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the supreme court.
Estates to be redeemed in three
the mortgagee, or any under him, may have received over
and above the repairs and improvements made by him or By bill in them; and that it shall or may be lawful for any mortgaequity in
gor, his heirs, executors, administrators or assigns, entitled to the equity of redemption in any mortgaged estate,
to prefer a bill in equity, before the supreme judicial Proceed- court, for the redemption of such estate ; and the said ings on. court shall thereupon, according to the usages in chan
cery, and on the principles of equity, proceed to render
judgment on such bill, which shall be final: and the said Power of court is hereby vested with all the powers which courts
of chancery possess and exercise relative to the redemption of mortgages.
Sec. 3. And be it further enacted, That no mortgagor, his heirs, executors, administrators or assigns, shall be allow
ed to redeem any mortgaged'estate, but shall be for ever years af- barred and foreclosed of all equity and right of redemp
tion therein, unless such mortgagor, his heirs, executors, administrators or assigns, shall
pay to the mortgagee, his heirs, executors, administrators or assigns, the full sum, both principal and interest, due on such mortgage, within three years next after such mortgagee, or other person claiming under him, shall by process of law, or by peaceable and open entry, made in the presence of two witnesses, have taken actual possession of such mortgaged
estate, and continued the same during said term: and Possession when possession shall be taken in the presence of wit
nesses as aforesaid, they shall give to the mortgagee, or witnesses. other person taking possession under him, a certificate of
such possession being taken; and the person delivering possession shall acknowledge the same to have been voluntarily done, before a justice of the peace in the town where such mortgaged estate lies; which said certificate and acknowledgement shall be recorded in the townclerk's office of such town.
Sec. 4. And be it further enacted, That the limitation mortgaged aforesaid shall not extend to any mortgage made prior to passing of the time that the digest of 1798 took effect; and that all this act, when re
such mortgages shall be redeemed within twelve years deemable. from the time the mortgagee, his heirs, executors, adminis
trators or assigns, hath obtained, or shall obtain, possession of the mortgaged estate, in virtue of legal process, or within twenty years after possession shall have been obtained of any mortgaged estate by consent of parties, without legal process: Provided however, That in the lat
ter case, the supreme judicial court shall be authorized to allow of the redemption of any mortgaged estate after a possession of twenty years obtained without legal process, if any peculiar circumstances shall, in the opinion of the court, render such redemption equitable: And provided further, That all mortgages made since the digest of seventeen hundred and ninety-eight, and prior to the passing of this act, shall be entitled to six years' redemption, as provided for in said digest.
Sec. 5. And be it further enacted, That the supreme ju- Supreme dicial court shall be authorized to hear and determine, hear bill according to the rules of equity, all bills of foreclosure, for forewhich may be legally preferred to them, for the foreclosure of any right of redemption in any mortgaged estate, the possession whereof shall have been obtained by the mortgagee, or any claiming under him, by consent of parties, without legal process.
1798. 1802 '18, 22.
An act establishing Courts of Probate. Section 1. Be it enacted by the General Assembly, and Town: by the authority thereof it is enacted, That the town-coun- constitucils in the several towns in the State be and they ted courts hereby are constituted courts of probate ; and they, or the major part of them respectively, shall have full power and authority to take the probate of wills, to grant administration on the estates of persons deceased, being at the time of their decease inhabitants of or residents in the town to which such court of probate may belong; and Their also on the estates of persons who at the time of their de- power. cease were not inhabitants of or resident within this State at the time of such decease; provided any of the rights, credits or estate of such deceased person shall be found therein ; and the administration first granted shall be a bar to any other administration, although such deceased person may have left such rights, credits or estate in other towns; also, to appoint guardians to minors, idiots, and persons non compos mentis ; to examine, allow and settle the accounts of executors, administrators and guardians; make partition of estates, and assign dower to widows, as prescribed by law; and to do and transact all such matters and things as the court of probate within the several towns shall by the laws of this State have cognizance and jurisdiction of: and shall
&c. to ex
clerk to be
Sheriffs, have power to issue such process as may be necessary ecute their
fx; for the discharge of the trust reposed in them: and all precepts. sheriffs, deputy-sheriffs, town-sergeants and constables
are required duly to execute all precepts to them directish con
- ed by any court of probate: and all contempts of authortempts. ity in any cause or hearing before said courts respective
ly, shall and may be punished by fine, for the use of the State, not exceeding twenty dollars, or imprisonment not
exceeding twelve hours, at the discretion of said court. Town- Sec. 2. And be it further enacted, That the town-clerk
be in each town shall be the clerk of the court of probate clerk of probate. in such town, whose duty it shall be to attend the said
court of probate, and to record all wills, administrations, inventories, accounts, decrees, orders, determinations and other writings, which shall be made, granted or decreed upon, by the courts of probate in the respective towns ; and shall have the custody and safe-keeping of all books and papers belonging to the probate office; and shall be sworn oraffirmed to the faithful discharge of the duties of his office.
Sec. 3. And be it further enacted, That any person or Appeal
persons aggrieved at any order, determination or decree granted.
of any court of probate, may appeal therefrom to the supreme judicial court, to be holden in the county to which such court of probate may belong; and the said supreme judicial court are hereby vested with full power and authority to hear and determine such appeals, either by themselves or by a jury, at the election of either of the parties, if it be a matter of fact in controversy, and to render judgment or decree thereupon, as to them shall ap
pear right and agreeable to law: provided the appeal be Terms of claimed within sixty days next after such order, deterthe appeal.
mination or decree shall have been made ; and bonds with sufficient surety shall then be given, to the satisfaction of the court of probate appealed from, to prosecute such appeal to effect, or in default thereof to pay all intervening costs and damages, and such costs as the supreme judicial court shall tax against the appellant; provided also, that the person or persons so appealing shall, within ten days after giving such bond, file his reasons of appeal in the office of the clerk of the court appealed to, and shall cause the adverse party to be served with a copy thereof, and cited at least ten days before the sitting of the court appealed to, that such party may prepare to answer the same; and the said appeal shall be proceeded upon at the term of said court which shall be next
holden in the county to which said court of probate ap. When ap
peal shall pealed from may belong, after ten days from the time the be tried. adverse party was cited as aforesaid : and if the per- Applicant son or persons appealing and giving bond as aforesaid, neglecting shall neglect to prosecute said appeal in manner aforesaid, the said supreme judicial court may, upon complaint cree to be
affirmed. of any person interested in the order, determination or af decree appealed from, affirm the same : and the said su- Supreme preme judicial court are hereby authorized and empow- court of ered to issue all such process as may be necessary to discharge the trusts hereby reposed in them; and all cess, &c. sheriffs, deputy-sheriffs, town-sergeants and constables are hereby authorized and required to execute the same. Sec. 4. And be. it further enacted, That every court of Court of
probate probate shall have power, whenever an executor of a last ma will and testament by such court approved, or adminis- move extrator on any estate by such court appointed, shall, by Sec. in means of absence, sickness or insanity, become incapa- case. ble of executing his trust, or shall neglect or refuse to do the duties thereof, or shall waste the estate on which he administers, on a regular inquiry, to remove such executor or administrator from office.
Sec. 5. And be it further enacted, That in every such Complaint case, a complaint shall first be made in writing to such to be first court, by an heir, devisee, legatee, creditor, or surety in heir, &c. the administration bond, who may have been injured or exposed to injury, and a copy of the same shall be serv. ed as is provided in the tenth section of this act.
Sec. 6. And be it further enacted, That if the executor May a or administrator so removed from office as aforesaid, be point new
executor, sole executor or administrator, the said court of probate ecce shall appoint an administrator with the will annexed of the goods not administered, or an administrator of the goods not administered, as the case may require, as in case of the death of an executor or administrator.
Sec. 7. And be it further enacted, That whenever an ad. Court ministration bond shall be found to be insufficient, it shall may rebe the duty of the court of probate who took the same, cutor, &c. to require further security of the executor or administra. to giv
new bond. tor, and on neglect or refusal to find such further security, to remove such executor or administrator from office, and to appoint an administrator to succeed him, as in the preceding section is provided.
Sec. 8. And be it further enacted, That the administrator or guardian appointed to succeed the executor or ad
quire exeministrator to sue
New administrator to
New ad- ministrator or guardian removed from office for either of
the causes aforesaid, or in the manner prescribed in the for effects, second section of the act entitled “ an act respecting
guardians," shall have power, and it shall be his duty to ask for, demand and receive of the executor or administrator or guardian so removed, his heirs, executors or administrators or guardian, all the goods and effects of the deceased or of the ward; and also all books of account, bonds, notes, or other securities, documents or papers whatsoever, touching the estate, which may be needed in the settlement thereof; and in case of refusal to deliver the same he may sue therefor, which action shall be no bar to any other proper action to be brought on such executor's or administrator's or guardian's bond.
Sec. 9. And be it further enacted, That all actions in
law or equity which, at the time such executor or adminprosecute, istrator is removed from office as aforesaid, are pending &c. pending suit.
in favor of or against such executor or administrator, shall survive and may be prosecuted by or against the ad
ministrator which shall be appointed to succeed him. Court of
Sec. 10. And be it further enacted, That previous to the notify par. rendering any order or decree in any matter before them. ties before the said court of probate shall give all known parties in
terested, living within this State, at least three days noHow to be tice, that they may be heard thereon; which notice shall notified. be served by the sheriff or his deputy, or town-sergeant or
constable, by reading the same to the party if to be found, otherwise by leaving an attested copy at the last and usual place of abode of such party; and when infants or wards are interested, notice aforesaid shall be served on their respective guardians; or such court may give notice as aforesaid to all parties by advertisement, printed
three successive weeks in some newspaper printed withIn case of in this State : and in case any order or decree of any appeal, de
court of probate shall be appealed from, the operation of such order or decree shall be wholly suspended, untit the same shall be affirmed by the supreme judicial court; provided however, if the decree shall be for granting letters testamentary, of administration or guardianship, the executor, administrator or guardian, on giving bond according to law, shall have power to collect, receive and take possession of, all the rights, credits and estate of the testator, intestate or ward, which by law he could have collected, received or taken possession of, provided no