ant, the father shall take a moiety, if there be a widow, and the whole, if there be no widow.

8. If the deceased leave a mother, and no child, descendant, father, brother, sister, or representatives of a brother or sister, the mother, if there be a widow, shall take a moiety, and the whole, if there be no widow.

9. Where the descendants, or next of kin of the deceased, entitled to share in his estate, shall be all in equal degree to the deceased, their shares shall be equal.

10. When such descendants, or next of kin, shall be of unequal degrees of kindred, the surplus shall be apportioned among those entitled thereto, according to their respective stocks; so that those, who take in their own right, shall receive equal shares, and those who take by representation, shall receive the share to which the parent whom they represent, if living, would have been entitled.

11. No representation shall be admitted among collaterals, after brothers' and sisters' children.

12. Relatives of the half bood, shall take equally with those of the whole blood in the same degree; and the representatives of such relatives, shall take in the same manner as the representatives of the whole blood.

13. Descendants and next of kin of the deceased, begotten before his death, but born thereafter, shall take in the same manner, as if they had been born in the lifetime of the deceased, and had survived him.

If any child of such deceased person shall have been advanced by the deceased, by settlement or portion of real or personal estate, the value thereof shall be reckoned with that part of the surplus of the personal estate, which shall remain to be distributed among the children; and if such advancement be equal or superior to the amount, which, according to the preceding rules, would be distributed to such child, as his share of such surplus and advancement, then such child and his descendants shall be excluded from any share in the distribution of such surplus.

But if such advancement be not equal to such amount,

such child, or his descendants, shall be entitled to receive so much only, as shall be sufficient to make all the shares of all the children, in such surplus and advancement, to be equal, as near as can be estimated.

The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement, within the meaning of the two last sections; nor shall those sections apply in any case where there shall be any real estate of the intestate, to descend to his heirs.

The foregoing provisions shall not apply to the personal estates of married women; their husbands may demand, recover and enjoy the same, as they are entitled by the rules of common law.

Where a distributive share is to be paid to a minor, the surrogate may direct the same to be paid to the general guardian of such minor, and to be applied to his support and education; or he may direct the same to be invested in permanent securities, as herein before stated, in respect to legacies to minors, with the like authority to apply the interest, and subject to the same obligations.

When administration is granted to any person not the widow of, or next of kin to, a deceased person, and no one shall appear to claim the personal estate of the deceased within two years after such letters granted, the surplus of such estate which would be distributed as aforesaid, shall be paid into the treasury of this state, for the benefit of those who may thereafter appear to be entitled to the same.

Any person entitled to any legacy, or to a distributive share of the estate of a deceased person, at any time previous to the expiration of one year from the granting of letters testamentary or of administration, may apply to the surrogate, either in person or by his guardian, after giving reasonable notice to the executor or administrator, to be allowed to receive such portion of such legacy or share, as may be necessary for his support.

If it appear to the surrogate that there is at least one third

more, of assets, in the hands of such executor or administrator, than will be sufficient to pay all debts, legacies, and claims against the estate, then known, he may, in his discretion, allow such portion of the legacy or distributive share to be advanced, as may be necessary for the support of the person entitled thereto, upon satisfactory bonds being executed for the return of such portion, with interest, whenever required.

5th. The duties of the Surrogate in relation to the sale and disposition of the real estate of deceased persons.

The surrogate having obtained jurisdiction of the subject matter by the petition of the executor or administrator, and it shall appear that any of the devisees or heirs of the deceased are minors, he shall immediately, and before any other proceedings, appoint some disinterested freeholder guardian of such minors, for the sole purpose of appearing for them, and taking care of their interests in the proceedings.

If any such minors are within the county of such surrogate, they shall be personally served with notice, ten days previously, of the intention to apply for the appointment of a guardian, that they may be heard in the selection of such guardian.

If upon such application to the surrogate, it shall appear, that all the personal estate of the deceased, applicable to the payment of his debts, has been applied to that purpose, and that there remain debts unpaid, for the satisfaction of which a sale may be made under the provisions of this title, he shall 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 authority should not be given to the executors or administrators applying therefor, to mortgage, lease, or sell so much of the real estate of their testator or intestate, as shall be necessary to pay

such debts.

Every such order to show cause, shall be published for four weeks in a newspaper printed in the county, and a copy thereof shall be served personally, on every person in the occupa

tion of the premises, of which a sale is desired, wherever the same may be situated, and on the widow and heirs and devisees of the deceased, residing in the county of the surrogate, at least fourteen days before the day therein appointed for showing cause.

If such personal service cannot be made, or if such widow, heirs or devisees, do not reside in such county, but reside in the state, then a copy of such order may be served personally, forty days before the day of showing cause, or by publishing the same once in each week, for four weeks, in succession, in the state paper. If such heirs or devisees do not reside within this state, or cannot be found therein, the order shall be published once in each week, for six weeks successively, in the state paper, or a copy thereof may be personally served on them, at least forty days before the time appointed therein, for showing cause.

The surrogate, at the time and place appointed in the order, and at such other times and places as the hearing shall be adjourned to, upon due proof of the service and publication above required, shall proceed to hear and examine the allegations and proofs of the executors or administrators applying for such authority, and of all persons interested in the estate, who shall think proper to oppose the application.

The executors or administrators 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 surrogate, in the same manner, and with the like effect, as in cases of proving wills before him.

On such hearing, it shall be competent to any heir or devisee of the real estate in question, and to any person claiming under them, to show, that the whole of the personal estate of the deceased has not been duly applied by the executors or administrators, to the payment of his debts, to contest the validity and legality of any debts, demands or claims, which may be represented as existing against the testator or intestate, and to set up the statute of limitations in bar to such claims; and the admission of any such claims so barred, by any executor'

or administrator, shall not be deemed to revive the same, so as in any way to affect the real estate of the deceased.

If, upon such hearing, any question of fact shall arise, which, in the opinion of the surrogate, cannot be satisfactorily determined without a trial by jury, he shall have authority to award a feigned issue, to be made up in such form, as to present the question in dispute, and to order the same to be tried at the next circuit court to be held in such county. New trials may be granted therein by the supreme court, as in personal actions pending in that court. The final determination of such issue shall be conclusive as to the facts therein controverted, in the proceedings before the surrogate.

The costs of such issue shall be paid by the party failing, on the order of the surrogate, and such payment may be enforced by him in the same manner as other orders and de

crees.

The demands which the surrogate shall, upon such hearing, adjudge valid and subsisting against the estate of the deceased; or which shall have been determined to be valid, on the trial of such issue; or which shall have been recovered against the executors or administrators, by the judgment of a court of law, upon a trial on the merits; shall be by him entered in the book of his procceedings, fully and at large; and the vouchers supporting the same, shall be filed in his office.

The surrogate shall make no order for the mortgaging, leasing, or sale of the real property of the deceased, until due examination he shall be satisfied:

upon

1. That the executors or administrators making such application, have fully complied with the preceding provisions.

2. That the debts, for the purpose of satisfying which the application is made, are justly due and owing, and that they are not secured by judgment or mortgage upon, or expressly charged on, the real estate of the deceased; or if such debts be secured by a mortgage or charge, on a portion of such es