costs, when

Executor, etc.

(2989.) SEC. 13. When costs, in any case, are allowed Execution for against an executor or Administrator, execution shall not issue awarded against against the estate of the deceased in his hands therefor, but shall be awarded against him as for his own debt; and the amount paid by him shall be allowed in his administration account, unless it shall appear that the suit or proceeding, in which the cost shall be taxed, shall have been prosecuted or resisted without just cause.

ining accounts of Administrators.

(2990.) SEC. 14. Before the administration account of any Notice of examexecutor or Administrator shall be allowed, notice shall be Executors and given to all persons interested, of the time and place of examining and allowing the same; and such notice may be given. personally, to such persons as the Probate Court shall judge to be interested, or by public notice, under the direction of the Court.

Provision for

ehildren under

age.

Chapter Seventy Four of Revised Statutes of 1846. (a)

(2991. SECTION 1. Before any partition or division of any seven years of estate among the heirs, devisees or legatees, an allowance shall be made for the necessary expenses of the support of the children of the deceased, under seven years of age; and the Probate Court may order the executor or Administrator to retain in his hands sufficient estate for that purpose; except where some provisions shall have been made by will for their support.

After payment of

debts, residue to be assigned to

(2992.) SEC. 2. After the payment of the debts, funeral persons entitled charges, and expenses of administration, and after the thereto. allowances made for the expense of the maintenance of the 2 Pick. Rep., 67. family of the deceased, and for the support of the children under seven years of age, and after the assignment to the widow of her dower and of her share in the personal estate, or when sufficient effects shall be reserved in the hands of the executor or Administrator for the above purposes, the Probate. Court shall, by a decree for that purpose, assign the residue of the estate, if any, to such other persons as are by law entitled to the same.

Decree what to specify.

No person entitled to share of

debts, etc., paid,

be given.

(2993.) SEC. 3. In such decree, the Court shall name the persons, and the proportions or parts to which each shall be entitled; and such persons shall have right to demand and recover their respective shares from the executor or Administrator, or any person having the same.

(2994.) SEC. 4. Such decree may be made on the application Estate, until of the executor or Administrator, or of any person interested unless Bond in the estate, but no heir, devisee or legatee shall be entitled to a decree for his share, until payment of the debts, and allowances and expenses mentioned in the preceding section shall have been made or provided for, unless he shall give a bond to the Judge of Probate, with such surety or sureties as the Court may direct, to secure the payment of his just proportion of such debts and expenses, or such part thereof as shall remain unprovided for, and to indemnify the executor or Administrator against the same.

When partition may be made.

(2995.) SEC. 5. When the estate, real or personal, assigned to two or more heirs, devisees or legatees, shall be in common

(a) For prior laws relative to partition in Probate Court, see Code of 1820, p. 29; Rev. of 1827, 64; Rev. of 1833, 308; R. S. 1838, 487; Laws of 1842, 112; 1843, 172; 1844, 115.

and undivided, and the respective shares shall not be separated and distinguished, partition and distribution may be made by three discreet and disinterested persons, to be appointed Commissioners for that purpose by the Probate Court, who shall be duly sworn to the faithful discharge of their duties before the Judge of Probate or a Justice of the Peace, and the Judge of Probate shall issue a warrant to them for that purpose.

different Proceeding

when Real Estate

Counties

(2996.) Sec. 6. If the real estate shall lie in counties, the Probate Court may, if it shall be judged proper, lies in different appoint different Commissioners for each county, and in such case, the estate in each county shall be divided separately, as if there was no other estate to be divided; but the Commissioners first appointed shall, unless otherwise directed by the Probate Court, make division of such real estate, wherever situated within this State.

cation for parti

(2997.) SEC. 7. Such partition and distribution may be Notice of appli ordered on the petition of any of the persons interested; but tion before any partition shall be ordered, as directed in this chapter, notice shall be given to all persons interested, who reside in this State, or their guardians, and to the agents, attorneys or guardians, if there be any in this State, of such as reside out of the State, either personally or by public notice, as the Probate Court shall direct.

shares have been

(2998.) SEC. 8. Partition of the real estate may be made, as partition when provided in this chapter, although some of the original heirs conveyed. or devisees may have conveyed their shares to other persons; and such shares shall be set to the persons holding the same, in the same manner as they otherwise should have been to such heirs or devisees.

out.

(2999.) SEC. 9. The several shares in the real and personal Shares how set estate shall be set out to each individual in proportion to his right, by such metes and bounds, or description, that the same can be easily distinguished; unless any two or more of the parties interested shall consent to have their shares set out, so as to be held by them in common and undivided.

When Estate cannot be divided,

the whole to one of parties.

(3000.) SEC. 10. When any such real estate cannot be divided without prejudice or inconvenience, to the owners, the Court may assiga Probate Court may assign the whole to one or more of the parties entitled to shares therein, who will accept it, always preferring the males to the females, and, among children, preferring the elder to the younger: Provided, the party so

When tract of greater value

ty's share, and

tics.

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 ed, may be set off 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.

When Estate of deceased lies in

frat severed.

(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 estate with which it lies in common, and such division so made, an established by the Probate Court,

Guardians for Mi.

nors, etc., and

residents.

shall be binding on all the p rsons interested.

(3003.) SEC. 13. Before any p rtition shall be made, or any Agents for non-estate divided, as provided in this hapter, 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 Proceedings 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

missioners and

thereon.

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.

may be dispens

(3005.) SEC. 15. When the Probate Court shall make a When partition decree, 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.

ing to advance

mined.

(3006.) SEC. 16. All questions as to advancements made or questions relat alleged 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 the 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.

conclusive.

(3008.) SEC. 18. The partition, when finally confirmed and Partition when established, shall be conclusive on all the heirs and devisees, and all persons claiming under them, and upon all persons interested.

etc., may pay ex

tion.

(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.

to be paid by

ed.

(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.