m UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE PRACTICE IN PROCEEDINGS IN THE PROBATE COURTS OP MASSACHUSETTS. WITH AN APPENDIX OF UNIFORM FORMS AND RULES Approved by the Supreme Judicial Court. By WILLIAM L. SMITH, COUNSELLOR AT LAW. SIXTH EDITION, REVISED BY JOHN E. ABBOTT. Adapted to the Revised Laws and embodying the Probate Laws enacted in 1902. BOSTON: LITTLE, BROWN, AND COMPANY. 1903. Entered according to Act of Congress, in the year 1863, by LITTLE, BROWN, AND COMPANY, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1876, by LITTLE, BROWN, AND COMPANY, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1884, bj' LITTLE, BROWN, AND COMPANY, In the Office of the Librarian of Congress, at AYashington. Copyright, 1894, 1899, 1903, 1904, By Little, Brown, and Company. UNIVERSITY PRESS • JOHN WILSON AND SON . CAMBRIDGE, U.S.A. 3 I in \ J PREFACE TO FIRST EDITION. The design of this work is to present in a concise form the law and rules of practice regulating the proceedings in the probate courts. The leading cases in which questions of probate law have been considered and determined, have been carefully col- lected and cited. And the instructions as to the formal proceedings have been prepared with the view of practically aiding the correct and safe dis- charge of the responsible trusts to which they relate. The work is submitted to persons interested in the business of the probate courts, in the hope that it will, to some extent at least, supply a want that has been a subject of frequent remark. W. L. S. Springfield, Mass., Sept., 1863. PREFACE TO SIXTH EDITION. The enactment of the Revised Laws made neces- sary a new edition of Smith's Probate Law. So far as concerns probate law and practice, the present edition includes the Revised Laws, the laws passed by the General Court in 1902, and the important decisions contained in Volumes 1 to 180, inclusive, of the Massachusetts Reports, together with a few cases which will appear in Volumes 181 and 182. Radical changes have been made by the Revised Laws as to property rights of husbands and wives, and a statement of these chans-es will be found in the chapter relating to the Descent of Real Estate. Not only this subject, but also the subjects of Par- tition of Real Estate, Appeals, Survival of Actions, and the Collateral Inheritance and Succession Tax will be found to be much more fully treated in the present edition than in any former one. Special attention is called to the case of Abbott V. Gaskins, 181 Mass. 501, in which the subject of Vi PREFACE TO SIXTH EDITION. the equity jurisdiction of the probate court is re- viewed and carefully considered, and to the case of Bartlett v. Slater, 182 Mass. 208. The editor trusts that the new index will prove to be a convenient guide to the contents of this edition. JOHN E. ABBOTT. Boston, Mass., January 10, 1903. CONTENTS. Page Table of Cases xi Index to Statutes xxvii CHAPTER I. The Probate Courts — Their Origin and General Jurisdiction CHAPTER 11. Probate of Wills Who may make a Will The Facts to be proved in Support of the Will Section 1. 2. 3. 4. 5. 6. 9. 10. 11. 12. As to the Signing by the Testator .... As to the Attestation by the Witnesses . . . As to the Competency of the Attesting Witnesses Execution of Codicils As to the Testator's Soundness of Mind . . . Wills Invalidated by Fraud and Undue In- fluence Revocation of Wills Formal Proceedings Proof of Wills made out of the State . . . Proof of Lost Wills Allowance of Wills proved out of the State Proof of Nuncupative Wills ....... 83 29 80 31 31 36 39 42 44 55 59 70 78 79 81 CHAPTER III. Deposit, Custody, and Proceedings in Case of Con- cealment OF Wills . . 91 Vm CONTENTS. CHAPTER IV. Page Appointment of Executors 94 CHAPTER V. Appointment of Administrators 102 CHAPTER VI. Appointment of Guardians 126 CHAPTER VII. Appointment of Trustees — Trusts 144 CHAPTER VIII. Removal and Resignation of Executors and Others . . 159 CHAPTER IX. Inventories and the Collection of the Effects of Deceased Persons and Wards 168 CHAPTER X. Allowances to Widows, Minor Children, and Others . 177 CHAPTER XL Sale of Personal Estate by Executors and Others — Sales and Investments by Guardians and Trus- tees — Temporary Investments by Executors. . . 184 CHAPTER XII. Notice of the Appointment of Executors, etc., and Payment of Debts and Legacies 192 CHAPTER XIII. Insolvent Estates of Deceased Persons 211 CONTENTS. ix CHAPTER XIV. Page Sales of Land by Executors, Administrators, and Guardians 239 CHAPTER XV. Accounts of Executors, Administrators, Guardians, AND Trustees 279 CHAPTER XVI. Descent and Distribution — Advancements 320 CHAPTER XVII. Partition of Lands in the Probate Court 374 CHAPTER XVIII. Assignment of Dower and other Lifk-Estates .... 397 Table Showing the Present Worth of Estates in Dower 420 CHAPTER XIX. Probate Bonds 428 CHAPTER XX. Specific Performance of Agreements to convey Lands — Arbitration and Compromise — Sale of Stand- ing Wood and Timber — Purchase of Interests in Real Estate of Wards — Support of Married Women Living apart from their Husbands — Sup- port OF Minor Children under Guardianship — Sale and Release of a Wife's Interest in Lands WHEN the Husband is under Guardianship — Re- lease of Curtesy, Dower, and Homestead Estates by Guardians of Insane Persons — Confirmation of Deff.ctive Acts of Executors and Others — Con- tribution among Devisees and Legatees — Writs of Habeas Corpus 448 CONTENTS. CHAPTER XXI. Page Appeals from the Probate Court 463 CHAPTER XXII. Adoption of Children and Change of Name .... 479 CHAPTER XXIII. Miscellaneous Provisions — Sessions of the Probate Courts — Judges of Probate — Juvenile Offenders — Registered Land — Commitment of Insane Per- sons AND Inebriates — Appointment of Probate Court Officers — Actions by and against Execu- tors AND Administrators — Trustee Process against Executors and Administrators — Annual Returns of Shares in Corporations by Guardians — Rights of Executors to Vote at Corporation Meetings — Liability of Executors for Corporation Stock — — Right of Trustees or Guardians to release Dam- ages FOR Land taken by Railway Companies — Em- bezzlement BY Trustees, etc. — Concerning the Insane — Special Trust Funds for Parks — Fees of Witnesses 488 CHAPTER XXIV. Taxation of Collateral Legacies and Successions . . 506 APPENDIX. Probate Rules 527 Equity Rules 531 Probate Forms 539 Indexes 745 TABLE OF CASES CITED. [the FIGUKE8 REFER TO THE PAGES.] B. Abbott V. Abbott 423 Bacon, Appellant 19 V. Bradstreet 16, 313 Bacon v. Bacon 47 V. Cottage City 505 V. Gassett 363 r. Foote 145, 312 V. Pomeroy 220, 495 V. Gaskius 0, 8C , 90, 158 Baker v. Baker 397 Abercrombie v. Sheldon 99, 195, 428 V. Blood 11 Adams v. Adams 180, 182, 209, 210, ?'. Dening 33 407 Balch V. Shaw 514 V. Brackett 252 V. Stone 321 322, 318 V. Briggs Iron Co. 394 Baldwin z\ Parker 46, 76 V. Field 32 V. Standish 429 V. Leland 164 r. Timmins 245, 396 Ago V. Conner 339 Ballard v. Carter 69 Aiken v. Morse 195, 197, 218 V. Ives 351 Alden v. Stebbins 197 Baniforth v. Bamforth 276 Aldricb, Appellant 20 Bancroft r. Andrews 106 251, 466 Alger V. Colwell 98, 215, 433 V. Boston & Worce ster Raii- Allen, Petitioner 253 road Co. 495 V. Ashley School i uiid 244, 247 Bannatyne v. Bannatyi ie 54 V. Dean 162, 241 Baptist Church v. Roberts 63 V. Edwards 208, StiO. 499 Bard v. Wood 281 V. Libbey 381, 388 Barker v. Comins 47 Allendorff v. Gaugengigl 404 Barnabj' v. Barnaby 449 Allis V. Morton 135 Barnes v. Board man 387, 393 Almy V. Crapo 294 V. Lynch 386, 393 American Legion of Honor V. Barney v. Tourtellotte 453 Perry 289 Barry v. Butlin 47 Ames I'. Armstrong 429 Bartlet v. Harlow 393 V. Jackson 198 253, 297, 300 Bartlett, Petitioner, 16 , 152, 505 Ammidown r. Kinsey 315 Barton v. Rice 362 Andrees v. Weller 53 V. White 437 Arms c. Lyman 378 Bascom i\ Butterfield 213, 218 Arnold v. Sabin 113 116 123, 170 Bassett r. Crafts 154 Ashley, Appellant 362 ". Drew 1 13, 201 Atherton ;'. Corliss 31 332, 407 V. Granger 203 213 , 307, 319 .Attorney-General v. Barbour 145, Batclielder, Petitioner 358 163, 164 I'. Cambridge 120 V. Brigliam 197 Bates, Petitioner 411 i\ Garrison 161 Baxter v. Abbott 46, 48, 49, 50, 74 Atwood V. Atwood 403 Bay ley r. Bay ley 66, 76, 78 Avery v. Pixley 62 Beaman v. Elliott 106 Ayer v. Ayer 209 Bean v. Farnan 449 V. Breed 467 Bemis v. Bemis . 195 TABLE OF CASES CITED. Xll [The figures refer Beniis r. Driscoll 422 r. Leonard 248 V. Stearns 361 Bennett v. Brooks 36 r. KimliMll loS V. Overing 441, 442 V. Hussell 442, 444 V. Sharp 76 r. Slierrod 61, 68 r. Woodman 279, 441 Bent r. Cobb 259 Beverstock v. Brown 262 Bibb r. Thomas 62 Bigelow r. Bigelow 454 V. Fok'er 219 V. Gillott 66 V. Hubbard 409 V. Poole 362 Billings V. Billings 163, 209 r. Taylor 402 Blackinton v. Blackinton 178, 356, 452 Blackler i-. Boott 208, 359 Blagge v. Miles 351 Bla'iv, Ex pcute 186 Blake v. Fegram 147, 281, 311, 314 317 r. Ward 315, 319, 449 Blanuliard v. Allen 195, 223, 236 Blaney v. Blaney 252 Bliss V. Lee 213 I>lodgett V. Moore 68 Blossom r. Blossom 403 V. Brightman 393 Bogle 1-. Bogle 165 Boldry i\ Parris 37 Bonncmort i: Gill 99, 476 Booth V. Blundell 54 Borden v. Jenks 149, 406 Bordman v. Smith 227 Boston V. Bobbins 29, 450 Boston Bank v. Minot 499 Boston Safe Deposit Co v. Mixter 189, 239, 248, 254, 258, 264, 270, 275 Boulton r. Beard 295 Bovvditch V. Banuelos 164 V. Raymond 220 I' Soltyk 16 Bowdlear v. Bowdlear 350, 483 Bowdoin 1-. Holland 104, 105 Bowen v. Hoxie 350, 352, 460 Bowers v. Hammond 222, 236 Bowker v. Pierce 307, 311 Boj'den r. Mass. Insurance Co. 206, 20H, 219, 221 Boylston v. Carver 396 Boynton v. Dver 292, 293, .307, 308 464 to the Pages.] Boynton r. P. & S. Railroad 288, 293 Bradford r. Forbes 196 V. Monks 145 Bradley v. Brigham 290 Bradstreet v. Butterfield 144, 145 Brant v. W'ilson 66 Brazer v. Clark 4-39 V. Dean 130 Breed v. Pratt 49, 53 Brettun r. Fox 31, 339, 423 Brewster v. Brewster 303 Bridge v. Bridge 296, 299, 317, 474, 475 Brierly v. Equitable Aid Union 170 Briggs V. Barker 471 Brigham v. Boston & Albany R. R. Co. 254, 258 V. Elwell 293, 294 V. Fayerweather 5 V. Hunt 244 V. Wheeler 131 Brimmer v. Sohier 48 Bristol County Savings Bank v. Woodward 221 Broadway National Bank v. Wood 231 Broderick r. Broderick 38 Brooks V. Barrett 49 V. Brooks 445 V. Jackson 294 V. Lynde 207 V. Rayner 196 V. Rice 438 V. Tobin 165, 285, 438 V. Whitniore 159, 430, 431, 435 Brow V. Briglitman 128 Brown v. Anderson 297 V. Baron 319 V. Brown 44 V. Corey 15 V. Cushman 113 V. Dean 495 V. Greene 199 V. Greenfield Life Associ- ation 171 V. Howe 310 V. Kelsey 291 V. Kendall 494 V. Lapham 404 r. Pendergast 498, 499 V. Thorndike 66 V. Wells 88 Browne v. Doolittle 5, 6, 72, 197, 204, 207, 212, 213, 215, 248, 266, 304, 318, 319,355, 359. 366 Brownell i: Briggs 323, 375, 4.J4 Brush v. Wilkins 67 Bryant v. Allen 467 TABLE OF CASES CITED. [The figures refer to the Pages.] XIU Bryce, In re Brydges v. King Buckley v. Buckley r. Frasier 324, 597, V. (Jerard 350, Bucknain v. Bucknam V. Phelps Buffington v. Fall River Na- tional Bank Bulkeley v. Noble Bullard v. Attorney-General 165, 169, V. Bullard Burbank r. Burbank Burke v. Burke V. Colbert -"^l. Burns r. United Workmen 171, Burnside r. Merrick Burt V. Kicker Bush V. Clark Butnian v. Porter Buttrick v. Tilton 33 58 303 483 351 451 210 407 362 154, 436 362 450 308 324 174 403 186 180 409 325 Cady V. Comey Caffrey v. Darby Calhihan r. Woodbridge 514, Capen r. Duggan V. Skinner 470, Carlton v. Carlton Carpenter v. Carpenter Carruth r. t'arruth 145, Carson v. Carson Cassidy v. Shimmin Casson V. Dade Cathaway ?-. Bowles Catlin V. Ware Caverly r. Eastman Cliadbourn v. Chadbourn Chamberlin v. Chamberlin Chambers v. Queen's Proctor Chandler v. Ferris V. R. R. Commissioners V. Simmons Chapin r. Livermore V. Miner V. Waters, 98, 249, 288, 434, Chaser. Fitz 113, V. Kittredge 36, 38, 7 V. Lincoln V. Tliompson 232, 366 V. Webster Chcnery v. Webster 197 Cheney v. Davis Chesliire National Bank v. Jewett 499 290 522 499 471 42 289 146 499 174 37 356 399 244 449 249 49 57 181 134 445 15 439, 442 , 496 3,74 73 , 367 179 , 200 289 172 Child V. Boston & Fairhaven Iron Works 496 r. Coffin 495 Childs 1-. Jordan 170 Chilson V. Adams 261 Choate v. Arrington 294, 442 V. Jacobs 177, 293,294, 440, 441 r. Thorndike 170, 289, 435. Christopher i\ Christoplier 67 Churcli V. Crocker 350 V. Savage 197, 287 Clark V. Clark 48 V. Clay 281, 301 V. Dunnevant 75 r. Fisher 58 V. Garfield 306 V. Holbrook 201, 203 V. Lancy 495 V. Tainter 240 V. Wright 77, 79, 80 Clarke r. Chapin 429 V. Cordis 138, 449 ('. Schwarzenberg 171 V. Stanwood 231 V. Tufts 239, 242 Clarkson v. De Peyster 292, 308 Cleveland v. Quilty 12, 465 Coates I'. Cheevcr 402 Cobb V. Kempton V. Muzzey r. Newcomb V. Rice Cochran v. Thorndike Codman v. Brooks V. Krell Coffin 1-. Cottle Cole V. Eaton Colegrove v. Robinson Coleman v. Hall Coles r. Trecothick Collamore v. Learned Collier V Simpson Collins I 160,188,201,202, 243, 246, 312, 445 212, 298 110 14 324 322 349 3, 19 445 213 214 32 479 49 ColUns 98, 155, 108, 169, 200, 242, 291, 313 Colt ('. Learned 495 Colwell V. Alger 98, 168 Commonwealth i'. Briggs 130 r. Fairbanks 48 V. Keith 41 V. L\ nes 42 V. Robinson 42 r. Rogers 41 V. Wilson 49 Conant v. Kendall 4 45 r. Kent 322 r. Little 397 V. Newton 439 XIV TABLE OF CASES CITED. [The figures refer Conant v. Stratton 437, 442 Coney t'. Williams 433 Conkey v. Dickinson 439 Conklin v. Egerton's Adminis- trator 239 Conly V. Conly 496 Conner v. Shepherd 413 Constantinides v. Walsh 199, 211, 324 Conto 1'. Silvia 126 Converse >: Converse 45 V. Johnson 175, 197, 204, 212 V. Wales 350 Cook V. Horton 466 Ccoke 1-. Gibbs 497 Cooper V. Robinson 258 Copeland v. Sturtevant 425 Corcoran v. Boston & Albany R. R. Co. 496 Cote V. Lawrence Manuf. Co. 494 Cottle, Appellant 20 Coughlen's Case 54 Coverdale v. Aldrich 240, 287 Cowden v. Jacobsou 340, 353, 476 Cowdrey r. Cowdrey 398, 424 Coye I'. Leach 358 Cravath v. Plympton 495 Crippen v. Dexter 66, 78, 83 Croade v. In graham 413 Crocker v. Cotting 374, 375 V. Shaw 614 Crosbie v. Macdonald 43 Crosby v. Leavitt 104 Crouch V. Eveleth 241 Crowninshield v. Crowninshield 47, 49 Cummings v. Bird 496 V. Bramhall 361, 363 V. Cummings 318, 319, 348 V. Hodgdon 7, 468 V. Thompson 225 V. Watson 294 Curley v. Squire 216 Curry v. Spencer 511 Curtis V. Bailev 281 Cushing V. Burrell 209 V. Field 212, 234 Cutter V. Hamlen 496 Cutting V. Tower 496 Cutto V. Gilbert 64, 65 Cutts V. Ilaskins 6 V. Hodgdon 126 Daggett V. White 155 Dale V. Uanover National Bank 177, 179, 180 to the Pages.] Daley v. Francis 252, 471, 474, 475 Dallinger v. Davis 195, 197 V. Richardson 5, 7 Dalton V. Savage 320, 324, 330 Dan I'. Brown 62, 80 Dana v. Wentworth 497 Dane v. Dane Manuf. Co. 495 Daniels ;;. Pratt 289 Darley v. Darley 58 D'Arusment v. Jones 119 Davis V. Calvert 49, 66 V. Cowdin 319 V. Davis 58, 79, 499 V. Estv 237 V. French 296 V. Sigourney 63, 79, 80 Davy V. Smith 37 Dawes v. Boylston 104, 105, 353 V. Head 237, 440 V. Shed 297, 433 V. Winship 439 Dean v. Dean's Heirs 73 Deane v. Caldwell 220 Dearborn v. Preston 377, 463 Deering v. Adams 464 Defriez v. Coffin 356, 436 Delafield v. Parish 47 Delano v. Bruerton 330, 483 Delay v. Vinal 407 Demerritt v. Randall 74 Demond v. Boston 494 Dempsey v. Lawson 65 Denholm v. McKay 185, 267, 318 Derome i'. Vose 5, 7 Desper v. Continental Water Meter Co. 190 Dew V. Clark 55 Dewey v. Dewey 33, 34, 36, 38, 75 DeWitt V. Harvey 395 De-xter v. Brown 123 V. Codman 149, 326, 466 r. Cotting 72, 145, 156, 180, 248, 266, 436 r. Inches 321 V. Shepard 248 Dickey v. Taft 175 Dickinson, Appellant 307 V. Arms 297 V. Barber 48 V. Durfee 259 Dietrick v. Dietrick 56, 58 Dixon V. Homer 145, 146 Dodd V. Winship 317, 319. 465 Dodge V. Breed 227 V. March 58 Doe V. Caperton 38, 74 V. Griffin 368 TABLE OF CASES CITED. XV [The figures refer to the Pages.] Doe V. Harris 58, 62 Euston ('. Seymour 85 V. Lancashire 67 Evans' Appeal 60 V. Manifold 37 Evving I'. King 196 V. Perks 62 Dolierty v. O'Caliaghan 59, 474 F. Donovan v. Mi:Carty 36 Doole V. Doole 452, 470, 472 Fales V. Fales 381 Dorr V. Wainwright 14G, 291, 438 Fall River r. Riley 432 Downer, In re 61 Fall River Whaling Co V. Bor- Downing ''. Porter 465 den 231 Downs V. Flanders 452 Fargo V. Miller 348 Doyle V. Coburn 422 Farnum v. Bascom 252 Drake v. Green 101, 163 V. Boutelle 221 Draper v. Baker 405 Farrar v. Parker 467 Drew V. Carroll 388, 394 I'arvvell v. Steen 311 V. Gordon 182, 183 Faxon v. Faxon 376 Drinkwater v. Drinkwater 240 Fay V. Haven 105 292, 353 433 Drummond v. Parish 86 V. Howe 307 Drury v. Natick 156 V. Hunt 434 Dube' V. Beaudry 134 V. Muzzey 170, 287 Dublin V. Cliadbourn 5,29 V. Rogers 441 Dudley v. Warner 80 V. Taylor 250, 287 437 Dunbar v. Tainter 295 V. Valentine 438 Duncan v. Beard 74 V. Vanderford 474 Dunham v. Dunham 433, 473, 474 Felch V. Hooper 190 Dunlap V. Watson 292 Fellows V. Smith 178 Durant v. Ashmore 79 I'etherly v. Waggoner 80 Durfee v. Durfee 80 Field V. Hanscorab 390 Du Vivier v. Hopkins 226 V. Hitchcock 318 Dyer v. Clark 403 Finney v. Barnes Fisher v. Metcalf 192 297 E. Fiske V. Fiske 31 332 V. Pratt 474 484 Eastham v. Barrett 375, 377, 378, Fitts V. Morse 363 379, 398, 424 Fletcher v. Livingston 460 Edds, Appellant 481 Flint V. Valpey 213 Eddy V. Adams 200, 215 Flintham's Appeal 299 Edmunds r. Rockwell 253 Florey's Executors r. Florey 59 Edwards v. Ela 299 Flynn v. Flynn 327, 398 400 416 Ela V. Edwards 32, 33, 34, 39, 249 V. Mass. Benefit Association Eliot I'. Eliot 39 171 174 Eliott V. Sparell 210 Foot V. Dickinson 416 Elliot V. Elliot 377, 378 Forbes v. Harrington 203 431 Ellis V: Boston, Hartford, & Erie V. McHugh 96, 168, 169, 174, 11. R. 165 279, 303 430 V. Page 252 Ford V. Ford 61, 62 Ellsworth V. Thayer 223 Forster v. Forster 263 Elms V. Elms 62 F'orward v. Forward 292, 295 297 Emerson v. Paine 222 Foss V. Hartwell 128 V. Thompson 297 Foster's Appeal 80 Emery v. Batchelder 353 Foster v. Bailey 279 V. Bidwell 499 V. Fifield 182 287 V. Burbank 89 !>. Leland 425 V. Hildreth 104 V. Smith 324 330 Emmons i\ Shaw 514 V. Starkey 297 Essex V. Brooks 9 507, 522 r. Waterman 484 Estes V. Wilkes 193 France v. Andrews 357 Esty V. Clark 353 Francis v. Daley 251 474 XVI TABLK OF CASES CITED. [The figures refer to the Pages.] Franklin County Bank V. Green- Gray v. Sherman 42 field Hank 216 Grayson r. Atkinson 32 Freeland v. Freeland 409 tureen v. Gaskill 9 158 French '•. llayvvard 22(; V. Hogan 152, 158, inn, 299, Frotliingliiim r. Shaw 515 467, 505 Fuller i: Connelly 205, 212, 214, V. Russell 228 215, 289 432, 486, 498 Greene v. Borland 146 ?•. Rust 39o, 427 );. Brown 9 r. Wilbur 168 Cireenleaf v. Allen Greenough r. Turner v. \Velles 212, 234 428 239 G. Greenwood's Case 55 Greenwood r. McGilvray 227, 234, Gale V. Nickerson 5,30 , 77, 174, 301 200, 317 472, 473, 474 Gregg V. Gregg 281 Gannon v. RufRn 206, 207 Gregson ;;. Tuson 246, 251, 253, 258, Ciarneit v. Garnett 49, 136 259 Garvey v. fiarvey 160 Greves v. Shaw 520 Gaskill V. Green 158 Grinnell v. Baxter 197 298 Gates V. White 196, 505 Griswold v. Chandler 299 Gay V. :Minot 19 Grow I'. Dobbins 196 George r. George 36 Guckian v. Riley 397 427 Gerard v. Buckley 376 Guptill V. Ayer 216 234 600 Gerrish v. Nason 35,47 Gurney v. Waldron 128 Gibbs V. Taylor 498 Gibson, Appellant 132, 481 V. Farley 298 H. V. Gibson 53 Giles V. Giles 62 Haddock v. Boston & Maine R. Gilniore v. Hubbard 229 R. Co. 29 Glines v. Weeks 204 215, 218 Hagar v. Wiswall 386 Gloucester r. Page 127 Hagertv v. State 511 Glover V. Ilayden 58 Uale V. Hale 178 179 181 471 Goddard v Whitney 323, 324 V. Leatherbee 222 Goff V. Kellogg 223 V. Munn 398 Goldthwait c. Day 221, 234 Hall V. Gushing 495 Gouibault V. Public Administra- V. Hall 33 387 390 tor 54 V. Thayer 20 Goodell V. Goodell 257 Hallowell's Estate 252 Goods of Arthur White 84,87 Hamilton v. Hamilton 49 Clarkes 33 Hammond v. Granger 146, 196, Frith 38 201 Lay 86 Hancock v. Hubbard 356 440 Main 118, 358 Handy v. State 76 Goodwin v. Jones 174 Hannum v. Day 244 246 Goodyear Dental Vulcanite Co. Haraden v Lai-rabee 210 341 V. Bacon 433 Harding r. Larned 266 306 Gordon v. Pearson 370 V. Littlehale 170 Gould V. Camp 197 r. Smith 220 V. Lawrence 181, 454 V. Weld 7 0,71 126 135 V. Mansfield 88 Hardy r. Call 301 i>. Mather 240 Harmon v. Osgood 497 499 V. Safford 86 Harrington v. Brown 104 257 Granger i:. Bassett 210 304, 318 V. Conolly 417 Graves i'. Goldthwait 393 r. Harrington 248 Gray v. Gray 476 Harris v. Berrall 61 V. Parke 130, 159, 160, 162. V. Harris 244 476 167, 472 V. Starkey 5, 12, 29 476 TABLE OF CASES CITED. XVU [Tl e figures refer to the Pages.] Harrison's Appeal 59 Hooper v. Shaw 514 Hartwell r. Rice 3G2 3G3 Horton v. Earle 353 Harvard College v. Aniory 307 Hosea v. JacoV>s 43 V. Gore 71 Houghton V. Butler 496 Harwood r. Goodriglit 66 Hovey v. Dary 261 Hastings v. Dickinson 409 Howard's Will 76 V. Mace 410 Howard r. Candish 414 V. Rider 45, 48 V. Priest 403 Hathorn v. King 45,48 Howe V. Berry 324 Haven v. Foster 43 181 V. Howe 507, 515, 517, 522, Havens v. Vandenburg 67 523 Haverliill Loan and Fund As- r. Lawrence 231 sociation V. Cronin 220 221 V. Peabody 432 Hawes v. Humphrey 69 V. Watson 89 Hay den v. Barrett 341 Howes I'. Colburn 55, 73 Hays, In re 85 Hubbard v. Hubbard 84,86 V. Jackson 252 r. Lloyd 291 Hay ward v. Ellis 310 Hudson V. Hulbert 193, 253 Healy v. Reed 9, 158 207 I'. Lynn & Boston Rail- V. Root 212 road 495 Heard v. Drake 213 Humes v. Wood 251 V. Lodge 432 Humphrey, Appellant 481 r. Trull 466 Hunnewell v. Taylor 375 Heath t-. Wells 253 Hunt, Appellant 307 Hemenway v. Hemenway 210 V. Frost 257 Henry's Case 405 V. Ilapgood 387 Henry v. Estey 404 V. Whitney 234 Hevves v. Delion 252 Hurley v. O'SuUivan 350, 381 Hicks V. Chapman 138 Hussey v. Coffin 100 Higbee v. Bacon 314 Hutchins v. State Bank 30 Higgins V. Central New E ng- land & Western R. R. Co 495 Hildreth v. Jones 404 I. V. Marshall 213 Hill V. Bacon 88 Id ley V. Bo wen 61,79 V, Boston 144 Ingersol v. Hopkins 68, 350 V. Davis 92 Inheritance Tax, Re 511 V. Pike 397 Ipswich Manufacturing Co. v. Hitchcock V. Shaw 40 Story 294, 295 Hix i\ Wittemore 54 Irish V. Smith 49 Hoar V. Marshall 499 Ives V. Ashley 257 Hodgdon v. Cummings 476 Hogan V. Grosvenor 33, 34, 38 Holbrook v. Waters 499 J. Holden i'. Fletcher 195 HoUenpeck v. McDonald 245 Jackson v. Betts 80 V. Pixley 179 180 V. Christman 76 Holmes v. Beal 248 V. Kniffen 58 V. Moore 496 V. Le Grange 73 V. Taber 210 V. Luquere 73 V. Winchester 404, 422 425 V. Van Deusen 38,74 Holyoke v. Ilaskins 3,10 Jacobs V. Jacobs 226 Hooker v. Bancroft 174 Jaques v. Swasey 208, 363 v. Olmstead 105, 221, 237, Jauncey v. Thorne 70 291, 353 438 Jenkins v. Dawes 40 Hooper, Petitioner 187 V. Stetson 88 i". Bradbury 144 V. Wood 98, 168, 196, 242, V. Bradford 515 522 498 XVlll TABLE OF CASES CITED. [The figures refer 6, 3H7 Jenks V. IlowlunJ Jenner r. Ffinch 37 Jeiiney o. Wilcox 196 Jennings ;-. Pendergas 46 Jennison v. Hapgood 184, 257, 287, 290, 291, 292, 295, 299, 300, 301, 315 Jewett V. Jewett 260 V. Phillips 231 V. Turner 100 Jochumsen v. Suffolk Savings Bank 6, 119 Johnson's Will 79, 80 Johnson v. Ames 171, 234, 288 V. Baker 299 V. Home for Aged Women 252 V. Moore's Heirs 55 V. Waterhouse 126 v. Williams 31, 326 Jones, Appellant 466 v. Ate-hinson, Topeka & Santa Fe' R. R. Co. 146, 188 V. Brewer 398 V. Murphy 63 V. Richardson 98, 215 363 V. Simpson 66 V. Treadwell 208, 360 Judkins v. Judkins 374 Julian V. Boston, Clinton & Fitchburg R. R. Co. 409 K. Kaffenburg v. Assnef 470 Kavanaugh v. Kavanaugh 187, 452 Kearns v. Cuniff 415 Keith V. Copeland 209 Kendall v. Gleason 349 Keniston v. Mayhew 349 Kennebel v. Scrafton 68 Kenney's Case 466 Kenney i\ Tucker 361 Kent V. Barker 351 V. Bothwell 174 V. Dunham 209, 210, 471 V. Morrison 273, 408 Kimball r. Perkins 306 V. Story 353 V. Sumner 298 V. Til ton 88 Kinff "• King 404 Kingman r. Soiile 296 Kingsbury v. Wiimarth 180 Kinliside v. Harrison 76 Kiuue V. Kinne 45 to the Pages.] Knapp V. Windsor 348 Knight V. Cunningham 196 Knowlton v. Johnson 356 V. Moore 508, 509 Kochersperger v. Drake 511 Ladd's Will 60 Ladd V. Chase 352 Lamb v. Lamb 292 Lamson i\ Knowles 8, 9, 355 V. Schutt 242, 253 Landon v. Howard 76 Langdon v. Palmer 392 Lane v. Moore 59, 67 Larkins v. Larkins 66 Lamed v. Bridge 239 Larrabee v. Tucker 322, 330 Laughton v. Atkins 64, 66 Lavery v. Egan 323, 325 Lawless v. Reagan 138, 464, 465 Lazell V. Lazell 422 Leathers v. Greenacre 84, 83 Leavitt v. Lamprey 399 r. Leavitt 175 Le Breton v. Fletcher 76 Lee, Appellant 251 V. Gay 352 V. Miller 423 V. Wells 20 Leggate v. Moulton 496 Leland v. Felton 170, 294 Lemage r. Goodban 65 Lenz V. Prescott 356 Leonard v. Ha worth 349 V. Leonard 413 Lewis V. Bolitho 464 V. Lewis 60 V. Mason 48 Lincoln r. Perry 323, 32-5, 355 Lisk y. Lisk 177, 179 Litchfield v. Cudworth 182, 257 Little V. Chadwick 171, 288, 293 V. Conant 496 V. Gibson 41 V. Little 54 Livermore v. Bern is 308, 467, 471 V. Haven 241 Livingston v. New kirk 252 Lobdell r. Hayes 293 Loker v. Gerald 400 Lombard r. Morse 128, 308 Long V. Short 252 Longford v. Eyre 36 Look V. Luce 198, 497 TABLE OF CASES CITED. [The figures refer to the Pages.] Loring v. Alline V. Bacon I'. Cunningham V. Kendall V. Marsh 446 431 170,288 437, 438, 439 350 Mass. Horticultural So ciety V. Park V. Steineman Lovell V. Minot Low V. Bartlett Lowd V. Brigham Lowell, Appellant Lucas i\ Morse Luchterhand v. Sears Lund V. Woods Lusconib V. Ballard Lyman v. Coolidge L3nch V. Dodge Lynes v. Hayden 30 40 354, 356, 358 307 105 377 156 15 449 403 296 42 143 448 M. Macknet's Executors v. Mack- net 299 Magoun v. Illinois Trust & Sav- ings Bank 510, 511 Mansfield v. Pembroke 415 Manson i'. Felton 297 Marden v. Boston 119, 357 Marks r. Sewall 394 Marsh v. French 380 t'. McKenzie 182 Marshall v. Masou 36 Marston v. Roe 67, 68 Martin r. Clapp 176 V. Gage 4G6 Marvel i\ Babbitt 239 V. Phillips 496 Mason r. Mason 400, 416 Mass. General Hospital v. Araory 146 Mathews v. Mathews 324, 408 Mattoon v. Cowing 307, 445 May V. Bradlee 48, 59 V. May 310, 311 V. Skinner 187, 300, 302, 312, 476 Mavnard v. Tyler 57 McCabe i-. Bellows 405 V. Fowler 289 McCann v. Randall 190 McConnell v. Wildes 80 McDonald v. Morton 138 McFeely v. Scott 7 McGooch V. McGooch 112 McGreevy v. McGrath Mclntire v. Linehan McKay v. Kean McKiin V. Aulbach V. Bartlett V. Blake V. Demnion V. Doane V. Glover V. Haley 231 307, 442 5, 144, 203 1G8, 205, 433, 184, 307 141, 169 307, 445 281, 310 304, Bank v. 354 422, V. Harwood V. Hibbard V. Mann V. Morse McLane v. Curran McMahon v. Gray Mechanic's Savings Waite Melanefy i\ Morrison Melia i: Simmons Me nee v. Mence Mendell v. Dunbar Mercier i\ Cliace Merriam r. Leonard Merrill v. Beckwitli I'. Emery V. New England Insurance Co. V. Preston Middlesex Bank i\ Minot Middleton i-. Middleton Miles V. Boyden Miller v. Congdon 146, 210, V. County Commissioners i". Goodwin V. Miller V. Smith Minot, Petitioner V. Harris V. Norcross V. Winthrop Monk V. Capen Moody V. Shaw Mooers v. White Moore v. Boston 28i V. Weaver Moran v. Hollings Morey v. American Loan and Trust Co. Moritz V. Brough Morrill v. Morrill V. Wiseman Morrissey v. Mulhern Morse v. Hill V. Mason V. Natick Morton v. Hall 57, 220, 512,513,517, XIX 94 428 474 429 432 435 431 440 433 436, 498 433 445 446 446 445 398 499 47 119 66 37 424 226 190 408 104 320 221 61 43 291 375 449 453 48 3.50 349 435 522 424 520 44 494 353 496 197 59 390 15 211 188 353 605 197 XX TABLE OF CASES CITED. [The figures refer to the Pages.] Moses i". Julian 20 Mount Hope Iron Co. v. Dear- den 386, 390 MuUiall V. Fallon 495 Mulliern v. McDavitt 309 Mulligan v. Newton 172 Munroe v. Holmes 253, 297 V. Luke 393 Murphy v. Boston & Albany R. R. Co. V. Walker Murray v. Wood 141, 169, Myer v. Tighe 496 311 221, 446 138 N. Kashua Savings Bank r. Ab- bott 198 Nathan v. Nathan 178 National Bank of Troy v. Stan- ton Needham v. Ide Nelson v. McGiffert V. Woodbury Nettieton v. Uinehart New England Hospital v. hier New England Trust Co. Eaton Newburyport v. Creedon Newcomb v. Goss V. Stebbins V. Williams V. Wing Newell I'. Homer V. Peaslee 203 47,48 64 223 496 So- 254 V. West Newhall v. Sadler Newton v. Cook I'. Seaman's eiety Nicholes v. Binns Nichols, Appellant Nickerson v. Buck 316, 465 199 214, 432 293 160, 437, 444 440 63,80 197, 201, 214, 319, 353, 359 12, 179, 216. 223, 224, 303, 318, 434, 476 3yi 405 Friend So- 32,77 54 188 32, 33, 15, V. Chase V. Thatcher Northampton v. Smith Norton v. Norton V. Sewall Nott V. Sampson Manufacturing Co. 259, 460 Noyes v. Stone 328, 402 Nugent V. Cloon 146 73, 74 499 415 19, 464 244, 251 113, 495 Nussear v. Arnold 58 Nutt V. Norton 67, 68 Nye V. Taunton Branch R. R. Co. 398 O. O'Brien i'. Bailey V. Mahoney O'Dee V. Mc Crate Odiorne v. Maxcy O'Donnell v. Smith O'Gara v. Neylon Ogilen V. Greenleaf V. Pattee Onions v. Tyrer O'Reiiey v. Bevington O'Rourke v. Beard Osborn v. Cook Osgood V. Bliss V. Breed V. Foster V. Osgood Ostrom V. Curtis Overton v. Overton 376 374, 376, 379 176 434 134, 135 332, 410 59 209 61 257 352 34 68 15, 360 170 452, 453 217, 235 49 Paine v. Fox V. Gill V. HoUister 178, 356 V. Moffitt V. Prentiss V. Stone V. Ulmer Palmer v. Mitchell V. Palmer 166, 250, 253, Parcher r. Bussell Parker r. Converse V. Kiickens V. Parker V. Sears V. Simpson V. Townsend National Bank Parkman v. McCarthy 313, 5, 29, 399, 415, 474 254 434 409 440 353 434 494 290 294, 311 315 145 369 406 144 495 Parks V. Reilly Parsons v. Mills V. Spaulding Pattee v. Stetson Patten v. Poulton Paul V. Costello V. Paul V. Stone 321, 330. 230 324, 41 424 223 106 466 79 470 339, 423,425 195 Peabody r. Norfolk Pease v. Allis Peaslee v. Peaslee Peck V. Metcalf Peebles v. Case Peiulleton v. I'omeroy Penballow v. Dvviglit Penniman v. Frencli Perkins v. Fellows TABLE OF CASKS CITED. [The figures refer to the Pages. ] 170 40 409 390 76 308 172 4(J4 227. 497 1(52 41 463 360 178, 182,471 206, 221, 301, 130 5,6, V. Finnegan V. Stevens Peters u. Peters V. Siders Pettee v. Wilniarth Pettes V. Brigliam Phelps V. Palmer 375 V. Phelps 407 Phillips V. Allen 402 V. Frye 295 Pickens v. Davis 67 Picquet, Appellant 104, 430 Pierce v. Gould 465, 466 V. Keene 470 V. Prescott 5, 12, 311, 354, 437 V. Saxton 227 Pinkerton v. Sargent 332 Pinney v. McGregory 104, 107 Place V. Washburn 453 Plimpton V. Fuller 252 Plummer v. Coler 510 Pollock V. Learned 31, 209, 832 Pond V. Pond 391 Poole V. Munday 290, 314 r. Richardson 48 Pope V. Farnsworth 152 Potter V. Baldwin 59 V. Hazard 377, 392 V. Wiieeler 400 Powers V. Codwise 40 Powow River National Bank V. Abbott 196 Pratt V. Atvvood 341 V. Bates 150 V. Felton 407 V. Lamson 201 V. Rice 43 Prentice v. Dehon 196 Prentiss ;;. Prentiss 350 Prescott V. Durfee 104 V. Parker 437 V. Pitts- 439 V. Read 305, 440 Prior V. Talbot 291, 438 Pritchard v. Norwood 123 Procter ;;. Newhall 393 Proctor V. Clark 182, 320, 427 Provis V. Reed Pryor v. Coggin Putnam v. Story Putney v. Fletcher 216, 221, 224, Pynchon v. Lester Quick V. Quick Q. R. Ramsdill v. Wentworth Ramsey v. Humphrey Rathbun v. Colton Raymond v. Wagner Raynhara ;;. Wilmarth Read v. Hatch Reed's Will Reed v. Dickerman Reid V. Borland Reynolds v. Reynolds Rice V. Bradford V. Freeland V. Park man V. Smith Rich V. Gilkey V. Lord V. Tuckerman Richards v. Child V. Dutch V. Nightingale V. Richards V. Swectland Richardson v. Bly V. Bojnton V. Hazleton V. Oakman Richmond's Appeal Richmond, Petitioner V. Adams National V. Gray Ricketson v. Merrill Riggs V. Riggs Right ';. Price Ripley u. Collins V. Sampson 197, Robbins v. Bates V. Haywood Robinson v. Bates v. Durfee V. Hodge i\ Hutchinson V. Millard XXI 58 62 240 160, 163, 171, 239, 465, 466 403 80 350, 351 388 305 36,37 399 496 46 407 66 37 514 375 263 393 61 375 195 196 105 213 384, 392, 496 160, 163, 171 46 306 12, 182, 434 441 57 253, 298, 304 Bank 128, 446 266 146, 291, 438 36, 37 36 475 295, 297, 405 257 293, :;''7 401 470, 471 433 49 441, 446 xxn TABLE OF CASES CITED. [The figures refer Robinson v. Ring 290 V. Kobiiison 195, 218 V. Simmons 324, 330, 405 Roger Williams National Bank V. Hall 231 Root I'. Blake 448 V. Yeomans 305 Ross V. Ross 320, 484 Rotcli V. Morgan 295 Russell V. Iloiir 114 V. Russell 413 Ryan v. North End Savings Bank 308 Sanford v. Marsh 341 Sargeant v. Fuller 404, 405 Sargent v. Sargent 209, 210 V. Sargent (168 Mass. 420) 8, 9, 446 Savage v. Winchester 220, 221 Schiffelin r. Stewart 292, 293, 308 Scholey v. Rew 509 Schouler, Petitioner 145 Schultz V. Pulver 290 Scott V. Hancock 240, 415 v. Rand 1G3 v. Scott 61 Scrubly v. Fordham 61 Searle v. Chapman 405 Sears v. Putnam 353 V. Sears 375 V. Wills 2:^6 Selectmen of Boston v. Boyls- ton 176 Sever v. Russell 315 V Sever 391 Sewall V. Raymond 251 V. Robbins 47, 66 V. Roberts 482 V. Wilmer 351 Shailer v. Bumstead 55, 58 Shannon v. Shannon 100 V. White 31 Shattuck V. Gragg 397 Shaw i\ Paine 154 Sheafe v. O'Neil 399 Sherman v. Brewer 175 Shillaber v. Wyman 498 Shores v. Hooper 5, 29, 355, 359 Short I'. Smith 66 Shumway v. Holbrook 30 Shnrtleff v. Rile 306 Sigourney v. Sibley 20, 376 i: Wetherell 175, 295, 314 Silloway v. Brown 422, 423 to the Pages.] Silverman v. Silverman 452 Simmons v. Almy 128 Simonds v. Simonds 88 Slack V. Slack 178, 475 Slattery v. Doyle 297 Slocomb 0. Slocomb 78, 87 Sly V. Hunt 5 Small's Estate 512 Smith, Petitioner 321 V. Bradstreet 467 V. Dutton 818 i;. Fenner 69 V. Haynes 467 V. Jewett 288 V. Philbrick 281 V. Rice 5, 6 V. Shaw 398 V. Sherman 113, 466, 496 V. Smith 48, 400, 453 V. Smith (175 Mass. 483) 123. 199, 473 V. Wait 61 V. Wells 253 Snow V. Snow 822 Sowle V. Sowle 261 Sparhawk v. Russell 220 V. Sparhawk 40, 163 Spaulding v. Wakefield 288 Spelman v. Talbot 196, 226 Spooner v. Lovejoy 88 V. Spooner 197, 2S9 Sprague v. West 240 Spring V. Woodworth 138 Staigg V. Atkinson 149, 320, 326, 407 Stanwood v. Owen 219 State V. Alston 612 V. Ferris 611, 512 V. Hamlin 511 V. Price 79 V. Sawtelle 42 Stearns v. Brown 292 V. Fiske 111, 112 r. Stearns 293, 360, 375 Stebbins v. Lathrop 92, 117 V. Palmer 113, 465, 496 V. Smith 438 Steele i;. Price 61 Stevens v. Cole 439, 440 V. Gage 289 V. Gaylord 105, 294, 295, 353 V. Palmer 354 V. Van Cleve 83, 45 Stewart v. Lispenard 45 V. Stewart 34 Stickney v. Hammond 64. 66 Stills V. Harmon 499 Stockbridge, Petitioner 206, 362 TABLE OF CASES CITED. Stone V. Damon V. Littlefield Stougliton V. Leigh Stowe V. Bowen Strode v. Commonwealth Strong V. Moe Studlcy V. Josselyn V. Willis Sugden v. St. Leonards Sailings V. Richmond V. SuUings Sullivan v. Sullivan Sumner v. Crane V. Parker V. Williams Sntton ('. Sutton Sutton Parish v. Cole Swan V. Hammond V. Picquet Swasey v. Jaques [The figures refer 49 2G7. Sweeney v. Muldoon Swett V. Boardman V. Bussey Swift, In re Sykes t'. Meacham Symmes v. Drew 306 402 146 512 ?m 250 20o 68, 80 o56, 400 409 40 59, 76, 77 387 261, 296 66 144 67,68 465 9, 158, 348, 349, 463, 467 211 35 375 511 196 414 Taft V. Stevens 396 V. Stow 198 Ta inter v. Clark 239 Talbot V. Chamberlain 7e \ 83, 372 Tallman v. Tallman 449 Tallon V. Tallon 96, 200, 207 Tarbell v. Forbes 80, 81 V. Jewett 294, 295 I'. Parker 218, 240, 25.3, 259 V. Tarbell 350, 409 Taylor v. Blake 375 V. Lewis 207 V. Lovering 128 V. Taylor 207, 304 Tenney v. Poor 244, 240, 251 Terry v. Foster 350 Thacher v. Dunham 301 Thayer v. Boston 71 V. Finnegan 433 V. Homer IGO V. Keyes 440 V. Thayer 379, 386, 391 V. Winchester 6, 98, 239, 242 Thomas v. Le Baron 254, 201 Thompson, Ex parte 85,86 V. Brown 307 V. McGaw 416 ■ to the Pages.] Thompson v. Thompson Thorndike v. Hinckley Thurston v. Maddocks Tilden v. Tildeii Tirrel v. Kenney Todd V. Bradford I'. Sawyer Tooniey v. McLean Towle V. Bannister V. Lovet V. Swasey Townsend v. Townsend Trecothick v. Austin Trimlestown v. D'Alton Trimmer v. Jackson Tripp V. Gifford Tucker v. Fisk V. Utley Tully V. TuUy XXlll 55 141, 221, 281 422 33,44 404, 423 220 88 404 216 494 326, 332 171, 288 59 35 318 5, 465, 467, 484 495 454 TurnbuU v. Pomeroy 311 Tuttle V. Robinson 289 Tyler v. Boyce 199 I'. Court of Registration 99 V. Odd Fellows' Association 128 u. United States v. Perkins 510 Uphara V. Draper 308 Urann v. Coates 311 Utica Insurance Co. v. Lynch 293 Van Alst v. Hunter 46 Vantine v. Morse 499 Vaughan v. Street Commis- sioners 120 Veazie r. Marrett 200 Verdier v. Verdier 75 Verry v. McClellan 251 Very v. Clarke 231 Vincent v. Spooner 409 W. Wade V. Lobdell 281, 314 Wain Wright ;•. Tuckerman 44 Wales V. Coffin 423 r. Willard 2, 6 Walker v. Fuller 244, 248, 251, 252 254, 259, 476 V. Hill 213 XXIV TABLE OF CASES CITED. [The figures refer to the Pages.] Walker v. Lyman's Adniinis- | White V. Ditson 156, 292, 435, 439, trators 216 445 V. Walker 268, 398 V. Duggan 435 Wall V. Troviilent Institution | V. New Bedford Waste for Savings 169 Corporation 134 Wallis V. Banhvell 143 V. Ripton 86 r. Wallis 64,80 V. Stanfieid 210, 349 Walsh V. Wilson 403, 407 V. Stanwood 434 Walters v. Nettleton 496 V. Story 414 Walthain Bank v. Wright 196, 297 V. Swain 230, 235, 305 Wamesit Power Co. r. Sterl ng V. Weatherbee 433, 437 Mills 895 V. Willis 401 Ward V. Fuller 88 V. Wilson 55, 160 V. Gardner 379 Whithcd V. Mallory 401 V. \Yard 182 Wliitney v. Closson 320 Warden v. IJichards 240 V. Twombly 45 Wardweil r. Wardwell 131 Wiggin V Swett 302 , 317, 444, 466 Ware r. Merchants' National Wilbor V. Dyer 390 Bank 409 Wilbur V. Hickey 241 V. Ware 49 Wilby V. Phinney 220 Warner v. Beach 67, 69, 70 Wilcox V. Wilcox 16, 244, 403 V. Warner's Estate 60 Wild V. Brewer 350 Warren v. Para Rubber Shoe Wilder v. Goss 350 Co. 495 V. Tl layer 349, 353 Washburn v. Ilale 803 Wildbridge v. Patterson 160 V. Wasliburn 180 Wilkes V. Rogers 309 V. Wliite 482 Wilkins V. Wainwright 205, 495 Waterman v. Hawkins 350 Willard v. Briggs 454 Waters v. Stickney 12, 15, 77 V. Lavender 15 , 300, 436, 445 Watson V. King 357 V. Willard 377 V. Watson 379, 397 Willoutt V Calnan 88 Watts V. Howard 302 Willett V. Blanford 290 Webster v. Hale 209 Willey V. Tiionipson 304 V. Vnndeventer 164 Williams r. American Bank 222 V. Webster 69 V. Robinson 47 Webster Bank v. Eldredge 154 r. Spencer 47 Welch r. Adams 105, 158, 209, 210, r. VVilliams 67, 178 238, 340 353, 359 Wilmarth v. Bridges 397 Weller i'. Weller 398 414, 424 Wilmerding, Re 510 Wellington ?-. Apthorp 88 Willwerth v. Leonard 165 Wellman v. Lawrence 254 Wilson V. Fosket 350 Wells V. Child 99 196, 437 V. Leishman 176 Welsh V. Welsli 170,238 V. Wilson 160, 163 V. Woodt)ury 320 324, 330 V. Wilson-Martin Fire Alarm Wemyss v. White 145 Co. 180 Wendell v. French 300, 301 Wilton V. Humphreys 77 Wentwortli v. Wentworth 178 Winchelsea v. Wanch ape 38 Weston c. Foster 375 Winchester v. Forster 88 Wiiall i\ Converse 348 V. Holmes 404 Wheeler v. Bent 61 Wineburgh v. U. S. Steam & V. Bo wen 499 Street Railway Advertising V. United States 42 Co. 495 Wheelock v. Pierce 104 Wing V. Wheeler 281 Whitaker v. Green 418 Winn V. Sanford 401 Wliitcoml) V. Taylor 270 Winship v. Bass 160, 163, 294, White V. British Museum 33 295 V. Clapp 887, 391 Winslow V. Goodwin 320 V. Cutler 401 Winsor v. Pratt 32 TABLE OF CASES CITED. [The figures refer to the Pages.] Wiiitlirop V. Miiiot Wolcott V. Wolcott Wood's Estate Wood V. liarstow V. Stone V. Wasliburn Woodbury r. Luddy V. Obear Woodward r. Lincoln Wood worth v. Spring Worthington r. Klemm Wright V. Dunham V. Netherwood 375 5 299 484 350 433 4-23 15, 48, 55, 58 424 130 34, 35 227 67 Wright V. Wright Wj'eth V. Stone Wy man i\ Hooper I'. Hubbard V. Synimes XXV 33, 126, 182, 476 484 254, 257 292 40 Y. Yarrington v. Robinson 498 Yeackel v. Litclifield 257 Yeoraans v. Brown 244, 246, 248 INDEX TO STATUTES. Kevised Statutes. Page c. 69, § 8 145 General Statutes. c. 91, 322 Public Statutes. c. 4, § 1 486 c. 87, § 82 504 § 91 504 c. no, § 14 486 c. 124, § 3 . . . . 324, 325 c. 125, § 4 341 c. 127, § 18 326 § 19 326 § 20 407 § 23 206 c. 132, § 5 168 c. 133, § 1 15 § 2 176 § 3 184 § 4 185 c. 134, § 15 ...... 251 c. 135, § 3 . . . . 324, 325 c. 139, § 2 132 § 8 132 c. 141, § 27 9 § 28 10 c. 142, § 9 324 § 14 10 c. 143, § 2 428 § 14 89 c. 147, § 6 326 c. 156, § 2 8 § 3 10 § 4 7 § 9 182 § 22 11 § 24 11 § 25 11 § 26 12 § 27 12 § 28 13 § 30 13 § 31 13 § 32 14 § 33 14 Page c. 156, § 34 14 § 35 15 § 37 16 § 39 17 § 40 17 § 45 20 § 47 27 c. 158, § 4 19 § 5 21 § 6 22 § 7 22 § 8 22 § 9 23 § 10 23 § 11 24 § 12 24 § 13 24 § 14 24 § 15 25 § 16 25 § 17 25 § 19 25 § 20 25 § 21 26 § 22 26 c. 178, § 1 376 Revised Laws. c. 3, § 5, cl. 24 . . . 42 c. 8, § 5 . . 16, 71, 192, 321 c. 9, § 1 486 c. 11, § 254 491 § 319 4 c. 12, § 23 296 c. 13, § 34 296 c. 14, § 8 502 c. 15, .... 279,420 § 1 506 § 2 . . . . 209, 508 § 3 . . . . 299, 514 § 4 . 204, 358, 517, 523 § 5 . 208, 304, 356, 517 § 6 . . . . 208, 518 § 7 . . 8, 208, 304, 518 § 8 . . . 242, 243, 518 XXV Ill INDEX TO Page c. 15, § 9 . . 169, 518, 519 § 10 . . 17, 169, 519 § 11 . . . 172, 519 § 12 . . 516, 519, 520 § 13 . . 516, 520, 521 § 14 . . . 510, 521 § 15 . . 204, 356, 521 § 16 . . 173, 419, 521 § 17 . . . . 8, 522 § 18 . 7C , 113, 315,522 § 19 . 280 , 316, 522, 523 § 20 . . . 280. 523 28, § 37, § 9 . . . . . 152 c. 3 . . . . . 153 § 4 . . . . . 153 § 14 . . . 1G3, 164 c. 44,4, 4 . . ... 491 c. 48, § 17 ... 147 § 18 . . . ... 147 § 19 . . . ... 147 § 25 . . . ... 148 § 108 . . . ... 148 c. 64, § 15 . . . . . . 239 c. 74,5, 6 . . . . . . 89 c. 78, § 1 . . . ... 333 § 5 . . . . . . 152 § 18 . . . ... 152 § 26 . . . ... 334 § 27 . . . ... 334 § 28 . . . ... 334 § 29 . . . ... 334 c. 81, § 9 . . . ... 199 § 10 . . . ... 482 c. 83, § 11 . . . ... 485 § 29 . . . . . . 129 § 31 . . . ... 129 § 33 . . . ... 129 c. 86, § 10 . . . . . 8,492 § 12 . . . ... 492 § 52 . . . ... 487 § 87, § 53 .' . . 487 c. 33 . . . . . 8,492 59 . . . . . 8,493 § 118 . . . . . . 8 c. 106, § 71 . . . . 494, 496 § 72 . . . 494, 495, 496 § 73 . . . 494, 495, 496 § 74 . . . . 494, 496 § 75 . . . . 494, 496 § 76 . . . . 494, 496 § 77 . . . . 494, 496 § 78 . . . . 494, 496 § 79 . . . . 494, 496 c. 100, § 17 . . . ... 502 c. no. § 64 . . . ... 502 c. ni,§ 110 . . . ... 502 c. 113, § 25 . . . 232, 365, 368 Page c. 113, § 42 505 § 43 505 § 55 ... . 232,368 c. 116, § 18 . 96, 108, 129, 144, 153 § 30 502 c. 117, § 11 502 c. 118, § 61 428 § 73 171 c. 124, § 1 . . . . 328, 324 c. 127, § 28 . . . 150, 276, 277 § 29 . . . 150, 276, 277 § 30 . . . 149, 150, 277 § 31 ... . 150,277 c. 128, 492 § 85 396 § 92 492 c. 129, § 1 . . . . 245, 406 § 2 400 c. 131, ... 30, 243, 422 § 8 . . . . 339,423 § 9 . . . . 423,427 § 10 . 264, 338, 425, 427 § 11 ... . 377, 424 § 12 426 § 13 426 c. 132, § 1 ... 30, 327, 397 § 2 . . . . 327, 339 ■ § 3 . . . . 328, 402 § 4 . . . . 328, 405 § 5 400 § 6 409 § 7 409 § 8 409 § 9 . . . 340, 397,411 § 10 ... . 340,413 § 11 ... . 381,411 § 12 397 § 13 ... . 332,409 § 14 415 c. 133, § 1 483 § 2 . . . 322, 348, 349 § 3 341 § 4 341 § 5 341 § 6 ...... 346 § 7 321 c. 134, § 3 243 § 11 . . . 151, 402, 451 c. 135, § 1 . . . 30,32, 116 § 2 40,42 § 3 40 § 4 32, 42 § 5 .... . 32^ 78 § 6 32 § 7 30, 32 SB 60 INDEX TO STATUTES. XXIX Page C. 135, § 9 68 8 10 01 § 11 91 § 12 92 § 13 92 § 14 92 § 15 92,93 § 16 . . . .30, 31, 149 § 16 ... . 332,408 § 17 149 § 18 ... . 406, 407 § 19 349 § 20 352 § 21 ... . 206, 352 § 22 87, 88 § 23 88 § 24 88 § 25 ... . 352, 4(50 § 26 461 § 27 461 § 28 461 § 29 462 § 30 ... . 406, 402 c. 136, § 1 71,94 § 2 73 § 8 30, 119 § 5 100 § 6 95, 199 § 9 90, 198 § 10 83 § 11 83 § 12 83 c. 137, § 1 107 § 2 . , . . 107, 117 § 3 106 § 4 106 § 5 165 § 6 . . . . 103, 165 § 7 103 § 8 . . . . 103, 115 § 9 . . . 104, 128, 472 § 10 ... . 123, 242 § 11 1-24 § 12 . . . 124, 181, 472 § 13 . . .15, 124, 299 § 14 124 § 15 ... . 124, 199 c. 138, § 1 114 § 2 114 § 3 114 § 4 114 § 5 . . . . 122,282 § 6 122 § 7 123 § 8 282 § 9 199 S 10 271 Page e. 138, § 11 271 § 12 . . . . 282, 368 § 13 ... . 283,371 § 14 371 § 15 371 § 16 371 § 17 ... . 283, 371 § 18 ... . 283,-371 § 19 371 c. 139, § 1 192 § 2 193 § 3 193 § 4 193 § 5 . . . . 168, 169 § 6 . , . . 172, 173 § 8 .95,102,143,162,104 § 9 . . . 102, 143, 163 § 10 ... . 143, 162 § 11 . 159,162, 163, 2S1 § 12 164 § 13 164 § 19 284 c. 140, § 1 . . . 177, 328, ih-i § 2 . . . . 177,329 § 8 . . . 330, 335, 483 § 4 . . . . 360, 363 § 5 361 § 6 361 § 7 363 § 8 360 § 9 361 c. 141, § 1 . . .203,204, 212 § 2 . . . . 204,212 § 3 . . . . 204, 212 § 4 . . . . 204, 213 § 5 . . . . 205, 215 § 6 3u3 § 7 . . . . 303, 474 § 9 197 § 10 ... . 196, 197 § 11 197 § 12 198 § 13 ... . 113,201 § 14 202 § 15 202 § 16 202 § 17 200 § 18 200 § 19 200 § 20 ... . 207, 359 § 21 359 § 22 359 § 23 . . . 207, 208, 359 § 24 209 § 25 210 § 26 203 § 27 203 XXX INDEX TO STATUTES. Page c. 141, § 28 203 § 29 203 § 30 203 § 31 203 § 32 203 c. 142, § 1 . . . . 211, 229 § 2 216 § 3 . . . . 216, 218 § 4 . . . . 216,224 § 5 216 I 7 219 § 8 219 § 9 . . . . 216, 217 § 10 234 § 11 226 § 12 . . . 226, 227, 229 § 12 . . . . 469, 478 § 13 ... . 469,478 § 14 ... . 229, 478 § 15 ... . 227,478 § 16 ... . 228, 478 § 17 ... . 228,478 I 18 229 § 19 230 § 20 229 § 21 231 § 22 236 § 23 236 § 24 233 § 25 ... . 106, 233 § 26 . 163, 230, 284, 437 § 30 234 § 31 236 c. 143, 83 § 1 . . . . 340,353 § 2 353 § 4 238 § 5 238 c. 144, . . . . 8, 341-346 c. 145, § 1 126 § 2 . . . . 127, 132 § 3 . . . . 127, 132 § 4 . . . 126, 128, 132 § 5 131 § 6 . . . . 133, 135 § 7 . 133, 134, 135, 138 § 8 134 § 9 136 § 10 142 § 11 ... . 137, 166 § 12 140 § 13 140 § 14 ... . 140, 310 § 15 140 § 16 138 § 17 138 § 18 142 Page c. 145, § 19 139 § 20 8, 133 § 21 1.33 § 22 ... . 159, 164 § 23 ... . 150,277 § 24 277 § 25 308 § 27 ... . 381,397 § 28 . . , .8, 129, 455 § 29 . . . . 264,309 § 30 ... . 183, 310 § 31 183 § 32 451 § 33 ... . 332, 408 § 35 187 § 36 372 § 37 166 § 38 175 § 40 8, 143 § 41 143 § 42 . . . 143, 162, 194 c. 146, § 1 239 § 2 . . . . 245, 399 § 3 247 § 4 2.39 § 5 263 § 6 246 § 7 . . . 246, 251, 264 § 8 247 § 9 ... 251, 256, 270 § 10 248 § 11 266 § 12 250 § 13 266 § 14 ... . 254, 266 § 15 . . . 193, 255, 266 § 16 256 § 17 . . .244, 251, 254 § 18 ... . 241,243 § 19 264 § 20 265 § 21 266 § 22 267 § 23 265 § 24 265 § 25 ... . 270, 372 § 26 273 § 27 273 § 28 273 § 29 278 § 30 263 § 31 271 § 32 271 § 33 263 § 42 ... . 143, 194 c. 147, § 1 149 § 4 144 INDEX TO STATUTES. XXXI c. 147, § § § § c. 148, § Page ... 145 ... 145 . . . 169 ... 151 ... 151 ... 163 ... 164 ... 152 154, 162, 1!)4 . 188, -275 . 189, 275 . 190, 278 ... 274 ... 274 ... 157 8,448 5 . 6 . 7 . 9 . 10 . 11 . 12 . 13 . 14 . 15 . 16 . 17 . 18 . 19 . 23 . 1 . 2 8, 240 10 U 13 14 . 187, 516 . 186, 272 ... 278 ... 277 ... 271 ... 254 181, 261, .S30 ... 249 ... 260 ... 449 ... 450 § 15 ... . 10, 89, 450 c. 149, § 16 17 18 19 20 21 22 24 25 26 1 § 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 450 450 450 258 259 249 260 . . . 100, 460 430 . . . 194, 256 97, 120, 121, 141, 155, 169. 279, 280 97, 99, 120, 168, 169, 242 99, 121, 429 141, 156, 436 . . . 142 ... 156 . 141, 156 121, 159, 429 ... 428 . 428, 429 . . . 429 ... 97 . 258, 432 . 159, 430 . 159, 431 . 159, 431 Page 149, § 17 432 § 19 ... . 162,431 § 20 432 § 21 432 § 22 432 § 23 437 § 24 ... . 432,441 § 25 280 § 26 442 § 27 442 § 29 445 § 30 442 § 31 444 § 32 444 § 33 444 § 34 444 § 35 446 150, § 3 314 § 4 . . . 172, 184, .302 § 5 2b6 § 6 294 § 7 185 § 9 185 § 10 185 § 11 320 § 12 299 § 14 299 § 15 ... . 300,428 § 16 284 § 17 317 § 18 316 § 20 ... . 310, 365 I 22 313 § 23 . . . 232, 365, 367 § 24 ... . 206,232 § 26 . . . 103, 232, 367 § 27 ... . 314,373 § 28 ... . 314, 373 151, § 9 399 § 20 8 152, § 17 454 § 24 400 153, § 1 30, 339 § 5 95 § 15 ... . 267, 456 § 16 ... . 269,4.56 § 17 ... . 267, 456 § 19 . 136, 140, 268, 269, 400, 457 § 20 ... . 137,4.57 § 21 . 137,268, 401, 458 § 22 . . . 137, 268, 458 § 23 . 137, 260, 401, 458 § 24 ... . 137, 458 § 25 458 § 31 ... . 6, 9, 463 § 32 ... . 6,9,463 xxxn INDEX TO STATUTES. Page c. 163, § 33 . 128, 453, 454, 463 § 34 453 § 35 453 § 30 30, 339 § 37 .... C, 9, 463 c. 154, § 1 479 § 2 . . . 479, 480. 481 § 3 480,481 § 4 481,482 § 5 482,483 § 6 482 § 7 482,483 § 8 483,484 § 9 484 § 10 484 § 11 ... . 484,485 § 12 485 § 13 ... . 485, 486 § 14 486 c. 155, § 11 492 c. 150, § 6 251 c. 159, § 35 475 c. 160, § 21 206 c. 162, § 2 7 § 3 . . 7, 102. 104, 107 § 4 9,455 § 5 .... 9, 10, 158 § 6 10 § 7 10, 158 § 8 463 § 9 463 § 10 6, 408 § 11 6,468 I 12 468 § 13 ... . 182,470 § 14 471 § 15 474 § 16 472 § 17 472 § 18 . . . 6, 455, 464 § 19 ... . 453, 472 § 20 ... . 166, 472 § 21 167 § 22 . . . 10, 11, 167 § 23 474 § 24 475 § 25 474 § 27 468 § 30 11, 28 § 31 11 § 32 11 § 33 12 § 34 ... 12, 385, 412 § 35 12 § 36 12, 13 § 37 13, 316 § 38 13, 165 c. 162, § 39 . . . 13, 14, 191 § 40 14, 27 § 41 14 § 42 14 § 43 14, 175 § 44 15,300 § 45 . . . 16, 72, 248 § 45 ... . 266,381 § 46 16, 172 § 47 16, 72 § 48 16, 17 § 49 17 § 60 93 § 65 26 § 56 26,27 § 57 27 § 58 27 § 59 27 § 60 491 c. 163, § 45 469 § 53 194 § 82 505 § 104 469 § 105 469 § 138 231 c. 164, § 1 17 § 2 . . 17, 18, 96, 119 § 3 18 § 4 18 § 5 19 § 6 20 § 7 20,21 § 8 21,429 § 9 20,21 § 10 21, 22 § 11 22 § 12 22 § 13 22,23 § 14 23 § 15 23 § 16 23 § 17 23,24 § 18 24 § 19 24 I 20 24 § 21 24,25 § 22 25 § 23 25 § 24 25 § 25 ... . 25, 26, 172 § 26 26 § 33 493 § 34 493 § 35 493 c. 165, § 56 ... . 284,312 § 60 284 § 73 493 INDEX TO STATUTES. XXXlll Page C. 171, § 1 . . . . 113,494 § 2 494 § 14 384 § 15 384 c. 172, § 1 ... 113, 205, 494 § 2 . . . . 205, 495 § 3 496 § 4 . . . . 296, 497 § 5 497 § 6 497 § 7 498 § 8 98, 498 § 9 498 § 10 499 § 11 499 c. 173, § 5 186 c. 174, § 6 206 § 7 206 c. 175, § 20 39 § 23 39 c. 178, § 1 243 § 55 406 c. 180, § 1 416 § 2 417 § 3 417 § 4 417 § 5 417 § 6 417 § 7 418 § 8 418 § 9 418 § 10 418 § 11 ... . 418,419 § 12 419 C. 184, § 1 . . . . 376, 395 § 5 382 § 6 382 § 12 377 § 13 385 § 22 377 § 29 379 § 31 ... . 374, 379 § 32 377 § 33 387 § 34 374 § 35 381 § 36 383 § 37 384 § 38 384 § 39 378 § 40 379 § 41 386 § 42 391 § 43 376 § 44 ... . 379, 382 § 45 393 § 46 377 Paoe c. 184, § 47 ... . 381, 388 § 48 388 § 49 ... . 148, 383 § 50 377 § 51 377 § 52 ... . 382, 383 § 53 391 § 64 380 § 55 380 § 56 390 § 57 392 § 58 395 § 59 395 c. 185, § 1 . . . . 406, 419 c. 189, § 20 . . . . . . 499 § 50 500 § 51 500 § 52 500 § 53 500 § 54 601 § 55 501 § 66 601 c. 191, § 48 8 § 49 8 § 60 8 § 61 8 § 52 8 § 53 8 c. 204, § 21 505 § 23 . . .173, 385, 413 c. 208, § 29 93 § 48 503 Miscellaneous Statutes. 1783, c. 24 84 c. 36 108 1856, c. 173 4 1858, c. 93 3 1862, c. 68 4 1870, c. 359 466 1871, c. 365 466 1873, c. 314 126 1874, c. 205 128 1884, c. 131 15 c. 141 27 c;. 249 486 1885, c. 235 16 c. 255 ... . 323, 326 c. 276 325 c. 362 129 1887, c. 290 ... . 323, 326 c. 332, § 2 .... 9 1888, c. 372 89 1890, c. 420, § 1 ... 14, 27 § 2 ... 11, 28 c. 117 129 1891, c. 312 129 c. 415, § 1 . . 9, 10, 89 XXXIV INDEX TO STATUTES. Page Page 1891, c. 415, §2 12 1901, c. 297 513 §4 7 1902, c. 160 91, 92 c. 425 . . 508, 51 2,513 c. 324 462 1892, c. 116 . . 9 c. 371 ... . 8, 9, 446 c. 118 . . 68 c. 473 315,317,513,516,517 c. 169 . . 375 c. 474 ... . 126, 128 c. 337, § 1 19 c. 478 .. . 378, 400, 456 §3 21 c. 538 .. , 10, 90, 158 1893, c. 151, § 1 24 c. 544 346 c. 372, § 1 11 Acts of Congress. c. 469, § 2 23 July 6, 1797, 1 Stat, at Large, c. 469, § 3 23 c. 11 507 1894, c. 199 . . 23 July 1, 1862, c. 119 ... 507 c. 377, § 1 19 June 30, 1864, c. 173 507, 508, 509 §3 21 July 14, 1870, c. 255 .. . 607 1895, c. 215 . . 27 June 13, 1898, c. 448 . 507, 508 c. 307 . . 507 509, 514 1897, c. 147 . . 16 April 12, 1902, c. 500 .. . 507 1898, c. 131 . . 20,21 c. 234 . . 24 English Statutes. 1899, c. 191, § 1 24 31 Edward III. c. 11 . . . 108 c. 345, § 1 19 21 Henry VIII. c. 5 ... 108 §3 21 29 Charles II. c. 3 ... . 84 1900, c. 180 . . . 22 4 William and Mary, c. 3 . 84 c. 144, § 1 . 24 25 George II. c. 6 ... . 40 1901, c. 61 . . . 27 1 Victoria, c. 26, § 9 . . . 32 THE PROBATE COURTS. CHAPTER I. THE PROBATE COURTS: THEIR ORIGIN AND GENERAL JURISDICTION. The colony charter, under which the English settlers of Massachusetts emigrated and organized, contained no par- ticular provisions for the establishment of courts. It was framed for the regulation of a commercial and land corpo- ration, rather than with a view to the establishment of a civil and political government. The colonists were strongly attached to the spirit of the English law, and adopted its leading maxims and its forms and modes of proceeding, so far as they were applicable and necessary to their peculiar condition and wants. The English probate jurisdiction, with which they were familiar, was confided to the ecclesi- astical courts, whose jurisdiction was exclusive and entirely separate from the temporal courts ; but there could be no ecclesiastical courts in the colony. There was no church establishment by means of which they could be organized on the English model, nor was such a system consistent with the religious sentiments and purposes of the people. Some new provision was therefore necessary for the exercise in the colony of the important powers given to the ecclesiastical courts in England ; and as at that time there was no apparent necessity for the erection of a distinct probate court, the power of admitting wills to 1 2 riiOCEEDINGS IN THE PROBATE COUIITS. probate and of granting administration was given to the county courts, which were established under the general authority given by the charter to the governor and assist- ants to govern the company and their settlements. The county courts had jurisdiction in common law, probate, and equity, with an ultimate appeal to the governor and assist- ants. The earlier records exhibit probate decrees in the same pages with judgments in civil actions and sentences in criminal prosecutions. This provision, in the existing condition of the colony, was practically sufficient. Orders were passed from time to time, as experience suggested, to promote the convenient and prompt settlement of estates ; but the probate jurisdiction remained with the county courts until the dissolution of the colony charter. Under the province charter of William and Mary, granted in 1691, the courts were newly organized. The superior court of judicature, the court of common pleas, courts of general sessions, and of justices of the peace were estab- lished ; but the charter which gave to the General Court authority to erect courts with civil and criminal jurisdic- tion ordained that the governor and council should " do, execute, and perform all that is necessary for the probate of wills, and granting administrations for, touching and concerning any interests or estate which any person or persons shall have within our said province or territory." Thus the probate jurisdiction was taken from the common- law courts, and in fact made independent of the legislative power. The provincial legislature passed an act erecting county courts of probate, but it was negatived by the king ; ^ but under the authority vested in the governor and council by the charter, probate officers were appointed in the several counties, who were in effect surrogates, exercising a dele- 1 Parsons, C. J., in Wales v. Willard, 2 Mass. 120. GENERAL JURISDICTION. 3 gated authority, from whose decrees appeals were taken to the governor and council, who remained the supreme ordi- nary, or court of probate. This was the beginning of the probate courts as distinct tribunals. The courts thus constituted continued to exercise pro- bate jurisdiction until the formal establishment of the county probate courts under the State constitution. Stat- utes were enacted by the provincial legislature recognizing their jurisdiction, extending their powers and duties, and to some extent regulating their proceedings. The constitu- tion of 1780 provided for the regulation of times and places of holding probate courts, and for appeals from the judges of probate to the governor and council until the legislature should make further provision. This system continued in actual operation until the passage of the act of 1784, by which the probate courts were first formally established. That statute provided for the holding of a court of pro- bate within the several counties of the commonwealth, and for the appointment of judges and registers of probate, and transferred the appellate jurisdiction from the gov- ernor and council to the supreme judicial court, which was constituted the supreme court of probate. • The same stat- ute authorized the courts of probate to allow wills and grant administrations ; to appoint guardians for minors and insane persons ; to examine and allow the accounts of executors, administrators, and guardians ; and to act in such other matters and things as they should have cognizance and jurisdiction of by the laws of the commonwealth. The courts thus organized continued to exercise probate jurisdiction until the statute of 1858, c. 93, which abol- ished the office of judge of probate, and provided for the appointment in each county of a suitable person to be 4 PROCEEDINGS IN THE PROBATE COURTS. judge of probate and judge of the court of insolvency, and to be called the judge of probate and insolvency. The same statute provided for the election of registers of pro- bate ^ and insolvency, to hold office for the term of five years, and transferred all the jurisdiction and authority then exercised by the judges of probate to the judges of probate and insolvency. The General Statutes of 1860 provided that judges of probate and insolvency should continue to hold their offices according to the tenor of their commissions, and that the judge and register of probate and insolvency in each county should continue to be judge and register of the probate court in such county. By the statute of 1862, chapter 68, probate courts were made courts of record. The peculiar and appropriate jurisdiction of the probate court, embracing the probate of wills and granting administrations, and their incidents, is the same as that of the English ecclesiastical courts. Such was the jurisdiction first exercised by the governor and council, and their surrogates, under the province charter. But the powers of the probate court have been gradually increased by a series of state and provincial statutes, reaching back to the time of their separation from the common-law courts. Jurisdiction has been given to them of matters formerly within the exclusive cogni- zance of the courts of common law, and not analogous to any proceeding of the probate court as a court of ecclesiastical jurisdiction. These various statutes, based upon the suggestions of practical experience, and passed ^ Registers of probate had been previously elected under St. of 1856, c. 173. The Revised Laws provide that a register of probate and insolvency shall be elected in each county in 1903, and every fifth year thereafter. R. L. c. 11, § 319. GENERAL JURISDICTION. 5 with a view of promoting the prompt and economical dis- position of the matters to which they relate, have resulted in establishing the large jurisdiction jiow exercised by the probate court. This jurisdiction is separate and exclusive. By the separation of the probate and common-law jurisdictions under the provisions of the province charter, the separa- tion between them became as well settled in this country as in England, and the same distinction has been substan- tially maintained. The decrees of the probate court, upon subjects within its jurisdiction, are conclusive and final, unless appealed from.^ They cannot be called in question in the common-law courts upon collateral proceedings.'-^ A writ of error will not lie to a judgment of the probate court ; ^ nor will certiorari lie from the supreme court to the probate court.* None of the processes devised to re- examine the decisions of the common-law courts are appli- cable to the probate courts.^ And as the proceedings of the probate courts are not according to the course of the common law and cannot be revised in a common-law court by a common-law pro- cess, its decrees, when the court exceeds its jurisdiction, ^ Dublin V. Chadbourn, 16 Mass. 433; Parker v. Parker, 11 Cush. 519, 524 ; Shores v. Hooper, 153 Mass. 228, 232. 2 Pierce v. Prescott, 128 Mass. 140. But see Brigham i\ Fayer- weatlier, 140 Mass. 411, 413 (explained in Sly v. Hunt, 159 Mass. 151); and Dallinger v. Richardson, 176 Mass. 77. 3 Smith V. Rice, 11 Mass. 507, 513; Derorae v. Vose, 140 Mass. 575. * Peters v. Peters, 8 Cush. 529, 543 ; Browne j^Doolittle, 151 Mass. 595, 600; and cases cited. 5 McKim V. Doane, 137 Mass. 199 ; Wolcott v. Wolcott, 140 Mass. 194 ; Harris v. Starkey, 176 Mass. 445. For a discussion as to the jurisdiction of the probate court, see Gale v. Nickerson, 144 Mass. 415; Tucker v. Fisk, 154 Mass. 574. 6 PROCEEDINGS IN THE PROBATE COURTS. are necessarily void. Other erroneous and irregular judi- cial proceedings, which can be revised by a superior com- mon-law court, are voidable only, and are good and valid until reversed. But the irregular decree of the probate court is a nullity, and may be set aside in any collateral proceeding by plea and proof. ^ . The sure and convenient remedy, however, of any party aggrieved by a decree of the probate court is by appeal to the supreme court of probate in the manner provided by statute, except in the special cases where the appeal must be taken to the superior court.^ The supreme judicial court is constituted the supreme court of probate. This appellate jurisdiction is vested in the same court with that from the common-law courts (and that for a very wise reason, that there might not be conflicting decisions between two supreme courts admin- istering the same laws), but in another and distinct capac- ity as if it were a distinct court.^ It has a superintending 1 Wales V. Willard, 2 Mass. 120; Cutts v. Haskins. 9 Mass. 543; Smith V. Rice, 11 Mass. 506, 513; Holyoke v. Haskins, 5 Pick. 20;, Coffin V. Cottle, 9 Pick. 287; Jenks v. Rowland, 3 Gray, 536; Joch- umsen v. Suffolk Savings Bank, 3 Allen, 87; Thayer v. Winchester, 133 Mass. 447 ; and cases cited. 2 Post, chap. xxi. A person aggrieved by an order, sentence, de- cree, or denial of a probate court upon a petition brought under section 33 of chapter 153 of the Revised Laws, or upon a petition of a married ■woman concerning her separate estate, or upon a petition or applica- tion concerning the care, custody, education, and maintenance of minor children provided for by sections 31, 32, and 37 of said chapter, may appeal therefrom to the superior court in the manner provided in sections 10 and 11 of chapter 162 of the Revised Laws as to appeals to the supreme judicial court; and all proceedings on such appeals shall be the same, so far as practicable, as on appeals to the supreme judi- cial court. R L c. 162, § 18. ^ Peters v. Peters, 8 Cush. 529. In the opinion in this case the subject of the jurisdiction of the probate courts is examined at length by Shaw, C. J. See Browne v. Doolittle, 151 Mass. 600. GENERAL JURISDICTION. 7 and revisory power to re-examine and affirm or reverse all orders and decisions in probate, but as an appellate probate court.^ GENERAL STATUTE JURISDICTION. The jurisdiction of the probate courts is incidentally considered in the following chapters in connection with the various subjects of which they have cognizance. Their general jurisdiction is thus defined by the following sec- tions of chapter 162 of the Revised Laws: " Sect. 2. The prol)ate courts shall be courts of superior and general jurisdiction with reference to all cases and matters in which they have jurisdiction, and it shall not be necessary for any order, decree, sentence, warrant, writ, or process which may be made, issued, or pronounced by them to set out any adjudication or circumstances with greater particularity than would be required in other courts of superior and general jurisdiction, and the like presumption shall be made in favor of proceedings of the probate court as would be made in favor of proceedings of other courts of superior and general jurisdiction." ^ " Sect. 3. The probate court shall have jurisdiction of the probate of wills, of granting administration of the estates of persons who, at the time of their decease, were inhabitants of or resident in the county, and of persons who die out of the commonwealth leaving estate to be administered within the county ; of the appointment of ^ See note 5, p. 5. 2 It appears to have been assumed by the compilers of the Revised Laws that St. 1891, c. 415, § 4, which is embodied in R. L. c. 162, § 2, superseded P. S. c. 150, § 4. As to the effect of adjudication of pro- bate court as to residence of a person, see McFeely v. Scott, 128 Mass. 16; Derome v. Vose, 140 Mass. 575; Cummings v. Hodgdon, 147 Mass. 21 ; Dalliuger v. Richardson, 176 Mass. 77. 8 PROCEEDINGS IN THE PROBATE COURTS. guardians to minors and others ; of all matters relating to the estates of such deceased persons and wards; of petitions for the adoption of children, and for the change of names ; and of such other matters as have been or may be placed within their jurisdiction." ^ 1 P. S. c. 156, § 2. The probate court has jurisdiction also to commit insane persons and dipsomaniacs, R. L. c. 87, §§ 33, 59 ; to commit feeble-minded, li. L. c. 87, § 118; to appoint receivers for property of absentees whose whereabouts are unknown and who have wives or minor chil- dren dependent upon them, to make orders for the care, management, and sale of such property, and, if such absentee does not appear and claim the unexpended balance of such property within fourteen years after the date of his disappearance or absconding as found and re- corded by the court, to distribute the property as if the absentee had died intestate on the day fourteen years after said date, R. L. c. 144 ; to compel parents to support minor children under guardianship, R. L. c. 145, § 28 ; to determine all questions relative to the tax on collateral legacies and successions, R. L. c. 15, § 17; to administer French spoliation claims, St. 1902, c. 371 ; to authorize the marriage of minors, R. L. c. 151, § 20; to hear and determine petitions alleging that a person is without due process of law deprived of his liberty or held in custody against his will, but not applying to a person convicted of crime and serving sentence therefor, R. L. c. 191, §§ 48-53 ; to en- force specific performance (concurrently with the supreme judicial court and the superior court) of a written agreement for conveyance of real estate where the owner dies or is put under guardianship before making the conveyance, R. L. c. 148, § I ; to authorize sale of real es- tate held in trust under a will, when, under the provisions of the will, such sale is dependent on consent of a person who has deceased, R. L. c. 148, § 2 ; to appoint conservators of property of persons who are aged or mentally weak, R. L. c. 145, § 40; to appoint temporary guard- ians in certain cases, R. L. c. 145, § 20; and, except in the county of Suffolk, to commit juvenile offenders, R. L. c. 86, § 10. The probate court has also jurisdiction to appoint an administrator for the purpose of collecting and receiving assets which, like the French spoliation claims, will not be general assets of the estate of the intes- tate, or liable for his debts, but will belong to particular persons, and the probate court has also jurisdiction of the settlement of the accounts of such administrator. Sargent v. Sargent, 108 Mass. 420 ; Lamsou v. GENERAL JURISDICTION. 9 " Sect. 4. The probate court shall have exclusive original jurisdiction of petitions of married women relative to their separate estate, and of petitions or applications relative to the care, custody, education, and maintenance of minor children which is provided for by sections thirty-one, thirty -two, and thirty-seven of chapter one hundred and fifty-three " of the Revised Laws.^ " Sect. 5. The probate court shall have jurisdiction in equity, concurrent with the supreme judicial court and with the superior court, of all cases and matters relative to the administration of the estates of deceased persons, to wills or to trusts which are created by will or other written instrument. Such jurisdiction may be exercised upon petition according to the usual course of proceed- ings in the probate court." ^ Knowles, 170 Mass. 295. To remove the doubt suggested by the court in Sargent v. Sargent, 168 Mass. 420, 425, as to whether sureties on an administrator's bond in the ordinary form would be liable for the ad- ministrator's failure to distribute a French spoliation claim in accord- ance with the order of the probate court, St. 1902, c. 371, was enacted. The jurisdiction of the probate court to determine all questions relative to the tax on collateral legacies and successions does not take away the right of a legatee to sue at common law in the superior court for his legacy. Essex v. Brooks, 164 Mass. 79. For discussion of the law imposing tax on collateral legacies, etc., see chapter xxiv, post. 1 St. 1887, c. 332, § 2. 2 p. S. c. 141, § 27; St. 1891, c. 415, § 1; St. 1892, c. 116. Swasey v. Jaques, 144 Mass. 135. The supreme judicial court has no jurisdiction as a court of equity to compel a probate account- ing. Green v. Gaskill, 175 Mass. 265; Greene u. Brown, 180 Mass. 308. The probate court has jurisdiction of a petition by one of the next of kin of a testator for instructions as to the construction of a will. Healy v. Reed, 153 Mass. 197. In Abbott V. Gaskins, 181 Mass. (63 N. E. Reporter, 933, decided May 23, 1902), it was held that the probate court does not have power 10 PROCEEDINGS IN THE PROBATE COURTS. " Sect. 6. If a case is within the jurisdiction of the pi'obate courts in two or more counties, the court vvliich first takes cognizance thereof by the commencement of ])ruccedings therein shall retain jurisdiction thereof, and shall exclude the jurisdiction of the probate courts of all otiier counties ; and the administration or guardianship which is first granted shall extend to all the estate of the deceased or ward in the commonwealth." ^ " Sect. 7. All matters of trust of which probate courts have jurisdiction, except those arising under wills, shall be within the jurisdiction of the probate court of any county in which any of the parties interested in the trust reside, or in which any of the land held in trust is situated ; but such jurisdiction, when once assumed, shall exclude the probate court of any other county from taking juris- diction of any matter subsequently arising in relation to the same trust." ^ miscellaneous provisions relating to probate courts. [Revised Laws, Chap. 162, §§ 29-49.] " Sect. 22. The judges of the probate courts, or a ma- jority of them, shall from time to time make rules for to authorize the executors of a will to arbitrate or compromise contro- versies between persons claiming under the will and those claiming under the statutes regulating the descent and distribution of intestate estates. The power was claimed by the probate court under St. 1891, c. 415, § 1, now embodied in R. L. c. 162, § 5. It is given exclusively to the supreme judicial court by P. S. c. 142, § 14, now R. L. c. 148, § 15; but the proceedings and decrees of the probate courts prior to June 28, 1902, authorizing and confirming such compromises, and the probate of wills to be executed in accordance with such compromises, are confirmed by St. 1902, c. 538, as if such proceedings and decrees had been originally made and entered in the supreme judicial court. 1 P. S. c. 156, § 3. 2 P. S. c. 141, § 28. GENERAL JUllISDICTION. 11 regulating the practice and for conducting the business in their courts in all cases not expressly provided for In- law, and shall prescribe forms, and, as soon as con- venient after making or presenting them, shall submit a copy of their rules, forms, and course of proceedings to the supreme judicial court, may alter and amend them, and, from time to time, make such other rules and forms for regulating the proceedings in the probate courts as it considers necessary in order to secure regularity and uniformity." ^ " Sect. 30. The supreme judicial court and the probate court shall make rules requiring notice of any hearing, motion, or other proceeding before said courts to be given to parties interested or to the attorney who has entered an appearance for them." ^ " Sect. 31. Judges of the probate courts may transact business out of court at any time and place, if all parties who are entitled to notice assent thereto in writing or voluntarily appear ; and in such cases, their decrees shall be entered as of such sessions of the court as the con- venience of the parties may require." ^ Sect. 32. Orders of notice and other official acts which are passed as of course, and which do not require a previous notice to an adverse party, may be issued and performed at any time. " ^ 1 P. S. c. 156, § 22; St. 1893, c. 372, § 1. AVhen the rules require the last publication of a notice in probate proceedings to be two days at least before the return day, the probate court has no authority to order such publication to be one day at least before such day; and all proceedings based upon such a notice are invalid. Baker v. Blood, 128 Mass. 543. 2 St. 1890, c. 420, § 2. 3 P. S. c. 156, § 24. * Ibid. § 25. 12 PROCEEDINGS IN THE PROBATE COURTS. " Sect. 33. Probate courts shall have like power to en- force all orders, decrees, and sentences made by them in the exercise of any authority or jurisdiction which may be con- ferred upon them, and to puuish contempt of their authority, as the supreme judicial court has in like cases." ^ " Sect. 34. A warrant or commission for the appraisal of an estate, for examining the claims on insolvent estates, for the partition of land, or for the assignment of dower or curtesy or other interests in land, may be revoked by the court for sufficient cause, and a new commission may be issued or other appropriate proceedings taken." ^ " Sect. 35. Decrees and orders of the probate courts and of the judges tliereof shall be made in writing, and the reg- isters shall record in books which they shall keep for the purpose all such decrees and orders, all wills proved in the court, with the probate thereof, all letters testamentary and of administration, all warrants, returns, reports, accounts, and bonds, and all other acts and proceedings required to be recorded by the rules of the court or by the order of the judge." 2 " Sect. 36. Each register shall keep a docket of all cases 1 St. 1891, c. 415, § 2. 2 P. S. c. 156, § 26. The power of the probate courts to revoke their own decrees is not limited to the proceedings specified in the statute. They have always exercised the power for the correction of errors arising from fraud or mistake. For a full examination of the authorities on this subject, see Waters i'. Stickney, 12 Allen, 1. See also Richardson v. Hazle- ton, 101 Mass. 108; Pierce v. Prescott, 128 Mass. 145; Cleveland?;. Quilty, ibid. 578; Newell v. West, 149 Mass. 520; Harris v. Starkey, 176 Mass. 445 ; and cases cited. The revocation may be made on a petition for a review of the decree, after notice to all persons inter- ested. A decree may be revoked after the time allowed for an appeal from it has expired. Cleveland v. Quilty, supra. « P. S. 0. 156, § 27. • GENERAL JURISDICTION. 13 and matters in the probate court of his county, and shall enter therein every case or matter by its appropriate title and number, brief memoranda of all proceedings had and papers filed therein, the dates of such proceedings or filing of such papers, and references to the places in which the proceedings or papers are recorded, if there is a record thereof. He shall also keep a separate alphabetical in- dex of all such cases and matters, which shall refer both to said docket and to the files of the court. Such docket and index shall at all reasonable times be open to public inspection." ^ " Sect. 37. Oaths which may be required in proceedings in probate courts may be administered by the judge or reg- ister in or out of court or by a justice of the peace, and, when administered out of court, a certificate thereof shall be returned and filed or recorded with the proceedings; but the judge may require any such oath to be taken before him in open court." ^ " Sect. 38. If an executor, administrator, guardian, or trustee resigns his trust and neglects or refuses to deliver to his successor all the property held by him under his trust, the probate court may, upon the application of such successor of any person beneficially interested, order such delivery to be made, and shall have like powers for enforc- ing such order as are given to it by the provisions of section thirty-three." 3 " Sect. 39. A probate court may, upon application of a person interested in an estate in process of settlement in such court, direct the temporary investment of any money belonging to such estate in securities to be approved by the judge ; or it may authorize the money to be deposited in 1 P. S. c. 156, § 28. 2 Ibid. § 30. » jbid. § 31. 14 PROCEEDINGS IN THK PROBATE. COURTS. any bank or institution in this commonwealth which is empowered to receive sucli deposits, upon such interest as such bank or institution may agree to pay." ^ " Sect. 40. A duly authorized attorney-at-law may enter his appearance for the party represented by him in any proceeding in a probate court, and all processes and notices which may be served upon him shall have the same force and effect as if served upon the party whom he represents."^ " Sect. 41. In proceedings in probate courts, the peti- tioner or the respondent may, at any time after the filing of the petition, file interrogatories in the register's office for the discovery of facts and documents material to the support or defence of the proceeding. Such interroga- tories shall be answered under oath by the adverse party in the same manner and subject to the same restrictions and regulations as are provided by chapter one hundred and seventy-three relative to interrogatories in civil actions." ^ " Sect. 42. If a party neglects or refuses to expunge, amend, or answer according to the requisitions of said chapter one hundred and seventy-three, the petition shall be dismissed or its prayer granted, or such other order or decree entered as may be required."* " Sect. 43. Upon complaint to a probate court by a per- son interested in the estate of a person deceased against a person who is suspected of having fraudulently received, -concealed, embezzled, or conveyed away any property, real or personal, of the deceased, the court may cite such sus- pected person, although he is executor or administrator, to appear and be examined under oath upon the matter of 1 P. S. c. 1.56, § 32. 2 St. 1890, c. 420, § 1. 8 P. S. c. 156, § 33. * Ibid. § 34. GENERAL JURISDICTION. 15 the complaint. If the person so cited refuses to appear and submit to examination, or to answer such interroga- tories as may be lawfully propounded to him, the court may commit him to jail until he submits to the order of the court. The interrogatories and answers shall be in writing, signed by the party examined, and shall be filed in the com-t." ^ *' Sect. 44. In cases which are contested before a pro- bate court, or before the supreme court of probate, costs and expenses ^ in the discretion of the court may be awarded to either party, to be paid by the other party, or they may be awarded to cither or both parties to be paid out of the estate which is the subject of the contro- versy, as justice and equity may require.^ If costs are 1 P. S. c. 133, § 1. 2 Sfc 1884, c. 131. 8 General rule as to costs. Under the general rule, no costs are allowed in contested cases, in the probate court, or supreme court of probate. When the contest is made upon frivolous pretences, or for reasons which the appellant knew or ought to have known were un- founded, costs are allowed. But when the case presents questions of law upon which the parties may not unreasonably differ, and upon which either may properly claim the instructions of the court, no costs are allowed. Osgood v. Breed, 12 Mass. 536; Nickerson i\ Buck, 12 Cush. 335; Woodbury v. Obear, 7 Gray, 472; Waters v. Stickney, 12 Allen, 17; Chapiu u. Miner, 112 INIass. 271 ; and cases cited. Until the passage of St. of 1884, c. 131, counsel fees and other expenses were not allowed as costs, and taxable costs only were allowed. Brown V. Corey, 134 Mass. 249; Morrill v. Wiseman, ibid. 252 note; Willard V. Lavender, 147 Mass. 15 ; and cases cited. St. 1884, c. 131, amended P. S. c. 156, § 35, by inserting the words "and expenses" after the word " costs." The probate court has no power to allow costs after a final decree has been entered in the controversy in which the costs accrued. Lucas !;. Morse, 139 Mass. 59. By R. L. c. 137, § 13, special administrators by leave of the pro- bate court may pay from the personal estate in their hands the ex- 16 PROCEEDINGS IN THE PROBATE COURTS. awarded to be paid by one party to the other, execution may issue." " Sect. 45. The notice which may be required by law in any proceeding in a probate court may be dispensed with if all parties who are entitled thereto assent in writing to such proceedings or waive notice." ^ " Sect. 46. In appraisals of property, the judge or register may api)oint only one appraiser if in his opinion the nature of the {property makes it advisable so to do."^ " Sect. 47. Parties to probate proceedings may select the newspapers in which the notices which may be or- dered upon their petitions shall be published ; but the court may order the notice to be published in one other newspaper." ^ " Sect. 48. A paper or instrument, discharging a claim or purporting to acknowledge the performance of a duty or the payment of money for which an executor, adminis- trator, guardian, or trustee is chargeable or accountable penses of the last sickness and funeral of the deceased, the expenses incurred by the executor named in the will of the deceased person in proving the same in the probate court, or in sustaining proof thereof in the supreme court, and also, after notice, such debts due from the deceased as the probate court may approve. In suits brought by executors and trustees for instructions made necessary by some ambiguity or obscurity in a will, costs are allowed to be paid out of the estate. Abbott v. Bradstreet, 3 Allen, 587 ; Wilcox V. Wilcox, 13 Allen, 256 ; Bowditch v. Soltyk, 99 Mass. 136; Bartlett, Petitioner, 163 Mass. 509, 522. 1 P. S. c. 156, § 37. « St. 1897, c. 147. 3 St. 1885, c. 235, now embodied in R. L. c. 8, § 5, cl. 13, provided that " any daily or weekly periodical devoted exclusively to legal news, which has been published in the Commonwealth for six consecutive months, shall be deemed a newspaper for the insertion of legal notices required by law, if the publication of such notice in such periodical is ordered by the court." STATUTE PROVISIONS AS TO JUDGES OF PEOBATE. 17 in a probate court, shall, upon the request of a party interested, be recorded in the registry of said court ; and tlie i-egisters of probate in their respective countries shall enter, record, index, and certify any original paper or instrument offered as aforesaid, and shall receive for such services the like compensation as registers of deeds would be entitled to demand for like services. Such com- pensation shall be paid by the person who leaves such paper or instrument for record, at the time of leav- ing it." 1 " Sect. 49. The register of probate shall make without charge one certified copy of all wills proved, of inventories returned, of accounts settled, of partitions of land, of assign- ments of dower or curtesy, and of all orders and decrees of the court, and shall deliver such copies upon demand to the executor, administrator, guardian, widow, heir, or other party principally interested." ^ A copy of the inventory and appraisal of every estate, any part of which is subject to the tax on collateral legacies and successions, or if the estate can be conveniently separated, a copy of the inventory and appraisal of such part, shall, within thirty days after it has been filed, be sent by the register of probate, by mail, to the treasurer and receiver-general without charge therefor.^ JUDGES OF THE PEOBATE COURT. [Revised Laws, c. 164.] " Sect. 1. There shall be one judge of probate and in- solvency in each county except in the counties of Suffolk and Middlesex." " Sect. 2, There shall be two judges of probate and in- 1 P. S. c. 156, § 39. 2 Ibid. § 40. 8 R. L.c. 15, § 10. 2 18 PROCEEDINGS IN THE PROBATE COURTS. solvency for each of the counties of Suffolk and Middlesex. The senior judge shall be tlic first judge of probate and insolvency in each county, to whom, and to his successors, all bonds which are required by law to be given to the judge of the probate court or of the court of insolvency for said counties shall be made payable. The probate court and the court of insolvency for said counties may be held by one or both of the judges and, when so held, shall have and exercise all the powers and jurisdiction committed to the respective courts. The judges shall so arrange the performance of their duties as to insure a prompt and punctual discharge thereof. Simultaneous sessions of the courts in said counties may be held if the public convenience requires. Citations, orders of notice, and all other processes issued by the register of probate and insolvency for either of said counties shall bear teste of the first judge of said courts, respectively. A deposit or investment which is made in the name of the judge of the probate court or the court of insolvency for either of said counties shall be made in the name of the first judge of the court, and shall be subject to the order of the court." " Sect. B. A judge of probate and insolvency, before entering upon the performance of his official duties, in addition to the oaths prescribed by the constitution, shall take and subscribe an oath tliat he will faithfully discharge said duties and that he will not, during his continuance in office, directly or indirectly, be interested in, or benefited by, the fees or emoluments wliich may arise in any suit or matter pending in either of the courts of which he is judge. Such oath shall be filed in the registry of probate of the county for wdiich he is appointed." " Sect. 4. The judges may perform each other's duties when they find it necessary or convenient." STATUTE PROVISIONS AS TO JUDGES OF PROBATE. 19 " Sect. 5. If a judge of probate and insolvency is unable or fails from any cause to perform his duties or any part of them, or if, in his opinion, the court requires the assist- ance of another judge, or if there is a vacancy in the office of judge of probate and insolvency, his duties, or such of them as he may request, shall be performed in the same county by the judge of probate and insolvency of any other county who may be designated by the judge, or, in case of his failure so to designate, who may be designated by the register of probate and insolvency from time to time as may be necessary ; but, unless objection is made by an interested party before the decree is made, any case may be heard and determined out of said county in the per- formance of such duties by such other judge, who may send his decree to the registry of probate for the county in "which the case is pending. Two or more simultaneous sessions of the court may be held, the fact being so stated upon the record." ^ 1 P. S. c. 158, § 4; St. 1892, c. 337, § 1 ; St. 1894, c. 377, § 1 ; St. 1899, c. 345, § 1. Coffin V. Cottle, 9 Pick. 287. A judge of probate has no jurisdiction over a will containing a devise of more than one hundred dollars in value to a person of whose will he has been appointed executor. Bacon, Appellant, 7 Gray, 391. Where the judge was a debtor to the estate, though the debt was wholly secured by mortgage, it was held that he had no jurisdiction, and that the probate of the will before him was void. Gay v. ]\Iinot, 3 Cush. .352. A bequest of money to trustees, to be devoted to the use and benefit of indigent persons in certain towns, does not make a judge of probate who is an inhabitant of one of those towns interested in the probate^ of the will which contains the bequest. Northampton v. Smith, 11 Met. 390. Where the judge had a valid claim against the estate of a deceased person, but had determined in his own mind not to enforce his claim, and exercised jurisdiction over the estate by granting letters of admin- istration, it was held that he was nevertheless interested as a creditor 20 PROCEEDINGS IN THE PROBATE COURTS. " Sect. G. The register of probate and insolvency shall certify on his records and to the auditor of the common- wealth the number of days and the dates upon which, and the occasion for which, the duties of the judge of probate and insolvency are performed by such judge of another county under the provisions of the preceding section." " Sect. 7. The judge who performs any duty under the provisions of section five shall, except as provided in the following section,^ receive from the commonwealth, in addi- tion to tlie amount otherwise allowed to him by law, fifteen dollars for each day that he performs such duties. Such compensation, so far as it is for services rendered for any cause, except for such interest as prevented the perform- of the estate, and that the grant of administration was therefore void for want of jurisdiction, Sigourney v. Sibley, 21 Pick. 101 ; and such void administration is not rendered valid by the circumstance that exception was not taken to his jurisdiction ; ibid. The appointment of a special administrator on the estate in which the judge is interested is void. Sigourney v. Sibley, 22 Pick. 5U7. The fact that the judge had acted as the agent or attorney of a cred- itor, heir, or other person interested in an estate, although such action was illegal, does not make him interested so as to oust him of his jurisdiction. Cottle, Appellant, 5 Pick. 483. A judge cannot act in any matter in which a near relative or con- nection is one of the parties; and a brother-in-law or father-in-law is such a connection. But he is not disqualified by the remote and con- tingent interest of a relative who is not a party to the proceeding. Hallu. Thayer, 105 Mass. 219; Aldrich, Appellant, 110 Mass. 189. A judge who has written a will is disqualified to sit upon the pro- bate of it ; but, on appeal, it may be proved in the court above. Moses V. Julian, 4.5 N. H. 52. An adjudication by a judge, while absent from his county, upon a matter pending therein, is invalid, and the proceedings may be dis- missed upon a petition in equity to the supreme court. Lee v. AVells, 15 Gray, 459. But this has not been the law since the enactment of St. 1898, c. 131. See R. L. c. 164, § 9. 1 This is evidently an error, as the " following section " relates only to bonds. STATUTE PROVISIONS AS TO REGISTERS. 21 ance of his duties by the regular judge, shall, for any excess above three per cent of his salary, be deducted from the salary of the judge so assisted." ^ " Sect. 8. Bonds which are required to be given to the judge shall be given, in case of vacancy in the office of judge, to the acting judge, and to his successors in office, and all business shall be done in his name or in the name of the probate court or the court of insolvency for the county in which the case or matter is pending ; but bonds may be approved, and other acts, which are required to be done or certified by the judge, may be approved, done, or certified by the acting judge." ^ " Sect. 9. The judge of probate and insolvency may, in cases in which a decree, order, or allowance can be made without a hearing, and in all cases after a hearing, make such decree, order, or allowance, and approve bonds, at any place in the commonwealth, with the same effect as if so made and approved in their respective counties ; and if such judge, under the provisions of section five, acts in a county other than his own, such decrees, orders, or allow- ances may be signed, and bonds approved, outside of the county in which he niay have been designated to act. The provisions of this section shall not affect the validity of any decree, order, or allowance which was signed or bond which was approved prior to the third day of March in the year eighteen hundred and ninety-eight." ^ REGISTERS OP THE PROBATE COURT. "Sect. 10. Every register of probate and insolvency, before entering upon the performance of his official duties, 1 St. 1892, c. 337, § 3 ; St. 1894, c. 377, § 3 ; St. 1899, c. 345, § 3. a P. S. c. 158, § 5. 8 St, 1898, c. 131. 22 PROCEEDINGS IN THE PROBATE COURTS. in addition to the oaths prescribed by the constitution, shall take and subscribe an oath that he will faithfully discharge said duties, and that he will not, during his con- tinuance in office, directly or indirectly, be interested in, or benefited by, the fees or emoluments which may arise in any suit or matter pending in either of the courts of which he is register. Such oath shall be filed in the registry of probate of the county for which be is elected." ^ " Sect. 11. He shall give bond to the treasurer and receiver-general for the faithful performance of his official duties in a sum not less than one thousand nor more than ten thousand dollars, as may be ordered by the judge, with one or more sureties who shall be approved by him." 2 " Sect. 12. The register shall have the care and custody of all books, documents, and papers which appertain to the courts of which he is register, or which are deposited with the records of insolvency or filed in the registry of probate, and shall carefully preserve them and deliver them to his succes- sor. He may, with the approval of the county commission- ers and at the expense of the county, cause copies of the indexes, or new indexes, to the records which are in his custody, to be printed and to be sold at a price which shall be not less than the cost of paper, printing, and bind- ing. He shall perform such other duties which appertain to his office as may be required by law or prescribed by the judge." ^ " Sect. 13. He may at any time receive and place on file petitions and applications to the probate court or the court of insolvency, and may issue orders of notice and citations 1 P. S. c. 158, § 6. 2 Ibid. § 7. 8 Ibid. § 8 ; St. 1900, c. 180. STATUTE PROVISIONS AS TO REGISTERS. 23 in like manner and with like effect as if they were issued by the judge ; but if the judge considers that such notice is insufficient, he may order further notice." ^ " Sect. 14. He may issue process of attaclimeut and of execution, and all other processes and all warrants, letters and licenses which may be necessary to carry into effect any order or decree of the courts, and they may run into any county and shall be executed and obeyed throughout the commonwealth. He may appoint appraisers to make any inventory which may be required to be returned to said courts." 2 " Sect. 15. He shall furnish copies of records or other papers in his custody and shall collect therefor the fees provided by law."^ " Sect. 16. He shall, on the first Monday of January, April, July and October, in each year, account for and pay over to the treasurer and receiver-general all fees and compensation which have been received by him otherwise than by salary." * " Sect. 17. The judges for the counties of Bristol, Essex, Franklin, Hampden, Hampshire, Middlesex, Norfolk, Suf- folk, and Worcester may each appoint an assistant register of probate and insolvency for his county, who shall hold office for three years unless sooner removed by the judge. Such assistant register in Bristol, Hampden, and Hamp- shire may be a woman. Before entering upon the per- formance of his duties, an assistant register shall take the oaths prescribed by the constitution, and shall give bond to the treasurer and receiver-general for the faithful 1 P. S. c. 158, § 9. 2 Ibid. § 10 ; St. 1894, c. 199. 3 St. 1893, c. 409, § 2. * Ibid. § 3. 24 PKOCEEDINGS IN THE PROBATE COURTS, performance of his official duties, in a sum not less than five hundred nor more than five thousand dollars, as may be ordered by the judge, with one or more sureties who shall be approved by him." ^ " Sect. 18. The register of probate and insolvency for the county of Suffolk may, subject to the approval of the judges of probate and insolvency for said county, appoint a clerk, and may remove him at his pleasure." ^ " Sect. 19. The register shall forthwith report to the secretary of the commonwealth a vacancy in the office of assistant register, and the name, residence, and date of ap- pointment of the person who may have been appointed to fill such vacancy." ^ " Sect. 20. An assistant register shall perform his duties under the direction of the register, and shall pay over to him all fees and amounts received as such assistant. He may authenticate papers and perform such other duties as are not performed by the register. In case of the absence, neglect, removal, resignation, or death of the register, the assistant may complete and attest any rec- ords remaining unfinished and may act as register until a new register is qualified or until the disability is removed." ^ " Sect. 21. The judges shall semi-annually inspect the doings of the registers of their courts, and see that the records and files are made up seasonably and kept in good order ; and if the records are left incomplete for more than six consecutive months, such neglect, unless caused by 1 P. S. c. 158, § 11 ; St. 1893, c. 151, § 1 ; St. 1898, c. 234 ; St. 1899, c. 191, § 1; St. 1900, c. 144, § 1. 2 P. S. c. 158, § 12. « Ibid. § 13. * Ibid. § 14. STATUTE PROVISIONS AS TO REGISTERS, ETC, 25 illness or casualty shall be adjudged a forfeiture of the bond of the register." ^ " Sect. 22. In case of any neglect which causes a for- feiture of the bond of the register or assistant register, the judge shall forthwith give notice thereof in writing to the treasurer and receiver-general, who shall thereupon cause the bond to be put in suit; and the sum recovered in such suit shall be applied to the expense of mailing up the deficient records under the direction of the court in whoso records the deficiency happens, and the surplus, if any, shall be carried into the account of such treasurer." ^ " Sect. 23, The provisions of the two preceding sec- tions shall not exempt registers or assistant registers from an action for any other breach of their bond, or from other liability for neglect or misconduct in their office," 3 " Sect, 24. If upon the death, resignation, removal, or absence of the register, there is no assistant register, or if he also is absent, the judge shall appoint a temporary register, who shall act until a register is appointed, or elected and qualified, or until the disability is removed. Such temporary register shall be sworn before the judge, and a certificate thereof, with his appointment, shall be recorded with the proceedings of each court in which he acts."^ " Sect, 25. No judge, register, or assistant register of probate and insolvency, or any person who is employed in the registry of probate and insolvency in any county shall be interested in, or be benefited by, the fees or emoluments which may arise in any matter pending before the probate court or court of insolvency of such county ; 1 P. S. c. 158, § 15, 2 Ibid. § 16. » Ibid, § 17. * Ibid. §§ 19, 20. 26 PROCEEDINGS IN THE PKOBATE COURTS. nor shall he act as counsel or attorney, either in or out of court, in any matter pending before said courts or in an appeal therefrom ; nor shall he be appointed executor, administrator, guardian, commissioner, appraiser, or as- signee of or upon an estate within the jurisdiction of such courts ; nor shall he be interested in the fees or emoluments arising from any of said trusts ; and no judge shall be re- tained or employed as counsel or attorney, either in or out of court, in any suit or matter which may depend on or in any way relate to a sentence, decision, warrant, order, or decree made or passed by him ; nor for or against an executor, administrator, or guardian appointed within his jurisdiction, in any action or suit brought by or against the executor, administrator, or guardian as such ; nor in any action or suit relating to the official conduct of such party ; nor for or against a creditor, debtor, or assignee, in a cause or matter which arises out of or is connected with any proceedings before him ; nor in an appeal in such cause or matter." ^ " Sect. 26. If a judge or register of probate desires to be appointed guardian of his minor child, who is an inhabitant of or resides in the same county, such appointment may be made, and all subsequent proceedings in regard thereto had, in the probate court of the most ancient adjoining county." 2 SESSIONS OF THE COURTS. [Revised Laws, c. 162, §§ 5.5-59.] " Sect. 55. The judge of a probate court may keep order in court, and may punish any contempt of his authority." ^ " Sect. 56. The probate court in each county shall always 1 P. S. c. 158, § 21. 2 Ibid. § 22. 8 P. S. c. 156, § 45. STATUTE PROVISIONS AS TO COURT SESSIONS, ETC. 27 be open, except on the Lord's day and legal holidays, for all hearings, for matters in equity, for proceedings in con- tempt, and for making orders and decrees in all matters before them ; but the times of all hearings shall be discre- tionary with the judges of said courts." ^ " Sect. 57. The judge of a probate court may adjourn the court as occasion requires ; and if he is absent at the time appointed for holding a court, the register shall adjourn it as he may consider necessary, or as the judge may order. The register may also adjourn the court when there is a vacancy in the office of judge." " Sect. 58. If the regular time for holding a probate court occurs on a legal holiday, or on the day of an annual state election, the court shall be held on the next secular day thereafter; on which day all notices, citations, orders, and other papers made returnable at said regular time, shall be returnable. The proceedings thereon shall be of the same A'alidity as if the notices, citations, orders, and other papers had been made so returnable." ^ " Sect. 59. No court shall be held by adjournment or otherwise unless the register, assistant register, or a tem- porary register is present." ^ ATTORNEYS AND PRACTICE IN PROBATE COURTS. A duly authorized attorney-at-law may enter his appear- ance as attorney for the party represented by him in any proceeding in a probate court, and all processes and notices which may be served upon him shall have the same force and effect as if served upon the party whom he represents.^ 1 St. 1895, c. 215; St. 1901, c. 61. a St. 1884, c. 141. 8 P. S. c. 1-56, § 47. 4 R. L. c. 162, § 40 ; St. 1890, c. 420, § 1. 28 PROCEEDINGS IN THE PROBATE COURTS. The supreme judicial court and the probate courts shall make rules requiring notice of any hearing, motion, or other proceeding before said courts to be given to parties inter- ested or to the attorney who has entered an appearance for them.^ 1 R. L. c. 162, § 30 ; St. 1890, c. 420, § 2. CHAPTER II. PROBATE OF WILLS. The probate of a will is necessary to establish its due execution.! All questions as to the personal capacity of the testator, the signing of the will by him, and the attes- tation of the witnesses, must be determined by the probate court, or, on appeal, by the supreme court of probate. Such questions cannot be determined in the courts of common law,^ and the decree of the probate court allowing or disallowing a will is conclusive,^ unless appealed from; 1 A will disposing of lands may be admitted to probate at any time after tlie death of the testator. Haddock v. Boston & Maine R. R., 146 Mass. 155. 2 Dublin V. Chadbourn, 16 Mass. 433; Parker v. Parker, 11 Cush. 519 ; Boston v. Robbins, 126 Mass. 388. 3 Shores r. Hooper, 153 Mass. 228 ; Harris v. Starkey, 176 ]\Iass. 445. A decree allowing a will or adjudicating the intestacy of the estate of a deceased person in any court in this commonwealth having juris- diction thereof shall, after two years from the rendition of such de- cree, or, if proceedings for a reversal thereof are had, after two years from the establishment of such decree, be final and conclusive in favor of purchasers for value, in good faith, without notice of any ad- verse claim, of any property, real or personal, from devisees, legatees, heirs, executors, administrators, or guardians, and in favor of execu- tors, administrators, trustees, and guardians who have settled their ac- counts in due form, and have in good faith disposed of the assets of the estate in accordance with law; and also in favor of persons who have in good faith made payments to executors, administrators, trus- tees, or guardians. If a subsequent decree reverses or qualifies the decree so originally rendered, heirs, devisees, legatees, and distributees shall be liable to a subsequent executor, administrator, or other per- son found entitled thereto, for any proceeds or assets of the estate received by them under the former decree, and in such case proceeds 30 PKOCEEDINGS IN THE PROBATE COURTS. it cannot be examined collaterally in any other court, except on a question of jurisdiction. But until the will be admitted to probate, it is legally inoperative. Neither real nor personal estate will pass by it, for it cannot be used as evidence of title. ^ WHO MAY MAKE A WILL. Every person of full age and sound mind may, by his last will in writing, signed by him or by a person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses, dispose of his property, real and personal, except an estate tail, and except as provided in chapters one hundred and thirty-one, one hundred and thirty-two, and one hundred and thirty-five, and in section one of chapter one hundred and fifty- three of the Revised Laws. A married woman, in the same manner and with the same effect, may make a will.^ of real estate shall be treated as real estate. The pi-ovisioiis of this section shall not make an adjudication of the fact of death conclusive. R. L. c. 136, § 3; Gale v. Nickerson, Hi Mass. 415. ^ R. L. c. 135, § 7; Shumway v. Holbrook, 1 Pick. 114 ; Ilutchius V. State Bank, 12 Metcalf, 424 ; Loring v. Mass. Horticultural Society, 171 Mass. 401. 2 R. L. 0. 135, § 1. If a court having jurisdiction has entered a decree that a married woman has been deserted by her husband, or is living apart from him for justifiable cause, she may convey her real property in the same manner and with the same effect as if she were sole ; and the surviv- ing husband shall not be entitled under the provisions of section 16 of chapter 135 of the Revised Laws to waive the provisions of a will made by her. R. L. c. 153, § 36. A surviving husband, except as provided in R. L. c. 153, § 36, or the widow of a deceased person, at any time within one year after the probate of the will of such deceased, may file in the registry of probate a writing signed by him or her waiving any provisions that may have bp'^n made by the will for him or her, or claiming such portion of the estate of the deceased as he or she would have taken if the de- ceased had died intestate, and he or she shall thereupon take the same PROBATE OF WILLS. 31 Since the Revised Laws went into effect a married woman has the same rights as her husband in regard to making a will and is subject to the same restrictions. Husband and wife are put on the same basis as to curtesy and dower and as to inheritance. The power to dispose of property by will depends wholly on statute. Brettun v. Fox, 100 Mass. 234, 235. THE FACTS TO BE PROVED IN SUPPORT OF THE WILL. The party seeking the probate of the will must prove affirmatively, That the will was signed by the testator, or by some person in his presence and by his express direction ; That tlie will was attested and subscribed in the presence of the testator by three or more competent witnesses ; and That the testator, at the time wdien the will was exe- cuted, was of full age ^ and sound mind. All these facts must be proved. Proof of any one or more of them is not sufficient, unless all are established. Section I. AS TO the signing BY THE TESTATOR. The statute provides that no will shall be effectual to pass or charge, or in any way to affect any estate, real or portion of the property of the deceased as he or she would have taken if the deceased had died intestate. R. L. c. 135, § 16. Athertou v. Corliss, 101 Mass. 40; Pollock v. Learned, 102 Mass. 49; Shannon V. AVhite, 109 Mass. 146 ; Burke v. Colbert, 144 Mass. 160 ; Johnson v. Williams, 152 Mass. 415 ; Fiske r. Fiske, 173 Mass. 413. ^ Full age is reached on the dt the executor or administrator." R. L. c. 141, § 16. PAYMENT OF DEBTS BY EXECUTORS, ETC. 203 for only so much of the debt as cannot be recovered from those who are first chargeable therewith. ^ \V7ien Executors^ etc., may pay Debts without Personal Liability. — No executor or administrator can be held to answer to a suit of a creditor of the deceased, if com- menced within one year after he gives bond, unless it is on a demand that would not be affected by the in- solvency of the estate, or is brought after the estate has been represented insolvent for the purpose of ascer- taining a contested claim.^ And if, within the year after giving notice of his appointment, he does not have notice of demands against the estate which will authorize liim to represent it insolvent, he may proceed to pay the debts due, without any personal liability on that ac- count to any creditor who has not given notice of his claim. If he pays away the whole estate before notice of the demand of any other creditor, he is not required, in con- sequence of such notice, to represent the estate insolvent, but in an action against him he will be discharged upon proving such payments. If he pays away so much of the estate that the remainder is insufficient to pay a demand of which he afterwards has notice, he will be liable to pay on such demand only so much as may then remain. If there are two or more such demands, which together exceed the amount of assets remaining in his hands, he 1 R. L. c. 141, §§ 26-32 ; Bassett v. Granger, 136 Mass. 176 ; McKim V. Doane, 137 Mass. 195 ; Clark v. Holbrook, 146 Mass. 366 ; Forbes v. Harrington, 171 Mass. 386. 2 R. L. c. 141, § 1. This provision includes an executor who is also a residuary legatee, and has given bond to pay debts and legacies. 'J'he demands that " would not be affected by the insolvency of the estate " are such as are preferred by statute. National Bank of Troy V. Stanton, 116 Mass. 439 ; Studley v. Willis, 134 Mass. 155. 204 PROCEEDINGS IN THE TEOBATE COURTS. may represent the estate insolvent ; but creditors who have been previously paid are not liable to refund any part of the amount received by them.^ If it appears, upon the settlement of the account of an executor or administrator in the probate court, that the whole estate and efiects which have come to his hands have been exhausted in paying the charges of administra- tion and debts or claims entitled by law to a preference over the common creditors of the deceased, such settle- ment shall be a sufficient bar to any action brought against such executor or administrator by a creditor who is not 1 R. L. c. 141, §§ 1-4 ; Converse o. Johnson, 146 Mass. 22 ; Browne v. Uoolittle, 151 Mass. 595. As to the payment of debts when the estate is insolvent, see chap. xiii. More than two years after the notice of his appointment, and after the estate had been represented insolvent, the administrator found a bond executed to the intestate for the conveyance of land to him on payment of a certain sum. A creditor who had not presented or proved his claim, and who had offered the administrator indemnity against costs, was held to have a right to a judicial determination whether an equity of re- demption existed which was new assets. Glines v. Weeks, 137 Mass. 547. Taxes on collateral legacies and successions shall be paid to the treasurer of the commonwealth by the executors, administrators, or trustees at the expiration of two years after the date of their giving bond; but whenever legacies or distributive shares shall be payable within two years, the taxes shall be payable at the time such legacies or shares are paid. But when the probate court has ordered funds to be retained to satisfy a claim of a creditor whose right of action does not accrue within two years, the payment of the tax may be suspended by an order of the court to await the disposition of the claim. The taxes and interest that may accrue shall be a lien on the property until paid. R. L. c. 15, § 4. Whenever the legatee or devisee who has paid any such tax, afterwards refunds any portion of the property on which it was paid, or it is judicially determined that the whole or any part of the tax ought not to have been paid, said tax or the due proportional part of it shall be paid back to him by the executor or trustee. R. L. c. 15, § 15. SURVIVAL OF ACTIONS, SET-OFF, ETC. 205 entitled to such preference, although the estate has not been represented insolvent.^ All actions which would have survived if commenced by or against the original party in his lifetime may be commenced and prosecuted by and against his executors and administrators. When an action of tort is commenced or prosecuted against the executor or administrator of the person origi- nally liable, the plaintiff shall be entitled to recover only for the value of the goods taken, or for the damage actually sustained, without any vindictive or exemplary damages, or damages for any alleged outrage to the feelings of the injured party.^ In an action by or against an executor, administrator, or other person in a representative capacity, the defendant may set off a claim due to or from the testator, intestate, or person represented, respectively ; but he shall not set off a claim due in his own right to or from the executor, admin- istrator, or other person who sues or defends in a represen- tative capacity, nor a claim which did not belong to him at the death of the testator or intestate. Wlien, upon such a set-off against an executor or admin- istrator, a balance is found due to the defendant, the judg- ment therefor against the plaintiff shall be in the same ^ R. L. c. 141, § 5. The settlement in the probate court of an administrator's account, showing that he has exhausted all the estate of his intestate in paying the expenses of the last sickness, funeral, and administratiou, is a good defence to an action brought against the administrator on his bond, although the administrator has suffered a judgment to be recovered against him before such settlement of his account. Fuller v. Connelly, 142 Mass. 227. But such defence is not available unless the administrator has filed an inventory and settled his account in the probate court. McKim v. Haley, 173 Mass. 112. 2 R. L. c. 172, §§ 1, 2; Wilkins i'. Wainwright, 173 Mass. 212. 206 PROCEEDINGS IN THE PKOBATE COURTS. form and have the same effect as if the suit had been originallj commenced by the defendant.^ Police, district, and municipal courts may issue writs of scire facias against executors and administrators upon a suggestion of waste, after a judgment against them.^ PAYMENT OF LEGACIES. The probate court has no jurisdiction of the questions to whom, or at what time, a legacy is to be paid. The exec- utor pays the legacies under the authority given him by the will of the deceased.^ The rule adopted by the courts, borrowed from the civil law, requires legacies to be paid, when the will prescribes no time for their payment, after the expiration of one year from the testator's death, it being presumed that the executor will be able to inform himself during the year of the sufficiency or insufficiency of the estate to meet the demands upon it ; and the legatee may bring an action to recover his legacy after the expira- ^ R. L. c. 174, §§ 6, 7. If the defendant prevails, he naay have an execution for costs against the executor de bonis propriis, although the estate of the plaintiff's testator has been represented insolvent. Per- kins V. Fellows, 136 Mass. 294. See Gannon v. Ruffin, 151 Mass. 206; Boyden v. Mass. Life Insurance Co., 153 Mass. 544. 2 R. L. c. 160, § 21. 8 When the legatee is a minor and has no guardian, or whenever the residence of a person named as a legatee is unknown, the court may direct that his legacy be deposited in some savings bank or other like institution, or invested in bank stock or other stocks. R. L. c. 150, § 24. If the amount of a legacy has been deposited in a savings bank by order of the Court, on the representation that the residence of the legatee is unknown, and it afterwards appears that the legatee died before the testator and that his issue are entitled to it under the pro- visions of P. S. c. 127, § 23 (now R. L. c. 135, § 21), the probate court should order the amount to be paid to such issue. Stockbridge, Peti- tioner, 145 Mass. 517. PAYMENT OF LEGACIES. 207 tion of the year.^ But if the executor or administrator within two years after having given bond for the discharge of his trust, is required by a legatee or next of kin to make payment, in whole or in part, of a legacy or distributive share, the probate court may require that such legatee or distributee shall first give bond to the executor or adminis- trator, with surety or sureties to be approved by the court, and conditioned to repay the amount so to be paid, or so much thereof as may be necessary to satisfy any demands that may be afterwards recovered against the estate of the deceased, and to indemnify the executor or admin- istrator against all loss or damage on account of such payment. ^ A debt due to the estate of the deceased by a legatee or distributee of such estate is to be set off against and deducted from the legacy to such legatee or from the distributive share of such distributee. ^ The probate court 1 Brooks V. Lynde, 7 Allen, 64. A legatee of a fractional part of the residue of an estate in process of being administered in the probate court under a will, cannot in a suit at law recover of the administrator of the estate of the deceased executor under the will, the amount of the legacy before the amount of the residuum has been ascertained. Tallon V. Tallon, 150 Mass. 31.'5. 2 R. L. c. 141, § 20; Browne v. Doolittle, 151 Mass. 598. The probate court, pending a petition by a party interested, for instruc- tions as to the construction of a will, may restrain the paying' of lega- cies until the determination of the questions involved. Healy v. Reed, 153 Mass. 197. 8 R. L. c. 141, § 23. Gannon v. Ruffin, 151 Mass. 204. See Taylor, V. Taylor, 145 Mass. 239. An agreement by an heir with an adminis- trator that notes held by the latter may be deducted from the distribu- tive share before the final settlement of the estate, will not amount to payment of the notes. Taylor v. Lewis, 146 Mass 222. A gift by a parent to a child is not to be applied in satisfaction of a legacy to the child given by a will subsequently executed by tlie parent, in the ab- sence of any understanding by the child that it should be so applied. 20S PROCEEDINGS IN THE PROBATE COURTS. hears and determines as to the validity and amount of any such debt, and may make all decrees and orders wliich may be necessary or proper to carry into effect such set-off or deduction.^ Jaques V. Swasey, 153 Mass. 596. Administrators or executors cannot set off against or deduct from a devise or inherited share of real estate a debt due to tlie estate. Jones v. Treadwell, 109 Mass. 430. 1 R. L. c. 141, § 23. Bhickler v. Boott, 114 Mass. 24 ; Boyden v. Mass. Life Insurance Co., 153 Mass. 544. A debt due from a legatee which is barred by the statute of limitations at the time of the testa- tor's death, cannot be deducted from the legacy, unless the will clearly shows such an intention. Allen v. Edwards, 136 Mass. 138. An executor, administrator, or trustee holding property subject to the tax on collateral legacies and successions, shall deduct the tax or shall collect it from the legatee or person entitled to said propei'ty, and he shall not deliver property or a specific legacy subject to the tax to any person until he has collected the tax thereon. An executor or ad- ministrator shall collect taxes due upon land which is subject to said tax from the heirs or devisees entitled thereto and he may be author- ized to sell said land if they refuse or neglect to pay said tax. When a legacy subject to the tax is charged upon or payable out of real estate, the heir or devisee, before paying it, shall deduct the tax therefrom and pay it to the executor, administrator, or trustee, and the tax shall remain a charge upon the real estate until it is paid; and the payment of it may be enforced by the executor, administrator, or trustee in the same manner as the payment of the legacy itself could be enforced. If any such legacy is given in money to any person for a limited period, the administrator, executor, or trustee shall retain the tax on the whole amount ; but if it is, not in money, he shall make applicar tion to the court having jurisdiction of his accounts to render an ap- portionment, if the case requires it, of the sum to be paid into his hands by the legatee on account of the tax, and for such further orders as the case may require. R. L. c. 15, §§ 5, 6, 7. When any person bequeaths or devises any property to father, mother, husband, wife, lineal descendant, brother, sister, an adopted child, the lineal descendant of any adopted child, the wife or widow of a son, or the husband of a daughter, during life or for a term of years, and the remainder to a collateral heir or to a stranger to the blood, the value of the prior estate shall, within three months after INTEREST ON LEGACIES. 209 Interest on Legacies. — Interest is generally allowed to legatees after the expiration of one year from the death of the testator, and the rule applies when the will "directs the legacy to be paid " as soon as possible," or " next after my lawful debts." ^ If the legacy is payable by the terms of the will at a specified time, it carries interest from that time.2 If an annuity, or the use, rent, income, or interest of property, real or personal, is given by will, deed, or other instrument to or in trust for the benefit of a person for life or until the happening of a contingency, such person shall be entitled to receive and enjoy the same from and after the death of the testator, unless it is otherwise provided in such will or instrument ;^ and if the income is not paid at the expiration of the year, to interest thereon from that time.* A person entitled to such annuity, rent, interest, or income, or his representative, shall have the same appor- tioned if his right or interest therein terminates between the days upon which it is payable, unless otherwise provided in such will or instrument ; but no action shall be brought the date of giving bond by the executor, administrator, or trustee, be appraised and deducted from the appraised value of such property, and the remainder shall be subject to a tax of five per centum of its value. Ibid. § 2. 1 Kent V. Dunham, 106 Mass. 586; Webster v. Hale, 8 Ves. 410; Ogden V. Pattee, 149 Mass. 82; Welch v. Adams, 152 Mass. 74. 2 The legatee is entitled to interest although the administrator had not, at the time the legacy was payable, assets available for the pay- ment of debts and charges of administration of the estate. Kent v. Dunham, 106 Mass. 586. 3 R. L. c. 141, § 24 ; Pollock v. Learned, 102 Mass. 49 ; Sargent v. Sargent, 103 Mass. 297 ; Billings v. Billings, 110 Mass. 225; Gushing V. Burrell, 137 Mass. 25; Keith v. Copeland, 138 Mass. 304 ; Adams V. Adams, 139 Mass. 452. * Ayer v. Ayer, 128 Mass 575. 14 210 PROCEEDINGS IN THE PROBATE COURTS. therefor until the expiration of the period for which the apportionment is made. ^ When it is the duty of the executor, under the directions of the will, to invest and hold the amount of a legacy for a prescribed time, or until the happening of a contingent event, and he neglects to do so, the legatee may be entitled to compound interest. ^ A specific legacy carries with it all income or accessions that may accrue thereon after the death of the testator. 1 R. L. c. 141, § 25. Holmes v. Taber, 9 Allen, 246; Granger v. Bassett, 98 Mass. 462 ; Sargent v. Sargent, 103 Mass. 297 ; Haraden V. Larrabee, 113 Mass. 430; White v. Stanfield, 146 Mass. 424; Hem- euway v. Hemenway, 171 Mass. 42. The words " annuity, rent, interest, or income " do not include undeclared dividends of corporations. Adams v. Adams, 139 Mass. 452. 2 Miller V. Congdon, 14 Gray, 114; Eliott v. Sparrell, 114 Mass. 404 ; Kent v. Dunham, 106 Mass. 586; Welch v. Adams, 152 Mass. 86. CHAPTER XIII. INSOLVENT ESTATES OF DECEASED PEKSONS. When the estate of a person deceased is insufficient to pay all his debts, it shall, after discharging the necessary expenses of his funeral and last sickness, and the charges of administration, be applied to the payment of his debts, which shall include equitable liabilities, in the following order : — " First, Debts entitled to a preference under the laws of the United States ; " Second, Public rates, taxes, and excise duties ; " Third, Wages or compensation, to an amount not exceeding one hundred dollars, due to a clerk, servant, or operative for labor performed within one year next preced- ing the death of such deceased person, or for such labor so performed for the recovery of payment for which a judg- ment has been rendered ; " Fourth, Debts due to all other persons. " If there is not enough to pay all the debts of any class, the creditors of that class shall be paid ratably upon their respective debts ; and no payment shall be made to cred- itors of any class until all those of the preceding class or classes, of whose claims the executor or administrator has notice, have been fully paid." ^ 1 R. L. c. 142, § I ; Sweeney v. Muldoon, 139 Mass. 307. A husband, having paid the funeral expenses of his wife, who has left property, may recover them of her executor. Constantides v. Walsh, 146 Mass. 281 ; Morrissey v. Mulhern, 168 Mass. 412. 212 PROCEEDINGS IN THE PROBATE COUKTS. THE REPRESENTATION OF INSOLYENCY. If the estate is insolvent it is the duty of the executor or administrator to represent the fact to the probate court. His neglect to do so may make him personally liable to creditors of the deceased. He is allowed ample time to satisfy himself as to the condition of the estate. He is not held liable to answer to the suit of any creditor com- menced within one year after he gives bond for the faith- ful discharge of his trust, unless the demand is one that would not be affected by the insolvency of the estate, or is brought after the estate has been represented insolvent for the purpose of ascertaining a contested claim.^ If within one year after giving notice of his appointment he does not have notice of demands which will authorize him to represent the estate insolvent, he may proceed to pay the debts due from the estate ; and he will not be personally liable to any creditor in consequence of payments made before notice of his demand. If he so pays away the whole of the estate before notice of the demand of any other creditor, he is not required in consequence of such notice to represent the estate insolvent, but may plead that he has fully administered, and be discharged on proving such payments. ^ Or if any effects remain, and 1 R. L. c. 141, § 1 ; Greenleaf v. Allen, 127 Mass. 248 ; Converse v. Johnson, 14G Mass. 22; Browne v. Doolittle, 151 Mass. 595. But he is accountable for money paid on debts within the year, though without the knowledge that the estate was insolvent. Cobb v. Muzzey, 13 Gray, 57. In case the estate has Feen represented insolvent, the whole amount of the judgment against the administrator, including costs as well as debts, is to be certified to the judge of probate, and added to the list of claims reported by the commissioners of insolvency. Healy V. Root, 11 Rick. 389. 2 R. L. c. 141, §§ 2, 3 ; Gushing v. Field, 9 Met. 180; Fuller v. Con- nelly, 142 Mass. 228 ; Browne v. Doolittle, supra. It is no bar to aa INSOLVENT ESTATES OF DECEASED PERSONS. 213 such remainder is insufficient to satisfy a demand of which he afterwards has notice, he is liable to pay only so much as may then remain ; if there are two or more such demands, ' which together exceed the amount of assets remaining, he may then represent the estate insolvent, and pay over the amount in his hands to such persons as the court shall order ; but creditors who have been pre- viously paid cannot be required to refund any part of the amount received by them.^ action against an administrator, on a debt of his intestate, that he gave due notice of his appointment, and had no notice within a year thereafter of demands against the estate which would authorize him to represent it insolvent, and applied in payment of the debts of the deceased all the personal and a sufficient portion of the real estate to pay the debts then ascertained; and that the heirs at the same time sold all the residue of the real estate; and the administrator rendered his final account, which was allowed. The statute applies only when the whole of the estate has been exhausted. Hildreth v. Marshall, 7 Gray, 167 ; Bassett v. Granger, 136 Mass. 174. 1 R. L. c. 141, § 4; Colegrove v. Robinson, 11 Met. 238 ; Heard v. Drake, 4 Gray, 510. This provision of the statute applies to payments made after the expiration of the year. If the executor, within a year after giving notice of his appointment, pays a debt of his intestate, he may, if the estate afterwards proves insolvent, recover of the creditor the excess of the sum so paid over the amount awarded to the cred- itor by commissioners of insolvency. Walker r. Hill, 17 Mass. 380; Bliss i;. Lee, 17 Pick. 83; Heard v. Drake, 4 Gray, 514; Richards v. Nightingale, 9 Allen, 149. The administrator cannot recover unless he proves the insolvency of the estate by a commission of insolvency regularly issued, executed, and returned, and a dividend declared by the court. Bascom v. Butterfield, 1 Met. 530; Flint r. Valpey, 130 Mass. 385. The general statute of limitations will begin to run against the claim of the administrator from the date when the divi- dend is ordered. Richards v. Nightingale, 9 Allen, 149. A decree of the probate court allowing distribution of all the personal estate of a deceased person before the end of the two years of administration, is void as to creditors prosecuting their claims within that period, whether they have notice of it or not; and the administrator has no defence to actions by such creditors. Browne v. Doolittle, 151 Mass. 595; Newell V. Peaslee, 151 Mass. 601. 214 PROCEEDINGS IN THE PROBATE COURTS. The executor or administrator is not to wait until the claims of creditors are proved at law before he makes his representation of insolvency. He may believe tliat there is a good defence against a claim that is presented to him ; but if its recovery would cause insolvency, he should repre- sent the estate insolvent. If he suffers judgment to be recovered against him before he represents the estate insolvent, he must pay the full amount of the judgment, without regard to tlie amount of assets in his hands. ^ And if, on demand made upon him to pay such judgment, or to show property of the deceased to be taken in execu- tion, he neglects or refuses so to do, he and his sureties are liable on his administration bond to a suit by the judgment creditor, although the estate is in fact insolvent. Having had full opportunity to ascertain the condition of the estate, and having allowed the claim to be prosecuted to final judgment without interfering by a representation of insolvency, the law will presume that he has the' means in his hands to satisfy it. ^ If it appears, upon the settlement of the account of an executor or administrator in the probate court, that the whole estate and effects which have come to his hands have been exhausted in paying the charges of administra- tion and debts or claims entitled by law to a preference over the common creditors of the deceased, such settle- ment shall be a bar to an action brought against him by a creditor who is not entitled to such preference, although 1 To a scire facias against an administrator to have execution of a former judcrment recovered against him in that capacity, he may plead the insolvency of the estate of his intestate, as established since the recovery. Coleman v. Hall, 12 Mass. 570 ; Fuller v. Connelly, 142 Mass. 227. 2 Newcomb v. Gos3, 1 Met. 333. But see Fuller v. Connelly, 142 Mass. 230. INSOLVENT ESTATES OF DECEASED PERSONS. 215 tlie estate has not been represented insolvent. ^ But the executor or administrator who undertakes to pay the pre- ferred claims without first making a representation of insolvency, must pay them strictly in the order prescribed by statute. Tiie assets may not be sufficient to pay all the preferred debts, and in such case the several classes of creditors must be paid in their order. Taxes, for instance, cannot be paid until the two anterior classes of creditors have been fully satisfied ; and if the assets are not suffi- cient to pay all the debts of any one class, the creditors of that class must be paid ratably. An executor who is residuary legatee, and who has given bond to pay the debts and legacies, cannot represent the estate insol- vent, — the bond is a conclusive admission of sufficient assets.2 The representation of insolvency must be addressed to the probate court in the county in which the executor or administrator was appointed, and should set forth the amount of the indebtedness of the estate, so far as it can be ascertained (including the funeral expenses, charges of administration, and the allowance, if any, made to the widow or minor children), and the amount of the assets in the hands of the executor or administrator. There should also be filed a list of the claims against the estate, show- ing the name of each creditor and the sum claimed by each. If the evidence of the fact of insolvency is satis- factory, the court may appoint two or more fit persons to be commissioners to receive and examine the claims 1 R. L. c. 141, § 5; Glines v. Weeks, 137 Mass. 551; Fuller v. Connelly, 142 Mass. 228; Eddy u. Adams, 145 Mass. 490; Browne V. Doolittle, 151 Mass. 597. "^ Alger i;. Colwell, 2 Gray, 404; Jones v. Richardson, 5 Met. 247. 216 PROCEEDINGS IN THE PROBATE COURTS. of creditors, or may itself receive and examine the claims.^ TIME ALLOWED FOR PROOF OF CLAIMS. If commissioners are appointed, six months after their appointment are allowed for the creditors to present and prove their claims. If the claims are examined by the court, six months after the order of the court directing the executor to give notice to creditors of the times and places of the examination are allowed. The court may in all cases, if it appears that a just and equitable distribu- tion of the estate requires it, allow such further time, not exceeding eighteen months from the original appointment or order, as it may deem proper.^ Such further time may be applied for by any creditor who has failed, after using due diligence, to present his claim for proof ; ^ and the commission may be reopened for the purpose of correcting a mistake of the commissioners,* or for 1 R. L. c. 142, §§ 2, 4; Curley v. Squire, 141 Mass. 509, 511; Newell V. West, 149 Mass. 528. Where a judge of probate had rejected a representation of insolvency made by an administrator, and upon a second application, which the administrator offered to support by legal evidence, again refused to receive it, giving his former decision as a reason for the second denial, and an appeal was taken, he was directed to receive the evidence, and thereupon to decree according to law and the justice of the case. Bucknam v. Phelps, 6 Mass. 448. No appeal lies from a decree of the probate court appointing such commissioners. Putney v. Fletcher, 140 Mass. 596. The commissioners, or, in case the court examines the claims, the executor or administrator, must notify the creditors of the times ■when and the places where their claims will be examined. R. L. c. 142, §§ 3, 5. 2 R. L. c. 142, § 9 ; Guptill v. Ayer, 149 Mass. 50. " Walker v. Lyman's Administrators, 6 Pick. 458 ; Towle v. Ban- nister, 16 Pick. 255. * Towle r. Bannister. 16 Pick. 254; Franklin County Bank v. Greenfield Bank, 138 Mass. 522. INSOLVENT ESTATES OF DECEASED PERSONS. 217 other good cause. The application sliould fully set forth the facts of the case. The commission may be re- opened at any time within the eighteen months, although the return of the commissioners may have been made to the probate court ; and the party applying for such exten- sion may appeal from a decree of the court denying the prayer of his petition. And in case of an appeal from the disallowance, in whole or in part, or from the allowance of a claim, further time may be allowed, not extending more than one month beyond the final decision of the appeal. ^ And if a commissioner dies, resigns, or unreasonably neg- lects to make the return required by law, or is removed, a new commissioner may be appointed in his stead, and in such case the time for making proof of claims is extended six months from the appointment of the new commissioner. ^ Such extensions of time, however, do not relieve a cred- itor from the obligation to commence the prosecution of his claim, either at law or before commissioners, within two years from the time when bond was given by the adminis- trator. If proceedings are not commenced within that time, his claim will be barred, unless it can be proved as a con- tingent claim, or unless new assets come to the hands of the administrator after the decree of distribution, in which case his claim may be allowed and paid in the manner pro- vided for contingent claims.^ And even if there are new 1 R. L. c. 142, § 9. 2 Ibid. 8 The question whether further assets have come into the hands of an executor or administrator, so as to entitle a creditor to have the commission of insolvency opened, is not open to inquiry on an appeal from the decision of the commissioners allowing or disallowing the claim of a creditor. Ostrom v. Curtis, 1 Cush. 461. More than two years after his appointment, and after the estate had been represented insolvent, the administrator first discovered the exist- ence of a bond executed to the intestate, by the terms of which the 218 TROCEEDINGS IN THE PEOBATE COURTS. assets, his claim will not be taken out of the statute of limi- tation for general purposes, but only in respect to the new assets. ^ The commissioners cannot allow claims after the expira- tion of the time limited by statute or fixed by the court. ^ PROOF OF CLAIMS. The warrant issued to the commissioners contains in- structions for their formal proceedings. They must first be sworn to faithfully discharge the duties of their office. The oath may be administered by any justice of the peace, and a certificate thereof should be made by him on the warrant, to be returned with their report. They are re- quired to appoint convenient times and places for their meetings to receive and examine claims, and to give at least seven days' written notice of the time and place of each meeting, by mail or otherwise, to all known creditors of the deceased, and such other notice, by publishing in some news- paper or otherwise, as the court may order. ^ The execu- tor or administrator is required to furnish them, fourteen days at least before their first meeting, the names and resi- dences of all known creditors. The commissioners hold as obligor was to reconvey land to the intestate on payment of a certain sum. It was held, that the creditor had a right to tlie judicial deter- mination of the question whether an equity of redemption existed which would be new assets. Glines v. Weeks, 137 Mass. 547. 1 Aiken v. Morse, 104 Mass. 277 ; Tarbell v. Parker, 106 Mass. 347 ; Glines v. Weeks, 137 Mass. 547. But leaving claims with the register of probate, and his indorsement thereon that they were presented for allowance within two years from the filing of the administrator's bond, is equivalent to bringing suit, and avoids the bar of the special statute of limitations. Robinson v. Robinson, 173 Mass. 233. 8 Bascom v. Butterfield, 1 Met. 536. « R. L. c. 142, § 3. INSOLVENT ESTATES OF DECEASED PERSONS. 219 many meetings, within the six months, as are necessary for the complete discharge of the trust committed to them. The commissioners or the court may require any claimant to make true answers, under oath, to all questions relating to his claim ; and if he refuses to take such oath, or to answer fully all questions, they may disallow his claim. Either of the commissioners may administer such oath to the claimants and witnesses. The probate court may, except while an appeal is pending in the superior court or in the supreme judicial court from the allowance or the disallowance of a claim, upon the application of the execu- tor or administrator, examine upon oath any person whose claim has been allowed, unless such allowance has been made by the supreme judicial court or by the superior court on appeal, may summon any person to give evidence rela- tive to such claim, and, upon notice, alter or expunge a claim which it finds is founded wholly or partially in fraud, illegality, or mistake. ^ The commissioners are to liquidate and balance all mutual demands subsisting between the deceased insolvent and his creditors. If the balance is found in favor of the creditor, it should be allowed by the commissioners, and included in their report ; but if the balance is found to be against the creditor, it is not a subject of their report, which is to include claims against the estate only. ^ 1 R. L. c 142, §§ 7, 8. 2 When the defendant in a suit brought by the administrator of an insolvent estate files in set-off a claim larger than that on which he is sued, he is entitled to judgment for the balance, and need not present his claim to the commissioners. The judgment is to be presented to the judge of probate, and by him added to the claims allowed by the commissioners. Bigelow v. Folger, 2 Met. 255. In such suit the defendant may set off a note which falls due pending the suit, though not due when the action was commenced. Ibid. ; Boy den v. Mass. Life Insurance Co., 153 Mass. 548. 220 PROCEEDINGS IN THE PROBATE COURTS. Copartnership debts for which the deceased was liable may be proved against his estate. ^ A claim payable absolutely may be proved before its maturity ,2 and contingent liabilities which become absolute debts at any time before being presented to the commis- sioners may be allowed. ^ ^ A stipulation in partnership articles that in case of the decease of either partner the business may be carried on for one year by the survivor for the mutual benefit of both parties, does not, in case of the death of one partner, justify the allowance against his insolvent estate of a debt contracted by the survivor within the year, with one who had notice of the death. Stanwood v. Owen, 14 Gray, 195; Bacon v. Ponieroy, 104 Mass. 585. Payments made by the surviving partner while carrying on the partnership business pursuant to such stipula- tion, upon an account, some items of which were contracted before, and some after, the death of the other partner, must be applied to the discharge of the first items. Ibid. A surviving partner may prove a claim against the estate of his deceased partner. Sparhawk v. Russell, 10 Met. 307. 2 Haverhill Loan and Fund Association v. Cronin, 4 Allen, 141. 8 A lessor is entitled to prove his claim for rent becoming payable by the terms of the lease before or after the death of the lessee, up to the time the claim is presented to the commissioners, but not for rent payable in the future. Deane v. Caldwell, 127 Mass. 242 ; Bowditch v. Raymond, 146 Mass. 114. And see Wilby v. Phinney, 15 Mass. 116 ; Harding v. Smith, 11 Pick. 478; Savage v. Winchester, 15 Gray, 453. One having a right of action against the representative of a deceased sheriff whose estate is represented insolvent, for the misfeasance of the sheriff, must prosecute his claim before the commissioners and obtain a decree of the judge of probate in his favor in order to entitle him to a remedy on the bond given by the sheriff for the faithful performance of his duties ; and he cannot maintain an action at law, except in the cases provided by the law respecting insolvent estates. Todd v. Brad- ford, 17 Mass. 567. An administrator de bonis non with the will annexed may prove before the commissioners of an insolvent estate of an intestate a claim for the amount received by the intestate as executor from the sale of real estate belonging to the estate of the testator and not accounted for. ]\Iinot i'. Norcross, 143 Mass. 326. A ward after coming of age is not entitled to prove against the INSOLVENT ESTATES OF DECEASED PERSONS. 221 When judgment is rendered against an estate which has been represented insolvent, and a certified copy from the probate court is filed in the clerk's office, execution will not be issued on the judgment, and it may be presented for allowance in the same manner as other claims of creditors.^ A creditor whose claim is secured, or partly secured, by mortgage or otherwise, cannot prove his full claim before the commissioners unless he first surrenders his security for the benefit of the estate. But he may be allowed the balance of his claim remaining after deducting the value of the security. Such value may be determined by agreement bctweeu the creditor and executor, or by a sale of the security, or it may be estimated by the commissioners. ^ estate in insolvency of his guardian a claim for the property which came into the hands of the guardian until the latter has settled his account in the probate court, or until a judgment has been obtained on his bond. ISIurray v. Wood, 144 Mass. 195. See Thorndike v. Hinckley, 155 Mass. 265. 1 R, L. c. 142, § 32; Putney y. Fletcher, 148 Mass. 248; Gold- thwait V. Day, 149 Mass. 187; Boyden v. Mass. Life Insurance Co., 153 Mass. 548. But see Perkins v. Fellows, 136 Mass. 294. 2 Farnura c. Boutelle, 13 Met. 159 ; Hooker i;. Olmstead, 6 Pick. 481 ; Middlesex Bank v. Minot, 4 Met. 325; Haverhill Loan and Fund Association v. Cronin, 4 Allen, 144 ; Bristol County Savings Bank v. AVoodward, 137 Mass. 412. But tliis rule does not apply to a case where the collateral security was furnished by a third person not primarily responsible for the debt. A widow who has joined with her husband in a mortgage of her sepa- rate estate to secure his debt, which she has paid since his death for the purpose of exonerating her estate, may prove the amount before the commissioners. And a creditor may prove his debt without first surrendering a mortgage of the separate estate of the debtor's wife, which he holds as security. Savage v. Winchester, 15 Gray, 453. For a full discussion of the subject of proof of a claim against an insolvent estate by a creditor holding security, and of the circum- 222 PEOCEEDINGS IN THE PROBATE COURTS. Interest is to be allowed on all claims expressly bearing interest, and upon claims not expressly bearing interest where there is evidence establishing the creditor's right to receive interest. Upon claims not bearing interest and not matured a rebate of interest is to be made. The common practice is to compute this allowance and rebate of interest to the date of the death of the intestate. Except in very rare cases, it is immaterial whether the interest stops at the death of the debtor or at a later day in the settlement of the estate, inasmuch as the proportion in which the assets are distributed among the creditors will be the same by either mode of computation. The main object is to fix upon some date to which the affairs of the deceased shall be adjusted. But cases have occurred where the assets have proved more than sufficient to pay the debts a3 they existed at the time of the death of the insolvent, but not sufficient to pay them with interest computed to the time of the decree of distribution. In such cases, and whenever the equitable distribution of the assets requires it, the court will add interest on the claims allowed to the time of distribution. ^ It is the duty of the executor or administrator to oppose the allowance of all claims improperly presented to the commissioners. If he is guilty of corrupt conduct in not stances under which the creditor can prove for the whole amount of his claim, see Hale v. Leatherbee, 175 Mass. 547. P, the maker of a promissory note, gave E, after his indorsement thereof, a promissory note as collateral security, which was to apply to a renewal of the original note. The original note was three times renewed, but before the last renewal note fell due P died. Although the bank which discounted this note had proved it against the iusol- vent estate of P, it was held that E could also prove the note given to him by P. Emerson v. Paine, 176 Mass. 391. ^ Williams v. American Bank, 4 Met. 317; Bowers v. Hammond, 139 Mass. 360. INSOLVENT ESTATES OF DECEASED PERSONS. 223 opposing the allowance of illegal claims, he will be liable to an action on his bond.^ He should be present at the meetings of the commissioners, and should take an appeal from their decision whenever an appeal is necessary to protect the rights of persons interested in the estate. The claim of an executor or administrator against the estate which he administers should be presented for allow- ance to the probate court, not to the commissioners.^ RETURN OF THE COMMISSIONERS. At the expiration of the time limited for the proof of claims, the commissioners are required by law to make their returns to the probate court,^ and performance of that duty may be compelled, on motion of any party interested, by the order of the court which appointed them.* Their return must give a list of all the claims presented to them, whether allowed or not, with the sum allowed on each, stated in separate classes, as follows : first, debts entitled 1 Parsons v. Mills, 2 Mass. 80. 2 Green v. Russell, 132 Mass. 536; Newell v. West, 149 Mass. 528. An action cannot be brought on a claim disallowed by the commis- sioners before they have made their return. Ellsworth v. Thayer, 4 Pick. 122; Goff v. Kellogg, 18 Pick. 256. An administrator who has resigned his trust is not to apply to the commissioners in insol- vency to prove a debt due him personally from the estate when its amount may depend entirely upon the relation in which he stands to the estate, but must present his claim to the probate court. Newell V. West, supra. 3 It is the duty of the commissioners to make their own return to the probate court. It is no part of the official duty of the administra- tor to receive the report of the commissioners and carry or send it to the judge of probate; if he receives the repoit and undertakes to return it, this is merely a personal engagement, for the performance of which the sureties in his bond are not bound. Nelson v. Wood- bury, 1 Greenl. 251. 4 Blanchard i-. Allen, 116 Mass. 447. 224 PROCEEDINGS IN THE PRORATE COURTS. to a preference under the laws of the United States ; sec- ond, public rates, taxes, and excise duties ; third, preferred debts due to clerks, servants, or operatives for labor ; fourth, debts due to all other persons. Debts proved against the deceased as a member of a partnership firm must be stated in a separate list. If the claims are examined by the court, the register makes and certifies a list of all claims presented, with the amount allowed or disallowed on each claim.^ If the executor or administrator has settled his accounts in the probate court, the final distribution of the balance in his hands may be ordered after the expiration of thirty days from the return of the commissioners, and the settle- ment of the estate completed, unless there are contingent debts which could not be proved before the commissioners, or unless an appeal is taken from some decision of the commissioners or of the court. PROVISIONS AS TO CONTINGENT CLAIMS. The statute provides that "if at the expiration of the time allowed for the proof of claims a person is liable as a surety for the deceased, or has any other contingent claim against his estate which could not be proved as a debt within said time, the court upon proof of such facts shall, in ordering a dividend, leave in the hands of the executor or administrator a sum sufficient to pay to such contingent creditor a proportion equal to what is then to be paid to the other creditors. If such contingent debt becomes absolute within four years after the time of the giving of the executor's or administrator's bond, it may 1 R. L. c. 142, § 4 ; Putney v. Fletcher, 140 Mass. 596 ; Newell v. West, 149 Mass. 528. INSOLVENT ESTATES OF DECEASED PERSONS. 225 be proved before the probate court, before the commis- sioners already appointed, or before others to be appointed for the purpose by the court. Upon the allowance of such claim the creditor shall be entitled to a dividend thereon equal to what has been paid to the other creditors, so far as the same can be paid without disturbing the former dividend; and if the claim is not finally established, or if the dividend upon it does not exhaust the assets in the hands of the executor or administrator, the residue of the assets shall be divided among all creditors who have proved their debts. If there is a surplus after satisfying the claims of such creditors, with interest, it shall be distributed to the persons legally entitled thereto." ^ These provisions of the statute apply only to cases where the claim is one that could not be proved as a debt under the commission. The surety on a promissory note made by the deceased which has been proved against the estate by the person holding it cannot have such a contingent claim. His claim against the estate could have been proved by him. He could have paid the holder, made the note his own property, and proved it as his own claim. Moreover, the holder who proved the note will take the entire dividend upon it, and the claim, so far as the insolvent estate is con- cerned, will be extinguished by the dividend paid to him. The surety cannot also take a dividend on the same debt. The statute refers to cases where the holder of the debt cannot, from some cause, prove his debt under the commis- sion, or where the surety cannot make the debt his own by payment.^ 1 R. L. c. 142, §§ 27-29. 2 Cummings v. Thompson, 7 Met. 132. The possible liability of surviving partners of a deceased insolvent to pay notes and obligations given by him in the name of the firm without their knowledge, for his 15 226 PROCEEDINGS IN THE PROBATE • COURTS. APPEALS FROM DECISIONS OP THE COMMISSIONERS. The determination of the commissioners or of the pro- bate court is not necessarily conclusive in any case. Any person whose claim is disallowed in whole or in part, and the executor or administrator, or any heir, legatee, devisee, or creditor of the insolvent estate who is dissatisfied with the allowance of a claim, may appeal from the decision of the commissioners or of the probate court, and the claim will thereupon be determined at common law in the county in which the probate or administration was granted. If the demand exceeds the sum of four thousand dollars in the county of Suffolk, or one thousand dollars in any other county, the appeal is taken either to the supreme judicial court or to the superior court ; otherwise to the superior court.^ The appeal must be claimed and notice thereof given at the registry of probate within thirty days after the return of the commissioners, or, when the court itself receives and examines the claims, within thirty days after the allowance or rejection of the claim.^ If the appeal is by an executor or administrator, he must give notice thereof to the creditor within said thirty days. No reasons of appeal are required to be filed.^ The appeal must be private use, does not give them a contingent claim against the estate. French v. Hayward, 16 Gray, 512. And see Sears v. Wills, 7 Allen, 430, and Spelman v. Talbot, 123 Mass. 489. ^ A claim against an insolvent estate of a deceased person pending in a state court on appeal from the decision of the commissioners ap- pointed by the probate court cannot be removed to a United States court. Du Vivier v. Hopkins, 116 Mass. 12.5. 2 R. L. c. 142, §§ 11, 12. When the time for proof of claims is extended, an appeal from a decision of the commissioners disallowing the claim of a creditor may be filed within thirty days after their final return, though such claim was presented and disallowed before the first return of the warrant. Merriam v. Leonard, 6 Cush. 151. 3 Jacobs v. Jacobs, 110 Mass. 229. INSOLVENT ESTATES OF DECEASED PERSONS. 227 entered on the first Monday of the calendar month next succeeding the expiration of the thirty days/ At the term of court at which the appeal is entered, the supposed creditor must file a statement in writing of his claim, setting forth briefly and distinctly all the material facts which would be necessary in a declaration for the same cause of action ; and like proceedings are thereupon had in the pleadings, trial, and determination of the cause as in an action at law prosecuted in the usual manner, except that no execution is awarded against the executor or administrator for a debt found due to the claimant.'^ The appellate court has the same power as the probate court or the commissioners to examine the claimant, and the final judgment is conclusive, and the list of debts al- lowed by the commissioners will be altered if necessary to conform thereto.^ The party prevailing upon the appeal is entitled to costs, which, if recovered against the executor or admin- istrator, may be allowed to him in his administration account.* The statute provides that any person whose claim is disallowed by the commissioners, and who for other ^ R. L. c. 142, § 12. 2 But an execution against the executor for costs will nevertheless be awarded. Greenwood v. McGilvray, 120 Mass. 516; Perkins v. Fellows, 136 Mass. 296. ' R. L. c. 142, § 13. The report of the commissioners on a claim is conclusive on either party who does not give notice of his dissatisfac- tion with it. Bordmau v. Smith, 4 Pick. 212. See Wright v. Dun- ham, 9 Pick. 37. * R. L. c. 142, § 15; Pierce v. Saxton, 14 Pick. 274; Perkins v. Fellows, supra. If the creditor, on appeal, does not recover a sum greater than that allowed by the commissioners, the executor shall recover his costs of suit against such creditor. Dodge v. Breed, 13 Mass. 537. 228 PROCEEDINGS IN THE PROBATE COURTS. cause than his own neglect omits to claim or prosecute his appeal as above stated, may, by petitioning the supreme judicial court holden in any county, be allowed to claim and prosecute his appeal upon such terms as the court shall impose, if it appears that justice requires a further examination of his claim ; but such petition must be presented within two years after the return of the com- missioners, and within four years after the date of the administration boud.^ The petition in such case should set forth particularly the nature of the claim and the cause of the petitioner's omission to seasonably claim and prosecute his appeal. The allowance of such appeal shall not disturb any dis- tribution ordered before notice of the petition or of the intention to present the same has been given in writing at the registry of probate, or to the executor or administrator ; but the debts thus proved and allowed are paid only out of such assets as remain in or come to the hands of the executor or administrator after payment of the sums pay- able on such prior decree of distribution.^ The party who intends to petition for leave to prosecute his appeal should therefore give immediate notice at the registry of probate, or to the executor, of his intention to present the same. The effect of such notice, if distribution has not already been ordered, may be to materially increase the amount of his dividend. WAIVER OF APPEAL, AND ARBITRATION. After the claiming of an appeal from a decision of the commissioners, the parties may waive a trial at law, and submit the claim to the determination of arbitrators to be agreed on between them and appointed accordingly by the 1 R. L. c. 142, § 16. 2 Ibid. § 17. INSOLVENT ESTATES OF DECEASED PERSONS. 229 probate court, and thereupon the appeal sliall not be entered. The award of such arbitrators, if accepted by the court, shall be as conclusive as a judgment in a court of common law.^ The executor and the creditor, if they agree to submit the claim to arbitration, should join in a written represen- tation of the fact to the court, and state therein the names of the arbitrators agreed upon. The arbitrators must notify the parties of the time and place fixed for the hear- ing, and after the hearing return to the court their award, with the rule and any papers issued therewith. They should also return a certificate of the costs of the arbitration. The arbitrators have no power to award that the claim- ant is in fact indebted to the estate. They are to find only what amount, if any, is due from the estate to the claimant.^ DISTRIBUTION OF INSOLVENT ESTATES. After the expiration of the time allowed by section 12 of chapter 142 of the Revised Laws for claiming appeals from the allowance or disallowance of a claim, the probate court decrees the distribution of tlie assets in the hands of the executor among the creditors whose claims have been allowed.^ If before making the decree the court has notice of an appeal then claimed or pending, the decree may be suspended until the determination of the appeal, or a dis- tribution may be ordered among the creditors whose debts are allowed, leaving in the hands of the executor or admin- istrator a sum sufficient to pay the claimant whose demand is disputed a proportion equal to that of the other creditors.* 1 R. L. c. 142, § 14. 2 Gihnore v. Hubbard, 12 Cush. 220. 2 Equitable liabilities shall be deemed to be debts provable against insolvent estates of deceased persons. R. L. c. 142, § 1. * R. L. c. 142, § 18. As to whether a decree of distribution can be 230 PROCEEDINGS IN THE PROBATE COURTS. The court may, at any time before the expiration of the time allowed for claiming appeals, in its discretion order dividends paid to creditors whose claims have been allowed, whenever the court may deem it proper, leaving in the hands of the executor or administrator a sum sufficient to pay claims that may probably be proved a proportion equal to what is so paid to the other creditors.^ If the whole assets are not distributed upon the first decree, or if further assets come to the hands of the exec- utor or administrator, the probate court will make such further decrees for distribution as the case requires.^ No final distribution can be made until the accounts of the executor or administrator are settled in the probate court, and the sum to be distributed thereby ascertained. His accounts should be settled at the earliest day practi- cable after the i-eturn of the commissioners or the list of claims allowed by the court is made, and he may be liable on his bond for neglect in this particular. The statute provides that if an executor or administrator neglects to render and settle his accounts in the probate court within six months after the final determination of the claims of creditors, or within such further time as the court may allow, and thereby delays a decree of distribution, such neglect may be deemed unfaithful administration ; and he may be forthwith removed, and shall be liable in a suit on his bond for all damages occasioned by his default.^ The return of the commissioners, without any appeal therefrom, is a final determination of the claims of creditors within amended for error arising from mistake, see Parker v. Townsend National Bank, 121 Mass, 565. 1 R. L. c. 142, § 19. 2 Ibid. § 20 ; ^Vhite v. Swain, 3 Pick. 365. « R. L. c. 142, § 26. INSOLVENT ESTATES OF DECEASED PERSONS. 231 the meaning of the statute, and the fact that contingent ckiims are presented against the estate is not material. ^ In muiiing the distribution, the preferred creditors, if the assets are sufficient, are paid in full, in the order required by statute. If there is not enough to pay all the debts of any one class, the creditors of that class are paid ratably upon their respective debts. The balance remain- ing after the payment of the preferred claims is distributed ratably among the other creditors. If the deceased had been a member of a copartnership, and died in possession of both separate and partnership estate, and was indebted as a partner as well as on private account, his partnership debts are payable from the partnership estate, and his separate debts from his separate estate. If there is a balance of the separate estate after the payment of his separate debts, it is added to the joint property for the payment of the joint creditors. If there is a balance of the joint property after the payment of the joint debts, it is divided among the separate estates of the partners accord- ing to their respective interests therein, as it would have been if the partnership had been dissolved without insol- vency ; and the sum so appropriated to^ the separate estate of each partner is applied to the payment of his separate debts.2 1 McKim V. Bartlett, 129 Mass. 226. 2 R. L. c. 142, § 21 ; c. 163, § 138; Howe v. Lawrence, 9 Cush. 553; Fall River Whaling Co. v. Borden, 10 Cush. 458; Jewett v. Phillips, 5 Allen, 120; Broadway Nat. Bank v. Wood, 165 Mass, 312 ; Clarke v. Stanwood, 166 Mass. 379 ; Very v. Clarke, 177 Mass. 52. The holder of a partnership note made payable to one partner and indorsed by him to the holder may prove it in insolvency against the estates both of the firm and of the indorsing partner before any divi- dend is declared on either. Roger Williams Nat. Bank v. Hall, 160 Mass. 171. 232 PROCEEDINGS IN THE PROBATE COURTS. The order of distribution directs the executor or ad- ministrator to pay the balance in his hands to the persons named in the order, and specifics the sum to which each is entitled. He is also directed to give notice to each creditor of the amount of his dividend, and if any of the sums which he is ordered to pay remain for six months unclaimed, to deposit the same in a savings-bank or other like institution in the name of the judge of probate for the time being, to accumulate for the benefit of the person entitled thereto.^ When the executor or administrator has paid over or deposited the money in his hands as required by the decree of distribution, he may perpetuate the evidence thereof by presenting to the probate court, within one year after the decree was made, on account of such payments, 1 When the person entitled to the money deposited satisfies the judge of his right to receive the same, the judge causes it to be paid over and transferred to him. R. L. c. 150, § 28. The interest of a dis- tributee in money ordered by the probate court to be paid to him, is equitable only ; consequently unclaimed money deposited in the name of the judge of probate cannot be reached by trustee process as the property of the distributee. Chase v. Thompson, 153 Mass. H. When the residence of a legatee is unknown, or if he is a minor without a legal guardian, the legacy may be deposited in a savings- bank or like institution in the name of the judg6 of probate. R. L. c. 150, § ■2i. The limitation of the amount which savings-banks may receive for deposit does not apply to deposits made by direction of the probate court. R. L. c. 113, § 25. Such deposits shall draw interest at the same rates as other deposits in the same bank, without regard to the amount deposited; and the probate court may order money so depos- ited and remaining unclaimed for more than five years to be paid into the state treasury. R. L. c. 113, § 55. The judge of probate may order money remaining unclaimed for twenty years to be paid to the residuary legatees, or if there are none, to the parties entitled ; but a bond of indemnity will be required from the person to whom the money is paid. R. L. c. 150, § 26. INSOLVENT ESTATES OF DECEASED PERSONS. 233 which, being proved to the satisfaction of the court and verified by the oath of the party, is allowed as liis final discharge. He may conveniently make such account by returning the original decree, with the receipts of the several creditors and the certificates of deposit annexed thereto, together with his own certificate that the several payments have been made as ordered. After twenty years from the decree of distribution of an insolvent estate, the probate court, on application of any creditor whose claim was proved and allowed, and after notice of such application publislied for not less than two years on such days as the court shall direct, in one or more newspapers of the count}', may order any unclaimed dividends with the interest received thereon, after deduct- ing all expenses and charges of administration since the decree of distribution, to be distributed anew among the creditors who have received their dividends. If there is a surplus after satisfying the claims of such creditors with interest, it will be distributed to the heirs of the deceased. If a creditor who has failed to receive his dividend is deceased, administration may be granted on his estate, although more than twenty years have elapsed since his death, and his administrator may receive and administer the dividend.^ ACTIONS BY CREDITORS AFTER THE REPRESENTATION OF INSOLVENCY. After the representation of insolvency and the appoint- ment of commissioners, the law will not permit any of the assets of the estate to be taken from the executor or ad- ministrator by legal process to satisfy the demand of any creditor, until the question of insolvency is determined. 1 R. L. c. 142, §§ 24, 25. 234 PROCEEDINGS IN THE PEOBATE COURTS. No action can be maintained unless for a demand entitled to a preference, and which would not be affected by the insolvency of the estate, or unless the assets prove more tlian insufficient to pay all the debts allowed by the com- missioners. If the estate is represented insolvent while an action is pending for any demand not entitled to such preference, the action can be discontinued without pay- ment of costs ; or, if the demand is disputed, the action may be tried and determined, and judgment rendered thereon, in the same manner and with the same effect as in the case of an appeal from the allowance or disallowance of the claim of a creditor ; or the action may be continued without costs until it appears whether tlie estate is insol- vent, and, if not insolvent, the plaintiff may prosecute the action as if no such representation had been made.^ RECOVERY OF CLAIMS NOT PROVED BEFORE THE COMMISSIONERS. Every creditor of an insolvent estate who does not pre- sent his claim for allowance will be barred from recovering it, unless further assets come to the hands of the executor or administrator after the decree of distribution ; in such case his claim may be proved and paid in the manner and with the limitations provided for contingent debts.^ When such 1 R. L. c. 142, § 30; Gushing v. Field, 9 Met. 180; Johnson v. Ames, 6 Pick. 330; Hunt v. Whitney, 4 Mass. 624; Greenwood v. McGilvray, 120 Mass. 516; Greenleaf v. Allen, 127 Mass. 248; Guptill V. Ayer, 149 Mass. 50. 2 R. L. c. 142, § 10; Guptill v. Ayer, supra. The statute does not apply to a bill in equity brought by the administrator of a deceased partner whose estate is afterwards declared insolvent, against his surviving partner for an account ; and the defendant is entitled to a decree if a balance is found in his favor. Goldthwait v. Day, 149 Mass. 185. INSOLVENT ESTATES OF DECEASED PERSONS. 235 further assets come to the estate, the probate court, on application of such creditor, may open the commission. The creditor's petition must allege that further assets have come to the hands of the executor or administrator, aud he must substantiate this allegation by proof. Without such proof the commission will not be opened. Either the cred- itor or executor may appeal from the decree of the probate court allowing or refusing the prayer of the petition.^ The claim of a creditor in whose favor the commission is reopened is not barred, in consequence of the lapse of time subsequent to the closiug of the first commission, by any of the statutes of limitation. He may proceed by peti- tion whenever there are new assets to be distributed. The executor or administrator is liable to account for all funds in his hands, though he may have received them more than twenty years after the decree of distribution was passed.2 If after the report of the commissioners the assets prove sufficient to pay all debts allowed, the executor or admin- istrator pays them in full ; and if any other debt is after- wards recovered against him, he is liable therefor only to the extent of the assets then remaining. If there are two or more such creditors, the assets, if insufficient to pay them in full, are divided between them in proportion to their debts. The executor or administrator, in an action brought against him on such demand, may prove the amount of assets in his hands, and thereupon judgment will be rendered in the usu;jl form ; but execution will not ^ The decree if not appealed from is conclusive, and cannot be inc^uii-ed into in a subsequent appeal from the subsequent decision of the commissioners allowing or disallowing the claim. Ostrom v. Curtis, 1 Cash. 461. 2 Ibid. ; White v. Swain, 3 Pick. 365. 236 PROCEEDINGS IN THE PROBATE COURTS. issue for more than the amount of such assets ; and if there are two or more such judgments, the court will apportion the amount between them.^ If it is not ascertained, at the end of eighteen months after the granting of letters testamentary or of administra- tion, whether an estate represented insolvent is or is not so in fact, any creditor whose claim has not been pre- sented for proof may commence an action therefor against the executor or administrator, which maj be continued without costs for the defendant until it appears whether the estate is insolvent. ^ If it appears solvent, the plain- tiff may prosecute the action as if no such representation had been made. If it proves insolvent, he will have no remedy unless new assets come to the hands of the ex- ecutor or administrator, in which case he may petition that the commission be opened ; and if the commission is opened, he can prove his claim. PEOVISIONS AS TO INSOLVENT ESTATES OF DECEASED NON-EESIDENTS. When an inhabitant of another state or country dies insolvent and leaves estate to be administered here, the estate found here is not to be transmitted to the foreign administrator until creditors who are citizens of this state have received their equitable dividends. If all the assets were transmitted to the foreign administrator, creditors in this state would be subjected to the expense of proving and collecting their demands abroad ; and the pursuit of their claims in countries where the local law makes no provision for an equal distribution of the assets of a 1 R. L. c. 142, §§ 22, 23; Bowers v. Hammond, 139 Mass. 363. 2 R. L. c. 142, § 31. This provision does not suspend the special statute of limitations. Blanchard v. Allen, 116 Mass. 447. INSOLVENT ESTATES OF DECEASED PERSONS. 237 deceased insolvent might be wholly fruitless. Under the provisions of our statute, citizens of this state cannot be put to the inconvenience of proving their claims abroad when there are assets here ; nor, on the other hand, can the whole estate found here be expended in paying the claims of our citizens to tlie prejudice of foreign creditors ; but the estate found here, as far as practical)le, is to be so disposed of that all creditors of the deceased, here and elsewhere, may receive each an equal share in proportion to their respective debts.^ To this end, the statute provides that the assets shall not be sent to the foreign administrator until all creditors Avho are citizens of this state have received the just pro- portion that would be due to them if the whole estate of the deceased, wherever found, that is applicable to the payment of common creditors, were divided among all the creditors in proportion to their respective debts, with- out preferring any one species of debt to another,^ in which case no creditor who is not a citizen of this state shall be paid out of the assets found here until all those who are citizens have received their just proportion. The statute further provides that if there is any residue remaining after such payment to the citizens of this state, it may be paid to any other creditors who have duly proved their debts, here, in proportion to the amount due to each of them, but no one shall receive more than would be due to him if the whole estate were divided ratably among all the creditors. The balance may be transmitted to the 1 Dawes v. Head, 3 Pick. 128; Hooker v. Olmstead, 6 Pick. 481; Davis V. Estey, 8 Pick. 475. '^ The local laws of some countries prefer debts on judgments, bonds, etc., to simple contract debts. Such preferences are not to be regarded in the distribution here. 238 PROCEEDINGS IN THE PROBATA: COURTS. foreign executor or administrator; or, if there is none, it shall, after the expiration of four years from the appointment of the administrator, be distributed ratably among all creditors, both citizens and others, who have proved their debts in this state,^ 1 R. L. c. 143, §§ 4, 5; Welch v. Adams, 152 Mass. 76, 77. The administrator of the insolvent estate of a deceased person may maintain a bill in equity, filed within two years after giving bond, to recover for the benefit of the creditors, even if all their claims are otherwise barred by the special statute of limitations, property con- veyed by the intestate in his lifetime in fraud of them, which, when recovered, will constitute new assets. Welsh v. Welsh, 105 Mass. 229. CHAPTER XIY. SALES or LAND BY EXECUTORS, ADMINISTRATORS, AND GUARDIANS. SALES BY EXECUTORS AND ADMINISTRATORS. When the personal estate of a deceased person is in- sufficient to pay his debts and legacies with the charges of administration, his executor or administrator may sell his real estate for that purpose, having been first licensed there- for by the probate court, from which letters testamentary or of administration issued.^ 1 R. L. c. 146, §§ 1, 4; Marvel v. Babbitt, 143 Mass. 227; Bocton Safe Deposit Co. v. Mixter, 146 Mass. 105; Putuey v. Fletcher, 148 Mass. 248; Spooner v. Spooner, 155 Mass. 52. Nothing in Rev. Laws, chap. 64, shall extend to sales made by sheriiTs, deputy sheriffs, constables, collectors of taxes, executors, administrators, guardians, assignees of insolvent debtors, or by any other person required by law to sell real or personal estate. R. L. c. 64, § 15. An executor who is residuary legatee and gives bond for the payment of debts and legacies acquires an absolute title in the estate devised, and may convey it without license. Clarke v. Tufts, 5 Pick. ;337 ; Thayer v. AVinchester, 133 Mass. 447. And an executor duly authorized thereto by the terms of the will may convey the lands of his testator without license. But when the executor, so empow- ered by the will, dies before making the conveyance, or renounces the ofl&ce of executor, the power to sell does not devolve upon the admin- istrator with the will annexed who succeeds him. Such administrator can sell only by license of court. Tainter v. Clark, 13 Met. 220 ; Greenough v. Welles, 10 Cush. 571; Larned v. Bridge, 17 Pick. 339; Conklin v. Edgerton's Administrator, 21 Wend. 430. If the power to sell is given to two executors, one of whom resigns, the other may 240 PROCEEDINGS IN THE PROBATE COURTS. The probate court may, upon the petition of an ad- ministrator, with the consent of all the parties interested exercise it singly. Gould v. Mather, 104 Mass. 283; Warden v. Rich- ards, 11 Gray, 277. If a will provides that, after the death of the testator's wife, who is the executrix, and to whom the use and income of his estate is given during her life, all the estate shall be converted into money, and does not in terms specify the person who shall do this, the power to sell the real estate is by necessary implication given to the administrator de bonis non with the will annexed. Putnam v. Story, 132 Mass. 205. If the executor is authorized to sell lands for trust purposes, he does not, by renouncing the office of executor, lose the power to con- vey as trustee under the will. His sales and conveyances, made after the renunciation of his executorship and after his acceptance of the trust, are valid as against the devisees and their heirs. Clark v. Tainter, 7 Cush. 567. Where, under the provisions of a will, the sale of real estate by a trustee or executor is dependent upon the consent of a person who has deceased, the probate court having jurisdiction of the settlement of the estate may, in its discretion and if all parties interested assent, authorize the sale and conveyance of such real estate in like manner as if no such consent had been required. R. L. c. 148, § 2. An admin- istrator, being licensed to sell the estate of his intestate, may sell estate fraudulently conveyed by the deceased in whosesoever hands it may be. Drinkwater v. Drinkwater, 4 Mass 354. Where the intestate had only a power of appointment, in default of which the estate was to go to her heirs, and she made no appointment, it was held that she had no interest in the estate which could be sold by her administrator. Coverdale v. Aldrich, 19 Pick. 391. Legatees under a will cannot maintain a bill in equity against the administrator with the will annexed of the testatrix who has obtained a license from the probate court to sell her real estate for the payment of legacies, to determine their rights. Sprague v. W^est, 127 Mass. 471. A license to sell the real estate for the payment of debts will not be granted to the administrator where the only debt existing is secured by mortgage. Scott v. Hancock, 13 Mass. 162. When the debts are barred by the statute of limitations, a license to sell the real estate will be void. Tarbell v. Parker, 106 Mass. 347. A license to sell real estate in this commonwealth belonging to a deceased citizen of another state for the payment of debts will not be granted to the prejudice of the heirs when it appears that there was SALES OF LANDS BY EXECUTORS, ETC. 241 or after notice, license him to sell the real property or any undivided interest therein belonging to the estate of the intestate, unless the appraisal shows that it exceeds fifteen hundred dollars in value, in such manner and upon such notice as the court orders, for the purpose of distribution ; and the net proceeds of such sale, after deducting the ex- penses thereof and such amount as may be required for the payment of debts in consequence of a deficiency in personal property, shall, after two years from the filing of the administrator's bond, be distributed to the persons who would have been entitled to the real estate and in the proportions to which they would have been entitled, had it not been sold.^ As tlie legal title to real estate vests in the heirs or devisees immediately upon the death of the owner, the administrator, as such, has nothing to do with the lands of his intestate, except to see that they are appraised, until he is licensed to sell them for the payment of debts a fund provided for the payment of debts in such other state, at least until it is shown that the creditors have used some diligence to obtain payment of such fund, and have met with some legal impediment. Livermore v. Haven, 23 Pick. 116. The court cannot, on the petition of the administrator or executor, license a stranger to make the sale or conveyance. Crouch v. Eveleth, 12 Mass. 503. An estate of homestead is not exempt from a sale by the guardian of the owner, for the payment of his debts and for his support and maintenance, upon a license of the probate court. Wilbur v. Hickey, 8 Gray, 432. An executor who is authorized by will "to sell and make conveyance of personal and real estate either at public or private sale as the proper and convenient settlement of the estate may re- quire," is empowered to sell the real estate only for the payment of debts, legacies, and the cliarges of administration, and not for the purpose of making partition or distribution among the devisees. Allen V. Dean, 148 Mass. 594. 1 R. L. c. 146, § 18. 16 242 PROCEEDINGS IN THE PROBATE COURTS. and charges.^ Nor has the executor, unless under an authority given him by the will of his testator.^ When, therefore, lands are sold by executors and administrators, it is important for them to observe strictly the directions of the statute, from which alone they derive the power to make the conveyance. The probate court has no jurisdic- tion to grant a license to an executor who is also residuary legatee, and who has given a bond to pay debts and lega- cies.^ Such a bond is a conclusive admission of assets, and takes the place of the property in providing a fund for the payment of debts and legacies. And the execu- tor takes an absolute title in the land included in the residuary devise, and may convey it without license.* Licenses to sell real estate are provided for by the stat- ute only when the personal property is insufficient for the payment of debts, legacies, and charges of administration. The sale must be necessary for the payment of claims which can be enforced at law.^ The convenience of parties 1 Administrators, executors, and trustees maybe licmsed to sell real estate for the payment of the tax on collateral legacies and successions. R. L. c. 15, § 8. 2 The court may authorize a special administrator, who is appointed by reason of delay in granting letters testamentary, to take charge of the real estate, collect the rents, make necessary repairs, and do all other things which it may deem needful for the preservation of the real estate and as a charge thereon. R. L. c. 137, § 10. 8 Thayer v. Winchester, 133 Mass. 447. * Clarke v. Tufts, 5 Pick. 336. The giving of the bond for the payment of debts and legacies does not discharge the lien on the land for the payment of debts, except on such part as may be sold by the executor to one who purchases in good faith and for a valuable con- sideration. All estate not so sold may be taken on execution by any creditor not otherwise satisfied, in like manner as if a bond had been given in the other form. R. L. c. 149, § 2; Collins v. Collins, 140 Mass. 502 ; Jenkins v. Wood, 144 Mass. 241. ^ Larason v. Schutt, 4 Allen, 359. A petition for a license to .sell real estate to meet a claim not accruing within two years from the SALES OF LANDS BY EXECUTORS, ETC. 243 interested in the lands would be promoted, in some cases, by a sale of them by the administrator, although the pro- ceeds are not needed for the payment of debts or legacies ; but licenses cannot be granted under such circumstances except to public administrators (whose sales under license are considered in a subsequent part of this chapter), or when the appraised value of the real estate does not exceed the sum of fifteen hundred dollars,^ or for the payment of the legacy and succession tax.^ The Real Estate liable to he sold includes all lands of the deceased, and all rights of entry and of action, and all other rights and interests in lands which by law would descend to his heirs, or which would have been liable to attachment or execution by a creditor of the deceased in his lifetime ; ^ but the title passed by any such sale is sub- taking out of administration thereon will not lie pending a petition for the retention of assets to satisfy the claim. Cobb v. Kempton, 154 Mass. 266. 1 R. L. c. 146, § 18. 2 R. L. c. 15, § 8. 3 All land held in fee tail, except an estate tail in remainder, shall be liable for the debts of the tenant in tail, both in his lifetime and after his decease, as if held in fee simple ; and if taken on execu- tion, or sold by executors, administrators, or guardians, the creditor or purchaser shall hold such lands in fee simple. R. L. c. 134, § 3. All the lands of a debtor in possession, remainder, or reversion, all his rights of entry into lands and of redeeming mortgaged lands, and all such lands and rights which have been fraudulently conveyed by him with intent to defeat, delay, or defraud his creditors, or which have been purchased or directly or indirectly paid for by him but the record title thereto retained in the vendor or conveyed to a third person with intent to defeat, delay, or .defraud the creditors of the debtor, or on a trust for him, express or implied, whereby he is entitled to a present conveyance, may, except as provided in chap. 131 (relating to homesteads), be taken on execution for his deb:s. R. L. c. 178, § 1. An executor or administrator licensed to sell lands fraudulently 244 PKOCEEDINGS IN THE PROBATE COUKTS. ject to the right of dower of the wife or to the right of curtesy by the husband of the deceased, and no claim by entry or by action to lands fraudulently conveyed by coaveyed by the deceased, or fraudulently held by another person for him, or to w liicli he had a right of entry or of action or a right to a conveyance, may, within one year after such license, sell the land without first obtaining possession thereof by entry or by action, or he may without a formal entry bring an action to obtain possession by virtue of such license, demanding the land as executor or adminis- trator, and may sell the same within one year after possession is obtained. R. L. c. 146, § 17 ; Yeomans v. Brown, 8 Met. 51 ; Allen V. Ashley School Fund, 102 Mass. 262 ; Hannum v. Day, 105 Mass. as ; Walker v. Fuller, li7 Mass. 491. The case of Caverly v. East- man, 142 Mass. 4, is interesting from its peculiar facts. But whether an administrator may prosecute a writ of entry brought by his intes- tate, quaere. Brigham v. Hunt, 152 Mass. 258. The executor may maintain a writ of entry to recover it without first selling the other real estate of his testator. Tenney r. Poor, 14 Gray, 500. Real estate conveyed by an intestate in his lifetime, without ade- quate consideration, and by way of gift, either in whole or in part, may be sold by his. administrator to pay his debts, as estate conveyed by him with intent to defraud his creditors, if, at the time of the convey- ance, he thereby rendered himself unable to pay his then existing creditors. Norton v. Norton, 5 Cash. 524; Allen v. Trustees of Ashley School Fund, 102 Mass. 262. The proceeds of a sale by an administrator of real estate conveyed by his intestate with a view to defraud creditors, though such con- veyance was void at the time as against then existing creditors only, are applicable to the payment of all the creditors alike. Norton i'. Norton, supra. If an administrator receives payment of a note given for the purchase-money of an estate conveyed by his intestate to defraud creditors, he does not thereby ratify the conveyance ; unless the payment is received with full knowledge of the facts, and the ad- ministrator is a party in interest, in which case it might be otherwise. Ibid. The interest of a deceased partner in partnership real estate which is not required for the settlement of the affairs of the firm is to be treated as realty, and may be sold for the payment of legacies. Wil- cox c. Wilcox, 13 Allen, 252 ; Harris v. Harris, 153 Mass. 439. SALES OF LANDS BY EXECUTORS, ETC. 245 the deceased can be made, unless within five years after the decease of the grantor.^ When land is demised for the term of one hundred years or more, the term, so long as fifty years thereof remain unexpired, is regarded by the statute as an estate in fee simple as to everything concerning the sale thereof by executors, administrators, and guardians, by license from any court.^ The executor or administrator may sell lands held in mortgage, or taken in execution for a debt due the de- ceased, at any time before the right to redeem them is foreclosed, in the same manner as personal estate. The legal title to such lands is in him. He holds it in trust for the persons who would be entitled to the money if the mortgage or other debt had been paid. But after the right of redemption is foreclosed, the executor should obtain license before making sale of the land, in the same man- ner as if the deceased had died seised of it. The license is not necessary to enable the executor to convey the legal title, which is already vested in him, but is in- tended solely to bind heirs and legatees, and make the title good against them as the owners of the beneficial interest.^ The Petition for License to sell Real Estate must be pre- sented by the executor or administrator to the probate court of the county in which letters testamentary or of administration issued. If there are two or more executors 1 R. L. c. 146, §2. 2 R. L. c. 129, § 1; Hollenbeck v. McDonald, 112 Mass. 247. ' An executor who, after foreclosing a mortgage lield by his testa- tor, sells and conveys the land without license of court, is not liable to an action on the covenant of good right to convey in his deed, if the legatees have received the purchase-money ; uor, it seems, if they have not. Baldwin v. Timmins, 3 Gray, 302. 246 PROCEEDINGS IN THE PROBATE COURTS. or administrators, all must join in the petition.^ It may be presented as soon as the necessity of the proposed sale becomes apparent. It must be in writing, and the statute requires to be set forth therein the value of the personal estate in the hands of the executor or administrator, the amount of the charges of administration, the amount of debts due from the deceased as nearly as they can be ascertained, and, in the case of a person dying testate, the amount of any legacies given in his will.^ It is suffi- cient to state in the petition the gross amount of all the debts due, but the executor or administrator must file with his petition a list of the debts, so far as they can be ascertained, showing the name of each creditor and the sum due to each. Such list of claims should be signed by the petitioner and sworn to.^ If it is necessary to sell only part of the real estate, the petitioner may also set forth the value, description, and condition of the estate, or of such part as he proposes to sell, and the court may direct what specific part shall be sold. If the estate is so situated that by a partial sale the residue of the estate, or of some specific piece or part thereof, would be greatly injured, the facts should be stated in the petition ; and the court may license a sale of the whole of the estate or of such part as may appear best.4 1 Hannum v. Day, 105 Mass. 33 ; Cobb v. Kempton, 154 Mass. 270. 2 R. L. c. 146, § 6. 8 It is not necessary that the amount of the debts should have been previously ascertained by judgnaent against the executor, or by com- mission of insolvency. Tenney v. Poor, 14 Gray, 500. * R. L. c. 146, §§ 6, 7 ; Yeoraans v. Brown, 8 Met. 58 ; Gregson v. Tuson, 153 Mass. 328. A decree of the probate court, unappealed from, is conclusive of the question whether a part of the land suflBicient SALES OF LANDS BY EXECUTOKS, ETC. 247 It is sometimes the case that the testator has made by will some disposition of his estate for the payment of his debts, or has given some directions which may vary the order in which the different parts of his estate shall be appropriated. Thus, though the personal property is first liable for payment of debts, the testator may expressly exempt it, or some portion of it, by making it the subject of a specific legacy, and may direct his debts to be paid out of other funds, or may leave other funds not exempted. Such specific legacies are not to be taken for the payment of debts, if there are other funds so first liable. The law will respect the testator's directions so far as is consistent with the rights of creditors. If the will contains a pro- vision for the payment of debts, or which may require or induce the court to marshal the assets in a manner differ- ent from that which the law would otherwise provide, the executor shall set forth in the petition a copy of the will and the court shall marshal the assets accordingly, so far as can be done consistently with the rights of the creditors.^ Undevised real property is first chargeable with the payment of debts or legacies in exoneration of the real estate devised, unless a different intention appears by the will,^ Notice to Parties interested. — The license will not be granted until notice of the petition, and of the time and place appointed for hearing the same, has been served either personally on all persons interested in the estate,^ to pay the debts may be sold without injuring the residue. Allen v. Trustees of the Ashley School Fund, 102 Mass. 262. 1 R. L. c. 146, § 8. 2 Ibid. § 3. * When the executor petitions for license to sell land of which his testator was disseised at the time of his death, for the purpose of pay- ing his debts, the disseisor in possession is not interested in the estate, within the meaning of the statute, and is not entitled to notice of the 248 PROCEEDINGS IN THE PROBATE COURTS. at least fourteen days before the time appointed for the hearing, or by publication three weeks successively in some newspaper, as the court may order.^ The petition may be filed in the probate office on any day, and tlie order issued by the register of probate. But if all persons inter- ested signify their assent in writing to the sale, notice may be dis])ensed with.^ The assent should be indorsed on the petition. TJie Necessity for the Proposed Sale. — The party apply- ing for license to sell the real estate of his testator or intestate must prove the facts set forth in his petition. It must appear that a necessity exists for the sale he pro- poses to make. If the personal assets are, in fact, suffi- cient for the payment of the debts and legacies, and he obtains a license by misrepresenting the condition of the petition in order to render the license valid as against liim. Yeomans V. Brown, 8 Met. 51. No notice need be given to persons \\ho claim under a title derived independently of the deceased. Walker w. Fuller, 147 Mass. 491. The practice in the probate court is to order notice in the manner prescribed by statute, and it is not made the- duty of the executor to obtain the appointment of guardians to all minors interested in the estate before he can obtain a license. Holmes v. Beal, 9 Cash. 226. The wife of a devisee of real estate is not entitled to notice of a petitition of the devisor's administrator for license to sell it for the payment of debts, legacies, and charges of administration. Harring- ton V. Harrington, 13 Gray, 513. 1 R. L. c. 146, § 10; Dexter v. Shepard, 117 Mass. 480 ; Berais v, Leonard, 118 Mass. 502. A notice of a sale of a trust estate ad- dressed to the " heirs at law, next of kin, and all other persons interested," is sufficient. Boston Safe Deposit Co. v. Mixter, 146 Mass. 100. 2 R. L. c. 162, § 45. Only persons in being who have a vested in- terest in the real estate are entitled to notice. Dexter v. Cotting, 149 Mass. 92. But creditors of the estate are entitled to notice. Browne V. Doolittle, 151 Mass. 595. SALES OF LANDS BY EXECUTORS, ETC. 249 estate, a sale under a license so obtained is a breach of his bond for faithful administration.^ The averment and admission of the executor that a certain debt is due from the estate is not evidence to establish the fact. But any creditor of the deceased is a competent witness to prove his debt in support of the executor's petition.^ The adjudication of the probate court as to the exist- ence of debts and charges is final, so far as it affects any title acquired by virtue of the license, but does not affect the right of the executor or administrator to contest the validity of such debts and charges.^ Any person interested may appear and object to the granting of the license, and if it appears to the court that either the petition or the objection thereto is unreason- able, they may award costs to the prevailing party .^ It may be that the heirs or devisees prefer to keep the estate entire and in their own hands, or the value of the property may be temporarily depressed, so that it cannot be sold immediately without a considerable sacrifice. If for these reasons, or for any reasons, the persons interested wish to stay proceedings under the petition and prevent the sale, they can effect that result by paying to the executor or administrator the amount of money needed for the payment of claims against the estate, and the money so received will be assets of the estate to be administered and accounted for ; and the executor or administrator will ^ Chapin v. Waters, 110 Mass. 195. It is no defence that the sale was a pretence for the purpose of defeating a mortgage made by the devisee to defraud his creditors, or that the executor never received anything from the sale. Ibid. 2 Chamberlin r. Chamberlin, 4 Allen, 184 ; Ela v. Edwards, 97 Mass. 318. » E. L. c. 148, § 21. « Ibid. § 10. 250 PROCEEDINGS IN THE PROBATE COURTS. be liable on his bond for any failure to appropriate such assets to the payment of debts and legacies ; ^ or any of the persons interested may give bond to the executor or administrator, in a sum and with sureties approved by the court, with condition to pay all legacies mentioned in the petition, all debts therein mentioned that shall eventually be found due from the estate, and charges of administra- tion, so far as the personal estate may prove insufficient therefor. If the money is so paid, or if such a bond is given, license to sell will not be granted.^ The heirs may autliorize the administrator to collect the rents and appropriate them to the payment of the debts, and thereby avoid the necessity for the sale.^ As to the License. — Upon the petition of an executor or administrator for a license to sell the real property of the deceased, the court may, if the petitioner so requests, authorize him to sell such property at public auction and to convey to the purchaser all the estate, right, title, and interest which the deceased had therein at the time of his death and which was then chargeable with the payment of his debts. If the petitioner requests that such property may be sold by private sale, and the court, upon a hearing, finds that an advantageous offer for the purchase thereof has been made to the petitioner, and that the interests of all parties will be promoted by the acceptance of such offer, 1 Fay V. Taylor, 2 Gray, 154. 2 R. L. c. 146, § 12 ; Francis v. Daley, 150 Mass. 385. The condition of the bond is not broken until it has been ascer- tained, by an account settled in court, that the personal estate is insufficient. Studley ;). Josselyn, 5 Allen, 118. ' But the occupation of the real estate by one of two administrators, who is also one of the heirs, without paying or charging himself with any rent, is not of itself a bar to granting the license to sell. Palmer V. Palmer, 13 Gray, 326. SALES OF LANDS BY EXECUTORS, ETC. 251 it may authorize a conveyance by private sale in accord- ance with such offer or upon other terms ; but such peti- tioner so authorized may nevertheless sell such property by public auction.! The court may license in terms the sale of the whole of the estate of the deceased, when the executor represents in his petition, and it appears to the court, that a sale of the whole is necessary ,2 or may license the sale of such part thereof as is deemed necessary and most for the interest of all concerned, or may direct what specific part shall be sold.^ The license is sufficient if it is in general terms, authorizing the sale of so much as will raise a certain sum ; * but the license must concur with and be based upon the petition.^ If it is necessary, under the provisions of the will of the deceased, the court will marshal the assets, and the executor will appropriate the lands in the order specified by the court.^ 1 R. L. c. 146, § 9 ; Walker v. Fuller, 147 Mass. 491. 2 R. L. c. 146, § 7 ; Sewall v. Raymond, 7 Met. 454 ; Gregson v. Tuson, 153 Mass. 329. Under a license to sell the whole, the reversion of land assigned to the widow as dower may be sold. Bancroft v. Andrews, 6 Cush. 493, semhle. * R. L. c. 156, § 6 ; Gregson v. Tuson, supra. * Norton v. Norton, 5 Cush. 524; Sewall v. Raymond, 7 Met. 454. 5 On the petition for license to sell a specific portion of the estate for the payment of debts and charges, and after publication of notice to show cause why license should not be granted to sell " the whole of the real estate of said deceased," a license to sell "the whole of the real estate of said deceased " is irregular and void, and will not support an action by the administrator on the Pub. Stats, c. 134, § 15 (now R. L. c. 146, § 17), to recover the specific portion, as having been fraudulently conveyed by the deceased. Verry v. McClelkin, 6 Gray, 535; Tenney v. Poor, 14 Gray, 500; Gregson v. Tuson, supra, and cases cited. The executor may be licensed to sell land suflScient to pay a larger sum than the amount of debts and charges named in the petition. Tenney v. Poor, 14 Gray, 500. « See Humes v. Wood, 8 Pick. 478; Lee, Appellant, 18 Pick. 285; 252 PROCEEDINGS IN THE PROBATE COURTS. The general order of marshalling assets for the payment of debts is : 1. The personal estate not specifically be- queathed or otherwise exempted. 2. Lands appropriated in the will as a fund for the payment of debts. 3. Lands descended. 4. Lands specifically devised.^ Specific lega- cies and devises are appropriated ratably to the payment of debts.2 License to sell for the payment of debts is not usually granted after the expiration of the period (two years) lim- ited for the commencement of actions against executors and administrators who have given due notice of their appointment. The object and general effect of the statute making this limitation is to discharge the lien of creditors on the land at the expiration of the two years, thereby promoting the speedy settlement of estates, and establish- ing the titles of the heirs. If no claims exist but those against which the statute of limitations furnishes complete protection, the proceeds of the real estate are not needed for the payment of debts, and a license to sell cannot be granted. The question to be determined upon every application for a license is, whether the proposed sale Adams v. Brackett, 5 Met. 280 ; Ellis v. Page, 7 Cush. 161 ; Hewes v. Dehon, 3 Gray, 205; Plimpton v. Fuller, 11 Allen, 139; Farnum v. Bascom, 122 Mass. 282; Johnson v. Home for Aged Women, 152 Mass. 93, and cases cited. 1 Hays V. Jackson, 6 Mass. 149; Livingston v. Newkirk, 3 Johns. Ch. 312; Blaney v. Blaney, 1 Cush. 11.5, and cases cited. Any person interested may appeal from a decree granting a license to sell real estate, but on such an appeal the question of title, except so far as any doubt regarding it may affect the expediency of the sale, is not properly before the court. AValker v. Fuller, 147 Mass. 489. A sale daring the time allowed for an appeal is invalid. Daley v. Francis, 153 Mass. 8. '- Farnum v. Bascum, 122 Mass. 282; Hallowell's Estate, 23 Penn. St. 223 ; Long i;. Short, 1 P. Wms. 403. SALES OF LANDS BY EXECUTORS, ETC. 253 is necessary for the payment of claims against the estate.^ A license may be granted after the expiration of the two years, provided there are claims against the estate upon which the statute of limitations does not operate.^ But the court will not grant a license after the two years have elapsed unless extraordinary circumstances render it proper, especially when the effect will be to disturb titles acquired under the presumption that all the debts had been paid.^ But license to sell for the payment of legacies may be granted after the expiration of the two years.* As to the Time of Sale. — No license to sell land con- 1 Lamson v. Schutt, 4 Allen, 359; Hudson v. Hulburfc, 15 Pick. 423 ; Heath V. Wells, 5 Pick. 140; Tarbell v. Parker, 106 Mass. 347. See also Gregson v. Tuson, 153 Mass. 329. - Palmer v. Palmer, 13 Gray, 326 ; Richmond, Petitioner, 2 Pick. 567. License may be granted after the expiration of the two years if a sale is necessary for the payment of debts proved before commis- sioners within the two years. Edmunds v. Rockwell, 125 Mass. 363. * Where an executor has paid debts of his testator beyond the amount of the personal assets, within the time limited by statute, he cannot afterwards be licensed to sell lands to reimburse himself, unless the estate remains as it was at the death of the testator, and his appli- cation is made in a reasonable time after his payment of the debts. Allen, Petitioner, 15 Mass. 58. But where the laud had neither been sold nor divided among the heirs, an administrator who had demands against his intestate and had made advances to the estate out of his own funds, but had ren- dered no account until after the time limiting the bringing of actions had expired, the delay having been occasioned in part by an attempt to collect a debt abroad, was licensed to sell. Richmond, Petitioner, 2 Pick. 567 ; and see Palmer ;;. Palmer, 13 Gray, 326 ; Munroe v. Holmes, 13 Allen, 109; Ames v. Jackson, 115 Mass. 511. * An executor died several years after his appointment without having paid the legacies given by the will. No demand had ever been made upon him by the legatees. An administrator with the will annexed was licensed to sell real estate for the payment of the lega- cies eight years after the probate of the will. Smith i'. W^ells, 134 Mass. 11. 254 TROCEEDINGS IN THE PROBATE COURTS. tinucs in force more than one year after it is granted, and sales must be made withiiv the year,^ except when a sale is made of land which was not in possession of the deceased at the time of his death, and is recovered by the executor or administrator. Land so recovered may be sold at any time within one year after possession is obtained.^ But it is not essential that the deed be delivered within the year, provided all the other proceedings are regular. Notice of the Time and Place of Sale must be given by notices posted thirty days at least before the sale, in some public place in the city or town in which the land lies, and in two adjoining cities or towns, if there are so many in the county, or, if the court granting the license so orders, by publishing the notice once in each of three successive weeks in a newspaper.^ Such notice is essential to the validity of the sale. The form of the notice is not material, but the time and place fixed for the sale should be distinctly stated. An error in this particular may invalidate the sale.* The conditions of the sale are not necessarily to be stated;^ but the notices should plainly identify the property, ^ and con- 1 This provision is limited to sales by executors, administrators, or guardians; it does not extend to sales by trustees. Boston Safe Deposit Co. V. Mixter, 146 Mass. 105. 2 n. L. c. 146, § 17; c. 148, § 8; Walker ;;. Fuller, 147 Mass. 491. s R. L. c. 146, § 14. * Where the sale was advertised to be on Friday, the 17th, whereas Friday was in fact the 16th, and the sale was made on the 16th, it was held void, although in the last publication, which was on the day of sale, the error was corrected. Welhnan v. Lawrence, 15 Mass. 226. Where the advertisement bore no date and recited the fact that license was granted " on the 5th day of April instant," and gave notice that the land would be sold "on the 22d day of said April," it was held that the notice was not so defective as to vacate the sale. Brigham v. Boston & Albany R. R. Co., 102 Mass. 14. 5 Paine v. Fox, 16 Mass. 129 ;Wyman v. Hooper, 2 Gray, 141. 8 N. E. Hospital v. Sohier, 115 Mass. 50. SALES OF LANDS BY EXECUTORS, ETC. 255 vey to the public all such information in regard to it as, in the judgment of the executor, is best calculated to promote the interests of the estate. It is important to executors, for their own protection, to preserve evidence of the fact that the notice was given as required by the terms of the license, and the statute provides a mode of perpetuating such evi- dence. An affidavit of the executor or administrator, or uf the person employed by him to give such notice, filed and recorded with a copy of the notice in the registry of probate, or such affidavit made by any person and filed and recorded with such copy by permission of the court upon satisfactory evidence that the notice was given as or- dered, sball be admitted as evidence of the time, place, and manner in which the notice was given.^ The fact may be proved by other evidence;^ but it may be difficult or impossible for the executor, after the lapse of years, in case a question is raised upon the covenants in his deed, to obtain such other evidence. In the absence of all evidence that such notice was given, there is no presumption within thirty years that it was given. ^ The affidavit, therefore, should be filed in all cases. Where the affidavit of the notice of the sale of real estate has not been filed in the probate court, and such affidavit cannot be obtained, the probate court may, upon petition of any person interested in real estate, the title to which may be affected thereby, setting forth the particular failure com- plained of and averring that the affidavit cannot now be obtained, order notice by publication to creditors of, and 1 R. L. c. 146, § 15. ^ The fact that notice has been given as ordered may be proved by the affidavit of persons other than the executor or administrator, or the person employed by him to give such notice, by permission of the probate court after satisfactory evidence. 11. L. c. 146, § 15. 8 Thomas v. Le Baron, 8 Met. 355. 256 PROCEEDINGS IN THE PROBATE COURTS. otliers interested in, the estate in settlement of which the failure complained of occurred. Upon return of such notice and after hearing, if the court is satisfied that notice was in fact given, it may make a decree that such notice was in fact given.^ Adjournment of the Sale. — If at the time appointed for the sale the executor or administrator deems it for the interest of all persons concerned that the sale be post- poned, he may adjourn it for any time not exceeding four- teen days. Notice of such adjournment must be given by a public declaration at the time and place first appointed for making the sale ; and if the adjournment is for more than one day, further notice of the sale must be given by posting or publishing, as time and circumstances may admit. ^ TJie Sale must be by public auction, unless otherwise ordered, and must be conducted with a view to insure an unrestrained and honest competition among bidders, and thus to procure the highest price for the land. When it appears by the petition of an executor or administrator for a license to sell the real estate of the deceased, and upon a hearing on such petition, that an advantageous offer for the purchase thereof has been previously made to the petitioner, and that the interest of all parties concerned will be best promoted by an acceptance of such offer, the court having jurisdiction of such petition may authorize a sale and convey- ance at private sale, in accordance with such offer, or upon such terms as may be adjudged best ; but an executor or administrator so authorized to sell real estate at private sale may notwithstanding sell such estate by public auction if he deems it best so to do. ^ The executor or administra- 1 R. L. c. 148, § 26. 2 R. L. c. 146, § 16. 3 Ibid. § 9. An agreement by an administrator or guardian to offer the real es- SALES OF LANDS BY EXECUTORS, ETC. 257 tor making the sale cannot properly become the purchaser, directly or indirectly, though if it is purchased by him under color of a sale to some other person, the sale is not absolutely void ; strangers to the property cannot call it in question, but it is voidable at the pleasure of the heirs of the de- ceased. ^ The heirs are not obliged to act jointly in avoid- ing the sale, but each one has an individual election. ^ If the land is subsequently sold to a bona fide purchaser who had no notice that it had been bought at the administrator's sale for the administrator's benefit, such purchaser will hold it as against the heirs, though the sale might have been avoided by a suit agaifist the first grantee, or one claim- ing under him, who had notice of the irregularity.^ The same rule applies in cases of sales of land by guardians. The essential particulars to which the purchaser ought to look, in order to protect himself against suits by the heirs, are specified in the statute. He is not called upon to inform himself as to every particular connected wnth the administrator's or guardian's proceedings. He is not expected, for instance, to inquire whether or not the admin- istrator obtained his license to sell by a false representation as to the condition of the estate. That is a matter in tate of his intestate or ward for sale by auction, and to sell the same to a particular individual for an agreed price, provided no higher sum should be bid, is valid. But such an agreement to sell the estate at a fixed price, without regai'd to the biddings, is void. Huut v. Frost, 4 Cush. .54. 1 Blood V. Hayman, 13 Met. 231 ; Jennison v. Hapgood, 7 Pick. 1 ; Harrington v. Brown, 5 Pick. 519; Wyman v. Hooper, 2 Gray, 141; Robbins v. Bates, 4 Cush. 104 ; Ives v. Ashley, 97 Mass. 198 ; Den- holm V. McKay, 148 Mass. 441, and cases cited. See Yeackel v. Litch- field, 13 Allen, 417; O'Reiley v. Bevington, 155 Mass. 72; Goodell v. Goodell, 173 Mass. 146. 2 Litchfield v. Cudworth, 15 Pick. 23. 3 Blood V. Hayman, 13 Met. 231 ; Wyman v. Hooper, 2 Gray, 141. 17 258 PEOCEEDINGS IN THE PROBATE COURTS. which the heirs are directly concerned, and they have a remedy against an unfaithful administrator on his bond. The statute provides that no sale of real estate made by an executor, administrator, guardian, or trustee, or other per- son by license of court, and no title under such a sale, shall be avoided for the reason that the deed was not delivered within one year after the license, or on account of any irregularity in the proceedings, if it appears, — Firsts That the license was granted by a court of compe- tent jurisdiction; Second, That the person licensed gave a bond which was approved by the judge of the probate court, if a bond was required upon the granting of the license ; ^ Third, That the notice of the time and place of sale was given according to the order of the court ; and. Fourth, That the property was sold by public auction in accordance with the notice, and is held by one who purchased it in good faith.^ If, however, in any par- 1 When a license or authority for the sale or mortgage of real es- tate is granted to an executor, administrator, guardian, or trustee, no special bond shall be required; but if the bond given by such execu- tor, administrator, guardian, or trustee, upon his appointment, ap- pears to the court to be insufficient, it shall, before granting such license or authority, require an additional bond containing the same conditions as are required in the bond to be given upon the appoint- ment of such executor, administrator, guardian, or trustee. R. L. c. 149, § 13. 2 R. L. c. 148, § 19. A sale by an executrix was held valid al- though she was described in the license, bond, and deed as " admin- istratrix on the estate." Cooper v. Robinson, 2 Cush. 184; Brigham V. Boston & Albany R. R. Co., 102 Mass. 14; Gregson v. Tnson, 153 Mass. 3-26. The statute does not prohibit a trustee from making a sale after the lapse of a year from the granting of his license, except by public auction. The word " trustee" seems to have been used in the statute inadvertently. Boston Safe Deposit Co. v. Mixter, 146 Mass. 105. A license granted after the claims against the estate have become SALES OF LANDS BY EXECUTOKS, ETC. 259 ticiilar the purcliaser is guilty of any collusion with the administrator, or has notice of any material defect in the proceedings, though it be in something into which he was not bound to inquire, he will not be protected by this pro- vision of the statute.^ " If the validity of a sale is drawn in question by a person who claims adversely to the title of the deceased or of the ward, or who claims under a title that is not derived from or through the deceased or the ward, the sale shall not be void on account of any irregularity in the proceedings, if the executor, administrator, guardian, or trustee was licensed to make the sale by a court of competent jurisdiction and executed and acknowledged in legal form a deed for the conveyance of the property." ^ The question at issue in such a suit is not whether the claimant's title is better than that of the administrator's vendee, but whether it is better than that of the deceased person or ward. If he shows a better title, he will recover, notwithstanding the conveyance by the administrator ; but if he has not a better title than that of the deceased person or ward, it is no concern of his whether the land goes to the heirs or to the person who holds under the administrator. The particular proceedings of the administrator or guardian are therefore not material in such a suit.^ barred by the special statute of limitations is void. Tarbell v. Parker, 106 Mass. 3i7. See also Gregson v. Tuson, 153 Mass. o26. A guardian who acts as auctioneer in selling land of his ward is not authorized to sign a memorandum in writing, to take the sale out of the statute of frauds. Bent v. Cobb, 9 Gray, 397. 1 Dickinson v. Durfee, 139 Mass. 232. Even where due notice is not given, a sale may be confirmed. Nott v. Sampson j\Ianufacturing Co., 142 Mass. 479. ' 2 R. L. c. 148, § 20. All objections in other respects are open. Walker v. Fuller, 147 Mass. 491. 3 Actions for the recovery of lands sold by executors and admiuis- 260 PROCEEDINGS IN THE PROBATE COURTS. Ev^ery person licensed to sell lands is required, upon application to the probate court by an heir, creditor, ward, or other person interested in the estate, to make answer upon oath to all matters touchinj^ his exercise and fulfilment of the license, as fully as he is liable to account and be examined relative to personal property. If, in re- lation to the exercise of such license or the sale under it, there is any neglect or misconduct in his proceedings by which a person interested in the estate suffers damage, such interested person may recover compensation there- for on the probate bond or otherwise as the case may require.^ The Deed. — In his deed to the purchaser of the real estate, the executor, administrator, or guardian covenants with his grantee that, in making the sale, he was duly authorized by the court ; that he has complied with the order of the court by giving the bond required by law, and by giving notice of the time and place of the sale ; and that he has in all things observed the rules and di- rections of law relative thereto. The date of the decree of the court granting the license should also be stated in the deed.^ trators must be commenced within five years after the sale; and for lands sold by guardians, within five years after the termination of the guardianship ; except that persons out of the estate or under legal disability to sue at the time when the right of action first accrues, may commence an action within five years after the removal of the disa- bility or their return to the state. No entry, unless by judgment of law, can be made upon the land sold, with a view to avoid the sale, unless within the time of limitation. R. L. c. 148, § 22. A remain- der-man, during the continuance of the life estate, is under legal disability within the meaning of the statute. Jewett v. Jewett, 10 Gray, 31. 1 R. L. c. 148, § 11. * An administrator's deed is not rendered invalid by a misrecital SALES OF LANDS BY EXECUTORS, ETC. 261 The executor or other person selling land under license is not required b}^ any duty of his office to enter into a personal covenant for the absolute perfection of the title which he undertakes to convey, or for the validity of the conveyance beyond his own acts. He is at liberty to do so, if he chooses thus to excite the confidence of pui*- chasers and enlarge the proceeds of the sale ; and he may engage his own credit collaterally in the conveyance. l>ut such covenant, although expressed to be made in his offi- cial capacity, is necessarily a personal covenant, for the breach of which he is personally liable.^ In every sale of the real estate of a deceased person or of a ward by an executor, administrator, or guardian, the surplus of the proceeds remaining on the final settlement of the accounts shall be considered as real estate, and shall be disposed of to the same persons and in the same proportions to whom and in which the real estate if not sold would have descended or been disposed of by the laws of this commonwealth. ^ of the time when the license was granted, if it also contains a recital of other facts which show that the sale was made under the true license. Thomas i\ LeBaron, 8 Met. 355. The deed need not state the reason for granting the license. Sowle v. Sowle, 10 Pick. 376. 1 Sumner v. Williams, 8 Mass. 201; Chilson v. Adams, 6 Gray, 364. If there should be a surplus after a sale for the payment of debts, it is to be distributed like real estate. Hovey v. Dary, 154 Mass. 11. An administrator who recovers judgment as such, and levies execution on land, holds the legal estate in the land to the use of the heirs of his intestate; and if he sells and conveys it without having obtained license to do so, the conveyance can be avoided only by those for whose use he was seised, and if they receive the proceeds of the sale, they thereby confirm the sale. Thomas v. LeBaron, 10 Met. 403. 2 R. L. c. 148, § 9; Hovey r. Dary, 154 Mass. 11. An administra- tor authorized by the probate court to sell real estate to pay the debts of the intestate under a license to sell " the whole of the estate, or 262 PROCEEDINGS IN THE PROBATE COURTS. SALES BY FOREIGN EXECUTORS AND ADMINISTRATORS, " An executor or administrator appointed in another state or in a foreign country on the estate of a person who was not at the time of his death a resident of this com- monwealth and upon whose estate administration has not heen granted in this commonwealth, duly qualified and acting, may file an authenticated copy of the record of his appointment and of his bond in the probate court for any county in which there is real property of the deceased ; and such executor or administrator, after such notice to the treasurer and receiver-general, creditors, and all per- sons interested as the court may order, may be licensed to sell said real property or an undivided interest in real property in such manner and upon such notice as the court orders. But such license shall not be granted unless the court finds that the whole of the real property of the deceased in this commonwealth does not exceed "fifteen hundred dollars in value, that six months have expired since the death of the deceased, that the executor or ad- ministrator has given a sufficient bond and will be liable to account for the proceeds of the sale in the state or country in which he was appointed, and that no creditor or other person interested will be prejudiced thereby. The net proceeds of such sale, after deducting the expenses thereof, and after the payment and satisfaction of all such part thereof as may appear to be most for the interest of all con- cerned," cannot be charged as trustee for money received from the sale before the sale has taken place ; because if he should decide to sell only enough to pay the debts, the remainder would descend to the heirs, and would not be affected by the trustee process ; while if the heirs should advance money to pay the debts, rather than to have their real estate sold, no sale would be likely to be made. Beverstock r. Brown, 157 Mass. 565. SALES OF LANDS BY GUARDIANS. 263 claims against said estate in this commonwealth, may be taken by said foreign executor or administrator out of this commonwealth to be accounted for in the court in which he received his appointment." ^ Every foreign executor or administrator licensed to sell real estate must give notice of the time and place of sale, and otherwise proceed as is prescribed for an administra- tor appointed here when making such sale ; and the evi- dence of such notice may be perpetuated in the same manner.2 SALES BY GUARDIANS. For the Payment of Debts. — When the personal estate in the hands of a guardian is insufficient to pay all the debts of the ward, with the charges of managing his estate, the guardian may be licensed to sell the ward's real estate for that purpose, by the probate court for the county in which he is appointed, or by the supreme judicial court, or superior court in any county. ^ The guardian must proceed by petition, and the petition may be sub- stantially in the same form as that of an executor or administrator who applies for leave to sell real estate for the payment of debts. * It must appear that a necessity exists for the sale proposed. If it is represented in the petition and appears necessary to sell some part of the real estate of the ward, and that by such partial sale the residue of the estate, or of some specific piece or part thereof, would be greatly injured, the 1 R. L. c. 146, § 30. 2 Ibid, § 33. 8 The legislature may license the sale of the real estate of minors, notwithstanding they have delegated the same power to the judicial courts. Rice v. Parkman, 16 Mass. 326; Forster y. Forster, 129 Mass. 564, and cases cited. 4 R. L. c. 146, § 5. 264 PROCEEDINGS IN THE PROBATE COURTS. court may license a sale of the whole of the estate, or of such part thereof as may appear best. ^ For Maintenance or Investment, — When the income of a ward's estate is insufficient to maintain him and his family, or when it appears that it would be for the benefit of a ward that his real estate or any part thereof, or any standing or growing wood thereon, should be sold, and the proceeds put out at interest or invested in some productive stock, his guardian may be licensed to sell the same. When standing or growing wood is so sold, the guardian may grant to the purchaser the privilege of entering upon the land and cutting and carrying away such wood within such time as tlie guardian may allow. ^ The guardian may be licensed to sell the ward's estate of homestead. ^ A father is bound, to the extent of his ability, to support his minor child ; but if the minor's property is sufficient for his maintenance and education in a more expensive manner than his father can reasonably afford, regard being had to the situation of the father's family, and to all the circumstances of the case, the expenses of the mainte- nance and education of such child may be defrayed out of his own property, in whole or in part, as shall be deemed reasonable by the probate court ; and when necessary, his real estate may be sold for that purpose by the guardian under license. * To obtain such license, the guardian must present to the court a petition setting forth the condition of the estate 1 R. L. c. 146, § 7. As a general rule, executors, admiuistrators, and guardians can be licensed to sell only at public auction. Boston Safe Deposit Co. v. Mixter, 146 Mass. 105. 2 R. L. c. 146, § 19; Boston Safe Deposit Co. v. Mixter, supra. » R. L. c. 131, § 10. * R. L. c. 145, § 29. SALES OF LANDS BY GUARDIANS. 265 and the facts and circumstances upon which his applica- tion is founded. If after a full examination, on the oath of the petitioner or otherwise, it appears either that it is necessary, or that it would be for the benefit of the ward, that the sale petitioned for should be made, the court may graut a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward and his fam- ily, or that the proceeds may be put out and invested. ^ The property of a minor may be sold for the purpose of investing the proceeds upon the petition of the guardian or of any friend of the minor ; and the court may autborize the guardian or any other suitable person to sell and con- vey the property. The statute provisions in relation to the licenses and sales on the petitions of guardians apply to licenses and sales on the petition of a friend of the minor, except that, upon a sale by a person other than the guardian, the proceeds are to be forthwith paid to the guardian upon his giving to the judge of probate a bond, with sufficient sureties, conditioned to account for such proceeds. If there is no guardian, the proceeds are required to be placed on interest or invested by the person authorized to sell the estate, in like manner as is required of a guardian. ^ No license can be granted to a guardian until after notice, by public advertisement or otherwise, as the court shall order, to the next of kin of the ward, to all his heirs apparent or presumptive, and to all persons interested in the estate ; but such notice may be dispensed with, if all persons interested signify in writing their assent to the sale. All who are next of kin, and heirs apparent or pre- sumptive of the ward, are considered by the statute as 1 R. L. c. 146, § 20. 2 Ibid. §§ 23, 24. 266 PROCEEDINGS IN THE PROBATE COURTS. interested in the estate, and may appear as such and answer to the petition of the guardian.^ No license to sell can be granted to the guardian of an insane person or spendthrift unless seven days' notice of the petition therefor has been given to the overseers of the poor of the place where the ward is an inhabitant or resides. The notice may be served upon any one of the overseers. This provision does not apply when the ward resides out of this state.^ Guardians are required to give notice of the time and place of sale, and otherwise proceed as prescribed in like cases for executors and administrators except when licensed to sell fractional shares at private sale ; and the evidence of giving notice may be perpetuated in the same manner.^ If the sale is made for the maintenance of the ward and his family, the guardian is required to apply the proceeds, so far as necessary for that purpose, and to put out the residue at interest, or invest it in the best manner in his power, until the capital is wanted for such maintenance ; in which case the capital may be used for that purpose in like manner as if it had been personal estate.^ If the estate is sold in order to put out on interest or ^ R. L. c. 146, § 11 ; c. 162, § 45 ; Dexter v. Cotting, 149 Mass. 92 ; Browne v. Doolittle, 151 Mass. 595. 2 R. L. c. 146, § 13. ' Ibid. §§ 14, 15. A sale of a minor's real estate by a guar- dian is void if no deed thereof is delivered or executed until the expiration of a year from the date of the license, and no money there- for has been paid to the guardian. Richmond v. Gray, 3 Allen, 25. The guardian of a spendthrift will be held responsible for all losses arising in consequence of the disregard of the terms of his license, and the ward's assent to his acts will not exonerate him. Harding v. Lamed, 4 Allen, 426. * R. L. c. 146, § 21. SALES OF LANDS BY GUARDIANS. 267 invest the proceeds, the guardian is required to make the investment according to his best judgment, or in pursuance of any order that may be made relating thereto by the court. 1 He has no right to apply the proceeds towards the support of the ward unless a necessity therefor arises after the granting of the license. ^ When the guardian of a married man is licensed to sell real estate of his ward, the wife of the ward may join with the guardian in the conveyance, and thereby release her right of dower and the estate or right of homestead, in like manner as she might have done by joining in a con- veyance made by her husband if he had been under no legal disability.^ If the wife so releases her right of dower or an estate of homestead, or so conveys her own estate, the proceeds of the sale may be so invested and disposed of as to secure to her, and to the minor children of the owner if it is an estate of homestead, the same rights in the principal and the income thereof as she or they would have had therein if it had not been sold. An agreement made between her and the guardian for securing and disposing of the pro- ceeds, or of any part thereof, for the purpose aforesaid, if approved by the probate court for the county in which the guardian was appointed, or by the supreme court of probate upon appeal, or, in default of an agreement be- tween her and the guardian approved as aforesaid, an order therefor made by the probate court shall be valid and binding on all persons interested in the granted property or in said proceeds, and may be enforced by the court or by an action at law. * 1 R. L. c. 146, § 22. 2 Strong v. Moe, 8 Allen, 125. 8 R. L. c. 153, § 15. * Ibid. § 17. A sale to the attorney of the guardian who recon- 268 TROCEEDINGS IN THE PROBATE COURTS. If the guardian of an insane wife is authorized under the provisions of section 19 of chapter 153 of the Revised Laws to release the dower of his ward or an estate of homestead, and the probate court deems it proper that some portion of the proceeds of such real property, or of a sum loaned on mortgage thereof, should be reserved for the use of the ward, the court may order that in the case of dower, a certain sum not exceeding one-third of the net amount of such proceeds, exclusive of any encumbrance then existing on the estate, shall be paid over to such guardian to be invested and held by him for the benefit of the wife if she survives her husband, the income of such sum to be en- joyed by the husband during the life of his wife, or until otherwise ordered by the court upon good cause shown ; and the principal to be his, and to be paid over to him, if he survives her; in case an estate of homestead is released, a certain sum, not exceeding eight hundred dollars, shall be set aside and paid over to such guardian to be invested in a homestead, and held by him for the benefit of his ward if she survives her husband ; the rent or use thereof to be received and enjoyed by the husband during the life of his wife, or until otherwise ordered by the court upon good cause shown ; and the homestead to be his, and to be conveyed to him to said guardian, if he survives her. ^ The husband or wife of an insane person who desires to convey his or her real property, absolutely or by w^ay of mortgage, may file a petition in the probate court describ- ing such real property and praying that the dower of the wife or an estate of homestead or a tenancy by the curtesy at common law or by statute of the husband therein may veyed to the guardian, and no money passed between them, may be voided by the persons interested. Walker v. Walker, 101 Mass. 169. 1 R. L. c. 153, §§ 21, 22. SALES OF LANDS BY GUARDIANS. 269 be released, setting forth the facts and reasons why the prayer of the petition should be granted. The court may, after notice and a hearing, by a decree authorize the guardian of the insane person to make such release by joining in any deed or deeds, mortgage or mortgages of the whole or a part of said real property which is or are made within five years after said decree either by the hus- band or wife of the insane person or by a trustee for such husband or wife. ^ When the husband or wife of an insane person has con- veyed real property in trust without a power of revocation, and makes a provision in such conveyance for the insane husband or wife, respectively, which the probate court, upon petition, after notice and a hearing, finds is suffi- cient in lieu of curtesy or dower, the trustee may con- vey such real property free from all right of curtesy or dower. ^ When a guardian is licensed to sell the interest of the ward in any real estate of his wife, the wife may join with the guardian in the conveyance, and thereby sell and con- vey all her estate and interest in the granted property in like manner as she might have done by a conveyance thereof made jointly with her husband, if he had been under no legal disability. ^ When a person under guardianship, having a guardian appointed within the commonwealth, removes or resides out of the commonwealth, such guardian may sell the real estate of his ward, and transfer and pay over the whole or any part of the proceeds, and the whole or any part of the ward's personal estate, to a guardian, trustee, or committee appointed by competent authority in the state or country within which the ward resides, upon such terms and in 1 K. L. c. 153, § 19. 2 jbid. § 23. " Ibid. § 16. 270 PROCEEDINGS IN THE PROBATE COURTS. such manner as the probate court for any county in which any such real or personal estate is found may decree upon petition filed therefor, and after notice given to all parties interested. ^ BALE OF REAL ESTATE AT PRIVATE SALE. When it appears, by the petition of the guardian for a license to sell the real estate of his ward, and upon the hearing thereon, that an advantageous offer has been pre- viously made to the guardian fur the purchase thereof, and that the interest of all parties concerned will be best pro- moted by an acceptance of such offer, the court may au- thorize the sale, at private sale in accordance with the offer, or upon such terms as may be adjudged best, with or with- out public notice. The guardian so licensed may sell at public auction, if he deems it best so to do.^ SALES BY FOREIGN GUARDIANS. " If a minor, insane person, or spendthrift, who resides out of this commonwealth, is under guardianship in the state or country in which he resides, and has no guardian appointed in this commonwealth, the foreign guardian may file an authenticated copy of his appointment in the pro- bate court for any county in which there is real prop- erty of the ward ; after which, upon petition, he may be licensed to sell, mortgage, or lease the real property of the ward in any county, for the purposes, in the manner, and upon the terms provided in this chapter (R. L. c. 147) for a guardian appointed in this commonwealth, except as hereinafter provided. " If the court finds that such foreign guardian has given 1 R. L. c. 146, § 25. 2 Ibid. § 9 ; Boston Safe Deposit Co. v. Mixter, 146 Mass. 105. SALES OF LANDS BY PQBLIC ADMINISTKATOKS. 271 bond with sufficient surety or sureties, in the state or coun- try in which he was appointed, to account for the proceeds of such sale, mortgage, or lease, and if an authenticated copy of such bond is filed in said court, no further bond shall be required ; otherwise, before such license is granted, he shall give bond, payable to the judge of said court and his successors, with sufficient surety or sureties, and with condition to account for and dispose of said proceeds according to law." ^ All proceedings in probate courts respecting sales by a foreign executor, administrator, or guardian are had in the county in which an authenticated copy of his appoint- ment is first filed. ^ SALES BY PUBLIC ADMINISTEATOKS. Public administrators may be licensed to sell real estate for the payment of debts. The petition for such sale and the proceedings thereon, and under the license, are the same as are prescribed for other administrators.^ Sales by public administrators are not limited to cases where the sales are necessary for the payment of debts. The statute provides that after three years from the date of letters of administration to a public administrator, the probate court may, if it appears to be for the interest of all concerned, authorize the administrator to sell the real estate of the deceased, although such sale is not necessary for the payment of debts. In such case the public admin- istrator proceeds in the same manner as is required of administrators when licensed to sell real estate for the payment of debts.* 1 R. L. c. 146, §§ 31, 32. « R. L. c. 148, § 7. 8 R. L. c. 138, § 10. •» R. L. c. 138, § 11. 272 PROCEEDINGS IN THE PKOBATE COURTS. RELEASE OF INTERESTS IN LAND BY EXECUTORS AND OTHERS. Executors, administrators, guardians, and trustees may be authorized by probate courts to release and discharge, upon such terms and conditions as may appear to be proper, a vested, contingent, or possible right or interest belonging to the persons or estates by them represented in or to real property, when such release or discharge appears to be for the benefit of such persons or estates.^ This provision does not apply to sales of the land itself, and has not any reference to sales of land by executors and administrators for the payment of debts and legacies, nor to sales by guardians for maintenance or investment. Leave to release the remote interests mentioned in the statute may be granted, when it appears to be for the benefit of the parties interested, whether the proceeds are necessary for the payment of debts and legacies or not. The person applying for leave to release such an interest should state in his petition the names and residences of all persons interested, and fully describe the nature of the interest to be released. The same notice of the petition must be given as is required in cases of sale for the pay- ment of debts. When leave is granted, the court directs the manner in which the release shall be made. MORTGAGE OP REAL ESTATE BY EXECUTORS AND ADMINISTRATORS. The probate court having jurisdiction of the estate of a deceased person may, on petition and after notice to all persons interested, if upon a hearing it appears to be for the benefit of such estate, authorize an executor, adminis- 1 R. L. c. 148, § 4. MORTGAaE OF LANDS BY EXECUTOES, ETC. 273 trator with the will annexed, or administrator to mortgage atiy real estate of the testator for the purpose of paying debts, legacies, or charges of administration, or for the purpose of paying an existing lien or mortgage on the estate of the testator ; or it may authorize such executor or administrator to make an agreement for the extension or renewal of such an existing mortgage. The petition must set forth a description of the estate to be mortgaged, the amount of money necessary to be raised, and the purposes for which the money is required. The decree of the court fixes the amount for which the mortgage may be given and the rate of interest to be paid, and may order the whole or any part of the money secured by the mortgage to be paid from time to time out of the income of the premises mortgaged.^ MORTGAGE OP REAL ESTATE BY GUARDIANS. The probate court may, on the petition of a guardian, and if after due notice and hearing thereon it appears to be necessary or expedient, authorize the guardian to mort- gage any real estate of his ward. The guardian must set forth in his petition a description of the estate to be mort- gaged, and the amount of money necessary to be raised. The amount for which the mortgage is to be given is fixed by the decree of the court.^ MORTGAGE OF REAL ESTATE BY TRUSTEES. The court having jurisdiction of a trust created by a written instrument may, on petition and after notice to 1 R. L. c. 14G, §§ 26, 28. 2 Ibid. §§ 27, 28. A guardian of a ward who has a life interest in the real estate, with an absolute and unrestricted right to convey the fee, can mortgage the estate in fee. Kent v. Morrison, 153 Mass. 137. 18 274 PROCEEDINGS IN THE PROBATE COURTS. all persons interested, if upon a hearing it appears to be for tlie benefit of the trust estate, authorize trustees to mortgage any real estate held by them in trust, for the purpose of paying sums assessed on their trust estate for betterments, or the expense of repairs and improvements on such estate made necessary by such betterments, or by the lawful taking of such estate or of a part thereof by a city or town ; for the purpose of paying the expense of erecting, altering, completing, repairing, or improving a building on such estate ; or for the purpose of paying the expense of other improvements of a permanent nature made or to be made upon such estate ; or for the purpose of paying an existing lien or mortgage on such trust estate or on a part thereof ; or it may authorize such trustees to make an agreement for the extension or renewal of such existing mortgage.^ The petition shall in such case set forth a description of tlie estate to be mortgaged, the amount of money neces- sary to be raised, and the purposes for which such money is required, and, if made to a probate court, sliall be made in the county where the trustees were appointed, if the trust was created by will, or, if it was not so created, then in the county in which the estate or some part of the estate which is the subject of the petition is situated. The decree of the court upon such petition shall fix the amount for which the mortgage may be given, and the rate of interest which may be paid thereon, and may order the interest and the whole or any part of the money secured by the mortgage to be paid from time to time out of the income of the premises mortgaged. ^ " If the sale and conveyance, transfer or exchange of any real or personal property held in trust, or the partition of 1 R. L. c. 147, § 18. « Ibid. § 19. SALES OF LANDS BY EXECUTORS, ETC. 275 any such real property held in common and undivided, appears to be necessary or expedient, the supreme judicial court, the superior court, or the probate court, may, upon petition of a trustee or other party interested, after notice and other proceedings as hereinafter required, order such sale and conveyance, transfer, exchange, or partition to be made, and the investment, re-investment, and application of the proceeds of such sale in such manner as will best effect the objects of the trust." ^ If it appears to the court, upon proceedings under the preceding section (R, L, c. 147, § 15), that the estate which is the subject of the petition may be held in trust for, or that a remainder or contingent interest therein may be limited over to, persons not ascertained or not in being, notice shall be given in such manner as the court may order to all persons who are or may become interested in such estate, and to all persons whose issue, not then in being, may become so interested ; and the court shall in every such case appoint a suitable person to appear and act therein as the next friend of all persons not ascertained or not in being, who are or may become interested in such estate, the cost of whose appearance, including the compensation of his counsel, shall be determined by the court, and paid, as it may order, either out of the trust estate or by the peti- tioner, in which latter case execution may issue therefor in the name of the next friend ; and a conveyance or trans- fer made after such notice and proceedings shall be con- clusive upon all persons, whether in being or not in being, who are or may become interested in the trust, or to whom a remainder or contiugent interest in the trust estate may be limited over. ^ 1 R. L. c. 147, § 15. 2 Ibid. § 16 ; Boston Safe Deposit Co. v. Mixter, 146 Mass. 100. 276 PROCEEDINGS IN THE PKOBATE COURTS. SALE AND MORTGAGE OF ESTATES SUBJECT TO REMAINDERS. " If land is subject to a contingent remainder, executory- devise, or power of appointment, the probate court for the county in which such land is situated, may, upon the petition of any person who has an estate in possession of such land, and after notice and other proceedings as herein- after required, appoint one or more trustees, and authorize him or them to sell and convey such land or any part thereof in fee simple, if such sale and conveyance appears to the court to be necessary or expedient ; or to mortgage the same, either with or without a power of sale, for such an amount, on such terms, and for such purposes as may seem to the court judicious or expedient ; and such conveyance or mortgage shall be valid and binding upon all parties." ^ " If land is subject to a vested remainder or reversion, the probate court for the county in which such land is sit- uated may, upon the petition of any person who has either an estate in possession or the remainder or reversion in such land, and after notice and other proceedings as here- inafter required, appoint one or more trustees and author- ize him or them to sell and convey such land or any part thereof, in fee simple, if such sale and conveyance appear to the court to be necessary or expedient, and such con- veyance shall be valid and binding upon all persons." ^ " Notice of a petition, under the provisions of tlie two preceding sections (R. L. c. 127, §§ 28, 29), shall be given, in such manner as the court may order, to all persons who are or may become interested in the real estate to which the petition relates, and to all persons whose issue, not in 1 R. L. c. 127, § 28; Whitcomb v. Taylor, 122 Mass. 243; Bamforth V. Bamforth, 123 Mass. 280. a R. L. c. 127, § 29. SALES OF LANDS BY EXECUTORS, ETC. 277 being, may become interested therein ; and the court shall of its own motion in every case appoint a suitable person to appear and act therein as the next friend of all minors, persons not ascertained, and persons not in being, who are or may become interested in such real estate ; and the provisions of section twenty-three and twenty-four of chapter one hundred and forty-five (of the Rev. Laws, as to appointment and compensation of guardian ad litem or next friend), which are not inconsistent herewith, shall apply in the case of such appointment." ^ A trustee who is appointed under the provisions of section twenty-eight or twenty-nine shall give bond in such form and for such an amount as the court appointing him may order ; and be shall receive and hold, invest or apply, the proceeds of any sale or mortgage made by him, for the benefit of the persons who would have been entitled to the real estate if such sale or mortgage had not been made ; and the probate court of any county in which any part of such land is situated shall have jurisdiction of all matters there- after arising in relation to such trust.^ A mortgage executed by an executor, administrator, guardian, or trustee, must set forth the fact that the same is executed by license of the court, and the date of such license. Every such mortgage may contain a power of sale.^ SALE OF LOTS IN CEMETERIES. Executors, administrators, guardians, and trustees may be authorized by probate courts, after notice to all persons interested or upon their assent thereto, to sell and convey or release, upon such terms and in such manner as said 1 R. L.c. 127, § 30. « Ibid. § 31. « R. L. c. 148, § 6. 278 PROCEEDINGS IN THE PROBATE COURTS. courts may order, lots in cemeteries belonging to the persons or estates by them represented.^ APPOINTMENT OF TRUSTEE TO CONVEY. When a person seised or possessed of real or personal estate, or of an interest therein, upon a trust, express or implied, is under the age of twenty-one years, insane, out of the commonwealth, or not amenable to the process of any court therein which has equity powers, and when in the opinion of the supreme judicial court, the superior court, or the probate court, it is fit that a sale should be made of such estate or of an interest therein, or that a conveyance or transfer should be made thereof in order to carry into effect the objects of the trust, the court may order such sale, conveyance, or transfer to be made, and may appoint some suitable person in the place of such trustee to sell, convey, or transfer the same in such man- ner as it may require. If a person, so seised or possessed of an estate, or entitled thereto upon a trust, is within the jurisdiction of the court, he or his guardian may be ordered to make such conveyances as the court orders.^ LEASES BY GUARDIAN OF WARD'S REAL PROPERTY. The probate court may, upon the petition of a guardian, setting forth a description of the real property of his ward, the reason why it is necessary or expedient to give a writ- ten lease thereof and the length of the term, if after notice and a hearing it appears to be necessary or expedient, authorize such guardian to give a written lease of the real property of his ward, and the decree of the court shall fix the term and the amount for which it may be leased.^ 1 R. L. c. 148, § 5. 2 R. L. c. 147, § 17. s r. l. c. 146, § 29. CHAPTER XV. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, GUARDIANS, AND TRUSTEES. Every executor, administrator, guardian, and every trustee who is required to give bond to the judge of a probate court, is required by law and by the condition of his bond to render an account relative to the estate in his hands at least once a year, and at such other times as shall be required by the court, until his trust is fulfilled ; but the court may, upon his application, excuse him from rendering an account in any year, if satisfied that it is not necessary or expedient that such account should be rendered.^ No final settlement of the account of any executor, administrator, or trustee shall be allowed unless such account shows, and the judge of the probate court finds, that all taxes on collateral legacies and successions imposed by the provisions of chapter 15 of the Revised Laws upon any property or interest therein belonging to the estate to be settled by said account have been paid. The treasurer of the commonwealth shall, within six months after the 1 R. L. c. 149, § 1. If an executor neglects to file an account within one year after his appointment, it is a breach of his bond, although a debt due from the testator to the executor and the burial expenses paid by him exceed in amount the assets, and no other claims are presented by creditors within two years. Forbes v. McHugh, 152 Mass. 412. The fact that the administrator is the executor and sole legatee of the estate under a will afterwards discovered, does not relieve him of the duty of making a proper settlement of his account as administra- tor. Bennett v. Woodman, 116 Mass. 518. An administrator has the right to file and settle the account of his intestate as administrator c?e bonis non of an estate in the probate court before he can be called upon to deliver all of the assets in his hands belonging to the estate. Foster v. Bailey, 157 Mass. 160. 280 PROCEEDINGS IN THE PROBATE COURTS. tax shall be due, sue in his own name for the recovery of all taxes unpaid, and shall also bring suit when the judge of probate shall certify to him that a final account of any executor, administrator, or trustee has been filed in such probate court, and that the final settlement of such estate is delayed because of the non-payment of such tax, and such certificate shall issue upon the application of any heir, legatee, or any person interested ; provided, however, that the probate court may extend the time of payment of said tax whenever the circumstances require.^ Special administrators are held to account whenever required by the probate court.^ "When property is held in trust under a written instru- ment or statute, and there is no adequate provision for an account of the management of the trust estate, the probate court in a county where land so held is situate, or where a person interested in the trust resides, may, on applica- tion of any person interested, require the trustee to render an account on oath ; and the court first so applied to will thereafter have exclusive original jurisdiction therein. An executor, administrator, guardian, or trustee whose appointment is invalid by reason of any irregularity or want of jurisdiction in the court appointing him, is held to account for all property that has come to his hands, and the bond given by him in pursuance of such appointment is valid and binding on him and his sureties. Payments made by or to liim may, with the approval of the probate court, be ratified and confirmed by the executor, administrator, guardian, or trustee wiio may afterwards be legally appointed.^ It is the practice, to some extent, of executors and other trust officers appointed by the probate court to settle their accounts with the parties interested without rendering a final account to the court, and in a majority of cases no 1 R. L. c. 15, §§ 19, 20. 2 R. L, c. 149, § 1, cl. 3. » Ibid. § 25. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 281 inconvenience results from that mode of proceeding. Such a settlement, however, between the administrator and the heirs, or between the guardian and his ward, is not a com- pliance with the condition of his bond ; and he may be cited, on the petition of persons interested, to render his account in the probate court, notwithstanding such settle- ment. He may be held to account, although he produces the receipts of all the heirs acknowledging the payment of their distributive shares in full.^ Such receipts are evidence for the consideration of the probate court in determining whether a further settlement shall be ordered or not ; but they do not estop the heirs or the ward from calling on the administrator or the guardian to settle his accounts in court. When one of two or more joint executors or administra- tors dies, or is removed before the administration is com- pleted, the account is rendered by the other or otliers.^ When a sole executor or other trust officer dies, not having settled his account, it should be rendered by his executor or administrator ; 2 and it has been held that it may be settled by the administrator of one of his sureties.* 1 Bard v. Wood, 3 Met. 74; Clark r. Clay, 11 Foster (N. H.), 393; Wing V. Wheeler, 69 Maine, 282. Notwithstanding the settlement and receipt, the guardian is bound to answer on oath proper interrogatories respecting his account and the items thereof, and the ward may in- troduce evidence touching the execution and validity of the receipt. Wade V. Lobdell, 4 Gush. 511 ; Blake v. Pegram, 101 Mass. 592. A guardian who has furnished necessaries to his ward, even if he had no property of the ward in his hands, cannot maintain an action at law against the ward until the guardianship has been discharged, and the amount due him ascertained by a settlement of his accounts in the probate court. Smith v. Philbrick, 2 N. H. 395; JNIcLane v. Gun an, 133 Mass. 531 ; Thorndike v. Hinckley, 155 Mass. 265, and cases cited. 2 R. L. c. 139, § 11. * The guardian's administrator may be cited for that purpose on petition of the ward. Gregg i;. Gregg, 15 N. H. 190. * Curtis V. Bailey, 1 Pick. 198. 282 PROCEEDINGS IN THE PROBATE COURTS. PUBLIC ADMINISTRATORS. Every public administrator shall upon the appointment and qualification of an executor or administrator as his successor, surrender into the probate court his letters of administration in such case, with an account under oath of his doings therein ; and upon a just settlement of such account, shall pay over and deliver to his successor all sums of money remaining in his hands, and all property, effects, and credits of the deceased not then administered.^ Every public administrator who gives a general bond sliall, at the probate court first held in his county after the first day of January in each year, render an account under oath of all balances of estates then remaining in his hands ; and the court may at any time require addi- tional sureties to be furnished upon such administrator's bond, or may require a new bond to be given .^ When an estate has been fully administered by a public administrator, he shall deposit the balance of such estate remaining in his hands with the treasurer of the com- monwealth, who shall receive and hold it for the benefit of those who may have lawful claims thereon.^ The probate courts shall require every public adminis- trator in their respective counties to render an account of his proceedings under any letters of administration at least once in each year until the trust has been fulfilled. And when, upon a final settlement of an estate, it appears that moneys remain in the hands of such administrator which bylaw should have been deposited with the treasurer of the commonwealth, the court shall certify that fact and a statement of the amount so withheld to said treasurer, who, unless such deposit is made within one month after the 1 R. L. c. 138, § 5. 2 Ibid. § 8. 8 Ibid. § 12. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 283 receipt of such notice, shall cause the bond of the adminis- trator to be prosecuted for the recovery of sucli moneys.^ Wlien a public administrator neglects to return an in- ventory, to settle an account, or to perform any other duty incumbent on him in relation to an estate, and there appears to be no heir entitled to such estate, the district attorney for the disti-ict within which the administrator received his letters shall, in behalf of the commonwealth, prosecute all suits and do all acts necessary and proper to insure a prompt and faithful administration of the estate and the payment of the proceeds thereof into the treasury of the commonwealth ; and if no heir has, witliin two years after the granting of letters of administration, appeared and made claim in the probate court for his interest in such estate, it shall be pre- sumed that there is no such heir, and the burden of proving his existence shall be upon the public administrator.^ If the total property of an intestate wliich has come into the possession or control of a public administrator is of a value less than twenty dollars, unless the same is the balance of an estate received from a prior public administrator, he shall forthwith reduce all such property into money, not taking administration thereon, and shall deposit such money, first deducting his reasonable expenses and charges, with the treasurer of the commonwealth, who shall receive and hold it for the benefit of any persons who may have legal claims thereon. Such claims may be presented to the audi- tor of the commonwealth within one year from such payment to the treasurer, and the auditor shall examine such claims and allow such as may be proved to his satisfaction, and upon the expiration of the year shall forthwith certify the same to the governor and council for payment of the whole of the claims or such proportion thereof as the funds will allow.^ Every public administrator, upon making such deposit, 1 R. L. c. 138, § 13. 2 Ibid. § 17. s Ibid. § 18. 2S4 PROCEEDINGS IN THE PROBATE COURTS. shall file with the treasurer a true and particular account, under oath, of all his dealings, receipts, payments, and charges on account of the property from which the money so deposited proceeds, including the name of the intestate, if known to him, and the treasurer shall thereupon deliver to him a receipt for such money. And such deposit shall exempt the public administrator making it from all responsi- bility for or on account of the money so deposited.^ CITATION TO RENDER ACCOUNT. If the executor or other officer neglects or unreasonably delays the settlement of his account in the probate court, he may be cited for that purpose on the petition of any person interested in the estate concerning which the account is to be rendered. The petition should set forth the particulars in which the executor has been negligent, in accordance with the facts of the case. Upon such petition, tlie court will issue a citation to the delinquent party, which must be served in the manner directed by its terms. If, after being cited, he neglects to appear or to render his account, leave will be granted to bring a suit on his bond ; and he will be liable in like manner and to the same extent as an executor in his own wrong.^ If an executor or administrator neglects to render and settle his accounts in the probate court within six montlis after the final determination of the claims of creditors, or within such further time as the court may allow, and thereby delays a decree of distribution, such neglect shall be deemed unfaithful administration ; and he may be forthwith removed, and shall be liable in a suit on his bond for all damages occasioned by his default.^ 1 R. L. c. 139, § 19. 2 R. L. c. 150, § 16. 8 R. L. c. 142, § 26. Auditors may be appointed by the judge of probate to examine accounts filed in the probate court. R. L. c. 165, §§ 56, 60. ACCOUNTS OF EXECUTORS, ADMINISTEATOilS, ETC. 285 FORM OP ADMINISTRATION ACCOUNT. lu his account, the executor or administrator charges himself with the amount of assets that have come to his hands, and asks to be allowed for the amount of all debts paid by him, and the expenses of the administration. With the account, stated in this form, must be filed a schedule stating the names of all persons of whom he has received money, the sum received from each, and the time when each sum was received; and a second schedule, giving the several sums paid by him, the persons to whom, and the purpose for which each sum was paid. If the estate has been represented insolvent, the executor or administrator does not ask in his first account to be allowed any sura for the payment of debts owed by the deceased, he having no authority to pay the debts except under a decree of distribution issued by the court. He credits himself with the charges of administration, the amount of loss, if any, necessarily sustained by the estate in his hands, and with the amount of the allowance, if any, made by the court to the widow or minor children of the deceased. The balance, thus exhibited, remains in his hands until he is ordered by the court to distribute it among the creditors. ^ If the deceased insolvent had been a member of a co-partnership and died in possession of both partnership estate and separate estate, and both partnership and sepa- rate claims are proved against his estate, the adminis- ^ If an administrator who has received money belonging to the estate in another state under ancillary letters of administration accounts for it here, and a decree is rendered here that the amount so received is due the estate from the administrator, the decree will stand, unless appealed from. Brooks v. Tobiu, 135 Mass. 69. 286 PROCEEDINGS IN THE PROBATE COURTS. trator should so state his account as to exhibit the amount of the partnership estate in his hands distinct from the separate estate. The expenses of administration in such case are to be deducted from the whole amount received by the executor, and the net proceeds of the joint stock are appropriated to pay the creditors of the firm, and the net proceeds of the separate estate to pay the separate creditors ; the surplus, if any, of one fund being applied towards the liquidation of debts payable out of the other. WITH WHAT THE EXECUTOR OR ADMINISTRATOR IS CHARGEABLE, Every executor, administrator, guardian, and trustee shall be chargeable in his account with all the personal estate of the deceased which comes to his hands, and which is by law to be administered, although not included in the inventory ; also with all proceeds of real estate sold or mortgaged, and with all interest, profit, and income that come to his hands from the personal estate of the deceased.^ The first item with which the executor or administrator charges himself in the schedule annexed to his first account is the value of the personal estate as shown by the inventory. He should charge himself with the full amount of the appraisal of the personal property, whether he has disposed of it for more or less than that amount. If he has sold the personal estate for more than its appraised value, he next charges himself with the amount of the gain. After thus accounting for the personal property inven- toried, and for the gain, if any, on its sale, he charges 1 R. L. c. 150, § 5. ACCOUNTS OF EXECUTOliS, ADMINISTRATORS, ETC. 287 himself with all proceeds of real estate sold by him, for the payment of debts and legacies, with the proceeds of any personal estate not included in the inventory, and with all interest, profit, and income that may have come to his hands from the personal estate of the deceased. ^ 1 Manure taken from the barnyard of a homestead and piled on the land, though not broken up nor rotten, nor in a fit state for incor- poration with the soil, is part of the realty, and is not chargeable to the administrator as personal estate. Fay v. Muzzey, 13 Gray, 53. But he is chargeable with the value of manure when it is personal property, although he has spread it in the usual course of good hus- bandry on the land of the deceased, and has sold the land for payment of debts. Ibid. When the administrator of an insolvent estate sold real estate, under license of probate court, and the land sold was mortgaged, and the mortgage recorded, but was unknown to him or the purchaser at the time of the sale, it was held that he might apply the proceeds of the sale to the payment in full of the mortgage debt, and that he was chargeable in his account only for the balance of such proceeds. Church V. Savage, 7 Cush. 440. Money received by an administrator from the government of the United States, by means of a treaty with a foreign nation, as an in- demnity for property taken from tlie intestate by such foreign nation, is assets in the administrator's hands. Foster v. Fifield, 20 Pick. 67. When personal property attached by trustee process was assigned by the owner subject to the attachment, and the attachment was dis- solved by the owner's death, it was held that the property passed by the assignment, and was not assets in the administrator's hands. Coverdale v. Aldrich, 19 Pick. 391. Where an executor sold lands of the testator, and became himself a purchaser with two others, under an agreement to shaie equally in the profits of resale, he was held to account for one-third part of such profits. Jennison v. Hapgood, 10 Pick. 93. If, to prevent a sale of the real estate, the heirs furnish the execu- tor or administrator with money sufficient for the payment of all claims against the estate and the expense of administration, and thereby render any sale of the real estate unnecessary, the money so furnished by them is assets of the estate, to be accounted for by the administrator. Fay v. Taylor, 2 Gray, 159. Money found, after the death of a testatrix, in a secret drawer of a chest belonging to her, does not pass by a specific bequest of the chesti 288 TKOCEEDINGS IN THE PUOBATE COURTS. The executor or administrator is bound to exercise the same care and diligence in the management of the estate which men of intelligence and prudence employ in the conduct of their own affairs. He is not a guarantor, but he is held to account for a loss occasioned by his negli- gence. He may be liable for negligence even when he acts in good faith ;^ and he is chargeable with the value of property lost through his neglect, though it never came into his actual possession. ^ If property belonging to the but is a portion of the residuum of the personal estate, for which the executor is bound to account. Smith v. Jewett, 3 Chandler (N. H.), 5i;3. If an executor receive money for a deed of real estate made by the testator, but not delivered until after his death, he is bound to account for it. Loring v. Cunningham, 9 Cush. 87. Salary voted to a person after his decease, and paid to his executor, is assets of the estate, to be accounted for by the executor. Ibid. The amount of land damages paid for land taken for a railroad, after the death of the intestate belongs to the heirs, and not to the administrator, although the estate is insolvent, and the whole estate is afterwards sold by the administrator, under license, for the pay- ment of debts. Boynton v. P. & S. Railroad, 4 Cush. 467. Otherwise, if actually taken before the intestate's death. Moore v. Boston, 8 Cush. 274; Chapin v. Waters, 116 Mass. 147. If the testator had money or other property in his hands belonging to others, whether in trust or otherwise, and it has no ear-mark, and is not distinguishable from the mass of his property, the party owning it must come in as a general creditor of the estate, and the property is assets, to be accounted for by the executor. Trecothick v. Austin, 4 Mason. 29 \ Johnson v. Ames, 11 Pick. 181; Little r. Chadwick, 151 Mass. Ill, and cases cited 1 It is negligence for an executor to deliver a S1,000 United States bond worth .^1,"J0() in the market at the time in payment of a legacy of SI, 000. tliough the bond was appraised in the inventory at its face value. He must account for the premium and interest on it. Spauld- ing V. Wakefield, 53 Vt. 6G0. 2 Two turkeys belonging to the intestate wandered away, after his death, to a neighbor's hou.se, and there remained several months, when they were disposed of by the neighbor. They had never been in the administrator's possession, nor had he ever called for them. He was ACCOUNTS OF EXECUTOKS, ADMINISTRATOllS, ETC. 289 estate is stolen without his default or neglience, he is not chargeable. ^ He would not be liable for the loss of money ordered to charge himself with their value. Tuttle v. Robinson, 33 N, H. 104. ^ Executors placed United States coupon bonds in the vault of a bank for safe keeping, and the bank was robbed by burglars. They procured new bonds in place of those stolen by giving the government a bond of indemnity, and their agent, who was an employee in the treasury department, and was considered trustworthy, appropriated the bonds. Held, that the executors were not liable for the loss caused by the burglary, nor for the dishonesty of their agent. Carpenter v Carpenter, 12 R. I. 544. See Stevens v. Gage, 55 N. H. 175. An executor left securities in the custody of the testator's nephew to whom the testator had given them for safe keeping, and intrusted him with property of his own. The nephew appropriated the bonds. Held, that the executor was not liable for the loss. McCabe v. Fowler, 84 N. Y. 314. An executor who, before the death of his intestate, contracted with him for the purchase of real estate, entered into possession, and made payments on account of principal and interest of the purchase-money, has included in his inventory the amount of the agreed price and interest remaining unpaid, and to whom the heirs are ready to convey on payment thereof, is bound to charge himself with such amount in his administration account. Chenery v. Davis, 16 Gray, 89. If a surety on the bond of the administrator who is removed for failure to account is himself appointed administrator de bonis non of the estate, his liability as surety is a debt due the estate with which he should charge himself, although the amount has not been ascer- tained. Choate v. Thorndike, 138 Mass. 371. If the executor of the will of a member of a beneficiary association receives from the association the amount due on a benefit certificate issued to the member, he takes it not as executor, but in trust to pay it over to the person entitled thereto. American Legion of Honor v. Perry, 140 Mass. 580; Daniels v. Pratt, 143 Mass. 216, The settlement in the probate court of an administrator's account, showing that he has exhausted all the estate in paying the expenses of the late sickness, funeral, and administration, is a good defence to an action brought against the administrator on his bond, although he has suffered a judgment to be recovered against him before such settle- ment of his account. Fuller v. Connelly, 142 Mass. 227. If the assets of a partnership are in the possession of one of the 19 290 PROCEEDINGS IN THE PROBATE COURTS. deposited in his name as executor in a bank in good standing, but would be liable if the money was mingled with his own funds, and credited to him in his personal account. He may be charged with the amount of a debt due the estate if it remains uncollected through his neg- lect. ^ If, in his capacity as executor, he has received money not belonging to the estate, he must charge himself with it, unless he can show a liability to pay it over to one legally claiming it.^ If the executor or administrator continues the business in which the deceased was engaged at the time of his death, either at the request of the parties interested in the estate or under the directions of the will of his testator or the provisions of a copartnership agreement of the deceased, he must account for all profits of the business, and is not liable for losses.^ When an executor is by the express terms of the will of his testator, or by necessary implication, made a trustee of any part of the estate, he will be required to account for the trust fund in his capacity of executor, unless for greater convenience and with the assent of the probate court he opens a new account as trustee ; in which event he must give a new bond as trustee, and transfer to his partners at the time of his death, and are sold by his executor for less than their value, and the amount received is accounted for as assets of his estate, the surviving partners, on a bill in equity against the execu- tor in his capacity as executor, are entitled to recover from the estate only their proportion of the amount actually received and interest, •whatever rights they may have against the executor personally. Brad- ley r. Brigham, 144 Mass. 181. 1 Schultz V. Pulver, 11 Wend. 361; Caffrey v. Darby, 6 Ves. 488; Robinson v. Ring, 72 Me. 140. 2 Jennison v. Hapgood, 10 Pick. 104. 3 Poole V. Munday, 103 Mass. 174; Palmer v. Mitchell, 2 My. & K. 672; Willett v. Blandford, 1 Hare, 253. ACCOUNTS OF EXECUTORS, ADMINISTKATOKS, ETC. 291 account as trustee the property to be held and adminis- tered by him in that character, before his liability as executor will terminate.^ If he continues to hold the trust fund as executor, it is his duty to separate it from the mass of the testator's property and invest it in some secure and productive stock, or at interest on good security. And if in this respect he acts with strict fidelity and due diligence, he will not be responsible should any loss happen, either of principal or interest. ^ But the mere mental determination of an executor to appropriate prop- erty to himself as trustee is not such a setting apart as will cause a loss or depreciation of the trust fund to fall on the cestui que trust ; the executor, in such case, must account for the entire trust fund, and the amount due from him must be stated by making annual rests, adding the interest each year to the principal.^ If an administrator appointed in this commonwealth collects funds in another state of debtors residing there, he must account for them here, unless he has taken out letters of ancillary administration in such other state ; in that case, he will be held to account here only for the surplus remaining in his hands upon the settlement of the ancillary administration.* But money collected there of debtors residing here must be accounted for here.'^ An ancillary administrator appointed in this common- wealth must account to the court by which he was so appointed for all assets received by him under his ancil- lary appointment, but not for assets received by him as 1 Prior V. Talbot, 10 Cush. 1 ; Ricketson v. Merrill, 148 Mass. 76. 2 Dorr V. Wainwright, 13 Pick. 332; Brown v. Kelsey, 2 Cush. 248; Hubbard v. Lloyd, 6 Cush. 522. 3 Miller v. Congdon, 14 Gray, 114; Collins v. Collins, 140 Mass. 507. ^ Hooker v. Olrastead, 6 Pick. 481 ; Jennison v. Hapgood, 10 Pick. 77. 6 Ibid. 292 PROCEEDINGS IN THE PROBATE COURTS. principal administrator in the place of the principal administration. ^ Whe7i chargeable with Interest. — An executor or admin- istrator is not chargeable with interest on the money received by him in his official capacity unless he has made some profitable use of the money, or has been guilty of negligence in accounting for it.^ An administrator is not expected to invest any part of the money belonging to the estate ; nor is an executor, unless he is required to do so by the will of his testator. On the contrary, it is his duty to collect the assets and pay them over to the persons entitled to receive them as speedily as circumstances will allow. But if he has invested the money and received interest upon it, he must account for it ; and the fact that he has received interest, or has made use of the money in his own business, may be inferred from a long delay in settling his accounts, or his neglect to pay over balances after demand made upon him.^ But if the delay was without negligence on his part, he will not be chargeable with interest unless he has made profit of the funds.'* He is not to be charged with interest in any case from the date of his appointment, or of his receipt of the money. He is to be allowed a reasonable time to settle the estate, and the time proper to be allowed for that purpose must depend upon the circumstances of each case. No general rule would do justice in all cases. ^ When the adminis- J Fay V. Haven, 3 Met. 109. 2 Wyman v. Hubbard, 13 Mass. 232; Stearns v. Brown, 1 Pick. 530; Boynton v. Dyer, 18 Pick. 1; Dunlap v. Watson, 124 Mass. 305; White V. Ditson, 140 Mass. 351. 3 Wyman v. Hubbard, 13 Mass. 232 ; Forward v. Forward, 6 Allen, 494. * Lamb v. Lamb, 11 Pick. 374. 6 See Clarkson v. De Peyster, 2 Wend. 77; Schiffelin v. Stewart, 1 Johns. Ch. 620 ; Jennison v. Hapgood, 10 Pick. 77. ACCOUNTS OF EXECUTORS, ALMI^'ISTKATOKS, ETC. 293 trator employs the funds of the estate in trade, he is liable to be charged with compound interest, ^ and may be charged with the whole profits on the fund so employed.^ Income of the Real Estate. — The administrator has no official authority to collect the rents of real estate belong- ing to the estate of his intestate ; nor has the executor, unless authorized by the will of his testator. The real estate vests in the heirs or devisees immediately upon the death of the owner, and all rents that become due subsequent to his death belong to them. Even if the estate is insol- vent, they are entitled to the rents and profits until the land is sold, by license of court, for the payment of debts. ^ But rents collected by the executor or administrator to be applied, by agreement with the parties interested, to the payment of claims against the estate, thereby render- ing unnecessary a sale of the land, are personal assets, to be charged against the administrator in his account* If the real estate has been occupied by the executor or administrator, he may be required to account in the probate court to the heirs or devisees for the income thereof ; and if the parties do not agree on the sum to be allowed, it will be determined by three disinterested per- ^ Boynton v. Dyer, 18 Pick. 1 ; Robbiiis v. Hayward, 1 Pick. 52, note ; Schiffelin v. Stewart, 1 Johns. Ch 620. 2 Utica Ins Co. v. Lynch, 11 Paige, 520. If an executor mingles the assets of the estate with his own money, and afterwards fails, the parties entitled to the estate can come in and prove against tlie execu- tor's estate only on an equality witli bis creditors. Little v. Chadwick, 151 Mass. 109. 8 Gibson v. Farley, 16 IMass. 280; Boynton v. P. & S. Railroad, 4 Cu.sh. 469 ; Lobdell r. Hayes, 12 Gray, 237 ; Kimball v. Sumner, 62 Me. 305. * Stearns v. Stearns, 1 Pick. 1.59, Newcomb v. Stebbins, 9 jMet. 544 ; Choate v. Jacobs, 136 Mass. 299 ; Brigham v. Elwell, 145 Mass, 522 ; and cases cited. 294 PliOCEEDINGS IN THE PROBATE COURTS. suns, appointed by the court, whose award, when accepted by the court, will be linal.^ The executor miay be required to account in like manner for rents collected by him.^ The rents and income found to be due from the executor or administrator are not assets of the estate to be charged to him in his administration account, but belong to the heirs or devisees. If the executor or administrator has an interest in the real estate as heir or devisee which entitles him to possession, he is not held to account for the income in the probate court. ^ A special administrator, when authorized by the probate court to take charge of the real estate of his intestate, is chargeable with the rents. Debts due from the Executoi' or Administrator. — If the administrator is himself a debtor to the estate, the debt owed by him is regarded as assets of the estate, to be accounted for by him. He must charge himself with the amount of the debt, as if he had received it of any other person ; ^ and he is bound to answer upon oath as to all 1 R. L. c. 150, § 6; Choate v. Arrington, 116 Mass. 552; Choate v. Jacobs, 136 Mass. 299 ; Brigham v. Elwell, 145 Mass. 522 ; Cummings V. Watson, 149 Mass. 263. 2 Brooks V. Jackson, 125 Mass. 307. 8 Palmer v. Palmer, 13 Gray, 326; Almy v. Crape, 100 Mass. 218; Cummings v. Watson, supra. * Ipswich Manufacturing Co. v. Story, 5 Met. 310; Winship v. Bass, 12 Mass. 199; Stevens v. Gaylord, 11 Mass. 266; Tarbell v. Jewett, 129 Mass. 457. Debts due to the estate of a testator from the executor named in his will, and from a firm of which he is a member, are to be accounted for as assets ; although he and his firm were insolvent at the time when he accepted the trust, and although he has never charged them in his account, and an account has been allowed in which they were not included, but were mentioned as notes which it had been impossible to collect, and although he has resigned his trust, and an administrator de bonis non has been appointed in his place. Lelaud v. Felton, 1 Allen, 531. ACCOUNTS OF EXECUTORS, ADMINISTRATOES, ETC. 295 facts tending to show that he was indebted to the deceased, even as to facts that take the claim out of the operation of the statute of limitations, though it may be apparently barred by that statute. ^ The old rule, that a testator by making a debtor his executor thereby releases his debt, has never been in force in this state. The debt is assets in the executor's hands for which he and his sureties are liable. ^ WHAT IS ALLOWED TO THE EXECUTOR OR ADMINISTRATOR. The executor or administrator of a solvent estate is allowed to credit himself in his account with all sums of money paid by him in satisfaction of legal demands against the estate, but not with money paid on demands for which the estate was not liable.^ • Sigourney v. Wetherell, 6 Met. 553. 2 Ipswich Manufacturing Co. v. Story, 5 Met. 313; Winship v. Bass, 12 Mass. 199; Stevens v. Gaylord, 11 Mass. 267 ; Tarbell v. Jewett, 129 Mass. 457. 8 An administrator will not be allowed the amount paid by him on a promissory note made by the intestate for which there was no legal consideration. Phillips o. Frye, 14 Allen, 36. If the property of a corpoiation upon a final settlement of its affairs is not sufficient to pay the debts, and the administrator of a deceased member pays money as the intestate's contributory share to make good the deficit, — there being no legal obligation to make such payment, — he will not be allowed the amount so paid. Ripley v. Sampson, 10 Pick. 371. An executor has no authority to pay money to extinguish a claim of dower in land belonging to the estate of his testator. Forward v. Forward, 6 Allen, 494. An administrator is responsible for the misapplication of money paid in good faith and under the advice of counsel. Boulton v. Beard, 3 De G., M. & G. 608. Taxes paid by an administrator on lands in another state where he had not taken out administration were not allowed in his account, Jennison r. Hapgood, 10 Pick. 105. See Dunbar v. Tainter, 7 Cush 574; Rotch v. Morgan, 105 Mass. 426. 296 PROCEEDINGS IN THE PROBATE COURTS. The estate is not liable for money paid in pursuance of a promise, the consideration of which arises after the death of the testator or intestate. Upon such a promise the executor or administrator may be personally liable. Whether the amount is to be repaid to him from the estate is a question to be determined by the probate court, upon the settlement of his account. ^ It would be neces- sary for him to show, in support of his application for an allowance in such case, that the payment made by him was beneficial to the estate, or was made with the assent of the parties interested. An administrator may pay assessments upon shares in banks and other corporations which he holds as part of the assets of the estate, and will be allowed in his account for such payments, provided the assessments were legally laid and the payments were necessary to redeem the shares from a lien created by the assessment, and were beneficial 1 Kingman v. Soule, 132 Mass. 285; Luscomb v. Ballard, 5 Gray, 403; Sumner v. Williams, 8 Mass. 162 ; Davis v. French, 20 Me. 21. General expenses of administration incurred for the benefit of the whole estate are chargeable to capital, and not to income. Bridge v. Bridge, 146 Mass. 373. When judgment for a return in an action of replevin is rendered against an executor or administrator, the goods returned by him shall not be considered as assets in his hands; and if they have been in- cluded in the inventory, it shall be a sufficient discharge for the execu- tor or administrator to show that they have been returned in pursuance of such judgment. R. L. c. 172, § 4. Whenever personal property placed in the hands of a corporation or an individual as an accumulating fund for the future benefit of heirs or other persons has been duly assessed to such heirs or per- sons according to the provisions of clause 6, § 23, of chap. 12 of the Revised Laws, and the persons so taxed neglect to pay the tax for one year after it has been committed to the collector, the collector may, in his own name, maintain an action of contract therefor against said trustee, in like manner as for his own debt; and the amount thereof paid by said trustee may be allowed in his account as such trustee. R. L. c. 13, § 34. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 297 to the estate. And if he acted in good faith he would undoubtedly be protected, even if the shares should have subsequently fallen in value in his hands. ^ The executor or administrator will not be allowed in his account for debts paid by him after they had become barred by the statute limiting the time (two years) within which suits can be brought against executors and administrators who have given legal notice of their appointment. The executor's promise to pay a claim so barred cannot affect the estate. 2 But this limitation does not apply to debts due from the deceased to the executor or administrator, which may be allowed to him at any time in the settlement of his account, nor to advances made by him, in the course of administration, for the benefit of the estate.^ Where the administrator, within the two years, assumed liabilities in the adjustment of debts due from the estate, he was allowed the sums paid by him with interest, although the payments were not made until after the expiration of the two years.* It has been held in this state that an executor or administrator may revive by a new promise a claim barred by the general statute of limitations,^ and that such new promise will bind the estate in his hands. ^ He cannot, J Ripley v. Sampson, 10 Pick. 371. 2 Brown c. Anderson, lo Mass. 201 ; Dawes v. Shed, 1.5 Mass. 6; Emerson i'. Thompson, 16 Mass. 429; Waltham Bank v. Wright, 8 Allen, 121 ; Ames c. Jackson, 115 Mass. 508, and cases cited. 8 Dickinson v. Arms, 8 Pick. 394; Forward v. Forward, 6 Allen, 494; Munroe v. Holmes, 13 Allen, 109 ; Ames v. Jackson, supra. * Ames V. Jackson, supra. 5 Foster v. Starkey, 12 Cush. 324; Fisher v. Metcalf, 7 Allen, 209 ; Slattery v. Doyle, 180 Mass. 27. 6 Manson v. Felton, 13 Pick. 206; Emerson v. Thompson, 16 l\Iass. 429 ; Foster v. Starkey, supra. 298 PROCEEDINGS IN THE PROBATE COURTS. however, revive a claim held by himself. ^ There seems to be no good reason for allowing an executor or adminis- trator for payments made on debts barred by either statute of limitation. If the estate has been represented insolvent, the executor is not allowed in his first account for the payment of debts, he having no authority to make such payments except under a decree of distribution issued by the court. ^ He credits himself only with the expenses of the last sick- ness and funeral of the deceased, charges of administra- tion, the loss, if any, necessarily sustained by the estate in his hands, and with the amount of the allowances, if any, made by the court to the widow or minor children of the deceased. The balance thus exhibited remains in his hands until he is ordered by the court to distribute it among the creditors. Funeral Charges and Expenses of the Last Sickness. — The executor or administrator is allowed in his account all reasonable sums paid for funeral expenses. The amount to be allowed for such expenses must depend, in some degree, upon the condition of the estate. If the funeral was under the direction of the family of the deceased, and the estate is solvent, the sum asked for such charges is usually allowed ; but no extravagant expenses will be allowed as against the creditors of an insolvent estate.^ All expenses of the last sickness of 1 Richmond, petitioner, 2 Pick. 567; Grinnell v. Baxter, 17 Pick. 383. 2 He is not allowed for sums paid on debts during the first year of his administration, though paid without knowledge that the estate was insolvent; nor for personal property applied by him to repairs and improvements of the real estate, though so applied in executing an agreement of the intestate. Cobb v. Muzzey, 13 Gray, 57. • A reasonable sum expended for a burial lot and for a monument ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 299 the deceased paid by the administrator arc allowed in his account. ^ Charges of Administration. — Executors and adminis- trators are allowed their reasonable expenses incurred in the execution of their respective trusts, and such compen- sation for their services as the court in which their accounts are settled considers just and reasonable. ^ Under the head of expenses of administration are included all sums which have been paid by the executor may be allowed as part of the funeral expenses. R. L. c. 150, § 12. Such a provision in a will will not be void as a perpetuity. Green v. Hogan, 153 Mass. 466. A demand for mourning furnished to the widow and family of the deceased is not a funeral expense. Johnson v. Baker, 2 Carr. & Payne, 207; Griswold v. Chandler, 5 N. H. 492; Macknet's Executors v. Macknet, 24 N. J. Eq 296 But see Wood's Estate, 1 Ashmead, and Flintham's Appeal, 11 Serg. & R. 16. ^ A testator at a di.stance from home during his last sickness sent for his wife and heirs, but died before they arrived. The executor was allowed to charge in his account their expenses, which he had paid to them. Jennison v. Hapgood, 10 Pick. 88. Whenever a decedent appoints one or more executors or trustees, and in lieu of their allow- ance makes a bequest or devise of property to them which would otherwise be liable to the tax on collateral legacies, or appoints them his residuary legatees, and said bequests, devises, or residuary legacies exceed what would be a reasonable compensation for their services, such excess shall be liable to such tax, and the probate court having juris- diction of their accounts, upon the application of any one interested, or the treasurer of the commonwealth, shall fix such compensation. R. L. c. 15, § 3. 2 R. L. c. 150, § 14; Edwards v. Ela, 5 Allen, 87. When an ex- ecutor's final account comes before the supreme court of probate on appeal, the compensation allowed him is subject to revision, as well as the other items. Bridge v. Bridge, 146 Mass. 377. A special administrator by leave of the probate court may pay from the personal estate in his hands the expenses incurred by the executor named in the will of a deceased person in proving the same in the probate court, or in sustaining the proof thereof in the supreme court, and also, after notice, such debts due from the deceased as the probate court may approve. R. L. c. 137, § 13. 300 PROCEEDINGS IN THE PROBATE COURTS. iu the course of a faithful and prudent administration ; such as the expense of appraising the estate, of collecting the effects and paying the debts, of attending the probate and other courts upon business of the estate, of adver- tising as required by law or any order of the court, and sums paid for legal and other necessary assistance.^ The expenses of assigning dower, or making partition of land among the heirs or devisees, are not charges of adminis- tration, and are not allowed in the administration account. It is no part of the duty of the executor or administrator to advance money for the payment of debts and necessary expenses ; but if, not having cash assets in his hands, he makes advances for the benefit of the estate, he is entitled to interest on the money advanced.^ If judgment is rendered against an executor or admin- istrator for costs in a suit commenced or prosecuted by him ^ Administrator's charges for attending probate court at hearings in relation to estates connected with that of his intestate, for inquiring into and ascertaining the existence of property in another jurisdiction sup- posed to belong to the estate, and for taking legal advice in respect to such property, although it could be administered only in the other jurisdiction, allowed. Wendell r. French, 19 N. H. 205. In cases which are contested before a probate court or before the supreme court of probate, costs and expenses in the discretion of the court may be awarded to either party, to be paid by the other party, or they may be awarded to either or both parties, to be paid out of the estate which is the subject of the controversy, as justice and equity may require. If costs are awarded to be paid by one party to the other, execution may issue. R. L. c. 162, § 44. But the probate court has no power imder this statute to compel a guardian, on a petition by counsel, to pay for professional services rendered for the infant ward. VVillard V. Lavender, 147 Mass. 15. Money paid with the approval of the judge of probate to any cor- poration duly authorized to act as surety of probate bonds, or to any person acting as surety of probate bonds, may be allowed in the discre- tion of the court as a charge against the estate. R. L. c. 150, § 15. 2 Jennison v. Hapgood, 10 Pick. 102 ; Ames v. Jackson, 115 Mass. 508. See May v. Skinner, 152 Mass. 328. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 301 in that capacity, the estate in his hands cannot be taken in execution therefor, but execution is awarded against him as for his own debt, although the estate has been repre- sented insolvent ; and the amount paid by him thereupon is allowed in his administration account, unless it appears to the probate court that the suit was commenced or prose- cuted unnecessarily or without reasonable cause. ^ But such costs are not allowed in the administration account, until they have been actually paid by him. Their pay- ment is a condition precedent to their allowance.^ Since the repeal of the statute allowing to executors and administrators stated commissions on the sums ac- counted for by them, there has been no rule common to all the probate courts in regard to their compensation. The executor or administrator usually credits himself in his account with such a sum as he considers himself entitled to receive, and the court, in its discretion, allows the sum asked for, or a less sum, regard being had to the character of the services rendered necessary by the con- dition of the estate, and actually performed.^ 1 R. L. c. 172, § 6; Hardy v. Call, 16 Mass. 530; Greenwood v. McGilvray, 120 Mass. 516 ; Perkins v. Fellows, 136 Mass. 294. 2 Thacher v. Dunham, 5 Gray, 26. 8 Unfaithful administration will not deprive an executor of his right to compensation for his services so far as they have been bene- ficial to the estate. Jennison v. Hapgood, 10 Pick. 112. When services not obviously alien to the administration have been rendered at the special request and advice of a party interested in the estate, he is estopped from objecting to the allowance of a just com- pensation for them in the settlement of the administrator's account. Wendell v. French, 19 N. H 205. Upon a controversy between the administrator and the heirs, charges by him of time and money expended while endeavoring to effect a private settlement with them are not proper items of charge against the estate as expenses of administration. Clark v. Clay, 11 Foster (N. H.) 393. The executor was allowed a charge for trans- 302 PROCEEDINGS IN THE PROBATE COURTS. An executor is sometimes entitled to credits in his account that he could not claim as administrator of an intestate estate. It being his duty to administer accord- ing to law and the will of his testator, he may be called upon, in order to carry out the provisions of the will, to perform services and incur expenses that would be irreg- ular and unnecessary in a case of ordinary administration. For all such services faithfully performed, and expenses properly incurred, he is entitled to be allowed.^ Loss on Sale of the Personal Estate. — The executor or administrator is not required to sustain any personal loss in consequence of the decrease or destruction, without his fault, of any part of the estate. If he has sold it for less than the appraised value, he will be allowed in his account for the loss, if it appears that the sale was expe- dient and for the interest of all concerned in the estate ; ^ and he is entitled to be allowed for the amount of any debts inventoried as due to the deceased, if it appears to the court that they remain uncollected without his fault. Allowances to the Widow and Minor Children. — The executor or administrator is allowed in his account for all sums paid by him, under order of the probate court, as allowances to the widow or minor children of the deceased; but if he pays money for their support without ferring personalty' to the special administrator. May v. Skinner, 149 Mass. 375. 1 Where an executor, to whom real estate is devised in trust, is authorized by the will to take down any part of the testator's buildings and to rebuild, to erect additional buildings, and to hire money for the purpose of bettering the trust estate, he may advance his own money for the like purposes, and charge it in his general administration account. Watts V. Howard, 7 Met. 478. And see Wiggin v. Swett, 6 Met. 194. 2 R. L. c. 150, §4. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 303 being first authorized by the court, he makes the payment at his own risk.^ Debts due the Executor or Administrator from the Deceased, — If the executor or administrator is himself a creditor of the estate, he should procure the assent of •the heirs, or other parties interested in the estate, to the allowance of his claim, before he presents his account to the probate court. If his claim is disputed by any person interested in the estate, he must file in the probate court a separate statement, setting forth distinctly and fully the nature and grounds of his claim; and it may then be submitted under an order of the court to one or more arbitrators, to be agreed on by the claimant and the party objecting. The court has like power to discharge the rule by which the claim is referred, and to reject and disallow the award, or to recommit it to the arbitrators, as may be exercised by the common law courts with regard to cases referred by a rule of those courts. The award of the arbitrators, if accepted by the probate court, is final and conclusive. If the parties do not agree in the appointment of arbi- trators, or if the award is not confirmed by the probate court, the court will decide on the claim; and if either party appeals from its decision to the supreme court of probate, either party or the court may have the claim submitted to a jury,^ If the claim of the executor or administrator results 1 Washburn v. Hale, 10 Pick. 429; Brewster v. Brewster, 8 Mass. 131. The question whether an allowance to a widow from her husband's estate was properly made by the probate court is not open on a hearing on the administrator's account. Newell v. West, 119 Mass. 520. 2 R. L. c. 141, §§ 6, 7; Newell v. West, 149 Mass. 528 ; Forbes v. McHugh, 152 Mass. 41o; Buckley v. Buckley, 157 Mass. 536. 304 PROCEEDINGS IN THE PROBATE COURTS. from a course of dealing, or involves mutual debts and credits, the balance only is the actual debt, and the whole account on both sides must be examined, in order to ascertain that balance ; and, of course, all the items on both sides are put in issue. ^ The executor or administrator is entitled to interest on his claim only for such a length of time, after taking administration, as is reasonably needed for the settlement of the estate. 2 Distributive payments by an executor to residuary lega- tees are not allowed in his account rendered to the pro- bate court. The settlement of the account determines the amount of residue subject to distribution, but not the rights or shares of those who are entitled.^ Before delivering any specific legacy or property subject to a succession tax to any person, the executor, adminis- trator, or trustee shall deduct the tax therefrom. If such legacy is given in money to any person for a limited period, the tax on the whole amount shall be retained.* It may be necessary for the executor or administrator to render more than one account of his administration of the estate committed to him. He is required to render an account at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, and at such other times as the court may order. If he receives assets, though they come to his hands more than 1 Willey V. Thompson, 9 Met. 329. 2 Riclimond, Petitioner, 2 Pick. 567. 3 Granger v. Bassett, 98 Mass. 462; Browner. Doolittle, 151 Mass. 596, and cases cited. An executor acting under the will, in setting oflf debts due the testator from the legatees on promissory notes bearing interest, is not entitled in his account to charge interest after the death of the testator. Taylor v. Taylor, 145 Mass. 239. * R. L. c. 15, §§ 5, 7. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 305 twenty years after the supposed final settlement and dis- tribution of the estate, he is bound to account for them.^ In stating any account after the first, he brings forward the balance of his last preceding account, and charges himself with the amount of all sums received by him not previously accounted for; and asks to be allowed for the amount of any additional payments made by him and expenses of administration. And he must annex sched- ules giving full details of such receipts and expenditures. FORM OF guardian's AND TRUSTEE'S ACCOUNTS. The guardian or trustee presents his account in substan- tially the same form as that of an executor or adminis- trator. He charges himself with the amount of the assets received by him, and asks to be allowed for the payments made by him and the charges of the trust. With the account must be filed a schedule stating the several sums received by him, the person of whom, and the time when, each sum was received; a second schedule containing a full statement of the payments and charges; and a third, stating particularly the manner in which any balance remaining in his hands is invested. WITH WHAT THE GUARDIAN OR TRUSTEE IS CHARGEABLE. The guardian or trustee is required to charge himself with the value of the personal estate in his hands, accord- ing to the inventory ; with the gain, if any, realized from its sale ; with the rents and profits of the real estate ; ^ with the proceeds of real estate sold or mortgaged by him ; 1 White V. Swain, 3 Pick. 365; Prescott v. Read, 8 Cush. 365. 2 RathbuQ V. Coltou, 15 Pick. 471 ; Root v. Yeomans, 15 Pick. 488. 20 306 PROCEEDINGS IN THE PROBATE COURTS. and with all sums received by him in his official capacity, from whatever source. He is bound to use the same degree of diligence in the recovery and preservation of the property of his ward or cestui que trust that is required of executors and administrators in the administration of the estates intrusted to them, and he is held responsible for any loss occasioned by his neglect. He is held strictly to account for the interest arising from the trust fund. The general rule is that he is bound to take the same care of the trust fund as a discreet and prudent man would take of his own property; to manage it for the exclusive benefit of the ward or cestui que trust, and to make no profit or advantage out of it for himself; to keep it at all times, when practicable, profitably invested, and punctually to account for the income as well as the principal. If any of these duties are neg- lected, the loss resulting from the neglect must fall upon him, and not on the ward or cestui que trust. Hence, if through gross carelessness or ignorance he makes a bad investment, and thereby loses the whole or part of the trust fund, he will be held to replace it, and must charge himself with it in his account.^ But he is not liable for losses occasioned by bad investments, provided he acts in good faith and with sound discretion. ^ If he wholly 1 Harding v. Larned, 4 Allen, 426; Clark v. Garfield, 8 Allen, 427; Richardson v. Boynton, 12 Allen, 138; Kimball v. Perkins, 130 Mass. 141. A guardian is liable to his ward for the rent of the ward's real estate which he has received, or which he might have received by the use of due diligence. Shurtleff v. Rile, 140 Mass. 213. Where the trustee of an estate held in trust has been obliged to pay taxes upon an unproductive investment received by him from his predecessor, this expense is not to be deducted from the income of other productive investments, but is to be regarded as a charge upon the principal of the unproductive investment. Stone v. Littlefield, 151 Mass. 485. 2 Kimball v. Perkins, 130 Mass. 141. A loan by a guardian, upon ACCOUNTS OF EXECUTORS, ADJUINISTRATORS, ETC. 307 neglects to invest the trust funds, he is chargeable with the income that would have been derived from a proper investment;^ and in cases of gross neglect, or if he employs the money in his own business, he is liable to be charged with compound interest.^ He may not be charge- able with interest from the date of his appointment, or of his receipt of the money. He is entitled to a reasonable the promissory note of the borrower, payable in one year with interest, secured by a pledge of shares in a manufacturing corporation, the amount of the loan being about three-quarters of the par value of the shares, and less than three-quarters of their market value, was held to be an investment made with sound discretion; and although the bor- rower failed before the note became due, and the shares fell in value below the amount of the note, the guardian was held not to be respon- sible for the loss. And, the guardian having sold the shares and taken the purchaser's note for the price, with two indorsers, and the notes of another person secured by a mortgage on land, he was held to have exercised a sound discretion, and not to be responsible for a loss occasioned by the fail- ure of all the parties to the notes, and a fall in the value of the mort- gaged premises. Lovell v. Minot, 20 Pick. 116. And see Harvard College V. Amory, 9 Pick. 459; Thompson v. Brown, 4 Johns. Ch. 628; Bowker v. Pierce, 130 Mass. 262; Hunt, Appellant, 141 IMass. 515; McKim v. Hibbard, 142 Mass. 422; Dickinson, Appellant, 152 Mass. 184. 1 Mattoon v. Cowing, 13 Gray, 387; McKim v. Morse, 130 Mass. 439. 2 Boynton v. Dyer, 18 Pick. 1. Where the guardian had received rents and income from stocks, and had rendered no account for many years, it was ordered that an account should be settled, with a rest for every year, and the balance thus struck carried forward, to be again on interest whenever the sum should be so large that a trustee acting faithfully and discreetly would have put it in a productive state ; and $500 was held to be such a sum. Robbins v. Hayward, 1 Pick. 528, note. Simple interest only was allowed on a note due on demand from the guardian to the ward, the note being so small that it was not a sufficient object to make a new investment with the interest. Fay v. Howe, 1 Pick. 527. See Bassett c Granger, 140 Mass. 183 ; McKim V. Blake, 139 Mass. 593. 308 PROCEEDINGS IN THE PROBATE COURTS. time in which to make the investment^ and the length of time that will be deemed reasonable for that purpose must depend uj)on the condition of the property at the time he received it, his opportunity of making investments, or other circumstances controlling his proceedings. ^ If the guardian is also executor of the will in which a legacy is given to his ward, he cannot charge himself in his guardianship account with the amount of the legacy until, by the terms of the will, it becomes payable; until that time he must account for it as executor. This dis- tinction, while it does not affect his personal liability, may be of importance to his sureties.^ The guardian shall settle all accounts of his ward, and sue for and receive all debts due to him, or, with the ap- probation of the probate court, may compound for the same, and give a discharge to the debtor on receiving a fair dividend of his estate,^ 1 In Boynton v. Dyer, 18 Pick. 1, one year was deemed a reason- able time; in Clarkson v. De Peyster, 2 Wend. 77, six months were held sufficient; and in Schieffelin v. Stewart, 1 Johns. Ch. 620, two years were allowed. 2 Livermore v. Bemis, 2 Allen, 394. A cestui que trust cannot maintain an action for money had and received against the trustee, under a testamentary trust, although a balance appears by his accounts to be due, if the trust is still open and there has not been a final set- tlement of his accounts in the probate court. Upham v. Draper, 157 Mass. 292. 3 R. L. c. 145, § 25. A guardian has no title to his ward's property and cannot maintain a bill in equity in his own name to avoid a con- veyance or transfer by the ward of his property. Lombard v. Morse, 155 Mass. 136. A guardian has no authority to withdraw from a bank funds due to his ward as administrator of an estate. Ryan v. North End Savings Bank, 168 Mass. 215. A suit may be brought in the name of an infant as well by his guardian as by his next friend. Burke v. Burke, 170 Mass. 499. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 309 WHAT IS ALLOWED TO THE GUARDIAN OR TRUSTEE. The guardian is allowed to credit himself with all sums properly paid by him for the support and education of his ward. He may expend a part or the whole of the income of the ward's estate for these purposes, as occasion re- quires, and if the income is not sufficient, the principal ; but such expenses must be consistent with a prudent man- agement of the estate. If the Avard is a minor, and has a father living, the expense of his maintenance and educa- tion is to be paid by the father, unless the ward's property is sufficient to support him in a manner more expensive than his father can reasonably afford ; in which case the expense of the maintenance and education of the minor may be defrayed out of his own property, in whole or in part, as the probate court deems reasonable.^ If the ward is a married woman, the guardian cannot expend her estate for the support of herself and her family, unless authorized by the court on account of the inability 1 R. L. c. 145, § 29; Strong v. Moe, 8 Allen, 125. A husband who receives into his family the children of his wife by a former marriage stands to them in loco parentis, and, in the absence of express contract or of circumstances showing a different arrangement, has a right to their services, and is liable for their support and education. And where, for seven years, he has lived in a house belonging to his wife and her three children by a former marriage, has been appointed guardian of the children, and kept them in the house with himself and their mother, has no property of his own, has earned only enough during the time to support the united family, and has sold the real estate of his wards by leave of court, he is not to be charged in his account with any previous rent thereof, or credited with taxes paid thereon, or for the board and clothing of his wards, but may be allowed a reasonable amount paid for the expense of one of his wards at a boarding-school. Mulhern v. McDavitt, IG Gray, 404. See Wilkes r. Rogers, 6 Johns. 566. 310 PROCEEDINGS IN THE PROBATE COURTS. of the husband suitably to maintain her and them, or for other cause which the court deems reasonable.^ The probate court, on the application of the guardian of an insane person, or of a child, or the guardian of a child of an insane person, and after notice to all other persons interested, may authorize and require the guardian of the insane person to apply such portion as the court may direct of the income of the ward which is not required for his maintenance and support, to the mainte- nance and support of his children.^ In all cases, the amounts to be allowed to the guardian in his account of his ward's expenses will be determined with reference to the condition and circumstances of the ward.^ A claim for damages for a tort by a guardian against his ward cannot be allowed in his account.* If the guardian has advanced his own money for the payment of debts and expenses of his ward, under circum- stances that render that course of proceeding proper, he is entitled to interest on the money so advanced.^ 1 R. L. c. 145, § 14. 2 Ibid. § 30. ' The guardian (of an insane person) is appointed for the welfare, comfort, and security of the ward, and not for the increase of the estate in his hands by accumulations from the income, in order to enlarge the wealth of remote or collateral relatives who may ultimately succeed to the inheritance. It is no part of his duty to diminish the reasonable comforts of his ward, or to prevent him from enjoying such luxuries, or indulging such tastes, as would be allowable and proper in the case of a man similarly situated in other respects, but m the full possession of his faculties. Ames, J., in May v. May, 109 Mass. 256. * Brown v. Howe, 9 Gray, 84. Nor will an action of contract for necessaries lie. McLane v. Curran, 133 Maes. 532. 6 Hayward v. Ellis, 13 Pick. 272. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 311 Guardians and trustees are allowed for all necessary expenses incurred in the execution of their respective trusts, and such compensation for their services as the court may consider just and reasonable.^ 1 Urann v. Coates, 117 Mass. 41; TurnbuU v. Pomeroy, 140 Mass. 117. Where the guardian of an insane person continued the ward's business with advantage to the estate and -with the concurrence of all the parties interested, and erected a building for the use of the busi- ness on land of the ward's wife, he was not allowed in his account for the cost of the building, but was allowed rent for it. IMurphy v. Walker, 131 Mass. 341. Expenses of the guardian incurred in resisting, in good faith, the ward's application for a revocation of the guardianship, were allowed in his account. Palmer v. Palmer, 1 Chandler (N. H.), 418. A guardian who is also trustee is not allowed full compensation in each capacity for the same service. Blake v. Pegram, 101 Mass. 592. A trustee or guardian is not allowed in his account for any part of the expenses of a controversy occasioned in a great measure by his own fault. Blake v. Pegram, 109 Mass. 541; Urann v. Coates, 117 Mass. 44. He is not allowed compensation for changing investments of his ward's property, or making repairs thereon, in the form of com- missions on the amounts invested or expended. May v. May, 109 Mass. 252. An agreement made by a trustee with his cestui que trust as to the amount of compensation he shall receive is not invalid if the cestui que t7-ust is sui juris and competent to act, and no fraud is practised or advantage taken ; and such agreement is to be considered in deter- mining the amount of the trustee's charges. Bowker v. Pierce, 130 Mass. 262. A guardian who charges himself in his account with a large surplus of his ward's income and interest thereon, but refuses to disclose what use he has made of it, is presumed to have derived profits from its use sufficient to compensate him for the care of it, and is not entitled to other compensation. Blake v. Pegram, 109 Mass. 541 ; Pierce v. Prescott, 128 Mass. 140. A trustee is not allowed compensation for taking charge of a trust fund while he himself is a borrower of it. Farwell v. Steen, 46 Vt. 678. A trustee cannot withhold the income of a trust fund from the 312 PROCEEDINGS IN THE PROBATE COURTS- If the same person is guardian of two or more wards, although they may be equally interested in the property in his hands, he should render a separate account of his guardianship of each, and is bound to account whenever either of them arrives at full age. ALLOWANCE OF PROBATE ACCOUNTS. The executor or administrator will avoid some delay and expense if, before presenting his account to the pro- bate court, he submits it to the heirs or other parties interested, and obtains their assent in writing to its allowance. Such assent may be conveniently indorsed on the account. If they do not so express their assent, the court, before proceeding to pass upon the account, will order such notice to be given to them as the circumstances of the case require. After the account has been filed, the judge, before approving the same, may appoint one or more auditors to hear the parties interested, examine their vouchers and the evidence, and report upon the same, which report shall be prima facie evidence upon such matters as are expressly referred to the auditors.^ If an account has been filed in the probate court and if beneficiary's assignee in order to repay to himself by way of set-off money lent by hira to the beneficiary prior to his appointment as trustee ; nor will a decree of the probate court that the trustee is so entitled be good in the absence of personal notice to the assignee or the beneficiary. Abbott v. Foote, 146 ISIass. 333. A guardian was not allowed a charge in his account for superintending the building of a stable for his ward. ]\Iay v. Skinner, 149 Mass. 375. A decree of the probate court showing a balance due from a guar- dian to his ward upon the expiration of the guardianship, and the refusal of the guardiau or his representative to pay it over in accord- ance with such decree, creates a debt in favor of the ward, for which he may sue in his own name. Cobb v. Kempton, 154 Alass. 266. 1 R. L. 0. 165, § 56. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 313 the court finds that the items of said account should be finall}^ determined and adjudicated, or if tlie accountant after two years from a former adjudication or from his appointment desires such determination and adjudication, notice of such proposed action shall be given to all ])arties as it may order. If the interest of a person unborn, un- ascertained, or legally incompetent to act in his own behalf, is not represented except by the accountant, the court shall appoint a competent and disinterested person to act as guardian ad litem or next friend for such person, and to represent his interest in the case.^ The person so appointed shall make oath to perform his duty faithfully and impar- tially, and shall be entitled to such reasonable compensation for his services as the court may allow. When all living parties who are interested as beneficiaries in a trust created by will proved and allowed in this com- monwealth reside out of the commonwealth, the probate court having jurisdiction of the trust may, on application of the parties in interest, or of the executor, administrator, or trustee, and if it deems it just and expedient, authorize the executor, administrator, or trustee to pay over the fund to a trustee appointed by the proper court in any other state or country, provided all the cestuis que trustent who are living, and the executor, administrator, or trustee signify their consent, and the court is satisfied that the laws of such other state or country secure the due perform- ance of said trust ; and upon such payment shown to the satisfaction of said probate court, the executor, adminis- 1 R. L. c. 150, § 22. Abbott v. Bradstreet, 3 Allen, 587; Collins V. Collins, 140 Mass. 502. The decree of the court of probate allow- ing the final account of an administrator cannot be impeached in an action at law against the administrator for services rendered the deceased. Parcher v. Bussell, 11 Cash. 107. 314 PROCEEDINGS IN THE PROBATE COURTS. trator, or trustee appointed here may be discharged from further responsibility by decree of said court.^ When there are contingent interests in such trust fund, whether the persons who may be entitled thereto are in being or not, and where any of the cestuis que trustent are minors, the court, before making an order or decree in the premises, shall cause such interests and minors to be prop- erly represented by guardians ad litem or otherwise at its discretion.2 Any person interested in the estate may appear and object to the allowance of the account, either that the administrator or other trustee has not charged himself with all the assets of the estate, or that he has credited himself with sums that ought not to have been paid from the estate, or that he claims a larger sum for compensation than he is justly entitled to receive, or because of any overcharge or omission in his account.^ The executor or guardian is not only required to make oath to the correct- ness of his account, but to answer specifically all questions concerning it.* And the party at whose instance inter- rogatories have been proposed to him touching his account, has a right to offer evidence to disprove his answers.^ The court, upon the hearing, may order the accountant to charge himself with sums not included in his account, if it appears that he has received them in his ofificial capacity, and may disallow any of the items with which 1 R. L. c. 150, § 27. 2 Ibid. § 28. * If the administration, in a particular transaction, has not been strictly according to law, the administrator cannot be charged with mal-administration in respect to such transaction by persons at whose request he acted therein. Poole i'. Munday, 103 Mass. 174. * R. L. c. 1.50, § 3; Sigourney v. Wetherell, 6 Met. 553; Wade v. Lobdell, 4 Cush. 510; Blake v. Pegram, 101 Mass. 592. ' Higbee v. Bacon, 8 Pick. 484. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 315 he credits himself ; and the decree of the court allowing the account, as it may be finally adjusted, is conclusive, unless appealed from.^ The supreme court will not, as a court of chancery, resettle an administration account alleged to have been fraudulently settled in the probate court ; 2 nor can the decree of the probate court, duly allowing the final account of an administrator, be im- peached in an action at law against him upon a claim against the deceased.^ The person aggrieved by the decree can take his objections to the supreme court of probate only by appeal. If the proceedings in the probate court were such that they may be treated as a nullity on account of fraud, the administrator may be cited to account anew. The accounts of two or more joint executors, adminis- trators, guardians, or trustees may be allowed by the pro- ^ It is made the duty of the treasurer of the commonwealth to bring suit for the recovery of all legacy and succession taxes not paid, when tlie judge certifies to him that the final account of any executor, administrator, or trustee has been filed in the court, and that the final settlement of the estate is delayed by reason of the non-payment of such tax. And the judge is required to issue the certificate upon the application of any heii-, legatee, or person at interest. The time for payment of the legacy tax may be extended by the probate court whenever the circumstances of the case may require. R. L. c. 15, § 18. See also St. 1902, c. 473. If the administrator of the estate of a deceased partner in a firm has made a settlement with the surviv- ing partners, and his account, including the amount received from such settlement, has been allowed by the probate court, that court has no jurisdiction to open the account, upon the petition of the successor of such administrator to which the surviving partners only are made respondents, on the ground that the settlement was induced by the fraud of the surviving partners. Blake v. Ward, 137 Mass. 91. 2 Jennison v. Hapgood, 7 Pick. 1; Sever v. Russell, 4 Cush. 513; Ammidown v. Kinsey, 144 Mass. 587. a Parcher v. Bussell, 11 Cush. 107. 316 PKOCEEDIXGS IN THE PROBATE COURTS. bate court upon the oath of one of them.^ The oath may be administered by the judge or register in or out of court, or by a justice of tlie peace ; but the judge may require the oath to be taken before him in open court.^ No final settlement of an account of any executor, ad- ministrator, or trustee shall be allowed unless such account shows, and the judge finds, that the legacy and succession tax has been paid. A proper voucher for such payment is the receipt of the treasurer of the commonwealth.^ WHEN SETTLED ACCOUNTS MAY BE OPENED. When an account of an executor, administrator, or trustee is settled in the absence of a person adversely interested, and without notice to him, such account may be opened on the application of such person at any time within six months after the settlement thereof, and upon the settlement of an account all former accounts of the 1 R. L. c. 150, § 18. 2 R. L. c. 162, § 37. The probate court, in passing upon the allow- ance of the account of a trustee under a will, may determine whether a trustee has accounted to the parties entitled to the income of the trust fund for the whole of the income. New England Trust Co. v. Eaton, liO Mass. 532. When an executor, administrator, guardian, or trustee has paid or delivered over to the persons entitled thereto the money or other property in his hands, as required by a decree of a probate court, he may perpetuate the evidence thereof by presenting to said court, within one year after the decree is made, an account of such payments or of the delivery over of such property ; which ac- count being proved to the satisfaction of the court, and verified by the oath of the party, shall be allowed as his final discharge, and ordered to be recorded. Such discharge shall forever exonerate the party and his sureties from all liability under such decree, unless his account is impeached for fraud or manifest error. R. L. c. 150, § 20. 8 R. L. c. 15, § 19. But where there has been or shall be a devise, descent or bequest, to collateral relatives or strangers to the blood, liable to collateral inheritance tax, to take effect in possession or come ACCOUNTS OF EXECUTORS, ADMINISTEATOKS, ETC. 317 same accountant may be so far opened as to correct a mistake or error therein ; * except that a matter in dispute, which has been previously heard and determined by the court, shall not without leave of the court be again brought in question by any of the parties to such dispute.^ To avail himself of the exception provided by the above section, the administrator should take care that any matter heard and determined should be so stated as to appear in the decree of the court allowing his account. If his account is disputed, he should call upon the party object- ing to specify in writing the items to which he objects. His account being then settled, the entire proceedings into actual enjoyment after the expiration of one or more life estates or a term of years, the tax on such property sliall not be payable nor interest begin to run thereon until the person or persons entitled thereto shall come into actual possession of such property, and the tax thereon shall be assessed upon the value of the property at the time when the right of possession accrues to the person entitled thereto as aforesaid, and such person or persons shall pay the tax upon coming into possession of such property. The executor or administrator of the decedent's estate may settle his account in the probate court without being liable for said tax ; provided, that such person or persons may pay the tax at any time prior to their coming into possession, and in such cases the tax shall be assessed on the value of the estate at the time of the payment of the tax, after deducting the value of the life estate or estate for years; and provided further, that the tax on real estate shall remain a lien on the real estate on which the same is chargeable, until it is paid. St. 1902, c. 473. 1 Wiggin V. Swett, 6 Met. 194. See Blake v. Pegram, 101 Mass. 592; Gale V. Nickerson, 144 Mass. 415 ; Dodd v. Winship, 144 Mass. 461. 2 R. L. c. 150, § 17. A former account may be opened, although an apjjeal was taken from its allowance in the probate court, and deter- mined in the supreme court of probate. Blake v. Pegram, 109 Mass. 541 ; Bridge v. Bridge, 146 Mass. 377, and cases cited. Former accounts may be opened, although the persons by whom they were rendered have ceased to represent the estate. Blake v. Pegram, 109 Mass. 541. The right to open former accounts is limited to accounts rendered 318 PROCEEDINGS IN THE PEOBATE COURTS. will appear upon the records of the court, and no doubt can afterwards arise as to th^ particular items disputed and determined.^ Even then, by leave gi the court, the account may be opened, though undoubt^ly the court would be cautious in exercising sych a power in regard to a subject once controverted and once judicially settled.^ Where an account has been settled for many years, the heirs or other parties con^cerned acquiescing in the settle- ment, it will not be opened on their application unless good cause is shown for the delay ; but the administrator or other trust officer may be cited at any time to account for assets not included in his settled accounts.^ in the settlement of the same estate. Granger v. Bassett, 98 Mass. 462. Such acquiescence and delay on the part of the guardian as would bar him from holding the executors liable for selling the assets of the estate for less than their value, will not deprive the minor wards of their right to have the accounts of the executors opened to correct any errors therein. Ueuholm v. McKay, 148 Mass. 434 ; Tripp v. Gifford, 155 Mass. 108. Though an executor has resigned or has been removed, he must still account as executor; he will still be obliged to submit to an ex- amination, and to answer all questions in relation to his accounts. Newell V. West, 149 Mass. 528. 1 Cummings v. Cummings, 123 Mass. 271; Ibid., 128 Mass. 532. 2 Field tJ. Hitchcock, 14 Pick. 405; Smith v. Button, 4 Sliepley, 308 ; Browne v. Doolittle, 151 Mass. 600, and cases cited. * An administrator settled his first account in 1818, and a second account in 1822 ; but in 1825, on the petition of the residuary legatee, a re-hearing was had in the probate court, and the administrator was ordered to credit the estate with an additional sum. From this de- cree the legatee appealed, on the ground that a larger sum should be credited, but failed to prosecute the appeal, and it was dismissed. The legatee thereupon demanded payment of the administrator of the sum so ordered to be credited, and upon his refusal to pay brought an action against him, in which judgment was rendered, in 1835, in favor of the administrator, on the ground that the decree had been vacated by the appeal. In 1836 the legatee filed a petition in the probate court for a second re-hearing, on the ground that the account ACCOUNTS OF EXECUTORS, ADMINISTRATORS, ETC. 319 had been settled fraudulently, but the petition was dismissed by that court in 1837; on appeal, it was ordered that unless the respondent should pay to the legatee the amount he had been ordered to credit the estate in 1825,., with interest from the time of the demand and costs, the prayer df the petition should be granted. Davis v. Cowdin, 20 Pick. 510; Cummings r. Cummings, 128 Mass. 532; Blake v. Ward, 137 Mass. 94. See Bassett v. Granger, 103 Mass. 177. If a trustee under a will, through inadvertence, errs in stating, in an account filed by him, that a certjj^ sum paid to a cestui que trust was part of the income, instead of a part of the principal of a trust fund, the probate court, on an appeal .to the supreme court of pro- bate, may grant the trustee leave to reopen the account and correct the error, if it is material. Dodd v. Winship, 144 Mass. 461. See Browne v. Doolittle, 151 Mass. 596 ; Newell v. Peaslee, 151 Mass. 601. An executor who, in his first account, erroneously charges himself •with the rents of real estate to which he was himself entitled as resid- uary devisee, is not estopped from showing the mistake and having it corrected. Brown v. Baron, 162 Mass. 56. CHAPTER XVI. DESCENT AND DISTRIBUTION. — ADVANCEMENTS. Descent, or hereditary succession, is the title wherehy a person, on the death of his ancestor, acquires his estate by right of representation, as his heir.^ DESCENT OF KEAL ESTATE. — GENERAL KULES. When a person dies seised of land, tenements, or heredita- ments, or of any right thereto, or entitled to any interest therein, in fee-simple or for the life of another,^ not hav- ing lawfully devised the same, they shall descend, subject 1 The status of any person with the inherent capacity of succession or inheritance, is to be ascertained by the law of the domicile which creates the status. Ross v. Ross, 129 Mass. 243 ; Merrill v. Preston, 135 Mass. 456 ; Proctor v. Clark, 154 Mass. 45. 2 This description of the real estate is so framed as to include, not only lands of which the ancestor was actually seised, but also re- mainders and reversions, and the right to lands of which he had been disseised or in any other way ousted. Cora. Rep. 1834, note to c. 61. Contingent interests, both in real and personal estate, are trans- missible like vested interests. Winslow v. Goodwin, 7 Met. 363 ; Dal- ton V. Savage, 9 Met. 28 ; Welsh v. Woodbury, 144 Mass. 545, and cases cited. Real estate held by an executor or administrator in mortgage, or on execution for a debt due to tlie deceased, is considered personal assets in his hands, and if not sold by him or redeemed does not descend to the heirs as real estate, but is assigned and distributed to the same persons and in the same proportions as if it had been part of the personal estate of the deceased. R. L. c. 150, § 11. DESCENT AND DISTRIBUTION. 321 to his debts and to the rights of the husband or wife and minor cliildren of the deceased as provided in cliap- ters 131, 132, and 140 of the Revised Laws, in manner following: ^ — " Firsts In equal shares to his children and to the issue ^ of any deceased child, by right of representation ; and if there is no surviving child of the intestate, then to all his other lineal descendants. If all such descendants are in the same degree of kindred to the intestate, they shall share the estate equally ; otherwise, they shall take according to the right of representation. " Second, If he leaves no issue, then in equal shares to his father and mother. " Tliird, If he leaves no issue nor mother, then to his father. " Fourth, If he leaves no issue nor father, then to his mother. " Fifth, If he leaves no issue and no father or mother, then to his brothers and sisters and to the issue of any deceased brother or sister by right of representation ; and if there is no surviving brother or sister of the intestate, then to all the issue of his deceased brothers and sisters. If all such issue are in the same degree of kindred to the 1 R. L. c. 133, § 7 ; Dexter v. Inches, 147 Mass. 326 ; Smith, Peti- tioner, 156 Mass. 408. The real estate of an intestate, in default of children or surviving brothers or sisters, will be distributed among the nearest descendants or issue in equal degree of kindred to the intestate per capita, and to those in more remote degree, per stirpes. Balch v. Stone, 149 Mass. 39. If an illegitimate intestate leaves no relatives except a brother and sister of his mother, and children of her deceased brothers, his personal estate will go to the uncle and aunt, to the exclusion of his cousins. Parkman v. McCarthy, 149 Mass. 502. 2 The word " issue," as applied to the descent of estates, includes all the lawful lineal descendants of the ancestor. R. L. c. 8, § 5, cl. 7. 21 322 PROCEEDINGS IN THE PROBATE COURTS. intestate, they shall share the estate equally ; otherwise, they shall take according to the right of representation.^ " Sixths If he leaves no issue, and no father, mother, brother, or sister, and no issue of any deceased brother or sister, then to his next of kin in equal degree ; except that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor who is more remote.^ " Seventh, If an intestate leaves no kindred and no ■widow or husband, his or her estate shall escheat to the commonwealth," The degrees of kindred are computed according to the rules of the civil law ; and the kindred of the half blood inherit equally with those of the whole blood in the same degree.^ RIGHTS OF A SURVIVING HUSBAND IN THE PROPERTY OF HIS DECEASED WIFE AND RIGHTS OF A WIFE IN THE PROPERTY OF HER DECEASED HUSBAND. a. Under the Public Statutes. The Revised Laws make radical changes in regard to the rights of a surviving husband in the property of his deceased wife and in regard to the rights of a wife in the 1 Conant v. Kent, 130 Mass. 178. 2 Snow V. Snow, 111 Mass. 389; Balch v. Stone, 149 Mass. 39. " Next of kin," under 26 U. S. Sts. at Large, pp. 862. 90S, relating to payment of Frencli Spoliation Claims, are not to be determined as of the time of the testator's death, but as of the date of the passage of the act. Codman v. Brooks, 167 Mass. 499. 8 Larrabee v. Tucker, 110 Mass. 562; R. L. c. 133, § 2. For the provisions of law under which the estates of persons de- ceased prior to Oct. 1, 1876, descend, see Gen. Stats, c. 91. DESCENT AND DISTRIBUTION UNDEK PUBLIC STATUTES. 323 property of her deceased husband. Before stating the provisions of the Revised Laws on this subject, it will be well, for the purpose of comparison and reference, to sum- marize those provisions of the Public Statutes in which the principal changes have been made. The law which was superseded when the Revised Laws took effect on the first day of January, 1902, provided as follows : — " When a man and his wife are seised in her right, and when a married woman is seised to her sole and separate use, of an estate of inheritance in lands, and they have had issue born alive which might have inherited such estate, the husband shall on the death of the wife hold the lands for his life as a tenant thereof by the curtesy. If they have had no such issue, he shall hold one half of such lands for his life. If she dies and leaves no issue living, he shall take her real estate in fee to an amount not exceeding five thousand dollars in value, and shall also have an estate by the curtesy or other life interest, as before provided, in her other real estate. If she dies intes- tate and leaves no kindred, he shall take the whole of her real estate in fee.^ " 1 P. S. c. 124, § I, as amended by St. 1885, c. 255, and St. 1887, c. 290. A husband is entitled to his curtesy in an estate tail of which his wife was seised. Goddard v. Whitney, 140 Mass. 101. By a will, real estate was given to four children for life, " and when they shall respectively decease, to their respective heirs," etc. One of the children was a married woman who died intestate. It was held, that her husband was her heir, and not her three brothers. Lavery i;. Egan, 143 Mass. 389. See also Lincoln v. Perry, 149 Mass. 374 ; Brownell v. Briggs, 173 Mass. 531. A married woman died leaving a husband, but no issue. She made a will, to which her husband did not assent, by which she gave him a pecuniary legacy, and added these words : " Which is to be in full set- tlement of all his demands upon my estate," and devised the rest of 324 PROCEEDINGS IN THE PROBATE COURTS. The Public Statutes as amended also provided that, if a married woman died possessed of personal property not lawfully disposed of by will, and leaving issue, her hus- band should be entitled, after payment of her debts, funeral expenses, and charges of administration, to one half of the residue ; and to the whole of such residue if she left no issue.^ As to the surviving wife the Public Statutes provided, in regard to real estate of her deceased husband, as follows: — " A wife shall be entitled to her dower at common law in the lands of her deceased husband. When her husband dies intestate " (and when he dies testate and she waives the provisions of his will) ^ " and leaves no issue living, her estate to others. Held, that the liusband was not entitled, under P. S. c. 124, c. 1, to one half of his wife's lands for his life. Burke v. Colbert, 144 Mass. 160. P. S. c. 124, § 3, gave to a husband a fee in his wife's lands to an amount not exceeding five thousand dollars in value, when they had had no children. Howe v. Berry, 168 Mass. 418. 1 P. S. c. 135, § 3; Goddard y. Whitney, 140 Mass. 101; Constan- tinidesy. Walsh, 146 Mass. 282; Parkman v. McCarthy, 149 Mass. 504; Robinson v. Simmons, 1.50 Mass. 126. 2 The surplus of proceeds of land sold by an executor or adminis- trator, remaining on the settlement of his accounts, is considered real estate, and is disposed of to the same persons and in the same propor- tions as the land would descend if not sold. P. S. c. 142, § 9. The statute extends to contingent as well as to vested interests. Dalton i\ Savage, 9 Met. 37 ; Welsh v. Woodbury, 144 Mass. 545, and cases cited. Where a will does not dispose of the whole estate of a testator, property not disposed of therein passes to the next of kin and heirs at law as intestate property. Foster v. Smith, 1.56 Mass. 379. Cochran v. Thcrndike, 133 Mass. 46 ; Mathews v. Mathews, 141 Mass. 511. A child by adoption is " issue " within the meaning of P. S. c. 124, § 3. Buckley v. Frasier, 153 Mass. 525. DESCENT AND DISTRIBUTION UNDER PUBLIC STATUTES. 325 she shall take his real estate in fee to an amount not exceeding five thousand dollars in value, and shall also be entitled during her life to one-half of the other real estate of which he died seized ; or, if she files her election therefor within six months after the date of letters of administration on his estate, she may have, instcnd of such life estate, her dower in his real estate other than that taken by her in fee. If her husband dies intestate and leaves no kindred, she shall take the whole of his real estate in fee." ^ A wife shall also be entitled to remain in the house of her husband for forty days after his death without being chargeable with rent. If the husband died possessed of personal property not lawfully disposed of by will, and leaving issue, the widow was entitled, after payment of any allowances to her and to minor children, the debts of the deceased, funeral ex- penses, and charges of administration, to one-third of the residue ; and, if the husband left no issue, the widow was entitled to the whole of the residue to the amount of five thousand dollars and to one-half of the excess of the resi- due above ten thousand dollars ; and if the husband left no kindred, she was entitled to the whole of the residue.^ A widow could waive the provisions of her husband's will and she would then be entitled to dower in his real estate and to the same share of his personal property as she would have received if he had died intestate, except 1 P. S. c. 124, § 3 ; Staigg v. Atkinson, 144 Mass. .570; Buttrick V. Tilton, 155 Mass. 463. Although the husband and wife have separated by mutual agree- ment, she will still retain her riglit to share in his estate on his decease. Whitney v. Closson, 138 Mass. 49. A husband is the statutory heir of his wife. La very v. Egan, 143 Mass. 389 ; Lincoln v. Terry, 149 Mass. 368. 2 P. S. c. 135, § 3, as amended by St. 1885, c. 276. 326 rROCEEDINGS IN THE PROBATE COURTS. that, if she would thus become entitled to an amount ex- ceeding ten thousand dollars, she would receive only the income during her life of the excess above ten thousand dollars.^ Without her husband's written consent, the will of a married woman could not deprive him of his tenancy by the curtesy in her real estate, or of the right to the use for his life of one-half of her real estate, if they had liad no issue born alive, or of more than one-half of her personal property, or of her real estate not exceeding five thousand dollars in value when no issue survived her ; except that a married woman deserted by her husband or living apart from him for a justifiable cause, when the fact of such desertion or living apart had been established by the de- cree of a court having jurisdiction of the parties, could by will or by deed dispose of her real estate without her husband's consent.^ h. Under the Revised Laws. " A husband shall, upon the death of his wife, hold one- third of her land for his life. Such estate shall be known as his tenancy by curtesy, and the provisions of law ap- plicable to dower shall be applicable to curtesy. A wife shall, upon the death of her husband, hold her dower at common law in her deceased husband's land. Such estate shall be known as her tenancy by dower. But in order to be entitled to such curtesy or dower the surviving husband or wife shall file his or her election and claim therefor in the registry of probate within one year after the date of 1 P. S. c. 127, §§ 18, 19. Staigg v. Atkinson, 144 Mass. 570; Dexter v. Codman, 148 Mass. 422; Townsend i'. Townsend, 156 Mass. 455. 2 P S. c. 147, § 6 ; St. 1885, c. 255 ; St. 1887, c. 290; Johnson v. Williams, 152 Mass. 414. DESCENT AND DISTRIBUTION UNDER THE REVISED LAWS, 327 the approval of the bond of the executor or administrator of the deceased, and shall thereupon hold instead of the interest in real property given in section three of chapter one hundred and forty, curtesy or dower, respectively ; otherwise such estate shall be held to be waived. Such curtesy and dower may be assigned by the probate court in the same manner as dower is now assigned, and the tenant by curtesy or dower shall be entitled to the pos- session and profits of one undivided third of the real estate of the deceased from her or his death until the assignment of curtesy or dower, and to all remedies there- for which the heirs of the deceased have in the residue of the estate. Rights of curtesy which exist when this chapter takes effect may be claimed and held in the man- ner above provided, but in such case the husband shall take no other interest in the real or personal property of his wife, and, except as preserved herein, curtesy at com- mon law is abolished." ^ " If a deed of land is made to a married woman, who, at the time of its execution, mortgages such land to the grantor to secure the payment of the whole or a part of the purchase-money, or to a third person to obtain the whole or a part of such purchase-money, her seisin shall not give her husband an estate by the curtesy as against such mortgagee." ^ * R. L. c. 132, § 1. A widow's right to have dower assigned to her out of the lands of her deceased husband, cannot be attached or taken on execution in an action at law. McMahon v. Gray, 150 Mass. 289. When land is taken by right of eminent domain, the wife of the person whose land is so taken is not entitled, by reason of her inchoate right of dower, to liave a portion of the proceeds set apart by a court in equity for lier benefit in case she survives her husband. Flynn v. Flynn, 171 Mass. 312. 2 R. L. c. 132, § 2. 328 PROCEEDINGS IN THE PROBATE COURTS. " A widow shall not be entitled to dower in wild land of which her husband dies seised, except wood lots or other land used with his farm or dwelling-house, nor in such land which is conveyed by him although it is afterward cleared." ^ "If, upon a mortgage made by a husband, his wife has released her right of dower, or if a husband is seised of land subject to a mortgage which is valid and effectual as against his wife, she shall nevertheless be entitled to dower in the land mortgaged as against every person except the mortgagee and those claiming under him. If the heir or other person who claims under the husband redeems the mortgage, the widow shall either repay such part of the money which was paid by the person so redeeming as shall be equal to the proportion which her interest in the land mortgaged bears to the whole value thereof, or, at her election, she shall be entitled to dower according to the value of the estate after deducting the money paid for redemption." ^ " The articles of apparel and the ornaments of the widow and minor children of a deceased person shall belong to them respectively. The widow may remain in the house of her husband for not more than six months next succeeding his death without being chargeable for rent." ^ " Such parts of the personal property of a deceased per- son as the probate court, having regard to all the circum- stances of the case, may allow as necessaries to his widow for herself and for his family under her care or, if there is ^ R. L. c. 132, § 3. A widow who does not live upon the dower estate has no right to cut the wood thereon for sale. Noyes v. Stone, 163 Mass. 490. 2 R. L. c. 132, § 4. « R. L. c. 140, § 1. DESCENT AND DISTRIBUTION UNDER THE REVISED LAWS. 329 no widow, to his minor children, not exceeding one hundred dollars to any child, and also such provisions and other articles as are necessary for the reasonable sustenance of his family, and the use of his house and of the furniture therein, for six months next succeeding his death, shall not be taken as assets for the payment of debts, legacies, or charges of administration. After exhausting the per- sonal property, real property may be sold to provide the amount of allowance decreed, in the same manner as it is sold for, the payment of debts, if a decree authorizing such sale is made, upon the petition of any party in interest, within two years after the approval of the bond of the executor or administrator." ^ " If a person dies possessed of property not lawfully dis- posed of by will, it shall be distributed as follows : — " First, The personal property remaining after said al- lowances shall be applied to the payment of the debts of the deceased and the charges of his last sickness and funeral and of the settlement of his estate. " Second, The residue of the personal property shall be distributed among the persons and in the proportions pre- scribed for the descent of real property in chapter one hundred and thirty-three, except as otherwise provided herein. "Third, If the deceased leaves no issue, the surviving husband or widow shall take five thousand dollars and one-half of the remaining personal property and one-half of the remaining real property. If the personal property is insufficient to pay said five thousand dollars, the de- ficiency shall, upon the petition of any party in interest, be paid from the sale or mortgage, in the manner provided for the payment of debts or legacies, of any interest of the 1 R. L. c. 140, § 2. See page 177 et seq., ante. 330 PROCEEDINGS IX THE PROBATE COURTS. deceased in real property which he could have conveyed at the time of his death. " If the deceased leaves issue, a surviving husband or widow shall take one-third of the remaining personal property and one-third of the remaining real property. " If the deceased leaves no kindred, a surviving husband or widow shall take the whole of the remaining real and personal property. " If the deceased leaves no husband, widow, or kindred, the whole of the remaining personal property shall escheat to the commonwealth." ^ " The surviving husband, except as provided in section thirty-six of chapter one hundred and fifty -three" (which authorizes a wife deserted by her husband or living apart from him for a justifiable cause to convey her real property by deed or will without his consent), " or the widow of a deceased person, at any time within one year after the pro- bate of the will of such deceased, may file in the registry of probate a writing signed by him or by her, waiving any provisions that may have been made in it for him or for 1 R. L. c. 140, § 3 ; Parkman v. McCarthy, 149 Mass. 504 ; Robiuson V. Simmons, 156 Mass. 126. The surphis of proceeds of land sold by an executor or administrator, remainiilg on settlement of his accounts, is considered real estate and is disposed of to the same persons and in the same proportions as the land would descend if not sold. R. L. c. 148, § 9. The statute extends to contingent as well as to vested interests. Dalton V. Savage, 9 Met. 37 ; Welsh v. Woodbury, 144 Mass. 545. Where a will does not dispose of the whole estate of a testator, property not disposed of therein passes to the next of kin and heirs at law as intestate property- Foster v. Smith, 156 Mass. 379. Children of the half blood inherit equally with those of the whole blood. Larrabee v. Tucker, 116 Mass. 562. An adopted child who is at the same time the grandson of the adopting father cannot in herit the property of his giandfather in a twofold capacity, as his son and as his grandson. Delano v. Bruerton, 148 Mass. 619. DESCENT AND DISTRIBUTION UNDER THE REVISED LAWS. 331 her, or claiming such portion of the estate of the deceased as he or she would have taken if tlie deceased had died in- testate, and he or she shall thereupon take the same portion of the property of the deceased, real and personal, that he or she would have taken if the deceased had died intes- tate ; except that if he or she would thus take real and personal property to an amount exceeding ten thousand dollars in value, he or she shall receive in addition to that amount only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the de- ceased ; and except that if the deceased leaves no kindred, he or she upon such waiver shall take the interest he or she would have taken if the deceased had died leaving kindred but no issue. If the real and personal property of the deceased which the surviving husband or widow takes under the foregoing provisions exceeds ten thou- sand dollars in value, the ten thousand dollars above given absolutely shall be paid out of that part of the personal property in which the husband or widow is interested ; and if such part is insufficient the deficiency shall, upon the petition of any person interested, be paid from the sale or mortgage in fee, in the manner provided for the payment of debts or legacies, of that part of the real property in which he or she is interested. Such sale or mortgage may be made either before or after such part is set off from the other real property of the deceased for the life of the hus- band or widow. " If, after probate of such will, legal proceedings have been instituted wherein its validity or effect is drawn in question, the probate court may, within said one year, on petition and after such notice as it may order, extend the time for filing 332 PROCEEDINGS IN THE PROBATE COURTS. the aforesaid claim and waiver until the expiration of six months from the termination of such legal proceedings." ^ " No surviving husband or widow of a deceased person shall make claim for an interest in the estate of such de- ceased or begin an action or other proceeding for the recov- ery thereof, unless such claim or action is made or begun within twenty years after the decease of the wife or hus- band, or after he or she has ceased to occupy, or to receive the profits of, his or her share of such real estate, ex- cept that if at the time of such decease the surviving husband or widow is absent from the commonwealth, under twenty-one years of age, insane or imprisoned, he or she may make such claim or begin such action or proceeding at any time within twenty years after such disability ceases." ^ " Lots in cemeteries incorporated under the provisions ^ R. L. c. 135, § 16. A widow filed her waiver and died before the probate of her husband's will. Held, that the waiver was sufficient and that her share of the estate passed to her representatives. Ather- ton V. Corliss, 101 Mass. 40. The privilege of waiver is a personal right which, if the widow is insane, neither she nor her guardian can exercise. Pinkerton v. Sar- gent, 102 Mass. oG8. But see R. L. c. 145, § 33. The income of the excess of the share above $10,000 is to be com- puted from the time of the death of the testator. Pollock v. Learned, 102 Mass. 40 ; Towle v. Swasey, 106 Mass. 106. For a case in which a widow waived the provisions of her husband's ■will and the meaning of the word " family," used in the will, was con- strued, see Townsend v. Townsend, 156 Mass. 454. A widow who has waived the provisions of her husband's will cannot avail herself of a provision for her in the will which operates as an ap- pointment of property under a trust deed. Fiske *;. Fiske, 173 Mass. 413. A widow who has not waived the provisions of her husband's will, by which he has given the entire estate to her, is not entitled to dower in land which in his lifptime was seised on an execution against him and set off to his creditors in full satisfaction of the judgment. Barn- ard y. Fall River Savings Bank, 135 ]\Iass. 326. 2 R. L. c. 132, § 13 ; O'Gara v. Neylon, 161 Mass. 140. DESCENT AND DISTRIBUTION UNDER THE REVISED LAWS. 333 of section one of chapter seventj-eiglit of the Revised Laws, tombs in public cemeteries, and lots and tombs in public cemeteries in towns, shall be held indivisible, and upon the decease of a proprietor of such lot the title thereto shall vest in his heirs at law or devisees subject to the follow- ing limitations and conditions : If he leaves a widow and children, they shall have the possession, care, and control of said lot or tomb in common during her life. If he leaves a widow and no children, she shall have such possession, care, and control during her life. If he leaves children and no widow, they shall have in common the possession, care, and control of such lots or tombs during their joint lives, and the survivor of tliem during his life. The persons in possession, care, and control of such lots or tombs may erect a monument and make other permanent improvements thereon. The widow shall have a right of permanent interment for her own body in such lot or tomb, but it may be removed therefrom to some other family lot or tomb with the consent of her heirs. If two or more persons are entitled to the possession, care, and control of such lot or tomb, they shall designate in writing to the clerk of the corporation, or, if it is a tomb or lot in a public cemetery, to the board of cemetery com- missioners, if any, or to the city or town clerk, which of their number shall represent the lot; and, in default of such designation, the board of trustees or directors of the corporation, the board of cemetery commissioners, if any, or the board of health if such lots or tombs are in public cemeteries in cities or towns, shall enter of record which of said persons shall represent the lot during such default. The widow may at any time release her right in such lot, but no conveyance or devise by any other person shall de- prive her of such right." 334: TKOCEEDINGS IN THE PHOBATE COURTS. " Before entering of record the name of any person to represent such lot or tomb, the board of cemetery com- missioners, if any, or the board of health of a town, shall hear the parties entitled to the control thereof at such time and place as it shall have previously appointed by a notice published in a newspaper, if any, of the town ; otherwise, by posting a copy in a public place therein." " A wife shall be entitled to a right of interment for lier own body in any burial lot or tomb of which her husband was seised during coverture, which right shall be exempt from the operation of the laws regulating conveyance, descent, and devise, but which may be released by her in the same manner as dower." " A husband shall have the same rights in the tomb or burial lot of his wife as a wife has in that of her husband, and may assert or release the same in the same manner as she may assert or release her rights."^ SUMMARY OF CHANGES MADE BY THE REVISED LAWS AS TO THE RIGHTS OF A SURVIVING HUSBAND IN THE PROPERTY OF HIS DECEASED WIFE AND AS TO THE RIGHTS OF A WIFE IN THE PROPERTY OF HER DECEASED HUSBAND. a. As to the Surviving Husband. Curtesy at common law is abolished, and, in place of it, the husband may, upon the death of his wife, hold one- third of her land for his life, provided he files his election and claim therefor in the registry of probate within one year after the date of the approval of the bond of the ex- ecutor or administrator of his wife. This estate is termed his tenancy by curtesy. If he does not file such an elec- tion and claim for curtesy, then under the provisions ot 1 R. L. c. 78, §§ 26-29 inclusive. DESCENT AND DISTKIBUTION UNDER THE REVISED LAWS. 335 section three of chapter one hundred and forty of the Revised Laws, if his wife dies intestate and leaves no issue, the surviving husband, after payment of debts of the wife and the charges of her last sickness and funeral and of the settlement of her estate, is entitled to five thousand dollars and one-half of the remaining personal property and one- half of the remaining real property, in fee ; and if the personal property is insufficient to pay the five thousand dollars, the deficiency is to be paid from the Sale or mort- gage, in the manner provided for the payment of debts or legacies, of any interest of the deceased wife in real property which she could have conveyed at the time of her death. If the deceased wife dies intestate and leaves issue, the sur- viving husband takes one-third of the personal property remaining after the payments of debts, etc., and one-third of the remaining real property. If the wife leaves a will, the surviving husband, at any time within one year after the probate of the will, may file in the registry of probate a writing signed by him waiving any provisions that may have been made in the will for him, or claiming such portion of the estate of his wife as he would have taken if she had died intestate, and he will thereupon take the same share of her property, real and personal, that he would have taken if she had died intestate ; except that if he would thus take real and personal prop- erty to an amount exceeding ten thousand dollars in value he will receive only the income during his life of the excess above ten thousand dollars, the personal property to be held in trust and the real property to be vested in him for life, from the death of the wife ; and except that if the wife leaves no kindred he will take, upon such waiver, the interest he would have taken if she had died leaving kindred but no issue. If the real and personal 336 PUOCEEDINGS IN THE PROBATE COURTS. propert)' of the wife which the surviving husband would take, upon such waiver, exceeds ten thousand dollars in value, the ten thousand dollars given absolutely is to be paid out of the personal property in which the husband is interested, and if such part is insufficient the deficiency is to be paid from the sale or mortgage of that part of the real property in which the husband is interested. h. As to the Surviving Wife. The surviving wife is entitled to dower at common law in the real property of her husband, provided she files her election and claim therefor in the registry of probate within one year after the date of the approval of the bond of the executor or administrator of her husband. If she does not file such election and claim, and if her husband dies intestate, the surviving wife, after the payment of such allowance as may be made by the probate court to her, including such provisions and other articles as are necessary for the rea- sonable sustenance of the family of the husband and the use of his house and of the furniture therein for six months next succeeding his death, and after payment of his debts, and the charges of his last sickness and funeral and of the settlement of his estate, is entitled to five thousand dollars and one-half of the remaining personal property and to one- half of the remaining real property, if her husband leaves no issue ; and to one-third of the remaining personal prop- erty and one-third of the remaining real property, if he leaves issue. If the personal property is insufficient to pay said five thousand dollars, the deficiency shall be paid from the sale or mortgage, in the manner provided for the pay- ments or debts or legacies, of any interest of the husband in real property which he could have conveyed at the time of his death. DESCENT AND DISTKIBUTION UNDER THE REVISED LAWS. 337 The surviving wife can waive the provisions of her hus- band's will in the same manner and with the same effect, in all respects, as above stated in regard to the waiver by a surviving husband of the provisions of the will of his deceased wife. From this brief summary it will be seen that husband and wife are placed on an equality by the Revised Laws, excepting that certain allowances may be made to her by the probate court for the temporary support of herself and her children and that she is given the use of her husband's house and of the furniture therein for six months next succeeding his death, free of charge for rent. For nearly seven hundred years prior to the date when the Revised Laws took effect, a widow had been entitled to the use of her husband's house free of rent for a period of forty days. This is now extended to six months. The dower rio-ht must now be claimed, even when the husband dies intestate, and the right of dower is superior to the claims of creditors, except where it has been released. If dower is not claimed, the widow, if her husband dies intestate and without issue, is entitled to property to the value of five thousand dollars and to one-half of the remaining personal property, and one-half of the remaining real property, absolutely ; and if the personal property is not sufficient to pay the five thousand dollars, real estate may be sold or mortgaged to make up any deficiency ; and if there are issue, the widow takes absolutely one-third of the personal property and one-third of the real property. This distribution is after payment of the debts, etc. ; but, in place of the use and income for life of one-third of the real estate, the widow is given one-third of the remaining real estate absolutely. If the personal property does not amount to five thousand dollars in value, after payment of 22 338 PROCEEDINGS IN THE PROBATE COURTS. the debts and charges, the deficiency is made up by the sale or mortgage of real estate, where there are no issue, and in many cases this would be greatly for the advantage of the widow. The practical result of the changes made by the Re- vised Laws is that a widow whose husband dies intestate and leaves issue takes absolutely one-third of all of her husband's property, after the payment of his debts and the charges of administration, and, if the husband does not leave issue, the widow will receive, after the pay- ment of debts and charges of administration, five thou- sand dollars and one-half of all of the remaining property, both real and personal, and this she will hold absolutely. The Revised Laws also provide that real estate may be sold for the purpose of paying any allowance made to the widow by the probate court. Under the former law the allowance could only be made out of the personal property. Notwithstanding the very liberal provisions of the Re- vised Laws, if the husband left much real estate and was heavily in debt it might be advisable for the widow to claim her dower. HOMESTEAD ESTATES OF WIDOWS AND MINOR CHILDREN. The estate of homestead existing at the death of a house- holder continues for the benefit of his widow and minor children, and shall be held and enjoyed by them, if one of them or a purchaser under the provisions of section ten of chapter 131 of the Revised Laws occupies the premises, until the youngest child is twenty-one years of age, and until the marriage or death of the widow. But all the right, title, and interest of the deceased in the premises in which such estate exists, except the estate of liomestead thus continued, is subject to the laws relating to devise, DESCENT AND DISTRIBUTION UNDER THE REVISED LAWS. 339 descent, dower, and sale for the payment of debts and legacies.^ " The real and personal property of a woman shall upon her marriage remain her separate property, and a married woman may receive, receipt for, hold, manage, and dispose of property, real and personal, in the same manner as if she were sole. But no conveyance by a married woman of real property shall, except, as provided in section thii-ty- six " [of chapter 153 of Revised Laws, which section authorizes a married woman who has been deserted by her husband or is living apart from him for justifiable cause to convey her real property as if she were sole], " extinguish or impair her husband's tenancy by the curtesy by statute or his rights to curtesy when this chapter " [chapter 153] " takes effect in such property unless he joins in the conveyance or otherwise releases his said rights." ^ If a deed of land is made to a married woman, who at the time of its execution mortgages such land to the grantor to secure the payment of the whole or a part of the purchase-money, or to a third party to obtain tlie whole or a part of such purchase-money, her seisin shall not give her husband an estate by the curtesy as against such mortgagee.^ If a widow is entitled by the provisions of law, by deed of jointure, or under the will of her husband, to an undi- vided interest in his real estate either for life or during widowhood, and her right is not disputed by his heirs or devisees, such interest may be assigned to her, in what- ever counties the lands lie, by the probate court for the ^ R. L. c. 131, § 8. An estate of homestead cannot be affected by the will of the householder. Brettun v. Fox, 100 Mass. 2:U. The right depends upon occupancy. Paul v. Paul, 136 Mass. 286. 2 R. L. c. 153, § 1 ; Ago v. Conner, 167 Mass. 390. 8 R. L. c. 132, § 2. 340 PROCEEDINGS IN THE PROBATE COURTS. county in which the estate of her husband is settled. Such assignment may be made upon her petition, or, if she does not petition therefor within one year from the decease of her husband, upon petition by an heir or devisee of her husband, by any person having an estate in the land sub- ject to such interest, or by the guardian of any such heir, devisee, or person.^ Upon such petition the court shall issue a warrant to three discreet and disinterested persons, who shall be sworn to perform their duty faithfully and impartially according to their best skill and judgment, and who shall set off the widow's interest by metes and bounds if it can be so done without damage to the whole estate. But if the estate out of which a widow's interest is to be assigned consists of a mill or other tenement which cannot be divided without damage to the whole, such interest may be assigned out of the rents or profits thereof, to be held and received by the widow as a tenant in common with the other owners of the estate .^ ESTATES OP DECEASED NON-RESIDENTS. " If administration is taken in this commonwealth on the estate of a person who was an inhabitant of any other state or country, his estate found here shall, after pay- ment of his debts, be disposed of according to his last will, if he left any duly executed according to law ; other- wise, his real estate shall descend according to the laws of this commonwealth, and his personal property shall be distributed and disposed of according to the laws of the state or country of which he was an inhabitant." ^ 1 R. L. c. 132, § 9. 2 Ibid. § 10. » R. L. c. 143, § 1 ; Welch v. Adams, 152 Mass. 76 ; Cowdea v. Jacobson, 165 Mass. 240. SETTLEMENT OF ESTATES OF ABSENTEES. 341 AS TO ILLEGITIMATE CHILDREN. An illegitimate child is the heir of his mother and of any maternal ancestor, and the lawful issue of an illegitimate person takes by descent any estate which such person would have taken if living. If an illegitimate child dies intestate and without issue, who may lawfully inherit his estate, his estate descends to his mother, or, in case she is not living, to the persons who would have been entitled thereto by inheritance through his mother if he had been a legitimate child. An illegitimate child whose parents have intermarried, and whose father has acknowledged him as his child, is deemed legitimate.^ SETTLEMENT OF ESTATES OP ABSENTEES. " If a resident of the commonwealth having property therein has disappeared, absconded, or is absent therefrom and has left no agent therein and his whereabouts are un- known ; or if such lesident, who has a wife or minor child dependent upon him wholly or partly for support, has dis- appeared without making suflicient provision for such support and his whereabouts are unknown, or if it is known that they are without the commonwealth ; or if 1 R. L. c. 133, §§ 3, 4, 5 ; Parkman v. McCarthy, 149 Mass. 502. A bastard and his issue cannot inherit from his mother's collateral kindred. Pratt v. Atwood, 108 Mass. 40 ; Haraden v. Larrabee, 113 Mass. 430. In Hayden v. Barrett, 172 Mass. 472, it was held that an illegitimate child was the " heir by blood " of his mother within the meaning of a will construed in that case. Pub. St8. c. 125, § 4, and St. 1882, c. 132 (now embodied in R. L. c 133, § 4), do not apply to the distribution of the estate of a child of an illegitimate child theretofore deceased. Sanford v. Marsh, 180 Mass. 210. 342 PKOCEEDINGS IN THE PROBATE COURTS. abandoned property of a person who is not a resident of the commonwealth is found therein and no agent therein is authorized to take care thereof, a person who would be entitled to administer upon the estate of such resident if he were dead, or such wife, or a person in behalf of such wife or minor child, or if abandoned property belongs to such non-resident any suitable person, may file a petition, under oath, in the probate court for the county in which any such property is located or found, stating the name, age, occupation, and last known residence or address of such absentee or of such non-resident, the date and cir- cumstances of the disappearance and the names and residence of the family of such absentee and of other persons of whom inquiry may be made, and containing a schedule of his property, real and personal, so far as known, and its location within the commonwealth, and praying that such property may be taken possession of and a receiver thereof appointed under the provisions of this chapter." " The court may thereupon issue a warrant directed to the sheriff or his deputy, which may run into and be served in any county, commanding him to take possession of the property named in said schedule, and hold the same sub- ject to the order of the court, and make return of said warrant as soon as may be with his doings thereon with a schedule of the property taken possession of by virtue thereof. The officer shall post a copy of the warrant upon each parcel of land named in the schedule and cause so much of the warrant as relates to land to be recorded in the registry of deeds for the county and district in which the land is located. He shall receive such fees for serving the warrant as the court allows, but not more than those established by law for similar service upon a writ of SETTLEMENT OF ESTATES OF ABSENTEES. 343 attacliment. If the petition is dismissed, said fees and the cost of publishing and serving the notice hereinafter pro- vided shall be paid by the petitioner. If a receiver is ap- pointed said fees and cost shall be paid by the receiver and allowed in his account." " Upon the return of such warrant, the court may issue a notice which shall recite the substance of the petition, warrant, and officer's return, and shall be addressed to such absentee or non-resident and to all persons who claim an interest in said property, and to all whom it may con- cern, citing them to appear at a time and place named and show cause why a receiver of the property named in the officer's schedule should not be appointed and said property held and disposed of under the provisions of this chapter." " The return of said notice shall be not less than thirty nor more than sixty days after its date. The court shall order said notice to be published in one or more news- papers within the commonwealth, once in each of three successive weeks, and to be posted in two or more con- spicuous places in the city or town in which the absentee last resided or was known to have been either temporarily or permanently, and upon each parcel of land named in the officer's schedule, and a copy to be mailed to the last known address of such absentee or non-resident. The court may order other and further notice to be given within or without the commonwealth." " The absentee or non-resident and any person who claims an interest in any of the property may appear and show cause why the prayer of the petition should not be granted. The court may after hearing dismiss the petition and order the property in possession of the officer to be returned to the person entitled thereto, or 344 PROCEEDINGS IN THE PROBATE COURTS. it may appoint a receiver of the property which is in the possession of the officer and named in his schedule. If a receiver is appointed the court shall find and record the date of the disappearance or ahsconding of the ab- sentee ; and such receiver shall give bond to the judge of probate and his successors in office in such sum and with such condition as the court orders, with a company named in section sixty-one of chapter one hundred and eighteen and approved by the court as surety thereon," " After the filing and approval of such bond the court may order the sheriff or his deputy to transfer and deliver to such receiver the possession of the property under the aforesaid warrant, and the receiver shall file in the reg- istry of probate a schedule of the property received by him." " Such receiver upon petition filed by him may be authorized and directed to take possession of any addi- tional property within the commonwealth which belongs to such absentee, or of any additional abandoned property which belongs to such non-resident, and to demand and collect all debts due such absentee from any person within the commonwealth, and hold the same as if it had been transferred and delivered to him by the officer." " The court may make orders for the care, custody, leasing, and investing of said property and its proceeds. If any of said property consists of live animals or is perish- able or cannot be kept without great or disproportionate expense, the court may, at any time after the return of the warrant, order such property to be sold at public or private sale. After the appointment of a receiver, upon his pe- tition and after notice, the court may order all or part of said property, including the rights of the absentee or of the non-resident in land, to be sold at public or private SETTLEMENT OF ESTATES OF ABSENTEES. 345 sale to supply money for payments authorized by this chapter or for re-investment approved by the court." " The court may order said property or its proceeds acquired by mortgage, lease, or sale to be applied in pay- ment of charges incurred or that may be incurred in the support and maintenance of the absentee's wife and minor children, and to the discharge of such debts as may be proved against said absentee." " The receiver shall be allowed such compensation and such disbursements as the court orders to be paid out of said property or its proceeds. If such absentee appears within fourteen years after the date of the disappearance and absconding as found and recorded by the court, the receiver shall account to him for, deliver, and pay over the unexpended balance of said property. If, within said fourteen years, an administrator, executor, assignee in insolvency, or trustee in bankruptcy of said absentee is appointed, such receiver shall account for, deliver, and pay over to him the unexpended balance of said property. If said absentee does not appear and claim said property within said fourteen years, all the right, title, and interest of said absentee in said property, real or personal, or the proceeds thereof, shall be barred, and no action, suit, or petition in any form shall be commenced by said absentee after the expiration of said fourteen years for or on ac- count of said property or its proceeds." " If, at the expiration of said fourteen years, said prop- erty has not been accounted for, delivered, or paid over under the provisions of the preceding section, the court shall order the distribution of the unexpended balance thereof to the persons to whom, and in the shares and proportions in which, it would have been distributed if said absentee had died intestate on the day fourteen years 346 PROCEEDINGS IN THE TROBATE COURTS. after the date of the disappearance or absconding as found and recorded by the court." " If such receiver of the property of an absentee is not appointed within thirteen years after the date found by the court under the provisions of section five, the time limited for accounting for, or fixed for distributing, said property or its proceeds, or for barring actions relative thereto, shall be one year after the date of the appoint- ment of the receiver instead of the fourteen years pro- vided in the two preceding sections. If within fourteen years after the date of the appointment of such receiver of the property of a non-resident, said non-resident or an administrator, executor, assignee in insolvency, or trustee in bankruptcy, of said non-resident does not appear and claim said property or its proceeds, all the right, title, and interest of said non-resident in and to said property, real or personal, or the proceeds thereof, shall be barred, and no action, suit, or petition in any form shall be begun by said non-resident after the expiration of said fourteen years for or on account of said property or its proceeds ; and the remainder thereof shall be distributed as provided in section eleven, as if said non-resident had died intestate on the day fourteen years after the date of the appoint- ment of the receiver." ^ EIGHT OF REPRESENTATION. Inheritance or succession " by right of representation " is the taking by the descendants of a deceased heir of the same share or right in the estate of another person as their parent would have taken if living.^ If the an- 1 R. L. c. U4, as amended by St. 1902, c. 544. 2 R. L. c. 133, § 6. NEXT OF KIN. 347 cestor leaves children, and there is no living issue of any deceased child, they will share his estate equally ; if he leaves grandchildren only, they will take it in equal shares ; and if he has no children or grandchildren living at the time of his death, his great-grandchildren, if any, being his lineal descendants, and all of an equal degree of consanguinity to him, will take the inheritance equally. But when the lineal descendants of the ancestor, living at the time of his death, are not of an equal degree of consanguinity to him, — as, for instance, when he leaves one son and two or more grandchildren who are the children of a deceased son, — the rule of representation applies. The son, in such case, takes half the estate, and the children of the deceased son represent their father, and, together, take the other half, which is the same share that their father would have taken if living. Or suppose the ancestor leaves B, his only surviving son, and D and E, grandsons by his deceased son, C, and F and G, great-grandsons by H, a daughter of C, H being also dead. Here would be lineal descendants living in three different degrees of consanguinity ; namely, a son, two grandsons, and two great-grandsons ; B, the son, would take the half estate ; D and E, two of the three children of C, would take two-thirds of the other half ; and F and G would take the remaining third of the second half ; and all would hold as tenants in common. AS TO THE NEXT OP KIN. The " next of kin," to whom the estate descends when the intestate leaves no issue, and no father, mother, brother, or sister, are to be ascertained by reference to the rules of the civil law, according to which the degrees of 348 PROCEEDINGS I>T THE PROBATE COURTS. kindred are computed.^ According to those rules, the father of the intestate stands in the first degree, his grand- father in the second, his great-grandfather in the third, etc. The child of the intestate is also in the first degree, his grandchild in the second, his great-grandchild in the third, the rule of computation being the same both in the ascending and descending lines. The degree of kindred in which a collateral kinsman stands is calculated by counting upwards from the intestate to the common an- cestor of both, and then downwards to such collateral relative, reckoning one degree for each person. Thus, the intestate and his cousin are related in the fourth degree ; the intestate's father being in the first degree, his grand- father, their common ancestor, in the second, his uncle, counting downwards from the common ancestor, in the third, his uncle's son (his cousin), in the fourth. The intestate's brother stands in the second degree, his nieces and nephews in the third.^ The statute makes no distinction between ascendants and descendants, and none between kindred on the father's and on the mother's side ; ^ but Tfhen there are two or more collateral kindred in equal degree, those claiming through the nearest ancestor are preferred to those claim- ing through an ancestor more remote. The intestate's nephew, for instance, is preferred to the intestate's uncle, though both are in the same degree of kindred. The 1 R. L. c. 133, § 2, For the meaning of the term " blood relations," see Cummings v. Cummings, 146 Mass. 507. See also Whall v. Con- verse, 146 Mass. 345. 2 Swasey v. Jaques, 144 Mass. 135 ; Fargo v. Miller, 150 Mass. 22.5. ^ The next of kin of a deceased intestate, being her paternal grand- mother and her maternal grandfather and grandmother, are each entitled to a third part of the intestate's estate. Kuapp v. Windsor, 6 Cush. 156 ; Balch v. Stone, 149 Mass. 42. OMISSION OF CHILD OR ISSUE IN WILL. 349 common ancestor of the intestate and his uncle is the intestate's grandfather, while the nephew claims through the intestate's father, the nearer ancestor.^ Kindred of the half hlood inherit equally with those of the whole blood in the same degree.^ ISSUE OF THE TESTATOR NOT PROVIDED FOR IN HIS WILL. " If a testator omits to provide in his will for any of his children or for the issue of a deceased child, they shall take the same share of his estate that they would have taken if he had died intestate, unless they have been pro- vided for by the testator in his lifetime, or unless it appears that the omission was intentional, and not occasioned by accident or mistake." ^ That the omission was intentional, and not occasioned by accident or mistake, may be manifest from the will 1 Minot V. Harris, 132 Mass. 528. 2 R. L. c. 133, § 2. "Heirs at law" means next of kin. White V. Stanfield, 146 Mass. 424 ; Kendall v. Gleason, 152 Mass. 457. The words " nearest of kin " mean nearest blood relations. Swasey V. Jaques, 144 Mass. 135 ; Kenistou v. Mayhew, 169 Mass. 169 ; Leon- ard V. Haworth, 171 Mass. 500. If the grantor in a declaration of trust, as well as the trustee, life tenant, and the remainderman whose " heirs at law '' are to take their shares in a certain contingency, are all domiciled in this state at the time of its execution here, and provision is made for the apppointment here of a successor in case of the trustee's death, such " heirs at law " are to be determined by the law of this commonwealth. Codman v. Krell, 152 Mass. 214. 8 R. L. c. 135, § 19. If the testator gives his daughter an annuity by will, and she dies in his lifetime, her issue born before the making of the will do not take any part of his estate, although the will contains no specific pro- vision for such issue. Wilder i', Thayer, 97 Mass. 439. Where the omission was occasioned by the testator's mistake as to the legal eifect of the will and its provisions, the children were allowed to share in the estate. Ignorance of the testator and oversight of the 350 PROCEEDINGS IN THE PROBATE COURTS. itself.^ It has been held that the fact that the child was named in the will, though no legacy was given to him, was sufficient to show that he was not forgotten by the testator, and that the omission to provide for him was intentional. And where the testator devised estate to the children of his daughter, describing them as such, but giving her no legacy, the same rule was applied.^ The fact that the omission was designed may also be shown by parol evidence.^ Evidence of declarations of the tes- scribe are alike grounds of relief. Ramsdill v. Wentworth, 101 Mass. 125. But see Hurley v. O'Sullivan, 137 Mass. 86. A testator gave a legacy to a child not his own, and afterwards adopted her. Held, that she was not entitled to share in his estate as if he had died intestate. Bowdlear v. Bowdlear, 112 Mass. 184. A testatrix gave all her estate to her husband, and had a child born a month after the will was made. It was found that the omission to provide for the child was intentional. Peters v. Siders, 126 Mass, 135. A child of a testator, born after his death, cannot, in any proper sense of the term, be deemed provided for in his will by a general devise of a reversion to the heirs of the testator. Waterman v. Haw- kins, 63 Maine, 156 ; Bowen v. Hoxie, 137 Mass. 527. The opinion of Judge Clifford in Loring v. Marsh, 2 Clifford 311, contains a review of all the then existing statutes and decisions upon^ this subject. There is no omission to provide by will for children, if there should be any living at the testator's decease, if, after a bequest to his wife, whom he knew to be pregnant at the time of making the will, he gave the rest of his property to a trustee to pay the whole income to her during life and the reversion to those who at the time of her death would be his heirs-at-law by blood. Minot, Petitioner, 164 Mass. 38. 1 Prentiss v. Prentiss, 11 Allen, 47. 2 Terry v. Foster, 1 Mass. 146 ; Church v. Crocker, 3 Mass. 17 ; Wild V. Brewer, 2 Mass. 570 ; Wilder v. Goss, 14 Mass. 357. 8 Ramsdill v. Wentworth, 101 Mass. 125 ; Buckley v. Gerard, 123 Mass. 8 ; Ingersoll v. Hopkins, 170 Mass. 403. Oral evidence that a testatrix who devised all her estate to her hus- band was a woman of great intelligence and capacity, and very fond of her children, who were of tender age and never separated from her, OMISSION OF CHILD OR ISSUE IN WILL. 351 tator is admissible to show that the omission was inten- tional.^ The burden of proof is upon the party opposing the claim of the child to show that the omission was intentional.2 The statute applies to children born after the making of the will, and before tlie death of the father ;^ but it has been held not to apply to cases where the tes- tator omits to provide for an illegitimate child.* Nor docs it apply to cases where the testator has a power of appoint- ment over the estate to dispose of the inheritance, but only to cases where it is the testator's own estate in fee.^ A child for whom the testator has unintentionally omitted to provide may cause his share of the personal estate to be ascertained by applying to the probate court for a decree of distribution. His share or proportion of the real estate, if certain and not disputed by parties interested, may also be assigned to him by the probate court ;^ if his share is disputed and uncertain, he must that she had great affection for her husband and the most perfect con- fidence in him, and that he was very devoted to her, is admissible and •will justify a finding that her omission to provide in her will for her children was intentional and not occasioned by accident or mistake although no declaration of the intention of the testatrix appears. Buckley v. Gerard, 123 Mass. 8. 1 Wilson ?;. Fosket, 6 Met. 400 ; Converse v. Wales, 4 Allen, 512. 2 Ramsdill v. Wentworth, 106 Mass. 320. ^ A testator gave a small legacy to each of his children, living at the date of his will, by name (all of whom died before liim without issue), and the residue of his property to his wife ; and afterwards had other children born to him. Held, that evidence of his having said to his wife, since the birth of his younger children, " You will have all there is," was not sufficient to show an intent to omit to provide for them in his will, and that they were entitled to the same share of his estate as if he had died intestate. Bancroft v. Ives, 3 Gray, 367. * Kent V. Barker, 2 Gray, 535. 5 Sewall V. Wilmer, 132 Mass. 131 ; Blagge v. Miles, 1 Story, 426 ' See post, chap, xvii., on Partition. 352 PKOCEEDINGS IN THE PllOBATE COURTS. apply to the common law courts for an assignment of his share of the real estate. POSTHUMOUS CHILDREN. " If a child of the testator, born after his father's death, has no provision made for him by his father in his will or otherwise, he shall take the same share of his father's estate which he would have taken if his father had died intestate." ^ Devisees and legatees are required to contribute equally, in proportion to the value of what they respectively receive under the will, to the share of a pos- thumous child or a child omitted in the will of his parent, unless there is some provision in the will requiring a dif- ferent apportionment, in order to give effect to the intention of the testator as to that part of his estate which passes by his will.2 ISSUE OP DEVISEE OR LEGATEE DYING IN THE TESTATOR'S LIFETIME. " If a devise or legacy is made to a child or other relation of the testator, who dies before the testator, but leaves issue surviving the testator, such issue shall, unless a dif- ferent disposition is made or required by the will, take the same estate which the person whose issue they are would have taken if he had survived the testator," ^ 1 R. L. c. 135, § 20; Bowen v. Hoxie, 137 Mass. 527. 2 R. L. c. 13.5, § 25 ; Bowen v. Hoxie, supra. 3 R. L. c. 135, § 21. Stockbridge, Petitioner, 145 Mass. 519; O'Rourke v. Beard, 151 Mass. 9; Ladd v. Chase, 155 Mass. 417; Lee r. Gay, 155 Mass. 423. A testator by his will bequeathed the residue of his estate to A. and B., the latter being the testator's brother-iu-law, "to be equally divided between them, share and share alike, to them and their heirs DESCENT AND DISTRIBUTION. 353 SETTLEMENT OF ESTATES OF NON-RESIDENTS. " If administration is taken in this commonwealth upon the estate of a person wlio was an inhabitant of another state or country, his estate found here sliall, after payment of his debts, be disposed of according to his will, if he left any duly executed according to law ; otherwise his real property shall descend according to the laws of this com- monwealth, and his personal property shall be distributed and disposed of according to the laws of the state or country of which he was an inhabitant." " After the payment of all debts for which such estate is liable in this commonwealth, the residue of the personal property may be distributed and disposed of, as provided in the preceding section, by the probate court; or, in the discretion of the court, it may be transmitted to the execu- tor or administrator, if any, in the state or country of which the deceased was an inhabitant, to be there disposed of according to the laws thereof." ^ and assigns." B. died in the testator's lifetime, and it was held that the legacy to him lapsed. Ilorton v. Earle, 162 Mass. 448. A wife is not a " relation " within the meaning of the statute. Esty V. Clark, 101 Mass. 36. Nor is a stepson. Nor is a brother-in- law. Horton v. Earle, supra. Only relations by blood are intended. Kimball v. Story, 108 Mass. 382. In the case of a bequest of an annuity for life, the issue of the lega- tee, born before the making of the will, do not take any share in the estate. Wilder v. Thayer, 97 Mass. 439. See Morse v. Mason, 11 Allen, 36; Sears r. Putnam, 102 Mass. 10; Moore w. Weaver, 16 Gray, 305 ; Paine v. Prentiss, 5 Met. 396. 1 R L. c. 143, §§ 1, 2; Dawes v. Boylston, 9 Mass 337; Stevens r. Gaylord, 11 Mass. 256; Hooker v. Olmstead, 6 Pick. 481; Fay v. Haven, 3 IMet. 109; Emery r. Batchelder, 132 ftlass. 452; Newell V. Peaslee, 151 Mass. 603 ; Welch v. Adams, 152 Mass. 77; Cowden v. Jacobson, 165 Mass. 240. As to distribution of insolvent estates of non-residents, see page 236. 23 354 PKOCEEDINGS IN THE PKOBATE COURTS. The distribution of intestate estates is within the pecu- liar and exclusive jurisdiction of the probate courts.^ The administrator, or any of the distributees, on application to the probate court, can obtain a decree of distribution specifying the names of persons who are entitled to share in the estate, and the amount to which each is entitled. In the great majority of cases of persons dying intestate, the heirs and distributees will be the children, parents, brothers, and sisters, or other near connections, all of whom may be known to the administrator ; and in such cases the administrator is practically safe in paying to each distributee the amount to which he is entitled, and taking his receipt therefor, without first obtaining a decree of distribution. But when the heirs or any of them arc residing out of the commonwealth, or when the adminis- trator has doubts as to who is entitled to share in the estate, or as to the proportions of the several heirs, he should apply to the court for a decree of distribution. And a decree, made after such notice as the court may order, settles the facts as to who are entitled, and what kin are living, and will protect an administrator, acting in good faith, in conforming to it ; ^ and he is held by his bond to distribute the estate as the court may order. ^ The heirs and next of kin of an intestate, after conveying to other persons all their interest in his real and personal estate, are not enti- tled, against the wish of their grantee, to a decree for the assignment and distribution of real estate held by the administrator under his foreclosure of a mortgage thereof to the intestate. Stevens v. Palmer, 15 Gray, 505. A distributive share in a minor intestate's estate is attachable by trustee process as soon as the administrator thereof has given bond and received letters of administration, although the minor's guardian still holds the personal estate, and his final account has not been filed or allowed. Mechanics' Savings Bank r. VVaite, 150 Mass. 234. 2 Loring v. Steiaeman, 1 Met. 204; Pierce v. Prescott, 128 Mass. DESCENT AKD DISTRIBUTION. 355 A decree of distribution may also be necessary to enable the next of kin to bring a suit on the bond of an unfaith- ful administrator for the recovery of his distributive share of the estate. THE PETITION FOR DISTRIBUTION. The petition for a decree of distribution should state the names and residences of each of the supposed distrib- utees, the degree of kindred in which each of them stands to the intestate, the balance in the hands of the adminis- trator for distribution, the amount of any advancement made by the intestate in his lifetime to either of the heirs, and whether such advancement was made from the real or personal estate, or both. The petition may be made by the administrator, or any party interested in the distribution. Upon such petition, such notice must be given as will be most likely to reach the parties interested.^ The supreme court of probate, in the case of an English sub- ject dying in this commonwealth, has ordered notice to be published in a London newspaper. The order, what- 140; Shores f. Hooper, 153 Mass. 232; Defriez v. CoflBn, 155 Mass. 203 ; Lamson v. Knowles, 170 Mass. 297. A testator gave a share of his estate, consisting of personalty here, and laud in another state, to his brother's wife, who was domiciled there, " to have and to hold the same to her daring her life, and at her decease to her heirs at law and their heirs and assigns for- ever." It was held, that as to the personalty which remained at her death, it should go to her heirs at law according to the statutes of distribution then in force in Massachusetts. Lincoln v. Perry, 149 Mass. 368. ^ Under the pro\nsion that notice may be dispensed with when all the "parties entitled thereto" give their assent in writiug or waive notice, creditors of the estate are entitled to notice. Browne v. Doolittle, 151 Mass. 595. 356 PROCEEDINGS IN THE PROBATE COURTS. ever may be its terms, must be complied with by the petitioner, before a decree of distribution can issue.^ THE DISTRIBUTION. A decree of distribution expressed in the general terms used by the statute to designate the heirs at law is not sufficient. It is for the court to ascertain who are the existing individuals entitled, under the statute, to share in the estate, to decree distribution to them by name, and determine the amount due to each.^ If all the parties ^ An action will not lie against an administrator for a distributive share of the estate before a decree of distribution. Cathaway v. Bowles, 136 Mass. 54. 2 Loring v. Steineraan, 1 Met. 204. The court will not order a dis- tributive share to be paid to a person to whom the heir has assigned it ; the investigation of such an assignment is not within the jurisdic- tion of the probate court. Knowlton v. Johnson, 40 Me. 489 ; Wood V. Stone, 2 Chandler (N. H.), 572. Nor will the court order the share of an heir to be paid to tlie other heirs on the ground that he is indebted to them. Hancock v. Hubbard, 19 Pick. 167. See Lenz v. Prescott, 144 Mass. 515. The widow's distributive share may be assigned to her, although by an ante-nuptial agreement she released all claims on her husband's estate. Sullings v. Richmond, 5 Allen, 187 ; Blackinton v. Blackin- ton, 110 Mass. 461. But the agreement will be enforced in equity. Tarbell v. Tarbell, 10 Allen, 278; Paine v. Hollister, 139 Mass. 144. An executor, administrator, or trustee, having in charge any prop- erty subject to a tax on collateral successions, shall deduct the tax therefrom, or shall collect the tax from the person entitled to the property, and he shall not deliver property or a specific legacy subject to the tax to any person until he has collected the tax. R. L. c. 15, §5. Whenever the devisee, legatee, or heir, who has paid any such tax, afterwards refunds any portion of the property on which it was paid, or it is judicially determined that the whole or any part of such tax ought not to have been paid, the tax or the due proportional part of it shall be paid back to kim by the executor, administrator, or trustee. Ibid. § 15. DESCENT AND DISTRIBUTION. 357 appear upon notice, or are known to be living, these questions are easily determined. A more difficult ques- tion sometimes arises when a descendant or next of kin of the intestate is absent from the state and cannot be found. Whether such person shall be included in the distribution, as he is entitled to be if living, must be determined by the rules of evidence and presumptions of facts from circumstances which are resorted to by all tribunals in determining questions of fact. The possibility of mistake cannot prevent the distribution, and the distribution when made must be of the entire estate. If such absent heir left his usual home for temporary purposes of business or pleasure, and has not been heard from or known to be living for the term of seven years, the presumption of life ceases and that of his death arises. It must appear that he has not been heard of by those persons who would be likely to hear of him, or that search has been ineffectu- ally made for such a person.^ This presumption of death may be rebutted by counter-evidence. Where other cir- cumstances concurred, the fact of death has been found, without direct evidence, from the lapse of a shorter period than seven years ; as, when the party sailed in a vessel which had not been heard from for a much longer time than was necessary for the accomplishment of the voy- age ; 2 but the presumption of law does not attach to the mere lapse of time short of seven years. If such person was unmarried at the time he went abroad, there is no presumption of his subsequent mar- riage ; and if the fact of his marriage is proved, there is no presumption that he left issue. These are facts to be 1 France v. Andrews, 15 Adol. & E. 756 ; Marden i'. Boston, 155 Mass. 359. 2 Watson V. King, 1 Stark. 97. 358 rROCEEDINGS IN THE PROBATE COURTS. proved, and the burden of proof of the affirmative is on the party who avers it.^ Under some circumstances, it is impossible to ascertain with certainty what persons are entitled to inherit an estate, as when several near relatives perish by shipwreck or other common disaster.^ In the absence of all evidence of the particular circumstances of the calamity, it is presumed that all perished together, and that therefore neither could transmit rights to the other. Thus, where a father and his only child perished at sea, there being no evidence showing which survived, it was decided that his estate should go to his nephews and nieces, his heirs at law, and not to her uncles and aunts, who would have taken it if she had survived her father and the estate had vested in her.^ It would be reasonable and proper to hold that one of middle age and in the full vigor of life would ordinarily survive a mere infant or a person well stricken in years. And evidence of circumstances, how- ever slight, attending the disaster, is important, as from slight circumstances inferences of fact materially affecting the question may be drawrn. The time when distribution can be properly made must depend upon the circumstances of each case. If all the persons entitled to shares are known, the distribution may be made at any time after the debts are paid.^ But as the administrator is liable to the actions of creditors for two years after he gives bond, the payment of any distributive 1 Loring v. Steineman, 1 Met. 211 ; Doe v. Griffin, 15 East, 293; In the Goods of Main, 1 Swa. & Trist. 11. 2 Batchelder, Petitioner, 147 Mass. 465. 8 Coye V. Leach, 8 Met. 371. * If legacies or distributive shares are paid within two years, the legacy tax thereon is payable at the time the same are paid. R. L. c. 15, § 4. DESCENT AND DISTRIBUTION. 359 share during the continuance of such liability may be at- tended with risk, unless the distributee first gives bond, as the court may require him to do, for the protection of the administrator.! The court, after notice to all persons interested, may, subject to the rights of creditors, order a partial distribu- tion, when it can be made without detriment to the estate.^ If by the provisions of a will a legacy is to be distributed in whole or in part among the heirs or next of kin of any person, or among persons of a certain class, the probate court, upon the application of any person interested, after notice, may order distribution to be made among such persons as according to the will seem to be entitled to the legacy.^ A debt due to the estate from an heir or distributee is set off against and deducted from his share of the estate. The probate court determines as to the validity and amount of the debt, and may make all decrees and orders which may be necessary or proper to carry into effect such set-off or deduction ; but this shall not prejudice any remedy of an executor or administrator for the recovery of such debt nor affect the liability of the legatee or distribu- tee for the excess of his indebtedness over the amount of his share in or claim upon the estate to which he is indebted.* ^ R. L. c. 141, § 20. A decree allowing distribution of all the personal estate before the end of the two years of administration is void as to creditors prosecuting their claims within that period, lirowne v. Doolittle, 151 Mass. 59-5. See Newell v. Peaslee, 151 Mass. 601. 2 R. L. c. 141, § 21 ; Browne v. Doolittle, supra; Welch v. Adams, 152 Mass. 85; Shores v. Hooper, 153 Mass. 233. 3 R. L. c 141, § 22. * Ibid. § 23; Rlackler v. Boott, 114 Mass. 24. A debt due from a legatee which at the death of the testator was barred by the statute of limitatious cannot be deducted from the 360 rKOCEEDINGS IN THE PROBATE COURTS. ADVANCEMENTS. The subject of advancements is necessarily to be consid- ered in connection with the descent and distribution of intestate estates. Advancements may be made of real or personal estate, and to any child or other lineal descendant. They are usually made with a view of establishing a son in business, or on the event of marriage. If the advance- ment is equal to, or exceeds, the amount in value of the share which the child would have taken in the estate, if no advancement had been made, such child will be excluded from any share in the distribution ; if it is less in amount, such child will be entitled to sufficient in the distribution to make up his full share, and no more. If he dies before the intestate, leaving issue, the amount of his advance- ment is regarded as so much received by his representa- tives towards their share of the estate, in like manner as if the advancement had been directly to them.^ He is not required to refund any part of the advancement, although it exceeds his share ; ^ and interest is not to be computed on it.^ If the advancement is made in real estate, its value is considered as part of tlie real estate to be divided ; if in personal estate, as part of the personal estate ; and if in either case it exceeds the share of real or personal estate, respectively, that would have come to the heir so advanced, he does not refund any part of it, but receives so much legacy, unless the language of the will clearly expresses such an intention. Allen v. Edwards, 136 Mass. 138. This statute relates only to personal estate. Jones v. Treadwell, 169 Mass. 430. 1 R. L. c. 140, § 8. 2 Ibid. § 4 ; Steams v. Stearns, 1 Pick. 161. * Osgood V. Breed, 17 Mass. 356. DESCENT AND DISTRIBUTION. — ADVANCEMENTS. 361 less out of the other part of the estate as will make his whole share equal to those of the other heirs who are in the same degree with him.^ Questions concerning advancements are determined by the probate court, and the judgment of the court is con- clusive, unless appealed from. Questions as to advance- ments of personal property are settled by the decree of distribution, and of real estate by the decree of partition.^ EVIDENCE OF ADVANCEMENTS. The advancement must be proved to have been intended as such, chargeable on the child's share of the estate ; otherwise, it will be deemed an absolute gift or a loan, as the case may be. The statute prescribes what shall be the requisite evidence of an advancement : " Gifts and grants shall be held to have been made as advancements, if they are expressed in the gift or grant to be so made, or if charged in writing as such by the intestate, or acknowledged in writing as such by the party receiving them."^ It is not expressly provided that an advance- 1 R. L. c. 140, § 5 ; Bemis v. Stearns, 16 Mass. 200. 2 The probate court in which the estate of a deceased person is settled may hear and determine all questions of advancements arising in relation to such estate, or such questions may be heard and deter- mined upon a petition for partition either in the superior court or the probate court ; but when such a question arises upon a petition for partition, the court may suspend proceedings until the question has been decided in the probate court in which tlie estate of the deceased is settled. R. L. c. 140, § 9. When a child in consideration of a sum paid him by his father, by way of advancement, releases his claim to his share of the inheritance, although the sum so paid was much less than his share of his father's estate at his death would have been worth, it shall bar him of his share. Kenney v. Tucker, 8 Mass. 142. 3 R. L. c. 140, § 6 ; Cummings v. Bramhall, 120 Mass. 552. 362 PROCEEDINGS IN THE PROBATE COURTS. mcnt shall not be proved in any other manner, but that is undoubtedly the meaning of the statute. It has accord- ingly been held that where a note was given by a son for money received by him of his father, oral testimony was inadmissible to prove that the money so received was an advancement.^ Various sums of money, charged by the parent in the usual way of keeping accounts, have been held not to be an advancement.''^ And where land was conveyed by the father to the son, there being nothing in the deed to show the fact, it was held not to be an advance- ment.^ The execution of a will merges all prior advance- 1 Barton v. Rice, 22 Pick. 508. 2 Ashley, Appellant, 4 Pick. 21. 3 Billiard v. Bullard, 5 Pick. 527. A written acknowledgment, signed by husband and wife, in these words, " Received of J. S. .$500, it being a part of my wife's poition," and found among the notes of J. S. after his decease, is sufficient proof of an advancement to the wife. So of an acknowledgment in writing by a husband, whose wife is insane, of a gift from her father for bei- support, " as a part of her portion out of her father's estate," preserved by the father in a bundle of letters relating to her support at an insane asylum. A book of accounts kept by the deceased, with three leaves cut out, together with evidence of his declarations that he had made charges in his book, as advance- ments to his children, are not competent evidence of such advancements. Hart well v. Rice, 1 Gray, 587. Where a child gave a receipt for articles delivered, promising to return them if called for, and the parent wrote in the receipt that they were to answer as a part of the child's portion, it was held to be an advancement. So of the words, " articles that I let my daughter N. have," in a book containing memoranda by a parent of advancements to his other children. Bulkeley v. Noble, 2 Pick. 337. Entries in book left by the intestate, showing "the moneys I have advanced to my children se-\ erally, and to which I shall give credit to any or each of them as they may pay me from time to time," show loans of the children, not advancements. Bigelow v. Poole, 10 Gray, 104. Children agreed in writing that sums of money received by them from their father should be treated as advancements in the settlement of his estate, the agreement having been made in the lifetime of the DESCENT AND DISTRIBUTION. — ADVANCEMENTS. 363 ments,^ unless a different provision is made in the will, it being deemed that the testator graduated the amount of his legacies with reference to them ; but the execution of a will which is afterwards revoked cannot operate as a merger.2 VALUE OP ADVANCEMENTS. The statute prescribes the manner in which the value of advancements shall be ascertained. " If the value of an advancement is expressed in the conveyance, in the charge thereof made by the intestate, or in the acknowl- edgment by the party receiving it, such value shall be adopted in the division and distribution of the estate ; otherwise it shall be determined according to the value when the property was given." ^ THE widow's share WHEN ADVANCEMENTS HAVE BEEN MADE. The widow is entitled only to her share in the residue after deducting the value of the advancement.* distribution WHEN ADVANCEMENTS HAVE BEEN MADE. To ascertain the share to which each heir is entitled, in a case where advancements have been made : first, if there is a widow, deduct from the sum to be distributed one- third for her share ; to the remainder add the advance- father, and without his knowledge. Held, that the agreement was not sufficient to establish an advancement. Fitts v. Morse, 103 Mass. 164. And see Bacon v. Gassett, 13 Allen, 334 ; Cummings v. Bram- hall, 120 Mass. 553. 1 Jones V. Richardson, 5 Met. 247 ; Jaques v. Swasey, 153 JNIass. 596. 2 Hartwell v. Rice, 1 Gray, 587. 3 R. L. c. 140, § 7. * Ibid. § 4. 364 PROCEEDINGS IN THE PROBATE COURTS. mcnt of each heir who has received less thayi a full shared and divide tlie sum by the number of such heirs. The quotient will be the amount of a full share of the estate. Each heir who has had no advancement will be entitled to a full share, and each of the others to a full share less the amount of his advancement. Thus, suppose the adminis- trator's final account shows a balance in his hands of $9,000 ; that the intestate left a widow, four children, A, B, C, and D, and two grandchildren, sons of E, a deceased son of the intestate, and that A has been ad- vanced $2,000, C $1,000, D $800, and E $400: — Amount to be distributed $9,000 Deduct widow's share, one-third 3,000 $6,000 Add A's advancement 2,000 « C's " 1,000 « D's « 800 « E's " 400 There being five shares 5)10,200 Amount of a full share $2,040 A will take 40 B, having had no advancement, will take a full share 2,040 C will take 1,040 D " " 1,240 The two grandsons together will take 1,640 $6,000 ^ To find whether either of the heirs has received more than a full share, add all the advancements to the remainder, and divide the amount by the number of all the heirs ; if the quotient be less than the advancement made to any heir, such heir and the amount of his advancement must be altogether omitted in the computation. PAYMENT OF DISTRIBUTIVE SHARES. 365 PERPETUATION OP EVIDENCE OP PAYMENTS UNDER THE DECREE OP DISTRIBUTION. — DISCHARGE OF EXECUTOR, ETC. The decree of distribution contains the names of all the persons entitled to share in the personal estate of the deceased, and specifies the amount to which each is entitled. The administrator is directed to give written notice, by mail or otherwise, to each of the persons named in the decree of the amount due him or her, and if any sum remains for six months unclaimed, the executor, administrator, guardian, or trustee, who was ordered to pay the same, may deposit it in a savings-bank or other like institution, or invest it in bank stocks or other stocks, as the probate court may direct, to accumulate for the benefit of the person entitled thereto. The deposit or investment is made in the name of the judge of the pro- bate court for the time being, and subject to the order of the judge and his successors in office. The person who makes such deposit or investment is required to file in the probate court a memorandum thereof, with the original certificates, deposit book of the bank, or other evidences of title thereto, which shall be allowed as a sufficient voucher for such payment. When the person entitled to the money deposited or invested satisfies the judge of his right to receive it, the judge shall cause it to be paid over and transferred to him.^ 1 R. L. c. 150, § 23. The limitation of the amount any one person can deposit in a sav- ings-bank and receive interest thereon does not apply to such deposits. R. L. c. 113, § 25, The interest of a distributee is equitable only in money ordered by the probate court to be paid to him, and upon his refusal to receive it, deposited prematurely by the administrator in a trust company, which in its certificate of deposit acknowledges the receipt of the money for 366 PROCEEDINGS IN THE PROBATE COURTS. When an executor, administrator, guardian, or trustee has paid or delivered to the persons entitled thereto the money or other property in his hands, as required by a decree of the probate court, he may perpetuate the evi- dence thereof by presenting to the probate court, within one year after the decree is made, an account of such pay- ments or the delivery of such property ; which being proved to the satisfaction of the court, and verified by the oath of the accountant, shall be allowed as his final dis- charge. Such discharge will forever exonerate the ac- countant and his sureties from all liability under the decree, unless his account is impeached for fraud or manifest error.^ The administrator may conveniently render his account of payments and deposits made under a decree of distri- bution by returning to the court the original decree, with the receipts of the several distributees and certificates of deposit or deposit books, and his own certificate of the fact that the terms of the order have been complied with. In a majority of cases, the administrator is practically safe in taking receipts from the persons to whom he makes payments, without rendering a further account ; but it is only by rendering such an account that he can obtain a formal discharge from liability under the decree. When the person entitled to a sum of money deposited in a savings-bank by the administrator under a decree of distribution satisfies the judge of his right to receive the same, the judge will cause it to be paid over to him. the distributee and promises to pay the amount to the judge of pro- bate or his assigns ; and the fund so deposited cannot be reached by trustee process as the property of the distributee. Chase v. Thomp- son, 153 Mass. 14:. » R. L. c. 150, § 20 ; Browne i;. Doolittle, 151 Mass. 596. DEPOSIT OF UNCLAIMED DISTRIBUTIVE SHARES. 3G7 The person so entitled to the money should make a peti- tion in writing to the court showing the grounds of his claim, and, if the money is ordered to be paid to him, should procure an attested copy of the order for presenta- tion at the bank.i FINAL DISTRIBUTION OF SUMS OF MONEY DEPOSITED OR INVESTED BY ORDER OF PROBATE COURTS. " The probate court may, upon the petition of any person interested and after public notice, order all money or the proceeds thereof deposited or invested by its authority and which shall have remained unclaimed for a period of twenty years from the date of such deposit or investment, to be paid to the residuary legatee, if any, of the testator to whose estate the money belonged, or, if such residuary legatee is dead, to his heirs who are living at the time of such distribution : and if no such residuary legatee or any of his heirs be then livijig, or if the deceased person died intestate, said money and the proceeds thereof shall be disposed of and distributed among the persons entitled thereto and in the manner provided by chapter one hun- dred and forty. The court shall first require from the person or persons to whom such sums shall be ordered to be paid, a sufficient bond of indemnity with two sufficient sureties to be approved by the judge of probate, with con- dition to repay to the person or persons for whose benefit such deposit or investment was originally made, or to the personal representatives of such person or persons, all sums paid over by the order of the court under the provisions of this section." ^ 1 R. L. c. 150, § 23; Chase v. Thompson, 153 Mass. 15. « R. L. c. 150, § 26. 368 PROCEEDINGS IN THE PROBATE COURTS. The provisions of section 25 of chapter 113 of the Re- vised Laws, limiting the amount of deposits which a sav- ings-bank or institution for savings can receive from one person to one thousand dollars, and limiting the sum on which interest may be allowed to sixteen hundred dollars (made up of the principal of one thousand dollars and ac- cumulated interest thereon), do not apply to deposits made in the name of a judge of probate or by order of court. ^ " The probate court, court of insolvency, or other court, respectively, shall, upon the application of any person interested or of the attorney-general, and after public notice, order and decree that all sums of money heretofore or hereafter deposited with such corporation " (a savings- bank or institution for savings), " by authority of any of said courts or of a judge thereof, and which shall have remained unclaimed for a period of more than five years from the date of such deposit, with the increase and pro- ceeds thereof, to be paid to the treasurer and receiver- general, to be held and used by him according to law, subject for fifteen years only to be repaid to the person having and establishing a lawful right thereto, with inter- est at the rate of three per cent per annum from the time it is so paid to said treasurer to the time it is paid over by him to such person." ^ BALANCES IN THE HANDS OF PUBLIC ADMINISTRATORS. " When an estate has been fully administered by a pub- lic administrator, he shall deposit the balance of such estate remaining in his hands with the treasurer and re- ceiver-general, who shall receive and hold it for the benefit of those who may have lawful claims thereon." ^ 1 R. L. c. 113, § 25. 2 Ibid. § 55. ' R. L. c. 138, § 12. The probate court has authority to order a DESCENT AND DISTRIBUTION. — PUBLIC ADMINISTRATORS. 369 '' The probate courts shall require every public admin- istrator in their respective counties to render an account of his proceedings under any letters of administration at least once in each year until the trust has been fulfilled. And when, upon a final settlement of an estate, it appears that moneys remain in the hands of such administratoj', which by law should have been deposited with the treas- urer of the commonwealth, the court shall certify that fact and a statement of the amount so withheld to said treas- urer, who, unless such deposit is made within one month after the receipt of such notice, shall cause the bond of the administrator to be prosecuted for the recovery of such moneys." " If, at any time within six years after a public admin- istrator has made deposit with the treasurer of the balance of an estate remaining in his hands, any person applies to the probate court which granted letters of administration on said estate and makes it appear that he is legally entitled by the will of the deceased or otherwise to the administration of said estate, the court shall grant admin- istration thereof, or, upon probate of such will, shall grant letters testamentary to such applicant, or at his request to some other suitable person ; but before grant- ing such administration, the court shall order personal notice of the application to be served, at least fourteen days before the heariug, upon a public administrator of the county, who shall appear in behalf of the com- monwealth." " After the expiration of thirty days from the appoint- ment of an executor or administrator as provided in the public administrator to distribute the balance of an estate among the next of kin of the intestate. Parker v. Kiickeua, 7 Allen, 609. 24 370 PROCEEDINGS IN THE PROBATE COURTS. preceding section, if no appeal is claimed by any person interested, the treasurer shall pay over to such executor or administrator all money deposited in the treasury to the credit of such estate, to be administered in like manner as the estates of other deceased persons." " Upon the death, resignation, or removal of a public administrator, the probate court shall issue a warrant to some other public administrator in the same county, on his application therefor, requiring him to examine the accounts of such late public administrator touching the estates on which he has taken out letters of administration, and to return into the probate court a statement of all of such estates that are not fully administered, and of the balance of each estate that remained in the hands of such public administrator at the time of his death, resignation, or removal. And thereupon the court shall issue to the public administrator making the return, upon his giving the requisite bond, letters of administration upon such of said estates as are not already administered, although the personal estate remaining may not amount to twenty dollars." " When a public administrator neglects to return an inventory, to settle an accouut, or to perform any other duty incumbent on him in relation to an estate, and there appears to be no heir entitled to such estate, the district- attorney for the district within which the administrator received his letters shall, in behalf of the commonwealth, prosecute all suits and do all acts necessary and proper to insure a prompt and faithful administration of the estate, and the payment of the proceeds thereof into the treasury of the commonwealth ; and if no heir has, within two years after the granting of letters of administration, appeared and made claim in the probate court for his DESCENT AND DISTRIBUTION. — PUBLIC ADMINISTRATORS. 371 interest in such estate, it shall be presumed that there is no such heir, and the burden of proving his existence shall be upon the public administrator." " When the total property of an intestate which has come into the possession or control of a public adminis- trator is of a value less than twenty dollars (unless the same is the balance of an estate received from a prior public administrator), he shall forthwith reduce all such property into money, not taking administration thereon, and shall deposit such money, first deducting his reason- able expenses and charges, with the treasurer of the com- monwealth, who shall receive and hold it for the benefit of any persons who may have legal claims thereon. Such claims may be presented to the auditor of the common- wealth within one year from such payment to the treasurer and receiver-general, and the auditor shall examine such claims and allow such as may be proved to his satisfaction, and upon the expiration of the year shall forthwith certify the same to the governor and council for payment of the whole of the claims, or such proportion thereof as the funds will allow." " A public administrator, upon making such deposit, shall file with the treasurer and receiver-general a true and particular account, under oath, of all his dealings, receipts, payments, and charges on account of the prop- erty from which the money so deposited proceeds, includ- ing the name of the intestate, if known to him, and the treasurer and receiver-general shall thereupon deliver to him a receipt for such money. Such deposit shall exempt the public administrator making it from all responsibility far or on account of the money so deposited." ^ 1 R. L. c. 138, §§ 13-19. 372 PROCEEDINGS IN THE PROBATE COURTS, PAYMENTS TO GUARDIANS AND TRUSTEES APPOINTED IN OTHER STATES. " A guardian appointed within the commonwealth, whose ward removes from or resides out of the commonwealth, may sell the real property of his ward, and transfer and pay over the whole or any part of the proceeds and the whole or any part of the ward's personal property to a guardian, trustee, or committee appointed by competent authority in the state or country in which the ward re- sides, upon such terms and in such manner as the probate court by which he was appointed may, after notice to all parties interested, decree upon petition filed therefor," ^ " An executor, administrator, or trustee, who has in his hands personal property belonging to a person under guar- dianship residing out of this commonwealth and having no guardian appointed therein, may pay over and transfer the whole or any part of such personal property to a guardian, trustee, or committee appointed by competent authority in the state or country in which such person resides, upon the terms and in the manner required by the provisions of section twenty-five of chapter one hundred and forty-six." ^ " If all living parties who are interested as beneficiaries in a trust created by will which is proved and allowed in this commonwealth reside out of this commonwealth, the probate court which has jurisdiction of the trust may, upon petition of the parties in interest, or of the executor, ad- ministrator, or trustee, if it considers it just and expedient, authorize the executor, administrator, or trustee to pay over the fund to a trustee appointed by the proper court 1 R. L. c, 146, § 25; Talbot v. Chamberlain, 149 Mass. 61. 2 R. L, c. 145, § 36. PAYMENTS TO FOREIGN GUARDIANS, ETC. 373 in any other state or country, if all the beneficiaries who are living and the executor, administrator, or trustee signify their consent, and the court is satisfied that the laws of such other state or country secure the due per- formance of said trust ; and upon such payment, shown to the satisfaction of said probate court, the executor, administrator, or trustee appointed here may be discharged from further responsibility by decree of said court." "If there are contingent interests in such trust fund, whether the persons who may be entitled thereto are in being or not, or if any of the beneficiaries are minors, the court, before making an order or decree, shall cause such interests and minors to be properly represented by guardians ad litem or otherwise at its discretion." ^ 1 R. L. c. 150, §§ 27, 28. CHAPTER XVII. PAETITION OF LANDS IN THE PROBATE COURT. The probate court in which the estate of a deceased person is in course of settlement or has been settled may, upon petition of any party interested, make partition of all the land of such deceased person lying within the commonwealth, among his heirs or devisees and all per- sons holding under them by conveyance or otherwise; and the probate court has concurrent jurisdiction with the superior court of petitions for partition of lands held by joint tenants or tenants in common, if the shares do not appear to be in dispute or uncertain.^ 1 R. L. c. 184, §§ 34, 31. Partition is a matter of right, and neither mere inconvenience nor the fact that the land is subject to a right of way is sufficient to prevent it Crocker v. Cotting, 170 Mass. 68, 70. No man can be held to a tenancy in common of land without his own consent. O'Brien v. Mahoney, 179 Mass. 200. Partition may be made in the probate court between heirs even where the estate of the ancestor is in course of settlement and where there is a pending claim of one of the heirs against the estate which, if allowed in full, is greater than the inventoried value of the real and personal property of the estate. O'Brien v. Mahoney, supra. Cases ichere Petition for Partition can be maintained. Persons entitled to life estates in land as tenants in common can have partition, but such partition will not affect rights of I'emainder- men. Judkins v. Judkins, 109 Mass. 181. The owner of an undivided share in land may maintain a petition for partition, although persons not ascertained are entitled to a con- PARTITION OF LANDS. 375 As early as 1693, the provincial legislature of Massa- chusetts provided that " all persons holding any lands, tingent remainder in otiier shares, and although petitioner's share is subject to an overdue mortgage. Taylor v. Blake, 109 Mass. 513. Property subject to easements may be partitioned. Weston v. Foster, 7 Met. 297; Crocker v. Cotting, 170 Mass. 68. Under statutes giving to a widow an absolute title in fee simple to an undivided part of the lands of which her husband died seized, she is a tenant in common with the other heirs and entitled to partition. Sears v. Sears, 121 Mass. 267; Easthara v. Barrett, 152 Mass. 56; Brownell *'. Briggs, 173 Mass. 529, 531. A mortgagor not in possession, under a mortgage of an undivided half of a parcel of land, may maintain a petition for partition. Rich V. Lord, 18 Pick. 322. Cases where Petition for Partition cannot be maintained. Partition cannot be had on petition of all of the co-tenants. Swett V. Bussey, 7 Mass. 503 ; Winthrop v. Minot, 9 Cush. 405. Proceedings for partition cannot be instituted in the probate court pending a petition for partition begun by some of the heirs and an action by the widow of the intestate for the recovery of her dower in the supreme court. Stearns v. Stearns, 16 Mass. 167 ; Miller v. County Commissioners, 119 Mass. 485. [St. 1892, c. 169, provided that the supreme judicial court should no longer have original jurisdiction of petitions for partition, writs of entry, or other real actions.] Buildings owned in common but standing on land to which the petitioners do not claim title, are not the subject of partition. Rice v. Freeland, 12 Cush. 170. A tenant in common of two parcels of land in different proportions, of one parcel as co-tenant with one person and of the other as co-tenant with the same person and others, cannot have judgment for partition of both parcels on one petition. Hunnewell v. Taylor, 3 Gray, 111. A judgment creditor who has levied his execution on real estate held by liis debtor in common with third persons, cannot maintain a petition for partition until after the expiration of the year within which the debtor may redeem. Pheljis v. Palmer, 15 Gray, 499. A partition cannot be granted, although all the parties in interest desire it, where by a codicil to a will the legal estate in the lands is vested in the executors with authority, in order to avoid the expense and labor of a partition among the testator's devisees, to sell the real estate and to divide the net proceeds of sales among the devisees 376 PROCEEDINGS IN THE PROBATE COURTS. tenements, or hereditaments as co parceners, joint tenants, or tenants in common, may be compelled by writ of parti- tion at common law to divide the same," Writs of partition, recognized by Pub. Sts. c. 178, § 1, although abolished in England in 1834 and superseded in Massachusetts in practice by petitions for partition, could still be used in this commonwealth until they were abol- ished by Rev. Laws, c. 184, § 1. O'Brien v. Mahoney, 179 Mass. 200. The proceedings for partition among heirs and devisees and all persons holding under them, must be in the pro- bate court of the same county in which letters testamen- tary or of administration were regularly granted. No other probate court can have jurisdiction ; and if the grant of administration was void for want of jurisdiction, the court in which such void administration was granted has no power to order partition.^ No partition shall be made by the probate court if it finds that the shares of the respective parties are in dis- pute, or are uncertain by reason of depending upon the construction or effect of a devise or other conveyance, or upon other questions which the court considers should be determined by another tribunal.^ When it appears, by adverse claim or otherwise, that the shares are in dispute according to the respective interests devised to them in the original ^will. Gerard v. Buckley, 137 Mass. 475. A petition for partition of land cannot be maintained if the mort- gagee of the land has entered for condition broken and is in actual possession of the premises at the time of the filing of the petition. O'Brien v. Bailey, 163 Mass. 325. For a case where a contingent life estate prevented partition, see Faxon v. Faxon, 174 Mass. 509. 1 Sigourney v. Sibley, 21 Pick. 101. « R. L. c. 184, § 43. PARTITION OF LANDS. 377 or uncertain, the court may order the case to be removed to the superior court, and the statute provides that it shall be so removed at the request of any party in interest.^ But if the court has properly assumed jurisdiction and issued a warrant to commissioners, it may retain its juris- diction, although it subsequently appears that the shares or proportions of the parties are uncertain.^ Partitions may be made notwithstanding the existence of a lease of the whole or a part of the estate to be divided ; but the partition cannot prejudice the right of a lessee. Partitions may be made notwithstanding any of the ten- ants in common may be, alone or jointly with others, trustee, attorney, or guardian of any other tenant.^ No partition shall be defeated by the payment by any party to it of any mortgage, lien, tax, or other incumbrance when the other parties have a right to redeem. But in such case the interlocutory decree shall determine the terms of redemption from a contribution on account of such payment. Final judgment for partition shall not be entered till the terms of the interlocutory judgment have been complied with.* When an estate or right of homestead exists in property in which other parties have an interest, the party entitled to the homestead, or any other party interested, may upon petition have partition thereof like tenants in common.^ ^ R. L. c. 184, § 32. It is the duty of the probate court to make the partition if there is no real uncertainty as to the shares or proportions of the parties, although one of the parties may insist that there is a dispute or controversy concerning them. Dearborn v. Preston, 7 Allen, 192; Elliot v. Elliot, 137 Mass. 116; Eastham v. Barrett, 152 Mass. 57; Lowd v. Brigham, 154 Mass. 108. 2 R. L. c. 184, § 46 ; Potter v. Hazard, 11 Allen, 187. 8 R. L. c. 184, §§ 50, 51 ; Willard v. Willard, 145 U. S. 116. 4 R. L. c. 184, §§ 12, 22. « R. L. c. 131, § 11. 378 PROCEEDINGS IN THE PROBATE COURTS. When a widow is entitled to an undivided interest in lands owned by her husband as tenant in common, the probate court may empower commissioners to make parti- tion of the lands so owned in common, and then to assign to the widow her interest in the portion set off to the estate of her husband.^ The wife of a man who is under guardianship may join with the guardian, and the guardian of a woman may join with her husband, in making partition of her real estate, held in joint tenancy or in common, and they may make any release or other conveyance necessary or proper for that purpose, in like manner as the parties might do if neither of them was under legal disability.^ The statute requires that the "partition, when made on the application of an heir, shall be made of all the estate that descended from the ancestor, and which any party interested, whether the applicant or others, requires to have included in the partition ; and when made on the application of a devisee, it shall be made of all the estate held by the applicant jointly or in common with others holding under the testator, which he or any other devisee requires to have included. The same rule applies when the application is made by any person holding under an heir or devisee.^ Upon such partition the court may set off to the peti- tioner his share and leave the residue of the land for the persons entitled thereto, subject to a future partition ; or it may set off to the persons entitled to said residue their respective shares therein. If two or more of such persons 1 R. L. c. 132, § 11; Elliot v. Elliot, 137 Mass. 116; Eastham v. Barrett, 152 Mass. 57. 2 R. L. c. 153, § 18. See also St. 1902, c. 478. 8 Arms V. Lyman, 6 Pick. 210; R. L. c. 184, § 39. PARTITION OF LANDS. 379 consent to hold their shares undivided, such shares may be so set off.^ When a part of the real estate of the deceased lies in common and undivided with that of another person, the court may, before making partition among those claiming under the deceased, cause the real estate of the deceased to be divided and set off from the part held by such co-ten ant.2 A widow's right to dower is no bar to a partition among tenants in common.^ If a person to or for whom a share has been assigned is evicted by a person who at the time of the partition had a title older and better than those who were parties to the action for partition, the person so evicted may have a new partition of the residue, as if partition had not been made.* If, after a first partition, improvements have been made on a part of the land which by a new partition is taken from the share of the party who made the improvements, he shall be entitled to compensation therefor, which shall be determined and awarded by the commissioners and paid by the party to whom such part of the land shall be assigned on the new partition, and the court may issue an execution therefor. 1 R. L. c. 184, § 40 ; Gordon v. Pearson, 1 Mass. 328 ; Thayer v. Thayer, 7 Pick. 209. The survivor takes a vested inheritable fee defined by its value until duly set out or assigned, which descends like other real estate. Eastham v. Barrett, 152 Mass. 56. Estates in remainder are not within the purview of these statutes. Watson ('. Watson, 150 Mass. 85. 2 R. L. c. 184, § 44. 8 Ward v. Gardner, 112 Mass. 42. * R. L. c. 184, § 29. The provisions of this section apply also to partitions made in the probate court under R. L. c. 184, § 31. O'Brien V. Mahoney, 179 Mass. 200. 380 PROCEEDIXGS IN THE PROBATE COURTS. A person who holds land under a partition made under the provisions of chapter 184 of the Revised Laws shall, in case of an eviction, be entitled to compensation for im- provements made thereon.^ PRELIMINARY PROCEEDINGS IN PROBATE COURT. Proceedings for partition in the probate court are com- menced by petition signed by one or more of the parties interested in the real estate. The petitioner should state the proportion which his share bears to the whole estate, and whether he claims as heir, devisee, or tenant in com- mon, or otherwise. The names and residences of all the other parties interested should be stated, and if any of them are married women, the names of their husbands ; if any are minors, the fact should appear, and the names and residences of the guardians, if any, should be stated. A petition for partition of all the real estate of a person whose estate is in course of settlement in the probate court, need not contain a description of the premises to be divided, except where a part of the real estate lies in common and undivided with that of another person.2 If any part of the land of the deceased lies in common with that of another person, a description of such land should be annexed to the petition, and the share of the deceased therein, and the names of the co- tenants should be stated. If there are any advancements made by the deceased to be considered in making the par- tition, the several sums advanced and the names of the persons who received them should be fully stated.^ 1 R. L. c. 184, §§ 54, 55. 2 INlarsh v. French, 159 Mass. 469. ^ On a petition for partition, if the petitioner's right to recover depends upon the trial of the issue whether his omission from his PARTITION OF LANDS. 381 When a widow is entitled to an undivided interest in lands owned by her husband as tenant in common, and does not apply for partition within one year from the decease of her husband, the heir or devisee of the husband, or any person having an estate in the lands subject to her interest, may petition.^ A guardian may petition for the partition of his ward's real estate, except where he has an interest adverse to that of the ward in the estate to be divided.^ Notice of the petition is required to be given to all the parties interested to appear and show cause against it. The citation may be issued by the register of probate on any day when the petition is filed in the probate office. The notice must be served fourteen days at least before the time appointed for the hearing on the parties person- ally, if they can be found within the commonwealth, and, if not, it must be published once in each of three successive weeks, before such hearing, in such newspaper or news- papers as the court shall order. But such notice may be dispensed with when all the parties in interest signify in writing their assent to the partition or waive notice.^ father's will was intentional, he is entitled to open and close. Hurley V. O'Sullivan, 137 Mass. 86. A tenant in fee simple of land subject to the estate to which the widow of an intestate without issue is entitled in an undivided half thereof, may maintain a petition for partition against the widow as to so much of his interest as he has in possession, and the court may, under R. L. c. 184, § 47, order the land to be sold. Allen v. Libbey, 140 Mass. 82. A person not named in the petition to entitle himself to appearand answer, after a trial upon the merits and tlie verdict of a jury, must first show that he has some title or interest in the land. Fales v, Fales, 148 Mass. 42. 1 R. L. c. 132, § 11. 2 R_ L, c. 145^ § 27. 3 R. L. 0. 184, § 35 ; R. L. c. 162, § 45. 382 PROCEEDINGS IN THE PROBATE COURTS. If a part of the land of the deceased lies in common and undivided with that of another person, the probate court may, before making partition among those claiming under the deceased, cause the land of the deceased to be set off from the part held by such co-tenant. A notice of the intended partition containing a description of the land to be divided, with a statement of the share claimed to belong to the estate of the deceased, and of the time and place appointed for a hearing, shall be served by delivering to the co-tenant an attested copy, or by leaving such copy at the place of his abode in this commonwealth fourteen days at least before the time appointed for the hearing.^ All persons who would be bound by the partition are entitled to notice, whether they have an estate of inheri- tance, for life or years, in possession, remainder, or rever- sion, and whether vested or contingent, and if the petitioner holds an estate for life or years, the person entitled to the remainder or reversion is entitled to notice as one of the parties interested. In cases in which remainders or estates are devised or limited to, or in trust for, persons not in being at the time of the application for partition, notice must be given to the persons who may be parents of such persons, setting forth the origin and nature of the remainder or interest so devised or limited. The notice may be given personally or by publication, or in such other manner as the court may order, as provided in sections 5 and 6 of chapter 184 of the Revised Laws.^ At the time named in the order of notice, any person interested may appear and be heard upon the petition. The statute requires that the court shall appoint a disin- terested person to act for any heir, devisee, or other })erson interested in the land, who is absent from the common- 1 R. L. c. 184, § 14. 2 Ibid. § 52. PARTITION OF LANDS. 383 wealth, ill all things relative to the partition ; and that, if any infant or insane person is interested in the land, and has no guardian within the commonwealth, it shall appoint a guardian ad litem.^ And in cases in which remainders or estates are devised or limited to, or in trust for, persons not in heing at the time of the application for partition, the court appoints a suitable person to act as the next friend of such persons in all proceedings touching the partition, the cost of whose appearance and services, including compensation of his counsel to be determined by the court, shall be paid by the persons who apply for partition, and execution may be issued therefor in the name of the person appointed. ^ In cases where it appears that any part of the lands to be divided belongs to persons having different interests, so that an estate for life or for a term of years belongs to one person, and the remainders are devised or limited to other persons, the court may appoint a trustee to receive and invest any distributive share of the money arising from such partition to which such persons may be entitled, the annual income to be paid over to the person in whom was the estate for life or term of years, and the principal, after the termination of such estate, to the persons to whom such remainders were devised or limited, when they can be ascertained and are entitled thereto.^ If, upon the hearing, it appears that the partition prayed for should be made, the court appoints three or five disin- terested persons as commissioners to make the division. If the land to be divided lies in different counties, the judge may, if he thinks fit, issue a separate warrant and appoint different commissioners for each county ; and the partition in such case is made in each county in like 1 R. L. c. 184, § 36. 2 Ibid. § 52. « Ibid. § 49. 384 PROCEEDINGS IN THE PROBATE COURTS. manner as if there were no other land to be divided, or the entire land may be divided by the same commission- ers.^ The warrant states the name of each heir or devisee, and the share of the estate to which each is entitled. If there are any advancements made by the deceased to be considered in makinjjj the partition, the names of the persons who received the advancements and the sum received by each should also be stated in the warrant or in a paper appended thereto. If upon the death of any of several plaintiffs or peti- tioners in a suit for partition the interest of the deceased party passes to the surviving plaintiffs or petitioners, or to any i)erson admitted to join them in the suit, it shall be prosecuted in the manner provided respecting real actions ; but if the interest of the deceased party passes to a person not so admitted as a plaintiff or petitioner, such person may, by order of the court, be made a defendant or re- spondent, and the same proceedings may be had against him as would have been necessary to make him an original defendant or respondent. If upon the death of any of several defendants or re- spondents the interest of the deceased party passes to the surviving defendants or respondents, the suit may proceed against them without any new process ; but if the interest of the deceased party passes to any other person, that person may be made a defendant or respondent in the manner prescribed in the preceding section.^ PROCEEDINGS OF THE COMMISSIONERS. Before proceeding to make the partition, the commis- sioners must make oath that they will faithfully and 1 R. L. c. 184, §§ 37, 38. « R. L. c. 171, §§ 14, 15; Richards v. Richards, 136 Mass. 126. PARTITION OF LANDS. 385 impartially execute their duties, and a certificate of their oath should be made on the warrant by the justice who administers it.^ The commissioners are required to give sufficient notice of the time and place appointed by them for making the partition to all persons interested who are known and are within the state, and to the agent of any absent heir or devisee appointed by the court. The notice should be in writing and signed by the commissioners, and served upon each of the persons interested, by giving him a copy thereof, or leaving a copy at his place of abode ; and a return, stating the manner in which the service was made, should be indorsed by the officer or other person making it, upon the original notice. If the service was made by a person other than an officer qualified to serve civil process, the return should be accompanied by his affidavit. All the commissioners are required to meet for the performance of any of their duties, but the acts of a majority of them are valid.^ At the time and place appointed for making the parti- tion, the commissioners proceed to appraise all the estate 1 A warrant or commission for the appraisal of an estate, for ex- amining the claims on insolvent estates, for the partition of laud, or for tlie assignment of dower or curtesy or other interests in land, may be revoked by the court for sufficient cause, and a new commission may be issued or other appropriate proceedings taken. R. L. c. 162, §34. The court shall determine the compensation of private persons who perform service required by law, or in the execution of legal process, if no other provision therefor is made. R. L. c. 204, § 23. This statute applies to fees of appraisers of estates of deceased persons, of commissioners for making partition of real estate, and to fees of many other persons appointed to perform service required by law or in the execution of legal process. 2 R. L. c. 184, § 13. 25 386 PROCEEDINGS IN THE PROBATE COURTS. to be divided, and, after hearing the parties who may be present, to make the partition among the persons entitled tliereto, regard being had to the value of the advance- ments, if any, made by the deceased in his lifetime.^ The petitioner's share is not alone to be set off, but the share of each person interested is to be assigned to him, unless two or more of the parties consent to hold their shares together and undivided. And the partition must embrace the entire estate wlien either of the parties interested re- quires it. If there are several parcels of land, the com- missioners are not obliged to set off to each heir a portion of every parcel, but they may assign to one, or more, or all, an entire parcel each, as the situation of the land may make it advisable.^ If a part of the land cannot be divided without great inconvenience to the owners or is of greater value than the share of any party, or if all the land cannot be divided "without such inconvenience, the whole or any part thereof may be set off to any one or more of the parties, upon payment by him or them to any one or more of the others of such sums of money as the commissioners may award to make the partition just and equal.^ 1 As to advancements, see page 3C0. 2 Hagar v. Wiswall, 10 Pick. 152; Barnes v. Lynch, 1.51 Mass. 510, 513. The commissioners may assign to the petitioner all the right in a passageway theretofore appurtenant to the whole estate " to become exclusively appurtenant to the share set off to the petitioner," the way being upon other land of the petitioner, and the parcel set off to the respondent being separated from it by that set off to the petitioner. Mount Hope Iron Co. v. Dearden, 140 Mass. 430. 8 R. L. c. 184, § 41 ; Thayer /•. Thayer, 7 Pick. 200. When heirs agree that the commissioners shall assign the greater part to the eldest son, on his paying them such sums of money as the commissioners shall award to make the partition just and equal, and the estate is so assigned, and they receive the money awarded to them, they thereby PARTITION OF LANDS. 387 If a party dies during the pendency of the petition, the share or proportion belonging to him may be assigned in his name to his estate, to be held and disposed of in the same manner as if the partition had been made prior to his decease.^ SALE OF LAND THAT CANNOT BE ADVANTAGEOUSLY DIVIDED. In any case of partition the court may, at the time of appointing commissioners, or subsequently by agreement of parties, or at any time after notice to all persons inter- ested, order the commissioners to make sale and convey- ance of the whole or any part of the land that cannot be advantageously divided, upon such terms and conditions and with such securities for the proceeds of such sale as the court may order, and to distribute and pay over the proceeds of the sale in such manner as to make the partition just and equal. If the court orders such sale before the commissioners are appointed, it may appoint one waive their strict legal rights, and cannot afterwards, when the rights of others are affecteil, avoid the division by showing that the estate might have bpen divided among them all without great prejudice to the whole. White v. Clapp, 8 Met. 365; Jenks v. Rowland, 3 Gray, 536, and cases cited. A conveyance by one tenant in common of land purporting to give a good title in severalty to a particular portion of it, cannot affect the right of the other tenants in common to have partition of the estate. Barnes v. Boardman, 157 Mass. 479. ^ R. L. c. 184:, § 33. The commissioners may permit the parties to state their preferences and to give their reasons for any particular division of the land, but are not required to hear experts or other -wit- nesses as to the effect thereof upon the parties, or upon adjoining property owned by them in severalty; nor are they bound by admis- sions made by the parties. Hall v. Hall, 152 Mass. 13G. The judge of probate has no authority to settle lands assigned for dower, after the widow's term has expired, on one or more of the next of kin to the exclusion of the others. Hunt v. Hapgood, 4 Mass. 117 ; Sumner v. Parker, 7 Maas. 79. 388 PROCEEDINGS IN THE PROBATE COURTS. commissioner to make such sale, conveyance, and division of its proceeds. The sale is made by public auction, after like notice as is required for the sale of lands by executors and administrators, and the evidence thereof may be per- petuated in like manner by returns filed with the register of probate. The conveyance is made by the commis- sioners, and is conclusive against all parties to the pro- ceedings for partition, and against those claiming by, through, or under them. The statute provisions for the protection of purchasers at sales by executors or adminis- trators apply to sales by the commissioners.^ A distribu- tive share of the money arising from the sale remaining unpaid at the time of confirming the proceedings, or of establishing the partition, is deposited in such savings- banks or other like institutions as the court may direct, in like manner as distributive shares remaining unclaimed in the hands of administrators are deposited.^ Prior to 1870, on an application for partition of lands there was no power to order a sale. RETURN OF THE COMMISSIONERS, AND PROCEEDINGS THEREON. The return of the commissioners should fully set forth their proceedings under the warrant. The fact that they gave notice to parties interested of the time and place of making the partition should appear in their report, and the fact that the persons notified were present, or not, should be stated. The original notice to parties, with the 1 For these provisions, see R. L. c. 148, § 19. 2 R. L. c. 184, §§ 47, 48; Allen v. Libbey, 140 Mass. 84 ; Drew v. Carroll, 154 Mass. 184. A sale may be ordered by the court after the commissioners have made their report. Ramsey v. Humphrey, 162 Mass. 385. PARTITION OF LANDS. ' 389 return of the person who made the service, should be annexed to the report. Their appraisal of the several parcels of real estate should be stated in words at length, and the share assigned to each heir or devisee should be described by metes and bounds. When a piece of land of more value than one equal share of the estate is given to one of the heirs, the fact that it could not be divided without great inconvenience to the owners should be stated, in terms, in the return, and the sums of money to be paid by such heir to the other owners should be stated. The commissioners should also present with their report a statement of the expenses, including their own compensation, of making the partition. The warrant under which they acted must be returned with their report. If the report of the commissioners is satisfactory to all the persons interested, they should certify their approval thereof in writing before it is presented to the court ; and if either of the parties is entitled to a sum of money, to be paid by one or more of the other parties, under an award of the commissioners, some delay and expense may be avoided if his certificate of the fact that the money has been paid or secured to his satisfaction is returned with the report; unless the parties interested express their assent to the establishment of the partition as made by the commissioners, notice to them will be ordered before any decree is made upon the report. If the commissioners were ordered to sell the land, their report should state the amount received from the sale, the names of the persons among whom the proceeds were dis- tributed, and the sum paid to each ; they should file with their report the receipts of the persons to whom the money was paid, and an affidavit that notice of the time 390 PROCEEDINGS IN THE PROBATE COURTS. and place of the sale was given as ordered by the court, together with a copj of such notice. Any party interested may appear and object to the report of the commissioners. In all cases, the court may, for any sufficient reason, set aside the return, and commit the case anew to the same or other commissioners.^ Any mistoke, neglect, or misconduct on the part of the com- missioners, by which an injustice is done to either party interested, would, of course, be sufficient reason for set- ting aside the return. And it is a valid objection that the division made by them is unequal or inconvenient.^ 1 R. L. c. 184, § 56; Hall v. Hall, 152 Mass. 136. The respoudent in a petition for partitioa of laud who does not object to an interlocu- tory judgment for partition, cannot, at a hearing ujion the motion to confirm the commissioners' report, set uji want of title in the peti- tioner as a bar to the petition. Mount Hope Iron Co. v. Dearden, 140 Mass. 430. Upon the question of setting aside the return of the commissioners, parol evidence of their proceedings not appearing in the return is competent so far as it tends to show mistakes of law made by the commissioners which materially affect the equality or justice of the distribution. Hall v. Hall, supra. If the warrant to the commissioners describes the boundary line or one of the lots as " running by " a lane, their return is not iiregular because it includes land to the centre of the lane as part of the premises. Hall v. Hall, supra. - But as the committee is appointed by the court, and persons selected on whose integrity and judgment the court thinks it can safely rely, and against whom neither party can raise any objection, great confidence is placed by the court in the I'eport of the committee; and it will not be held to be any objection to a report that witnesses can be found who will testify that the division is, in their opinion, unjust or inconvenient. To induce the court to set aside the report, the inequality or inconvenience must be clearly and distinctly pointed out, and shown to the court by clear and direct evidence. It is much more safe to rely upon the judgment of an impartial committee than upon the opinion of witnesses selected by the parties. — Kichakdson, C. J., in Morrill v. Morrill, 5 N. H. 329. See Peck v. Metcalf, 8 R. I. 386 ; Field v. Hanscomb, 15 Maine, 365 ; Wilbur r. Dyer, 39 Maine, 169. PARTITION OF LANDS. 391 The partition cannot be confirmed by a decree of the court until all sums of money awarded by the commis- sioners to make the partition equal are paid to the persons entitled thereto, or .secured to their satisfaction or that of the court. A decree without such payment or security is erroneous, and is not a bar to a subsequent partition on tlie petition of the party to whom the money was awarded.! The partition is made complete by a decree of the court accepting the report of the commissioners and assigning to each of the parties interested a share of the land in severalty. Expenses of the Partition. — The expenses and charges of the proceedings shall be allowed by the court and paid by all the parties interested in the partition in proportion to their respective interests, and the court may issue execution therefor.^ 1 R. L. c. 184, § 53; Jenks v. Rowland, 3 Gray, 536; Thayer v. Thayer, 7 Pick. 209 ; Newhall v. Sadler, 16 Mass. 122. An informal decree of the probate court confirming the return of the commissioners cannot afterwards be invalidated for want of a more formal and technical decree of division. White v. Clapp, 8 Met. 365. A proceeding in the probate court pursuant to an agreement between tenants in common for partition of the estate, although incompetent to effect the partition, was held equivalent to a license from each of the tenants that each might enter and occupy the part assigned to him by such intended partition until the commencement of legal process for partition, which was held to be a revocation of such license. Pond v. Pond, U Mass. 403. By an appeal from a decree of the probate court accepting the return of the commissioners for the division of an estate, the return is open to every objection that could lawfully have been made to its acceptance in the court below. Sever v. Sever, 8 Mass. 132. 2 R. L. c. 184, § 42. The commissioners are entitled to compensa- tion for their services and expenses if they acted faithfully and impartially, although their return is not accepted, or their charges 392 PKOCEEDINGS IN THE PROBATE COURTS, Record of the Partition. — The return of the commis- sioners, when accepted by the court, remains in the registry of probate ; but the statute requires that a copy thereof, certified by the register, shall be recorded in the registry of deeds for each of the several counties or districts wliere tlie lands lie.^ UPON WHOM THE PARTITION IS BINDING. The partition, when finally confirmed and established, is conclusive on all the heirs and devisees of the deceased, and all persons claiming under them ; and on all other persons interested in the premises who appeared and answered in the case, or assented in writing to the pro- posed partition, or upon whom notice of the petition was served, personally or by publication, or who waived notice, or for whom an agent was appointed, and upon all persons claiming under them. All other persons may pursue their legal remedies for recovering the land, or any part thereof, allowed by the probate court, and may maintain an action therefor against the petitioner for the partition. And the petitioner or other party to the proceedings who has paid the expenses of making the partition is entitled to contribution from all the other parties in inter- est, and may maintain actions therefor and obtain the execution pro- vided for by the statute. Potter v. Hazard, 11 Allen, 187; Langdon V. Palmer, 133 Mass. 413. Judgment was rendered upon the report of the commissioners on a petition for partition of land that their report be accepted and that *' partition be made," and it was further ordered that " the case be continued nisi upon the question of costs." Before anj' adjudication on this question the petitioner died, and his administrator was admitted by the court to prosecute the case. It was held, that the administrator was erroneously admitted to prosecute, and that costs could not be awarded against the respondent. Richards v. Richards, 136 Mass. 126. 1 R. L. c. 184, § 57. PARTITION OF LANDS. 393 and for obtaining partition of the same, as if the proceed- ings in the probate court had not been had.^ While a partition, when finally confirmed and estab- lished, is conclusive on a person having a mortgage, attachment, or other lien on the share of a part owner, so far as relates to the partition and the assignment of the shares, the lien will remain in full force upon the part assigned to or left for such part owner. It is well settled, however, that a conveyance by metes and bounds of any separate parcel by one co-tenant, or of a share of any separate parcel, is voidable by his co-ten- ants and is available only by way of estoppel against the grantor and his heirs. To allow and give legal effect to such alienation of the interest of a tenant in common in a part of the land held in common, without the consent of the other co-tenants, would be to create to their injury new tenancies in common in parcels of the land held in common.'^ The reason for the rule is well stated by Chief 1 R L. c. 184, § 45; Procter v. Newhall, 17 Mass. 81; Rice v. Suiith, 14 Mass. 431 ; Munroe v. Luke, 19 Pick. 39, and cases cited. All execution against one holding lands in joint tenancy, or tenancy in common, cannot be extended by metes and bounds on a part of the lands so holden. Bartlet v. Harlow, 12 Mass. 348. A levy of execution on the undivided interest of a tenant in com- mon in a part of the land held in common is invalid. Blossom v. Brightman, 21 Pick. 283. 2 Bartlet v. Harlow, 12 Mass. 348; Blossom v. Brightman, 21 Pick. 283; Graves v. Goldthwait, 153 Mass. 268; Barnes v. Lynch, 151 Mass. 510; Barnes r. Boardman, 157 Mass. 479. A mortgage made by a tenant in common of an undivided interest in a specified parcel of the land held in common is invalid as against his co-tenants ; and the mortgagee cannot object to the decree of a probate court affirming the report of commissioners appointed to make partition, by which the commissioners, without regard to the mort- gage, set off the land mortgaged to the co-tenants other than the mort- gagor and awarded a certain sum of money to the mortgagor to make 394 PROCEEDINGS IN THE PROBATE COURTS. Justice Shaw in Adams v. Briggs Iron Company, 7 Cush. 361, 369 : " The ground upon which this doctrine is established is, that a tenant in common of an entire estate is entitled, on partition, to have his property assigned in one entire parcel, according to his aliquot part. The re- spective co-tenants may convey their shares to one or many grantees, as they please, so it be of the entire estate ; because, whether there be one or many co-tenants, each may still have partition, which is inseparably incident to an estate in common, and have it in one parcel and of the like kind and quality with the estate which he holds in common. I have a moiety ; my co-tenant has a moiety. He may convey a quarter of the whole estate to one, an eighth to another, a sixteenth to another, and so on indefi- nitely, letting in other co-tenants with me. But all being seized of aliquot parts, in the same estate, and of like kind and quality, my right to partition is not disturbed by the number of co-tenants. But if he could convey his aliquot part in specified parcels of the estate, he might diminish the value of my right, if not render it worthless." DIVISION OF WATER RIGHTS. Joint tenants or tenants in common of a mill privilege, water right, or other incorporeal hereditament, may be compelled to divide the same, either by suit in equity in the superior court or in the manner provided in chapter the partition just and equal, nor can the mortgagee demand that the sum so awarded be paid or secured to tlie mortgagee. Marks v. Sewall, 120 Mass. 174. If a member of an Indian tribe mortgages the undivided interest acquired by him in all of its undivided lands, and subsequently parti- tion is duly had of such lands, the mortgage lien will attach to the portion assigned to the mortgagor. Drew v. Carroll, 151 Mass. 181. PAKTITION OF LANDS. 395 184 of the Revised Laws for the partition of land. Tn the latter case tlie commissioners appointed to make partition are required to set forth in their return the best method of setting off to the several parties their respective shares, and thereupon the court may make all such orders and decrees as might be made in equity. In like manner partition may be made of the water of a natural stream, not navigable, the banks of which are owned by different riparian proprietors.^ PARTITION OF LANDS HELD BY AN EXECUTOR OR ADMINIS- TRATOR IN MORTGAGE OR ON EXECUTION. Real property which is held by an executor or adminis- trator in mortgage, or taken on execution by him, may, at any time before the right of redemption is foreclosed, be sold subject to such right, in the same manner as personal property of a person deceased ; and after such right has been foreclosed, it may be sold in the same manner as real property of which the deceased died seised. If land so held by an executor or administrator in mortgage or on execution is not redeemed or sold as pro- vided in the preceding paragraph, the statute requires that it shall be assigned and distributed to the same persons and in the same proportions as if it had been part of the personal property of the deceased ; and if upon such dis- tribution the property comes to two or more persons, the probate court may cause partition to be made between them in like manner as if it had been real property held by the deceased in his lifetime.^ 1 R. L. c. 184, §§ 58, 59 ; DeWitt v. Harvey, 4 Gray, 486; Wamesit Power Co v. Sterling Mills, 158 Mass. 435. •^ An executor or administrator to whom land is set off on execu- tion takes an estate in such land in trust therein, and neither the legal 396 PKOCEEDINGS IN THE PROBATE COURTS. PARTITION OP REGISTERED LAND. In all proceedings for partition of registered land, or for the assignment in fee of registered land claimed by hus- band or wife by statutory right, after the entry of the final judgment or decree of partition and the acceptance of the report of the commissioners, a copy of the judgment or decree and of the return of the commissioners, certified by the clerk or register, as the case may be, must be filed and registered ; and thereupon, if the land is set off to the owners in severalty, any owner will be entitled to have a certificate of the share set off to him in severalty, and to receive an owner's duplicate certificate tlierefor. If the land is ordered to be sold, the purchaser or his assigns will be entitled to have a certificate of title issued to him or them upon presenthig the deed of the commissioners for registration.^ estate nor the possession vests in tiie heirs or legatees until the land is apportioned and distributed in the probate court, or until a final set- tlement of the estate. Boylston v. Carver, 4 JMass. 597; Baldwin v. Timmins, 3 Gray, 302. A mortgagee's title to real estate vests, on his decease, in his execu- tor or administrator, and a quitclaim deed from an heir, made before a decree of distribution though before the foreclosure of the mortgage, will not give the grantee a sufficient title to sustain a writ of entry. It is only by a decree of the probate court that the title of tlie admin- istrator or executor is terminated, and such decree for the assignment and distribution of the estate is necessary to determine in whom and in what proportions the estate shall vest. Taft v. Stevens, 3 Gray, 504. 1 R. L. c. 128, § 85. CHAPTER XYIII. ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. WHEN THE PROBATE COURT MAY ASSIGN DOWER. A WIFE is entitled to her dower at common law in the lands of her deceased husband, provided she files her election and claim therefor in the registry of probate within one year after the date of the approval of the bond of the executor or administrator of her husband ; and if her right is not disputed by his heirs or devisees, it may be assigned to her, in whatever counties the lands lie, by the probate court for the county in which the estate of the husband is settled.^ 1 R. L. c. 132, §§ 1, 9; Buckley v. Frasier, 153 Mass. 526. A widow is not dowable of a remainder of which her husband died seised. Wilmarth v. Bridges, 113 Mass. 407; Watson v. Watson, 150 Mass. 84; Hill v. Pike, 174 Mass. 582. Nor of a reversion. Bakery. Baker, 167 Mass. 575. A widow may assign her right of dower with the right to have the dower assigned to her for the benefit of her assignee. Guckian v. Riley, 135 Mass. 73. Dower may be assigned by the heirs, without any order of court and without a deed, it not being a conveyance of title. The widow holds her estate by law, and not by contract, and requires nothing but to have her part distinguished from the rest of the land. Conant v. Little, 1 Pick. 189 ; Shattuck i: Gragg, 23 Pick. 88. A guardian may assign dower in his ward's estate to any widow entitled thereto. R. L. c. 145, § 27. The widow may occupy the land jointly with the heirs, or may receive her share of the rents and profits, so long as the heirs do not object, without having her interest assigned. R. L. c. 132, § 12. A widow's right to have dower assigned to her cannot be attached 398 PROCEEDINGS IN THE PROBATE COURTS. THE ESTATE OP DOWER. Dower at common law exists where a man is seised of an e&tate of inheritance and dies in the lifetime of his wife. In that case she is entitled to be endowed for her natural life of all the lands of which her husband was seised, either in deed or in law, at any time during the coverture, and of which any issue that she might have had might by possibility have been heir.^ Her right is so protected by law that no act of the husband can deprive lier of it. And she is entitled to her dower, though her husband dies insolvent.^ She is also entitled to dower in or taken on execution in an action of law. The remedy of her cred- itor is by a bill in equity. McMahon v. Gray, 150 Mass. 289. A widow before her dower is assigned to her has no estate in the lands of her deceased husband. Smith v. Shaw, 150 IMass. 297 ; Flynn V. Flynn, 171 Mass. 312. See Eastham v. Barrett, 152 Mass. 56. An assignment of dower by the probate court against common right in all the lands of which the husband died seised, and duly accepted and enjoyed by her, is conclusive that dower was set out iu all his real estate. Fuller v. Rust, 153 Mass. 46. A widow is not dowable of lands of which her deceased husband had only a momentary seisin. Pendleton v. Pomeroy, 4 Allen, 510. A guardian may assign dower. Jones i'. Brewer, 1 Pick. 314. A widow having an estate of homestead is entitled to have her dower assigned to her out of the whole of the real estate of her de- ceased husband, and then to have her estate of homestead set off to her from the remainder of the estate. Cowdrey v. Cowdrey, 131 Mass. 186; Weller v. Weller, 131 Mass. 446. The purchase by a railroad corporation of land necessary for sta- tion purposes does not extinguish an existing inchoate right of dower therein. Nye v. Taunton Branch R. R. Co., 113 Mass. 277. 1 4 Kent, Com. 37; Hale v. Munn, 4 Gray, 132. 2 Dower at common law is the life estate of a wife in one-third of all the legal estates of inheritance of which her husband is seised at any time during coverture of a sole, beneficial, and immediate seisin, and which any issue of theirs might directly inherit. It has three stages; namely : (1) Its inchoate stage, extending from the time of ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. 399 real property sold by an executor or administrator for payment of debts, legacies, ctc.^ To establish a claim to dower at common law, it must be shown that there was a marriage, and a seisin by the husband at some time during the coverture, and that the husband is dead. Without the concurrence of these three circumstances no title to dower can be consummated. To enable the probate court to assign dower, it must further ap- pear that the husband was seised at the time of his death. ^ Dower attaches to all marriages not absolutely void and existing at the death of the husband. Though the mar- riage was voidable, if it was not annulled by decree during the husband's lifetime, the widow will take her dower. Dower belongs to a marriage within the age of consent, though the husband dies within that age.^ the marriage or the acquisition of the property iu question to the time of the husband's death ; (2) Its consummate stage, extending from the death of the husband ; and (3) Its assigned stage, extending from the time it is set ofP to the widow. Am. & Eng. Encyclopaedia of Law, 1st ed., vol. v. p. 885. In dower against the alienee of her husband, a widow is to recover her dower as the tenements were at the time of the alienation by the husband ; but against the heir she is to have dower in improvements made by him after the descent. Catlin v. Ware, 9 Mass. 218 ; Parker V. Parker, 17 Pick. 240. Where two widows entitled to dower in the same land the one hav- ing the elder title released it to the tenant without having it set off to her, it was held that the other widow was entitled to dower only in two- thirds of the land. Leavitt v. Lamprey, 13 Pick. 382. When a sale by a guardian of the ward's land, in which the guar- dian herself has a right of dower, is avoided by the ward because made to the guardian herself, the right of dower revives. Walker v. Walker, 101 Mass. 169. 1 R. L. c. 146, § 2. 2 Sheafe v. O'Neil, 9 Mass. 9 ; Raynham v. Wilraarth, 13 Met. 415. ' But if the parties separate during such nonage, and do not after- wards cohabit, the marriage will be void without a decree of divorce or other legal process. R. L. c. 151, § 9. 400 PROCEEDINGS IN THE PROBATE COURTS. After a divorce, a wife is not entitled to dower in the land of her husband, unless, after a decree of. divorce nisi granted upon the libel of the wife, the husband dies before such decree is made absolute, except that if the divorce was for the cause of adultery committed by the husband, or because of his sentence to confinement at hard labor, she is entitled to dower in the same manner as if he were dead.^ A married woman may bar her right of dower in an estate conveyed by her husband or by operation of law by joining in the deed conveying the same, and therein releas- ing her right to dower, or by releasing the same by a sub- sequent deed executed either separately or jointly with her husband. Her dower may also be released in the manner provided in chapter one hundred and fifty-three.^ If the guardian of an insane wife is authorized, under the provisions of section 19 of chapter 158 of the Revised Laws, to release the dower of his ward, and the probate court finds that a portion of the proceeds of such real prop- 1 R, L. c. 152, § 24; Smith v. Smith, 13 Mass. 231 ; Loker v. Ger- ald, 157 Mass. 42. 2 R. L. c. 132, § 5 ; Mason v. Mason, 140 Mass. 63. St. 1902, c. 478, provides that the signature of any married woman under the age of twenty-one years, affixed by her to any instrument re- lating to the conveyance of land of her husband, shall have the same effect as if she were over that age. While a wife may bar her right of dower by releasing the same in a deed executed by her husband, or by a subsequent deed executed either separately or jointly with her husband, yet she cannot convey her inchoate right of dower to a person to whom her husband has not conveyed the land. Such a deed is void. Flynn v. Flynn, 171 Mass. 312, 314. A husband conveyed an undivided moiety, in which also his wife released her right to dower ; partition was afterwards made by deed. It was held that the wife was dowable only in the moiety assigned to her husband in the partition. Potter v. Wheeler, 13 Mass. 504. ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. 401 erty, or of a sura loaned on mortgage thereof, sliould be re- served for the use of such ward, it may order that a certain portion, not exceeding one-third of the net amount of the proceeds or sum actually realized from such sale or mort- gage, exclusive of any encumbrance then existing on the property, shall be set aside and paid over to such guardian, who shall invest and hold it for the benefit of the wife during her life if she survives her husband. The income of such portion shall be received and enjoyed by the husband during the life of his wife, or until otherwise ordered by the court for cause. If he survives her, the principal shall, upon her decease, be paid over to him ; but if he does not survive her, to his heirs, executors, or administrators.^ When the husband of an insane woman has conveyed real estate in trust without a power of revocation, and in such conveyance provision is made for his wife, which the probate court, upon petition, after notice and a hearing, finds is sufficient in lieu of dower therein, the trustee in such conveyance may convey such real property free from all right of dower.^ OF WHAT LANDS THE WIDOW IS DOWABLE. As to Wild Lands. — A widow is not entitled under the statute to dower in wild lands of which her husband died 1 R. L. c. 153, § 21. 2 Ibid. § 23. A wife may contract with her husband to release dower. Winn i;. Sanford, 118 Mass. 39. A widow is not entitled to dower in lands conveyed away by her husband before his marriage, although such conveyance was fraudu- lent and void as against his creditors. Whitbed y. Mallory, 4 Cush. 138. But if the fraudulent conveyance of the land was made during coverture, she is entitled to her dower, even though she joined iu the conveyance with her husband to release it. Kobiuson v. Bates, 3 Met. 10. 26 \ 402 PROCEEDINGS IN THE PROBATE COURTS. seised, except wood-lots or other land used with the farm or dwelling-house.^ Her riglit in such land is limited to wood and timber used and consumed on the estate, and for purposes connected with its proper use, occupation, and enjoyment.^ Mines and Quarries. — A widow is entitled to dower in such mines and quarries as were actually opened and used during the lifetime of the husband, whether he continued to work them to the period of his death or not."'' A bed of iron ore of considerable extent is regarded as opened, although the openings which had been wrought by the husband had been partially filled up and abandoned, and other openings into the same bed had been made by the heirs.* The tenant in dower may work an open mine or quarry for her own benefit, but it is waste for her to open and work it. Lands of Tenants in Common. — A widow is entitled to dower in lands owned by her husband as tenant in common 1 R. L. c. 132, § 3. 2 White V. Cutler, 17 Pick. 248 ; White v. Willis, 7 Pick. 143 ; Noyes v. Stone, 163 Mass. 490. See Phillips v. Allen, 7 Allen, 115. When it appears that the wood and timber have ceased to improve by growth, or for any cause ought to be cut, the probate court may ap- point a trustee and authorize him to sell it, invest the proceeds, and pay to the widow the income thereof during her life, and at her death to pay the principal sura to the owner of the land. R. L. c. 134, § 11. « Stoughton V. Leigh, 1 Taunt. 402. * Coates V. Cheever, 1 Co wen, 460. A husband died seised of four acres of land consisting of a slate quarry, mostly below the surface of the ground, but pai'tially above ground. One quarter of an acre of the quarry had been dug over, and the practice was to take a section of ten or twelve feet square on the surface, and go down to a certain depth, and then begin on the surface again. Held, that not only that portion of the quarry which had been actually dug, but the whole ex- tent owned by the husband, must be considered as opened, and so the widow was entitled to dower in the same. Billings v. Taylor, 10 Pick. 460. ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. 403 with other persons.^ But land purchased by partners, with partnership funds, for partnership purposes, is consid- ered in equity as partnership stock. Though conveyed to them as tenants in common, it vests in them and tlieir respective heirs in trust for the purposes of the partner- ship, and is to be applied, if necessary, towards payment of the partnership debts. If so required for the payment of debts, the widows of partners are not entitled to dower in such land.2 If the land, though purchased with partnership funds, was purchased in such a manner as to preclude such implied trust, the widow will be entitled to her dower therein. This may be the case when there is an express agreement at the time of the purchase that the property is to be held by the partners separately for their separate use, or a similar provision in the articles of copartnership, or where the price of the purchase is charged to the part- ners respectively, in their several accounts with the firm.^ Lands eyicumhered hy Mortgage. — A widow is not en- titled to dower at common law in estates of which her husband is only equitably seised. But the statute extends her right of dower to equities of redemption of mortgaged estates.^ If she has released her right of dower upon a ^ Pynchon v. Lester, 6 Gray, 314; Blossom v. Blossom, 9 Allen, 254. 2 Dyer v. Clark, 5 Met. 562; Howard v. Priest, ibid. 582; Burnside V. Merrick, 4 Met. 537; Wilcox v. Wilcox, 13 Allen, 252. 8 Dyer v. Clark, 5 Met. 579. But ■where land was conveyed by a deed absolute on its face, the widow of the grantee was allowed dower therein, although the conveyance was in fact on an oral agreement that on the repayment of a certain loan the land should be reconveyed, and the grantee never entered under his deed or claimed possession of the estate. Atwood v. Atwood, 22 Pick. 283. * Lund V. Woods, 11 Met. 566; Walsh v. AVilson, 130 Mass. 124. A wife joined with her husband as grantor in a mortgage of land ♦' in order to release her rights under the homestead exemption act." 404 TROCEEDINGS IN THE PROBATE COURTS. mortgage mide by licr husband, or if lie is seised of land subject to a mortgage which is valid and effectual as against her, she is nevertheless entitled to dower in the mortgaged premises as against every person except the mortgagee and those claiming under him. If the heir or other person claiming under the husband redeems the mortgage, the widow can either repay such part of the money paid by him as is equal to the proportion which her interest in the mortgaged premises bears to the whole The deed contained full covenants of seisin and warranty. It was held, that she did not thereby bar her right of dower in the land, although the estate at the time the mortgage was given was of less value than eight hundred dollars. Tirrel v. Kenney, 137 Mass. 30. See Allen- dorff V. Gaugengigl, 146 Mass. 542 ; Toomey v. McLean, 105 Mass. 122; Sargeant v. Fuller, ibid. 119; Brown v. Lapham, 3 Cush. 551 ; Hil- dreth v Jones, 13 Mass. 525. An heir of real estate liable to sale for payment of debts of the deceased, and subject to a mortgage for payment of one of them, who gives bond to the executor conditioned to pay all the debts, and in fulfilling that condition takes to himself an assignment of the mort- gage, cannot by virtue of the mortgage title and by foreclosure defeat estates of dower and homestead previously assigned to the widow in the mortgaged premises with his assent. King v. King, 100 Mass. 224. If a wife releases dower in her husband's land at his request in consideration of an oral agreement by him to convey to her other land, and he neglects to do so and becomes insolvent, she cannot maintain a bill in equity against his assignees in insolvency to compel such conveyance, nor to make reimbursement to her for the value of the dower out of her husband's estate. Winchester v. Holmes, 138 Mass. 540. And if within six months of the commencement of the insol- vency proceedings the husband conveys land to her through a third person, and she had reasonable cause to believe him insolvent, his as- signees may avoid the conveyance. Holmes v. Winchester, 135 Mass. 299. Had the agreement on the husband's part been to convey to her personalty, the wife would have been protected. Holmes v. Winches- ter, 133 Mass. 140. ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. 405 value thereof, or she can, at her election, take dower only according to the value of the estate after deducting the money paid for redemption.^ Applications for dower in mortgaged lands are not usually made to the probate court, although that court may assign dower in such lands when all the parties interested consent. The legal estate is in the mortgagee ; but as the mortgage is intended only as security for a debt, it is considered as between the mortgagor and all the world, except the mortgagee and his assigns, only as a pledge and an encumbrance, the mortgagor still remain- ing the owner of the estate. If, therefore, the heirs or devisees do not dispute the widow's claim, and the mort- gagee consents, the probate court may assign dower in the whole estate mortgaged, and the assignment will be valid, although the widow joined her husband in the mortgage deed for the purpose of relinquishing her dower.^ Leased Lands. — When land is demised for the term of one hundred years or more, the term, so long as fifty years thereof remain unexpired, is regarded by the statute as an estate in fee-simple as to everything concerning the right of dower or of curtesy therein. When curtesy or dower is assigned out of such land, the husband or widow and his or her assigns are held to pay to the owner of the unex- ^ R. L c. 132, § 4; Newton v. Cook, 4 Gray, 46. If the mortgage is paid out of the personal property by the administrator.s, the widow will be entitled to her dower in the whole land without liability for contribution. Robinson v. Simmons, 156 Mass. 126, See Sargeant V. Fuller, 105 Mass. 119. To redeem land from a mortgage made by her husband and herself, a widow cannot maintain a bill in equity without offering to pay the whole amount due on the mortgage. McCabe v. Bellows, 7 Gray, 148. See Searle v. Chapman, 121 I\Iass. 19. a Henry's Case, 4 Cash. 257 ; Draper v. Baker, 12 Cash. 288. 40G PROCEEDINGS IN THE PROBATE COURTS. pircd residue of the terra one-third of the rent reserved in the lease under which the wife or husband held the term.^ If a tenant in dower, by the curtesy, or for life or years, commits or suffers waste on the premises, the person hav- ing the next immediate estate of inheritance may have an action of waste against such tenant, wherein he shall recover the place wasted and the amount of the damage. An heir may bring such action for waste done in the time of his ancestor.^ When the estate of a devisee under a will is taken for the tenancy by the curtesy of the husband, or for the dower of the widow of the testator, all the other devisees and legatees shall contribute their respective proportions of the loss to the person from whom the estate is so taken, so that the loss may fall eq.ually upon all the devisees and legatees in proportion to the value of property received by them under the will ; but no devisee or legatee shall be held to contribute who is exempted therefrom by the pro- visions of the will.3 A widow is entitled to dower in land taken on execution from her husband or taken on execution upon a judgment against his executor or administrator.* DOWER WHEN THE WIDOW WAIVES THE PROVISIONS MADE FOR HER BY WILL. A widow is not entitled to her dower in addition to the provisions of her husband's will, unless such plainly appears by the will to have been the intention of the testator.5 1 R. L. c. 129, §§ 1, 2. 2 R. L. c. 185, § 1. 8 R. L. c. 135, § .30. * R. L. c. 178, § 55. 6 R, L. c. 13.5, § 18 ; Borden v. Jenks, 140 Mass. 563. A widow ■who has not waived the provisions of her husband's will by which he ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. 407 At common law, a devise or bequest to the wife of a testator was presumed to be in addition to her dower, unless it was clearly the testator's intention that it should be in lieu of dower ; but under the statute the widow takes the provision made for her in the will in lieu of dower, unless it plainly appears by the will that the testator intended such provision to be in addition to her dower. If the testator's intention is left in doubt, she cannot take dower unless she first waives the provision made for her in the will. The inadequacy of the provision merely will not justify the inference that it was intended to be in addition to dower.^ has given his entire estate to her, is not entitled to dower in land which, in his lifetime, was seized on an execution against him and set off to his creditor in full satisfaction of the judgment. Barnard v. Fall River Savings Bank, 135 i\Iass. 326. P. S. c. 127, § 20, now embodied in R. L. c. 135, § 18, applies only to lands within the Commonwealth. Staigg r. Atkinson, 144 Mass. 564. It seems that a claim for improvements made by the tenant of premises in which dower is claimed, for the purpose of keeping the house in tenable condition, not having been pleaded or suggested of record before the appointment of commissioners to set out the dower, is not open to the tenant at the hearing upon the demandant's motion for the confirmation of the commissioners' report. Walsh i-. Wilson, 131 Mass. 535. 1 Reed v. Dickerman, 12 Pick. 146; Pratt v. Felton, 4 Cush. 174; Buffinton v. Fall River National Bank, 113 Mass. 246. See Atherton V. Corliss, 101 IMass. 40. Where a testator devised specific parts of his real estate to his wife in fee, and bequeathed to her all his personal property, and ordered that the other part of his real estate should be disposed of as the law directs, and the wife accepted the devise and bequest made to her, it was held, that she was not entitled to dower in such other part of the real estate. Adams v. Adams, 5 Met. 278. See Phelps v. Phelps, 20 Pick. 556 ; Delay v. Yinal, 1 Met. 57. When a widow died soon after her husband, without expressly ■waiving the provision for her in his will in lieu of dower, her accept- 408 PROCEEDINGS IN THE PROBATE COURTS. The widow may make her election to take her dower effectual by filing in the probate office, in writing, at any time within one year after the probate of the will, her waiver of tlie provisions therein made for her, or her claim to such portion of her husband's estate as she would have been entitled to it if he had died intestate.^ When any legal proceeding is instituted, wherein the validity or effect of the will is drawn in question, the pro- bate court may, within one year after probate of the will, on petition of the widow and after notice, authorize her to file her waiver within six months after the final deter- mination of such proceeding.^ If slie is insane or a minor, her guardian may make the waiver.^ If she makes no such waiver, she cannot take dower, unless it plainly appears from the will that the testator intended that she should have such provisions in addition to her dower. DOWER BARRED BY JOINTURE OR PECUNIARY PROVISION. A woman may be barred of her dower by a jointure settled on her, with her assent, before her marriage ; pro- vided such jointure consist of a freehold estate in lands for the life of the wife at least, to take effect in possession or profit immediately on the death of the husband ; her ance of the provision in the will was presumed, it being more beneficial to her than her right of dower, Merrill v. Emery, 10 Pick. 507. 1 A widow within six months after the probate of her husband's will filed in the probate court a writing signed by her, stating that she waived the provision made for her by the will, " and hereby gives notice that she will claim her dower in the real estate of the deceased and so much of the j ersonal estate as she may be entitled to by law." Held, that this was an election by her to take dower in her husband's estate and that she was not entitled to one half of said estate for life. Mathews v. Mathews, 141 Mass. 511. 2 R. L. c. 135, § 16. 8 R. L. c. 145, § 33 ; Kent v. Morrison, 153 Mass. 140. ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. 409 assent to such jointure being expressed, if she is of full age, by her becoming a party to the conveyance by which it is settled, and, if she is under age, by her joining with her father or guardian in such conveyance. Any pecu- niary provision made for the benefit of an intended wife, and in lieu of dower, if so assented to, will bar her right of dower in her husband's lands.* If such jointure or pecuniai'y provision is made before the marriage, and without the assent of the intended wife, or if it is made after marriage, it will bar her dower, unless within six months after the death of her husband she makes her election to waive such provision and be endowed of his lands. If the husband dies while absent from his wife, she may make her election within six months after notice of his death, and in all cases she has six months for that purpose, after she has notice of the existence of such jointure or provision.^ 1 R. L. c. 132, §§ 6, 7; Vincent v. Spooner, 2 Cush. 467 ; Sullings v. Richmond, 5 Allen, 187 ; Tarbell v. Tarbell, 10 Allen, 278. The widow is not bound by an ante-nuptial contract if there was a failure to per- form it on the part of her husband. Sullings v. Sullings, 9 Allen, 23-1. See Biitman v. Porter, 100 Mass. 337; Freeland v. Freeland, 128 Mass. 509 ; Paine v. Hollister, 139 Mass. 144. If the wife's assent was procured by fraud to an ante-nuptial con- tract by way of jointure, such a contract cannot be ratified by her during coverture, and may be avoided by her. Peaslee v. Peaslee, 147 Mass. 171. A jointure must be a freehold estate. Hastings v. Dickinson, 7 Mass. 153. A widow who has received personal property under the will of one to whom her husband had conveyed land of which he was seised dur- ing coverture, without her joining in the conveyance, is not barred of her dower in such land. Julian v. Boston, Clinton, &c. R. R., 128 Mass. 555. 2 R. L. 0. 182, § 8 ; Bigelow v. Hubbard, 97 Mass. 195 ; Peaslee v. Peaslee, supra. 410 PROCEEDINGS IN THE PROBATE COURTS. No provision is made by statute as to the manner in which the widow may signify her election in such cases, but she can make her election effectual by commencing proceedings for the recovery of her dower, by petition or otherwise, within the six months. LIMITATION OF CLAIM FOR INTEREST IN REALTY. A widow is not entitled to make claim for an interest in the real estate of her deceased husband or to begin an action or other proceeding for the recovery thereof unless the same is made or commenced within twenty years after the decease of the husband or after she has ceased to occupy, or to receive the profits, of her share of such real estate ; except that if at the time of the husband's death the widow is absent from the state, under twenty-one years of age, insane, or imprisoned, she may make such claim or commence proceedings at any time within twenty years after such disability ceases.^ PROCEEDINGS IN PROBATE COURT. The petition for the assignment of dower or other in- terest in land must be presented to the probate court in ^ R. L. c. 132, § 13. But a widow who for more than twenty years after her husband's death has occupied, with his heirs, lands of which he died seised, and of which she was dowable, or has without their objection received the rents and profits of such land, may bring a peti- tion for the assignment of her dower whenever the heirs seek to hold their shares of the rents and profits in severalty. Hastings v. Mace, 157 Mass. 499. Where a widow has not continued to occupy with the heirs of her deceased husband land of Mhich he died seised, or to receive her share of the rents and profits thereof, her right of dower is not saved by the fact that she occupied the land and received the rents and profits for several years, if her writ is not brought when she ceases to occupy the land or to receive the rents and profits, and not until more than twenty years after her husband's death. O'Gara v. Neylon, 161 Mass. 140. ASSIGNMENT OF DOWER AND OTHER LIFE -ESTATES. 411 which the estate of the husband is settled, and should set forth the facts that the husband died seised of certain lands in this commonwealth, that the petitioner is entitled to dower or to an undivided interest in such land, and that her right is not disputed by the heirs or devisees. The names and residences of all persons interested in the lands must be stated in the petition. If any of the persons in- terested are married women, the names of their husbands should be given ; and if any are minors, the names and residences of their guardians. If the widow omits to petition within one year from the death of her husband, the petition may be made by the heirs or devisees of her husband, or any of them, or by any person having any estate in the lands subject to dower or to such interest, or by the guardian of any such heirs, devisees, or persons.^ The petition may be filed in the probate office on any day, and a citation thereon issued by the register. If any part of the land in which the widow claims an undivided interest was owned by the husband in common with any other person, a description of such land should be annexed to the petition, and the proportion owned by the husband, and the names for the co-tenants, must be stated. The petition may be made by the widow or by any person entitled to petition for assignment of her in- terest.2 The citation issued in such cases must be served on each of the co-tenants, together with a copy of the description of the land annexed to the petition. If upon the hearing it appears that the right of the widow is not disputed by the heirs or devisees, the court issues a warrant to three discreet and disinterested per- sons, authorizing them to set off her interest, and empow- 1 R. L. c. 132, § 9. 2 Ibid. § 11. 412 PROCEEDINGS IN THE PROBATE COURTS. ering them, if the circumstances of the case require it, first to make partition of any land owned by the husband as tenant in common.^ PROCEEDINGS OP THE COMMISSIONERS. Before proceeding to set off the interest of the widow, or to make partition, the commissioners must be sworn to perform their duty faithfully and impartially according to their best skill and judgment. The oath may be adminis- tered by any justice of the peace, and a certificate thereof should be made upon the warrant. If partition is to be made before the dower can be assigned, the commissioners must give notice, as in other cases of partition, of the time and place appointed for that purpose to all persons interested who are known and are within the state, that they may be present if they see fit. If the commissioners are to assign dower only, and there is no partition to be made, they are not required by statute to give notice to parties interested, but it is advis- able to give such notice in all cases of assignments of interests in real estate. In making the assignment, all the lands of which the husband died seised are first to be appraised by the commissioners at their present value. The authority of the commissioners extends to all lands of which the hus- band died seised within the commonwealth. The lands should be appraised with reference to the amount of annual income they produce ; it not being the object of the law to ^ Any warrant or commission for the appraisement of an estate, for examining the claims on insolvent estates, for the partition of real estate, or for the assignment of dower or other interests in real estate, may be revoked by the court for sufficient cause ; and the court may thereupon issue a new commission or proceed otherwise as the circum- stances of the case shall require. R. L. c. 162, § 34. ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. 413 assign the widow one-third of the land in quantity, but to give her such a part as will yield her one-third of its entire income.^ The part assigned to the widow must be set off by metes and bounds, where it can be done without damage to the whole estate. But where the estate consists of a mill or other tenement which cannot be divided without damage to the whole, the interest of the widow may be assigned out of the rents or profits thereof, to be had and received by the widow as a tenant in common with the other owners of the estate.^ The widow in such case may have either an alternate occupancy of the whole estate, or her share of the rents and profits. The ancient rule gave her every third toll-dish for her dower in a mill, or the use of the whole mill every third month or year. It is not material in what way the result is reached, provided the right of the parties are plainly defined and established.^ Assignments of this kind are usually made by agreement between the parties ; a pro})er spirit of accommodation will enable them to reach an adjustment more satisfactory to themselves than any action of the commissioners is likely to prove. ^ Conner v. Shepherd, 15 Mass. 167; Leonard v. Leonard, 4 Mass. 533. The fees for the services of appraisers of estates of deceased per- sons, appraisers of real estate taken on execution, persons appointed under legal process for assigning dower or making partition of real estate, when no express provision is made for the compensation there- for, shall be such as the court having jurisdiction of the case may deem to be just and reasonable. R. L. c. 204, § 23. '^ R. L. c, 132, § 10. But a covenant to pay the widow money by way of rent in consideration of her forbearing to exercise her right to dower, is a personal covenant, and cannot run with the land so as to bind the assignee of the (so-called) lessee. Croade v. Ingraham, 13 Pick. 33. ' Russell V. Russell, 15 Gray, 159. The assignment of her dower 414 PROCEEDINGS IN THE PROBATE COURTS. If the entire estate in which the widow's interest is claimed consists of a dwelling-house, certain rooms in the house, with the right of using the stairways, halls, etc., may be set off to the widow. But the part of the premises so assigned to her must be sufficient for her substantial enjoyment of her share of the estate.^ It seems that at common law the widow is not compelled to take dower so assigned, but may claim a rent issuing out of the estate.'^ But the practice has the sanction of long usage in this state. The return of the commissioners to the probate court should give a detailed report of their proceedings under the warrant directed to them. The fact that notice was given to persons interested, and the manner in which it was given, should be stated. If the parties notified were present at the time and place appointed for making the partition or assignment, the fact should appear in the return. The sums at which the several parcels of land belonging to the estate were appraised should be expressed in words at length ; and if the dower is set off by metes and bounds, the boundaries should be so described as to leave no uncertainty as to the portion assigned. The assent of all parties in interest to the assignment as to a widow of a person who acquired a homestead which existed at his death of certain specific rooms in the house, and certain specific par- cels of land, with rights of way over other parts of the house and over parts of the remaining land, does not make her a tenant in common of the servient estate with the heir at law of the deceased, so as to bar her of an estate of homestead in the premises. Weller v. Weller, 131 Mass. 446. 1 In Howard v. Candish, Palmer, 2G4, the sheriff assigned to the widow a third part of each chamber, and chalked out her part ; this was held to be an idle and malicious assignment, and the sheriff was committed to prison. Symmes v. Drew, 21 Pick. 278. 2 White V. Story, 2 HiU (N. Y.), 513; Park on Dower, 254. ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. 415 made by the cornraissioners should be indorsed on the re- turn ; otherwise a citation will issue to them before final action is had. The assignment of dower is made complete by the confirmation by the court ^ of the return of the commissioners, and its record in the probate office. In cases where the husband was a co-tenant, and partition was made previous to the assignment of dower, the return should also be recorded in the registry of deeds for the county in which the land lies. WHEN WIDOWS MAY BE ENDOWED ANEW. " If a woman is lawfully evicted of land which has been assigned to her as dower or settled upon her as jointure, or is deprived of the provision made for her by will or otherwise in lieu of dower, she may be endowed anew in like manner as if such assignment, jointure, or other provision had not been made;"^ as when she has been endowed of lands mortgaged by her husband before his marriage, and has been evicted by the mortgage.^ A widow is " deprived of the provision made for her by will," within the meaning of the statute, when all her hus- ^ The confirmation relates back to the time of the assignment. Parker v. Parker, 17 Pick. 236 ; Mansfield v. Pembroke, 5 Pick. 44^. A judgment of the probate court made after May 1, confirming the report of commissioners filed before that date, assigning a parcel of land to a widow for life, in lieu of dower, does not relate back to the date of the assignment so as to make her liable to the remainderman for taxes assessed on May 1, and paid by him. Kearns v. Cunniff, 138 Mass. 434. A dowress in occupation of land may in an action of trespass against a stranger put in evidence, on the question of her possession, probate proceedings setting off the land to her which, whether valid or invalid, have never been doubted. Nickerson v. Thacher, 146 Mass< 609. 2 R. L. c. 132, § 14. ' Scott V. Hancock, 13 Mass. 168. 416 PROCEKDINGS IN THE PROBATE COURTS. band's estate is taken for the payment of his debts ; as, whei-e the husband gave his wife by will the whole of his estate, on condition that she should pay his debts and lega- cies, and the estate proved to be insolvent. She is entitled, in such case, to her dower, although she may not have for- mally waived the provision made for her by will, the pro- vision made for her having wholly failed. But before dower can be assigned to her, it must be ascertained that the whole estate, estimating its value without the encumbrance of the widow's dower, is not sufficient to discharge the liabilities.^ And it is no objection, in such case, to an application for an assignment of dower, that a previous application had been made and refused before there was sufficient evidence that the widow would be deprived of the provision made by the will, and that she did not appeal from the decree of refusal.^ WRIT OF DOWER. [Revised Laws, c. 180.] " Sect. 1. A woman entitled to dower, if it is not set out to her by the heir or other tenant of the freehold, to her satisfaction according to law or assigned to her by the pro- bate court, may recover the same by writ of dower as here- inafter provided." 1 Tliompson v. McGaw, 1 Met. 66. ^ Tliompson v. McGaw, 1 Met. 66. After a tenant in dower has assigned her estate, she is not liable to the assignees of the reversion for waste committed by her assignee. Foot v. Dickinson, 2 Met. 611. A conveyance by a married woman during her husband's lifetime of her inchoate right of dower is void as to any party other than he ■who holds the land in which the right might otherwise be asserted, and does not estop her from maintaining a writ of dower against the grantee, even although he has not been repaid the sum paid by him as the consideration for the conveyance. Mason v. Mason, 140 Mass. 63 ; Flynn v. Flynn, 171 Mass. 312, 314. WKIT OF DOWER. 417 " Sect. 2. She shall demand her dower of the person seised of the freehold at the time when she makes such demand, unless such person is unknown to her or absent from the commonwealth. She shall not commence her action therefor before the expiration of one month, nor after the expiration of one year, from such demand ; but she may make a new demand and commence an action thereon." " Sect. 3. A demand of dower shall be sufficient if it is in writing, signed by the widow or by her agent or attor- ney, containing a general description of the land in which the dower is claimed, and is given to the tenant of the free- hold or left at his last and usual place of abode." " Sect. 4. If the demandant recovers judgment for her dower, she shall in the same action recover damages for its detention, which shall be assessed by a jury under the direc- tion of the court, unless the parties file in court a written agreement that the damages shall be assessed by the com- missioners as hereinafter provided."^ " Sect. 5. If the court finds that the demandant is enti- tled to her dower, it shall award the interlocutory judgment therefor and issue its warrant to three disinterested com- missioners to set out said dower equally and impartially, and as conveniently as may be, and, if an agreement has been filed as provided in the preceding section, to award damages for its detention." " Sect. 6. Said commissioners, before entering upon their duties, shall be sworn faithfully and impartially to execute the warrant, a certificate of which oath shall be made on the warrant by the person who administers it. They shall give notice to the parties of the time and place appointed for setting out the dower, and all of the commissioners shall ^ Harrington r. ConoUy, 116 Mass. 69. 27 418 PROCEEDINGS IN THE PROBATE COURTS. meet for the performance of any of their duties, but a majority may act." " Sect. 7. The commissioners shall make and sign a report of their doings, witli any damages assessed by them, and return it with their warrant to the court from which said warrant was issued. If their report is confirmed, judgment shall be rendered that the assignment of dower shall be firm and effectual during the life of the demandant, and for the damages as assessed by said commissioners," " Sect. 8. A party aggrieved by a judgment rendered under the provisions of section five, or upon a report of the commissioners under the provisions of the preceding sec- tion, may appeal therefrom in any matter of law apparent upon the record to the supreme judicial court ; but an appeal from the judgment rendered under the provisions of the preceding section, shall not draw in question the inter- locutory judgment." " Sect. 9. When final judgment has been recovered by the demandant, execution shall issue thereon for possession and for costs, and, if the judgment is for damages also, for damages." " Sect. 10. The action shall be brought against the per- son who is tenant of the freehold at the time when it is commenced. If the demand was not made on him, he shall be liable only for the time during which he held the land ; but if the demandant recovers her dower and damages in the writ of dower, she may thereafter re- cover in an action of tort against the prior tenant of the freehold, on whom her demand was made, the rents and profits for the time during which he held the land after the demand." ^ " Sect. 11. If the land cannot be divided without damage 1 Whitaker v. Green, 129 Mass. 417. PRESENT VALUE OF DOWER ESTATES. 419 to the whole, the dower may be assigned out of the rents or profits, which shall be received by the demandant as tenant in common with the other owners." " Sect. 12. The provisions of chapter one hundred and thirty-two relative to the land out of which dower may be claimed and the manner in which it may be barred, and those of section one of chapter one hundred and eighty-five relative to the liability of the tenant for waste, shall apply to proceedings under this chapter." ^ PRESENT VALUE OP DOWER ESTATES. As the table of mortality and rate of interest to be em- ployed in valuing dowers is not fixed by law, the values according to two tables and rates are given, and those which they exhibit may be regarded as fixing the maximum and minimum limits of the fair valuation of such an estate when the life on which it depends is not actually impaired or diseased. If the life is unquestionably sound, the figures should be based on the Healthy Districts table, especially if the age of the person is advanced. The table on the following pages is prepared so that the value of a life estate or dower may be computed simply by finding the present age of the person on whose life it depends in the left or right hand column, and copying the value figures on the same line of an estate of $100, from the appropriate column and multiplying them by the ratio of the value of the estate in question to lOO.^ For example : — 1 R. L. c. 180, §§ 1-12. 2 In determining the value of an annuity on real estate for the purpose of imposing a tax on collateral legacies and successions, the so-called " Actuaries' Combined Experienced Tables " are to be used. K. L. c. 15, § 16. 420 PROCEEDINGS IN THE PROBATE COURTS. TABLE Showing at ages 15 to 98 tfie Present Value of a Life Estate of $100, under the Collat- eral Succession Law [Chapter 15 of Revised Laws'\. Also the Present Value of a Widow's Dower in an Estate qf $100 according to two Tables of Mortality and Rates of Interest. Prepared by Walter C. Wright, Actuary of the New England Mutual Life Insurance Co. Value of Dower. Present Age. Value of Life estate. Combined Experience Combined Experience. English Life Healthy Districts. Females. Present Age. 4 per cent.* 4 per cent. 6 per cent. 4 per cent. 6 per cent. 15 75.99 25..33 28.30 25.64 28.48 15 16 7o.58 25.19 28.20 25.48 28.36 16 17 75.16 25.05 28.11 25.33 28.24 17 18 74.72 24.91 28.01 25.19 28.12 18 19 74.27 24.76 27.90 25.04 28.02 19 20 73.80 24.60 27.79 24.91 27.92 20 21 73..S2 24.44 27.67 24.76 27.82 21 22 72.83 24.28 '27.55 24.63 27.72 22 23 72.30 24.10 27.42 24.48 27.62 23 24 71.76 23.92 27.29 24.33 27.52 24 25 71.21 2.3.74 27.15 24.19 27.42 25 20 7064 23.-55 27.01 24.04 27.-32 26 27 70.05 23.35 26.85 23.86 27.20 27 28 69.44 23.15 26 69 2.3.72 27.08 28 29 68.81 22.94 26.53 23.56 26.96 29 30 68.16 22.72 26.35 23..39 26.84 30 31 67.49 22..50 26.17 23.20 26.70 31 32 66.79 22.26 25.98 23.01 26.56 32 33 66.08 22.03 2.5.79 22.83 26.42 83 34 65.34 21.78 25.58 22.63 26.26 34 35 64.58 21.53 25.36 22.41 26.10 35 36 63.79 21.26 25.14 22.20 25.92 36 37 62.98 20.99 24.90 21.99 25.74 37 38 62.14 20.71 24.65 21.75 25.56 38 39 61.27 20.42 24.39 21.51 25.36 39 40 60.37 20.12 24.12 21.27 25.16 40 41 59.44 19.81 23.84 21.00 24.92 41 42 58.48 19.49 23.54 20.73 24.70 42 43 57.50 19.17 23.22 20.45 24.46 43 44 56.48 18.83 22.90 20.16 24.20 44 45 55.43 18.48 22.-56 19.87 23.92 45 46 54.36 18.12 22.20 19..55 2.3.64 46 47 53.27 17.76 21.85 19.23 2.3.-34 47 48 52.16 17..39 21.47 18.89 23.02 48 49 51.03 17.01 21.09 18.55 22.68 49 50 49.88 16.63 20.70 18.19 22.-34 50 51 48.72 16.24 20..30 17.81 21.98 51 52 47.54 15.85 19.88 17.43 21.-58 52 53 46.34 15.45 19.46 17.04 21.18 63 54 45.13 15.04 19.03 16.61 20.76 54 * Of Life Estate of $100.00, or of an Annuity of Si.OO. ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. 421 Value of Dower. 1 Present Age. Value of Life estate. Combined Experience 4 per cent.* 1 Present Age. Combined Experience. English Life Healthy Districts. , Females. 4 per cent. 6 per cent. 4 per cent. 6 per cent. 55 43.91 14.64 18.59 16.19 20.30 55 56 42.68 14.23 18.14 15.75 19.84 56 57 41.44 13.81 17.69 15.28 19.34 57 58 40.18 13.39 17.22 14 83 18.82 58 59 38.92 12.97 16.75 14.37 18.32 59 60 37.66 12.55 16.27 13.92 17.82 60 61 36.39 12.13 15.79 13.48 17.34 61 62 35.12 11.71 15.30 13.03 16.82 62 63 33.86 11.29 14.81 12.59 16.32 63 64 32.60 10.87 14.31 12.15 15.82 64 65 31.34 1045 13.82 11.71 15.30 65 66 30.10 1003 13.32 11.27 14.80 66 67 28.87 9.62 12.83 10.83 14.28 67 68 27.65 9.22 1233 10.40 13.76 68 69 26.45 8.82 11.84 9.96 13.24 69 70 25.27 8.42 11. .36 9.55 12.72 70 71 24.10 8.03 10.87 912 1222 71 72 22.96 7.65 10.40 8.71 11.70 72 73 21.84 7.28 9.92 8.29 11.20 73 74 20.74 6.91 9.46 7.91 10.70 74 75 19.66 6.55 9.00 7.51 10.22 75 76 18.60 6.20 8.55 7.13 9.74 76 77 17.58 5.86 8.10 6 76 9.26 77 78 16.57 5.52 7.66 6.40 8.80 78 79 15.60 5.20 7.24 6.05 8.36 79 80 14.64 4.88 6 82 5.72 7.92 80 81 1372 4.57 6.41 5.40 7. -50 81 82 12.81 4.27 6.00 5.09 7.10 82 83 11.92 3.97 5.61 4.80 6.70 83 84 11.04 3.68 5.21 4.52 6.32 84 85 10.18 3.39 4.82 4.25 5.96 85 86 9.31 3.10 4.42 3.99 5.62 86 87 8.46 2.82 4.03 3.75 5.28 87 88 7.60 2.53 3.63 3.52 4.96 88 80 6.76 2.25 3.24 3.29 4.68 89 90 5.94 1.98 2 86 3.09 4.38 90 91 5.14 1.71 2.48 2.89 4.12 91 92 4..S6 1.45 2.11 2.71 3.86 92 93 362 1.21 1.76 2.53 3.62 93 94 2.95 .98 1.43 2.36 3.38 94 95 2.34 .78 1.14 2.21 3.18 95 96 1.85 .62 .90 2.07 2.96 96 97 1.47 .49 .72 1.93 2.78 97 98 .96 .32 .47 1.80 2.60 98 * Of Life Estate of $100.00, or of aii Annuity of 5?1.00. 422 PROCEEDINGS IN THE PKOBATE COURTS. Suppose a widow whose age is 30 is entitled to dower in an estate worth -$6,000 : opposite the number 30, represent- ing the age, is the sum $22.72 (see Combined Experience cohiran at four per cent) ; multiply that sum by 60 (the number of hundreds in 6,000), and the product is 81,363.20, which is the present value of her dower at four per cent according to the Combined Experience tables. At the same per cent, according to the English Healthy Districts table, it is $1,403.40. ESTATES OF HOMESTEAD. Every householder having a family may have an estate of homestead, to the extent in value of eight hundred dollars,^ in the farm or lot of land and buildings thereon, owned or rightly possessed by lease or otherwise and occupied by him as a residence, and such estate is exempt from attachment, levy on execution, and sale fOr the pay- ment of his debts or legacies, and from the laws of con- veyance, descent, and devise except as provided in chapter 131 of the Revised Laws.^ To create such estate of home- stead, the fact that it is designed to be held as a homestead ^ The householder's estate of homestead, once acquired, is not defeated by the death or removal of his wife and children from the premises, or by her obtaining a divorce from bed and board and a decree giving her the custody of the children, if he continues to reside thereon. She cannot by her separate act deprive him of such estate. Doyle V. Coburu, 6 Allen, 71 ; Silloway i;. Brown, 12 Allen, 30. ^ No estate of homestead exists in land held in common and undi- vided. Thurston v. Maddocks, 6 Allen, 427; Silloway v. Brown, 12 Allen, 30; Bemis v. Driscoll, 101 Mass. 418; Holmes v. Winchester, 138 Mass. 542, and cases cited. The estate is not necessarily limited to that part of a dwelling- house occupied by the family, but may exist in the whole of a house, some rooms of which are to let to tenants. Mercier v. Chace, 11 Allen, 194. It may exist in a country hotel. Lazell v. LazeU, 8 Allen, 575. ESTATES OF HOMESTEAD. 423 must be set forth in the deed by which the property is acquired that it is designed to be held as a homestead ; or, after the title has been acquired, such design must be declared by writing duly signed, sealed, acknowledged, and recorded in the registry of deeds for the county or district in whicii the property is situated. The acquisition of a new estate of homestead will defeat and discharge any such previous estate. The right of homestead may be released by a deed in which the wife of the householder joins for the purpose of releasing it ; ^ but if it exists at the time of his death, it " shall continue for the benefit of his widow and minor cliildren, and be held and enjoyed by them, if some one of them occupies the premises, until the youngest child is twenty-one years of age, and until the marriage or death of the widow." ^ And the estate may be set off to the parties entitled thereto by metes and bounds, in the same manner that dower may be set off to a widow.^ ^ A wife does not " join in a deed of conveyance " of a homestead by simply inserting her name in the final clause of the deed, and sign- ing and sealing it. Greenough v. Turner, 11 Gray, 332. See Wales V. Coffin, 13 Allen, 213 ; Tirrell v. Kenney, 137 Mass. 30. An estate of homestead cannot be lost by mere abandonment until a new homestead is acquired elsewhere. Woodbury v. Luddy, 1-4 Allen, 1; Abbott V. Abbott, 97 Mass. 13G. 2 R. L. c. 131, § 8. The right of possession and enjoyment will be in such only of the parties who have title as remain in occupation of the premises. Abbott v. Abbott, 97 Mass. 136; Paul v. Paul, 136 Mass. 287. The use of a room in the house by the widow, for the purpose of storing furniture, is a sufficient occupation. Brettun v. Fox, 100 Mass. 234. The estate is not defeated by the death of the wife and the removal of the children, if the householder continues it as his home. Silloway V. Brown, 12 Allen, 30. The estate must also be actually occupied as a residence. Lee v. Miller, 11 Allen, 37. 3 K. L. c. lol, § 9. 424 PROCEEDINGS IN THE PROBATE COURTS. When an estate of homestead exists in property in which other parties have an interest, the party entitled to the homestead, or any other party interested in such property, may have partition thereof like tenants in common.^ The widow takes her homestead estate in addition to her dower. The dower may be assigned to her out of the whole real estate of her husband, and the estate of home- stead from the estate remaining after the assignment of dower.2 The probate court has no jurisdiction to set out an estate of homestead, if the right to it is disputed by the heirs or devisees.^ The widow, and the guardian of the minor children, when he has obtained a license therefor from the probate court as in the case of sales of real estate of minors, may join in a sale of such estate of homestead; or, if there is no widow entitled to such rights therein, the guardian upon such license may make sale thereof ; and the widow may make such sale if there are no minor children. The purchaser shall have the right to enjoy and possess the premises for the full time that the widow and children or either of them might have continued to hold and enjoy the same if no sale had been made. The probate 1 R. L. c. 131, § 11. 2 Cowdrey v. Cowdrey, 131 Mass. 186 ; Weller v. Weller, ibid. 446; Mercier v. Chace, 11 Allen, 194; Monk v. Capen, 5 Allen, 146. 8 Woodward v. Lincoln, 9 Allen, 239. A widow who has acquired a right of homestead in premises worth less than eight hundred dol- lars, and is in the occupation thereof at the time of her husband's death, may continue such occupation, and avail herself of her right of homestead as a defence against one who claims title under her hus- band, although her homestead has not been set out to her by the court. Parks v. Reilly, 5 Allen, 77. See Easthara v. Barrett, 152 Mass. 56. RIGHT OF HOMESTEAD OF INSOLVENT DEBTOKS. 425 court may apportion the proceeds of the sale among the parties entitled thereto.^ RIGHT OP HOMESTEAD OP INSOLVENT DEBTORS. When the property of a debtor is assigned under the laws in relation to insolvent debtors, and such debtor claims, and it appears to the court wherein the proceed- ings in insolvency are pending that he is entitled to hold a part thereof as a homestead, and that the property in which such estate of homestead exists is of greater value than eight hundred dollars, the court shall cause the property to be appraised by three impartial and discreet men, one of whom shall be appointed by the insolvent, one by the assignee, and the third by the court ; or in case either the assignee or insolvent neglects to appoint, the court shall appoint for him. The persons so appointed shall be duly sworn faithfully and impartially to appraise the property, and shall proceed to appraise and set off an estate of homestead in the same to the insolvent debtor in the manner prescribed in case of a judgment debtor ; and the residue shall vest in and be disposed of by the assignee in the same manner as property not exempt by law from levy on execution. The appraisers shall be entitled to the same fees, to be paid out of the estate in ^ R. L. c. 131, § 10. A widow who left an estate in which she had a right of homestead which she did not know of, was held to have lost her right of homestead. Paul v. Paul, 136 Mass. 286 ; Foster v. Le- land, 141 Mass. 187. Where an estate of homestead has been acquired in land of greater value than the limit of the homestead exemption, and the surplus has been alienated by sale or transfer according to law, the owner of the residue may maintain a writ of entry to recover the land subject to the right of homestead. Copelaud v. Sturtevant, 156 Mass. 114. An estate of homestead does not exist in lands held in common and undivided. Holmes v. Winchester, 138 Mass. 542. 426 PKOCEEDINGS IN THE PROBATE COURTS. insolvency, as are allowed to appraisers of real estate seized upon execution. If a judgment creditor requires an execution to be levied on property claimed by the debtor to be as a homestead exempt from such levy, and if the officer holding such execution is of opinion that the premises are of greater value than eight hundred dollars, appraisers shall be ap- pointed to appraise the property in the manner provided by law for an appraisal in the case of the levy of an exe- cution on real estate. If in the judgment of the appraisers the premises are of greater value than eight hundred dollars, they shall set off to the judgment debtor so much of the premises, including the dwelling-house in whole or in part, as shall appear to them to be of the value of eight hundred dollars ; and the residue of the property shall be levied upon and disposed of in like manner as real estate not exempt from levy on execution ; and if the property levied on is subject to a mortgage, it may be set off or sold subject to the mortgage and to the estate of homestead in like manner as land subject to a mortgage only.^ ASSIGNMENT OF OTHER ESTATES FOR LIFE. When a widow is entitled by the provisions of law, by deed of jointure, or under the will of her husband, to an undivided interest in his real estate, either for life or during widowhood, if her right is not disputed by his heirs or devisees, such interest may be assigned to her, in ■whatever counties the lands lie, by the probate court for the county in which the estate of her husband is settled. The assignment may be made upon her petition, or, if she 1 R. L. c. 131, §§ 12, 13. ASSIGNMENT OF DOWER AND OTHER LIFE-ESTATES. 427 does not petition within one year from the death of her husband, upon petition by an heir or devisee of her hus- band by any person having an estate in the lands subject to such interest, or by the guardian of such heir, devisee, or person. The interest of the widow is set off by metes and bounds, when it can be so done without damage to the whole estate. But when the estate consists of a mill or other tenement which cannot be divided without damage to the whole, her interest may be assigned out of the rents or profits to be received by the widow as a tenant in common with the other owners of the estate.^ 1 R. L. c. 132, §§ 9, 10 ; Guckian v. Riley, 135 Mass. 73 ; Fuller v. Rust, 153 Mass. 50; Proctor v. Clark, 154 Mass. 50. CHAPTER XIX. PROBATE BONDS. AS TO BONDS GENERALLY.^ The sureties in every bond given to the judge of the probate court must, except as provided in section sixty-one of chapter one hundred and eighteen of the Revised Laws (authorizing the acceptance as surety of a qualified foreign fidelity insurance company), be inhabitants of this com- monwealth, and such as the judge or register approves ;2 and no bond required to be given to the judge, or filed in the probate office, is sufficient, unless examined and ap- * As to the conditions of bonds given to the judge of probate, in the course of proceedings in the probate court, see the chapters referring to the several proceedings in which bonds are required. 2 R. L. c. 149, § 9. The money paid to fidelity insurance companies or to any person acting as surety on an official bond may be allowed as a charge against the estate. R. L. c. 150, § 15. A bond without surety, given by an administrator and approved by the judge of probate without notice to creditors, is not such a bond as the statutes of this commonwealth require. Abercrombie v. Sheldon, 8 Allen, 532. A probate bond in the ordinary form of a trustee's bond filed in the registry of probate, satisfactory to the beneficiaries and accepted orally by the judge of probate, but never approved by him in writing as re-, quired by P. S. c. 143, § 2 (now R. L. c. 149, § 10), is valid at common law, and the sureties are liable upon it in a suit brought in the name of the judge. Whether such bond is invalid as a statutory bond, qucere. Mclntire v. Linehau, 178 Mass. 263. PROBATE BONDS. 429 proved by the judge or by the register, and his approval thereof under his official signature is written thereon/ Whenever bonds are required to be given to the judge of a probate court by two or more persons acting jointly as executors, administrators, trustees, or otherwise, such persons may give either separate or joint bonds.'-^ All bonds given to the probate court must be in such sum as the judge shall order, and made payable to the judge and his successors in office ; in cases where the office is vacant, to the acting judge and his successors.^ 1 R. L. c. 149, § 10. An executor or administrator shall, when exempt from giving a surety, give his own personal bond, with condi- tions as prescribed by law ; but the probate court may at or after granting of letters testamentary or letters of administration require a bond, with suflBcient surety or sureties. Every executor or administrator who neglects to give bond, with surety or sureties, when required by the probate court within such time as it orders, shall be found to have declined or resigned the trust. R. L. c. 149, §§ 3, 8. An executor's bond which is signed by two sureties who are inhab- itants of this commonwealth, and by a third person who is an inhab- itant of another state, if approved by the probate court, is sufficient to qualify him to act. The additional surety may add to, but cannot impair, the value of the contract. Clarke v. Chapin, 7 Allen, 425. An executor's bond, approved by the judge, in which the sureties are each bound in half the sum in which the principal is bound, is not for that cause void, but is binding on the obligors, and sufficient to give effect to the executor's appointment, and to render his acts as such valid ; but it seems that the supreme court, on an appeal from the decree of the judge of probate approving a bond in that form, would not countenance such a departure from the usual course of proceeding. Baldwin v. Standish, 7 Cush. 207. ^ R. L. c. 149, § 11. An executor who gives a separate bond is not liable for a loss caused, without negligence on his part, by the default of his co-executor. McKim v. Aulbach, 130 Mass. 481. See Ames V. Armstrong, 106 Mass. 15. 3 R. L. c. 164, § 8. Any bond given by an executor, admin- istrator, guardian, or trustee whose appointment is invalid by reason of an irregularity or of want of jurisdiction or authority in the court 430 PROCEEDINGS IN THE PROBATE COURTS. In practice, particularly when the sureties reside at a distance from the place of holding the probate court, bonds are executed in anticipation of the probate of the will, or other decree I'equiring a bond to be given, and are held in readiness to be offered for approval whenever the decree is passed. When this course is followed, care should be taken by the party offering the bond that the instrument be unexceptionable, both as to the penal sum and the sufficiency of the sureties. The amount of the penalty of the bond should be proportioned to the extent of the interest to be protected, regard being had to the situation of the estate and to all the circumstances of the case.^ In a majority of cases, the sum named in the bond should be double the value of the property which the' bond is intended to secure; and the executor, admin- istrator, or trustee must certify on the back of the bond the value of the real estate and of the best personal property, to the best of his knowledge and belief. WHEN NEW BONDS MAY BE REQUIRED. When the sureties or the penal sum in a bond given to the probate court are insufficient, the supreme judicial court, or the probate court, after notice to the principal in the bond, may require a new bond with such surety or sureties, and in such penal sum, as the court shall direct.'^ making such appointment, shall be held valid and binding both on the principals and the sureties. R. L. c. 148, § 25. 1 In an application by a foreigner for ancillary letters of adminis- tration, for the purpose of collecting a debt, a bond was taken by the supreme court of probate in $5,000, which amount was less than that of the debt to be collected, it appearing that the heirs and foreign creditors were secured under the laws of the intestate's domicile, and that there were probably no creditors in the United States. Picquet, Appellant, 5 Pick. 65. 2 R. L. c. 149, § 14; Brooks v. Whitmore, 142 Mass. 401. The PROBATE BONDS. 431 Any surety may, upon his petition to the supreme judi- cial court, or the probate court, be discharged from all further responsibility, if the court, after due notice to all persons interested, deems it reasonable and proper ; and the principal will thereupon be required to give a new bond.^ If the principal does not give such new bond within such time as is ordered by the court, he shall be removed from his trust, and some other person appointed in his stead.^ In case of the marriage of a woman who is executrix, administratrix, guardian, or trustee, her sureties have the right, on petition to the probate court in which her bond is filed, to be released from any further liability on her bond, beyond accounting for and paying over the money or property already in her hands ; and if her sure- ties are so released, she will be required to give a new bond to the satisfaction of the court.^ guardian of a minor who had given bond in the form reqnired by law, having represented to tlie judge of probate that, since his appoint- ment, his ward had received a legacy exceeding in amount the penalty of the bond, and having suggested that the judge should make such order in the premises as to law and justice might appertain, the judge ordered him to file a new bond in a larger sura, and the guardian filed a new bond accordingly, with a new surety. Held, that both bonds were valid, that the sureties were to be deemed co-sureties, and that, being sureties in different sums, they were, as between themselves, compellable to contribute in proportion to the different penalties of their respective bonds. Loring v. Bacon, 3 Cush. 465 ; Brooks v. Whitmore, 139 Mass. 358 ; Forbes v. Harrington, 171 Mass. 389. 1 R. L. c. 149, § 15; Brooks v. Whitmore, 142 Mass. 401. If, without the assent or knowledge of a surety, his co-surety is discharged from all further respon.'^ibility, and a new bond is given by the princi- pal and approved by the court, the first-named surety is also discharged from liability for further acts of the principal, although the new bond recites that it is in addition to the first bond. McKim r. Demmon, 130 Mass. 404. 2 R. L. c. 149, § 16. 8 R. L. c. 149, § 19. 432 PROCEEDINGS IN THE PROBATE COURTS. When an executor, administrator, guardian, or trustee is licensed to sell real estate, and the bond given by him at the time of his appointment appears to the court to be insufficient, he may be required to give an additional bond.^ When a new bond is so required, the sureties in the prior bond are liable for all breaches of the condition committed before the new bond is approved by the judge.' SUITS ON BONDS OF EXECUTORS AND ADMINISTRATORS. Suits on probate bonds are brought in the name of the judge of the probate court,^ and, except in certain classes of cases specified by the statute,^ are brought only on 1 R. L. c. 149, § 13. As to the removal of executors and others for failing to file a new bond when ordered, see chap. viii. 2 Ibid. § 17 ; McKim v. Bartlett, 129 Mass. 226 ; McKim r. Blake, 132 Mass. 343. 8 When the judge is obligor as principal or surety in a bond given to a former judge of the court, suit may be brought upon the bond in the name of the judge mentioned therein, his executors or adminis- trators. R. L. c. 149, § 24. 4 Ibid. §§ 20-22; Fall River v. Riley, 138 Mass. 338; Fuller v. Connelly, 142 Mass. 230. If an administrator suffers judgment to be recovered against him before he represents the estate insolvent, he must pay the full amount of the judgment, even if the estate is insolvent, and he and his sureties are liable to a suit by the judgment creditor on the bond. Kewcomb V. Goss, 1 Met. 333. This decision, however, is questioned in Fuller r. Connelly, 142 Mass. 230. If a probate bond is altered by the judge of probate without the consent of the sureties, they will be no longer bound by it. Howe v. Peabody, 2 Gray, 556. In an action on a bond against an administrator and his sureties for a refusal to pay a judgment recorded against him, such judgment, if not obtained by fraud or collusion, is conclusive on the sureties, in regard to all matters of defence affecting the merits of the claim as between the parties to the judgment. Heard v. Lodge, 20 Pick. 53 ; PROBATE BONDS. 433 leave granted bj the court. There are three cases, and only three, in which a person can sue the bond of an White V. Weatherbee, 126 Mass. 452; McKim v. Glover, 1G7 Mass. 280 ; McKim v. Haley, 173 Mass. 114. But the sureties are not liable on a judgment obtained ou a demand which was barred by the special statute of limitations. Dawes v. Shed, 15 Mass. ; Robinson i\ Hodge, 117 Mass. 222. If the payment of a legacy is charged upon land devised to a per- son who is also the executor of the will, and the legatee joins in a mortgage of the land given by the devisee to secure a sum of money borrowed for the latter's personal use, and the mortgagee afterwards sells the land under a power contained in the mortgage, and applies the proceeds of the sale to the payment of the mortgage debt, the legatee loses his right to proceed against the land to enforce payment of his legacy, and an action therefor cannot be maintained for his benefit against a surety on the executor's bond. Thayer v. Finnegau, 134 Mass. 62. The failure of an executor who as sole legatee under the will, there being no creditors, is the only person interested in the disposition of the estate, to file an inventory and render an account within the pre- scribed time, is a technical breach of his bond. McKim v. Harwood, 129 Mass. 75. A bond given by an executor upon the probate of a will in the pro- bate court is not vacated, but only suspended in its operation by a subsequent appeal from the probate of the will ; and upon an affirm- ance of the same, no new bond need be given by the executor. Dun- ham V. Dunham, 16 Gray, 577. A bond to pay debts and legacies given by an executor and resid- uary legatee cannot after the expiration of a year and a half be can- celled or surrendered by the judge of probate. Alger v. Colwell, 2 Gray, 404. Where an administration bond was not executed by the administra- tor, the sureties were held not to be liable. Wood v. Washburn, 2 Pick. 24; Goodyear Dental Vulcanite Co. v. Bacon, 151 Mass. 460. If an administrator of an estate represented to be insolvent neglects to render and settle his account in the probate court within the time prescribed, he and his sureties are liable to nominal damages at least, in a suit on his bond, although he was not cited by the judge of pro- bate to render an account. Fay o. Haven, 3 Met. 109 ; Coney v. Williams, 9 Mass. 114. The question whether an account settled in the probate court by 28 434 PROCEEDINGS IN THE PROBATE COURTS. executor or administrator for his own benefit, without first obtaining authority from the probate court; 1st. an administrator was fraudulent, cannot be tried in an action on the ' administration bond for not settling a true account. Paine v. Stone, 10 Pick. 75. A devisee of real estate which is taken from him by a title para- mount to tlie testator's, has his remedy for the value of his estate upon the bond of the executor being also the residuary legatee for the pay- ment of debts and legacies, and this without a previous demand upon, or action against, the executor. Paine v. Gill, 13 Mass. 365. If during the lifetime of a devisee the real estate devised to him is unlawfully sold by the executor, his heirs are not entitled to an execu- tion in a suit brought in the name of the judge of probate on the bond of the executor, but it must be applied for and issue to the adminis- trator. Chapin v. Waters, 116 Mass. 140. If the decree of a judge of probate granting leave to bring an action on an administrator's bond bears date prior to the time of bringing the action, evidence is not admissible at the trial to show that the decree, although actually made at the date stated, was not reduced to writing till after action brought. Richardson v. Hazelton, 101 Mass. 108. See Newell v. West, 149 Mass. 531. A previous demand on a surety in a bond is not necessary in order to maintain an action upon it against him. Wood v. Barstow, 10 Pick. 368. An action on an administration bond brought for the benefit of a creditor of an heir who levied on land which descended to the heir, but whose levy was defeated through the fault of the administrator, cannot be sustained, such creditor having no direct interest in the bond. Fay v. Hunt, 5 Pick. 398. If a judge of probate grants leave to bring an action on a probate bond for the benefit of an individual upon his filing a bond to indem- nify the judge against the costs of the suit, and the action is brought before such bond is filed, the judge may afterwards receive such bond, and it will relate back to the commencement of the action. White v. Stanwood, 4 Pick. 380. Sureties are liable for the amount of any chattels which have come to the administrator's hands as well before as after the execution of the bond and granting of administration. Odiorne r. Maxcy, 13 Mass. 177. If a surety on a probate bond of the administrator of an estate who is removed for failure to account, is himself appointed administrator PROBATE BONDS. 435 When the claim is by a creditor who has recovered judg- ment against the executors or administrators, and they de bonis non of the estate, his liability on the bond constitutes a debt from him to the estate, which is assets in his hands. Choate v. Thorn- dike, 138 Mass. 371. The surviving surety of a bond of a trustee under a will was on his petition discharged, the decree reciting that the trustee had filed " a new and sufficient bond." In fact the second bond was approved on the same day that the discharge was granted, but before the granting of the discharge ; and the second bond was approved as " an additional bond." Held, that the second bond was to be treated as a "new bond," and that the sureties on it were not discharged by the dis- charge of the surety on the first bond. Brooks v. Whitmore, 139 Mass. 356. A surety is chargeable with a sum received by the trustee as part of the income of the trust fund which he has not paid over to the ceslui que trust, but which he has applied to make up a deficiency in the investment of capital. McKim v. Blake, 139 Mass. 593. A person who executes as surety a probate bond in blank and intrusts it to his principal to be filled in, and delivered to the obligee, is bound by the instrument as delivered. White v. Duggan, 140 Mass. 18. Under the condition of an executor's bond, the sureties on the bond are not liable for the proceeds of real estate sold by the executor by authority of the will and not needed for the payment of expenses, debts, or specific legacies. White v. Ditson, 140 IMass. 351. See Minot v. Norcross, 143 Mass. 334. A trustee under a will gave a probate bond with A and B as sureties. A died, and D, who was a surety on another bond for the same principal as trustee of another estate, supposed that he was a co-surety with A on the first bond, and petitioned the probate court to be discharged; and he was discharged accordingly. The trustee then gave another bond in the same penal sum as the other, with B and C as sureties, which was approved by the judge of probate as " a new bond." The judge and parties all acted under the same appre- hension as D. Held, that both bonds were valid, and that the sureties on each bond after a breach thereof were liable in proportion to the several liabilities assumed by them. Brooks v. Whitmore, 142 Mass. 399. The settlement in the probate court of an administrator's account, showing that he has exhausted all the estate of his intestate in paying 436 PROCEEDINGS IN THE PROBATE COURTS. have neglected upon demand made by him to pay the same or to show sufficient goods or estate of the deceased the expenses of the last sickness, funeral, and administration, is a good defence to an action brought against the administrator upon his bond although the administrator has suffered a judgment to be recovered against him before such settlement of his account. Fuller v. Connelly, 142 JMass. 227. But to entitle an administrator to depend upon the ground of insufficiency of assets, there must be an inventory filed and a settlement of his account in the probate court. McKim v. Haley, 173 Mass. 112, lU. The proper proceeding to compel a guardian to pay legal counsel for professional services rendered for an infant ward is by action against the ward or on the guardian's bond. Willard v. Lavender, 147 Mass. 15. An executor who receives no assets and files no inventory within three months of his appointment, commits a breach of his bond by failing to file an inventory within a reasonable time after assets come to his hands. If an executor neglects to file an account within one year after his appointment, it is a breach of his bond, although a debt due to the executor from the testator and the burial expenses paid by him exceed in amount the assets, and no claims are presented by cred- itors within two years. Forbes v. McHugh, 152 Mass. 412. The provision in the Public Statutes that a trustee of an estate may be exempted from giving sureties on his bond at the request of " all the persons beneficiall}' interested " therein, refers to such inter- ested persons only as are in being and have a vested interest in the estate. Dexter v. Cotting, 149 Mass. 92. See R. L. c. 149, § 4. The questions whether trustees under a will shall give bonds to the judge of probate and perform the other duties of trustees who are obliged to give such bonds are primarily for the probate court. Bul- lard V. Attorney-General, 153 Mass. 249. After verdict in an action on a probate bond for the penal sum thereof, it is discretionary with the court upon a hearing in equity to fix the amount for which execution shall be awarded, or to submit the question to a jury. Defriez v. Coffin, 155 Mass. 203. If after the passing of a decree in the probate court exempting an executor from giving sureties on his bond he files a bond without any surety dated on the day when the will was first presented for probate, bearing the approval of the judge of probate written thereon in due form, but dated and actually written on the day of the date of the bond, this will be a sufficient bond, and the statute of limitations will PROBATE BONDS. 437 to be taken on execution for that purpose. 2d. When the estate is insolvent, and the amount due the creditor has been ascertained by a decree of distribution. 3d. By a person next of kin whose distributive share of the per- sonal estate has been ascertained by a decree of the pro- bate court. In each case, the person bringing the action must first have made an ineffectual demand upon the executor or administrator. These, it will be seen, are cases in which the right of the claimant has been liqui- dated and ascertained by matter of record, amounting to a conclusive judgment between the parties, and nothing remains but payment. ^ In all other cases, the party aggrieved by the failure of the executor or administrator to perform his duty, must obtain leave of the probate court before bringing an action on the bond.2 This is the course to be pursued by a legatee when the executor neglects to pay his legacy ;3 begin to run in favor of the executor on the day when it is filed. Wells V. Child, 12 Allen, 330. > Loring r. Kendall, 1 fi^ray, 316; Newcomb v. Williams, 9 Met. 536; Barton v. White, 21 Pick. 60; Pierce v. Prescott, 128 Mass. 144. The administrator of the next of kin may bring an action on the bond without obtaining leave of the court. White v. Weatherbee, 126 ]\lass. 450. If an executor or administrator neglects to render and settle his accounts in the probate court within six months after the final deter- mination of the claims of creditors, or within such further time as the court may allow, and thereby delays a decree of distribution, such neglect shall be deemed unfaithful administration; and he may be forthwith removed, and shall be liable in a suit on his bond for all damages occasioned by his default. R. L. c. 142, § 26. 2 R. L. c. 149, § 23". » Newcomb v. Williams, 9 Met. 525; Fay v. Taylor, 2 Gray, 158 ; Conant v. Stratton, 107 Mass. 474. A legatee's right of action arises only after demand upon the executor for payment of the legacy. Prescott V. Parker, 14 Mass. 429. 438 PROCEEDINGS IN THE PROBATE COURTS. and by a creditor, or one next of kin (whose claim or share has not been ascertained by a judgment or decree), or other person aggrieved by any maladministration.^ ^ For the failure of the administrator to account within one year, no action lies on the probate bond, after the allowance by the judge of probate, at the request of the parties in interest, of an account sub- sequently rendered by him. Loring i'. Kendall, 1 Gray, 305. Where a creditor gives up his securities against an estate, on a personal promise by the executor to pay his debt, it seems that he thereby loses his remedy on the executor's bond, given to pay debts and legacies. Stebbins v. Smith, 4 Pick. 97. If an executor be also appointed trustee in the will, but gives bond only as executor, he is chargeable in that capacity for the property in his hands, until he has given bond as trustee, and charged himself with the property as trustee. Prior v. Talbot, 10 Cush. 1 ; Ricketson V. Merrill, 148 Mass. 82. Where a general legacy is given to one for life, with remainder over, and no special trustee is appointed to manage the same, the executor is liable on his bond, if he does not renounce the trust, for any default in reference to such legacy. Dorr v. Wainwright, 13 Pick. 328; Brooks V. Rice, 131 Mass. 408. An administrator's bond given here does not cover proceedings under letters of ancillary administration taken out in another state. Hooker v. Olmstead, 6 Pick. 481. In his inventory filed in the probate court, a guardian included assets received by him in another state under ancillary letters of guar- dianship, and by a decree of the probate court here there was found to be due from him a certain sura. He resigned as guardian in this commonwealth, and his resignation was accepted, and he had not received his discharge as guardian in the other state. Held, that so long as the decree of the probate court remained in force, there was a breach of the condition of the bond ; that at the expiration of his trust he should pay over all the estate to the persons lawfully entitled thereto. Brooks u. Tobin, 135 Mass. 69. A bond given by an administrator, on being licensed to sell so much only of his intestate's real estate as is sufficient for the payment of debts and charges, is not a probate bond, and an action upon it can- not be commenced originally in the supreme judicial court. Fay v. Valentine, 8 Pick. 526. A bond giveu by a person who is simply a trustee under an oral PROBATE BONDS. 439 These are cases in which tlie maladministration may have been alike injurious to all the creditors, next of kin, or appointment is not a valid probate bond ; and the sureties are not estopped from setting up that defence by a recital in the bond that such person had been "duly appointed trustee," Conant v. Newton, 126 Mass. 105. A probate bond is not provable in bankruptcy against one of the sureties before a breach of condition of the bond ; nor, it seems, before judgment in an action brought for such breach. Loring v. Kendall, 1 Gray, 305. When a testator devised an annuity to his widow, and authorized his executor to sell lands sufficient to raise a fund, the interest of which should be equal to the annuity, the executor's neglect to raise said fund was held to be a breach of his bond. Prescott v. Pitts, 9 Mass. 376. When the same person is executor of a will and guardian of a minor to whom a legacy is given by the will, he holds the amount of the legacy in his capacity of executor, and not as guardian, until he set- tles an account of his administration in the probate court, crediting himself as executor with the legacy, and charging himself therewith as guardian. Until such account is allowed by the probate court, an action cannot be maintained against him and his sureties, on his guar- dianship bond, for neglect to pay the legacy; but an action maybe maintained against him and his sureties on the bond given by him as executor. Conkey v. Dickinson, 13 Met. 51 ; White v. Ditson, 140 Mass. 354. A suit on the administrator's bond can be maintained for the bene- fit of the heirs, for waste in suffering property to be sold at a disad- vantage and loss, on execution. Brazer v. Clark, 5 Pick. 96 ; Dawes V. Winship, ibid. 97, note. Where an executor sold real estate under a license obtained by his misrepresentations as to the condition of the estate in his hands, it was held that such sale was a breach of his bond. Chapin v. Waters, 110 Mass. 195. A devisee of real estate, having only a contingent interest therein, or a present interest defeasible upon a condition subsequent, is not entitled to bring an action on the administration bond. Stevens v. Cole, 7 Cush. 467. Whether a devisee of real estate is a person inter- ested in the estate of a testator, and entitled as such to bring an action on the administration bond, qucere. Ibid. A refusal by an administrator to comply with a decree of the pro- 440 PKOCEEDINGS IN THE PROBATE COURTS. legatees. No one of them is exclusively entitled to prose- cute an action, and the statute therefore authorizes the probate court to designate some one of the persons inter- ested to bring an action for the benefit of all.^ An action may be brought on a probate bond at any time within twenty years after the breach of the condition relied on as a cause of action.^ Any person interested in the estate may petition for leave to sue the bond.^ The petition should state clearly all the facts necessary for the consideration of the court, or proper to be notified to the adverse party. Upon the bate court in itself void, is not a breach of his bond. Hancock v. Hubbard, 19 Pick. 167; Dawes v. Head, 3 Pick. 128. The failure of an administrator to pay to the widow of his intes- tate an allowance ordered to be paid by a decree of the probate court, is a breach of his bond. The failure to pay the heirs of his intestate on demand rents of real estate received by him before any decree of the probate court is not a breach. If a decree of the probate court reforming the account of an administrator has been affirmed by the supreme judicial court on appeal, and the case remitted to the probate court for further proceedings, that court may authorize the bringing of an action on the administrator's bond, although the cer- tificate of the decision of the supreme court has not then been filed in the probate court, and in the action on the bond neither the administrator nor his sureties are entitled to contest the validity of the order authorizing the action. Choate v. Jacobs, 136 Mass. 298. A right of action against a trustee under a will on his bond arises upon a demand by his successor for the trust fund, and his refusal to pay over the same. If a right of action against such trustee and the sureties on his bond has been barred by the failure of his successor to sue within the time limited by statute, such bar cannot be removed and a new right of action created by a new demand upon the first trustee for the trust fund made by the second trustee after a reappoint- ment as such. McKim v. Doane, 137 Mass. 195. 1 Newcomb v. Wing, 3 Pick. 168; Paine v. Moffit, 11 Pick. 496. 2 Prescott V. Read, 8 Cush. 36.5; Thayer v. Keyes, 136 Mass. 104. * The father of an infant interested in the estate having himself no adverse interest therein, may petition, as next friend of the infant, for leave to sue the bond. Stevens v. Cole, 7 Cush. 467. PROBATE BONDS. 441 petition, a citation usually issues to the administrator and his sureties, and the petitioner must see that the citation is served in the manner required by its terms.^ The petitioner must be prepared, at the time fixed for the hearing, to show that the administrator has so failed to perform his duty as to render proper a suit on his bond. The leave to bring the action can only be granted by a decree in writing.^ An appeal lies from a decree of the probate court refusing leave to sue the bond ; but the signers of the bond cannot appeal from a decree allowing a suit,^ nor contest the validity of the decree in the action.* When the judge is obligor, as principal or surety, in a bond given to a former judge of the court, the register of the probate court for the county in which such bond was given may authorize a suit thereon, in like manner and upon the same conditions as the court may in other cases.^ 1 Leave may be granted to a legatee to bring an action on a probate bond, without notice to the obligors of the application for such leave, or previously summoning the piincipal obligor to render an account, and ordering distribution thereon. Richardson v. Oakman, 15 Gray, 57; Bennett v. Woodman, 116 Mass. 519. Upon a special bond given by an administrator licensed to sell more real estate than is necessary for the payment of debts, to account for the surplus proceeds, an action will lie after neglect for an unreason- able time to render such an account in the probate court, although he has not been cited to do so. Bennett v. Overing, 16 Gray, 267. The sureties on a general bond given by an executor who has also given a special bond on being licensed to sell real estate for payment of debts and legacies, are not liable for the neglect of the executor to pay to the residuary legatees entitled thereto the balance of the pro- ceeds of the sale, although the executor charges himself in his general account with the whole of such balance. Robinson v. Millard, 133 Mass. 236. 2 Fay V. Rogers, 2 Gray, 175. « Ibid. * Bennett v. Woodman, 116 Mass. 518; Choate v. Jacobs, 136 Mass. 297. 5 R. L. c. 149, § 24. 442 PROCEEDINGS IN THE PROBATE COURTS. Every suit on an administration bond must be brought in the superior court, held for the county in which the bond was taken.^ The writ must be indorsed by the per- sons for whose benefit or at whose request the action is brought, or by their attorney, and the indorsers are liable for the costs of suit. If the principal in the bond is resi- dent within the commonwealth at the commencement of the action, and is not made a defendant therein, or is not served with process, the court may, at the request of any of the sureties, continue or postpone the action so long as may be necessary to summon or bring in the principal.^ If the action is brought by a judgment creditor, or by a creditor or a distributee, the amount of whose claim or share has been established by a decree of distribution, there must be a further indorsement specifying that it is brought for the use or benefit of such creditor or next of kin ; ^ and execution, if he obtains judgment, will be awarded for his own use. In every other case the recov- ery is of all damages occasioned by the default of the de- linquent administrator, not the especial damage sustained by any one person. The suit is for the benefit of all per- sons interested. One judgment is rendered for the entire penalty, and execution is awarded in the name of the judge of probate as the rights of the parties interested require.* When it appears that the condition of the bond of an executor or administrator has been broken, the court upon a hearing in equity shall award execution in the name of the plaintiff as follows : — 1 R. L. c. 149, § 30. 2 Ibid. § 27. 8 Ibid. § 26; Bennett v. Russell, 2 Allen, 537. * Bennett v. Overing, 16 Gray, 267; Conant v. Stratton, 107 Mass. 474; Chapin v. Waters, 110 Mass. 195; Choate v. Arrington, 116 Mass. 552. PEOBATE BONDS, 443 First, If the action is brought for the benefit of a cred- itor, execution shall be awarded for the use of the creditor for the amount due to him upon the judgment that he has recovered, or upon the decree of distribution in his favor. Second, if the action is brought for the benefit of a person who is next of kin, execution shall be awarded for the use of such person for the amount due to him accord- ing to the decree of the probate court. Third, If the action is brought for a breach of the con- dition in not accounting for the estate as required by law, execution shall be awarded, without expressing that it is for the use of any person, for the full value of all the estate of the deceased that has come to the hands of the executor or administrator, and for which he does not satisfactorily account, and for all damages occasioned by his neglect or maladministration. Fourth, If the action is brought for any other breach of the condition of the bond, execution shall be awarded for such amount and for the use of such person or persons, or without expressing it to be for the use of any particular person, as the court determines. Fifth, If there are two or more persons for whose use execution is to be awarded as provided in this section, a separate execution shall be issued for the sum due to each of them. Sixth, The execution shall include the costs of suit, as well as the debt or damages ; and if there is more than one execution, the costs shall be equally divided between them. When an execution awarded under the preceding section is expressed to be for the use of a particular person, such person shall be considered as the judgment creditor, and may cause the execution to be levied in 444 PROCEEDINGS IN THE PKOBATE COURTS. his name and for his benefit, as if the action had been brought and the judgment recovered in his name.^ The money received on such execution is assets of the estate to be administered, and goes into the hands of the rightful executor or administrator for that purpose. Generally, maladministration which constitutes a breach of his bond will disqualify an administrator and cause his removal. But if there were two or more executors, and separate bonds were given, there may be a co-executor not implicated, in which case the money is paid to him. And it may be that the breach of the bond was of such a nature as not to implicate the integrity of the executor, -as when the suit was brought to settle some question of right, in which case he may charge himself with the amount of the judgment recovered, and settle the estate. But when the breath of the bond is followed, as is gener- ally the case, by the removal of the executor or adminis- trator, and there is no co-executor not implicated, the money recovered on the execution is paid to the adminis- trator appointed in his stead, to be administered accord- ing to law.2 In case the awards of execution do not exhaust the whole penalty, the judgment for the residue stands for any other breach, which may at any time afterwards occur, to be sued for by scire facias, either for the benefit of a party entitled to claim in his own right, or by the judge of the probate court as trustee for others.^ 1 R. L. c. 149, §§ 31, 32. 2 Ibid. § 33; Newcomb v. Williams, 9 Met. 538; Wiggin v. Swett, 6 Met. 198. The entry of judgment may be suspended until oppor- tunity has been afforded for an application to the probate court for the removal of the administrator. Bennett v. Russell, 2 Allen, 537. 8 R. L. c. 149, § 34. PROBATE BONDS. 445 SUITS UPON BONDS OP^ TRUSTEES AND GUARDIANS. Bonds given by trustees may be put in suit by order of the probate court for the use and benefit of any person interested in the trust estate, and bonds given by guar- dians for the use and benefit of the ward or any person interested in the estate.^ The proceedings in either case 1 R. L. c. 149, § 29; White v. Ditsou, 140 Mass. 357; McKim v. Hibbard, 142 Mass. 422. A guardian, licensed to sell real estate for the purpose of invest- ment, did not duly invest the proceeds, but charged himself with such proceeds, and with interest thereon from year to year, in his general guardianship account, which was allowed by the court, and expended sums equal to such interest for the support of his ward. Held, that he was responsible for such proceeds upon the special bond given by him on obtaining the license, but not for the interest thereon upon his general bond. Mattoon v. Cowing, 13 Gray, 387 ; McKim i-. Morse, 130 Mass. 439. See Robinson v. Millard, 133 Mass. 236. A guardian is responsible on his general bond for money due from him to his ward at the time of his appointment, and for the rent of real estate occupied by the guardian before that time. Mattoon v. Cowing, 13 Gray, 387. The sureties on a guardian's bond are not discharged from liability by the fact that the guardian's account is not settled until more than two years after his death, and after the right of action against his administrator is barred by the statute of limitations. Chapin v. Liverraore, 18 Gray, 561 ; Cobb v. Kerapton, 154 Mass. 266. Nor in money had and received. A bill in equity for the recovery of a debt due from the ward cannot be sustained against the guardian ; the remedy is by action on the bond. Conant v. Kendall, 21 Pick. 3G. The guardian is not liable, in an action of assumpsit, to one who has furnished necessaries for the ward, but only in an action on his bond. Cole v. Eaton, 8 Cush. 587. The remedy of a ward against the guardian to account for money received from the sale of real estate by order of court, is likewise by a suit on the bond; not an action for money had and received. Brooks V. Brooks, 11 Cush. 18. See McLane v. Curran, 133 Mass. 531 ; Wil- lard V. Lavender, 147 Mass. 15. A surety on a special bond given by a guardian upon obtaining a license to sell his ward's real estate for maintenance, is liable for a 446 PROCEEDINGS IN THE PROBATE COURTS. are conducted in like manner as suits on the bonds of exec- utors and administrators, but no suit can be maintained unless it is brought by leave of the probate court. Action against sureties in a guardian's bond are limited to four years from the time the guardian is discharged, except that if at the time of the discharge the person entitled to bring the action is out of the state, it may be commenced at any time within four years after his return.^ By the term "discharged" in the statute is intended any mode by which the guardianship is effectu- ally determined, either by the removal, resignation, or death of the guardian, the arrival of a minor ward at full age, or otherwise.^ The limitation applies as well to bonds given by guardians on obtaining license to sell real estate, as to the general guardianship bond. BONDS OF ADMINISTRATORS OF FRENCH SPOLIATION AWARDS. In Sargent v. Sargent, 168 Mass. 420, 426, the opinion of the court suggested a doubt as to the liability of sureties on an administrator's bond in the ordinary form for a failure by the administrator to distribute French spoliation awards according to the order of the probate court. To remove this doubt, St. 1902, c. 371, was enacted. failure by the guardian to invest the proceeds of the sale not needed for maintenance. McKim v. Morse, 130 Mass. 439. A ward after coining of age is not entitled to prove against the estate in insolvency of his guardian a claim for the property which came into the hands of the guardian until the latter has settled his account in the probate court, or until a judgment has been obtained upon his bond. Murray v. Wood, 144 Mass. 195. ^ R. L. c. 149, § 35. The death of the vpard is a discharge of the guardian. McKim v. Mann, 141 Mass. 507; Richmond v. Adams National Bank, 152 Mass. 364. 2 Loring v. Alline, 9 Cush. 68. PKOBATE BONDS. 447 This statute gives to the probate court exclusive original jurisdiction of all matters relating to the administration of moneys appropriated by the congress of the United States on account of French spoliations, and provides that every bond given after the passage of the act by any adminis- trator engaged in the administration of French spoliation awards shall contain a condition substantially as follows : " To administer according to law and the orders of the probate court all French spoliation awards which shall come to his possession as such administrator." The statute also prescribes the form of approval by the judge or register of such bonds. CHAPTER XX. SPECIFIC PERFORMANCE OF AGREEMENTS TO CONVEY LANDS. — ARBITRATION AND COMPROMISE. — SALE OF STANDING WOOD AND TIMBER. — RELEASE OF INTERESTS IN REAL ESTATE OF WARDS. — SUPPORT OF MARRIED WOMEN LIVING APART FROM THEIR HUSBANDS. — CON- TRIBUTION BETWEEN DEVISEES AND LEGATEES. CONVEYANCES OF LANDS BY EXECUTORS, ADMINISTRATORS, AND GUARDIANS UNDER CONTRACTS. — SPECIFIC PERFORMANCE. " If a person who has entered into a written agreement for the conveyance of real property dies or is put under guardianship before making such conveyance, the probate court shall have jurisdiction concurrent with the supreme judicial court and the superior court to enforce a specific performance of such agreement, and, upon a petition there- for by any person interested in the conveyance, shall, after notice, if upon the hearing it appears that the deceased, were he living, or the ward, were he not under guardian- ship, would be required to make the conveyance, order the executor or administrator or the guardian to make the same, which conveyance shall have like force and effect as if made by the person who agreed to convey." ^ 1 R. L. c. 148, § 1 ; Pvoot v. Blake, 14 Pick. 271. The jurisdiction given by thi.s statute to the probate court is con- current with that of the supreme judicial court, and the superior court, and is governed by the same rules. Lynes v. Hayden, 119 Mass. 482. If the petition for specific performance is dismissed by the probate ADJUSTMENT OF DEMANDS BY ARBITRATION. 449 ADJUSTMENT OF DEMANDS BY ARBITRATION OR COMPROMISE. Probate courts may authorize executors, administrators, guardians, and trustees to adjust, by arbitration or com- promise, any demands in favor of or against the estates by them represented.^ The executor or other officer who is desirous of so adjusting a claim should present a peti- tion to the court setting forth the nature of the demand, and representing that it can be adjusted by arbitration or compromise, and that the interests of the estate repre- sented by him will be promoted thereby. Any adjust- ment by arbitration or compromise, without leave of the court first obtained, would be at the risk of the executor or other person making it, and might give rise to ques- tions upon the settlement of his accounts in the probate court.2 court, the petitioner cannot bring a new petition in the supreme judi- cial court. I J is remedy is by appeal. Luchterhand v. Sears, 108 Mass. 552. The court has jurisdiction to decree specific performance by the representatives of a deceased husband of a written agreement made by him with his intended wife before marriage, in consideration of her past service to him and of the contemplated marriage, to convey land to her, reserving a life-estate therein to himself. Miller v. Goodwin, 8 Gray, 542. 1 R. L. c. 148, § 13. 2 Chadbourn v. Chadbourn, 9 Allen, 173 ; Blake v. Ward, 137 Mass. 94. See Tallman v. Tallman, 5 Cush. 325 ; Clarke v. Cordis, 4 Allen, 466 ; Ware v. Merchants' National Bank, 151 Mass. 445. If an administrator submits to arbitration a demand against the estate of his intestate, the award will be binding on him. Bean v, Farnam, 6 Pick. 209. An award on a submission by a guardian, that the ward and infant heir shall pay an annuity to the widow in lieu of dower, is voidable, not void. Barnaby v. Barnaby, 1 Pick. 221. If land held by two persons as trustees is taken by a city for a 29 450 PROCEEDINGS IN THE PROBATE COUKTS. Controversies between different claimants to an estate in the hands of executors, administrators, guardians, and trustees, and between the persons claiming as devisees or legatees under a will and the persons entitled to the estate of the deceased under the statutes regulating the descent and distribution of intestate estates, may be set- tled by arbitration or compromise in the supreme judicial court.i SALE OP STANDING WOOD AND TIMBER. " If the supreme judicial court or the probate court for the county in which the land lies finds that wood or timber, standing on land the use and improvement of which belongs, for life or otherwise, to a person other than the owner of the fee therein, has ceased to improve by growth, or ought for any cause to be cut, it may appoint a trustee to sell and convey said wood or timber, to be cut and carried away within a time to be limited in the order of sale, to hold and invest the proceeds thereof after pay- ing therefrom the expenses of such sale, to pay over the income, above the taxes and other expenses of the trust, to the person entitled to such use and improvement while his right thereto continues, and thereafter to pay the highway, an arbitration entered into between a lessee and one of the trustees only, in accordance with which the city pays a sum of money to the lessee, is void. Boston v. Robbins, 126 Mass. 384. 1 R. L. c. 148, §§ 14-18. On a bill in equity under the statute to establish a compromise of a charitable devise for the benefit of a town, the attorney-general alone can represent those beneficially interested ; and the inhabitants of the town cannot intervene by petition to oppose the compromise, or appeal from a decree settling its terms. Bur- bank V. Burbank, 152 Mass. 254. A purchaser of standing wood and timber, after severing the trees from the land, has an irrevocable license to enter and remove them. Fletcher i'. Livingston, 153 Mass. 388. PROTECTION AND SUPPORT OF MARRIED WOMEN. 451 principal of the fund to the owner of such land. If wood or timber has been cut as aforesaid, no more thereof shall be cut on such land by the person entitled to such use and improvement without permission from said court. Such sale, if authorized by a probate court, shall be made in the manner provided by law for the sale of real property by guardians ; and if such sale is so authorized by the su- preme judicial court, the trustees shall give to such person as the court shall designate a bond, for the use and benefit of the persons interested in the proceeds of the sale, with condition for the faithful discharge of the trust ; and the court may from time to time remove the trustee, and appoint another in his stead." ^ PURCHASE OF INTERESTS IN REAL ESTATE OF WARDS. Probate courts, after notice to all persons interested, may authorize guardians to obtain by purchase the re- lease and conveyance of a right of dower or of curtesy, homestead, life-estate, estate for years, or other interest, vested or contingent, held or owned by any person in or to any real property of their wards, and to make any contract concerning such rights or interests which may be necessary to effect such purchase.^ PROTECTION AND SUPPORT OP MARRIED WOMEN LIVING APART FROM THEIR HUSBANDS. When a husband fails, without just cause, to furnish suitable support for his wife, or has deserted her, or when the wife, for justifiable cause, is actually living apart from her husband, the probate court may, by its order on the petition of the wife, or, if she is insane, on 1 R. L. c. 134, § 11. 2 R. L_ c. 145, § 32. 452 PROCEEDINGS IN THE PROBATE COURTS. the petition of her guardian or next friend, prohibit the husband from imposing any restraint on her personal liberty for such time as the court shall in such order direct, or until the further order of the court thereon ; and the court may, upon the application of the husband or wife or of her guardian, make such further order as it deems expedient concerning the support of the wife, and the care, custody, and maintenance of the minor children of the parties, and may determine with which of their parents the children or any of them shall remain ; and may, from time to time, afterwards, on a similar applica- tion, revise and alter such order, or make a new order or decree, as the circumstances of the parents or the benefit of the children may require. The petition may be brought in the county in which either of the parties lives,^ except 1 A decree for the separate maintenance of a wife will be valid, even though the husband resides out of the State, if notice is served upon hira. Blackinton v. Blackinton, 141 Mass. 435; Osgood v. Osgood, 153 Mass. 39. It is no bar to an action under the statute that the wife has con- tracted, for a valuable consideration, to release her husband from all claim by her on him for support, and to indemnify him from any such claim. Silverman v. Silverman, 140 Mass. 560. A decree that the husband pay a sum in gross for all support of his wife in the future cannot be entered without the consent of all par- ties. Doole V. Doole, 144 Mass. 278. On a petition brought under this statute the probate court can- not make a decree against the guardian of a spendthrift husband. Kavanaugh v. Kavanaugh, 146 Mass. 40. If an attachment of a husband's real estate is made on a wife's petition for separate maintenance, the probate court to enforce the payment of an allowance to her for her support may issue succes- sive executions until the property attached is exhausted, and the attachment will continue until that time. Downs v. Flanders, 150 Mass. 93. An attachment of property of a husband by his wife, who is living apart from him, made less than four months prior to the first publica- PROTECTION AND SUPPORT OF MARRIED WOMEN. 453 that, if the petitioner has left the county in which the parties have lived together and the respondent still lives therein, the petition must be brought in that county. Upon the petition an attachment of the husband's prop- erty may be made as upon a libel for divorce, and the court may require the husband to pay into court for the use of the wife such sum of money as may enable her to maintain her petition. The court has power to enforce its decrees in the same manner as decrees are enforced in equity ; and its decrees will have effect, notwithstanding an appeal, until otherwise ordered by the superior court.^ tion of notice of the filing of a petition in involuntary proceedings in insolvency against, will be dissolved by such proceedings. Place v. Washburn, 163 Mass. 530. A decree of the probate court on a wife's petition for separate maintenance, adjudging that she is living apart from her husband for justifiable cause, is, while it remains in force, a bar to a libel for a divorce on the ground of desertion. Miller v. Miller, 150 Mass. 111. A decree of the probate court that a wife is living apart from her husband for justifiable cause is not competent evidence in an action against the husband by a third person for the board of his wife and child, that the wife was living apart from him for justifiable cause, although the same cause which was the basis of the decree continued during all the time such board was furnished. Barney v. Tourtellotte, 138 Mass. 106. The probate court has authority to order the respondent to appear by publication of notice, and to determine the length of time which shall elapse between the last publication and the return day. Osgood V. Osgood, 153 Mass. 38. A wife who is actually living apart from her husband for justifiable cause can maintain a petition for separate support, even though at the time of her filing her petition he had no notice, express or implied, that she was so living. Smith v. Smith, 154 Mass. 262. 1 R. L. c. 153, §§ 33-35 ; c. 162, § 19. The statute, so far as it provides that, when a wife is living apart from her husband for justifiable cause and he fails to support her, the court may make such order as it deems expedient for her support and for the maintenance of the minor children, is constitutional although 454 PROCEEDINGS IN THE PROBATE COURTS. The court in which a libel for divorce is pending may, without entering a decree of divorce, cause the libel to be continued on the docket from time to time, and during such continuance may make orders and decrees relative to a temporary separation of the parties, the separate maintenance of the wife, and the custody and support of the minor children. Such orders and decrees may be changed or annulled as the court may determine, and shall, while they are in force, supersede any order or decree of the probate court under the provisions of section thirty- three of chapter one hundred and fifty-three, and may sus- pend the right of said court to act under the provisions of said section.! SUPPORT OP MINOR CHILDREN UNDER GUARDIANSHIP. The probate court may, upon the petition of a guardian entitled to the custody of his minor ward, during the life- it makes no provision for a trial by jury. Bigelow v. Bigelow, 120 Mass. 320. The court has power to make an order for the separate support of a wife while living in the same house with her husband and perform- ing some of the duties of a wife ; and the statute is constitutional. Buckuam v. Bucknam, 176 Mass. 229. The probate court may properly require a man to contribute to his wife's support, although his only means of complying with the order is derived from a pension granted him by the United States. Tully V. Tully, 159 Mass. 91. " Support " includes not merely board, but everything necessary to proper maintenance. Gould v. Lawrence, 160 Mass. 232. A court of equity cannot decide whether a wife is living apart from her husband for justifiable cause ; and a wife who has filed in the probate court a petition for separate maintenance, upon which no order for such maintenance has been granted, cannot maintain a bill in equity to reach property alleged to belong to the husband, and to hold it until such an order shall be entered. Willard v. Briggs, 161 Mass. 58 ; Brownell v. Briggs, 173 Mass. 529, 532. 1 R L. c. 152, § 17. RELEASE OF DOWER, ETC., BY WIFE OF WARD. 455 time of either or both of his parents, and after notice to all parties interested, order and require the said parents, or either of them, to contribute to the support and mainte- nance of such minor in such sums and at such times as it determines are just and reasonable. Such parent or parents may be required to give a bond conditioned to comply with such order and payable to the judge of said court and his successors in such sum and with such sure- ties as the court orders. The court may from time to time, upon application of either party, revise or alter such order or make such new order or decree as the circumstances of the parents or the benefit of the minor may require.^ The probate court has exclusive original jurisdiction of the petitions of married women concerning their sepa- rate estate, and of the petitions or applications concern- ing the care, custody, education, and maintenance of minor children.^ Appeals from the probate court, on petitions for separate support brought under section 33 of Rev. Laws, c. 153, and petitions of married women concerning their separate estate, and petitions concerning the care, custody, edu- cation, and maintenance of minor children shall be taken to the superior court. And such appeals, and the proceed- ings thereon, shall, so far as practicable, be the same as on appeals to the supreme judicial court. ^ SALE AND RELEASE OF A WIFE'S INTEREST IN LANDS WHEN THE HUSBAND IS UNDER GUARDIANSHIP. If the guardian of a married man is licensed to sell his ward's real estate, the wife of the ward may join with the guardian in the conveyance for the purpose of releasing her right of dower and the estate or right of homestead, in like 1 R. L. c. 145, § 28. 2 R. L. c. 162, § 4. » Ibid. § 18. 456 PROCEEDINGS IN THE PKOBATE COURTS. manner as she might have done by joining in a conveyance thereof made by her husband if lie had been under no legal disability.^ If such guardian is licensed to sell the ward's interest in real estate of his wife, she may join with the guardian in the conveyance, and thereby convey her estate in the granted premises. If the wife so releases her right of dower or an estate of homestead, or so conveys her own estate, the proceeds of the sale may be so invested and disposed of as to secure to the wife and to the minor children of the owner, if it is an estate of homestead, the same rights in the principal and the income thereof that she or they would have had therein if it had not been sold. An agreement between her and the guardian for securing and disposing of the proceeds or of any part thereof for the purpose aforesaid, if approved by the probate court for the county in which the guardian was appointed, or by the supreme court of probate upon appeal, or, in default of an agreement between her and the guardian approved as aforesaid, an order therefor made by the probate court is valid and binding on all persons interested in the granted property or in said proceeds, and may be enforced by the court or by an action at law.^ RELEASE OP CURTESY, DOWER, AND HOMESTEAD ESTATES BY GUARDIANS OF INSANE PERSONS. " The husband or wife of an insane person who desires to convey his or her real property absolutely or by mortgage may file a petition in the probate court describing such real ^ The signature of any married woman under the age of twenty- one years, affixed by her to any instrument relating to the conveyance of land of her husband, shall have the same effect as if she were over that age. St. 1902, c. 478. 2 R. L. c. 153, §§ 15-17. RELEASE OF CURTESY, DOWER, ETC., BY GUARDIANS. 457 property, and praying that the dower of the wife or an estate of homestead or a tenancy by the curtesy at com- mon law or by statute of the husband therein may be released, and stating the facts and reasons why the prayer of the petition should be granted. The court may, after notice and a hearing, by a decree authorize the guardian of the insane person to make the release by joining in any deed or deeds, mortgage or mortgages of the whole or a part of such real property, to be made within five years after the decree by the husband or wife of the insane person or by a trustee for such husband or wife." ^ " If the guardian of an insane husband is authorized under the provisions of the preceding section to release such tenancy by the curtesy and the probate court finds that a portion of the proceeds of such real property, or of an amount loaned on mortgage thereof, should be reserved for the use of such ward, it may order that a certain portion, not exceeding one-third of the net amount if it is in respect of the tenancy by the curtesy by statute, of the proceeds or amount actually realized from such sale or mortgage, exclusive of any encumbrance then existing on the property, shall be set aside and paid over to such guardian, who shall invest and hold it for the benefit of the husband during his life, if he survives his wife. The income of such portion shall be received and enjoyed by the wife during the life of her husband, or until otherwise ordered by the court for cause. If she survives him the principal shall upon his decease be paid over to her, but if she does not survive him, to her heirs, executors, or administrators." '^ " If the guardian of an insane wife is authorized under the provisions of section nineteen to release the dower of 1 R. L. c. 153, § 19. 2 Ibid. § 20. 458 PROCEEDINGS IN THE PROBATE COURTS. liis ward, and the probate court finds that a portion of the prpceeds of such real property, or of an amount loaned on mortgage thereof, should be reserved for the use of such ward, it may order that a certain portion, not exceed- ing one-tliird of the net amount of the proceeds or amount actually realized from such sale or mortgage, exclusive of any encumbrance then existing on the property, shall be set aside and paid over to such guardian, who shall invest and hold it for the benefit of the wife during her life if she survives her husband. The income of such portion shall be received and enjoyed by the husband during the life of his wife, or until otherwise ordered by the court for cause. If he survives her the principal shall, upon her decease, be paid over to him, but if he does not survive her, to his heirs, executors, or administrators." ^ " If the guardian of an insane wife is authorized under the provisions of section nineteen to release an estate of homestead, and the probate court finds that a portion of the proceeds of the real property sold, or of an amount loaned on mortgage thereof, should be reserved for the use of the ward, it may order that a certain portion, not ex- ceeding eight hundred dollars, shall be set aside and paid over to such guardian, to be invested in a homestead, and held by him for the benefit of his ward, if she survives her husband ; the rent or use thereof to be received and enjoyed by the husband during the life of his wife, or until otherwise ordered by the court for cause ; and the home- stead to be his, and to be conveyed to him by said guardian, if he survives her." ^ " If the husband or wife of an insane person conveys real property in trust without a power of revocation, and makes a provision therein for the insane husband or wife, 1 R. L. c. 153, § 21. 2 Ibid. § 22. CONFIRMATION OF ACTS OF EXECUTORS, ETC. 459 respectively, which the probate court, upon petition, after notice and a hearing, finds is sufficient in lieu of curtesy or dower, the trustee may convey such real property free from all right of curtesy or dower." ^ " The court, under the provisions of the preceding sec- tion, may find that the provision for the husband or wife is sufficient in lieu of curtesy or dowry either in the whole or in particular portions of the real property of the husband or wife, and thereupon the guardian of such insane husband or wife may be authorized to release the curtesy or dower in the whole or in particular portions thereof." 2 " Proceedings in the probate court under the provisions of the six preceding sections shall, if the husband or wife of such insane person is an inhabitant of this common- wealth, be in the county in which he or she resides ; other- wise in a county in which any of his or her real property is situated ; and a certified copy of all final orders and decrees in such proceedings shall be recorded in the registry of deeds in every county or district in which such real property is situated." ^ CONFIRMATION OP DEFECTIVE ACTS OR PROCEEDINGS OP PRO- BATE COURTS, OR OF PERSONS ACTING UNDER APPOINT- MENT FROM PROBATE COURTS. " If the authority or validity of an act or proceeding of the probate court, or of a person acting as executor, administrator, guardian, or trustee, is drawn in question by reason of an alleged irregularity, defective notice, or want of authority, any party interested in or affected by such act or proceeding may apply to the probate court having jurisdiction of the subject-matter relative to which 1 R. L. c. 153, § 23. 2 Ibid. § 24. » Ibid. § 25. 460 PEOCEEDINGS IN THE PllOBATE COURTS. the act or proceeding has been had, and the court, after notice to all parties interested, and to the persons who may be the parents of such parties not in being, with power to appoint a guardian or next friend to represent the interests of any person unborn or unascertained, may hear and determine the matter and confirm the act or proceeding, in whole or in part, and may authorize and empower the executor, administrator, guardian, or trustee, or any suc- cessor or other person who may be legally appointed to act in the same capacity, to ratify and confirm such act or proceeding, and to execute and deliver such deeds, releases, conveyances, and other instruments as may be found necessary for that purpose ; but no act or proceed- ing shall be ratified or confirmed which the court might not have passed or authorized in the first instance upon due proceedings." ^ CONTRIBUTION AMONG DEVISEES AND LEGATEES. " If a posthumous child, or a child or the issue of a child omitted in the will, takes under the provisions of section nineteen or twenty a portion of the estate of a testator, such portion shall be taken from all the devisees and lega- tees in proportion to and not exceeding the value of what they respectively receive under such will, unless in conse- quence of a specific devise or legacy or of some other provision of the will a different apportionment is found necessary in order to give effect to the testator's inten- tion relative to that part of his estate which passes by his will." 2 1 R. L. c. 148, § 24; Nott v. Sampson Mfg. Co., 142 Mass. 481. 2 R. L. c. 135, § 25. For a case in which it was held that the share of a posthumous child should be taken from the residuary bequest in a will, see Bowen v. Hoxie, 137 Mass. 527. CONTRIBUTION AMONG DEVISEES AND LEGATEES. 461 " If property which is given by will is taken from a devisee or legatee for the payment of the debts of the testator, all the other devisees and legatees shall, subject to the provisions of the following section, contribute their respective proportions of the loss to the person from whom such property is taken, so that the loss may fall on all the devisees and legatees in proportion to and not exceeding the value of the property received by each." ^ " If the testator, by making a specific devise or bequest, has virtually exempted a devisee or legatee from liability to contribute with the others for the payment of the debts, or if by any other provisions in his will he has prescribed or required an appropriation of his estate different from that prescribed in the preceding section, his property shall be appropriated and applied in conformity with the pro- visions of the will, so far as such appropriation and appli- cation can be made without affecting the liability of his whole estate for the payment of his debts. " ^ " If a posthumous child, or a child or the issue of a child omitted in the will, takes under the provisions of section nineteen or twenty a portion of the estate of a testator, such portion of the estate shall, for the purposes of the two preceding sections, be considered as if it had been devised or bequeathed to such child or other descendant ; and he shall contribute with the devisees and legatees ; and be entitled to claim contribution from them, as before provided." ^ " If a person who is liable to contribute according to the provisions of the three preceding sections is insolvent or unable to pay his just proportion of the contribution required, the other persons so liable to contribute shall be severally liable for the loss occasioned by such insol- 1 R. L. c. 135, § 26. 2 Ibid. § 27. » Ibid. § 28. 462 TROCEEDINGS IN THE PROBATE COURTS. vency, each one in proportion to and not exceeding the value of the property received by him from the estate of the deceased ; and if a person who is so liable dies without having paid his proportion, his executors and administra- tors shall be liable therefor in like manner as if it had been his own debt and to the extent to which he would have been liable if living." ^ " If the estate of a devisee under a will is taken for the tenancy by the curtesy of the husband, or for the dower of the widow, of the testator, all the other devisees and legatees shall contribute their respective proportions of the loss to the person from whom the estate is so taken, so that the loss may fall upon all the devisees and legatees in proportion to and not exceeding the value of property received by them under the will ; but no devisee or legatee shall contribute if exempted therefrom by the provisions of the will. "2 "WHITS OF HABEAS CORPUS. Any court which has jurisdiction of libels for divorce or for nullity of marriage, of petitions for separate support or maintenance, or of any other proceeding in which the care and custody of any child or children is drawn in question, may issue a writ of habeas corpus when necessary in order to bring before it such child or children. The writ may be made returnable forthwith before the court by which it is issued, and, upon its return, said court may make any appropriate order or decree relative to the child or chil- dren who may thus be brought before it.^ 1 R. L. c. 135, § 29. 2 Ibid. § 30. » St. 1902, c. 324. CHAPTER XXI. APPEALS FROM THE PROBATE COURT. The supreme judicial court is also the supreme court of probate, and has appellate jurisdiction of all matters determinable by the probate courts, and by the probate judges, except as otherwise expressly provided. The statute provides that " a person who is aggrieved by an order, sentence, decree, or denial of a probate court or of a judge of such court may, except as otherwise provided, appeal therefrom to the supreme judicial court." ^ This provision of the statute applies to all decrees or orders of the probate court except appeals from decrees or orders on petition of married women for separate sup- port brought under section 33, chapter 153, of the Revised Laws, and petitions of married women concerning their separate estates, provided for by sections 31 and 32 of said chapter, and petitions concerning the care, custody, educa- tion, and maintenance of minor children, provided for by section 37 of said chapter, are to be taken to the superior court, and all proceedings thereon shall, so far as practica- 1 R. L. c. 162, §§ 8, 9 ; Swasey v. Jaques, 144 Mass. 135. Objec- tion to the jurisdiction of the probate court can be taken only by way of appeal. Cummings v. Hodgdon, 147 Mass. 21. An appeal lies from the decision of a judge of probate dismissing a petition for partition. Dearborn v. Preston, 7 Allen, 192. The supreme court has no authority to issue a writ of certiorari to the probate court, or to annul or reverse a decree of that court otherwise than by appeal. Peters v. Peters, 8 Cush. 529. 464 rUOCEEDINGS IN THE PROBATE COURTS. ble, be the same as on appeals to the supreme judicial court.* WHO ARE ENTITLED TO APPEAL. The right to appeal depends upon the relations of the appellant to the subject-matter of the decree or other order. It is not limited to the parties directly connected with the proceeding in question, but is given to " any person aggrieved." Mere dissatisfaction with the decree gives no right to an appeal from it. But a person is aggrieved within the meaning of the statute whenever his rights are concluded or in any way affected by it.^ He 1 R. L. c. 162, § 18. ' One claiming property of a deceased person under a gift causa mortis is not affected by decrees of the probate court charging the administrator with the property and ordering it to be distributed to the next of kin, and cannot appeal from such decrees, though he appeared and produced witnesses in that court. Lewis v. Bolitho, 6 Gray, 137. A testator bequeathed money to trustees to be managed as an accu- mulating fund for sixty years, and then to be paid to the town of N. or its agents, for the purpose of purchasing land within the town for a model farm. Held, that the town could appeal from a decree respect- ing the testator's will. Northampton v. Smith, 11 Met. 390. From a decree of the probate court appointing a guardian to a minor child, the trustees of a fund bequeathed for the benefit of such child have no authority to appeal. Deering v. Adams, 34 Maine, 41. A creditor of the estate of a deceased person cannot appeal from a decree refusing the petition of the administrator for leave to sell real estate of the deceased for the payment of debts. Henry v. Estey, 13 Gray, 330. The stepmother of minor children whose parents are both dead cannot appeal from a decree appointing a guardian for the children. Lawless v. Reagan, 128 Mass. 592. Nor can the uncle and next friend of a non compos appeal from an allowance of the guardian's account, without showing himself to be heir or creditor. Penniman v. French, 2 Mass. 140 ; Boynton v. Dyer, 18 Pick. 4. The creditor of a deceased person may appeal from the granting of APPEALS FROM THE PKOBATE COURTS. 465 may be aggrieved when the rights and interests to be affected are those which he has in a representative administration. Stebbins v. Palmer, 1 Pick. 71. But a debtor cannot appeal. Swan v. Picquet, 3 Pick. 413. The party appealing nmst have some pecuniary interest or some personal right whicli is immediately or remotely affected or concluded by the decree appealed from. Lawless v. Reagan, 128 Mass. 592. A trustee may appeal from a decree refusing him leave to reopen his account and correct an error therein. Dodd v. Winship, 144 Mass. 461. If an appeal from a decree of the probate court appointing a per- son administrator of an estate, upon his petition alleging that he was next of kin, fails because the appellant does not prove that he is a party entitled to appeal, and is dismissed upon that ground only, the decree stands as if not appealed from ; and it is within the power of the probate court, upon the petition of a public administrator, to revoke and annul tliat decree. Cleveland v. Quilty. 128 Mass. 578. A creditor cannot appeal from a decree appointing commissioners to receive and examine claims of creditors against the estate of a deceased person which has been represented insolvent, although the decree is made without notice to the creditors. Putney v. Fletcher, 140 Mass. 590. One entitled to a share in the reversion of a trust fund to be ac- counted for, can appeal from a decree allowing the executor's final account. Pierce v. Gould, 143 Mass. 234. The next of kin of an adopting parent who but for the adoption would be his heirs at law, may appeal from a decree dismissing a peti- tion to revoke a decree of adoption on the ground of fraud practised on the court. Tucker v. Fisk, 154 Mass. 574. An appeal from a decree of the judge of probate allowing the account of an executor, should be made by the executor or adminis- trator of a residuary legatee where such a one is named in the will, and not by one entitled to a distributive share of the estate of such residu- ary legatee. Downing v. Porter, 9 Mass. 386. The probate court, in passing upon the allowance of the account of a trustee under a will, may determine whether the trustee has ac- counted to the parties entitled to the income of the trust fund for the whole of the income ; and the question of the correctness of this deter- mination is open on appeal. New England Trust Co. v. Eaton, 140 Mass. 532. No appeal lies from a decree of the probate court ordering that the 30 466 PKOCEEDINGS IN THE PROBATE COURTS. capacity ; an administrator de bonis non may appeal from the decree allowing the administration account of the original executor or administrator; ^ and an adminis- trator appointed in another state, on the estate of a person there deceased, may appeal from the decree of a probate court in this state appointing an adminis- trator here.2 One who lias purchased lands of the heirs or devisees may be so interested as to appeal from a decree respecting the estate of the testator or intestate;^ account of an administrator be not allowed, because he has not charged himself with the amount due on a certain mortgage, but not ascer- taining that amount, nor settling the account. Cook v. Horton, 129 Mass. 527. In cases where there is a right of appeal from the probate court, the matter in controversy should be judicially heard and considered in the court below, and a pro forma judgment merely should not be entered. Parker v. Parker, 118 Mass. 110; Heard v. Trull, 175 Mass. 239. The right of appeal to the superior court given to any boy con- victed and sentenced by a judge of the probate court, extends to con- victions and sentences by the judges of the probate court under the statutes of 1870, c. 359, and 1871, c. 365. Keuney's Case, 108 Mass. 492. There can be no appeal from the action of the judge of probate authorizing an action to be biought in his name on an administration bond, for no decree by him is necessary. Jones, Appellant, 8 Pick. 121. See Putney v. Fletcher, 140 Mass. 596, and cases cited. A widow of a testator has a right of appeal from the allowance of the will of her husband. Dexter v. Codman, 148 Mass. 421. But on an appeal by one claiming to be the widow of a testator, the appellant, if the claim is disputed, must show to a reasonable certainty that she is the widow; otherwise the appeal will be dismissed for want of jurisdiction. Pattee v. Stetson, 170 Mass. 93. 1 Wiggin V. Swett, 6 Met. 194. See Pierce v. Gould, 143 Mass. 234. 2 Smith V. Sherman, 4 Cush. 408 ; Martin v. Gage, 147 Mass. 204. 8 A purchaser of the reversionary interest in land of a deceased insolvent assigned to his widow as dower, may appeal from the decree of the probate court appointing an administrator de bonis non. Ban- croft V. Andrews, 6 Cush. 493. M died seised of laud, one half of which descended to his daughter APPEALS FROM THE PROBATE COURTS. 4G7 and so may a creditor of the heir or devisee under some circumstances.^ MANNER OF ENTERING THE APPEAL. Notice of the appeal must be filed in the registry of probate, and the appeal must be entered in the supreme judicial court within thirty days after the act appealed from. Upon the entry of the appeal, the appellant shall file a statement of his objections to the act appealed from. A copy of such notice and of so much of the record of the S; she married B, who survived her, and became tenant by the cur- tesy of said half of the land. B conveyed his interest to C. Held, that C could appeal from a decree allowing an account which showed a balance due to M's administrator, the land being liable to be sold to satisfy such balance. Bryant v. Allen, 6 N. H. 116. Where a guardian was licensed to sell real estate of his ward, and the next of kin of the ward appealed on the ground that he, and not the ward, was the owner of the land, it was held that the question of title could not be settled in a probate court, and that the appeal could not be entertained. Ayer v. Breed, 110 Mass. 548. ^ When a will, by which the testator's land was devised, was allowed by the probate court, it was held that a creditor of one of the heirs at law of the testator was not entitled, merely as such, to appeal from the decree. Otherwise, if the creditor has attached such land at the time of the decree, and appeal claimed in an action against the heir. Smith v. Bradstreet, 16 Pick. 264. The surety in a guardian's bond may appeal from a decree allowing the account of his principal. Livermore v. Bemis, 2 Allen, 394. And see Farrar v. Parker, 3 Allen, 556. If there is property of a testator not devised or bequeathed, his heir or next of kin may appeal from the allowance of the executor's account. Smith V. Haynes, 111 Mass. 346. A person aggrieved by the decree of the probate court on a petition by the executor of a will for instructions as to the construction of a will, may appeal. Swasey v. Jacques, 144 Mass. 138 ; Green v. Hogan 143 Mass. 462. An appeal lies from a decree of the probate court dismissii;g a peti- tion to revoke a decree of adoption, on the ground of fraud practised on the court. Tucker v. Fisk, 154 Mass. 574. 468 PROCEEDINGS IX THE PROBATE COURTS. probate court as relates to the appeal must be filed in the supreme judicial court upon the entry of the appeal, or as soon as may be thereafter. Notice of the entry of the appeal in the supreme judi- cial court must be given to all parties adversely interested who have entered appearances in the probate court, and it will be sufficient to serve the notice in the manner pro- vided by the rules of court for the service of notices ; but the court may order such further notice to be given as it may think fit. A person appealing from decrees settling different accounts of an executor, administrator, guardian, or trustee, may unite his appeals in one notice of appeal, and enter the same as one appeal in the supreme judicial court ; and if an appeal shall be taken by any other person from any of the decrees, or from a decree made at the same time or previously, and settling any other account of such executor, administrator, guardian, or trustee, such appeal may be entered in the supreme judicial court as part of the matter comprised in the appeal previously entered. The court may deal with such different ac- counts upon appeal as if they formed one continuous account, and may give effect to any alteration that it may make in any account by altering the balance of the last account without altering the balance of any previous account.^ The supreme judicial court or the superior court may at any time, in its discretion and upon terms, consolidate any separate appeals from the probate court pending therein, respectively, and may thereafter deal with such consolidated appeals together or otherwise, as justice may require.^ The party appealing is not required by statute to 1 R. L. c. 1G2, §§ 10-12. 2 iijid. § 27. APPEALS FROM THE PROBATE COURTS. 4C9 recognize or give any bond for the prosecution of his appeal. An appeal from the decision of commissioners or of the probate court upon a claim against estates of deceased persons represented insolvent, must be claimed and notice thereof given within thirty days after the return of the commissioners or, when the court receives and examines the claims, within thirty days after the allowance or re- jection of the claim ; and the appeal must be entered either in the supreme judicial court (where it can be entered if the claim exceeds four thousand dollars in Suffolk County or one thousand dollars in any other county), or in the superior court, on the fii'st Monday of the calendar month next succeeding the expiration of said thirty days. An appeal from the decision of a court of insolvency upon a claim against an estate in insolvency or upon the question of granting a discharge must be claimed and notice thereof given within ten days after the decision appealed ^ from ; and the appeal must be entered in the superior court for the county at the return day next after the expiration of fourteen days from the time of claim- ing it. Upon the entry of an appeal by a creditor, he must file a statement of his claim substantially as in a declaration in an action at law. Upon an appeal from a decision granting or refusing a discharge to an insolvent debtor, the superior court, upon written demand filed with the clerk by the debtor, the assignee, or a creditor, frames issues of fact to be tried by a jury ; but if no such demand is made, the appeal is heard and determined by the court.^ 1 R. L. c. 142, §§ 12, 13; c. 16-3, §§ 45, 104, 105. Xo appeal lies to the superior court from a decree of the court of insolvency annulling a discharge granted to an insolvent debtor. 470 PROCEEDINGS IN THE PROBATE COURTS. Froceedinijs when Appeal is omitted to be taken in Season. — The statute provides tliat if a person aggrieved omits to claim or prosecute his appeal, without default on his part, the supreme court of probate, or superior court in cases where it is provided by law that appeals shall be taken to the superior court,i if it appears that justice requires a revision of the case, may, on the petition of the party aggrieved and upon terms, allow an appeal to be entered and prosecuted. Such petition may be en- tered iu the clerk's office at any time, and the order of notice thereon may be made returnable at a rule day.^ A copy of the record, attested by the register of probate, should be filed with the petition. Such appeal cannot be allowed without due notice to the party adversely in- terested, nor unless the petition therefor is filed within one year after passing the decree or order complained of, except that if the petitioner was without the United States at the time of passing the decree or order, he may file his Pierce v. Keene, 173 Mass. 431. Nor from a decree making an allow- ance to an insolvent debtor. KafEenburg i'. Assner, 163 Mass. 295. One of two assignees in insolvency may appeal from an order grant- ing the discharge of an insolvent debtor, where the refusal of his co- assignee to join in the appeal appears of record. Paul v. Costello, 177 Mass. 580. ^ Capen v. Skinner, 139 Mass. 190. The entry should be made at the term at which leave is granted ; and if not made until the second term held in the county after the leave is granted, it will be too late. Robinson v. Durfee, 7 Allen, 242. If the probate court upon the petition of a wife for separate support enters a decree by consent of both parties that the husband pay to the wife a sum in gross as the whole sum to which she is entitled by way of separate support, and the husband pays such sum to the wife, who gives a receipt for it and never offers to return it, she thereby waives her right to appeal from the decree upon the ground that the sum awarded is insufficient. Doole v. Doole, 144 Mass. 278. 2 R. L. c. 162, § 13. APPEALS FROM THE PROBATE COURTS. 471 petition at any time within three months after his return, and within two years after the act complained of.^ The appeal should be entered at the term at which leave is granted.2 EFFECT OF THE APPEAL. After an appeal is claimed and notice given at the pro- bate office, all proceedings in pursuance of the act appealed from are stayed, except as otherwise expressly provided, until the determination thereof by the supreme court of 1 R. L. c. 162, § 14; Capen v. Skinner, 139 Mass. 190; Briggs v. Barker, 145 Mass. 287; Daley v. Francis, 153 Mass. 10. This provision does not authorize the entry of an appeal when the decree of the court below has been executed. After a widow has received the amount of an allowance, no appeal can be taken by her, nor allowed on her petition, from the decree making the allowance. Hale v. Hale, 1 Gray, 522. See Pettee v. Wilmarth, 5 Allen, 144. An heir at law who has notice of an appeal taken by another heir at law from the probate of a will and takes no steps towards prose- cuting that appeal, cannot, after the expiration of thirty days, though within a year, from the decree, and after it has been affirmed by the supreme court, by consent of the first appellee, obtain leave to make a new appeal, under this statute, or to have the decree of affirmance set aside. Such heir might have petitioned to become a party to the appeal, or to enter an appeal in his own behalf, and then have prose- cuted it to a final result, although the first appellant had withdrawn his appeal. Kent v. Dunham, 14 Gray, 279. See Livermore v. Bemis, 2 Allen, 394; Jacobs v. Jacobs, 110 Mass. 229. ^ Robinson v. Durfee, 7 Allen, 242. If an appellant who claims his appeal seasonably, gives due notice thereof, and duly files and serves upon the adverse party his reasons of appeal; omits through accident and mistake to enter his appeal in the appellate court, he is not entitled to maintain a petition to the appellate court for leave to enter the appeal, filed more than a year after the decree of the probate court was rendered. Briggs v. Barker, 145 Mass. 287. The late entry of a probate appeal with the appellee's written con- sent during the time in which an entry is authorized to be made upon petition and notice, confers the same jurisdiction as if it had been seasonably entered. Daley v. Francis, 153 Mass. 8. 472 PROCEEDINGS IN THE PROBATE COURTS. probate; but if, upon such appeal, such act is affirmed, it will thereafter be of full force and validity.^ But if the appellant in writing waives his appeal before the entry thereof, proceedings may be had in the probate court as if no appeal had been taken. There is a great difference between the effect of an appeal from the decision of a probate court and an appeal from the judgment of other courts. An appeal from the 1 R. L. c. 162, § 16; Gale v. Ninkersoii, 144 Mass. 416. But in case of an appeal from a decree appointing a special administrator, he nevertheless proceeds in the execution of his duties until it is otherwise ordered by the supreme court of probate. And an appeal from a decree making an allowance to the widow or children of the deceased, from the real or personal property in Ihe hands of a special administrator, will not prevent the payment of the allowance if the petitioner gives bond to the special administrator, with sureties ap- proved by the court, and conditioned to repay the same, if the decree is reversed. R. L. c. 137, §§ 9, 12. And a decree of the probate court or of a single justice of the supreme court of probate removing an executor, administrator, guar- dian, or trustee, and a decree of the probate court on petition of a wife who is living apart from her husband, for support, will have effect, notwithstanding an appeal, until otherwise ordered by the supreme court. R. L. c. 162, §§ 19, 20. After an appeal has been claimed from an order or decree referred to in the two preceding sections, and before such appeal has been finally determined, a justice of the supreme court of pi-obate may suspend or modify such order or decree during the pendency of such appeal. Ibid. § 22; Doole v, Doole, 144 Mass. 280; Gray «. Parke, 155 Mass. 437. And an appeal from a final or interlocutory order or decree in equity of a probate court which is made in the exercise of any jurisdiction in equity conferred upon it, shall not suspend or stay proceedings under such order or decree pending the appeal. But the probate court, or a justice of the supreme judicial court, in case of appeal, may stay all proceedings under such order or decree pending the appeal, and may make such orders as shall be necessary or proper to protect the rights of persons interested, pending the appeal ; or may vary or discharge upon motion any such order of the probate court for a stay of pro- ceedings, or for protection of any such rights. R. L. c. 162, § 17. APPEALS FROM THE PROBATE COURTS. 473 judgment of other courts removes the cause itself to the appellate court, vacates the judgment of the lower court, and the appellate court renders judgment therein and enforces the judgment by it own process. The order or decree of the probate court is not vacated by an appeal, but is suspended ; and, upon being affirmed by the supreme court, it takes effect and operates as a decree of the probate court, and any intermediate action which may have been had under the decree is valid. For example, when a will has been allowed by a decree of the probate court and the executor has given bond, and, upon appeal, the decree allowing the will is affirmed by the supreme court, the bond continues in force as if no appeal had been taken ; the authority of the executor being merely suspended during the pendency of the appeal ; and, upon filing in the probate court a certified copy of the affirm- ance by the supreme court of the decree of the probate court, the executor can proceed in the discharge of his duties without giving a new bond and without other for- malities.^ Of course such certified copy of a decree of a single justice of the supreme court should not be filed until after the time has expired for appeal to the full court, unless appeal is waived. THE PROCEEDINGS IN THE APPELLATE COURT. Appeals and petitions for appeal are entered on a docket in the appellate court with cases in equity, and have the ^ Dunham v. Dunham, 16 Gray, 577; Gale v. Nickerson, 144 Mass. 416. But in case of an appeal from the decree of the probate court allow- ing a will, the two years within which an executor shall be held to answer to the suit of a creditor of the deceased begin to run from the date when the decree of the probate court is affirmed. Smith v. Smith, 175 Mass. 483. 474 PROCEEDINGS IN THE PROBATE COURTS. same rights as to hearing and determination as such cases. The supreme judicial court may, upon appeal, reverse or affirm, in whole or in part, any decree or order of the probate court, and may enter such decree thereon as the probate court ought to have entered, may remand the case for further proceedings, or make any other order therein, as law and justice may require. The supreme judicial court, upon request of a party to a probate matter pending therein, may in its discretion frame issues of fact to be tried by a jury and direct them to be tried in the supreme judicial court or in the superior court in the county in which the matter is pending or upon the request of all parties, in any other county .^ The appeal gives no jurisdiction to the appellate court to proceed in the settlement of an estate, but only to reconsider the order appealed from ; and its judgment is carried into effect by the probate court, whose jurisdiction over the cause and the parties is not taken away by the appeal .2 A justice either of the supreme judicial court or of the superior court, or the full court, may, if necessary, hear 1 R. L. c. 162, §§ 15, 23, 25; Bridge v. Bridge, 146 Mass. 377; Francis v. Daley, 150 Mass. 383 ; Daley v. Francis, 153 Mass. 10. When a debt claimed by an executor or administrator as a debt due to him from the deceased is disputed on an appeal, either party or the court may have the claim submitted to a jury. R. L. c. 141, § 7. In probate cases the framing of issues in the supreme court of pro- bate rests in the discretion of the presiding justice, and his decision discharging an issue after a trial thereon before him will not be dis- turbed, in the absence of anything to show that he was wrong. Fay V. Vanderford, 154 Mass. 498; Fiske v. Pratt, 157 Mass. 83; Doherty V. O'Callaghan, ibid. 90; McKay v. Kean, 167 Mass. 524; Parker i'. Simpson, 180 Mass. 234. ^ Dunham v. Dunham, 16 Gray, 578; Gale v. Nickerson, 144 Mass. 416. APPEALS FROM THE PROBATE COURTS. 475 and determine cases pending in a county other than that in which such justice or court is sitting.^ An appeal lies from the decision of a single judge of the supreme court of probate to the full court in matter of fact as well as of law.^ COMPLAINT FOR AFFIRMATION OP DECREE. If the appellant fails to enter and prosecute his appeal, the supreme court of probate may, upon the complaint of any person interested, affirm the former decree or order, or make such other order as law and justice require. Such complaint must be in writing, and should set forth the fact that the appeal was taken, and that the appellant has failed to enter and prosecute it, and pray for an affirma- tion of the decree and for an allowance of costs. With the complaint must also be filed a copy of the decree ap- pealed from, and of the papers in the case attested by the register of probate. If the appellant fails to enter his appeal within the time allowed by law, the probate court from which the appeal was taken may, upon petition of any person interested, and upon such notice to the appellant as the court shall order, dismiss the appeal and affirm the decree or order appealed from ; and further proceedings may then be had in the probate court as if no appeal had been taken.^ 1 R. L. c. 159, § 35; Ripley v. Collins, 162 Mass. 450. 2 Wright V. Wright, 13 Allen, 207; Slack v. Slack, 123 Mass. 443. 8 R. L. c. 162, § 24; Daley v. Francis, 153 Mass. 10. If a master on an appeal from a decree allowing an executor's account declines to revise the compensation allowed to the executor, his report will be recommitted if the appellant so desires. Bridge i'. Bridge, 146 Mass. 373. On an appeal by one only of the persons interested in real estate from a decree of the probate court granting a license to sell it, the question of title, except so far as any doubt regarding it may affect 476 PROCEEDINGS IN THE PROBATE COURTS. APPEALS FROM ALLOWANCE OF CLAIMS AGAINST INSOLVENT ESTATES OF DECEASED PERSONS. Such appeal shall be claimed and notice thereof given at the registry of probate within thirty days after the the expediency of the sale, is not properly before the court, and if there is no waiver of the objection, cannot be determined. Walker V. Fuller, 147 Mass. 489. The date of a decree of the probate court, as recited therein, can- not be controlled by other evidence upon an appeal from the decree, but the party aggrieved should apply to that court to correct the error, if any. Newell v. West, 149 Mass. 520. An appeal in a probate matter from the final decree of a single jus- tice of the supreme judicial court is thereupon pending before the full court, which upon a waiver of the appeal will affirm such decree. Gray v. Gray, 150 Mass. 56. In appeals to the full court from a decree of a single justice of the supreme judicial court in a probate appeal, his decision will not be reversed as to matters of fact, unless it clearly appears to be eri'oneous. Ilodgdon V. Cummings, 151 Mass. 293. Items of date later than a probate account are not to be brought before the supreme court of probate on an appeal in the first instance from a decree disallowing certain items in a guardian's account. May V. Skinner, 152 Mass. 328. On an appeal from a decree that an interest in real estate was per- sonal property, and charging the executor with it, when the reason of appeal filed was that the executor was not charged to the full value of such interest, the executor was allowed to show that he was not chargeable with such interest to all. Harris v. Harris, 153 Mass. 439. On the trial of a probate appeal, the appellant is restricted to the matters stated in the reasons of appeal filed in the case. Cowdeu v. Jacobson, 165 Mass. 241. A decree of distribution of the probate court can, on appeal, be revised after the executor has distributed the estate as ordered by the probate court, so as to enable one entitled to share in the estate, but who was omitted by mistake in the order of distribution and who is not chargeable with laches, to recover his share from those to whom the estate was distributed. Harris r. Starkey, 176 Mass. 445. As to rights of the legal representatives of an appellant dying while appeal is pending, see Bonnemort v. Gill, 167 Mass. 338. appp:als from the probate courts. 477 return of the commissioners, or when the court itself receives and examines the claims, within thirty days after the allowance or rejection of the claim. If the appeal is by an executor or administrator, he shall give notice thereof to the creditor within said thirty days. The ap- peal shall be entered on the first Monday of the calendar month next succeeding the expiration of said thirty days. Upon the entry of the appeal the supposed creditor shall file a statement in writing of his claim, setting forth briefly and distinctly all the material facts which would be necessary in a declaration for the same cause of action ; and like proceedings shall be had in the pleadings, trial, and determination of the cause, as in an action at law ; but no execution shall be awarded against the executor or administrator for a debt found due to the claimant. The appellate court shall have the same power as the probate court or the commissioners to examine the claimant, and the final judgment shall be conclusive, and the list of debts allowed shall be altered, if necessary, to conform thereto. After the claiming of such appeal, the parties may waive a trial at law and submit the claim to the deter- mination of arbitrators to be agreed on by the parties and appointed by the probate court, and thereupon the appeal shall not be entered. The award of such arbitrators, if accepted by the court, shall be as conclusive as a judgment in a court of common law. The party prevailing upon such appeal shall be entitled to costs, which, if recovered against the executor or ad- ministrator, may be allowed to him in his administration account. If a person whose claim has been disallowed by the com- missioners or by the probate court, omits for other cause 478 PROCEEDINGS IN THE PROBATE COURTS. than his own neglect, to claim or prosecute his appeal as before provided, the supreme judicial court in any county, may, upon his petition therefor filed within two years after the return of the commissioners, and within four years after the date' of the administration bond, allow him upon terms to enter and prosecute his appeal. The allowance of such appeal and the judgment thereon shall not disturb any distribution ordered before notice of the petition, or of the intention to present the same, has been given in writing at the registry of probate or to the executor or administrator ; but any debt thus proved and allowed shall be paid only out of such assets as remain in or come to the hands of the executor or admin- istrator after payment of the sums payable on such prior decree of distribution.^ 1 R. L. c. U2, §§ 12-17. CHAPTER XXII. ADOPTION OF CHILDREN AND CHANGE OF NAME. ADOPTION. [Revised Laws, c. 154.] " Sect. 1. A person of full age may petition the probate court in the county in which he resides for leave to adopt as his child another person younger than himself, unless such other person is his or her wife, husband, brother, sister, uncle, or aunt, either of the whole or half blood. If the petitioner has a husband or wife living, who is com- petent to join in the petition, such husband or wife shall join therein, and upon adoption the child shall in law be the child of both. If a person who is not an inliabitant of this commonwealth desires to adopt a child who resides here, the petition may be made to the probate court in the county in which the child resides." ^ " Sect. 2. A decree for such adoption shall not be made, except as hereinafter provided, without the written 1 At the trial of petitions to set aside decrees of adoption of two nieces and a nephew, the adopting parent being seventy years old and the adopted children being respectively forty-three, thirty-nine, and twenty-five years old, requests for rulings that it is not competent under the adoption law " for a person in the senile age of life to adopt persons in the prime and vigor of life," or "for an adoption to be made for the purpose of operating simply as and to take the place of a last will and testament;" were rightly refused, although the court found that an important purpose of the adopting parent was to make the adopted persons his heirs at law. Collamore v. Learned, 171 Mass. 99. 480 PROCEEDINGS IN THE PROBATE COURTS. consent of the child, if it is above the age of fourteen years ; of her husband, if she is a married woman ; of the lawful parents, or surviving parent ; of the parent having the lawful custody of the child, if the parents are divorced or are living separately ; of the guardian of the child, if any ; of the mother only of the child, if illegitimate ; or of the person substituted for any of the above-named by the provisions of this chapter. A person whose consent is hereby required shall not thereby be debarred from being the adopting parent. If the child has been previously adopted, the consent of the previous adopting parent shall also be required." " Sect. 3. The consent of the persons named in the preceding section, other than the child or her husband, if any, shall not be required if the person to be adopted is of full age, nor shall the consent of any such person other than the child be required if such person is adjudged by the court hearing the petition to be hopelessly insane, or is imprisoned in the state prison or in a house of correc- tion in this commonwealth under sentence for a term of which more than three years remain unexpired at the date of the petition ; or if he has wilfully deserted and neglected to provide proper care and maintenance for such child for two years last preceding the date of the petition; or if he has suffered such child to be supported for more than two years continuously, prior to the petition, by an incorporated charitable institution or as a pauper by a city or town or by the commonwealth ; or if he has been sentenced to imprisonment for drunkenness upon a third conviction within one year and neglects to provide proper care and maintenance for such child ; or if such person has been convicted of being a common night-walker, or a lewd, wanton, and lascivious person, and neglects to ADOPTION OF CHILDREN AND CHANGE OF NAME. 481 provide proper care and maintenance for such child. A giving up in writing of a child, for the purpose of adoption, to an incorporated charitable institution, shall operate as a consent to any adoption subsequently approved by such institution. Notice of the petition shall be given to the state board of charity, if the child is supported as a pauper by a city or town or by the commonwealth." "Sect. 4. If the written consent required by the pro- visions of the two preceding sections is not submitted to the court with the petition, the court shall order notice by personal service on the parties of a copy of the petition and order thereon, or, if they are not found within this commonwealth, by publication of the petition and order once in each of three successive weeks in such newspaper as the court orders, the last publication to be seven days at least before the time appointed for the hearing, and the court may require additional notice and consent." ^ " Sect, 5. If, after such notice, a person whose consent is required does not appear and object to the adoption, the court may act upon the petition without his consent, sub- 1 Notice of a petition for the adoption of a child is necessary in all cases ■where the written consent required by section 2 is not submitted to the court with the petition, even if a case is presented by the peti- tion, which, if proved to exist, would authorize the judge of probate to decree the adoption without consent. Humphrey, Appellant, 137 Mass. 84. The probate court may decree the adoption of a child whose parents are unknown and are not brought within any of the exceptions of § 3, and who has no guardian, and who has not been given up in writing, for the purpose of adoption, to a charitable institution incorporated by law; and the probate court, after the notice required by § 4 has been given, may appoint a guardian ad litem for such child, with power to give or withhold consent to such adoption. Edds, Appellant, 137 Mass. 346. Notice to the father of an illegitimate minor of an application for its adoption is not required. Gibson, Appellant, 154 Mass. 378. 31 482 PROCEEDINGS IN THE PROBATE COURTS. ject to his right of appeal, or it may appoint a guardian ad litem, with power to give or withhold consent." ^ " Sect. 6. If the court is satisfied of the identity and relations of the persons, and that the petitioner is of suffi- cient ability to bring up the child and provide suitable sup- port and education for it, and that the child should be adopted, it shall make a decree, by which, except as re- gards succession to property, all rights, duties, and other legal consequences of the natural relation of child and parent shall thereafter exist between the child and the petitioner and his kindred, and shall, except as regards marriage, incest, or cohabitation, terminate between the person so adopted and his natural parents and kindred or any previous adopting parent ; but such decree shall not place the adopting parent or adopted child in any relation to any person, except each other, different from that before existing as regards marriage, rape, incest, or other sexual crime committed by either or both. The court may also decree such change of name as the petitioner may request. If the person so adopted is of adult age, he shall not be freed by such decree from tbe obligations imposed by the provisions of section ten of chapter eighty-one." ^ " Sect. 7. A person who is adopted in accordance with the provisions of this chapter shall take the same share of the property which the adopting parent could dispose of by ^ If the parents of the child to be adopted are dead, and the probate court, on the petition of the guardian of the child for leave to adopt it, which is assented to by the petitioner as guardian, makes a decree in accordance with the prayer of the petition, the fact that no guardian ad litem was appointed, even if such appointment should have been made, does not make the decree void, but voidable only. Sewall v. Roberts, 115 Mass. 262. •^ An adopted child acquires the settlement of its father by adop- tion. Washburn v. White, 140 Mass. 568. ADOPTION OF CHILDREN AND CHANGE OF NAME. 483 will as he would have taken if born to such parent in law- ful wedlock, and he shall stand in regard to the legal descendants, but to no other of the kindred of such adopt- ing parent, in the same position as if so born to him. If the person adopted dies intestate, his property, acquired by himself or by gift or inheritance from his adopting parent, or from the kindred of such parent, shall be distrib- uted according to the provisions of chapters one hundred and thirty-three and one hundred and forty among the persons who would have been his kindred if he had been born to his adopting parent in lawful wedlock ; and property re- ceived by gift or inlieritance from his natural parents or kindred shall be distributed in the same manner as if no act of adoption had taken place. The apportionment and distribution shall be ascertained by the court. A person shall not by adoption lose his right to inherit from his natural parents or kindred." ^ " Sect. 8. The word child, or its equivalent, in a grant, trust-settlement, entail, devise, or bequest, shall include a child adopted by the settlor, grantor, or testator, unless the contrary plainly appears by the terms of the instru- ^ An adopted cliild who is at the same time the grandchild of the adopting father cannot inherit the property of his grandfather in a twofold capacity as his son and as his grandson. Delano v. Bruerton, 148 Mass. 619. A child by adoption is "issue" within R. L. c. 140, § 3. The general intent of the statute is to place the adopted child in relation to the adopting parents, so far as their property is concerned, in the same position that he would be if their natural child. Buckley v. Frasier, 153 Mass. 525. A child who has been adopted by and has taken the name of the testator is not entitled to the same share of his estate as if he had died intestate, when by the will made before the adoption special provision is made for her by the name she then bore. Bowdlear v. Bowdlear, 112 Mass. 184. 484 PROCEEDINGS IN THE PROBATE COURTS. ment ; but if the settlor, grantor, or testator is not him- self the adopting parent, the child by adoption shall not have, under such instrument, the rights of a child born in lawful wedlock to the adopting parent, unless it plainly appears to have been the intention of the settlor, grantor, or testator to include an adopted child." ^ " Sect. 9. An inhabitant of another state, adopted as a child in accordance with the laws thereof, shall upon proof of such fact be entitled in this commonwealth to the same rights of succession to property as he would have had in the state in which he was adopted, except so far as such rights are in conflict with the provision of this chapter," ^ " Sect. 10. If the child has been previously adopted, all the legal consequences of the former decree shall, upon a 'subsequent adoption, determine, except so far as any interest in property may have vested in the adopted child, and a decree to that effect shall be entered upon the rec- ords of the court." " Sect. 11. The supreme judicial court may allow a parent who, upon a petition for adoption, had no personal notice of the proceedings before the decree, to appeal therefrom at any time within one year after actual notice thereof, if he first makes oath that he was not, at the time of filing such petition, undergoing imprisonment as speci- 1 Wyeth V. Stone, 144 Mass. 441. The next of kin of an adopting parent who but for his adoption would be the heirs at law, may petition the probate court to annul the decree of adoption on tlie ground of fraud. Tucker v. Fisk, 154 Mass. 574; Fiskeu. Pratt, 157 Mass. 83. 2 Even though the wife of the adopting person has given no formal consent to the adoption, as is required by the statutes of this common- wealth. Ross V. Ross, 129 Mass. 243. See Foster v. Waterman, 124 Mass. 592. ADOPTION OF CHILDREN AND CHANGE OF NAME. 485 fied in section three or that, if so imprisoned, he has since been pardoned on the ground of innocence or has had his sentence reversed." [" Whoever receives an infant under two years of age for adoption or for giving it a home, or for procuring a home or adoption for it, shall, before receiving the same, ascertain its name, age, and birthplace, and the name and residence of its parent or parents, and shall keep a record of the same and of the date of such reception. He shall forthwith upon the reception of said infant give notice in writing thereof to the state board of charity, and upon request of said board shall give information and render the reports concerning such infant required by it ; and within two days after its discharge shall give notice in writing to said board of the discharge and disposal of such infant. Said state board may investigate the case, and, at any time previous to a decree of adoption, take any such infant into its custody, if in the judgment of said board the public interest and the protection of the infant so require."] ^ CHANGE OF NAMES. " Sect. 12. A petition for the change of name of a person may be heard by the probate court in the county in which the petitioner resides. No change of the name of a person, except upon the adoption of a child under the pro- visions of this chapter or upon the marriage or divorce of a woman, shall be lawful unless made by said court for a suflficient reason consistent with the public interests and satisfactory to it." " Sect. 13. The court shall, before decreeing a change of name, require public notice of the petition to be given, 1 R. L. c. 83, § 11. 486 PROCEEDINGS IN THE PROBATE COURTS. and any person may be heard thereon. It shall also require public notice to be given of the change decreed, and on return of proof thereof may grant a certificate, under the seal of the court, of the name which the per- son is to bear, and which shall thereafter be his legal name." " Sect. 14. Each register of probate shall annually in the month of December make a return to the secretary of the commonwealth of all changes of names made in the court of which he is register." The secretary of the commonwealth shall at the close of each session of the general court collate and cause to be printed in one volume a list of the changes of names returned during the preceding year by the probate courts.^ The secretary of tlie commonwealth was required by acts of 1884, c. 249, to collate and cause to be printed in one volume all the special acts of this commonwealth heretofore passed authorizing changes of names of per- sons, and all the returns of changes of names hereto- fore published by virtue of the fourteenth section of the one hundred and tenth chapter of the General Statutes and the first section of the fourth chapter of the Public Statutes. A child shall not be indentured, adopted, or placed in charge of any person from a state institution until notice of the application therefor has been given to the state board of charity, and until its report in writing, made after investigation into the propriety thereof, has been filed with such institution. All applications for the i^elease or discharge of any children so indentured or placed in charge shall in like manner be given to the state board 1 R. L. c. 9, § 1. ADOPTION OF CHILDREN AND CHANGE OF NAME. 48'< for its report. The state board of charity shall seek out suitable persons who are willing to adopt, take charge of, educate, and maintain children arrested for offences, com- mitted to a state institution, abandoned or neglected, and give notice thereof to the institutions, boards, officers or persons having authority so to dispose of said children.^ 1 K. L. c. 86, §§ 52, 53. CHAPTER XXIII. MISCELLANEOUS PROVISIONS. SESSIONS OF THE PROBATE COURTS. Probate courts shall be held in each year at the times and within the cities and towns hereinafter men- tioned, in such places therein as the several judges shall from time to time appoint. Sufificient notice of such appointments shall be given by the judges, as often as changes take place, by advertisement in a newspaper or by posting the notice in public places : For the county of Barnstable, at Barnstable, on the second Tuesday of January, February, March, May, June, July, August, September, November, and Decem- ber, and on the first Tuesday of April and October. For the county of Berksliire, at Pittsfield, on the first Tuesday of Jaimary, February, March, April, May, June, September, October, and December, on the third Tuesday of July, and on the Wednesday next after the first Monday of November ; at Lee, on the Wednesday next after the first Tuesday of January, April, and October, and on the Wednesday next after the third Tuesday of July ; at Adams, on the Thursday next after the first Tuesday of January and October, on the Wednesday next after the first Tuesday of March, and on the Thursday next after the third Tuesday of July ; and at Great Barrington, on the Wednesday next after the first Tuesday of February, May, September, and December. MISCELLANEOUS PROVISIONS. 489 For the county of Bristol, at Fall River, on the first Fri- day of January, April, July, and October, on the third Friday of February, May, and November, and on the second Fri- day of September ; at New Bedford on the first Friday of February, May, August, and November, and on the third Friday of March, June, and September ; and at Taunton, on the first Friday of March, June, September, and December, and on the third Friday of January, April, October, and December. For the county of Dukes County, at Edgartown, on the third Monday of January and July, and on the first Mon- day of March and December ; at Vineyard Haven, on the third Monday of April, and on the first Monday of Septem- ber ; and at West Tisbury, on the first Monday of June, and on the third Monday of October. For the county of Essex, at Salem, on the first Monday of each month and on the third Monday of each month except August ; at Lawrence, on the second Monday of January, March, May, June, July, September, and Novem- ber ; at Haverhill, on the second Monday of April and October ; at Newburyport, on the fourth Monday of Janu- ary, March, May, June, July, September, and November ; and at Gloucester, on the fourth Monday of April and October. For the county of Franklin, at Greenfield, on the first Tuesday of each month except November, and on the third Tuesday of February, March, and December; at Orange, on the third Tuesday of January, April, July, and October ; at Shelburne Falls, on the third Tuesday of May and November ; at Northfield, on the third Tuesday of September ; and at Conway, on the third Tuesday of June. For the county of Hampden, at Springfield, on the first Wednesday of each month except August; at Holyoke, 490 PROCEEDINGS IN THE PROBATE COURTS. on the third Wednesday of January, March, June, and October; at Pahner, on the second Wednesday of Feb- ruary, May, and September, and the fourth Wednesday of November ; and at Westfield, on the third Wednesday of February, May, September, and December. For the county of Hampsliire, at Northampton, on the first Tuesday of each month ; at Amherst, on the second Tuesday of January, Marcli, June, August, and Novem- ber ; at Belchertown, on the second Tuesday of May and October ; at Williamsburg, on the third Tuesday of May and October ; and at Ware, on the second Tuesday of February, September, and December, and on the third Tuesday of June. For the county of Middlesex, at Cambridge, on the first, second, and fourth Tuesday of each month, except August, and at Lowell, on the third Tuesday of each month, except August. For the county of Nantucket, at Nantucket, on the Thursday next after the second Tuesday of each month. For the county of Norfolk, at Dedham, on the first and third Wednesday, at Quincy, on the second Wednesday, and at Brookline, on the fourth Wednesday of each month except August. The county commissioners of the county of Norfolk may provide, furnish, and maintain suitable rooms and accommodations in the city of Boston for the use of the probate court for the county of Norfolk, for the hearing and trial of such contested cases in said court as the parties thereto or their counsel may desire to have heard and tried in the city of Boston. For the county of Plymouth, at Plymouth, on the second Monday of each month except August, and at Brockton, on the fourth Monday of each month except July. MISCELLANEOUS PROVISIONS. 491 For the county of Suffolk, at Boston, on each Thursday except the first, second, fourth, and fifth Thursdays of August. For the county of Worcester, at Worcester, on the first, second, third, and fifth Tuesday of each montli except August; at Fitchburg, on the fourth Tuesday of each month except August.^ MISCELLANEOUS PROVISIONS CONCERNING JUDGES OF PROBATE. In each county, except Suffolk and Nantucket, the judge and register of the probate court, and the clerk of the courts, shall be a board of examiners ; and if two of said offices are held by the said person in any county, the sheriff shall be a member of the board.^ Judges of probate may, in case of a disagreement, deter- mine the amount to be paid to a town of less than ten thousand inhabitants by the trustees or managers of an institution containing more than six inmates for the tui- tion in the public schools of a child between the ages of five and fifteen years, not theretofore resident in the town, and who is an inmate of such institution.^ Juvenile Offenders. Boys under fifteen years of age may be commi4]ted to the Lyman school by police, district, and municipal courts and trial justices, and, except in the county of Suffolk, by judges of probate. Girls under seventeen years of age may be committed to the industrial school by said courts, judges, and justices, except as aforesaid, and, except in the county of Suffolk, by commissioners, appointed as provided in chapter 86, section 13, of the Revised Laws. 1 R. L. c. 162, § 60. 2 R. L. c. 11, § 254. « R. L. c. 44, § 4. 492 PROCEEDINGS IN THE PROBATE COURTS. Judges of probate, except in the county of Suffolk, may receive complaints, issue warrants, and hear cases against juvenile offenders at such times or places, in or out of their respective counties, as convenience may require. Tlie judge of probate may act in such case for the judge of any other county, whether absent or not, if so requested.^ Judges of probate also have jurisdiction of complaints by parents, guardians, selectmen, or overseers of the poor for misconduct or neglect of the master, and by the master for gross misbehavior of one bound as an apprentice or servant.^ Registered Land. The provisions of chapter 128 of the Revised Laws do not in any way affect or impair the jurisdiction of the probate court to license an executor or administrator or guardian to sell or mortgage registered land for any pur- pose for which a license may be granted in the case of unregistered land. The purchaser or mortgagee who takes a deed which is executed in pursuance of such license shall be entitled to a new certificate of title, or memorandum of registration.^ Commitment of Insane Persons and Inebriates. A judge of the probate court may, within his county, commit to an insane hospital any insane person then resid- ing or being in said county, v/ho, in his opinion, is a proper subject for its treatment or custody.* Such judge may also commit to the Massachusetts hospital for dipsomaniacs and inebriates any male, or to a state insane hospital any male 1 R. L. c. 86, §§ 10, 12. 2 R. L. c. 155, § 11. 8 R. L. c. 128, § 92. •• R. L. c. 87, § 33. MISCELLANEOUS PEOVISIONS. 493 or female, who is addicted or subject to dipsomania or in- ebriety either in public or private.^ Appointment of Probate Court Officers. The judges of probate for the county of Suffolk shall appoint an officer to attend the sessions of the probate court and court of insolvency, and may at any time, for a cause which they consider sufficient, remove him, and may fill any vacancy caused by removal or otherwise. Such officer shall give bond in the sum of one thousand dollars for the faithful performance of his duties, payable to the treasurer of the county of Suffolk, with sufficient sureties, who shall be approved by a judge of said court. Such officer may serve the orders, precepts, and processes issued by said courts or by a judge thereof. In addition to the officers whom the sheriff of the county of Middlesex is authorized by section 73 of chapter 165 to appoint, he may appoint, subject to the approval of the judges of probate and insolvency for said county, an officer who shall serve as a permanent court officer for attendance at the session of the probate court. Such officer shall serve the orders, precepts, and processes issued by said probate court or by either judge thereof. The judges of probate and insolvency for the county of Middlesex may appoint a messenger for the courts of pro- bate and insolvency of said county, may at any time remove him for a cause which is by them considered sufficient, and may fill a vacancy caused by a removal or otherwise. Said messenger shall wait upon said courts and perform such duties as the judges may direct.^ 1 R. L. c. 87, § 59. 2 R. L. c. 164, §§ 33-35. 494 PROCEEDINGS IN THE PKOBATE GOUKTS. {Revised I^ws, c. 172.] Actions hy and against Executors and Administrators. " Sect. 1. An action which would have survived if com- menced by or against the original party in his lifetime may be commenced and prosecuted by or against his ex- ecutor or administrator." ^ ^ In addition to the actions which survive by the common law, the following also survive : actions of replevin, tort for assault, battery, imprisonment, or other damage to the person, for goods taken and car- ried away or converted, or for damage to real or personal property, and actions against sheriffs for the misconduct or negligence of them- selves or their deputies. R. L. c. 171, § 1. If a person or corpora- tion by his or its negligence, or by the gross negligence of his or its agents or servants while engaged in his or its business, causes the death of a person who is iu the exercise of due care, and not in his or its em- ployment or service, he or it shall be liable in damages in the sum of not less than five hundred, nor more than five thousand dollars to be assessed with reference to the degree of his or its culpability or of that of his or its agents or servants, to be recovered in an action of tort, commenced within one year after the injury which caused the death, by the executor or administrator of the deceased, one-half thereof for the use of the widow, and one-half to the use of the children of the de- ceased ; or, if there are no children, the whole to the use of the widow ; or, if there is no widow, the whole to the use of the next of kin. R. L. c. 171, § 2. For the provisions of law as to recovery of damages for injury re- sulting in death of an employee, with or without conscious suffering, see R. L. c. 106, §§ 71-78; Cote v. Lawrence Manuf. Co., 178 Mass. 295. These sections of the Revised Laws do not apply to injuries caused to domestic servants or farm laborers by fellow employees. R. L. c. 106, § 79. Actions which survive. For conversion of title deeds during lifetime. Towle v. Lovet, 6 Mass. 394. Against sheriff for default of deputy in not returning execution. Paine v. Ulmer, 7 Mass. 317. For assault and battery. Brown v. Kendall, 6 Cush. 292. For taking land by eminent domain. Moore v. Boston, 8 Cush. 274. Against city for highway defect. De- mond V. Boston, 7 Gray, 544. For injuries causing insensibility and, ACTIONS BY AND AGAINST EXECUTORS, ETC. 495 "Sect. 2. If an action of tort is commenced or prose- cuted against the executor or administrator of the person shortly afterwards, death, but (except where action is brought by widow or next of kin, under provisions of R. L. c. 106, § 73, on ac- count of injury resulting in instantaneous death of an employee or in his death without conscious suffering, or by the legal representatives under provisions of R. L. c. 106, § 72, on account of injury resulting in death not instantaneous of an employee, or in his death preceded by conscious suffering), only nominal damages can be recovered in tlic absence of conscious suffering. Bancroft v. Boston & Worcester Rail- road Co., 11 Allen, 34; Mulchahey v. Washburn Car Wheel Co., 145 Mass. 281. Against an apothecary for negligently selling a deadly poison. Norton v. Sewall, 106 Mass. 143. For mill-owner's obstruc- tion of flowage by dam. Brown v. Dean, 123 Mass. 254. Against two severally liable, and also against two jointly liable, if one dies. Colt V. Learned, 133 Mass. 409; Tucker v. Utley, 168 Mass. 415. For deceit in letting infected dwelling-house. Cutter v. Hamlen, 147 Mass. 471. For death of one domiciled in Massachusetts and killed in a railroad accident in Connecticut, and an administrator appointed in Massachusetts may sue there to recover damages under a Connecticut statute. Higgins v. Central New England & Western Railroad Co., 155 Mass. 176: see also Mulliall v. YaUon, 176 Mass. 266,268. By corporation for fraudulent misconduct of its deceased president. Warren v. Para Rubber Shoe Co., 166 Mass. 97. Against officer of a corporation for misappropriation of corporate property. Wineburgh V. United States Steam & Street Railway Advertising Co., 173 Mass. 60. For injury to person and property from assault by dogs. Wil- kins V. Wainwright, 173 Mass. 212. For redemption of land from tax sale. Clark '.'. Lancy, 178 Mass. 400. For assault on account of ejecting in an improper manner an obnoxious passenger from a street railway car. Hudson v. Lynn & Boston Railroad, 178 Mass. 64. In equity to rescind and set aside a contract procured by the fraud and undue influence of defendant by reason of which defendant's mother conveyed to him substantially all of her property. Parker v. Simpson, 180 Mass. 334, 343. Actions which do not survive. Against assignee of a bankrupt. Hall v. Cushing, 8 Mass. 521. Against deputy for negligent levy. Cravath v. Plympton, 13 Mass. 453. For stockholder's liability for corporate debts. Child v. Coffin, 17 Mass. 64; Ripley v. Sampson, 10 Pick. 371; Dane v. Dane Manuf. Co., 14 Gray, 488; Bacon v. Pomeroy, 104 Mass. 577. (For history 496 PROCEEDINGS IN THE PROBATE COURTS. originally liable, the plaintiff shall be entitled to recover only for the value of the goods taken, or for the damage actually sustained, without vindictive or exemplary dam- ages, or damages for any alleged outrage to the feelings of the injured party." " Sect. 3. If the executor or administrator of a trustee, carrier, depositary, or other person who claimed only a special property in goods which he held for the use and benefit of another recovers such goods, or damages for the of the law relative to liability of stockholders in Massachusetts corpor- ations, see Child v. Boston & Fairhaveu Iron Works, 137 Mass. 516, 517.) For breach of promise when no special damage is shown, or where averment of special damage is insufficient. Stebbins v. Palmer, 1 Pick. 71 ; Smith r. Sherman, 4 Cush. 408; Chase v. Fitz, 132 Mass. 359. Of debt for cutting and carrying off trees. Little v. Conant, 2 Pick. 527. For diverting water-course. Holmes v. Moore, 5 Pick. 257- For fraudulent recommendation of trader. Read v. Hatch, 19 Pick. 47. For libel, even though causing loss of a valuable office. Walters v. Nettleton, 5 Cush. 544 ; Cummings v. Bird. 115 Mass. 346. For malicious prosecution. Nettleton v. Dinehart, 5 Cush. 543; Couly V. Conly, 121 Mass. 550. For deceit in sale of poisoned grain. Cutting V. Tower, 14 Gray, 183. For fraud in getting verdict set aside. Leggate v. Moulton, 115 Mass. 552. For fraudulent representations, inducing dis- posal of land. Leggate v. INloulton, supra. For injuries causing instant death, (except when action is brought under Employers' Liability Act, now R. L. c. 106, §§ 71-79). Moran v. Hollings, 125 Mass. 93. Against railroad company for injury to brakeman falling from train, if evi- dence fails to show how he fell, what he was doing, whether death was instantaneous, or whether there was conscious suffering. Corcoran v. Boston & Albany Railroad Co., 133 Mass. 507; Murphy v. Same, 167 Mass. 64. In equity for false representations of a trustee, unless his personal representatives received an estate benefited by his fraud, or unless he held a fiduciary relation to the person defrauded. Houghton V. Butler, 166 Mass. 547. For enforcing the agreement of a deceased person to manage the business of manufacturing a patented article and to advance all funds requisite, but to look to the business for repayment. Marvel v. Phillips, 162 Mass. 399. An administrator cannot, on death of his intestate, be made a party to a petition for partition. Richards v. Richards, 136 Mass. 126. ACTIONS AGAINST EXECUTORS, ETC. 497 taking or detention thereof, in an action of replevin or tort, the goods or money recovered shall not be assets in his hands, but shall, after deducting the costs and expenses of the action, be paid over and delivered to the person for whose use and benefit they were so held or claimed by the deceased person." " Sect. 4. If judgment for a return in an action of replevin is rendered against an executor or administrator, the property returned by him shall not be assets in his hands ; and if it has been included in the inventory, the executor or administrator shall be allowed therefor in his account if he shows that it has been returned in pur- suance of such judgment." " Sect. 5. Writs of attachments and executions against executors or administrators for debts due from the de- ceased testator or intestate shall run only against the goods and estate of the deceased in their hands, and not against their bodies, goods, or estate. " ^ " Sect. 6. If a judgment for costs is rendered against an executor or administrator in an action commenced by or against him or in an action commenced by or against the testator or intestate, wherein the executor or administrator has appeared and taken upon himself the prosecution or defence, he shall be personally liable for the costs, and the execution shall be awarded against his body, goods, and estate, as if it were for his own debt. Costs paid by him sball be allowed in his account unless the probate court determines that the action was prosecuted or de- fended without reasonable cause." ^ 1 Cooke V. Gibbs, 3 Mass. 193; Dana v. Wentworth, 111 Mass. 291; Harmon v. Osgood, 151 Mass. 501. 2 Look V. Luce, 136 Mass. 249, 140 Mass. 461; Perkins v. Fellows, 136 Mass. 294. 32 498 PROCEEDINGS IN THE PROBATE COURTS. " Sect. 7. If the judgment is for debt or damages and costs, an execution for tlie debt or damages shall be awarded against the goods and estate of the deceased in the hands of the executor or administrator, and another execution for the costs against the goods, estate, and body of the executor or administrator, as if it were for his own debt." 1 " Sect. 8. Upon the return unsatisfied of an execution against an executor or administrator for a debt due from the estate of the deceased, the court may, upon a sugges- tion by the creditor of waste, issue a writ of scire facias against the executor or administrator. If the defendant does not appear and show sufficient cause to the contrary, he shall be found guilty of waste and shall be personally liable for the amount thereof, if it can be ascertained, otherwise for the amount due on the original judgment, with interest from the time when it was rendered, and judgment and execution shall be awarded as for his own debt." 2 " Sect. 9. If an executor or administrator dies or is removed from office during the pendency of an action to which he is a party, the suit may be prosecuted by or against the administrator de boriis non in like manner as if commenced by or against such last administrator ; ^ and the provisions of the preceding chapter relative to the appearance or citation of an administrator and relative to a non-suit or default shall apply to such administrator de bonis non." 1 Yarrington v. Robinson, 141 Mass. 450 ; Gibbs v. Taylor, 143 Mass. 187; McKira v. Haley, 173 Mass. 112. 2 Shillaber v. Wyman, 15 Mass. 322 ; Jenkins v. Wood, 134 Mass. 117, 140 Mass. 66, 144 Mass. 238 ; Fuller ». Connelly, 142 Mass. 230. ' Brown v. Pendergast, 7 Allen, 427. ACTIONS AGAINST EXECUTORS, ETC. 499 " Sect. 10. If an executor or administrator dies or is removed after judgment has been rendered either for or against him, the court may issue a writ of scire facias in favor of or against the administrator de bonis no7i, and a new execution may be issued in like manner as it may be done in favor of or against an original executor or admin- istrator, in case of the death of his testator or intestate after a judgment rendered for or against him ; except that a judgment against the first executor or administra- tor for costs for which he was personally liable shall be enforced only against his executor or administrator and not against the administrator de bonis nonr " Sect, 11. If a judgment is rendered for or against an executor or administrator, a writ of error may be brought thereon by or against an administrator de bonis non in like manner as it might have been brought by or against the executor or administrator who was party to the judgment." ^ [Revised Laws, c. 189] Trustee Process against Executors and Administrators. " Sect. 20. Debts, legacies, goods, effects, or credits due from or in the hands of an executor or administrator as such, may be attached in his hands by the trustee process." ^ 1 Brown v. Pendergast, 7 Allen, 427. 2 Holbrook V. Waters, 19 Pick. 354; Wheeler v. Bowen, 20 Pick. 563; Hoar v. Marshall, 2 Gray, 251 ; Boston Bank v. Miuot, 3 Met. 507; Cady v. Comey, 10 Met. 459 ; Davis v. Davis, 2 Cush. Ill; Stills V. Harmon, 7 Cush. 406; Carson v. Carson, 6 Allen, 397; Vantine v. Morse, 104 Mass. 275 ; Nickerson v. Chase, 122 Mass. 296 ; Capen v. Duggan, 136 Mass. 501 ; Allen v. Edwards, 136 Mass. 138; Emery v. Bidwell, 140 Mass. 271 ; Mechanics' Savings Bank i-. Waite, 150 Mass. 234 ; Harmon i'. Osgood, 151 Mass. 501. 500 PROCEEDINGS IN THE PROBATE COURTS. " Sect. 50. If a person who is summoned as trustee in his own right dies before the judgment recovered by the plain- tiff has been fully satisfied, the goods, effects, and credits in his hands at the time of the attachment shall remain bound thereby, and his executor or administrator shall be liable therefor as if the writ had been originally served on him." " Sect. 51. If a person who is so summoned dies before judgment in the original action, his executor or adminis- trator may appear voluntarily, or may be cited to appear as in other cases. The further proceedings shall then be conducted in the same manner as if the executor or admin- istrator had been originally summoned as a trustee, except that the examination of the deceased, if any has been filed, shall have the same effect as if he was living." " Sect. 52. If the executor or administrator does not appear, the plaintiff, instead of suggesting the death of the trustee, may take judgment against him by default or otherwise as if he were living, and the executor or administrator shall pay upon the execution the amount which the deceased would have been liable to pay to the defendant, and shall be thereby discharged for the amount so paid. If he does not voluntarily pay the amount in his hands, the plaintiff may proceed against him by a writ of scire faciasy ^ " Sect. 53. If a person who is summoned as trustee dies after judgment in the original action, his executor or administrator may pay upon the execution the amount which the deceased would have been liable to pay were he living, and he shall be discharged from all further demands on account thereof in the manner before mentioned. If he refuses to make such payment, the plaintiff may proceed against him by a writ of scire facias.^' 1 Guptill V. Ayer, 149 Mass. 51. MISCELLANEOUS PROVISIONS. 501 " Sect. 54. If a person, against whom as trustee execu- tion issues, is not living at the expiration of thirty days after final judgment in the trustee process, a demand, for the purpose of holding the attachment, may be made upon the executor or administrator of such deceased per- son at any time within thirty days after his appointment, and shall have the same effect as if made within thirty days after the judgment." " Sect. 55. If an executor or administrator as such is adjudged a trustee, the execution shall not be served on his own goods or estate nor on his person, and he shall be liable for the amount in his hands only in like manner and to the same extent as he would have been liable to the defendant if there had been no trustee process." " Sect. 56. If, after final judgment against an executor or administrator for a sum certain due from him as trustee, he neglects to pay the same, the original plaintiff in the trustee process shall have the same remedy for recovering the amount, either upon a suggestion of waste or by a suit on the administration bond, as the defendant in the trustee process would have had upon a judgment recovered by himself for the same demand against the executor or administrator." Annual Returns of Shares in Corporations hy Guardians. A guardian who holds, or whose ward holds, shares of stock in any corporation, including banks located in the commonwealth liable to taxation, and an executor, administrator, trustee, or other person who holds in trust any such stock, shall annually, between the first and tenth day of May, return under oath to said commissioner the names and residences, on the first day of that month, of themselves and of all such wards or other persons to 502 PROCEEDINGS IN THE PEOBATE COURTS. whom any portion of the income from such stock is pay- able, the number of shares of stock so held, and the name and location of the corporation.^ Rights of Executors to Vote at Corporation Meetings. An executor, administrator, guardian, conservator, or trustee shall represent the shares of his trust at all meet- ings of the corporation, and may vote as a stockholder.^ Liability of Executors for Corporation Stock. The estates and funds in the hands of executors, admin- istrators, guardians, conservators, or trustees shall be liable to no greater extent than the testator, intestate, ward, or person interested in the trust fund would have been, if living and competent to act and hold stock in his own name.^ Right of Trustees or Guardians to release Damages for Land taken hy Railway Companies. When the lands or other property of a person under guardianship, or lands held in trust, are taken for the use of a railroad, the guardian or trustee may release all damages, in like manner as if the same were held in his own right.* EMBEZZLEMENT BY TRUSTEES, ETC. A trustee under an express trust created by a deed, will, or other instrument in writing, or a guardian, executor, or administrator, or any person upon or to whom such a 1 R. L. c. 14, § 8. 2 R. L. c. 109, § 17. 3 R. L. c. 110, § 64. As to liability of stockholders of trust com- panies and of naortgage loan and investment companies, see R. L. c. 116, §30; C.117, § 11. 4 R. L. c. Ill, § 110. MISCELLANEOUS PROVISIONS. 503 trust has devolved or come, who embezzles or fraudulently converts or appropriates money, goods, or property held or possessed by him for the use or benefit, either wholly or partially, of some other person or for a public or chari- table purpose, to or for his own use or benefit or the use or benefit of any person other than such person as aforesaid, or for any purpose other than such public or charitable purpose as aforesaid, or who otherwise fraudulently dis- poses of or desti-oys such property, shall be guilty of lar- cency, and shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than two thousand dollars and imprisonment in jail for not more than two years.^ Privileges and Discharge of Persons committed to Insane Hospitals. An attorney at law, regularly retained by or on behalf of any person committed to an insane hospital, asylum, or receptacle for the insane, shall be admitted to visit his client at all reasonable times, if, in the opinion of the superintending oflBcer of such hospital, asylum, or recep- tacle, such visit would not be injurious to such person, or if a justice of the supreme judicial court, or of the superior court, or a judge of probate in any county first orders in writing that such visits be allowed. Two of the trustees of a state insane hospital, on appli- cation in writing or of their own motion, or a justice of the supreme judicial court in any county, or the judge of probate for the county in which the hospital is situated or in which the patient had his residence at the time of his commitment or admission, on such application, and after such notice as the said trustees or judge may consider 1 R. L. c. 208, § 48. 504 PKOCEEDINGS IN THE PROBATE COURTS. reasonable and proper, may discharge any person confined therein, if it appears that he is not insane, or if insane, will be sufficiently provided for by himself, his guardian, relatives, or friends, or by the city or town liable for his support, or that his confinemcut therein is not longer neces- sary for the safety of the public or his own welfare.^ Special Trust Funds for Parks, Cemeteries, etc. Any savings bank or institution for savings may receive on deposit to any amount funds in trust for the purpose of setting out shade-trees in streets and parks, and improv- ing the same ; for purchasing land for parks, and improv- ing the same ; for maintaining cemeteries or cemetery lots ; or for erecting and maintaining drinking fountains in public places. Such funds shall be placed on interest in such corporation, and the interest and dividends arising therefrom shall be paid semi-annually to such city, town, or cemetery authorities as may be designated by the donors of said funds, or by the will of the person bequeathing the same, and shall be expended by such authorities within their respective cities, towns, or cemeteries for any or all of said purposes as may be specified by such donors or such will. No part of the principal of such funds shall be withdrawn or expended, and the same shall be exempt from attachment or levy on execution, A judge of probate, after notice and a hearing, may authorize an executor, administrator, or trustee holding money or other personal property for any of the purposes above mentioned, to deposit such moneys or the avails arising from such personal property, in any such corpora- tion designated by the judge, to be held by it in the manner and for the uses and purposes above mentioned, and upon 1 Pub. Stats, c. 87, §§ 82, 91. MISCELLANEOUS PROVISIONS. 505 the trusts upon which said executor, administrator, or trustee held the same ; and upon the deposit of such money and its receipt and acceptance by such corporation, the executor, administrator, or trustee shall be discharged from further care and responsibility therefor.^ Fees of Witnesses in Probate Courts. The fees for attending as a witness in a civil case in the probate court or court of insolvency, or to persons, except the debtor, who are examined under the provisions of section 82 of chapter 163 of the Revised Laws as to the dealings and property of an insolvent debtor, unless fraudulent conduct is charged and proved against them, are one dollar and fifty cents a day ; for attendance in a criminal case, one dollar and twenty-five cents a day ; for attending on any other occasion for which no express provision is made, fifty cents a day ; and in all cases five cents a mile for travel out and home. Each witness must certify in writing the amount of his travel and attendance.^ 1 R. L. c. 113, §§ 42, 43; Gates v. White, 139 Mass. 353; Abbott v. Cottage City, 143 Mass. 525; Green v. Hogan, 153 Ma.ss. 462; Bartlett, Petitioner, 163 Mass. 507, 513; Morse v. Natick, 176 Mass. 510, 513. 2 R. L. c. 204, § 21. CHAPTER XXIV. TAXATION OF COLLATERAL LEGACIES AND SUCCESSIONS. [Revised Laws, c. 15.] " Sect. 1. All property within the jurisdiction of the commonwealth, corporeal or incorporeal, and any interest therein, whether belonging to inhabitants of the common- wealth or not, which shall pass by will, or by. the laws regulating intestate succession, or by deed, grant, sale, or gift, made or intended to take effect in possession or enjoy- ment after the death of the grantor, to any person, abso- lutely or in trust, except to or for the use of the father, mother, husband, wife, lineal descendant, brother, sister, adopted child, the lineal descendant of any adopted child, the wife or widow of a son, or the husband of a daughter, of a decedent, or to or for the use of charitable, educational, or religious societies or institutions, the property of which is by law exempt from taxation, or to a city or town for public purposes, shall be subject to a tax of five per cent of its value, for the use of the commonwealth ; and admin- istrators, executors, and trustees, and any such grantees under a conveyance made during the grantor's life, shall be liable for such taxes, with interest, until the same have been paid ; ^ but no bequest, devise, or distributive share of ^ Definition and History of Inheritance and Succession Taxes. The inheritance, legacy, or succession tax may be defined as an excise or bonus imposed by the state or government upon the privilege of taking or receiving the property of a decedent by devise, descent, TAXATION OF COLLATERAL LEGACIES AND SUCCESSIONS. 507 an estate, unless its value exceeds five hundred dollars, shall be subject to the provisions of this chapter." ^ or distribution, whether such property passes to lineal or collateral heirs or to strangers to the blood. The right to impose the tax rests upon the constitutional power of the government or state, as a sover- eign, to change or to repeal the laws governing the transmission of property by will or descent. The public contribution which death duties exact is predicated on the passing of property as the result of death, as distinct from a tax on property disassociated from its trans- mission or receipt by will or as the result of intestacy. Such taxes were known to the Roman law and were the ancient law of the con- tinent of Europe. In England inheritance and legacy taxes are described under the term "Death Duties." In Hanson's Death Duties, p. 1, it is said: ''Historically, probate duty is the oldest form of death duty, having been established in 1694." This probate duty was a fixed tax, dependent on the amount of the personal estate, and payable by means of stamp duties on the grant of letters of pro- bate. In 1780 this tax was supplemented by what became known as a legacy tax. Legacy and succession taxes have been imposed by various acts of the Congress of the United States. The earliest act of Congress im- posing a legacy tax was that of July 6, 1797, 1 Stat, at Large, c. 11, which continued in force imtil June 30, 1802. The next act imposing a legacy tax was the act of July 1, 1862, c. 119, which was followed by the act of June 30, 1864. The act last cited was repealed by the act of July 14, 1870, which took effect October 1, 1870. Legacy and suc- cession taxes were again imposed by Congress by the " AVar Revenue Act," so called, passed during the war with Spain, and being the act of June 13, 1898, c. 448, which was repealed, so far as these taxes are concerned, by the act of April 12, 1902, c. 500, which took effect July 1, 1902, except as to collection of and lien for any taxes unpaid ^ The exemption of bequests not exceeding five hundred dollars and of bequests to towns for any public purpose was first made by St. 1895, c. 307. Before the passage of this statute, it was decided in Essex V. Brooks, 164 Mass. 79, that a legacy to a town for the establish- ing and maintaining of a public library was not subject to the tax. The exemption of bequests not exceeding five hundred dollars does not apply to legacies to which persons became entitled before St. 1895, c. 307, took effect. Howe v. Howe, 179 Mass. 546. 508 PROCEEDINGS IN THE PROBATE COURTS. " Sect. 2. If a person bequeaths or devises property to or for the use of a father, mother, husband, wife, lineal when the repealing act took effect. The act of June 13, 1898, was substantially a re-enactment of the provisions of the act of June 30, 18G4, so far as it relates to legacy and succession taxes, and it imposed a tax both on property passing to lineal heirs and also on property passing to collateral heirs and others, the tax being a graded one an.l increasing in proportion to the value of the property and to the re- moteness of the relationship to the decedent ; all legacies or property passing by will or by law to a husband or wife, and all legacies or dis- tributive shares of personal property not exceeding $10,000 in value passing to other persons, being exempt from the tax. In Knowlton i\ Moore, 178 U. S. 41, it was held that the amount of each particular legacy or distributive share, and not the sum of the whole personal estate of a decedent, was the amount on which the tax is imposed and by which the rate is measured. A law imposing legacy and inheritance taxes was first enacted in the United States in Pennsylvania in 1826. This was followed by the enactment of similar laws in Maryland in 18i4 ; Delaware, 1869; West Virginia, 1887; Connecticut, New Jersey, Ohio, Maine, and Massachusetts, 1891 ; Tennessee in 1891 and repealed in 1893; and in California, Colorado, Minnesota, and other States. The first act passed in ^lassachusetts which imposed a tax on col- lateral inheritances and successions was chapter 425 of the acts of 1891. Pennsylvania received from this tax in 1892 over $1,110,000, and New York received in the same year over $1,786,000. New York imposes a small tax on property passing to direct heirs, other than husband or wife, and a larger tax on property passing to others. The Illinois law is similar to that of New York in this respect. Massachusetts has received from the collateral inheritance and suc- cession tax, exclusive of interest, the following amounts for the years named, to wit: 1892, $13,854; 1893, $.39,419 ; 1894, $239,.368; 1895, $419,177; 1896, $275,573; 1897, $501,360; 1898, $563,672; 1899, $478,758; 1900, $397,939; 1901, $506,093. In 1901 the expense of collection, including the compensation of appraisers, charges of the various registers of probate and the salary of the legacy tax clerk, was $2,316. There was also received in 1901 for interest $8,043. It is strongly urged that the laws imposing taxes on personal prop- erty should be repealed, except as to the taxes imposed on corpora- tions, and that a small excise should be laid on property of a decedent TAXATION OF COLLATEUAL LEGACIES AND SUCCESSIONS. 509 descendant, brother, sister, an adopted child, the lineal descendant of an adopted child, the wife or widow of a passing to all persons other than the husband or the wife ; and that such an excise would not be burdensome ; that it would be equitable; and that it would yield as much as is now derived from the exist- ing system, or lack of system, or taxing personal property in Massachusetts. An excellent history of inheritance and legacy taxes can be found in the second edition of Dos Passes on Inheritance Tax Law, and also iu Hanson's Death Daties and Dowell's History of Taxation, vol. 3. Constitutionality of the Tax. a. Under Acts of Congress. In Scholey v. Rew, 23 Wall. 331, the act of June 30, 1864, was held to be constitutional and valid, and a similar decision was made in the case of Knowlton v. Moore, 178 U. S. -41, as to sections 29 and 30 of act of June 13, 1898, being the sections imposing a legacy and succes- sion tax and providing for its collection. The case last cited is a very carefully considered one, and the opinion of the court contains an elaborate review of the authorities. In this case it was held that the taxes upon legacies and distributive shares of personal property im- posed by the " War Revenue Act " are imposed upon the transmission or receipt of such inheritances and legacies and not upon the property itself ; that the direct taxes which must be apportioned under U. S. Constitution, Art. 1, § 10, do not include the tax on the transmission or receipt of legacies or distributive shares of personal property imposed by said act, as that tax is a duty or excise, as distinguished from a tax on property ; that the uniformity required by U. S. Constitution, Art. 1, § 9, providing that " duties, imposts, and excises shall be uniform throughout the United States." is not an intrinsic uniformity relating to the inherent character of the tax as respects its operation on individuals, but is merely a geographical uniformity requiring the same plan and the same method to be operative throughout the United States ; that a difference between the testamentary and intes- tacy laws of the States does not prevent the geographical uniformity of the " War Revenue Act," under which the primary right of taxa- tion upon legacies and distributive shares depends upon the degree of relationship or want of relationship to the deceased, since the rate is the same wherever the degree of relationship or want of relationship is the same, so that the rule is uniform, although there may be dLffereut con- 510 PROCEEDINGS IN THE PROBATE COURTS. son, or the husband of a daughter, for life or for a term of years, with the remainder to a collateral heir or to a ditions among the States as to the objects upon which the tax is levied ; and that the progressive rate feature of the act, by which the rates are graded in accordance with the amounts of the legacies or distributive shares and progressively increased as those amounts in- crease, cannot be held unconstitutional on the ground that it is repug- nant to fundamental principles of equality and justice, but that the question whether a progressive tax is more just and equal than a pro- portional one is, in the absence of constitutional limitation, a legis- lative, and not a judicial, question. This case cites with approval the opinion delivered by Mr. Justice Brown in United States v. Perkins, 163 U. S. 625, in which he said: " The tax is not upon the property itself, but upon the right to dispose of it, and it is not until it has yielded its contribution to the State that it becomes the property of the legatee." The case of United States j'. Perkins involved the question whether property bequeathed to the United States was subject to a succession tax, and it was held that it was. In Plummer r. Coler, 178 U. S. 115, it was decided that, under the inheritance tax laws of a State, a tax may validly be imposed on a legacy consisting of U. S. bonds issued under a statute declaring them to be exempt from taxa- tion in any form. This case quotes with approval from the opinion of the court in Magoun v. Illinois Trust & Savings Bank, 470 U. S. 283, the following : " The constitutionality of the (inheritance) taxes has been declared, and the principle upon which they are based ex- plained, in United States v. Perkins, 163 U. S. 625 " (and in sundry other cases cited). " It is not necessary to review these cases, or to state at length the reasoning by which they are supported. They are based on two principles : 1. An inheritance tax is not one on property but one on the succession. 2. The right to take property by devise or descent is the creature of the law, and not a natural right — a privi- lege ; and therefore the authority which confers it may impose con- ditions on it. From these principles it is deduced that the states may tax the privilege, discriminate between relatives and between these and strangers, and grant exemptions ; and are not precluded from this power by the provisions of the respective state constitutions requiring uniformity and equality of taxation." b. Under Laws of States other than ^fassachusetts. In California it was decided in Re Wilmerding, 117 Cal. 281, that the requirement of the California constitutiou that all property shall TAXATION OF COLLATERAL LEGACIES AND SUCCESSIONS. 511 stranger to the blood, the value of such particular estate shall, within three months after the appointment of the be taxed according to its value does not applied to the tax imposed by the California collateral inheritance tax act of 1893, as such tax is upon the right of succession and not upon property ; and that the dis- crimination made by the act in favor of surviving brothers and sisters and against the children of deceased brothers and sisters does not render the act invalid as class legislation. In Colorado the validity of the inheritance tax act was sustained in Re Inheritance Tax, 23 Col. 442, In Illinois it was held in Kochersperger v. Drake, 167 111. 122, that a statute creating classes of property of deceased persons for the pur- pose of a succession tax, although it exempts some classes from taxa- tion and provides different rates for other classes but is uniform as to all property in the same class, does not violate the 111. Constitution of 1870, Art. 9, requiring property to be taxed according to its value. In Magoun v.. 111. Trust & Savings Bank, 170 U. S. 283, it was held that the legacy and inheritance tax law of Illinois was constitutional; that exemptions from a statute taxing inheritances do not render its operation unequal within the meaning of the 14th Amendment to the Constitution of the United States ; and that a collateral inheritance law which does not impose a uniform rate, but classifies legacies to strangers to the blood and imposes higher rates on the larger sums, is not in violation of the rule of equality of the 14th Amendment. The case of Curry v. Spencer, 61 N. H. 624, which held the New Hamp- shire inheritance tax law to be in violation of the constitution of that State, is characterized by the U. S. Supreme Court in the Magoun case as "extreme." In Maine the inheritance tax law of that State was held to be con- stitutional in an able opinion in the case of State v. Hamlin, 86 Me. 495. For a very valuable note to this case, see 41 Am. State Rep. pp. 580, 581, 582. In New York the carefully considered case of In re Swift, 137 N. Y. 77, holds that the New York collateral tax act of 1885, as amended, is constitutional. In Ohio, it was decided in State v. Ferris, 53 Ohio St. 314 (decided in 1895), that the law imposing an inheritance tax was unconstitutional simply because of the exemption of estates of $20,000 and under and because, in cases where the estate exceeded 820,000, the entire estate was taxed without any exemption, and this was held to be in violation of the Ohio bill of rights. But in Hagerty v. State, 55 Ohio St. 613, 512 PROCEEDINGS IN THE TKODATE COURTS. executor, administrator, or trustee, be appraised in the manner provided in section sixteen and deducted from the (decided in 1897), the act of April 20, 1894, amending the act impos- ing a collateral inheritance tax, was held to be constitutional, the exemption features having been omitted in this later act which had been decided to be unconstitutional in State r. Ferris. This later Ohio law exempted property of the value of !$200, which exemption is expressly authorized by the Ohio constitution in the levying of taxes upon property, and imposed a uniform tax of five per cent upon the value of all property in excess of that amount passing to collateral heirs or to strangers to the blood. In Pennsylvania, in the case of Strode v. Commonwealth, 52 Pa. St. 181 (decided in 1866), the appellate court affirmed the judgment of the lower court and affirmed its opinion, in which it was said : " What is called a ' collateral inheritance tax ' is a bonus exacted from the collateral kindred and others as the condition on which they may be admitted to take the estate left by a deceased relative or testator. The estate does not belong to them except as a right to it is conferred by the state. Independent of government no such right could exist. The death of the owner would necessarily terminate his control over it, and it would pass to the first who might obtain possession. The right of the owner to transfer it to another after death, or of kindred to succeed, is the result of municipal regulation and must consequently be enjoyed subject to such conditions as the state sees fit to impose. And we see the state continually imposing new conditions ; sometimes enlarging, at others restraining, the privilege, and sometimes again entirely taking it away by changing the parties who are to succeed." In Small's Estate, 151 Pa. St. 1, (decided in 1892). construing the act of May 6, 1887, it was held that the interest of a non-resident partner in a limited partnership association located in Pennsylvania was sub- ject to the inheritance tax. In Tennessee the inheritance law then in force in that state was held to be constitutional in the well-considered case of State v. Alston, 94 Tenn. 674 (decided in 1895). c. Under the Law of A/assachuselts. The original act imposing a tax on collateral legacies and successions was St. 1891, c, 425. In Minot v. Winthrop, 162 Mass. 113, this act was held to be constitutional; that the tax imposed by it was an excise; and that this excise was reasonable and was not unequal. The first section of this act contained a proviso that no estate should be sub- TAXATION OF COLLATERAL LEGACIES AND SUCCESSIONS. 513 appraised value of such property, and tlie remainder shall be subject to a tax of five per cent of its value." ^ ject to the tax imposed by the act unless the value of the estate, after the payment of all debts, exceeded |10,000. This proviso was repealed by St. 1901, c. 297. As to this exemption the court say in Minot v. Winthrop: " The statutes of the different states and nations which have levied taxes on devises, legacies, and inheritances have usually made exemptions, and tliese have sometimes related to the value of the estates, and sometimes to the value of the property received by the heirs, devisees, legatees, or distributees. The exemption in the statute under consideration is certainly large as an exemption of estates, but it is peculiarly within fhe discretion of the legislature to determine what exemptions should be made in apportioning the burdens of taxation among those who can best bear them, and we are not satisfied that this exemption is so clearly unreasonable as to require us to declare the statute void." The court also say in this case : " We are of opinion that the privilege of transmitting or receiv- ing by will or descent property on the death of the owner, is a com- modity within the meaning of this word in the constitution, and that an excise may be laid upon it. Although St. 1891, c. 42.5, in form imposes a tax upon the property which passes in the manner described in the first section, yet the tax plainly is not meant to be a substitute for the annual tax upon estates, or to be an additional tax of that nature ; the statute can only take effect by regarding the tax as an excise, and the statute should be so construed as to take effect, if such a construction reasonably can be given to it. We see no difficulty in doing this, and are of opinion that the statute was intended to impose a tax in the nature of an excise." The opinion in Minot u. Winthrop was written by Chief Justice Field, and is elaborate, exhaustive, and able. Decisions Construing the Massachusetts Law. In Minot v. Winthrop, 162 Mass. 113, it was held that the exemption of " charitable, educational, or religious societies or institutions, the property of which is exempt by law from taxation," is confined to societies and institutions the property of which is exempt from * St. 1902, c. 473, provides as follows : — " In all cases where there has been or shall be a devise, descent, or bequest to collateral relatives or strangers to the blood, liable to col- 33 514 PROCEEDINGS IN THE TKOBATE COURTS. " Sect. 3. If a testator gives, bequeaths, or devises to his executors or trustees any property otherwise liable to said taxation by the law of Massachusetts. To same effect is Rice v. Bradford, 180 Mass. 515, in which a legacy to Bowdoin College was held to be subject to the tax. The donor of a power of appointment, rather than the donee, must be regarded as the decedent whose estate is subject to taxation. Emmons v. Shaw, 171 Mass. 410. The executor of a foreign will proved in Massachusetts is liable to pay the collateral inheritance tax upon the following property of the testator within the jurisdiction of this commonwealth : real estate, cash on hand, bonds of railroad'^jompanies, of cities without the com- monwealth, of other states and of the United States. Callahan i'. Woodbridge, 171 Mass. 595. For the purpose of determining on what amount the tax is to be computed, expenses of administration must be deducted, as the tax is to be paid only on the amount which passes to the successor or suc- cessors. Callahan v. Woodbridge, supra. A legacy tax paid'to the United States under the War Revenue Act of 1898 is to be deducted before paying the Massachusetts succession tax. Hooper v. Shaw, 176 Mass. 190. A corporation organized under the laws of Massachusetts for the purpose of administering a fund given to be applied to charitable purposes is not subject to the collateral inheritance tax, and it is immaterial that a portion of the fund was given to charitable institu- tions without the state. Balch v. Shaw, 174 Mass. 144. Property was conveyed prior to St. 1891, c. 425, by a married woman to a trustee to pay her the income for life and the principal after her death to such persons as she should appoint by will. She died in 1895, leaving a will by which she appointed the property to persons not exempt under the statute. Held, that the property was subject to the tax. Crocker v. Shaw, 174 Mass. 266. Property of a resident of Salem, in the hands of his agents in New York, consisting of bonds and stocks of foreign corporations, a cer- tificate of indebtedness of a foreign corporation, bonds secured by mortgage of real estate in New Hampshire, the makers of the bonds lateral inheritance tax, to take effect in possession or come into actual enjoyment after the expiration of one or more life estates or a term of years, the tax on such property shall not be payable nor interest begin TAXATION OF COLLATERAL LEGACIES AND SUCCESSIONS. 515 tax, in lieu of their compensation, the value thereof in excess of reasonable compensation, as determined by the and mortgages living in New York, and of cash on deposit in a savings bank and with individuals in Brooklyn, was held in Frothingham v. Shaw, 175 Mass. 59, to be subject to the Massachusetts collateral inheritance tax, there having been no administration in New York and the Massachusetts executor having taken possession of the property. The value of the property subject to the tax is to be determined as of the date of the death of the testator or intestate, and the income subsequently accruing is not subject to the tax. Hooper v. Bradford, 178 Mass. 95; Howe v. Howe, 179 Mass. 546. to run thereon until the person or persons entitled thereto shall come into actual possession of such property, and the tax thereon shall be assessed upon the value of the property at the time when the right of possession accrues to the person entitled thereto as aforesaid, and such person or persons shall pay the tax upon coming into possession of such property. The executor or administrator of the decedent's estate may settle his account in the probate court without being liable for said tax : provided, that such person or persons may pay the tax at any time prior to their coming into possession, and in such cases the tax shall be assessed on the value of the estate at the time of the payment of the tax, after deducting the value of the life estate or estates for years; and provided, further, that the tax on real estate shall remain a lien on the real estate on which the same is chargeable until it is paid." In reply to a communication from the treasurer and receiver-general, inquiring, first, whether this statute of 1902 applies to the estates of non-resident decedents, and, second, whether the statute applies to estates of resident decedents where the intervening life estate is tax- able, the attorney-general of the commonwealth gave his opinion under date of August 26, 1902, in which he says: — " The first question is not free from difficulty. The statute does not in terms distinguish between the estates of resident and non-res- ident decedents, and there is much force in the contention that no such distinction was contemplated by the legislature in its enactment. It will result, however, if the act is construed to include the estates of non-resident decedents, that the existing law relating to the taxation of collateral legacies and successions, will become practically inopera- tive or at least ineffective in every case where personal property of a non-resident decedent, which may be within the jurisdiction of the 516 PROCEEDINGS IN THE PROBATE COURTS. probate court upon the application of any interested party or of the treasurer and receiver-general, shall nevertheless be subject to the provisions of this chapter." commonwealth, vests in or comes into the actual possession of a col- lateral relative or stranger to the blood liable to the collateral inheri- tance tax, after the expiration of one or more life estates, and both the property and the legatee in whom it vests are beyond the limits of the commonwealth. In view of what I deem to be the purpose of the statute, I cannot believe that the legislature intended by implication to effect so radical a change in the existing law. The undoubted object of St. 1902, 0. 473, was not to disturb the ultimate liability of taxable persons and its enforcement, as at present fixed under the collateral inheritance tax law, but to revise or amend the law only so far as relates to the time when such liability shall, in certain cases, accrue. Upon this construction of the statute, I am forced to take the view that it does not serve to postpone the time when the tax shall be due and payable, where there has been a devise, descent, or bequest, consisting of prop- erty in this commonwealth belonging to a non-resident, which vests or takes effect in possession in the future, and that your first question must be answered in the negative. This conclusion receives confirmation from the language of the act itself. The statute provides that " The executor or administrator of the decedent's estate may settle his account in the probate court with- out being liable for said tax," a provision which can only apply to the estates of resident decedents, since the executor or administrator of a non-resident decedent is not required to file an account in the probate court of this commonwealth, but may receive the property of the de- cedent which may be within the jurisdiction of the commonwealth, upon the allowance by the court of the petition required by R. L. c. 148, § 3 (see R. L. c. 15, §§ 12, 13, and 14), if it appears that such executor or administrator is, in the State where he is appointed, liable for the property so received. This language, therefore, supports the conclusion that the provisions of St. 1902, c. 473, can only apply to estates the executors or administrators of which are compelled to file an account in the probate courts of this commonwealth. To your second question, I am of the opinion that I must reply in the affirmative. Neither the purpose nor the language of the act can be construed to warrant a distinction between an intervening life es- tate which is taxable and one which is not taxable. The statute clearly postpones the time when the tax shall become due upon a tax- TAXATION OF COLLATERAL LECrACIES AND SUCCESSIONS. 517 " Sect. 4. Taxes imposed by the provisions of tliis chapter shall be payable to the treasurer and receiver-general by the executors, administrators, or trustees, at the expiration of two years after the date of their giving bond ; but if legacies or distributive shares are paid within the two years, the taxes thereon shall be payable at the same time. If the probate court acting under the provisions of section thirteen of chapter one hundred and forty-one has ordered the executor or administrator to retain funds to satisfy a claim of a creditor, the payment of the tax may be sus- pended by the court to await the disposition of such claim. If the taxes are not paid when due, interest shall be charged and collected from the time the same became payable ; and said taxes and interest shall be and remain a lien on the property subject to the taxes until the same are paid." " Sect. 5. An executor, administrator, or trustee holding property subject to said tax shall deduct the tax therefrom able remainder to the time when such remainder vests in the remain- derman, without reference to the character of the hfe estate which precedes it." In Minot v. Winthrop, 162 Mass. 113, decided before the passage of St. 1902, c. 473, where a testatrix had given the income of the sum ot ten thousand dollars to her husband and, on his death, the principal to his daughter, who was not the daughter of the testatrix, it was held that, although the legacy to the husband was exempt from the tax, the tax should be computed on the daughter's interest and deducted from the principal and paid over to the treasurer of the commonwealth at the expiration of two years from the date of the giving of bond by the executor, or when the legacy was paid, if paid within the two years. It was also held in Minot v. Winthrop that the tax on an an- nuity was to be paid out of the annuity as soon as the annuity became payable, and at the time when payments on account of it are made, even though the effect might be that the first payment or payments on account of the annuity might be exhausted by the tax. See also Howe V. Howe, 179 Mass. 546. 518 PROCEEDINGS IN THE PliOBATE COURTS. or collect it from the legatee or person entitled to said property, and he shall not deliver property or a specific legacy subject to said tax until he has collected the tax thereon. An executor or administrator shall collect taxes due upon land which is subject to tax under the provisions hereof from the heirs or devisees entitled thereto, and he may be authorized to sell said land according to the pro- visions of section eight if they refuse or neglect to pay said tax." " Sect. 6. If a legacy subject to said tax is charged upon or payable out of real estate, the heir or devisee, before paying it, shall deduct said tax therefrom and pay it to the executor, administrator, or trustee, and the tax shall remain a charge upon said real estate until it is paid. Payment thereof may be enforced by the executor, administrator, or trustee in the same manner as the payment of the legacy itself could be enforced." " Sect. 7. If a pecuniary legacy is given to any person for a limited period, the executor, administrator, or trustee shall retain the tax on the whole amount ; but if it is not in money, he shall apply to the probate court having juris- diction of his accounts to make an apportionment, if the case requires it, of the sum to be paid into his hands by such legatee on account of said tax, and for such further orders as the case may require." " Sect. 8. The probate court may authorize executors, administrators, and trustees to sell the real estate of a decedent for the payment of said tax in the same manner as it may authorize them to sell real estate for the payment of debts." "Sect. 9. An inventory of every estate, any part of which may be subject to a tax under the provisions of this chapter, shall be filed by the executor, administrator, or trustee TAXATION OF COLLATERAL LEGACIES AND SUCCESSIONS. 519 within three months after his appointment. If he neglects or refuses to file such inventory, he shall be liable to a penalty of not more than one thousand dollars, which shall be recovered by the treasurer and receiver-general ; and the register of probate shall notify the treasurer and receiver-general of any such neglect or refusal within thirty days after the expiration of the said three months." " Sect. 10. A copy of the inventory and appraisal of every estate, any part of which is subject to a tax under the pro- visions of this chapter or, if the estate can be conveniently separated, a copy of the inventory and appraisal of such part, shall within thirty days after it has been filed be sent by the register of probate, by mail, to the treasurer and receiver-general without charge therefor. A refusal or neglect by the register of probate so to send a copy of such inventory and appraisal shall be a breach of his official bond." " Sect. 11. If real estate of a decedent so passes to another person as to become subject to said tax, his execu- tor, administrator, or trustee shall inform the treasurer and receiver-general thereof within six months after his appoint- ment, or, if the fact is not known to him within that time, then within one month after the fact becomes known to him." "Sect. 12. If a foreign executor, administrator, or trustee assigns or transfers any stock or obligation in any national bank located in this commonwealth, or in any corporation organized under the laws of this commonwealth, owned by a deceased non-resident at the time of his death and liable to a tax under the provisions of this chapter, the tax shall be paid to the treasurer and receiver-general at the time of such assignment or transfer, and if it is not paid when due such executor, administrator, or trustee shall be personally 520 PROCEEDINGS IN THE PROBATE COURTS. liable therefor until it is paid. A bank located in this commonwealth or a corporation organized under the laws of this commonwealth which shall record a transfer of any share of its stock or of its obligations made by a foreign executor, administrator, or trustee, or issue a new certifi- cate for a share of its stock or of the transfer of an obliga- tion at the instance of a foreign executor, administrator, or trustee, before all taxes imposed thereon by the provisions of this chapter have been paid, shall be liable for such tax in an action of contract brought by the treasurer and receiver-general." ^ " Sect. 13. Securities or assets belonging to the estate of a deceased non-resident shall not be delivered or transferred to a foreign executor, administrator, or legal representa- tive of said decedent, unless such executor, administrator, or legal representative has been licensed to receive such securities or assets under the provisions of section three of chapter one hundred and forty-eight, without serving notice upon the treasurer and receiver-general of the time and place of such intended delivery or transfer seven days at least before the time of such delivery or transfer. The treasurer and receiver-general, either personally or by representative, may examine such securities or assets at the time of such delivery or transfer. Failure to serve such ^ The fact that shares of stock in corporations organized under the laws of this commonwealth, and of national banking corporations located here, belonging to a resident of another state, the certificates of which are there at the time of his death, are transferred there by the executor of his will under authority of his appointment in that state before he is appointed executor here, does not exempt such shares from the collateral inheritance tax here. Greves v. Shaw, 173 Mass. 205. Stock of the Boston & Albany R. R. Co., a corporation having its franchises from Massachusetts and also from New York, belonging to the estate of a deceased non-resident, is subject to the tax. Moody V. Shaw, 173 Mass. 375. TAXATION OF COLLATERAL LEGACIES AND SUCCESSIONS. 521 notice or to allow such examination shall render the per- son or corporation making the delivery or transfer liable in an action of contract brought by the treasurer and receiver-general to the payment of the tax due upon said securities or assets." " Sect. 14. The treasurer and receiver-general shall be made a party to all petitions by foreign executors, admin- istrators, or trustees brought under the provisions of section three of chapter one hundred and forty-eight, and no de- cree shall be made upon any such petition unless it appears that notice of such petition has been served on the treas- urer and receiver-general fourteen days at least before the return day of such petition." " Sect. 15. If a person who has paid such tax afterward refunds a portion of the property on which it was paid or if it is judicially determined that the whole or any part of such tax ought not to have been paid, said tax, or the due proportion thereof, shall be repaid to him by the executor, administrator, or trustee." " Sect. 16. Said tax shall be assessed upon the actual value of said property as found by the probate court. Upon the application of the treasurer and receiver-general or of any party interested in the succession, the probate court shall appoint three disinterested appraisers who, first being sworn, shall appraise such property at its actual market value and shall make return thereof to said court. Such return, when accepted by said court, shall be final. The fees of said appraisers, as determined by the judge of said court, shall be paid by the treasurer and receiver- general. The value of an annuity or life estate shall be determined by the ' actuaries' combined experience TABLES,' at four per cent compound interest." ^ ^ The value of the property subject to the tax is to be determined 522 PROCEEDINGS IN THE PROBATE COURTS. " Sect. 17. The probate court having jurisdiction of the settlement of the estate of the decedent shall, subject to appeal as in other cases, hear and determine all questions relative to said tax affecting any devise, legacy, or inheri- tance, and the treasurer and receiver-general shall repre- sent the commonwealth in any such proceedings." ^ " Sect. 18. If, upon the decease of a person leaving an estate liable to a tax under the provisions of this chapter, a will disposing of such estate is not offered for probate, or an application for administration made within four months after such decease, the proper probate court, upon appli- cation by the treasurer and receiver-general, shall appoint an administrator." " Sect. 19. No final account of an executor, adminis- trator, or trustee shall be allowed by the probate court unless such account shows, and the judge of said court finds, that all taxes imposed by the provisions of this chapter upon any property or interest therein belonging to the estate to be as of the date of the death of the testator or intestate. Hooper v. Bradford, 178 Mass. 95; Howe i'. Howe, 179 Mass. 546. If an annuity of a life estate is subject to the tax, the tax is to be paid out of the annuity or out of the income of the life estate, and at the time when payments are first made on account of the annuity or life estate. Minot v. Winthrop, 162 Mass. 113. The value of an annuity or of a life estate is to be determined according to the " actuaries' combined experience table " and not according to the time that the annuitant or person entitled to the life estate actually lived. Howe v. Howe, 179 Mass. 546. ^ The jurisdiction of the probate court under this section does not take away the right of a legatee to sue for his legacy at common law in the superior court and to have the question heard and determined there whether the legacy is subject to a tax. Essex v. Brooks, 164 Mass. 79. The probate court has jurisdiction of a petition by the executor of a ioreign will proved in this commonwealth for instructions whether he is liable to pay a tax upon the property, real and personal, of the testate found here. Callahan v. Woodbridge, 171 Mass. 595. TAXATION OF COLLATERAL LEGACIES AND SUCCESSIONS. 523 settled by said account liave been paid ; and the receipt of tlie treasurer and receiver-general for such tax shall be the proper voucher for such payment." " Sect. 20. The treasurer and receiver-general shall commence an action for the recovery of any of said taxes within six months after the same become payable ; and also whenever the judge of a probate court certifies to him that the final account of an executor, administrator, or trustee has been filed in such court and that the settlement of the estate is delayed because of the non-payment of said tax. The probate court shall so certify upon the ap- plication of any heir, legatee, or other person interested therein, and may extend the payment of said tax when- ever the circumstances of the case require." ^ PRACTICE OF treasurer's DEPARTMENT IN DETERMINING AMOUNT OF TAX. It may be of service to state in a general way the prac- tice of the department of the treasurer of the common- wealth in regard to certain questions which frequently arise in determining the amount upon which the tax is to be paid. The law provides that the debts and charges of administration are to be deducted, but there might be cer- tain expenses and charges of an administrator or executor which would be allowed by a probate court, if assented to by the parties in interest, and which would not be allowed ^ The provision that the treasurer of the commonwealth shall within six months after the taxes are due and payable (§ 4 providing that the taxes shall be payable by executors, administrators, and trus- tees at the expiration of two years from the date of their giving bond), is directory merely, and does not limit the right of recovery by the treasurer of the commonwealth to two years and six months after the giving of bonds by executors and trustees. Howe v. Howe, 179 Mass. 546. 524 PROCEEDINGS IN THE PROBATE COURTS. by the treasurer. For instance, taxes paid by the adminis- trator or executor on real estate, if the taxes were assessed as of a date subsequent to the death of the testate or intes- tate. Taxes are assessed as of May 1 in each year. If the deceased person died at any time prior to May 1, the tax assessed on his property on May 1 of the year of his death would not be a debt which the treasurer would allow to be deducted. So also of repairs on real estate. Briefly, the treasurer allows to be deducted only the strictly legal debts and charges of administration. If the testator gives by will a specific legacy to a person not exempt from payment of the legacy tax and directs that the tax thereon shall be paid out of the residue of his estate, the legacy is construed as one of a sum equal to the specific legacy plus the tax thereon ; for instance, if the legacy was five thousand dollars, the tax thereon would be two hundred and fifty dollars, and the legacy is construed by the treasurer as if it had been a legacy of five thousand two hundred and fifty dollars and the tax would be col- lected on this amount. APPENDIX„ ATPENDIX. PROBATE AND EQUITY RULES Prepared by the Judges of the Probate Courts for regulating THE Practice and conducting the Business in their Courts, and approved by the scpreme judicial court, to take effect and be in force throughout the commonwealth on and after May 15, 1894. PROBATE RULES. I. Any party may appear in the Probate Court in person, or by an attorney authorized to practice in the courts of this Commonwealth, or by a person authorized by a writing, filed in said court, for that purpose. Any person appearing for another in the Probate Court shall enter his appearance in writing, giving his name, place of residence or business, the matter in which, and the name or names of the person or persons for w^hom, he appears. Said writing shall be filed with the register, and the fact entered in the docket. Each petition shall be considered a separate proceeding, and appearance of the attorney entered accordingly. IL If a party shall change his attorney, pending any proceed- ing, the name of the new attorney shall be substituted on the docket for that of the former attorney, and notice thereof 528 APPENDIX. given to the adverse party ; and until such notice of the change of an attorney, all notices given to or by the attorney first appointed shall be considered in all respects as notice to or from his client, except in cases in which by law the notice is required to be given to the party personally ; provided, how- ever, that nothing in these rules shall be construed to prevent any party interested from appearing for himself in the man- ner provided by law ; and in such case, the party so appearing shall be subject to the same rules that are or may be provided for attorneys in like cases, so far as the same are applicable. III. When the authority of an attorney-at-law to appear for any party shall be demanded, if the attorney shall declare that he has been duly authorized to appear by an application made directly to him by such party, or by some person whom he believes to have been authorized to employ him, such declara- tion shall be deemed and taken to be evidence of authority to appear and prosecute or defend in any action or proceeding. IV. In addition to making appointments of guardians ad litem in cases required by statute, whenever it shall appear that a minor is interested in any matter pending, a guardian ad litem, for such minor may be appointed by the court at its discre- tion, with or without notice. V. The court will grant commissions to take the depositions of witnesses without the Commonwealth ; and any party may, on application to the Register, obtain a commission, which shall be directed to any commissioner appointed by the gov- ernor of the Commonwealth to take depositions in any other of the United States, or the commission may be directed to any justice of the peace, notary public, or other officer legally empowered to take depositions or affidavits in the State or country where the deposition is to be taken. In each case APPENDIX. 529 the depositions shall be taken upon interrogatories, to be filed by the party applying for the commission, and upon such cross-interrogatories as shall be filed by the adverse party, — the whole of which interrogatories shall be annexed to the commission. The party applying for the commission shall in each case file his interrogatories in the register's office, and give notice thereof to the adverse party, or his attorney, seven days at least before taking out the commission, and fourteen days at least before the taking, if the party or his attorney live out of the Commonwealth. But where the adverse party does not appear, such interrogatories need not be exhibited to him, nor notice be given to him of the same. And when a deposition shall be taken and certified by any person as a justice of the peace, or other officer as aforesaid, by force of such commission, if it shall be objected that the person so taking and certifying the same was not such officer, the bur- den of proof shall be on the party so objecting ; and if a like objection shall be made to a deposition taken without such commission, it shall be incumbent on the party producing the deposition to prove that it was taken and certified by a person duly authorized. VI. In all cases where depositions shall be taken on interroga- tories, no party shall be permitted to attend at the taking of such deposition, either himself, or by attorney or agent ; nor be permitted to communicate by interrogatories or sugges- tions with the deponent while giving his deposition. It shall be the duty of the commissioner to take such deposition in a place separate and apart from all other persons, and to permit no person to be present during such examination, except the deponent and himself, and such disinterested person, if any, as he may think fit to appoint as a clerk to assist him in re- ducing the deposition to writing. And it shall be the duty of the commissioner to put the several interrogatories and cross- interrogatories to the deponent in their order, and to take the answer of the deponent to each, fully and clearly, before pro- ceeding to the next; and not to read to the deponent, nor 34 530 APPENDIX. permit the deponent to read, a succeeding interrogatory until the answer to the preceding has been fully taken down. And it shall be the duty of the register, on issuing a com- mission to take a deposition on interrogatories, to insert the substance of this order therein, or to annex this order, or the substance thereof, to the commission, by way of notice and instruction to the commissioner. VIT. All depositions shall be opened and filed by the register when received. The deposition shall afterwards be in his custody, subject to the order of the coui"t, as other documents in the case ; and if not read on the trial by the party taking it, it may be used by any other party, if he sees fit, he paying the costs of taking the same. VIII. Whenever, in any case, a notice given in accordance with the general forms of procedure or otherwise is held by the judge to be insufficient, he may order such further notice as the case requires. IX. No executor or administrator shall receive any compensa- tion by way of a commission upon the estate by him admin- istered, but shall be allowed his reasonable expenses incurred in the execution of his trust, and such compensation for his services as the court in each case may deem just and reason- able. The account shall contain an itemized statement of the nature of the services rendered, and of such other matters as may be necessary to enable the court to determine what com- pensation is reasonable. X. Probate accounts should be stated in schedules as follows : — 1. Schedule A. Containing cash items only, beginning with the amount of cash in the inventory, or with the cash balance of the previous account, followed by items of every APPENDIX. r.31 sum of money received, whether from the sale of real or per- sonal estate or otherwise. 2. Schedule B. Containing every sum of money paid for any purpose. 3. Schedule C. Containing all items of personal estate (other than cash), whether the same were stated in the inven- tory, or subsequently came to the possession or knowledge of the accountant, together with the valuation put upon them by inventory or by the accountant. 4. Schedule D. Containing all items of property that have been delivered by order of the court or otherwise without having been converted into cash. XI. Notice upon an account not intended as final will be issued only by direction of the judge. Every such account, when no notice has been ordered, unless accompanied by the assent in writing of all persons interested, will be filed, the footings of its schedules entered upon the docket, and the consideration of its allowance will be post- poned till the hearing upon the final account. EQUITY EULES. In all cases in equity the petition shall begin after the address, by stating the names and known residence of all persons interested, together with any disability of any of them, and then proceed to state fully all facts necessary to be proved to maintain the petitioner's claim. It shall de- scribe all property to be affected thereby, with sufficient accuracy for identification, and contain a special prayer for each form of relief desired, as well as one for general relief. No other allegations, charges, or prayers need be included. 532 APPENDIX. (Form of Petition.) To the Honorahle the Judge of the Probate Court in and for the County of Eespectfully represents , petitioners town , county , State , that bring this petition against , respondents town , county , State , and allege them to be all the parties interested in the matter of said petition, and further represent II. The original process to require the appearance of respond- ents shall be a citation in the following form : — Commonwealth of Massachusetts. ss. Probate Court. To Whereas, has presented to said court h petition, praying , you are hereby cited to appear at a Probate Court to be holden at , in said county of , on the day of next, at o'clock in the forenoon, to show cause, if any you have, against the same. And said petitioner is ordered to serve this citation by delivering a copy thereof to each of you who may be found in said Commonwealth, fourteen days at least before said court, or if any of you shall not be so found, either by deliver- ing a copy thereof to you wherever found, or by leaving a copy thereof at your usual place of abode, or by mailing a copy thereof to you at your last known post-office address, fourteen days at least before said court. Witness, , Esq., judge of said court, this day of , in the year one thousand hundred and Register. I have served the foregoing citation by ss. A. D. 19 . Personally appeared the above named, , and made oath to the truth of the above returns by h subscribed. Before me, Justice of the Peace. APPENDIX. 533 All processes shall be made returnable at a statute court day within three months after the date of such process. In any case such further notice shall be given as the court may order. III. No injunction or other proceeding shall be ordered until the petition is filed, unless for good cause shown. No injunction shall issue, except upon a petition which has been sworn to, or upon verification of the material facts by affidavit. IV. The respondent shall answer fully, directly, and specifically to every material allegation or statement in the petition. V. The day of appearance shall be the return-day of the cita- tion, unless the court shall otherwise order ; and if the respondent shall not appear and file his answer, plea, or demurrer within fourteen days thereafter, the petition shall be taken for confessed, and the matter thereof may be decreed accordingly, unless good cause shall appear to the contrary. VI. The respondent may at any time before the citation is taken for confessed, or afterwards by leave of the court, demur, plead, or answer to the petition ; and he may demur to part, plead to part, and answer as to the residue ; and in any case in which the petition charges fraud or combination, a plea to such part must be accompanied with an answer supporting the plea, and explicitly denying the fraud or combination, and the facts on which the charge is founded. VII. The petitioner may set down a plea or demurrer to be ar- gued, or take issue on the plea, within fourteen days from the time when the same is filed; and if he shall fail to do so, a 534 APPENDIX. decree dismissing the petition may be entered upon motion unless good cause appear to the contrary. VIII. If a plea or demurrer be overruled, no other plea or demur- rer shall be received, but the respondent shall proceed to answer the petition ; and if he shall fail to do so within four- teen days, the petitioner may enter an order that the same, or so much thereof as is covered by the plea or demurrer, be taken for confessed, and the matter may be decreed accord- ingly, unless good cause shall appear to the contrary. IX. The respondent, instead of filing a formal plea or demurrer, may insist on any special matter in his answer, and have the same benefit therefrom as if he had pleaded the same, or de- murred to the petition. X. The respondent to a cross-petition shall in no case be com- pelled to answer thereto before the respondent to the original petition shall have answered such original petition. XL The form of the general replication shall be that the plain- tiff joins issue on the answer. The petitioner shall file excep- tions, or set down the case for hearing within fourteen days after the answer is required to be filed ; or if the answer be filed before it is required, then within fourteen days after written notice of such filing, and if he fails so to do, a decree may be entered for the dismissal of the petition. XII. If the petitioner shall except to an answer as insufficient, he shall file his exceptions, and forthwith give notice thereof to the respondent or his attorney ; and if within fourteen days the respondent shall put in a sufficient answer, the same APPENDIX. 535 shall be received. But if the respondent insist on the suffi- ciency of his answer, he shall, within fourteen days, file a statement to that effect, and give notice thereof to the peti- tioner, and thereupon his exceptions shall be set down to be argued. If the answer shall be adjudged insufficient, a new answer shall be filed within fourteen days. XIII. Upon a second answer being adjudged insufficient, the re- spondent may be examined upon interrogatories, and com- mitted until he shall answer them. XIV. The court may in its discretion allow the parties to amend their pleadings, and order or permit the pleadings to be filed, or any proceeding to be had, at other times than are provided in these rules ; and may in all cases impose just and reason- able terms upon the parties. XV. All notices in a case required to be given to the party may be given to his attorney of record ; and if transmitted through the post-office, post paid, shall be deemed to have been re- ceived by the person to whom they are addressed, in due course of mail, unless the contrary shall appear by affidavit or otherwise. XVI. When the death of any party shall be suggested in writing, and entered on the docket, the register, upon application, may issue process to bring into court the representative of such deceased party. XVII. When the circumstances of the case are such as to require a petition of revivor or supplemental petition, or petition in the nature of either or both, or the joinder of additional or differ- ent parties, the requisite allegations may be made by way of 536 APPENDIX. amendment to the original petition ; and after service on any new parties, as in the case of an original petition, and service of copies of the amendment on all the respondents affected thereby, shall entitle the petitioner to proceed as on an original petition. XVIIL In petitions by executors or trustees to obtain the instruc- tions of the court, and in petitions of interpleader, or in the nature of interpleader, no attorney for the petitioner shall appear, or be heard, or act for or in behalf of any or either of the respondents. XIX. All facts alleged in a petition, other than for discovery only, which are not denied or put in issue by the answer, shall be deemed to be admitted. XX. Testimony taken by depositions shall be taken in the man- ner required by statute and by the rules of the court in matters of probate, XXI. When any matter shall be referred to a master, he shall, upon the application of either party, assign a time and place for hearing, which shall not be less than ten days thereafter ; and the party obtaining the reference shall serve the adverse party, at least seven days before the time appointed for the hearing, with a summons requiring his attendance at such time and place, and make proof thereof to the master ; and thereupon, if the party summoned shall not appear to show cause to the contrary, the master may proceed ex pra'te ; and if the party obtaining the reference shall not appear at the time and place, or show cause why he does not, the master may either proceed ex jjarfe, or the party obtaining the refer- ence shall lose the benefit of the same at the election of the adverse party. APPENDIX. i^37 XXIL When the master has prepared a draft copy of his report, he shall notify the parties, or their attorneys, of the time and place when and where they may attend to hear the same, and suggest such alterations, if any, as they may think proper. Upon consideration whereof, the master will finally settle the draft of his report, and give notice thereof to the parties or their attorneys, whereupon, after examining the same, or being furnished with a copy thereof, five days shall be al- lowed for bringing in written objections thereto, which objec- tions, if any, shall be appended to the report. No exception to a master's report will be allowed without a special order of the court, unless founded upon an objection made before the master, and shown by his report, and unless filed with the register within fourteen days from the filing of the report. Notice of the filing of the master's report shall be forthwith sent by the register to each party or his attorney. XXIII. When exceptions shall be taken to the report of the master, they shall be filed with the register, and notice thereof shall forthwith be given to the adverse party ; and the exceptions shall then be set down for argument. In every case, the ex- ceptions shall briefly and clearly specify the matter excepted to, and the cause thereof; and the exceptions shall not be valid as to any matter not so specified. XXIV. When any party shall desire a hearing in equity, he may apply to the judge to appoint a time and place therefor ; and when such time and place shall have been appointed, he shall give notice thereof to the adverse party, or his attorney, through the post-office, post paid ; but this rule shall not pre- vent a party from obtaining a preliminary injunction, or a dis- solution of an injunction or other order, upon a shorter notice, 538 APPENDIX. or without notice, if the court shall think the same reasonable. Cases may be heard by consent of parties, and the permission of the court, without such notice. XXV. The attorney of the party in whose favor a decree or order is passed shall draw the same. All pleadings shall be recorded, unless the court shall otherwise order. (Form of Decree.) ss. On the petition in equity of , petitioners, against , respondents, praying it appearing that notice according to the order of the court has been given all parties interested person objecting after hearing and considera- tion, the court doth order and decree, XXVI. Rules I., II., and III. in Probate shall apply to proceedings in equity. PROBATE FORMS. Petition for Administration — with Sureties. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said County , that , who last dwelt in said , died on the day of , in the year of our Lord one thou- sand nine hundred and intestate, possessed of goods and estate remaining to be administered, leaving as widow — husband, h only heirs-at-law and next of kin the persons whose names, residences, and relationship to the de- ceased are as follows, viz. : Name. Residbncb. Relationship. that your petitioner is Wherefore your petitioner prays that he, or some other suita- ble person, be appointed administrat of the estate of said deceased, and certifies that the statements herein contained are true to the best of h knowledge and belief. Dated this day of , A. d. 19 . , ss. Subscribed and sworn to this day of , A. D. 19 . Before me, Justice of the Peace. The undersigned, being all the persons interested residing in the Commonwealth, who are of full age and legal capacity, hereby assent to the foregoing petition. Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day, and by mailing a copy of citation to each of next of kin seveu days at least before return day. 540 APPENDIX. Petition for Administration — without Sureties. To tlie Honorable tlie Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , that , who last dwelt in said , died on the day of , in the year of our Lord one thousand nine hundred and , intestate, possessed of goods and estate remaining to be administered, leaving as widow — husband, h only heirs-at-law and next of kin the persons whose names, residences, and relationship to the de- ceased are as follows, viz. : Name. Residence. Relationship. that your petitioner is Wherefore your petitioner prays that he may be appointed administrat of the estate of said deceased without giving a surety on h bond, and certifies that the statements herein con- tained are true to the best of h knowledge and belief. Dated this day of , a. d. 19 . , ss. Subscribed and sworn to this day of , A. D. 19 . Before me, Justice of the Peace. The undersigned, being all the persons interested in the estate, who are of full age and legal capacity, other than cred- itors, and the guardians of persons interested therein, hereby consent that the above-named petitioner be exempt from giving any surety on h bond. Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day. PROBATE FORMS. 541 Petition for Administration De Bonis Xon. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , iu the County of , that on the day of , A. d. 19 , was appointed, by this Court, administrat of the estate of , late of said , deceased; that the said has without having fully administered said estate, that there are goods and estate of the said to the amount of twenty dollars remaining to be administered; that your petitioner is Wherefore yoxxv petitioner prays that he, or some other suit- able person, be appointed administrat of the estate, not already administered, of said , and certifies that the statements herein contained are true to the best of h knowl- edge and belief. Dated this day of , A. d. 19 . , ss. Subscribed and sworn to this day of , A. D. 19 . Before me, Justice of the Peace. The undersigned, being all persons interested, hereby assent to the foregoing petition. Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day. Petition for Special Administration. [R. L. c. 137, §9.] [Notice may be ordered at the discretion of the Court.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , oi , in said County, 542 APPENDIX. that , who last dwelt in said , died on the day of , in the year of our Lord one thousand nine hundred and , possessed of goods and estate remaining to be administered, and that there is delay in grant- ing letters on h estate, by reason of and that your petitioner is Wherefore your petitioner pray that he may be ap- pointed special administrat of the estate of said deceased; and may be authorized to take charge of all the real estate of paid deceased, and to collect rents and make necessary repairs, and certifies that the statements herein contained are true to the best of h knowledge and belief. Dated this day of , A. d, 19 . , ss. Subscribed and sworn to this day of , A. D. 19 . Before me, Justice of the Peace. The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day. Petition for Public Administration. To the Honorable the 'Judge of the Probate Court in and for the County of Respectfulls' represents of , in the County of , public administrator in and for the County of , that died intestate, in , in said County of , on the day of , A. d. 19 , not leaving a known husband — widow — or heir in this Com- monwealth, that said deceased left property in said County of , to be administered, that your petitioner is entitled to administer thereon] PROBATE FORMS. 543 Wherefore he prays tliat letters of admiuistratiou on tlie estate of said deceased may be granted to him agreeably to the law in such cases made and provided, and certifies that the state- mehts herein contained are true to the best of his knowledge and belief. Dated this day of , a, d. 19 . , ss. Subscribed and sworn to this day of , A. D. 19 . Before me, Justice of the Peace. Citatiou by publication once a week for three successive weeks, the last publication to be one day at least before return day. Petition for Probate of Will — with Sureties. [Minors must be so designated, and the names of their guardians, if any, given. The heirs-at-law and next-of-kin may be determined by reference to Chapters 133 and 137 of the Revised Laws.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents of , in the County of , that , who last dwelt in said , died on the day of , in the year of our Lord one thousand nine hundred and , possessed of goods and estate remaining to be administered, leaving as widow — husband — h only heirs-at-law and next of kin, the persons whose names, residences, and relationship to the deceased are as follows, viz. : Name. Residence. Relationship. That said deceased left a will — and codicil — herewith presented, wherein your petitioner named execut Wherefore your petitioner pray that said will — and codicil — may be proved and allowed and letters testamentary issued 544 APPENDIX. to h , and certifies that the statements herein contained are true to the best of h knowledge and belief. Dated this day of , A. d. 19 . , ss. Subscribed and sworn to this day of , A. D. 19 . Before me, Justice of the Peace. The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by publication once a weeic for three successive weeks, the last publication to be one day at least before return day, and by mailing post-paid, or delivering a copy of the citation to all known persons interested in the estate seven days at least before return day. Petition for Probate of Will — without Sureties. [Minors must be so designated, and the names of their guardians, if any, given. Th« heirs-at-law and next-of-kin may be determined by reference to Chapters 133 and 137 of the Revised Laws.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents of in the County of , that , who last dwelt in said , died on the day of in the year of our Lord one thousand nine hundred and , possessed of goods and estate remain- ing to be administered, leaving as widow — husband — h only heirs-at-law and next of kin, the persons whose names, residences, and relationship to the deceased are as follows, viz. : Name. Residence. Relationship. That said deceased left a will — and codicil — herewith presented, wherein your petitioner named execut , and wherein the testat has requested that your petitioner be ex- empt from giving a surety on h bond. PROBATE FORMS. 545 Wherefore your petitioner pray that said will — and codicil — may be proved and allowed and letters testamentary issued to h , without giving a surety on h official bond , and certi- fies that the statements herein contained are true to the best of h knowledge and belief. Dated this day of , A. d. 19 . , ss. Subscribed and sworn to this day of , A. D. 19 . Before me, Justice of the Peace. The undersigned, being all the persons interested in the estate who are of full age and legal capacity, other than credit- ors, and the guardians of persons interested therein, hereby consent that the above-named petitioner be exempt from giving any surety on h bond. Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day, and by mailing post-paid; or delivering a copy of the citation to all known persons interested in the estate seven days at least before return day. Petition for Allowance op Foreign Will and Letters. [R. L. c. 136, §§ 10, 11, 12.] [The petitioner should state that he is Executor, if he is so, and if not, how he is interested.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents of in the County of , and State of , that the last will and testament of , late of , in the County of , and State of , de- ceased, testate, has been duly proved and allowed by the Court in and for the , according to the laws of said State of , a copy of which will, and of the probate thereof, duly authenticated, are herewith produced; that said testat at the time of his decease had estate in said County of , on which said will may operate ; that the same ought to be allowed 36 546 APPENDIX. in this State as the last will and testament of said deceased; that your petitioner is the execut therein named, and therefore pray , that the copy of said will may be filed and recorded in the Registry of Probate in said County of , pursuant to the statute in that case made and provided; and that letters testamentary may be granted thereon to h , and certifies that the statements made in the foregoing petition are true to the best of his knowledge and belief. Dated this day of , A. d. 19 . , ss. Subscribed and sworn to this day ot , A. D. 19 . Before me, Justice of the Peace. Citation by publication once a week for tliree successive weeks, the first publication to be thirty days at least before return day. Petition for Administration with the Will Annexed. [Minors must be so designated, and the names of their guardians, if any, given. The heirs-at-law and next-of-kin may be determined by reference to Chapters 133 and 137 of the Revised Laws. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , that , who last dwelt in , in said County of , died on the day of , in the year of our Lord one thousand nine hundred and , possessed of goods and estate remaining to be administered, leaving as widow — husband — h only heirs-at-law and next of kin, the persons whose names, residences, and relationship to the deceased are as follows, viz. : Name. Residence. Relationship. That said deceased left a will — and codicil — herewith presented, wherein w named execut and has PROBATE FORMS. 547 Whei'efore your petitioner pray tliiit said will — and codicil — may be proved and allowed, and letters of administration with the will annexed, 'issued to h , or some other suitable person, and certifies that the statements herein contained are true to the best of h knowledge and belief. Dated this day of , a. d. 19 . , ss. Subscribed and sworn to this day of , A. D. 19 . Before me, Justice of the Peace. The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day, and by mailing post-paid, or delivering a copy of the citation to all known persons interested in the estate seven days at least before return day. Petition for Administration De Bonis Non with the Will Annexed. To the Honorable the Judge of the Probate Court in and for the Count]] of Respectfully represents of in the County of , that the will of , late of , in said County of , deceased, was duly proA^ed and allowed on the day of , a. d. 19 , in said Court, and that appointed execut thereof, and that said execut has without having fully executed said will and that your petitioner is Wherefore your petitioner pray that he, or some other suit- able person, be appointed administrat with the will annexed of the estate of said deceased not already administered, and 548 APPENDIX. certifies that the statements herein contained are true to the best of h knowledge and belief. Dated this day of , A. d. 19 . , ss. Subscribed and sworn to this day of , A. D. 19 . Before me, Justice of the Peace. The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day, and by mailing post-paid, or delivering a copy of the citation to all devisees and legatees named iu the will seveu days before return day. Administrator's Bond — "without Sureties. [R. L. c. 149, § 1, cl. 2, § 3.] Know all Men by these Presents, That I, , of in the County of . , in the Com- monwealth of Massachusetts, am holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office ; to the true payment whereof I bind myself and my heirs, executors, and administrators by these presents. Sealed with my seal, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , administrat of the estate of , late of , in said County of , deceased, intestate, shall, First, make and return to said Probate Court, within three PROBATE FORMS. 549 months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said administrat j Second, administer according to law all the personal estate of said deceased which may come to the possession of said admin- istrat , or of any person for h , and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by said administrat ; Third, render upon oath a true account of h administration at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order; Fourth, pay to such persons as said Court may direct any balance remaining in h hands upon the settlement of h accounts; and Fifth, deliver h letters of administration into said Court in case any will of said deceased is hereafter duly proved and allowed. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of , ss. 19 . Examined and approved. Judge of Probate Court. I, , the within-named administrat , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Keal Estate, I Personal Estate, % [sign] 550 APPENDIX. Administrator's Bond De Bonis Non — with Sureties. [R. L. c. 149, § 1.] Know all Men by these Presents, That we, , of in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said office ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if tlie above-bounden , administrat of the estate not already administered of , late of said , deceased, intestate, shall, First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said administrat ; Second, administer according to law all the personal estate of said deceased which may come to the possession of said admin- istrat , or of any person for h , and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by said administrat ; Third, render upon oath a true account of h administration at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order; Fourth, pay to such persons as said Court may direct any balance remaining in h hands upon the settlement of h accounts; and PROBATE FORMS. 551 Fifth, deliver h letters of administration into said Court in case any will of said deceased is hereafter duly proved and allowed. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of ss. 19 . Examined and approved. Judge of Probate Court. I, , the within-named administrat , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Real Estate, $ Personal Estate, % [sign] Administrator's Bond De Bonis Non — without Sureties. [R. L. c. 149, §§ 1, 8.] Know all Men by these Presents, That I, , of , in the County of , in the Com- monwealth of Massachusetts, am holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office; to the true payment whereof I bind myself and my heirs, executors, and administrators by these presents. Sealed with my seal, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , administrat of the estate not already 552 APPENDIX. administered of , late of said , deceased, intestate, shall. First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said administrat ; Second, administer according to law all the personal estate of said deceased which may come to the possession of said admin- istrat , or of any person for h , and also the pi'oceeds of any of the real estate of said deceased that may be sold or mortgaged by said administrat ; Third, render upon oath a true account of h administration at least once a year until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order; Fourth, pay to such persons as said Court may direct any balance remaining in h hands upon the settlement of h accounts; and Fifth, deliver h letters of administration into said Court in case any will of said deceased is hereafter duly proved and allowed. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of 8S. 19 . Examined and approved. Judge oj Probate Court. T, , the within-named administrat , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Keal Estate, % Personal Estate, $ . [sign] PROBATE FORMS. 553 Special Administrator's Bond. [R. L. c. 149, § 1.] Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to the said Judge and his successors in said office ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointl}' and severally, by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , special administrat of the estate of , late of said , deceased, shall Make and return to said Probate Court, within three months after h appointment, said Court having so ordered, a true inventory of all the personal estate of said deceased which at tlie time of the making of such inventory shall have come to h possession or knowledge; and, whenever required by said Court, truly account, on oath, for all the estate of said deceased that may be received bj'- h as such special admin- istrat , and deliver the same to any person who mny be appointed execut or administrat of said deceased, or may be otherwise lawfully authorized to receive the same. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of 88. 19 . Examined and approved. Judge of Probate Court. 554 APPENDIX. I, , the withiii-iianied admiiiistrat , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Real Estate, $ Personal Estate, $ . [sign] Public Administrator's Bond. [R. L. c. 138, §§ 6, 7.] Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said office ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , public administrator in and for said County of , administrator of the estate of , late of , in said County of , deceased, intestate, shall First, make and return to said Probate Court, within three months after his appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said administrator; Second, administer according to law all the personal estate of said deceased which may come to the possession of said admin- PKOBATE FORMS. 5 JO istrator, or of any ])erson for hi in, and also the proceeds of any of the x'eal estate of said deceased that may be sold or mortgaged by him; Third, render upon oath a true account of his administration at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order; Fourth, pay the balance of said estate remaining in his hands upon the settlement of his accounts to such persons as said Court may direct; and, when said estate has been fully admin- istered, to deposit with the Treasurer of the Commonwealth the whole amount remaining in his hands; Fifth, upon the appointment and qualification in any case of an executor or administrator as his successor, to surrender into said Court said letters of administration, with an account under oath of his doings therein ; and, upon a just settlement of such account, to pay over and deliver to such successor all sums of money remaining in his hands, and all property, effects, and credits of said deceased not then administered. Then this obligation to be void, otherwise to remain in full force and virtue. Sigued, sealed, and delivered '\ [SEAL. J iu presence of C [sEAL.] ) [seal.] 8s. A. D. 19 . Examined and approved. Judge of Probate Court. I, , the within-named administrat , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Peal Estate, $ Personal Estate, $ . [sign] 556 APPENDIX. Executor's Bond — with Sureties. [R. L. c. 149, § 1.] Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holdeu and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said office; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , execut of the last will and testament of , late of said , deceased, testate, shall : — First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said execut ; Second^ administer according to law and to the will of said deceased all the personal estate of said deceased which may come to the possession of said execut , or of any person for h , and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by said execut ; and Third, render upon oath a true account of h administration at least once a year until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order. PROBATE FORMS. 557 Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of 88. A. D. 19 . Examined and approved. Judge of Probate Court. I, , the within-named execut , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Real Estate, % Personal Estate, $ [sign] Executor's Bond — without Sureties. [R. L. c. 149, § 3.] Know all Men by these Presents, That I, , of , in the County of , in the Com- monwealth of Massachusetts, am holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office ; to the true payment whereof I bind myself and my heirs, executors, and administrators by these presents. Sealed with my seal, and dated the day of , in the year of our Lord one thousand nine hundred and The condition ok this obligation is such, that if the above-bounden , execut of the last will and testament of , late of said , deceased, testate, shall, First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the 558 APPENDIX. making of such inventory shall have come to the possession or knowledge of said execut ; Second, administer according to law and to the will of said deceased all the personal estate of said deceased which may come to the possession of said execut , or of any person for h , and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by said execut j and Thli'd, render upon oath a true account of h administration at least once a year, until h trust is fulfilled, unless h is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order, Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of ss. A. D. 19 . Examined and approved. Judge of Prohate Court. I, , the within-named execut , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Real Estate, % Personal Estate, % [sign] Executor's Bond to pay Debts and Legacies — Residuary. Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and PROBATE FORMS. 559 just sum of dollars, to be paid to said Judge and his suc- cessors in said office; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , execut of the last will and testament of , late of , in said County of , deceased, testate, being residuary legatee in said will, shall pay all debts and legacies of said deceased, and such sums as may be allowed by said Probate Court for necessaries to the widow and minor children of said deceased, Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of ss. A. D. 19 . Examined and approved. Judge of Probate Court. I, , the within-named execut , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Real Estate, % Personal Estate, % [sign] Administrator's Bond — Will Annexed — with Sureties. [R. L. c. 149, § 1.] Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within 560 APPENDIX. tlie Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said office; to the true payment whereof we bind ourseh'es and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand eight hundred and ninety- The condition of this OBLirjATiON IS SUCH, that if the above-bounden , administrat , with the will annexed, of the estate , of , late of said , deceased, testate, shall. First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said administrat ; Second, administer according to law and to the will of said deceased all the personal estate of said deceased which may come to the possession of said administrat , or of any person for h , and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by said administrat ; and Third, render upon oath a true account of h administration at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order; Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered ( in presence of j ss. A. D. 19 . Examined and approved. Jxidge of Probate Court. I, , the within-named administrat , declare that, to the best of my knowledge and belief, the estate and effects of PROBATE FORMS. 561 the within-named deceased do not exceed in value the following- mentioned sums, viz. : Real Estate, $ Personal Estate, $ [sign] Administrator's Bond — Will Annexed — without Sureties. [E. L. c. 149, §§ 1, 3.] Know all Men by these Presents, That I, , of , in the County of , in the Com- monwealth of Massachusetts, am holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office ; to the true payment whereof I bind myself and my heirs, executors, and administrators by these presents. Sealed with my seal, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , admiuistrat , with the will annexed, of the estate , of , late of , in said County of , deceased, testate, shall, First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said administrat ; Second, administer according to law and to the will of said deceased all the personal estate of said deceased which may come to the possession of said administrat , or of an}' person for h , and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by said administrat ; and Third, render upon oath a true account of h administration 36 562 APPENDIX. at least once a yeai', until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order; Then this obligation to be void, otherwise to remain in full force and virtue. Sigued, sealed, and delivered in presence of 8S. A. D. 19 . Examined and approved. Judye of Frobate Court. I, , the within-named administrat , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Real Estate, S Personal Estate, $ . [sign] Administrator's Bond — Will Annexed De Bonis Non — WITH Sureties. [R. L. c. 149,§1.1 Know all Men by these Presents, That we, , of, in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said office; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. PROBATE FORMS. 563 Sealed with our seals, and dated the day of , in the year of our Lord one thousand eight hundred and ninety- The condition of this obligation is such, that if the ahove-hounden , adniinistrat , with tlie will annexed, of the estate not already administered, , of , late of said , deceased, testate, shall, First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said adniinistrat ; Second, administer according to law and to the will of said deceased all the personal estate of said deceased not already administered which may come to the possession of said admin- istrat , or of any person for h , and also the proceeds of any of the real estate of said deceased that may be sold or mort- gaged by said administrat ; and Third, render upon oath a true account of h administration at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of ss. A. D. 19 . Examined and approved. Judfje of Probate Court. I, , the within-named administrat , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Eeal Estate, S Personal Estate, $ [sign] 564 APPENDIX. Guardian's Bond — with Sureties. Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said office; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-boundeu , guardian of j of , in said County of , minor , shall, First, make and return to said Probate Court, at such time as it may order, a true inventory of all the real and personal estate of said ward that at the time of the making of such inventory shall have come to the possession or knowledge of said guardian; Second, manage and dispose of all such estate according to /aw and for the best interests of said ward, and faithfully dis- charge h trust in relation to such estate, and to the custody, education, and maintenance of said ward ; Third, render upon oath at least once a year, until h trust is fulfilled, unless h is excused therefrom in any year by said Court, a true account of the property in h hands, including the proceeds of all real estate sold or mortgaged by h , and of the management and disposition thereof, and also render such account at such other times as said Court may order; and Fourth, at the expiration of h trust, settle h account in said Court, or with said ward, or h legal representatives, and pay over and deliver all the estate remaining in h hands, or PROBATE FORMS. 565 due from h on such settlement, to the person or persons law- fully entitled thereto; Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of ss. A. D. 19 . Examined and approved. Judge of Frobate Court. I, , the within-named guardian, declare that, to the best of my knowledge and belief, the estate and effects of the within-named ward do not exceed in value the following- mentioned sums, viz. : Real Estate, $ Personal Estate, $ . [sign] Guardian's Bond — without Sureties. [B. L. c. 149, §§ 1, 4, 5, 6.] Know all Men by these Presents, That I, , of , in the County of , in the Com- monwealth of Massachusetts, am holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office ; to the true payment whereof I bind myself and my heirs, executors, and administrators by these presents. Sealed with my seal, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , guardian of , of , in said County of , minor , shall, 566 APPENDIX. First, make and return to said Probate Court, at such time as it may order, a true inventory of all the real and personal estate of said ward that at the time of the making of such in- ventory shall have come to the possession or knowledge of said guardian ; Second, manage and dispose of all such estate according to law and for the best interests of said ward , and faithfully dis- charge h trust in relation to such estate, and to the custody, education, and maintenance of said ward ; Third, render upon oath at least once a year, until h trust is fulfilled, unless h is excused therefrom in any year by said Court, a true account of the property in h hands, including the proceeds of all real estate sold or mortgaged by h , and of the management and disposition thereof, and also render such account at such other times as said Court may order; and Fourth, at the expiration of h trust, settle h account in said Court, or with said ward , or h legal representatives, and pay over and deliver all the estate remaining in h hands, or due from h on such settlement, to the person or persons law- fully entitled thereto; Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of 88. A. D. 19 . Examined and approved. Judge of Probate Court. I, , the within-named guardian, declare that, to the best of my knowledge and belief, the estate and effects of the w^ithin-named ward do not exceed in value the following- mentioned sums, viz. : Real Estate, $ Personal Estate, $ . [sign] PROBATE FORMS. 567 Guabdian's Bond — Spendthrift. [R. L. c. 145, § 10 ; c. 149, § 1.] Know all Men bt these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said office ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , guardian of j of , in said County of , a spendthrift, shall. First, make and return tu said Probate Court, at such time as it may order, a true inventory of all the real and personal estate of said ward that at the time of the making of such in- ventory shall have come to the possession or knowledge of said guardian ; Second, manage and dispose of all such estate according to law and for the best interests of said ward, and faithfully dis- charge h trust in relation to such estate, and to the custody and maintenance of said ward ; Third, render upon oath at least once a year, until h trust is fulfilled, unless h is excused therefrom in any year by said Court, a true account of the property in h hands, including the proceeds of all real estate sold or mortgaged by h , and of the management and disposition thereof, and also render sucli account at such other times as said Court may order; and Fourth, at the expiration of h trust, settle h account in said Court, or with said ward, or h legal representatives, and 568' APPENDIX. pay over and deliver all the estate remaining in h hands, or due from h on such settlement, to the person or persons law- fully entitled thereto; Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of ss. A. D. 19 . Examined and approved. Jndge of Probate Court. I, , the within-named guardian, declare that, to the best of my knowledge and belief, the estate and effects of the within-named ward do not exceed in value the following- mentioned sums, viz. : Real Estate, $ Personal Estate, $ [sign] Trustee's Bond — with Sureties. [R. L. c. 149, § 1.] Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said ofSce; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and , PROBATE FORMS. 569 The condition of this obligation is such, that if the above-bounden , trustee of certain estate given in trust for the benefit of , under the will of , late of , ill said County of , deceased, testate, shall, First, make and return to said Probate Court, at such time as it may order, a true inventory of all the real and personal estate belonging to h as such trustee which at the time of the making of such inventory shall have come to h possession or knowledge; Second, manage and dispose of all such estate, and faithfully discharge h trust in relation thereto, according to law and to the will of said testat ; Third, render upon oath at least once a year, until h trust is fulfilled, unless h is excused therefrom in any year by said Court, a true account of the property in h hands, and of the management and disposition thereof, and also render such account at such other times as said Court may order; Fourth, at the expiration of h trust, settle h account in said Court, and pay over and deliver all the estate remaining in h hands, or due from h on such settlement, to the person or persons entitled thereto. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of ss. A. D. 19 . Examined and approved. Judge of Probate Court. I, , the within-named trustee, declare that, to the best of my knowledge and belief, the within-named estate does not exceed in value the following-mentioned sums, viz. : Real Estate, $ . Personal Estate, $ • [sign] 570 APPENDIX. Trustee's Bond — without Sureties. [R. L. c. 149, §§ 1, 4.] Know all Men by these Presents, That I, , of , in the County of , in the Com- monwealth of Massachusetts, am holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office ; to the true payment whereof I bind myself and my heirs, executors, and administrators by these presents. Sealed with my seal, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , trustee of certain estate given in trust for the benefit of , under the will of , late of , in said County of , deceased, testate, shall, First, make and return to said Probate Court, at such time as it may order, a true inventory of all the real and personal estate belonging to h as such trustee which at the time of the making of such inventory shall have come to h possession or knowledge; Second, manage and dispose of all such estate, and faithfully discharge h trust in relation thereto, according to law and to the will of said testat ; Third, render upon oath at least once a year, until h trust is fulfilled, unless h is excused therefrom in any year by said Court, a true account of the property in h hands, and of the management and disposition thereof, and also render such account at such other times as said Court may order; Fourth, at the expiration of h trust, settle h account in said Court, and pay over and deliver all the estate remaining in h hands, or due from h on such settlement, to the person or persons entitled thereto, PKOBATE FOKMS. 571 Then this obligation to be void, otherwise to remain in full force and virtue. Sigued, sealed, aud delivered in preseuce of ss. A. D. 19 . Examined and approved. Judge of Probate Court. I, , the within-named trustee, declare that, to the best of my knowledge and belief, the within-named estate does not exceed in value the following-mentioned sums, viz. : Eeal Estate, $ Personal Estate, $ [sign] Trustee's Bond — Inventory not Required — with Sureties. [R. h. c. 147, § 7.] Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said office ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , trustee of certain estate given in trust for the benefit of , under the will of , late of in said County of , deceased, testate, shall, 572 APPENDIX. First, manage and dispose of all the real and personal estate belonging to h as such trustee , and faithfully discharge h trust in relation thereto, according to law and to the will of said testat ; Second, render upon oath at least once a year, until h trust is fulfilled, unless h is excused therefrom in any year by said Court, a true account of the property in h hands, and of the management and disposition thereof, and also render such account at such other times as said Court may order; Third, at the expiration of h trust, settle h account in said Court, and pay over and deliver all the estate remaining in h hands, or due from h on such settlement, to the person or persons entitled thereto; Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of ss. A. D. 19 . Examined and approved. Judge of Probate Covrt. I, , the within-named trustee, declare that, to the best of my knowledge and belief, the within-named estate does not exceed in value the following-mentioned sums, viz. : Real Estate, $ Personal Estate, S . [sign] Trustee's Bond — Inventory not Required — without Sureties. [R. L.C. 147, §7; c. 149, §4.] Know all Men by these Presents, That I, , of , in the County of , in the Com- monwealth of Massachusetts, am holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court PROBATE FORMS. 573 in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office ; to the true payment whereof I bind myself and my heirs, executors, and administrators by these presents. Sealed with my seal, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , trustee of certain estate given in trust for the benefit of , under the will of , late of , in said County of , deceased, testate, shall, First, manage and dispose of all the real and personal estate belonging to h as such trustee , and faithfully discharge h trust in relation thereto, according to law and to the will of said testat ; Second, render ujion oath at least once a year, until h trust is fulfilled, unless h is excused therefrom in any year by said Court, a true account of the property in h hands, and of the management and disposition thereof, and also render such account at such other times as said Court may order; Third, at the expiration of h trust, settle h account in said Court, and pay over and deliver all the estate remaining in h hands, or due from h on such settlement, to the person or persons entitled thereto; Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of 88. A. D. 19 . Examined and approved. Judge of Probate Court. I, , the within-named trustee , declare that, to the best of my knowledge and belief, the within-named estate does not exceed in value the following-mentioned sums, viz, : Real Estate, $ Personal Estate, $ . [sign] 574 APPENDIX. Petition for Guardianship. [After the name of each minor, state tlie exact date of birth. Notice must be given to the parents, if living, or to the survivor of them, or their assent must be obtained.] To the IlonorahU the Judge of the Probate Court in and for the County of Eespectfully represents , of , in the County of , that there is occasion for the appointment of a guar- dian of born 18 , 18 , 18 , of , in the County of , minor and child of , late of , in the County of , deceased, and , his widow; and your petitioner prays that he, or some other suitable per- son may be appointed to that trust. Dated this day of , A. d. 19 ss. A. D. 19 . Personally appeared the above-named , minor , above the age of fourteen years, and nominated said to be h guardian. Before me, Justice of the Peace. I, the surviving parent of said minor , hereby assent to the granting of the foregoing petition. Citation by publication once a week for tbree successive weeks, the last publication to be one day at least before return day, or by delivering a copy seven days at least before return day. PROBATE FORMS. 575 Petition for Guardianship of Insane, [This application must be made by two or more of the relations or friends of the insane person, or the selectmen, or Mayor and Aldermen, of the place of which he is an inhabitant or resident, or upon which he is or may become chargeable.] To the Honorable the Juilge of the Probate Court in and for the County of Respectfully represent , of , in the County of , that , an inhabitant or resident of , in said County of , is an insane person, and incapable of taking care of h self. Your petitioners therefore pray that , of , or some other suitable person, may be appointed guar- dian of said , agreeably to the law in such case made and provided. Dated this day of , A. d. 19 . Citation by delivering a copy to tlie iusane person fourteen days at least before return day Petition for Guardianship of Spendthrift. [R. L. c. 145, § 7.] [T'he complaint may be made by the relations, or Overseers of the Poor of the place o£ which the spendthrift is an inhabitant or resident.] Tj the Honorable the Judge of the Probate Court in and for the County of Respectfully complain relation of , overseers of the poor of the city of — town of — selectmen of the town of — in said County, that in h judgment, , an inhabitant or resident of , does, by excessive drinking, gaming, idleness, so spend, waste, and lessen h estate, as to expose h self and family to want or suffering; and does also thereby expose said city of — town of , to charge or expense for h and their support. Wherefore he pray , that , of , in County of , or some other suitable person, may be appointed guardian of the person and estate of said , agreeably to the law in such case made and provided. Dated this day of A. d. 19 Citation by serving spendthrift with copy of order fourteen days at least before return day. 576 APPENDIX. Petition fob Guardianship by Foreign Guardian. To the Honorable the Jiuhji; of the Frobate Court in and for the County of Respectfully represents that lie is a resident of , in the State of , that he is the guardian of , a minor, who is a resident of , in said State of , duly appointed on the day of , A. d. 19 , by a Court of competent jurisdiction, to wit :' the Court in and for , and has given a bond and security as such guardian in double the value of the property of such ward, to wit : in the sum of dollars; a full and complete and duly exemplified or authenticated transcript from the records of said Court in and for said , are herewith produced. That h ap- pointment is still in full force, that his ward entitled to property in the said County of , to wit: that a removal of the movable property or estate of said ward out of this Commonwealth will not conflict with the terms or limita- tions attending the right by which the ward owns the same. Wherefore j'our petitioner prays that letters of guardianship of the estate of said ward in this Commonwealth be issued to him, which shall authorize him to care for and manage the real estate of said ward, to collect the rents, issues and profits therefrom, and to demand, sue for, and recover any such property, and to remove any of the movable property or estate of said ward out of this Commonwealth. Petition for Trusteeship — with Sureties. [No notice required for the appointment of a trustee who is designated in a will.] To the Honorable the Judge of the Probate Court in a7id for the County of Respectfully represents , of , in the County of , that , late of , in said County of , deceased, testate, by h last will and testament, duly proved and allowed on the day of , A. d. 19 , in said PROBATE FORMS. 577 Court, did therein give certain estate in trust for the use and benefit of , and appointed , trustee thereof; and that h is willing to accept said trust, and give bond according to law for the faithful discharge thereof; he there- fore pray that he may be appointed trustee as aforesaid, ac- cording to the provisions of the law in such case made and provided. Dated this day of , A. d. 19 . The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day. Petition for Trusteeship — without Sureties. [R. L. c. 149, § i ] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , that , late of , in the County of , deceased, testate, by h last will and testament, proved and allowed on the day of , A. d. 19 , in said Court, did therein give certain estate in trust for the use and benefit of , and appointed trustee thereof, and in and by said will requested that said be exempted from giving a surety on h bond as such trustee , that he willing to accept said trust, and give bond according to law for the faithful discharge thereof; he therefore pray that he may be appointed trustee as aforesaid, and that he may be exempt from giving a surety on h bond , according to the provisions of the law in such case made and provided. Dated this day of , a. d. 19 . 37 578 APPENDIX. Administrator's Bond — with Sureties. [R. L. c. 149, § 1.] Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly hound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said office ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , administrat of the estate of , late of said , deceased, intestate, shall, First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said administrat ; Second, administer according to law all the personal estate of said deceased which may come to the possession of said admin- istrat , or of any person for h , and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by said administrat ; Third, render upon oath, a true account of h administration at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order; Fourth, pay to such persons as said Court may direct any balance remaining in h hands upon the settlement of h accounts; and PROBATE FORMS. 579 Fifth, deliver h letters of administration into said Court in case any will of said deceased is hereafter duly proved and allowed. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of 8S. 19 . Examined and apjiroved. Judge of Probate Court. I, , the within-named administrat , declare that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following-mentioned sums, viz. : Real Estate, $ Personal Estate, $ , Petition for New Bond. To the Honorable the Judge of the Probate Coui't in and for the County of Respectfully represents , of , in the County of , that he is heir-at-law , of , late of said , deceased, and is interested in the estate of the said deceased. that at a Probate Court held at said , on the day of , A. D. 19 , of said , was duly appointed administrat — execut of the estate of said deceased, and gave bond in the sum of dollars, with , of , and , of , as sureties, for the faithful discharge of h trust; that said estate is not fully administered} that said 580 APPENDIX. sureties are not sufficient to ensure the faithful discharge of said trust; the said administrat — execut having Wherefore he prays that said may be required to give a new bond with such sureties and in such sum. as the Court 'nay direct. Dated this day of , A. d. 19 . Personal service on executor, administrator, guardian, or trustee. Administrator's Letter. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the County of , a7id Common- ivealth aforesaid : You are appointed admin istrat of the estate of , late of , in said County of , deceased, intestate. And you are required to make and return to said Probate Court, within three months from the date hereof, a true inven- tory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to your possession or knowledge; To administer according to law all the personal estate of said deceased which may come to your possession, or that of any per- son for you, and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by you; To render upon oath a true account of your administration at least once a year, until j'our trust is fulfilled, unless excused therefrom in any year by said Court; To pay any balance remaining in your hands upon the set- tlement of your accounts to such persons as said Court shall direct; To deliver these letters of administration into said Court in case any will of said deceased shall be hereafter duly proved and allowed ; PROBATE FORMS. 681 And also, within three months, to cause notice of your ap- pointment to be published once in each week for three succes- sive weeks in the , a newspaper published in , and return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. Administrator's Affidavit of Notice of Appointment. [This should be filed in the Registry of Probate immediately after giving the notice.] I, , do testif}' and say that gave notice of ap- pointment to and acceptance of the trust of administrat of the estate , of , late of , in the County of , deceased, within three months from the day of , A. D. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper published in > commencing on the day of , A. D. 19 , and the following is a true copy thereof, viz. : — Kotice is hereby given that the subscriber has been duly appointed administrat of the estate of , late of , in the County of , deceased, intestate, and ha taken upon h self that trust by giving bond , as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to (^Address) ,19 . Adm. Adm. , S8. , A. D. 19 . Personally appeared , and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace* 582 APPENDIX. Administrator's Letter — De Bonis Non. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the County of , and Common' wealth aforesaid : You are appointed administrat of the estate not already- administered of , late of , in said County of , deceased, intestate. And you are required to make and return to said Probate Court, within three months from the date hereof, a true inven- tory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to your possession or knowledge; To administer according to law all the personal estate of said deceased which may come to your possession, or that of any per- son for 3^ou, and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by you ; To render upon oath a true account of your administration at least once a year, until your trust is fulfilled, unless excused therefrom in any year by said Court; To pay any balance remaining in your hands upon the set- tlement of your accounts to such persons as said Court shall direct; To deliver these letters of administration into said Court in case any will of said deceased shall be hereafter duly proved and allowed; And also, within three months, to cause notice of your ap- pointment to be published once in each week for three succes- sive weeks in the , a newspaper published in , and return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Jlegister. PKOBATE FORMS. 583 Administrator's Affidavit of Notice of Appointment — De Bonis Non. [This should be filed in the Registry of Probate immediately after giving the notice.] I, , do testify and say that gave notice of aj> pointment to and acceptance of the trust of administrat of the estate not already administered of , late of , in the County of , deceased, within three months from the day of , A. D. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper published in , commencing on the day of , A. d. 19 , and the following is a true copy thereof, viz. : — Notice is hereby given that the subscriber has been duly appointed administrat of the estate not already administered of , late of , in the County of , deceased, in- testate, and has taken upon h self that trust by giving bond, as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to (Address) , 19 . Adm. Adm. , ss. A. D. 19 . Personally appeared , and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. 584 APPENDIX. Special Administrator's Letter. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of, , in the County of , and Common- wealth aforesaid: You are appointed special administrat of the estate of , late of , in the County of , deceased. And you are required to make and return into said Probate Court, within three months from the date hereof, a true in- ventory of all the goods, chattels, rights, and credits of said deceased which have or shall come to your possession or knowl- edge; and truly account on oath for all the goods, chattels, debts, and effects of said deceased that shall be received by you as such special administrat whenever required by the Probate Court, and deliver the same to whomsoever shall be appointed executor or administrator of the estate of said de- ceased, or to such other person as shall be lawfully authorized to receive the same; and you are authorized to take charge of all real estate of said deceased, collect the rents, and make necessary repairs. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. Public Administrator's Letter. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , Public Administrator in and for said County of These letters of administration upon the estate of , late of , in said County of , deceased, intestate, are hereby granted unto you. PROBATE FORMS. 585 And you are required to make and return to said Probate Court, within three months from the date hereof, a true inven- tory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to your possession or knowledge; To administer according to law all the personal estate of said deceased which may come to your possession, or that of any per- son for you ; and also the proceeds of any of the real estate of said deceased that may be sold by you; To render upon oath a true account of your administration at least once a year, until your trust is fulfilled, unless excused therefrom in any year by said Court; To pay the balance of said estate remaining in j^our hands upon the settlement of your accounts to such persons as said Court may direct; and, when said estate has been fully admin- istered, to deposit with the Treasurer of the Commonwealth the whole amount remaining in your hands; And, upon the appointment and qualification in any case of an executor or administrator as your successor, to surrender into said Court said letters of administration, with an account under oath of your doings therein, and upon a just settlement of such account to pay over and deliver to such successor all sums of money remaining in your hands, and all property, effects, and credits of said deceased not then administered; And also, within three months, to cause notice of your ap- pointment to be published once in each week for three succes- sive weeks in the , a newspaper published in said , and return your affidavit of having given such notice, with a copy thereof, to the Probate Court. "Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. 586 APPENDIX. Public Administrator's Affidavit of Notice of Appointment. [This should be filed in the Registry of Probate immediately after giving the notice.] I, , do testify and say that I gave notice of my ap-^ pointment to and acceptance of the trust of public administrator of the estate of , late of , in the County of , deceased, within three months from the day of , a. d. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper published in , com- mencing on the day of , A. d. 19 , and the fol- lowing is a true copy thereof, viz. : — Notice is hereby given that the subscriber has been duly appointed public administrator of the estate , of , late of , in the County of , deceased, intestate, and has taken upon himself that trust by giving bond as the law directs. All persons having demands upon the estate of said deceased are hereby required to exhibit the same; and all per- sons indebted to said estate are called upon to make pay- ment to (Address) ,19 . Public Adm, Public Adm. , ss. , A. D, 19 . Personally appeared and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. PROBATE FORMS. 587 Executor's Letter. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the County of , and Common' wealth aforesaid : You are appointed execut of the last will and testament of , late of , in said County of , deceased, tes- tate, which will was proved and allowed on the day of , A. D. 19 , by said Court, and is now of record in this Court. And you are required to make and return into said Probate Court, within three months from the date hereof, a true inven- tory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to your possession or knowledge; To administer according to law and to the will of said de- ceased all the personal estate of said deceased which may come to your possession, or that of any person for you, and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by you ; To render upon oath a true account of your administration at least once a year, until your trust is fulfilled, unless excused therefrom in any year by said Court ; And also, within three months, to cause notice of your ap- pointment to be published once in each week for three succes- sive weeks in the , a newspaper published in said , and return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. 588 APPENDIX. Executor's Affidavit of Notice of Appointment. [This should be filed in the Registry of Probate immediately after giving the notice.] I, , do testify and say that I gave notice of my ap- pointment to and acceptance of the trust of execut of the will of , late of , in the County of , deceased, testate, within three months from the day of , A. D. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper published in , com- mencing on the day of , A. d. 19 , and the fol- lowing is a true copy thereof, viz. : — Notice is hereby given that the subscriber ha been duly appointed execut of the will of , late of , in the County of , deceased, testate, and ha taken upon h se that trust by giving bond , as the law directs. All persons having demands upon the estate of said deceased are hereby required to exhibit the same; and all persons in- debted to said estate are called upon to make payment to (Address) ,19 . Execut Execut , 88. , A. D. 19 . Personally appeared and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. PROBATE FORMS. 589 Letter on Foreign Will. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the County of , and Common- ivealth aforesaid: You are appointed execut of the last will and testament of , late of , deceased, testate, which said will was proved and allowed in said State of , and on the day of , A. D. 19 , a copy thereof was required to be filed and recorded in the Registry of Probate of this County, and is now of record in this Court. And you are required to make and return into said Probate Court, within three months from the date hereof, a true inven- tory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to your possession or knowledge; To administer according to law and to the will of said de- ceased all the personal estate of said deceased which may come to your possession, or that of any person for you, and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by you; To render upon oath a true account of your administration at least once a year, until your trust is fulfilled, unless excused therefrom in any year by said Court ; And also, within three months, to cause notice of your ap- pointment to be published once in each week for three succes- sive weeks in the , a newspaper published in said , and return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register, 590 APPENDIX. Executor's Affidavit of Notice of Appointment — Foreign Will. [This should be filed in the Registry of Probate immediately after giving the notice. 1 I, , do testify and say that gave notice of ap- pointment to and acceptance of the trust of execut of the will of , late of , in the County of , deceased, testate, within three months from the day of , A. D. 19 , the time of said appointment, by publishing a notification thereof once' in each week for three successive weeks in the , a newspaper published in , com- mencing on the day of , A. d. 19 , and the fol- lowing is a true copy thereof, viz. : — Notice is hereby given that the subscriber ha been duly appointed execut of the will of , late of , in the County of , deceased, testate, and ha taken upon h self that trust by giving bond , as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to (Address) ,19 . Execut Execut , ss. , A. D. 19 . Personally appeared and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. PROBATE FORMS. 591 Executor's Letter — Kesiduary. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To f of , 171 the County of , and Common' wealth aforesaid: You are appointed execut of the last will and testament of , late of , in the County of , deceased, tes- tate, which will was proved and allowed on the day of , A. D. 19 , by said Court, and is now of record in this Court. And you, being residuary legatee, and having given bond therefor, are required to pay all debts and legacies of said deceased ; And also, within three months, to cause notice of your ap- pointment to be published once in each week for three succes- sive weeks in the , a newspaper published in , and return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Begister. Executor's Affidavit of Notice of Appointment. [This should be filed in the Registry of Probate immediately after giving the notice.] I, , do testify and say that I gave notice of my ap- pointment to and acceptance of the trust of execut of the will of , late of , in the County of , deceased, testate, within three months from the day of , A. D. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper published in , com- 592 APPENDIX. mencing on the day of , A. D. 19 , and the fol- lowing is a true copy thereof, viz. : — Notice is hereby given that the subscriber ha been duly appointed execut of the will of , late of , in the County of , deceased, testate, and ha taken upon h self that^trust by giving bond , as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to (Address) ,19 . Execut Execut , ss. , A. D. 19 . Personally appeared and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. Letter of Administration with Will Annexed. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the County of , and Common- wealth aforesaid : You are appointed administrat with the will annexed of the estate of , late of , in the County of , deceased, testate, which will was proved and allowed on the day of , A. D. 19 , by said Court, and is now of record in this Court. And you are required to make and return to said Probate Court, within three months from the date hereof, a true inven- tory of all the real and personal estate of said deceased which at PROBATE FORMS. 593 the time of the making of such inventory shall have come to your possession or knowledge; To administer according to law and to the will of said de- ceased all the personal estate of said deceased which may come to your possession, or that of any person for you, and also the proceeds of any of the real estate of said deceased that may be sold or mortgaged by you ; To render upon oath a true account of your administration at least once a year, until your trust is fulfilled, unless excused therefrom in any year by said Court; And also, within three months, to cause notice of your ap- pointment to be published once in each week for three succes- sive weeks in the , a newspaper publislied in , and return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Hegister. Administrator's Affidavit of Notice of Appointment — Will Annexed. [This should be filed in the Registry of Probate immediately after giving the notice.] T, , do testify and say that gave notice of ap- pointment to and acceptance of the trust of administrat with the will annexed of the estate of , late of , in the County of , deceased, within three months from the day of , a. d. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper published in , commencing on the day of , A. d. 19 , and the following is a true copy thereof, viz. : — Notice is hereby given that the subscriber has been duly appointed administrat with the will annexed of the estate of , late of , in the County of , deceased, tes- tate, and has taken upon h self that trust by giving bond , 38 594 APPENDIX. as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to (Address) ,19 . Adm. Adm. , ss. , A. D. 19 . Personally appeared and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. Guardian's Letter. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the County of , and Common- wealth aforesaid. You are appointed guardian of minor , with full power and authority to take possession of all real and personal estate of said ward ; and You are required to make and return into said Probate Court, within three months from the date hereof, a true inventory of all the real and personal estate of said ward , which at the time of the making of such inventory shall have come to your pos- session or knowledge; To manage and dispose of all such estate according to law and for the best interests of said ward , and faithfully to dis- charge your trust in relation to such estate, and to the custod}', education, and maintenance of said ward ; To render, upon oath, a true account of the property in your hands, including the proceeds of all real estate sold or mort- gaged by you, and of the management and disposition of all PROBATE FORMS. 595 such property, at least once a year, until your trust is fulfilled, unless excused therefrom in any year by said Court; At the expiration of your trust, to settle your accounts in said Court, or with said ward or h legal representative, and to pay over and deliver all the estate and effects remaining ia your hands, or due from you on such settlement, to the person or persons lawfully entitled thereto. Witness, Judge of said Court, at , this day of , in the year of our Lord one thousand eight hundred and ninety- Begister. Letter of Guardianship to Foreign Guardian. [R. L. c. 145, § 19.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , appointed guardian of , b?/ the Court for the , in said State of You are appointed guardian of the estate of said in this Commonwealth, to wit: with authority to demand, sue for and recover such property, and to remove the same out of said Commonwealth. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. Trustee's Letter. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To You are appointed trustee of the estate given in trust for the benefit of , under the will of , late of , in the County of , deceased, testate, which will was 596 APPENDIX. proved and allowed on the day of A. D. 19 , by said Court, and is now of record in this Court; And you ai-e required to make and return to said Probate Court, within three months from the date hereof, a true inven- tory of all real and personal estate belonging to you as trustee , which at the time of the making of such inventory shall have come to your possession or knowledge; To manage and dispose of all such estate, and faithfully to discharge your trust in relation thereto, according to law and the will of said testat ; To render, upon oath, a true account of the property in your hands, and of the management and disposition thereof, at least once a year until your trust is fulfilled, unless excused there- from in any year by said Court; and At the expiration of your trust to settle your account in said Court, and pay over and deliver all the estate and effects remaining in your hands, or due from you on such settlement, to the person or persons entitled thereto. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Megister. Trustee's Letter, not requiring Inventory. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the County of , and Common- wealth aforesaid. You are appointed trustee of the estate given in trust for the benefit of , under the will of , late of , in said County of , deceased, testate, , which will was proved and allowed on the day of , A. d. 19 , by said Court, and is now of record in this Court; And you are required to manage and dispose of all real and personal estate belonging to you as trustee , and faithfully to PROBATE FORMS. 597 discharge your trust in relation thereto, according to law and to the will of said testat ; To render, upon oath, a true account of the property in your hands, and of the management and disposition thereof, at least once a year, until your trust is fulfilled, unless excused there- from in any year by said Court, and At the expiration of your trust, to settle 3'our account in said Court, and pay over and deliver all the estate and effects remain- ing in your hands, or due from you on such settlement, to the person or persons entitled thereto. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. Notice of the Appointment of an Executor. Notice is hereby given that the subscriber ha been duly appointed execut of the will of , late of , in the County of , deceased, testate, and ha taken upon h sel that trust by giving bond , as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to {Address) ) r'"" ■ ,19 . Notice of the Appointment of a Foreign Executor. Notice is hereby given that the subscriber ha been duly appointed execut of the will of , late of , in the County of , deceased, testate, and ha taken upon h sel that trust by giving bond , and appointing , of , his agent, as the law directs. 598 APPENDIX. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to the subscriber. {Address) ) >■ Execut • , 19 . Notice of the Appointment of an Administrator. Notice is hereby given that the subscriber ha been duly appointed administrat of the estate of , late of , in the County of , deceased, intestate, and h taken upon h sel that trust by giving bond , as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to {Address) Adm. ,19 . Notice of Appointment of a Foreign Administrator. Notice is hereby given that the subscriber ha been duly appointed administrat of the estate of , late of , in the County of , deceased, and ha taken upon h sel that trust by giving bond , and appointing , of , his agent, as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to the subscriber. {Address) Adm. , 19 . probate forms. 599 Notice of Appointment of an Administrator with the Will Annexed. Notice is hereby given that the subscriber ha been duly- appointed administrat with the will annexed of the estate of , late of , in the County of , deceased, tes- tate, and ha taken upon h sel that trust by giving bond , as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same ; and all persons indebted to said estate are called upon to make payment to (Address) Adm. .19 . Notice of Appointment of Foreign Administrator with the Will Annexed. Notice is hereby given that the subscriber ha been duly appointed administrat with the will annexed of the estate of , late of , in the County of , deceased, tes- tate, and ha taken upon h sel that trust by giving bond , and appointing , of , his agent, as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to the subscriber. (Address) Adm. ,19 . Administrator's Affidavit of Notice of Appointment. [This should be filed in the Registry of Probate immediately after giving the notice.] I, , do testify and say that gave notice of ap- pointment to and acceptance of the trust of administrat of the estate , of , late of , in the County of 600 APPENDIX. , deceased, within three months from the day of , A. D. 19 , the time of said appointment, by pub- lishing a notification thereof once in each week for three suc- cessive weeks in the , a newspaper publislied in , commencing on the day of , A. d. 19 , and the following is a true copy thereof, viz. : — Notice is hereby given that the subscriber has been duly appointed administrat of the estate of , late of , in the County of , deceased, intestate, and has taken upon h self that trust by giving bond , as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to (Address) ,19 . Adin. Adm. , ss. , A. D. 19 . Personally appeared and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. Administrator's Affidavit of Notice of Appointment — Agent. [This should be filed in the Registry of Probate immediately after giving the notice.] I, , do testify and say that gave notice of ap- pointment to and acceptance of the trust of administrat of the estate of , late of , in the County of , deceased, within three months from the day of , A. d. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks, in the , a newspaper i)ublished in , com- mencing on the day of , A. d. 19 , and the fol- lowing is a true copy thereof, viz. : — PROBATE FORMS. 601 Notice is hereby given that the subscriber has been duly appointed administrat of the estate of , late of , in the County of , deceased, and has taken upon h self that trust by giving bond , and appointing of his agent, as the law directs. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to the subscriber, (Address) ,19 . Adm. Adin. , ss. A. D. 19 . Personally appeared and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. Executor's Affidavit of Notice of Appointment. [This should be filed in the Registry of Probate immediately after giving the notice.] I, , do testify and say that I gave notice of my appoint- ment to and acceptance of the trust of execut of the will of , late of , in the County of , deceased, testate, within three months from the day of , A. d. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks, in the , a newspaper published in , com- mencing on the day of A. D. 19 , and the follow- ing is a true copy thereof, viz. : — Notice is hereby given that the subscriber ha been duly appointed execut of the will of , late of , in the County of , deceased, testate, and ha taken upon h self that trust by giving bond , as the law directs. 602 APPENDIX. All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to (Address) ,19 . Execut . Execut . , ss. A. D. 19 . Personally appeared , and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace, Executors' Affidavit of Notice of Appointment — Agent. [This should be filed in the Registry of Probate immediately after giving the notice.] I, , do testify and say that I gave notice of my appoint- ment to and acceptance of the trust of execut of the will of , late of , in the County of , deceased, tes- tate, within three months from the day of , A. D. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks, in the , a newspaper published in , com- mencing on the day of , A. D. 19 , and the fol- lowing is a true copy thereof, viz. : — Notice is hereby given that the subscriber ha been duly appointed execut of the will of , late of , in the County of , deceased, testate, and ha taken upon h self that trust by giving bond , and appointing , of his agent, as the law directs. PROBATE FORMS. 603 All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to the subscriber. (Address) ,19 . Execut , Execut , ss. , A. D. 19 . Personally appeared , and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. Administrator's Affidavit of Notice of Appointment — Will annexed. [This should be filed in the Registry of Probate immediately after giving the notice.] I, , do testify and say that gave notice of ap- pointment to and acceptance of the trust of administrat with the will annexed of the estate of , late of , in the County of , deceased, within three months from the day of , A. D. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks, in the , a newspaper published in , commencing on the day of , A. d. 19 , and the following is a true copy thereof, viz. : — Notice is hereby given that the subscriber has been duly appointed administrat with the will annexed of the estate of , late of , in the County of , deceased, tes- tate, and has taken upon h self that trust by giving bond, as the law directs. All persons having demands upon the 604 APPENDIX. estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to (Address) ,19 . Adm. Adm. , ss. , A. D. 19 . Personally appeared , and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. Administrator's Affidavit of Notice of Appointment — Will Annexed — Agent. [This notice should be filed in the Registry of Probate immediately after giving the notice.] I, , do testify and say that gave notice of ap- pointment to and acceptance of the trust of administrat with the will annexed of the estate of , late of , in the County of , deceased, within three months from the day of , A. D. 19 , the time of said appointment, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper published in , commencing on the day of , A. D. 19 , and the following is a true copy thereof, viz. : — Notice is hereby given that the subscriber ha been duly appointed administrat with the will annexed of the estate of , late of , in the County of , deceased, tes- tate, and ha taken upon h self that trust by giving bond , and appointing , of , his agent, as the law directs. All persons having demands upon the estate of said deceased PROBATE FORMS. 605 are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to the subscriber. (^Address) ,19 . Adm. Ad in. , ss. , A. D. 19 . Personally appeared and made oath that the foregoing affidavit by h subscribed is true. Before me, Justice of the Peace. Administrator's Inventory. (The administrator must file the inventory in the Registry of Probate within three months after his appointment.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To Greeting : You are hereby appointed to appraise on oath the estate and effects of , late of , in said County of , de- ceased, which may be in said Commonwealth. When you have performed that service, you will deliver this order, with your doings in pursuance thereof, to , administrat of the estate , of said deceased, that he may return the same to the Probate Court for said County of Witness my hand and the seal of said Court this day of , in the year of our Lord one thousand nine hundred and Register of Probate Court. , ss. , A. D. 19 . Then the above-named ap- praisers personally appeared and made oath that they would faithfully and impartially discharge the trust reposed in them by the foregoing order. Before me, Justice of the Peace. 606 APPENDIX. Pursuant to the foregoing order to us directed we have ap- praised said estate as follows, to wit : Amount of Personal Estate, as per schedule exhibited, $ . Amount of Real Estate, as per schedule exhibited, $ Appraisers. , ss. , A. D. 19 . Then personally appeared , the administrat of said estate, and made oath that the foregoing is a true and perfect inventory of all the estate of said deceased that has come to h possession or knowledge. Before me, Justice of the Peace, Executor's Inventory. [The executor must file the inveutory in the Registry of Probate within three months after his appointment.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To Greeting : You are hereby appointed to appraise on oath the estate and effects of , late of , in said County of , de- ceased, which may be in said Commonwealth. When you have performed that service, you will deliver this order, with your doings in pursuance thereof, to , the execut of the last will and testament of said deceased, that he may return the same to the Probate Court for said County of Witness my hand and the seal of said Court this day of , in the year of our Lord one thousand nine hundred and Register of Probate Court. PROBATE FORMS. C07 , ss. , A. D. 19 . Tlien the above-named ap- praisers personally appeared and made oath that they would faithfully and impartially discharge the trust reposed in them by the foregoing order. Before me, Justice of the Peace. Pursuant to the foregoing order to us directed we have ap- praised said estate as follows, to wit : Amount of Personal Estate, as per schedule exhibited, $ Amount of Real Estate, as per schedule exhibited, $ Appraisers. , ss. , A. D. 19 . Then personally appeared , the execut of the will of said deceased, and made oath that the foregoing is a true and perfect inventory of all the estate of said deceased that has come to h possession or knowledge. Before me. Justice of the Peace. Guardian's Inventory. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To Greeting: You are hereby appointed to appraise, on oath, the estate and effects of , of , in said County of , which ma}'' be in said Commonwealth. When you have performed that service, you will deliver this order, with your doings in pursu- ance thereof, to , guardian of said ward , that he may return the same to the Probate Court for said County of "Witness my hand and the seal of said Court, this day of , in the year of our Lord one thousand nine hundred and Register of Probate Court. 608 APPENDIX. , ss. , A. D. 19 . Then the above-named appraisers personally appeared and made oath that they would faithfully and impartially discharge the trust reposed in them by the foregoing order. Before me, Justice of the Peace. Pursuant to the foregoing order to us directed, we have appraised said estate as follows, to wit : — Amount of Personal Estate, as per schedule exhibited, $ Amount of Real Estate, as per schedule exhibited, $ Appraisers. , ss. , A. D. 19 . Then personally appeared , the guardian of said ward , and made oath that the foregoing is a true and perfect inventory of all the estate of said ward that has come to h possession or knowledge. Before me, Justice of the Peace. Trustee's Inventory. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To Greeting : You are hereby appointed to appraise, on oath, the estate and effects of , late of , in said County of , deceased, which m&y be in said Commonwealth, and which said deceased gave in h will in trust for the benefit of When you have performed that service 3'ou will deliver this order, with your doings in pursuance thereof, to , the trustee under the will of said deceased, that he may return the same to the Probate Court for said County of Witness my hand and the seal of said Court, this day of , in the year of our Lord one thousand nine hundred and Megister of Probate Court. PROBATE FORMS. 609 , 8S. , A. D. 19 . Then the above-named appraisers personally appeared and made oath that they would faithfully and impartially discharge the trust reposed in them by the foregoing order. Before me, Justice of the Peace. Pursuant to the foregoing order to us directed, we have appraised said estate as follows, to wit : — Amount of Personal Estate, as per schedule exhibited, $ Amount of Real Estate, as per schedule exhibited, $ >• Appraisers. , ss. , A. D. 19 . Then personally appeared , the trustee under the will of said deceased, and made oath that the foregoing is a true and perfect inventory of all the estate of said deceased, given and devised as aforesaid, that has come to possession or knowledge. Before me. Justice of the Peace. Petition fob Revocation of Warrant for Appraisal, AND for New Warrant. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , administrat of the estate of , late of , in said County of , deceased, , that at a Probate Court holden at , in and for said county, on the day of , A. D. 19 , a warrant was issued for the appraisal of the estate of said deceased, — that said warrant has been lost or mislaid, and prays that said warrant may be revoked and a new warrant issued for the appraisal of said estate. Dated this day of , A. d. 19 . 39 610 APPENDIX. Insolvency. [T)ie executor or administrator must present with this petition a list of all persons claiming to be creditors of the estate so far as known to him.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , administrat of the estate of , late of , in said County of , deceased, appointed on the day of A. d. 19 , that within three months from his said appointment he caused notice thereof to be given as ordered by the Court, that the debts claimed as owed by the deceased at the time of his death, according to the list hereto appended, amount to $ The necessary funeral expenses, to $ The allowance by the Court for necessaries to the widow, to $ The charges of administration, including future prob- able charges, to $ Amounting in the whole to the sum of $ That all the estate of the deceased known to be charge- able with the payment thereof is as follows, viz. : Real Estate not exceeding in value, S Personal Estate not exceeding m value, $ and other Personal Estate not mentioned in the Inventory, $ Balance, $ And your petitioner believe . that said estate will probably be insolvent, for the reason that ; he therefore pray that two or more fit persons be appointed commissioners to receive and examine all claims of creditors against the estate, and return a list of all claims laid before them, with the sum allowed on each claim, pursuant to the law in such case made and provided. Dated this day of , A. D. 19 Adm. PROBATE FORMS. 611 , ss. , A. D. 19 . Then personally appeared said , and made oath that the above is a correct repre- sentation of the probable condition of said estate, according to the best of h knowledge and belief. Before me, Justice of the Peace. Order to Administrator of Insolvent Estate to Notify Creditors to Present Claims. [R. L. c. 142, § 5.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , administrat of the estate of , late of , in said County, deceased, intestate, represented insolvent : You are hereb}'" ordered to notify the creditors of said insol- vent estate that the Court will receive, hear, and examine all claims of creditors against said insolvent estate at the Probate Court to be liolden at , in and for said County, on , the day of , a. d. 10 , and on , the day of , A. D. 19 , at o'clock in the noon, respectively, that they may then and there present and prove their claims. Six months from the date hereof are allowed to creditors within which to present and prove their said claims. And you are ordered to give at least seven days' written notice, by mail or otherwise, to all known creditors of the time and place of each of said hearings, and cai;se notices to be published in the , a newspaper published in , once in each week for three successive weeks before said first hearing. Claims allowed may be adjusted by finding the net amount due , the date of death of said deceased. You will make return hereof, with your doings hereon, on 612 APPENDIX. or before the date of said first hearing , day of , A. D. 19 . Witness, , Esquire, Judge of said Court, at , this day of , in the year of our Lord one thousand nine hundred and Megister. I have served the foregoing order as therein ordered. , ss. , A. D. 19 . Then personally appeared , and made oath to the truth of the above return by him subscribed. Before me, Justice of the Peace. Form of Administrator's Notice to Creditors of Insolvent Estate. Estate of , late of , in the Counts/ of , deceased, represented insolvent : The Probate Court for said County will receive and examine all claims of creditors against the estate of said , and notice is hereby given that six months from the day of , A. D. 19 , are allowed to creditors to present and prove their claims against said estate, and that the Court will sit to examine the claims of creditors at , on the day of , A. D. 19 , at o'clock in the noon, and at , on the day of , A. d. 19 , at o'clock in the noon. Administrat . PROBATE FOKMS. 613 Insolvent Estate — Warrant to Commissioners. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To You are appointed commissioners to receive and examine all claims of creditors against the estate of , late of , in said County deceased. You are to appoint convenient times and places for your meet- ings, first being sworn to the faithful discharge of your duties, and by mail or otherwise give the administrat and all known creditors (whose names and residences he required to furnish to you fourteen days before your first meeting) at least seven days' written notice of the time and place of each meeting, and cause notice to be published once in each week for three succes- sive weeks in the , a newspaper published in , the last publication to be one day at least before your first meeting. You may examine any claimant on oath (which either of you may administer), and if he refuses to take such oath, or to an- swer fully all questions, you may disallow h claim. If a creditor has security, you will deduct the value thereof from the amount of the claim, and allow the balance only; estimating such value yourselves, unless the same is determined by a sale of the security by agreement between the creditor and adminis- trat ; but if the creditor waives his security, he may prove his whole claim; in either case you will state the facts in your report. Six mouths from the date hereof are allowed to the creditors to present and prove their claims; after which time you will return to said Court, with this commission, a list of all claims presented, whether allowed or not, with the sums you allow on each, computing the net amount due , A. D. 19 , the time of the death of the deceased, with interest on claims expressly bearing interest, and rebate of interest on claims not on interest and not then matured, stating in separate classes : First, debts entitled to a preference under the laws of the United States; Second, public rates, taxes, and excise duties; 614 APPENDIX. Third, wages or compensation to an amount not exceeding one liuudreJ dollars, due to a clerk, servant, or operative for labor performed within one year next preceding the death of such deceased person, or for such labor so performed for the recovery of payment for which a judgment has been rendered; and Fourth, debts due all other persons, — specifying in separate lists, also, those due from the deceased individually, and as a member of any partnership. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. , ss. , A. D. 19 . Then personally appeared the above-named commissioners, and made oath that they would faithfully and impartially execute the duties assigned them by the foregoing warrant. Before me, Justice of tlie Peace. Insolvent Estate — Report of Commissioners. To the Honorable the Judge of the Probate Court in and for the County of The subscribers, commissioners appointed by said Court to examine all claims of creditors against the estate of , late of , in said County, deceased, respectfully report as follows: Having first been sworn, and having given notice according to law and the order of Court, we received and examined all such claims presented to us, and the following is a true list thereof, and of the suras allowed on each: Names of Claimants. [State any finding of Fact which may show that a Claim is preferred.] Nature of Claims. Sums Claimed. Sums Allowed. Sums Disallowed. PROBATE FORMS. 6I5 Form of Commissioneks' Notice to Creditors of Insol- vent Estate. Estate of , late of , in the County of , deceased, ix/j resented insolvent : The subscribers having been appointed by the Probate Court for said County, commissioners to receive and examine all claims of creditors against the estate of said , hereby give notice that six months from the day of , A. D. 19 , are allowed to creditors to present and prove their claims against said estate, and that they will meet to examine the claims of creditors at , on the day of next, at o'clock in the noon. , , A. D. 19 . >- Commissioners. New Commissioner of Insolvent Estate and Extending Time for Allowing Claims. [R. L. c. 142, §§ 6, 9.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , that were appointed commissioners upon the insolvent estate of , late of , in said County of , deceased, , testate, on the day of A. D. 19 , and that said has Wherefore your petitioner prays that a new commissioner may be appointed in place of said , and that the time for taking proof of claims and making returns thereof may be extended. Dated this day of , A. D. 19 616 APPENDIX. Insolvent Estate — Order for Distribution. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , o.dministrat of the estate of , late of in said County, deceased. You are ordered to distribute the balance of dollars, in your bauds, according to your account allowed by said Court, on the day of A. D. 19 , by paying forthwith to the persons and in the amounts hereinafter specified, who, it appears to the Court, are the creditors of said deceased, whose claims have been finally allowed, and are entitled thereto in such pro- portions, retaining in your hands dollars thereof for future charges. You are ordered to give written notice by mail or otherwise, to each of said persons of the amount due him or her, and if any of said sums remain for six months unclaimed, you are directed to deposit the same in the Savings , in the name of the Judge of said Court, for the time being, to accu- mulate for the persons entitled thereto. Within one year after the date hereof, you are required to present to this Court, under oath, a true account of the pay- ments made by you, and of the amounts deposited as aforesaid, together with the original certificates or other evidence of such dejiosit, and also to return this order and the receipts of the persons whom you have paid. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and . Register. PROBATE FORMS. 617 Insolvent Estate — Report on Order for Distribution. The names and amounts to be distrib- We severally acknowledge the re- j . . , J- 1 1 ceipt 01 the sums set against our uted, as aioresaKi, are as lollows: respective names. Names of persons to be paid. I hereby certify that I have paid, according to the foregoing order, all the before-named persons the sums to which they are entitled, as appears by their respective receipts or vouchers, except the sums due to , amounting to dollars, which I have deposited in the Savings , according to the order of Court, and return the evidence thereof herewith. Rule to Auditor. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. A. D. 19 In the matter of the account of , of the of , late of , in said County of , deceased. It is ordered that , of , be, and he hereby is, appointed auditor in the above-mentioned matter, to hear the parties interested, examine vouchers and evidence, and report upon the same to this Court. Judge of Probate Court. Petition to Render Inventory and Account. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , that by a decree of said Court made on the day ,618 APPENDIX. of , A. D. 19 , , of , in the County of , was appointed , and gave bond for the due performance of said trust, and that h ha neglected to file an inventory and to render an account as required by law and the condition of h bond. Your petitioner further represents that h is a party interested in the due administration of said estate. Wherefore h pray that the said ^i^ay be ordered to render to the Court an inventory of said estate and an account of h administration thereof. Dated this , day of , a. d. 19 Order to Eender Inventory or Account. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. Estate of , deceased^ to , of said deceased: You are hereby ordered to render to this Court an inventory account of your administration of said estate , on or before the day of , a. d. 19 , and in default thereof to show cause therefor. Witness my hand and the seal of said Court this day of , in the year of our Lord one thousand nine hundred and Judge of Probate Court. I have served the foregoing order on the above-named by giving h in hand an attested copy thereof. , ss. , A. D. 19 . Personally appeared , and made oath to the truth of the above return by h subscribed. Before me, Justice of the Peace. PKOBATE FOKMS. 619 Distribution — Widow — Husband — Next of Kin — Warrant. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , adminislrat of the estate of , late of , in the County of , deceased : You are ordered to distribute the balance of dollars, in your hands, according to your account allowed by said Court, on the day of , A. D. 19 , by paying forthwith to tlie persons, and in the amounts hereinafter s{)ecified, who, it ajjpears to the Court, are the widow — husband — and next of kin of said deceased, and entitled thereto in such propor- tions, retaining in your hands dollars thereof, for future charges. You are ordered to give written notice, by mail or otherwise, to each of said persons of the amount due him or her, and if any of said sums remain for six months unclaimed, you are directed to deposit the same in the Savings , in the name of the Judge of said Court, for the time being, to accumulate for the persons entitled thereto. Within one year after the date hereof, you are required to present to this Court, under oath, a true account of the pay- ments made by you, and of the amounts deposited as aforesaid, together with the original certificates or other evidence of such deposits, and also to return this order and the receipts of the persons whom you have paid. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. 620 APPENDIX. Distribution — Report. The names and amounts to be distrib- uted, as aforesaid, are as follows : Names of persons to be paid. We severally acknowledge the re- ceipt of the sums set against our respective names. I hereby certify that I have paid, according to the foregoing order, all the before-named persons the sums to which they are entitled, as appears by their respective receipts, except the sums due to , amounting to dollars, which I have deposited in the Savings , according to the order of Court, and return the evidence thereof herewith. Adm. Distribution — Intestate Estate. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , that there is a balance of the estate of , late of , in said County of , deceased, intestate, in the hands of h administrat , which remains to be distributed among h widow and next of kin, whose names, places of residence, and relationship to the deceased are sup- posed, or claimed to be, as follows: Name. Residence. Relationship. Share. Wherefore your petitioner pray that distribution of such balance may be decreed by the Court among such persons as may be proved to be entitled thereto, according to law. Dated this day of , A. D. 19 . PROBATE FORMS. 621 , ss. , A. D. 19 . Then personally appeared , and made oath to the truth of the above representation, according to the best of h knowledge and belief. Before me, Justice of the Peace. Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day. Administrator's Account. [RuLB IX. " No executor or adminiBtrator shall receive any compensation by way of a commission upon the estate by him administered but shall be allowed his reasonable expenses incurred in the execution of his trust, and such compensation for his services as the Court in each case may deem just and reasonable. The account shall contain an itemized statement of the expenses incurred, and shall be accompanied by a statement of the nature of the services rendered, and of such other matters as may be necessary to enable the Court to determine what compensation is reasonable."] The account of , administrat of the estate of , late of , in the County of , deceased. This account is for the period beginning with the day of , A. D. 19 , and ending with the day of , A. D. 19 . Said accountant charge h sel with the several amounts received, as stated in Schedule A, here- with exhibited, $ and ask to be allowed for sundry payments and charges, as stated in Schedule B, herewith exhibited, $ Balance, as stated in Schedule C, herewith exhibited, $ Administrat 621 APPENDIX. The undersigned, being all persons interested, having examined the foregoing account, request that the same may be allowed without further notice. [Citation by delivering a copy to all persons interested iu the estate, four- teen days at least before return day ; or by publication once a week for three successive weeks, the last publication to be at least one day before return day, and by mailing, post-paid, a copy to all known persons interested in the estate, seven days at least before return day.] [Number the items.] Schedule A. N»unber of Item. Date. Amount of personal property, accord- ing to inventory, or Balance of next prior account, Amounts received from income, gain on sale of personal property over appraised value, and from other property, as follows: Dolls. Ct8. Schedule B. Number of Item. Date. Showing payments, charges, losses, and distributions, Dolls, cu. PROBATE FORMS. 623 Schedule C. [TUb schedule contains all items of personal property now in possesdon of the accountant, including cash.] , ss , A. D. 19 . Then appeared the within- named and made oath that the within account is just and true. Before me, Justice of the Peace. Executor's Account. The account of , execut of the last will and testament of , late of , in the County of deceased. This account is for the period beginning with the day of , A.D. 19 , and ending with the day of , A.D. 19 , Said accountant charge h sel with the several amounts received, as stated in Schedule A, here- with exhibited, $ and asks to be allowed for sundry payments and charges, as stated in Schedule B, herewith exhibited, $ Balance, as stated in Schedule C, herewith ex- hibited, S Executor. The undersigned, being all persons interested, having examined the foregoing account, request that the same may be allowed without further notice. [Citation by delivering a copy to all persons interested in the estate, four- teen days at least before return day ; or by publication once a week for three Buccessive weeks, the last publication to be one day at least before return day, and by mailing, post-paid, a copy to all known persons interested in the estate, seven days at least before return day.] 624 APPENDIX. [Number the items.] Schedule A. Number of Item. Date. Dolls. Cts. Amount of personal property, accord- ing to inventory, or Balance of next prior account, Amounts received from income, gain on sale of personal property over appraised value, and from other property, as follows : Schedule B. Number of Item. Date. Dolls. CtB. Showing payments, charges, losses, and distributions, Schedule C. [This schedule contains all items of personal property now in possession of the accountant, including cash.] , ss. , A.D. 19 . Then appeared the within- named and made oath that the within account is just and true. Before me, Justice of the Peace. PROBATE FORMS. 625 Trustee's Account. The account of , trustee under the will of , late of , in the County of , deceased, for the benefit of This account is for the period beginning with the day of , A.D. 19 , and ending with the day of , A.D. 19 . Said accountant charge h sel with the several amounts received, on account of principal, as stated in Schedule A, herewith exhibited, and asks to be allowed for sundry payments and charges, on account of principal, as stated in Sched- ule B, herewith exhibited. Balance of principal invested, as stated in Sched- ule C, herewith exhibited, h also charges h sel with the several amounts received, on account of income, as stated in Schedule D, herewith exhibited, and asks to be allowed for sundry payments and charges, on account of income, as stated in Schedule E, herewith exhibited, Balance of income, Trustee. The undersigned, being all persons interested, having examined the foregoing account, request that the same may be allowed without further notice. [Citation by delivering a copy to all persons interested in the estate, four- teen days at least before return day ; or by publication once a week, for three successive weeks, the last publication to be one day at least before return day, and by mailing, post-paid, a copy to all known persons interested in the estate, seven days at least before return day.] 40 626 APPENDIX. [Number the items.] Schedule A. Number of Item. Date. Amount of personal property, accord- ing to inventory, or Balance of principal, according to next prior account, Amounts received on account of prin- cipal, gain on sale of personal prop- erty, and from other property, as follows : Schedule B. Dolls. CtB. Number of Item. Date. Amounts paid out and charges, on account of principal, as follows : Schedule C. [This schedule contains statement showing how principal is invested.] Schedule D. Dolls. Cts. Number of Item. Date. Dolls. Ota. Balance of income according to next prior account, Amounts received on account of in- come, as follows: PROBATE FORMS. 627 Schedule E. Number of Item. Date. SS. Amounts paid out and charges on account of income, as follows : , A. D. 19 . Then appeared the within- DoIlB. Ct8. named true. and made oath that the within account is just and Before me, Justice of the Peace. Guardian's Account. of The account of , guardian of the County of , minor. This account is for the period beginning with the of , A. D. 19 , and ending with the day of A. D. 19 . Said accountant charge h sel with the several amounts received, as stated in Schedule A, herewith exhibited, and asks to be allowed for sundry payments and charges, as stated in Schedule B, herewith exhibited, Balance, as stated in Schedule C, herewith ex- hibited, day The undersigned, being the foregoing account, request without further notice. Guardian. interested, having examined that the same may be allowed [Citation by delivering a copy to all persons interested in the estate, four- teen days at least before return day ; or by publication once a week for tliree successive weeks, the last publication to be one day at least before return day, and by mailing, post-paid, a copy to all known persons interested in the estate seven days at least before return day.] 628 APPENDIX. [Number the items.] Schedule A. Number of Item. Date. DoUs. Cts. Amount of personal property, accord- ing to inventory, or Balance of next prior account. Amounts received from income, gain on sale of personal property over appraised value, and from other property, as follows: Schedule B. Number of Item. Date. DoUs. Cts. Showing payments, charges, losses, and distributions. Schedule C. [This schedule contains all items of personal property now in possession of the accountant, including cash.] named true. ss. , A.D. 19 . Then appeared the within- and made oath that the within account is just and Before me, Justice of the Peace. pkobate forms. (529 ' Compromise — Arbitration — Petition. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , administrat execut guardian trustee of the estate of , late of , in the County of , deceased, that there is a demand the estate repre- sented by h as such , of , described as follows : that it is probable the same can be adjusted by compromise on the following terms: and it is for the interest of said estate that it be done, or that it be submitted to arbitration. Wherefore he prays that he may be authorized to adjust said demand by compromise, or submit it to arbitration. Dated this day of , a. d. 19 . Petition for Sale of Real Estate — Executors — Administrators. [Public] [A description of the land to be sold, sufficient to identify it, stiould be given.] To the Honorable the Judije of the Probate Court in and for the County of Respectfully represents , of the of , late of , in said County of , deceased. That the debts due from the deceased, as nearly as they can now be ascertained, as shown by the list herewith filed, amount to % The legacies given in said will to $ And the charges of administration to $ Amounting in all to $ That the value of the personal estate in the hands of the petitioner (exclusive of the widow's allowance) is $ That the personal estate is, therefore, insufficient to pay the debts — legacies — of the deceased and the charges of administi-ation, and it is necessary for that purpose to sell some part of the real estate to raise the sum of $ g30 APPENDIX. That the real estate which the petitioner pi'oposes to sell con- sists of the following parcel , to wit: and that by a partial sale thereof the residue would be greatly injured. Wherefore your petitioner prays that he may be licensed to sell the whole of said parcel at public auction for the payment of said debts — lef/uotes — and charges of administration. Dated this day of , a. d. 19 . The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested in the estate four- teen days at least before return day, or by publishing the same once a week for three successive weeks, the last publication to be one day at least before return day. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. A list of debts which appear to be due from the estate of , late of , in said County . deceased. Name of Creditor. p^i^^e^of Busi^eT' Nature of Debt. Security. Amount. Administrat , ss. , A. D. 19 . Then personally appeared , and made oath that the above statement, by h sub- scribed, is true to the best of h knowledge and belief. Before me, Justice of the Peace. PROBATE FORMS. 631 License for Sale of Real Estate — Executors — Administrators. [Public] COMMONWEALTH OF MASSACHUSETTS. , 8s. Probate Court. To , administrat of the estate of , late of , in said County of , deceased : You are licensed to sell at public auction, at aiiy time within one year from the date hereof, the following-described parcel of real estate of said deceased for the payment of h debts — legacies — and charges of administration, to wit: You are required to give public notice of the time and place of such sale, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper pub- lished in , and, within one year after such sale, return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Begister. Affidavit of Sale of Real Estate at Public Auction. [This affidavit should be returned immediately after the sale.] I do testify and say that, being authorized by the Probate Court, for the County of , on the day of , A. D. 19 , to make sale of the real estate hereinafter described of , deceased, for the purposes in the license set forth, I gave public notice of the time and place of sale, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper published in , com- mencing on the day of , A. D. 19 , and the fol- lowing is a true copy of said notice: 632 APPENDIX. COMMONWEALTH OF MASSACHUSETTS. , ss. , A. D. 19 . Then personally appeared , and made oath to the truth of the above affidavit by subscribed. Before me, Justice of the Peace. Petition for Sale of Real Estate — Executors — Administrators. [Private.] [R. L. c. 146, § 9.] [A description of the land to be sold, sufficient to identify it, should be given.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , administrat execut of the of , late of , in said County of , deceased. That the debts due from the deceased, as nearly as they can now be ascertained, as shown by the list herewith filed, amount to $ The legacies given in said will to $ And the charges of administration to % Amounting in all to $ That the value of the personal estate in the hands of the petitioner (exclusive of the widow's allowance) is $ That the personal estate is, therefore, insufficient to pay the debts — legacies — of the deceased and the charges of administration, and it is necessary for that purpose to sell some part of the real estate to raise the sum of $ That an advantageous offer for the purchase of the parcel hereinafter described has been made to your petitioner, to wit, the sum of dollars; PROBATE FOllMS. 633 That the real estate which the petitioner jirojioses to sell con- sists of the following parcel, to wit: And that by a partial sale thereof the residue would be greatly injured, and that the interests of all parties concerned will be best promoted by an acceptance of said offer. Wherefore your petitioner prays tliat he may be licensed to sell at private sale, in accordance with said offer, or upon such terms as may be adjudged best, the whole of said parcel for the payment of said debts — legacies — and charges of administration. Dated the day of , A. d. 19 . The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citatiou by deliveriug a copy to each person interested in the estate four- teen days at least before return day, or by pul)lication once a Aveek for tliree successive weeks, the last publication to be one day at least before return day. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. Estate of , deceased. A list of debts which appear to be due from the estate of late of , in said County , deceased. Name of Creditor. Residence, or Usual Place of Business. Nature of Debt. Security. Administrat , ss. , A. D. 19 . Then personally appeared , and made oath that the above statement, by h sub- scribed, is true to the best of h knowledge and belief. Before me, Justice of the Peace, 634 APPENDIX. License for Sale of Real Estate — Executor or Administrator. [Private.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , aclmin'istrat of the estate of , late of , in said County of , deceased : You are licensed to sell and convey, at private sale, at any time witliin one year from the date hereof, for the sum of dollars, or for a larger sum, the whole of the parcel hereinafter described of the real estate of said deceased, for the payment of h debts and charges of administration, to wit: certain parcel lying iu , in said County of , and described as follows, to wit : But if, notwithstanding, you deem it best to sell the same at public auction, you are required to give public notice of the time and place of such sale at auction, by publishing a notifica- tion thereof once in each week for three successive weeks in the , a newspaper published in , and, within one year after such sale, return your affidavit of having given such no- tice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Eegister. Administrator's Petition for Sale of Eeal Estate — Distribution. [R. L. c. 146, § 18.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , administrat of the estate of , late of , in said County, deceased, intestate, that PROBATE FORMS. 635 said , at the time of his decease, was the owner of certain real estate situate in , in the County of , bounded and described as follows, viz.: the same being all the real estate of said deceased. That the value of the said estate, according to the appraisal now on file in said Court, does not exceed the sum of fifteen hundred dollars ; that it is for the advantage of all parties in- terested that the same be sold for the purpose of distribution; that an advantageous offer for the purchase thereof, to wit, the sum of dollars, has been made to your jjetitioner by , and that the interest of all parties concerned will be best promoted by an acceptance of such offer. Therefore your petitioner pray that he may be licensed to sell the said real estate of said deceased at private sale, in accordance with such offer , or in such manner as the Court may direct, for the purpose of distribution. Dated this day of , A. D. 19 The undersigned, being all persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to all persons interested who can be found within the Commonwealth fourteen days at least before return day , and if any one cannot so he found, by publication once a week for three successive weeks, the last publication to be one day at least before return day. Administrator's License for Sale of Eeal Estate — Distribution. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , administrat of the estate of , late of , in said County^ deceased, intestate. You are licensed to sell and convey, at private sale, for the sum of dollars, or for a larger sum, at any time within 636 APPENDIX. cue year from the date hereof, tlie following-described real estate of said deceased, for the purpose of distribution, namely : But if, notwithstanding, you deem it best to sell said real estate at public auction, j'ou are required to give notice of the time and place of such sale, by publishing a notification thereof once in each week, for three successive weeks, in the , a newspaper published in , and, within one year after such sale, return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. Petition for Sale of Real Estate — Guardian — Maintenance. [Public] [A description of the real estate, sufficient to identify it, must be given, together with its condition, and the reason why it is necessary to sell it.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents guardian of , of , in said County of , minor, that said ward interested in certain real estate, to wit: — that it is necessary that said ward's interest therein be sol for h maintenance, for the reason that the income of h estate is insufficient to maintain h , and that Wherefore said guardian prays that he may be licensed to sell and convey the same, agreeably to the law in such case made and provided. Dated this day of A. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. PROBATE FORMS. 637 [Notice to the overseers of the poor is required only iu cases where the ward is insane or a spendthrift.] The undersigned, overseei-s of the pooi* for the , waive notice and assent to the foregoing petition. Citation by delivering a copy to all persons interested fourteen davs at least before return day, or by publication once a week for three successive weeks, the last publication being one day at least before return day. Notice to Overseers of the Poor of Sale of Real Estate. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. , , A. D, 19 In the matter of the petition of , guardian of , an insane person, praying for license to sell real estate of h ward, now pending in said Court. We, the Overseers of the Poor of , where said ward is an inhabitant or resides, hereby acknowledge due notice of said petition and make no objection to the granting of the prayer thereof. License for Sale of Real Estate — Guardians — Maintenance. [Public] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , guardian of , of , in the County of , viinor . You are licensed to sell, at any time within one j'^ear from the date hereof, the following-described real estate of said ward for h maintenance : And you are required to give public notice of the time and place of sucli sale, by publishing a notification thereof once in each week, for three successive weeks, in the , a news- f|3<^ APPENDIX. paper published in , and, within one year after such sale, return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand eight hun- dred and ninety- RegisteT' Affidavit of Sale of Real Estate — Guardian — Maintenance. I do testify and say that, being authorized by the Probate Court, for the County of , on the day of , A. D. 19 , to make sale of the real estate of minor , for the purposes in the license set forth, I gave public notice of the time and place of sale, by publishing a notification thereof, once in each week, for three successive weeks, in the , a newspaper published in , commencing on the day of A. D. 19 , and the following is a true copy of said notice : Guardian. , ss. , A. D. 19 . Then personally appeared and made oath to the truth of the above affidavit by h subscribed. Before me, Justice of the Peace. Petition for Sale of Real Estate — Guardian's — Maintenance — Private. [A description of the real estate, sufficient to identify it, must be given, together with its condition, and the reason why it is necessary to sell it.] To the Ilonorahle the Judge of the Probate Court in and for the County of Respectfully represents , guardian of , of , in said County of , minor, that said ward interested in certain real estate, to wit : — that an advantageous offer has been made to your petitioner for said ward's share, to wit, the sum of dollars, that the PKOBATE FORMS. g39 interest of all parties concerned will be best promoted by an acceptance of said offer, and that it is necessary that said ward's interest therein be sold for h maintenance, for the reason that the income of h estate is insufficient to maintain h Wherefore said guardian prays that he may be licensed to sell and convey the same, at private sale, in accordance with said offer, or upon such terms as may be adjudged best, agree- ably to the law in such case made and j^rovided. Dated this day of , a. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. [Notice to the overseers of the poor is required only in cases where the ward is insane or a spendthrift. ] The undersigned, being overseers of the poor of , waive notice and assent to the foregoing petition. Citation by delivering a copy to each person interested fourteen days at least before return day, or by publication once a week for three succesfeive weeks, the last publicatiou to be one day at least before return day. License for Sale of Eeal Estate — Guardian — Maintenance. [Private.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , Guardian of , of , in said Comity of , minors : You are licensed to sell, and convey, at private sale for the sum of dollars, or for a larger sum, at any time within one year from the date hereof, the following-described real estate of said ward for h maintenance: But if, notwithstanding, you deem it best to sell said real estate at public auction ; You are required to give public notice of the time and place 640 APPENDIX. of such sale, by publishing a notification thereof once in each week, for three successive weeks, in the , a newspaper published in said , and, within one year after such sale, return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. Petition for Sale of Real Estate — Guardian's — Investment. [Public] [A description of the real estate, sufficient to identify it, must be given, together with its condition, and the reason why it would be for the interest of the ward to have it sold.] 2'o the Honorable the Jadf/e of the Frobate Court in and for the County of Respectfully represents , guardian of , of j in said County of , minor, that said ward interested in certain real estate, to wit: that it will be for the benefit of said ward that h interest therein be sold, and the proceeds thereof put out on interest, or invested in some productive stock, for the reason that Wherefore said guardian prays that he may be licensed to sell and convey the same, agreeably to the law in such case made and provided. Dated this day of , a. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. [Notice to the overseers of the poor is required only in cases where the ward is insane or a spendthrift.] The undersigned, being overseers of the poor of , waive notice and assent to the foregoing petition. Citation by delivering a copy to each person interested fourteen days at lea.st before return day, or by publication once a week for three successive weeks, the last publication to be one day at least before return day. PKOBATE FOKMS. 641 License to Sell Real Estate — Guardians — Invest- ment. [Public] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , guardian of , of , in the County of , minor You are licensed to sell, at anj' time within one year from the date hereof, the following described real estate of said ward and put out the proceeds on interest, or invest the same in some productive stock, And you are required to give public notice of the time and place of such sale, by publishing a notification thereof once in each week, for three successive weeks, in the , a news- paper published in , and, within one year after such sale, return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and jRegister. Affidavit of Sale of Real Estate by Guardian for Investment. [This affidavit should be returned immediately after the sale.] I do testify and say that, being authorized by the Probate Court, for the County of , on the day of , A. d. 19 , to make sale of the real estate of , minor , for the purposes in the license set forth, I gave public notice of the time and place of sale, bj^ publishing a notification thereof, once in each week, for three successive weeks, in the , a newspaper published in , commencing on the dny of , A. D. 19 , and the following is a true copy of said notice : Guardia7i. 41 642 APPENDIX. ss, . , A. D. 189 . Then personally appeared and made oath to the truth of the above affidavit by h subscribed. Before me, Justice of the Peace. Petition for Sale of Real Estate — Guardians — Investment. [Private.] [A description of the real estate, suflScient to identify it, must be given, together with its condition, and the reason why it would be for the interest of the ward to have it sold.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , guardian of , of , in said County of , minor, that said ward inter- ested in certain real estate, to wit: that an advantageous offer has been made to your petitioner for said ward share, to wit: the sum of dollars, that the interest of all parties concerned will be best promoted by an acceptance of said offer, and that it will be for the benefit of said ward that h interest therein be sold, and the proceeds thereof put out on interest, or invested in some productive stock, for the reason that Wherefore said guardian pray that he may be licensed to sell and convey the same in accordance with such offer at private sale, or upon such terms as may be adjudged best, agree- ably to the law in such case made and provided. Dated this day of , A. D. 19 . The undersigned, being all the persons interested, hereby assent to the foregoing petition. [Notice to the overseers of the poor is required only in cases where the ward is insane or a spendthrift.] The undersigned, being overseers of the poor of , waive notice and assent to the foregoing petition. Citation by delivering a copy to each person interested fourteen days at least before return day, or by publication once a week for three successive weeks, the last publication to be one day at least before return day. PROBATE FORMS. 643 License to Sell Real Estate — Guardian — Invest- ment. [Private.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , guardian of , of , in the Comity of , minor : You are licensed to sell and convey at private sale, for the sum of dollars, or for a larger sum, at any time within one year from the date hereof, the following-described real estate of said ward, and put out the proceeds on interest, or invest the same in some productive stock; But if, notwithstanding, you deem it best to sell said real estate at public auction,- — You are required to give public notice of the time and place of such sale, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper pub- lished in , and within one year after such sale return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. Petition foe Sale of Trust Estate — Real or Personal — Trustee. [R. L. c. 147, §§ 15, 16.] [A description of the property to be sold, sufficient to identify it, should be given. Minors and insane persons should be so designated.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , trustee under the will of , late of , in the County of , deceased, testate, for the G-14 APPENDIX. benefit of the persons below named, that he holds as such trustee certain estate, to wit: that the sale, conveyance, and transfer of said estate is necessary and expedient, for the reason that , that an offer of dollars has been made for it, which is its full value; that it is desirable that the proceeds thereof be invested and applied iu the following manner: After diligent search, the following are found to be the only persons known to the petitioner who are or may become inter- ested therein : Name. Residence. Nature of Inteeest. that the only persons now ascertained whose issue, not now m being, may become interested are : Name. Residence. Wherefore your petitioner pray that he may be author- ized to make said sale, conveyance, and transfer at private sale or at public auction, and to make the said investment and appli- cation of the proceeds thereof. Dated this day of , A. D. 19 . The undersigned, being all the persons interested, assent to the above petition. Citation by delivering a copy to each person interested in the estate four- teen days at least before return day, or by publication once a week for three successive weeks, the last publication to be one day at least before retura day. PROBATE FORMS. 645 Sale of Trust Estate — Appointment of Next Friend Guardian for the Case. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. At a Probate Court holden at , in said County, on the day of , in the year of our Lord one thousand nine hundred and In the matter of the petition of , trustee under the will , of , late of , in the County of , for the benefit of , and others. It appearing to said Court tliat there is need therefor, it doth appoint , of , m tlie County of , to appear and act therein as the next friend of all persons not ascertained, or not in being, who are or may become interested in said estate; and it also appearing that , minor , and interested in said case, and ha no legal guardian, it doth appoint , of , in said County of , to be guardian for the case, to appear and act for said minor in the above-mentioned matter. Judge of Probate Court. I hereby accept the above appointment, and Petition for Sale of Personal Estate, [R. L. c. 145, § 35.] To the Honorable the Judge of the Probate Court in and for the County of Kespectfully represents , of , in the County of , that he is interested as , in the estate of , late of , in said County of , deceased ; and that it will be most for the interest of all concerned in said estate that 646 APPENDIX. certain of the personal estate of said deceased, hereinafter named, to wit: should be sold at private sale or public auction. Wherefore h pray that the of said estate may- be ordered by said Court to sell said personal estate at private sale, for a sum not less than dollars, or at public auction. Dated this day of , A. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested fourteen days at least before return day, or by publication once a week for three successive weeks, the last publication to be one day at least before return day. Petition for Sale of Personal Estate by Foreign . [R. L. c. 148, § 3.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the State of , that he is the of the estate of , late of , in the County of , and State of , deceased, duly ap- pointed by the Court in and for said County of , and has been duly qualified and is acting as such . Tliat as such he is entitled to certain personal property situated in said County of , to wit : ■which said corporation ha established or usual place of business in said County of . That there is no executor, administrator, guardian, or trustee appointed in this Common- wealth who is authorized to receive and dispose of such shares or estate, and that your petitioner as such will be liable upon and after the receipt or sale of said shares or estate to account for the same or for the proceeds thereof in said State in which he was appointed. That said died on the PROBATE FORMS. 647 day of , A. D. 19 , and that six months from tlie death of said deceased have expired. And your petitioner prays that he as such be licensed to receive or to sell by public or private sale, on such terms and to such person or persons as he shall think fit, or otherwise to dispose of, and to transfer and convey said shares and estate. Dated this day of A. d. 19 . Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day, and by delivering a copy of the citation to the treasurer of the Commonwealth fourteen days at least before the return day. Petition for Eelease of Right of Dower of an Insane Woman. [R. L. c. 153, § 19.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said County, that he is seized of a certain parcel of real estate situate in , in said County, and described as follows : that he is desirous of conveying said real estate in fee but that his wife, is incompetent, by reason of insanity, to release her right of dower in the same; that the interests of your petitioner require that such conveyance should be made, and that the right of his said wife in said real estate should be released; that He therefore prays that , guardian of said may be authorized and empowered to join him in a conveyance of said real estate for the purpose of releasing her right of dower therein. Dated this day of , A. d. 19 Citation by delivering a copy to each person interested days at least before return day, or by publication once a week for three successive weeks, the last publication to be one day at least before return day. 648 APPENDIX. Petition for Mortgage of Real Estate — Executor — Administrator. [All the heirs of the intestate or their guardians must assent to a mortgage by an administrator.] [A description of the real estate, sufficient to identify it, must be given, and a sworn list of the debts of the deceased should accompany the petition.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , administrat execut of the of , late of , in said County of j deceased, that said deceased died seized of the following des- cribed real estate, viz. : that he desires to mortgage the same to secure the sum of dollars, the amount necessary to be raised thereon for the fol- lowing purposes, viz. : ^lierefore he prays that he may be authorized to mort- gage said real estate for said purposes. Dated this day of , a. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested fourteen days at least before return day, or by publication once a weeii for three successive weeks, the last publication to be one day at least before return day. Petition to Mortgage Real Estate — Guardian. [A description of the real estate, sufficient to identify it, must be given, together with its condition, and the reason why it would be for the interest of the ward to have it mortgaged, and if the object of the mortgage is the payment of debts, a sworn list of debts should accompany the petition.] To the Honorable the Judge of the Probate Court in and for the County of Respectfull}'^ represents , guardian of , of , in said County, minor , that said ward interested in certain real estate, to wit: PROBATE FORMS. 619 that said real estate is valued at dollars; and said wards interest therein is part thereof; that it is necessary to raise the sum of dollars for and that the interests of said wards require that said guardian shall have power to mortgage said real estate to raise said sum for the purpose aforesaid. Wherefore said guardian pray that he may he authorized to mortgage the same agreeably to the law in such case made and provided. Dated this day of , A. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. [Notice to the overseers of the poor is required only in cases where the ward is insane or a spendthrift.] The undersigned, being overseers of the poor of , waive notice and assent to the foregoing petition. Citation by delivering a copy to each person interested fourteen days at least before return day, or by publication once a week for three successive weeks, the last publication to be one day at least before return day. Petition to Mortgage Eeal Estate — Trustee. [R. L, 0. 147, § 18.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , trustee under the will of late of , in said County, deceased, that it will be for the benefit of the trust estate held by h as such trustee that certain of said trust estate, to wit : be mortgaged to raise the sum of dollars for the purpose of 650 APPENDIX. and that the following-named pei-sons only are interested in said estate, namely : Wherefore said trustee Jjray that he may be authorized to mortgage said real estate to the amount aforesaid for the purposes aforesaid, agreeably to tlie law in such case made and provided. Dated this day of A. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by publicatiou once a week for three successive weeks, the last publication to be one day at least before return day ; and by sending a copy properly mailed, postage prepaid, to each of the persons interested in the trust estate, or their legal representatives known to the petitioner, seven days at least before return day. Petition for Separate Support. [The words in italics in the prayer of the petition should be stricken out unless that pait of the prayer is based upon specifications.] To the Honorable the Judrje of the Probate Court in and for the County of Respectfully represents , of , in the County of , that she is the lawful wife of , of said , that her said husband fails, without just cause, to furnish suitable support for her, and has deserted her; and that she is living apart from her said husband for justifiable cause, and she herein sets forth the following specifications: that there ha been born to them the following children: Wherefore your petitioner prays that said Court will, — hy its order, prohibit her said husband from imjiosing any restraint on her personal liberty, and — make such order PROBATE FORMS. 651 as it deems expedient concerning her support, and tlie care, custody, and maintenance of said minor children. Dated this day of , A. d. 19 Citation by delivering the respondent a copy fourteen days at least before return day, if lie may be found within the Coiunionwealtli ; or if he shall not be s'o found, by delivering to him such copy wherever found, or by leaving it at his usual place of abode, or by mailing the same to him at his last known post-office address, fourteen days at least before return day ; and also, unless it shall lie made to appear to the Court by affidavit that he has had actual notice of the proceedings, l)y publication once a week, for three successive weeks, the last publication to be one day at least before return day. Separate Support — Order of Notice a-^d Attachment. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. On the petition of , of , in said Count}', the wife of , of said , representing that her said husband fails without just cause to furnish suitable support for her, and praying that said Court will, by its order, prohibit her said husband from imposing any restraint on her personal liberty, and make such oi'der as it deems expedient concerning her support, and the care, custody and maintenance of the minor children of herself and her said husband, and also pray- ing that an attachment of the goods and estate of her said husband may be made to secure the decree which said petitioner may obtain for such support, and especially his goods and estate in the hands and possession of , trustee of her said husband, it is ordered that the petitioner give notice to the said to appear at a Probate Court to be held at , in said County of , on the day of , A. D. 19 , at ten o'clock in the forenoon, by delivering to him a copy of this order fourteen days at least before said Court, if he may be found within this Commonwealth, that he may then and there show cause, if any he has, why the prayer of said petition 652 APPENDIX. should not be granted; or, if he shall not be so found, by delivering to him such copy wherever found, or by leaving such copy at his usual place of abode, or by mailing the same to him at his last known post-office address fourteen days at least before said Court; and also, unless it shall be made to appear to the Court by affidavit that he has had actual notice of the proceedings, by publishing the same once in each week for three successive weeks in , a newspaper published in , the last publication to be one day at least before said Court. And in order to secure to the petitioner, and to such children as may be committed to her care and custody, a suitable support and maintenance, the sheriffs of the several counties, or either of their deputies, are hereby directed to attach the real and personal estate of the said to the amount of dollars, and especially his goods, effects, and credits in the hands and possession of the said trustee ; and to summon the said trustee if h be found in his precinct, by serving h with an attested copy of this order fourteen days at least before said return day, to appear before said Court, to be held as aforesaid, to show cause, if any h ha why execution to be issued upon such decree as the said Court may make in favor of said petitioner (if any) should not issue against the goods, effects, and credits of the said in the hands and possession of the said supposed trustee . Witness, , Esquire, Judge of said Court, this day of , in the year one thousand nine hundred and Register. I have served the within citation by , ss. , A. D. 19 . Personally appeared and made oath to the truth of the above return by h subscribed. Justice of the Peace. PROBATE FOKMS. 653 Separate Support — Execution. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To the Sheriffs of our several Counties, or their Deputies, or any Constable of the City of in said County : Greeting : Whereas, on the petition of , of , in said County of , wife of , of said , said Court, by its de- cree made on the day of , A. d. 19 , ordered said to pay said , for the support of herself and the maintenance of minor children, the sum of dollars, forth- with, and a further sum of dollars on each and every thereafter; and whereas, iinder said decree, there now remains due and unpaid the sum of dollars, whereof ex- ecution is requested to be done; and whereas, on the day of , A. D. 19 , it was ordered by said Court that execu- tion issue for the sum of dollars. You are hereby commanded, therefore, that of the goods, chattels, or lands of the said , within your precinct, you cause to be paid and satisfied unto the said , at the value thereof in money, the sum of dollars, with interest thereon from said , and thereof also to satisfy yourself for your own fees ; and for want of goods, chattels, or lands of the said , to be by him shown unto you, or found within your precinct, to the acceptance of the said petitioner to satisfy the sums aforesaid, with interest as aforesaid, you are commanded to take the body of said , and him commit unto our jail in , in our County of , or any jail in your precinct, aforesaid, and him detain in your custody within our said jail until he pay the full sum of dollars, with interest and your fees as aforesaid, or that he be discharged by the said peti- tioner, or otherwise by order of law. Hereof fail not, and make 654 APPENDIX. return of this writ, with your doings therein, into the Registry of Probate at , in said County of , in sixty days after the date hereof. Witness, , at , the day of , in the year of our Lord one thousand nine hundred and Register. Separate Support — Capias. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To the Sheriff of our Coxinty of , or either of his Deputies, or any Constable of the City of in said County : Greetixg : Whereas, , of , in said County of , was duly ordered to appear before said Probate Court, on the day of , A. D. 19 , at ten o'clock in the forenoon, then and there to show cause, if any he had, \c\\y he should not be held to be in contempt of said Court in not obeying its decree dated , A. D. 19 , wherein he was ordered to pay certain sums fur the support and maintenance of his wife and minor child , from which said day of , the consideration of said case was continued from time to time to this day of , A. D. 19 , and hath neglected to appear, in contempt of said Court. You are hereby commanded to apprehend the body of the said (if he may be found in your precinct), and bring him before said Court, at , on the day of , A. D. 19 , at ten o'clock in the forenoon, that he may submit himself to an examination according to law; and also to answer for his contempt in not obeying the aforesaid decree of said Court, and in not appearing according to a summons served on him agreeably to law. Hereof fail not, and make due return of this precept, with your doings herein. Witness, , Esquire, Judge of said Court, at , this day of , in the year of our Lord one thousand nine hundred and Register. probate forms. 655 Separate Support — Mittimus for Contempt. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To the Sheriff oj our County of , his Deputies, and the Keeper of the Jail at , i?i our Count// of Greeting : Whereas, by the consideration of our Probate Court holden at , within and for the County of , on the day of , in the year of our Lord one thousand nine hundred and , now in custody of , one of said deputies, was ordered to pay certain sums for the support of his wife , and their minor children intrusted to her care, and for the costs and expenses of his said wife in maintaining her suit therefor; and it appearing that the full and just sum of dollars has become due and j)ayable under and by virtue of said order, and that the said neglects and refuses to pay the same; and it further appearing that the said is guilty of contempt of Court in his said neglect and refusal. You and each of you, the said sheriff and deputies, are there- fore hereby commanded, in the name of the Commonwealth of ]\[assachusetts, forthwith to take the said , and him carry to the said jail and him deliver to the keeper thereof, together with an attested copy hereof, and thereafterward forthwith to return this warrant, with your doings thereon, into said Court. And you, the said keeper, are alike commanded to receive said into your custody in said jail, and him there safely keep until he shall purge himself of his said contempt by pay- ment of the sum of dollars, and the costs of serving this precept, or until the further order of this Court, or until he be otherwise discharged by due course of law. Witness, , Esquire, at , this day of , in the year of our Lord one thousand nine hundred and Register. 656 APPENDIX. , SS. , A. D. 19 . Pursuant to the warrant, I have taken and conveyed the above-named to the jail in , in said County, and delivered him and a copy of this warrant to the keeper thereof. Dejjuty Sheriff. Petition ox Desertion and Living Apart. [R. L. c. 153, §§ 33, 36.] To the Honorable the Judge of the Prolate Court in and for the County of Respectfully represents , of j in the County of , that she is the lawful wife of , of said , that lur said husband fails, without just cause, to furnish suit- able support for her, and has deserted her, and that your peti- tioner, for justifiable cause, is actually living apart from her said husband, and that there have been born to them the fol- lowing children: She further represents that she has need to be relieved of the disabilities of coverture so far as to be enabled to dispose of her personal and real estate without her husband's written consent, in the same manner and with the same effect as if she were sole. Wherefore she prays that said Court, after due notice to her said husband and full consideration of the premises, will enter a decree establishing the fact of such desertion, and that such living apart from her husband is on her part for justifiable cause. Dated this day of , A. d. 19 . Citation by delivering the respondent a copy fourteen days at least before return day, if he may be found within the Commonwealth ; or, if he shall not be so found, by either leaving such copy at his usual place of abode, or by mailing such copy to his last known post-office address ; and also, unless it shall be made to appear to the Court by affidavit, that he has had actual no- tice of the proceedings, by publication once a week for three successive weeks, the last publication to be one day at least before return day. PROBATE FORMS. > €57 Petition for Custody of Children. [R. L. c. 153, § 37.] To the Honorable the Judye of the Probate Court in and for the County of Respectfully represents , of , iu the County of , that he is the lawful wife — husband — of , of said , and that your petitioner and said are actu- ally living apart from each other; that children have been born to them who are now living, and whose names and dates of birth are as follows : Your petitioner further represents that the happiness and welfare of said children, who are minors, require that he should have custody and possession of them. Wherefore he prays that said Court will make such order as it deems expedient concerning the care, custody, education, and maintenance of said minor children, and order that they remain with your petitioner. Dated this day of , a. d. 19 . Citation by deliveriug a copy to the respondent days before return day. Petition for Adoption and Change of Name. To the Honorable the Judge of the Probate Court in and for the Coiinty of Respectfully represents , of , in said County, and , his wife, that they are of the age of twenty- one years or upwards, and are desirous of adopting , of , a child of , of , in the County of , and , his wife, which said child was born in , on the day of , A. d. 19 ; that 42 658 APPENDIX. Wherefore he pray for leave to adopt said child, and that h name may be changed to that of Dated this day of , A. d. 19 . The undersigned, being the of said child, hereby con- sent to the adoption, as above prayed for. I, the child above-named, being above the age of fourteen years, hereby consent to the adoption as above prayed for. Citation by delivering to the parties interested a copy seven days at least before return day, or, if they be not found within the Commonwealth, by publication once a week for three successive weeks, the last publication to be seven days at least before return day. Petition for Change of Name. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said County, that he was born in , in the County of , and State of , on the day of , A. D. 19 , that he has heretofore resided in the following places only : that h occupation is that of a , and that he wishes to change h name to that of , for the reason that Wherefore your petitioner prays that h name may be changed, and that he may take the name of , as afore- said. Dated this day of , a. d. 19 . Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day. PROBATE FORMS. 659 Change of Name ^ Copy of Decree. COMMONWEALTH OF MASSACHUSETTS. At a Probate Court holden at in and for said County of , on the day of , in the year of our Lord one thousand nine hundred and : Oil the petition of , of , in said County, praying that h name may be changed to that of , public notice having been given, according to the order of Court, that all persons might appear and show cause, if any the}' had, why the same should not be granted, and it appearing that the reason given therefor ■ sufficient, and consistent with the public in- terest, and being satisfactory to the Court, and no objection being made. It is decreed that h name be changed, as prayed for, to that of , which name h shall hereafter bear, and which shall be h legal name, and that he give public notice of said change by publishing this decree once- in each week for three successive weeks in the , a newspaper published in said , and make return to this Court under oath that such notice has been given. Judge of Probate Court, I have caused the above to be published as ordered. , ss. A. D. 19 . Personally appeared and made oath that the above return by h subscribed is true. Before me, Justice of the Peace. QQQ APPENDIX. Change of Name — Certificate. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. By virtue of the power and authority vested in me, I, , Esquire, Judge of the Probate Court in and for said County, hereby certify that at a Probate Court holden at , in and for said County, on the day of , a. D. 19 , on h application, and after due public notice thereof, and for suffi- cient reason consistent with the public interest, and satisfactory to said Court, the name of , of , was changed to that of , that public notice of such change has been given, according to the order of Court, and that he shall hereafter bear said name of , which shall be h legal name. In witness whereof, I have hereunto set my hand, and caused the seal of said Court to be affixed, at , this day of , in the year of our Lord one thousand nine hundred and Judge of Probate Court. Countersigned, JKegister. Petition for Assignment of Homestead. [The names of the guardians of minors interested should be stated.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said County of , that , late of , in said County of , deceased, testate, whose estate is settled in this Court, died seized of certain lands in this Commonwealth; that she is his widow, and entitled to an estate of homestead in said lands; that her right is not disputed by the heirs; and that the PROBATE FOKMS. 661 names aud residences of all parties now interested therein are as follows: Wherefore she prays that her estate of homestead in said lands may be assigned to her by said Court, as provided by law. Dated this day of , a. d. 19 . The undersigned, being the only persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested fourteen days at least before return day, or by publication once a week for three successive ■weeks, the last publication to be one day at least before return day. Assignment of Homestead — Warrant — Report. COMiMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To You are appointed commissioners to set off an estate of home- stead to , widow of , late of , in said County, deceased. First, being sworn, you will give notice to all persons inter- ested of the time and place appointed by you for setting off said homestead, and you will set off to said widow, by metes and bounds, an estate of homestead to the extent in value of eight hundred dollars in the lot of land and buildings thereon owned or rightly possessed and occupied as a residence by said deceased. You will cause all persons interested, who are satisfied with your doings, to certify the same on your report, and will return this warrant, with your doings thereon, as soon as may be to said Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred aud Register. 662 APPENDIX. , ss. , A. D. 19 . Then personally appeared the three commissioners above named, and made oath that they would faithfully and impartially execute the duties assigned them by the foregoing warrant. Before me, Justice of the Peace. To the Honorable the Judge of the Probate Court in and for the County of Pursuant to your warrant to us directed, dated , A. d. 19 , we, the commissioners therein named, having been first sworn, according to law, and given notice to all persons inter- ested as therein directed, have appraised and set off to , widow of , late of , deceased, an estate of homestead to the value of eight hundred dollars, bounded and described as follows : Commissioners. The undersigned, being all the persons interested in the fore- going report, hereby assent thereto, and request that the same be confirmed without further notice. Petition for Assignment of Dower. [The names of guardians of minors interested should be stated. If part of the land of the deceased lies in common with others, and the widow wishes her dower set off in that also, she must have partition made by like proceedings required by Revised Laws, c. 184, § 44. This may be done by annexing to the petition a description of such land, the de- ceased's share therein, and the names of the co-tenants, and by referring thereto in the petition, and varying tlie prayer accordingly.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said County, that , late of , in said County of , deceased, testate, whose estate is settled in this Court, died seized of certain lands in this Commonwealth; that she is PROBATE FORMS. 663 his widow and entitled to dower in said lands; that her right is not disputed by the heirs; and that the names and resi- dences of all parties now interested therein are as follows: Name. Residence. Wherefore the petitioner prays that her dower in said land may be assigned to her by said Court, as provided by law. Dated this day of , A. D. 19 , The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested fourteen days at least before return day, or by publication once a week for three successive weeks, the last publication being one day at least before return day. Assignment of Dower — Warrant — Report. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To You are appointed commissioners to set off the dower of , widow of , late of , in said County, de- ceased, which she is entitled to in the lands of which he died seized in this Commonwealth. First, being sworn, you will give notice to all persons inter- ested of the time and place appointed by you for setting off said dower, and You will set off to said widow, by metes and bounds, her dower in all the real estate of which said deceased died seized in this Commonwealth, if it can be so done without damage to the whole estate; But if the estate out of which dower is to be assigned, consists of a mill or other tenement which cannot be divided without damage to the whole, you will assign to said widow her 664 APPENDIX. dower of the rents, issues or profits thereof, to be had and received by her as teuant-in-coraraon with the other owners of the estate. You will cause all persons interested, who are satisfied with your doings, to certify the same on your report, and will return this warrant, with your doings thereon, as soon as may be, to said Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. , ss. A. D. 19 . Then personally appeared the three commissioners above named, and made oath that they would faithfully and impartially execute the duties assigned them by the foregoing warrant. Before me, Justice of the Peace. To the Honorable the Judge of the Probate Court in and for the County of Pursuant to your warrant to us directed, dated , A. d. 19 , we, the commissioners therein named, having been first sworn, according to law, and given notice to all persons inter- ested as therein directed,, have appraised all the real estate in this Commonwealth of which , late of , in said County died seized, as follows : >• Commissioners. The undersigned, being all persons interested in the foregoing report, hereby assent thereto, and request that the same be con- firmed without further notice. PROBATE FOKMS. 665 Petition for Assignment of Real Estate in Fee. [Superseded by R. L. chapters 132, 135, 140.] [The names of the guardians of minors interested must be stated. If part of the land of the deceased lies in common with others, that fact must be stated, and a de.scription of such land, the deceased's sliare therein, and the names of the co-tenants inserted in or annexed to the petition.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said County of , that , late of , in said County of , deceased, intestate, leaving no issue living, died seized of certain real estate in this Commonwealth, that is h widow and entitled to said estate in fee to an amount not exceeding five thousand dollars in value j and that the names and residences of all other persons now interested therein are as follows : Name. Residence. Wherefore he prays that said estate of said deceased to an amount not exceeding five thousand dollars in value may be assigned and set out to h in fee by said Court, as provided by law. Dated this day of , A. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested who can be found within the Commonwealth fourteen days at least before return day, and if any one can not so be found, by publication once a week for three successive weeks, the last publication to be one day at least before return day. QQQ APPENDIX. Assignment of Real Estate in Fee — Warrant — Eeport. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To You are appointed commissioners to assign and set off in fee, by metes and bounds, to , widow of , late of , in said- County, deceased, the real estate of which said died seized in this Commonwealth to an amount not exceeding five thousand dollars in value. First, being sworn, you will give notice of the time and place appointed by you for making the assignment to all persons in- terested who are known and within the Commonwealth, and to the agent of any absent heir, appointed by the Court, that they may be present. The names and residences of all parties interested are as follows : You will appraise all said real estate, and you will make as- signment thereof to the amount aforesaid, according to law. You will cause all parties who are satisfied with your doings to certify the same on your report, and make return of your doings, together with this warrant, as soon as may be to this Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. , ss. , A. D. 19 . Then personally appeared the three commissioners above named, and made oath that they would faithfully and impartially execute the duties assigned them by the foregoing warrant. Before me, Justice of the Peace. PROBATE FORMS. 667 [The report will not be confirmed unless all parties interested have assented in writing thereto, or have been duly cited and had an opportunity to be heard thereon, and when con- firmed a certified copy should be recorded in the Registry of Deeds.] To the Honorable the Judge of the Probate Court in and for the County of Pursuant to your warrant to us directed, dated , a. d. 19 , we, the commissioners therein named, having been first sworn, according to law, and having given notice to all persons interested, as therein directed, have appraised all the real estate in this Commonwealth, of which , late of , in the County of , died seized, as follows : >• Commissioners, The undersigned, being all the persons interested, hereby assent to the foregoing report, and request that the same be con- firmed without further notice. Petition for Assignment of Widow's Life Estate. [P. S. 124, § 10] [The petitioner's estate of Jv'J.OOO in fee must first be set off.] [The names of the guardians of minors Interested should be stated. If part of the land of the deceased lies in common with others, and the widow wishes her life estate set off in that also, she must have partition made by like proceedings required by R. L. c. 184, § 44. This may be done by annexing to the petition a description of such land, the deceased's share therein, and tlie names of the co-tenants, and by referring thereto in the petition, and varying the prayer accordingly.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said County, that , late of , in said County of , de- ceased, testate, whose estate is settled in this Court, died seized of certain lands in this Commonwealth; that she is his widow, and entitled during her life to one-half of his real estate other than that taken by her in fee ; that her right is not disputed by the heirs or devisees ; and that the names 608 APPENDIX. and residences of all persons now interested therein are as follows : Name. Residence. Wherefore she prays that her said estate may be assigned to her by said Court, as provided by law. Dated this day of , A. D. 19 . The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested fourteen days at least before return day, or by publication once a week for three successive weeks, the last publication being one day at least before return day. Assignment of Widow's Life Estate — Warrant — Report. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To You are appointed commissioners to set off to , widow of , late of , in said County, deceased, during her life, one-half of the real estate of which he died seized in this Commonwealth, other than that taken by her in fee. First, being sworn, you will give notice to all parties inter- ested of the time and place appointed by you for setting off one- half of said estate, and You will set off to said widow, by metes and bounds, one-half of all the real estate of which said deceased died seized in this Commonwealth, other than that taken by her in fee, if it can be so done without damage to the whole estate. But if the estate out of which one-half is to be assigned con- sist of a mill, or other tenement, which cannot be divided with- out damage to the whole, you will assign to said widow one-half PROBATE FORMS. 669 of the rents, issues, or profits thereof, to be had and received by her as a tenant-in-common with the other owners of the estate. You will cause all persons interested, who are satisfied with your doings, to certify the same on your report, and will return this warrant, with your doings thereon, as soon as may be to said Probate Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. , ss. , A. D. 19 . Then personally appeared the three commissioners above named, and made oath that they would faithfully and impartially execute the duties assigned them by the foregoing warrant. Before me. Justice of the Peace. To the Honorable the Judge of the Probate Court in and fur the County of Pursuant to your warrant to us directed, dated , A. D. 19 , we, the commissioners therein named, having been first sworn and given notice to all persons interested, as therein directed, have appraised all the real estate of which , late of , in said County, died seized in this Commonwealth, as follows : >- Commissioners. The undersigned, being all the persons interested in the fore- going report, hereby assent thereto, and request that the same be confirmed without further notice. 670 APPENDIX. Partition of Rkal Estate — Among Heirs. [The names of the guardians of minors, who are interested parties, must be stated ; and parties absent from the State must have agents, appointed by the Court to act for them. If part of the land of the deceased lies in common with others, and the petitioner wishes that divided also, he must follow the directions of Revised Laws, c. 184, § 44. This may be done by annexing to the petition a description of siich land, the deceased's shares therein, and the names of the co-tenants, and by referring thereto in the petition, and varying the prayer accordingly.] To the Honorable the Judge of the Probate Court in and for the County of Kespectfully represents , of , in the County of , that h interested in the real estate lying in this Commonwealth, of , late of , in said County of , deceased, testate, whose estate is in course of set- tlement in said Court, claiming to hold as of said deceased undivided part or share , which he wish to hold in severalty : That the names and residences of all the other persons now interested, and their respective shares and proportions thereof, are as follows, and are not in dispute nor uncertain: Name. Residence. Share. Wherefore your petitioner pray that partition may be made of all the real estate aforesaid, according to law. Dated this day of , A. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested who can be fojind within the Commonwealth fourteen days at least before return day, and if any cannot so be found, by publication once a week for three successive weeks, the last publication being one day at least before return day. PROBATE FORMS. 671 Appointment of Agent for Absent Persons. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To ) of , in said County. In the matter of the partition of real estate on the petition of It appearing that interested in the premises absent from this Commonwealth. You are appointed agent to act for said in all things relating to said partition. Dated this day of , A. d. 19 Judge of Probate Court. Partition — Notice by Commissioners. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To all persons interested in the petition of , of , in the County of , noio pending in this Court, and to their agents, appointed by this Court. Whereas the undersigned have been ajipointed Commissioners by this Court to You are hereby notified to appear before them at , in said County of , on the day of , a. d. 19 , at o'clock in the noon, where they will meet to Dated this day of , a. d. 19 V Commissioners. 1 have served the foregoing notice this day by mailing, post- G72 APPENDIX. paid, a copy thereof to the following persons, at the following addresses : , ss. A. D. 19 . Then personally appeared and made oatli to the truth of the above return by h subscribed. Before me, Justice of the Peace. Partition of Real Estate among Heirs — Warrant — Report. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To You are appointed commissioners to make partition of all the real estate of , late of , in said County, deceased, lying within this Commonwealth, which any party interested requires to have included in the partition, among the of said deceased, whose names and shares are as follows : First, being sworn, you will give notice of the time and place appointed by you for making the partition, to all persons interested who are known and within the Commonwealth, and to the agent of any absent heir appointed by the Court, that they may be present. You will appraise all the real estate of which said deceased died seized in this Commonwealth, which any party interested as aforesaid desires to have included in the partition, and you will make partition thereof according to law. You will cause all parties who are satisfied with your doings to certify the same on your report, and those to whom you have awarded money, to acknowledge the receipt or security thereof, and make return of your doings, together with this warrant, as soon as may be to this Court. Witness, , Judge of said Court, at , this PROBATE FOKMS. 673 day of , in the year of our Lord one thousand nine hun- dred and Register. , ss. , A. D. 19 . Personally appeared the three commissioners above named, and made oath that they would faithfully and impartially execute the duties assigned them by the foregoing warrant. Before me, Justice of the Peace. The report will not be confirmed until all money awarded is paid or secured, and when confirmed a certified copy should be recorded in the Registry of Deeds.] To the Honorable the Judge of the Probate Court in and for the County of Pursuant to the foregoing warrant to us directed, dated , A. D. 19 , we, the commissioners therein named, having been first sworn, according to law, and having given notice to all persons interested as therein directed, have ap- praised all the real estate lying in this Commonwealth, of which , late of , in said County, deceased, died seized, and which was required to be included in the partition, as follows : Our expenses and charges are as follows : >- Commissioners. The undersigned, being all persons interested in the fore- going report, hereby assent thereto, and request that the same be confirmed without further notice; and we, to whom money is awarded, acknowledge the receipt or security thereof. Citation by mailing, post-paid, or delivering, a copy to all persons inter- ested or their agents appointed by the Court, seven days at least before return day. 43 67-1 APPENDIX. Petition for Partition of Real Estate among Tenants-in-Common. [The names of the guardians of minors interested should be stated ; and persons absent from the State must have ageuts, appointed by the Court, to act for them.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , that h hold as tenant -in-common undivided part or share of the following-described real estate, situated in , in the County of , which he wish to hold in severalty, to wit: that the names and residences of all the other tenants-in-common and their respective shares and proportions thereof, are as fol- lows, and are not in dispute nor uncertain : Wherefore your petitioner pray that partition may be made of all the real estate aforesaid, according to law. Dated this day of , a. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested who can be found within the Commonwealth fourteen days at least before return day ; and, if any one cannot so be found, by publication once a week for three successive weeks, the last publication to be one day at least before return day. Partition of Real Estate among Tenants-in-Common — Warrant — Report. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To You are appointed commissioners to make partition of the PKOBATE FORMS. 675 real estate hereinafter described among the tenants-in-common thereof whose names and shares are as follows, to wit : Said real estate is situated in , in said County of , and is bounded and described as follows, to wit: First, being sworn, you will give notice of the time and place appointed by you for making the partition, to all persons inter- ested who are known and within the State, and to the agent of any absent person interested in the premises appointed by the Court, that they may be present. You will appraise all said real estate, and you will make par- tition thereof according to law. You will cause all parties who are satisfied with your doings to certify the same on your report, and those to whom you have awarded money, to acknowledge the receipt or security thereof, and make return of your doings, together with this warrant, as soon as may be to this Court. Witness, , Judge of said Court, at , this day of , in the year of our Lord one thousand nine hun- dred and Register. , ss. , A. D. 19 , Then personally appeared the three commissioners above named, and made oath that they M'ould faithfully and impartially execute the duties assigned them by the foregoing warrant. Before me, Justice of the Peace. [The report will not be confirmed until all money awarded is paid, and when confirmed a certified copy should be recorded in the Registry of Deeds. ] To the Honorable the Judge of the Probate Court in and for the County of Pursuant to the foregoing warrant to us directed, dated , A. D. 19 , we, the commissioners therein named, having been first sworn, and having given notice to all persons interested, as therein directed, have appraised all the real estate 676 APPENDIX. described in said warrant, and which was required to be included in the partition, as follows: Our expenses and charges are as follows ; Commissioners. The undersigned, being all persons interested in the fore- going report, hereby assent thereto, and request that the same be confirmed without further notice; and we, to whom money is awarded or distributed, acknowledge the receipt thereof. Petition for Partition and Sale of Real Estate among Tenants-in-Common. [R. L. c. 184, §§ 31, 33.] [The names of the guardians of minors interested should be stated ; and persons absent from the State must have agents, appointed by the Court, to act for them.] To the Honorable the Judrje of the Probate Court in and for the County of Respectfully represents , of , in the County of , that h hold as tenant -in-common undivided part or share of the following-described real estate, which he wish to hold in severalty, to wit: that the names and residences of all the other tenants-in-com- mon, and their respective shares and proportions thereof, are as follows, and are not in dispute nor uncertain : Name. Kesidence. Share. and your petitioner further represent that said real estate cannot be advantageously divided. Wherefore your petitioner pray that partition may be made of all the real estate aforesaid, according to law, and to that end that the commissioners appointed to make said parti- PROBATE FORMS. 677 tiou be ordered to make sale and conveyance of said real estate at public auction for cash, and to distribute and pay over the net proceeds of the sale in such a manner as to make the parti- tion just and equal. Dated this day of , A. d. 19 The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested who can be found within the Commonwealth fourteen days at least before return day ; and, if any one cannot be so found, by publication once a week for three successive weeks, the last publication being one day at least before return day. Sale of Lands by Commissioners — Bond. [R. L. c. 184, § 47.] Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said office; to the true paj'ment whereof we bind our- selves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed "with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , commissioners appointed by said Court to make partition of , who have been ordered by said Court to make sale and conveyance of said , shall account 678 APPENDIX. for and dispose of, according to law and the order of the Court, all proceeds of the sale. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered ( [SEAL.l in the presence of ) j-^^^^^ j (. [seal.] ss. , A. D. 19 . Examined and approved. Judge of Probate Court. Partition of Eeal Estate by Sale — Tenants-in-Common — Warrant — Report. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To You are appointed commissioners to make partition of the real estate hereinafter described among the tenants in-common thereof whose names and shares are as follows : Said real estate is situated in , in said County of , and is bounded and described as follows, to wit : and you are ordered to make sale and conveyance, at any time within one year from the date hereof, of the whole of said lands. And you are required to give public notice of the time and place of such sale, by publishing a notification thereof once in each week for three successive weeks in the , a newspaper published in , in said County of , and, within one year after such sale, return your affidavit of having given such notice, with a copy thereof, to the Probate Court. You are ordered to distribute and pay over the proceeds of the PROBATE FORMS. 679 sale in such manner as to make the partition just and equal; and if any distributive share of the money arising from such sale remains unpaid at the time of confirming the proceedings, or establishing the partition, you are directed to deposit the same in the Savings Bank , in the name of the Judge of said Court, for the time being, to accumulate for the persons entitled thereto. Within one year after the date hereof, you are required to present to this Court, under oath, a true account of the pay- ments made by you, and of any amount deposited as aforesaid, together with the original certificate or other evidence of any such deposit, and also to return this order and the receipts of the persons whom you have paid. Witness, , Esquire, Judge of said Court, at this day of , in the year of our Lord one thousand nine hundred and Register. , ss. , A. D. 19 . Then personally appeared the commissioners above named and made oath that they would faithfully and impartially execute the duties assigned them by the foregoing warrant. Before me, Justice of the Peace. To the Honorable the Judge of the Probate Court in and for the Cou7ity of Pursuant to the foregoing warrant to us directed, dated A. D. 19 , we, the commissioners therein named, having been first duly sworn, and having given notice as therein required, as will appear by affidavit hereto annexed, have made sale and co*iveyance of the lands therein described by public auction to , for the sum of dollars, which amount was bid by the said , and was the highest bid made therefor at said auction. Our expenses and charges are as follows : 680 APPENDIX. We have distributed and paid over the proceeds of said sale as follows, to wit : Names of Persons Paid. We severally acknowledge the receipt of the sums set against our respec- tive names. The distributive share of , amounting to dollars, we have deposited in the Savings Bank , as directed in said warrant, and return the evidence thereof herewith. > Commissioners' [This should be filed in the Probate Court immediately after the sale.] We, commissioners appointed to make partition, do testify and say that, being authorized by the Probate Court for the County of , on the day of , A. d. 19 , to make sale of the real estate of , for the purjjoses in the commission set forth, we gave public notice of the time and place of sale by publishing a notification thereof once in each week for three successive weeks in the , a newspaper pub- lished in , commencing on the day of , A. D. 19 , and the following is a true copy of said notices : Commissioners. , 88. , A. D. 19 . Then personally appeared the above-named commissioners, and made oath to the truth of the above affidavit by them subscribed. Before me, Justice of the Pecice. PROBATE FOKMS. 681 Petition for Discharge from Guardianship. To the Honorable the Judge of the Probate Court in and for the County of Kespeetfully represents , of , in the County of , that by a decree of said Court, dated the day of , A. D. 19 , he was adjudged to be a , and , of , in the County of , was appointed his guardian; that said accepted the trust, and still continues to have the custody of the person of your petitioner, and the manage- ment of his estate. Your petitioner further represents that he believes that he is now capable of managing h own estate, and that such guar- dianship is no longer necessary. Wherefore your petitioner prays that h said guardian may be discharged. Dated this day of , A. d. 19 . The undersigned, relatives, friends, and neighbors of the above-named ward, believing that guardianship of said ward is no longer necessary, hereby concur in his petition for his dis- charge from said guardianship. Citation by delivering a copy to the guardian days at least before return day, or by publication once a week for three successive weeks, the last publication to be one day at least before return day. Petition for Removal. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said Countj'^ of , that he is , of , of , in said County of , and is interested in the estate of said 682 APPENDIX. , that by a decree of said Court, dated the day of , A. D. 19 , of , in said County of , was appointed of said , and letters of were issued to him: That and is evidently unsuitable for the discharge of said trust. Wherefore your petitioner prays that said may be removed from his said office and trust. Dated this day of , A. d. 19 . Citation by delivering a copy days at least before return day. Petition for Discharge of Surety on Bond. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , that by a decree of said Court, dated the day of , A. D. 19 , of , in the County of , was appointed of , and gave bond for the faithful discharge of said trust; that your petitioner is one of the sure- ties on said bond ; that the other surety on said bond is , of , in said County of ; tliat the estate of said de- ceased is not 3'et fully administered; and your petitioner is unwilling to remain longer liable as surety on said bond, for the reason that Wherefore your petitioner prays that he may be discharged from all further responsibility as svich surety, and that said may be ordered to furnish a new bond. Dated this day of , A. D. 19 . The undersigned, being all the persons interested in the fore- going petition, request that the prayer thereof be granted with- out further notice. Citation by delivering a copy to the co-surety fourteen days at least before return day, and by publication once a week for three successive weeks, the last publication to be one day at least before return day. PROBATE FORMS. 683 Kesignation. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents that it is inconvenient for any longer to serve as he therefore respectfully resign said trust, and ask to have resignation accepted. Dated this day of , A. d. 19 , Declination. To the Honorable the Judge of the Probate Court in and for the County of It being inconvenient for to discharge the duty of ex- ecut trustee of the last will and testament of , late of , iu said County of , deceased, do hereby decline that trust. Dated this day of , a. d. 19 . Petition fok Notice of Appointment. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of the , of , late of , in said County of , deceased, testate, that on the day of , a. d. 19 , he gave bond for the faithful discharge of his said trust, and that by accident and mistake the notice of his appointment was not given within three months from said date : wherefore he pray that he vavLj be ordered to give said notice within such further time as the Court may order. Dated this day of , 19 . 684 APPENDIX. Petition to takk Deposition to Will. [R. L. c. 175, § 26.] To the Honorable the Judge of the Probate Court in and for the County of Kespectfully represents , of , that an instrument purporting to be tlie last will and testament of , late of , deceased, wherein your petitioner is named execut , has been presented to said Court for probate, and that a citation has been issued to all parties interested to appear at a Probate Court, to be held at , on the day of , A. d. 19 , to show cause, if any they have, why said instrument should not be proved and allowed as the last will and testament of said deceased. And your petitioner further represents that of the subscribing witnesses to said instrument, to wit: and that is absent from the Commonwealth, sick, infirm, aged , so as to make it probable that he will not be able to attend in the Probate Court and give h testimony. Wherefore your petitioner prays that a commission from said Court may issue to take the deposition of the said as a subscribing witness to said instrument. Dated this day of , A. d. 19 Let the commission as prayed for be issued. Judge of Probate Court. probate fokms. 685 Deposition of Witnesses to Will. COiMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , or any Commissioner appointed hy the Governor of said Commonwealth of Massachusetts^ Justice of the Peace^ Notary Public, or other officer^ legally empowei-ed to take Depositions or Affidavits^ in the State of , Greeting : Whereas , of , in the County of , has pre- sented to said Court for probate instrument , hereto annexed, purporting to be the last will and testament of , late of , in the County of , deceased, and has requested that the deposition of , of , in said State of , witness thereto, may be taken : Now, therefore, you are by these presents authorized and empowered to take the deposition of the said and to this end to cause the said deponent to come before you, and the dejwnent after having been sworn to testify the truth, the whole truth, and nothing but the truth, relating to the cause for which the deposition is taken, to be examined, and h testimony taken in writing. And you are to take such deposition separate and apart from all other persons, and to permit no person to be present during such examination except the deponent and yourself. And you are to put the several interrogatories subjoined to the deponent in their order, and to take the answer of the deponent to each fully and clearly before proceeding to the next, and not to read to the deponent nor permit the deponent to read, a succeeding interrogatory until the answer to the preceding has been fully taken down. And when you shall have completed the examination aforesaid, the same so taken and subscribed is to be returned, together 686 APPENDIX. with this Commission and your doings herein, enclosed, sealed, and directed to the Register of said Court, at , in said County of Given under the seal of said Court. Witness, Esquire, Judge of said Court, at , this day of , in the year of our Lord one thousand nine hundred and Eegister. 1st. Examine the instrument hereto annexed, and state whether or not you signed your name thereto as a witness. Answer : 2d. State whether or not therein described as the testat signed h name to said instrument as and for h last will and testament in your presence, and where the same was so signed. Answer : 3d. State whether or not you signed your name as a witness thereto in the presence of said testat and at h request. Answer : 4th. State whether or not either of the other witne'^ses thereto signed his or her name as a witness in presence of said testat and at h request, and give the name of each witness who so signed. Answer; 5th. State whether in your opinion said testat , at the time of signing said instrument, was of sound or unsound mind and whether he was of the full age of twenty-one years. Answer: State of , ss. Pursuant to the foregoing commission, I caused the said to come before me on the day of , A. d. 19 , and after having sworn the said to testify the truth, the whole truth, and nothing but the truth, relating to the cause for which the deposition is taken, I examined the said and reduced PROBATE FORMS. 687 h testimony to writing. In taking the deposition I put tlie interrogatories to the -deponent as directed in the foregoing commission, and in all respects, fully and exactly complied with the directions in said commission. And after said depo- sition was taken, I carefully read the same to the said and he subscribed it in my presence. Appointment of Agent. COMMONWEALTH OF MASSACHUSETTS. , ss. Pkobate Court. Know all men, that I, , of , in the State of , appointed by said Court executor — administra- tor — guardian — trustee, of the estate will of , late of , in said County of , deceased, under and in compliance with the provisions of Chapter 139 of the Revised Laws of said Commonwealth, do hereby appoint , of , in the County of , and Commonwealth aforesaid, as my agent, and I do hereby stipulate and agree that the service of any legal process against me as such executor — administrator — guardian — trustee, if made on said agent, shall be of the same legal effect as if made on me personally within said Commonwealth. In witness whereof, I have hereunto set my hand and seal this day of , in the year of our Lord one thousand nine hundred and Signed, sealed, and delivered in presence of I, the above-named hereby accept the above appointment. [^Address.'] 688 APPENDIX. Embezzlement — Complaint. [R. L. c. 162, § 43.] To the Honorable the Judge of the Probate Court in and for the County of , of , in said County of , on oatli complains that he has good cause to suspect, and does suspect, that , of , in the County of , ha fraudulently received, concealed, embezzled, and conveyed away certain arti- cles of personal property belonging to the estate of , late of , in the County of , deceased, to wit : That your complainant is and is interested in said estate. Wherefore he prays that said may be cited to appear before said Court, to be examined upon oath upon the matter of this complaint, and that such further proceedings may be had in the premises as the law requires. Dated this day of , A. d. 19 , ss. , A. D. 19 . Then personally appeared and made oath that the above complaint, by sub- scribed, is true. Before me, Justice of the Peace. Let citation issue as prayed for. Judge of Probate Court. Dated , 19 Citation by delivering a copy of the complaint, days at least before return day. PROBATE FORMS. 689 Appointment of Guardian ad Litem and Next Friend. COMxMONVVEALTH OF MASSACHUSETTS. , ss. Probate Court. At a Probate Court holden at , in said County^ on the day of , in the year of our Lord one thousand nine hundred and Whereas, in the matter of , it appears that is a minor , and interested in said case, and ha no legal guardian, therefore , of , in the County of , is hereby appointed to act as guardian ad litem or next friend for such person , to represent h interest in said case. Judge of Probate Court. I hereby accept the above appointment. , ss. , A. d. 19 . Personally appeared and made oath that he would faithfully and impartially perform the duty reposed in him by the foregoing appointment. Justice of the Peace. Having fully examined and considered the matter of , I hereby assent to the Petition for Widow's Allowance. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents that , late of , in said County, whose estate is in course of settlement in said Court, died possessed of personal estate ; that she is his widow, and has under her charge a family consisting of Wherefore, she prays that the Court will allow her part of the personal estate of said deceased as necessaries for herself and family under her care, in addition to the provisions and other articles by law belonging to her. Dated this day of , A. d. 19 . 44 690 APPENDIX. Claim of Appeal. To the Honorable the Judge of the Probate Court in and for the County of Represents , of , in the County of , that he is a , of , late of , in the County of , deceased, and interested in the estate of said deceased; that he is aggrieved by a decree of the Probate Court held at , in said County of , on the day of , A. D. 19 , whereby said Court And he hereby give notice that he claim an appeal from said decree to the Court. Dated, this day of , 19 . Petition for Lease of Keal Estate by Guardian. [A description of the real estate, sufficient to enable parties interested to identify it, must be given, and the reason why it would be for the interest of the ward to have it leased.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , guardian of , of , in said County of , minor, that said ward interested in certain real estate, to wit: that it is necessary, expedient, and for the benefit of said ward that a written lease of said real estate be made for the reason that a copy of the proposed lease is hereto annexed. Wherefore said guardian prays that he may be authorized to lease the same as aforesaid, or upon such terms as may be adjudged best. The undersigned, being all the heirs presumptive of the PROBATE FORMS. 691 minor named in the foregoing petition, hereby consent that the same may be granted. Citation by publicatiou once a week for three successive weeks, the last publication to be one day at least before return day. Appearance. PROBATE COURT. No. Estate of In the matter of Enter To THE Register. appearance for Address Filed , 19 . Attorney. Register. Petition in Equity. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , petitioner , that he bring this petition against respondents, , and allege them to be all the partiee inter- ested in the matter of said petition, and further represent Dated this day of .19 692 APPENDIX. The undersigned, being all the persons interested in the sub- ject matter of the abuve petition, hereby accept service of the same. Citation by serving respondents witli copy of citation, or leaving at usual place of al)ode, or by mailing to last known address, fourteen days at least before return day ; and unless respondents have actual notice, citation must be published once a week for three successive weeks, the last publication to beiseveu days at least before return day. Decree in Equity. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. In Equity, , 19 . On the petition in equity of , petitioners, against respondents, praying it appearing that notice according to the order of the Court has been given all parties interested person objecting, after hearing and consideration, the Court doth order and decree Petition for Appointment as Conservator of Property OF AGED Person. [R. L. c. 145, § 40.] [This application must be made by the aged person himself, or by one or more of his friends.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represent , of , in the County of , that , a resident of , in said County of , has PKOBATE FORMS. 693 become incapacitated by reason of advanced age and mental weakness to properly care for his property. Your petitionees therefore pray that , of , in the County of , or some other suitable person, may be appointed conservator of the property of said , agreeably to the law in such case made and provided. Dated this day of a. d. 19 . Citation by serving aged or mentally weak person with copy of order, fourteen days at least before return day. Conservator's Bond. [R. L. c. 145, §§ 40, 41.] Know all Men by these Presents, That we, , of , in the County of , as prin- cipal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administra- tors, jointly and severally by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above bounden conservator of the property of , of , in said County of , a person incapacitated by reason of advanced age or mental weakness to propgrly care for his prop- erty, shall, Firsts make and return to said Probate Court, at such time as it may order, a true inventory of all the real and personal estate of said person that at the time of the making of such inven- tory shall have come to the possession or knowledge of said conservator ; Second, manage and dispose of all such estate according to 694 APPENDIX. law and for the best interests of said person, and faithfully dis- charge h trust in relation to such estate; Thirds render upon oath, at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, a true account of the property in h hands, including the proceeds of all real estate sold or mortgaged by h and of the management and disposition thereof, and also render such account at such other times as said Court may order; and Fourth, at the expiration of h trust, settle h account in said Court, or with said person or h legal representatives, and pay over and deliver all the estate remaining in h hands, or due from h on such settlement, to the person or persons lawfully entitled thereto ; Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of , ss. , A. D. 19 . Examined and approved. Judge of Probate Court. I, , the within-named conservator, declare that, to the best of my knowledge and belief, the estate and effects of the within-named do not exceed in value the following-men- tioned sums, viz. : Eeal Estate, f Personal Estate, $ . [sign] PROBATE FORMS. G9o Conservator's Letter. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the County of , and Common- loealth aforesaid. You are appointed conservator of the property of , a resident of , in said County of a person incapacitated by reason of advanced age and mental weakness to properly care for h property, with full power and authority to take possession of all real and personal estate of said person, and to have the charge and management thereof subject to the direction of said Court, and You are required to make and return into said Probate Court, within three months from the date hereof, a true inventory of all the real and personal estate of said person which at tlie time of the making of such inventory shall have come to your pos- session or knowledge ; To manage and dispose of all such estate according to law and for the best interests of said person, and faithfully to discharge your trust in relation to such estate; To render, upon oath, a true account of the property in your hands, including the proceeds of all real estate sold or mort- gaged by you, and of the management and disposition of all such property, at least once a year, until your trust is fulfilled, unless excused therefrom in any year by said Court ; At the expiration of your trust, to settle your accounts in said Court, or with said person, or h legal representative, and to pay over and deliver all the estate and effects remaining in your hands, or due from you on such settlement, to the person or per- sons lawfully entitled thereto. Witness, , Esquire, Judge of said Court, at , this day of , in the year of our Lord one thousand nine hundred and Begister. g96 APPENDIX. Injunction. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To and all Servants, Agents, Attorneys, and Counsellors, acting for or in behalf of you or either of you, Greeting : Whereas, it has been represented to said Court by , petitioner , that he , said petitioner , ha exhibited a Bill of Complaint in our said Court against you, the said which said Bill is filed in the office of the Register of said Court at , in and for our said County of , wherein said petitioner , among other things, pray for a Writ of In- junction against you, the said respondent , to restrain you and the persons before named from proceeding to do what you are hereinafter enjoined from doing : We, therefore, in consideration of the premises, do strictly enjoin and command you, the said respondent , and all and every the persons before named, to desist and refrain from until the further order of said Court. Witness, , Esquire, Judge of said Court at , the day of , in the year of our Lord one thousand nine hundred and HegisteK Petition for Leave to deposit Legacy. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents that he is execut of the will of , late of , in said County of , PROBATE FORMS. 697 deceased; that by the terms of said will a legacy of dollars was bequeathed to that the residence of said legatee is unknown to your petitioner; that the said legatee is minor, and has no legal guardian. Wherefore your petitioner pray that he may he allowed to deposit said legacy in the , in the name of the Judge of said Court, or to invest t in to accumulate for the benefit of the person entitled thereto. Dated this day of , 19 . Petition for Payment of Deposit. [R. L. c. 150, § 23.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , that he is an heir-at-law of — guardian of — lega- tee under the will of , late of , in said County of , deceased; that by an order of said Court, dated the day of , 19 , , administrat — execut of the estate — will of said deceased, deposited the sum of dollars in the Savings Bank on the day of , A. D. 19 , in the name of the Judge of said Court, to accumulate for the benefit of your petitioner; that your petitioner is the person for whose benefit said deposit was made, and is entitled to said sum of dollars deposited as aforesaid, and to the accumulations thereon. Wherefore your petitioner prays that said bank be ordered to pay to h said sum of dollars and the accumulations thereon. Dated the day of , A. d. 19 . , ss. Subscribed and sworn to this day of A. D. 19 . Before me, Justice of the Peace. 698 APPENDIX. Petition by Minor for License to Marry. [U. L. c. 151, § 20.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents that he is a minor of the age of years, and a resident of , in said County of ; that he desires to marry , of , in the County of , who is years of age; and that h father, — mother, — guardian, consents hereto; he there- fore prays that an order may be made allowing h to marry the said Dated at , the day of , a. d. 19 I, , being the father, — mother, — guardian of said minor, consent to granting the order asked for in the above petition. Guardian ad litem and next Friend — Account. [R. L. c. 150, § 22.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. At a Probate Court holden at , in said County, on the day of , in the year of our Lord one thousand nine hundred and "Whereas, in the matter of the settlement of the ac- count of it appears that there may be persons unborn or unascertained who are or may become interested in said account; — that , who or may become interested in said account legally in- PROBATE FORMS. 699 competent to act in h own behalf, and h no legal guardian, other than the accountant; therefore , of , in the County of , is hereby appointed to act as guardian ad litem or next friend for such persons, to represent h in- terest in said account, and to examine said account and the vouchers therefor and the securities, and report to this Court. Judge of Probate Court. I hereby accept the above appointment. , ss. A. D. 19 . Personally appeared , and made oath that he would faithfully and impartially perform the duty reposed in him by the foregoing appointment. Justice of the Peace. Having fully examined the above-described account, with the vouchers therefor and the securities, I hereby assent to the allowance of the same. Guardian ad litem and next friend. Representation of Insolvency — Examination op Claims by Court. [R. L. c. 142, §§ 4, 5, 9.] [The executor or administrator must present with this petition a list of all persons claiming to be creditors of the estate so far as known to him.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents administrat of the estate of , late of , in said Countj' of , deceased, appointed on the day of , A. D. 19 , that within three months from h said appointment he caused notice thereof to be given as or- dered by the Court, that the debts claimed as owed by the 700 APPENDIX. deceased at tlie time of liis death, according to the list hereto a])pended, amount to $ The necessary funeral expenses, to $ The allowance by the Court for necessaries to the widow, to $ The charges of administration, including future prob- able charges, to $ Amounting in the whole to the sum of $ That all the estate of the deceased known to be charge- able with the payment thereof, is as follows, viz. : Eeal Estate not exceeding in value $ Personal Eestate not exceeding in value $ and other Personal Estate not mentioned in the inventory $ Balance $ And your petitioner , believe that said estate will prob- ably be insolvent, for the reason th^t he therefore pray the Court to receive and examine all claims of creditors against the estate, and cause a list of all claims presented for proof, with the amount allowed or disallowed on each claim, to be made and certified hy the Register of said Court pursuant to the law in such case made and provided. Dated this day of A. d. 19 . i Admr, , ss. A. D. 19 . Then personally appeared said and made oath that the above is a correct representation of the probable condition of said estate, according to the best of h knowledge and belief. Before me, Justice of the Peace, PROBATE FORMS. 701 Insolvency — Order to Administrator to notify Credi- tors TO PRESENT ClAIMS. [R.L. c.l42,§5.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , administrat of the estate of , late of , in said County of , deceased, intestate, represented insolvent : You are hereby ordered to notify all known creditors of said insolvent estate that the Court will receive and examine all claims of creditors against said estate at the Probate Court to be holden at , in and for said County of , on the day of A. D. 19 , and on , the day of A. D. 19 , at nine o'clock in the forenoon, respectively, that they may then and there present and prove their claims. And you are ordered to give to all known creditors at least seven days written notice, by mail or otherwise, of the time and place of each meeting, and cause notices to be published once in each week for three successive weeks in the , a newspaper pub- lished in , the last publication to be one day at least before said first meeting. Six months from the date hereof are allowed to creditors within which to present and prove their claims. You will make return hereof, with your doings hereon, on or before the date of said first meeting , 19 . Witness, , Esquire, Judge of said Court, at , this day of , in the year of our Lord one thousand eight hundred and ninety- I have served the foregoing order as therein directed. Register. , ss. 19 . Then personally appeared , and made oath to the truth of the above return by him subscribed. Before me, Justice of the Peace, 702 APPENDIX. Form of Administrator's Notice to Creditors of Insol- vent Estate. Estate of , late of , in the County of , de- ceased, intestate, represented insolvent. The Probate Court for said County will receive and examine all claims of creditors against the estate of said , and notice is hereby given that six months from the day of , A. D. 19 , are allowed to creditors to present and prove their claims against said estate, and that the Court will receive and examine the claims of creditors at , on the day of , 19 , at nine o'clock in the forenoon, and at , on the day of , 19 , at nine o'clock in the forenoon. [■ Administrat Petition by Special Administrator for Leave to pay Debts. [R. L. c. 137, § 13.] To the BonoraUe the Judge of the Probate Coiirt in and for the County of Respectfully represents , of , that he is special administrator of the estate of , late of , in said County of That the value of the personal estate in the hands of the petitioner is $ That the debts due from the deceased, as nearly as they can now be ascertained, amount to $ That it is expedient that he should pay from the per- sonal estate in his hands the debts shown by the list herewith filed, amounting to $ PROBATE FORMS. 703 Wherefore he pray that he may be authorized to pay from said personal estate the debts shown by said list. Dated tliis day of , A. d. Citation by delivering, or mailing postpaid, a copy of citation to all persons interested fourteen days at least before return day, and by publishing once a week for three successive weeks, the last publication to be one day at least before return day. Petition for Perpetual Care of Burial Lot. [ R.L. c. 150, § 13,] To the Honorable the Judge of the Probate Court in and for the County of Kespectfully represents , of , in the County of , that he is the administrat — execut of the will — estate of , late of , in said County of , de- ceased, that the body of the said is buried in Wherefore your petitioner pray that the Court determine the amount of money which he may pay for the perpetual care of the lot in which the body of said is buried, and to whom the same shall be paid. Dated this day of A. d. The undersigned, being all the persons interested, hereby waive notice hereof. Citation by delivering copy of citation to all persons interested fourteen days at least before return day, or by publishing once a week for three suc- cessive weeks, the last publication to be one day at least before return day, and by mailing postpaid a copy of citation to all persons interested seven days at least before return day. 704 APPENDIX. Petition for Sale of Real Estate Subject to Contingent Remainder. [R. L. c. 127, §§ 28-3L] [A next friend must be appointed to represent minors and persons not ascertained or not in being.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said County, that , of , in said County of , by his last will, proved in said Court on the day of , A. D. 19 , devised certain real estate in the following words: The said real estate is situated in , in said County of , and described as follows : And the petitioner having an estate in possession in said real estate represents that it is necessary expedient to sell said real estate for the following reasons : And represents that the following named persons, including h sel , are the only persons who or whose issue are or may become interested: Persons. Residence. Nature and Fractional Amount of Interest. Wherefore the petitioner prays that , of , in the County of , or some other suitable person may be ap- pointed a trustee to sell and convey said real estate at private sale for the sum of dollars, or at public auction, and to hold and apply the proceeds of such sale according to the require- ments of law in such case made and provided. Citation by publishing once a week for three succe.ssive weeks, tlie last publication to be one day at least before return day, and by mailing postpaid or delivering copy of citation to all known persons who or whose issue not uow in being are or may become interested, seven days at least before return day. PROBATE FORMS. 705 Petition for Sale of Estate Subject to Vested Remainder. [R. L. c. 127, § 29.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said County, that certain real estate, situated in , in said County, described as follows : is subject to a vested remainder or reversion created under the will of , of , in said County. That the following are the only persons interested (including the petitioner) : Persona. Residence. Nature and Fractional Amount of Interest. That it is necessary and expedient to sell said real estate for the following reasons ; Wherefore the petitioner prays that , of , in the County of , or some other suitable person, may be appointed a trustee to sell and convey said real estate at private sale for the sum of dollars, or at public auction, and to hold and apply the proceeds of such sale according to the requirements of law in such case made and provided. Citation by piiblishing once a week for three successive weeks, the last publication to be one day at least before return day, and by mailing postpaid or delivering copy of citation to- all known persons interested, seven days at least before return day. 45 706 APPENDIX. Trustee's Bond for Sale of Real Estate — With Sure- ties — Vested or Contingent Remainder. Know all Men by these Presents, That we , of , in the County of , as principal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors and administra- tors, jointly and severally by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bouuden trustee appointed by decree of this Court dated to sell certain real estate and hold the proceeds thereof for the benefit of and others, shall : — First, manage and dispose of all such estate, and faithfully discharge h trust in relation thereto, according to law; Second, render upon oath, at least once a year, until h trust is fulfilled, unless h is excused therefrom in any year by said Court, a true account of the property in h hands, and of the management and disposition thereof, and also render such account at such other times as said Court may order ; TJiird, at the expiration of h trust, settle h account in said Court, and pay over and deliver all the estate remaining in h hands, or due from h on such settlement, to the person or persons entitled thereto ; Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of , ss. A. D. 19 . Examined and approved. Judge of Probate Court. PROBATE FORMS. 707 I, , the within-named trustee, declare that, to the best of my knowledge and belief, the value of the within-named estate does not exceed ^ [sign] Sale of Estate subject to Vested or Coxtingent Re- mainder — Appointment of Next Friend and Guar- dian FOR THE Case. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. At a Probate Court holden at , in said County, on the day of , in the year of our Lord one thousand nine hundred and In the matter of the petition of , that or some other suitable person be appointed a trustee to sell and convey certain real estate subject to a contingent — vested re- mainder or reversion created under the will of , late of , in the County of , for the benefit of and others, and to hold and apply the proceeds of such sale as required by law. It appearing to said Court that there is need therefor, it doth appoint , of ,in the County of , to appear and act therein as the next friend of all persons not ascertained, or not in being, who are or may become interested in said estate ; and it also appearing that minor and interested in said case, and ha no legal guar- dian, it doth appoint , of , in said County of , to be guardian for the case, to appear and act for said minor in the above-mentioned matter. Judge of Probate Court. I hereby accept the above appointment and 708 APPENDIX. Petition for Specific Performance. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in said County , that , late of , in said County, deceased, dur- ing his lifetime, to wit: on the day of , a.d. 1 , entered into an agreement in writing with your petitioner, a copy of which agreement is hereto annexed: whereby said agreed with your petitioner, to convey to him upon the terms and conditions set forth in said agree- ment , certain real estate situated in , in said County, and fully described in said agreement ; that said died without making such conveyance; and that your petitioner is ready to perform all the conditions of said agree- ment on his part. Wherefore your petitioner prays that a specific performance of said agreement may be decreed, and that administrat of the estate of said , may be ordered to convey said real estate to him agreeably to the terms thereof. Dated this day of a.d. 1 The undersigned, being all the parties interested in the fore- going petition, desire the same may be granted without further notice. Citation by delivering copy of citation fourteen days at least before return day, or if not found within the Commonwealth, by leaving copy at usual place of abode, or by mailing copy to last post-office address fourteen days at least before return day ; and, unless respondent has actual notice, by pub- lishing once a week for three successive weeks, the last publication to be seven days at least before return day. PROBATE FOKMS. 709 Petition by Special Administrator for Leave to Carry on Business. [R. L. c. 137, § 11.] [Notice upon this petition shall be such as the Court may order.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , special adminis- trator of the estate of , late of , in the County of , deceased. That the said deceased was at the time of his death engaged in the business of That the interest of said business and of said estate require that said business should be continued. Wherefore your petitioner pray that he may be author- ized to continue business for the benefit of said estate under the direction of the Court. Petition for Probate of Will — Presumption of Death. [Superseded by R. L. c. 144, relating to settlement of estates of absentees. See page 726.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents of , in the County of , that , whose last known residence in this Commonwealth was in , in said County of , disappeared on the day of , in the year of our Lord one thousand nine hundred and , since which time he has been absent from said , and his where- abouts are unknown to his family, kindred, business associates 710 APPENDIX. and intimate friends, and tliat said absentee was last known to have been in , in the County of , and State of , and the petitioner believes that he is dead, testate, possessed of goods and estate remaining to be administered, leaving as widow — husband — h only heirs-at-law and next of kin, the persons whose names, residences and relationship to the absentee are as follows, viz. : Name. Residence. Relationship. That said absentee left a will — and codicil — herewith presented, wherein your petitioner named execut Wherefore your petitioner pray that said will — and codi- cil — may be proved and allowed and letters testamentary issued to h , and certifies that the statements herein contained are true to the best of h knowledge and belief. Dated this day of , a.d. 19 , ss. Subscribed and sworn to this day of , A.D. 19 . Before me, Justice of the Peace, The undersigned, being interested, hereby assent to the fore- going petition. Citation by publishing once a week, for four successive weeks, the last pub- lication to be one day at least before return day, by posting copy of citation not less than thirty daj's before return day in at least two conspicuous places, and by mailing postpaid or delivering copy of citation to all known persons interested, seven days at least before return day. Executor's Bond — Presumption of Death. [Superseded by R. L. c. 144. See p. 730.] Know all Men by these Presents. That we, , of , in the County of , as prin- cipal , and , of , in the County of , and , of , in the County of , as sureties, and all PROBATE FORMS. 711 within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors and administrators, jointly and severally by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and TiiK coNDiTiox OF THIS OBLIGATION IS SUCH; that if the abovc- boundeu execut of the last will and testament of , late of , in said County of , deceased, testate, shall, First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said execut ; ' Second, administer according to law and to the will of said deceased all the personal estate of said deceased which may come to the possession of said execut , or of any person for h , and also the proceeds of any of the real estate of said deceased that may be sold, mortgaged, leased or rented by said execut ; Third, render upon oath, a true account of h administra- tion at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order; Fourth, obey all orders and decrees that may be made by said Court. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of , ss. A.D. 19 . Examined and approved. Judge of Probate Court. I, , the within-naraed execut , declare that, to the 712 APPENDIX. best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the following- mentioned sums, viz. : Keal Estate, $ Personal Estate, $ [sign] Executor's Letter — Presumption of Death. [Superseded by R. L. c. 144, relating to aettlement of estates of absentees. See p. 730.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the Comity of , and Common- wealth aforesaid. You are appointed execut of the last will and testament of , late of , in said County of , deceased, test- ate, which will was proved and allowed on the day of A.D. 19 , by said Court, and is now of record in this Court; And you are required to make and return into said Probate Court, within three months from the date hereof, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to your possession or knowledge; To administer, according to law and to the will of said deceased, all the personal estate of said deceased which may come to your possession, or that of any person for you, and also the proceeds of any of the real estate of said deceased that may be sold, mort- gaged, leased, or rented by you ; To render, upon oath, a true account of your administration, at least once a year, until your trust is fulfilled, unless excused therefrom, in any year, by said Court ; To obey all orders and decrees that may be made by said Court; And also, within three months, to cause notice of your appoint- PROBATE FORMS. 713 ment to be posted in two or more public places in the city or town in which said deceased last dwelt in this Commonwealth, or cause the same to be published once in each week for three successive weeks in the a newspaper published in , and return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Esquire, Judge of said Court, at , this day of , in the year of our Lord one thousand nine hundred and Megister. Petition for Probate of Will — Presumption of Death — Letters of Administration with the Will an- nexed. [Superseded by R. L. c. 144, relating to settlement of estates of absentees. See p. 726.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , that , whose last known residence in this Com- monwealth was in , in said County of , disappeared on the day of , in the year of our Lord one thousand nine hundred and , since which time he has been absent from said , and his whereabouts are unknown to his family, kindred, business associates and intimate friends, and that said absentee was last known to have been in , in the County of , and State of , and the petitioner believes that he is dead, testate, possessed of goods and estate remaining to be administered, leaving as widow — husband — h only heirs-at-law and next of kin, the persons whose names, residences, and relationship to the deceased are as follows, viz. : Name. Residence. Relationship. 714 APPENDIX. That said deceased ]eft a will — and codicil — herewith presented, wherein w named execut , and has That your petitioner is of said absentee and interested in liis estate. Wherefore your petitioner pray that said will — and codi- cil — may be proved and allowed, and letters of administration with the will annexed, issued to h , or some other suitable person, and certifies that the statements herein contained are true to the best of h knowledge and belief. Dated this day of a.d. 19 , ss. Subscribed and sworn to this day of A.D. 19 Before me, Justice of the Peace. The undersigned being interested hereby assent to the fore- going petition. ., Citation by publishing once a week for four successive weeks, the last pub- lication to be one day at least before return day, by posting a copy of citation not less than thirty days before return day, in at least two conspicuous |)laces, and by mailing postpaid, or delivering copy of citation to all known per- sons interested, seven days at least before return day. Administrator's Bond — Presumption of Death — Will ANNEXED. [Superseded by R. L. c. 144. See p. 730.] Know all Men by these Presents, That we, , of , in the County of , as principal and , of , in the County of , and of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are liolden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum PROBATE FORMS. 715 of dollars, to be paid to said Judge and his successors in said office; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administra- tors, jointly and severally by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine liundred and The condition of this obligation is such, that if the above-bounden , administrat with the will annexed, of the estate of , late of , in said County of , deceased, testate, shall. First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to the possession or knowledge of said administrat ; iSeco7id, administer according to law and to the will of said deceased all the personal estate of said deceased which may come to the possession of said administrat or of any person for h , and also the {proceeds of any of the real estate of said deceased that may be sold, mortgaged, leased or rented by said administrat ; Third, render upon oath, a true account of h administra- tion at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order ; Fourth, obey all orders and decrees that may be made by said Court. Tlien this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of , ss. A. D. 19 . Examined and approved. Judge of Probate Court. I, , the within-named administrat , declare that, to the best of my knowledge and belief, the estate and effects of the 716 APPENDIX. within-named deceased do not exceed in value the following mentioned sums, viz. : Eeal Estate, $ Personal Estate, $ . [sign] Letter of Administkation with Will annexed — Pre- sumption OF Death. [Superseded by R. L. c. 144, relating to settlement of Estates of absentees.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the Co lint ij of , and Commonwealth aforesaid. You are appointed administrat with the will an- nexed of the estate of , late of , in the County of , deceased, testate, which will was proved and allowed on the day of , A. d. 19 , by said Court, and is now of record in this Court: And you are required to make and return to said Probate Court, within three months from the date hereof, a true inven- tor}' of all the real and personal estate of said deceased, which at the time of the making of such inventory shall have come to your possession or knowledge ; To administer according to law. and to the will of said de- ceased, all the personal estate of said deceased which may come to your possession, or that of any person for you, and also the proceeds of any of the real estate of said deceased that may be sold, mortgaged, leased, or rented by you; To render, upon oath, a true account of your administration, at least once a year, until your trust is fulfilled, unless excused therefrom, in any year, by said Court ; To obey all orders and decrees that may be made by said Court ; PROBATE FORMS. 717 And also, within three months, to cause notice of your ap- pointment to be posted in two or more public places in the city or town in which said deceased last dwelt in this Common- wealth, or cause the same to be published once in each week for three successive weeks in the , a newspaper published in , and return your affidavit of having given such notice, with a copy thereof, to the Probate Court. Witness, , Esquire, Judge of said Court, at , this day of , in the year of our Lord one thousand nine hundred and Register. Petition for Administration — Presumption of Death. [Superseded by R. L. c. 144, relating to settlement of estates of absentees. See p. 726.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , that , whose last known residence in this Com- monwealth was in , in said County of , disappeared on the day of , in the year of our Lord one thou- sand nine hundred and , since which time he has been absent from said , and his whereabouts are unknown to his family, kindred, business associates, and intimate friends, and that said absentee was last known to have been in , in the County of , and State of , and your petitioner believes that he is dead, intestate, possessed of goods and estate remaining to be administered, leaving, as the only per- sons interested in said estate, a widow — husband, and h only heirs-at-law and next of kin, the persons whose names, residences, and relationship to the absentee are as fol- lows, viz. : Name. Kesidence. Relationship. that your petitioner is a of said absentee, and interested in his estate. 718 APPENDIX. Wherefore your j)etitioner prays that he , or some other suitable person, he appointed adniinistrat of tlie estate of said , and certifies that the statements herein contained are true to tlie best of h knowledge and belief. Dated this day of , A. D. 19 . , ss. Subscribed and sworn to this day of , A. D. 19 . Before me, Justice of the Peace. The xindersigned, interested in said estate, hereby assent to the foregoing petition. Citation bj' publication once a week for four successive weeks, the last publication to be one day at least before return day, by posting a copy of citation not less than thirty days before return day in at least two conspicuous places, and by mailing postpaid or delivering copy of citation to all known persons interested seven days at least before return day. Administrator's Bond — Presumption of Death. [Superseded by R. L. c. 144. See p. 730.] Know all Men by these Presents, That we, , of , in the County of , as principal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors and administrators, jointly and severally by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , administrat of the estate of , late of , in said County of , deceased, intestate, shall, PROBATE FORMS. 719 First, make and return to said Probate Court, within three months after h appointment, a true inventory of all the real and personal estate of said deceased which at the time of the making of such inventory sliall have come to the possession or knowledge of said administrat ; Second, administer according to law all the personal estate of said deceased which may come to the possession of said admin- istrat , or of any person for h , and also the proceeds of any of the real estate of said deceased that may be sold, mortgaged, leased or rented by said administrat ; Third, render upon oath, a true account of h administration at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, and also render such account at such other times as said Court may order; Fourth, pay to such persons as said Court may direct, any balance remaining in h hands, upon the settlement of h accounts ; Fifth, deliver h letters of administration into said Court in case any will of said deceased is hereafter duly proved and allowed; and Sixth, obey all orders and decrees that may be made by said Court. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of , ss. A. D. 19 . Examined and approved. Judge of Probate Court. I, , the within-named administrat , declai-e that, to the best of my knowledge and belief, the estate and effects of the within-named deceased do not exceed in value the follow- ing-mentioned sums, viz. : Real Estate, I Personal Estate, $ . [sign] 720 APPENDIX. Administrator's Letter — Presumption of Death. [Superseded by R. L. c. 144. See p. 729.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To , of , in the County of , and Common- wealth aforesaid. You are appointed admin istrat of the estate of , late of , in said County of , deceased, intestate. And you are required to make and return to said Probate Court, witliin three months from the date hereof, a true inven- tory of all the real and personal estate of said deceased which at the time of the making of such inventory shall have come to your possession or knowledge; To administer according to law all the personal estate of said deceased which may come to your possession, or that of any person for you, and also the proceeds of any of the real estate of said deceased that may he sold, mortgaged, leased, or rented by you; To render, upon oath, a true account of your administration, at least once a 3^ear, until your trust is fulfilled, unless excused therefrom, in any year, by said Court; To pay any balance remaining in j^our hands upon the settle- ment of your accounts, to such persons as said Court shall direct; to obey all orders and decrees that may be made by said Court; To deliver these letters of administration into said Court, in case anv will of said deceased shall be hereafter duly proved and allowed ; And, also, within three months, to cause notice of your ap- pointment to be posted in two or more public places in the city or town in which said deceased last dwelt in this Commonwealth, or cause the same to be published once in each week for three successive weeks in the , a newspaper published in , and return your affidavit of having given such notice, with a copy thereof, to the Probate Court. PROBATE FORMS. 721 Witness, , Esquire, Judge of said Court, at , this day of , ill the year of our Lord one thousand nine hundred and Register. Petition for Distribution — Presumption of Death — Intestate Estate. [Superseded by R. L. c. 144, § 11.] To the Honorable the Judge of the Probate Court in and for the County of Kespectfully represents , of , in said County, ad- ministrat of tlie estate of , late of , in said County , deceased, intestate , that said deceased has been missing and unheard from, and his whereabouts have been unknown to his family, kindred, business associates and friends for fourteen consecutive years prior to the filing of this petition, that he was last known to have been alive on the day of , in the year one thousand nine hundred and , that there is a balance of his estate in the hands of h administat which remains to be distributed among h widow and next of kin, whose names, places of residence, and relation- ship to the deceased are supposed, or claimed, to be as follows: Name. Residence. Relationship. Share. Wherefore your petitioner pray that distribution of such balance may be decreed by the Court among such persons as may be proved to be entitled thereto, according to law. Dated this day of , A. d. 19 . , ss. , A. D. 19 . Then personally appeared , and made oath to the truth of the above representation, accord- ing to the best of h knowledge and belief. Before me, Justice of the Peace. Citation by publishing once a week for three successive weeks, the last publication to be one day at least before return day, and by mailing postpaid co])y of citation to all known persons interested, fourteen days at least before return day. 46 ^722 APPENDIX. Bond of Heir — Presumption of Death. [Superseded by R. L. c. 144.] Know all Men by these Presents, That we, of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Pro- bate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors and admin- istrators, jointly and severally by these presents. Sealed with our seals, and dated the day of , in tlie year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-named principal, who is heir — devisee — legatee — dis- tributee — of a certain estate — share — legacy — received by him from the estate of , formerl}^ of , in said County of , whose estate is in course of administration in this Court, upon presumption of his death, upon the day of ■ , 189 , as appears by decree of this Court, shall restore any share, estate, or legacy received or acquired by him from the estate of said , or its equivalent in money, with- out interest, to said if he shall return and claim it within eight years from the date hereof. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of SS. A. D. 19 . Examined and approved. Judge of Probate Court. probate forms. 723 Petition for Trusteeship under Written Instrument. [The original iustrument should be filed.] To the Honorable the Judge of the Probate Court in and for the Count)/ of Eespectfully represents , of , in the County of , that , late of , in the County of , was trustee under a certain instrument in writing, dated , and re- corded in the Registry of Deeds for the County of , book , page , wherein , gave certain estate in trust to for the benefit of which said instrument is filed herewith, and said has before the objects of said trust are accomplished, and no adequate provision is made therein for supplying the vacancy; that some of the parties interested in said trust request the ap- pointment of your petitioner in place of said Wherefore he pray that he may be appointed trustee as aforesaid, according to the provisions of the law in such cases made and provided. Dated this day of a. d. 19 . The undersigned, being all persons interested in said trust, request that the prayer of above petition be granted without further notice. Citation by publishing once a week for three successive weeks, the last publication to be one day at least before return day. Trustee's Bond — Under Deed. Know all Men by these Presents, That we, , of , in the County of , as principal , and , of , in the County of , and , of , in the County of , as sureties, and all within the 724 APPENDIX. Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors and administra- tors, jointly and severally by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and The condition of this obligation is such, that if the above-bounden , trustee under a certain instrument in writing, dated , A. d. 18 , wherein gave to certain estate in trust for the benefit of , shall, First, make and return to said Probate Court, within three months, the Court having so ordered, a true inventory of all the real and personal estate belonging to h as trustee , which at the time of the making of such inventory shall have come to h possession or knowledge ; Second, manage and dispose of all such estate, and faithfully discharge h trust in relation thereto, according to law and the terms of said instrument ; Third, render upon oath, at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, a true account of the property in h hands, and of the management and disposition thereof, and also to render such account at such other times as said Court may order ; Fourth, at the expiration of h trust, settle h ac- count in said Court, and pay over and deliver all the estate remaining in h hands, or due from h on such settle- ment, to the person or persons entitled thereto ; Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of , ss. A. D. 19 . Examined and approved. Judge of Probate Court, PROBATE FORMS, 725 I, , the witliin-naraed trustee, declare that, to the best of my knowledge and belief, the value of the within-named trust estate does not exceed the following-mentioned sums, viz. : Keal estate, $ . Personal Estate, $ • [sign] Trustee's Letter — Under Deed. [This should be recorded wherever the trust instrument is recorded.] COMMONWEALTH OF MASSACHUSETTS. J ss. Probate Court. To , of , in tlie County of , and Commo'nr wealth aforesaid, Greeting: You are appointed trustee in place of , under a certain instrument in writing, to wit : To have and exercise the same powers, rights and duties under said instrument as if you had been originally appointed; and the trust estate to vest in you in like manner as it vested in the trustee aforesaid, in whose place 3'ou are substituted. And you are ordered to make and return to said Probate Court, within three months from the date hereof, a true inven- tory of all the real and personal estate belonging to you as trus- tee which at the time of the making of such inventory shall have come to your possession or knowledge; To manage and dispose of all such estate, and faithfully dis- charge your trust in relation thereto, according to law and the terms of said instrument; To render upon oath at least once a year, until your trust is fulfilled, unless excused therefrom in any year by said Court, a true account of the property in your hands, and of the manage- 726 APPENDIX. ment and disposition thereof, and also to render sucli account at such, other times as said Court may order ; and At the expiration of your trust, to settle your account in said Court, and pay over and deliver all the estate remaining in your hands or due from you on such settlement, to the person or persons entitled thereto. Witness, , Esquire, Judge of said Court, at , this day of , in the year of our Lord one thousand nine hundred and Register. Petition for Receivership of Absent Person's Estate. [R. L. c. 144.] [A Surety Company required in all cases.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , of , in the County of , that , a resident of , in this Commonwealth, and having property therein, disappeared, absconded and ab- sented himself from this Commonwealth on the day of A. D. 1 ; that he has left no agent therein, and his whereabouts are unknown ; knoivn to be out of this Common- wealth, to wit. at ; that he has a wife and minor children dependent upon him wholly partly for support, and that he has disappeared without making sufficient provision for such sup- port ; that said absentee was years of age, a by occupation, and in the County of and Common- wealth of Massachusetts , was his last known residence and address ; that he disappeared on the date above-named under the following circumstances, to wit : and that the names and residences of the family of the absentee and of other persons of whom imquiry may be made are as fol- lows, viz: Name. Residence. Relationship. That a schedule of the property of said absentee within this Commonwealth, real and personal, and its location, so far as known, is herein contained, and the same is aU the property of PROBATE FORMS. 727 said absentee known to your petitioner to be in this Common- wealth ; that your petitioner is acting in behalf of the wife and child a of said absentee, and would be entitled to adminis- ter upon his estate if he were dead. Wherefore your petitioner pray that said property may be taken possession of by this Court ; that he , or some other suitable person, be appointed receiver of the same, and that a warrant issue therefor, and certif that the statements herein contained are true to the best of h knowledge and belief. Dated this day of A. d. 19 . , ss. Subscribed and sworn to this day of A. D. 19 . Before me, Justice of the Peace. SCHEDULE OF PROPERTY. Schedule of Property of , formerly of in said County of , absentee. Real Estate. Personal Estate. Location. Absentee — Order of Notice. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To an absentee who formerly resided in , in the County of , having property in said County ; to all per- 728 APPENDIX. S071S claiming an iyiterest in the property hereinafter named ; and to oil tohom it may concern : Whereas, a petition has been presented to said Court to appoint , of in the County of or some other suitable person, receiver of the folhjvving described property of said absentee, and whereas a warrant to take possession thereof has issued to an officer who has taken and now holds the same, to wit : You are hereby cited to appear at a Probate Court to be held at , in said County of , on the day of A. D. 19 , at nine o'clock in the forenoon, to show cause, if any you have, why the same should not be granted. And the petitioner is hereby directed to give public notice thereof, by publishing this notice once in each week, for three successive weeks, in the a newspaper published in , the last publication to be seven days at least before said Court; and by posting a copy of this notice, not less than thirty days before said Court, upon each parcel of land named herein, and in two or more conspicuous public places in , the city — town — in wliich the absentee was last known to have been, and by mailing, postpaid, at least thirty days before said Court, a copy of this notice to said absentee, addressed to him at , his last known address. Witness, , Esquire, Judge of said Court, this day of in the year one thousand nine hundred and Megister. Absentee — Return of Service of Order of Notice. I certify that I have served the foregoing notice as therein ordered, by publishing the same for three successive weeks in the the last publication in each newspaper being seven days before said Court, by posting a copy thereof upon each of said parcels of land, and in conspicuous places in the said of and by mailing, postpaid, to the said absentee, on the day of , 19 , a copy of tlie same addressed to him at , his last known address. PROBATE FORMS. 729 , ss. A.D, 19 . Personally appeared and made oath to the truth of the above return by h subscribed. Before me, Justice of llie Peace. Absentee — Warrant to Sheriff to take Possession OF Property. [R. L. c. 144.] COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To the Sheriffs of our several Counties^ or their Deputies, Greeting : You are hereby directed to take possession forthwith of all the following described property and estate, real and personal, of , formerly of , in the County of , absentee, and hold the same safely, subject to the order of the Court, to wit : And you are also directed to post a copy of this warrant upon each parcel of land named herein, and cause so much hereof as relates to land to be recorded in the Registry of Deeds for the County and District in which the land is located, and to make return of this warrant forthwith with your doings thereon, and ■with a schedule of all property taken possession of by virtue hereof, together with your costs and expenses thereon. In witness whereof, I have hereunto set my hand, and caused the seal of said Court to be affixed, at , this day of in the year one thousand nine hundred and Judge of Probate Court. Absentee — Decree on Petition for Appointment OF Receiver. COMMONWEALTH OF MASSACHUSETTS. , ss. At a Probate Court, holden at , in and for said County of , on the day of in the year of our Lord one thousand nine hundred and , 730 APPENDIX. The petition of of in the County of , praying that he , or some other suitable person, be appointed receiver of certain property and estate of , absentee, lying ii) part in in said County of , and described in the return of the officer, and the warrant and return thereon having been considered, after a hearing, it appearing that said disappeared from this Commonwealth on the day of in the year 1 , and that his whereabouts are un- known, and the said absentee and all other persons interested having been notified according to the order of the Court, to appear and show cause, if any they have, against the same, and no party objecting thereto; and it appearing that need for a receiver exists ; it is found by the Court and ordered to be recorded that the date of the disappearance of said absentee was the day of in the year 1 And it is decreed that said petitioner be appointed receiver of said property and estate described in said return, first giving bond, according to law, for the due performance of said trust, and that said officer transfer and deliver unto said receiver forthwith upon the filing and approval of his bond, all the property and estate named in the said officer's return. Judge of Probate Court. Receiver's Bond. [R. L. c. 144.] Know all Men by these Presents, That we, , of , in the County of , as princi- pal , and , of , in the County of , and , of , in the County of , as sureties, and all within the Commonwealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his suc- cessors in said ofBce ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors and administrators, jointly and severally by these presents. PROBATE FORMS. 731 Sealed with our seals, and dated the day of , in the year of our Loid one thousand nine hundred and The condition of this obligation is such, that if the ahove-bounden , receiver for all the property of , lately resident in , in said County of , an absentee shall, First, make and return to said Probate Court forthwith a true inventory of all the real and personal estate of said absentee that at the time of the making of the same shall have come to the possession of said receiver ; and, at such time as it may order, a true inventory of such additional property as may come into h possession hereafter; Second, manage and dispose of all such estate according to law and for the best interests of said absentee, and also the proceeds of an^^ of the real estate of said absentee that may be sold or mortgaged by said receiver , and faithfull3^ discharge h trust in relation to such estate and to the support and maintenance of his wife and minor children; Third., render upon oath, at least once a year, until h trust is fulfilled, unless he is excused therefrom in any year by said Court, a true account of the property in h hands, including the proceeds of all real estate sold or mort- gaged by h , and of the management and disposition thereof, and also render such account at such other times as said Court may order; and Fourth, obey all orders and decrees made by said Court ; Fifth, at the expiration of h trust, settle h account in said Court, or with said absentee or his legal representatives, and pay over and deliver all the estate remaining in h hands, or due from h on such settlement, to the person or persons lawfully entitled thereto. Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered in presence of , ss. , A. D. 19 . Examined and approved. Judge of Probate Court. 732 APPENDIX. Receivek's Letter. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To ^ of , in County of , and Commonwealth aforesaid. You are appointed receiver for certain property and estate of , formerly a resident of , in said Commonwealth , an absentee, which property is described in the follow- ing schedule, to wit: And you have full power and authority to take possession of the same, and to have the care, custody, leasing, investing and application of it and its proceeds under the direction of said Court; and likewise of any additional property, of said absentee, and its proceeds, which in future you may be authorized and directed to take possession of. You are required to manage and dispose of all such estate according to law and the orders of the Court and for the best interests of said absentee, and faithfully to discharge your trust in relation to such estate, and to the support and maintenance of the wife and minor children of said absentee ; To render, upon oath, a true account of the property in your hands, including the proceeds of all real estate sold or mortgaged by you, and of the management and disposition of all such property, at least once a year, until your trust is ful- filled, unless excused therefrom in any year by said Court; At the expiration of your trust to settle your accounts in said Court, or with said absentee or his legal representative, and to pay over and deliver all the estate and effects remaining in your hands, or due from you on such settlement, to the person or persons lawfully entitled thereto. Witness, , Esquire, Judge of said Court, at this day of in the year of our Lord one thousand nine hundred and Register. PROBATE FORMS. 733 Petition fok Assignment of Keal Estate in Fee ($5,000) — By the Court. [Superseded by R. L. c. 135, § 16 ; c. 140, § 3.] [The names of the guardians of minors interested must be stated. If part of the land of the deceased lies in common with others that fact must be stated, and a description of such land, the deceased's share therein, and the names of the co-tenants inserted in or annexed to the petition.] To the Honorable the Judge of the Probate Couii, in and for the County of Respectfully represents , of , in the County of , that , late of , in said County of , deceased, intestate, leaving no issue living, died seized of cer- tain real estate in this Commonwealth, that is h widow — husband and entitled to said estate in fee to an amount not exceeding five tliousand dollars in value; that the entire real estate of the deceased consists of the following described parcels, namely : and your petitioner further says that the whole of said real estate of the deceased, above described, does not exceed the value of five thousand dollars, as appears by the inventory filed in this Court, being of the value only of dollars, as your petitioner is prepared to verify ; and that the names and resi- dences of all other persons now interested therein are as follows : Wherefore he prays that the whole of said estate of said deceased may be assigned and set out to h in fee by said Court, as provided by law. Dated this day of a.d. 19 . The undersigned, being all the persons interested, hereby assent to tlie foregoing petition : Citation by delivering copy of citation to each person interested who can be found within the Commonwealth, fourteen days at least before return day ; and if any one cannot be so found, by publishing once a week for three suc- cessive weeks, the last publication to be one day at least before return day. 734 APPENDIX. Petition for Distribution among a Class — Trust Estate. [R. L. c. 147, § 20.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents trustee under the will of , late of , in the County of , for the benefit of the persons named below, that he holds as such trustee certain estate, to wit : that by the provisions of said will the said trust estate is to be distributed in among the heirs — the next of kin of in a class of persons, namely, the of whose names and jdaces of residence are supposed or claimed to be as follows : Name. Residence. Relationship. Share. Wherefore your petitioner pray that he may be ordered to convert the said trust estate into cash, and that distribution of the same may be decreed by the Court, among such persons as may be proved to be entitled thereto, according to law. Dated this day of a.d. 19 . ss. A.D. 19 . Then personally appeared and made oath to the truth of the above representation, accord- ing to the best of h knowledge and belief. Before me, Justice of the Peace. Citation by publishing once a week for three successive weeks, the last publication to be one day at least l)efore return day, and by mailing postpaid or delivering copy of citation to all known persons interested, fourteen days at least before return day. Petition for Distribution of Legacy among a Class. [R. L. c. 141, § 22.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents executor of the will of — administrator with the will annexed of the estate of PKOBATE FORMS. 735 late of , in said County of , deceased, testate, that, by the provision of the will of said deceased, a certain legacy, amounting to the sum of dollars, remains to be distributed among the heirs, the next of kin, of in a class of persons, namely, the , of , whose names and places of residence are supposed, or claimed to be, as follows : Name. Residence. Relationship. Shake. Wherefore your petitioner pray that distribution of such legacy may be decreed by the Court, among such persons as may be proved to be entitled thereto, according to law. Dated this , day of , a.d. 19 . , ss. A.D. 19 . Then personally appeared and made oath to the truth of the above representation, accord- ing to the best of h knowledge and belief. Before me, Justice of the Peace. Citation by publishing once a week for three successive weeks, the last publication to be one day at least before return day, and by mailing postpaid or delivering copy of citation to all known persons interested fourteen days at least before return day. Petition fob Amendment of Record. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents of , in said County, that on the day of A. d. 19 , he was appointed by this Court administrat of the estate of late of , deceased ; that said was also sometimes called and sometimes called Wherefore your petitioner prays that the files and records in said case may be amended by inserting after the name , wherever the same occurs, the words, — sometimes called and sometimes called Dated this day of A. d 19 . 736 APPENDIX. COMMON WP:ALTH of MASSACHUSETTS, ss. 19 . Personally appeared the above-named , and made oath to the truth of the facts by him set forth in the foregoing petition. Before me, Justice of the Peace. Separate Support — Petition for Execution — Trustee. To the Honorable the Judges of the Probate Court in and for the County of Respectfully represents of , in said County of , wife of of said , that on her petition for separate supjiort heretofore filed in said Court, an attachment of the goods and estate of her said husband, and also of his goods, effects and credits in the hands and possession of trtistee of her said husband, was made to secure the decree which she might obtain for such support. that said trustee has filed his answer that, at the time of the service of the Court's order upon him, he had in his possession dollars of the goods, effects and credits of her said husband, that said Court by its decree on said petition for separate support made on the day of A. D. 19 , ordered said to pay your petitioner, for the support of herself and the maintenance of minor children, the sum of dollars, forthwith, and a further sum of dollars on each and every thereafter, and that there now remains due and unpaid under said decree the sum of dollars, and that said neglects and refuses to pay the same, Wherefore your petitioner prays that said be charged on his ansiver as trustee, in the sum of dollars ; and that an execution issue in favor of your petitioner, for the sum of dollars, against the goods, chattels and lands of said PROBATE FORMS. 737 and against his goods, effects and credits m the hands and possession of trustee of said jointly and severally. Dated this day of A. d. 19 . Citation by delivering a copy to husband, if found in the Commonwealth, at least seven days before return day ; and, if not so found, by publication once a week for three successive weeks, the last publication to be one day at least before return day. Separate Support — Petition to charge Trustee and FOR Execution. To the Honorable the Judges of the Probate Court in and for the County of Respectfully represents of , in said County of , , wife of of said , that on her petition for separate support heretofore filed in said Court, an attachment of the goods and estate of her said husband, and also of Ms goods, effects and credits in the hands and possession of trustee of her said husband, was made to secure the decree which she might obtain for such support. that said trustee has fled his answer that, at the time of the service of the Court's order upon him, he had in his possession dollars of the goods, effects and credits of her said husband, that said Court by its decree on said petition for separate support made on the day of A. d. 19 , ordered said to pay your petitioner, for the support of herself and the main- tenance of minor children, the sum of dollars, forthwith, and a further sum of dollars on each and every there- after, and that there now remains due and unpaid under said decree the sum of dollars, and that said neglects and refuses to pay the same, Wherefore your petitioner prays that said be charged on his answer as trustee, in the stim of dollars ; and that an execution issue in favor of your petitioner, for the sum of dollars, against the goods, chattels and lauds of said 47 738 APPENDIX. and against his goods, effects and credits in the hands and pos- session of trustee of said jointly and severally. Dated this day of A. D. 19 . Citation by delivering a copy seven days at least before return day or by publication once a week for three successive weeks, the last publication to be one day at least before return day. Separate Support — Execution — Trustee. COMMONWEALTH OF MASSACHUSETTS. , ss. Probate Court. To the Sheriffs of our several Counties, or their Deputies, or any Constable of the City of , in said County, Greeting : Whereas, on the petition of , of , in said County of , wife of , of said , said Court, by its de- cree made on the day of a. d. 19 , ordered said to pay said for the support of herself and the main- tenance of their minor children, the sum of dollars, forth- with, and a further sum of dollars on the day of each and every thereafter ; and whereas, under said decree, there now remains due and unpaid the sum of dollars, whereof execution is requested to be done ; and whereas, on the day of a. d. 19 , it was ordered by said Court that execution issue for the sum of dollars against said , and against the goods, effects, and credits of the said , in the hands and possession of , trustee of said , as appears of record in this Court, whereof execution remains to be done : You are hereby commanded, therefore, that of the goods, chat- tels, or lands of the said , in his own hands and possession within your precinct and of the goods, effects, and credits of said , in the hands and possession of said trustee, jointly and severally, you cause to be paid and satisfied unto the said TROBATE FORMS. 730 , at the value thereof in money, the sum of dollars, with interest thereon from said , and thereof also to satisfy yourself for your own fees ; and for Avant of goods, chattels, or lands of the said , to be by him shown unto you, or found within your precinct, to the acceptance of the said petitioner to satisfy the sums aforesaid, with interest as aforesaid; and for want of goods, effects, and credits of said , in the hands and possession of the said trustee, to be by him discovered and ex- posed to you, to satisf}' the said sum, with interest as aforesaid, with your own fees, you are commanded to take the body of said , and him commit unto our jail in , in our County of , or any jail in your precinct, aforesaid, and him detain in your ci;stody within our said jail until he pay the full sum of , dollars with interest and your fees as aforesaid, or that lie be discharged by the said petitioner, or otherwise by order of law. Hereof fail not ; and make return of this writ, with your doings therein, into the Registry of Probate at , in said County of , in sixty days after the date hereof. Witness, , Esquire, , Judge of said Court, this day of , in the year of our Lord one thousand nine hundred and Register. Petitiox for Leave to Deposit ix Savings Baxk. [R. L. c. 150, § 25.] To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents , that he is execut — trustee under the will — administrator of the estate — guardian of , late of , in said County of , deceased ; that it is advisable to deposit the sum of dollars in a savings bank for the benefit of , for the reason that h is of residence unknown to the petitioner , a minor and has no guardian. Wherefore your petitioner pray that he may be allowed to deposit said sum in the , in the name of the Judge of 740 ArrENDix. said Court, to accumulate for the benefit of the person entitled thereto. Dated this day of , 19 . Guardian's Bond — Insane Person. Know all Men by these Presents, That we, of in the County of as principal , and of in the County of and of in the County of as sureties, and all within the Common- wealth of Massachusetts, are holden and stand firmly bound and obliged unto , Esquire, Judge of the Probate Court in and for the County of , in the full and just sum of dollars, to be paid to said Judge and his successors in said office ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors and administrators, jointly and severally by these presents. Sealed with our seals, and dated the day of in the year of our Lord one thou- sand nine hundred and The condition of this obligation is such, that if the above-bounden guardian of of , in said County of , an insane person, shall : — First,- make and return to said Probate Court, at such time as it may order, a true inventory of all the real and personal estate of said ward that at the time of the making of such in- ventory shall have come to the possession or knowledge of said guardian ; Second, manage and dispose of all such estate according to law and for the best interests of said ward, and faithfully discharge h trust in relation to such estate, and to the custody and maintenance of said ward; Third, render upon oath, at least once a year, until h trust is fulfilled, unless h is excused therefrom in an}' year by said Court, a true account of the property in h hands, including the proceeds of all real estate sold or mortgaged by h and of the PROBATE FOKMS. 741 management and disposition thereof, and also render such ac- count at such other times as said Court may order ; and Fourth, at the expiration of h trust, settle h account in said Court, or with said ward, or h legal representatives, and pay over and deliver all the estate remaining in h hands, or due from h on such settlement, to the person or persons law- fully entitled thereto ; Then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed and delivered in presence of , ss. A. D. 19 . Examined and approved. Judge of Probate Court. I, the within-named guardian, declare that, to the best of my knowledge and belief, the estate and effects of the within- named ward do not exceed in value the following-men- tioned sums, viz. : Eeal Estate, $ Personal Estate, f [sign] Petition by Commissioners for Sale of Real Estate. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represent that they are the commissioners appointed by said Court to make partition of certain real estate hereinafter described, among the tenants in common thereof, Said real estate is situat , in said County of , and is bounded and described as follows, to wit : That said real estate cannot be advantageously divided. Wherefore your petitioners pray that they be ordered by said Court to make sale and conveyance of said real estate at public auction for cash, and to distribute and pay over the net proceeds of the sale in such manner as to make the partition just and equal. 742 APPENDIX. The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by delivering a copy to each person interested who can be found in the Commonwealth, fourteen days at least before return day ; and, if any one cannot so be found, by publication once a week for three successive weeks, the last publication to be one day at least before return day. Petition fob Trusteeship to fill Vacancy. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents of , in the County of , that late of , in said County of , deceased, testate, by h last will and testament, duly proved and allowed on the day of A. d. 19 in said Court, did therein give certain estate in trust for the use and benefit of that was duly appointed trustee thereof, and has before the objects of said trust have been accomplished, that there is no adequate provision made in said will for supplying the vacancy caused by said that your petitioner is will- ing to accept said trust, and give bond according to law, for the faithful discharge thereof; he therefore pray that he, or some other suitable person, be appointed trustee as aforesaid, according to the provisions of the law in such case made and provided. Dated this day of A. d. 19 . The undersigned, being all the persons interested, hereby assent to the foregoing petition. Citation by publication once a week for three successive weeks, the last publication to be one day at least before return day. PROBATE FORMS. 743 Petition for Leave to bring Suit on Bond. To the Honorable the Jiid(je of the Probate Court in and for the County of Respectfully represents of , in said County of , that lie is and is interested in the estate of late of said , deceased ; that by a decree of said Court, dated the day of a. d. 19 , of said , was duly appointed executor — administrator — of the will — estate of said deceased , and gave bond with of and of as sureties, for the faithful performance of the trust of executor — administrator as aforesaid; that, and said has failed to perform h duty in the discharge of said trust. Wherefore your petitioner prays that he may be authorized to bring an action in the Superior Court upon the bond of said executor — administrator — in the name of the Judge of the Probate Court, for the recovery of the damage sustained by such neglect and maladministration of said Dated this day of a. d. 19 . Waiver of Will. [R. L. c. 135, § 16.] [This waiver must be filed in the registry of probate within one year after the probate of the will. If curtesy or dower is desired the claim therefor under R. L. c. 132, § 1, must also be filed within one year.] To the Honorable the Judges of the Probate Court in and for the County of ': Respectfully represents of in the County of , that he is the widow — husband — of late of in the County of , deceased, that the will of said deceased was admitted to probate in said County by decree of this Court dated 19 , and he doth hereby waive any provisions that 744 APPENDIX. may have been made in it for h and doth claim such portions of the estate of the deceased as he would have taken if the deceased had died intestate. Dated this day of 19 . Claim of Dower or Curtesy and Waiver of Will. [R. L. c. 132, § 1.] [This claim must be filed within one year from the approval of the bond of the executor or administrator of the deceased. If the deceased left no will, the clause below relating thereto should be omitted. If the deceased was Insolvent or nearly so, or had in his life- time conveyed real estate which was a large part of his whole estate, without the claimant herein joining, it may be for the interest of such to claim curtesy or dower in place of the provisions in fee of the above named chapter, as they are subject to the debts of the de- ceased, while curtesy or dower is not.] To the Honorable the Judges of the Probate Court in and for the County of Respectfully represents of in the County of that he is the widow — husband — of late of in the County of , deceased; that on the day of 19 , the bond of the executor — administrator — of the estate — will — of the deceased was approved by this Court, and that he doth hereby elect and claim dower — cur- tesy — in the estate of the deceased, instead of the interest in real property of the deceased given in section three of chapter one hundred and forty of the Revised Laws. And he doth also hereby waive any provisions that may have been made in the will of the deceased for h and doth claim such portions of the estate of the deceased as h would have taken if the deceased had died intestate. Dated this day of 19 . INDEX. INDEX. A. ABANDONED PROPERTY OF NON-RESIDENTS, page appointment of receiver for, wlien and how 342-346 ABSENTEES, ESTATES OF, appointment of receiver for, when 341-346 distribution of 345, 346 lease and sale of, by receiver 344, 345 settlement of 345, 346 ABSENT HEIR, presumption of death of, when 357 no presumption of marriage or issue of 357 ACCOUNTS, administrators and executors allowed for, assessments paid, if legally laid 296 charges of administration 299 certain claims paid, when estate is insolvent 298 costs and expenses of suits 300, note debts paid, if legally due 295 debts due themselves and interest thereon 303, 304 expenses of last sickness of deceased 298 funeral expenses 298 judgments rendered against them 300 loss on sale of personal property 302 money paid surety on probate bonds 300, note not, for claims barred by statute of limitations 297 not, for distributive payments to residuary legatees .... 304 chargeable for, amount of debts uncollected by their neglect 290 compound interest, when . " 293 debts due from themselves 294 gain on sale of personal property 286 interest on funds in their hands, when 292 interest, profit and income of personal property 286 748 INDEX. ACCOUNTS (continued). paob chargeable for, not, for property stolen without their default 289 proceeds of real estate sold 286 profits of business of deceased, if continued by them . . • 290 rents of real estate, when 293 value of personal property, whether inventoried or not . . . 286 of property lost through their negligence 288 administi-ators, executors, guardians and trustees, to render annual 279 to render, although not legally appointed 280 auditor may be appointed to examnie 312 citation to render, how issued 284 may issue, though executor, etc., has settled with parties and taken their receipts 281 conservator to render 143 evidence of payment or delivery by administrator, etc., how per- petuated 316, note executor, etc., faiUng to render, may be cited 284 failure to render, unfaithful administration 162, 230, 284 final, not to be settled until succession tax paid 279, 316 form of 285 second and additional 304 guardian ad litem, when appointed 313, 314 guardians allowed for , expenses of guardianship and services 311 expenses of ward's support and education, when 309 interest on advances 310 guardians and trustees chargeable for, compound interest, when 307 gain on sale of personal property 305 income of real estate 305 interest received 306 loss of interest from neglect to invest 306 losses from improper investments 306 value of personal property as inventoried 305 notice of presenting for allowance, to be given, unless .... 312 who entitled to 312 of joint executors, etc , may be allowed on oath of one .... 315 one of two joint executors, etc., dying, survivor to render . . . 281 public administrator to render on appointment of successor . . . 282 on first day of January annually 283 neglecting to render, district attorney to act 283 separate, to be rendered by guardian of several wards jointly interested 312 settled, when may be opened to correct error 316 INDEX. 749 ACCOUNTS (continued). paok sole executor, etc., dying, by whom to be rendered 281 special administrators to render, when ordered by court .... 280 trustees allowed for expenses of trust and services 311 ACTIONS {bij and against executors and administrators), barred, wlien estate exhausted by payment before notice of claim or by payment of preferred claims, etc 203, 204, 212, 214 limitation of, against executors and administrators 124, 195, 199, 200, 203 proceedings when creditor's right of action accrues after two years . 199, 200 survival of . . 494, note, 495, note set-off, riglit of 205 tort, liability of executor or administrator in 205, 495 trustee process against executors and administrators 499 (See Executor, actions by and against.) ADMINISTRATION, ancillary 104 county, in what must be applied for 106 creditors entitled to administer, when 112 de bonis non 102,103,114 to whom granted 114 de bonis non with will annexed 103 granted, in what cases and where 102 granted to public administrator, when 109 kindred, lineal or collateral 109 next of kin, who are 108 when entitled to administer 107,110 original, to whom granted 107-114 petition for 115 notice of, to parties interested 116 notice of, when dispensed with 117 presumption of death, when 118 proof of death 118 special, when granted 104 revoked by proof and allowance of will of deceased 165 renunciation, by party entitled to administer, to be in writing . . 117 time, within wliat must be applied for 106 widow, right of to admmister 107, 110 ADMINISTRATOR, account. (See Accounts.) settlement of, when good defence to suit on bond . . . 205, note actions bi/ and against. (See Executor, actions by and against.) affidavit of notice of appointment of 193 750 INDEX. ADMINISTRATOR {continued). page appointment of 102-125 notice of, to be given 192 authority of, except special administrator, suspended pending appeal from decree appointing 123 bond of • 119 exempt from giving sureties, when 120, 121 creditor, when may be 107 de 6on«s ??on, when appointed 102,103,114 bond of 120 de bonis non with will annexed, when appointed 103 bond of 120 domestic trust company may be 108 husband of married woman, right to be 107 collateral legacies and successions, taxes on to be paid by . 204, note, 208, note collection of the efEects by 174-176 complaints by or agaiust for fraudulent concealment, embezzle- ment, etc., of property of the estate 175 corporation stock, liabiUty of administrator, etc., for 502 right of voting on 502 delivery of property by or to successor, enforcement of . . . 13, 165 distribution ~ 354 setoff against distributive share of debt due from distributee . . 207 inventory to be returned within three months from appointment, by, except by administrator with will annexed who has given bond as residuary leg'^2 settlement of estates of deceased non-residents 341, 353 what real estate descends 820 wife, action by, for recovery of interest in deceased husband's estate, not to te brought after twenty years 332 rights of, in husband's property under Public Statutes . . 324-326 under Revised Laws 326-329, 336 allowances to, as necessaries 323 real estate to be sold to pay, when 329 cemeteries, lots in 332-334 dower, assignment of 327 claim for necessary, and when to be made 327 entitled to against all but mortgages, etc., although released in mortgage, when 328 none in wild land, except 328 husband's house, may occupy for six months rent free .... 328 share of, if husband dies intestate 329, 330 summary of changes by Revised Laws as to rights of, in husband's propertj' 336-338 waiver by, of husband's will, when to be made and effect of . . 331 DEVISE, to attesting witness to will void, unless 40 DEVISEES AND LEGATEES, contribution among 352, 460 dying in life-time of testator, issue of to take share of deceased, unless 352 liable to suit, when 202 refund of collateral inheritance tax to, when . 204, note, 356, note, 521 DIPSOMANIACS, commitment of 8, note, 492, 493 DISCOVERY, of facts and documents, interrogatories for 14 proceedings for, in case of concealment of will 92 embezzlement, etc., of property of deceased persons and wards 14, 15, 175 DISTRIBUTION, advancements of real and personal property 360 evidence of 361 method of distribution, in case of 363 questions concerning, how determined 361 value of 363 INDEX. 765 DISTRIBUTION {continued). page widow's share, in case of 363 anioug class, of legacy under will, how made 359 balances in hands of public administrators 368 collateral inheritance tax, payable on ... 204, note, 358, note, 517 debts due from heir or distributee to be set off or deducted . . . 359 decree for, and effect of 354 form of 356 perpetuation of evidence of payments to under 363 persons to be included in, how determined 357, 358 presumption of death, wlien 357 no presumption of marriage or issue 357 final discharge of executor, etc., on 365 final, of money deposited or invested by order of court .... 369 foreign guardians and trustees, payments to 372 partial, when 359 petition for decree of 355 notice of 355 time for making 258 DISTRICT COURT, may issue scire facias against administrators, etc 206 DOWER, assignment of 327, 397-427 barred, how 400, 408 claim of, how and when to be made 327, 397, 408 commissioners, appointment of, to assign 411 appraisal by 412 assignment by metes and bounds, except 413 dwelhng-house 414 mill, etc 413 notice to be given by, except 412 oath of 412 return of, form, etc 414 citation on 415 confirmation and record of 415 conveyance free from, when 269, 401 divorce, effect of, on 400 estate of, at common law 398 marriage, seisin of husband during coverture, and death of husband, necessary to establish claim to 399 lands, what subject to 397, 401-406 held in common 402 leased for long term 405 mines and quarries 402 mortgages, except as to mortgagee, etc 403 766 INDEX. DOWER {continued). paoe taken on execution against husband or his executor or admin- istrator 406 wild lands, not, except 401 limitation of claim or suit by widow for, and for interest in realty 332,410 petition for assignment of, or of other interest, form of, etc. . . . 410 citation on, issue and service of 411 description of land, when necessary . . " 411 present value of estates of 419 tables showing 420, 421 proceedings for assignment of 410-416 proceeds of release of, reserved for wife, when 400 tables sliowing present value of 420,421 value, present of estates of 419,420,421 waiver by widow of provisions of will 406 widow, assignment of her undivided life interest other than dower . 42(3 endowed anew, after eviction, when 415 writ of, and proceedings under 410-419 E. EMBEZZLEMENT, of property of deceased persons or wards 175 proceedings for discovery 14, 175 punishment for 502 EQUITY, jurisdiction of probate court, in 9, 157, 158 ESTATE BY THE CURTESY. (See Curtesy, Estate of.) ESTATE IN LIEU OF DOWER. (See Dower.) EVIDENCE, of declarations of testator, how far admissible . . . .49, 55, 58, 62 of handwriting of attesting witness, when admissible 73 of " mark " of attesting witness 74 parol, admissible, of testator's intentional omission to provide for child 350,351 on questions of testator's sanity 46-55 perpetuation of, that executor, etc., gave notice of appointment . 193 notice of time and place of sale of lands 255 of delivery of property by administrator, etc., under decree . 316, note of payments under order of distribution 232,233,366 presumption as to attestation of witnesses to will 36 of death of absent person 118, 357 of testator's intention to revoke will 63 INDEX. 767 EVIDENCE {continued). page of testator's knowledge of contents of will . 35 of testator's sanity . 46 EXECUTION, for costs, may be issued by probate court 15, 16 Land held on, by executor, etc., deemed personal estate .... 245 may be sold, before foreclosure of rigiitof redemption, in same manner as personal property . . 245 if not sold or redeemed, to be distributed as personal estate 320, note EXECUTOR. account. (See Accounts.) {Actions hij or against.) actions against, barred wlien estate exhausted by payments before notice of claim, and by payment of preferred claims 203, 204, 212,214 costs in 497 death or removal of executor, etc , pending, proceedings on . . 498 death or removal of executor, etc., after judgment, proceedings on 4'J9 executions in, except for costs only, run against goods and estate of deceased in hands of executor, etc 497 not held to answer to, commenced within one year from appoint- ment, unless 203 proceedings in, when creditor's right of action accrues after two years 203 replevin or tort for goods detained, property or money recov- ered in not assets in hands of executor, etc 497 scire facias, when issued in • . . . . 498, 499, 500 set-off, right of, in 205 survival of 494, note actions which do not survive 495, note tort, liability of executor or administrator in 205, 495 trustee process in, what subject to attachment by 499 death of person summoned as trustee in his own right, pro- ceedings on 500 execution against executor, etc., as trustee, runs against goods or estate of deceased on his hands 501 remedy by suit on bond of executor, etc., adjudged trustee, when 501 writs of attachment or execution in, run against goods or estate ' in hands of executor, etc 497 writs of sc(Ve/«cuts, when issued 498,499,500 affidavit of notice of appointment of 193 appointment of 94 irregularity in, effect of 99, 100 bond to be given by 96 exemption from giving sureties on, when 99 763 INDEX. EXECUTOR {continued). paob bond when executor is residuary legatee 97 collection of the effects by 174 collateral legacies and successions, taxes on to be paid by . 204, note, 208, note complaints by or against for fraudulent concealment, etc., of prop- erty of the estate 175 corporation stock, liability of executor, etc., for 502 right of voting on 502 delivery of property by, to successor, enforcement of . . . .13, 105 inventory to be returned by, within three months after appoint- ment, except when executor has given bond as residuary legatee 168, 169 vehat to include and by whom made 167-173 legacies, deposit of 206, note payment of 206 set-off against, of debts due from legatee 207 liability of, for loss resulting from his unreasonable delay or neglect 176 liability of, under license for sale of real estate 260, 261 married woman may be execiutrix 95 minor cannot be 95 mortgage of real estate by, how authorized 272 notice of appointment of, to be given 192 proof of giving, by affidavit 193 release by, of certain vested, contingent, or possible interests in real property, when authorized 272 removal and resignation of 159-166 decrees making removal, effective, pending appeal, unless . . 106 grounds for removal 159, 160, 162 conflict of interest 159 insanity or incapacity 159 neglect to furnish bonds, sureties, or to render account when required 162 removal from State and failure to appoint agent here 162 unfaithful administration 162, 230 non-resident, to appoint agent in this Commonwealth .... 95, 1U4 removal of, petition for 163 notice of petition to be given 164 right of, to vote at corporation meetings 502 sale of outstanding debts and claims by, when authorized . . . 185 of personal property 184 sale of personal property, by foreign 186 sale of lots in cemeteries by, and by administrators 277 sale of real estate by, and by administrator ......... 239-262 adjournment of 256 INDEX. 769 EXECUTOR (continued). paok affidavit of notice of 255 and note deed under license for, form, etc 260 executor or administrator not to be purchaser at . . . 256, 257 foreign executors and administrators • 262 license for, granted to pay debts and legacies .... 239, 242 continues in force for one year only 253 granted to administrator on consent of all parties interested, unless real estate exceeds $1,500 in value 241 granted for payment of tax on collateral legacies and suc- cessions 242, 243 must coucur with petition ; . . . . 251 not granted to executor who has given bond as residuary legatee 242 not granted when the only debt is secured by mortgage . 240, note not ordinarily granted after two years 252 not granted when parties interested pay executor or adminis- trator amount needed to pay claims against estate .... 249 notice to parties interested of petition for 248 when dispensed with 248 petition for, form, etc 245 hearings on, adjudication of probate court as to existence of debts and charges, final 249 what real estate maj- be sold under 243-245 ■will, provisions of, as affecting 247 marshalling assets for pajnnent of debts, as affecting 252 necessit}' of, to be shown 248 notice of time and place of 254 proof of giving 255 proceedings when affidavit of, has not been filed 255 proceeds of, balance remaining on settlement of account of executor, administrator, or guardian to be considered as real estate and distributed accordingly 261 to be by public auction, unless authorized to be by private sale 250, 251, 256 purchaser at, protected against certain irregularities . . . 257-259 registered land 492 statute requirements as to 258 of whole or part of real estate, when authorized 250, 251 scire facias, writs of, when may issue against 206, 444 temporary investment by, how authorized 190 who may be 95 EXEMPLARY DAMAGES,* administrators and executors not liable to 205, 495 EXPERTS, evidence of, on questions of sanity 47, 48 49 770 INDEX. F. FATHER, FAOB administration, entitled to, when 110 custody of his child, entitled to, although other person is guardian . 128 estate of child descends to, and to mother 321 may appoint by will guardians for his cliildren 131 may not appoint bv will guardians for other children, though he gives them his property 131 rights of, how affected by adoption of children 482 FEEBLE-MINDED, commitment of 8, note FOREIGN EXECUTORS AND ADMINISTRATORS. (See Non-Resident Executors and Administrators.) FOREIGN GUARDIANS. (See Non-Resident Guardian.) FOREIGN TRUSTEES. (See Non-Resident Trustees.) FORMS, PROBATE. (See Lidex to Probate Forms.) authority to prescribe 10, 11 FRAUD, will obtained by, void 55, 56 FRAUDULENT CONCEALMENT, of estate of deceased persons and wards, proceedings for dis- covery 14, 175 FRENCH SPOLIATION AWARDS, bond required of administrators of, condition of 446, 447 jurisdiction of probate court as to ...... 8, note, 9, 446, 447 "FULL AGE," when attained 31, note G. GRANDCHILDREN, when entitled to administer as next of kin 109 when inherit 347 GRANDPARENTS, when entitled to administer as next of kin 109 when inherit 347 GUARDIAN, account. (See Accounts.) administrator of estate not to be, of heir of same estate .... 1.31 appointment of r26-14.'> bond of 140 INDEX. 771 GUARDIAN {continued). page exempt from giving surety, when 142 complaint by or against, for fraudulent concealment of ward's property 175 delivery of property by, to successor, enforcement of .... 13,165 discharge of 137 domestic trust company may be 129 of insane persons 133-137 proceedings on petition for appointment of 133-136 release by, of curtesy, dower, or homestead .... 186, 137, 457 reservation for insane person of portion of proceeds, when 137, 268, 401, 458 inventory to be returned when directed by court 169 what to include and by whom made 171-173 marriage of female under guardianship deprives guardian of right to her custody and education 166 of married women 139 release by, of ward's dower or homestead estate . . . 140, 260 of minors 126 minor over fourteen years of age, right to nominate .... 127 power and duties of guardian of minors . . 128, note, 127-129, 263-265 natural, father and mother, and equally entitled to custody and care of minor cliild 126, note natural, has ordinarily custody of child 127, 128, note non-resident, to appoint agent resident here 194 of persons out of the state 138 petition for appointment of 131 for removal of < . . . 163 notice of, to be given 164 purchase of interests in ward's real estate, may be authorized to make 451 release by, of certain vested, contingent, or possible interests in real property, when authorized 272 of damages for land taken by railway companies 502 removal and resignation of 159-166 decrees making removals, effective, pending appeal, unless . 166 grounds for removal 159, 161, 162 conflict of interest 159 incapacity or insanity 159 neglect to furnish bond when required 159 unfaitlifiil administration 162 unsuitability 161 sale and investment of personal property by 187 sale of real estate by 263-270 agreement with wife of insane ward as to her release of dower and homestead, upon 267 772 INDEX. GUARDIAN (continued). paob homestead 264 of minors, for maintenance or investment 264, '^^65 for payment of debts and charges 263 by foreign 270 of wood, standing or growing 264 private sale, wiien authorized 270 public sale, unless private authorized 264, note of whole or part, may be authorized 263 license for, notice of petition for to be given 265 notice of petition, what to be given in case of insane person or spendthrift 266 petition for, form, etc 263, 264, 265 notice of time and place of, what to be given 266 proceeds of, how to be applied or invested 266, 267 of spendthrifts 133-136 proceedings on petition for appointment of . . . 134, 134, note, 135, 136 temporary 133 testamentary ' 131 bond of 141 exempt from giving sureties, when 141 who are suitable to be 129-131 GUARDIAN AD LITEM, appointed when 313, 314, 382, 481, 482 GUARDIANSHIP, support of minor children under 454 H. HABEAS CORPUS, when probate court may issue writs of 462 HANDWRITING, of attesting witness to will, when may be proved 73 HEIRS, who to be, of intestate property 321, 347, 348 HOMESTEAD, estates of 421 partition may be made of 377, 424 released, how 423 right of, of insolvent persons 425 sale of, by guardian, when by widow, when 424 HUSBAND, action by, for recovery of interest in deceased wife's estate, not to be brought after twenty years from her decease 332 INDEX. 773 HUSBAND (continued). pase to administer wife's estate, unless 107 may be prohibited from imposing restraint on personal liberty of wife 452 paying funeral expenses of wife, may recover them from her executor 211, note rights of in wife's property under Public Statutes 322-326 under Revised Laws 326-336 summary of changes made by Revised Laws as to rights of, in wife's property 334-336 support of wife living apart from, for justifiable cause .... 452 waiver by, of wife's will, when to be made and effect of . . 330, 331 I. ILLEGITIMATE CHILD, heir of mother and of any maternal ancestor 341 intermarriage of parents and acknowledgment by father, renders legitimate 341 mother of, natural guardian 126, note mother of, to be heir of 341 omitted in parent's will, not to share in his estate 351 INFANTS, cannot administer 95, 112 cannot dispose of property by will 31 full age, when attained by 31, note INHERITANCE, by " right of representation," how construed 346, 347 INSANE PERSONS, appointment of guardian for 133-138 commitment of 8, note, 492, 493 privileges and discharge of, after commitment 503 release and sale of property or rights of. (See Guardian.) trustee may, in certain cases, convey real estate free from all right of curtesy or dower of 269 INSANITY, attesting witnesses to will, may give opinion as to, of testator . . 47 contents of will, etc., admissible as to 49 eccentricity distinguished from 50 evidence on tlie question of 47 experts, testimony of, as to 47, 48 fact of guardianship as evidence of 49 hereditary 49, 50 induced by what diseases 52 774 INDEX. INSANITY {continued). paob intemperance 53 life, opinions, and habits of testator reviewed, to test allegations of 51 lucid intervals 53 partial — monomania 54 suicide as evidence of 48 INSOLVENT DEBTORS, rights of homestead 425 INSOLVENT ESTATES OF DECEASED PERSONS, actions against, by creditors, after representation of insolvency . 233 claims against, contingent, provisions as to 224 interest on, how computed 222 order of preference in payment of 211, 231 proof of 218 extension of time for proof of 216 not provable unless suit brought or presentation to commis- sioners or court for allowance within two years after bond given by administrator 217, 218, note not proved before commissioners or court, barred except as to new assets 234 secured, not provable until security surrendered or its value deducted 221 time allowed for proof of 216 vFhat are provable 220 and note, 221, 222, and notes commissioners, appeals from decisions of, or of probate court . . 226 allowance of and effect 228 claim, entry, and notice of 226 statement of claim to be filed 227 ■waiver of and arbitration, 228 commissioners, appointment of to examine claims against . . . 215 creditors, list of, to be furnished to by executor or adminis- trator 218 examination of claimants by 219 return of 223 and note creditors, proof by of claims against 215-226 secured, to surrender or deduct value of security before prov- ing claim 221 when required to refund payment 213 deposit of unclaimed dividends on 232 and note distribution of 229 decree or order directing form of, etc 232 evidence of payments under decree of, how perpetuated . . 229 final, not made until settlement of accounts of executor or administrator 230 INDEX. 775 INSOLVENT ESTATES, ETC. (continued). paoe priority of payment in making 231 dividen, 459 delivery of property by executors, etc., to successors, enforcement of 13, 165 INDEX. 785 PROBATE COURTS (rontinued). pao, deposits or investments 13,14,190,191,206,232,388 deposits, unclaimed, disposal of 232, 307, 368 distriliution of intestate estates 354 dipsomaniacs, commitment of 8, note, 492, 493 dower, assignment of 327, 397 dower, release of, of insane wife .... 136, 140, 268, 269, 456, 457 dower, proceeds of, reserved for wife 1.37, 268, 401, 458 enforcement of delivery of property by executors, etc., to succes- sors 13, 165 equity jurisdiction, concurrent with supreme judicial and superior courts as to trusts, wills, and administration of estates of dece- dents 9, 157, 158 exclusive and original jurisdiction, when 7, 10, 455 executors, etc., appointment of 7, 8 feeble-minded, commitment of 8, note French spoliation awards 8, note, 446, 447 guardians, appointment of 8, note, 126 complaints for concealment of property by 175 delivery of ward's property to successor, enforcement of . 13, 165 leases by, of ward's real estate 278 sales by, of ward's real estate 263 homestead, setting off and sale of 264, 423, 425 release of, by guardian of insane person . . . 136, 140, 268, 457 insolvent estates of deceased persons 211-238 inebriates, commitment of 8, note, 492, 493 insane persons, commitment of 8, note, 492, 493 investments or deposits by executors, etc 13, 190, 232 jointure, assignment of 339 juvenile offenders, commitment of 491, 492 legacies, distribution of 359 liberty, personal, proceedings to obtain when wrongful depriva- tion of 8, note married women, petitions relative to separate estate of .... 9 support of, when iivmg apart from husbands . . . 451, 463 minors, appointment of guardians for 126 authorization of marriage of, 8, note petitions for care, etc., of 9, 452, 455, 463 petition for support of 8, note, 129, 452, 455 partition of real estate, concurrent with superior court . . . 374 of registered land 396 religious societies, removal of trustees of 163, 164 rules and forms of, to make .... ........ 11 sales and mortgages of land by conservators . . . 143, 263-270, 273 by executors, etc 8, note, 239-263, 272, 273 by guardians 263-270, 273 50 786 INDEX. PROBATE COURTS (continued). page for payment of collateral succession tax .... 208, note, 518 by receivers 8, note, 344, 345 of registered land, by receivers, etc 492 by trustees 8, note, 137, 187, 240, note, 273 sales of personal property by executors, etc 184 specific performance of decedent's or ward's agreement to convey real property 8, note, 448 support of minor child by parents 8, note, 129 of children or wife of insane person under guardianship 183, 310 taxes, apportionment of, on collateral legacy 208, 518 taxes on collateral legacies and successions, to determine all ques- tions relative to 8, note, 522 trustee, appointment of, etc 144-158 trusts created by will or other written instrument, in equity 9, 157, 158 (sessions of) 26, 27, 488-491 adjournment of 27 always to be open for hearing, etc 26, 27 holiday, time of holding when regular term occurs on .... 27 PROBATE OF WILL, citation on petition for 71 dispensed with, when 72 how served 71 conclusively establishes due execution 29 facts necessary to be proved for 30, 31 necessary, to give it effect 30 not barred by partial revocation 6t) of nuncupative wills 83-87 of wills accidentally, etc., lost or destroyed 79 of wills made out of the State 78 petition for, to be filed with will 71 certificate to be appended to 71 PUBLIC ADMINISTRATOR, accounts to be rendered by 279, 282 appointment of, notice to be given within three months .... 192 afiidav it of notice of appointment to be made by 193 proceedmgs when notice not given 193 authority of, over estate ceases, if husband, widow, etc., takes administration 114 bond of 121 deposit by, of balances with state treasurer 282, 367 duty of, on appointment of executor or administrator as successor 282 duties of, how enforced 369, 370 entitled to administer, when 114 not entitled to administer, when husband, widow, or heir claims administration, or requests appointment of some suitable person 114 INDEX. 787 PUBLIC ADMINISTRATOR (continued). page inventory, to be returned by 168 letters to be revoked, if will of deceased is afterward proved . . 165 limitation of actions against 195 neglect of, to return inventory or perform otiier duties .... 283 not liable to actions within one year, except 202 notice to, of application of heir, etc., to take administration, what required 309 may adjust claims by arbitration or compromise when authorized by court 449 may give separate bond for each estate or general bond .... 121 may be licensed to sell lands for payment of debts 239 after three years may be licensed to sell lands not required for payment of debts, when 271 proceedings in such case 271 may represent estate insolvent 212 sales of property by, how authorized 271 surrender by, of letters of administration, on appointment of executor or administrator 282 R. REAL ESTATE, descent of. (See Descent. ) held by executors, etc., in mortgage or on execution, deemed per- sonal estate 245 income of, to be accounted for by guardians and trustees . . . 306 to be accounted for by executors and administrators, when . 293 may be sold for distribution, when 240 partition of. (See Partition.) specific performance of agreement for sale of, how enforced . . 448 surplus of proceeds of land sold by executors, etc., to be deemed and disposed of as 261, 330 REGISTER OF PROBATE, appraisers, may be appointed by 23 assistant registers, appointment of 28 attachment, process of, to issue 23 bonds, approval of sureties in 428, 429 bond, to give 22 care and custody of books and papers 22 certified copy of will, inventory, etc., to make one without charge and deliver to executor, etc 17 citations, etc., to issue 18 docket, to keep a 12, 13 clerk, may be appointed by register of probate of Suffolk county . 24 execution, to issue 23 788 INDEX. REGISTER OF PROBATE (contnuied). pagh fees, to pay over to state treasurer 23 index, to keep a 13 inspection of doings of, to be made by judge 24 may be appointed, in another county, guardian of liis minor child 26 not to act as counsel or attorney 26 not to liold certain trusts, nor to be interested in fees or emolu- ments 25, 26 oaths to be taken by 21, 22 records, to furnish copies of 23 releases, etc., to record at request of party interested .... 16, 17 suits on bond of 25 temporary, when appointed , 25 REGISTERED LAND, partition of 396 sale or mortgage of 492 RELIGIOUS SOCIETIES, may appoint trustees, when 152 REMAINDERS, belonging to estate of deceased person, may be sold for payment of debts 243, note land subject to contigent, may be sold by trustee 149 to be inherited 320 REMOVAL OF EXECUTORS, ADMINISTRATORS, GUARDIANS, AND TRUSTEES, as to appeal from decree making removal 166 decrees making removals, effective, pending appeal, unless . . . 166 grounds for removal 159, 161, 162 conflict of interest 159 incapacity 'or insanity 159 neglect to furnish bond or to render account when required . 159 unfaithful administration 162 unsuitability 161 lawful acts of executors, etc., remain valid, although removed . . 164 one of two executors removed, other to proceed in the trust . . 163 petition for, by any person interested 164 proceedings for 163, 164 of trustee ho'ding funds given to a city or town for charitable, etc., purposes, for neglect to make annual exhibit .... 163 to be on petition of five persons 164 of trustee, when essential to interests of parties concerned . . . 163 REPRESENTATION, inheritance by right of 346, 347 INDEX. 789 RENTS OF REAL ESTATE, paok belong to heirs or devisees 293 to be accounted for by executors and administrators, when . 293, 294 to be accounted for bj' guardians and trustees 305 RESIGNATION OF EXECUTORS, ADMINISTRATORS, GUAR- DIANS, AND TRUSTEES, accounts first to be settled 165 allowed by court, when 164 REVERSIONS, belonging to estate of deceased persons, may be sold for payment of debts 243, note inheritable 320, note REVOCATION, of decrees of probate court 12, note REVOCATION OF WILL, effect of, on codicil 64 manner of 59 express, by burning, tearing, etc 61 by codicil 64 declarations, to explain testator's intention 62 declared intention, witiiout act, not sufficient 62 dependent on testator's intention 62 later mconsistcnt will 64 presumptions as to intention 63 revocatory writing 66 implied, from alteration of estate 68 from marriage 67, 68 exempt, when will makes provisions 67, 68 not rebutted by parol evidence 67 not from increase in value of estate 69 not from insanity of testator 69 not from partition by tenants in common 69 partial 64 REVOCATORY WRITING, how to be executed 66 "RIGHT OF REPRESENTATION." inheritance by, how construed 346, 347 RULES OF PROBATE COURTS, authority to make 10, 11 equity rules 531-538 probate rules 527-531 790 INDEX. s. SALE OF LAND, p^g, by executors and administrators (see Executor, sale of real estate by) 239-262 by foreign executors and administrators (see Non-Resident Execu- tors and Administrators) 262, 263 by guardians (see Guardian, sale of real estate by) 263-270 by foreign guardian (see Non-Resident Guardian) .... 270-272 by public administrator (see Public Administrator) 271 by trustees 274, 275 on petition of friend of a minor proceedings on such petition 265 proceeds of, in sucii case, how disposed of 265 SCIRE FACIAS, issue of writs of, by police, district and municipal courts against administrators, etc 206 SECRETARY OF COMMONWEALTH, to publish annually changes of names 486 SESSIONS OF PROBATE COURTS, times and places of 488-491 SET-OFF, by administrator, etc., when sued, of demands of intestate, etc. . 205 of debt of deceased in action by administrator or executor . . . 205 of debt due estate from heir, against distributive share .... 359 of debt due estate from legatee, against legacy 207 probate court to determine validity and amount of debt . . 207, 359 SISTERS, when entitled to administer as next of kin 110 when to inherit 321 SIGNATURE OF TESTATOR. what is sufHcient 32 SOLDIER, in actual military service, may make nuncupative will .... 83 in actual military service, when 86 nuncupative will of, how made and proved . 86, 87 "SOUND MIND," 44-56 SPECIAL ADMINISTRATOR, appointment of 104 authority of 123, 242, note bond of 121 certain expenses and debts may be paid by 299, note may act, pending appeal, unless 123 not liable to action by creditor 199 who entitled to be appointed 107, 108 INDEX. 791 SPECIFIC PERFORMANCE, paob of written agreement for conveyance of lands, when party dies or is put under guardianship 448 conveyance, how ordered 448 effect of 448 SPENDTHRIFTS, guardians of, appointment of 133-136 sales of property of 2G6 STANDING WOOD AND TIMBER, held in dower, etc., when may be sold 150, 450 on land of ward, guardian authorized to sell by license of court . 264 trustee may be appointed to sell and invest the proceeds . . 150, 450 SUCCESSIONS. (See Collateral Inheritance Tax.) SUICIDE, as evidence of insanity 48 SUPERIOR COURT, appeals from probate court in certain cases 6, note, 463 SUPREME COURT OF PROBATE, supreme judicial court constituted 6 appeal to, from probate court, by whom may be taken .... 463 when to be claimed and entered 467 proceedings on 467, 468 may make rules regulating proceedings in probate court .... 11 may re-examine on appeal and affirm or reverse decrees of probate court 6 SURETIES, in probate bonds to be inhabitants of this state 428 and such as the judge or register approves 428 liable, when principal gives new bond, for all breaches prior to approval of new bond 432 may be discharged, when court decrees it reasonable and proper . 431 may have suit continued when resident principal not made a party . 442 SURVIVORSHIP, not presumed, when all perish in same calamity 358 T. TABLES, for ascertaining present value of life estate and of widow's dower 420, 421 TAX, on collateral inheritances, etc. (See Collateral Inheritance Tax.) TEMPORARY REGISTER OF PROBATE, appointed, when 25 oath of 26 792 INDEX. TP:STAT0R. (See TT7//.) TOWN, P^OB may be trustee, when 152 TREASURER OF COMMONWEALTH, collateral inhf.ritance and succession tax, to be payable to .... 517 to apply for appointment of administrator on estates subject to, when 532 to cause property subject to, to be appraised 521 to pay fee of appraisers 521 copy of inventory of property subject to, register of probate to send to 519 toenforce penalty for faihiretofile inventory of estate subject to 519 to be made party to all petitions by foreign executors, etc., for license to receive and dispose of personal property . . .52 to be notified of real estate subject to 519 to rejiresent commonwealth in all court proceedings for deter- mining questions relative to 522 to sue in his own name for unpaid tax . . . 280, 523, and note TRUST COMPANY, domestic, may be appointed administrator, executor, guardian, or trustee 96, 108, 129, 144, note, 153 TRUSTEE, accounts of. (See Accounts.) appointed by will should petition probate court to confirm appoint- ment 153 appointed, in what cases 144-153 under will, when necessary to carry its provisions into effect . 144 under written instrument, to fill vacancy 145 when tenant for life or years and remainderman or reversioner sustain damages in their property by laying out, etc., of higliway or by the taking of land for public uses, and entire damages are assessed 146, 147 when, in partition of land, an estate for life or years belongs to one person and the remainder to another 148 when husband or wife waives provision of will and becomes entitled to property exceeding •'?10,000 in value 148 when probate court authorizes sale of land subject to contin- gent or vested remainder 149 when standing wood or timber on land subject to estate for life or j-ears have ceased to improve, to sell 150 when person seised of real or personal estate upon a trust is a minor, insane, out of the state, or not anienal)le to legal process, trustee to convey may be appointed 278 appointment of 144-157 notice of petition for, to be given 144, 145, 150 INDEX. 793 TRUSTEE [continued). paob bond of 150, >54 none required of trustees of charitable trust 156 exempt from giving sureties, when 156 cemetery corporation may hold in trust funds for certain purposes . 152 city or town may iiold in trust funds for care, etc., of cemeteries and burial lots, and for laying out or improving parks .... 152 churches or religious societies may appoint trustees to hold prop- erty given to such churches or societies 152 collateral legacies and successions, taxes on to be paid . 204, note, 208. note delivery of property by, to successor, enforcement of ... 13, 1G5 deriving appointment from a court having no jurisdiction in this commonwealth and holding land in this commonwealth for resi- dents here, to take out letters of trust from probate court in county where the land lies 151 embezzlement by, liability for 503 incorporated and unincorporated religious societies and churches may appoint trustees to hold funds given for their benefit . . 153 inventory to be rexurned by when directed by court 169 what to include and by whom made 171-173 mortgage of real estate by 273 non-resident, to appoint agent in this commonwealth . . . 154, 194 petition for appointment of 153 real estate, when may be conveyed by, free from curtesy or dower of insane person 269 release by, of certain vested, contingent, or possible interests in real property, when authorized 272 sale and mortgage by, of estates subject to remainders .... 276 trust companies, domestic, ma^' be appointed 108 removal and resignation of 159-166 decrees making removals, effective, pending appeal, unless . 166 grounds for removal 159, 162, 163 conflict of interest 159 incapacity or insanity 159 neglect to furnish bond or, when holding funds given to a city or town for charitable and other purposes, neglect to make annual exhibit 159, 163 removal from state and failure to appoint agent here . . 162 unfaithful administration 163 unsuitability 163 removal of, petition for 163 petition for, when holding funds given to city or town for charitable and other purposes, to be signed by five persons . 164 notice of petition to be given 164 sale and investment by, of real or personal property 187 794 INDEX. TRUSTEE PROCESS, page against administrators, etc 499 TRUSTEES. (See also r™s/ee.) general equity jurisdiction of 157 termination of certain 157 u. UNDUE INFLUENCE, degree of, to invalidate will 56, 57 evidence of 57 may be invalidated in part only, by 59 will obtained by, void 66 V. VESTED RIGHTS, in real or personal estate, may be released by order of probate court 186 VOTING AT CORPORATION MEETINGS, right of, possessed by executor, etc 502 W. WARRANTS OR COMMISSIONS OF PROBATE COURT, may be revoked 12 WEARING APPAREL, of widow, and of minor children of a deceased person, belongs to them 177 WIDOW, advancements, value of, to be deducted in determining share of, in husband's property 363 entitled to administer husband's estate, when 110 no right to name administrator, if she renounces administra- tion 110 no right to other than original administration 114 entitled to allowance for necessaries from husband's estate . . . 328 entitled to use of husband's house, free of charge, for six months . 329 rights of, in husband's property (see Descent of Real Estate, rights of wife in husband's property) 326-336 "(See Dower 327,397-427) waiver of will by 330, 331 WIFE. (See Married Woman.) INDEX. 795 WILL, PAGE agreements to make, or to give legacies 88 allowance and probate necessary to make effective 29, 30 administration revoked upon 165 decree for, conclusive as to capacity of testator and due exe- cution, unless appealed from 29 conclusive, after two years, in favor of purchasers for value, etc 29, note, 119, note attestation of, by three competent witnesses 30 witnesses must sign in presence of testator and where he can see them subscribe 36 witnesses need not sign in presence of each other 38 children dying before testator, effect upon ..... 206, note, 352 adopted ciiild included in " child," when .... 483, 483, note issue to take by right of representation, when 352 omitted children or issue of deceased child entitled to share as if parent intestate, unless 349 contribution by devisees or legatees to omitted or posthumous child 352 competency of attesting witnesses 39-42 beneficial devise or legacy to subscribing witness to a will, or to the husband or wife of such witness, void unless three other competent subscribing witnesses 40 creditor a competent witness 40 person convicted of infamous crime not competent witness 40, 41 competency to be determined as of time of execution of will . . 41 compromise of, only supreme judicial court jurisdiction to authorize 89 concealment of, proceedings on complaints for 92 deposit in registry of probate, if testator desires 91 delivery of, after such deposit, in testator's lifetime, how obtained 91 to whom 92 execution of 31-39 attestation by witnesses 86-39 signature by testator 31-36 facts to be proved in support of 31 formal proceedings in probate of 70-77 petition and notice 71 hearing and evidence 72-76 foreign will, allowance of 81-83 incorporation of paper by reference in 77 invalidated by fraud and undue influence 55 attorney who drafted will may testify as to directions given him by testator 59 persuasions and suggestions do not necessarily amount to undue influence 57 testator's declarations admissible 58, note 796 INDEX. WILL {continued). page lucid intervals 53 memory of testator, " disposing " necessary 44, 45 monomania 54 sanity of testator, evidence on question of 46-55 persons competent to give in evidence their opinions as to . 48 presumption in favor of 46 what testimony admissible to show insanity 48-55 married woman may make ... 30 of married woman, deserted by husband or justifiably living apart from him, provisions of cannot be waived by husband . . 30, note lost, proof of 79-81 made out of state, proof of 78 nuncupative, proof of 83-87 requirements of 85 persons of full age and sound mind may make 30 posthumous child, to share as if parent died intestate 352 publication of, formal not necessary 34 seal not required 35 revocation of 59-70 express revocation of, 60-67 by burning, tearing, etc 59-64 by execution of new will or codicil 64-67 implied revocation of 67-70 by change in condition and circumstances of testator ... 67 by marriage 68 not by change in value of property 69 signature by testator 31 where to be made 32 may be by mark 32 may be written by another person by testator's direction and in his presence 32 need not be in presence of witnesses, but must be acknowl- edged in their presence 33 Sunday, executed on, valid 36 waiver of, by husband or widow 330, 331 what passes under 87, 89 witnesses to. (See Attesting Witnesses.) WITNESSES, fees of 505 to wills 36-42 WRITTEN AGREEMENT, to sell land, enforcement of, when party dies or is put under guardianship 448 INDEX TO PROBATE FORMS. ABSENTEE, page petition for receivership of estate of 726 order of notice 727 return of service of order of notice 728 warrant 729 decree 729 ACCOUNTS, administrator 621 executor 623 trustee 625 guardian 627 appointment of guardian ad litem and next friend for 638 ADMINISTRATION, with sureties, petition 539 without sureties, petition 540 de bonis non, petition 541 special, petition 542 pubhc, petition 542 with will annexed, petition 546 de bonis non, with will annexed, petition 547 presumption of death, petition 717 presumption of death, with will annexed, petition 713 ADOPTION AND CHANGE OF NAME, petition 657 AFFIDAVIT OF NOTICE OF APPOINTMENT, administrator , 581, 599 de bonis non , 583 agent 600 public administrator 586 executor 588, 591, 601 agent 602 foreign will 590 administrator, will annexed 598, 603 agent 604 798 INDEX. AMENDMENT, vkots of record, petition 735 APPEARANCE 691 APPOINTMENT, &c 627 of agent 686 of guardian ac? /item and next friend 689 of guardian ad litem and next friend, account 698 of next friend and guardian for tiie case, in sale of real estate subject to vested or contingent remainder 647 APPRAISAL, petition for revocation of warrant, and for new warrant .... 609 ASSIGNMENT OF DOWER, petition 662 warrant 663 report 664 ASSIGN.MENT OF HOMESTEAD, petition 660 warrant 661 report 662 ASSIGNMENT OF REAL ESTATE IN FEE, petition 665 warrant 666 report 667 by Court, petition 733 ASSIGNMENT OF WIDOW'S LIFE ESTATE, petition 667 warrant 668 report 669 AUDITOR, rule to .617 BOND, of administrator, with sureties 578 without sureties 548 de bonis non, with sureties 550 without sureties 551 will annexed, with sureties 559 without sureties 561 de bonis non, with sureties 562 presumption of death 718 with will annexed, presumption of death 714 of special administrator 553 of public administrator 554 of executor, with sureties 556 INDEX. 799 BOND (continued). page of executor without sureties 557 to pay debts, residuary 558 presumption of death 710 of guardian, with sureties 564 without sureties 665 of insane person 740 spendthrift ■ 567 of conservator 693 of receiver of absentee's estate 730 of trustee, with sureties 668 without sureties 570 with sureties, inventory not required 571 without sureties, inventory not required 572 under deed - . . . 723 of heir, presumption .of death 722 in case of sale of real estate subject to vested or contingent remainder 646 petition for new 579 BURIAL LOT, perpetual care of, petition 703 BUSINESS, petition of special administrator for leave to carry on . . . • 709 CHANGE OF NAME, petition 658 copy of decree 659 certificate 660 CLAIM OF APPEAL 690 CLAIM OF DOWEK OR CURTESY 744 COMPROMISE, petition to arbitrate 629 CO N SE R V ATO RS H IP, of aged person, petition 692 CUSTODY OF CHILDREN, petition 657 DEBTS, petition by special administrator for leave to pay 702 DECLINATION 683 DEPOSIT, of legacy, petition 696 payment of, petition 697 in savings bank, petition "739 800 INDEX. DESERTION AND LIVING APART, paob petition • 656 DISCHARGE FROM GUARDIANSHIP, petition 681 DISCHARGE OF SURETY ON BOND, petition 682 DISTRIBUTION, warrant 619 report 620 intestate estate, petition 620 of legacy among a class, petition 734 among a class, trust estate, petition 734 presumption of death, petition 721 EMBEZZLEMENT, complaint 688 EQUITY, petition 691 decree 692 injunction 636 GUARDIANSHIP, of minors, petition 574 of insane, petition 575 of spendthrift, petition 575 letter to foreign guardian 576 INJUNCTION 696 INSOLVENCY, representation 610 representation, claims to be examined by court 699 INSOLVENT ESTATE, order to administrator to notify creditors to present claims . 611, 701 form of notice of administrator to creditors 612,702 warrant to commissioners 613 report 614 form of notice of commissioners to creditors 615 petition for new commissioner, and extending time for allowing claims 615 order for distribution 616 report on order for distribution 617 INVENTORY, administrator 605 executor 606 guardian 607 INDEX. 801 INVENTORY {continued). . page trustee . . . " 608 petition to render, and account 617 order to render, or account 618 LEASE OF REAL ESTATE BY GUARDIAN, petition 690 LETTER, of administrator 580 de bonis non 582 presumption of death 720 of special administrator 584 of public administrator 584 of executor 587 residuary 591 presumption of death 712 on foreign will 589 of administrator with will annexed 592 presumption of death 716 of guardian 594 of guardianship to foreign guardian 595 of conservator 695 of receiver of absentee's estate 732 of trustee 595 not requiring inventory 596 under deed 725 MARRIAGE, of minor, petition for license of 698 MORTGAGE OF REAL ESTATE, executor, administrator, petition 648 guardian, petition 648 trustee, petition 649 NOTICE OF APPOINTMENT, executor 597 agent 597 administrator 598 / agent 598 will annexed 599 agent 599 petition for 683 PARTITION OF REAL ESTATE AMONG HEIRS, petition 670 appointment of agent 671 51 ■ 802 INDEX. PAETITION OF REAL ESTATE, ETC. {continued). pag« notice by commissioners 671 warrant 672 report 673 PARTITION OF REAL ESTATE AMONG TENANTS IN COMMON, petition 674 warrant 674 report 675 PARTITION AND SALE OF REAL ESTATE AMONG TENANTS IN COMMON, petition 676 sale of lands by commissioners, bond 677 warrant 678 report 679 petition by commissioners for sale 741 PRESUMPTION OF DEATH, probate of will, petition 649 bond of executor 650 executor's letter 652 administration with will annexed, petition 653 bond of administrator witli will annexed 654 letter of administrator witli will annexed 656 administration, petition 657 bond of administrator 658 letter of administrator 660 petition for distribution 661 bond of heir 662 RECEIVERSHIP, of absent person's estate; petition 666 RELEASE OF RIGHT OF DOWER OF AN INSANE WOMAN, petition 647 REMOVAL, petition 681 RESIGNATION 683 SALE OF PERSONAL ESTATE, petition 645 by foreign , petition 646 SALE OF REAL ESTATE, public, executor or administrator, petition 629 license 631 affidavit 631 INDEX. 803 SALE OF REAL ESTATE [continued). paob private, executor or aciministrutor, petition 632 license 634 administrator, distribution, petition * . . 634 license G35 public, guardian, maintenance, petition 636 notice to overseers of poor of sale 637 license 637 affidavit 638 private, guardian, maintenance, petition 638 license 639 public, guardian, investment, petition 640 license 641 affidavit 641 private, guardian, investment, petition 642 license 643 subject to contingent remainder, petition 704 subject to vested remainder, petition 705 subject to vested or contingent remainder, bond 706 subject to vested or contingent remainder, appointment of next friend and guardinn for the case 707 SALE OF TRUST ESTATE, real, personal, trustee, petition 643 appointment of next friend 645 SEPARATE SUPPORT petition 650 order of notice and attachment 651 petition to charge trustee and for execution 736, 737 execution 658 execution, trustee 738 capias 654 mittimus for contempt 655 SPECIFIC PERFORMANCE, petition 708 SUIT ON BOND, petition for leave to bring 743 TRUSTEESHIP, to fill vacancy, petition 742 with sureties, petition 676 without sureties, petition 577 under written instrument, petition 723 waiver of will 744 804 INDEX. WIDOW'S ALLOWANCE, pags petition 689 WILL, petition for probate, with sureties 543 without sureties 544 foreign, petition for allowance of 545 petition to take deposition to 684 deposition of witnesses to 685 presumption of death, petition for probate 709 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 857 054 i UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. AUG 1 3 1974 Form L9-Series4939 :uKii::Trri'ril>lJi!r^^'nWfl^^^^^^^