SECT. 31. If the provision made by the will, or the estate appropriated, shall not be sufficient to pay the debts, expenses of administration and family expenses, such part of the estate of the testator, real or personal, as shall not have been disposed of by the will, if any, shall be appropriated according to the provisions of the law for that purpose. SECT. 32. The estate, real or personal, given by will to any devisees or legatees, shall be held liable for the payment of the debts, expenses of administration and family expenses, in proportion to the amount of the several devises or legacies, except that specific devises and legacies, and the persons to whom they shall be made, may be exempted, if it shall appear to the court necessary, in order to carry into effect the intention of the testator, and if there shall be other sufficient estate. SECT. 33. The thirty-second section of the forty-fifth chapter of the Revised Statutes, (§ 32 of this chap.) shall not be construed in such a way as to prevent specific and general devises and legacies from abating in the same manner, and according to the same rules which regulated their abatement previous to the passing of the thirty-second section aforesaid. (No. 33 of 1842.) SECT. 34. When the estate, given by any will, shall be liable for the payment of debts and expenses, as mentioned in the preceding section, or is liable to be taken, to make up the share of a child born after the execution of the will, or of a child, or the issue of a child not provided for in the will, as mentioned in the twentyseventh section, the executor shall have a right to retain possession of the same, until such liability shall be settled by order of the probate court, and until the devises and legacies, so liable, shall be accordingly assigned by order of such court; and when the same can properly be done, any devisee or legatee may make his claim to such court, to have such liability settled, and his devise or legacy assigned to him. (Sec. 33 of R. S.) SECT. 35. All the devisees and legatees, who shall, with the consent of the executor, or otherwise, have possession of the estate given to them by will, before such liability shall be settled by the probate court, shall hold the same, subject to the several liabilities mentioned in the preceding section, and shall be held to contribute, according to their respective liabilities, to the executor, or to any devisee or legatee, from whom the estate, devised to him, may have been taken for the payment of debts or expenses, or to make up the share of a child born after the making of the will, or of a child or the issue of a child omitted in the will; and the persons, who may, as heirs, have received the estate, not disposed of by the will, as mentioned in the thirty-first section, shall be liable to contribute, in like manner as the devisees or legatees. (Sec. 34 of R. S.) SECT. 36. If any of the persons liable to contribute, according to the provisions of the preceding section, shall be insolvent, and' unable to pay his share, the others shall be severally liable for the loss occasioned by such insolvency, in proportion to, and to the extent of, the estate they may have received; and if any of the persons so liable to contribute shall die, before having paid his share, the claim shall be valid against his estate, in the same manner as if it had been his proper debt. (Sec. 35 of R. S.) SECT. 37. The probate court may, by decree for that purpose, settle the amount of the several liabilities, as provided in the preceding sections, and decree how much, and in what manner, each person shall contribute, and may issue execution as circumstances may require; and the claimant may also have a remedy, in any proper action or complaint in law or equity. (Sec. 36 of R. S.) SECT. 38. Attested copies of all wills devising lands, or any interest in lands, and of the probate thereof, shall be recorded in the office of the town clerk of the town in which the lands lie. (Sec. 37 of R. S.) SECT. 39. The word "executor" in this and the subsequent chapters, shall be construed to include an administrator with the will annexed. (Sec. 38 of R. S.) CHAPTER 49. LETTERS TESTAMENTARY AND OTHER PROCEEDINGS ON THE PROBATE OF A WILL. SECTION BEING IDENTICAL WITH Chap. 46 of the Revised Statutes, pp. 259–261. 1. Executor named in will to have letters testamentary. 2. To give bond-conditions. 3. Conditions where executor is residuary leg atee. 4. Executor, refusing to give bond, not to intermeddle, &c. 5. If no executor will accept, administration to be granted to others. 6. If executor be under age, administration to be granted during his minority. 7. Administrator with will annexed, to give SECTION bond. 8. Marriage of executrix to extinguish her authority. 9. Executor may be removed. 10. If executor die, &c. administration de bonis non, &c. 11. If all executors do not act, such as do to have the powers of all. 12. Executor of an executor not allowed to administer. 13. Executors may give joint or separate bonds. SECTION 1. When a will shall have been duly proved and allowed, the probate court shall issue letters testamentary thereon to the person named executor therein, if he shall accept the trust and give bond as required by law. SECT. 2. Every executor, before he shall enter upon the execution of his trust, and before letters testamentary shall issue, shall give a bond in such reasonable sum as the probate court may direct, with one or more sufficient sureties, with conditions as follows: First. To make and return to the probate court, within three months, a true and perfect inventory of all the goods, chattels, rights, credits and estate of the deceased, which shall come to his possession or knowledge, or to the possession of any other person for him: Second. To administer, according to law and to the will of the testator, all his goods, chattels, rights, credits and estate, which shall, at any time, come to his possession, or to the possession of any other person for him; and of the same pay and discharge all debts, legacies and charges, chargeable on the same, or such dividends thereon, as shall be ordered and decreed by the probate court: Third. To render a true and just account of his adminstration to the probate court within one year, and at any other time when required by such court: Fourth. To perform all orders and decrees of the probate court, by the executor to be performed in the premises. SECT. 3. If, however, the executor shall be residuary legatee, instead of the bond prescribed in the preceding section, he may give a bond in such sum and with such sureties as the court may direct, with a condition only to pay all the debts and legacies of the testator; and, in such case, he shall not be required to return an inventory. SECT. 4. No person, named executor in any will, who shall refuse to accept the trust, or shall neglect to give bond, as prescribed in this chapter, for twenty days after the probate of such will, shall intermeddle or act as executor. SECT. 5. If a person, named executor in any will, shall refuse to accept the trust, or shall, for the space of twenty days after the probate of the same, neglect to give bond as required by law, the probate court may grant letters testamentary to the other executors, if there be any, who are capable and willing to accept the trust; and, if there be no such other executor, who will give bond, the court may commit administration of the estate, with the will annexed, to such person as would have been entitled to the same, if the testator had died intestate. SECT. 6. When the person, named executor in any will, is under full age, at the time of proving the will, administration shall be granted, with the will annexed, during the minority of the executor, unless there shall be another executor, who shall accept the trust and give bond; and, in that case, the executor, who shall give bond, shall have letters testamentary, and shall administer the estate, until the minor shall arrive at full age; when he may be admitted, as joint executor, on giving bond according to law. SECT. 7. Every person, who shall be appointed administrator with the will annexed, shall, before entering upon the execution of his trust, give bond to the probate court, in the same manner and with the same conditions, as is required of an executor, and shall proceed in all things to execute the trust in the same manner as an executor would be required to do. SECT. 8. When an unmarried woman, appointed an executrix alone or jointly with another person, shall marry, her marriage shall extinguish her authority as executrix. SECT. 9. If an executor shall reside out of this state, or shall neglect, after due notice given by the probate court, to render his account and settle the estate according to law, or perform any decree of the court, or shall abscond, or become insane, or otherwise inca pable or unsuitable to discharge the trust, the probate court may remove such executor. SECT. 10. When an executor shall die or be removed, or his authority shall be extinguished, the remaining executor, if there be any, may execute the trust; and, if there shall be no other executor, administration with the will annexed may be granted of the estate not already administered. SECT. 11. When all the executors, appointed in any will, shall not be authorized, according to the provisions of this chapter, to act as such, such as are authorized shall have the same authority to perform every act and discharge every trust required and allowed by the will, and their acts shall be as valid and effectual, for every purpose, as if all were authorized and should act together; and administrators with the will annexed shall have the same authority to perform every act and discharge every trust, as the executor named in the will would have had, and their acts shall be as valid and effectual for every purpose. SECT. 12. The executor of an executor shall not, as such, have any authority to administer the estate of the first testator; but, on the death of the only surviving executor of any will, administration of the estate of the first testator, not already administered, may be granted with the will annexed to such person as the probate court may judge proper. SECT. 13. When two or more persons shall be appointed executors of any will, the probate court may take a separate bond, with sureties from each of them, or a joint bond from all with sureties. CHAPTER 50. THE ADMINISTRATION AND DISTRIBUTION OF ESTATES OF SECTION INTESTATES. COMPILED FROM Chap. 47 of the Revised Statutes, pp. 262-266. No. 34 "C Laws of 1842, SECTION 87. 11. Liability of persons embezzling, before administration. 12. On death, &c. of executor, &c. administra- 13. Administrator may be removed. 3. By what court administration to be granted. 15 In such cases, administrator de bonis non. SECTION 1. When any person shall die, possessed of any personal estate or of any right or interest therein, not lawfully disposed of by his last will, the same shall be applied and distributed as follows: First. The widow, if any, shall be allowed all her articles of apparel and ornament, the wearing apparel of the deceased, and such other part of the personal estate of the intestate, as the probate court may assign to her, according to her circumstances, and the estate and degree of her husband; which shall not be less, in any case, than one-third after the payment of the debts, funeral charges and expenses of administration; and this allowance shall be made, when the widow waives the provision made for her in the will of her husband, or the jointure or pecuniary provision made for her in lieu of dower, or the provision of the law, in the case of a widow, whose husband dies without issue, and shall be in lieu of her claim to the personal estate; provided, that if the widow shall not have been the first wife of the deceased, and he shall leave no issue by her, and an agreement shall have been entered into between them previous to their marriage, this provision shall be subject to the same exception, as provided in relation to the dower of the widow in such case: Second. The widow and children, constituting the family of the deceased, shall have such reasonable allowance out of the personal estate, as the probate court shall judge necessary for their maintenance during the progress of the settlement of the estate, according to their circumstances: which, in case of an insolvent estate, shall not be longer than eight months after granting administration, nor for any time after the dower and personal estate shall be assigned to the widow: Third. When a person shall die, leaving children under seven years of age, having no mother, or when the mother shall die before the children shall arrive at the age of seven years, an allowance shall be made for the necessary maintenance of such children, until they arrive at the age of seven years, out of such part of the personal estate and the income of such part of the real estate, as would have been assigned to their mother if she had been living: Fourth. If, on the return of the inventory of any intestate estate, it shall appear that the value of the whole estate does not exceed the sum of one hundred and fifty dollars, the probate court may, by a decree for that purpose, assign, for the use and support of the widow and children of such intestate, or for the support of the children under seven years of age, if there be no widow, the whole of such estate, after the payment of the funeral charges and expenses of administration: Fifth. If the personal estate (see § 2) shall amount to more than one hundred and fifty dollars, and more than the allowance mentioned in the preceding subdivisions of this section, the same shall be applied to the payment of the debts of the deceased, with the charges of his funeral and of settling his estate: Sixth. The residue, if any, of the personal estate shall be distributed in the same proportions, and to the same persons and for the same purposes, as prescribed for the descent and disposition of the real estate. (Sec. 1 of R. S.) |