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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 seryed 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 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 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 cost 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 his 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
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 aforesaid, 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 entitled 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.
SECTION 1. Insolvent estates to be distributed 7. Claims ascertained by referees or by
among all creditors equally-prefer, court of law, to be added to commisence given to United States, funeral
sioner's report. charges, &c.
8. No action to be brought against admin2. Before payment to any, administrator istrator during pendency of commis
to represent the estate insolvent to sion, except in certain cases.
tor to be continued until ascertained 3. Duty of commissioners.
whether estate be solvent. 4. Time to be allowed by court of probate 10. Creditor not exhibiting and proving
for bringing in and proving claims- his claim, or suing the same as afore may extend time in certain cases-re- provided, to be barred, unless property port to be made to court of probate, remain in hands of administrator after and proceedings thereon.
payment of debts reported by commis5. Creditor whose claim is rejected by sioners.
commissioners may sue for the same. 11. Pendency of commission to bar no ac6. Administrator dissatisfied with any tion after two years from granting of
creditor's claim allowed, the same to administration.
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.