1815-(6) Sec. 3. Executors trators to really worth, or was bona fide sold for more or less than the ap praisement. § 12. It shall be the duty of executors and administrators within two months after the granting letters testamentary or letters of adand adminis- ministration, to publish in some newspaper, printed in this territory, a notice requiring all persons having claims against the estate of their testator or intestate, to exhibit the same within the time limited by law, or the same will be barred; which notice shall state the time of their claims. granting such letters testamentary or letters of administration, and shall continue to be published once a week for six weeks. give notice in newspaper to creditors, to exhibit 1809-(6) Sec. 1. Executors, take the estate at its appraised value, nor to except at public sale. § 13. It shall not be lawful for any executor or executors, adminis trator or administrators, guardian or guardians, to take the estate or &c., not to any part thereof of any testator or intestate, at the appraised value, or to dispose of the same at private sale, except where the same is directed by the will of the testator. (1) But in all cases where it may dispose of it be necessary to sell the whole, or any part of the personal estate of any testator or intestate, it shall be the duty of the executor, administrator or guardian, to apply to the orphans' court of their county, for an order of sale, and upon obtaining the same to advertise the time and place of such sale, in three or more public places in their county, at least thirty days previous to the day of sale, and then and there proceed to sell the same, at public sale, to the highest bidder, giving at least six months credit, the purchaser giving bond with approved security. 1815 (6) Sec. 4. Sales by ex 12 o'clock § 14. No sale by executor or exccutrix, administrator or administratrix, shall commence before the hour of twelve o'clock, on the day ecutors to set apart for the same, nor continue longer than the hour of five o'clock commence at in the afternoon of such day; but in case the time aforesaid shall be and end at 5. insufficient to complete the sale of such estate, intended to be sold, such executors or administrators may, on such event, continue such sale from day to day, by giving public notice thereof to the attending company, at the conclusion of the sale of each day, of such continuance, which continued sale shall commence and end within the hours aforesaid; and all sales, which may be commenced and held in any other manner than herein directed, shall be null and void. May be continued by giving notice. 1810-(3) Sec. 5. Orphans' court may ecutor, &c., § 15. Whereas, it may sometimes become necessary to dispose of the crop belonging to the estate of deceased persons at private sale; Be it therefore enacted, That upon an application being made by any authorize ex executor, administrator, or guardian to the orphans' court of any coun to dispose of ty, or in vacation to the chief justice of said court, such court or chief crop at pri- justice may grant an order for the sale of the crop belonging to the estate, in such manner as shall seem reasonable and the situation of the estate to require; and in all cases, it shall be the duty of the court to require of the applicant or applicants, an account of his proceedings under such order, to be rendered to the next orphans' court of their county. sale. 1822-(18) Administra § 16. It shall be lawful for an administrator of any deceased intesSec. 1. tate, or the executor of any deceased testator, who has not power by tor or execu- the will of the testator to sell real estate for the purpose of paying tor may pet debts, or to make more equal distribution among the heirs, devisees, court for au- or legatees, to file a petition in the county court of the county in sell real es- which letters of administration, or letters testamentary have been tate. granted, setting forth that the personal estate of his intestate or testa tion county thority to Requisites of petition. (1) A purchase by an administrator, at his own sale by auction, is not void in itself; but is prima facie valid, if no unfairness appears. Brannan et al. v. Oliver, 2 Stewt. Rep. 47. tor, (as the case may be,) is not sufficient for the payment of the just debts of such intestate or testator; or that the real estate of such testator or intestate cannot be equally, fairly, and beneficially divided among the heirs or devisees of such intestate or testator, without a sale of the real estate, setting out and particularly describing in such petition, the estate proposed to be sold, and the names of the heirs or devisees of such intestate or testator, and particularly stating which are of age, and which are infants, or femes covert. Court to is § 17. Upon the filing of such petition in open court, it shall be the Ib. Sec. 2. duty of the court to order citations to all the heirs or devisees, who are sue citation of full age, and to the husbands of such as are femes covert, requiring to heirs. them to appear on a particular day, mentioned therein, at a regular or adjourned term of said court, anot less than forty days from the time of a 1806-(1) Sec. 28.] issuing such citations, and answer said petition; and it shall also be the duty of said court, forthwith to appoint guardians to such of the And appoint heirs or devisees as are infants, to answer and defend against said pe- guardians. tition; which guardian shall not be the petitioner, or of heir to the petitioner. Guardians to 18. It shall be the duty of the guardian or guardians appointed as Ib. Sec. 3. aforesaid, to deny all the allegations contained in said petition, with- deny allegaout being verified by oath; and if necessary to employ counsel to de- tions, and fend for his ward or wards. may employ counsel. Ib. Sec. 4. Proof by depositions. 19. Said court shall not decree or order sale of the real estate described in such petition, where the allegations are denied by the answer; unless satisfied by proof to be taken by deposition as in chancery cases, and filed in the cause; and where a sale of the estate shall be ordered or decreed, by the court, commissioners shall be appointed in the order or decree, with directions to sell the estate, either Commissionfor money, or on credit, as may be most just and equitable, and to ers to sell esreport to said court, at the time limited in the order or decree. tate. give bond be 20. The petitioner shall not receive the bonds or money returned b. Sec. 5. and reported by the commissioners, until he shall enter into bond and Petitioner to sufficient security to be approved by the court, conditioned for the fore receiv faithful payment and application of the money, arising from such sale, ceeds. according to the final decree. ing the pro der decree. 21. The said court shall, upon the coming in of the report of the Ib. Sec. 6. commissioners, render a final decree in the cause; and if the terms of Court to renthe sale have been complied with by the purchaser of the estate, the Commissioncommissioners shall be directed by such final decree to convey the ers to conestate sold to the purchaser. vey. Executors, bond con cerning the §22. Whenever the court shall, upon a full hearing of the cause, r. Sec. 7. decide that the estate shall not be sold, the judge shall dismiss the Petitioner pe- failing, to tition at the costs of the petitioner, to be levied of his own estate. pay costs. 23. Every executor, administrator, or guardian, empowered by 1806 (1) the orphans' court, or supreme, or superior court in chancery, to sell Sec. 30. the lands, tenements, and hereditaments, or any part thereof, of any &c., to give testator, intestate, ward, idiot, lunatic, or person non compos mentis, shall, before he or she obtains the order of sale from the office of the sale of lands. register, or clerk, enter into bond with sufficient securities, to the chief justice of the orphans' court, of the proper county, that he or she will observe the rules and directions of law, for the sale of real estates by executors, administrators, or guardians, (as the case may be,) and that he or she will well and truly account for the proceeds of the said sale, and that the same shall be disposed of agreeably to the rules of law. Ib. Sec. 31. § 24. The executor or administrator, who may be ordered to sell any lands, tenements, or hereditaments, of any testator or intestate, notice of sale by advertisement. 1823-(10) Sec. 1. sale when shall give notice by advertisements, put up at three or more public places in the county, where the lands, tenements, or hereditaments are situated, of the time and place of selling the same, at least forty days before the time of sale; and by publishing such advertisements in one of the public newspapers, in this territory, for three weeks successively, before such days of sale. § 25. In all cases where petitions may be presented to the judge of What suffici. any county court for the sale of any real estate, pursuant to the proent notice of visions of the above recited act, if the petitioner will make oath, that the heir's re- any of the heirs or devisees live beyond the limits of this state, or sidence is be- that their residence is unknown to the petitioner, a notice by adver state, or is tisement, published in one or more newspapers, for such length of time, as the judge of the said court may order, shall be deemed and held as sufficient notice, pursuant to the provisions of the aforesaid act, authorizing the sale of real estate. yond the unknown. a See § 16 to 22. 1821-(4) Sec. 22. ed within 3 months. § 26. Executors and administrators, within three months after their Inventories appointment, shall return to the clerk's office, a full inventory of all to be return the goods and chattels, rights of, and debts due or accruing to, the testator or intestate, at the time of his death, which have come to their possession or knowledge, setting forth the times at which debts are due, and whether due by open account, promissory note or bond; and within three months after such sale, shall in like manner return an acAnd account count thereof. Inventories and accounts of sales shall be subscribed of sales in and sworn to by the executor or administrator returning the same, before the judge, clerk, or some justice of the peace. like time. 1806-(1) Sec. 21. Powers and duties of judge of the orphans' lation to ex &c. counts. $27. The chief justice of the orphans' court of the county in which such justice resides, besides presiding in the orphans' court in the term time, is empowered and required, to take, receive, and credit all accounts of executors, administrators, and guardians; to receive wills court, in re- exhibited for probate, applications for administration, inventories and ecutors, ad appraisements; and to order such inventories and appraisements, duly ministrators, made and sworn to, to be recorded; to appoint guardians to minors, of their own election; to cause to be issued, all citations and other necessary process, returnable to the next term of said court;—And Auditing ac- the said chief justice, after examining and auditing such accounts, and causing them to be properly stated, shall report the same for allowance, to the next term of the said orphans' court, the executor, administrator, or guardian, giving at least forty days notice of his intention of having such account presented to the said court for allowance at such term, by posting up notice thereof in three of the most public places in the county, or advertising the same for three weeks at least, in some public newspaper in this territory, whichever, and as the said chief justice shall have directed; and the court, on due proof of notice, as aforesaid, and no exception being made to the report of the chief justice, may decree an allowance of the account as stated; but if any person or persons, interested in the settlement of the said account, shall, by himself or attorney, appear and make exception to the report, the court shall either proceed to hear the proofs and allegations, and correct or amend the mistakes or errors in the account as reported, or refer the same to auditors, who shall examine and restate the account, after hearing parties and witnesses, and make report to the next, or some subsequent term of the said court, for confirmation and allowance as aforesaid. 1 This notice is now required to be given by the judge. See “JudiciaryCounty Court.”—§ 33. Executors, to settle their tached. 28. Whenever any executor or executrix, administrator or admi- 1816—(7) nistratrix, or guardian, shall be cited by the orphans' court, or the t chief justice thereof, to appear and settle his accounts, as executor, &c., refusing administrator, or guardian, and shall fail to appear in obedience to the accounts citation, the said orphans' court shall have power to issue an attach- may be atment against the person or persons so failing, in the same manner as the superior courts of this territory might or could do, for disobedience to any order, judgment, or decree of said courts; and the said Proceedings orphans' court shall have power to summon a jury of by-standers whenever it may be necessary, in order to carry into effect the power hereby granted. thereon. Sec. 42. brought by each other, § 29. When two or more have letters of administration granted to 1806—(1) them, of any intestate's estate, and one or more of them take all, Action of ac or the greatest part of such estate, and refuse to pay the debts, or fu- count may be neral expenses of such intestate, or refuse to account with the other administraadministrator, in such case, the administrator so aggrieved, may have tors against his action of account against the other administrator or administrators; and by execu and recover such proportionable share of such estate as shall belong tors in cer to him; and any executor being a residuary legatee, may have an action of account against his co-executor or co-executors, and recover his Remedy by part of the estate, in the hands of such co-executor or executors; and legatees. any other residuary legatee may have the like remedy against the executors; and any person having a legacy bequeathed in any last will and testament, may sue for and recover the same, at common law. tain cases. Sec. 19. name of de §30. Where any suit may have been commenced on behalf of or 1821—(4) against the personal representative or representatives of any testator Suits may be or intestate, the same may be prosecuted by or against any person or continued in persons who may afterward succeed to the administration or executor- ceased execu ship: such person or persons may, at any time, be made parties on tor, &c. motion, and the cause shall proceed in the same manner, and judg- New parties ment therein be in all respects as effectual, as if the same were pro- made on mosecuted by or against the parties originally named. Where any per- Payments to sonal representative or guardian shall be displaced, all moneys due to him or her in such right, by execution or otherwise, shall be paid to his or her successor. tion. successor. may sue. §31. When letters testamentary, probate of a will, or letters of ad- b. Sec. 18. ministration on the estate of any testator having no known place of Executors appointed by residence in this state at the time of his or her death, shall have been other states duly obtained in any other state, territory, or country, and no personal representative of such testator or intestate shall have been duly appointed and qualified, in this state, the personal representative or representatives so appointed out of this state, may maintain any action, demand and receive any debt, and shall be entitled to all the rights and privileges which he, she, or they, could have done, or would have had, if duly appointed and qualified within this state: Provided al- Evidence of ways, That before the rendition of judgment in any such action, there their right. shall be produced in court where the same is pending, a copy of such letters testamentary, probate, or letters of administration, duly authenticated, according to the laws of the United States in such cases, and the certificate of the clerk of the county court of some county in this state, that such certificate has been duly recorded in his office; and in default of such proof, the court may direct a nonsuit to be entered: And provided further, That such foreign representative or represen- ed where tatives shall not be entitled to receive any money so recovered, or judgment is any money due to him, her, or them, in such rights, until the and bond copy of the letters testamentary, probate, or letters of administration given before shall have been recorded as aforesaid, and then shall have been depo- proceeds. To be record recovered, receiving 1806-(1) Sec. 35. Special sited in the clerk's office of the county court of the county where such judgment shall have been recovered, or of the county in which the debtor or debtors may reside, a bond in such penalty as the judge of said county court may direct, payable to him and his successors in office, and with such obligors thereto as he may approve, conditioned that such representative or representatives shall faithfully administer, and apply according to law, all moneys and effects received by him, her, or them, in right of such testator or intestate, from any person or persons in this state, and on such bonds, suits may be brought and judgment recovered, as in other cases. §32. Executors, administrators, and guardians, shall not be compelled to plead specially to any action, or suit at law, brought against pleading not them in their said capacity, but may under the general issue, give any special matter in evidence. (1) required of &c. executors, 1826-(15) Sec. 1. by executor § 33. So much of the act entitled "An act regulating judicial proceedings in certain cases, and for other purposes," passed December Mispleading eighteenth, one thousand eight hundred and eleven, as provides that or adminis- no executor or administrator shall be liable out of their individual estate, for not pleading, mispleading, or false pleading in or to any action whatever, which may be brought against them as such, is hereby repealed. trator. Tb. Sec. 2. not chargea §34. No security for an executor or administrator shall be chargeable beyond the assets of the testator or intestate, on account of any ble beyond omission or mistake in pleading of the executor or administrator. § 35. The appointment of a debtor, executor, shall in no case be deemed an extinguishment of the debt, unless it be so directed in the will. assetts for mispleading, &c. Ib. Sec. 3. Debtor ap pointed exec utor not re leased. NOTE-Property not devised or bequeathed by will, is required to be admi nistered, as in case of intestacy. See "Wills,"-57. When lands are directed by will to be sold, and no one is appointed by the testator for that purpose, or being appointed, refuses to act, the sale and conveyance may be made by the acting executor. See "Wills,”—§ 14. 1812-(20) Sec. 10. FEES. § 1. The clerks, sheriffs, and other officers, and persons hereafter named, shall be entitled to demand and receive for the services hereinafter mentioned, the fees thereto respectively annexed, and no more, to be paid, taxed, and collected, in manner hereinafter directed, that is to say: TO CLERKS Of Superior Courts. Clerk of cir. For every writ, other than those hereinafter particularly speci cuit court. (1) Held to extend to an action of covenant against an administrator, and that he may, under a general plea to the merits, give any special matter in evidence. Martin, adm'r v. White, 1 Stewt. Rep. 473. |