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pecting and complaining against him, or by order of the su
Sec. 27. Whenever any person to whom any real estate may be mortgaged for the payment of any debt or the
performance of any collateral promise or engagement whatsoever, shall decease before the recovering of seizin and possession of the real estate mortgaged, the debt due on said deed of mortgage and the real estate mortgaged by the same shall be assets in the hands of his executor and administrator, as personal estate ; and the executor or administrator shall have the same control of all the estate which the said deceased had in the real estate mortgaged, as if it had been a pledge of personal estate ; and may sell or dispose of the same, in his discretion, for the amount due thereon, or for any less amount upon obtaining leave therefor from the court of probate appointing him; and executors or administrators may bring actions of ejectment for the recovery of seizin and possession of the real estate mortgaged as aforesaid ; in which actions it shall be sufficient to declare on the seizin and possession of the mortgagor and his conveyance by mortgage to the testator or intestate as aforesaid ; and in all cases, debts due by mortgage shall be considered as personal property, and distributed as such.
Sec. 28. Whenever any executor or administrator shall recover seizin or possession of the real estate mortgaged as aforesaid, he shall be seized and possessed of the estate so recovered, to the sole use and behoof of the heirs of the intestate, or the devisees of the testator, to whom said estate may be devised; but in case the lands mortgaged and recovered as aforesaid shall be necessary for the payment of debts, legacies or charges of administration, and the same shall be certified from the court of probate, the said executor or administrator shall have full right, power and authority to dispose and make sale of the whole or part of the real estate recovered as aforesaid, subject however to the equity of redemption ; and it shall be lawful for the said executor or administrator to sell the same at private sale to any person who shall pay therefor the whole of the money due upon the mortgage at the time of sale, provided the court of probate shall give leave for such private sale; otherwise the same shall be sold at public auction to the highest bidder; and notice of such intended sale shall be given in the manner prescribed by law for the sale of real estate by executors or administrators.
Sec. 29. After the executor or administrator shall recover scizin and possession of any real estate mortgaged as aforesaid, and before conveyance or assignment thereof in manner aforesaid, if any mortgagor, his heirs, executors, administrators or assigns, shall
, within the time limited for the equity of redemption, redeem the said mortgaged premises, the executor or administrator shall, in every instance, be entitled to receive the said redemption money; and is hereby authorized, empowered and directed to discharge the said mortgaged premises, by release, quitclaim or other legal conveyance.
Sec. 30. The court of probate shall, in the settlement of the accounts of executors and administrators, make reasonable allowance for the support of the family of the deceased, after his decease, until the same can otherwise be provided for, having due regard to the situation of the family, and the value and circumstances of the estate, not exceeding the term of six months; and such executors and administrators shall also be allowed, in their accounts, all reasonable charges and disbursements which they shall lay out and expend in the funeral of the deceased and other their administration ; and may be allowed such recompense for their personal trouble as the court of probate, on settling their accounts, may consider just ; and may be compelled to pay interest for the detention of money in their hands, if in the opinion of said court it shall be reasonable.
Sec. 31. The settlement of the accounts of any executor, administrator or guardian, by the court of probate, or in case of appeal by the supreme court, shall be final and conclusive on all parties concerned therein, and shall not be subject to re-examination in any way or manner whatsoever.
Sec. 32. No person entitled to a share in any intestate estate shall have a right to demand the same within three years after administration or letters testamentary granted on such estate, unless he shall give bond to the administrator or executor, with sufficient surety, to be approved by the court of probate, to refund the proportionable share of the estate in case any debt or debts should afterwards appear against the same, and the executor or administrator should not have a sufficiency of the estate in his hands undivided for the payment thereof: provided, however, that the heirs at law or devisees may, during said term, take the rents and profits of the real estate as heretofore.
Sec. 33. When the personal estate of any person deceased shall not be sufficient to pay the debts which the deceased owed, the expenses of his funeral, and of supporting his family and settling his estate, in manner prescribed by law, the court of probate which shall have granted letters testamentary
or of administration on such estate, shall thereupon authorize and empower the executor or administrator appointed to settle such estate, to make sale at public auction of so much of the land or of so much of the wood standing or growing on the land, or of so much of the stone in the quarry or otherwise on the land, or of so much of the coal, or of so much of the peat on the land of such deceased person as shall be necessary to make up the deficiency of the personal estate for the purposes aforesaid, with incidental charges.
Sec. 34. The real estate of all deceased persons shall be liable for the payment of their just debts, by actions to be brought against the heirs at law or devisees of such estate ; and execution may be levied thereupon, upon all judgments obtained against such heirs at law or devisees; and the sheriff shall sell such real estate or so much thereof as shall be sufficient to satisfy such execution, at public auction, to the highest bidder, having first advertised the same as is prescribed by law in cases where the real estate is taken by execution ; and on such sale he shall give a deed of such real estate to the purchaser thereof.
Sec. 35. No action shall be brought against any such heir or devisee within three years next after probate of the will or administration granted; and when any action shall be brought against the heirs or devisees of any testator or intestate as aforesaid, for any debt due from such testator or intestate, the same shall be brought against all the heirs and devisees 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 estate remain unaliened, and it can conveniently be so done ; and in case the same be levied in any other proportion, the parties aggrieved thereby shall be entitled to an action, and recover against any person or persons in arrears, all such arrearages with costs.
Sec. 36. If the heir or devisee of any real estate shall aliene such estate before the same shall be attached for the debt of the testator or 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 of the testator or intestate, to be ascertained by a court or jury, who shall assess the damages in the 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.
Sec. 37. The creditors who shall commence their actions against the heirs or devisees as 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 alienated as aforesaid: provided, nevertheless, that nothing in this act 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 expenses of supporting his family and settling his estate.
Sec. 38. When it shall satisfactorily appear upon a hearing in chancery on an administration bond, for whose particular use and benefit the money for which execution issues is to enure, the judgment shall be rendered that the plaintiffs now have execution for
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.
Sec. 39. When a suit on an administration bond is instituted at the desire of a creditor of the deceased, such creditor shall first have his debt or damages ascertained by judgment of court, unless the estate is insolvent, and likewise make it appear that a demand had been made of the administrator therefor, and that the administrator had refused or neglected to satisfy the same, or to show goods or estate of the deceased for that purpose ; when the estate is insolvent, the 254 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 prove that a demand has been made
of the administrator for his particular dividend; when an heir 239
has the suit brought for his part of the personal estate, he shall exhibit a copy of the decree of the probate court, ascertaining its quantum, and that he has made a demand thereof upon the administrator; and in the preceding instances, the writ, in addition to the usual endorsement of the name of the plaintiff or his attorney, shall also have the name of the
person or persons for whose particular use and benefit the suit is brought, written thereon ; and the party aforesaid shall give security for costs, as provided 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, for such property of the intestate as he has received, especially if he has been cited by the court of probate for that purpose, execution shall be awarded against him for the full value of the personal property of the deceased that has come to his hands, without any discount, abatement or allowance for charges and expenses 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 a particular inventory thereof, execution shall be awarded against him for the whole of the damages sustained thereby; the like judgment and proceedings, so far as they can with propriety take place, shall be had upon bonds of executors, guardians and others, given to probate courts in their said capacity.
Sec. 40. If any person shall be absent from this state for the term of seven years without due proof of bis being alive, for whose life any estate shall be holden by himself or any other person,
the person claiming the remainder or reversion of said estate expectant upon the death of such person so absent as 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. 41. If any executor or administrator shall not within three years from the probate of the will or administration granted, raise money out of the testate or intestate estate, by collecting debts due, or by selling the personal estate or real estate if need be, or he has power or can obtain license 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