Court of probate

SECT. 65. Whenever, in any last will and testament, an estate 1865. for life, in any personal estate, shall have been given to two or more may order distripersons jointly, or in common, and such personal estate shall be sus-bution of life estate in personal ceptible of a division, the court of probate, having cognizance of such estate. will, may, during the settlement of the estate of the testator, and on the request of any one interested, cause such personal estate to be distributed between such persons, and such distribution shall be binding on such persons, and on all persons, having any interest by way of remainder therein.

sonal estate to be

entitled to

SECT. 66. Whenever the use, income, or annual profit of any per- May order personal estate, shall have been given to any person for life, by any last delivered to perwill and testament, and the remainder in such estate shall have been son life estate theregiven to another person, and there shall be no trustee named in such in, when. will, to receive and hold such estate, during the continuance of the life estate therein, the court of probate, having cognizance of such will, may, if it shall judge proper, upon the request of the person entitled to such life estate, order the executor of such will to deliver said personal estate to such person, upon his giving bond, with surety, to the acceptance of the judge of said court, in a sum equal to double the value of said estate, payable to said judge, or his successors in office, conditioned that said estate shall be safely and properly kept, to be delivered to the person entitled to receive the same, on the determination of the life estate therein.

CHAPTER III,

OF THE SETTLEMENT OF INSOLVENT ESTATES OF DECEASED persons.

as insolvent, and

commissioners.

SECT. 67. When it shall appear to the executor, or administrator, when estates that the estate will probably be insufficient to pay the debts of the shall be settled deceased, he shall represent to the court of probate the condition appointment of and circumstances of the estate, and such court shall proceed to settle it as an insolvent estate; and shall direct the executor or administrator, to cite all persons interested, by posting up notice upon the public sign-post, nearest to the place where the deceased last dwelt, and within the same town, and by publishing it in some newspaper, and by such further notice as the court shall order, to appear, if they see cause, at the time and place appointed by said court, and designated in said notice, and be heard relative to the appointment of commissioners to receive and decide upon the claims of the creditors of said estate; and after such hearing, said court shall appoint two or more disinterested and judicious persons, commissioners to receive and decide upon said claims; which commissioners shall be sworn according to law, and shall cause the times and places of their meetings to be published, in the same manner as is in this section provided for the publication of notices relative to their appointment, and

1865.

Exhibition and allowance of

claims.

Commissioner's

report.

Creditors not ex

within the time,

&c.

they shall, within ten days after their appointment, give a written or printed notice of such times and places, by mail, or otherwise, to all known creditors of such estate.*

SECT. 68. The court of probate shall allow six, ten, or eighteen months, as the circumstances of the estate may require, for the creditors to exhibit their claims to the commissioners; and the commissioners shall act upon the claims exhibited to them, and allow such of said claims exhibited within said time, as shall be proved to be justly and lawfully due, but no claim shall be allowed by them, which shall not have been exhibited within the time limited.t

SECT. 69. The commissioners, as soon after the expiration of the time limited as it can reasonably be done, shall make their report to the court of probate, containing a list of all the claims exhibited to them, and specifying particularly those which they have allowed, and those which they have disallowed; and said court shall allow them a reasonable compensation for their services, out of the estate of the deceased.t

SECT. 70. Every creditor, who shall not exhibit his claim to the bibiting claims commissioners, before the expiration of the time limited, shall be forto be debarred, ever debarred of his debt, unless he can show some estate, not before discovered, and embraced in the inventory; and in case he shall make such discovery, he shall give notice thereof to the executor, or administrator, who shall make an additional inventory, comprehending such newly discovered estate, and present the same to the court of probate; and such estate shall be sold and disposed of as the other estate of the deceased. The court of probate shall examine the claim of such creditor, and allow it, or such part of it, as shall appear to be justly due; and after deducting the additional charges, shall order so much of the avails of the newly discovered estate, to be paid to him, as will make him equal to the other creditors, if suffi cient, if not, then the whole shall be paid to him, but if more than sufficient, then the surplus shall be equally divided and averaged among all the creditors of the estate.

1857.

Provisions respecting claims not presented.

SECT. 71. Whenever any solvent estate of a deceased person shall have been represented, by the executor or administrator, to the court of probate, as insolvent, the rights of all persons, having claims or rights of action against such estate, or against such executor or administrator, subsequently accruing, and which shall not have been

* What relationship is a disqualification. Stoddard v. Moulthrop, 9 C. R. 502; Sturges v. Peck, 12 C. R. 189; English v. Smith, 18 C. R. 221.

The court may lengthen the time for commissioners to perform their duties, provided that it does not exceed eighteen months. Webb v. Fitch, 1 Root, 177; Lockwood v. Reynolds, 16 C. R. 303. May reject their entire report. Peck v. Sturges, 11 C. R. 420. Whether court of probate can open commission after report is returned. Weed v. Grant, 30 C. R. 74. Creditors neglecting to exhibit their claims, debarred. Booth v. Starr, 5-Day, 275.

Court cannot expunge from report part of the claims allowed. Findlay v. Hosmer, 2 C. R. 350. Claims sustainable, either at law or in equity, should be allowed by commissioners. Brown v. Slater, 16 C. R. 192. Claim against partnership will be allowed against estate of deceased partner, though surviving partner solvent. Camp v. Grant, 21 C. R. 41.

In presentation of claim, no declaration or other pleadings necessary, but where the claim is upon a written instrument, the delivery of it to the commissioners, with verbal claim for its allowance, is sufficient. Mills v. Wildman, 18 C. R. 124; Am. Board of Commissioners, &c., appeal, 27 C. R. 344.

Powers and duties of commissioners. Findlay v. Hosmer, 2 C. R. 350; Palmer v. Greene, 6 C. R. 14; Hotchkiss v. Beach, 10 C. R. 232. Commissioners act both as courts of law and equity. Collins v. Tillon, 26 C. R. 368. After report of commissioners, interest not allowed on claims reported. Camp v. Grant, 21 C. R. 41.

| Sackett v. Mead, 1 C. R. 13. Discussion, obiter, of the term "not before discovered." Rockwell v. Sheldon, 2 Day, 305.

exhibited to the commissioners within the time limited by the court of probate for the exhibition of claims, shall be the same in respect to any estate of such deceased person, remaining after the payment of the claims exhibited to, and allowed by, such commissioners as they would have been in regard to such remaining estate, if the estate of such deceased person had not been represented insolvent.*

the settlement.

SECT. 72. No suit, except for debts due to the state, or for the suits not to be expenses of the last sickness, or funeral charges, shall be brought brought during against the executor or administrator of an insolvent estate, so long as the same shall be depending for settlement; and in case judgment shall have been rendered against him before the estate was represented insolvent, no execution shall issue, but the creditor may exhibit his judgment to the commissioners, and receive his average of the estate with the other creditors; and if judgment shall not have been rendered, the suit shall abate, and the creditor may exhibit his claim, including the costs which shall have then accrued, to the commissioners.t

out to the widow,

SECT. 73. If, on the report of the commissioners, the estate shall What shall be set appear to be insolvent, the court of probate shall set out to the widow and what sold. of the deceased, if any there be, such necessary household goods, to be her own property, as are exempt from execution, and one cow, if any there be, belonging to said estate, and also her dower; and the residue of the estate, real and personal, including the land subject to the dower, said court shall order the executor, or administrator, to sell, in such manner as shall appear to the court to be best for the creditors; but at any time during the settlement of the estate, said court may order the sale of the whole, or any part, of the personal estate.

er than executor

SECT. 74. Whenever a court of probate shall order the sale of 1849. Court of probate real estate, for the payment of debts and charges, the judge may, on may appoint the application of the executor, or administrator, authorize another some person othperson to sell such real estate, upon such person first giving bond to or administrator, such court, with sufficient surety, conditioned that he will faithfully to sell real estate. discharge said trust, and pay to such executor, or administrator, the sum for which such real estate shall be sold; and at any sale, made Executor, &c., may purchase by such person so authorized, the executor, or administrator, may be at such sale. the purchaser.

SECT. 75. Whenever an application shall be made to a court of Notice of sale, probate, by an executor, or administrator, for the appointment of how to be given. another person, to make such sale, said court shall order said executor, or administrator, to give notice, by advertising in a newspaper, or otherwise, as said court shall direct.

SECT. 76. Whenever the sale of any real estate shall be so or- Notice of the sale dered, notice shall be posted upon the public sign-post, nearest to

This section is merely declaratory of the existing law. Bacon v. Thorp, 27 C. R. 251. Claim founded on contingent liability, not presented to commissioners, may be enforced against any estate remaining after the payment of claims allowed. Hawley v. Botsford, 27 C. R. 80.

+ Where estate, represented insolvent, proves to be solvent, and administration account has been settled, the estate is not depending for settlement. Bacon v. Thorp, 27 C. R. 251. For various points in construction of this section, see Tweedy v. Bennett, 31 C. R. 276.

General order of sale of all the property of deceased extends to property not inventoried, if known to the court, at the time of the order, to belong to the estate of deceased. Rockwell . Sheldon, 2 Day, 805. To authorize such general order, what facts must appear. Griffin v. Pratt, 3 C. R. 513. The sale must be for cash only. Foster v. Thomas, 21 C. R. 285.

Payment of the claims.

Allowance to the widow.

1848.

When non-resident creditors may present claims after the

time limited.

the estate, and within the same town, and shall also be published in some newspaper, and in such other manner as said court may order; but if it shall appear to the court that the value of the estate, ordered to be sold, does not exceed one hundred dollars, the court may dispense with the publication of notice in a newspaper.

SECT. 77. Such sales being made, the executor, or administrator, shall render an account thereof to the court of probate, and said court shall direct the payment of the claims against the estate to be made in the following order, to wit: first, the funeral expenses, and the expenses of settling the estate; secondly, debts due for the last sickness of the deceased; thirdly, all lawful taxes, and all debts due to the state; and lastly, all other debts as allowed, in proportion to their respective amounts.*

SECT. 78. The several courts of probate may, as occasion shall require, make an allowance out of any insolvent estate of a deceased person, in settlement before them, of such amount as they may judge necessary for the support of the widow or family of the deceased, during the settlement of the estate.

SECT. 79. Whenever any estate of a deceased person shall be represented insolvent, and upon the report of the commissioners, the court of probate shall find, from the amount of debts reported, that expiration of the said estate is not insolvent, said court shall order the payment of said debts, and of the charges of settling said estate; and in case such payments shall not exhaust all the property belonging to said estate, the creditors who are not inhabitants of this state, and who have not presented their claims to said commissioners, may present the same at any time within six months after the expiration of the time limited by the court of probate, for the exhibition of claims against said estate; and said commissioners shall proceed, in regard to said claims, in the same manner as in regard to those exhibited within said time; and upon the return of their report of such claims to said court, all parties in interest shall have the same rights as on their first report; and said court shall order such of said claims as are duly established, to be paid from the property of said estate, remaining after the payments herein before required to be made; or in case said property is not sufficient therefor, then in proportion to the sums so found to be due.

Distribution of surplus.

1841.

may be settled

SECT. 80. Whenever any estate, represented insolvent, shall prove to be solvent, and there shall be a surplus remaining after the pay ment of the debts and expenses, such surplus shall be distributed according to the law regulating the distribution of solvent estates. SECT. 81. The court of probate, whenever it shall appear that the When the estate estate of a deceased person, in settlement before it, consists wholly without appoint of personal property, and that, exclusive of the household furniture, ing commission- and other goods which may by law be set out to the widow of the deceased, and such legal allowance for her support, and that of the family, if such widow and family there be, as said court may deem proper, it will not be more than sufficient to pay the funeral expenses, the expenses of settling the estate, and of the last sickness, and the lawful taxes and debts due to the state, may order notice to be

ers.

When claims, allowed in report of commissioners, are subsequently paid, dividends to be allowed only upon such as remain unsatisfied. Peck v. Harrison, 23 C. R. 115. All claims for expenses of last siekness, are of equal degree. Bennett v. Ives, 80 C. R. 329. If there is not sufficient to pay all, must be divided pro rata. Same. See also Tweedy. Bennett, 31 C. R. 276. Tombstones are properly a part of the funeral expenses Fairman's appeal, 30 C. R. 205,

given to all persons interested in the estate, to appear and be heard in the premises; and if, upon such hearing, no sufficient reason to the contrary shall be shown, said court shall ascertain the amount of said funeral and other expenses, and of said taxes and debts, and after setting out to the widow said necessary household furniture and other goods, and making said allowance for her support, and that of the family, if such widow and family there be, shall order the sale of so much of said estate, as shall be required to pay said funeral and other expenses, taxes, and debts; and if, upon return of the sale being made, it shall be ascertained that the whole estate is required for that purpose, the settlement of the estate may be completed, without the appointment of commissioners to liquidate the claims against it.

CHAPTER IV.

OF DOWER.

SECT. 82. Every married woman, living with her husband at the Right of dower. time of his death, or absent from him by his consent, or by his default, or by inevitable accident, or in case of divorce where she is the innocent party, and no part of the estate of her husband was assigned to her for her support, shall have right of dower in onethird part of the real estate of which her husband died possessed in his own right, to be to her during her natural life, unless a suitable provision for her support was made before the marriage, by way of jointure.*

SECT. 83. The heirs, or persons entitled to said estate, within How to be set sixty days after the death of the husband, shall apply to the court out of probate in the district where his will was proved, or where administration on his estate was granted, to have dower assigned to the widow; and such court shall appoint three judicious and disinterested persons of the county, who, being duly sworn, shall set out to the widow her dower in said estate, and in case the heirs, or persons entitled to the estate, shall neglect to have dower assigned as aforesaid, then said court, on complaint of the widow, shall appoint three disinterested and judicious persons of the county, who, being duly sworn, shall set out to such widow her dower in said estate; and in either case the doings of such persons being returned to the court of probate, and accepted by it, shall ascertain and establish such dower, and all persons concerned shall be concluded thereby.

*The widow is entitled to dower only in lands holden by her husband in his own right. Deforest's appeal, 1 Root, 50. The right of dower is paramount to either heirs or creditors. Crocker v. Fox, 1 Root, 227; Calder v. Bull, 2 Root, 50; Meigs v. Dimick, 6 C. R. 458. Dower may be had in an equity of redemption. Fish v. Fish, 1 C. B. 559. Widow, immediately on the death of her husband, becomes tenant in common with his heirs. Stedman v. Fortune, 5 C. R. 462. There is no privity of estate between tenant in dower and reversioner. Adams v. Butts, 9 C. R. 79. The widow of a foreigner, who has not lived in this state, is not entitled to dower. Sistare v. Sistare, 2 Root, 468. How dower may be defeated. Stewart v. Stewart, 5 C. R. 317.