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be exposed to injury, may make a complaint in writing to the court of probate in which the settlement of the estate is pending ; and said court shall give notice to such executor or administrator to appear before him, and answer to such complaint : which notice shall be served, by reading the same in his hearing, or leaving a copy at his usual place of abode, at least six days before the day of trial
; and if said court, on due enquiry, shall find the facts stated in the complaint to be true, he shall remove such executor or adıninistrator from office: and in such case, and in all cases, where the surety in the administration bond has become liable on such bond, he shall have liberty to insti- , tute any proper suit against his principal for his security,
SECT. 23. If the executor or administrator, so remov. New executor ed from office, be a sole executor or administrator, the or administra
tor to be apcourt of probate shall appoint an administrator with the
pointed. will annexed, of the goods not administered, or an administrator of the goods not administered, as the case may require, and as in the case of the death of an executor, or administrator; and such administrator, so appointed, shall have power, and it shall be his duty, to ask for, demand, and receive of the executor or administrator so removed, his heirs, executors or administrators, all the goods and effects of the deceased ; and also, all books
How they shall
proceed. of account, bonds, notes, or other securities, documents or papers, that concern the estate, and may be wanted in the settlement of it: and all suits in law or equity pending before any court, in favor of, or against, the executor or administrator so removed, shall survive to, and may be prosecuted by, or against, the administrator, appointed to succeed him.
SECT. 24. Whenever an administration bond shall be Further secufound to be insufficient, it shall be the duty of the court of rity may be
required. probate, who took the same, to require further security of the executor or administrator; and on his neglect or refusal to find such further security, to remove him from office, and to appoint an administrator to succeed him, as is heretofore provided in this act.
SECT. 25. When the debts and charges, allowed by When sale of the court of probate, in the settlement of an intestate es- lands shall be tate, or of a testate estate, where sufficient provision is ordered. not made by the will of the testator, shall exceed the value of the personal estate, it shall be lawful for such court to order the sale of so much of the real estate as shall be sufficient to pay the same, with incident charges of sale, in such manner as shall appear to him to be most for the benefit of such estate ; which sales shall be good and effectual in law.
What personal SECT. 26. When the personal estate of the deceased, estate shall be shall not be sufficient for the payment of his debts, beset to the widow.
sides household goods, exempted from execution, the court of probate that granted administration on the estate, shall set out to the widow such pecessary household goods as are exempted from execution, to be her prop
erty. When real sect. 27. When the debts and charges, allowed by estate may be sold, any court of probate, in the settlement of an intestate esin preference' tate, or of a testate estate, (where sufficient provision is to personal es- not made by the will of the testator,) cannot be fully tate.
paid out of the personal estate, without prejudice to the widow or heirs, by depriving them of their necessary stock and implements for farming, or other business, for upholding life, such court shall have power and authority to order payment of such part of the debts and charges as he shall judge reasonable, by disposing of the lands or real estate, for such purpose, in such way and manner, as he shall judge to be most equitable for the widow and
heirs, or devisecs, of such estate. If estate of one
SECT. 28. When any testator, by his last will and testadevisee or legatee is taken ment, shall give any personal or real estate to any person to pay debts, or persons, and the same, or any part thereof, shall be the others shall taken and sold for the payment of the testator's debts, as contribute.
the law provides, all the other legatees, devisees, or heirs, shall refund their average or proportional part of such loss, to such person or persons, from whom such legacy or devise shall be taken away; and he or they may
maintain an action at law to compel such contribution. Distribution
SECT. 29. The courts of probate shall make, and they to be made;
are hereby empowered to make, a just division or distribution of all the estate, both real and personal, of any person dying intestate, after deducting all the expences and charges, payable out of the same, which distribution shall be made by three sufficient freeholders, or any two
of them, to be appointed by the court of probate, and unless persons sworn according to law; unless all the persons interested interested
in any estate, being legally capable to act, shall mutually agree upon a division. agree upon a division, and present the same in writing,
under their hands and seals, to the court of probate ; in which case, such agreement shall be accepted and received for a settlement of such estate, and be accounted good and valid in law, being acknowledged, by the parties subscribing, before said court of probate, or a justice
of the peace, and recorded in said court. Mode of dis SECT. 30. The distribution of the estate shall be in the tribution:
manner following, that is to say, oue third part of the personal estate to the wife of the intestate, (if any there be)
forever; and one third of the lands and houses during life, where she shall not have been otherwise endowed before marriage : and all the residue and remainder of the realand personal estate, by equal proportions, according to its value at the time of the distribution, to and among the children, and such as legally represent them, to the children: if 'any of them are dead; excepting children, who shall receive estate, by settlement of the intestate, in his lifetime, equal to the shares of the others; and children advanced, by settlement or portion, not equal to the shares of the rest, shall have so much of the estate as shall make all the shares equal; and the estate shall be so divided, as that the male heirs shall have their part in the real estate, so far as the estate will allow ; but whenever the court shall find, that it will best accommodate the heirs of any estate, to distribute part of the personal estate to the male heirs, and part of the real estate to the female heirs, such court shall order such distribution to be made accordingly : provided, that where it shall appear to the court of probate, that any estate in houses and lands cannot be divided among all the children, without great prejudice and inconvenience, said court may order the whole to be set to the eldest son, if he accept it, or, on his resusal, to any other of the sons, successively; and the son accepting it, shall pay to the other children of the deceased, their equal and proportionable shares of the true value of such houses and lands, upon a just appraisement, to be made by three sufficient freeholders, on oath, or shall give security to pay the same in some convenient time, as the court shall limit, with lawful interest.
SECT. 31. And if any of the children die before he or she come of age, and before marriage, or before any legal disposition thereof, and before marriage, the portion of such child deceased, shall be equally divided among the surviving children, and their legal representatives.
SECT. 32. If there be no children, or any legal repre- to brothers sentatives of them, then one moiety of the personal es- and sisters ; tate shall be set out to the wife forever; and one third of the real estate for the term of life; and the residue of the estate, both real and personal, except as hereinafter provided, shall be distributed and set off equally, to the brothers and sisters of the intestate, of the whole blood, and those who legally represent them; and if there be no such kindred, then to the parent or parents; and if there
to parents ; be no parent, then equally to every of the brothers and sisters of the half blood, and those who legally represent them ; and if there be no parent, and no brother or sister, or those who legally represent them, then equally to the next of kin, in equal degree: kindred of to next of kin.
the whole blood to take in preference to kindred of the half blood, in equal degree: no representatives to be
admitted among collaterals, after the representatives of Ancestral es
brothers and sisters. Provided, that all the real estate tate.
of the intestate, which came to him by descent, gift, or devise, from his or her parent, ancestor, or other kindred, shall belong equally to the brothers and sisters of the intestate, and those who legally represent them, of the blood of the person or ancestor from whom such estate came or descended ; and in case there be no brothers and sisters, or legal representatives as aforesaid, then equally to the children, and those who legally represent them, of such person or ancestor; and if there be no such chil. dren or representatives, then equally to the brothers and sisters of such person or ancestor, and those who legally represent them; and if there be none such, then it shall be set off and divided in the same manner as other real estate. And if there be no wife, all the estate, shall be divided among the children and heirs, in manner afore
said. Heirs and de
SECT. 33. And every one, to whom any share or part visees to give shall be distributed, or any estate devised or bequeathed, bonds to refund in case of debts where no provision is made for the payment of debts out
of any particular estate, by will, shall give bond, with surety, before such court of probate, if debts should asterwards be made to to appear, and be allowed, after the settlement of such estate, to refund to the executor or administrator, his proportional part thereof, and of the
charges of the executor or administrator. When dower SECT. 34. And the widow's dower, or thirds, in the reshall be distri- al estate, at the expiration of her term, shall, also, be disbuted.
tributed as aforesaid, is the same remain undivided. Division a SECT. 35. When real estate, given by will, is ordered, mong joint devisees.
by the testator, to be divided among two or more devisees, and no person is appointed to divide the same, or the person appointed neyiccts, or refuses to make the di. vision, or dies before he has made it, the court of probate before which the will is proved and approved, shall appoint three freeholders, as the law provides, for the dividing of intestate estates, to make division thereof, according to the will; who shall make return of their doings to such court; unless such devisees, being legally capable to act, shall agree upon a division in the same manner as is herein before provided, in regard to intes
tate estates, which they shall have power to de. Right of ap
SECT. 36. And if any person shail be aggrieved, by any peal. order, sentence, denial, or decree or judyrnent, of a court
of probate, in the settlement of an estate, such person may appeal therefrom to the superior court in the coun
ty where such court of probate is holden ; and every person so appealing, shall give bond, with sufficient surety, to prosecute such appeal to effect, and answer all damage in case he fail to make his plea good. And all persons who are aggrieved as aforesaid, who are of full age, and present, or have legal notice to be present, Time of apshall appeal to the next superior court, and not after- peal limited. wards : and if they have no notice to be present, and are not present, then they shall appeal within eighteen months.
SECT. 37. All persons aggrieved as aforesaid, who shall be under the age of twenty-one years, at the time of making the order, or rendering the judgment complained of, shall appeal within eighteen months after they shall arrive to full age. All persons belonging to this state, who shall be absent at the time of making the order, or rendering the judgment, and all persons not inhabitants of this state, who are not present at the time of making such order, or rendering such judgment, shall appeal within three years thereafter : provided, that persons who are inhabitants of the state, and absent from the same, shall, if they return to the state, appeal within one year after such return.
SECT. 38. The estates of persons condemned to death, Disposition of and executed, shall be disposed of as intestate estates by etates of perlaw are, after deducting the costs of their prosecution,
sons executed. imprisonment, and execution.
sect. 39. Administration shall not be granted upon Limitation of the estate of any deceased person, after the expira- granting ad
ministration, tion of seven years from his death. No will shall be allowed to be proved, by any court of probate, after the and proving expiration of ten years from the death of the testator : will. provided, that where any minor is interested in the estate, three years shall be allowed after his arrival to full age, to take out administration thereon, or to prove
and allow the will : and provided, that the times in this section limited, for the purposes aforesaid, shall, in no case, begin to run at, or be computed from, any time prior to the first day of June, one thousand eight hundred and twentyone.
SECT. 40. When it shall appear to the executor or ad- How to proministrator, that the estate will probably be insufficient coed, when
estate is into pay the debts of the deceased, he shall represent to the court of probate, which proved the will, or granted administration, the condition and circumstances of such estate ; and such court shall proceed to settle it as an. insolvent estate; and shall direct the executor or administrator to give public notice to all persons interested in such estate, to appear, if they see cause, at such time and