CHAPTER 77. such foreign guardian may be licensed to sell the real estate, for the TITLE XVIII payment of the debts of the ward, and the charges of managing his estate, in the same manner, and upon the same terms and conditions May be licensed as are prescribed in this chapter in the case of a guardian appointed to ward. in this state, excepting in the particulars wherein a different provision is hereinafter made. to sell real estate not. SEC. 45. When it shall appear to the judge of probate, that the When bond reforeign guardian is bound, with sufficient surety or sureties, in the quired and when state or country where he was appointed, to account for the proceeds of such sale, and an authenticated copy of such bond shall be filed in the probate court, no further bond shall be required here; otherwise, he shall give bond, in like manner as is prescribed in this chapter in the case of sales by foreign executors or administrators. SEC. 46. When such foreign guardian is authorized to sell more than is necessary to pay the debts and charges, he shall, before making the sale, give bond with sufficient surety or sureties, to the judge of probate, with condition to account before such judge, for all the proceeds of the sale that shall remain, after payment of the said debts and charges, and to dispose of the same according to law. When licensed necessary to pay debts, bond to be given. to sell more than estate. SEC. 47. In all cases of a sale by an executor, administrator or Surplus to be guardian, of part or the whole of the real estate of his testator, in- considered real testate or ward, under a license granted by any probate court, by virtue of the provisions of this chapter, whether such executor, administrator or guardian was appointed in this state or elsewhere, the surplus of the proceeds of the sale, remaining on the final settlement of the accounts, shall be considered as real estate, and disposed of among the persons, and in the same proportions, as the real estate would have been by the laws of this state, if it had not been sold. 3 Mass.. 518. 9 Pick., 130. Guardian to take SEC. 48. Every guardian, whether appointed in this state or elsewhere, when licensed to sell real estate, as provided in this chapter, oath before sale. shall, before making such sale, take and subscribe an oath like that required in the same case of an executor or administrator; and notice shall be given, and the proceedings shall be conducted in the like manner as is prescribed in the case of an executor or administrator, and the evidence of giving such notice may be perpetuated in the same manner. may award costs. SEC. 49. If any person shall appear and object to the granting of When court any license prayed for under the provisions of this chapter, by an executor, administrator or guardian, and if it shall appear to the court, either that the petition, or the objection thereto is unreasonable, the court may, in its discretion, award costs to the party prevailing, and may enforce the payment thereof. ver estate sold. SEC. 50. No action for the recovery of any estate sold by an execu- Limitations of tor or administrator under the provisions of this chapter, shall be main- actions to reco tained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within five years next after the sale; and no action for any estate sold in like manner by a guardian shall be maintained by the ward, or by any person claiming under him, unless it be commenced within five years next after the termination of the guardianship, except as hereinafter provided. SEC. 51. The preceding section shall not apply to persons out of the Minors and othstate, nor to minors, or others under any legal disability to sue, at the ers under disa time when the right of action shall first accrue; but all such persons bility. CHAPTER 78. TITLE XVIII shall (may) commence such action at any time within five years after the removal of the disabilty, or their return to this state. Sale not avoided on account of certain irregular SEC. 52. In case of an action relating to any estate sold by an executor, administrator or guardian, in which an heir or other person ities when title claiming under the deceased, or in which the ward, or any person claiming under him shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear, contested by ward. 1. That the executor, administrator, or guardian was licensed to make the sale by the probate court having jurisdiction: 2. That he gave a bond which was approved by the judge of probate, in case a bond was required upon granting a license: 3. That he took the oath prescribed in this chapter: 4. That he gave notice of the time and place of sale as in this chapter prescribed: and, 5. That the premises were sold accordingly, and the sale confirmed by the court, and that they are held by one who purchased them in good faith. SEC. 53. If there shall be any neglect or misconduct in the proceedings of the executor, administrator or guardian, in relation to such sale, by which any person interested in the estate shall suffer damages, such aggrieved party may recover the same in a suit on the probate bond, or otherwise, as the case may require. SEC. 54. If the validity of a sale made by an executor, administrator or guardian, shall be drawn in question by any person claiming adversely to the title of the deceased testator or intestate, or of the ward, or claiming under any title that is not derived from or through the deceased person or the ward, the sale shall not be held void on account of any irregularity in the proceedings; provided, it shall appear that the executor, administrator or guardian, was licensed to make the sale by a probate court having jurisdiction, and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the premises. SEC. 55. Any executor, administrator or guardian, who shall fraudulently sell any real estate of his testator, intestate or ward, contrary to the provisions of this chapter, shall be liable in double the value of the land sold, as damages to be recovered in an action on the case by the person having an estate of inheritance therein. CHAPTER 78. When guardian may sell real estate of ward for support, &c. OF THE SALE OF LANDS OF MINORS AND OTHER PERSONS UNDER GUARDI- SECTION 1. When the income of the estate of any person under guardianship, whether as a minor, insane person or spendthrift, shall not be sufficient to maintain the ward and his family, or to educate the ward when a minor, or the children of such insane person, or spendthrift, his guardian may sell his real estate for that purpose upon obtaining a license therefor, and proceeding therein as provided in this chapter. TITLE XVIII. CHAPTER 78, SEC. 2. When it shall appear satisfactorily to the court upon the petition of any such guardian, that it would be for the benefit of his ward that his real estate, or any part thereof should be sold, and the When guardian proceeds thereof put out on interest, or invested in some productive buy sell and put stock, his guardian may sell the same for that purpose, upon obtaining interest. a license therefor, and proceeding therein as hereinafter provided. out proceeds at proceeds of sale SEC. 3. If the estate is sold for the purpose mentioned in the first Application of section in (of) this chapter, the guardian shall apply the proceeds of for support, &c. the sale to such purpose, so far as necessary, and shall put out the residue, if any, on interest, or invest it in the best manner in his power, until the capital shall be wanted for the maintenance of the ward and his family, or for the education of the ward when a minor, or the children of such insane person or spendthrift, in which case the capital may be used for that purpose, as far as may be necessary, in like manner as if it had been personal estate of the ward. proceeds of ward. settlement con SEC. 4. If the estate is sold for the purpose of putting out or invest- Investment of ing the proceeds, as provided in the second section of this chapter, sale for bencfit of the guardian shall make the investment according to his best judgment, or in pursuance of any order that may be made by the probate court. SEC. 5. In every case of the sale of real estate, as provided in this Residue on final chapter, the residue of the proceeds, if any, remaining upon the final sidered as real settlement of the accounts of the guardianship, shall be considered as real estate of the ward, and shall be disposed of among the same persons, and in the same proportions as the real estate would have been, if it had not been sold. estate. cense. SEC. 6. In order to obtain a license for such sale, the guardian shall Petition for li present to the probate court of the county in which he was appointed guardian, a petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale; which petition shall be verified by the oath of the petitioner. SEC. 7. If it shall appear to the court from such petition, that it is necessary, or would be beneficial to the ward, that such real estate or some part of it should be sold, the court shall thereupon make an order, directing the next of kin of the ward, and all persons interested in the estate, to appear before such court at a time and place therein to be specified, not less than four nor more than eight weeks from the time of making such order, to show cause why a license should not be granted for the sale of such estate. Order to show cause. order. Sec. 8. A copy of such order shall be personally served on the next Service, &c., of of kin of such ward, and on all persons interested in the estate, at least fourteen days before the hearing of the petition, or shall be published at least three successive weeks in such newspaper circulating in the county, as the court shall specity in such order. When certificate of superintend. ent of poor nec SEC. 9. No such license shall be granted for the sale of any real estate of a ward, excepting that of a minor, unless the superintendents of the poor of the county in which the ward is an inhabitant, shall essary. certify in writing their approbation of the proposed sale. SEC. 10. The judge of probate, at the time and place appointed in Hearing of peti. such order, or at such other time as the hearing shall be adjourned to, tion. upon proof of the due service or publication of the order, and upon filing the certificate of approbation of the superintendents of the poor, when necessary, shall hear and examine the proofs and allegations of the petitioner, and of the next of kin, and all other persons interested in the estate, who shall think proper to oppose the application, TITLE XVIII. CHAPTER 78. Examination of guardian, &c. When license to be granted. Bond to be given by guardian. Guardian to take oath before fixing time and place of sale. Notice of sale, &c. Licenze not be in force more than one year. When foreign guardian may file copy of his appointment. Foreign guardian to sell. SEC. 11. On such hearing the guardian may be examined on oath, and witnesses may be produced and examined by either party, and process to compel their attendance and testimony may be issued by the judge of probate, in the same manner, and with the like effect as in other cases. SEC. 12. If, after a full examination, it shall appear to the court, either that it is necessary, or that it would be for the benefit of the ward, that the real estate, or any part of it should be sold, such court may grant a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward and his family, or for the education of the ward or his children, or in order that the proceeds may be put out or invested as aforesaid. SEC. 13. Every guardian licensed to sell real estate as aforesaid, shall, before the sale, give bond to the judge of probate, with sufficient surety or sureties to be approved by such judge, with condition to sell the same in the manner prescribed by law for sales of real estate by executors and administrators, and to account for and dispose of the proceeds of the sale, in the manner provided by law. SEC. 14. Such guardian shall also, before fixing on the time and place of sale, take and subscribe an oath in substance like that required in the preceding chapter, to be taken by an executor, administrator or guardian, when licensed to sell real estate pursuant to the provisions of that chapter. SEC. 15. He shall also give public notice of the time and place of sale, and shall proceed therein in like manner as is prescribed in the case of a sale by a guardian in the preceding chapter, and the evidence of the giving of such notice may be perpetuated in like manner, and with the same effect, as is provided in like cases in that chapter. SEC. 16. No license granted in pursuance of this chapter, shall be in force more than one year after granting the same. SEC. 17. When any minor, insane person or spendthrift, residing without this state, shall be put under guardianship in the state or country in which he resides, and shall have no guardian appointed in this state, the foreign guardian may file an authenticated copy of his appointment in the probate court, in any county in which there may be any real estate of the ward. SEC. 18. After filing such authenticated copy of his appointment, may be licensed such foreign guardian may be licensed by the probate court of the same county, to sell the real estate of the ward in this state, in the same manner, and upon the same terms and conditions as are prescribed in this chapter in the case of a guardian appointed in this state, excepting in the particulars hereinafter mentioned. Manner of conducting sale, &c. Disposition of residue on final reign guardian, &c. SEC. 19. Every foreign guardian so licensed to sell real estate, shall take and subscribe the oath required in the like case of guardians appointed in this state, and shall give notice of the time and place of sale, and conduct the same in the manner prescribed for guardians appointed here, and may perpetuate the evidence of notice in the same manner. SEC. 20. Upon every such sale by a foreign guardian, the proceeds settlement by fo. of the sale, or as much thereof as may remain upon the final settlement of the accounts of the guardianship, shall be considered as real estate of the ward, and shall be disposed of among the same persons, and in the same proportions, as the real estate would have been 3 Mass., 518. 9 Pick., 130. CHAPTER 79. according to the laws of this state, if it had not been sold; and such TITLE XVIII. foreign guardian shall in every case, before making the sale, give bond with satisfactory surety or sureties, to the judge of probate, with condition to account for and dispose of the same accordingly. to prevailing SEC. 21. If any person shall appear and object to the granting of When the court any license prayed for under the provisions of this chapter, and it may award costs shall appear to the court, that either the petition or the objection party. thereto is unreasonable, said court may, in its discretion, award costs to the party prevailing, and enforce the payment thereof. &c., to recover SEC. 22. No action for the recovery of any estate sold by a guar- Limitation of dian under the provisions of this chapter, shall be maintained by the suits by ward, ward, or by any person claiming under him, unless it be commenced estate sold by within five years next after the termination of the guardianship; ex- guardian. cepting only that persons out of the state, and minors, and others under legal disability to sue, at the time when the cause of action shall accrue, may commence their action at any time within five years next after the removal of the disability, or after the (their) return to the state. on account of SEC. 23. In case of an action relating to any estate sold by a guar- Sale not avoided dian uuder the provisions of this chapter, in which the ward, or any certain irregularperson claiming under him, shall contest the validity of the sale, the ities. same shall not be avoided on account of any irregularity in the proceedings, provided it shall appear, 1. That the guardian was licensed to make the sale by a probate court of competent jurisdiction: 2. That he gave a bond which was approved by the judge of probate, in case any bond was required by the court, upon granting the license: 3. That he took the oath prescribed in this chapter: 4. That he gave notice of the time and place of sale as prescribed by law and, : 5. That the premises were sold accordingly by public auction, and are held by one who purchased them in good faith. guar. dian for miscon SEC. 24. If, in relation to such sale, there should be any neglect or Liability of misconduct in the proceedings of the guardian, by which any person duct. interested in the estate shall suffer damage, such aggrieved party may recover such damage, in a suit on the bond of such guardian, or otherwise, as the case may require. case of adverse SEC. 25. If the validity of any sale, made by a guardian under the when gale not provisions of this chapter, shall be drawn in question by any person held void, in claiming adversely to the title of the ward, or claiming under any ti- claimant. tle that is not derived from or through the ward, the sale shall not be held void on account of any irregularity in the proceedings, provided it shall appear that the guardian was licensed to make the sale by the proper probate court, and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the premises. CHAPTER 79. OF THE SALE OF REAL ESTATE ON EXECUTIONS. SECTION 1, All the real estate of a debtor, whether in possession, What liable to sale. |