9 Met. 180. sented insolvent while an action is pending for any demand that is not 6 Pick. 330. entitled to such preference, the action may be discontinued without payment of costs; or, if the demand is disputed, the action may be tried and determined and judgment rendered thereon in the same manner and with the same effect as is provided in the case of an appeal from the award of commissioners; or the action may be continued without costs until it appears whether the estate is insolvent, and if not insolvent the plaintiff may prosecute the action as if no such representation had been made. barred, unless, R. S. 68, § 20. SECT. 21. Every creditor of an insolvent estate who does not pre- Claims not sent his claim for allowance in the manner herein prescribed, shall be proved to be barred from recovering the same unless further assets of the deceased &c. come to the hands of the executor or administrator after the decree of 15 Mass. 140, distribution; in which case his claim may be proved, allowed, and paid, 148, 264. in the manner and with the limitations provided in this chapter for contingent debts. SECT. 22. If after the report of the commissioners, the assets prove sufficient to pay all debts allowed, the executor or administrator shall pay them in full; and if any other debt is afterwards recovered against him, he shall be liable therefor only to the extent of the assets then remaining. 1 Cush. 461. 3 Cush. 465. If assets sufficient, debts Surplus. paid in full. R. S. 68, § 21. divided. SECT. 23. If there are two or more such creditors, the assets, if in- Surplus, how sufficient to pay their demands in full, shall be divided among them in proportion to their debts. R. S. 68, § 22. hands. SECT. 24. The executor or administrator, in an action brought against Administrator him on such demand, may prove the amount of assets in his hands, assets in his liable only for and thereupon judgment shall be rendered in the usual form; but execution shall not issue for more than the amount of such assets; and if there are two or more judgments, the court shall apportion the amount between them. R. S. 68, § 23. &c. SECT. 25. If it is not ascertained, at the end of eighteen months Creditor may after the granting of letters testamentary or of administration, whether sue after eighteen an estate represented insolvent is or is not so in fact, any creditor whose months, in case, claim has not been presented before the commissioners may commence R. S. 68, § 24. an action therefor against the executor or administrator, which may be 1852, 294, § 1. continued without costs for the defendant until it appears whether the estate is insolvent. If it appears solvent, the plaintiff may prosecute the action as if no such representation had been made. ecutor, &c., neg SECT. 26. If an executor or administrator neglects to render and Penalty on exsettle his accounts in the probate court within six months after the re- fecting to settle turn made by the commissioners or the final liquidation of the demands accounts. R. S. 68, § 25. of the creditors, or within such further time as the court shall allow, 6 Greenl. 268. and thereby delays a decree of distribution, such neglect shall be 3 Met. 109. deemed unfaithful administration; and he may be forthwith removed, and shall be liable in a suit on his bond for all damages occasioned by his default. claimed for ed among cred SECT. 27. After twenty years from the decree of distribution of an Dividends uninsolvent estate, the probate court, upon application by any creditor twenty years, whose claim was proved and allowed, and after notice of such applica- to be distribut tion published for not less than two years on such days as the court itors, &c. shall direct, in one or more newspapers of the county, may order any 1844, 115, § 1. unclaimed dividends, with the interest received thereon, after deducting all expenses and charges of administration since the decree of distribu tion, to be distributed anew among the creditors who have received their dividends. If there is a surplus after satisfying the claims of such creditors with interest, it shall be distributed to the heirs of the deceased. on estates of SECT. 28. If a creditor who has failed to receive his dividend as Administration aforesaid has deceased, the probate court for the county in which ad- creditors enti tled to such 1844, 115, § 2. ministration on his estate might have been granted, shall, at any time before passing a decree to distribute the unclaimed dividends, grant administration upon his estate, although more than twenty years may have elapsed since his death, and the administrator may receive and administer such dividend. Testamentary bond. R. S. 69, § 1. SECTION 1. Every trustee under a will, except such as are exempted trustees to give as hereinafter provided, shall before entering on the duties of his trust give bond with sufficient surety or sureties to the judge of the probate court for the county in which the will is proved, and in such sum as the judge orders, with condition substantially as follows, (except as provided in chapter one hundred and one:) — 22 Pick. 215. che 357. 1869 except in cer- further exception. R. S. 69, § 3. First. To make a true inventory of all the real estate, goods, chattels, rights, and credits, belonging to him as trustee, and which shall come to his possession or knowl edge, and to return the same into the probate court at such time as the court directs: Second. To dispose of and manage all such estate and effects, and faithfully discharge his trust in relation thereto, according to law and the will of the testator: Third. To render an account on oath of the property in his hands and of the management and disposition thereof, within one year and at any other times when required by the probate court: and Fourth. At the expiration of his trust, to settle his accounts with the probate court, and pay over and deliver all the estate and effects remaining in his hands or due from him on such settlement, to the person or persons entitled thereto according to law and the will of the testator. SECT. 2. He shall be exempt from giving bond when the testator in the will appointing him has so ordered or requested, unless from a change in his situation or circumstances, or other sufficient cause, the court deems it proper to require a bond; and he shall also be exempted when all persons interested in the trust fund, being of full age and legal capacity, certify to the court their consent that such bond shall not be required. SECT. 3. No trustee who has heretofore undertaken a trust, shall be required to give bond in any case in which it was not required by laws in force at the time of his undertaking the trust, unless, from a change in his situation or circumstances, or other sufficient cause, the probate court deems it proper to require a bond. lecting, &c. .., . SECT. 4. Every trustee under a will who neglects to give bond as Trustee negaforesaid within such time as the probate court allows, shall be considered as having declined the trust. may resign. SECT. 5. Every such trustee may, upon his own request, be allowed to resign his trust, when it appears to the probate court proper to allow R. S. 69, § 5. the same. SECT. 6. No person succeeding to such trust as executor or administrator of a former trustee, shall be required to accept the same against his will. may appoint 1845, 158. new appointed SECT. 7. If in a will the testator has omitted to appoint a trustee Probate courts in this commonwealth, and if such appointment is necessary to carry trustee when into effect the provisions of the will, the probate court may, after notice necessary. to all persons interested, appoint a trustee who shall have the same 1855, 307, § 1. powers, rights, and duties, and in whom the estate shall vest in like. manner as if he had been originally appointed by the testator. SECT. 8. The probate courts in the several counties, as well as the Trustee may be supreme judicial court, upon application of the parties, (other than the removed and trustee,) beneficially interested in a trust estate created by will, deed, in certain cases. indenture, or other instrument, may, if it appears essential to the inter- 1843, 19. ests of the applicants, remove the trustee after he has had notice of the 1852, 212. application, and an opportunity to be heard and show cause why the removal should not be made. The probate court, after notice to the trustee and all other persons interested, may also remove any such trustee who becomes insane, or otherwise incapable of discharging his trust, or evidently unsuitable therefor. R. S. 69, § 7. 11 Met. 104. i Gray, 229. appointment of new, when 12 Pick. 445. 1 Gray, 220. SECT. 9. When a trustee under a written instrument, declines, resigns, dies, or is removed, before the objects thereof are accomplished, trustee resigns, if no adequate provision is made therein for supplying the vacancy, the &c. R. S. 69, §§ 7, 8. probate court or supreme judicial court shall, after notice to all persons 1843, 19. interested, appoint a new trustee, to act alone or jointly with the others 1852, 212. as the case may be. Such new trustee, upon giving the bonds and 4 Met. 330. security required, shall have and exercise the same powers, rights, and 12 Cush. 41. duties, whether as a sole or joint trustee, as if he had been originally 5 Gray, 336. appointed, and the trust estate shall vest in him in like manner as it had or would have vested in the trustee in whose place he is substituted. SECT. 10. Upon the appointment of a trustee under the preceding Court may orsection, the court may order such conveyances to be made by the former ces to new trustrustee or his representatives, or by the other remaining trustees, as may tee. be proper or convenient to vest in such trustee, either alone or jointly 1843, 19. with the others, the estate and effects to be held in trust. SECT. 11. Every trustee appointed by the probate court under a Trustee apwill, shall, before entering on the duties of his trust, give bond as prescribed in section one; except that the court may dispense with the making and returning of an inventory by a new trustee when it appears unnecessary; in which case the condition of the bond shall be altered accordingly. SECT. 12. Bonds given by trustees under this chapter may be put in suit by order of the probate court for the use and benefit of any person interested in the trust estate; and the proceedings in such suit shall be conducted as provided in chapter one hundred and one with respect to bonds given by executors or administrators. der conveyan R. S. 69, § 8. court, to give pointed by R. S. 69, § 9. proceedings bonds of. in suits on R. S. 69, § 13. when appoint SECT. 13. When an inventory is required to be returned by a trustee, Appraisers, the estate and effects shall be appraised by three suitable persons, to be ed. appointed and sworn as prescribed by law with respect to the estate of R. S. 69, § 10. a deceased person. &c., may au SECT. 14. The probate courts, in the several counties, and the su- Probate courts. preme judicial court, may, on application of the trustee under a will or thorize sales of any person interested in the trust estate, after notice to all other and investpersons interested therein, authorize or require such trustee to sell any R. S. 69, § 11. ments. de 331 Property held in trust by minors, &c., may veyed in certain cases. personal estate or effects held by him in trust, and invest the proceeds and any other trust money in his hands, in real estate or in any other manner most for the interest of all concerned therein; and said courts may from time to time give such further directions as the case may require for managing, investing, and disposing of, the trust fund, subject to the provisions of the will." SECT. 15. When a person seised or possessed of an estate, real or personal, or any interest therein, upon a trust, express or implied, is be sold and con- under the age of twenty-one years, insane, feme covert, or out of the commonwealth, or not amenable to the process of any court therein having equity powers, and in the opinion of the supreme judicial court it is fit that a sale be made of such estate, or of any interest therein, or that a conveyance be made thereof, in order to carry into effect the objects of the trusts; the court may by decree direct such sale or conveyance, and appoint some suitable person in the place of the trustee to sell or convey the same in such manner as it may require. If a person so seised or possessed of an estate, or entitled thereto upon a trust, is within the jurisdiction of the court, he or his guardian may be ordered to make such conveyances as the court may deem proper. Power, &c., of sale, &c., of Probate courts may terminate by persons deceased for bene trusts created fit of creditors. 1850, 241, § 1. Preceding sec ply in certain SECT. 16. The supreme judicial court, when a sale and conveyance of any trust estate have become necessary or expedient, upon a suit in equity brought by a party interested therein, may decree such sale and conveyance, and the investment, reinvestment, and application, of the proceeds thereof, upon such security and in such manner as shall best effect the objects of the trust, and be most safe and beneficial for all interested therein. SECT. 17. When it appears upon petition or otherwise to the probate court of the county where letters testamentary or of administration have been granted on the estate of a person deceased, that such person in his lifetime made a conveyance of real estate in this state in trust for the benefit of his creditors, and the trustee certifies that all the debts secured thereby (due to other persons than himself) have been paid, or otherwise adjusted to the satisfaction of the creditors so far as known, and that he is desirous to settle his trust account and terminate the trust, the court shall appoint a time and place for hearing all persons interested therein; notice of which shall be given by advertisement in some newspaper printed in the county or otherwise as the court may order. Upon such hearing the court may terminate the trust so far as the creditors and persons claiming under them are concerned, and discharge such real estate therefrom; and may settle the trust account, and make any further order as to the disposition, distribution, or parti tion, of the remaining trust estate, not inconsistent with the provisions of the original instrument creating the trust. SECT. 18. The preceding section shall not apply to any case tion not to a where the instrument creating the trust does not bear date more than six years previous to the time appointed for the hearing. Nor shall it affect the operation of the insolvent laws of this state. cases. 1850, 241, § 3. Certain trusts R. S. 59, 30. SECT. 19. No trust concerning lands, except such as may arise or to be boring result by implication of law, shall be created or declared, unless by an instrument in writing signed by the party creating or declaring the same, or his attorney. 4 Met. 537. 10 Cush. 471, 7 Gray, 369. not to affect purchasers without notice. R. S. 59, § 31. Recording declaration of trust equivalent to notice. SECT. 20. No such trust, whether implied by law or created or declared by the parties, shall defeat the title of a purchaser for a valuable consideration and without notice of the trust, nor prevent a creditor who has no notice of the trust from attaching the premises or taking them on execution, in like manner as if no such trust had existed. SECT. 21. When a trust is created or declared by any such instru ment in writing, the recording thereof in the registry of deeds for the county or district where the lands lie, shall be deemed equivalent to actual notice to every person claiming under a conveyance, attach- R. S. 59, § 32. ment, or execution, made or levied after such record. wills. SECT. 22. The probate courts in the several counties, concurrently Trusts under with the supreme judicial court, may hear and determine in equity all Equity powers, matters in relation to trusts created by will, not particularly mentioned &c. in this chapter. R. S. 69, § 12. ministration de granted. SECTION 1. When a sole or surviving executor or administrator dies When executor, without having fully administered an estate, if there is personal estate & dies, adof the deceased not administered to the amount of twenty dollars, or bonis non debts to that amount remaining due from the estate, or any thing . S. 63, § 10. remaining to be performed in execution of the will, the probate court R. S. 64, § 14. shall grant letters of administration, with the will annexed or otherwise 3 Met. 187. as the case may require, to some suitable person to administer the goods See Ch. 95, § 16. and estate of the deceased not already administered. 2 Pick. 361. SECT. 2. When an executor or administrator residing out of this Executor, &c., state, having been duly cited by the probate court, neglects to render removable for cause, &c. his accounts and settle the estate; or when an executor or administra- R. S. 63, § 7. R. S. 64, § 15. tor becomes insane or otherwise incapable of discharging the trust, 11 Met. 104. or evidently unsuitable therefor; the probate court may remove him; 10 alle 120 and thereupon the other executor or administrator, if there is any, may |