an account in writing, and on oath, of all monies received by him, and of the application thereof. how made. SEC. 63. All investments, or re-investments, under the pro- Investments, visions of this chapter, shall be made on bond and mortgage upon unincumbered real estate, of at least double the value of such investment, exclusive of buildings, or in other equivalent security; and no such security, bond, mortgage or other evidence of such investment, shall be discharged, transferred or impaired, by any act of the clerk, without the order of the court entered in the minutes thereof. securities. SEC. 64. Any person interested in such investment, may, Suits on with the leave of the court, prosecute the same, in the name of the existing clerk, and no suit shall be abated by the death, removal from office, or resignation of the clerk to whom such securities or evidences were executed, or of any of his suc cessors. assessed and SEC. 65. When a decree confirming the partition made by Costs, how any commissioners, shall be entered as provided in this chap- collected. ter, the court shall also adjudge and decree that each of the parties concerned therein, other than the plaintiffs, pay to such plaintiffs a proportion of the costs and charges of the proceedings, to be ascertained by the court, according to the respective rights of the parties, and the proportion of such costs and charges assessed upon the unknown owners, to be chargeable on the part remaining undivided; and upon such decree execution may issue as in other cases, and may be levied on the property of the parties respectively charged with such costs, and upon any share or part of the premises allotted on any such division to any owner unknown, or not named, and upon every portion remaining undivided, for the proportion adjudged to be paid by such owners, or chargeable to the part remaining undivided. premises SEC. 66. A sale of the premises of such owner unknown, Sale of upon such execution, shall be as valid as if such owner had of unknown been named in the proceedings, and in such execution. owner. SEC. 67. If a bill for partition shall be dismissed, or the When suit shall be discontinued, the plaintiffs shall pay costs plainti to be collected, as in other cases. to pay costs. SEC. 68. Any of the parties to a suit for the partition or Appeal. sale of any premises under the provisions of this chapter, and any party interested in the premises, though not named in the proceedings, may, jointly or separately, and without the consent of any co-plaintiff or co-defendant, appeal from any decree or order of the said court, upon any such proceedings, within the same time, and under the like regulations, as in other cases. estate. SEC. 69. Whenever it shall appear satisfactorily to the Partition or court, by due proof, or on report of a circuit court commis- sale of infants' sioner, that any infant holds real estate in joint tenancy, or in common, or in any other manner which would authorize his being made a party to a suit in partition, and that the interest of such infant, or of any other person concerned Report of guardian. Order for conveyances, etc. Effect Infant deemed ward of court. When infant is married, husband may be guardian. Partition by guardians of lunatics, etc. Inquiry by commissioner. Releases, court may authorize. Effect of releases. Partition when state is interested. therein, requires that partition of such estate should be made, such court may direct and authorize the general guardian of such infant to agree to a division thereof, or to a sale of such premises, or of such part thereof, as in the opinion of the court shall be incapable of partition, or as shall be most for the interest of such infant to be sold. SEC. 70. Such guardian shall report to the court, on oath, the partition or sale so made by him, and if the same be approved and confirmed by the court, an order shall be entered authorizing such guardian to execute conveyances of the right of such infant to such part of the said estate as shall have been sold, to the purchaser thereof; or to execute releases of the rights of such infant to such part of the said estate, as in the division falls to the shares of the other joint tenants, or tenants in common. SEC. 71. Such deeds shall be as valid and effectual to convey the share and interest of such infant, as if the same had been executed and duly acknowledged by such infant after arriving at full age; and in case of the sale of any part of such estate, the infant shall be deemed a ward of the court, and such order shall be taken as the court may direct, for securing, investing and applying the proceeds of the sale, and for requiring security from the guardian for that purpose. SEC. 72. Whenever such infant shall be a married woman, the court may, upon petition, appoint her husband as her guardian, and in case of the appointment of the husband, the provisions of the three last preceding sections shall apply to such husband. SEC. 73. Whenever it shall appear to the court, on the application of the guardian of any idiot, lunatic, spendthrift, or person mentally incapable of managing his affairs, holding any estate in joint tenancy or in common, or in any other manner to authorize his being made a party to a suit in parti tion, that the interest of such idiot, lunatic, or other person aforesaid, or any of the parties interested in such estate, requires a partition thereof, it shall be referred to a circuit court commissioner to inquire into and report upon the cir cumstances. SEC. 74. Upon the coming in of the report, and a hearing and examination of the matter, the court may authorize such guardian to agree to a partition of such estate, and to execute releases of the right of such idiot, lunatic, or other person as aforesaid, in and to the shares of such estate falling to the other joint tenants, or tenants in common. SEC. 75. Such releases shall be as valid and effectual to convey the share of such idiot, lunatic, or other person as aforesaid, as if the same had been executed by them respectively, when of sound mind and understanding, and not sub ject to guardianship, and for a valuable consideration. SEC. 76. When any lands shall be held by the people of this State, and by individuals as tenants in common, proceedings for the partition thereof may be had against the people of this State in the circuit court, in the same manner as against individuals, and the like orders and decrees shall be had therein, and the proportion of the costs and expenses of such partition, adjudged to be paid by the people of this State, shall be certified by the Attorney General, and paid out of the State treasury on warrant of the Auditor General. summons, etc. SEC. 77. The summons to answer, and all notices required Service of to be served in other cases, shall be served on the Attorney General, who shall appear in behalf of the State, and attend to its interests. limitations, SEC. 78. The authority given by this chapter to proceed for Claims barred the partition of real estate, shall not authorize the revival by statute of or prosecution of any claim to lands which would, or other etc. wise might be barred by the statute of limitations, or by the acquiescence of any party having any such claim. partition. SEC. 79. Whenever partition shall be decreed by any cir- Compensation cuit court, if it shall appear that it cannot be made equal be- for equality of tween the parties, without prejudice to the rights and interests of some of them, the court may decree compensation to be made by one party to the other, for equality of partition, according to the equity of the case. lands held by trustee. SEC. 80. The provisions of this chapter shall be applicable Application to to lands held by a trustee for the benefit of parties having a beneficial interest therein, and the proceedings for a partition may be instituted by the trustee, or any party interested in the lands so held, and shall be regulated by the provisions of this chapter, except as is hereinafter provided. SEC. 81. Where the original parties in interest in said Division of trust, or any of them, may have departed this life, leaving heirs heirs, etc. or legatees, or others interested by title or right through them or any of them in said lands, it shall be competent for the court, at its discretion, to divide the said land by decree, among the said heirs, legatees, or others representing the interests of the deceased therein, so as to set off the interest of all such parties together, without subdivisions among them. lands among out sub SEC. 82. In any case where it may be deemed expedient to Interest set off decree that the interest which may have belonged to any de- body withceased party shall be set off in a body, without subdivision division. to those claiming under him, it shall be sufficient to provide by the decree that such parcel or interest shall be set off to the heirs, assigns, or those legally entitled under or through the party originally interested, who may have deceased, mentioning his name in the decree. where interest are SEC. 83. In all cases where the original parties in interest Partition are fully known, but where, by death, legal proceedings or original by other operations of law, it has become uncertain who are parties in the present parties in interest, it shall be competent and law- fully known. ful to separate the portion or interest in such lands, originally owned by said parties, in the manner provided in the foregoing sections, instead of leaving it with land undivided as belonging to unknown owners, and such divisions and decree shall operate to convey the title to those claiming under Appointment of receiver in certain cases. Duty of court under judg of married women. said party, according to their legal rights, whatever they may be. SEC. 84. Whenever it shall appear that it would be beneficial to any part owner of the premises of which partition is sought, that the same should be leased or protected from waste, trespasses, or injury, or for any other purpose, it shall be competent for the court to appoint a receiver thereof, with such authority as may be necessary in the premises. SEC. 85. In all cases of sales under judgment or decree in ment, in case partition, where it shall appear that any married woman has an inchoate right of dower in any of the lands divided or sold, or that any person has any vested or contingent future right or estate in such lands, it shall be the duty of the court under whose judgment or decree such sale is made, to ascertain and settle the proportional value of such inchoate, contingent, or vested right or estate, according to the principles of law applicable to annuities and survivorships, and to direct such proportion of the proceeds of the sale to be invested, secured, or paid over in such manner as shall be judged best to secure and protect the rights and interests of the parties. How married woman may release interest in estate. Release a bar. Division among cestuis que trust instead of sale. SEC. 86. Any married woman may release such right, interest, or estate to her husband, and acknowledge the same before the commissioner making the sale, or before any officer authorized to take acknowledgments, or if executed out of this State, to be executed, acknowledged, and certified as required by the laws of this State for the execution, acknowledgment, and certification of deeds, in any other state, territory, or district of the United States, and upon such release the share of the sale arising from her contingent interest shall be paid to her. SEC. 87. Such release, and also the payment, investment, or otherwise securing any share of the proceeds of the sale, according to section eighty-five of this chapter, shall be a bar, both in law and equity, against any such right, estate or claim. Of the Division and Distribution of Property Held in Trust SEC. 88. In any estate vested in a trustee or trustees for the benefit of any person or corporation, whether by will or other grant or conveyance, where a provision is made for the sale of the trust property and distribution of the proceeds, and where no limitation is placed upon the power of alienation, nor restriction made as to the time of the division and distribution of the proceeds of the trust property, and it shall appear to be more advantageous to the persons for whose benefit the trust was created to divide and distribute the trust property among them, instead of effecting a sale thereof by the trustee, and the distribution of the proceeds, the trus tee, upon authority being granted so to do by the circuit court in chancery of the county where the property, or a portion thereof, is located, may make a division and distribution of the trust estate, among the persons entitled to the proceeds of the sale thereof in the same proportion in which the proceeds of the sale is provided by the terms of the instrument or grant creating the trust to be distributed. not consent. SEC. 89. In all cases except where all the parties to be where all benefited by the distribution of the proceeds of the sale of the parties do trust estate shall give their consent in writing to the division and distribution of the trust estate as above provided, the proceedings to obtain the authority of the court as aforesaid to divide and distribute said estate, may be instituted by the trustee or any person interested in such division and distribution, and shall conform to the provisions of the preceding sections, relating to partition of lands, and the division and distribution, if authorized by the court, shall be effected in the manner provided by said preceding sections for partitioning the undivided interests of persons in real estate generally. where all consent in SEC. 90. Such division or distribution of a trust estate may Division made be made by a trustee without obtaining the authority of the y trustee, court as aforesaid, when all the persons who would be en- persons titled to share in the proceeds of the sale of such estate shall writing. consent thereto in writing, and such trustee shall make such division and distribution when all of the parties interested as aforesaid shall so request in writing. minor, insane tent person. SEC. 91. When any of the persons entitled to share in the Consent of distribution of the proceeds of the sale of such trust estate or incompeshall be a minor, or insane, or incompetent to give their consent, or make such request, such division and distribution shall not be made without the authority of the court as aforesaid, unless such minor, insane or incompetent person shall have a general guardian, in which event such general guardian, upon obtaining the authority of the court appointing such guardian to consent to such division and distribution, or request that the same shall be made by the trustee, shall have the same power and authority to consent to such division and distribution or make request therefor, and agree upon a method of effecting such division and distribution as a person of full age and otherwise competent to act in the premises could do. The authority of the court appointing such guardian to give such consent, or make such request, may be obtained by such guardian filing with such court a petition showing the cir cumstances which it is deemed renders it to the advantage of such minor, insane or incompetent person to have such distribution or division made. |