8. An appeal will not lie when it is not prayed for and bond is not given; Berry v. Berry, 22-275; Staley v. Dorset, 11-367; Love v. Mikals, 12-439.

9. Section 632 does not govern an appeal from a judgment of court on the final settlement report of the executor of an estate. Such appeal is controlled by this statute; Taylor v. Burk, 91-254.

10. So, of an appeal from the judgment in a proceeding to set aside the final report of an administrator; Webb v. Simpson, 105–327.

11. The requirement of an appeal bond does not apply where an executor to another estate, as such, is appellant (see sect. 2457); Pate v. Moore, 79-22.

12. After submission, by agreement, an appeal will not be dismissed for want of an appeal bond; Pedrick v. Post, 85-255. Such a motion, to dismiss, comes too late when made two years after the case was submitted, by agreement, and briefs on the merits have been filed by both parties; West v. Cavins, 74-266.

13. Where an appeal is perfected by an administrator under the law as previously declared by the supreme court and under that law a motion to dismiss the appeal is overruled, that ruling - whether erroneous or not—is the law of the case. A subsequent motion to dismiss, founded on a different declaration of the law, in another case, will be overruled; Walker v. Heller, 104-330.

2455. Bond and transcript, when filed. Under this statute, as amended by statute of 1885 (Stats., 1885, p. 194) an appeal bond must be filed-except where the administrator appeals within ten days from the date of the judgment-and the transcript must be filed, within thirty days from the filing of the bond, unless, for good cause shown the supreme court shall direct such appeal to be granted on the filing of a bond within one year. Otherwise the appeal will be dismissed; Rinehart v. Vail, 103-161. 2. The provision of this statute only controls the time within which the bond shall be filed; not the time within which the appeal may be perfected; Bender v. Wampler, 84–174.

3. This section does not apply to appeals in proceedings supplementary to execution, where an executor is required to answer, under section 819; Dillman v. Dillman, 90-589.

4. Nor to a civil suit, by an administrator, to recover a money demand, on contract; Hillenberg v. Bennett, 88-542.

5. Appeal not taken within the time limited. On subsequent application, to the supreme court, for leave to appeal the adverse party is entitled when practicableto notice of the application. Where leave, however, is granted without such notice and both parties are brought in to court, the matter will be treated as judicated and motion to dismiss will be overruled; Duncan v. Gainey, 108-583.

2457. Executor etc. appeals without bond. This section with those preceding it (2454-7) are a substantial re-enactment of sections 189-90 of the statute of June 17, 1852; Bake v. Smiley, 84-215. Construed together, they authorize an administrator, who appeals from a judgment against him in favor of an estate, to do so without filing a bond. He is not required to take the appeal within thirty days; Davis v. Huston, 84-273; Bake v. Smiley, 84-215.

2. An appeal by an administrator or executor will not be dismissed, on motion, for want of an appeal bond, because there are other appellants unnecessarily joined; Ruch v. Biery, 110-447.

ARTICLE 18-SUITS AGAINST EXECUTORS AND ADMINISTRATORS.

2458. Who may sue and for what. Where specific personal property is bequeathed to a widow for life and, after her death, to a legatee named such legatee can not maintain an action for the possession of such property before the final settlement of the estate; Highnote v. White, 67-596.

2. An administrator, appointed in this state, is bound to use due diligence in collecting claims against the estate here, although the intestate, at his death, was dom. iciled in another state and an administrator was first appointed in such state; State v. Gregory, 88-115.

3. An executor, or administrator, with the will annexed may be sued, on his bond, for a failure to pay a legacy. Suit for such failure may be maintained without any previous order of court that the legacy be paid and without prior removal of the officer; Gould v. Steyer, 75-52; Heady v. State, 60-316.

4. Complaint on administrator's bond, on the relation of persons entitled to distribution, is good when assigning as breaches: (1) that the administrator has failed to

account for two thousand dollars interest, by him collected; (2) has wrongfully withheld distribution for four years, although it was demanded; and (3) has wrongfully delayed settlement of the estate for four years; Stanton v. State, 82-465.

5. Complaint on the bond of a deceased administrator, on the relation of a creditor, alleging, as breaches, a failure to pay the creditor's claim, conversion of assets and failure to settle the estate in proper time. Neither other unpaid creditors nor the administrator of the deceased administrator are necessary parties, nor is proof of a demand and a failure to pay sufficient proof of conversion of assets; Embree v. State, 85-370,

2459. Costs-Damages. Action by a ward on the bond of the guardian, who removed from the state without accounting and paying over. The measure of damages, on

recovery, is provided by this section; English v. State, 81-454.

2. In order to constituté such a conversion as will authorize the imposition of the ten per cent. penalty, provided for, there must be at least a demand for the money and a refusal to pay; Buchanan v. Roberts, 106-255.

3. Such penalty can only be imposed where the ward's estate has been converted, destroyed, embezzled or concealed. The mere failure to pay over to the successor of a deceased guardian is not, in the absence of a demand and refusal, a conversion; Buchanan v. State, 106-256.

2460. No stay or relief. This section applies, in express terms, to bonds of executors and administrators. It can not be extended to the bonds of guardians; Williams v. State, 89-571.

2465. Docket and blanks. Without some authority, conferred by statute, a county officer has no authority to make the county liable for printed blanks, necessary for his use as an officer; Board etc. v. Mitchell, 93–307.

2. To a claim for stationery furnished for the use of the county, answer was made that the goods were purchased, by the county clerk, without authority, at a time when there was a contract in force for such goods to be furnished by another, of which claimant had notice. Answer good, under statute of 1875; Board etc. v. Burford, 93-385.

2467. To children equally. 1. The real and personal property of any person dying intestate shall descend to his or her children in equal proportions; and posthumous children shall inherit equally with those born before the death of the ancestor.

1. Degrees of kindred in this State are computed according to the rules of the civil law. Descent is governed exclusively by the statute of descent, which provides for every conceivable case.- Murphy v. Henry, 35 Ind. 442; Cloud v. Bruce, 61 id. 171. 2. Under this and the following section, if the heirs be all grandchildren, they take equal shares per capita; great grandchildren inherit, per stirpes, the shares of their ancestors. Cox v. Cox, 44 Ind. 368; Brown v. Taylor, 62 id. 295.

3. The statute of descent applies to personalty as well as realty, and vests the title in his heirs immediately on the death of the owner.-Coldron v. Rhode, 7 Ind. 151; Hutson v. Merrifield, 51 id. 24; Weyer v. Bank, 57 id. 198.

2468. When and how to grandchildren. 2. If any children of such intestate shall have died intestate, leaving a child or children, such child or children shall inherit the share which would have descended to the father or mother; and grandchildren and more remote descendants and all other relatives of the intestate, whether lineal or collateral, shall inherit by the same rule: Provided, That if the intestate shall have left, at his death, grandchildren only, alive, they shall inherit equally.

I. Children have no vested rights in lands owned by the father; neither do they stand to him in the relation of creditors.- Nesbitt v. Trindle, 64 Ind. 183.

2469. When to parents and brothers and sisters. 3. If any intestate shall die without lawful issue or their descendants alive, one-half of the estate shall go to the father and mother of such intestate, as joint tenants, or, if either be dead, to the survivor, and the other half to the brothers

and sisters and to the descendants of such as are dead, as tenants in com

mon.

2470. How brothers, sisters, and parents take. 4. If there be neither father nor mother, the brothers and sisters of the intestate living, and the descendants of such as are dead, shall take the inheritance as tenants in common. If there be no brothers or sisters of the intestate or their descendants, the father and mother shall take the inheritance as joint-tenants; and if either be dead, the other shall take the estate.

1. The mother of an adopted child dying intestate without brothers or sisters of the natural blood, inherits the whole of his estate under this section.-Barnhizle v. Ferrell, 47 Ind. 335.

2471. When no heirs under preceding rules. 5. If there be no person entitled to take the inheritance according to the preceding rules, it shall descend in the following order:

First. If the inheritance came to the intestate by gift, devise, or descent from the paternal line, it shall go to the paternal grandfather and grandmother, as joint-tenants, and to the survivor of them; if neither of them be living, it shall go to the uncles and aunts in the paternal line, and their descendants, if any of them be dead; and if no such relatives be living, it shall go to the next of kin, in equal degree of consanguinity, among the paternal kindred; and if there be none of the paternal kindred entitled to take the inheritance as above prescribed, it shall go to the maternal kindred in the same order.

Second. If the inheritance came to the intestate by gift, devise, or descent from the maternal line, it shall go to the maternal kindred in the same order; and if there be none of the maternal kindred entitled to take the inheritance, it shall go to the paternal kindred in the same order.

Third. If the estate came to the intestate otherwise than by gift, devise, or descent, it shall be divided into two equal parts, one of which shall go to the paternal and the other to the maternal kindred, in the order above described; and on the failure of either line, the other shall take the whole.

1. The doctrine of tracing back title to a remote ancestor does not apply to our statute of descents. "Ancestor" means any one from whom the estate is immediately inherited.-Murphy v. Henry, 35 Ind. 442; Barnes v. Loyd, 37 id. 523.

2472. Kindred of the half-blood. 6. Kindred of the half-blood shall inherit equally with those of the whole blood; but if the estate shall have come to the intestate by gift, devise, or descent from any ancestor, those only who are of the blood of such ancestor shall inherit. Provided, That on failure of such kindred, other kindred of the half-blood shall inherit as if they were of the whole blood.

1. Hereunder, brothers and sisters of the half blood are only postponed in favor of half-brothers and half-sisters who are of the blood of the ancestor from whom the land descended.-Robertson v. Burrell, 40 Ind. 328; McClanahan ». Trafford, 46 id. 410. 2. Kindred," in this section, means kindred of the person last seized of the lands.—Aldridge v. Montgomery, 9 Ind. 302; Smith v. Smith, 23 id. 202.

2473. When estate reverts to donor. 7. An estate which shall have come to the intestate by gift or by conveyance, in consideration of love and affection, shall, if the intestate die without children or their descendants revert to the donor, if living, at the intestate's death, saving to the widow or widower, however, his or her rights therein: Provided, That the husband or wife of such intestate shall hold a lien upon such

property for the value at the intestate's death, of all improvements by him or her made thereon, and for all moneys derived from the separate estate of such husband or wife expended in making such improvements.

1. Hereunder, the widow of an intestate who dies childless takes one-third and the donor of the estate two-thirds. Myers v. Myers, 57 Ind. 307.

2474. To illegitimate child, from mother. 8. Illegitimate children shall inherit from the mother as if they were legitimate, and through the mother, if dead, any property or estate which she would, if living, have taken by gift, devise or descent from any other person.

[1853, p. 78. In force July 24, 1853.]

2475. When from father to illegitimate child. 1. The real and personal estate of any man dying intestate, without heirs resident in any of the United States at the time of his death, or legitimate children capable of inheriting without the United States, shall descend to and be vested in his illegitimate child or children who are residents of this State or any of the United States; and such illegitimate child or children shall be deemed and taken to be the heir or heirs of such intestate in the same manner, and entitled to take by descent or distribution to the same effect and extent as if such child or children had been legitimate: Provided, That the intestate shall have acknowledged such child or children as his own during his life-time: And Provided, further, That the testimony of the mother of such child or children shall in no case be sufficient to establish the fact of such acknowledgment.

[1 R. S. 1852, p. 248. In force May 6, 1853.]

2476. Bastard, how made legitimate. 9. If a man shall marry the mother of an illegitimate child, and acknowledge it as his own, such child shall be deemed legitimate.

1. If a man marry a woman pregnant with a bastard child, and afterward live with her as his wife, he thereby makes such child, hereunder, his legitimate heir.-Bailey v. Boyd, 59 Ind. 292.

2477. From illegitimate child to mother. 10. The mother of an illegitimate child dying intestate without issue or other descendants shall inherit his estate; and if such mother be dead, her descendants or collateral kindred shall take the inheritance in the order herein before prescribed. 2478. When estate escheats. II. The estate of a person dying intestate, without kindred capable of inheriting, shall escheat to the State, and shall be applied to the support of common schools, in the manner provided by law.

1. This section is to be construed, in pari materia, with the sections in the Decedents Estate Act on the same subject. - State v. Meyer, 63 Ind. 33.

[1883, S., p. 98. In force March 5, 1883.]

2478a. Sale of estates escheated. 1. In all cases where estates have escheated, or hereafter shall escheat, to the State, for want of heirs or kindred entitled to the inheritance, the board of commissioners of the county wherein such estate is situated are hereby authorized to dispose of the same by sale, in such manner as may seem best for the interests of the common school fund; and to reinvest the proceeds of such sale in the manner directed by law for the investment of other moneys belonging to the common school fund: Provided, That all real estate, so sold, shall be first appraised by three disinterested freeholders of the county, who shall be first svorn to faithfully perform their duty as such appraisers; and shall not be sold at less than said appraisement: And Provided, further, That in case said real estate fail to sell for the full amount of said appraisement, within six months after being first offered for sale, in such case, said commissioners may order a new appraisement thereof.

2478b. Warranty deed. 2. Upon full payment being made for such lands, a warranty deed therefor, to the purchaser, or his or her heirs or assignees, shall be executed by the county auditor, and be entered in the commissioners' record before delivery.

[1 R. S. 1852, p. 248. In force May 6, 1853.]

2479. Advancements. 12. Advancements in real or personal property shall be charged against the child or descendants of the child to whom the advancement is made in the division or distribution of the estate, but if the advancement exceed the equal proportion of the child advanced, the excess shall not be refunded.

I

Conveyances, to operate as advancements, must have been so intended.-Shaw Kent, 11 Ind. 80; McCaw v. Burk, 31 id. 56; Stokesberry v. Reynolds, 57 id. 425.

2. Declarations before or at the time of making a conveyance are evidence as to the intention of the grantor in advancement. - Harness v. Harness, 49 Ind. 384.

3. Advancements must be considered in partition.- Kepler v. Kepler, 2 Ind. 363; Dille v. Webb, 61 id. 85.