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tates of persons who, at the time of their decease, were not inhabitants of or residents within this state : provided, any of the rights, credits or estate of such deceased person shall be found therein ; and the administration first granted shall be a bar to any other administration, although such deceased person may have left such rights, credits or estate, in other towns; to appoint suitable persons to have the charge and care of the personal property of such deceased persons, until letters testamentary or of administration be granted ; and may require such persons to give bond to such court, with or without surety, at the discretion of such court; also to approve and to appoint guardians of the persons and estates, or of the persons only, or of the estates only, of such as are or may be
ject to guardianship; to examine, allow and settle the accounts of executors, administrators and guardians; to make partition of estates, to assign dower to widows, and to do and transact all such matters and things as the courts of probate within the several towns shall, by the laws of this state, have cognizance and jurisdiction of, according to law.
Sec. 3. Every court of probate shall have power, whenever any executor of a last will and testament by such court approved, or any administrator or guardian appointed by such court, shall, by means of absence, sickness or insanity, become incapable of executing his trust, or shall neglect or refuse to do the duties thereof, or shall waste the estate of his ward, or that on which he administers, on a regular inquiry, to remove such executor, administrator or guardian, from office.
Sec. 4. In every such case, a complaint shall first be made, in writing, to such court, by an heir, devisee, legatee, ward, creditor, or surety in the administration or guardianship bond, who may have been injured or exposed to injury, or by any person interested in the same, and the court shall
, thereupon, issue a summons to such executor, administrator or guardian, embodying therein or annexing thereto said complaint, or the substance thereof, and requiring such executor, administrator or guardian to appear at a time and place named therein, if he shall see fit, to show cause, if any he have, why he should not be removed, in pursuance of such complaint ; which summons shall be served on such executor, administrator or guardian, by some sheriff, deputy sheriff, town sergeant or constable, a reasonable time, to be determined by the court issuing the same, before the time appointed for hearing said complaint, by reading the same in his presence and hearing, or by leaving an attested copy thereof at his usual place of abode.
Sec. 5. If the executor, administrator or guardian removed from office in pursuance of the next preceding section be sole executor, administrator or guardian, the said court of probate shall appoint an administrator of the goods not administered, or another guardian, as the case may require, as in case of the death of an executor, administrator or guardian.
Sec. 6. Whenever an administration or guardianship bond shall be found insufficient, either in amount or in security, it shall be the duty of the court of probate who took the same to require further bond or sureties of the executor, administrator or guardian : and on his neglect or refusal to give such further bond or sureties, to remove such executor, administrator or guardian without further notice, and to appoint an administrator or guardian to succeed him, as in the preceding sections is provided.
Sec. 7. * The administrator or guardian appointed to succeed the executor, administrator or guardian removed from office for either of the causes aforesaid, or in the manner prescribed in the sixth section of the act entitled “an act respecting guardians,” shall ask for, demand and receive of the executor, administrator or guardian so removed, his heirs, executors or administrators, or guardian, all the goods and effects of the deceased or of the ward, and also all books of account, bonds, notes or other securities, documents or papers whatsoever, touching the estate, which may be needed in the settlement thereof; and in case of refusal to deliver the same he may sue therefor; which action shall be no bar to any other proper action to be brought on such executor's or administrator's or guardian's bond.
Sec. 8. No action or suit in law or equity which, at the time such executor, administrator or guardian is removed from office as aforesaid, shall be pending in favor of or against such executor, administrator or guardian, shall abate by such removal ; but the same may be prosecuted by or against the administrator or guardian who shall be appointed to succeed him.
Sec. 9. Courts of probate shall have cognizance and jurisdiction over petitions of executors and administrators for authority and license to sell the lands, tenements and hereditaments of deceased persons, or growing wood, or stone, or peat, or coal thereon, to pay the debts of such deceased, the expense of their funerals, of supporting their families, and settling their estates, with incidental charges; and over similar petitions of guardians to sell like property to pay the debts of their wards, the expenses of supporting them, their families, and of settling their estates, with incidental charges ; to hear
examine into and grant the same, under such conditions and restrictions as are or shall be imposed by law, or by the court granting the same. But before granting any such petition, notice shall be given by the court or clerk, for three weeks, of the pendency and prayer thereof, by advertisement published at least three times in some newspaper printed in this state, or by putting up notices thereof, as in case of an application for the appointment of an administrator ; and every executor, administrator or guardian, empowered as aforesaid, shall and may, by virtue of such authority, make, sign and execute, in due form of law, deeds and conveyances of such real estate or property as they shall sell ; and such deeds and conveyances shall make as good a title to the purchaser, his heirs and assigns, as the testator, intestate or ward, being of full age and of sane mind and memory in his life time, might or could have made. But before any sale, the executor, administrator or guardian, shall give thirty days public notice thereof by posting up notifications of such sale, in the town where the real estate or property to be sold lies, and in the town where the testator, intestate or ward dwells, or did dwell at the time of his death, and also in two next adjoining towns ; or shall publish the same in some public newspaper, for four successive weeks, or in such other manner as the court of probate may direct; and whoever shall give most shall have the preferance in such sale. The executor, administrator or guardian may, in his discretion, adjourn any such sale to any future day, whenever he may deem the same advisable, giving notice of such adjournment in the same manner in which notice of the sale was given, as soon as may be after such adjournment, and up to the day of the adjourned sale ; unless the adjournment shall be from day to day only, and then by making public proclamation thereof at the place and time of the sale, and by setting up a notice thereof at such place. But every person so empowered to sell any land or property, before he makes any sale, shall give bond with surety, to the satifaction of the court empowering him, to apply the proceeds of such sale to the purposes for which the court granted leave to make the same.
Sec. 10. Whenever any court of probate shall settle the account of any executor, administrator or guardian, in which there shall be credited any sum as the proceeds of any sale of any land which belonged to his testator, intestate or ward, or wood, or stone, or coal, or peat, standing, growing, or being on any such land, such court shall particularly examine whether all the requisitions of law in relation to such sale, were duly complied with ; and shall specially adjudge and decree in relation to the same, whether such requisitions have been complied with or not, and the notice given before settling any such account shall state that it contains such a credit.
Sec. 11. Whenever any administrator or guardian appointed by any court of probate, or any executor of any will approved by any court of probate, shall
, in writing, resign his trust to the court appointing him, such court may accept such resignation and appoint a successor, who shall have all the power that the person resigning had ; but no resignation shall be accepted until the person resigning shall have settled his accounts with said court. In case the person so resigning shall have been sole executor, administrator or guardian, said court shall proceed and appoint a successor ; if he were joint executor, administrator or guardian, with some other person not resigning, such person shall be required to give a new bond, in such sum as said court shall deem reasonable, with sureties satisfactory to said court; upon the giving of which he shall have the same powers in relation to the estate of the deceased or ward that he, together with the person resigning, had jointly; but in case he refuse to give such new bond, said court shall remove him, and appoint a new administrator or guardian, conforming to the requisitions contained in the sixth section of this act.
Sec. 12. The town clerk of each town shall be the clerk of the court of probate in such town; he shall attend the meetings of such court, record their proceedings, and also all wills, administrations, inventories, accounts, decrees, orders, determinations and other writings, which shall be made, granted or decreed upon by the court of probate of such town; and shall have the custody and safe keeping of the seal of said court, and of all the books and papers belonging to the probate office.
Sec. 13. Whenever the clerk of any probate court shall not appear at the time and place appointed for the meeting of the court, such court may appoint a clerk pro tempore ; who after being duly sworn shall perform all the duties, exercise all the powers, enjoy all the emoluments, and be subject to all the requirements, granted to or conferred on, or required of, clerks of probate courts.
Sec. 14. In all cases where bonds are required by law to be given to any court of probate, they shall be given to the proper court by name, and not to the individuals who may, at the time, constitute such court; and may be sued in like manner ; and no person shall be disqualified from being a witness in any such suit by reason of his being a member of the court of probate to which the bond was given: the same shall apply to bonds given to town councils.
SEC. 15. Previous to the granting of any letters of administration, or to the approving or disapproving of any
last will and testament, or to the acceptance of the resignation of any executor, administrator or guardian, or to the making any order upon the report of commissioners on any estate which has been represented insolvent, and before the passing of any decree upon any executor's, administrator's or guardian's account, or of any order of distribution among the heirs of any deceased person, and in all such other cases as the court of probate may deem necessary and shall direct, the said court of probate shall cause all parties known to be interested in such order or decree to be notified thereof, by causing the clerk of said court to post up in some conspicuous place within his office, or at the place where said court of probate usually meet, and at one other public place within the town, at least three weeks before the rendering such order or decree, notice of the subject matter thereof, and of the time and place at which the same will be acted upon; or said court of probate may cause notice to be given by advertisement published for three successive weeks, once a week at least, in some newspaper printed within this state ; or by causing notice to be served upon all parties interested, by some sheriff, deputy sheriff, town sergeant or constable, by reading said notice to the party, if to be found, or otherwise by leaving an attested copy of said notice at the last and usual place of the party's abode; either of said modes of giving notice to be discretionary with the court of probate : provided, however, that if it shall appear to said court of probate before passing any such order or decree, that previous notice has been given to all known parties interested as aforesaid, by the clerk of said court, upon application to him made, in one of the modes prescribed in this section, and that mode be satisfactory to said court, or if all known parties interested in such order or decree shall have given their assent in writing to said court's proceeding at that time and place to determine in the premises, then said court may proceed to hear and determine in the premises in the same manner as though said notice had been given by order and direction of said court, as aforesaid.
Sec. 16. Any person aggrieved at any order, determination or decree of any court of probate, except express provision be made to the contrary, may appeal therefrom to the supreme court, at the term thereof to be holden in the same