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When tract of greater value
deceased lies in
accepting the whole shall pay to the other parties interested their just proportion of the true value thereof, or shall secure the same to their satisfaction; and the true value of the estate shall be ascertained by Commissioners appointed by the Probate Court, and sworn for that purpose.
(3001.) Sec. 11. When any tract of land, messuage or than either par, tenement shall be of greater value than either party's share cannot be 'divid in the estate to be divided, and cannot be divided without o to one of par- injury to the same, it may be set off by the Commissioners
appointed to make partition, to either of the parties who will accept it, giving preference as prescribed in the preceding section: Provided, the party so accepting it shall pay or secure to one or more of the others, such sums as the Commissioners shall award to make the partition equal, and the Commissioners shall make their award accordingly ; but such partition shall not be established by the Court, until the sums so awarded shall be paid to the parties entitled to the same, or secured to
their satisfaction. Whon Estate of (3002.) Sec. 12. When partition of real estate among heirs common, to be or devisees shall be required, or dower is to be assigned to a
widow in the same, and such real estate shall be in common and undivided with the real estate of any other person, the Commissioners shall first divide and sever the estate of the deceased from the est: te with which it lies in common, and such division so made, an established by the Probate Court,
shall be binding on all the p rsons interested. Guardians for Mi.
(3003.) SEC. 13. Before any p rtition shall be made, or any Agents for non- estate divided, as provided in this bapter, guardians shall be
appointed for all minors and insane persons interested in the estate to be divided; and some discreet person shall be appointed to act as agent for such parties as shall reside out of the State ; and notice of the appointment of such agents shall be given to the Commissioners in their warrant; and notice shall be given to all the parties interested in the partition, their guardians or agents, by the Commissioners, of
the time when they shall proceed to make partition. Report of Com (3004.) Sec. 14. The Commissioners shall make report of missioners and groceedings their proceedings to the Probate Court in writing; and the
Court may, for sufficient reasons, set aside such report, and commit the same to the same Commissioners, or appoint others; and the report, when finally accepted and established, shall be recorded in the records of the Probate Court; and a
nors, etc., and
copy thereof, attested by the Judge of Probate, under the seal of the Court, shall be recorded in the office of the Register of Deeds of the county where the lands lie. (3005.) Sec. 15. When the Probate Court shall make a When partition
may be disperadecree, assigning the residue of any estate to one or more ed with. persons entitled to the same, it shall not be necessary to appoint Commissioners to make partition or distribution of such estate, unless the parties to whom the assignment shall be decreed, or some of them, shall request that such partition be made.
(3006.) Sec. 16. All questions as to advancements made or questions relntalleged to be made by the deceased to any heirs, may be ment how deter heard and determined by the Probate Court, and shall be specified in the decree assigning the estate, and in che warrant to the Commissioners; and the final decree of the Probate Court, or, in case of appeal, of the Circuit or Supreme Court, shall be binding on all persons interested in the estate.
(3007.) Sec. 17. Any person aggrieved by any order, decree Appeal. or denial of a Probate Court, in pursuance of the provisions of this chapter, may appeal therefrom as provided in other cases.
(3008.) SEC. 18. The partition, when finally confirmed and Partition whom established, shall be conclusive on all the heirs and devisees, and all persons claiming under them, and upon all persons interested.
(3009.) SEC. 19. If, at the time of the partition or distri-When Executor: bution of any estate as provided in this chapter, the executor penses of parti or Administrator shall have retained sufficient effects in his hands, which may lawfully be applied for that purpose, the expenses of such partition or distribution may be paid by such executor or Administrator, when it shall appear to the Court just and equitable, and not inconsistent with the intention of the testator.
(3010.) Sec. 20. But if there are no effects in the hands of When expenses the executor or Administrator which may be lawfully applied parties interestto that purpose, the expenses and charges of the partition, being ascertained by the Probate Court, shall be paid by all the parties interested in the partition, in proportion to their respective shares or interests in the premises; and the proportions shall be settled and allowed by the Probate Court; and if any one shall neglect to pay the sum assessed on him by the Court, an execution may be issued therefor against him by such Court, in favor of the persons entitled to the same.
When partition (3011.) SEC. 21. When the term of a widow entitled to of reversion may be made. dower or other life estate in the lands of a deceased person
shall expire, the reversion may be assigned to the persons entitled to the same, and partition thereof be made, in the manner prescribed in this chapter in relation to other estates
of deceased persons. Then Court may (3012.) Sec. 22. When any estate shall be assigned by appoint Agent for non-resident.
decree of the Court, or be distributed by Commissioners, as provided in this chapter, to any person residing out of this State, and having no agent therein, and it shall be necessary that some person should be authorized to take possession and charge of the same, for the benefit of such absent person, the Court may appoint an agent for that purpose, and authorize him to take charge of such estate, as well as to act for such
absent person in the partition and distribution. Agent to give
(3013.) SEC. 23. Such agent shall give a bond to the Judge of Probate, to be approved by him, faithfully to manage and account for such estate, before he shall be authorized to receive the same, and the Court appointing such agent may allow a reasonable sum out of the profits of the estate for his services and expenses.
OF PROBATE BONDS, AND THE PROSECUTION THEREOF.
on Bond of Executor, etc.
interested to bring Suit.
form order, Bond may be sued.
persons. 3022. Judgment, etc., in other cases. 3023. Disposition of moneys collected. 3024. When Scire Facias may be prosecuted. 3025. By whom claims for Damages for breach of
condition may be prosecuted.
Chapter Seventy-Five of Revised Statutes of 1846.
be brought by
(3014.) SECTION 1. All bonds, required by law to be taken Probate Bouda, in or by order of the Probate Court, shall be for such sum, and with such sureties as the Judge of Probate shall direct, except when the law otherwise prescribes; and such bonds shall be for the security and benefit of all persons interested, and shall be taken to the Judge of Probate, except where they are required by law to be taken to the adverse party.
(3015.) SEC. 2. A suit may be brought on the bond of any When suit may executor or Administrator by any creditor, when the amount Creditor on Bona
of Executor, etc. due to him has been ascertained and ordered by the decree of distribution to be paid, if the executor or Administrator shall neglect to pay the same when demanded.
(3016.) Sec. 3. Such a suit may be brought by any person When suit may as next of kin, to recover his share of the personal estate, next of kin. after a decree of the Probate Court declaring the amount due to bim, if the executor or Administrator shall fail to pay the same when demanded.
(3017.) SEC. 4. When it shall appear, on the representation When Court may of any person interested in the estate, that the executor or person interested Administrator has failed to perform his duty in any other particular than those before specified, the Judge of Probate may authorize any creditor, next of kin, legatee or other person aggrieved by such mal-administration, to bring an action on the bond.
(3018.) SEC. 5. Whenever an executor or Administrator wi shall refuse or omit to perform any order or decree made by a to perform order, Judge of Probate having jurisdiction, for rendering an account, sued. or upon a final settlement, or for the payment of debts, legacies, or distributive shares, such Judge of Probate may cause the bond of such executor or Administrator to be prosecuted, and the moneys collected thereon shall be applied in satisfaction of such order or decree, in the same manner as such moneys ought to have been applied by such executor or Administrator.
(3019.) Sec. 6. In all suits upon such bonds, the writ and Suits on Ponds to proceedings shall be in the name of the Judge of Probate, and Judge of Probate. when the action is brought for the benefit of any particular person as creditor, next of kin, or legatee, as provided in this chapter, the execution shall express that it is for the use of
Executor, etc., shall refuse
Bond may be to sue Bond.
such creditor, next of kin, or legatee, and in such case the person for whose use the action is brought shall be deemed
the plaintiff. When Judge may grant permission
(3020.) Sec. 7. On the application of any person authorized by this chapter to commence a suit on such bond, the Judge of Probate may grant permission to such person to prosecute the same, and shall thereupon furnish to the applicant, on his paying the legal fees, a certified copy of the bond, together with a certificate that permission has been granted to
prosecute it, and the name and residence of the applicant. Judgment in
(3021.) Sec. 8. If judgment shall be rendered for the suit for benefit of
plaintiff in any suit upon such bond, brought for the benefit of any particular person, the Court shall award execution for
the amount due to such person, with costs of suit. Judgment, etc., in other cases.
(3022.) Sec. 9. If judgment shall be rendered for the plaintiff in any suit upon such bond, brought by the Judge of Probate for any breach thereof, in not performing any order or decree of the Judge of Probate, as mentioned in the fifth section of this chapter, execution shall be awarded for the full value of all the estate of the deceased that shall have come to the hands of such executor or Administrator, and for which he shall not have satisfactorily accounted, and for all such damages as shall have been occasioned by his neglect or
mal-administration, with costs of suit. Disposition of
(3023.) Sec. 10. All moneys received on any execution issued on a judgment in favor of the Judge of Probate, as mentioned in the preceding section, shall be paid over to the co-executor or co-Administrator, if there be any, or to such person, other than the defendant therein, as shall then be the rightful executor or Administrator, and such moneys shall be
assets in his hands to be administered according to law. When scire facias may be prosecut- (3024.) Sec. 11. Any person who may be injured by the
breach of the conditions of such bond, may afterwards, from time to time, sue out and prosecute a scire facias in his own name, on the judgment which may have been rendered for the penalty of such bond; and in such scir? facias shall assign and set forth the breaches on which he relies, and may
therein recover such damages as he may prove, with costs. By whom claims for damages for
(3025.) SEC. 12. Claims for damages on account of the breach of the conditions of any bond, may be prosecuted by any executor, Administrator or guardian, in behalf of those he may represent, in the same manner as by persons living, and of full age, and such claims may be prosecuted against
breach of condition may be prosecuted.