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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 remain

der. Adminis

Sec. 12. And be it further enacted, That when two or trator may more shall have letters of administration granted them of adminis- any intestate estate, and any one or more of them shall take trator.

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 in

testate estate. Husband 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 es- tate, and shall not be compelled to distribute the same tate.

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 notwithstand

ing: Adminis

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, absent per

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

estate of



of their respective appointments as executor or executors, administrator or administrators, as aforesaid. The

Sec. 15. And be it further enacted, That in case of the Party dydeath of any party, either the appellant or appellee, be- und

utor, &c. fore the sitting of the court appealed to, or where any ac- may prostion or suit is commenced, or shall be pending, either in ecute 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 com- in such

case how to menced, 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.

Sec. 16. And be it further enacted, That all writs of at- Writs, &c. tachment and executions, shall run against the goods, chat- vse

tors, &c. tels, 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 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 cias such executor or administrator, which writ being duly“


3. execu,

estion of waste.

served by the officer to whom it shall be directed, by reading the same to such executor or administrator, or by leay. ing 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. No action Sec. 17. And be it further enacted, That no action shall against ex- be brought against any executor or administrator in his ecutor within one said capacity, within one year after the will shall be provyear.

ed, 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 Nor after three

same shall be commenced within three years next after years. the will shall be proved, or administration shall be grant

ed; 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. Executors Sec. 18. And be it further enacted, That executors and &c. may administrators shall have a right to bring actions of the bring actions of case, of trespass and trover, in all cases except for injutrespass, ries to the person or reputation, in which the testator or

intestate might bring the same if in full life, and shall re

cover judgment accordingly. Adminis- Sec. 19. Ind be it further enacted, That when any judgtrator de ment 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 up

on such judgment. Court of Sec. 20. And be it further enacted, That the courts of proprobate

bate shall have power to call before them and examine amine per- upon oath, any person suspected and complained of, by son suspected of any executor, administrator, heir, creditor, legatee or

other person having lawful right or claim to the estate of zling estate.

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 may commit.

shall refuse to be examined, or to answer interrogatories upon oath respecting the estate which he or she may be



bonis non

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.

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.

Sec. 22. And be it further enacted, That whenever ex- Executor ecutors or administrators shall recover seizin or posses- to be seizsion of the real estate, mortgaged as aforesaid, they shall of the se

heir. 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, 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


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 ad

ministrators. Executors, Sec. 23. And be it further enacted, That after executors &c. mayor administrators shall recover seizin or possession of receive

any real estate mortgaged as aforesaid, and before condue on mortgage.

veyance 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 same.

other legal conveyance.

Sec. 24. And be it further enacted, That the court of Allowance probate shall, in the settlement of the accounts of execu

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 administraAnd to ex- tors shall also be allowed in their accounts, all reasonable ecutors , 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 compay inter

pelled to pay interest for the detention of monies in their hands, if, in the opinion of said court, it shall be reasonable.

Sec. 25. And be it further enacted, That the settlement of the accounts of any executor, administrator or guar

dian, by the court of probate, or in case of an appeal by trator's ac

the supreme judicial court, shall be final and conclusive final.

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