Page images

appraisement to be made upon

for administra

[blocks in formation]

SECTION 1. That where a will is proved, or application is made Inventory and for administration of the estate of a person dying intestate, the Probate of wil Judge of Probate of the County shall require the executors or ador application ministrators to make out an exact inventory of the personal estate of the deceased, and shall appoint three or more respectable free1; 1789, V, 108, holders to appraise the same on oath; which inventory and appraisement shall be returned into his office, within such time as he shall limit.


1745, III, 666,

12: 1839, XI, 61, 15.


each County

wher goods


SEC. 2. If the goods be in several Counties, the Judge of Proto be made in bate of such Counties, respectively, shall order appraisement, and appoint appraisers in each, which appraisement, when made, shall be returned by the appraisers into the office of the Judge of Probate, where the will is recorded, or by whom administration is granted.




Ib.; 1745. III,

SEC. 3. Every appraisement made, as aforesaid, may be given in evidence to prove evidence in any legal proceeding against such executors and administrators, to prove the value of the estate, but shall not be conclu667,3; 13 Rich. sive if it shall appear, upon a trial of the cause, that the estate was really worth, or bona fide sold for, more or less than such ap praisement.

Ey, 314.

Pay of Ap praisers.

1839, XI, 61, 2


act as an ap

SEC. 4. Upon the settlement of their accounts by executors and administrators, it shall be the duty of the Judge of Probate to allow them the sum of one dollar per day for the expense of every appraiser during the time that he is proved to have been employed in appraising the estate of the testator or intestate.

SEC. 5. No appraisers, appointed to appraise any testator's or inNo person shall testate's goods and chattels, shall enter upon that office before they praiser until shall have taken the following oath, before a Trial Justice, who is 1745, III, 667, hereby empowered to administer the same:


8 7.


"You, A B, C D, E F, &c., do swear, that you will make a just and true appraisement of all and singular the goods and chattels (ready money only excepted) of G H, deceased, as shall be produced by I K, the executor or administrator of the estate of the said G H, deceased, and that you will return the same, certified under your hands, unto the Judge of Probate of within the time prescribed by law."





1. Executors and administrators to give notice to creditors to render accounts; debts to be ascertained in a year.

2 If creditor fail to render account, executors or administrators not liable.

3. Order of payment of debts.

4 Preference of creditors in equal degree; rights under liens.

5. Crops to be assets.

6. When emblements shall be assets, and when pass with lands.

7. Estates pur auter vie, if not devised, to be assets.

8. Effects of deceased non-residents liable for debts to citizens as upon specialty.

9. Administrators, &c., may compromise demands.

10. If assets are insufficient to pay debts, real estate to be sold and proceeds applied.

[blocks in formation]


Executors, &c.,

give notice to red tors to res

accounts; debts to be as

SECTION 1. That every executor or administrator shall give three weeks' notice, by advertisement in one of the gazettes printed in the County, or if there be none, in some gazette of general circulation in the County, for creditors of the estate in his charge to render an account of their demands, duly attested; and he shall be year. 1789, V, 111, 27. allowed twelve months to ascertain the debts due from the deceased, Bail. Eq., 437. reckoning from probate of will or grant of administration.


in a

Creditor not


SEC. 2. If any creditor shall neglect to give in a statement of his rendering debts within the time aforesaid, the executors or administrators shall Ib. not be liable to make good the same.

SEC. 3. The assets which come to the hands of an executor or administrator, after proper allowance to the executor or administrator, in a due course of administration, shall be applied to the payment of his debts in the following order, that is to say:


Order of pay. ment of debts.

1,3 26. 4 McC., Rich, 33; Dud

28: 3 Strob., 131;

1. Funeral and other expenses of the last sickness, charges of 13 ch.E probate or letters of administration;

2. Debts due to the public;

3. Judgments, mortgages and executions-the oldest first; 4. Rent;

5. Bonds and debts by specialty;

6. Debts by simple contract.

ley, 337; 9 Rich. Eq., 100; 10 469; Eq.. 99; 11 Rich.. 476; 1 DeS, 450; 4 DAS, 65; 2 Bail., 593; 2 Hill Ch., 250; 7 Rich. Eq., 281.

Preference of creditors in


SEC. 4. No preference shall be given among the creditors in equal degree, where there is a deficiency of assets, except as to judgments, qual mortgages and executions, the oldest of which shall be paid first; lins. mortgages to date from the day of recording, and executions from 65.' the day when entered in the Sheriff's office, saving to creditors their rights under any special lien.

Ib, 26

degree; under

4 DeS.,

Crops to be as


494; 3 Strob.. 21; Bail. Eq., 398.

SEC. 5. If any person shall die after the first day of March, in Ib., 223. 1 Bay, any year, the crop on the lands which were in the occupation of the deceased shall be assets in the executors' or administrators' hands, subject to debts, legacies and distribution, the taxes and expenses of cultivation of such crop being first paid.

When emble

assets, and when

pass with land.

Ib. 3 Strob., 21.

SEC. 6. The emblements of such lands which shall be severed ments shall be before the last day of December following, shall, in like manner, be assets in the hands of the executors or administrators, but all such emblements growing on the lands on that day, or at the time of the testator or intestate's death, if that happens after the said last day of December and before the first day of March, shall pass with the lands.

Estates pur

devised; assets,


29 C. 2 c. 3; 1712,

SEC. 7. If no devise of an estate for the life of another be made, auter vie, if not the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, 11, 527, 12. 12 as in case of lands in fee simple; and, in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands.

Rich. Eq., 454.

Effects of de

dents liable for

as upon special.


SEC. 8. Where any person not a citizen of this State has died, or ceased no resi shall die, already indebted to a citizen of this State, the assets and debts to citizens effects within the same, of such deceased person, being sufficient for the payment of all his debts, shall be liable to discharge the debts 1788. V. 86, 1. due the citizens of the State, in the same manner as if the same had been liquidated by bond or other specialty; any law, usage, or custom to the contrary notwithstanding.

4 McC., 28.

Administrators, &c., may compromise mands, &c.

1870, XIV, 313, § 2.

If assets are insufficient to pay debts, real CState to be sold

SEC. 9. All administrators and executors may, by and with the consent of the Probate Judge, compromise all demands coming into their hands as such, where the same is appraised doubtful or worthless; and, where such compromises are made, the same shall be fully shown in their annual returns.

SEC. 10. The Judges of Probate of the several Counties in this State shall have power, if the personal estate of any intestate tesand proceeds ap- tator or testatrix, in the hands of the administrators or executors, plied. 1842,XI,232, 1. Or, if the assets set apart by a last will and testament be insufficient

to pay the debts of the deceased, to pay over to the administrators or executors of such estate the whole or so much of the proceeds of the sale of the real estate of the deceased, sold by them, the said Judges, as will pay the outstanding debts of the deceased; and the administrators or executors receiving the same shall be chargeable therewith as with other assets which have come into their possession in the regular course of administration.

Executors or administrators to bond for

ve faithful adminstration of fund

arising from

SEC. 11. Before paying over to any executors or administrators any moneys arising from the sale of real estate, as provided and directed in the preceding Section, Judges of Probate shall require the said administrators or executors to enter into bond, with good such sale. and sufficient surety, payable to the Probate Judge, and in a penal Rich., 355. sum equal to double the amount to be paid over, the condition of which bond shall be the just and faithful administration of the fund according to law.

SEC. 12. On application by a creditor or creditors of the deceased, by petition in writing, stating the indebtedness of the deceased, the deficiency of assets, and praying that the proceeds of the sale of real estate of the deceased may be paid over to the executor or administrator, (as the case may be,) and applied to the satisfaction of the debts of the deceased, the Probate Judge shall pay over to the executor or administrator, taking bond and surety, as provided by this Chapter, such proceeds, or so much thereof, as shall be necessary: Provided, The heirs at law, or devisees, shall have notice thereof and be required to show cause, if any they can, to the contrary.

SEC. 13. The Probate Judge shall, on such application, forthwith cite the executor or administrator to appear and account for the assets of the deceased, if such accounting has not been previously had.

SEC. 14. He shall also summon the heirs at law, or devisees, of the deceased, as the case may be. The form of the summons shall be as follows:

[ocr errors]

"To A. B. and C. D., heirs at law of E. F., (or devisees of E. F.:)
'You are hereby required to appear at the Court of Probate, to
be holden at-
Court House, for-

[merged small][merged small][ocr errors][merged small]

County, on

to show cause, if any you can, why the proceeds of the sale of the real estate of E. F., deceased, sold by me for partition and division, should not be paid over to G. H., executor, (or administrator,) of the said E. F., to be applied by him to the payment of the debts of the said E. F.


Ib, 283 2. 6

Moneys arising

frm sale to be tion of creditors.

paid upon peti

1b., 23.


Upon such aptor or adminis

plication execu•

trator to account

for assets.

Ib., § 4.

Heirs or devisees to be summoned.


Form of sum


"Given under A. D.

[blocks in formation]
[blocks in formation]

SEC. 15. A copy of the said summons shall be served on the parties interested, in like manner as summonses are served in civil actions in the Circuit Courts; and, if there be minors, the Probate Judge shall appoint guardians od litem, who shall be served with a

Service of copy.

Ib. (See Code

of Procedure, 2

151, 157 and 158.)


Citation of non

cient of the pro

eeds of sale to

be applied. Ib.

copy of such summons, and the appointment and acceptance of such guardianship shall be endorsed on the petition: Provided, That nothing herein contained shall preclude any of the parties from accepting the service of such summons, or from consenting to the application of the funds as prayed for in such petition.

SEC. 16. If any of the parties reside beyond the limits of this residents to be State, or whose residence is unknown, and do not consent, in by publication; assets are in. Writing, that the funds be so applied, the Probate Judge shall sufficient, suffi- advertise for his or her or their appearance, by publication of the summons as provided by Section 158 of the Code of Procedure; and, if such party shall not appear and show sufficient cause, within the time named in the said summons, then the Judge of Probate shall enter of record his, her or their consent as confessed, and shall take an account of the executor or administrator relative to the assets of the estate of the deceased, and if he shall be satisfied that they are insufficient to pay the debts thereof, (of which he shall make an exhibit in the said account,) he shall pay over to the executor or administrator the whole or so much of the proceeds of the sale of the real estate in his hands, as may be necessary to pay the debts of the said deceased.

Full records to be kept. Ib., 25.

Fee of Probate Judge.


Sheriff to ex



SEC. 17. The Probate Judge shall file and keep in his office the petition and all the papers connected therewith, and shall enter in his cash book the amount abstracted from the sale of the real estate and paid over to the executor or administrator, after deducting all costs; and the balance remaining in his hands, if any, shall be disposed of as provided by law.

SEC. 18. The Probate Judge shall receive for his services required by Sections 11 to 18, inclusive, of this Chapter, the sum of five dollars, and no more, out of the proceeds of the sale of the real estate of the deceased, unless the application be refused or rejected by the Probate Judge, in which case the same shall be paid by the petitioner or petitioners, and the Probate Judge is empowered to enforce execution against him or them for the same.

SEC. 19. The Sheriff's of the several Counties in this State are reprocess; quired to serve all processes which may be issued by the Probate Judge under the provisions of Sections 11 to 18, inclusive, of this Chapter, for which they shall receive the same fees as are allowed them by law for similar services.

Ib., 234, § 6.

Sheriff's costs,

how collected


SEC 20. The Sheriff's costs shall be paid out of the proceeds of the sale of the real estate of the deceased, or by the petitioner or petitioners, as provided for in Section 18 of this Chapter.

« PreviousContinue »