sed by executor, SECT. 32. Whenever such foreclosure shall have been had, by any Property forecloexecutor, administrator, or trustee, the premises so foreclosed, or &c., avails, if sold, the avails thereof, if sold by him, shall be held by him, in the same how disposed of. manner, and for the benefit of the same persons, and to be used for the same purposes, and subject to the same rules, as the money secured by the mortgage would have been, if collected without foreclosure; and in case such premises shall not be sold by such executor, administrator, or trustee, the same shall be distributed, or otherwise disposed of, to the same persons as would have been entitled to the money, if collected. 1855. SECT. 33. Courts of equity shall have jurisdiction of all suits, to Jurisdiction in compel a person, or persons, to render an account, but this shall not matters of acprevent the bringing of an action of account, in all cases where an action of account would lie.* count. CHAPTER IV. OF PROCEEDINGS WHEN A PARTNER'S INTEREST IN PARTNERSHIP may make orders, is attached. SECT. 34. Whenever any action shall be brought to any superior Superior court court, or shall be pending in such court, in which partnership prop- &c, when parterty, or any interest therein, shall be attached, to secure a claim nership property against an individual partner, and not against the partnership, any of the parties to the action, or any member or members of such partnership, may file a bill in equity in the superior court of the county in which such action shall be pending; and said court may, from time to time, make such order in the premises, either by granting an injunction, appointing a receiver, directing the disposition of the partnership property, the collecting of the partnership debts, and the application of the partnership funds, or otherwise, as to equity shall appertain. tion, may make SECT. 35. Either judge of the supreme court of errors, or of the su- Judge, in vacaperior court, in vacation, after due notice given, may make such tem- temporary order. porary order in the premises as the exigencies of the case may require, and may, from time to time, rescind and modify the same. SECT. 36. The judge, so acting in vacation, shall cause his pro- Proceedings, how ceedings to be certified to the court in which the petition may be to be certified. pending, at its next session, and shall be entitled to receive for the * A bill in equity is the appropriate remedy to settle a partnership account between more than two partners. Beach v. Hotchkiss, 2 C. R. 425; Russell v. Green, 10 C. R. 269. Of the mode of adjusting the account. Coit v. Tracy, 9 C. R. 15; Gillett v. Hall, 13 C. R. 426; Callender v. Colegrove, 17 C. R. 1. When damages for the breach of a contract of warranty, may be assessed. Booth v. Starr, 5 Day, 419. When a loss occasioned by the bankruptcy of one, will be apportioned among several partners. Hyde v. Tracey, 2 Day, 491. The report of a committee may be established as to the other facts, and recommitted to take the account. Callender v. Colegrove, 17 C. R. 1. Bill in equity is the appropriate remedy for settlement of account in other cases, when. Norton v. Ladd, 22 C. R. 203; Proprietors of White School House v. Post, 31 C. R. 241. Where a court of law cannot make a complete and final adjustment of the partnership concerns. Niles v. Williams, 24 C. R. 279. Court, or judge, may order protinued. same the fees now by law allowed for copies; and for each order, or decree, he shall make in the premises, he shall be entitled to the usual court fee. SECT. 37. The court, or judge, before whom such proceedings ceedings discon- may be pending, may order the same to be discontinued, whenever security shall be given to the plaintiff in the original action, satisfactory to such court, or judge, for the payment of the judgment that may be recovered in such original action, or for the application thereto, of an amount not exceeding the debtor's interest in the whole partnership property. CHAPTER V. 1848. 1865. Superior court may order partition of real es tate. Partition of real a deceased cotenant. OF THE PARTITION OF LANDS, AND SALE OF LANDS AND PERSONAL SECT. 38. The superior court, as a court of equity, may, upon the petition of any person interested, order partition of any real estate, held in joint-tenancy, tenancy in common, or coparcenary, and may appoint a committee for that purpose; and may, in like manner, make partition of any real estate held by any persons as tenants in tail; and the order and decree of the court, in such case, shall not only be binding on the parties to the proceeding, but shall also be binding on all persons, who shall thereafter claim title to said real estate, as heirs of the bodies of said parties.* SECT. 39. Whenever any deceased tenant in common, joint-tenant, estate devised by or coparcener, of any real estate, shall have devised any freehold interest in such estate, to any person, with contingent interest by way of remainder, substitution, or executory devise, to any other person, born or unborn, the superior court, as a court of equity, may, on the petition of any person interested, order partition of such estate to be made between the devisee, or devisees, the surviving co-tenant, or cotenants, and the person having such contingent interest; and the decree of the court in the premises shall be binding, not only upon the parties to the petition, but upon the person having such contingent interest, his heirs, and assigns. Decree and pro corded. SECT. 40. Whenever any partition shall have been made, in acceedings to be re-cordance with the provisions of the two preceding sections, the decree of the court, and the proceedings under it, so far as it regards the partition of the estate, shall be recorded in the records of lands, in the town where the estate lies, before the same shall be effectual to bind persons, not parties to the petition, or having contingent interest, as specified in said sections, or heirs of such parties, or persons, having such contingent interest. 1853. SECT. 41. The superior court, as a court of equity, may, upon the Superior court petition of any person interested, order the sale of any real estate, real estate owned and of any rights, corporeal or incorporeal, existing in, or issuing may order sale of *Partition may be claimed as a right, notwithstanding difficulty of making it. Scovill v. Kennedy, 14 C. R. 849. Petitioner must be in possession, or seized of the land. Adams v. Ames Iron Co., 24 C. R. 230. persons. out of, the same, acquired by purchase, levy of execution, devise, de- by two or more scent, or otherwise, owned by two or more persons, and held in joint tenancy, tenancy in common, coparcenary, or otherwise, whenever, in the opinion of the court, a sale will better promote the interest of the parties in interest.* SECT. 42. The superior court, as a court of equity, may, upon 1858. the petition of any person interested, order the sale of any personal court, of personal Sale, by order of estate, owned by two or more persons, whenever, in the opinion of estate. the court, a sale will better promote the interest of the parties in interest. 1858. of sale may be SECT. 43. When any of the owners of such real estate, appearing 1856. to be of such record, or of such personal estate, shall have been dead Petition for order one year or more, prior to the bringing of the petition for the sale of brought against the same, the petition may be brought against the heirs and devisees, heirs, &c. in the case of real estate, or the heirs and legatees, in the case of personal estate, of the deceased, without any other description of them than that of the heirs and devisees, or heirs and legatees, of the deceased, naming and describing them. sale, judge may SECT. 44. In all petitions for partition, or for the sale of real or on petition for personal estate, any judge of the superior court may, in vacation, make order of make such order, relative to the notice to be given, as he shall deem notice. reasonable; and such notice, if the order of notice shall be shown to the court to have been complied with, shall be sufficient notice to the parties in interest to appear and defend, and to authorize the court to hear the case, at the first term. der of sale, where SECT. 45. All petitions for the partition of real estate, or the 1848. sale of real or personal estate, shall be brought in the county where Petitions for orthe parties, or some of them reside, if any of them reside in this to be brought. state; if not, then in the county where the estate, or some part of it is. tect rights of SECT. 46. In all petitions for the sale of real or personal estate, Court may prothe court, in which the case is pending, may make any order, neces- parties. sary to protect the rights of all parties in interest, and to carry the sale into full effect. Court may appoint committee SECT. 47. In all such petitions, the court may appoint a commit- 1852. 1858. tee to make the sale, who shall pay into court the money arising from such sale; and the same, after the payment therefrom of such rea- to sell. sonable costs and expenses as the court shall direct, shall be distri- Distribution of buted, by order of court, among all persons interested in the estate, in proportion to their interest. avails of sale. No application to SECT. 48. No application for the sale of any part of any estate, 1858. pending for settlement, in any court of probate, shall be made until be made till after after a settlement of the administration account, and a final settle- settlement of ment of such estate, so that the same is ready for distribution. * This section is constitutional. Richardson v. Monson, 23 C. R. 94. estate. TITLE XIX. AN ACT RELATING TO ESCHEATS, AND OTHER PROP- or heir appears, Be it enacted by the Senate and House of Representatives, in General Assembly convened: SECTION 1. That whenever no owner, or heir, of any estate, real When no owner or personal, can be found, the same shall escheat, and belong to the estate to escheat, state; and judges of probate shall make due inquiry, in their respective districts, after such estate, and secure the same in the hands of an administrator, appointed for that purpose, and shall give notice to the treasurer of the state, who shall receive it from such administrator, and discharge him therefrom. &c. Treasurer to ap take care of, and cheated. SECT. 2. The treasurer may appoint agents to manage, and take care of, all property that shall escheat to the state, as well as of all point agents to lands, or other property, to which the state has, or may become, sell, property es- legally entitled, by judgment or execution, for any debt, fine or forfeiture, or in any other way whatever, except lands belonging to the school fund; and such agents shall have power to sell, and dispose of, such property, at public or private sale, or on credit, on such terms as shall be approved of by the treasurer; and the treasurer may execute any deeds, or conveyances, proper to transfer the same, and shall annually render an account to the general assembly, of his proceedings, and credit the avails of the sales to the state; but if any heir or owner of such estate shall appear, he shall be entitled to the same, or if sold, to the avails thereof, after deducting the necessary expenses. Right of posses 1849. SECT. 3. No property, or right of possession, in, or to, any seasion to sea-weed, weed, thatch, or other marine vegetable deposit, thrown up by the &c., on common sea, or arm of the sea, or by a navigable river, shall be acquired by shore, restricted. any person, by his gathering together, or heaping up, such sea. weed, thatch, or other deposit, upon any public beach, or public shore, unless the same shall be removed by him therefrom within twenty-four hours next after such act. belonging to the 1868. SECT. 4. All deeds and conveyances of property escheated, or which Deeds of property shall escheat, to this state, and of lands, or other property, to which state, how to be the state has or may become legally entitled, except lands belonging executed. to the school fund, which shall be executed by the treasurer, in accordance with the provisions of the second section of this act, shall be executed under the official seal of the treasurer. Secretary may SECT. 5. The secretary of this state may take the acknowledgment take acknowledg of all deeds and conveyances of lands, or other property, belonging property belong to the state, and may affix the seal of the state to his certificate ing to the state. thereof. ment of deeds of TITLE XX. AN ACT FOR THE SETTLEMENT OF ESTATES, TES- CHAPTER I. OF THE EXECUTION AND PROBATE OF WILLS, AND OF EXECUTORS Be it enacted by the Senate and House of Representatives, in General a will. SECTION 1. That all persons of the age of twenty-one years, and who may make of sound mind, may dispose of their real estate, by will; all persons of the age of seventeen years, and of sound mind, may dispose of their personal estate, by will; and married women may dispose of their estate, both real and personal, by will, in the same manner as other persons.* Before this statute, married women could not make a devise. Fitch v. Brainerd, 2 Day, 163. As to soundness of mind, see Grant v. Thompson, 4 C. R. 203; Comstock v. Hadlyme, 8 C. R. 254; Kinne v. Kinne, 9 C. R. 102; Dunham's appeal, 27 C. R. 192. Character and provisions of a will may be considered by a jury in determining soundness of mind. Denison's appeal, 29 C. R. 399. Burden of showing soundness of mind of testator is on the party proving the will. Knox's appeal, 26 C. R. 20. How devisees may be designated. Brewster v. McCall's devisees, 15 C. R. 274; American Bible Society. Wetmore, 17 C. R. 181; Wardens and Vestry of Trinity Church v. Hall, 22 C. R. 125. Who may not be devisees. Greene v. Dennis, 6 C. R. 292. In devises, an estate in fee simple, how created. Bishop v. Selleck, 1 Day, 299; Evarts v. Chittendon, 2 Day, 338; Hungerford v. Anderson, 4 Day, 368; Throop v. Williams, 5 C. R. 98; Goodrich v. Lambert, 10 C. R. 448; Ingersol v. Knowlton, 15 C. R. 463; Korn v. Cutler, 26 C. R. 4. Estate tail, how created. Hamilton v. Hempsted, 3 Day, 332; Dart v. Dart, 7 C. R. 250; Hudson v. Wadsworth, 8 C. R. 348; Allyn v. Mather, 9 C. R. 114; Williamson v. McCall, 12 C. R. 328. A trust, when created. Bull . Bull, 8 C. R. 47; Strong v. Strong, 8 C. R. 408; Donalds v. Plumb, 8 C. R. 447. No trust will be raised by expressions importing recommendation, hope, confidence, &c., unless there be certainty as to the parties who are to take and the property to be taken; nor where a clear discretion and choice, to act or not to act, is given to the supposed trustee. Gilbert v. Chapin, 19 C. R. 342; Harper v. Phelps, 21 C. R. 257. Trust created by will, void for uncertainty, when. White . Fisk, 22 C. R. 81. When not. Treat's appeal, 30 C. R. 113. The principle of cy pres has not been adopted into the system of jurisprudence of this state. White v. Fisk, 22 C. R. 31. Where property was devised to trustees to receive income thereof, and "to divide the same equally between my said wife and said children and their heirs," held that these word gave the wife a share of such income equal only to that of each one of the children. Lord v. Moore, 20 C. R. 122. Various other points in relation to trusts created by will. Isham v. Gilbert, 3 C. R. 166; Leavitt v. Beirne, 21 C. R. 1; Harper v. Phelps, 21 C. R. 257; Watson v. Cleveland, 21 C. R. 538; White v. Fisk, 22 C. R. 31; Wardens and Vestry of Trinity Church v. Hall, 22 C. R. 125. Cestui que trust may alienate life estate in the income of a trust estate. Savings Bank v. Brewer, 27 C. R. 600. Conditional devises. Wheeler v. Walker, 2 C. R. 196; Chappel v. Avery, 6 C. R. 31; Judd v. Bushnell, 7 C. R. 204. Tenancy in common by devise. Griswold v. Johnson, 5 C. R. 363. Limitations in de |