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increase, or lose

ete without his

(2979.) SEC. 3. An executor or Administrator shall not make Not to profit by profit by the increase, nor suffer loss by the decrease or des- by destruction, truction, without his fault, of any part of the personal estate; fault. and he shall account for the excess, when he shall sell any part of the personal estate for more than the appraisal, and if he shall sell any for less than the appraisal, he shall not be responsible for the loss, if it shall appear to be beneficial to the estate to sell it.

Personal Estate

(2980.) SEC. 4. The Probate Court, on the application of the when Sale of executor or Administrator, may, at any time, order the per- may be ordered. sonal estate to be sold at private sale or at public auction, when it shall appear to be necessary for the purpose of paying debts, or legacies, or expenses of administration, or for the preservation of the property, or when it shall be requested by all the heirs residing in this State; or the Court may order such personal estate to be sold, either at private sale or public auction, as the executor or Administrator may find most beneficial. If the order be to sell at auction, the Probate Court shall direct the mode of giving notice of the time and place of sale.

to account for

(2981.) SEC. 5. When the executor or Administrator shall Executor, etc., sell personal estate, under an order of the Probate Court, he proceeds of Sale. shall account for the same at the price for which it shall be sold.

countable for

(2982.) SEC. 6. No executor or Administrator shall be when not acaccountable for any debts due to the deceased, if it shall appear debts due dethat they remain uncollected without his fault.


income of Real

(2983.) SEC. 7. The executor or Administrator shall also be To account for accountable for the income of the real estate while it shall state. renin in his possession; and if he shall use or occupy any part of it, he shall account for it as may be agreed upon between him and the parties interested, or adjudged by the Probate Court with their assent; and if the parties shall not agree upon the sum to be allowed, the same may be ascertained by one or more disinterested persons, to be appointed by the Probate Court, whose award, being accepted by such Court, shall be final.

accountable for


(2984.) SEC. 8. When an executor or Administrator shall Executor, etc., neglect or unreasonably delay to raise money, by collecting loss occasioned by the debts or selling the real or personal estate of the deceased, or shall neglect to pay over the money he shall have in his bands, and the value of the estate shall thereby be lessened, or unnecesssary cost or interest shall accrue, or the persons

Accounts, when to be rendered.

etc., to Execu

interested shall suffer loss, the same shall be deemed waste, and the damages sustained may be charged against the executor or Administrator in his account, or he shall be liable therefor on his administration bond.

(2985.) SEC. 9. Every executor or Administrator shall render his account of his administration within one year from the time of his receiving letters testamentary or of administration, unless the Court shall give permission to delay, in consideration that the time for selling the estate and paying the debts shall be extended; and he shall render such further accounts of his administration from time to time, as shall be required by the Court, until the estate shall be wholly settled; and he may be examined on oath upon any matter relating to his


Compensation, (2986.) SEC. 10. The executor or Administrator shall be tors and Admin- allowed all necessary expenses in the care, management, and



Bond may be put

in suit on neglect

settlement of the estate, and for his services, such fees as the law provides, together with all extra expenses: Provided, that when the deceased shall, by his will, make some other provision for compensation to his executor, that shall be deemed a full compensation for his services, unless he shall, by a written instrument filed in the Probate Court, renounce all claim to the compensation provided by the will.

(2987.) SEC. 11. When no such compensation shall be provided by the will, or the executor shall renounce all claim thereto, he shall be allowed commissions upon the amount of personal estate collected and accounted for by him, and of the proceeds of real estate sold under an order of the Court for the payment of debts, as follows: For the first thousand dollars, at the rate of five per cent.; for all above that sum and not exceeding five thousand dollars, at the rate of two and one half per cent.; and for all above five thousand dollars, at the rate of one per cent.; and the same commissions shall be allowed to Administrators; and in all cases, such further allowances may be made as the Judge of Probate shall deem just and reasonable, for any extraordinary services, not required of an executor or Administrator in the common course of his duty.

(2988.) SEC. 12. When an executor or Administrator, after to render ac being duly cited by the Probate Court, shall neglect to render


his account, he shall be liable on his bond for all damages

which may accrue, and his bond may be put in suit by any person interested in the estate.

costs, when

Executor, etc.

(2989.) SEC. 13. When costs, in any case, are allowed Execution for against an executor or Administrator, execution shall not issue awarded against against the estate of the deceased in his hands therefor, but shall be awarded against him as for his own debt; and the amount paid by him shall be allowed in his administration account, unless it shall appear that the suit or proceeding, in which the cost shall be taxed, shall have been prosecuted or resisted without just cause.

ining accounts of Administrators.

(2990.) SEC. 14. Before the administration account of any Notice of examexecutor or Administrator shall be allowed, notice shall be Executors and given to all persons interested, of the time and place of examining and allowing the same; and such notice may be given personally, to such persons as the Probate Court shall judge to be interested, or by public notice, under the direction of the Court.

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Provision for

children under


Chapter Seventy Four of Revised Statutes of 1846. (a)

(2991. SECTION 1. Before any partition or division of any seven years of estate among the heirs, devisees or legatees, an allowance shall be made for the necessary expenses of the support of the children of the deceased, under seven years of age; and the Probate Court may order the executor or Administrator to retain in his hands sufficient estate for that purpose; except where some provisions shall have been made by will for their support.

debts, residue to


After payment of (2992.) SEC. 2. After the payment of the debts, funeral be assigned to charges, and expenses of administration, and after the allowances made for the expense of the maintenance of the 2 Pick. Rep., 67. family of the deceased, and for the support of the children under seven years of age, and after the assignment to the widow of her dower and of her share in the personal estate, or when sufficient effects shall be reserved in the hands of the executor or Administrator for the above purposes, the Probate Court shall, by a decree for that purpose, assign the residue of the estate, if any, to such other persons as are by law entitled to the same.

Decree what to specify.

tled to share of

(2993.) SEC. 3. In such decree, the Court shall name the persons, and the proportions or parts to which each shall be entitled; and such persons shall have right to demand and recover their respective shares from the executor or Administrator, or any person having the same.

No person enti- (2994.) SEC. 4. Such decree may be made on the application Estate, until of the executor or Administrator, or of any person interested unless Bond in the estate, but no heir, devisee or legatee shall be entitled

debts, etc., paid,

be given.

When partition may be made.

to a decree for his share, until payment of the debts, and allowances and expenses mentioned in the preceding section shall have been made or provided for, unless he shall give a bond to the Judge of Probate, with such surety or sureties as the Court may direct, to secure the payment of his just proportion of such debts and expenses, or such part thereof as shall remain unprovided for, and to indemnify the executor or Administrator against the same.

(2995.) SEC. 5. When the estate, real or personal, assigned to two or more heirs, devisees or legatees, shall be in common

(a) For prior laws relative to partition in Probate Court, see Code of 1820, p. 29; Rev. of 1827, 64; Rev. of 1833, 308; R. S. 1838, 487; Laws of 1842, 112; 1843, 172; 1844, 115.

and undivided, and the respective shares shall not be separated and distinguished, partition and distribution may be made by three discreet and disinterested persons, to be appointed Commissioners for that purpose by the Probate Court, who shall be duly sworn to the faithful discharge of their duties before the Judge of Probate or a Justice of the Peace, and the Judge of Probate shall issue a warrant to them for that purpose.

when Real Estate


(2996.) SEC. 6. If the real estate shall lie in different Proceeding counties, the Probate Court may, if it shall be judged proper, lies in different appoint different Commissioners for each county, and in such case, the estate in each county shall be divided separately, as if there was no other estate to be divided; but the Commissioners first appointed shall, unless otherwise directed by the Probate Court, make division of such real estate, wherever situated within this State.

cation for parti

(2997.) SEC. 7. Such partition and distribution may be Notice of appli ordered on the petition of any of the persons interested; but tion. before any partition shall be ordered, as directed in this chapter, notice shall be given to all persons interested, who reside in this State, or their guardians, and to the agents, attorneys or guardians, if there be any in this State, of such as reside out of the State, either personally or by public notice, as the Probate Court shall direct.

shares have been conveyed.

(2998.) SEC. 8. Partition of the real estate may be made, as partition wher provided in this chapter, although some of the original heirs or devisees may have conveyed their shares to other persons; and such shares shall be set to the persons holding the same, in the same manner as they otherwise should have been to such heirs or devisees.


(2999.) SEC. 9. The several shares in the real and personal Shares how set estate shall be set out to each individual in proportion to his right, by such metes and bounds, or description, that the same can be easily distinguished; unless any two or more of the parties interested shall consent to have their shares set out, so as to be held by them in common and undivided.

When Estate cannot be divided,

the whole to one of parties.

(3000.) SEC. 10. When any such real estate cannot be divided without prejudice or inconvenience to the owners, the court may assign Probate Court may assign the whole to one or more of the parties entitled to shares therein, who will accept it, always preferring the males to the females, and, among children, preferring the elder to the younger: Provided, the party so

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