« PreviousContinue »
Sec. 26. And be it further enacted, That no person en- Heir not titled to a share in any intestate estate, shall have a right to to demand the same within three years after administra- within 3 tion or letters testamentary granted on such estate, unless years. he shall give bond to the administrator or executor with Unless he sufficient surety, to be approved by the court of probate, to refund his proportionable share of the estate, in case any debt or debts should afterwards appear against the same, and the administrator or executor should not have a sufficiency of the estate in his hands undivided for the payment thereof: Provided however, That the heirs at law Proviso. or devisees may, during said term, take the rents and profits of the real estate, as heretofore.
Sec. 27. And be it further enacted, That when the goods Real esand chattels of any person deceased shall not be suffi- tate may
be sold for cient to pay the debts which the deceased owed, the ex- debts, in pences of his funeral, and of supporting his family, and case. of settling his estate in manner prescribed by this act, the same being made to appear to the supreme judicial court, at any term thereof in the county in which such deceased person last dwelt, the same court are hereby By order authorized to empower the executor or administrator ap- of the su
preme pointed to settle such estate, to make sale of so much of court. the real estate of such deceased person as shall be necessary to make up the deficiency of the personal estate for the purposes aforesaid, with incidental charges : and ev- Exec. to ery executor and administrator, empowered as aforesaid, give deed. shall and may, by virtue of such authority, make, sign and execute, in due form of law, deeds and conveyances of such real estate as they shall so sell, and such deeds and conveyances shall make as good a title to the purchaser or purchasers, his or their heirs and assigns, as the testator or intestate, being of full age, of sane mind and memory, in his or her lifetime, might or could have conveyed : Provided always, That the executor or administrator, be- Also nofore sale made as aforesaid, shall give thirty days public lice notice thereof, by posting up notifications of such sale in the town where such real estate lies, as well as where the deceased person last dwelt, and also in the two next adjoining towns, or by publishing the same, in some public newspaper for four successive weeks, or otherwise as the court of probate shall direct; and whoever shall give most, shall have the preference in such sale: Provided And give also, That said executors or administrators, before they fore sale. make sale as aforesaid, shall give bond with sufficient
surety, to the court of probate by whom the letters testamentary, or of administration, were granted, that he or she will apply the proceeds of said sale to the payment of debts, and the balance thereof, if any, will appropriate
according to law. Real es- Sec. 28. And be it further enacted, That the real estate for debts
le of all deceased persons shall be liable for the payment by action of their just debts, by actions to be brought against the against
ir heirs at law, or devisees of such estates; that execution &c. be levied thereupon, upon all judgments obtained against How to be such heirs at law or devisees; and that the sheriffs shall sold. sell such real estates, or so much thereof as shall be suf
ficient to satisfy such execution, at public auction, to the highest bidder, having first set up notifications of such sale for the space of three months before the sale thereof, in three public places in the town where such real estate lies, and shall give a deed or deeds of such real estate to the purchaser, in like manner as is prescribed by the law of this State in cases where the real estate is taken by
execution. No action Sec. 29. And be il further enacted, That no action shall against be brought against any such heir or devisee, within three heir, within three years next after probate of the will or administration years. granted; and when any action shall be brought against
the heirs or devisees of any testator or intestate as afore
said for any debt due from such testator or intestate, the All the
he same shall be brought against all the heirs and devisees, heirs to be joined.
who hold the real estate by devise or descent from such testator or intestate, if to be found ; and execution shall be served upon, and the debt and costs recovered, levied and collected, out of the estates of the several devisees or heirs, in the same proportion as they hold the same, if such real estates remain unaliened, and can conveniently be so done; and in case the same be levied in any other proportion, that then the parties aggrieved thereby shall be entitled to an action, and recover against any person or persons in arrears, all such arrearages with
costs. Heir hav. Sec. 30. And be it further enacted, That if the heir or ing alien- devisee of any real estate shall aliene such estate before ed, to be
onally the same shall be attached for the debts of the testator or liable. intestate; by virtue of this act, such heir or devisee shall
be liable to pay the value of the estate so aliened to the creditor or creditors of the testator or intestate, to be ascertained by the court or jury, who shall assess the dam
the will or
the heirs on
if to my devis the heigh intes
ages in the suit or suits that may be brought against such heir or devisee, by virtue of this act: and the execution in such case shall issue against the heir or devisee who shall have aliened as aforesaid, in manner prescribed by law, for his own debt: and the creditors who shall com- Priority of
attachmence their actions against the heirs or devisees as mer aforesaid, shall be entitled to satisfaction of the debts due to them respectively, from the testator or intestate, in the same order in which their writs shall be served, by attaching the real estate, or in case of alienation, then in the same order in which their writs shall be served, by summoning the heir or devisee who shall have aliened as aforesaid : Provided nevertheless, That nothing in this act Proviso. contained, respecting the bringing of actions against heirs and devisees, shall interfere with, prevent or obstruct the settlement of any estate, whether solvent or insolvent, by executors and administrators, in manner by law provided; nor shall any action be brought against any heir or devisee, by virtue of this act, unless the personal estate of the testator or intestate shall be insufficient for the payment of his debts, funeral charges, and expences of settling his estate.
Sec. 31. And be it further enacted, That when it shall Judgment satisfactorily appear, upon a hearing in chancery on an istration administration bond, for whose particular use and bene- bond, how fit the money for which execution issues is to enure, the en judgment shall be rendered, that the plaintiffs, in their said capacity (naming them) now have execution foron
being part of the penalty forfeited, and costs taxed at for the use of
of in the county of
a creditor or heir of deceased, (as the case may be ;) and the person to whose use judgment shall be rendered in the name of the court of probate as aforesaid, may sue out execution thereon, and have the same levied according to law; and shall be deemed and taken to be the creditor, to every intent and purpose whatsoever: and when there are several persons to whose use the monies recovered on an administration bond, are to enure, there shall be as many separate and distinct judgments, in form aforesaid.
And as a directory for what sum execution ought to be awarded upon an administration bond, when it shall appear upon confession, verdict, demurrer or otherwise, that the penalty is forfeited; and also that administration bonds may not upon frivolous pretences be put in suit:
In what Sec. 32. Be it further enacted, That when the suit is institucases ad- ted at the desire of a creditor of the deceased, such crediministra. for’s bonds tor shall first have his debt or damages ascertained by
judgment of court (unless the estate is insolvent) and likesued.
wise make it appear that a demand has been made of the administrator therefor, and that the administrator has refused or neglected to satisfy the same, or to shew goods or estate of the deceased for that purpose: when the estate is insolvent, the creditor shall produce a copy of the order of distribution of the estate of the deceased among the creditors, particularly specifying each creditor's claim, and the dividends they are severally entitled to; and that a demand has been made of the administrator for his particular dividend : when an heir has the suit brought for his part of the personal estate, he shall exhibit a copy of the decree of the probate court, ascer
taining its quantum, and that he has made a demand Plaintiff's thereof upon the administrator: and in the preceding in
to be stances the writ, in addition to the usual indorsement of indorsed on writ. the name of the plaintiff or his attorney, shall also have
the name of the person or persons for whose particular And secu- use and benefit the suit is brought, written thereon; and rity given the party aforesaid shall give security for costs, as profor cost.
vided by law in other cases; and in case the defendant recovers, execution shall issue against such party for the defendant's costs as aforesaid : and if the administrator shall refuse or neglect to account upon oath or affirma
tion for such property of the intestate as he has received, Execution especially if he has been cited by the court of probate for what
a for that purpose, execution shall be awarded against him awarded. for the full value of the personal property of the deceas
ed that has come to his hands, without any discount, abatement or allowance, for charges and expences of administration or debts paid : and when it shall appear that the administrator shall have received the personal property of the intestate, and shall not have exhibited upon oath or affirmation a particular inventory thereof, execution shall be awarded against him for the whole penalty of
such administration bond, to be distributed amongst the Proceed parties interested, agreeably to the directions of law:
nds of the like judgment and proceedings (so far as they can executors, with propriety take place shall be had upon bonds of ex
ecutors, guardians and others, given to the probate courts in their said capacity.
Sec. 33. And be it further enacted, That if any person Tenant for shall be absent from this State for the term of seven years, life absent
seven without due proof of his being alive, for whose life any years, reestate shall be holden by himself or any other person, the mainder
man to person claiming the remainder or reversion of said estate, have p expectant upon the death of such person so absent as session. aforesaid, shall and may enter upon such estate, and hold the same according to his title, or until such absent person shall return to this State, or due proof shall be made of his being alive. • Sec. 34. And be it further enacted, That if any executor Executor or administrator shall not within three years from the proces bate of the will or administration granted, raise money within
three out of the testate or intestate estate, by collecting debts
years. due, or by selling the personal estate, or real estate if need be, or he has power or can obtain licence as aforesaid to sell the same, or shall neglect to pay over what he has in his hands, to the several creditors of the testator or intestate, or shall by his neglect as aforesaid subject the real estate of the heir or devisee to be taken in execution, it shall be deemed unfaithful administration in such executor or administrator, and an action may be brought against such executor or administrator (and his or her sureties) upon the administration bond, by any such creditor, heir or devisee, who may have been damnified thereby.
Sec. 35. And be it further enacted, That all claims exist- Claims ing against any testator or intestate shall be considered against due and payable at the time letters testamentary or of when conadministration are granted; and the same may be filed sidered
due. and prosecuted with other claims against such estate, although by the terms thereof they may not be then due; and shall be entitled to payment with other claims, deducting the interest for the anticipated payment thereof.
And whereas executors, administrators and guardians, upon their obtaining license to sell real estate for the payment of debts or legacies, are by law directed before sale be made to give thirty days public notice thereof, by posting up notifications of such sale in the town where such real estate lies, as well as where the deceased person last dwelt, and also in the two next adjoining towns, or by publishing the same in some public newspaper for four successive weeks, or otherwise as the court of probate shall direct; but no particular method is provided for perpetuating the evidence that such notice was giv