real property of the deceased, the surrogate may appoint a disinterest- TITLE 4. ed freeholder to perform the duties herein enjoined upon such executor or administrator, who shall proceed therein in the same manner as herein directed, in respect to such executor or administrator. heirs and de $53. No suit shall be brought against the heirs or devisees of Suits against any real estate, in order to charge them with the debts of the testa- vices. tor or intestate, within three years from the time of granting letters testamentary or of administration upon the estate of their testator or intestate; and if after the expiration of that time, such suit shall be brought, upon proof of an application having been made, before the expiration of that period, for an order of sale pursuant to the provisions of this Title, such suit shall be stayed by the court in which it shall be pending, until the result of such application. And if an order for sale be granted thereupon, such suit shall not be any further prosecuted, unless the plaintiff will allege that lands have descended to the heirs or been devised to the devisees, which were not included in any order of sale, in which case, a decree in such suit shall not charge, or in any way affect, any land, so ordered to be sold; and the plaintiff so proceeding in such suit, shall not be entitled to any share in the distribution of the monies arising on the sale, mortgage or leasing, of any premises, pursuant to such application. 354. But if the plaintiff in any such suit, shall elect to discontinue . the same, after notice of an application having been made to a surrogate, according to the provisions of this Title, he shall be entitled to distribution as other creditors, on establishing his claim. of several $55. Where any real estate or any interest therein, is given or sales by one devised by any will legally executed, to the executors therein named, or any of them, to be sold by them or any of them, or where such estate is ordered by any last will to be sold by the executors, and any executor shall neglect or refuse to take upon him the execution of such will, then all sales made by the executor or executors, who shall take upon them the execution of such will, shall be equally valid, as if the other executors had joined in such sale.57 will. $56. Sales of real estate by any executor, made for the payment of Sales under a debts and legacies, in pursuance of an authority given by any last will, shall be made after like notice, and be conducted in the same manner, as herein before prescribed, in relation to sales by order of any surrogate. $57. Where by any last will a sale of real estate shall be order- 1ь. ed to be made, either for the payment of debts or legacies, the surrogate in whose office such will was proved, shall have power to cite (57) 1 R. L 366, § 11. TITLE 4. the executors in such will named, to account for the proceeds of the sales, and to compel distribution thereof; and to make all necessary orders and decrees thereon, with the like power of enforcing them, as if the said proceeds had been originally personal property of the deceased, in the hands of an administrator. 58 Penalty for $58. Any executor or administrator, of other person, appointed illegal sales as herein directed, who shall fraudulently sell any real estate of his testator or intestate, contrary to the foregoing provisions, shall forfeit double the value of the land sold, to be recovered by the person entitled to an estate of inheritance therein. 59 $59. No offence, in relation to the giving of notice of sale, or the taking down, or defacing, such notice, shall affect the validity of such sale to any purchaser in good faith, without notice of the irregularity. 60 $60. The several surrogates shall record in books to be provided by them for that purpose, all orders and decrees by them made, upon any proceedings before them in relation to the sale of real estate, and shall file and preserve all papers, returns, vouchers and documents connected with such proceedings.61 $61. Wherever a sale of any real estate has heretofore been made, by virtue of an order of the court of probates, or of any surrogate, and a conveyance executed in pursuance thereof, but without the concurrence of any discreet person besides the executor or administrator, as heretofore required by law; and wherever any conveyance has been executed, or shall be executed in pursuance of such sale, without setting forth at large the order of the surrogate directing such sale, or the order confirming the same, the said irregularities may be rectified, and the sales confirmed, by the chancellor of the state.62 $62. Upon any application to the chancellor for confirmation of such sales, he shall direct a reference to a master in chancery, to examine and report touching the proceedings on such sale, and whether any heirs or devisees of the real estate sold, or persons claiming under them, reside within this state.62 $63. Upon the coming in of the master's report, notice shall be published for eight weeks successively in the state paper, of such report being filed, and requiring all persons interested, to appear before the chancellor, at such time and place as he shall have directed, to show cause why such sale and conveyance should not be confirmed,6% $ 64. If it appears by the master's report, that any heirs or devisees of the real estate sold, or any person claiming under them, reside within this state, then a copy of such notice shall be served on such heirs or devisees, or persons claiming under them, either per (58) Laws of 1822, p. 253, § 3. (59) 1 R. L. 452, § 25. (60) Ib. (61) Laws of 1822 p. 283, § 2. (62) Laws of 1819, p. 214; 1825, p. 445. sonally or by leaving the same at their usual dwelling place, in case TITLE 4. of their absence, at least fourteen days, before the time appointed for such hearing. confirmed. $65. If upon the hearing of such application, and the examination when to be of the proceedings, it shall appear to the satisfaction of the chancellor, that the said sale was made fairly, and in good faith, he shall make such order for confirming the sale and conveyance, as he shall deem equitable, and such sale and conveyance shall from that time, be confirmed and valid, according to the terms of the order. 63 lands to be 366. If the deceased, at the time of his death, was possessed of a Contracts for contract for the purchase of land, his interest in such land and under sold. such contract, may be sold on the application of his executor or administrator, or of any creditor, in the same cases and in the same manner, as if he had died seised of such land; and the same proceedings may be had for that purpose, as are prescribed in this Title in respect to lands of which he died seised, except as herein after provided. sale, bond af 367. Such sale shall be made subject to all payments, that may Terms of thereafter become due on such contract; and if there be any such pay- purchaser. ments thereafter to become due, such sale shall not be confirmed by the surrogate, until the purchaser shall execute a bond to the execu tors or administrators of the deceased, for their benefit and indemnity, and for the benefit and indemnity of the persons entitled to the interest of the deceased in the lands so contracted for, in a penalty double the whole amount of payments thereafter to become due on such contract, with such sureties as the surrogate shall approve, conditioned that such purchaser will make all payments for such land, that shall become due after the date of such bond, and will fully and amply indemnify the executors or administrators of the deceased, as the case may be, and the persons so entitled, against all demands, costs, charges and expenses, by reason of any covenant or agreement contained in such contract, or by reason of any other obligation or liability of the deceased, on account of the purchase of such lands, and against all other covenants and agreements of the deceased, to the vendor of such land, in relation thereto. $68. But if there be no payments thereafter to become due on ac- I. count of such contract, no bond shall be required of the purchaser. be assigned. 369. When such bond shall be executed, in the cases where it is Contract to required, and in all cases where the sale shall be confirmed, the surrogate shall direct the executors or administrators of the deceased, to execute an assignment of such contract, to the purchaser; which assignment shall vest in such purchaser, his heirs and assigns, all the right, interest and title, of the persons entitled to the interest of the deceas (63) Laws of 1819, p. 214; 1825, p. 445. TITLE 5. ed, in the land sold, at the time of sale; and such purchaser shall have the same rights and remedies against the vendor of such land, as the deceased would have had, if he had lived. When part of land to be Bold. Proceeds of sales. Dower. Application of proceeds of sales. Conveyance of part of Jard. Contract of sale how en forced. $ 70. If in the judgment of the surrogate, a part of the land so contracted, may be sold advantageously to the interest of the estate of the deceased, and so that the purchase monies of such part, will satisfy and discharge all the payments to be made for such land, according to the contract, he may order such part only to be sold; and in that case, the purchaser shall not be required to execute any bond. $71. The monies arising from any sale, under the five last sections, shall be paid to the surrogate, and shall be disposed of by him, in the payment of the charges and expenses of such sale, and in satisfying any claim of dower which the widow of the deceased may have upon the lands so sold, in the manner herein before provided, in respect to the sale of lands, of which the deceased died seized. $ 72. But such claim of dower is hereby declared to extend only to the annual interest, during the life of the widow, upon one-third of the surplus of the monies arising from such sale, which shall remain, after paying all sums of money due from the deceased, at the time of such sale, for the land so contracted and sold. $73. The surrogate shall apply the residue of the monies arising from such sale, in the first instance, to the payment of all sums of money, then due from the deceased to the vendor of the land so contracted, on account of such contract, and shall then proceed to distribute the balance among the creditors of the deceased, in the manner herein before provided; and if there be any surplus, after payment of debts and expenses, the same shall be distributed among the persons, who would have been entitled to the interest of the deceased in the land sold if such sale had not been made, or the persons claiming under them, in proportion to their respective rights in the premises sold. $74. Where a portion only of the land so contracted, is sold, the executor or administrator shall execute a conveyance therefor to the purchaser, which shall transfer to him all the rights of the deceased to the portion so sold, and all rights which shall be acquired to such portion, by the executor or administrator, or by the persons entitled to the interests of the deceased in the land sold, at the time of sale, on the perfecting of the title to such land, pursuant to the contract. $75. Upon the payment being made, in full, on a contract for the purchase of land, a portion of which shall have been sold, according to the preceding provisions, the executors or administrators of the deceased, shall have the same right to enforce the performance of the contract, which the deceased would have had, if he had lived; and any deed that shall be executed to them, shall be in trust and for the benefit of the persons entitled to the interest of the deceased, sub- TITLE 5. ject to the dower of the widow, if there be any, except for such part of the land so conveyed as shall have been sold to a purchaser according to the preceding provisions; and as to such part, the said deed shall enure to the benefit of the purchaser. TITLE V. OF THE RIGHTS AND LIABILITIES OF EXECUTORS AND ADMINIS- SEC. 1. Executors, &c. not to be liable on certain promises, unless made in writing. 2. Actions upon contract may be brought by and against executors. 3. Administrators entitled to same actions and subject to same liabilities as executors. 4. When actions for trespass may be maintained by executors, &c. 5. When executors, &c. liable to actions of trespass. 6. Executors and administrators of executors, &c. when liable. 7 & 8. When judgments against heirs, &c. to bar suits against executors, &c. 9. When legatee and relatives may prosecute executors, &c. for legacy, &c. 10. Bond to be given: its terms. 11. Further condition of bond when given by a legatee. 12. Minor may sue by guardian, who is to give bond; its terms. 13. When abatement from legacy to be made. 14. Suits not to be abated by death, &c. of executors, &c. 15. When plaintiff may proceed against executors, &c. superseded; effect of the judg ment. 16. Person succeeding executor, &c. may be made defendant; how. 17. In case of death of executors, &c. successor may be made defendant. 18. Payment of debts and legacies, and distribution may be decreed by surrogate. 19. Application to surrogate for order to issue execution on judgment against execators, &c. 28. Citation to executors, and proceedings thereon. 21. Effect of order, and how suspended by appeal and bond. 2. When further order for execution to be granted. 23. Provisions of this Chapter to extend to one of several executors, &c. and to executrix, &e. 24. Surrogate of county in which letters are granted, to act in all matters relative to the same estate. &c. on pro mises. 31. No executor or administrator shall be chargeable upon any Liability of special promise to answer damages, or to pay the debts of the testator executors, or intestate, out of his own estate, unless the agreement for that purpose, or some memorandum or note thereof, be in writing, and signed by such executor or administrator, or by some other person by him thereunto specially authorised. 32. Actions of account, and all other actions upon contract, may Actions by be maintained by and against executors, in all cases in which the and against same might have been maintained, by or against their respective tes tators. executors. Administra and liabili $3. Administrators shall have actions to demand and recover the debts due to their intestate, and the personal property and effects of tors' right their intestate; and shall answer and be accountable to others to whom the intestate was holden or bound, in the same manner as ex ties. |
