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ate eyidence of notice of

en, whereby disputes may arise as to the legality of such

sales : Executor, Sec. 36. Be it further enacted, That the affidavit of &c. how to the executor, administrator or guardian, or the affidavit perpetu

of such person or persons as may be by them employed

to post up such notifications, taken before the probate sale, &c. court where such executor or administrator derived his

authority to administer, within six months next following the sale of the real estate, and there filed and recorded, together with one of the original advertisements of the time, place and estate to be sold, or a copy of such advertisement, is hereby declared to be one mode (but not exclusively so) of perpetuating the evidence that such notice was given, and also to make the originals or copies thereof from the clerk of the court of probate admissible evidence, in any court of law: and when the person employed to post up such notifications, resides more than ten miles distant from such probate court, his deposition respecting the matter, taken before a justice of the peace, and filed with the clerk of such probate court within six months as aforesaid, shall have the same force and effect as if the same was taken before such court as aforesaid ; or copies of the original notice printed in a newspaper as aforesaid, certified by the affidavit of such executor, administrator or guardian, or by some other person, and filed and recorded as aforesaid, shall be another mode (but not exclusively so) of perpetuating such evidence.

Sec. 37. And be it further enacted, That it shall be the make out duty of every executor or administrator as aforesaid, to and exhib- make out and return to the court of probate yearly, and counts an. every year, his account relative to the estate in his hands, nually. with a statement of the liquidated balance that may be

due to or from him, at the time of such settlement: and it shall be the duty of the court of probate to issue citation to each executor or administrator having accounts unsettled with such court (after the term limited for the exhibit of the first account) who shall neglect as aforesaid, to be and appear before such court, at the first meeting thereof next after the first Monday of January in every year thereafter, to shew cause, why he has neglected to exhibit an account as aforesaid : and in case such administrator or executor after being cited as aforesaid, shall neglect or refuse to present his account for settlement as aforesaid, for the space of thirty days, without assign

Executor,

ing to such court satisfactory reason therefor, such administrator or executor shall be held accountable for the full value of the personal property of the deceased with interest, and shall be entitled to no compensation for his services; and shall incur a penalty of not less than twenty Penalty dollars nor more than one hundred dollars, to be recover- for neged by any one who may sue for the same, by action of the case, one moiety for the use of the persons interested in said estate, and the other moiety to and for the use of the poor of the town in which such court may be.

lect.

treasurer

An act securing the Estates of persons dying, leaving real or per

sonal estate within this state, and leaving no known heir, or 1768. '98. others entitled to distribution within the United States.

Section 1. Be it enacted by the General Assembly, and by the Townauthority thereof it is enacted, That when any person shall tre

to take die, leaving any real or personal estate within this State, possession and shall leave no known heir or legal representative with- of estates. in the United States, to claim the same, it shall be lawful for the town-council of the town in which such real or personal estate may be, to direct the town-treasurer of such town to take the same into his possession for the use of such town, until the heir or other legal representative of such deceased person shall call for the same; and that the With said town-treasurer shall account for the net profits or ac- whom to

account tual use thereof to such town, until claimed by the heir for profits: or other legal representatives as aforesaid, to whom the same shall be delivered, on being claimed and evidence of the right or title of the claimant shewn; and the said town-treasurer shall, in such case, furthermore account with the claimant for the net profits or interest actually arising from the use of the real or personal estate, so possessed by him as aforesaid.

Sec. 2. And be it further enacted, That whenever letters Executors, testamentary or of administration shall be granted on the &c. shall

pay surpersonal estate of any deceased person who shall have plus into no known heir or other legal representative within the town

treasury. United States, and there shall remain a surplus, after payment of debts and legacies, in the hands of the executor or administrator, the same, at the expiration of two years after the granting the letters testamentary or of administration, shall be paid by the executor or administrator in

when claimed.

Estate

.

to the town-treasury of the town where the letters testamentary or of administration were taken out, for the use

of such town, until the heirs or persons entitled to distriTo heipaid bution thereof shall appear to claim the same, to whom,

on proof of their right, the amount of such surplus received by the town-treasurer, with the profits thereof, if any shall have arisen, shall be by him paid over.

Sec. 3. And be it further enacted, That when any real or liable for personal estate shall be taken into possession by the town

treasurer pursuant to this act, the same shall be subject and liable to the payment of the debts of the deceased to whom they belonged; and such town-treasurers respectively shall be holden to pay the same, to the amount of

the value of the estate by them received. Council

Sec. 4. And be it further enacted, That the town-councils may ex

of the several towns shall have authority to cause to apoath con. pear before them, any person whom they may suspect of cerning being possessed of the personal estate of any person dy

ing without known heirs as aforesaid, or any other person or persons whomsoever, and them to examine on oath concerning the same.

Sec. 5. And be it further enacted, That if any person shall appear to be possessed of any real or personal estate of any person dying without heirs or other legal representatives, as above mentioned, and shall on request refuse to deliver or surrender possession thereof to the town-treasurer, agreeably to the provisions of this act, in such case it shall and may be lawful for such town-treasurer to commence and prosecute an action for the recovery thereof.

such estates,

Town. treasurer may sue for the same.

1758, '67, '98, 1806,

992

Insolvent estates

ed.

An act for the equal distribution of Insolvent Estates.
Be it enacted by the General Assembly, and by the au-

thority thereof it is enacted, That when the estate of any distributo person deceased shall be insolvent, or insufficient to pay

all the just debts which the deceased owed, the same shall be distributed to and among all the creditors, in proportion to the sums to them respectively owing, so far as the said estate will extend, saving that the debts due to the United States, and necessary funeral charges of the deceased, for attendance and medicines in the last sickness, for debts due to this State, and for all State and town taxes, are to be first paid, and in the order in which they are named : and the executors or administrators of any such

insolvent estate, before payment to any be made, except as aforesaid, shall represent the condition and circumstances thereof unto the court of probate of the town where the deceased last dwelt; and the said court of probate Commisshall appoint three fit and disinterested persons to be com- be apmissioners, with full power to receive and examine all pointed. claims of the several creditors, and how they are made out; which commissioners shall put up notifications of the Who shall times and places of their meeting to attend the creditors notify the for the receiving their claims, in three or more public places in the town, and one notification on or near the door of the court-house in the county where the deceased last dwelt; or shall advertise the said times and places in one or more of the newspapers printed in this State, for three weeks successively; and the said commissioners And be shall be sworn or affirmed to the faithful discharge of their sworn. duty before some magistrate or the court appointing them, and shall have power to administer oaths or affirmations to all persons who shall be called to give evidence in any matter to be tried before them; and shall have power to May comcompel the attendance of any witnesses in the same man

pel wit

nesses, &c. ner and by the same process that courts of record now have; and the court of probate shall allow six, twelve or Time to eighteen months time (as the circumstances of any estate present may require) unto the creditors to bring in their claims, and prove their debts; at the end of which limited time, Commis

sioners to the commissioners, or major part of them, shall make their

make rereport, and present a list of all the claims by them allow-port. ed, unto the court of probate, who shall order them a meet recompence out of the estate for their care and trouble in examining the claims ; and the debts due to the United States, and necessary funeral charges of the deceased, for attendance and medicines in the last sickness, for debts due to this State, and for all State and town tax-boyoni es, being first paid in the order aforesaid, and deducted Distribuby the court of probate, they shall order the residue and tion to be remainder of the estate, both real and personal, (the real estate being sold according to law,) to be paid and distributed to and among the creditors, who shall have made out their claims as aforesaid, in proportion to the sums unto them respectively due and owing; saving unto the Saving to widow (if any there be) her apparel, and such bedding the widow and other household goods as are necessary for the up- el.

her apparholding of life, and her right of dower in the real estate of the deceased : Provided, That notwithstanding the report

[graphic]

Claims

may be

at com

how to be entered.

of the commissioners, any creditor whose claim is wholly disputed

or in part rejected, may have the same determined at com

mon law, in case he shall give notice thereof in writing, in mhon law. the clerk of probate's office, within twenty days after such

report shall be made, and bring and prosecute his action as soon as may be: and in case the executor or administrator shall be dissatisfied with any creditor's claim, allowed by the commissioners, and shall give notice thereof in the clerk of probate's office, and also to the creditors within twenty days as aforesaid, such claim shall by the court of probate be stricken out of the commissioner's report, unless such creditor shall commence and prosecute at the common law his claim as aforesaid, as speedily as the same can be done, or unless the creditor and the executor or administrator shall agree before the court of

probate to submit the same to reference, in which case Judgment the determination of the referees shall be final: and when

a claim shall be disputed in the course of the common law as aforesaid, execution shall not issue as in common cases, but the judgment of the court respecting the same shall be the amount of the claim, and added to or deduct

ed from the commissioner's report, as the case may reNo action quire: and no action brought against any executor or adbrought ministrator, after the estate shall be represented insolvent, during the shall be sustained, except for debts due to the United

States, and necessary funeral charges of the deceased, for commis- attendance and medicines in the last sickness, for debts sion, ex. due to this State and for all State and town taxes, unless

the executor or administrator, having objection to the claim upon which such action shall be brought, shall consent to have the same settled by course of law; in which case the judgment of the court shall determine the said

claim, and be reported by the commissioners as such: brought hefore, to and all actions brought against any executor or adminisbe contin- trator before the estate is represented insolvent, shall be

continued until it shall appear whether the said estate is

insolvent or not; and if found insolvent the process shall Creditor be conducted as above provided: and if any creditor shall not exhib- not make out his claim with the commissioners, within the iting his

time of their commission, or at the common law, or before within,

referees, in the manner provided by this act, he shall be for ever barred of his action therefor against the executor or administrator, unless there shall be personal estate remaining in the hands of such executor or administrator, upon the settlement of his account with the court of pro

[graphic]

of the

cept.

Actions

ued.

claim

&c. barred unless.

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