§ 3121 Consequences of instituting suit without presenting claim.
If in an action against an executor or administrator for a debt against the decedent the affidavit required by § 2104 of this title is not produced by the plaintiff, the action shall, upon motion, be dismissed and if such action has been brought, without previously exhibiting to the defendant an affidavit in due form, the plaintiff shall not recover any costs, unless the action has been controverted. The question of disallowance of costs shall be decided by the court on a rule to show cause, which shall not be granted unless the exhibiting of an affidavit be denied on oath or affirmation.
Code 1852, § 1836; Code 1915, § 3376; Code 1935, § 3841; 12 Del. C. 1953, § 3121.;
§ 3122 Process; default judgment and proceedings thereon.
In an action against an executor or administrator the first process shall be a summons. If the defendant, being summoned, does not appear, judgment by default shall be entered against the defendant and upon such judgment the Superior Court may, upon motion, order the Prothonotary to ascertain the amount in which case, at least 5 days' written notice shall be given to the defendant of the time when the Prothonotary will consider the case and execution may be issued as soon as the amount is ascertained or, upon such judgment by default, a rule of reference may be entered as prescribed in Chapter 47 of Title 10 or a writ of inquiry awarded if it be a case proper for the writ.
Code 1852, § 1863; Code 1915, § 3400; Code 1935, § 3863; 12 Del. C. 1953, § 3122; 70 Del Laws, c. 186, § 1.;
§ 3123 Effect of judgment against executor or administrator.
(a) The effect of judgments against executors or administrators, on the report of referees, as to the question of assets and the lien of such judgments on the real estate of the deceased shall be as provided by Chapter 47 of Title 10.
(b) Judgments before justices of the peace against executors and administrators shall be judgments of assets. Writs of scire facias upon a suggestion of waste may be sued out and tried. Judgment and execution shall be awarded, as provided by § 9542 of Title 10.
Code 1852, § 1864; Code 1915, § 3401; Code 1935, § 3864; 12 Del. C. 1953, § 3123.;
§ 3124 Costs; allowance in account.
Costs shall be awarded to and against executors and administrators in like manner as other parties, but costs awarded against them shall not be allowed in their accounts, unless the court shall certify the propriety of such allowance or there is other good evidence that they were properly incurred.
Code 1852, § 1865; Code 1915, § 3402; Code 1935, § 3865; 12 Del. C. 1953, § 3124.;
§ 3125 Suit for specific performance of decedent's contract for sale of real estate; proof and recording of contract; effect of deed.
(a) Before suit shall be brought against an executor or administrator upon a written contract of the decedent under seal or under hand and attested by 1 or more witnesses for the conveyance of any real estate within the State, the person with whom such contract was made or who is entitled to the benefit thereof, either as heir, devisee, assignee or otherwise, shall cause the contract to be proved in the Court of Chancery in the county where the premises are situated and recorded in the recorder's office therein and shall thereupon apply to the executor or administrator for the fulfillment of the contract. Thereupon, the executor or administrator, if the consideration of the premises has been paid or upon payment thereof, may exhibit to such Court a petition stating the facts and praying authority to convey the premises in execution of the contract. The Court may inquire into the case and order specific performance of the contract, according to equity and good conscience. A deed made pursuant to such order shall be as effectual as if executed by the decedent in the decedent's lifetime.
(b) If the premises lie partly in 2 counties, the proof may be taken and the order made in either, but the contract must be recorded in each.
(c) If it is evident that the executor or administrator cannot fulfill the contract specifically or if it is a case in which a specific execution ought not to be accepted, proceedings under this section shall not be necessary.
(d) If a suit is brought against the true intent of this section, the Court may dismiss the action.
Code 1852, §§ 1859-1862; Code 1915, § 3399; Code 1935, § 3862; 12 Del. C. 1953, § 3125; 70 Del Laws, c. 186, § 1.;