as said court, by decree pursuant to law, shall appoint, and if it shall hereafter appear that a will was made by the deceased, and the same shall be exhibited to and approved by said court, and if the said A. B., being thereunto required, shall deliver his said letters of administration to said court, then this obligation shall be void, otherwise it shall remain in full force.*

1855. Executors and

have control of

cally devised.

SECT. 24. Whenever an executor's or administrator's bond shall Further security may be required be found to be insufficient, the court of probate, which took the same, shall require further security of the executor or administrator; and on his neglect or refusal to find such further security, shall remove him from office, and appoint an administrator in his stead. SECT. 25. The executors and administrators of deceased persons shall, during the settlement of the estates of such decedents, have administrators to the possession, care and control of the real estate of such decedents, real estate proin the same manner as of the personal estate; and all the products, vided it shall not rents, and income, of such real estate, of every kind, during such have been specifi time, shall vest in such executors and administrators, in the same manner as personal property, and shall be deemed, to all intents and purposes, personal property, if such real estate shall not have been specifically devised, nor any directions given by the testator in his will, with regard to such estate, inconsistent herewith; and the court of probate may, at any time, at its discretion, order such executors and administrators to surrender the possession and control of such real estate, with all the after accruing rents, income, and produce thereof, to the heirs or devisees of such decedent, or to the widow, if the same shall have been set to her as dower, or may, at any time, during such settlement, order distribution of said real estate, as directed by any last will and testament of such decedent, or, in cases of intestate estates, in the manner provided by law; but the family of such decedent, if any, shall be allowed to remain, Family of deceif they choose, in the dwelling house occupied by such decedent at homestead, &c. the time of his death, and may occupy such land and buildings connected therewith, as the court of probate may consider necessary to their convenience and comfort, until such dwelling house, land and building shall be sold, distributed or otherwise disposed of according to law.

dent to remain in

1854. 1863.

vided by will.

SECT. 26. Whenever a testator, by his last will, shall have ap- Trustees to give pointed a trustee to execute a trust created by such will, the court bonds unless of probate having cognizance of the settlement of the estate of said otherwise protestator shall, unless otherwise provided in said will, require of such trustee a good and sufficient bond, with surety, according to law, conditioned for the faithful performance of his trust. And if any trustee shall refuse to give such bond, such refusal shall be deemed a refusal to perform the duties of said trust; but the bond, without surety, of any burial association or corporation, formed for burial purposes, to which any bequest, or devise, shall be made, in trust, if accepted by the judge of probate of the district where the estate of the testator is in settlement, shall be deemed sufficient security for the performance of such trust.

*When the administrator is liable on his bond. Minor v. Mead, 3 C. R. 289; Warren v. Powers, 5 C. R. 378. Foster v. Thomas, 21 C. R. 285; and see notes to Sect. 14. When not. Hill v. Blackstone, 2 C. R. 247; Booth v. Patrick, 8 C. R. 106. Liable only individually for expenses in settling the estate and bond not holden. Taylor v. Mygatt, 26 C. R. 184. How a breach of the condition should be stated. Griffin v. Pratt, 3 C. R. 513. Damages. Minor v. Mead, 3 C. R. 289; Warren v. Powers, 5 C. R. 373; Edwards v. White, 12 C. R. 28. Rowland v. Isaacs, 15 C. R. 115. Administration account in gross, without items, not allowable. Swan v. Wheeler, 4 Day, 137.

1822.

Trustee may be

SECT. 27. Whenever a testator, by his will, shall have appointed appointed by a trustee to execute a trust created by such will, and shall not provide court of probate. for the contingency of the death or incapacity of such trustee, or, for his refusal to accept or execute the trust, the court of probate, having cognizance of the probate of such will, may appoint some suitable person to execute such trust, according to the will, taking good and sufficient bond, with surety, conditioned for a faithful performance of his duties, unless otherwise provided in said will.*

1850.

Same subject.

1882. Resignation of executors, ad

trustees.

1881.

SECT. 28. Whenever any person shall have been duly and legally appointed trustee of any estate, or shall have, in his hands as trustee, the avails of any estate by him sold under and by virtue of special authority from the general assembly, and no provision is made by law for the contingency of the death or incapacity of such trustee, or of his resignation, refusal to accept, or to execute such trust, the court of probate, in the district within which such estate shall be, may, on the happening of any such contingency, appoint some suitable person to execute such trust, taking good and sufficient bond, with surety, conditioned for the faithful performance of his duties.

SECT. 29. Whenever an executor, administrator, or trustee, appointed by a testator, or by the court of probate, to execute a trust ministrators, and created by will, shall desire to resign, or relinquish his trust, he may make application therefor, in writing, to the court of probate having cognizance of the settlement of the estate, and said court, after such public notice shall have been given as it shall have ordered, may, at its discretion, accept the resignation of such executor, administrator, or trustee, and appoint an administrator with the will annexed, in place of such executor, another administrator in place of such administrator, or another trustee in place of such trustee so resigning, taking good and sufficient bond, with surety, according to law, from such administrator, or trustee, whom it shall so appoint. SECT. 30. Whenever a trustee, appointed by a testator by his Court of probate will, or by the court of probate, to execute a trust created by will, trustee, and ap- shall, by reason of absence, sickness, insanity, or other cause, become incapable of executing his trust, or shall neglect or refuse to perform the duties thereof, or shall waste the estate of which he is trustee, the court of probate, having cognizance of the settlement of such estate, may remove him, upon the application and complaint of any heir, surety, or other person, interested in the trust-estate, due notice having been given him to appear before said court and show cause against such removal; and upon his removal, said court may appoint another trustee in his place, taking from him good and sufficient bond, with surety, according to law, conditioned for a faithful performance of his trust.

may remove

point another.

1857.

Vacant trust, how filled.

SECT. 31. Whenever a trustee of any estate, appointed to execute a trust created otherwise than by will, shall desire to resign or relinquish his trust, and there shall be no provision in the constitution of such trust, for filling a vacancy so made, he may make application therefor in writing to the court of probate in the district in which such estate may be situated, and said court shall thereupon order public notice of the application to be given, by advertisement in some newspaper published in the county in which said district is situated, at least two weeks before the hearing of such application,

Where executors are by the will appointed trustees, their acceptance of the trust may be inferred from their acceptance of the office of executors without expressly declining the trusteeship. Baldwin v. Porter, 12 C. R. 473.

and may order other notice to be given; and said court may accept the resignation of such trustee, and appoint another in the place of the one so resigning, taking bond with sufficient surety, according to law, conditioned for the faithful performance of the trust.

pointment of a

SECT. 32. When any person, who is permanently residing in 1856. another state, is entitled to the benefit of any personal estate, holden der a will may Beneficiary unby any trustee under the last will and testament of any person who procure the apdied resident in this state, he may procure the appointment of a trustee in trustee in the state where he resides, to receive and hold said estate when. upon the same trust, confidence, and limitation, as the same is holden in this state; and said trustee shall give bond with surety for the faithful discharge of the duties of his trust.

another state,

estate to be made

bate where will

court.

SECT. 33. Such person may, after such appointment shall have Petition for been so procured and a copy thereof, certified in conformity with transfer of trust the acts of congress relating to the certification of judicial proceed- to courts of proings, filed in the court of probate where such will was proved, is proved, and prefer his petition to said court, for the transfer and delivery of such powers of the estate to the trustee so appointed in another state; and said court may authorize and direct the transfer and delivery thereof to such trustee by the trustee in this state, who, after having procured a written acknowledgment of the reception of such estate, and caused the same to be recorded in the records of said court, shall be discharged from the care and responsibility of said trust.

administrators,

SECT. 34. The respective courts of probate shall have power to Executors and call executors, administrators, and trustees, to account for and con- &c., may be called cerning the estates intrusted to their charge.

to account.

Executors, &c.,

tlement.

SECT. 35. Upon the final settlement of the account of any execu- 1854. tor, administrator, or trustee, of any estate, the judge of probate, to not to before whom such matter may be pending, shall require that such their accounts, executor, administrator, or trustee, shall make oath to the truth of &c., on final setthe several items of such account, and also in like manner make oath to a statement in writing, by him subscribed, and lodged with such court of probate, of all moneys by him received and expended in such capacity, and also whether all of the claims against said estate have been fully paid.

1824. Notice of exhibition of adminis

SECT. 36. Whenever an executor or administrator shall exhibit his administration account to the court of probate for allowance, or whenever said court shall have appointed a time and place for hear- tration account. ing the account of an executor or administrator, said court shall direct such executor or administrator to cite all persons interested therein, to appear at such time and place as said court shall have appointed, either by publishing some notice thereof in some newspaper, or otherwise, as said court shall judge proper.

CHAPTER II.

OF THE SETTLEMENT OF SOLVENT ESTATES OF DECEASED PERSONS.

SECT. 37. All executors and administrators, to whom the admin- Inventory. istration of the estates of deceased persons shall be committed, shall,

1856.

New appraise.

ment.

Penalty for not

tory.

with the assistance of two or more judicious and disinterested persons, under oath, and appointed by the court of probate, make a true and perfect inventory and appraisement of all the estate of the deceased person, both real and personal, according to its value, and also an inventory of all his credits and choses in action, as far as may be, and shall cause duplicates to be made of such inventories, one of which shall be sworn to by such executor or administrator, before the judge of the court of probate where the will was proved, or the administration was granted, and be deposited with said court, and the other shall remain with the executor or administrator; but whenever any such executor or administrator shall reside out of this state, such inventory may be sworn to by such executor or administrator before any commissioner of this state, resident in the state where such executor or administrator lives.*

SECT. 38. If any creditor, legatee, or other person, shall be aggrieved by such appraisement, he may apply to said court of probate, which shall thereupon appoint three disinterested and judicious persons, who, being duly sworn, shall make a new appraisement of such estate, at its true value, according to their best judgment, and the executor or administrator shall be accountable for the estate, according to such appraisement, or the same shall be sold by the order of the court of probate; but such application shall be made within six months after the inventory of the estate shall have been exhibited to said court.

SECT. 39. If the executor or executors of any will, proved in any making an inven- court of probate, or the administrator or administrators of any intestate estate, shall not, within two months, next after the probate of such will, or the granting letters of administration on such estate, cause such inventory to be made as aforesaid, and exhibited to the court of probate where the will was proved and recorded, or where the administration was granted, he or they shall forfeit the sum of seventeen dollars per month, from and after the expiration of said two months, until he or they shall cause an inventory to be made of such estate, and exhibited to the court of probate as aforesaid, unless he or they can make a just excuse for the delay, satisfactory to said court, which forfeiture shall belong, one-half to the town where the deceased last dwelt, and the other half to him who shall bring a proper action_therefor, and prosecute the same to effect.

Persons embez

liable as execu

SECT. 40. If any person shall sell or embezzle any of the goods zling the estate, or chattels of a deceased person, before taking out administration tors in their own and exhibiting a true inventory of all the known estate, he shall stand chargeable, and be liable to the actions of the creditors, and other persons aggrieved, as an executor in his own wrong.t

wrong.

* What should be inventoried. Slocum v. Sanford, 2 C. R. 533; Minor . Mead, 8 C. R. 289; Booth v. Patrick, 8 C. R. 106; Williams v. Morehouse, 9 C. R. 470; Andruss v. Doolittle, 11 C. R. 283. It seems that even before it has been determined that personal estate, fraudulently conveyed by intestate, will be needed for payment of debts, administrator has a right to the custody of such estate. Andruss v. Doolittle, 11 C. R. 283. Debt by a judgment rendered in another state should not be inventoried. Strong v. White, 19 C. R. 238. Omission of executors to make an inventory is evidence of assets for the payment of legacies, if any property came to their hands. Knapp v. Hanford, 7 C. R. 132. Court ought not to reject inventory of property the title to which is disputed. Gold's case, Kirby, 100. When suit may be commenced against an administrator on his bond, for not exhibiting an inventory. Minor v. Mead, 3 C. R. 289. Court of probate has power to correct errors in inventories, and to receive additional inventories. Beach v. Norton, 9 C. R. 182.

Many acts ordinarily performed by an executor may be done, as mere acts of kindness and charity, by a stranger, without making him liable as an executor in his own wrong. Bacon v. Parker, 12 C. R. 212. But a party intermeddling with the estate, and

against those who conceal the

estate.

SECT. 41. If any person shall have in his custody and possession, How to proceed any goods or chattels, or any bills, bonds, notes, or accounts, belonging to the estate of a deceased person, or anything that may tend to disclose such estate, and on demand of the same, by the executor or administrator, shall refuse to deliver them, or to give a satisfactory account, to the executor or administrator, the court of probate in which such estate is pending for settlement, upon the application of the executor or administrator, may cite such person to appear before said court, and may examine him on oath, fully and particularly, concerning all the matters complained of; and if such person shall refuse to appear before said court, or, having appeared, shall refuse to be examined on oath, and to answer the interrogatories put to him by said court, said court may issue a warrant for the commitment of such person to prison, there to remain until he shall conform to the law, or be otherwise legally discharged.*

1838. Costs of the im

ascertained and

paid.

SECT. 42. If any person shall refuse to be examined, and shall be committed to prison by the court of probate, pursuant to the pro- prisonment, how visions aforesaid, the expenses occasioned thereby shall be ascertained by said court, and paid by the executor or administrator; and if the executor or administrator shall afterwards recover judgment of such person, for any goods, chattels, or effects, withheld by him, and belonging to the estate of the deceased, he shall be entitled to have the amount of said expenses, as ascertained by said court, taxed by the court rendering the judgment, as part of the costs of the suit; or if such person, after being imprisoned, shall surrender, to the executor or administrator without suit, any property of the deceased, by him concealed and withheld, said executor or administrator may institute a suit, and recover of him the amount of the expenses so incurred and ascertained.

in claims.

SECT. 43. The courts of probate shall have power to direct Notice to bring executors and administrators, to cite the creditors of the deceased to bring in their claims against his estate, within such time as the said courts shall limit and appoint, not exceeding eighteen months, nor less than six months, by posting up notice to that effect, upon the public sign-post nearest to the place where the deceased last dwelt, and within the same town, and also by publishing the same in some newspaper, and by such further notice as said court shall

order.

&c.

SECT. 44. If any creditor shall neglect to exhibit his claim, within Creditors neg. such time as shall be limited, after public notice given as aforesaid, claims within the lecting to exhibit he shall be forever debarred of his demand against such estate; but time, debarred, any creditors, not inhabitants of this state, may exhibit their claims against any estate, which has not been represented insolvent, at any time within two years after publication of the notice aforesaid, and shall be entitled to payment out of the clear estate only remaining after the payment of the claims exhibited in the time limited; and when a right of action shall accrue after the death of the deceased, it shall be exhibited within twelve months after such right of action

doing acts, which an administrator alone may do, is liable as an executor in his own wrong. Bennett v. Ives, 30 C. R. 329; Marcy v. Marcy, 32 C. R. 308. Taking out administration and settling estate as an insolvent estate, good defense for an executor in his own wrong, when. Olmstead v. Clark, 30 C. R. 108.

Courts of probate may compel the production of any documents relating to property belonging to the estate. Beach v. Norton, 9 C. R. 182. Warrant may be directed to an indifferent person. Kelsey v. Parmelee, 15 C. R. 260.

This section does not apply to mere indebtedness, but to specific property belonging to the estate and withheld. Ives' appeal, 28 C. R. 416.