portion or parts to which each shall be entitled, and such person shall have the right to demand and recover his or her respective share from the executor or administrator or any other person having the same in possession.

Petition for Distribution.

3003. SEC. 217. When a petition for distribution shall be filed, notice of the hearing of said petition shall be personally served, at the time of the filing of the final account or subsequently thereto, on all personally interested in the estate at least five days before the time specified in the notice, or shall be given by publication for at least three successive weeks in such newspaper as the court or Judge shall order, and the court may order such further notice as it may deem proper. As amended, Stats. 1899, 112.

Estates in Common.

3004. SEC. 218. When the estate, real or personal, assigned to two or more heirs, devisees or legatees shall be in common and undivided and the respective shares cannot be separated and distinguished, or when property of the estate shall be held in common and undivided with other parties, partition thereof may be made as hereinafter provided.

Petition, Who May File-Citation Shall Specify.

3005. SEC. 219. To secure such petition any person interested may file a petition stating the necessary facts, particularly describing the property to be partitioned and the party or parties interested in such property. Upon filing such petition a citation shall issue 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, or such as reside out of this state, to appear and show cause why a decree of partition should not be made as prayed for. The citation shall specify the estate and the party petitioning for partition, also the time and place for hearing the petition, not more than twenty days from its date, and must be served five days before the hearing at the time specified in the citation or at such further time as the court may continue the hearing. Upon proof, to the satisfaction of the court, that the citation has been properly served as above required, the court shall proceed to hear the petition and the allegation and proofs of the respective parties, and decree accordingly.

Petition May Be Filed, When-Partition, When Ordered.

3006. SEC. 220. A petition for partition may be filed at any time before the decree of distribution, and attorneys, guardians and agents appointed and the citation issued, and the petition heard and determined as above provided, in which case the commissioners hereinafter provided for to make partition shall not be appointed until the decree has been made assigning the estate, when the court, having assigned the estate, may appoint commissioners to partition it as hereinafter provided. But when application is made solely to have partition between the estate administered upon and any other parties, such application may be heard and determined, and partition ordered at any time the court may direct.

Commissioners Appointed.

3007. SEC. 221. When the property to be partitioned is entirely personal property the court or Judge shall appoint three competent, disinterested persons as commissioners for that purpose, who shall be duly sworn by any officer authorized to administer oaths, to faithfully and impartially discharge their duties. A certified copy of the order appointing them, attached to a certified copy of the decree assigning and distributing the estate, shall be given to them as their warrant, and their oath must be endorsed thereon. When the property to be divided is real estate, or partly real and partly personal, one of the three commissioners shall be a practical surveyor. Upon consent of the parties, and when the court shall deem it proper and just, the court may appoint one commissioner only,

who shall have the same authority and be governed by the same rules as if three were appointed.

When Real Estate Is in Different Counties.

3008. SEC. 222. If the real estate to be partitioned shall be in different counties, the court or Judge, if deemed proper, may appoint commissioners for each county, and in such case the estate in each county shall be divided separately, as if there were no other estate to be partitioned; but the commissioners first appointed shall, unless otherwise directed by the court, make division of the real estate, wherever situated in this state.

When Heirs Part With Interest.

3009. SEC. 223. Partition may be made as provided herein, although some of the original heirs, devisees or legatees may have assigned or conveyed their shares to other persons, and such shares shall be partitioned to the person holding the same, in the same manner as they would have been to the heirs, devisees or legatees, had they not transferred their shares.

Shares, How Set Out.

3010. SEC. 224. The several shares in the real and personal estate shall be set out to each individual in proportion to his or her right, and the real estate by metes and bounds, or such description that the same can be easily distinguished. If two or more of the parties request to have their shares set out so as to be held in common and undivided, such shares may be so partitioned.

May Be Assigned to One, When.

3011. SEC. 225. When any such real estate cannot be divided without prejudice or inconvenience to the owners, the court may assign the whole to one or more of the parties entitled to shares therein, who will accept and pay to the other parties interested their just proportion of the true value thereof, or secure the same to their satisfaction, or, in case of the minority of such party or parties, to the satisfaction of the guardian of such minor or minors, and the true value of the estate shall be ascertained and reported by the commissioners or appraisers appointed specially for that purpose.

Payment for Equalizing.

3012. SEC. 226. When any tract of land or tenement shall be of greater value than either party's share in the estate to be divided and cannot be divided without injury to the same, it may be set off by the commissioners to any one of the parties, who will accept it and pay, or secure to be paid, to one or more of the others interested, such sum or 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.

Estates Sold-Proceeds Divided.

3013. SEC. 227. When it cannot otherwise be fairly divided, the 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 a commissioner appointed for that purpose, and distribute the proceeds. The sale shall be conducted, reported upon and confirmed in the same manner and under the same rules as in ordinary cases of sales of land by an administrator under this Act.

Estates in Common, How Partitioned.

3014. SEC. 228. When partition of real estate among heirs, devisees, or legatees shall be required, and such real estate shall be in common and undivided with the real estate of any other person, the commissioner 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 court shall be binding upon all the

persons interested. The court may authorize the executor or administrator to bring suit for such partition when deemed necessary.

Shares of Equal Cash Value.

3015. SEC. 229. In making partition the commissioners shall always have regard to quantity and quality, and may set off quantity against quality, or quality against quantity, so that when the partition is made all the shares partitioned shall be of equal cash value, as near as possible.

Guardians Appointed.

3016. SEC. 230. Before any partition shall be made as provided herein guardians shall be appointed for all minor and insane persons interested in the estate to be divided, and an attorney shall be appointed for all non-resident or absent heirs or other persons interested. The commissioners shall notify all persons interested in the partition, their guardians, agents or attorneys, of the time when they will proceed to make partition, which time shall be as reasonable after their appointment as circumstances will admit or the court in the order of appointment may fix the time. The commissioners may take testimony, for which purpose any one of them may administer an oath, and they may take all necessary steps to enable them to form a correct judgment upon the matters before them.

Report of Commissioner.

3017. SEC. 231. The commissioners, when they shall have completed their work, within a reasonable time [shall] make a report of their proceedings and of the partition made by them, and file the same with the Clerk of the Court. Within fifteen days after the report is filed any person interested may file exceptions to the report, particularly specifying the grounds of objection. A copy of such objection shall be served upon the commissioners and all parties interested in the partition, their guardians, agents or attorneys in the county, before or at the time they are filed, with a notice to such person's that the objecting party will, at a certain time to be mentioned, not later than twenty days after the filing of said report, move the court to set aside the report, and for a new partition. At the time specified, or at such other time as the court may sit, the court shall proceed to hear the report and exceptions, and may hear proof by either party, and for sufficient reasons the court may set aside the report, and recommit the partition to the same commissioners, or appoint others, or may confirm the report. If no exceptions shall be filed to the report within the time above specified, the court, on the expiration of said fifteen days, or at any time thereafter, if the report appears [to] be just and correct and all the proceedings regular, shall confirm the report, and when such report shall be finally confirmed the decree of confirmation and the report shall be recorded by the Clerk, and the court shall order proper conveyance to be made by the respective parties to one another, or may, if for any reason necessary, appoint a commissioner to make such conveyance or conveyances which, when acknowledged or recorded, shall effectually pass the title.

Advancements Heard by Court.

3018. SEC. 232. All questions as to advancement made or alleged to have been made by the deceased to any heirs may be heard and determined by the court, and shall be specified in the decree distributing the estate, and in the warrant to the commissioners, and the final decree of the court shall be binding on all parties interested in the estate with right, however, of any party to appeal from a final decree of the court to the supreme court as in other action.

Agent for Absentees.

3019. SEC. 233. When any estate shall be distributed by the court or partitioned by commissioners as in this Act provided to any person residing out of this state, and having no agent therein, and it shall be necessary that some per

son should be authorized to take charge and possession of the same for the benefit of such absent person, the court may appoint an agent for that purpose and authorize him to take charge of such estate.

Bond of Agent.

3020. SEC. 234. Such agent shall give a bond to the District Judge in such sum as the Judge shall fix, which bond shall be approved by the Judge and conditioned for the faithful management of, and accounting for the estate, before such agent shall be authorized to receive the same, and the court may allow a reasonable sum out of the profits of the estate for services and expenses of such agent.

Unclaimed Estates.

3021. SEC. 235. When the estate shall remain unclaimed in the hands of the agent for a year, it shall be sold under an order of the court, and the proceeds, deducting the expenses of the sale to be allowed by the court, shall be paid into the state treasury, for which the Treasurer shall receipt in duplicate to the agent, one of which the agent shall file in the office of the State Comptroller and the other in the estate matter in the district court.

Liability of Agent.

3022. SEC. 236. The agent shall be liable on his bond for the care and preservation of the estate while in his hands, and for the payment of the proceeds of the sale as required in the preceding section, and may be sued thereon by the state or any person interested.

Certificate to Claimant.

3023. SEC. 237. When any person shall appear and claim the money paid into the treasury, the district court having ordered the sale, being first satisfied of his right, shall give him a certificate attested by the Clerk, under the seal of the court, and upon the presentation of the certificate to the State Comptroller shall draw his warrant on the Treasurer for the amount.

Decree of Discharge.

3024. SEC. 238. When the estate has been fully administered, and it is shown by the executor or administrator, by the production of satisfactory vouchers, that he has paid all sums of money due from him, and delivered up on the order of court all the property of the estate to the parties entitled, and has performed all acts lawfully required of him, the court shall make a decree discharging him and his sureties from all liability thereafter to be incurred.

Subsequent Letters May Issue.

3025. SEC. 239. The final settlement of an estate shall not prevent a subsequent issuance of letters testamentary or of administration should other property of the estate be discovered, or should it become necessary or proper from any cause that letters should again be issued.

Powers Suspended by Order of Court, When.

3026. SEC. 240. Whenever a District Judge has reason to believe from his own knowledge or from credible information that any executor or administrator has wasted, converted to his own use, or mismanaged, or is about to waste or convert to his own use, the property of the estate committed to his charge, or has committed or is about to commit any wrong or fraud upon the estate, or has become incompetent to act, or has permanently removed from the state, or has wrongfully neglected the estate, or has unreasonably delayed the performance of necessary acts in any particular as such executor or administrator, it shall be his duty, by an order entered upon the minutes of the court, to suspend the powers of such executor or administrator until the matter can be investigated.

When Special Administrator Appointed.

3027. SEC. 241. During the suspension of the powers of an executor or an

administrator, as provided in the preceding section, the district court, or Judge, if the condition of the estate requires it, may appoint a special administrator to take charge of the effects of the estate, who shall give bond and account as other special administrators are required to do.

Proceedings on Suspension.

3028. SEC. 242. When such suspension has been made the Clerk shall issue. a citation, reciting the order of suspension, to the executor or administrator, to appear before the court at a time therein to be stated, as fixed by the court or Judge, to show cause why his letters should not be revoked, said citation to be served by the Sheriff, or other person, as provided in the Civil Practice Act for service of process. If he fail to appear in obedience to the citation, or appearing the court shall be satisfied that there exists good grounds for his removal, his letters shall be revoked, and letters of administration granted anew, as the case may require.

Who May Appear.

3029. SEC. 243. Any person interested may appear at the hearing and file allegations in writing, showing that the executor or administrator should be removed. Such allegations shall be heard and determined by the court.

Executor Absconding.

3030. SEC. 244. If the executor or administrator has absconded or conceals himself, or has removed or absented himself from the state, the citation may be served by leaving a copy at his last known place of abode and upon his attorney of record, when the court shall have jurisdiction to proceed as if the citation had been personally served.

To Compel Attendance.

3031. SEC. 245. In such proceedings for the removal of an executor or administrator the court may compel his attendance by attachment or other proper process and may require him to answer questions, on oath, touching his administration and upon his refusal so to do may commit him to jail until he obey, or may revoke his letters, or both.

Minutes of Proceedings to Be Kept.

3032. SEC. 246. The Clerk shall enter a minute of all proceedings in matters of estates, as in other actions, and also in the probate register. When publication is ordered such publication shall be made daily, or otherwise, as often as during the prescribed period as the paper is regularly issued, unless otherwise provided in this Act. The court or Judge, however, may prescribe a less number of publications during the period for publication, and the court or Judge may, for good cause shown, extend or shorten any of the times prescribed in this Act.

Personal Notice, How Given.

3033. SEC. 247. Whenever personal notice is required by this Act to be given to any party in the matter of an estate, and no other mode of giving notice is prescribed, it shall be given by citation, which shall be issued by the Clerk under the seal of the court, and directed to the Sheriff of the proper county, commanding such person to appear before the court or Judge, as the case may be, at a time and place to be named in the citation; also the nature or character of the proceeding shall be briefly stated in the body thereof.

Citation, How Served.

3034. SEC. 248. The officer to whom a citation is directed, unless otherwise provided herein, or the order of the court or Judge, shall serve the same by delivering a copy to the person therein named, or to each one of them, if there be more than one, and shall return the original to the court, according to its direction, indorsing thereon the time and manner of service.