CHAPTER 73.

TITLE XVII, than his share of such debt, the other persons liable shall be holden and compelled to contribute their just proportion of the same, as is provided in the case of devisees and legatees in the preceding sixtyeighth chapter.

If appointment of commissioners omitted

claimants not prevented from suing.

No action to be prosecuted

against executors &c., except as provided in this Chapter.

SEC. 59. If the appointment of commissioners to allow claims, shall in any case be omitted, no person, having any contingent or other lawful claim against a deceased person, shall thereby be prevented from prosecuting the same against the executor, administrator, heirs, devisees or legatees, as provided by law, and in such case a claimant having a lien upon real or personal estate of the deceased, by attachment previous to his death, may, on obtaining judgment, have execution against such real or personal estate.

SEC. 60. In no other case, except such as are expressly provided for in this chapter, shall any action be commenced or prosecuted against an executor or administrator; nor shall any writ of attachment or execution issue against such executor or administrator, or against the estate of the deceased in his hands, during the time allowed him for the payment of debts, except in the case provided for in the preceding section.

What executor,

with.

CHAPTER 73.

OF RENDERING ACCOUNTS BY EXECUTORS AND ADMINISTRATORS.

SECTION 1. Every executor and administrator shall be chargeable &c, chargeable in his account, with the whole of the goods, chattels, rights and credits of the deceased, which may come to his possession; also, with all the proceeds of the real estate, which may be sold for the payment of debts and legacies, and with all the interest, profit and income which shall in any way come to his hands from the estate of the deceased. SEC. 2. Every executor and administrator shall account for the personal estate of the deceased, as the same shall be appraised, except as provided in the following sections.

To account for personal estate at appraisal.

Not to profit by

by destruction,

fault.

SEC. 3. An executor or administrator shall not make profit by the increase, or lose increase, nor suffer loss by the decrease or destruction, without his &c., without his fault, of any part of the personal estate; and he shall account for the excess, when he shall sell any part of the personal estate for more than the appraisal, and if he shall sell any for less than the appraisal, he shall not be responsible for the loss, if it shall appear to be beneficial to the estate to sell it.

When sale of 1 personal estate may be ordered.

SEC. 4. The probate court, on the application of the executor or administrator, may, at any time, order the personal estate to be sold at private sale or at public auction, when it shall appear to be necessary for the purpose of paying debts, or legacies, or expenses of administration, or for the preservation of the property, or when it shall be requested by all the heirs residing in this state; or the court may order such personal estate to be sold, either at private sale or public auction, as the executor or administrator may find most beneficial. If the order be to sell at auction, the probate court shall direct the mode of giving notice of the time and place of sale.

SEC. 5. When the executor or administrator shall sell personal estate, under an order of the probate court, he shall account for the same at the price for which it shall be sld.

TITLE XVII. CHAPTER 73.

Executor, &c., to account for

proceeds of sale.

SEC. 6. No executor or administrator shall be accountable for any debts due to the deceased, if it shall appear that they remain uncol- When not aclected without his fault.

countable for debts due de

income of real

SEC. 7. The executor or administrator shall also be accountable for ceased, the income of the real estate while it shall remain in his possession; To account for and if he shall use or occupy any part of it, he shall account for it as estate. may be agreed upon between him and the parties interested, or adjudg ed by the probate court with their assent; and if the parties shall not agree upon the sum to be allowed, the same may be ascertained by one or more disinterested persons to be appointed by the probate court, whose award, being accepted by such court, shall be final.

loss occasioned

SEC. S. When an executor or administrator shall neglect or unrea- Executor, &c., sonably delay to raise money, by collecting the debts or selling the accountable for real or personal estate of the deceased, or shall neglect to pay over the by neglect. money he shall have in his hands, and the value of the estate shall thereby be lessened, or unnecessary cost or interest shall accrue, or the persons interested shall suffer loss, the same shall be deemed waste, and the damages sustained may be charged against the executor or administrator in his account, or he shall be liable therefor on his administration bond.

SEC. 9. Every executor or administrator shall render his account of Accounts, when his administration within one year from the time of his receiving let- to be rendered. ters testamentary or of administration, unless the court shall give permission to delay, in consideration that the time for selling the estate and paying the debts shall be extended; and he shall render such further accounts of his administration from time to time, as shall be required by the court, until the estate shall be wholly settled; and he may be examined on oath upon any matter relating to his account. SEC. 10. The executor or administrator shall be allowed all neces- Compensation, sary expenses in the care, management, and settlement of the estate, &c, to executors and for his services, such fees as the law provides, together with all tors. extra expenses, provided, that when the deceased shall, by his will, make some other provision for compensation to his executor, that shall be deemed a full compensation for his services, unless he shall, by a written instrument filed in the probate court, renounce all claim to the compensation provided by the will.

and administra

SEC. 11. When no such compensation shall be provided by the ь. will, or the executor shall renounce all claim thereto, he shall be allowed commissions upon the amount of personal estate collected and accounted for by him, and of the proceeds of real estate sold under an order of the court for the payment of debts, as follows: For the first thousand dollars, at the rate of five per cent.; for all above that sum and not exceeding five thousand dollars, at the rate of two and one-half per cent.; and for all above five thousand dollars, at the rate of one per cent.; and the same commissions shall be allowed to administrators; and in all cases, such further allowances may be made as the judge of probate shall deem just and reasonable, for any extraordinary services, not required of an executor or administrator in the common course of his duty.

SEC. 12. When an executor or administrator, after being duly cited by the probate court, shall neglect to render his account, he shall be

Bond may be put leet to render ac

in uit, on

CHAPTER 74.

TITLE XVII. liable on his bond for all damages which may accrue, and his bond may be put in suit by any person interested in the estate.

Execution for costs, when

executor, &c.

SEC. 13. When costs, in any case, are allowed against an executor or administrator, execution shall not issue against the estate of the awarded against deceased in his hands therefor, but shall be awarded against him as for his own debt; and the amount paid by him shall be allowed in his administration account, unless it shall appear that the suit or proceeding, in which the cost shall be taxed, shall have been prosecuted or resisted without just cause.

Notice of exami

executors and

administrators.

SEC. 14. Before the administration account of any executor or adning accounts of ministrator shall be allowed, notice shall be given to all persons interested, of the time and place of examining and allowing the same; and such notice may be given personally, to such persons as the probate court shall judge to be interested, or by public notice, under the direction of the court,

Provision for

years of age.

CHAPTER 74.

OF THE PARTITION AND DISTRIBUTION OF ESTATES.

SECTION 1. Before any partition or division of any estate among children under 7 the heirs, devisees or legatees, an allowance shall be made for the necessary expenses of the support of the children of the deceased, under seven years of age; and the probate court may order the executor or administrator to retain in his hands sufficient estate for that purpose; except where some provision shall have been made by will for their support.

After payment of debts, residue

to be assigned to persons entitled thereto.

Decree, what to specify.

No person entitled to share of

SEC. 2. After the payment of the debts, funeral charges, and expenses of administration, and after the allowances made for the expense of the maintainance of the family of the deceased, and for the support of the children under seven years of age, and after the assignment to the widow of her dower and of her share in the personal estate, or when sufficient effects shall be reserved in the hands of the executor or administrator for the above purposes, the probate court shall, by a decree for that purpose, assign the residue of the estate, if any, to such other persons as are by law entitled to the same. SEC. 3. In such decree, the court shall name the persons, and the proportions or parts to which each shall be entitled; and such persons shall have right to demand and recover their respective shares from the executor or administrator, or any person having the same.

SEC. 4. Such decree may be made on the application of the execuestate until debts tor or administrator, or of any person interested in the estate, but no &c., paid. unless heir, devisce or legatee shall be entitled to a decree for his share, unbond be given. til payment of the debts, and allowances and expenses mentioned in the preceding section shall have been made or provided for, unless he shall give a bond to the judge of probate, with such surety or sureties as the court may direct, to secure the payment of his just proportion of such debts and expenses, or such part thereof as shall remain unprovided for, and to indemnify the executor or administrator against the same.

SEC. 5. When the estate, real or personal, assigned to two or more

CHAPTER 74.

heirs, devisees or legatees, shall be in common and undivided, and TITLE XVII. the respective shares shall not be separated and distinguished, partitition and distribution may be made by three discreet and disinteres- When partition ted persons, to be appointed commissioners for that purpose by the may be made. probate court, who shall be duly sworn to the faithful discharge of their duties before the judge of probate or a justice of the peace, and the judge of probate shall issue a warrant to them for that pur

pose.

lies in different

SEC, 6. If the real estate shall lie in different counties, the probate Proceedings court may, if it shall be judged proper, appoint different commission- when real estate ers for each county, and in such case, the estate in each county shall counties. be divided separately, as if there was no other estate to be divided; but the commissioners first appointed shall, unless otherwise directed by the probate court, make division of such real estate, wherever situated within this state.

tion.

SEC. 7. Such partition and distribution may be ordered on the pe- Notice of applitition of any of the persons interested; but before any partition shall cation for partibe ordered, as directed in this chapter, notice shall be given to all persons interested, who reside in this state, or their guardians, and to the agents, attorneys or guardians, if there be any in this state, of such as reside out out of the state, either personally or by public notice, as the probate court shall direct.

shares have been conveyed.

SEC. 8. Partition of the real estate may be made, as provided in Partition when this chapter, although some of the original heirs or devisees may have conveyed their shares to other persons; and such shares shall be set to the persons holding the same, in the same manner as they otherwise should have been to such heirs or devisees.

Shares how set

SEC. 9. The several shares in the real and personal estate shall be set out to each individual in proportion to his right, by such metes out. and bounds, or description, that the same can be easily distinguished; unless any two or more of the parties interested shall consent to have their shares set out, so as to be held by them in common and undivided.

court may assign

SEC. 10. When any such real estate cannot be divided without pre- When estate canjudice or inconvenience to the owners, the probate court may assign not be divided, the whole to one or more of the parties entitled to shares therein, who the whole to one will accept it, always preferring the male (males) to the females, and, of partics. among children, preferring the elder to the younger, provided, the party so accepting the whole, shall pay to the other parties interested their just proportion of the true value thereof, or shall secure the same to their satisfaction; and the true value of the estate shall be ascertained by commissioners appointed by the probate court and sworn for that purpose.

When tract of

greater value

than either party's share, and

ded, may be set

SEC. 11. When any tract of land, messuage or tenement shall be of greater value than either party's share in the estate to be divided, and cannot be divided without injury to the same, it may be set off by the commissioners appointed to make partition, to either of the cannot be diviparties who will accept it, giving preference as prescribed in the pre- off to one of ceding section, provided the party so accepting it shall pay or secure parties. to one or more of the others, such sums as the commissioners shall award to make the partition equal, and the commissioners shall make their award accordingly; but such partition shall not be established by the court, until the sums so awarded shall be paid to the parties entitled to the same, or secured to their satisfaction,

TITLE XVII. CHAPTER 74.

SEC. 12. When partition of real estate among heirs or devisees shall be required, or dower is to be assigned to a widow in the same, and When estate of such real estate shall be in common and undivided with the real estate

common to be first severed.

deceased lies in of any other person, the commissioners shall first divide and sever the estate of the deceased from the estate with which it lies in common, and such division so made, and established by the probate court, shall be binding on all the persons interested.

Guardians for minors, &c., and agents for non

residents.

Report of com. missioners and proceedings thereon.

When partition

ed with.

SEC. 13. Before any partition shall be made, or any estate divided, as provided in this chapter, guardians shall be appointed for all minors and insane persons interested in the estate to be divided; and some discreet person shall be appointed to act as agent for such parties as shall reside out of the state; and notice of the appointment of such agents shall be given to the commissioners in their warrant; and notice shall be given to all the parties interested in the partition, their guardians or agents, by the commissioners, of the time when they shall proceed to make partition.

SEC. 14. The commissioners shall make report of their proceedings to the probate court in writing; and this (the) court may, for sufficient reasons, set aside such report, and commit the same to the same commissioners, or appoint others; and the report, when finally accepted and established, shall be recorded in the records of the probate court; and a copy thereof attested by the judge of probate under the seal of the court, shall be recorded in the office of the register of deeds of the county where the lands lie.

SEC. 15. When the probate court shall make a decree, assigning may be dispens the residue of any estate to one or more persons entitled to the same, it shall not be necessary to appoint commissioners to make partition or distribution of such estate, unless the parties to whom the assignment shall be decreed, or some of them shall request that such partition be made.

Questions relating to advance

mined.

SEC. 16. All questions as to advancements made or alleged to be ment how deter made by the deceased to any heirs, may be heard and determined by the probate court, and shall be specified in the decree assigning the estate, and in the warrant to the commissioners; and the final decree of the probate court, or, in case of appeal, of the circuit or supreme court, shall be binding on all persons interested in the estate. SEC. 17. Any person aggrieved by any order, decree or denial of a probate court, in pursuance of the provisions of this chapter, may appeal therefrom as provided in other cases.

Appeal.

Partition when conclusive.

When executor,

&c, may pay expenses of partition.

When expenses to be paid by

ed.

SEC. 18. The partition, when finally confirmed and established, shall be conclusive on all the heirs and devisees, and all persons claiming under them, and upon all persons interested.

SEC. 19. If, at the time of the partition or distribution of any estate as provided in this chapter, the executor or administrator shall have retained sufficient effects in his hands, which may lawfully be applied for that purpose, the expenses of such partition or distribution may be paid by such executor or administrator, when it shall appear to the court just and equitable, and not inconsistent with the intention

of the testator.

SEC. 20. But if there are no effects in the hands of the executor or partie's interest administrator which may be lawfully applied to that purpose, the expenses and charges of the partition, being ascertained by the probate court, shall be paid by all the parties interested in the partition, in proportion to their respective shares or interests in the premises; and