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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.

TITLE XVII.
CHAPTER 75.

of reversion may

SEC. 21. When the term of a widow entitled to dower or other life estate in the lands of a dec eased person, shall expire, the rever- When partition sion may be assigned to the persons entitled to the same, and parti- be made. tion thereof be made, in the manner prescribed in this chapter in relation to other estates of deceased persons.

SEC. 22. When any estate shall be assigned by decree of the court,

non-resident.

or be distributed by commissioners, as provided in this chapter, to any When court may person residing out of this state, and having no agent therein, and it appoint agent for 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.

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, Agent to give before he shall be authorized to receive the same, and the court ap- bond. pointing such agent may examine and allow a reasonable sum out of the profits of the estate for his services and expenses.

CHAPTER 75.

OF PROBATE BONDS AND THE PROSECUTION OF THEM.

SECTION 1, All bonds, required by law to be taken in or by order Probate bonds, of the probate court, shall be for such sum and with such sureties as how taken. 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. SEC. 2. A suit may be brought on the bond of any executor or ad- When suit may ministrator by any creditor, when the amount due to him has been be brought by ascertained and ordered by the decree of distribution to be paid, if of executor. the executor or administrator shall neglect to pay the same when demanded.

creditor on bond

When suit may be brought by

SEC. 3. Such a suit may be brought by any person as next of kin to recover his share of the personal estate, after a decree of the probate court declaring the amount due to him, if the executor or ad- next kin. ministrator shall fail to pay the same when demanded.

SEC. 4. When it shall appear, on the representation of any person When court interested in the estate, that the executor or administrator has failed to may authorize perform his duty in any other particular than those before specified, any person interested to bring the judge of probate may authorize any creditor, next of kin, lega- suit. tee or other person aggrieved by such mal-administration, to bring an action on the bond.

SEC. 5. Whenever an executor or administrator shall refuse or omit when executor, to perform any order or decree made by a judge of probate having &c., shall refuse

to perform order.

CHAPTER 75.

TITLE XVII. jurisdiction, for rendering an account, 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.

Suits on bonds to be in the name of judge of probate.

When judge

may grant permission to sue bond.

SEC. 6. In all suits upon such bonds, the writ and proceedings shall be in the name of the judge of probate, and 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 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.

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. SEC. 8. If judgment shall be rendered for the plaintiff in any suit for benefit of par- 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.

Judgment in suit

ticular persons.

Judgment, &c., in other cases.

Disposition of moneys collected.

When scire fa

secuted.

SEC. 9. If judgmnet 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.

SEC. 10. All moneys received on any execution issued on a judg ment 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.

SEC. 11. Any person who may be injured by the breach of the concias may be pro- ditions 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.

By whom claims for damages for breach of condition may be prosecuted.

SEC. 12. Claims for damages on account of the 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 the representatives of deceased persons, in the same manner as other claims against such deceased persons.

CHAPTER 76.

OF THE CONVEYANCE OF REAL ESTATE BY EXECUTORS AND ADMINISTRA

TORS IN CERTAIN CASES.

TITLE XVII. CHAPTER 76.

veyance by exe

SECTION 1. When any person who is bound by a contract in wri- When court ting to convey any real estate, shall die before making the conveyance, may decree conthe probate court may make a decree authorizing and directing the ex- cutor, &c. ecutor or administrator to convey such real estate to the person entitled thereto, in all cases where such deceased person, if living, might be 1844, p. 113. compelled to execute such conveyance.

SEC. 2. On the presentation of a petition by any person claiming to Notice of petibe entitled to such conveyance from any executor or administrator, tion and hearing. setting forth the facts upon which such claim is predicated, the judge of probate shall appoint a time and place for hearing such petition, and shall order notice of the pendency thereof, and of the time and place of hearing, to be published at least six successive weeks before. such hearing, in such newspaper or newspapers in this state as he may deem necessary.

SEC. 3. At the time and place appointed for such hearing, or at Examination of such other time as the same may be adjourned to, upon proof by af- petitioner, &c. fidavit of the due publication of the notice, the court shall proceed to a hearing, and all persons interested in the estate may appear before the probate court and defend against such petition; and the court may examine on oath the petitioner, and all others who may be produced before him for that purpose.

When decree

SEC. 4. After a full hearing upon such petition, and examination of the facts and circumstances of such claim, if the judge of probate for conveyance shall be satisfied that the petitioner is entitled to a conveyance of the to be made. real estate described in his petition, according to the provisions of this chapter, he shall thereupon make a decree, authorizing and directing the executor or administrator to make and execute a conveyance thereof to such petitioner.

cree.

SEC. 5. Any person interested may appeal from such decree to the Appeal from decircuit court for the same county, as in other cases; but if no appeal be taken from such decree within the time limited therefor by law, or if such decree be affirmed on appeal, it shall be the duty of the executor or administrator to execute the conveyance according to the direction contained in such decree, and a certified copy of the decree shall be recorded with the deed, in the office of the register of deeds in the county where the lands lie, and shall be evidence of the correctness of the proceedings, and of the authority of the executor or administrator to make the conveyance.

SEC. 6. If, upon a hearing in the probate court as herein before when petition provided, the judge of probate shall doubt the right of the petitioner to be dismissed. to have a specific performance of the contract, he shall dismiss the petition without prejudice to the rights of the petitioner, who may at any time thereafter have a bill in chancery to enforce a specific performance of the contract, as hereinafter provided.

Bills in chancery

formance.

SEC. 7. Whenever any person who is bound by a contract in writing to convey any real estate, shall die before making the con- for specific perveyance, the person entitled thereto may have a bill in the court of chancery, to enforce a specific performance of the contract by his heirs, devisees, or the executor or administrator of the deceased party who made such contract.

TITLE XVII.

CHAPTER 76.

SEC. 8. The court of chancery shall hear and determine every such case brought in said court, according to the course of proceedDecree in chan- ings in chancery, and shall make such decree therein as justice and equity shall require.

cery.

Who to be authorized to make conveyance.

Effect of conveyance.

Certified copy of decree may be recorded, effect of record.

SEC. 9. If it shall appear that the complainant is entitled to have a conveyance, the court may authorize and require the executor or administrator of the deceased party to convey the estate in like manner as the deceased party might and ought to have done if living; and if the heirs or devisees of such deceased person, or any of them, shall be within this state, and competent to act, the court may require them, or either of them, instead of the executor or administrator, to convey the estate in the manner before mentioned, or may require them, or either of them, to join in such conveyance with the executor or administrator.

SEC. 10. Every conveyance made in pursuance of a decree of the probate court or the court of chancery, as provided in this chapter, shall be effectual to pass the estate contracted for, as fully as if the contracting party himself was still living, and then executed the con

veyance.

SEC. 11. A copy of the decree for a conveyance made by the probate court, and duly certified and recorded in the registry of deeds in the county where the lands lie, or a copy of the decree of the court of chancery for that purpose, duly certified by the register of said court and recorded as aforesaid, shall give the person entitled to such conveyance, a right to the possession of the lands contracted for, and to hold the same according to the terms of the intended conveyance, in like manner as if they had been conveyed in pursuance of the decree.

SEC. 12. The recording of any decree as provided in the preceding Decree may be enforced by pro section, shall not prevent the court making such decree from enforcing the same by any proper process, according to the course of proceedings thereon (therein).

cess.

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SEC. 13. If the person to whom the conveyance was to be made, shall die before the commencement of proceedings according to the provisions of this chapter, or before the conveyance is completed, any person who would have been entitled to the estate under him as heir, devisee or otherwise, in case the conveyance had been made according to the terms of the contract, or the executor or administrator of such deceased person, for the benefit of the person so entitled, may commence such proceedings, or may prosecute the same if already commenced; and the conveyance shall thereupon be so made as to vest the estate in the same persons who would have been so entitled to it, or in the executor or administrator for their benefit.

TITLE XVIII.

OF TITLE TO REAL ESTATE BY SPECIAL PROVISIONS OF LAW.

Chapter 77. Of the Sale of Lands for the payment of Debts, by Ex-
ecutors, Administrators and Guardians.

Chapter 78. Of the sale of Lands of Minors and other Persons under
Guardianship, and securing the Proceeds for their

Use.

Chapter 79. Of the sale of Real Estate on Executions.

TITLE XVIII.
CHAPTER 77.

CHAPTER 77.

OF THE SALE OF LANDS FOR THE PAYMENT OF DEBTS, BY EXECUTORS,
ADMINISTRATORS AND GUARDIANS.

When real estate

debts.

SECTION 1. When the personal estate of any deceased person, in the hands of his executor or administrator, shall be insufficient to pay may be sold for all his debts, with the charges of administering his estate, his execu- payment of tor or administrator may sell his real estate, for that purpose, upon obtaining a license therefor, and proceeding therein in the manner 1843, p. 172. hereinafter provided.

to set forth.

SEC. 2. In order to obtain such license, the executor or adminis- Petition to be trator shall present a petition to the probate court from which he re- presented; what ceived his appointment, setting forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased as far as the same can be ascertained; a description of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions or lots; which petition shall be verified by the oath of the party presenting the same.

SEC. 3. If it shall appear by such petition that there is not sufficient personal estate in the hands of the executor or administrator to pay the debts outstanding against the deceased, and the expenses of administration, and that it is necessary to sell the whole or some portion of the real estate for the payment of such debts, the judge of probate shall thereupon make an order, directing all persons interested in the estate to appear before him at a time and place therein to be specified, not less than six weeks, and not more than ten weeks from the time of making such order, to show cause why a license should not be granted to the executor or administrator applying therefor, to sell so much of the real estate of the deceased as shall be necessary to pay such debts,

6 Mass., 149.

Order to show

cause why li cense should not

be granted.

lished.

SEC. 4. A copy of such order to show cause shall be personally Copy of order to served on all persons interested in the estate, at least fourteen days be served or pub before the time appointed for hearing the petition, or shall be published at least four successive weeks in such newspaper as the court

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