1 Story, 426. same share of his estate, both real and personal, that they would have R. S. 62, § 21. been entitled to if he had died intestate; unless they shall have been 1 Mass. 146. provided for by the testator in his lifetime, or unless it appears that 2 Mass. 570. such omission was intentional, and not occasioned by accident or 14 Mass. 357. mistake. 3 Mass. 17. 6 Met. 400. SECT. 26. When a child of a testator, born after his father's death, 3 Gray, 367. has no provision made for him by his father, in his will or otherwise, he Case of postshall take the same share of his father's estate, both real and personal, having no prothat he would have been entitled to if his father had died inteştate. humous child vision. R. S. 62, § 22. equally to share SECT. 27. When a portion is assigned to a posthumous child, or to Devisces, &c., to a child or the issue of a child omitted in the will of his parent, as men- contribute tioned in the two preceding sections, the same shall be taken equally of posthumous from all the devisees and legatees, in proportion to the value of what RS. 62, § 23. they respectively receive under the will; unless in consequence of a specific devise or bequest, or of some other provision in the will, a different apportionment among the devisees and legatees is found necessary, in order to give effect to the intention of the testator as to that part of his estate which passes by his will. testator, and 11 allen 36 SECT. 28. When a devise of real or personal estate is made to a Case of devisee child or other relation of the testator, and the devisee dies before the dying before testator, leaving issue who survive the testator, such issue shall take leaving issue. R. S. 62, § 24. the estate so devised in the same manner as the devisee would have Cas. Tem. Talb. done if he had survived the testator; unless a different disposition 251; 1 Scho. & thereof is made or required by the will. Lef. 111. 5 Met. 396. for debts, other tribute. SECT. 29. When any estate, real or personal, that is devised, is taken When estate defrom the devisee for the payment of the debts of the testator, all the vised is taken other devisees and legatees shall contribute their respective proportions devisees to conof the loss to the person from whom the estate is taken, so that the loss R. S. 62, § 25. shall fall equally on all the devisees and legatees according to the value 1 Cush. 107. of the property received by each; except as provided in the following section. SECT. 30. If in such case the testator, by making a specific devise or bequest, has virtually exempted any devisee or legatee from liability to contribute with the others for the payment of the debts, or if by any other provisions in his will he has prescribed or required any appropriation of his estate for the payment of his debts different from that prescribed in the preceding section, the estate shall be appropriated and applied in conformity with the will. Unless a differ- R. S. 62, § 26. able for debts. R. S. 62, § 27. SECT. 31. Nothing contained in the two preceding sections shall im- Whole estate lipair or in any way affect the liability of the whole estate of the testator for the payment of his debts; but the provisions in these sections shall apply only to the marshalling of the assets, as between those who hold or claim under the will. SECT. 32. When part of the estate of a testator descends to a child Child, &c., omitor other descendant by reason of his having no provision made for him ble and entitled in the will, or when it descends to a posthumous child, such estate shall, to contribution, for all the purposes of the three preceding sections, be considered as if R. S. 62, § 28. it had been devised to such child or other descendant; and he shall be bound to contribute with the devisees and legatees, and entitled to claim contribution from them, as before provided. ted in will, lia as devisce. vency of dev SECT. 33. When any person liable to contribute towards the dis- Case of insolcharge of such debt according to the provisions of the four preceding isee, &c. sections, is insolvent or unable to pay his just proportion thereof, the R. S. 62, § 29. others shall be severally liable for the loss occasioned by such insolvency, each one in proportion to the value of the property received by him from the estate of the deceased; and if any person so liable dies without having paid his proportion of such debt, his executors and administrators shall be liable therefor, in like manner as if it had been his proper debt, to the extent to which he would have been liable if living. Undevised real estate first liable for debts. R. S. 62, § 30. 148, 312. SECT. 34. When part of the real estate of a testator descends to his heirs, by reason of its not being devised or disposed of by his will, and his personal estate is insufficient for the payment of his debts, the un3 John's Ch. R. devised real estate shall be first chargeable with the debts, in exoneration as far as it will go of the real estate devised; unless it appears from the will that a different arrangement of his assets for the payment of his debts was made by the testator; in which case they shall be applied for that purpose in conformity to the will. 6 Mass. 149. Proceedings in bution. R. S. 62, § 31. SECT. 35. All cases arising under the preceding provisions of this suits for contri- chapter, in which devisees or legatees may be required to contribute to make up the share of a child of the testator, or of the issue of a child, or in which contribution is to be made among devisees, legatees, and heirs, or any of them, may be decided in an action at law, when the case is such as to allow of that course of proceeding; or may be heard and determined in the probate court, allowing an appeal to the supreme court of probate as in other cases; or they may be originally brought and finally determined in the supreme judicial court as a court of equity. Devisees to con when dower, &c., is taken from one. 1839, 96, § 1. 1854, 406. 1854, 428. SECT. 36. When the estate of one or more devisees under a will is tribute equally taken and assigned by the probate court for the dower of the widow of the testator, or for the portion given to her by law in lieu of dower, or is set out to her upon a judgment or decree of any other court therefor, all the other devisees and legatees shall contribute their respective proportions of the loss to the person from whom the estate is so taken or set out, so as to make the loss fall equally upon all the devisees and legatees in proportion to the value of property received by them under the will; but no devisee or legatee shall be held to contribute who is exempted therefrom by the provisions of the will. 1 Cush. 107. Such cases, how No will effectu bate. SECT. 37. All cases arising under the preceding section may be decided in an action at law when the case is such as to allow of that course of proceeding, or they may be originally brought and determined in the supreme judicial court as a court of equity. SECT. 38. No will shall be effectual to pass real or personal estate, al without pro- unless it has been duly proved and allowed in the probate court; and the probate of a will devising real estate shall be conclusive as to its due execution, in like manner as of a will of personal estate. R. S. 62, § 32. 16 Mass. 433. 1 Pick. 114. 6 Met. 369. 12 Met. 421. TITLE IV. [OF THE SETTLEMENT OF ESTATES OF DECEASED PERSONS, TRUSTS, AND SPECIAL PROVISIONS RELATING TO ESTATES, TRUSTS, AND GUARDIANSHIPS.] CHAPTER 93.— Of Letters Testamentary and Proceedings on the Probate of Wills. CHAPTER 94. — Of Administration and the Distribution of Estates of Intestates. CHAPTER 96. Of Inventories, Allowances to Widows and Children, and Collec tion of the Effects of Deceased Persons. CHAPTER 97.-Of the Payment of Debts and Legacies. CHAPTER 98.-Of the Accounts and Settlements of Executors and Adminis trators. CHAPTER 99. Of Insolvent Estates. CHAPTER 100.- Of Trusts. CHAPTER 101.- Special Provisions relating to Estates, Trusts, and Guardianships. SECTION 1. When a will has been duly proved and allowed, the Letters testaprobate court shall issue letters testamentary thereon to the executor mentary to be named therein, if he is legally competent, and if he accepts the trust R. S. 63, § 1. and gives bond to discharge the same; otherwise the probate court shall grant letters of administration on the estate as hereinafter provided. 6 Met. 369. bond. 1850, 196. SECT. 2. Every executor, before entering upon the execution of his Executor's trust, shall give bond with sufficient surety or sureties in such sum as R. S. 63, § 2. the judge of the probate court shall order, payable to said judge and his successor, with condition substantially as follows, (except as provided in chapter one hundred and one :) — First. To make and return to the probate court, within three months, a true inventory of all the real estate, and all the goods, chattels, rights, and credits, of the testator, which are by law to be administered, and which shall have come to his possession or knowledge: Second. To administer according to law, and the will of the testator, all his goods, chattels, rights, and credits, and the proceeds of all his real estate that may be sold for the payment of his debts or legacies, which come to the possession of the executor, or of any other person for him: and Third. To render upon oath a just and true account of his administration, within one year, and at any other times when required by said court. When two or more persons are appointed executors, none shall intermeddle or act as such but those who give bond as before prescribed. 1 Mass. 35. 8 Pick. 526. 7 Cush. 207. when he is residuary lega 5 Met. 247. 5 Gray, 67. SECT. 3. If it appears to the judge, that the bond prescribed by the preceding section is not necessary for the protection of any person tee. interested in the estate, he may permit an executor who is residuary 1857, 88, §1. legatee, instead of giving such bond, to give bond in a sum and with 8 Cush. 235. sureties to the satisfaction of the judge, with condition to pay all debts 2 Gray, 404. and legacies of the testator, and such sums as may be allowed by the probate court for necessaries to the widow or minor children; and in such case the executor shall not be required to return an inventory. SECT. 4. The giving of the bond provided for in the preceding sec- not to distion, shall not discharge the lien on the real estate of the testator for charge lien of the payment of his debts, except on such part as shall have been sold real estate, unby the executor to a purchaser in good faith and for a valuable consideration; and all estate not so sold may be taken on execution by any creditor not otherwise satisfied, in like manner as if a bond had been given in the other form. creditors on less, &c. 1857, 88, § 2. 3 Mass. 523,542. SECT. 5. An executor shall be exempt from giving a surety or sure- Executor, when exempt from giving sureties. 1858, 72. Executor renouncing, or not named, &c., to be granted. R. S. 63, § 5. 1855, 111, § 1. ties on his bond, when the testator has ordered or requested such exemption, or that no bond should be taken, or when all the persons interested in the estate who are of full age and legal capacity, other than creditors, certify to the court their consent thereto; but not until all creditors of the estate, and the guardian of any minor interested therein, have been notified, and had opportunity to show cause against the same: provided, that the judge may, at or after the granting of let ters testamentary, require bond with sufficient surety or sureties, if he is of opinion that the same is required by a change in the situation or circumstances of the executor, or for other sufficient cause. SECT. 6. If a person appointed executor refuses to accept the trust, or, after being duly cited for that purpose, neglects to appear and acadministration cept the same, or neglects for twenty days after probate of the will to give bond as before prescribed, the probate court shall grant letters testamentary to the other executors, if there are any capable and willing to accept the trust; and if there are none, or if, in any case, the executors are dead, or none are named in the will, the court shall commit administration of the estate, with the will annexed, to the widow of the deceased, or to his next of kin, or to such other person as would have been entitled thereto if the deceased had died intestate: provided, that after the expiration of said twenty days, and before letters testamentary or of administration with the will annexed are granted, the court may grant letters testamentary to any person appointed executor who shall give the bond prescribed by law. Administration SECT. 7. When a person appointed executor is at the time of provduring minori- ing the will under the age of twenty-one years, administration with the ty of executor. K. S. 63, § 6. will annexed may be granted during his minority, unless there is another executor who accepts the trust, in which case the estate shall be administered by such other executor until the minor arrives at full age, when upon giving bond as before provided he may be admitted as joint executor with the former. Bond of administrator, with will annexed. R. S. 63, § 8. Executor of ex- SECT. 8. Whoever is appointed administrator with the will annexed, shall, before entering on the execution of his trust, give bond to the judge of the probate court in like manner and with like condition as is required of an executor. SECT. 9. The executor of an executor shall not, as such, administer the estate of the first testator. ADMINISTRATION. SECTION 1. Administration of the estate of an intestate shall be Administration, granted to some one or more of the persons hereinafter mentioned; and to whom grant they shall be entitled thereto as follows: R. S. 64, § 4. 18 Pick. 24. First. His widow, or next of kin, or both, as the probate court shall 19 Pick. 336. deem fit; and if they do not either take or renounce the administration, 1 Cush. 525. 2 Gray, 228. they shall, if resident within the county, be cited by the court for that purpose: Second. If the persons so entitled are incompetent, or evidently 4 Cush. 412. unsuitable for the discharge of the trust, or if they neglect without sufficient cause for thirty days after the death of the intestate to take administration of his estate, the probate court shall commit administration to one or more of the principal creditors, if there is any competent and willing to undertake the trust: Third. If there is no such creditor, administration shall be granted to such other person as the court shall deem fit: provided, Fourth. That if the deceased was a married woman, administration of her estate shall in all cases be granted to her husband, if competent and willing to undertake the trust, unless by force of a marriage settlement or otherwise she has made some testamentary disposition of her separate estate, or some other provision, which renders it necessary or proper to appoint some other person to administer her estate; and Fifth. If the deceased leaves no widow, husband, or next of kin, in R. S. 64, § 4, this state, administration shall be granted to a public administrator in preference to creditors. 2 1839, 142. tor's bond. SECT. 2. Every administrator, before entering on the execution of his Administratrust, shall give bond, with sufficient sureties in such sum as the judge R. S. 64, $5. of the probate court shall order, payable to said judge and his succes- 1850, 196. sors, with condition substantially as follows, (except as provided in chapter one hundred and one :) — First. To make and return into the probate court, within three months, a true inventory of all the real estate, and all the goods, chattels, rights, and credits, of the deceased, which have or shall come to his possession or knowledge: Second. To administer according to law all the goods, chattels, rights, and credits, of the deceased, and the proceeds of all his real estate that may be sold for the payment of his debts, which shall at any time come to the possession of the administrator or of any other person for him : Third. To render upon oath a true account of his administration within one year, and at any other times when required by the probate court: Fourth. To pay any balance remaining in his hands, upon the settlement of his accounts, to such persons as the probate court shall direct: Fifth. To deliver the letters of administration into the probate court, in case any will of the deceased is thereafter duly proved and allowed. 1 Mass. 35. not to be grant SECT. 3. Administration shall not be originally granted after the Administration expiration of twenty years from the death of the testator or intestate, ed after twenty except in cases expressly authorized by law. years. R. S. 64, § 13. 1844, 115, § 2. Cush. 493. See Ch. 99, § 28. SECT. 4. When administration has not been taken on the estate of a person deceased intestate within twenty years after his decease, if thereafter any property real or personal accrues to said estate, or belong- except when ing thereto first comes to the knowledge of any person interested therein, property acoriginal administration may be granted on such property at any time 1848, 309, § 1. within five years next after it so accrues or becomes known, but such administration shall affect no other property. crues, &c. revoked on proof of will. SECT. 5. If, after granting letters of administration as of an intestate estate, a will of the person deceased is duly proved and allowed, the first R. S. 64, § 16. administration shall be revoked; and the executor, or administrator with the will annexed, may demand, collect, and sue for, all the goods, chattels, rights, and credits, of the deceased, remaining unadministered. |