the increase, nor shall they sustain any loss, by the decrease, without their fault, of any part of the estate; but they shall account for such increase, and shall be allowed for such decrease, on the settlement of their accounts.

On the settlement of the accounts of executors or administrators, the surrogate shall allow to them for their services, over and above their expenses:

1. For receiving and paying out all sums of money not exceeding one thousand dollars, at the rate of five dollars per

cent.

2. For receiving and paying any sums exceeding one thousand dollars, and not amounting to five thousand dollars, at the rate of two dollars and fifty cents per cent.

3. For all sums above five thousand dollars, at the rate of one dollar per cent.

And in all cases such allowance shall be made for their actual and necessary expenses, as shall appear just and reasonable.

Where any provision shall be made by any will, for specific compensation to an executor, the same shall be deemed a full satisfaction for his services, in lieu of the allowance aforesaid, or his share thereof; unless such executor shall, by a written instrument to be filed with the surrogate, renounce all claim to such specific legacy.

If, upon being required by any surrogate to render an account, an executor or administrator desires to have the same finally settled, he may apply to the surrogate for a citation, which the surrogate shall issue, requiring the creditors and next of kin of the deceased, and the legatees, if there be any, to appear before him, on some day therein to be specified, and to attend the settlement of such account.

The citation shall be served personally on all those to whom it shall be directed, living in the county of the surrogate, at least fifteen days before the return thereof; and upon those living out of the county, or who, whose residence, may be unknown, either personally, fifteen days previously, or by publishing the same in a newspaper printed in the county, at

least four weeks before the the return thereof, and in such newspapers printed in any other counties, where any creditors, or other persons interested in the estate of the deceased, may reside, as the surrogate, upon due enquiry into the facts, shall direct.

If there be any such creditors or other persons interested, residing in any other state of the United States, or in either the provinces of Canada, the citation shall be published once in each week for three months, in the state paper, unless such citation be personally served on such creditors, at least forty days before the return thereof; and if there be any such creditors, or other persons interested, residing out of the United States, and out of the provinces of Canada, the citation shall be published as aforesaid for six months.

Any creditors, legatees, or other persons interested in the estate of the deceased as next of kin or otherwise, may attend the settlement of such account, and contest the same; and they, and the executor or administrator, shall have process, to be issued by such surrogate, to compel the attendance of witnesses.

The hearing of the allegations and proofs of the respective parties, may be adjourned, from time to time, as shall be necessary. And the surrogate may appoint one or more auditors to examine the accounts presented to him, and to report thereon, subject to his confirmation; and may make a reasonable allowance to such auditors, not exceeding two dollars per day, to be paid out of the estate of the deceased.

The final settlement of such account, and the allowance thereof, by the surrogate, or upon appeal, shall be deemed conclusive evidence, against all creditors, legatees, next of kin of the deceased, and all persons in any way interested in the estate, upon whom the said citation shall have been served, either personally or by publication, as herein directed, of the following facts, and of no others:

1. That the charges made in such account for monies paid to creditors, to legatees, to the next of kin, and for necessary expenses, are correct.

2. That such executor or administrator has been charged all the interest for monies received by him, and embraced in his account, for which he was legally accountable.

3. That the monies stated in such account, as collected, were all that were collectable, on the debts stated in such account, at the time of the settlement thereof.

4. That the allowances in such account, for the decrease in the value of any assets, and the charges therein for the increase in such value, were correctly made.

The last preceding section shall not extend to any case, where an executor is liable to account to a court of equity, by reason of any trust, expressly created by any last will or

testament.

No appeal shall be allowed from the decree of the surrogate, for the final settlement of such account, unless the same shall be entered, within three months, after such decree shall have been recorded.

Whenever the authority of an executor or administrator shall cease, or be revoked or superseded for any reason, he may be cited to account before a surrogate, at the instance of the person succeeding to the administration of the same estate, in like manner, as herein before provided for a credi

tor.

In every such case the executor or administrator may cite the person succeeding to the administration of the same estate, to attend an account and settlement of his proceedings before the surrogate, by giving such reasonable notice as the surrogate shall direct, and by serving and publishing, in the manner herein before stated, a citation to creditors and others; and such settlement and account shall have the like effect in all respects as in the case of a settlement at the instance of a creditor.

Whenever an account shall be rendered and finally settled, (except under the 69th and 70th sections of art. 3, tit. 3, chap. 6), if it shall appear to the surrogate that any part of the estate remains to be paid or distributed, he shall make a decree for the payment and distribution of what shall so re

main, to and among the creditors, legatees, widow, and next of kin to the deceased, according to their respective rights; and in such decree shall settle and determine all questions concerning any debt, claim, legacy, bequest, or distributive share; to whom the same shall be payable; and the sum to be paid to each person.

In such order the surrogate may, upon the consent in writing of the parties who shall have appeared, direct the delivery of any personal property, which shall not have been sold, and the assignment of any mortgages, bonds, notes, or other demands, not yet due, among those entitled to payment or distribution, in lieu of so much money, as such property or securities may be worth, to be ascertained by the appraisement and oath of such persons, as the surrogate shall apppoint for that purpose.

Every person to whom any such securities may be assigned, may sue and recover upon the same, at his own costs and charges, in the name of the executor or administrator making such assignment, or otherwise, in the same manner as such executor or administrator might have done.

If upon the representation of an executor or administrator, or otherwise, it shall appear to the surrogate, that any claim exists against the estate of the deceased, which is not then due, or upon which a suit is then pending, he shall allow a sum sufficient to satisfy such claim, or the proportion to which it may be entitled, to be retained for the purpose of being applied to the payment of such claim when due, or when recovered, or of being distributed according to law. The sum so retained may be left in the hands of the executor or administrator, or may be directed by the surrogate to be deposited in some safe bank, to be drawn only on the order of the surrogate.

Where the deceased shall have died intestate, the surplus of his personal estate remaining after payment of debts; and where the deceased left a will, the surplus remaining after the payment of debts and legacies, if not bequeathed, shall be

distributed to the widow, children, or next of kin of the deceased, in manner following:

1. One third part thereof to the widow, and all the residue by equal portions among the children, and such persons as legally represent such children, if any of them shall have

died before the deceased.

2. If there be no children, nor any legal representatives of them, then one moiety of the whole surplus shall be allotted to the widow, and the other moiety shall be distributed to the next of kin of the deceased, entitled under the provisons of this section.

3. If the deceased leave a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus; but if there be a brother or sister, nephew or niece, and no descendant or parent, the widow shall be entitled to a moiety of the surplus as above provided, and to the whole of the residue where it does not exceed two thousand dollars; if the residue exceed that sum, she shall receive, in addition to her moiety, two thousand dollars; and the remainder shall be distributed to the brothers and sisters, and their representatives.

4. If there be no widow, then the whole surplus shall be distributed equally to and among the children, and such as legally represent them.

5. In case there be no widow, and no children, and no representatives of a child, then the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives.

6. If the deceased shall leave no children, and no representatives of them, and no father, and shall leave a widow and a mother, the moiety not distributed to the widow shall be distributed in equal shares to his mother, and brothers and sisters, or the representatives of such brothers and sisters; and if there be no widow, the whole surplus shall be distributed in like manner to the mother, and to the brothers and sisters, or the representatives of such brothers and sisters.

7. If the deceased leave a father, and no child or descend