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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. 42. All claims existing against any testator or intestate, shall be considered due and payable at the time letters testamentary or of administration were granted; and the same may be filed 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.
SEC. 43. And whereas executors, administrators and guardians, upon their obtaining license to sell real estate, 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: the following method is provided for perpetuating the evidence that such notice was given: the affidavit of the executor, administrator or guardian, or the affidavit of such person or persons as may be by them employed to post up such notifications, taken before the probate court where such executor or administrator derived his authority to administer, within six months next following the sale of the real estate, and there filed and recorded, together with one of the original advertisements of the time, place and estate to be sold, or a copy of such advertisement, is hereby declared to be one mode, but not the exclusive one, of perpetuating the evidence that such notice was given, and also to make the originals or copies thereof from the clerk of the court of probate, admissible evidence in any court of law; and when the person employed to post up such notifications resides more than ten miles distant from such probate court, his deposition respecting the matter, taken before a justice of the peace and filed with the clerk of such probate court, within six months as aforesaid, shall have the same force and effect as if the same was taken before such court as aforesaid; or copies of the original notice printed in a newspaper as aforesaid, certified by the affidavit of such executor, administrator or guardian or by some other person, and filed and recorded as afore
said, shall be another mode, but not the exclusive one, of perpetuating such evidence.
SEC. 44. It shall be the duty of every executor, administrator and guardian, to make out and return to the court of probate, yearly and in every year, his account relative to the estate in his hands, with a statement of the liquidated balance that may be due to or from him, at the time of such settlement; and it shall be the duty of the court of probate to issue a citation to each executor, administrator or guardian, having accounts unsettled with such court, (after the term limited for the exhibit of the first account,) who shall neglect as aforesaid, to be and appear before such court at the first meeting thereof next after the first Monday of January in every year thereafter, to show cause why he has neglected to exhibit an account as aforesaid; and in case such executor, administrator or guardian, after being cited as aforesaid, shall neglect or refuse to present his account for settlement as aforesaid, for the space of thirty days, without assigning to such court satisfactory reason therefor, such executor, administrator or guardian shall be held accountable for the full value of the personal property of the deceased or ward, with interest, and shall be entitled to no compensation for his services; and shall incur a penalty of not less than twenty dollars, nor more than one hundred dollars, to be recovered by any one who may sue for the same, by action of the case, one moiety for the use of the person interested in said estate, and the other moiety to and for the use of the town in which such court may be.
SEC. 45. Whenever any person who shall be entitled as legatee, distributee or creditor to the personal estate or any part thereof in the hands of an executor, administrator or guardian appointed in this state, shall for the space of five years after the decree of the court of probate approving the will or ordering distribution, or establishing the amount of the claim, neglect to apply for the same, such executor, administrator or guardian shall pay over the same to the town treasurer of the town, wherein administration or guardianship was granted on said estate, taking said treasurer's receipt therefor; which shall be a sufficient voucher in the settlement of his account with the court of probate.
SEC. 46. Whenever the town treasurer of any town shall receive any money by virtue of the preceding section of this act, he shall retain the same in his hands for the use of the town for which he is treasurer, until called for by the party entitled thereto, or his representatives. And such town shall be liable to repay the amount so received, to the party enti
tled to the same. And said town treasurer shall keep a record of his proceedings herein. Whenever the town treasurer of any town shall receive any legacy which shall consist in whole or in part of any property, other than cash, he may sell the same at public auction, and retain the proceeds of such sale in his hands under the limitations and for the uses aforesaid.
An Act for the Equal Distribution of Insolvent Estates.
1. Insolvent estates to be distributed among all creditors equally-preference given to United States, funeral charges, &c.
2. Before payment to any, administrator
3. Duty of commissioners.
5. Creditor whose claim is rejected by
It is enacted by the General Assembly, as follows:
SECTION 1. When the estate of any person deceased shall be insolvent or insufficient to pay all the just debts which the deceased owed, the same shall be distributed to and among all the creditors in proportion to the sums to them respectively owing, so far as the said estate will extend; saving that the debts due to the United States and necessary funeral charges of the deceased, for attendance and medicines in the last sickness, for debts due to this state, and for all state and town taxes, are to be first paid, and in the order in which they are named.
SEC. 2. The executors or administrators of any such insolvent estate, before payment to any be made, except as aforesaid, shall represent the condition and circumstances thereof, unto the court of probate which granted letters testamentary or of administration thereon; and the said court shall appoint three fit and disinterested persons to be commissioners, with full power to receive and examine all claims of the several creditors, and how they are made out.
SEC. 3. Said commissioners shall put up notifications of the times and places of their meeting, to attend the creditors for the receiving their claims, in three or more public places in the town, and one notification on or near the door of the court-house in the county where the deceased last dwelt; or shall advertise the said times and places in one or more of the newspapers printed in this state for three weeks successively; and shall be sworn to the faithful discharge of their duty, before some magistrate or the court appointing them; they shall have power to administer oaths to all persons who shall be called to give evidence in any matter to be tried before them, and to compel the attendance of any witnesses in the same manner and by the same process that courts of record now have.
SEC. 4. The court of probate shall allow six, twelve, or eighteen months time, as the circumstances of any estate may require, unto the creditors, to bring in their claims and prove their debts; and if it shall be made to appear to said court before the actual distribution of any of the estate, as is herein after provided, that any of the creditors of the deceased have neglected, through accident or mistake, to present their claims to the said commissioners, within the time limited for that purpose, said court may said court may extend the said time for presenting claims to any period not exceeding eighteen months from the date of the commission; and such notice shall be given of such extension as said court may direct; at the end of which limited time, the commissioners or major part of them, shall make their report and present a list of all the claims by them allowed, including interest on such as draw interest, up to 257. the time of the death of the testator or intestate, unto the court of probate, who shall, upon receiving said report, order them a meet recompense out of the estate, for their care and trouble in examining the claims; and the debts due to the United States, and necessary funeral charges of the deceased, for attendance and medicines in the last sickness, for debts due to this state, and for all state and town taxes, being first paid, in the order aforesaid, and deducted by the court of 24probate, they shall order the residue and remainder of the estate, both real and personal, the real estate being sold according to law, to be paid and distributed to and among the creditors who shall have made out their claims as aforesaid, in proportion to the sums unto them respectively due and owing; saving unto the widow, if any there be, her apparel and such bedding and other household goods as are necessary for the upholding of life, and her right of dower in the real estate of the deceased.
SEC. 5. Notwithstanding the report of the commissioners, any creditor whose claim is wholly or in part rejected, may have the same determined at common law, in case he shall give notice thereof in writing in the clerk of probate's office, within twenty days after such report shall be received, and bring and prosecute his action as soon as may be.
SEC. 6. In case the executor or administrator shall be dissatisfied with any creditor's claim allowed by the commissioners, and shall give notice thereof in the clerk of probate's office and also to the creditor, within twenty days as aforesaid, such claim shall by the court of probate be stricken out of the commissioners' report. Executors and administrators are hereby empowered to agree to submit any claim named in this or in the preceding section, to reference; in which case the determination of the referees shall be final.
SEC. 7. When a claim shall be settled by referees, or in the course of the common law as aforesaid, execution shall not issue as in common cases; but the amount so ascertained shall be the amount of the claim, and added to or deducted from the commissioners' report, as the case may require.
SEC. 8. No action brought against any executor or administrator after the estate shall be represented insolvent, shall be sustained, except for debts due to the United States, and necessary funeral charges of the deceased, for attendance and medicines in the last sickness, for debts due to this state, and for all state and town taxes; unless the executor or administrator having objection to the claim upon which such action shall be brought shall consent to have the same settled by course of law; in which case the judgment of the court shall determine the said claim, which with the taxed costs shall be reported by the commissioners as the amount thereof.
SEC. 9. All actions brought against any executor or administrator before the estate is represented insolvent, or against the testator or intestate in his life time, which shall survive, and in which the executor or administrator being cited shall appear, shall be contiuned until it shall appear whether the said estate is insolvent or not; and if found insolvent, the process shall be conducted as above provided.
SEC. 10. If any creditor shall not make out his claim with the commissioners within the time of their commission, or at the common law, or before referees, in the manner provided by this act, he shall be forever barred of his action therefor against the executor or administrator; unless there shall be estate remaining in the hands of such executor or administrator upon the settlement of his account with the court of pro