Adminis sue his co adminis trator. sets in the hands of executor or administrator; but all such emblements growing on the lands on the day last mentioned, or at the time of the death of the testator or intestate, if that event happen after the thirty-first day of December, and before the first day of March, shall pass with the land to the heir, devisee, tenant in reversion or remainder. SEC. 12. And be it further enacted, That when two or trator may more shall have letters of administration granted them of any intestate estate, and any one or more of them shall take all or the greatest part of such estate into his or 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 and may be lawful for such aggrieved administrator to bring his action of account against the other administrator or administrators, and recover his proportionable share of such intestate estate. Husband ister on tate. SEC. 13. And be it further enacted, That the husband shall to admin- be entitled to the administration of his wife's personal eswife's estate, and shall not be compelled to distribute the same amongst her next of kin, but shall have and retain the surplus thereof, after payment of her debts, to his own use, any thing in this act to the contrary notwithstanding. Adminis estate of absent per sons. SEC. 14. And be it further enacted, That if any person tration on shall be absent from this State for the term of three years, without due proof of his being alive, the last will and testament of such person may be proved, and administration may be granted on such person's estate as if he were natProviso. urally dead: Provided nevertheless, That if such person shall afterwards return to this State, or shall constitute an agent or attorney to act in his behalf, the person or persons who shall have acted as executor or administrator as aforesaid, shall be accountable for, and shall deliver to such person, or his lawful agent or attorney, all the estate of every kind which shall then be in such person or persons' hands, as executor or administrator as aforesaid, after deducting such sum or sums as the court of probate shall allow in the settlement of such person or persons' account, for any payments or disbursements which they may have legally made in his or their said capacity, or which said court of probate may think reasonable to allow for his or their personal trouble in executing the trusts of their respective appointments as executor or executors, administrator or administrators, as aforesaid. utor, &c. in such case how to SEC. 15. And be it further enacted, That in case of the Party dydeath of any party, either the appellant or appellee, be- ing, execfore the sitting of the court appealed to, or where any ac- may prostion or suit is commenced, or shall be pending, either in ecute suit. the court of common pleas or in the supreme judicial court, in any county, and it shall so happen that either party shall die before final judgment, the executor or administrator of such deceased party, in case the cause of action doth survive, shall have full power to prosecute or defend any such action or suit from court to court, until final judgment, and are hereby obliged to prosecute or defend the same accordingly: and the justices of the same Judgment courts respectively, before whom such causes are commenced, or may be pending, are hereby empowered and be entered. directed to hear and determine the same, proceed to judgment, and award execution accordingly: and if any executor or administrator shall neglect to appear and take upon himself the prosecution or defence of any action or suit as aforesaid, being duly notified thereof, by order of the court where the same shall be pending; or if having appeared, and become a party thereto, judgment shall pass against such executor or administrator, the said courts are hereby respectively authorized and empowered to enter up judgment against the estate of the deceased, in the hands of such executor or administrator, and the like process shall be had thereon as if the action had been originally commenced against them in their said capacity. tors, &c. Not hold SEC. 16. And be it further enacted, That all writs of at- Writs, &c. tachment and executions, shall run against the goods, chat- vs. executels, rights and credits of the person deceased, only, in the how to ishands of the executor or administrator, and not against sue. his body; nor shall any executor or administrator be holden to special bail, upon mesne process, nor his own prop- en to bail, er goods or estate be attached, or his person be arrested &c. or taken in execution, for the debts or legacies of the testator or intestate, but upon suggestion of waste, founded Unless on on a return made by the sheriff, on an execution issued of waste. against the estate of the testator or intestate as aforesaid, that he could not find any such estate whereon to levy such execution; in which case a writ of scire facias shall Scire fabe issued out of the clerk's office of the same court, against such executor or administrator, which writ being duly suggestion cias against. No action ecutor year. Except. served by the officer to whom it shall be directed, by reading the same to such executor or administrator, or by leaving an attested copy thereof at his last and usual place of abode, and returned, if the executor or administrator make default of appearance, or coming in shall not shew sufficient cause to the contrary, execution shall be awarded against him, of his own proper estate, for the sum recovered; and for want of estate, against the body of such executor or administrator, as for his own proper debt. SEC. 17. And be it further enacted, That no action shall against ex- be brought against any executor or administrator in his within one said capacity, within one year after the will shall be proved, or administration granted, except for medicines and attendance in the last sickness, and funeral charges of the deceased; nor shall any action be brought against any executor or administrator in his said capacity, unless the same shall be commenced within three years next after the will shall be proved, or administration shall be granted; provided such executor or administrator shall give notice of his appointment, by publishing the same in some public newspaper, in the State nearest to where the deceased person last dwelt, and in such other manner as the court of probate shall direct. Nor after three years. Executors &c. may bring actions of trespass, &c. Administrator de bonis non. Court of probate may ex son sus embezzling estate. SEC. 18. And be it further enacted, That executors and administrators shall have a right to bring actions of the case, of trespass and trover, in all cases except for injuries to the person or reputation, in which the testator or intestate might bring the same if in full life, and shall recover judgment accordingly. SEC. 19. And be it further enacted, That when any judgment shall be had, by or in the name of any executor or administrator, in such case an administrator de bonis non may sue out a writ of scire facias, and take execution upon such judgment. SEC. 20. And be it further enacted, That the courts of probate shall have power to call before them and examine amine per- upon oath, any person suspected and complained of, by pected of any executor, administrator, heir, creditor, legatee or other person having lawful right or claim to the estate of any person deceased, to have concealed, embezzled or conveyed away any of the personal estate left by the tesOn refusal tator or intestate, for the discovery of the same: and if to answer, the person suspected and complained of as aforesaid shall refuse to be examined, or to answer interrogatories upon oath respecting the estate which he or she may be may com mit. suspected of concealing, embezzling, or conveying away, the said court of probate are hereby empowered to commit such person so refusing to the common jail of the county, there to remain until he or she shall consent to be examined, and answer interrogatories upon oath as aforesaid, or be released by the consent of the person suspecting or complaining against him or her, or by order of the supreme judicial court. sets. SEC. 21. And be it further enacted, That whenever any Mortgages person or persons to whom any real estate may be mort- to be asgaged for payment of debts, or the performance of any collateral promise or engagement whatsoever, shall decease before the recovering of seizin and possession of the real estate mortgaged, that then the debts due on said deed of mortgage, and the real estate mortgaged by the same, shall be assets in the hands of executors and administrators, as personal estate, and the executors or administrators shall have the same control of all the estate which the said deceased had in the real estate mortgaged, as if it had been a pledge of personal estate; and may sell or dispose of the same, in the manner and for the purposes prescribed and mentioned in the next succeeding section: and executors or administrators may bring Executor actions of ejectment for the recovery of seizin and pos- may sue session of the real estate mortgaged as aforesaid; in which actions it shall be sufficient to declare on the seizin and possession of the mortgagor, and his conveyance by mortgage to the testator or intestate as aforesaid; and in all cases, debts due by mortgage shall be considered as personal property, and distributed as such. thereon, of the heir. SEC. 22. And be it further enacted, That whenever ex- Executor ecutors or administrators shall recover seizin or posses- to be seiz sion of the real estate, mortgaged as aforesaid, they shall ed to use be seized and possessed of the estate so recovered, to the sole use and behoof of the heirs of the intestate, or such devisees of the testator to whom said estate may be devised: but in case the lands mortgaged, and recovered But may as aforesaid, shall be necessary for the payment of debts, sell, in legacies, or charges of administration, and the same shall be certified from the court of probate, the said executors or administrators shall have full right, power and authority, to dispose and make sale of the whole or part of the real estate recovered as aforesaid, subject however to the equity of redemption; and it shall be lawful for the case. sale, &c. said executors or administrators to sell the same, at private At private sale, to any person who shall pay therefor the whole of the money due upon the mortgage, at the time of sale; provided the court of probate shall give leave for such private sale; otherwise the same shall be sold at public auction, to the highest bidder; and notice of such intended sale shall be given in the manner prescribed by this act for the sale of real estates by executors or administrators. Executors, &c. may receive money due on mortgage. SEC. 23. And be it further enacted, That after executors or administrators shall recover seizin or possession of any real estate mortgaged as aforesaid, and before conveyance or assignment thereof in manner aforesaid, if any mortgagor, his heirs, executors, administrators or assigns, shall, within the time limited for the equity of redemption, redeem the said mortgaged premises, the executors or administrators shall, in every instance, be entitled to receive the said redemption money, and are hereby authorized, empowered and directed, to discharge charge the the said mortgaged premises, by release, quit-claim or other legal conveyance. And dis same. SEC. 24. And be it further enacted, That the court of Allowance probate shall, in the settlement of the accounts of execufor the tors and administrators, make reasonable allowance for family of deceased. the support of the family of the deceased, after his or her decease, until the same can otherwise be provided for, having due regard to the situation of the family, and the value and circumstances of the estate, not exceeding the term of six months; and such executors and administrators shall also be allowed in their accounts, all reasonable charges and disbursements, which they shall lay out and expend in the funeral of the deceased, and other their administration, and may be allowed such recompence for their personal trouble, as the court of probate, on setWho shall tling their accounts, may consider just; and may be compelled to pay interest for the detention of monies in their hands, if, in the opinion of said court, it shall be rea And to executors, &c. pay interest, in case. Settle ment of sonable. SEC. 25. And be it further enacted, That the settlement of the accounts of any executor, administrator or guardian, by the court of probate, or in case of an appeal by the supreme judicial court, shall be final and conclusive on all parties concerned therein, and shall not be subject to re-examination in any way or manner whatsoever. |