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place as the court shall appoint, by posting up the same in the town where the deceased last dwelt, and by advertising the same in a newspaper printed in the county where the deceased person dwelt, (if any there be,) if not, then in an adjoining county ; and also, in any other newspaper, which the court may designate for that purpose; to be heard relative to the appointment of commissioners, to receive and examine the claims of the
creditors of such estate; and after such hearing, said Appointment
court shall appoint two or more disinterested and judiof commis cious persons, with power to receive, examine, and alsioners to ex. low the claims of the several creditors, which shall be amine claims.
proved, by legal evidence, to be justly due : which commissioners shall be sworn according to law, and shall
cause the times and places of their meetings, for attending Notice to be the creditors to receive and examine their claims, to be given to credi- made known and published, by setting up notifications
thereof in some public places in the town, where the deceased person dwelt, and also by advertising the same in a newspaper, printed in the county where the deceased person dwelt, if any there be, and if none, then in an adjoining county ; and such further notice as the
court of probate may order. And the said court of proTimes within bate shall allow six, ten, or eighteen months, as the cir
cunstances of the estate may require, for the creditors to tors must ex
bring in their claims, and prove their debts ; and after hibit their claims.
the expiration of such limited time, the commissionReport of ers shall make their report, containing a list of all the commission
claims by them allowed ; and such court shall allow them a reasonable compensation for their services, out
of the estate of the deceased. Appeal from SECT. 41. Whenever any person shall be aggrieved, commission
by the doings of the commissioners, in allowing or rejecting a claim or demand, upon an insolvent estate, and the matter in demand shall exceed the value of seventy dollars, such aggrieved person may, within fifteen days after the report of commissioners is returned into court, file his or her motion, praying a review of such claim or demand; and thereupon the judge of probate, with one judge of the county court, and one justice of the peace in the county, shall
, as speedily as may be, hear the parties, and, according to the justice of the case, render judgment to establish, reiect, or correct such report, so far as regards such claim; and the judge of probate shall
conform himself to such judgment in proceeding upon . such estate : from which judgment, and the acceptance of the report of commissioners, there shall be no appeal. And no executor or administrator on an insolvent estate shall, in any other manner, contest the proof or validity of
any claim or demand, allowed or established as aforesaid. Provided, however, that such aggrieved person, shall, at the time of filing his or her motion as aforesaid, give sufficient security, to the acceptance of the judge of probate, that he or she will pay to such judges and justice of the peace, each, at the rate of two dollars per day, and the fees of travel, as established by law, for their services as aforesaid, in case he or she, on a hearing of such claim, shall fail to obtain a judgment for the alteration of such report: otherwise, such expence shall be paid from the insolvent estate.
sect. 42. No suit (except for debts due to the state, or Suits not to be for last sickness and funeral charges) shall be brought brought pendagainst the executor or administrator, of an insolvent ing the settleestate, so long as the same shall be depending for settle- ment of an ment: and in case judgment shall be rendered in a suit, before the estate was represented insolvent, execution shall be stayed till the estate can be settled, according to this act: and the judgment creditor shall receive his aver. age, or proportion of the estate, with the other creditors : and in case that be not paid, on the settlement of the estate, such creditor, shewing the same, and producing a certificate of his average, the court shall order execution to issue on such judgment for the same.
SECT. 43. If on the report of the commissioners, such estate shall appear to be insolvent, the court of probate, to whom such report is made, shall order and set out to the widow of the deceased, if any be, such necessary Necessaries household goods, to be her own property, as are exempt. for widow. ed from execution by law; and the court shall order the widow's dower to be set out according to law : and the residue and remainder of said estate, both real and personal, including the widow's dower, subject to the incumbrance of her estate for life, said court shall order and Order of sale. direct the executor or executors, administrator or administrators, appointed to administer on such estate, to sell, in such manner as shall appear to said court to be best for the creditors; and notice of such sale shall be published in a newspaper printed in the county where the estate lies, if there be any, if not, in an adjoining county : and such executors and administrators shall have power to make sale thereof, and to execute proper conveyances to the purchasers, which shall be valid in law : Provided, that at any time, during the settlement of the estate, the court of probate shall have power to order the sale of the whole, or any part of the insolvent's personal estate.
SECT. 44. And such sales being made, the executors or administrators shall render an account to the court of probate, of the amount thereof, and the monies arising
therefrom; and said court shall direct the payment of
the debts and demands against the estate to be made in Average.
the following manner : the funeral expenses, and incident charges of settling and selling the estate ; debts due for the last sickness of the deceased ; taxes and debts due to the state ; and the debts of the several creditors, as allowed by the commissioners, in proportion to the sum
found to be due. Provision for
SECT. 45. Every creditor, who shall not exhibit and creditors fail- make out his claim to the commissioners, before the exing to present piration of the time limited for that purpose, shall be their claims
forever debarred of his or her debt; unless he or she within limited time.
can shew some other or further estate, not before discovered, and put in the inventory; who, on discovery thereof, shall give notice to the executor or administrator: and in such case, it shall be the duty of the executor or administrator, to make an additional inventory, comprehending such new discovered estate, and present the same to the court of probate: and such estate shall be sold and disposed of as the other estate of the deceased. The judge of probate shall examine the claim of such creditor, and allow such part thereof, as shall appear to be justly due; and after deducting the additional charges, shall order so much of the avails of the new discovered estate to be paid to him, as will make him equal to the other creditors, if sufficient; if not, then the whole shall be paid to him ; but if there should be more than sufficient, then the surplus shall be equally divided and averaged among all the creditors of such insolvent estate.
An Act securing to the State a priority of claim
against the estates of Insolvent Debtors.
E it enacted by the Senate and House of RepSECT. 1.
resentatives, in General Assembly convened, Assignees to That whenever the estate of an insolvent debtor shall be pay debts due in the hands of assignees, either in pursuance of an insolto the state, in vent act, or by voluntary assignment, it shall be the duty
of such assignees, to pay all debts due to this state from such debtor, out of the avails of such estate, in full, before any average or distribution is made among the other creditors.
sect. 2. If the principal, in any bond or contract givSureties har. ing paid the
en to the state, or the treasurer, for the use of the state, state, entitled shall be insolvent, or being deceased, shall not have left
sufficient estate to pay all his debts, and any surety or sure to priority aties, on such bond or contract, shall pay the money due gainst the esto the state, he or they shall have the same priority as to principal. payment of the debt out of the estate of the principal, as is secured to the state.
TITLE 33. Fences.
An Act concerning Fences and Common Fields.
E it enacted by the Senate and House of Rep, SECT. 1.
resentatives, in General Assembly convened, That the proprietors of lands shall make and maintain What shall sufficient fence or fences to secure their particular fields be sufficient and enclosures : and a rail fence, four feet and a half high, a stone wall four feet high, well and substantially erected, and any other fence, either of rails, boards, hedge, ditch, brooks, rivers or creeks, which, (in the judgment of fence-viewers,) shall be equal to a rail fence four feet and a half high, shall be deemed a sufficient and lawful fence.
sect. 2. When adjoining proprietors inclose their land How adjoining in severalty, each shall make and maintain one half of the shah fence divisional fence: and when adjoining proprietors make a divisional fence, of posts and rails, boards, or a hedge fence, each shall be allowed twelve inches from the dividing line to break the ground, to set in the posts and stakes; but the posts shall stand in the dividing line : and in making a stone wall, or other fence, each proprietor shall be allowed to set one half of the width on each side of the dividing line, provided it does not exceed one foot and a half from the dividing line, upon the land of the adjoining proprietor : and, except in the case of house or home lots, four feet shall be allowed for a ditch from the dividing line; provided, the party making the ditch, shall lay the bank upon his own land.
sect. 3. If one proprietor shall first occupy his land, when one proand make the whole fence, and afterwards the adjoining prietor first in proprietor shall occupy the adjoining land, by particular makes the enclosure, he shall purchase one half of the divisional whole fence, fence, and maintain the same; and if the parties do not the other shall agree in dividing and appraising said fence, the party purchase half aggrieved may call on the select-men of the town, or a major part of them, who may divide and set out to each party, his equal proportion of said fence, and determine how much the party, last occupying, shall pay for the fence to the party erecting the same ; an account of which, under the hands of the select-men, shall
How to pro
be sufficient evidence for the party, who erected said fence, to recover the same from the party last occu
pying, as aforesaid. When fence
SECT. 4. Whenever there has been a fence between shall be divid- adjoining proprietors, which has never been divided, ed.
and either party refuses to divide the same, the other
visional fence, shall refuse or neglect to keep it in suffidivisionalfence is not in repair; cient repair, the party aggrieved shall have power to call
on the fence-viewers to view the same, and if they find such fence to be insufficient, they shall, without delay, give notice, in writing, of such insufficiency, to the person or persons who are bound to repair it; and if he or they do not, within six days, put the same in suflicient repair, then it shall be lawful for the party aggrieved to do it; and when the same shall be completed, and judged sufficient, by said fence-viewers, they shall estimate the value of such repairs, and make a certificate thereof, under their hands, with an account of their fees; and the party aggrieved shall have right to recover the same of the party who ought to have made such repairs, and on his neglect or refusal to make payment, for thirty days, after demand made, the party aggrieved may sue for and recover it, by an action on the case,
before proper to try the same. and when one
SECT. 6. No
person shall lay open his inclosures to the lays open his common, and remove the divisional fence, without giving inclosure. three months' notice to the adjoining proprietor; who
shall have a right to purchase the same, on paying the value thereof; and if the parties cannot agree, it shall be
determined by either two of the select-men of the town. How to make
SECT. 7. When the dividing line between adjoining divisional proprietors, shall be a river, brook, pond, or creek, which fence, when it is not a sufficient fence, and it is impracticable to make cannot be pla- the fence in the line, is either party shall refuse to make
a divisional fence, on one side, or the other, then either two of the select-men of the town, shall, on application of either party, desirous of making such fence, determine on