obtained license to sell the real estate of his ward, and the wife of CHAP. 112. such ward shall release her contingent right of dower therein to the her dower in his purchaser, either in the same deed with the guardian, or another 1828, 380, § 4. deed duly acknowledged and recorded, she shall be forever barred from claiming any dower in the premises. lands. her, to invest SECT. 27. It shall be competent for the guardian, with the Guardian may consent of the judge of probate, to whom he is accountable, to contract with make any agreement in writing with such wife, as to the investment proceeds of her or other disposal of such part of the proceeds of sale of the whole interest, with the judge's conproperty for her separate use, as may be equivalent to her interest sent. in the same; and the said judge of probate, or the supreme judicial 1828, 380, § 3. court, shall have power to enforce such agreement, as a subject of trust, upon principles of equity. bate to author person deceas 1339, 361. 14 Pick. 271. SECT. 28. Judges of probate may authorize any executor or Judge of proadministrator of any deceased person, whose estate is subject to his ize deeds, under jurisdiction, to execute deeds, in order to carry into effect bonds, contract of a agreements or covenants in writing, whether sealed or not, when- ed. ever it shall be made to appear to them, on petition of the person 1310, 21, § 1. contracted with, as aforesaid, or his heirs or assigns, or personal 3 Greenl. 50. representatives, that the deceased, in his life time, entered into any such contract to convey real estate to him, but was prevented by death; and that the petitioner has performed, or stands ready to perform, whatever condition was required of him by the terms of the contract. And, whenever any executor or administrator shall receive any such conveyance, he shall stand seized of such estate, to the same uses and for the same purposes, as he may be of real estate, set off to him on execution. may express what order, SECT. 29. On granting license to any executor, administrator Licenses, in or guardian, for the payment of debts, legacies or expenses of certain cases, administration, it shall be competent for the court granting the same, what, and in to prescribe in the license, what particular portions of the real estate shall be sold, and in what order, agreeably to the provisions sold. of the last will of the testator, or on such principles of equity, as they may find applicable. lands may be 6 Mass. 149. 8 Pick. 478. the deed of a Operation of person, authorized by license. 1821, 52, § 2. Greenl. 282. Greenl. 1. 3 4 4 Pick. 312. SECT. 30. Any deed, made, executed and recorded in due form of law, for a fair and adequate consideration, in pursuance of any license under the provisions of this chapter, shall be effectual to pass to the purchaser all the estate, right, title and interest in and to the granted premises, which the testator or intestate, at the time of his death, or the person under guardianship, or other person on account of whom the license was granted, might convey by a like. deed, if living and not incapacitated. SECT. 31. Lands, of which the testator or intestate died seized What estate of deceased perin fee simple, or in fee tail, general or special, and also all such sons is subject estate, as he had fraudulently conveyed, or of which he had been to be sold by colorably disseized with intent to defraud his creditors, shall be lia- 1821, 52, § 1. ble to be sold under any license for the payment of his debts, under 14 Mass. 137. the provisions of this chapter. license. 15 Mass. 148. SECT. 32. In all cases of sales by an executor, administrator, Surplus proceeds of sale, husband or guardian, of any part or the whole of the real estate of considered as his testator, intestate, wife or ward, under a license granted by any real estate, for court, by virtue of the provisions of this chapter, whether such tribution. purposes of dis CHAP. 112. 15 Maine, 207, 212. 9 Pick. 130. Presumptive heirs of wards, tice, as parties entitled to no interested. executor, administrator or guardian shall have been appointed in this state or elsewhere, and wherever the husband may reside, the surplus of the proceeds of the sale, remaining on the final settlement of the accounts of such proceeds, shall be considered, as real estate, and be disposed of amongst the same persons, and in the same proportions, as the real estate would have been, by the laws of this state, if it had been sold. SECT. 33. All those, who are next of kin, and heirs apparent or presumptive of the ward, shall be considered as interested in the estate, and may appear, as such, and answer to the petition of any guardian or other person for the sale of his estate; and, when personal notice is required to be given, they shall be notified, as such. SECT. 34. If any person interested shall appear and object to the granting of the granting of any license, prayed for under the provisions of this chapter, and if it shall appear to the court, that either the petition, or the objection thereto, is unreasonable, they may, in their discretion, award costs to the party prevailing. Of costs, when a license is objected to. 1821, 52, § 14. Requisites of a 7 Mass. 488. Against such as to the title sold. 2 Fairf. 174. 5 Pick. 519. SECT. 35. In case of an action, relating to any estate sold under the provisions of this chapter, in which an heir, or other person claiming under the deceased, or the wife or her heirs, in case of a sale of her estate by her husband, or the ward or any person claiming under him, shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided, it shall appear: First. That the license was granted by a court of competent jurisdiction, and that the deed was duly executed and recorded; Secondly. That the person licensed gave whatever bond was required in his case; Thirdly. That he took the oath prescribed in section, six, of this chapter, if also required'; Fourthly. That he gave notice of the time and place of sale, as prescribed in this chapter; Fifthly. That the premises were sold in such manner, and within such term, as the license authorized, and are held by one, who purchased them in good faith. SECT. 36. If the validity of any such sale shall be drawn in claim,adversely question, by any person claiming adversely to the title of the deceased testator or intestate, ward, or wife aforesaid, or by a title, not derived through him or her, the sale shall not be held void on account of any irregularity in the proceedings; provided, it shall appear that the license was granted by a court of competent jurisdiction, and that the deed was duly executed and recorded. Remedy on bond, or other- Certain inter ests in lands included in the SECT. 37. If, in relation to such sale, there shall be any neglect or misconduct in the proceedings of any executor, administrator of guardian, by which any person interested in the estate shall suffer damage, such aggrieved party may recover compensation therefor, in a suit on the probate bond, or otherwise, as the case may authorize or require. SECT. 38. Whenever executors, administrators or guardians, may be authorized to sell property held in mortgage, or levied upon construction of by execution, as in the second specification in the first section of this chapter, or to sell trees and timber, standing on any land of this chapter. any minor, as in the seventh specification in said section, all the CHAP. 112. provisions in this chapter, respecting the sale of real estate after license obtained, which may be applicable to the case, shall be construed, as including the same. CHAPTER 113. GENERAL PROVISIONS, RESPECTING PROBATE BONDS, AND REMEDIES SECT. 1. When sureties are insufficient, SECT. 11. A creditor of a solvent estate, &c. judge to require new bonds. 2, 3. Of applications by sureties to 4. Suits to be brought in name of the 5. As of right, by any persons inter- 6. Manner of inserting their names 7. Of costs in such cases. 8. Principal obligor may be made a 9. How he may be summoned, and 10. What evidence a creditor of an insolvent estate must produce. or a legatee. 12. Evidence required of widows, next 16. How execution to be awarded, för When sureties new bonds. SECTION 1. Whenever the sureties in any bond, given to the judge of probate, shall be insufficient, the judge of probate, on the are insufficient, petition of any person interested, and after notice to the principal judge to require in the bond, may require a new bond to be given, with such sure- 1821, 51, § 63. ties as he shall judge sufficient. SECT. 2. Any surety, in a bond given to the judge of probate, of applications may, at any time, after the expiration of six years from the date of by sureties to the bond, on his application, be discharged from all responsibility, for any subsequent breach of the condition of such bond, but for no prior breach; if the judge, on due notice to all persons interested, shall think proper to discharge him: and the principal shall thereupon give a new bond, with such sureties, as the judge shall approve. be discharged, after six years. 1821, 51, § 63. SECT. 3. In the cases specified in the preceding sections, if the Same subject. principal shall not give such new bond, within such time, as the 1821, 51, 63. judge shall order, he shall be removed from his trust, and some other person shall be appointed in his place. SECT. 4. All suits, brought upon a probate bond of any kind, payable to any judge of probate, shall be originally commenced in the supreme judicial court, held within and for the county, in which the said judge of probate shall belong, in the name of said judge, Suits to be brought in name of the judge, &c. in supreme judicial court for same coun ty. Survivorship, &c. CHAP. 113. or his successor for the time being, as the case may be. And such suit shall not abate by the death, resignation, or expiration of the term of office, of the judge, in whose name the suit may be brought; but, upon the appointment of a successor, the process may be amended and prosecuted in the name of such successor, without notice. 1821, 51, 70. 14 Mass. 451. As of right, by any persons in1830, 470, § 1. terested. 3 Fairf. 55. 5 Pick. 62, 398. 13 Pick. 152. Manner of inserting their names in the writ. 1830, 470, 1. 10 Pick. 75. Of costs in such cases. SECT. 5. Any person interested, either personally or in any official capacity, in any probate bond, or in any judgment, that may have been rendered on such bond, shall have a right to originate a suit on such bond, or to sue out a scire facias on said judgment, as the case may require, without applying to the judge, whose name may have been used in said bond, or in such judgment, or to his successor; and any two or more parties, interested in the penalty of such bond, may unite in the prosecution of the action. SECT. 6. The person, by whom the said action shall be brought, or his attorney or other person in his behalf, shall allege, in the original writ or scire facias, his own name and addition, and that 2 Greenl. 239. the same is sued out by him, " in the name of —, judge of probate for the county of "otherwise the writ shall abate. SECT. 7. If such suit is not sustained, the court before which the same is pending, shall render judgment and issue execution for costs, against the person instituting the suit; but no judgment shall be rendered against the judge of probate; provided, that this and the two preceding sections shall not be construed, as applicable to suits on such bonds, when commenced by the express authority of the judge of probate. 1830, 470, § 1. Principal obligor may be made a defend of surety, if omitted. SECT. 8. If the principal in any such bond shall be resident within this state, at the commencement of the action on such bond, ant, on motion and shall not be made a defendant therein, and served with process accordingly, or if, at the time of the hearing of the parties in such 1821, 51, § 71. action, or on a scire facias on a judgment recovered against his sureties only, on such bond, he shall be within the state, the court may, at the request of any such surety, continue or postpone the action, so long as may be necessary to summon or bring in the principal, in the manner, provided in the next section. How he may be summoned, and the effect thereof. 1821, 51, § 71. What evidence insolvent estate SECT. 9. The surety may thereupon take out a writ, in such form as the court shall prescribe, to arrest the principal, if liable to arrest, or to attach his goods or estate, and summon him to appear and answer, as a defendant in the original action; and if, after being duly served with such process, fourteen days at least before the time appointed for him to appear and answer to the suit, he shall neglect so to do, and if the judgment shall be for the plaintiff, it shall be rendered against such principal obligor, together with the other defendants, in the same manner, as if he had been originally a party to the suit; and any attachment made, or bail taken, on such process, shall be liable to respond the judgment, in like manner, as if made or taken in the original suit. SECT. 10. Every creditor, entitled to a dividend from an insola creditor of an vent estate, on prosecuting an original suit against the administrator must produce. or executor on any probate bond, or suing out a scire facias on any 1821, 51, 672. judgment, previously recovered on the same, must produce an official copy of the order of distribution of the estate of the deceased 21 Pick. 58.. among the creditors, particularly specifying all the claims allowed CHAP. 113. the several creditors; and prove, that a demand has been made on the administrator, for his particular dividend. a solvent estate, tee. lega 1821, 51, § 72. 20 Pick. 53. SECT. 11. If the estate be not insolvent, or if the claim be of A creditor of a nature not affected by such insolvency, such creditor must first have &c. or a his debt or damages ascertained by judgment of court, against the executor or administrator, whose bond is sued; and make it appear, that a demand has been made of such executor or administrator therefor; and that he has refused or neglected to satisfy the same, or to show goods or personal estate of the deceased, for that purpose. Any person claiming a legacy, under the will of the deceased, other than a residuary legatee, must also have the amount due him, ascertained by judgment of court, and prove such demand on the executor or administrator with the will annexed, as is required in the case of a creditor. ows, next of 16 Mass. 524. SECT. 12. Any widow, to whom an allowance has been made Evidence reby the judge of probate, or any widow, or next of kin, entitled to quired of wida distributive share in the personal estate, or any residuary legatee kin, and residuof any deceased person, before being entitled to recover in any such ary legatees. suit, upon the bond of any executor or administrator, or on any scire facias as aforesaid, must produce a decree of the judge of probate, ascertaining the amount due, and prove such a demand and refusal by the principal in such bond, as is required in the preceding section. SECT. 13. Whenever, in any original suit brought on any pro- Of judgment, bate bond, it shall appear by verdict, default, confession or other- ings thereon. and proceedwise, that the condition of any probate bond has been broken, judgment shall be entered in the common form for the penalty, and the subsequent proceedings shall be had by the court, as hereinafter provided. SECT. 14. Whenever it shall appear, for whose use the money Same subject. so recovered shall enure, and that such person's claim has been 1821, 51, § 73. ascertained, pursuant to sections ten, eleven and twelve, of this chapter, the court shall order, that the judge of probate, in whose name the action is brought, shall then have execution for any part of the penalty, equal to the principal and interest appearing to be due to the person, for whose use the suit may have been brought, with legal costs; and, when there are several persons, to whose use the money recovered is to enure, there shall be as many separate executions in the same form; and the costs shall be apportioned under the direction of the court. SECT. 15. The person or persons, to whose use execution shall Same subject. have been awarded, shall have the same levied in their own names, 1821, 51, § 73. respectively, on real estate or otherwise, and shall be deemed the creditors to all intents. for not render 1821, 51, § 72. SECT. 16. Whenever, in any such suit, against any administra- How execution tor, it shall appear that he has neglected or refused to account, to be awarded upon oath, for such property of the intestate, as he has received, ing an account. after he has been cited by the judge of probate for that purpose, 16 Mass. 129. execution shall be awarded against him, for the full value of what- 1 Greenl. 139. ever personal property of the deceased has come to his hands, without any discount, abatement, or allowance for charges of administration or debts paid. 7 Greenl. 302. |