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When tract of greater value

ty's share, and

ed, may be set

ties.

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.

(3001.) SEC. 11. When any tract of land, messuage or than either par tenement shall be of greater value than either party's share cannot be divid in the estate to be divided, and cannot be divided without off to one of par- injury to the same, it may be set off by the Commissioners appointed to make partition, to either of the parties who will accept it, giving preference as prescribed in the preceding section: Provided, the party so accepting it shall pay or secure 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.

When Estate of

deceased lies in

Arst severed.

(3002.) SEC. 12. When partition of real estate among heirs common, to be or devisees shall be required, or dower is to be assigned to a widow in the same, and such real estate shall be in common and undivided with the real estate of any other person, the Commissioners shall first divide and sever the estate of the deceased from the est: te with which it lies in common, and such division so made, an established by the Probate Court, shall be binding on all the p rsons interested.

Guardians for Mi

rors, etc., and

residents.

(3003.) SEC. 13. Before any p rtition shall be made, or any Agents for non- estate divided, as provided in this hapter, 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.

Report of Com. missioners and

thereon.

(3004.) SEC. 14. The Commissioners shall make report of proceedings their proceedings to the Probate Court in writing; and 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.

may be dispens

(3005.) SEC. 15. When the Probate Court shall make a When partition decree, assigning the residue of any estate to one or more ed with. 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.

ing to advanco

mined.

(3006.) SEC. 16. All questions as to advancements made or questions relat alleged to be made by the deceased to any heirs, may be ment how deterheard 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.

(3007.) Sec. 17. Any person aggrieved by any order, decree Appeal. or denial of a Probate Court, in pursuance of the provisions of this chapter, may appeal therefrom as provided in other

cases.

conclusive.

(3008.) SEC. 18. The partition, when finally confirmed and Partition when established, shall be conclusive on all the heirs and devisees, and all persons claiming under them, and upon all persons. interested.

etc., may pay ex

tion.

(3009.) SEC. 19. If, at the time of the partition or distri-When Executor, bution of any estate as provided in this chapter, the executor penses of partior 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.

to be paid by

ed.

(3010.) SEC. 20. But if there are no effects in the hands of When expenses the executor or Administrator which may be lawfully applied parties interestto 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 the proportions shall be settled and allowed by the Probate Court; and if any one shall neglect to pay the sum assessed on him by the Court, an execution may be issued therefor against him by such Court, in favor of the persons entitled to the same.

When partition of reversion may be made.

When Court may appoint Agent for non-resident.

Agent to give
Bond.

(3011.) SEC. 21. When the term of a widow entitled to dower or other life estate in the lands of a deceased person shall expire, the reversion may be assigned to the persons entitled to the same, and partition thereof be made, in the manner prescribed in this chapter in relation to other estates of deceased persons.

(3012.) SEC. 22. When any estate shall be assigned by decree of the Court, or be distributed by Commissioners, as provided in this chapter, to any person residing out of this State, and having no agent therein, and it shall be necessary that some person should be authorized to take possession and charge of the same, for the benefit of such absent person, the Court may appoint an agent for that purpose, and authorize him to take charge of such estate, as well as to act for such absent person in the partition and distribution.

(3013.) SEc. 23. Such agent shall give a bond to the Judge of Probate, to be approved by him, faithfully to manage and account for such estate, before he shall be authorized to receive the same, and the Court appointing such agent may allow a reasonable sum out of the profits of the estate for his services and expenses.

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Chapter Seventy-Five of Revised Statutes of 1846.

how taken.

(3014.) SECTION 1. All bonds, required by law to be taken Probate Bonds, in or by order of the Probate Court, shall be for such sum, and with such sureties as the Judge of Probate shall direct, except when the law otherwise prescribes; and such bonds shall be for the security and benefit of all persons interested, and shall be taken to the Judge of Probate, except where they are required by law to be taken to the adverse party.

be brought by

of Executor, etc.

(3015.) SEC. 2. A suit may be brought on the bond of any When suit may executor or Administrator by any creditor, when the amount Creditor on Bond due to him has been ascertained and ordered by the decree of distribution to be paid, if the executor or Administrator shall neglect to pay the same when demanded.

be brought by

(3016.) SEC. 3. Such a suit may be brought by any person When suit may as next of kin, to recover his share of the personal estate, next of kin. after a decree of the Probate Court declaring the amount due

to him, if the executor or Administrator shall fail to pay the same when demanded.

authorize any

to bring suit.

(3017.) SEC. 4. When it shall appear, on the representation When Court may of any person interested in the estate, that the executor or person interested Administrator has failed to perform his duty in any other particular than those before specified, the Judge of Probate may authorize any creditor, next of kin, legatee or other person aggrieved by such mal-administration, to bring an action on the bound.

etc., shall refuse

Bond may be

(3018.) SEC. 5. Whenever an executor or Administrator When Executor, shall refuse or omit to perform any order or decree made by a to perform order, Judge of Probate having jurisdiction, for rendering an account, sued. or upon a final settlement, or for the payment of debts, legacies, or distributive shares, such Judge of Probate may cause the bond of such executor or Administrator to be prosecuted, and the moneys collected thereon shall be applied in satisfaction of such order or decree, in the same manner as such moneys ought to have been applied by such executor or Administrator.

be in the name of

(3019.) SEC. 6. In all suits upon such bonds, the writ and Suits on Ponds to proceedings shall be in the name of the Judge of Probate, and Judge of Probate. when the action is brought for the benefit of any particular person as creditor, next of kin, or legatee, as provided in this chapter, the execution shall express that it is for the use of

When Judge may grant permission to sue Bond.

Judgment in suit for benefit of

sons.

Judgment, etc., in other cases.

moneys collected.

such creditor, next of kin, or legatee, and in such case the person for whose use the action is brought shall be deemed the plaintiff.

(3020.) SEC. 7. On the application of any person authorized by this chapter to commence a suit on such bond, the Judge of Probate may grant permission to such person to prosecute the same, and shall thereupon furnish to the applicant, on his paying the legal fees, a certified copy of the bond, together with a certificate that permission has been granted to prosecute it, and the name and residence of the applicant.

(3021.) SEC. 8. If judgment shall be rendered for the plaintiff in any suit upon such bond, brought for the benefit of any particular person, the Court shall award execution for the amount due to such person, with costs of suit.

(3022.) SEC. 9. If judgment shall be rendered for the ́plaintiff in any suit upon such bond, brought by the Judge of Probate for any breach thereof, in not performing any order or decree of the Judge of Probate, as mentioned in the fifth section of this chapter, execution shall be awarded for the full value of all the estate of the deceased that shall have come to the hands of such executor or Administrator, and for which he shall not have satisfactorily accounted, and for all such damages as shall have been occasioned by his neglect or mal-administration, with costs of suit.

Disposition of (3023.) SEC. 10. All moneys received on any execution. issued on a judgment in favor of the Judge of Probate, as mentioned in the preceding section, shall be paid over to the co-executor or co-Administrator, if there be any, or to such person, other than the defendant therein, as shall then be the rightful executor or Administrator, and such moneys shall be assets in his hands to be administered according to law.

When scire facias may be prosecuted.

By whom claims for damages for breach of condi

ecuted.

(3024.) SEC. 11. Any person who may be injured by the breach of the conditions of such bond, may afterwards, from time to time, sue out and prosecute a scire facias in his own name, on the judgment which may have been rendered for the penalty of such bond; and in such scire facias shall assign and set forth the breaches on which he relies, and may therein recover such damages as he may prove, with costs.

(3025.) SEC. 12. Claims for damages on account of the tion may be pros- breach of the conditions of any bond, may be prosecuted by any executor, Administrator or guardian, in behalf of those he may represent, in the same manner as by persons living, and of full age, and such claims may be prosecuted against

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