Page:United States Statutes at Large Volume 76A.djvu/707

–611– -611§ 1637. Filing or presenting claim as prerequisite to action; exception (a) Except as provided by subsection (b) of this section, a holder of a claim against an estate may not mamtain an action thereon, unless the claim is first filed with the clerk, or presented to the executor or administrator. (b) An action may be brought by the holder of a mortgage or lien to enforce it against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint, but counsel fees may not be recovered in the action unless the claim was first filed with the clerk, or presented to the executor or administrator. § 1638. Partial allowance The executor or administrator may allow a claim in part, in which case he shall state in his allowance the amount he is willing to allow. If the creditor refuses to accept the amount allowed in satisfaction of his claim, he may not recover costs in an action therefor brought against the executor or administrator, unless he recovers a greateramount than that allowed. § 1639. Reference; hearing and report; powers of master and court; effect If the executor or administrator doubts the correctness of a claim presented to him or filed with the clerk, he may enter into an agreement in writing with the claimant to refer the matter in controversy to a disinterested person, to be approved by the court. Upon filing the agreement and approval of the court with the clerk, the clerk shall enter an order referring the matter in controversy to the person so selected, or, if the parties consent, a reference to a master may be had in the court. The master shall hear and determine the matter, and make his report thereon to the court. The same proceedings shall be had in all respects, and the master shall have the same powers, be entitled to the same compensation and subject to the same control, as in other cases of reference. The court may remove the master, appoint another in his place, set aside or confirm his report and adjudge costs, as in actions against executors or administrators, and the judgment of the court thereon is as valid and effectual, in all respects, as if it had been rendered in a suit commenced by ordinary process; but the report of the master, if confirmed, merely establishes or rejects the claim, as if it had been allowed or rejected by the executor or administrator and judge. § 1640. Liability of executor or administrator for costs When a judgment is recovered, with costs, against an executor or administrator, he shall be individually liable for the costs, but they shall be allowed him in his administration accounts, unless it appears that the suit or proceeding in which the costs were taxed was prosecuted or defended without just cause. Subchapter II—Rules Governing Payment of Claims § 1661. Effect of judgment against executor or administrator A judgment rendered against an executor or administrator, upon a claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the judge; and the judgment shall be that the executor or administrator pay, in due course of administration, the amount ascertained to be due. A certified transcript of the original docket of the judgment shall be filed among the papers of

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