administer according to law; and further do make or cause to be made, a just and true account of said administration upon oath on or before the day of which will be in the year of our Lord one thousand eight remainder of the said goods and chattels, rights and credits, aforesaid,) shall deliver and pay unto such person or persons, Sealed and delivered, in presence of us. trator, in case SECT. 15. Be it further enarted, That where two or more One may sue persons have letters of administration granted them of any in- his co-administestate estate, and one or more of them take all or the greatest part of such estate into their hands, and refuse to pay the debts or funeral charges of such intestate, or refuse to account with the other administrator, then, and in such case, it shall be law- 2 Geo. I. ch. 6. ful for such aggrieved administrator to bring his action of account against the other administrator or administrators, and recover his proportionable share of such intestate's estate as shall belong or appertain to him. 1783 ch. 36, §9. wealth belong administered SECT. 16. Be it further enacted, That when any person who Estates in the has died or shall die intestate without the Commonwealth, shall Commonleave estate of any description within the same to be adminis- ing to persons tered, any person interested in such estate shall be entitled to out of it, to be letters of administration thereon, in like manner as if such in- as others. testate had died within the Commonwealth; and the Judge of Probate of any county, wherein such estate shall be found, shall have power to grant such letters of administration accordingly, which shall extend to all the estate of such intestate within the Commonwealth; and the same estate shall be settled in the county where such letters of administration shall have been first granted; and after such letters shall have been granted and notice thereof given by the administrator in like manner as in other cases, any new letters of administration on the same estate shall be void. SECT. 17. Be it further enacted, That administration shall Original adnot be originally granted upon the estate of any deceased per- ministration son after the expiration of twenty years from the death of such person; nor shall administration of the goods or estate of any limited to 20 years -administra tion de bonis non, to $20. 9 Geo. I. ch. 1. 1783 ch. 36, ◊ 10. Suits by or against execu ing at their decease, may be ministrator de pursued by ad bonis non and a scire facias may be sued by or against them. 1812 ch. 105. 4 Mass. Rep. 612. Personal es tate to be ac counted for at the appraise ment, unless the judge order it to be sold. deceased person, not administered upon by a former executor or administrator, be granted, until it shall evidently appear to the Judge of Probate, by the oath of the party applying, or otherwise, that there is personal estate of such deceased person, to the amount of twenty dollars or upwards, or debts of the like or greater value due from such deceased person unpaid. SECT. 18. Be it further enacted, That whenever any executor or administrator shall die, or be removed from office, during the pendency of any suit brought by, or against him, in said capacity, the same suit may be prosecuted by, or against any administrator de bonis non, who shall thereupon be appointed, and process may thereupon issue in due form of law, to compel any such administrator de bonis non to become a party to the suit; and if such administrator de bonis non shall, after due service of such process, neglect or refuse to become a party to the suit, judgment may be rendered against him in the same manner as if he had voluntarily come in and become a party to the suit, and had therein been defaulted or nonsuited. And when judgment shall be had in any suit in which an executor or administrator is a party, and such executor or administrator shall afterwards die or be removed from office, in such case a scire facias may be sued and execution taken out upon such judgment, either by or against any administrator de bonis non, who shall be thereupon appointed, and any execution, which may have duly issued upon such judgment, may be perfected by either of said parties respectively; and a writ of error, to correct any errors in such judgment, may be brought in manner prescribed by law, either by or against such administrator de bonis non, in like manner as it might have been by or against the original executor or administrator, who was a party to such judgment. SECT. 19. Be it further enacted, That every administrator shall be held to account with the Judge of Probate, for the personal estate of the deceased, as the same shall be appraised, unless the said judge shall think it will be more for the benefit of the parties interested, otherwise to dispose of the same; in which case the said judge shall order the same or any part thereof, to be sold at public auction, or at private sale, in such manner as he shall determine will best serve the interest of all parties interested; and the administrator shall account for Time of order- such estate as the same shall have been sold: Provided always, ing sale limited. That such sale shall be ordered within the term of three months from the return of the inventory, and not afterwards, unless the said Judge of Probate shall, for special reasons, think proper to allow a further term, not exceeding six months. SECT. 20. Be it further enacted, That in any case, where the oath of an executor, administrator or guardian, is, or may be required by law to be made personally before the Judge of Probate, to any account which is to be settled by such judge, and such executor, administrator or guardian, shall be unable, by reason of sickness, bodily infirmity, or otherwise, to attend before such judge, it shall be lawful for such judge, by com mission of dedimus potestatem, to authorize any disinterested Justice of the Pence to administer such oath, a certificate whereof shall be returned to such judge, together with such commission and account and the vouchers to prove the same. ors. SECT. 21. Be it further enacted, That whenever it shall ap- Judge may aupear to any Judge of Probate, that any debtor to any estate thorize execuwithin his jurisdiction is unable to pay all his just debts, and tors, &c. to compound with that it is reasonable that his creditors should discharge him insolvent debtfrom all demands, upon their receiving from him a fair and equitable dividend of all his estate, it shall be lawful for the executor or administrator of any deceased creditor, by the consent and approbation of such judge, to join with those creditors who may agree in such discharge, and to sign the same upon such executor or administrator's receiving the just portion of said debtor's property, to which the said deceased creditor would have been entitled. required to give SECT. 22. Be it further enacted, That whenever any heir or Heirs and lelegatee shall be entitled to demand any distributive share or gatees may be legacy in any estate, the executor or administrator of such es- bond to refund, tate may, before payment of such distributive share or legacy, in caserequire bond to be given to himself, if the Judge of Probate shall deem it reasonable, with such surety or sureties as the said judge shall approve, by the parties or any of them who shall demand payment of such distributive shares or legacies, with condition, that the party or parties, to whom the same shall be paid, shall refund a proportional part of such estate, or otherwise indemnify such executor or administrator against any demands, which may be made against the testator or intestate respectively. SECT. 23. Be it further enacted, That in all cases wherein by law bonds are required to be given to any Judge of Probate, or to be filed in the probate office, it shall be the duty of the said judge first to examine and approve of such bonds, and on their being so approved, but not otherwise, the said judge shall order the same to be filed or recorded in the probate office. up Bonds to be ex amined and approved by the judge be fore they are filed. mong heirs and 4 W.& M. ch.2. 33 Geo. II.ch.2. SECT. 24. Be it further enacted, That whenever in the settle- Real estate to ment of the estate of any person deceased, there shall be be divided aany real estate to be divided among his or her heirs or devisees, devisees by the Judge of Probate, having jurisdiction of the settlement of three freeholdsuch estate, shall by warrant directed to a committee of three ers appointed discreet and disinterested freeholders, who shall be under oath, by the judgecause such real estate, situated in one or more counties in the Commonwealth, to be divided among the heirs or devisees of the person deceased, pursuant to his or her will, or to the laws regulating the descent and distribution of intestate estates, as the case may be; and where such real estate cannot be divided among all the heirs or devisees, or their legal representatives, without great prejudice to, or spoiling the whole, the said judge may assign the whole to one, or to so many of the heirs or devisees as the same will conveniently accommodate; always having due regard to the terms of any devise there may it. -may be as signed to one, it will accommodate, if division among or so many as all would greatly injure 4 W. &M.ch.2. 6 Geo. I. ch. 3. 1783 ch. 36,96. or secure to the be in the case, and also preferring males to females, and among the children of the deceased, elder to younger sons; and if any heir or heirs, devisee or devisees, to whom any real estate shall be so assigned, shall not accept the same and make or secure payments to be made as the said Judge of Probate shall direct, then and in such case the same may be so assigned to one or Those to whom more of the other heirs or devisees successively; in every case estate is as- the heir or heirs, devisee or devisees, to whom the same estate signed, to pay shall be assigned as aforesaid, paying to the other heirs or deothers the va- visees, their heirs or assigns, their proportionable shares of the true value thereof on an appraisement to be made by such committee, or giving such sufficient security to pay the same, and in such convenient time or times as the said Judge of Probate shall direct, with lawful interest till paid. And no conveyance, made by any heir or devisee, of his or her interest or estate in judge's author- the lands of any testator or intestate, shall take from said Judge of Probate his jurisdiction and authority to divide and assign the real estate of any testator and intestate among his or her heirs or devisees, in manner aforesaid. lue of their shares. Conveyance of his share by devisee, &c. not to affect ity to order division. 13 Mass. Rep. 413. If deceased's in common with others, committee for SECT. 25. Be it further enacted, That when the Judge of Proreal estate lies bate shall issue such warrant for the purposes aforesaid, or for the assignment of dower in any such real estate, and such real estate shall lie in common and undivided with that of any other dividing or for person or persons, the said judge shall direct the committee assigning dow-named in such warrant, first to sever and divide the estate of the deceased from that of such other person or persons, the that of his co- said committee first giving timely notice to all parties interested in said estates, that they may be present, if they see fit, at the making of any such divisions. er are first to sever it from tenants. 1820 ch. 54. Division, when accepted and recorded, to bind all concerned. Proviso for minors, &c. SECT. 26. Be it further enacted, That such division of any such real estate, made as aforesaid, and accepted by the said Judge of Probate, and recorded in the probate office of the same county, shall be binding on all persons interested: Provided nevertheless, that when any minor or any person non compos mentis, or otherwise incapable to take care of their estates, or any persons who shall be out of the Commonwealth, are interested either in the estate of such deceased person, or in the estate with which it so lies in common, guardians shall be appointed for such minors, persons non compos, or otherwise incapable; and some suitable persons shall be appointed for such absent persons by the said judge, before such division, to represent and act for them respectively in the making thereof: -for previous And provided also, that before an order for such division shall issue, it shall be made to appear to the said Judge of Probate, sons interested. that the several persons interested in such estate, if living within the Commonwealth, and the attorney, if any, or other suitable person or persons, appointed as aforesaid, of such as may be absent from the Commonwealth, have had such due notice of such partition as the said judge shall have ordered, and have had opportunity to make their objections to the same: Provided also, that where an estate is devised, it shall be lawful for the said judge to order the whole or that part of it, whereof parti notice to per tion is applied for, to be divided among the devisees, according to their true proportions thereof by said committee. 4 Geo. II. ch.3. SECT. 27. Be it further enacted, That every committee, appoint- Before whom ed to make division as aforesaid, may be sworn before the Judge committee may of Probate appointing them, or before some Justice of the Peace; be sworn. and in case there shall be no Justice of the Peace in the town where such estate may lie, then before the town clerk of such Certificate of town; and a certificate of such oath shall be returned, by such turned to projustice or town clerk, to the probate office from which the war- bate office. rant for such division shall have issued. oath to be re versed on appeal. SECT. 28. Be it further enacted, That all such partitions of Partitions vareal estate, made, accepted and recorded as aforesaid, shall be lid, unless revalid in law to all intents and unless purposes, the appeal upon of any party aggrieved thereby, the same should be reversed or altered by the Supreme Court of Probate; but no partition shall be ordered by any Judge of Probate under this Act, when the proportions of the heirs or devisees, or any of them, shall Judge not to be disputable by the tenor of the will in the case, or any other when propormatter in writing, from which it shall appear that the propor- tions are disputable, &c. tions are uncertain, and ought, in the opinion of said judge, first to be legally ascertained. order partition cannot be sub convenience, it SECT. 29. Be it further enacted, That when any messuage, Where a tract tract of land, or other tenement, shall be of greater value than of land, &c. the share of any party in any real estate, to be divided as divided withaforesaid, and the same messuage, tract of land, or other tene- out great inment cannot without great inconvenience be subdivided; the con may be assignsame may be assigned to one of the parties only, such party ed to one parpaying such sum or sums of money to the other parties, who in ty on terms. consequence thereof have less than their shares of such real 1783 ch.36,$15. estate so divided, as the committee appointed to divide the same shall award. SECT. 30. Be it further enacted, That when any partition shall be made as aforesaid, and any one or more of the parties, interested in the estate descended or devised, shall neglect or refuse to pay their just proportion of the charges attending the same partition, it shall be lawful for the said Judge of Probate to issue a warrant of distress against such delinquent for the amount of such proportion and costs of such process: Provided always, that an account of such charges be first exhibited to the said judge, and the just proportion of such party so interested be settled and allowed, such party having had due notice to be present at the settlement and allowance thereof. 33 Geo. II.ch.2. Payment of the costs of parti tion may be enforced by warrant of distress against the delinquent party. 1783 ch.36, 14. 27 Geo.II.ch.2. Proviso. SECT. 31. Be it further enacted, That in case of any division Reversions and and settlement of real estate, pursuant to the warrant of a Judge remainders exof Probate, in manner aforesaid, it shall be lawful for such pectant, &c. subject to divijudge to order a division of the reversion and remainder expectant upon the determination of any estate in dower, in like 4 W. &M. ch.2. manner as the division of the other parts of such estate; and 7Mass. Rep.79. the division of such reversion and remainder shall be ordered 1812 ch. 93, 12. and made, either at the same time with the division of the other parts of such real estate, or upon the determination of the estate in dower, at the discretion of the said judge, whether such estate in dower shall be determined by the decease of the tenant |