. 16. When there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate, or any right or interest therein, with the intent to defraud bis creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator may, and it shall be his duty to commence and prosecute to final judgment, any proper action or suit, at law, or in chancery, for the recovery of the same, and may recover for the benefit of the creditors, all such real estate so fraudulently conveyed; and may also, for the benefit of the creditors, sue and recover for all goods, chattels, rights, or credits which may have been so fraudulently conveyed [by] the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance.
Not bound to sue for estates, unless urged by creditors, and unless they give security.Sect. 17. No executor or administrator shall be bound to sue for such estates, as mentioned in the preceding section, unless on application of creditors of the deceased, nor unless the creditors making the application shall pay such part of the costs and expenses, or give such security to the executor or administrator therefor, as the probate court shall judge just and equitable.
All real estate recovered to be sold for payment of debts.Sect. 18. All real estate so recovered, as provided in the sixteenth section of this act, shall be sold for the payment of debts in the same manner as if the deceased had died seized thereof, upon obtaining a license therefor from the probate court, and the proceeds of all goods, chattels, rights, and credits, recovered as aforesaid, shall be appropriated in payment of the debts of the deceased, in the same manner as other assets in the hands of the executor or administrator.
Property exempted.Sect. 19. All property, real and personal, goods and chattels, rights and credits, interests and estates, exempt by law from seizure and sale under execution; and all property, real and personal, reserved by law to widows and minor children, be and the same is exempt as provided by law, any thing in this act to the reverse notwithstanding.
​Take effect, when.Sect. 20. This act shall take effect from and after its passage and approval by the governor.
    Approved May 15, 1862.
W. JAYNE, Governor.