TITLE V.

OF TITLE TO REAL PROPERTY BY SPECIAL PROVISIONS OF

LAW.

CHAPTER 102.- Of the Sale of Lands by Executors, Administrators, and Guar

CHAPTER 103.-Of taking Land to satisfy Executions for Debt.

CHAPTER 104.- Of Homesteads.

CHAPTER 102.

OF SALES OF LANDS BY EXECUTORS, ADMINISTRATORS, AND

GUARDIANS.

SALES BY EXECUTORS AND ADMINISTRATORS. SECTION

4. Whole sold when partial sale would injure 31. Minor's real estate may be sold for investresidue.

Real estate may

debts, &c.

SALES BY EXECUTORS AND ADMINISTRATORS.

SECTION 1. When the personal estate of a deceased person is insuffibe sold to pay cient to pay his debts with the charges of administration, his executor or administrator may sell his real estate for that purpose, upon obtaining a license therefor and proceeding as herein provided.

R. S. 71, § 1. 2 Pick. 567.

15 Pick. 423. 2 Cush. 184. What courts may license.

R. S. 71, § 2.

1859, 196.

5 Pick. 140.

cense, &c.

R. S. 71, § 3.

6 Mass. 149.

SECT. 2. The license may be granted by the supreme judicial court or superior court in any county, or by the probate court in which the letters testamentary or of administration issued.

SECT. 3. To obtain such license, the executor or administrator shall Petition for li- present to the court a petition, setting forth the amount of debts due from the deceased as nearly as they can be ascertained, the amount of charges of administration, and the value of the personal estate in his hands. If it is necessary to sell only part of the real estate, he may also set forth the value, description, and condition, of the estate, or of such part thereof as he proposes to sell; and the court may direct what specific part shall be sold.

15 Pick. 23. 7 Met. 454. 8 Met. 58.

5 Cush. 524.

Whole sold, when partial sale would injure residue. R. S. 71, § 4. 13 Mass. 162. 15 Mass. 58. 6 Gray, 535.

Probate court

R. S. 71, § 5.

1859, 196.

SECT. 4. If it is represented in the petition and appears to the court, that it is necessary to sell some part of the real estate, and that by such partial sale the residue of the estate or of some specific part or piece thereof would be greatly injured, the court may license a sale of the whole of the estate, or of such part thereof as it deems necessary and most for the interest of all concerned.

SECT. 5. The petition, when made to the supreme judicial court or to certify facts. superior court in any county, shall be accompanied by a certificate from the probate court of the county where the executor or administrator was appointed, setting forth the amount of debts due from the deceased so far as they are ascertained, and the value of his real and per sonal estate; and when the petitioner prays for the sale of more than is necessary for the payment of debts, the probate court shall further certify whether it is necessary that the whole or a part of the estate should be sold, and if part only, what part.

Bond to be given.

R. S. 71, § 6. 3 Greenl. 282 38 Maine, 48. 8 Pick. 526. 11 Met. 529.

11 Cush. 18.

Case of devise

debts, &c.

R. S. 71, § 7.

6 Mass. 149.

SECT. 6. When the executor or administrator is licensed to sell more than is necessary for the payment of debts, he shall before the sale give bond with sufficient surety or sureties to the judge of the probate court for the county in which he was appointed, conditioned to account for and dispose of according to law all proceeds of the sale remaining after payment of the debts and charges.

SECT. 7. If there is in the last will of the deceased any disposition for payment of of his estate for the payment of debts, or any provision which may require or induce the court to marshal the assets in any manner differ ent from that which the law would otherwise prescribe, such devises or parts of the will shall be set forth in the petition, and a copy of the will shall be exhibited to the court; and the assets shall be marshalled accordingly, so far as can be done consistently with the rights of the creditors.

Notice of peti

to all

ed.

R. S. 71, § 8.

SECT. 8. License shall not be granted until notice of the petition tion to be given and of the time and place appointed for hearing the same has been served personally on all persons interested in the estate, at least fourteen days before the time appointed for the hearing, or by publication three weeks successively in such newspaper as the court shall order, that they may appear and show cause why the same should not be granted; but if all persons interested signify in writing their assent to the sale, notice may be dispensed with.

8 Met. 51, 355. 5 Cush. 524.

Persons inter

SECT. 9. License shall not be granted if any of the persons interested may give ested in the estate give bond to the executor or administrator, in a sum and with sureties approved by the court, with condition to pay all debts mentioned in the petition that shall eventually be found due from the estate, with the charges of administering the same, so far as the goods,

bond and pre-
vent sale.
R. S. 71, § 9.
2 Gray, 160.

chattels, rights, and credits, of the deceased shall be insufficient therefor.

license, execu

SECT. 10. If the facts set forth in the petition are proved, and no Upon obtaining sufficient cause is shown to the contrary, the court shall grant the tor or adminislicense; and the executor or administrator shall be thereupon author- tor may convey. R. S. 71, § 10. ized to execute conveyances which shall be effectual to pass to the pur- 8 Greeni. 220. chaser all the estate, right, title, and interest, in the granted premises, which the deceased had therein at the time of his death, or which was then chargeable with the payment of his debts.

his

sold.

1844, 107, § 1.

SECT. 11. The real estate so liable to be sold shall include all What real eslands of the deceased, and all rights of entry and of action, and all tate may be other rights and interests in lands, which by law would descend to R. S. 71, § 11. heirs, or which would have been liable to attachment or execution by 1855, 453, § 1. a creditor of the deceased in his lifetime. No claim to such lands 14 Mass. 137. entry or action shall be made more than five years after the decease of 5 Cush. 524. the grantor.

by

11 Mass. 379.

See Ch. 103, § 1.

SECT. 12. An executor or administrator, licensed to sell lands fraud- Lands frauduulently conveyed by the deceased, or fraudulently held by another per- may be first relently conveyed son for him, or to which he had a right of entry or of action, or a right to a conveyance, may first obtain possession thereof by entry or by action, and may sell the same at any time within one year after so obtaining possession.

SECT. 13. He may make a formal entry upon the premises and bring the action on his own seisin acquired by such entry, demanding the land as executor or administrator.

SECT. 14. An executor or administrator licensed to sell real estate shall, before fixing on the time and place of sale, take and subscribe an oath in substance as follows: that in disposing of the estate which he is licensed to sell he will use his best judgment in fixing on the time and place of sale, and will exert his utmost endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested therein.

SECT. 15. He shall give public notice of the time and place of such sale, by causing notifications thereof to be posted, thirty days at least before the sale, in some public place in the city or town where the deceased last dwelt, and in two adjoining cities or towns, if there are so many in the county, and also in the city or town where the lands lie; or by publishing the same three weeks successively in a newspaper; as the court granting the license may order.

covered by ex-
R. S. 71, $ 12.
1844, 107, § 1.

ecutor, &c.

1855, 453, § 1.
8 Met. 51.

Action there-
for, how

brought.
R. S. 71, § 13.
Oath to be tak-
en by executor,
&c., before sale.
R. S. 71, § 14.
wh 358.1869

4 Cush. 54.

yded

Notice of sale,

how given.

R. S. 71, § 15.

uated.

1853, 393.

SECT. 16. An affidavit of the executor or administrator, or person Evidence thereemployed by him to give such notice, being made and filed and re- of, how perpetcorded with a copy of the notice in the probate office within one year R. S. 71, § 16. after the sale, or at any time afterwards by permission of the court upon petition of the executor or administrator and satisfactory evidence furnished that the notice was given as ordered, shall be admitted as evidence of the time, place, and manner, of giving the notice. And it shall be the duty of the several registers to record such affidavits, filed as provided in this section.

Sale by public
auction, &c.
Greenl. 240.

R. S. 71, § 17.

5

4 Cush. 54.

Notice of adJournment, how . S. 71, § 18.

SECT. 17. The sale shall be made by public auction; and if at the time appointed therefor the executor or administrator deems it for the interest of all persons concerned therein that the sale be postponed, he may adjourn it for any time not exceeding fourteen days. SECT. 18. Notice of such adjournment shall be given by a public declaration at the time and place first appointed for the sale; and if the adjournment is for more than one day, further notice thereof shall be given by posting or publishing, as time and circumstances may admit. SECT. 19. When a testator has given a legacy, which with his debts Real estate, and the charges of administration, his goods, chattels, rights, and cred- when to be sold its, are insufficient to pay, the executor, or administrator with the will legacies.

given.

for payment of

R. S. 71, § 20.
14 Mass. 421.
7 Cush. 161.

Foreign execu

tor, &c., may be
licensed to sell
real estate.

R. S. 71, § 21.
1859, 196.
3 Mass. 514.

to give bond,

bound.

R. S. 71, § 22.

annexed, may be licensed to sell real estate for that purpose, in the same manner and upon the same terms and conditions as are prescribed in the case of a sale for the payment of debts.

BY FOREIGN EXECUTORS, &C.

SECT. 20. An executor or administrator appointed in another state or in a foreign country on the estate of a person dying out of this state, upon whose estate there is no executor or administrator appointed in this state, may file an authenticated copy of his appointment in the probate court for any county in which there is real estate of the deceased; after which he may be licensed by the same probate court, or the supreme judicial court or superior court in any county, to sell real estate for the payment of debts, legacies, and charges of administration, in the same manner and upon the same terms and conditions as are prescribed in the case of an executor or administrator appointed in this state, except as hereinafter provided.

SECT. 21. When it appears to the court granting the license, that unless already such foreign executor or administrator is bound with sufficient surety or sureties, in the state or country in which he was appointed, to account for the proceeds of such sale, and a copy of such bond duly authenticated is filed in the probate court where the copy of his appointment is filed, no further bond for that purpose shall be required of him here; otherwise, before making such sale he shall give bond, with sufficient surety or sureties to the judge of the probate court for the same county, with condition to account for and dispose of said proceeds in the payment of debts, legacies, and charges of administration, according to the law of the state or country in which he was appointed.

to give fur

count for sur

plus, &c.

R. S. 71, § 23.

SECT. 22. When such foreign executor or administrator is licensed ther bond to ac- to sell more than is necessary for the payment of debts, legacies, and charges of administration, he shall before making the sale give bond with sufficient surety or sureties to the judge of the probate court conditioned to account before the same court for all proceeds of the sale remaining after payment of said debts, legacies, and charges, and to dispose of the same according to law.

Oath, notice of
sale, and per-

petuating evi

SECT. 23. Every foreign executor or administrator licensed to sell real estate shall, before fixing on the time and place of sale, be sworn dence of notice. and give notice of the time and place of sale, and otherwise proceed as is prescribed for an administrator appointed here when making such sale; and the evidence of such notice may be perpetuated in the same

R. S. 71, § 24.

Real estate of
ward may be
sold by guardi-
an, for payment
of debts.

R. S. 71, § 26.
5 Pick. 482.

Whole sold, when partial sale would injure residue.

R. S. 71, § 27.

manner.

BY GUARDIANS FOR THE PAYMENT OF DEBTS.

SECT. 24. When the goods, chattels, rights, and credits, in the hands of a guardian are insufficient to pay all the debts of the ward, with the charges of managing the estate, the guardian may be licensed to sell his real estate for that purpose, in like manner and upon like terms and conditions as are prescribed in this chapter in the case of a sale by executors or administrators, except as hereinafter provided.

SECT. 25. If it is represented in the petition and appears necessary to sell some part of the real estate of the ward, and that by such partial sale the residue of the estate, or of some specifie piece or part thereof, would be greatly injured, the court may license a sale of the whole of the estate, or of such part thereof as it deems necessary and most for the interest of all concerned; the guardian giving bond to account for the surplus of the proceeds of the sale in like manner as is prescribed in this chapter in case of a like sale by an executor or administrator.

FOR MAINTENANCE AND INVESTMENT.

SECT. 26. When the income of the estate of a ward is insufficient to maintain him and his family, or when it appears that it would be for the benefit of a ward that his real estate or any part thereof be sold and the proceeds put out on interest or invested in some productive stock, his guardian may sell the same accordingly, upon obtaining a license therefor and proceeding therein as hereinafter provided.

Real estate of
sold for main
wards may be
tenance, &c.
R. S. 72, § 1, 2.

salle 125

License to be

R. S. 72, § 7.

SECT. 27. To obtain such license, the guardian shall present to the court a petition setting forth the condition of the estate and the facts granted on petition of guardiand circumstances on which the petition is founded. If after a full ex- an, and to speciamination, on the oath of the petitioner or otherwise, it fy purpose of either appears sale. that it is necessary or that it would be for the benefit of the ward that the real estate or any part of it should be sold, the court may grant a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward and his family, or that the proceeds may be put out or invested as aforesaid.

give bond.

11

.210. Met. 529.

11 Cush. 18.

SECT. 28. Guardians licensed to sell real estate for maintenance of a Guardian to ward or investment, shall before the sale give bond, with sufficient surety or sureties to the judge of the probate court for the county in which they are appointed, with condition to sell the same in the manner prescribed for sales of real estate by executors and administrators, and to account for and dispose of the proceeds in the manner provided by law. SECT. 29. If the estate is sold for the maintenance of the ward and When sold for his family, the guardian shall apply the proceeds so far as necessary to maintenance, that purpose, and shall put out the residue on interest, or invest it in the best manner in his power, until the capital is wanted for such maintenance; in which case the capital may be used for that purpose in like manner as if it had been personal estate.

proceeds, how

disposed of.

R. S. 72, § 3.

R. S. 72, § 4.

SECT. 30. If the estate is sold in order to put out and invest the pro- How, when sold ceeds, the guardian shall make the investment according to his best for investment. judgment, or in pursuance of any order that may be made relating See Ch. 109, § 22. thereto by the probate or supreme judicial court, as provided in chapter

one hundred and nine.

SECT. 31. The estate of a minor may be sold for the purpose of in- Minor's real es vesting the proceeds as provided in this chapter, upon the petition and for investment representation of any friend of the minor; and in such case the court on petition of, or by, any may authorize the guardian or any other suitable person to convey the friend in certain estate. When a sale for such purpose is ordered on the petition of the guardian of a minor, the court may authorize any suitable person other than the guardian to sell and convey the estate. The provisions of this chapter in relation to licenses and sales on the petitions of guardians, except as provided in the following section, shall apply to licenses and sales under this section.

1838, 190, § 1.

SECT. 32. Upon a sale by a person other than the guardian, the pro- How proceeds ceeds shall be forthwith paid to the guardian upon his giving bond, of sale disposed with sufficient sureties, to the judge of the probate court for the county 1838, 190, § 2. where the real estate is situate, conditioned to account therefor. If 1850, 45. there is no guardian, the proceeds shall be put out and invested by the person authorized to sell the estate, in like manner as is required of a guardian.

BY FOREIGN GUARDIANS.

censed sell
of ward.

SECT. 33. When a minor, insane person, or spendthrift, residing out Foreign guarof this state, is under guardianship in the state or country in which he dian may be liresides, and has no guardian appointed in this state, the foreign guar- estat. 71, § 31. dian may file an authenticated copy of his appointment in the probate R. 8. 72, 514. court for any county in which there is real estate of the ward; after which he may be licensed to sell the real estate of the ward in any