Km L93 i88n /c^M ,' / -'■ (5nntf U Slauj ^rijnnl Slibraty (|tft of MR. DONALD STETSON Cornell University Library KFM 144.L93 1880 Hand book of practice in the Probate cou 3 1924 017 660 196 The original of tiiis book is in tile Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017660196 HAND BOOK PRACTICE PROBATE COURTS OF THE STATE OF MAINE. CONTAINING NOTES ON THE EXECUTION AND PROBATE OF WILLS, DU- TIES OF EXECUTORS, ADMINISTRATORS, GUARDIANS AND TRUSTEES: ALSO FULL FORMS OF PETITIONS, ORDERS AND DECREES, WITH REFERENCES TO THE REVISED STATUTES AND AMENDMENTS THEREOF; AND DECIS- IONS OF OUR COURTS. By ENOS T. LUCE, Late Judge of Probate of Androscoggin County. REVISED BY JOHN A. "W^ATERMAN, Formerly Judge of Probate of Cumberland County. WITH AN APPENDIX CONTAINING THE ASSIGNMENT AND INSOLVENT LAWS OF MAINE, AEEANGED AS AMKNDEB, AND ALL THE DECISIONS OF THE SUPREME COURT HITHERTO RENDERED IN INSOLVENT CASES. ■ CT'^'g^Q^O - PORTLAND, ME.: DEESSEE, McLELLAN & CO. 1880. Il^'] ■ Entered according to Act of Congress In the year 1880, by DEBSSEK, MCLELLAN & CO., In the office of the Librarian of Congress at Washington. WM. M. MASKS, PBINTEB. PREFACE TO FIRST EDITION. The following work has been prepared, at the solicitation of many judges and registers of probate, and members of the bar, for the purpose of aiding those officially connected with the pro- bate courts of our state, and members of the legal profession and others having business therein, in the practical perfbrmance of their duties. It is not designed as a treatise on the principles of probate law, but as a hand-book of practice, which shall contain full forms and directions of procedure. The proceedings of the probate courts being regulated by municipal law, and not by the principles of the common law, the statutes must necessarily be the basis of the present work. The substance of so much thereof, together with such of the decisions of the courts of our state, as relate to the probate courts, will be embodied in the following pages, with marginal references to the same, divided into chapters, and arranged in the order in which the subjects treated of naturally arise in the settlement of es- tates. The forms given, it is believed, will furnish a sufficient skeleton or outline for all petitions, decrees, orders, warrants, returns, &c., necessary to be used in proceedings in said courts, and the same will be inserted in the body of the work in immediate connection IT PREFACE. with the provisions of law to which they relate, thus rendering the law and its practical application more easily understood. The work is suhmitted to the public, not with the expectation that it will fully answer all points that may arise in practice, for no person can foresee all the new questions that are daily and will ever be constantly arising, but with the hope that it may be of some service to those charged with the important and delicate duties of administering the probate law, and those having busi- ness in the probate courts, and that it may also tend in some degree to secure a more uniform practice in the several counties of our state. E. T. L. LewistoH, Me., Dec, 1872. PREFACE TO SECOND EDITION. This volume is a revision of Judge Luce's excellent book, and • not an attempt to produce a new work. Only such changes have been made and such new matter introduced in this revision, as the correction of errors incident to a first edition, and subse- quent amendments of the probate law and the later decisions of the courts required. As the probate courts are now also courts of insolvency, it was thought that there would be a convenience to those doing business in both courts in having the laws relating to insolvency proceedings in the same volume with those relating to probate matters. Accordingly there are given, in an appendix to this volume, the assignment la"w (1836-1876,) and the insolvent law, (1878- 1880,) arranged as amended, together with the rules of the in- solvent court, and the decisions of the supreme court hitherto promulgated in cases arising under the insolvent law. It is hoped that this edition will prove as useful as its prede- cessor has been. J. A. W. Gorham, July 1, 1880. CONTENTS. CHAPTER I. Page. JtJKISDICTlOJT, 1 CHAPTER II. Deposit and Custody of Wills, .... 5 CHAPTER III. Pkobate op Wills, 8 CHAPTER IV. \ Exkcutobs, . - 27 CHAPTER V. Testamentary Trustees and Voluntary Trusts, 34 CHAPTER VI. Appointment op Administrators, ... 42 CHAPTER VII. Appointmbnt and Duties op Guardians, . , 62 CHAPTER VIII. Notice op Appointment, . , . , , 19 CONTENTS. VU CHAPTER IX. Page. What gobs to the Exectjtob — What to the Heie — Collection of Eeeects, .... 83 CHAPTER X. Inventoey — Appeaisbes, 91 CHAPTER XI. Collection op Debts — Aebiteation — Sale of Pbe- SONAL Estate, 101 CHAPTER XII. Payment of Debts — Legacies — Expenses, . 106 CHAPTER XIII. Allowance to Widow and Minoes, . . 121 CHAPTER XIV. Payment op Debts when the Estate is Insolvent, 126 CHAPTER XV. Deceased Paetnees, 144 CHAPTER XVI. Sales op Real Estate, 160 CHAPTER XVII. Accounts, 174 CHAPTER XVIII. Descent, 189 CHAPTER XIX. Paetition op Real Estate, .... 204 TUl CONTENTS. CHAPTER XX. Page. Do\rBR, . . - 21Y CHAPTER XXI. Appeals, 226 CHAPTER XXn. Bonds, 233 CHAPTER. XXni. Resignation and Removal, 239 CHAPTER XXIV. Costs — Fees— Adoption — Change op Name— Deckbes — Forms of Wills — Value oe Dower, . 242 APPENDIX, Assignment and Insolvent Laws — Rules — Decis- ions OE Supreme Court — ^^Forms op Proceed- ings — List op Blanks, .... 268 MAINE PROBATE COURTS. CHAPTER I. JUKISDICTION. Probate coHrts are courts of record, having an oiEcial seal and a register.^ They are to be held in the several counties, at cer- tain fixed times and places, which must be made known by public notifications. They may be adjourned from day to day, and special courts may be held when necessary.^ Judges of probate have power to issue any process necessary to the discharge of their duties,' to punish for contempt,' to compel the attendance of witnesses,* and to administer oaths in any pro- ceeding in their courts.* They may take the probate of wills, grant letters testamentary or of administration on the estates of all persons who at the time of their decease were inhabitants or residents of their county, or who were residents of other states but died leaving estate in their county, or who are confined in the state prison under sentence of death or imprisonment for life, may appoint guardians for minors and others, grant leave to adopt children, change the names of persons, and exercise such juris- diction as is conferred on them by law.* When a case is originally within the jurisdiction of the probate court in two or more counties, as when a resident of another state IRS., 0. 6.S, §§ 1, 14. 2 R. S., c. 63, § 4. 3 E. S., c. 63, § 1 ; Bradley v. Veazie, 47 Me. 85. * E. S. c. 63, § 3. 6E. S., c. 63, § 11. 6K. s., c. 63, § 6; c. 67, §§ 28, 30; Laws of 1876, c. 59 ; Laws of 1878, c. 63, § 1. . 2 2 PROBATE PRACTICE. dies leaving estate in different counties in this state, the court in which the proceedings are first commenced shall retain the same throughout.! fj^jg jurisdiction assumed in any case, except cases of fraud, so far as it depends on the residence of any person or the locality or amount of property, shall not be contested in any proceeding whatever, except on appeal from the probate court in the original case, or when the want of jurisdiction appears on the same record.^ When the judge is interested in his own right, in trust or in any manner, or so related that he may be an heir to any part of the estate, to an amount not less than one hundred dollars, such estate shall be settled in an adjoining county, as if the deceased had died therein ; and if he becomes interested after he assumes jurisdic- tion of such estate, the same shall be transferred to such county and there completed.^ In the matter of appointment of guardian to minors, if the judge is interested, or related within the sixth degree of kindr.ed, such appointment must be made by the judge of an adjoining county.* The supreme judicial court is made the supreme court of pro- bate, to which all persons aggrieved by any order, sentence, decree or denial of any judge of probate, except a decree appointing a special administrator, may appeal.* Although the probate courts are declared to be courts of record, yet they are not understood to be such in the full meaning of that term as defined by common law writers. The term as used in our statutes, simply means that their acts and judicial proceedings are recorded by a clerk in perpetual memory and testimony of the things done, and in the same formal manner in which the doings of the higher common law courts are recorded. Public notifica- tions must be given of the time of holding special, as well as regular courts, or the decrees made thereat will be void.^ IK. S., c. 63, § 7; Record v. Howard, 58 Me. 225. ^R. S., c. 63, § 8. 3 Laws of 1874, c. 156. < K. S., c. 63, § 21. ^ White v. Riggs, 27 Me. 114. JDRISDICTION. 6 The probate courts are creatures of the statute and not of the common law, and have a special and limited jurisdiction. ^ They have no jurisdiction, no powers, no modes of procedure or practice, except such as are derived from the provisions of the statutes. Hence the orders and decrees of judges of probate are not, like judgments of the common law courts, conclusive until reversed, but they may be attacked and their nullity proved in collateral proceedings in the probate or common law courts.^ If, therefore, it appear that the judge has held a court at a time or place not authorized by law, or has acted when he had no jurisdiction over the subject matter, or has done an act prohibited by law, or has done an act for which no power was given, or has acted without notice having been given, when notice is essential to give juris- diction, in all such cases his decrees may be avoided in collateral proceedings.' When he has jurisdiction, however, his decrees are in the nature of judgments and cannot be impeached collater- ally.' If the decree is valid, it can be set aside pnly by appeal.' If the decree is void, an appeal therefrom will be dismissed ; but when the want of jurisdiction is not apparent upon the face of the record, qucere} All petitions addressed to the court must allege affirmatively, by distinct allegations, sufficient facts to give it jurisdiction and authority to make the decree prayed for,^ and in all cases the record of the proceedings must show that the court had jurisdic- tion.' The allegations in a petition are not presumed to be true, if not objected to, but their truth must be made to appear.* 1 Fairfield v. Gullifer, 49 Me. 360; Moody v. Moody, 11 Me. 247. ^Veazie Bank v. Young, 53 Me. 555; Moody v. Moody, 11 Me. 247; Jochumsen v. Suffolk Sav. Bank, 3 Allen, 87; Smith b. Rice, 11 Mass. 507. 3 Veazie Bank v. Toung, 53 Me. 555; Pierce v. Irish, 31 Me. 264; Moore v. Philbrick, 32 Me. 102; Smith ». Rice, 11 Mass. 513; Harlow v. Harlow, 65 Me. 448; Emery v. Hildreth, 2 Gray, 228; Parker D.Parker, 11 Gush. 526. * White v. Riggs, 27 Me. 114; Veazie Bank v. Toung, 53 Me. 555. 5 Fairfield v. Gullifer, 49 Me. 360. 6 Bean b. Bumpus, 22 Me. 553; Gross v. Howard, 52 Me. 192. 4 PROBATE PRACTICE. To the foregoing principle, that the jurisdiction erroneously assumed by the judge in any case, may be inquired into in subse- quent or collateral proceedings, the statutes make an important exception, by providing, that when the jurisdiction assumed depends on the residence of the deceased or on the locality or amount of property left, it shall not be contested in any proceeding whatever except on appeal in the original case, unless there is fraud or want of jurisdiction apparent on the same record.^ ' E. S., c. 63, § 7; Record v. Howard, 58 Me. 225. CHAPTER II. DEPOSIT AXD CUSTODY OF WILLS. " Every person having custody of a will, shall, after the testa- tor's death, deliver it into the probate court having jurisdiction thereof, or to the executor therein named ; and any such executor having such will in custody, shall file it in the court having juris- diction thereof. If any such executor or other person, without reasonable cause, neglects so to do for thirty days after notice of the testator's death, he having been duly cited for that purpose, he may be committed to the county jail by the judge's warrant, there to be kept in close custody until he so delivers the will, or is released by the judge or otherwise by order of law."^ [^Petition for Citation to Deliver Will.'\ To the Honorable Judge of Probate for tbe county of A. B. C, of D., respectfully represents that E. F., an inhabitant of G., in said county at the time of Ms decease, died on the day of A. D. , that said deceased prior to his death legally executed his last will and testament, that the same is now in the custody of H. I., of J., who has had notice of said testator's death for more than thirty days, yet has neglected and stiU neglects to deliver said will into the probate court having jurisdiction thereof, (or to the executor, if the person alleged to have the will is not the executor. ) Wherefore your petitioner prays that said H. I., may be cited to deliver said will into said probate court (or to the executor therein named,) and that such further proceedings may be had as law and justice may require. Dated this day of , A. D. . B. C. ^ E. S., c. 64, § 3. PROBATE PRACTICE. \_Decree.] STATE OF MAINE. — ss. At a Probate Court holden at A., within and for said county, on the Tuesday of , A. D. . On the foregoing petition, It is ordered that the said H. I., be cited to deliver the will described in the foregoing petition, if such he has, into the probate court for said county (or to the executor named therein), within thirty days from the time of the service of this order on him, or to appear before said court within said time, and show cause if any he has against the same, by serving him with a true and attested copy of said petition with this order thereon. L. M., Judge of Probate. Service. The officer or person making the service should deliver in hand to the said H. I., or leave at the place of his last and usual abode a copy of said petition and order, duly attested by the register of probate, and make return of said service on the back of the original petition in court, as follows : 3 [_Return of Service.] ss. , A. D. . I this day gave in hand to the within named H. I., (or left at the last and usual place of abode of the within named H. I.,) a true and duly attested coi)y of the within petition and order thereon. R. S., Deputy Sherifi. If the service is made by a person not an officer, the return must be sworn to, and the following certificate made : ss. A. D. Subscribed and sworn to by the said R. S. Before me, W. P., Justice of the Peace. If the person cited does not deliver the will as ordered, or appear and give satisfactory reasons why he should not do so, the CUSTODY OF WILLS. 7 judge may issue a warrant for his arrest and commitment, as follows: 4. \_Warrant to Commit J] STATE OF MAINE. ss. To the Sheriffs of our respective counties, or either of their deputies. Greeling. Whereas a petition was duly filed at a probate court held at A., within and for said county, on the day of , A. D. by B. C, of D., representing that E. P., an inhabitant of said county, died on the day of , A. D. , that prior to his death said deceased legally executed his last will and testament, that said will was at the time of filing said petition in the custody of one H. I., of J., who was then neglecting to deliver the same into the probate court for said county, although more than thirty days had elapsed since he had had notice of the death of said deceased ; and whereas said H. I., though duly cited pursuant to the order of court to deliver said will into said court, (or to the executor therein named,) or to appear and show cause against the same, yet refuses so to do. You are therefore hereby commanded in the name of the State of Maine, to take the body of the said H. I., and convey him to the jail ia our said county, and the keeper thereof is hereby commanded to receive the said H. I., and him safely keep until he so delive rs said will, or shows sufficient cause against the same, or is released according to law. And you are to return this war- rant into our said probate court with your doings thereon. In testimony whereof I have hereunto set my hand and the seal of said court at a probate court held at A., within and for said county, on the day of , A. D. — -. L. M., Judge of Probate. 1"} 5. [ Officer's Return.] A. D. By virtue of the within warrant I arrested the body of the within named H. I., and have committed him to the jail in A., in said county, and at the same time I left with the jailor an attested copy of the within warrant. T. W., Deputy Sheriff. CHAPTER III. PROBATE OP WILLS. " A person of sound mind, and of the age of twenty-one years, may dispose of his real and personal estate by -will, in writing, signed by him, or by some person for him at his request, and in his presence, and subscribed in his presence by three credible attest- ing witnesses, not beneficially interested under the will. The word ' will' includes a codicil. "^ A married woman of any age, may devise her estate by will.^ Judge of probate may take the probate of wills of all persons who at the time of their decease were inhabitants or residents of their county, or who died without the state, leaving estate to be administered in their county, or whose estate is afterwards found therein.^ A will though legally executed by a person competent to make the same, is wholly inoperative to convey any title until it has been probated.* ■ 6. [Petition for Probate of Will. To the Honorable Judge of Probate for the county of A. B. C, of D. respectfully represents that E. F., an inhabitant of G., in said county at the time of his decease, died on the day of A. D. ■ testate, possessed of goods and estate remaining to be administered. Wherefore your petitioner prays that the will of said deceased, which is here- with presented, may be proved and allowed and that letters testamentary be issued to the executor named therein. Dated this day of A. D. B. C. 1 E. S., c. 74, § 1 ; c. 1, § 4. 2 R. S., c. 61, § 1. ' R. S., c. 63, § 6 ; Gilman v. Gilman, 53 Me. 165, where question of dom- icil is fully discussed. * R. S., c. 74, §. 15. PEOBATB OF WILLS. 9 The party seeking to have a will probated, must file it in court with a petition therefor. Any person interested under a will may apply to have it probated ; or the judge may, ex officio, cause it to be exhibited for that purpose.^ If the probate of the will only is desired, as is frequently the case, for the purpose of confirming the title to real estate devised, the clause in the petition praying that letters testamentary be issued, may be stricken out. If the executor named declines the trust, or is incompetent, or if no executor is appointed in the will, the petitioner should pray for the appointment of an administrator with the will annexed.^ The statute does not require any notice to be given of the time when the will is to be probated.^ The practice however is to order the following notice, that all parties interested may be present and witness the proceedings and have an opportunity to cross examine the witnesses, and show cause, if they have any, why the will should not be allowed : 7. ^Order of Notice.] STATE OF MAINE. — SB. At a Probate Court holden at A., within and for said county, on the Tuesday of A. D. . A certain instrument purporting to be the last will and testament of E. F., late of G., in said county, deceased, having been presented for probate : Ordered that notice thereof be given to all persons interested therein, by publishing a copy of this order three weeks successively in the a newspaper printed at L., in said county, prior to the third Tuesday of A. D. , that they may appear at a probate court then to be held at A., within and for said county, at ten o'clock in the forenoon, and show cause, if any they have, against the same. E. S., Judge of Probate. Formal notice by publication may be dispensed with when all the persons interested request, in writing, that the will be probated without notice. 1 Stebbins v. Lathrop, 4 Pick. 33. 2 post, c. vi., form 48. 3 Marcy v. Marcy, 6 Met. 368. 10 PfiOBATB PRACTICE. 8. [_Form of Request.'] The undersigned, being all the parties interested in the within petition and ■will, hereby request that said will be probated without further notice. Dated this day of A. D. . ■ A. B. C. D. E. P. On the day appointed for the hearing, the petitioner or some one in his behalf, should be present and prepared with evidence to prove all the necessary facts. If notice has been ordered, he must satisfy the judge that it has been given as directed. The instru- ment to be probated must then be presented in order that the judge may see from inspection that it is a will. The following facts must be affirmatively proved : 1. That the testator was "a person of sound mind. "^ 2. That he was "twenty-one years of age. "^ 3. That the will was "in writing.'" 4. That it was "signed by the, testator, or by some person for him at his request, and in his presence."^ 5. That it was "subscribed in his presence by three credible attest- ing witnesses not beneficially interested under the will."^ 6. That the testator "was at the time of his decease an inhabitant or resident of the county," or, if he died without the state, " that he left estate to be administered in the county," or that his estate has since been found therein.- 7. That the testator died within twenty years last past, unless it appears that there are moneys due the estate from the United States, or that the will is a foreign vfill and has been previ- ously proved and allowed in some other state or country.' 1 R. S., c. 74 § 1. 2 K. S., c. 63, § 6. 3 R. S., c. 64, § 1. PROBATE OF WILLS. 11 " Sound mind." It has been held in this state, that the usual presumption, that a person is of sound mind till the contrary is shown, does not apply to a person making a will, but that sound- ness of mind is a fact to be proved. ^ To define what is meant by the words "sound mind," as used in the statutes, would require more space than the design of this work will allow. "in writing." A will may be written (in ink or by pencil) or printed.^ '■'■Signed hy the testator, or hy some person for him at his request and in his presence." The testator may sign by mark,^ and when he does so it will be presumed to have been done from neces- sity. If the signing was by another person, the name must be proved to have been written at the express request of the testator and in his presence, his giving a silent assent to having his name so written not being sufficient.* A seal is not necessary to the validity of a will.* It is not necessary that the testator sign in the presence of witnesses, the acknowledgment of his signature by the testator being sufficient evidence that he signed it.* The acknowledgment need not be made to all the witnesses at the same time, but may be made to each separately.' It is not necessary that the testator declare to the witnesses that the instrument signed by him is his will, or that he make any formal publication, "it being sufficient if it be made to appear that he was fully apprised of its contents, that he knew the instrument to be his will and that he intended it as such ;"^ and any evidence which SBitisfies the judge of those facts is sufficient. 1 Cilley V. Cilley, 34 Me. 163 ; Gerrish v. Naaon, 22 Me, 43 ; Robinson v. Adams, 63 Me. 369. For a full discussion of this point and cases contra see Redfield on Wills, vol. 1, c. 3. 2 Redfield on WiUs, vol. 1, c. 6, p. 165. 3 Redfield on Wills, vol. 1, c. 6, p. 205, (also see note.) * Ibid, p. 307-8. * Ibid, p. 326 ; Avery v. Pixley, 4 Mass. 460. « Kent's Com., vol. 4, 631. ' White V. British Museum, 6 Bing. 310. ' Cilley v. Cilley, 34 Me. 162. 12 PROBATE PRACTICE. "Subscribed in his presence." The witnesses must subscribe their names within the range of the organs of sight of the testator. It is not necessary that they should sign in the same room where the testator is, but they must sign their names in such a place that the testator "might, or had the capacity to see them with some little efiFort, if he had the desire."^ It is not necessary that the wit- nesses should sign in the presence of each other, or that they should know the contents of the will.'^ " Credible witnesses." By credible witnesses is meant, not per- sons who would be believed, but persons whom the law will permit to testify before-a jury.' If competent at the time of their attes- tation, their subsequent incompetency will not prevent the probate of the will.* The judge of probate is a competent witness,* and so is an executor named in the will. The statute imposes no restric- tion as to age ; a minor may be an attesting witness.^ "Attesting witnesses." Attesting witnesses are the persons placed around the testator to protect him from fraud in the execu- tion of his will, to judge of his capacity, and to be witnesses of the fact of the execution of the instrument.' "They are to bear wit- ness, not only to the execution of the will, but to the state of mind of the testator,"* hence, though not experts, they are allowed to give their opinions as to the sanity of the testator.' " Not beneficially interested under the will." The interest here contemplated must be direct and not remote or contingent.^" "It must be a present, certain, legal, vested interest and not uncertain or contingent. "11 1 Kent's Com., vol. 4, p. 631. 2 Ibid. p. 633. ' Jones V. Lairabee, 47 Me. 474 ; Warren v. Baxter, 48 Me. 193. 4 R. S., c. 74, § 2. s Patten v. Tallman, 27 Me^ 17. 6 Jones V. Larrabee, 47 Me. 474 ; Millay v. Wiley, 46 Me. 230 ; McKeen v. Frost, 46 Me. 239; Jones v. Tebbets, 57 Me. 572. ' Gerrish v. Nason, 22 Me. 438 ; Greenl. on Ev., vol. 2, § 691. 8 Brooks V. Barrett, 7 Pick. 94. » Cilley v. Cilley, 34 Me. 162. w Jones V. Tebbets, 57 Me. 572. n Warren ». Baxter, 48 Me. 193. PEOBATB OP WILLS. 13 PROCEEDINGS IN COURT. " Attendance of attesting witnesses." When it clearly appears to the judge by the written consent of the heirs at law or otherwise, that there is no objection to the probate of the will, he may decree probate thereof upon the testimony of one or more of the three subscribing witnesses who can substantiate all the requisite facts,^ If no objection is made in court, especially after notice has been given, it will be presumed that no objection exists. If it appears that there is objection to the probate of the will, all three of the subscribing witnesses must be produced, or their absencie satisfactorily accounted for. These witnesses are placed around the testator to ascertain and judge of his capacity, and the heirs have a right to insist on the testimony of all the witnesses, if it be possible to procure it.^ In McKeen v. Frost 46 Me. 239, where one of the subscribing witnesses was in the state of Cali- fornia where he had lived for six years, the will was allowed on the testimony of the other two witnesses, the absent witness not being within the jurisdiction of the court.' On suggestion that an attesting witness will not voluntarily appear, the judge will issue a subpoena for his attendance. 9. [Subpoena for Attesting Witness.'] ' STATE OF MAINE. To A. B. Greeting. You are hereby commanded, in the name of the State of Maine, to appear at a Probate Court to be held at A., within and for the county of B., on the Monday of A. D. at ten o'clock in the forenoon, then and there to give evidence of what you know relating to the execution of a cer- tain instrument purporting to be the last will and testament of C. D., late of E., in our said county, deceased. Hereof fail not or you will answer your default under the pains and penalty of the law in that behalf provided. Dated this day of A. D. R. 8,, Judge of Probate. 1 R. S., c. 64, § 5. 2 Greenl, on Ev., vol. 2, § 691, 3 See also Patten o, Tallman, 37 Me. 17. 14 PROBATE PRACTICE. 10. [Meturn of Service.] ss. , A. D. I this day summoned the within named A. B. to appear as within directed, by reading to him the within writ, and I at the same time paid him (or tend- ered to him) dollars and cents for his travel and attendance at com't. I T. W., Deputy Sherifi. 11. l_Capias to bring in a Witness.] STATE OF MAINE. ss. To the Sheriffs of our respective counties or either of their Deputies. Greeting. Whereas the probate of a certain instrument purporting to be the last will and testament of C. D., late of E., in said county, deceased, is now pending in the probate court for said county, and whereas it has been made to appear that J. K., of M., has been duly summoned to appear before said court as a witness in said proceedings, and has been paid (or tendered) his legal fees therefor, and the said J. K. has not so appeared and has thereby committed a contempt of this court. You are hereby commanded to take the body of the said J. K., (if he may be found in your precinct) and bring him forth- with before said court, to answer to the charge of contempt and also to give evidence of what he knows in relation to the execution of said will. Hereof fail not and make due return of this writ with your doings therein. In witness whereof I have hereunto set my hand and the seal of said court, at a probate court held at A., within and for said county, on the Mon- day of A. D. R. S., Judge of Probate. }-•■} 12. [-Reterw.J ss. A. D. By virtue of the within precejit I have arrested the within named J. K., and now have him before the said court as within directed. L. M., Deputy Sheriff. PROBATE OF WILLS. 15 EXAJHINATION OF WITNESSES. The witnesses, one or more as required, being in attendance, are then called, sworn and examined. If no one appears to object to the probate of the will, the examination is usually made by the judge ; otherwise by the person seeking the probate of the will or his counsel. The following are some of the questions usually pro- pounded by the judge : Did you see A. B. sign his name to that instrument, or did he acknowledge that name to be his signature? Did he know the contents of that instrument and intend it as his last will? Was he of sound mind at the time of its execution? Did you sign it in the presence of the testator? Did you sign it at his request or by his consent? If only one witness is called, he should be asked whether the testator signed the instrument in the presence of the other wit- nesses, and whether he saw them sign their names, and whether they signed in the testator's presence and at his request or by his consent. If the witness or witnesses called cannot substantiate all the requisite facts, other evidence must be produced. If the witnesses live out of the State, or more than thirty miles distant, or by reason of infirmity are unable to attend court, their depositions may be taken before any magistrate duly authorized by commission from the judge of probate. ^ 13. [^Commission to take Deposition.] STATE OP MAINE. ss. To A. B., of C. Greeting. I do hereby authorize and empower you to take the deposition of E. F., of G., to be used in the case of the probate of the instrument hereunto annexed purporting to be the last will and testament of H. I., late of K., deceased, now pending in the probate court for our said county of A. And to this end you are to cause said witness to be brought before you at a certain time and place 1 R. S., c. 64, § 4. 16 PROBATE PRACTICE. to be by you appointed, of which time and place you will give due notice of at least one day for every twenty miles travel to the executor named therein (if any one appeared before the judge to object to the probate of the will the magistrate should be ordered to notify such person as well as the execu- tor) and then and there testify what he knows relative to the execution of said instrument; and said deposition you are to return, together with this commission, the Instrument hereunto annexed, and your doings therein, enclosed, sealed and directed to the judge of probate for the county of A., into the office of said court as soon as may be. In testimony whereof I have hereunto set my hand and affixed the seal of said court at a probate court held at A., within and for said county, on the Tuesday of A. D. R. S., Judge of Probate. {-} 14. [Oertificate of McLgistrate.'\ STATE OF MAINE. ■ S8. On this day of — A. D. personally appeared the within named E.P., of G., and having been first sworn according to law by me, then gave the foregoing deposition, which was written by me. (The magistrate should here state whom he notified to attend and whether such person did or did not attend.) The said deposition is to be used in the case of the probate of the instrument hereunto annexed purporting to be the will of H. I., now pending in the probate court for the county of A. Fees. J. H. S., Justice of the Peace. 15. [^Superscription on the Envelope.]^ To the Hon. Judge of Probate for the County of A. The deposition of E. F., to be used in the case of the probate of the will of H.I., now pending in the probate court for said county. Taken and sealed up by me this day of , A. D. . J. H. S., Justice of the Peace. The question to be proved being the legality of the execution of the -will, the mere forgetfulaess by the witnesses of the facts or the circumstances of the attestation will not make it void.^ Thus 1 Dewey v. Dewey, 1 Met. 349. PROBATE OE WILLS. 17 a will was allowed where one of the witnesses was dead and the other two recollected nothing of the circumstances under which it was executed.' When all the witnesses are dead, or cannot be found, proof of their hand-writing is prima facie evidence that the attestation was in due form, and upon such evidence and proof of the hand-writing of the testator the will has been allowed.^ If the evidence presented is sufficient to satisfy the judge that the will was legally executed, that the testator was of sound mind and of full age, and that he has jurisdiction of the estate, he will make the following decree, and the will is then said to be proved and allowed, or probated. 16. [Probate of a Will.'] STATE OF MAINE. ss. At a Probate Court holden at A. , within and for said county, on the Tuesday of , A. D. . Whereas the instrument hereunto annexed has been duly presented for probate, aa the last will and testament of E. P., late of G., in said county, deceased, and due notice of the time and place of the intended probate thereof has been given to all persons interested therein pursuant to the order of court ; and whereas it has been satisfactorily proved to said court that said E. P. died on the day of , A. D. , that he was an inhabitant of said county at the time of his decease, that the said instrument is his last will and testament, that it was legally executed, and that at the time of executing the same the deceased was of full age and sound mind. It is therefore decreed, that said instrument be approved and allowed as the last will and testament of said deceased. It is further decreed that H. C, the executor named therein, is legally competent, and that letters testament- ary issue to him, he first giving bond in the sum of dollars.3 B. S. Judge of Probate. The probdte of a will is conclusive evidence of the legality of 1 Elliott V. Elliott, 10 AUen, 357. 2 Adams v. Norris, 23 Howard, 853. ' Por the form of a probate of a wUl and the appointment of an adminis- trator, with the win annexed, see Post, c. vi., form 47. 3 18 PROBATE PRACTICE. - its execution ,1 and of the sanity and competency of the testator, and cannot be impeached in any other court or proceeding.^ WILLS OP CITIZENS OF THIS STATE EXECUTED IN ANOTHER STATE OR COUNTRY. A will executed in another state or country according to the laws thereof, by one who resided in this state at the time of his death, may be probated in the county where he then resided, as if it had been executed in this state according to the laws hereof, on proof of sanity, full age, and that the will was executed strictly in accordance with the requirements of the law of the state or coun- try where it was executed.' LOST WILLS. When the will of any person whose domicile was in this state is lost, destroyed, suppressed or carried out of the state, and cannot be obtained after reasonable diligence, the execution and contents thereof may be proved by copy and the legal testimony of the subscribing witnesses to the will, or by any other evidence competent to prove the execution and contents of a will.* " To authorize the probate of a lost will, by parol proof of its contents depending on the recollection of witnesses, the evidence must be strong, positive, and free from doubt. Courts are bound to receive such evidence with great caution, and they cannot act on probabihties."* 17. \_Petition for Probate of a Lost Will.^ To the Honorable Judge of Probate for the county of A. A. B., of C, in said county, respectfully represents tliatE. E., an inhabitant of G., in said county, at the time of his decease, died on the day of , A. D. , possessed of estate in said county, which ought to be 1 R. S., c. 74, § 15. 2 Red. on WiUs, vol. 3, 56 ; Parker V. Parker, 11 Cush. 519. 3 R. 8., c. 64, § 13. i R. S., c. 64, § 7. 5 Davis V. Sigourney, 8 Met. 487. PROBATE OF WILLS. 19 administered according to law, that said deceased legally executed a will which existed at the time of his death, and which has never been revoked, that said will was on or about the ^ day of , A. D. , lost or destroyed, that all reasonable diligence has been used to find the same, with- out success, that the instrument hereunto annexed is a true copy of said will destroyed as aforesaid. Wherefore your petitioner prays that said will of said E. F. , as written in said instrument annexed, may be proved and allowed, and that letters testamentary be granted to the executor named therein. Dated this day of , A. D. . A.B. 18. [^Order of Notice.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] A certain instrument purporting to be a copy of the last will and testament of E. F., late of G, in said county, deceased, having been presented for pro- bate, (the original will having been lost or destroyed.) Ordered, &c. [Same as Form 7.] 19. [^Probate of a Lost Will.] STATE OF MAINE. ss. At a Probate Court holden at A., within and for said county on the Tuesday of , A. D. . Whereas the instrument hereunto annexed, purporting to be a true copy of the last will and testament of E. F., late of 6., deceased, has been pre- sented for probate, and due notice of the time and place of hearing the case has been given to all persons interested therein, pursuant to the order of court ; and whereas it is proved that said deceased died on the day of , A. D. , that he was an inhabitant of said county at the time of his decease, that he legally executed a will which continued existing up to the time of his decease, unrevoked, that said will has been lost or destroyed, that reasonable diligence has been made to find the same without success, that the instrument annexed is a true copy of the original will, and that said deceased was at the time of executing the original will of full age and sound mind. It is therefore decreed that the will of said deceased, as written and expressed in said instrument hereunto annexed, be approved and allowed as his last will and testament. It is further decreed that J. H., the executor named in said will, is legally competent, and that letters testamentary issue to him, he first giving bonds in the sum of dollars. R. S., Judge of Probate. 20 PROBATE PRACTICE. WILLS PROVED AND ALLOWED IN OTHER STATES OR COUNTRIES. Any will probated in another state or country, according to the laws thereof, may be probated in this state, in any county where there is real or personal estate on which the will can operate.^ The person seeking the probate of such a will must present a petition for the same, accompanied by a duly authenticated copy of the will and of the probate thereof. 20. [Petition for Probate of a Foreign Will.'\ To the Honorable Judge of Probate for the County of A. A. B., of C, respectfully represents that the last will and testament of E. F., late of G., in the county of H. and State of K., deceased, has been duly proved and allowed by the court in and for said county of H., a court having jurisdiction of the probate of wills, according to the laws of said State, a copy of which will and of the probate thereof, duly authenticated, is herewith produced, and that said testator at the time of his decease left estate in said county of A. on which said will may operate. Wherefore your petitioner, who is the executor named in said will, [or interested in said estate,] prays that said copy of said wiU and of the probate thereof, may be allowed, filed and recorded in the probate court of said county of A., and that letters testamentary be issued to the executor therein named. Dated this day of , A. D. . A. B. 21. [ Order of Notice.'] STATE OF MAINE. ss. At, &c. [Same as Form 7.] A certain instrument purporting to be a copy of the last will and testament of E. F., late of G., in the State of K., and of the probate thereof in said State of K., duly authenticated, having been presented to the judge of pro- bate for our said county for the purpose of being allowed, filed and recorded in the probate court for our said county. Ordered, &c. [Same as form 7, except that thirty days notice must be given.] At the time assigned for the hearing thereon, of which thirty days iR. S., c. 64, § 13; Laws of 1874, c. 169, § 1. PROBATE OS WILLS. 21 notice must be given,i the person seeking to have the will allowed must satisfy the judge that the record presented is duly authenti- cated, that the court in which it purports to have been allowed had jurisdiction, and that there is real or personal estate in the county on 'which the will can operate.^ The judgment of the court in which the will is probated is con- clusive as to the regularity of its proceedings, their conformity to the laws of the state or country where they are had, and also as to the capacity and sanity of the testator.^ A legally authen- ticated copy, to be admitted in the courts of common law or probate of other states, must bear the attestation of the clerk and the seal of the court.' The certificate of the judge that the attestation by the clerk is in due form, is also usually added. If the requisite facts are proved the judge will order the copy of the will and probate thereof to be filed and recorded, and it will then have the same force as if it had been originally proved and allowed in the same court in the usual manner.* A foreign will may be proved and allowed, although the testator has been dead more than twenty years.' 22. [_Probate of a Foreign Will.'] STATE OF MAINE. ss. At, &c. [Same as Form 7.] Whereas the instrument hereunto annexed has been presented for the pur- pose of being allowed, filed and recorded as a copy of the last will and testa- ment of B. F., late of G., in the State of K., deceased, and due notice has been given pursuant to law and the order of court, of the time and place of hearing thereon ; and whereas it ■ has been made fully to appear, that the original will has been allowed and probated by a court in said State having 1 E. S., c. 64, § 13. 2 Crispin v. Dexter, 13 Gray 330; BufEum v. Stimpson, 5 Allen, 591 ; R. S., c. 64, § 13; Laws of 1874, c. 169, § 1. 3 Stat, of U. S., May 26, 1790 ; R. S., c. 64, § 18 ; R. S., c. 83, § 96. * R. S., c. 64, § 14. 6 R. S., c. 64, § 1. 22 PROBATE PRACTICE. jurisdiction over the probate of wills, that said deceased at the time of exe- cuting the same was of full age and sound mind, that he left estate in this county on which said will can operate, and that said copy oughtto be allowed in this State as the will of said deceased. It is therefere ordered that said copy of said will be allowed as the will of said deceased, and that the same together with the copy of said probate thereof be filed and recorded, and that letters testamentary issue to J. K., the executor therein named, he first giving bond in the sum of dollars. J. L. H., Judge of Probate. NUNCUPATIVE WILLS. A nuncupative will has been defined to be such a testamentary disposition of personal property as is made " by word, or without writing, which is when a man is sick and for fear that death, or want of memory or speech, should surprise him, that he should be prevented, if he staid the writing of his testament, desires his neighbors and friends to bear witness of his last will, and then declares the same presently by word before them.''^ It can effect the disposition of personal property only. It must be made during the last sickness of the testator, at his home, or at a place where he has resided ten days before making it, unless he is suddenly taken sick from home and dies before returning to it.^ It must be made in extremis, when the testator does not expect to recover and has not time to make a deliberate will in writing. The words must be spoken with the intent to bequeath, and the wit- nesses must be requested by the testator to take notice of his declarations and intentions. They must be called as witnesses to hear and remember the words.' " No testimony can be received to prove any testamentary words as a nuncupative will, after the lapse of six months from the time they were spoken, unless the words or the substance of them were reduced to writing within six days after they were spoken. No nuncupative will can be effectual to dispose of property exceeding 1 Bacon's Abridg., vol. 7, tit. Wills D— , p. 305. 2 R. S., c. 74, § 18. 33 Black Com., 500, 501. PROBATE OF WILLS. 23 in value one hundred dollars, unless proved by the oath of three ■witnesses, who were present at the making of it, and were requested by the testator to bear witness that such was his will."^ MILITARY WrLLS. It is provided that soldiers "in actual service " and mariners " at sea " may dispose of their personal estate and wages without regard to the provisions of the statutes."^ The only law governing this class of wills, which were formerly called military wills, is the common law, as it stood prior to the passage of the statute of frauds. It is not necessary for soldiers and sailors to formally call wit- nesses to take notice of the will.^ One witness to whom the decla- ration is made is sufficient.' It is not necessary that the nuncupa- tion should be made during the near approach of death,^ nor is it necessary that it be made in any particular manner. The very essence of the privilege consists in the absence of all ceremonies. " All the court requires is to be satisfied, by sufficient evidence, as to the substance of the last testamentary request."^ To be " in actual service," is to be engaged in an expedition and not permanently quartered in barracks.' In Vermont a soldier was held to be in actual service from the moment of being mus- tered in.* PROOF. Extreme caution should be exercised in allowing nuncupative wills, and the wills of soldiers and sailors, on account of the great difficulty, always experienced, in remembering the exact language used by the testator, and the evidence presented should always be examined closely and thoroughly. The sanity, the competency, 1 R. S., c. 74, §§ 19, 20. 2 R. s., c. 74, § 18. 3 Leathers v. Greenacre, 53 Me. 561 ; Red. on Wills, vol. 1, 190-191, 197- 199. 4 Vandeuzen v. Gordon, 39 Vt. 111. 24 PROBATE PRACTICE. the real intentions of the testator, and the exact .words used by him, or the substance thereof, must all be proved by the clearest and most satisfactory evidence. In the case of nuncupative wills,' where the amount bequeathed is less than one hundred dollars, and in case of the wills of soldiers and sailors, no certain number of witnesses is required, and such wills have been allowed on the testimony of one witness who could substantiate all the necessary facts.^ 23. [Petition for Probate of Nuncupative WilU.\ To the Honorable Judge of Probate for the county of A. B.' C, of D., respectfully repre3ents that E. F., an Inhabitant of G., in said county, at the time of his decease, died on tte day of , A. D. •, at H., possessed of goods and estate remaining to be administered, that said deceased during his last sickness Cor while in actual service, or at sea) made a nuncupative will at his home (or at L., a place where he had resided ten days, or where he was suddenly taken sick,) in the presence of J. K., H. W., R. S., whom he called to be witnesses of the same, whereby he disposed of his personal estate to the value bf about ~— — dollars, in the following words, viz. : (Here state the exact words of the deceased.) Where- fore your petitioner prays that said nuncupative will may be proved and allowed, and letters testamentary issued to the executor named by said deceased. Dated this day of , A. D. . .B. C. The statute requires that due notice shall be given to all per- sons interested, and that the same shall specify that the will to be proved is a nuncupative will.' 24. [ Order of Notice.'] STATB OP MAINE. S8. At, &c. [Same as Form 7.] A certain instrument purporting to be the nuncupative will, &c. [Same as Form 7.] iR. S., c. 74, §30. 2 Law Reporter, vol. 33, p. 110. 3 r. g.^ c. 64, § 16. PROBATE OF WILLS. 25 No probate of any nuncupative will or letters testamentary shall lie granted, until fourteen days after the decease of the tes- tator.' 25. [Probate of a Nuncupative Will-I SB. At a Probate Court holden at A., within and for said county, on the Tuesday of -, A. D. . Whereas a petition has been presented for the probate of the nuncupative will of E. P., late of G., deceased, and due notice has been given pursuant to the order of court of the time and place of hearing, to all persons inter- ested therein ; and whereas it is proved th^t said deceased died on the day of , A. D. 18 — , that he was an inhabitant of said county at the time of his decease; and whereas it is proved by the testimony of J. K., H. W., and R. S., that said deceased pronounced and declared the testamentary words set forth in said petition in their presence, that they were requested by the testator to bear witness that such was his will, and that said testa- mentary words were reduced to writin? on the day of , A. D. ; and whereas it is proved that said words were pronounced and declared during the last sickness of the said deceased (or while in actual service or at sea) on the day of , A. D. , at his home (or at S., a place where he had resided ten days, or where he was suddenly taken sick) that by said words so declared or pronounced, the deceased intended to make a tes- tamentary disposition of his personal estate in the manner mentioned by him, and that said deceased was at the time of full age and sound mind. It is therefore decreed that said testamentary words be approved and allowed as the nuncupative will of said deceased, and that letters testamentary issue to the executor named by said deceased, he first giving bond in the sum of , dollars. E. S., Judge of Probate. A will devising real estate having been duly proved and allowed, it is the duty of the register of probate, within thirty days there- after, to make out and certify to the register of deeds of the county where such real estate lies, a true copy of so much of the will as devises real estate, with a description thereof, as far as any such 1 R. S., c. 64, § 16. 26 PROBATE PRACTICE. description is furnished by the will, and the name of the testator and of the devisee.^ The register of deeds receiving such copy is required to file and record the same as if it were a deed of real estate. The fees of both registers for their services in this matter are to be paid by the executor to the register of probate, who must pay the register of deeds his proper fee.' The executor will be allow- ed to charge the amount so paid by him in his administration account.'' 1 Laws of 1874, c. 186 ; Laws of 1879, c. 129. "^ See c. xxiy. CHAPTER IV. EXECUTORS. After the will has been proved and allowed, the judge may issue letters testamentary thereoii to the executor named therein, if he is " legally competent," "accepts the trust," and " gives bond " to discharge the same.^ The executor's appointment comes from the testator, but the appointment gives to the executor no rights or powers till it has been confirmed by the judge, a bond given and approved and letters testamentary issued.^ The practice is for the judge, if he thinks the executor named to be competent, to con- firm the appointment in the same decree by which he allows the will, by adding thereto the words " it is further decreed that A. B., the executor named therein, is legally competent, and that let- ters testamentary issue to him,'" &c. Legally competent. The statute nowhere defines the meaning of these words. It vests in the judge a broad discretion to be carefully exercised. If the executor named is insane, physically unable to perform the duties, under twenty-one years of age, or a creditor or debtor of the estate, whose claim is in dispute, he is evidently unsuitable and therefore legally incompetent.* Infants may be admitted as joint executors when they become of age.* A married woman may be appointed executor.^ Accepts the trust. If the executor named neglects for twenty days after the making of the decree of confirmation, to accept the 1 E. S., c. 64, § 6. 2 Millay v. Wiley, 46 Me. 330, 339. 2 See form 16. * Thayer v. Homer, et al., 11 Met. 104. 5 R. S., c. 64, § 30. 6 Stewart, applt., 56 Me. 300. 28 PROBATE PRACTICE. trust by giving the bond required, or if on being cited he refuses to accept, the judge may appoint an administrator with the will annexed.^ It has been said that different executors may be appointed, charged with different duties and liabilities, but the American practice is to the contrary. The executor may be. a resident of another State. When a will has been probated and an appeal taken, the judge may grant letters to the executor, who shall give bond and settle the estate as if no appeal had been taken, and after payment of debts and expenses of administration retain the balance to be paid out under the direction of the judge.^ If more than one executor is appointed, and one dies, resigns, or is removed, the other may proceed to discharge the trusts.' EXECUTORS' BONDS. The decree having been made probating the will, confirming the appointment of the executor and fixing the amount of the bond, which should always be at least double the amount of the personal property to be administered, the executor should cause a bond to be properly drawn, conditioned as prescribed by the statute, signed by himself and two or more sureties, residents of this State,* and present the same to the judge for his approval. When the testator has specially requested that no bond shall be required of the executor, the judge may issue letters testamentary without any bond having been given, yet if it appears necessary and proper for the protection of those interested in the estate, he may, on application of parties interested, require him to give bond notwithstanding such request.' Joint executors may, at their option, give joint bonds with sure- ties for all, or several bonds with sureties for each. The statute does not in terms so direct, but such is the practice, which seems to be in accordance with the true intent of the law. 1 R. S., c. 64, §§ 7, 80. 2 R. s'., c. 64, § 36. ' R. S., c. 64, § 63. * R. S., c. 64, § 9. 6 R. 8., c. 64, § 8 ; Laws of 1876, c. 81. EXECUTORS. 29 26. EXECUTOR'S BOND. Know all men by these presents, that we A. B., of P., as principal, and C. D. andE. F., of , as sureties, all of the county of A. and State of Maine, are holden and stand firmly bound and obliged unto J. S. H., Esq., judge of probate for the county of A., in the sum of dollars, to be paid unto him the said judge of probate or his successor in office; to the true payment whereof, we bind ourselves, our heirs, executors, and administrators, jointly and severally by these presents. Sealed with our seals, dated the Tuesday of ■, in the year of our Lord one thousand eight hundred and . The condition of this obligation is such, that if the above bounden A. B., executor of the last will and testament of H. "W., late of M., in said county of A., deceased. First. Shall make and return to the probate court, within three months, a true inventory of all the real estate, and all the goods, chattels, rights and credits of the said testator which are by law to be administered, and which shall come to his possession or knowledge; Second. ShaU administer, according to law, and to the will of the testator all his goods, chattels, rights, and credits; Third. Shall render, upon oath, a just and true account of his administra- tion, within one year, and at any other times, when required by the judge of probate; Fourth. Shall account, in case the estate should be represented insolvent, for three times the amount of any Injury done to the real estate of the said deceased, by him or with his consent, between the representation of insol- vency, and the sale of such real estate for the payment of debts, by waste or trespass committed on any building thereon, or on any trees standing and growing thereon, except as necessary for repairs or fuel for the family of the said deceased, or by waste or trespass of any other kind, and for such damages as he recovers for the like waste or trespass commited thereon ; then the above written obligation shall be void, otherwise shall remain in full force. Signed, sealed and delivered A. B. [l.b.] in presence of C. D. [l.s.] B. F. [L.8.] STATE OE MAINE. ss. At aProbate Courtholden at A., withinandfor saidcounty, on the Tuesday of A. D. . The above bond having been examined, is hereby approved, and ordered to be filed and recorded. J. L. H., Judge of Probate. 30 PROBATE PKACTICB. Residuary Legatee. If the balance of the estate after paying the debts and legacies is devised or bequeathed to the executor, the condition of the bond should be to return an inventory as afore- said, and to pay all debts and legacies of the testator, unless the estate from some unexpected event should prove insuflScient there- for.i Form 26 may be used, omitting the second, third and fourth specifications, and substituting therefor the following, viz : "Second. Shall pay all the debts and legacies of the testator, unless the estate from some unexpected event should prove insufficient therefor." If the bond is satisfactory to the judge he will approve the same in writing^ and thereupon issue to the executor his letters tes- tamentary. If there are several executors, all their names must be embraced in each letter. 27. [Letters Testamentary. '\ STATE OP MAINE. sa. Probate Coukt. To E. F., Greeting. Whereas, at a probate -court, held at A., within and for said county, on the Tuesday of , A. D. 18 — , the last will and testament of J. L. H., late of P., in said county, deceased, was duly proved and allowed, a copy of which is hereunto annexed ; and whereas you have been duly appointed by the said testator to be the executor thereof, and have accepted the trust and given bond as the law directs : — I do therefore, by virtue of the power vested in me by law, by these pres- ents commit unto you said trust, with full authority to faithfully execute the provisions of said will, and to administer according to law and said will all the goods, chattels, rights and credits, whereof said deceased died possessed. And you are hereby ordered : — 1. To make and return, upon oath, into the probate court for said county within three months from the date hereof, a true inventory of all the real estate, and all the goods, chattels, rights and credits of the said deceased, which are by law to be administered, and which shall come to your hands or knowledge. 1 R. S., c. 64, § 10; Cleaves «. Dockray, 67 Me. 118. 2 R. S., c. 73, § 1. EXECUTORS. 31 2. To recover and collect all credits and maintain all rights, by due pro- cess of law if necessary, of said deceased which appertained to him at the time of his death. 3. To pay all legacies, also all debts in which the said deceased was legally bound, so far as his goods, chattels, rights and credits extend, accord- ing to the value thereof ; and in case theseare insufficient to pay the same, you are to make representation thereof to said court and request license to sell so much of the real estate of said deceased, (if any he has) as will pay such debts and legacies as remain unsatisfied by the personal estate. 4. To render upon oath, a true account of your administration within one year from the date hereof and at any other times when required by the judge of probate for said county. 5. To represent the estate to be insolvent to the said court, if at any time you have reason to believe from the condition and circumstances of the same that it is insufficient to pay all the claims thereupon, to the end that conmiis- sioners may be appointed to receive and examine the same. 6. To account for all goods and effects named in the inventory, (except credits and rights to property not in possession) at their appraised value, unless sold under license of court ; also for any additional value, if any goods or effects not sold under license, allowed to the widow nor distributed to the heirs or devisees, are shown to be of greater value than they were appraised at; also for all interest, profit and income received by you from personal estate ; also for all inconje received from any part of the real estate used or occupied by you. 7. To account, in case the estate should be represented insolvent, for three times the amount of any injury done the real estate of the deceased by you or with your consent, between the representation of insolvency and the sale of such real estate for the payment of debts, by waste or trespass com- mitted on any building thereon, or on any trees standing or growing thereon (except as necessary for repairs or fuel for the family of the deceased,) and for waste or trespass of any other kind, and for such damages as you recover for the like waste or trespass committed thereon. 8. To give notice of your appointment aforesaid, within three months from the date hereof, by causing notifications thereof to be posted up in two public places in the town where the deceased last dwelt, viz : one at and one at , and by causing the same to be published in the , a newspaper printed at , in said county, three weeks succes- sively. 9. To file in the probate court for said county within one year from the 32 PROBATE PRACTICE. date hereof, a true copy of the original notice given by you, together with your affidavit, or thatof the person employed by you to give such notice, made before the judge of probate or a justice of the peace, that said notice has been posted and published as above directed, to the end that evidence of the time, place and manner of giving said notice may be perpetuated in said court. In testimony whereof, I have hereunto set my hand and official seal, at a probate court held at A., within and for said county, on the Tuesday of , A. D. 18—. J. L. H., Judge of Probate. {-•1 When the executor is residuary legatee, the above form (27) may be used, substituting for the directions 3 to 7 inclusive the following, viz : " 3. To pay all the debts and legacies of the tes- tator, unless his estate from some unexpected event should prove insufficient for the payment of the same, and in all things, accord- ing to law and in the fulfillment of the trust reposed in you, faith- fully to discharge the duties of an executor of said will." 28. [_Letters Testamentary on a Foreign Will.'\ STATE OP MAINE. ss. Pkobate Couet. To A. B., Greeting. "Whereas, at a probate court holden at B. , in the State of P. , the last will and testament of E. P., late of G., in said State was duly proved and allowed; and whereas at a probate court holden at N., witjiin and for the county of C, on the third Tuesday of A. D. , a copy of said will, a copy of which is hereunto annexed, was duly ordered to be filed and recorded in our said probate court, and is now of record therein; and whereas you have been duly appointed by said testator executor thereof, and have accepted the trust and given bond as the law directs. I do therefore, &c. [Same as Form 24.] EXECUTORS. 33 If the court has no jurisdiction these letters are void, and the appointment may be attacked collaterally, or in any subsequent proceedings ; but when the jurisdiction and letters are based on allegations in the petition of residence, and of amount or locality of property, and not appealed from, the appointment is vaUd and cannot be questioned.^ 1 R. S., c. 63, § 7; Simpson v. Norton, 45 Me. 381; Record v. Howard, 58 Me. 325. CHAPTER V. TESTAMENTARY TRUSTEES AND VOLUNTARY TRUSTS. Testators very frequently devise or bequeath real or personal estate to some person or persons, to be held by them in trust for the use of some other person or for some purpose specified. If the will which has been probated contains such a provision, the person therein named as trustee, if he accepts the trust, should file a petition praying that the appointment may be confirmed. 29. [^Petition for Appointment of Trustee.^ To the Honorable Judge of Probate for the County of A. A. B., of C, respectfully represents, that E. F., late of G., deceased, tes- tate, did by his last will and testament, which was duly proved and allowed at a probate court held at A., within and for said county, on the Tues- day of , A. D. 18 — , give and bequeath to your petitioner certain estate, therein described, to be held by him, in trust, for the use and benefit of J. M. P., and that he is willing to accept said trust and give bond for the faith- ful discharge thereof. He therefore prays that said appointment may be confirmed, and that let- ters of trust issue to him according to law. Dated this day of , 18 — . A. B. No notice is required to be given thereon by statute, but the practice is to order it to be given, unless the parties ihterested request in writing that the appointment be made without further notice. TESTAMENTARY TRUSTEES. 35 30. [ Order of Notice.'] -S8. At, &c. [Same as Porm 7.] A. B., who is appointed as trustee in the will of E. F. , late of G., deceased, having filed his petition that said appointment be confirmed, and that letters of trust issue to him. Ordered, &c. [Same as Form 7.] 31. J[Decree.] STATE OF MAINE. ss. At a Probate Court hoklen at A., within and for the county of C, on the Tuesday of , A. D. . On the foregoing petition, It is decreed, that the appointment of A. B., as trustee under the will of E. F., of the estate therein given and bequeathed in trust, be confirmed, and that letters of trust be issued to him, he first giving bond in the sum of dollars, within twenty days. J. S. H., Judge of Probate. TRUSTEE BOISTDS. Every trustee, except as hereafter stated, must give bond for the faithful performance of the trust.i 32. l_Trustee's Bond.] Know all men by these presents, that we, A. B., of C, as principal, and L.M. and P.R., of , as sureties, all in the county of A., within the State of Maine, are holden and stand firmly bound and obliged unto J. L. H., Esq., judge of probate for the county of A., in the suin of dollars, to be paid unto him, the said judge of probate, or his successors in office ; to the true payment whereof, we bind ourselves, our heirs, executors and adminis- trators, jointly and severally by these presents. Sealed with our Seals. Dated this Tuesday of , in the year of our Lord one thousand eight hundred and . The condition of this obligation is such, that whereas, by the last will and testament of B. F., late of G., in said county, deceased, which said will was duly proved and allowed at a probate court, held at A., within and for said county, on the Tuesday of — '■ , 18 — , and is now of record in 1 R. S., c. 68, § 1. 86 PROBATE PRACTICE. said court, certain estate described therein was given and bequeathed intrust for the benefit of J. M. P., and whereas, the above bounden A. B., has been duly appointed trustee of said estate and accepted said trust : Now, therefore, if the said trustee — First. Shall faithfully execute said trust, according to the will of the tes- tator, so far as consistent with law ; Second. Shall make a true and perfect inventory of the real estate, goods and chattels, rights and credits of such estate, and return the same into the probate office for said county, at such time as the judge orders ; Third. Shall render a just and true account of the income and profits of said estate, and of his payments and expenses, once in three years and of tener if required by the judge ; Fourth. Shall at the expiration of said trust settle hiS account with the judge of probate ; pay and deliver over all balances, sums of money, or other property, that are due, and give possession of the other estate with Which he is entrusted, to the persons entitled thereto ; then the above obli- gation shall be void, otherwise to remain in full force. Signed sealed and delivered in presence of A. B. [L. s.] L. M. fL. s.] P. K. [L. s.] STATE OF MAINE. ss. At a Probate Court holden at A., within and for said county, on the Tuesday of , A. D. . The above bond having been examined is approved, and ordered to be filed and recorded. J. L. H., Judge of Probate. In the following cases, bonds shall not be required unless the judge determines the same to be necessary:^ 1. When the testa- tor has requested or directed that a bond should not be required. 2. When all the parties interested in the trust fund, if of full age and legal capacity, in writing signify to the judge their request that a bond should not be required. But when no bond is required, trustees shall settle their accounts annually.^ iR. 8., 0.68, §2. TESTAMENTARY TRUSTEES. 37 33. \_£etters of Trust.'] STATE OF MAINE. ss. Peobatb CotJET. To . Greeting. Whereas, by tlie last will and testament of E. P., late of G., in said county, deceased, which said will was duly proved and allowed at a probate court held at A., within and for said couirty, on the Tuesday of , 18 — , and is now of record in said court, a copy of which is hereunto annexed, certain estate described therein was given in trust for the benefit of J. M. P.. ; and whereas, you have duly accepted theoflBce of trustee\)f said estate, and given bond as. the law directs ; — I do therefore, by virtue of the power vested in me by law, by these presents, commit unto you full authority to execute said trust. And you are hereby ordered : — 1. To faithfully execute said trust according to the will of said testator, so far as is consistent with law. 2. To make a true and perfect inventory of the real estate, goods and chat- tels, rights and credits of said estate, and return the same into the probate office for said county, within months from the date hereof. 3. To render a just and true account of the income and profits of said estate, and of your payments and expenses, on oath, into our said court, once in three years, and oftener if required by the judge thereof. 4 To settle your account, at the expiration of said trust, with the judge of probate, pay and deliver all balances, sums of money or other property, that are due, and give possession of any other estate, with which you are entrusted, to the persons entitled thereto. In testimony whereof, I have hereunto set my hand and official seal, at a probate court, held at A., within and for said county, on the Tuesday of , A. D. 18—. J. S. H., Judge of Probate. {....} If the person named as trustee declines to accept the trust he should at once file his declination in writing. 38 PROBATE PRACTICE. l^Declination of Trustee named.'] To the Honorable Judge of Probate for the county of A. A. B., of C, in said county, respectfully represents that he was appointed trustee by B. F., late of Q., deceased, in his last will and testament which has been duly proved and allowed in the probate court for said county, and that he hereby declines to accept said trust. Dated this day of , A. D. 18—. A. B. If he files neither his petition nor his declination, the judge, on the verbal motion of any party interested, will appoint a time ■within which he must accept the trust and file his bond or be con- sidered as declining the same, and order notice to be given of the same to the trustee named. ^ 34. [^Notice to Trustee to Accept.'] STATE OF MAINE. ss. At a Probate Court holden at A., within and for said county, on the Tuesday of , A. D. . Whereas the last will and testament of E. F., late of G., deceased, was duly proved and allowed at a probate court holden at A., within and for said county, on the Tuesday of , A. D. 18 — , in which A. B. was appointed by the said testator trustee of certain estate therein described, given in trust for the use and benefit of J. M. P. Ordered that the said A. B. be cited to appear at a probate court to be holden at A., within and for said county, on the Tuesday of , A. D. 18 — , and accept said trust, and give bond, or be consi dered as decliqing the same, by serving him with an attested copy of this order fourteen days at least prior to the holding of said court. 2 J. S. H., Judge of Probate. If the trustee named declines the trust, or does not file his bond within the time appointed, or does not file his bond on being cited as aforesaid, within the time named, or dies, or is removed by the judge, or resigns after having accepted, and no adequate provision is made by the will for supplying the vacancy, the judge, after 1 R. S., c. 68, § 3 ; Deering v. Adams, 37 Me. 264. 2 For mode of service see c. ii, remarks under forms 2 and 3. TESTAMENTARY TRUSTEES. 39 notice to all persons interested, upon petition therefor, shall appoint a new sole or joint trustee who, upon giving bonds and security required, shall have and exercise the same powers, rights and duties as if he had been appointed by the testator.^ 35. {^Petition for App. of Trustee by the Judge.] To the Honorable Judge of Probate for the county of A. H. W., of C, respectfully represents that E. F., late of G., deceased, by his last will and testament which has been proved and allowed in the probate court for said county, gave certain estate therein named in trust, fiw the use and benefit of J. M. P., and appointed A. B., trustee under said will, that the said A. B. (defines, or has neglected to file his bond, or has deceased, or is incompetent, or is unsuitable, &c., as the case may be.) He therefore prays that R. S. may be appointed trustee in the place of the said A. B., according to the provisions of law. Dated this , A. D. . H. W. 36. [ Order of Notice.] STATE OP MAINE. as. At, &c. [Same as Form 7.] H. W., having filed a petition praying that R. S. may be appointed a trustee under the will of E. P., late of G., deceased. Ordered, &c. [Same as Porm 7.] 37. \_Decree.'\ STATE OP MAINE. ss. At, &c. [Same as Porm 7.] Upon the foregoing petition, notice thereof having been given pursuant to the order of court and the facts therein alleged having been made fully to appear. It is decreed that R. S. be appointed trustee as prayed for, and that letters of trust issue to him, he first giving bond in the sum of dollars. J. li. H., Judge of Probate. 1 R. S., c. 68, §§ 3, 3, 6 ; Chase ». Davis, 65 Me. 102 ; Laws of 1878, c. 8, §§ 1, 3. 40 PROBATE PRACTICE. It frequently becomes a question of considerable nicety to decide whether a trust has been created, so as to render it necessary to appoint a trustee, or whether the acts directed by the testator to be done come within the scope of the duties of an executor. ^ It may, however, be stated generally, that if a testator bequeaths' property with direction that it be expended for the use of persons named, and does not appoint or provide for the appointment of a trustee, it is the duty of the executor to hold and invest the funds and pay the same according to the terms of the will.^ But the judge in his discretion may authorize the executor to close his account as executor, and give bond and open an account as trustee, if there is an implied trust and by so doing the settlement of the estate would be simplified. Executors who become trustees by the terms of the will without any express appointment, cannot be considered as holding the funds as trustees till they have settled their account as executors and opened an account as trustees.' Such executors are not required to return another inventory.* Any person or persons capable of taking and holding the legal estate and possessed of natural capacity and legal ability to exe- cute the trust, and domiciled within the jurisdiction of the court, may be appointed to the trust. Thus a corporation, puMic, pri- vate or municipal, societies whether incorporated or not, married women and infants may be trustees.' The judge may authorize any trustee to refer or compromise claims for or against the estate,* to sell personal or real estate held in trust and invest the proceeds, and generally may give such direction for managing the trust estate as the case requires.'' I R. S., c. .77, § 5. 2 Dorr d. Wainwright et ah, 13 Pick. 328. 3 Miller et ux. v. Congdon, 14 Gray, 114 ; Hardy v. Yarmouth, 6 Allen, 377. * R. S., 0. 68, § 13. 5 Perry on Trusts, vol. 1, p. 31. ^ R. S., c. 68, § 9. Porforms of proceeding see c. xi. ' R. a., c. 68, § 10. For forms of proceedings see c. vli. VOLUNTARY TRUSTS. 41 The judge may also hear and determine in equity all matters relating to testamentary trusts/ Trustees may resign or may be removed.'' VOLUNTABY TRUSTS. For the better security of voluntary trusts the following pro- visions have been made : Any person placing property for any purpose in the hands of a trustee, may, on petition to the judge of probate in the county where he resides, have the appointment of trustee confirmed by said judge ; and said trustee shall file a bond, with sureties, to be approved by said judge, for the fulfillment of said trust, according to the terms and conditions of the trust deed or declaration. Such trustee shall be held to account to the judge of probate in the same manner as testamentary trustees, unless excused or released therefrom by the persons creating the trust, or for whose benefit the trust was created ; and at the termination of such trust, the money or property held by the trustee shall be paid or delivered to the person legally entitled thereto. If said trustee at any time fails to fulfill the conditions of the trust or of his bond, the parties interested shall have the same remedies, and like proceedings shall be had, as are provided in case of other probate bonds.' The forms of proceedings already given in this chapter may be used in cases of voluntary trusts, with slight changes, obvious to the practitioner, to adapt them to the circumstances of such trusts and the terms and conditions of the trust deed or declaration, ' 1 R. S., c. 68, § 11. 2 R. S., 0. 68; § 4. For forms of resignation and removal, see c. xxiii. 3 Laws 1874, c. 206. CHAPTER VI. APPOINTMENT OF ADMINISTRATOR. STATUTORY PROVISIONS. Administrators. Upon the decease of any person intestate, the judge having jurisdiction shall grant administration of his estate to the widow, husband, next of kin, or husband of th^ daughter of the deceased, or to two or more of them, as he thinks fit, if the applicant is over twenty-one years of age, and in other respects suitably qualified for the trust ; but if they are unsuitable, or, being residents of the county, they, after due notice, neglect or refuse for thirty days from the decease of the intestate, to take out letters of administration, he may commit administration on such estate to such person or persons as he deems suitable.^ Administrator with the will annexed. If no executor is named in any will which has been probated, or if the sole executor therein named declines to accept the trust, or neglects for twenty days after the probate of the will and confirmation of his appointment, to give bond, or refuses to accept on being cited for that purpose, or is under the age of twenty-one years at the time of the probate, or in the opinion of the judge is not " legally competent," the judge may commit administration of the estate, with the will annexed, to such person as he would be authorized to appoint if the deceased had died intestate.- Administrator de bonis non. If a sole executor or administra- tor dies, resigns, or is removed, or an unmarried woman being executor or administrator marries, the judge may commit admin- 1 R. S., c. 64, § 17 ; Laws of 1874, c. 169. 2 R. B., c. 64, §§ 6, 20. APPOINTMENT OF ADMINISTRATOR. 43 istration of the estate, de bonis non, — that is, of the estate not pre- viously administered', with the will annexed, or otherwise, as the case requires, to such person as he sees fit.' The duties and liabili- ities of a deceased executor devolve upoa the administrator with the will annexed, who represents the deceased testator, and not upon the executor or administrator of the deceased executor. ^ PMio administrator. The governor shall appoint in each county a public administrator, who shall administer on the estate of any person who dies intestate in such county not known to have in this state any heirs or kindred who can inherit such estate.^ Special administrator. When from any cause there is delay in granting letters testamentary or of administration, or when by reason of removal or discharge of an executor or administrator and ' appeals therefrom, there is no executor or administrator to act, the judge may appoint a special administrator to act until some executor or administrator has been legally appointed, but on grant- ing letters testamentary or of administration, his powers shall cease.' ADMINISTRATION WITH REFERENCE TO MORTGAGED REAL ESTATE. When a mortgagee or his assignee has died since March 3, 1874, and there is no executor or administrator to receive the money due on the mortgage, on application of the person having the right to redeem, the judge of the county where the mortgaged estate is situated, may grant administration on such estate to par- ties interested in the same, or, in case of their neglect or refusal after due notice, to such person as he deems suitable. The administrator thus appointed " shall have full power to act- as such with reference to said mortgage as is already provided by law." 1 R. 8., c. 64, §§ 21, 33 ; Prescott v. Morse, 64 Me. 422. 2 R. 8., c. 64, §§ 35, 36. 3 R. 8., c. 64, §§ 33, 34. 44 PROBATE PRACTICE. In all such cases, personal notice must be first given to the widow and heirs of the deceased known to be livmg in this state.^ NOTES. Decease of any person. Death being a matter of common noto- riety, no proof of it is usually required, except in cases where the deceased was a resident of another state, or died abroad. Death, after the lapse of seven years without intelligence concerning a person, will be presumed. A person under sentence of death, or imprisonment for life, and confined in pursuance thereof, shall be regarded as civilly dead.^ Intestate. When a person dies not having disposed of his estate by will, he is said to die intestate. The judge having jurisdiction. The judge has jurisdiction when the intestate was, at the time of his decease, an inhabitant or resident of his county, or being an inhabitant of another state, died without the state, leaving estate to be administered in his county, or whose estate is afterwards found therein,' and who also left personal estate to the amount of at least twenty dollars, or owed debts to that amount and left real estate of that value, and died within twenty years last past.^ But the twenty years limita- tion applies odly to original administration and not to administra- tion de bonis nan, or when there are moneys due the estate from the United States.* " Inhabitant or resident." These words are not synonymous, but are to be taken diverso intuitu. A man may be a resident and still not be an inhabitant. Inhabitant means having a home, an actual, fixed, permanent residence.' 1 Laws of 1874, c. 243. 2 R. 8., c. 64, § 18. 3 R. 8., c. 63, § 6 ; Gilman v. Gilman, 52 Me. 165. * R. S., c. 64, § 1. 5 Harvard CoUege ». Gore, 5 Pick. 371. APPOINTMENT OF ADMINISTRATOR. 45 " Leaving personal estate to the value of twenty dollars, " ^e. The personal estate, which includes dehts due to the deceased, as well as goods and chattels, need not be situated in the county where the deceased dwelt. If there is no personal estate, the same principles apply to the situation of real estate required to give-jurisdiction. Or, " being an inhabitant of another state, died without the state, leaving estate to he administered in his county." The estate must be actually situated in his county. The fact may be proved by parol evidence.^ A debt due the deceased from an inhabitant of his county is estate to be administered in his county, and so is real estate belonging to the deceased situated therein.^ Such administration is termed ancillary administration, being ancillary or secondary to the principal administration in the state where the deceased dwelt, and will be granted if estate is found in his county after the death of the deceased, though not therein at the time. '■^ Shall grant administration to the widow ^ husband, next of kin, or husband of daughter of the deceased, if twenty-one years of age and suitably qualified." The several classes of persons named are entitled to administer as matter of right in preference to strangers, but can claim no preference over each other. As between themselves they are equally entitled to administer. If, however, a sole executor or administrator . dies, resigns, or is removed, and it is necessary to appoint a person to administer the goods not already administered, usually termed an administrator de bonis non, in such cases said classes have no preference, as matter of right, over any other person.' ^' Next of kin." This expression is synonymous with nearest related. There may be several persons equally related to the 1 Harrington v. Brown, 5 Pick. 519 ; Bowdoin v. Hallam, 10 Cush, 17. 2 Picquet, applt. 5 Pick. 65 ; Holmes v. Brown, 68 Me. 416. 3 R. S., 0. 64, §§ 31, 33. 46 ■ PROBATE PRACTICE. deceased, as : 1, parent and children ; 2, grand parents, grand children, brothers and sisters ; 3, great grand parents, great grand children, uncles, aunts, nephews and ni6ces, &c. Bach of these classes, in the order named, is entitled to administer in pref- erence to those more remote. If there are none of the first class, then the second class is entitled, and so on. Kindred on the father's and mother's side are equally entitled. If " suitably qualified." This provision of the statute vests in the judge a broad discretion, for the exercise of which no rules can be given, as probably the circumstances of no two cases were ever exactly alike. As a general rule, males will be preferred to females, children to parents, brothers to grand parents, persons residing in the county to those at a distance, persons familiar with business to those unaccustomed to it, persons of strong mind to those easily influenced, and especially a financially disinterested person to a debtor or creditor of the estate.-^ If an unmarried woman, who is executor or administrator, marries, her authority shall cease,^ but a married woman may be appointed,^ and so may a resident of another state. " If they are unsuitable." If the appUcants from the classes named are in the opinion of the judge unsuitable, he may appoint any suitable person or persons. " If they neglect." If the persons previously mentioned, though suitable, neglect for thirty days from the decease of the intestate to make application to be appointed, (that time being deemed rea- sonable to be allowed near relations weighed down with grief, to decide whether they will administer or not) the judge may appoint such person or persons as he deems suitable. But if any of said persons reside in the county, they shall be duly notified * before 1 Steams v. Fiske, 18 Pick. 34. 2 R. S., c. 64, § 33. 3 Stewart, applt. 56 Me. 300. < R. S., c. 64, § 17. APPOINTMENT OF ADMINISTRATOR. 47 any other person is appointed, although thirty days have elapsed since the decease of the intestate, in order that they may have an opportunity to administer if they desire to do so. If, being resi- dents of the county, they renounce their claim in writing, or if they do not reside in the county, no notice being required, after •the expiration of thirty days from the decease of the intestate, any suitable person may be appointed. The appointment of a stranger ■within the thirty days, without citation or notice to those entitled to administer, or their renunciation, would be void.^ The renunci- ation of their right to administer by parties entitled to preference, gives them no right to appoint another.^ Signing a petition for the appointment of -another is regarded as a renunciation of the right of the signer. If there is more than one administrator and one dies, resigns, or is removed, the others may proceed to dis- charge the trust.^ PRACTICE. A person desiring the appointment of an administrator must file a petition therefor. 38. [^Petition for Administration.^ To the Honorable Judge of Probate for the county of C. A. B., of C, respectfully represents that E. F., a resident of G., In said county, at the time of his decease, died on the day of , A. D. , intestate, possessed of estate in said county which ought to be admin- istered according to law, and prays that administration thereof be granted to J. B. H., of K., he being (the widow, husband, next of kin, husband of a daughter of said deceased, or a suitable person,) twenty-one years of age and suitably qualified for such trust. Dated this day of , A. D. . A. B. 1 Cobb V. Newcomb, 19 Pick. 336. 2 B. S., c. 64, § 63. 48 PEOBATE PEACTICE. If the person whose appointment is desired is not one of those previously mentioned as entitled to preference in the appointment, the judge will order those persons so entitled to he cited to appear and accept the trust, if they reside in his county, but if they do not so reside, no notice is required, after the expiration of the thirty days, though it is frequently ordered. When all the parties* entitled to preference renounce the trust in writing, (which may be done on the petition) no notice is necessary. 39. [^Renunciation . J The undersigned being all tlie parties entitled to administer on the above mentioned estate in preference to others, hereby decline to accept said trust, and request that the foregoing petition be granted. R. 8. T. W. No form of notice or mode of service is prescribed by statute. The following form may be used when notice is ordered. 40. [^Order of Ifotiee.] STATE OF MATNB. A. At, &e. [Same as Form 7.] A. B., of C, having presented a petition praying that administration of the estate of E. F., late of G., in said county, intestate, may be granted to J. B. H. Ordered that the widow, next of kin, and husband of any daughter of the deceased, be cited to appear at, &c. [Same as Form 7.] At the hearing the 'petitioner must satisfy the judge of the truth of the facts alleged in the petition, and that notice has been given as directed, if notice was ordered. Any person interested may appear and object. If the judge is satisfied of the truth of the facts alleged in the petition, he will make the following decree. APPOINTMENT OF ADMINISTRATOR. 49 41. \_Decree Appointing an Administrator. 1 STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition (if notice .was ordered insert liere, due notice having been given thereon) the facts therein alleged having been made fully to appeal'. It is decreed that administration of the estate of the deceased mentioned therein be hereby granted to J. B. H., of K., in said county, who is hereby ordered to give the bond required by law in the sum of dol- lars, before entering on the execution of said trust, and that thereupon a letter of administration issue pursuant to law. A. W., Judge of Probate. The administrator will then file his bond in the sum, required, properly drawn, signed and sealed. The bond must be made pay- able to the judge or his successors, and the sureties must be resi- dents of this state.' If more than one administrator is appointed, the bond, like that of an executor, may be joint with sureties for all, or several with sureties for each. If satisfactory, the judge will approve the same, in writing," and thereupon issue to the administrator his letters of administration. [Administrator's Bond.'] Know all men by these presents, that we A. B., of C, as principal, and B. W. and S. P. , as sureties, all of the county of A. , within the State of Maine, are holden and stand firmly bound and obliged unto J. L. H., Esq., judge of probate for the county of A., in the sum of • dollars, to be paid unto the said judge of probate, or his successors in oiflce ; to the true payment whereof, we bind ourselves, our heirs, executors and administrators, jointly and severally by these presents. Sealed with our seals. Dated the Tuesday of —. , in the year of our Lord one thousand eight hundred and . The condition of this obligation is such, that if the above bounden A. B., administrator of the estate of E. P. , late of G. , in said county of A. , deceased — 1 R. S., c. 64, § 19. 2 R. S., c. 73, § 1. 4 50 PROBATE PKACTICB. First. Shall make and return into the probate court, within three months, a true inventory of all the real estate, and all the goods, chattels, rights and credits of the deceased, which come to his possession or knowledge ; Second. Shall administer, according to law, all the goods, chattels, rights and credits of the deceased ; Third. Shall render, upon oath, a true account of his administration, ■within one year, and at any other times, when required by the judge of probate ; Fourth. Shall pay and deliver any balance, or any goods and chattels, rights and credits, remaining in his hands, upon the settlement of his accounts, to such persons as the judge of probate shall direct ; Fifth. Shall deliver the letters of administration into the probate court, in case any will of the deceased shall be thereafter duly proved and allowed ; Sixth.i Shall account, in case the estate should be represented insolvent, for three times the amount of any injury done to the real estate of the deceased, by him or with his consent, between the representation of insol- vency, and the sale of such real estate for the payment of debts, by waste or trespass committed on any building thereon, or on any trees standing and growing thereon, except as necessary for repairs or fuel for the family of the deceased, or by waste or trespass of any other kind, and also for such damages as he recovers for the like waste or trespass committed thereon. Then the above written obligation shall be void, otherwise shall remain in full force. Signed, sealed and delivered in presence of A. B. [i. s.] P. W. [L. S.] S. p. [L. 9.] STATE OF MAINE. ss. At a court of probate held at A., within and for said county, on the — Tuesday of , A. D. 18—. The above bond having been examined, is hereby approved, and ordered to be filed and recorded. J. S. H., Judge of Probate. The administrator derives tis authority entirely from the appoints ment by the judge, whose decree is a matter of record. The letter is in the nature of an exemplification of the record, and as such is received in evidence without further proof.^ 1 Rand v. Hubbard, 4 Met. 353 ; 1 Greenl. on Ev., § 579. APPOINTMENT OF ADMINISTRATOR. 51 42. '[Letters of Administration.'] STATE OP MAINE. as. Peobate Cotjet. ToA. B., Greeting. Whereas, E. F., a resident of G., in said county, at the time of bis decease, died on the day of , A. D. 18 — , intestate, seized and possessed of estate in said county, which ought to be administered according to law ; and whereas you have been duly appointed administrator of the estate of said deceased, and have accepted the trust and given bond as the law directs : — I do therefore, trusting in your skill and fidelity, by virtue of the power vested in me, grant unto you by these presents, full authority to administer the goods, chattels, rights and credits of said deceased, according to law. And you are hereby ordered : — 1. To make and return, upon oath, into the probate court for said county, within three months from the date hereof, a true inventory of all the real estate, and all the goods, chattels, rights and credits of the said deceased, which are by law to be administered, and which shall come to your hands or knowledge. 3. To recover and collect all credits and maintain all rights, by due process of law if necessary, of said deceased, which appertained to him at the time of his death. 3. To pay all the debts in which the said deceased was legally bound, so far as his goods, chattels, rights and credits extend, according to the value tfiereof ; and in case these are insufiicient to pay the same, you are to make representation thereof to said court and request license to sell so much of the real estate of said deceased, (if any he has) as wiU pay such debts as remain unsatisfied by the personal estate. 4. To render, upon oath, a true account of your administration within one year from the date hereof, and at any other times when required by the judge of probate for said county. 5. To represent the estate to be insolvent to the said court, if at any time you have reason to believe from the condition- and circumstances of the same, that it is insufficient to pay all the claims thereupon, to the end that commissioners may be appointed to receive and examine the same. 6. To account for all goods and effects named in the inventory, (except credits and rights to property not in possessionj at their appraised value, unless sold under license of court ; also for any additional value, if any goods 52 PROBATE PEACTICB. or effects, not sold under license, allowed to the widow nor distributed to the heirs, are shown to be of greater value than they were appraised at ; also for all interest, profit and income received by you from said personal estate. 7. To account, in case the estate should be represented insolvent, for three times the amount of any injury done the real estate of the deceased by you, or with your consent, between the representation of insolvency and the sale of such real estate for the payment of debts, by waste or trespass committed on any building thereon, or on any trees standing or growing thereon (except as necessary for repairs or fuel for the family of the deceased, ) or for waste or trespass of any other kind, and for such damages as you recover for the like waste or trespass committed thereon. 8. To deliver this letter of administration into our said court of probate, in case any will of said deceased shall hereafter be duly proved and allowed. 9. To pay and deliver any balance, or any goods, chattels, rights or credits remaining in your possession upon the settlement of your accounts, to such person or persons as the judge of said court may designate. i 10. To give notice of your appointment aforesaid, within three months from the date hereof, by causing notifications thereof to be posted up in two public places in the town where the deceased last dwelt, viz : one at and one at , and by causing the same to be published in the , a newspaper printed at , in said county, three weeks successively. 11. To file in the probate court for said county within one year from the date hereof, a true copy of the original notice given by you, together with 3'our afiBdavit, or that of the person employed by you to give such notice, made before the judge of probate or a justice of the peace, that said notice has been posted and published as above directed, to the end that evidence of the time, place and manner of giving said notice may be perpetuated in said court. In testimony whereof, I have hereunto set my hand and the seal of said court, at a probate court held at A., within and for said county, on the Tuesday of ,A. D. 18—. J. L. H., Judge of Probate. {-■} ADMINISTRATOR WITH THE WILL ANNEXED. If no executor 13 named in the will, or if the executor named 1 Monroe v. Holmes, 13 Allen, 109. APPOINTMENT OF ADMINISTRATOR, 53 is dead, declines oj; refuses the trust, or is an infant, or incompe- tent from any cause, the petition for the probate of the will should contain a prayer for the appointment of an administrator with the will annexed.! See pages 42-48, for the law relating to the appointment of administrators, which applies to administrators of testate as well as intestate estates. 43. [Petition for Prolate of Will, and Appointment of Administra- tor with the Will Annexed.'] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents, that E. P., an inhabitant of G., in said county at the time of his decease, died on the day of , A. D. 18 — , testate, possessed of goods and estate remaining to be administered. Wherefore your peiitioner prays that the will of said deceased, which is hereunto annexed, may be proved and allowed, and that administration of said estate, with the will annexed, be granted to J. R. L., of K., he being (widow, husband, next of kin, husband of a daughter of said deceased, or a suitable person) twenty-one years of age, and suitably qualified for the trust. (Insert the words, said deceased having omitted to appoint, an executor in his said will, or the executor named in said will having declined said trust, or having been duly cited has refused to accept said trust, or the executor named in said will not being legally competent for the trust, as the case may be.) Dated this day of , 18—. A. B. Petitions for the probate of lost, foreign and nuncupative wills, and the appointment of an administrator with the will annexed, should conclude in the same manner as the above. If the appoint- ment of an administrator is asked for on the ground that the executor declines to accept the trust, his written declination must be filed before the appointment can be made.^ A citation to the executor, that he may appear and accept the 1 R. S., c. 64, § 30. 2 Stebbins v. Lathrop, 4 Pick. 33 ; Arnold v. Sabin, \ Cush. 535. 54 PROBATE PRACTICE. trust or refuse so to do, is rarely resorted to. His neglect for twenty days to furnish the requisite bond is sufficient cause for proceeding as though he had refused or declined the trust.' Should it be thought best, however, in any ease to issue such a citation, Form 34, with a few obvious changes, may be used. 44. [^Mefusal of Executor to Accept.'] To the Honorable Judge of Probate for the County of A. The undei'Bigned, who is named in the last will and testament of B. F., late of 6., in said county deceased, to be the executor thereof, hereby respect- fully declines to accept said trust. Dated this day of , 18—. A. B. 45. [^Deoree.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] Ordered, that the foregoing refusal to accept the trust of executor be placed on file. J. L. H., Judge of Probate. 46. \_Order of Notice on the foregoing Petition.] STATE OF MAINE. ss. At, &o. [Same as Form 7.] A certain instrument, &c. [Same as Form 7.] And also a petition having been filed, praying, &c. [Same as Form 40.] Ordered, &c. [Same as Form 7.] At the hearing the petitioner must be prepared to prove the execution of the will according to the principles of law and practice iR. S., c. 64, §§6,20. APPOINTMENT OE ADMINISTRATOR. 55 previously explained, and also to satisfy the judge of the truth of the allegations in the petition and that the notice ordered has been given as directed. The will having been legally proved, the judge, if he is of opinion that the appointment asked for should be made, will then make the following decree. 47. \_Probate of Will and App. of Adm'rwith Will Annexed.'] STATE OF MAINE. ss. At a Probate Court liolden at A., within and for said county, on the Tuesday of , A. D. . "Whereas the instrument hereunto annexed has been duly presented for probate, as the last will and testament of , late of , in said county, deceased, and due notice of the time and place of the intended probate thereof has been given to ah the persons interested therein pursuant to the order of court ; and whereas it has been satisfactorily proved to said court that said died on the day of , A. D. 18 — , that he was an inhabitant of said county at the time of his decease, that the said instru- ment is his last will and testament, that it was legally executed, and that at the time of executing the same the deceased was of full age and sound mind. It is therefore decreed, that said iustrument be approved and allowed as the last will and testament of said deceased. It is further decreed, that administration of the estate of said deceased, with the will annexed, due notice having been given on the petition therefor, and the facts therein alleged having been made fully to appear, be hereby granted to A. B., of K., he first giving bonds in the sum of ■ — dollars, and that thereupon^ a letter of administration with the will annexed issue pursuant to law. J. L. H., Judge of Probate. The decrees probating lost, foreign and nuncupative wills, and appointing administrators with the will annexed, should close like the foregoing. 56 PROBATE PRACTICE. 48. \_Petition for Administration with the Will Annexed, the Exec' utor having Neglected for Twenty Bays to File Ms Bond. To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that E. F., a resident of G., in said county, at the time of his decease, died on the — day of , testate, possessed of estate in said county which ought to be administered according to law, that his will has been duly probated, and that the executor named therein, whose appointment has been confirmed, has neglected for twenty days to give bond ; your petitioner therefore prays that administration of said estate with the will annexed be granted, &c. [Same as Form 43.] 49. [Order of Notice.^ STATE OF MAINE. ss. At, &c. [Same as Form 7.] A petition having been filed praying that A. B., of D., may be appointed administrator with the will annexed, of the estate of B. F., late of G., deceased testate, the executor named in the will of said deceased, having neglected for twenty days to give the bond required. Ordered, &c. [Same as Form 40.] For the decree use Form 41, appointing an administrator, by inserting the words with the will annexed after the word " admin- istration." The administrator will then file his bond properly drawn, signed and sealed, and conditioned like the bonds of executors.^ If suf- ficient the judge will approve the same in writing, and issue let- ters of administration with the will annexed. 1 R. S., c. 64, § 24. For form of Bond see c. iv. APPOINTMENT OF ADMINISTEATOR. 67 50. [^Letters of Adm. with the Will Annexed.^ STATE OF MAINE. ss. Probate Couet. To A. B., Greeting. Wheresis, at a probate court, held at A., within and for said county, on the Tuesday of ■ , A. D. 18 — , the last will and testament of E. F., late of G., in said county, deceased, was duly proved and allowed, a copy of which is hereunto annexed ; — and whereas you have been duly appointed by the judge of said court, administrator of the estate of said deceased, with the win annexed, and have accepted the trust and given bond as the law directs ; — I do therefore, by virtue of the power vested in me by law, by these pres- ents, commit unto you said trust, with full authority to faithfully execute the provisions of said wUl, and to administer, according to law, all the goods, chattels, rights and credits, whereof said deceased died possessed. And you are hereby ordered : — [Same as letters testamentary, Form 37.] The foregoing principles of law and practice are applicable to the appointment of special administrators, administrators de bonis non, and to administrators de bonis non with the will annexed, except that no persons are entitled to such administration in pre- ference to others as matter of right, and there is no twenty years limitation. 51. [Petition for Administration de bonis non and de bonis non with the Will Annexed.'] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that E. F., a resident of Gr., in said county, at the time of his decease, died on the day of , A. D. 18 — (testate or intestate) possessed of estate in said county which ought to be administered according to law. Your petitioner further represents that (the administrator or executor who was appointed to administer said estate, died on the — :— day of , or has resigned, or has been removed, &c.), and therefore respectfully prays that administration ( or administration with 58 PEOBATE PRACTICE. the will annexed) of said estate not already adtninistered be granted to A. B., of C, lie being (widow, husband, next of kin, husband of a daughter of said deceased, or a suitable person) twenty-one years of age and suitably qualified for said trust. Dated this day of , A. D. . A. B. The decree on the above is the same as that on the petition for administration (No. 41,) except that the words not already administered, or not already administered with the will annexed, must be inserted. No notice on the petition is required. The bonds of administrators de bonis non, and de bonis non with the will annexed, are the same as those of administrators and executors.^ 52. \^Letters of Administration de bonis non.] STATE OP MAINE. ss. Peobate Cotjbt. To A. B., Greeting. Whereas, E. P., of G., in said county, died on the day of , A. D., intestate, seized and possessed of estate which ought to be administered ; and whereas J. K., of M., who was duly appointed administrator of said estate, has (deceased, resigned, been removed, &c.), without completing the administration thereof: — and whereas you have been duly appointed by the judge of said court administrator de bonis non of said estate, and have this day given bond as the law directs, I do therefore, by virtue of the power vested in me, grant unto you by these presents, fuU authority to administer all the goods, chattels, rights and credits of said deceased, according to law, not before administered. And you are hereby ordered, &c. [Same as letters of administration, Porm 48.] 53. [Letters of Administration de bonis non with the Will Annexed.] STATE OP MAINE. -^^^ — ss. Peobate Couet. To A. B,, Greeting. Whereas the last wiU and testament of E. P., late of G., in said county, 1 R. S., c. 64, 24. APPOINTMENT OF ADMINISTRATOR. 59 deceased, has been duly proved and allowed in our said court, a copy of which is hereunto annexed; and whereas J. K., of M., who was duly appointed (executor or administrator with the will annexed) has (died, resigned, been removed, &c.), without completing the administration thereof; and whereas you have been duly appointed by the judge of said court admin- istrator de bonis non of the estate of said deceased with the will annexed, and have accepted the trust and given bond as the law directs ; — I do therefore, by virtue of the power vested in me by law, by these presents, commit unto you said trust, with full authority to execute the provisions of said will, and to administer according to law, all the goods, chattels, rights and credits whereof said deceased died possessed, not before administered. And you are hereby ordered, &c. [Same as letters testamentary, Form 27.] Public Administrator. The petition for administration by a public administrator is similar to that for ordinary administration. Form No. 38 may be used, substituting for " and prays that administration," &c., the following : Not known to have in this state any heirs or kindred who can lawfully inherit such estate. Wherefore your petitioner, who is the public administrator for said county, prays that administration on said estate may be granted to him. Public notice is required as on other petitions for administra- tion. Decree No. 41 may be used, inserting the words public admin- istrator for said county after " of K., in said county." The bond required is like the ordinary administration bond, with the further condition that in case this administration should be revoked by the judge before the estate is fully settled, in conse- quence of the production and proof of a will of the deceased, or appointment of another administrator on petition of any heir, next of kin, or the widow of the deceased, the public administrator shall surrender his letters.^ iR. S.,c. 64, §26. 60 PROBATE PRACTICE. The letter should also contain directions corresponding to these conditions of the bond. 54. \_Petitionfor App. of Special Administrator.'] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents thatE, F., an- inhabitant of G., in said county, at the time of his decease, died on the day of , A. D. , possessed of estate in our said county which ought to be administered accord- ing to law, that there is delay in granting letters of administration (or delay in probating his wOl and granting letters testamentary) by reason of . Wherefore your petitioner prays that J. B. may be appointed special admin- istrator on said estate, he being twenty -one years of age and suitably quali- fied for said trust. Dated this day of , A. D. . A. B. For the decree thereon, that appointing an administrator, No. 41, may be used, inserting the word special before the words " administration " and " letter." The bond of a special administrator is similar to that of the administrator except the conditions which read as follows : — 1. Shall make and return into the probate court within three months, a true inventory of all the goods, chattels, rights and credits of the deceased which shall come to his possession or knowledge. 2. Shall truly account, on oath, for said goods, chat- tels, rights and credits, and deliver them to the person or persons who may be lawfully authorized to receive them.^ 55. {^Letters of Special Administration.] STATE OP MAINE. — > — SB. Pbobate Couet. To A. B. * Greeting. Whereas E. F., an inhabitant of G., in said county, at the time of hia iR. 8., c. 64, §32. APPOINTMENT OF ADMINISTRATOR. 61 decease, died on the day of , A. D. , possessed of estate in said county which ought to be administered according to law ; and whereas you have been duly appointed special administrator of the estate of said deceased and have accepted the trust and given bond as the law directs; — I do there- fore, by virtue of the power vested in me by law, by these presents, grant unto you full- authority to administer the goods, chattels, rights and credits of said deceased according, to law, as special administrator, and you are hereby ordered ; — 1. To make and return into the probate court for said county, within three months from the date hereof, a true inventoiy of the goods, chattels, rights and credits of said deceased which shall come to your hands or knowledge. 3. To collect all the goods, chattels and debts of said deceased, control and cause to be improved his real estate, collect the rents and profits thereof ; and truly account, on oath, for the same, and preserve them for the executor or administrator, who shall hereafter be appointed. 3. To sell such perishable and other goods as the judge orders, pay the expenses of the funeral, last sickness and administration, debts preferred under the laws of the United States, public rates and taxes and money due the state from the deceased, and temporaiy allowances to' the widow and minor children ordered by the judge. 4. To give notice, &c. (Same as § 10, in No. 43.) In testimony whereof, I have hereunto set my hand and the seal of said court, at a probate court, held at B., within and for said county, on the Tuesday of , A. D. 18—. J. L. H,, Judge of Probate. {-■! CHAPTER VII. APPOINTMENT AND DUTIES OP GUARDIANS. Minors. Judges of probate may appoint guardians to minors, residing in their county, or residing out of the state and having estate in their county.^ When the judge is interested, the appointment must be made by a judge in an adjoining county.^ If the minor is under fourteen years of age, the judge may appoint his guardian, provided, that if the deceased father of a minor under such age, has appointed a guardian ia his will, the same shall be appointed by the judge if suitable.^ No other per^ son except the father can nominate a testamentary guardian. If the minor is over fourteen years of age, he may nominate his own guardian, in the presence of the judge, register of probate, or a justice of the peace, and such nominee shall be approved and appointed if suitable.' If unsuitable, or if the minor resides out of the state, or being cited neglects to nominate a guardian, the judge may appoint without any nomination.' Residing in their county. The residence of the minor is usually that of the parent, if either of the parents is living. If neither parent is living, the residence of the minor is where his home is, though the same may be temporary. Having estate in the county. A debt due from a resident of the county is estate. So is property in the hands of a trustee residing in the county.^ 1 R. S., c. 67, § 1. 2 Laws of 1874, c. 156, § 1. 3r. s., c. 67, § 2. < Clark B. Cordis et al, 4 Allen, 466. APPOINTMENT ■ AND DUTIES OF GUARDIANS. 63 Under fourteen — Over fourteen. The guardian is to be appointed by the judge whether the minor is under or over four- teen, but if over that age the wishes of the minor must be con- sulted and an opportunity given him to express his choice, before the appointment can be made, though the judge may finally disre- gard the minor's wishes and appoint another person. Suitable person. The person to be selected should be a suitable person, that is, in brief, a person who possesses the requisite skill and business capacity, and who would be likely to manage safely and judiciously the ward's estate ; and if the parents of the ward are dead, or if he is charged with the custody and education of the minor, he should be a person who would be likely to take an interest in the moral and temporal welfare of his ward, who would regard his happiness and properly direct and care -for his educa- tion. An executor or administrator of an estate in which the ward is interested as heir or legatee, cannot be appointed guardian, unless he be the parent of such minor. The two trusts are incom- patible, and such appointment would be void.^ Neither can a married woman be so appointed.^ The person appointed may be a resident of any county in the state, or even of another state.' Custody of the person. The judge may decree the custody of the minor to the guardian, in any case, if he deems it for his welfare, but not without notice to the parent or parents of said child, if living.' If not so decreed, the father, if alive and com- petent, if not, the mother, if unmarried and competent, shall have the care and education of the minor. If he has no father or mother, the guardian is charged with the custody and education of the minor without any special decree therefor.* Proceedings in court. The person desiring the appointment of 1 R. S., c. 67, §> 1 ; Laws 1879, c. 102 ; Sawyer ». Knowles, 33 Me. 208. 2 R. S., c. 67, § 17. 3 BeiTy v. Johnson, 53 Me. 401. < R. S., c. 67, § 3; Peacock v. Peacock, 61 Me. 211. 64 PROBATE PRACTICE. a guardian for a minor must file in court a petition therefor. The same petition may contain the names of all the minors, if there he more than one, for whom it is desired to have a guardian appointed. If any of the minors are under fourteen years of age, the petitioner must satisfy the judge that the appointment asked for would be satisfactory to the parents of the minors, or, if they have no parents, to their near relatives or friends ; also that the person to be appointed is competent and a suitable person. No notice is required on the petition when the minor is under fourteen years of age and resident in the county where the petition is filed.^ If any of the minors are over fourteen, they must personally nominate their own guardian in the presence of the judge, register of probate, or a justice of the peace. The nomination should be in writing and a certificate thereof made on the petition by the judge, register or justice. If the minors reside out of the state, no nomination is necessary. If the judge deems the person suit- able and competent he will make the appointment, but if he deems the person nominated unsuitable, he will dismiss the petition. 56. [Petiiion for the App. of Guardian.] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that there is necessity for the appoint- ment of a guardian to D. B., aged ten years, and H. S., aged sixteen years, residents of F., in the county of A. (or of B., in the state of M., but who is seized and possessed of estate in our said county of A.), minors and chil- dren of J. M. P., late of K., deceased, and prays that R. 8., of W., may be appointed to that trust (and that the custody and education of said minors be decreed to said guardian J. Dated this day of , A. D. 18—. A. B. The undersigned, being the minor above named, more than fourteen yean 1 Peacock v. Peacock, 61 Me. 211. APPOINTMENT AND DUTIES OF GUARDIANS. 65 of age, hereby nominates the said R. S. to be his guardian, and prays that he may be appointed to that trust. Dated this day of , A. D. 18— H. L. ss. A. D. . Personally appeared the above named H. L., minor above the age of four- teen years, resident of said county, and in writing nominated R. S., of W., to be his guardian. Before me, J. L. H., Judge of Probate, (or Register of Probate, or Justice of the Peace.) 57. [Dec7-ee App. a Guardian.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition, the facts alleged therein having been made fully to appear, it is decreed that B. S., of "W., be hereby appointed guardian of said minors (and that the custody and education of said minors be granted to him), and that letters of guardianship issue to him, he first giving bond in the sum of dollars. J. L. H., Judge of Probate. When a petition is presented for the appointment of a guardian of a minor who is over fourteen years of age, and who resides in the county, but who neglects or refuses to nominate a guardian, he must be cited to do so before an appointment can be made, and if on being cited he stilL neglects to nominate, the judge may appoint a guardian for him as if he was under fourteen. 58. \_Citation to M'ino?-.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] Upon the foregoing petition. Ordered that the minor therein named be cited to appear at a probate court to be held at A., within and for said county, on the Tuesday of , A. D. — , and nominate some suit- 5 66 PEOBATB PRACTICE. able person to be his guardian, by serving liim witli an attested copy of the foregoine petition witti this order thereon, fourteen days prior to the holding of said coui't. J. L.' H., Judge of Probate. For manner and form of return of service, see Form 3. The guardian having been appointed, before entering upon the discharge of the trust, must file a bond in the sum required by the decree, with good and sufficient surety or sureties, resident in the state, and conditioned as required by the statute.^ If satisfactory to the judge, he will approve the same in writing^ and issue letters of guardianship. 59. [^Guardian's Bond.'] (The penal part of the bond is the same as that in the bond of executors, No. 36.) The condition is as follows : — The condition of this obligation is such, that if the above bounden R. 8., who has been appointed guai-dian unto D. E. and H. L., &e. First. Shall faithfully discbarge his trust as guardian aforesaid ; Second. Shall render into the probate office of said county, a true and perfect inventory of the estate, property and effects of said ward, within the time limited by law ; Third. Shall render a just and true account of his guardianship, when by law required ; Fourth. Shall, at the expiration of his trust as guardian, deliver over all moneys and property, which on a final and just settlement of his accounts, shall appear to remain in his hands ; then the above written obligation shall be void, otherwise shall remain in full force. Signed sealed and delivered in presence of R. S. [l. s.] ■ T. W. fL. s.] H. B. [L. s.] For a form of decree approving the bond, see decree approving an executor's bond, No. 26. iR. S., c. 67,§10. 2R. s., 0.73, §1. APPOINTMENT AND DUTIES OF GUARDIANS. 67 60. {^Letters of Guardianship i\ STATE OP MAIKE. as. Probate Couet. To R. S., Greeting. Trusting in your care and fidelity, I do by tliese presents, by virtue of the power vested in me by law^ appoint you guardian unto D. E. and H. L., residents of F., in said county, minors and children of J. M. P., late of K., deceased, and commit unto you the care and management of all the estate of said minors (and also the custody and education of said minors). And you are hereby ordered — 1. To make and return into the probate court for said county, vi^ithin months from the date hereof, a true and perfect inventory of the estate, property and effects of said ward. 2. To manage said estate frugally, aud without waste, and apply the income and profits thereof, as far as needed, for the comfortable and suitable maintenance of said ward and family, and if the income and profits are insufficient for that purpose, you may use the principal. 3. To settle your accounts as guardian with the judge of probate at least once in three years, and as much oftener as the judge cites you. for that purpose. 4. To deliver over at the expiration of your trust, to the person or persons entitled thereto, all money and property which, on a final settlement of your account, shall remain in your hands. In testimony whereof, I have hereunto set my hand and the seal of said court, at a probate court, held at A., within and for said county, on the Tuesday of , A. D. 18—. -^-^ J. L. H. , Judge of Probate. {l.s.} The guardianship first lawfully granted, if the minors reside out of the state, shall exclude the jurisdiction of the probate court in every other county.' * Insane, ^c. Judges of probate may appoint guardians to the 1 R. S., c. 67, § 32. 68 PBOBATB PRACTICE. following persons belonging to their county, though over twenty- one years of age^: 1. Persons who are insane, or of unsound mind, including married women, who, by reason of infirmity or mental incapacity, are incompetent to manage their own estate or to protect their rights. 2. Persons who, by excessive drinking, gaming, idleness or debauchery of any kind, have become incapa- ble of managing their own affairs, or who so spend or waste their estate as to expose themselves or families to want and suffering, or their towns to expense. 3. Convicts committed to the state prison for a term less than for life. The petition for the appointment of a guardian to said persons must be in writing, and signed by any of the friends, relatives, or creditors, or the mayor and -aldermen, or selectmen or overseers of the poor of the city or town where they reside,^ and must show by distinct allegation, and not by implication, that the person for whom the guardianship is desired, falls within one of the classes above named.^ 61. {^Petition for App. of Guardian to Insane, c&c] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that he is a (friend, relative or cred-" itor) of E. F., of G., in said county, who is (insert here the exact language of the statute), and prays that L. M., of K., may be appointed guardian to said person. Dated this day of , A. D. . A. B. The judge will thereupon issue a warrant of inquisition to the mayor and aldermen, selectmen or overseers of the poor of the city or town where the person for whom guardianship is desired resides,' with an attested copy of said petition annexed thereto, which warrant the petitioner must cause to be delivered forthwith to said municipal officers. 1 R. 8., c. 67, § 4. 2 Overseers, &o., v. Gullifer, 49 Me. 360. " R. 8., c. 67, § 6. APPOINTMENT AND DUTIES OF GUARDIANS. 69 62. [ Warrant to Municipal Officers.'] STATE OF MAINE. ss. At, &c. [Same as Form 7.] To the (mayor and aldeiTQen, selectmen or overseers of the poor of the city or town of P.,) in said county. You are hereby ordered to make inquisition into the allegations made in the annexed petition, now pending in said court, and decide, upon such evidence as you are able to obtain, whether such allegations are true, and make return of your decision into our said coui't of probate as soon as may be. In testimony whereof, I have hereunto set my hand and the seal of said court, at a probate court, held at A., within and for said county, on the Tuesday of , A. D. ,^^^ 3. L. H., Judge of Probate. The mayor and aldermen, selectmen, or overseers of the poor, on receiving the same should immediately make inquisition into the facts alleged, and decide on such evidence as they are able to obtain whether the allegations are true.^ A majority of said officers may act in making said inquisition.^ Their report should be signed, sealed up, directed to the judge and returned by them into court. 63. {Report of Municipal Officers.] To the Honorable Judge of Probate for the County of A. The undersigned (mayor and aldermen, selectmen or overseers of the poor of the town or city of P.), in said county, have made inquisition into allega- tions made in the annexed petition, and hereby certify that the said E. F., is . Dated this day of , A. D. . H. W. J. G. M. P. 1 R. S., c. 67, § 6. 2 Raymond b. Wyman, 18 Me. 385 ; R. S., c. 1, § 4. 70 PROBATE PRACTICE. ■ If said officers make report that the allegations in the petition are not true, the petition should be dismissed, unless some improper conduct on the part of said officers can be proved sufficient to justify the judge in setting aside their report. If they report the allegations to be true, the judge will then appoint a time of hear- ing and order personal notice to be given thereof to the person for whom the guardianship is desired,* notice being necessary to give the court jurisdiction. 64. [ Order of Notice.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition, it is ordered, that said E. F., be cited to appear at a probate court to be held at A., within and for said county, on the Tuesday of A. D. , at ten o'clock in the forenoon, and show cause, if any he has, why the prayer of said petitioner should not be granted, by sei-ving him with a true and attested copy of the foregoing petition, with this order thereon, fourteen days prior to the holding of said court. J. L. H., Judge of Probate. The officer or person making the service should deliver in hand, or leave at the last and usual place of abode of the said E. F., said copy duly attested by the register of probate, and make return of said service on the original petition in court.^ " In all cases where the municipal officers or overseers of the poor are applicants, if they have given at least fourteen days notice to such person, by serving him with a copy of their appli- cation, the judge may adjudicate thereon withoTit further inquisi- tion, if such person is present, or on such further notice, if any, as he thinks reasonable."' 1 R. S., c. 67, § 5. 2 For form of return, see Form 3, c. n, and remarks thereon. 3 R. S., c. 67, § 5. APPOINTMENT AND DUTIES OF 6UAEDIANS. 71 The officers intending to so petition, if they would avoid the necessity of issuing a citation to the person for whom a guardian is desired, must notify such person of their intentions . and of the time when they will present the petition, by serving him with a copy of it fourteen days prior to ' the sitting of the court. A petition signed by a majority is sufficient.^ 65. [Petition by Municipal Officers.'] To the Honorable Judge of the Probate Court next to be held at P., within and for the county of C, on the Tuesday of , A. D. . A. B., C. D. and B. F. (mayor and aldermen, selectmen or overseers of the poor), of the city (or town) of L., respectfully represent that J. K., of L., in said county, is (here insert the exact language of the statute), and pray that L. M., of K., may be appointed guardian to said person. Dated this day of , A. D. . A. B. CD. E. F. The return of service of the same should be made on the back of the petition. For form of return, see Form 3. If the person for whom the guardianship is desired is present when the petition is presented, the judge will hear the parties and adjudicate thereon, but if such person is not present, the judge should proceed with great caution. No inquisition by the municipal officers is necessary on a petition for the appointment of a guardian for an insane or incompetent married woman, but no such appointment should be made without personal notice being given.^ No new inquisition is necessary for the appointment of a* new guardian in place of one who has died, resigned or been removed.^ The person for whom the guardian- 1 R. 8., c. 67, § 5; Raymond v. Wyman, 18 Me. 385. 2 R. S., c. 67, § .5. For form of notice see Form 64. 3R. 8., c. 67, §23. 72 PROBATE PRACTICE. ship is desired in such case should have personal notice of the peti- tion therefor, and an opportunity to be heard thereon.' Guardians may be appointed without inquisition or notice for persons committed by the municipal officers to the insane hospital, upon proof of the facts. The petition must be accompanied by the certificate of the municipal officers of the fact of such com- mitment.^ Guardians may also be appointed for convicts, without inquisi- tion or notice, upon sufficient proof of the facts being pre^nted.^ If the judge is of opinion, after a full hearing, that the facts alleged in the petition are true, and that a guardian should be appointed, he will make a formal decree as to the mental condition of the person,' and then decree the appointment of the guardian prayed for, if he deems him suitable. 66. \_Decree Appointing a Ouardian.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition, inquisition having been made and personal notice of the time and place of hearing having been given, according to law, it is decreed thatE. F., is (here state the language of the petition) ; and it is also decreed that L. M., of K., be appointed guardian to said B. F., and that let- ters of guardianship issue to him, he first giving bond in the sum of dollars. • J. S. H., Judge of Probate. The right of personal liberty and control of one's property is of so sacred a character, that a person should be deprived of the same only when the necessity therefor clearly exists, and never in a doubtful case. The judge may make an allowance to be paid by the guardian 1 AUis V. Morton, 4 Gray, 63. » R. S., c. 67, § 5. See Form 64. 5 Hovey ». Harmon, 49 Me. 369. APPOINTMENT AND DUTIES OF GUAEDIANS. 73 thus appointed from the ward's estate for his expenses in defend- ing himself against the complaint.^ The guardian must give bond, in the sum required by the decree, with surety or sureties resident in the state, and condi- tioned like the bonds required of the guardians of minors.^ If the judge deems the bond sufficient, he will approve the same in writing, and thereupon issue letters of guardianship.' Ad litem. Judges of probate may appoint any suitable person guardia;n to defend the interest of any minor or other ancapacitated person in any matter pending before them;* and they may allow, or appoint anyone, as next friend of such person, to commence, prosecute or defend any suit in his behalf.* They may appoint the husband or other person, after personal notice, a special guardian of a married woman, for a special purpose when, by reason of age or mental infirmity, she is incompetent to manage her affairs or protect her rights.' The forms of petition, notice, decree and letters are the same as those previously given, except that they must state the special purpose for which the appointment is asked and made. 67 lApj)ointment of Guardian ad litem.] STATE OF MAINE. ss. At, &c. . [Same as Form 7.] To A. B., Greeting. Wiereas a petition is now pending in our said probate court (Iiere state the nature of the petition), and whereas C. D., of E., who is (state whether a minor, Insane, incapable, &c.), is interested in said petition ; — 1 R. S., c. 67, § 8. 2 See Form 59. ' Use Form 60, by inserting an insane person, Jkc, in place of "minors and children, &o." < B. S., c. 67, § 24. 5 R. S., c. 67, § 25. 74 PROBATE PRACTICE. I do therefore hereby apppint you guardian ad litem to the said C. D. And you are hereby notified to appear at a probate court, to be holden at A., within and for said county, on the Tuesday of , A. D. , at tea o'clock in the forenoon, at which time and place a hearing on said petition will be had, and defend the interest of said C. D. J. L. H., Judge of Probate. The above form may be easily varied to suit the different pur- poses for which such appointments are made. Powers and Duties of Cruardians. Guardians appointed by our laws are the duly constituted agents of their wards, and are treated by the courts as trustees. They have, however, only a naked authority not coupled with an interest. Their possession of ,the property of their wards, being only for the purpose of agency, gives them no personal interest in it. But, when it is for the ben- efit of the ward, they have a very general power over it. Though they arc clothed with great discretionary power over the ward's personal estate and may sell without license and givte title to a bona fide purchaser, it is always safer to obtain the authority of the court in any important transaction. They are subject to the jurisdiction of the probate court upon all matters concerning the proper discharge of their duties.^ Guardians of non compos and other incapacitated persons shall have the custody of the persons of their wards, if resident in the state, unless otherwise ordered, and when appointed over any persons for gaming, idleness, drink- ing or debauchery, may, with the consent of the judge, bind them lOut to labor not exceeding six months, or employ them in their own service, giving credit for their earnings.^ A petition should be presented therefor and the consent of the judge obtained. Guardians must first apply the income of the estate of their 1 Granby v. Amherst, 7 Mass. 1 ; 1 Parsons on Cont. 114 ; Wing o. Rowe, i69 Me. 283; Ellis v. Essex Mer. Bridge, 3 Pick. 343. ■2 R. 8., c. 67, § 9. APPOINTMENT AND DtJTIES OP GUARDIANS. 75 wards to their support, and, if insufficient, then the principal.^ They shall settle their wards' accounts, pay their debts, first using their personal, and then, if necessary, their real estate ; demand, sue for and receive all their dues, and, with the consent of the judge, may arbitrate or compound claims in favor of or against their wards ; ^ may appear for their wards in legal proceedings, unless another is appointed for that purpose, may insure their estate,^ appear and act for their wards in partition of their real estate, and assignment of dower,* may be authorized to convey real estate which their wards had lawfully contracted to convey on conditions,^ and when a ward is an insane or incapacitated adult, may apply for commissioners on exorbitant or unjust claims against the ward's estate, or may represent the estate insolvent.^ If there are two guardians, either may receive payment of a claim in favor of the ward and give a valid discharge.' Guardians are not obliged to make advances from their own means for the main- tenance of their wards. If they do so they must obtain repayment , from the ward's estate while the guardianship continues. They cannot afterwards recover for advances so made, nor for any balance found due them therefor on settlement of their guar- dianship accounts, if there was estate of the ward from which such payments could have been made before the trust terminated.' If a minor, having a father alive, has property sufficient for his maintenance and education in a manner more expensive than his father can affijrd, the guardian may defray from the minor's prop- erty the expenses of such maintenance and education, in whole or 1 Preble v. Longfellow, 48 Me. 279; R. H., c. 67, § 13. 2 "Weston V. Stewart, 11 Me. 336; R. S., c. 67, § 13; Laws of 1877, c. 180. For form of petition to refer or compound, order and decree, see Post c. xi. 3 R. 8., c. 67, § 13. * Curtis v. Hobart, 41 Me. 330 ; R. S., c. 67, § 14.. 5 R. S., c. 67, § 14. 6 R. s., c. 67, § 15 ; Post, c. xii and xiv. ' Raymond v. Wyman, 18 Me. 385. 8 Preble v. Longfellow, 48 Me. 379. 76 PROBATE PRACTICE. in part, according to the circumstances of the case, and charge the same in his guardianship account. ^ Guardians must settle their accounts once in three years, and oftener if cited by the judge, and if they neglect to do so they shall be liable to be removed and shall forfeit all allowance for services, unless it appears that their neglect arose from sickness or unavoidable accident.'' The judge may authorize or require any guardian, on petition therefor, with or without notice, to sell or transfer any stock or personal property and invest the proceeds or any other money in any manner most for the interest of all concerned, and may make any order for managing the property in the hands of the guardian which he deems necessary.' If money is invested in real estate, the deed should run to the ward and not to the guardian. If invested on mortgage, the notes and mortgage should also so run. A note taken by a guardian running to himself for money of his ward loaned, is the ward's property.* 68. [Petition to Invest.'] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that he is guardian of D. B.; tliat it is for the interest of all concerned that the following personal property of said ward, viz.: (here describe the property,) be invested (or sold and invested) in the following property, viz : , and prays for authority to so invest the same. Dated this day of , A. D. . A. B. 1 R. S., c. 59, § 23. 2 R. 8., c. 67, § 19. For form of accounts and of citation to settle the same, see Post, c. xvii. 3 R. S., c. 67, § 16. For the sale of the real estate of their wards, see Post, c. xvi. * Burgess v. Keyes, 108 Mass. 43. APPOINTMENT AND DUTIES OF GUARDIANS. 77 69. IDeci'ee Authorizing Guardians to Invest.'] STATE OF MAINE. -S8. At, &c. [Same as Form 7.] Upon the foregoing petition, it is decreed, that said guardian be authorized and directed to invest (or sell and invest) the personal property described therein in the manner prayed for. J. L. H., Judge of Probate. A copy of said petition and decree, attested by the register of probate, should be given to the guardian as evidence of his authority to so sell and invest. Removal of estate of non-resident wards to another state or territory. When a guardian and ward both reside in another state or territory, and such ward is entitled to property in this state, on the production to the probate court (or other court having jurisdic- diction) in the county vrhere such estate is situated, of the requisite evidence of the appointment of such guardian in the state or ter- ritory where he and his ward reside, and of the suflSciency of his bond there given, he may receive from the court here letters of guardianship of the estate of such ward which shall authorize him to recover any such property and remove it to the place where he and his ward reside. And such court may order any resident guardian, executor or administrator, having any of the estate of such ward, to deliver the same to such non-resident guardian. The court must first be satisfied that all debts known to exist against said estate have been paid, and that the removal of such property will not conflict with the terms or limitations attending the ward's ownership thereof.^ Removal and resignation. The judge may dismiss any guardian and order the property of the ward to be returned to him when it 1 Laws of 1876, c. 75. T8 PROBATE PRACTICE. appears that a guardian is no longer necessary. ^ He may also accept the resignation of any guardian, remove him for cause, and appoint another ; but previous to any such removal personal notice must be given to the guardian, if he resides in the state, or public notice if his residence is out of the state, or unknown.- Embezzlement, Upon complaint made by the guardian or any person interested, that the effects of the ward have been concealed, ejibezzled, or conveyed away, the judge may cite and examine any suspected person in the manner provided in relation to the sus- pected embezzlement of the effects of deceased persons.' ■ iR. S., 0. 67, §§18,23. 2 R. S., c. 67, § 18. For forms of petition for resignation, removal, order of notice and decrees, see Post c. xxiii. 3 R. 8., c. 67, § 36. For forms of proceeding, see c. ix. CHAPTER VIII. NOTICE OF APPOINTMENT. The first duty of an executor or administrator on receiving his appointment is to give public notice of the same, by causing notices thereof to be posted up in two or more public places, to be named by the judge, in the town where the deceased last dwelt, if in the state, and by giving such further notice as the judge directs.^ If the executor or administrator live out of the state, he must also appoint an agent or attorney in the state, and insert his name and address in said notices.^ If the executor or administrator remove from the state after giving notice of his appointment, he must appoint an agent or attorney in the state and give public notice thereof.^ The notice of appointment must be given within three months from the approval of the bond. The "public places" where the notices are to be posted, and the "further notice," if any is required, are usually specified by the judge in the letters testa- mentary, or of administration,' but they may be specified in a separate order. If the deceased was not an inhabitant or resident of this state at the time of his decease, notice of the appointment should be given in some newspaper, or in such other manner as the judge directs. In all such cases the usual practice is to order the notice to be published. 1 R. S., c. 64, § 38. 2 Laws of 1873, c. 6; c. 85, § 13. ' See letters testamentary and of administration, Forms 27 and 43. 80 PROBATE PRACTICE. 70. lAdministraior's Notice.] The subscriber hereby gives notice that he has been duly appointed admin- istrator of the estate of C. D., late of E., in the county of A., deceased, and given bond as the law directs. (When he lives out of the state insert " and has appointed F. G., of H., his agent or attorney in the state of Maine.") All persons having demands against the estate of said deceased, are desired to present the same for settlement, and all indebted thereto are requested to make payment immediately. , A. D. . A. B., Administrator. (F. G., of , agent or attorney of said A. B.) The above form of notice can be used by executors, administra- tors with the will annexed, de bonis non, &c., by substituting executors, &c., for administrators. The executor or administrator may post the notices himself or employ some other person to do so. An affidavit of the executor, administrator or person employed, with a copy of the notice, filed dn the probate court and recorded within one year from his appointment, shall be evidence of the time, place and manner of giving the notice.^ This will not exclude proof of the fact by other evidence, but it is so convenient a method that it is the one usually adopted. When the administrator has removed from the state after having given notice of his appointment, it should be remembered that he must give ^'public notice" that he has appointed an agent or rattorney in this state.^ 71. I Affidavit and Copy of JVbtice.] [copy of notiob.] Administrator's Notice. — The subscriber hereby gives notice that he has been duly appointed administrator of the estate of 0. D., late of E., in the 1 E. 8., 0. 64, § 40. 2 Laws of 1873, c. 85, § 13; R. S., c. 63, § 35. NOTICE OF APPOINTMENT. 81 county of A., deceased, and given bond as the law directs. All persons having demands against the estate of said deceased are desired to present the same for settlement, and all indebted thereto are requested to make payment immediately. , A. D. . A. B. [affidavit.] I hereby certify, that I was duly appointed administrator of the estate of C. D., late of B., in the county of A., and gave bond for the discharge of said trust, on the day of , A. D. ; that within three months after giving bond as aforesaid, I posted up notices of my appointment, of which the above is a true copy, in two public places in the town of L. , to wit : one at and one at , and caused the same to be published three weeks successively in the , a newspaper printed at , in said county. A. B. ss. , A. D. . Subscribed and sworn to before me, A. M. P., Justice of the Peace. [affidavit of pekson employed.] I hereby certify, that at the special request of A. B., administrator of the estate of C. D., late of E., in the county of A., deceased, I posted up notices of his appointment, of which the above is a true copy, on the day of , A. D. , in two public places in the town of L., to wit: one at and one at , and also caused the same to be published three weeks suc- cessively in the , a newspaper printed at L., in said county, the first publication being on the day of , A. D. . J. B. ss. A. D. Subscribed and sworn to before me, A. M. P., Justice of the Peace. 72. [Decree.] STATE OP MAINE. ss. At, &c. [Same as Form 7.] Ordered, that the foregoing copy of notice of appointment and aflSdavit be ' filed and recorded. J. L. H., Judge of Probate. 82 ' PROBATE PRACTICE. If the executor or administrator lives out of the state when he gives notice of his appointment, the copy of notice and affidavit should of course he varied accordingly, as directed in Form 70. As no suit can be commenced against an executor or adminis- trator after two years and six months from the time of giving said notice, with certain exceptions,^ it is of great importance to him that the notice be given as by law required, and evidence thereof perpetuated. 1 Laws of 1873, c. 85. CHAPTER IX. WHAT GOES TO THE EXECUTOR OR ADMINISTRATOR— WHAT TO THE HEIR— COLLECTION OF THE EFFECTS. What goes to the Executor or Administrator. On the death of a person, his personal estate vests in his personal representatives, viz : his executors or administrators. They may not be appointed for months, but as soon as they receive their appointment, the title vests in them, and relates back to the time of the death of the person.^ " The property may be considered in abeyance till admin- istration is granted, and is then vested in the administrator, by relation, from the time of the death." ^ This is considered necessary in order that there may be no break in the continuity of title, and that the executor or adminis- trator may be able to maintain an action, if necessary, for an injury done to the personal property after the death and prior to the appointment.^ This relating back of the title has been held to make valid such of the acts done in good faith by executors or Administrators before receiving their letters, as they could have done if their letters had been issued to them.* Nature of the Title. The nature of their title, in the first instance is always that of a trustee.^ Until some change, there- 1 Dalton ». Dalton, 51 Me. 170; Shirley «. Healds, 34 N. H. 407; Lawrence 1). Wright et ux., 23 Pick. 138. 2 Jewett V. Smith, 13 Mass. 310. ' Hutchins v. Adams, 3 Me. 174. * Shillaber v. Wyman, 15 Mass. 323. 6 Dalton V. Dalton, 51 Me. 170. 84 PROBATE PKACTICB. fore, takes place in the titJe, the goods cannot be treated as the property of the executor or administrator. ^ They cannot be taken on execution against them in their private capacity, neither on their death would they go to their representatives, but to the administrator de bonis non, who would recover the sum, or any balance due from the first administrator, by suit against the admin- istrator of his estate.^ The executor or administrator may cease to hold them in his representative capacity, and become the absolute owner of the same. It has been held that money becomes at once the absolute property of the executor or administrator, and so with the goods to the extent of the amount of debts actually paid.^ So also an executor who was a residuary legatee, was held to be the absolute owner from the time of giving bond to pay the lega- cies and debts.^ But a conversion of the goods, or an election on the part of executors or administrators to treat the goods as their own, by charging themselves with their appraised value in their accounts, would not make them the owners, and the judge of pro- bate would still have power to order them to distribute the same to the legatees or heirs if not needed for the payment of debts. Such representatives have, however, full power of sale of all the ejQFects of the deceased, as if they were the absolute owners, though specific legacies will be protected unless required to pay debts.' All movable property, usually termed goods and chattels, all notes, accounts and demands, all causes of action based on con- tracts, or on injuries done to personal property of the deceased, which had accrued at the time of his death, and which survive, go to the executor or administrator. So do shares in corporations, stocks, bonds, copy and patent rights. So does real estate held by 1 Red. on WiUs, vol. 3, 130, 131 ; Weeks v. Gibbs, 9 Mass. 74; Dalton ». Dalton, 51 Me. 170 ; Wiggin v. Swett, 6 Met. 197 ; Storer v. Storer, 6 Mass. 391 ; Fay v. Muzzey, 13 Gray, 53, 2 Clarke v. Tufts, 5 Pick. 337. 8 R. S., c. 64, § 48; c. 74, § 7; Red. on WUls, vol. 3, 130, 336. DIVISION OF AN ESTATE. 85 the deceased in mortgage, or by levy, the right of redemption not having expired.' So do unexpired leases held by the deceased, usually termed chattels real. So do growing corn, grain, pota- toes, roots, garden products, hops and all kinds of crops raised by annual cultivation, though unsevered, and the executor or adminis- trator may enter and harvest the same. But as between the executor and the devisee of the land, unharvested crops go to the devisee.^ What goes to the Heir. On the death of a person, the title to his real estate instantly passes to his heirs, or devisees, and they may take possession thereof immediately, occupy, collect the rents, sell and convey the same, provided, however, that the widow, if any, may remain in the house of her husband ninety days without paying rent,' and provided further, that the heirs or devisees may be divested of the same, if it is needed for the payment of debts. But until a sale thereof for said purpose, they are regarded as the absolute owners and entitled to the possession and income thereof, although the estate may be insolvent.* The phrase " house of her husband," means the house in which her husband owned the fee at the time of his decease.^ The executor or administrator (except a special administrator)* cannot use or occupy the real estate as matter of right. If he does so, it must be by virtue of a contract with the heirs or devisees, express or implied.^ The statutes, however, provide that if he does so use. or occupy the real estate, and the parties do not agree on the sum to be paid for the rent thereof, it shall be 1 R. S., c. 90, § 11 ; c. 65, § 32. 2 Dennett b. Hopkinson, 63 Me. 350. s R. S., c. 65, § 24. * Heald v. Heald, 5 Me. 387 ; Stinson v. Stinson, 88 Me. 598 ; Kimball et als. V. Sumner et als., 62 Me. 305; Wright v. Williamson, 67 Me. 524; Laws of 1873, c. 118. 5 Young V. Estes, 59 Me. 441. e r. g.^ c. 64, § 33. ' Heald v. Heald, 5 Me. 387. 86 PROBATE PRACTICE. determined by three persons, to be appointed by the judge, and paid to the heirs, devisees or other parties in the manner ordered by him.i The rent received by him should not be included in his regular accounts, but in separate accounts. Fruit not severed, and grass uncut prior to the death, go to the heir. There is, however, a class of property the precise status of which it is somewhat difficult to fix, such as manure, machinery in mills, gas fittings, stoves, furnaces, carpets, chandeliers, temporary windows, cider mills, &c., &c. The circumstances surrounding each case, will usually determine whether the property should be treated as personal or real estate. If doubt exists, the numerous common law works on this subject can be readily consulted. Collection of Effects. The first duty of the executor or admin- istrator after giving notice of his appointment, is to make an examination of the property left by the deceased, to ascertain its kind, amount and situation, what part thereof goes to the heirs, what to the executor or administrator, to collect the latter together and take measures for its safe preservation. He may insure any property which may be assets in his hands.^ Personal property situated in another state, if there are no creditors therein, may be sold there, and debts due therein may be collected and valid discharges given therefor, if paid voluntarily, without taking out new letters of administration, and the proceeds accounted for here, or such property may be removed to this state and here administered ; but if there are creditors in such other state, they have a right to require that the property therein shall be administered there unless their debts are paid.' If any goods, effects, notes, bonds, accounts or other personal property shall have been sold, consumed, converted, concealed 6r embezzled, after the death of the person and prior to the appoint- 1 R. S., c. 64, § 55. 2 R. 8., c. 64, § 56. ' Red. on Wills, vol. 8, 34-30. EMBEZZLEMENT. 87 ment of the executor or administrator, or if any property was conveyed away by the deceased in fraud of his creditors, the facts should be at once investigated, in order that said property may be recovered, or an action instituted by the executor or adminis- trator to recover the value thereof.' Persons so selling, embezzling or appropriating the estate of a deceased person, are called executors in their own wrong, and as such are liable to be sued by creditors or other persons aggrieved, as well as by the rightful executor or administrator.^ The measure of damages in actions brought by the executor or administrator against such persons is the actual damage caused to the estate, deducting such funeral expenses, debts of the deceased and other charges actually paid, as the rightful executor or administrator would have been legally bound to pay.^ Mere acts of kindness and charity however, such as preserving the goods, ordering funeral obsequies, feeding the cattle, &c., will not render the person liable.' And all acts coming within the duties of an executor or administrator, even to the bringing or defending suits, will be rendered valid by a subsequent appoint- ment, the same relating back to the time of death.* Examination of Persons Charged with JEmhezzlement, ^c. Upon complaint made by an executor, administrator, heir, legatee, creditor or other person interested, against any one suspected of having concealed, embezzled or conveyed away any money, goods, effects or real estate of the deceased, or of aiding others in so doing, the judge may cite such suspected person before him, to be examined on oath in relation thereto, and may require him to produce for inspection all books, papers or other documents within his control relating to the matter under examination.' If any per- 1 Tobey ». Miller, 54 Me. 480. 2 r. g.^ g. 64, § 37. » Red. on WUls, vol. 3, 21. * Shillaber ». Wyman, 15 Mass. 333. s R. 8., c. 64, § 65 ; Laws of 1874, c. 168, 263. 88 PROBATE PRACTICE. son duly cited refuses to appear and submit himself to examina- tion, or to answer all legal interrogatories, or to produce such books, papers or documents, the judge is required to commit him to the county jail, there ta remain until he submits to the order of court, or is discharged by the complainant, or the supreme judicial court.^ Such examination is not barred by time.* The proceeding is in the nature of a bill of discovery in equity, the object being "to elicit the truth by a disclosure of facts within the knowledge of the person inquired of."* What questions may be put and what shall be answered, is entirely within the discretion of the judge, from whose ruling an appeal does not lie.' The respondent must first be sworn, and the examination will then be conducted in such manner as the judge directs. The usual practice is for the petitioner or his counsel to ask the questions orally, and for the judge to take down the respondent's answers in writing, but the questions may be written by the petitioner's coun- sel, and then read by the judge and the answers taken down by him. When completed, the disclosure must be placed on the files of the court for inspection. The judge shall be allowed a reason- able compensation for hearing and reducing to writing the questions and answers, to be paid by the petitioner.* 73. [Complaint Charging a Person with Embezzlement^^ To the Honorable Judge of Probate for the County of A. A. B., of C, in said county, on oath complains, that he has good reason to suspect, and does suspect, that B. F., of G., in said county, has concealed, embezzled or conveyed away, or aided others in so doing, the following property belonging to the estate of H. M., late of P., in said county, deceased, viz: ; that your complainant is (executor, administrator, heir, legatee or creditor) of said deceased and interested in said estate. Wherefore 1 R. 8., c. 64, § 67. 2 o'Dee ». McCrate, 7 Me. 467. 3 Bradley v. Veazie, 47 Me. 85. « R. S., c. 63, § 33. EMBEZZLEMENT. 89 your complainant prays that the said E. F., may be cited to appear before your honor, to be examined on oath touching the matter of this complaint, and that he be required to produce for inspection all books, papers and other documents within his control relating to said matter, and that such further proceedings may be had as the law requires. Dated this day of , A. D. . A. B. 74. [Decree on the foregoing Oornplaint.'] STATE OF MAINE. 88. At, &c. [Same as Form 7.] Upon the foregoing complaint, it is ordered, that the said E. F. be cited to appear at a probate court, to be held at P., within and for said county, on the Tuesday of , A. D. , and to submit himself to examination on oath touching the subject matter of said complaint, and also to produce for inspection, all books, papers and other documents within his control relating to said matter, by serving him with an attested copy of said complaint and this order thereon, fourteen days prior to the time of holding said court. J. L. H., Judge of Probate. For manner of service and form of return thereof, see Form No. 3, and remarks thereon. 75. [^Examination.] Examination of E. F., of 6., in the county of A., had in the probate court, for said county, on complaint of A. B. (Here follow the answers written by the judge, or the questions and answers, if the questions are in writing. ) 76. [Decree on said Examiiiation.] STATE OF MAINE. 88. At, &c. [Same as Form 7.] B. F., of G., in said county, having been cite"d to appear and answer to a complaint made against him by A. B., of C, in said county, who. is inter- ested in the estate of H. M., late of P., deceased, as , now appears, and 90 PROBATE PKACTICB. having first been sworn, submits himself to examination and makes the fore- going answers, which are written by me, and which are hereby ordered to be placed on the files of said court. J. L. H., Judge of Probate. 77. [ Warrant to Oommit.'] STATE OF MAINE. ss. To the sheriffs of our respective counties, or either of their deputies. Greeting. Whereas A. B., of C, in said county, who is interested in the estate of H. M., late of P., in said county, deceased, as , has filed in the probate court for said county, a complaint that E. F., of G., in said county, has con- cealed, embezzled, or convej'ed awajf certain goods and effects belonging to the estate of said deceased ; and whereas said E. F. has been duly cited to appear in said court and submit himself to examination touching said com- plaint, and answer all lawful interrogatories, but has refused so to do. Tou are hereby commanded in the name of the state of Maine, to take the body of the said E. F., and him commit to our jail at A., in our said county, and the keeper thereof is hereby commanded to receive the said E. P., and him safely keep until he submit to the order of said court, or is discharged by said complainant, or by order of the supreme judicial court. And you are to return this warrant with your doings thereon into our said probate court. In testimony whereof, I have hereunto set my hand and the seal of said court, at ajpj'obate court, held at A., within and for said county, on the Tuesday of , A. D. . J. L. H., Judge of Probate. {-•■I CHAPTER X. INVENTORY— APPRAESBRS. Inventory. Executors and administrators are required by statute and by the conditions of their bond, to make and return on oath within three months after their appointment, or within such further time not exceeding three months, as the judge allows, a true inventory of all the real estate and all the goods and chattels, rights and credits of the deceased, which are by law to be admin- istered and which come to their possession or knowledge.^ This is a personal duty. The inventory, by which is meant a schedule, list or description of the estate, must therefore be written by the executor or administrator himself, or by some one under his direction. He may employ a clerk, or, as is frequently done, one of the appraisers to make the inventory, but the executor or administrator must alone decide what property belongs to the estate of the deceased, what shall be included in the inventory and what shall be excluded therefrom. If he refuses, neglects, 6r omits to inventory property belonging to the estate which comes to his knowledge or possession, within three months, he is liable on his bond.i It is no part of the duty of the appraisers to write the inventory or to decide what shall or shall not be included therein. 78. \I71ventory.] To the Ilonorable Judge of Probate for the county of A. The undersigned, A. B., administrator of the estate of C. D., late of E., in said county, deceased, respectfully represents that the following is a true 1 R. S., 0. 64, §§ 9, 19, 41 ; Bourne ». Stevenson, 58 Me. 499. 92 PROBATE PRACTICE. inventory of the real estate and of all the goods, chattels, rights and credits of said deceased which have come to his possession or knowledge, which inventory he hereby returns into the probate court for said county. The inventory should be divided into three parts. 1. Real Estate. 2. Goods and Chattels. 3. Rights and Credits. Each separate piece of real estate should be described in general terms, and the incumbrance thereon, if any, noted. Each article of the goods and chattels must be separately described as far as possible. All rights and credits such as notes, accounts, causes of action of all kinds existing at the time of the decease and which survive, causes of action accruing since the death of the deceased for injuries to or destruction or conversion of personal property, must be fully inventoried and described, although considered worthless. A debt due from the executor or administrator to the deceased should be inventoried. The old rule that a testator by making a debtor his executor released the debt, has never been in force here. The debt hecomea prima facie assets of the estate in the hands of the executor or administrator.' If personal property has been converted, either before or after the death of the deceased, and can be found, it may be replevied and then inventoried, or it may be inventoried as a cause of action against the person converting or retaining the same.^ If the deceased was a member of a copartnership, the copartnership prop- erty must be included in the inventory, but described in a separate list and designated as copartnership property, the share of the deceased therein being stated.' If the estate is situated in differ- ent counties it may be included in one inventory or in a separate inventory for each county.* Executors and administrators are not 1 Ipswich Man. Co. v. Story, 5 Met. 310 ; Sigourney et at v. Wetherell et als., 6 Met. 553. 2 Pay V. Muzzey, 13 Gray, 53 ; Red. on Wills, vol. 3, 24. 3 R. S., c. 69, § 1. 4 R. d, c. 64, § 43. INVENTORY. 93 required to inventory property found in another state unless it has been brought into this state. Effects to he omitted. The following articles shall be omitted.^ 1. All articles of apparel and ornament of the widow. 2. All apparel and school books of minor children of the deceased. 3. The wearing apparel of the deceased, not exceeding one hundred dol- lars in value, if he left a widow and minor children, or either ; in which case they shall be entitled to such apparel. 4. Provisions consumed by the family of the deceased prior to making the inventory, if they do not exceed fifty dollars in value, but the amount in excess of that sum must be inventoried as a cause of action against the persons consuming the same. 5. Any sum of money due from a life insurance, provided the deceased left a widow or issue. But the amount of money paid by the deceased to any company for premiums within three years, with interest thereon, must be paid to the executor or administrator by the per- son receiving the insurance, and must be inventoried as a debt due the estate.^ The inventory when completed should be dated and signed by the executor or administrator and then delivered to the appraisers, and the estate exhibited to them for their appraisal. The oath may be administered to the executor or administrator by any jus- tice of the peace, or by the judge, or register of probate when the inventory is returned. 79. [Signature.] Dated this day of , 18^-. A. B., Administrator. ss. A. D. . Personally appeared the above named A. B., and made oath that the fore- iR. S.,c. 64, §46. 94 PROBATE PRACTICE. going is a true inventory of the real estate, and of all the goods, chattels, rights and credits of C. D., late of E., deceased, which are by law to be administered, and which have come to his possession or knowledge. Before me, A. M. P., Justice of the Peace. Appraisers. The real estate and the goods and chattels com- prised in the inventory must be appraised^ and the sum to be realized from the rights and credits and causes of action therein mentioned, must be estimated'^ by three disinterested persons, appointed by the judge and duly sworn. A disinterested person is one not related to the executor, or administrator, heirs or lega- tees, within the degree of second cousin inclusive.' The appraisers may reside in any part of the state. If the estate is situated in different counties, two or more sets of appraisers may be appointed.* Any warrant to appraisers may be revoked by the judge for suffi- cient cause, and a new one issued if deemed necessary.' 80. [ Warrant to Appraisers-I STATE OF MAINE. ss. Pkobatb Couet. To M. P., R. B, and T. W., Greeting. By virtue of the power vested in me by law, I do hereby appoint you (being three disinterested persons) to appraise the estate of H. W., late of R., in said county, deceased, comprised in the inventory thereof. 1. Before making said appraisal you wiU make oath before some person duly authorized to administer oaths, that you will faithfully and impartially perform the duties required of you by this warrant, and return into court a certificate thereof. 2. Tou wiE appraise each parcel of the real estate, and also each article separatejy of the goods and chattels described in the inventory, and state opposite the same the value thereof in figures. 1 R. a, c. 64, § 42. 2 R. S., c. 64, § 44. 3R. S. c. 1, §4. «K. 8.,c. 64,§42. 5 E. 8., c. 64, § 43. INVENTORY. 95 3. You will state in one general sum at the foot of the list of credits and rights to personal property not in possession, such amount as in your judg- ment may be realized therefrom, exclusive .of expenses and risk of settle- ment or collection. i. When yopr appraisal is completed, you will deliver the inventory, with your certificate thereon that the appraisals therein were made -by you, together with this warrant with your return thereon, to the administrator of said estate, to the end that the same may be returned into our said probate court within three months from the date hereof. In testimony whereof, I have hereunto set my hand and the seal of said court, at a probate court held at A., within and for said county, on the Tuesday of , A. D. . J. B. H., Judge of Probate. f"} One of the appraisers, if a justice of the peace, may administer the oath to the other appraisers. 81. {^Qertificate of Oath^ ss. A. D. . Personally appeared M. P., R. S. and T. W., and made oath that they would faithfully and impartially perform the duties required by the within warrant. Before me, J. P. M., Justice of the Peace. Appraisal. The warrant is usually delivered by the register to the executor or administrator with the letters of appointment, and should be delivered by him to the appraisers with the inven- tory. The appraisers, after being sworn, should proceed to appraise the real estate and goods and chattels described in the inventory and shown to them by the executor or administrator, each article separately, and state opposite the same the value thereof in figures. They should then examine the rights and credits, rights to per- 96 PROBATE PKACTICE. sonal property not in possession, and causes of action mentioned in the inventory, and designate such of them as they judge to be available as assets, by writing opposite the same the words col- lectible or uncollectible, but, for obvious reasons, not the amount which they think can be realized from each.^ Any debt due from an executor or administrator, or from a copartnership of which he is a member, should be estimated at its full value, for by accepting the trust he becomes officially liable for the full amount due from him or from the copartnership, and this although he or the firm may be insolvent.^ They must also state the names of the parties obligated, the sums supposed to be due from them, and the nature of the rights aforesaid, if the same has not been fully done by the executor or administrator.' They must also state in one general sum, at the foot of said list, or in the certificate to be made by them, the total amount which, in their judgment, may be realized therefrom, exclu- sive of expenses and risk of settlement or collection.' After the estate has been appraised and its value stated in the inventory, the appraisers must make a certificate of the fact thereon, and date and sign the same. 82. [JPorm of Certificate^ We, the undersigned, having been duly appointed for that purpose, hereby certify that we have appraised the real estate, goods and chattels comprised in the within inventory, and stated the. value thereof opposite the same in figures, and we have also designated such of the credits and rights to per- sonal property not in possession mentioned in said inventory as we judge to be available as assets, by writing opposite the same, the words, collectible or uncollectiUe, and we also hereby certify that in our opinion there can be I Bed. on "Wills, vol. 3, 315. 8 Leland v. Felton, 1 Allen, 531, and cases there cited. 8 B. a, c. 64, § 44. INVENTORY. \) t realized therefrom, exclusive of risk of settlement or collection, the sum of dollars. ($ .) Dated this day of , A. D. . M. P. ) R. B. > Appeaisees. T. W.) They must make their report on their warrant, and date, sign and return it, together with the inventory, to the executor or administrator. 83. [Heporf of Appraisers.] To the Honorable Judge of Probate for the county of A. Pursuant to the foregoing, warrant, after having taken the oath prescribed by law, a certificate of which is hereunto annexed, we appraised the estate mentioned therein, comprised in the inventory thereof, which inventory, with our appraisals of said estate duly stated therein, we this day returned to the administrator of the estate named therein as directed. The aggregate value of said estate is as follows : Keal Estate, .....$ Goods and Chattels, . . . . f Rights and Credits, . . . $ Total, Dated this day of , A. D. 18- M. P.) R. S. y Appeaisees. Fees, i . T. W.J If the inventory is properly made, signed, and sworn to, and the appraisers appear to have been duly sworn, and their report is in due form, the judge will receive the same, and order the warrant and return thereon to be recorded, and the inventory to be placed on the files of the court. 98 PROBATE PRACTICE. 84. [Decree.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] Ordered, that the foregoing warrant to appraisers and their return he'- recorded, and that the inventory mentioned therein, which has this day been returned upon oath in accordance with law, be placed on file. J. L. H., Judge of Probate. Additional Inventory. If any estate or effects, rights or cred- its come to the knowledge or possession of any executor or admin- istrator after he has returned an inventory as required, he may charge himself with the same in his account, at his own estimate of the value thereof,' though such estimate would not be conclu- sive upon parties interested, or he may return an additional inventory thereof and have the same appraised by appraisers appointed at his request by the judge, in the manner previously stated.^ If any executor or administrator does not return such additional inventory, the judge, on petition of any heir, legatee or creditor, may require him so to do, within such time as he directs, and may appoint appraisers to appraise the same,' and his refusal or neglect so to do, will be deemed a breach of his bond, which requires him to administer " according to law." This provision of the statute, however, applies only to cases where the executor or administrator admits that property belonging to the estate has come to his knowledge or possession, and not when he denies the same, and when the question in issue is whether certain property belongs to the estate. The probate court will not undertake to decide that question in this form, but will' 1 R S., c. 64, § 54. 2 R. S., 0.64, § 45. 3 R. S., c. 64, § 45. INVENTORY. 99 turn the heirs, legatees, or creditors, over to their remedy at com- mon law on the bond.' 85. \_Petition for Return of Additional Inventory.'] To the Honorable Judge of Probate for the county of A. A. B., of C, in said county, respectfully represents that he is interested in the estate of E. F., late of G., deceased, now being settled in the probate court for said county, as heir of said deceased (or legatee or creditor), that the following personal property belonging to said estate, viz : C^ere describe the property) has come to the knowledge or possession of H. L., of K., administrator of said estate but who has not returned an inventoiy thereof as required by law nor accounted for the same. Wherefore your petitioner prays that the said H. L. may be required to return an inventory of said property unto said court, within such time as your honor directs, duly appraised by appraisers to be by your honor appointed. Dated this day of , A. D. . A. B. 86. \^Order of Notice. \ STATE OP MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition, it is ordered, &c. (Same as Form 64.) 87. S^Decree Requiring AddH Inventory to he Returned^ STATE OP MAINE. * S3. At, &c. [Same as Form 7.] On the foregoing petition, the facts therein alleged having been made fully to appear. It is ordered that H. L., mentioned therein, return on oath into said court within three months from the date hereof, a true inventory of all ' the estate and effects of E. P., deceased, which have come to his hands or knowledge, of which an inventory has not yet been returned, and particularly an inventory of the effects and estate of said deceased described in said peti- tion, which property the said H. L. is ordered to cause to be appraised by R. 1 Selectmen of Boston ». Boylston, 4 Mass. 318. 100 PROBATE PKACTICB. S., T. W. and H. P., who have this day been appointBd for said purpose ; and it is further ordered that the petitioner named in said petition cause said H. L. to be served with an attested copy of said petition with this decree thereon, within days from the date hereof. J. L. H., Judge of Probate. For manner and form of return of service, see Form No. 3, and remarks on the same. Inventory of Quardians and Trustees. Guardians and trustees, except executors who become trustees by operation of law,* and substituted trustees, who may be excepted in the discretion of the judge,^ must return inventories of the estates under their charge within such time as the judge directs,* duly appraised as in the case of estates of deceased persons. The previous remarks relar tive to the duties of executors, administrators and appraisers, in making and returning inventories, and the forms used by the same, apply equally to guardians and trustees. There is, however, no provision of law authorizing any exemptions or additional invento- ries. If the same person is guardian of two or more wards, although heirs of the same estate, he must return a separate inventory for each ward. The judge may revoke the warrant for an inventory, and issue a new one if deemed necessary.* 88. \^Decree Revoking Warrant to Appraisers.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] The warrant of appraisement issued to M. P., R. S. and T. W., as appraisers of the estate of B. F., late of G., deceased (or of H. L., minor and heir of B. F., deceased), is hereby revoked. J. L. H., Judge of Probate. 1 R. S., c. 68, § 13. 2 R. S., c. 68, § 7. 3 R. S., c. 67, §§ 10, 11 ; c. 68, § 1. *R. S.,c. 67, §11; c. 68, §8. CHAPTER XI. COLLECTION OF DEBTS— ARBITRATION— SALE OP PERSONAL PROPERTY. Collection of Debts. Executors and administrators, as soon as they have returned an inventory, should proceed at once to collect the debts due to the deceased at the time of his deatW also all dividends, interest and profits accruing since his death, including legacies and distributive shares due the deceased from persons dying previously ; also to enforce any cause of action then exist- ing and surviving, as well as those arising since his death ; also to collect any money due on any policy of life insurance.' They have power, and it is their duty to foreclose any mortgage held by the- deceased, and to discharge the same on payment of the mort- gage debt, and if the debt is not paid, to recover seizin and posses- sion of the property mortgaged.'' If an administrator de bonis non is appointed, he becomes the representative of the estate, and all the unadministered property thereof vests in him in trust for creditors, legatees or heirs. He may sue a former administrator, or his legal representative, to recover any property or balance of account due from the first administrator.' Arbitration. If the executors or administrators cannot agree with any debtor as to the amount to be paid by them, the judge may authorize them to adjust the same by arbitration or compro- 1 Lee V. Chase, 58 Me. 433. 2 R. S., c. 90, § 11. ' Storer ». Storer, 6 Mass. 391 ; Wiggin ». Swett, 6 Met. 194. 102 PROBATE PRACTICE. mise.^ When they are so authorized, a release of a debt by one co-executor is valid.^ The statute conferring, upon the judge the power to authorize such arbitration, was not intended to abridge the right which an executor or administrator has at common law to submit disputed matters to arbitration. It was rather to give such officers security and protection in so doing, and relieve them from the necessity of acting solely on their own responsibility.' 89. [^Petition for leave to Compromise, <&c.] To tlie Honorable Judge of Probate for the county of A. A. B., of C, administrator of the estate (or executor of the will) of E. F., late of G., deceased, respectfully represents that the following claims in favor of the estate of said deceased, and against H. L., of K., in said county, viz: remain unpaid and unsettled, that it would be for the interest of said estate that the same should be adjusted by arbitration or com- promise, and prays that he may be authorized to so adjust the same. ' Dated this day of , A. D. . A. B. 90. {Decree Authorizing the 8am,e^ STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition it is decreed that the prayer of said petitioner be granted. J. L. H., Judge of Probate. A "certified copy of the foregoing petition and decree given to the executor or administrator is sufficient evidence of his authority to act. Special administrators may collect the debts due the deceased, and may enforce any catise of action accruing before or after his death. 1 R. S., c. 64, § 50. 2 Oilman b. Healy, 55 Me. 130. 3 Cliase c. Bradley, 36 Me. 531 ; Chadbourne ». Chadboume, 9 Allen, 173. SALES OF PERSONAL ESTATE. . 103 Sales of Personal Estate. The judge, when he deems it neces- sary for the speedy payment of debts, money legacies, distributive shares, or for the benefit of the estate, may, on petition of the executor, administrator, or any person interested, order any or all the goods, chattels, rights and credits of the deceased, except articles specifically bequeathed, to be sold at public or private sale, and converted into money, to be accounted for as sold} Any notes, accounts, debts, rights to property or causes of action, thus sold, may be assigned to the purchaser, and enforced and col- lected in his own name, or in the name of the executor or admin- istrator on such indemnity being given against costs as the judge orders.^ The executor or administrator may, without license, indorse a negotiable note payable to the deceased ; but it has been held that he has no right to deliver to the indorsee a note indorsed by the deceased but never delivered by him.^ Sales of Real Estate held in mortgage or taken on execution. If any real estate is held by an executor or administrator, guardian or trustee, in mortgage, or by a levy made on an execution, until the right of redemption has expired it is deemed personal assets, and he may sell the same as he would personal estate at common law and assign the mortgage and debt to the purchaser.^ Such real estate may, for the purpose of paying debts, legacies or charges of administration, be sold by a license as personal estate is sold;* but if said real estate, mortgage debt or judgment is not sold, and the real estate is not redeemed within the time allowed by law, then said real estate may be distributed among those entitled to the personal estate in the manner provided for the partition of real estate, or sold and the proceeds distributed as personal estate, but the sale must be in the manner provided for the sale of real estate.^ 1 R. S., c. 64, § 48. 2 Parsons on Cent., vol. 1, 305, and cases there cited. 3 R. S., c. 65, § 33. 4R. S.,c.65, §33. s R. S., c. 65, § 35 ; c. 71, § 1, Spec. 8. 104 PROBATE PRACTICE. 91. [Petitioti to Sell Personal Estate.] To the Honorable Judge of Probate for the county of A. A. B., of C, administrator of the estate of E. F., late of G., in said county, deceased, respectfully represents that the interests of all parties concerned require the immediate sale of the following personal property named in the inventory of the estate of said deceased, viz: (all the personal property named therein, or if part only is to be sold, name it particularly.) Your petitioner therefore prays, that your honor will order said property to be sold, and that license be granted to sell the same at public or private sale. Dated this Tuesday of , A. D, . A. B. 92. ^Decree Ordering a Sale.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition, ordered that the personal estate therein named be sold, and that said petitioner have license to sell the same at public or private sale. J. L. H., Judge of Probate. 93. [License to Sell Personal Estate.] STATE OF MAINE. ss. Probate Cotjet. To A. B., administrator of the estate (or executor of the will) of E. F., late of G., in said county, deceased. You are hereby authorized and dii'ected to sell at public auction or private sale, as shall best promote the interest of all concerned, the personal estate of said deceased, described in your petition filed in our said court praying for license to sell the same. If you sell at public auction, you will give notice of the time and place of sale and of the principal articles to be sold, by causing advertisements thereof to be posted up in at least two public places near where the property is to be sold, seven days previous to the day of sale. If you sell at private sale you will give notice that said property is for sale, or not, at your discretion ; and such notice, if any, as you deem proper. SALES OF PERSONAL ESTATE. 105 If said property sells for more than it was appraised at, you will account for the excess in your administration account. In testimony whereof, I have hereunto set my hand, and the seal of said court, at a probate court held at A., within and for said county, on the Tuesday of , A. D. 18—. J. L. H. , Judge of Probate. {l.s.} No executor or administrator can be a purchaser directly or indirectly of any estate sold by him, unless it is necessary to save the property from sacrifice, or he has the consent of all parties interested. Though not absolutely void, such sale may be set aside at the election of parties interested.' 94. l^Assiffnment of Accounts, c&c] I, A. B., of C, in the county of A., administrator of the estate of E. F., late of G., deceased, hereby sell and assign to R. S., of P., the annexed (here describe the note, account or claim sold) with full power to collect and discharge the same. Dated this day of , A. D. . A. B. Sales and assignments by a co-executor are valid.^ So is the discharge of a debt by payment to one of two or more joint exec- utors.^ Executors or administrators may sell any personal estate not specifically bequeathed, without license of court, if they act in good faith ; but if they do so they must account for the same at the appraisal, and not as sold, unless it sells for more than the appraised value, in which case they must account for the excess ; but if they sell by order of court, and the property sells for less than the appraisal, they will be allowed the deficiency in their account^.* • > Red. on Wills, vol. 3, 233 ; Perry on Trusts, vol. 1, § 305 ; R. R. Co. v. Poor, 59 Me. 277; Slate Co. v. Tilton, 69 Me. 244. 2 Gilman v. Healy, 55 Me. 120. 3 Red. on Wills, vol. 3, 225. « R. S., c. 64, § 49. CHAPTER XII. PAYMENT OF DEBTS— LEGACIES— EXPENSES. Payment of debts. An executor or administrator is protected against any actions commenced against him at any time within one year after he has given due notice of his appointment. The statute provides that such actions shall be continued at the expense of the plaintiff until said year expires, and shall be barred by a tender of the debt within the year, — excepting actions od claims not affected by the insolvency of the estate, and actions in cases of appeals from commissioners appointed by the judge.' It would seem that one important reason for this is, that the executor or administrator may have sufficient time in which to inform himself as to the solvency of the estate. If he elects to settle it as a solvent estate, there is no order in which the debts and legacies are to be paid. If he settle it as an insolvent estate, he must pay in the order required by law.^ If the executor or administrator (except a special administrator) is satisfied that the estate is solvent, he should proceed immediately to pay the debts and legacies. If insolvent, he should so repre- sent it and have commissioners appointed.^ If in good faith he pays a debt in full before the expiration of the year, under the belief that the estate was solvent, and it subsequently proves insolvent, he should then at once so represent it. He could probably ^ause the claim so paid to be proved before the commissioners of insolvency, and, if allowed, receive the dividend thereon, and 1 R. S., c. 87; Laws of 1872, c. 85, §§ 11, 13. 2 See c. xiv, on insolvent estates. PAYMENT OF DEBTS. 107 recover of the creditor the difference between the amount thus received and the claim paid.^ No debts barred by statute, or which cannot be legally enforced, . should be paid, as the same will not be allowed in his accounts. If the debt is secured, it should be paid in season to save the security, or the executor or administrator might be held guilty of unfaithful administration.^ If he cannot agree with the creditors as to the sum to be paid, the judge may authorize the same to be adjusted by arbitration or compromise as in case of debts due the estate.^ When any claim against a solvent estate is deemed by the exec- utor or administrator exorbitant, unjust or illegal, on application to the judge, if, after notice to the claimant and a hearing, he is satisfied that the allegations are true, he may appoint two or more commissioners to determine what shall be allowed on the claim.* 95. [Petition for Oommissioners to Examine Claims against Solvent Estates.'] To the Honorable Judge of Probate for the County of A. A. B., of D., in said county, administrator of the estate of E. F., late of G., deceased, respectfully represents that certain claims against said estate have been presented to him for payment by M. P., of C, which claims he deems exorbitant, unjust and illegal, viz: (state the claims generally.) Wherefore he prays that commissioners may be appointed to examine said claims, and determine whether any and what amount shall be allowed thereon. Dated this day.of , A. D. . A. R. 1 Walker ». HiU, 17 Mass. 380 ; Walker v. Bradley, 3 Pick. 261 ; BUss v. Lee, 17 Pick. 83 ; Richards ». Nightingale, 9 Allen, 149. 2 R. S., c. 64, § 53. For payment of debts, when the cause of action doe^ not accrue within the time limited by law for bringing actions against exec- utors and administrators, and mode of securing and enforcing the same, see Post c. xviii; also Laws of 1873, c. 85. 3 Ante c. xi.; R. S., c. 64, § 50. « R. S., c. 64, § 51 ; c. 83, § 131. 108 PROBATE PRACTICE. 96. {^Order of JVbtice.] STATE OP MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition, ordered, &c. [Same as Form 64.] The petitioner must see that a copy duly attested by the register is served as directed, and a return of service made on the original petition in court.^ 97. {^Decree Appointing Commissioners.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition, notice having been given thereon pursuant to the order of court, and the truth of the allegations therein having been made fully to appear. Ordered, that C. D., M. R. and T. W. be appointed commis- sioners to examine the claims mentioned in said petition and to determine whether any and what amount shall be allowed thereon, and that a warrant issue to them accordingly. J. L. H.,. Judge of Probate. 98. [ Warrant to Commissioners.] STATE OF MAINE. ss. Pkobatb Cotjet. To 0. D., M. R. and T. W., Greetmg. Whereas A. B., administrator of the estate of E. F., late of G., deceased, has made application representing that the claims of ' against said estate are deemed by him to be exorbitant, unjust and illegal, and praying that commissioners may be appointed to examine the same. I do therefore hereby appoint you to be commissioners for said purpose with full power to examine the same and determine whether any and what amount shall be allowed thereon. 1. Before entering on your duties you will make oath that you will iaithfully perform the duties required of you. 2. You will appoint a conven- 1 For form of return see Form 3, c. ii, and remarks thereon. PAYMENT OP DEBTS. 109 ient time and place of meeting, and eive said administrator and claimant four- teen days notice of the same. 3. You will require said claims to be presented in writing, supported by the affidavit of the claimant or of some person cognizant thereof, stating what security the claimant has, if any, and the amount of the credit to be given in set off according to the best of his knowledge and belief. 4. If any creditor holds security for his claim of less value than the amount due him, you will estimate only the difference between such amount and the value of said security. 5. Interest is to be cast on all claims allowed by you from the death of the deceased to the time of making your report, unless the contract otherwise provides. 6. Tou may, at your discretion, require any claimant to be sworn, and examine him on all matters relating to his claim, and may yourselves administer oaths to claimants and witnesses. 7. You are to return this warrant into our said court together with, a list of the claims presented and the amount, if any, allowed thereon, on or before the Tuesday of , A. D. . In testimony whereof, I have hereunto set my hand and the seal of said court, at a probate court, holden at A.., within and for said county, on the Tuesday of , A. D. . ^^A.^ J. L. H., Judge of Probate. 99. [^Certificate of Oath.] ss. A. D. . Personally appeared C. D., M. R. and T. W., and made oath they would faithfully perform the duties required of them by the foregoing warrant. Before me, , Justice of the peace. 100. [Return of Commissioners.'] To the Honorable Judge of Probate for the county of A. The undersigned, commissioners to examine claims against the estate of E. F., late of 6., deceased, having been sworn and given notice to the admin- istrator and claimant as directed in the foregoing warrant, and having received and examined the claims therein mentioned, make report that we have allowed to on his claim which is hereunto annexed the sum of dollars. Dated this day of , A. D. . M. R. ) C. D. > COMMISSIONBBS. Fees. T. W. ) 110 PROBATE PRACTICE. 101. [Decree.] STATE OF MAINE. 89. At, &c. [Same as Form 7.] The commissioners appointed to examine certain claims against tlie estate of E. F., late of G., deceased, having made the foregoing report of the amount allowed by them against said estate. Ordered, that said report be ac cepted and recorded, and that the fees of said commissioners, amounting to dollars be paid by the administrator of said estate. J. L. H., Judge of Probate. No action shall be maintained against an executor or adminis- trator on any claim on which commissioners have been so appointed, unless proved before them, and their report thereon shall be final, saving the right of appeal. ^ After the report has been finally accepted, on application of a creditor whose claim has been allowed by the commissioners, the supreme court may direct an execution to issue for the amount allowed, interest, costs and expenses, as in suits at law.'' If their report is accepted, and no appeal is taken, it shall be final, notwithstanding the estate after- ward proves to be insolvent, and commissioners of insolvency are appointed. The amount awarded by the first commissioners shall be entered on the list of debts entitled to dividends.' The provisions of law relating to the manner of presenting claims, appearance of claimants, value of their security, interest and appeals in insolvent estates, shall apply to such claims.^ Grravestones. Executors and administrators may expend for the erection of monuments and gravestones, a reasonable sum, which, in insolvent estates, is limited to twenty dollars.' "Monu- i R. S., c. 64, § 51. 2 R. 8., c. 83, § 131. 8 Laws of 1873, c. 116, § 1 ; Hall v. Merrill, 67 Me. 113. 4 R. S., c. 64, § 51 ; c. 66, §§ 5, 6, 7, 8, 11, 13, 13, 14 and 15. See c. xiv, on Insolvent Estates. 5 R. S., c. 64, § 57. PAYMENT OF DEBTS. Ill ments and gravestones" have been usually construed to include the grading and fencing of grave lots. Debts of a deceased married woman, when the credit was given to her, together with the reasonable expenses of her last sickness, may be paid from her estate when the husband is not liable, or, though liable, is unable to pay the same.^ Debts due from a deceased husband to his wife, or from a deceased wife to her husband, shall be paid as if the marriage had never existed.^ Debts against testate estates. No- part of the estate can be exempted by the testator from the payment of debts,' but he may designate the property out of which the debts are to be paid, or charge certain funds with their payment. If not designated they are to be paid first from the personal estate, unless the intent of the testator, as gathered from the whole of his will, requires a dif- ferent course.* A mortgage debt or other incumbrance upon real estate devised or descended, if created by the testator or ancestor, or if so assumed by him as to become his proper debt, is to be paid from the personal property where no other intent is expressed by the will. But where the testator or ancestor purchased the estate subject to the incumbrance and did not render himself personally liable therefor, the incumbrance remains a charge upon the land merely, and is not to be paid from the personal estate, nor out of other lauds, unless the will, if any, directs otherwise.* As all the real estate of a deceased debtor is liable for his debts, if he dies insolvent it is all sold and the proceeds are ratably divided among all his creditors. If the estate is solvent, each 1 R. S., c. 64, § 58 ; c. 61, §§ 4, 11. 2 R. S., c. 64, § 59. ' R. S., c. 74, § 7 ; Hays v. Jacksoa, 6 Mass. 149. « Hays V. Jackson, 6 Mass. 149 ; Quinby b. Frost, 61 Me. 77 ; Red. on Wills, vol. 3, c. xiii ; Hewes ». Dehon, 3 Gray, 305. 112 PROBATE PRACTICE. creditor may enforce his lien upon the real estate against whom- soever he may find in possession of it. The claim of the creditor is paramount to every title that can be acquired after the decease of the debtor. The duration of such lien, however, in this state is limited in ordinary cases to two and one-half years from the time when the executor or administrator gives notice of his appointment.' Proof. Executors and administrators may require any person making any claim against the estate to present the same in writing, supported by the affidavit of the claimant or some other person cognizant thereof, stating what security, if any, he has, and the amount of credit to be given. ^ Private claims of executors and administrators are to be allowed in their accounts.^ Special administrators are limited in the payment of debts to the expenses of funeral, of last sickness, of their administration, debts preferred by the laws of the United States, taxes and money due the state, also allowances made by the judge to the widow and minor children under fourteen for their temporary support.* Payment of legacies. Legacies are either general or specific. A legacy is general when it does not apply to any particular por- tion of, or article belonging to, the estate, the delivery of which will alone fulfill the intent of the testator. It is specific when it consists of some specific thing belonging to the estate, which is, by the bequest, intended to be transferred in specie to the legatee.' Money legacies are to be paid from the personal assets unless a diSerent provision is made in the will. In case of deficiency of 1 Scott V. Hancock, 13 Mass. 162 ; Laws of 1872, c. 85. 2 R. S., c. 64, § 60. 3 R. 8., c. 64, § 61. See c. xvii on accounts. 4 R. 8., c. 64, § 33. 5 Red. on WlUs, vol. 3, 133 ; Bradford v. Haynes, 20 Me. 105. PAYMENT OF LEGACIES. 113 assets, legacies generally abate proportionally, but this rule is sub- ject to many exceptions. Real estate is not liable to contribute if specifically devised.^ Specific legacies, not being subject to con- tribute, are to be delivered before general pecuniary legacies are paid, and the latter before the residuary legacies. Specific lega- tees cannot claim to have any deficiency which may arise in regard to their legacies made up to them from other assets of- the estate. When real estate is devised on condition, or subject to the pay- ment of a sum of money, the court of equity will enforce the payment.^ When any real estate devised, or any personal estate specifi- cally bequeathed, is taken on execution or sold for the payment of debts, the other devisees and legatees, if able, are to pay to the devisee or legatee whose estate is so taken, the value thereof according to the value of the property received by each, so as to make the loss fall equally on all, unless the testator has specifically exempted any legacy or devise from contribution ; and the execu- tor, if he has funds in his hands undistributed, may pay any devisee or legatee having a claim for contribution the same amount he would be entitled to receive from the other devisees or legatees.' A residuary devisee or legatee, however, is not entitled to such contribution.'' No time is prescribed by statute within which legacies are to be paid. The provisions of the statutes limiting the time within which suits against executors and administrators must be brought, do not apply to suits to recover legacies.* It has been held that payment cannot be compelled till it is known whether there are sufficient assets to pay debts, which time has been usually limited to one ' Hays V. Seaver, 7 Me. 237 ; Humes v. Wood, 8 Pick. 478. 2 Bugbee v. Sargent, 27 Me. 338. 3 R. S., c. 74, §§ 6, 7, 12, 14. ■* Blaney «, Blaney, 1 Cush. 109. 5 R. S., c. 87, § 19 ; Brock v. Lynde, 7 AUen, 64. 114 PKOBATE PRACTICE. year.i Specific and money legacies are payable in one year when no time of payment is specified.^ After that time they are usually held to carry interest. Specific legacies are considered as sev- ered from the testator's property from the time of death, and the legatee is entitled to the income and emoluments thereof from that time.' Specific legatees of shares in joint stock companies are held to be entitled to all dividends which accrue after the death of the tes- tator.* If no time is named for the payment of a legacy it should be paid at once if it can be done with safety. Residuary lega- cies are usually paid on the order of the judge, who may order such payment when the condition of the estate permits.^ Any legatee of a residuary or specific legacy may sue for and recover the same without a decree of the judge fixing the amount.* The judge has no authority to decree to whom or when a pecuniary or specific legacy, except residuary legacies, shall be paid, and such a decree would be no protection to the executor.^ If the legatee dies before the testator, the legacy is said to lapse, and falls into the residuum, unless the will clearly directs otherwise ; provided that when a legatee who is a relative of the testator dies before the testator, leaving lineal descendants, they will take the legacy bequeathed to such deceased legatee.' It has been held in Massachusetts, that the wife is not a relative, within the meaning of a similar statute.' Legacies waived or rejected by the legatees, and void legacies fall into the residuum. If there is no residuary legatee or devisee, such legacies being considered prop- erty undisposed of under the will, are to be distributed as the estate 1 Brooks V. Lynde, 7 Allen, 64. 2 Smith v. Lambert, 30 Me. 140. 3 3 Lead. Cases in Eq. 495, 496. « Red. on Wills, vol. 3, 143, § 20. 5 K. S., c. 65, § 37. « R. S., c. 65, § 31. Smitlij). Lambert, 30 Me. 137. See c. xviii. ' R. S., c. 74, § 10 ; Snow v. Snow, 49 Me. 159. 6 Esty ». Clark, 101 Mass. 36. PAYMENT OF RENT. 115 of an intestate. 1 If the legatee dies after the testator, the legacy should be paid to the personal representative of the legatee. Security may he required. When an executor or administrator in a solvent estate pays a creditor, heir or legatee a sum exceed- ing thirty dollars, the judge may authorize him to require of the payee a bond to refund so much of said sum as may exceed such payee's equitable proportion on final settlement.^ He can recover such excess by suit at common law when the payment was made in good faith, but under a mistake of fact.' Payment for rent of real estate used hy executors or adminis- trators, when the same has been used by them by virtue of the pro- visions of the will or by a contract express or implied with the heirs or devisees, must be made to the heirs, devisees or other persons in the manner ordered by the judge, if all the parties agree to the sum to be so paid. If they do not agree, the judge may appoint three disinterested persons on the petition of the executor, admin- istrator, heir or devisee, to determine the same, whose award when accepted shall be final.* 102. \^Petition to Estimate Yalue of Rent of Real Estate.^ To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that D. E., administrator of the estate of E. F., late of G., deceased, has used the following real estate left by said deceased, viz : from the day of to the day of , and your petitioner who is interested in said estate as , and the said D. E. cannot agree upon the value of said occupation, and therefore prays that three disinterested persons may be appointed to award the sum to be allowed therefor. Dated- this day of , A. D. . A. B. 1 Red. on "Wills, vol. 3, 176, § 34; R. S. c. 74, § 3; Drew v. Wakefield, 54 Me. 391. 2 R. S., c. 65, § 30. For forms of authority and bonds, see Post, c. xviii. 3 Walker v. HiU, 17 Mass. 380. * See Ante, c. Ix ; R. S., c. 64, § 55. 116 PBOBATB PRACTICE. 103. [Order of Notice.] STATE OF MAINE. as. At, &c. [Same as Form 7.] Upon the foregoing petition, Ordered that the said D. B. be served, &c. [Same as Form 64.] The petitioner must cause a copy of said petition and order, attested by the register, to be served as directed. For form of return of service, see Form 3, and remarks thereon. 104. [^Decree.'] STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition it is decreed that be appointed to determine and award the sum to be allowed for the occupation of the real estate men- tioned therein, and that a warrant issue to them accordingly. J. L. H., Judge of Probate. 105. [ Warrant to Appraisers of Yalue of Use of Real Estate?^ STATE OF MAmE. 8S. Peobatk Couet. To A. B., Greeting. Whereas D. E., of K., administrator of the estate of E. P., late of G., de- ceased, has used certain real estate left by said deceased from the day of to the day of , and the parties interested cannot agree on the sum to be allowed therefor. I do therefore authorize you to examine and determine the true value of said use, and award the sum to be paid therefor. You will give reasonable notice of the time and place of hearing to all the parties interested and make report and return of your doings, together with this warrant. Into our probate court for said county as soon as may be. In testimony, &c. [Same as Form 98.] J. L. H., Judge of Probate. {"] PAYMENT OP EXPENSES. 117 106. [Heport.'] To the Honorable Judge of Probate for the County of A. Pursuant to the foregoing warrant, we notified the parties and fully heard the evidence, and do report and award that the true value of the use of the real estate occupied by the said E. P., for the time mentioned in said war- rant is dollars. Dated this day of , A. D. . 107. [Decree.] STATE OP MAINE. -ss. At, &c. [Same as Porm 7.] It is decreed that the foregoing report be accepted, and that D. E., men- tioned therein, pay to [here state the names to whom, and sums to be paid each.] J. L. H., Judge of Probate. Payment of Funeral Expenses These should be paid by the executors or administrators at once. Being furnished, in theory, at their request they are regarded as charges against them personally to be paid by them, so far as they have assets, and allowed in their accounts.^ Reasonable expenses only are allowed to be paid. What is reasonable must depend upon the circumstances of each» particular case. Expenses of Administration. Executors and administrators are entitled to be paid for their services and for their reasonable and necessary expenses, and are to be paid first in order of pre- ference. ^ The amount allowed is to be determined by the judge in the settlement of their accounts. Services. For their services they are entitled to one dollar for every ten miles, or parts thereof, going to and returning from the I R. S., c. 66, § 1 ; Hapgood e. Houghton, 10 Pick. 154. 118 PROBATE PRACTICE. court, and the same for each day's attendance when it is neces- sary for them to attend court ; also, at the discretion of the judge, having regard to the amount of the estate, the time employed, the nature, responsibility and difficulty of the trust, a commission not exceeding five per centum on the amount of personal assets that come into their hands. ^ The practice is to treat money received from the sale of real estate as such " personal assets." Expenses. They may pay and be allowed a reasonable sum paid for professional aid when legal counsel is necessary,' for amount paid to appraisers, commissioners on claims, whether the estate is solvent or insolvent,'^ witnesses (one dollar per day and six cents per mile each way), expenses of partition of real estate and assign- ment of dower^ when ordered by the judge to pay the same,' expense of collecting and preserving the effects, legal advertising, and interest on money necessarily advanced to save the estate. Sums actually paid for costs of suits, unless in the opinion of the judge the suits were unnecessarily prosecuted or defended, and expenses incurred in carrying out the provisions of the will, are also proper charges and will be allowed.* . Debts due to executors or administrators hy the deceased must be particularly stated in their accounts, and if allowed they may retain sufficient estate to pay the same. If their claims are disputed hy any person interested, they may be decided by the judge, or by referees agreed upon in writing by the parties interested present, their agents or guardians, and the sums awarded allowed on acceptance of their report by the judge.' 1 E. 8., c. 63, § 39. 2 R. 8., c. 63, § 30; Laws 1876, c. 108. » R. 8., c. 63, § 31 ; Post c. xix, xx. 4 R. 8., c. 87, § 2. 5 R. S., c. 64, § 61. Post c. xvii. SUBMISSION OF PRIVATE CLAIMS. 119 108. [Affreeme9ii to Submit Private Claims.] To the Honorable Judge of Probate for the county of A. A. B., administrator of the estate of E. F., late of 6., deceased, who claims that there was due him from said deceased the sum of dollars, according to the account annexed, and who asks in his account to be allowed to appropriate the same from the estate of said deceased, and H. S., of K., a person interested in said estate, who disputes the allowance of said claim, do hereby agree to submit said claim to the determination of , whose award, if accepted by said court, shall be final. Dated this day of , A. D. . A.B. H. L. 109. [Decree.] STATE OP MAINE. ss. At, &c. [Same as Form 7.] Ordered that the foregoing "agreement be filed and recorded, and that the claim therein mentioned be submitted to the referees therein named, who will hear the parties and make report into our said court as soon as may be. J. L. H., Judge of Probate. A copy of the foregoing agreement and order thereon, attested by the register, must be furnished by the parties to the referees. Their report should be written on the copy of the submission and may be accepted or recommitted.' 110. [Decree Accepting the Report^ STATE OF MAINE. ss. At, &e. [Same as Form 7.] It is decreed that the foregoing report of referees be accepted, and that said A. B., administrator of the estate of E. F., be allowed thereon the sum of dollars in his account of administration. J. L. H., Judge of Probate. Widow's support for ninety days. The widow is entitled to 120 PROBATE PRACTICE. have her reasonable sustenance out of the estate for ninety days next after the death of her husband. ^ This does not entitle her to clothing or support for her minor children. It may be furnished her by the executor or administrator in provisions at their appraised value, or in money, and allowed in his accounts. If she was absent from home attending her husband at the time of his death, which took place away from home, and does not return thither immedi- ately afterwards, it has been held that she could not charge the estate for her support during the absence succeeding his death.^ Allowances made by the judge to the widow or minor children must be paid by the executor or administrator on presentation of the order to him.^ 1 R. S., c. 65, § 34. 2 Fiak y. Cushman, 6 Cush. 30. ' Post c. xiii. CHAPTER XIII. ALLOWANCE TO WIDOWS AND MINORS. Widows. In the settlement of any intestate estate, or of any testate estate which is insolvent, or in which no provision is made for the widow in the will of the husband, or she duly waives the provision made, the judge may allow her, besides her ornaments and wearing apparel, so much of the personal estate as he deems necessary, according to the degree and estate of her husband, and the state of the family under her care.' He may also allow her any one pew in a meeting house, of which the husband died seized, and such allowance, when recorded, shall vest the title in her.^ When the estate, which at the time of the allowance was consid- ered insolvent, ultimately appears to be solvent, he may by a sub- sequent decree make a further allowance. ^ When additional per- sonal property comes to the knowledge of the judge, he may make a further allowance from such additional property.* When the allowance is a note, account, debt or cause of action of any kind, secured by mortgage, the executor or administrator shall assign said mortgage and debt, etc., and deliver the evidence of the same to her.'' Temporary allowances may be made to the widow for the support of herself and family under her care, dur- ing any litigation concerning the will, when no provision is made for the widow therein, or she duly waives the same, and on the probate of the will a final reasonable allowance should be made.' An allowance tnay be made to the husband from the solvent estate of his deceased wife, in the same manner as to a widow from the estate of her deceased husband.* I R. S., c. 65, § 21. 2 R. S., c. 65, § 32. 3 R. S., c. 65, § 23. 4E. S., 0.65, §26. 122 PROBATE PRACTICE. Minors. In all insolvent estates, if there is no widow, a like allowance may be made to minor children of the deceased under fourteen, and to those over fourteen if unable to labor from ill health. 1 If there is a widow, and such children by a former wife, the judge may in his discretion divide the allowance among them.^ On the death of either of the adopters of a minor child an allow- ance to such child may be made from the personal estate of the deceased.^ An allowance may also be made to the families of insane persons and spendthrifts.'^ Special administrators may be ordered to pay the widow, or if no widow, to the children under fourteen, an allowance for their temporary support. If the estate is solvent, sums so paid shall be deducted from their distributive shares ; if insolvent, they shall be considered by the judge in his allowance.* Allowances may be made whether the estate is solvent or insolvent, and although all the personal estate was specifically bequeathed ; but they can be made only from personal estate, and not from the proceeds of real estate.^ The statute does not authorize a second allowance, except in case of an estate represented insolvent proving . to be solvent, or when additional personal property belonging to an estate comes to the knowledge of the judge." An allowance is not a matter of right, but rests wholly in the discretion of the court.' No rule can be given which can aid the judge very much in the exercise of this discretion. Every case must be decided according to its own peculiar circumstances. " The judge may make an allowance larger or smaller as the case may seem to require, or dismiss the petition altogether if it appear that, all things considered, no allowance ought to be made."' I R. S., c. 65, § 25. 2 R. s., c. 67, § 33. 3 R. S., c. 66, § 31. i E. t*., c. U, § 83. 5 Paine V. Paulk, 39 Me. 15 ; Brown v. Hodgdon, 31 Me. 65. « R. a, c. 65, § 31. 7 Tarbox v. Fisher, 50 Me. 236. ' Kersey v. Bailey, 53 Me. 198. PETITION SOB ALLOWANCE. 123 It has been held in Massachusetts und,er a similar statute that its purpose is to give to the widow a present and temporary relief for her maintenance until she can receive her distributive share of the estate, or until she can make some arrangement for her support, " but in our state the practical construction has been more liberal, and the power is not to be understood as being confined in all cases to mere temporary relief." ^ 111. [Petition for Allowance to Widow.] To the Honorable Judge of Probate for the county of A. A. B., of C, widow of E. F., late of G., deceased, whose estate is in the course of settlement in the probate court for said county, respectfully repre sents that said deceased died seized and possessed of the following estate, according to the inventory now on file, viz : real estate, $- ; goods and chattels, $ ; rights and credits, $ —; that the debts will amount to about $ ; that said deceased died (insert the words intestate or testate, but insolvent, or testate but having made no provision for his widow in his win, or testate but the provision of whose will made in her behalf she hereby duly waives, as the case may be); that your petitioner has under her care a family of children aged years, and that her circumstances ren- der it necessary that she should have more of said personal estate than she is by law entitled to have on a distribution thereof. She therefore prays that there may be allowed to her out of the personal estate of said deceased, (here state the allowance desired, and whether in money and eifects.) Dated this day of , A. D. . A. B. The practice is to order notice to be given on the petition by publication before making the allowance, unless the parties inter- ested consent in writing that the same be made as prayed for. 112. [ Order of Notice.] STATE OP MAINE. ss. At, &c. [Same as Form 7.] A. B., widow of B. F., late of G., deceased, having presented her petition, for an allowance out of the personal estate of said deceased. Ordered that, &c. [Same as Form 7.] J. L. H., Judg« of Probate. 1 Kersey v. Bailey, 53 Me. 198 ; Oilman v. Oilman, 53 Me, 184, 124 PROBATE PRACTICE. The petitioner must cause the notice- to be given as ordered. The heirs, devisees, creditors, or other persons interested may appear and contest the granting of an allowance. It is no part of the duty of an executor or administrator to do so, unless so requested by some party interested. After the hearing, if the judge thinks an allowance ought to be made, he will make the fol- lowing order : 113. [Decree.] STATE OF MAINE. S9. At, &c. [Same as Form 7. J On the foregoing petition, due notice Iiaving been given thereon pursuant to the order of court, It i8 decreed, that there be allowed to said widow out of the personal estate of said deceased, (here state the sum allowed and whether in money, or effects to be selected by the widow at the appraisal. The judge may also allow certain effects, naming the same.) J. ]j. H., Judge of Probate. 114. {^Petition for Allovmnce to Minors.] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that he is guardian of H. S. and M. 8., aged respectively and years, minor children of E. F., late of G., deceased, leaving no widow, whose estate is In course of settlement in said court, and is insolvent. He therefore prays that there be allowed out of the personal estate of said deceased to said minors, (here state the allowance desired.) Dated this day;of , 18—. A. B. 115. [Order of JV^oiice.] [Same as No. 113.] 116. [Decree.] [Same as No. 113, substituting the word minors for widow.] ORDER OF ALLOWANCE. 125 117. [Order of Allowance.] . STATE OP MAINE. 8S. Peobate Coubt. To R. 8., administrator of the estate of E. F., late of G., deceased. Whereas I have this day decreed that there he allowed to A. B., widow of said E. F., out of the personal estate of said deceased, (here state the sum allowed, and whether in money or effects to be selected by the widow at the appraisal. The judge may also allow certain effects, naming the same.) You are hereby ordered to deliver the same as allowed, and the same will be allowed in your accounts on your exhibiting sufficient evidence that this order has been complied with. In testimony whereof, I have hereunto set my hand and the seal of said court, at a probate court holden at A., within and for said county, on the Tuesday of , A. D. ,.^A^ J. L. H., Judge of Probate. b! The widow should present said order to the executor or adminis- trator, who on paying the allowance should obtain the widow's receipt therefor on the back of the order, and should return and exhibit the same to the judge, in the settlement of his accounts, as evidence of the payment. CHAPTER XIV. PAYMENT OF DEBTS "WHEN THE ESTATE IS INSOLVENT. If the whole estate, real and personal, is not sufficient to pay the debts, allowances and expenses in full, the executor or admin- istrator, after paying the expenses of the funeral, and of admin- istration, is to pay the balance in the following order : 1. Allow- ances to widow and minor children. 2. Expenses of last sickness. 3. Debts entitled to preference under the laws of the United States. 4. Taxes, and money due the state. 5. All other debts ; and the creditors of one class are not to be paid, till those of pre- ceding classes, of which the executor and administrator has notice, are paid.^ The judge is to determine who are the creditors of the fifth class, and the sums due them, from the report of commissioners appointed by him for the purpose of ascertaining the same, and from judgments of common law courts, obtained in actions on claims tried therein, and certified to him, and the same are to be paid by the executor or administrator, as the judge in his order directs.^ Executors and administrators should satisfy themselves within one year from their appointment, whether the estate is solvent or insolvent, and decide whether they should settle it as a solvent or insolvent estate, though they may subsequently elect the latter course at any time if the estate thenr appears to be insolvent. If there is any doubt as to its solvency, the safer course is to set- iR. S., c. 66, § 1. 2 R. S., c. 66, §§ 3, 17, 23 ; Bates v. Ward, 48 Me. 87. INSOLVENT ESTATE. 127 tie it as an insolvent estate. If, however, the ostate is not suf- ficient to pay any portion of the fifth class, the former classes may be paid in their order, to the extent of the funds, without settling it as an insolvent estate, and without creating any liability on the part of the executor or administrator to pay any claim of the fifth class.' If after paying the preferred classes a balance remains, how- ever small, the creditors of the fifth class are entitled to be paid in full, unless the executor or administrator exonerates himself by representing the estate insolvent, and having commissioners appointed.^ If the executor or administrator after an examination,' decides' that he ought to settle the estate as an insolvent one, he must file in court a representation of insolvency, and ask for the appoint- ment of commissioners. He must be able to state the approxi- mate amount of the debts, and satisfy the judge that there is probable cause to believe the estate insolvent. The executor or administrator has not the absolute right of election as to the way in which he will settle the estate ; that lies in the discretion of the judge.^ The " estate " is such only as is included in the inventory.* ' If the estate appears to be insufficient to pay the debts of the fifth class in full, the judge will appoint two or more commis- sioners (usually two) " to receive and decide upon all claims against the estate except those of the administrator." ^ If it is insufficient to pay any part of the fifth class, the appointment will be refused.^ After a representation of insolvency and appoint- ment of commissioners, no suit can be commenced on claims of 1 E. S., c. 66, § 2. 2 Ludwig v. Blackington, 24 Me. 25. 3 B. S., 0. 66, § 3. < Longfellow v. Patrick, 35 Me. 18. 5 R. S., c. 66, §3 ; Laws 1876, c. 84. 6R. S.,c.66, §3. 128 PROBATE PRACTICE. the fifth class, but the estate must be settled as an insolvent one, though it should afterwards prove solvent.^ If any action against the deceased is pending in any common law court at the time when the commissioners are appointed, the executor or administrator should, if cited in, make the fact that the estate has been rendered insolvent appear of record in such court, or he may become personally liable for the whole claim on a judgment rendered thereon. He should also see that provision is made for such claim as for other contingent claims.^ 118. {^Representation of Insolvency.'\ To the Honorable Judge of Probate for the county of A. A. B., of C, administrator of the estate of E. F., late of G., in said county, deceased, respectfully represents that the estate of said deceased is insuf- ficient to pay his just debts, and requests that commissioners may be appointed to receive and decide upon the claims against the same. Dated this day of , A. D. . A. B. 119. {Decree.^ STATE OP MAINE. ss. At, &c. [Same as Form 7.] Upon the foregoing petition, it having been made fully to appear that the estate mentioned therein is insolvent, Ordered that H. P. and T. W., in said county, be appointed commissioners to receive and decide upon the claims against the same, and that a warrant issue to them accordingly. J. L. H., Judge of Probate. » R. S., c. 66, § 17; Hall b. Merrill, 67 Me. 112. '■i Greene v. Dyer, 32 Me. 460 ; Frost o. Dsley, 54 Me. 345 ; Thompson ». Dyer, 55 Me. 99. WARRANT TO COMMISSIONERS. 129 120. [ Warrant to Commissioner s.\ STATE OF MAINE. ss. Pkobatb Cottet. To H. P. and T. W. Greeting. Whereas, representation has been duly made that the estate of E. P., late of G., in said county, deceased, is insufficient to pay all claims against the same in full, I do, therefore, by virtue of the power vested in me, hereby appoint you commissioners to receive and decide upon all claims against said estate, except those of the administrators, and make report thereon. 1. Before entering upon your duties, you will make oath before some per- son authorized to administer oaths, that you will faithfully and impartially perform the duties required of you by this warrant. 2. You will appoint convenient times and places for your meetings, and give notice thereof by advertisement in some newspaper printed in said' county three weeks successively before your first meeting. ■ 3. You will require said claims to be presented in writing, supported by the affidavit of the claimant or of some person cognizant thereof, stating the amount due at the time of the death of the deceased, what security the claimant has, if any, and the amount of credit to be given in set-off accord- ing to his best knowledge and belief. 4. K any creditor holds security for his claim of less value than the amount due him, you will state the amount allowed on the claim and the value of the security, but you will allow only the difference between such amount and the value of said security. 5. Interest is to be cast on all claims allowed by you, from the death of the deceased to the time of making your report, unless the contract other- wise provides. 6. You may at your discretion require any claimant to be sworn, and examine him in all matters relating to his claim, and may yourselves admin- ister oaths to claimants and Witnesses. 7. Six months from the date hereof are allowed for the presentation of claims, at the end of which time you will return this warrant into our said court, with a list of all the claims presented, whether allowed or not, and the sum allowed on each. 8. If any such claim is contingent, you will state in your report the amount allowed thereon and its nature, distinguishing it from other claims. 9. You will specify in distinct lists all claims against the deceased as a member of a partnership. 9 130 PROBATE PRACTICE. In testimony whereof, I have hereunto set my hand and the seal of said court at a probate court, held at A., within and for said county, on the Tuesday of , A. D., . J. L. n., Judge of Probate. M 121. \_Oertificate of Oath.] ss. , 18—. Personally appeared H. P., and T. W., and made oath that they would faithfully and impartially perform the duties required of them by the fore- going warrant. Before me, A. M. P., Justice of the Peace. The commissioners must first be sworn. Their next duty is to give notice of the time and place of their meetings. Six months from the date of the appointment are allowed in the first instance for the presentation of claims,^ and an additional time not exceed- ing, in the whole, eighteen months of actual time^ may be allowed by the judge. The time between the termination of one com- mission and the issuing of another is not to be reckoned. But the commission ought not to be opened after the statute limitation (of two and a half years) has attached.^ In case of death of a commissioner, after expiration of the eighteen months and before the commission is returned, an additional time of three months may be allowed.' No distribution already made can be disturbed by claims presented and allowed at such additional time. 122. [Notice of Appointment.] COMMISSIONERS' NOTICE. The undersigned, having been appointed by the Hon. Judge of Probate for 1 R. S., c. 66, § i. 2 Todd V. Darling, 11 Me. 34; GriflBn «. Parcher, 48 Me. 406; Aiken v. Morse, 104 Mass. 277 j Tarbell v. Parker, 106 Mass. 347. 3 Laws of 1873, c. 38, § 1. PETITION FOR ADDITIONAL TIME. 131 the county of A., on the Tuesday of -, A. D. , commissioners to receive and examine the claims of creditors against the estate of B. F. , late of G., in said county deceased, represented insolvent, hereby give notice that six months from the date of said appointment are allowed to said cred- itors in which to present and prove their claims, and that they will be in session at the following places and times for the purpose of receiving the same, viz: Dated this day of , A. D. . HP) t' W i COMMISSIOHBBS. 123. [Petiiion for additional Time.] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents, that he is a creditor of the estate of E. F., late of 6., in said county, deceased, whose estate has been represented insolvent, that commissioners were appointed at a probate court, holden at A., within and for said county, on the Tuesday of , A. D. to receive and examine the claims of creditors against said estate, and six months were allowed for the creditors to present and prove the same, which time expired on the day of , A. D.; , that your petitioner did not present his claim to said commission during said six months, for the following reasons : . Your petitioner therefore prays that a further time of from the date hereof, may be allowed him to present and prove his claim against said es- tate before said commissioners. Dated this day of , A. D. . A. B. 124. IDecree.] STATE OF MAINE. SB. At, &c. [Same as Form 7.] On the foregoing petition, it is ordered, that a further time of , from the date hereof be allowed to said creditor and all others having demands against the estate mentioned therein, not already presented, to present and prove their claims, and that a warrant for that purpose issue to the commis- sioners named in the first commission. J. L. H., Judge of Probate. 132 PROBATE PRACTICE. 125. {^Additional Warrant.'] STATE OF MAINE. ss. Probate Couet. To , commisaioners to examine claims against the estate of E. F., late of G., deceased, represented insolvent. Greeting. Whereas, A. B., of C-, has represented that he is a creditor of said estate, and that he failed to present his claim within the time limited in yom' first warrant, and it having been ordered that a further time of from the date hereof be allowed him to present the same, you are authorized to receive and examine the claim of said creditor within said time, and also such other claims as may be presented. You will appoint a convenient time and place for said examination, and give fourteen days personal notice thereof to said creditor, and also to the administrator of said estate, and proceed in adjudicating upon the same as is authorized in the warrant to which this is additional. At the end of said time you will return this warrant into our said court, with a list of claims presented, as directed in your first warrant. In testimony whereof I have hereunto set my hand and the seal of said court at a probate court held at A., within and for said county on the Tuesday of ■ A. D. —'— J. L. H., Judge of Probate. {-•■} The judge may revoke the appointment and appoint new com- missioners for sufficient cause. If one of the commissioners dies before the report is made, a new warrant must issue, and claims proved must be presented and proved again.^ 126. {Decree revoking a Wa7'rant.'\ STATE OF MAIKE. ss. At, &c. [Same as form 7.] Ordered, that the decree and warrant appointing H. P., and T. W., com- missioners to receive and examine claims against the estate of E. F., late of G., deceased, represented insolvent, be hereby revoked, (if new commia- 1 R. S., 0. 66, § 3 ; Laws 18V3, c. 38, § 1. PRESENTATION OF CLAIMS. 133 sioners are appointed, add the words, and that E. M., and iV. L., be appoint- ed in their place.) J. L. H., Judge of Probate. What claims should be presented to the commissioners. Claims af the fifth class of all kinds, except claims fully secured and claims of executors and administrators for debts due them from the deceased,^ must be presented and passed upon by the commissioners ; provided that actions on claims of said class, pend- ing when a representation of insolvency is made, may be discon- tinued without coses and the claims presented to the commissioners, or they may be continued, tried, and the judgment, if any, cer- tified to the judge of probate and added by him to the list of debts entitled to dividends reported by the commissioners.^ Pre- ferred claims should not be presented to the commissioners, nor if presented should their report embrace them as such. The authority given them to receive and decide upon " all claims against the estate" does not extend to cases where a different tribunal is clothed with that power.^ Contingent claims and claims not matured must be proved like any others.* The contingency does not relate to the amount due, but to the uncertainty whether any amount will ever become due.^ Examination of claims. Claims must be presented in writ- ing, supported by a written statement of the amount of security, if any, and the amount of credit to be given, signed by the claimant or by some one cognizant of the facts and sworn to, and the commissioners may examine the claimant on oath, and if he refuses to answer, his claim shall be rejected.* The executor or 1 R. 8., c. 66, §§ 3, 8. 2 R. S., c. 66, §§ 13, 16, 17. 3 Flitner v. Henley, 19 Me. 261 ; Bulfinch v. Benner, 64 Me. 404 ; McLean ■B. "Weeks, 65 Me. 411 ; State ». Hitchborn, 65 Me. 504 ; Bates v. Ward, 49 Me. 87. 4 R. 8., c. 66, § 9 ; L. & F. Association v. Oronin, 4 Allen, 144. s Green v. Dyer, 83 Me. 460. 6 r. g., c. 66, §§ 5, 6. 134 PROBATE PRACTICE. administrator should appear in behalf of the estate, and object to any claim which he thinks ought not to be allowed, and should appeal when he thinks the interest of the estate requires it. Witnesses may be heard, on oath, and any competent evidence may be produced for or against the claim. Security held by a claimant of less value than the amount of his claim, should be appraised by the commissioners, and a certificate thereof given to the claimant, and the difference between the same and the amount of the claim allowed. Claims fully secured should -not be presented. When a creditor is in doubt as to the value of his security great caution should be used if he undertakes to prove his claim, lest he be regarded as thereby waiving his security. ^ Interest is to be allowed on all claims entitled to interest, up to the time of the death of the insolvent, in ascertaining the sum then due, and on all claims from that time to the date of their report, unless the contract otherwise provides.^ Report. The report must be made aud returned by the com- missioners' at the expiration of the time limited. If they neglect to return the report for three months after the expiration of the time allowed them for receiving claims, they forfeit all right to compensation for their services, and may be cited before the judge to show cause for their negligence.* Contingent claims and claims not matured must be so designated, and the amount to be allowed stated, if the same can be ascertained. Claims against the deceased as a member of a co-partnership, must be specified in a distinct list, and if the copartnership is being closed up by the surviving partner, the claims should be reported as contingent, it being the duty of the surviving partner to pay them to the extent of partnership funds. Claims disallowed should be reported. If any claim was secured in part, the security must be described and its appraised value stated. 1 R. S., c. 66, § 7 ; Famum at al. v. Boutelle, 3 Me*. 159 ; L. & F. Asso- ciation V. Cronin, 4 Allen, 144. ^ K- 8. , c. 66, § 8. 5 Nelson v. Woodbury, 1 Greenl. 251. < Laws of 1873, c. 116, § 2. REPORT OF COMMISSIONERS. 135 Either party may appear and object to the acceptance of the report, and the judge may recommit it for the correction of errors. ^ If either party is dissatisfied with the valuation of any security, the judge may appoint three disinterested persons to appraise the same, and their appraisal shall be substituted for the first, and the amount allowed varied accordingly.^ The claimant may relinquish the security, and have the appraised value thereof added by the judge to the sum allowed on which he is to receive his dividend.^ The report when accepted becomes conclusive like the judgment of a court. of record, unless appealed from.' Private claims of the executor or administrator against the estate are to be examined by the judge, and, if allowed, by him annexed to the list of claims at the time of the acceptance of the report, or at the settlement of the first administration account.* 127. [^Heport of Commissioners.] To the Honorable Judge of Probate for the county of A. The commissioners appointed to examine the claims of creditors against the estate of E. F., late of G., in said county, deceased, respectfully report that having first been sworn and f iven notice according to law and the order of court of the time and place of hearing, they received and examined all claims presentedagainst said estate, of which the following is a true list, with the sums allowed by us on each stated, viz : — Dated this day of , A. D. . Fees. T. W. 128. \_Order to recommit the Report.'] STATE OF MALNE. ss. At, &c. [Same as Form 7.] ■ ■ Y COMMISSIONBES. Ordered, that the foregoing report of the commissioners on the estate of E. F., deceased, represented insolvent, be recommitted for the correction of errors. ' J. L. H., Judge of Probate. I R. S., c. 66, § 8. 2 R. S., c. 66, § 7. 3 Bates V. Ward, 49 Me. 87. * R. S., c. 66, § 8. 136 PROBATE PRACTICE. 129. ^Decree accepting the Report^ STATE OF MAINE. -88. At, &c. [Same as Form 7.] The commissioners appointed to examine the claims against the estate of E. F.,late of G., in said county, deceased, represented insolvent, having made the foregoing report of the claims presented against said estate and the amount allowed thereon. It is ordered, that said report be accepted and recorded, (and that the following claims of the executor [or administrator] which are hereby allowed, viz: be annexed to the list of claims In said report. ) J. L. H., Judge of Probate. Appeal. The claimant, executor, administrator, heirs-at-law, or any creditor may appeal from the decision of the commissioners, by giving written notice thereof at the probate office, within twenty days after the report is made and accepted.' If the court is not in session, the notice may be filed with the register, who should certify on the same the date of its filing.^ No reasons of appeal need be filed. 130. [Appeal by Claimant.'] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that he is a creditor of the estate of E. F., late of G., deceased, whose estate has been represented insolvent, that he presented his claim against the deceased to the commissioners of insolven- cy on said estate, with whose decision on the same he is dissatisfied, and therefore gives notice that he now appeals from said decision of said com- missioners, and will commence and prosecute an action for the recovery of his said claim. Dated this day of , A. D. . A. B. 1 R. S., c. 66, § 11 ; Bobbins Cordage Co. u. Brewer, 48 Me. 481. 2 Pattee e. Lowe, 35 Me. 131. PAYMENT OF DEBTS. 137 131. [Decree on same.] STATE OF MAINE. • ss. At,- &c. [Bame as Form 7.] Ordered, that the foregoing appeal be filed and recorded, and said claim be deemed contingent. J. L. H., Judge of Probate. 132. [Appeal by administrator, heir, or creditor not a claimant.] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that he is of the estate of E. P., late of Gt., deceased, whose estate has been represented insolvent, that K. S., a creditor of said estate presented his claim against the deceased to the commissioners of insolvency on-said estate, with whose decision on the same, he is dissatisfied, and therefore gives notice that he appeals from said decision of said commissioners. (If not an administrator, add and herewith files his bond as required by law, )^ Dated this day of , A. D. . A. B. 133. [Decree on same.] STATE OP MAINE. ss. At, &c. [Same as Form 7.] Ordered, that the foregoing appeal be filed and recorded, that said claim of R. S., be deemed contingent, and that said appellant cause the said claimant, his agent or attorney, to be duly served with an attested copy of said appeal with this order thereon, within thirty days of the date hereof.^ J. L. H. , Judge of Probate. 134. [ [Appeal Bond, by heir or creditor other than a claimant!] Know all men by these presents, that we, A. B., as principal and C. D. and H. G., as sureties, all of L., in the county of A., are holden and stand firmly bound unto R. W., of T., in the sum of dollars, to be paid to the said R. W., his executors, administrators and assigns, to which payment we bind ourselves, our heirs, executors and administrators jointly and severally. 1 R. S., c. 66, § 11. 138 PROBATE PRACTICE. Sealed with our seals and dated this day of A. D., . The condition of the ahove obligation is such, that, whereas the estate of E. F., late of G., deceased, has been represented insolvent, and the said R. W., claiming to be a creditor of said deceased, has presented a claim for al- lowance against the same to the commissioners appointed to examine claims, which has been allowed by said commissioners and their report accepted, and whereas the said A. B., being an heir (or creditor) of said deceased has appealed therefrom. Now if the said A. B., shall pay all costs awarded against him by reason of said appeal, then the above obligation is to be void. Signed and sealed in the presence of A. B. [l. s. c. D. [L. b: H. 6. [L. B.; STATE OF MAINE. ss. At a probate court holden at A., within and for said county, on the Tuesday of A. D. . The above bond having been examined, is hereby approved, and ordered to be filed and recorded. J. L. H., Judge of Probate. In certain instances, when by accident or mistake there has been an omission to give notice of, or to prosecute an appeal, or to commence an action within the time prescribed, the supreme court may grant leave to commence such action.' When an appeal has been so taken, or leave so granted, the claim is to be determined in an action of money had and received, to be brought by the claimant within three months from the ac- ceptance of the report, or at the next term after leave was granted, in the common law courts,- and the sum found due certi- fied to the judge and entered on the list of debts entitled to divi- dends. When an appeal has been claimed and granted, the parties may refer the claim to the referees appointed by the judge, whose award is final.' iR. S., c. 66, §§ 12, 13. Laws of 1873, c. 36. 2 R. S., c. 66, §§ 13, 14. 3 R. S., c. 66, § 15. PAYMENT OF DEBTS. 139 135. [Agreement to refer.] To the Honorable Judge of Probate for the county of A. A. B., of C, administrator of the estate of E. F., late of G., deceased, represented insolvent, and R. S., of K., a creditor of said estate, respect- fully represent that the said R. S. , presented a claim against said estate, a copy of which is hereunto annexed, to the commissioners of insolvency on said estate, from whose decision thereon an appeal has been taken and allow- ed ; that they have agreed to waive a trial at law and to submit said claim to the determination of referees, whose awai'd thereon, if accepted by your Honor, shall be final, and pray that a rule of court may issue to them accord- ing to law. Dated this day of , A. D. . A. B. R. S. 136. [Decree on same.] STATE OF MAINE. ss. At, &c. [Same as form 7.] On the foregoing petition and agreement. Ordered, that the same be filed and recorded, and that , named therein be hereby appointed referees to determine and award the amount, if any, due said claimant on said claim. The referees will appoint a convenient time and place of hearing, and give the parties interested reasonable notice thereof, and make return of their doings into our probate court as soon as may be. J. L. H., Judge of Probate. A copy of the foregoing petition and decree, attested by the register, delivered to the referees, is sufficient evidence of their authority to act, and they will make their report on the same as follows : 137. [Report of Referees.] To the Honorable Judge of Probate for the county of A. We the referees within named having notified, met and fully heard the parties within named, are of opinion, and do report and award that there is due R. S., from the estate of E. F., late of G., deceased, the sum of dollars. Dated this day of , A. D. . Fees. 140 PROBATE PKACTICB. 138. [Decree on same.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] Ordered, that the foregoing report and award be accepted and recorded, and that said claim be added to the list of debts entitled to dividends ; also that the said administrator pay the costs of said reference, amounting to dollars, and be allowed therefor in his account. J. L. H., Judge of Probate, Contingent and other claims. The judge ordering distribution is to direct a sufficient sum to be left in the hands of the exe- cutor or administrator to pay on all claims appealed, or pending in court, or before referees, and all contingent claims reported by the commissioners, the same per centage paid to others.' If within four years after administration is granted, any con- tingent claim becomes absolute, it is to be paid the same per centage as other claims, if it can be done without disturbing prior dividends ; and it is the duty of the executor or administrator, and not of the claimant, to see that such claim is added by the judge to the list of debts entitled to dividends and paid.^ If the exe- cutor or administrator does not have it so added and paid, the judge on petition may order it to be added and the dividend thereon to be paid.^ The right to have it added does not depend on the reservation of funds, for it is the duty of the executor or administrator to reserve funds.'' If it does not become absolute within that time it is barred, and any funds reserved are to be dis- tributed to the other creditors.' 139. [Petition to have Claitn added and paid.] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents, that he is a creditor of the estate of 1 R. S., c. 66, §§ 9, 13. 2 Green v. Dyer, 32 Me. 460. 3 R. S., c. 66, § 10. PAYMENT OF DEBTS. 141 B. F., late of 6., deceased, whose estate has been represented insolvent, that the claim of your petitioner was presented to said commissioners from whose decision an appeal was talien and allowed, ( or who reported the same as con- tingent,) that your petitioner has recovered judgment against said estate in the sum of dollars, (or that said claim has become absolute), and there- fore prays that the same be added to the list of debts entitled to dividends and ordered to be paid. Dated this day of , A. D. . A. B. For order of Notice to the Executor or Administrator, see Form No. 64. 140. [Decree ordering Claim added and paid.] STATE OF MAINE. ■ ss. At, &c. [Same as Form 7.J On the foregoing petition. Ordered, that the claim of the said A. B., amounting to dollars be added to the list of debts of E. F., deceased, entitled to dividends, and that R. S., administrator of the estate of said de- ceased pay to the said A. B., the sum of dollars, being the same per- centage paid on other claims. J. L. H., Judge of Probate. The executor or administrator must convert the goods and chattels, and rights and credits into money, and settle his account of the personal estate^ within six months from the time when the commissioners' report is accepted, or within such further time as the judge allows. Neglect thus to settle will be deemed a breach of his bond and render him liable to pay the debts in full,^ the ob- ject of this account being "to determine the amount of assets in his hands subject to the claims of creditors.'" The account thus settled will show the amount in his hands to be distributed, which the judge will at once order to be paid out, re- 1 Butler V. Ricker, 6 Me. 268. 2R. S., c. 66, § 19. Dickinson ». Bean, 11 Me. 50. Eaton v. Brown, 8 Me. 22. 3 Butler J). Ricker, 6 Me. 268. 142 PROBATE PRACTICE. serving a sum sufiBcient to pay contingent and appealed claims, provided that no such order shall be made within thirty days from the time when the report is made.' Further orders of distribution will be made as the case requires. 141. [^Order of Distribution.] STATE OF MAINE. ss. Peobate Court. To B. S., administrator of the estate of E. F., late of G. deceased. Greeting. . Whereas, the estate of said deceased has been represented insolvent, and commissioners have been appointed to receive and examine the claims of the several creditors thereof ; and whereas they have made their report and re- turned a list of all the claims presented to them, with the sums they allowed on each, which after striking out claims appealed, and adding thereto claims ordered by me to be paid, amount in the whole to the sum of dollars; and whereas, there remains in your hands a balance of dollars for dis- tribution ; you are hereby ordered to retain the sum of dollars for the payment of contingent claims, future charges of administration, actions pending when said estate was rendered insolvent, and claims on which appeals have been taken, and the balance, amounting to dollars, you will pay and distribute accordiujg to the following schedule, (insert the names of cred- itors and amount to be paid each.) In the settlement of your next account, which you will make as soon as you shall have completed said payments, you will exhibit to the judge of the probate court this order with the signa- tures of the payees thereon, or other evidence that said payments have been truly made. In testimony whereof, I have hereunto set my hand and the seal of said court at a probate court, held at A., within and for said county, on the — Tuesday of , A, D., . J. L. H., Judge of Probate. L. 8. >■ The principles of law and practice relating to insolvent estates of deceased persons, are applicable to the estates of insane per- 1 B. S., c. 66, § 33. PAYMENT OF DEBTS. 143 sons and spendthrifts ;' also to estates in the hands of executors when they have given bond as residuary legatees and the estates are found to be insufficient to pay the debts^ ; to co-partner- ship estates settled by the surviving partner ;' and to insolvent estates of deceased residents of other states leaving property in this state.* 1 R.. S., c. 66, § 31. 2 R. S., c. 66, § 22. 3 R. S., c. 69, § 6. ■> R. S., c. 65, §§ 37, 38. CHAPTER XV. DECEASED PARTNERS. Upon the death of a member of a copartnership, the surviving partner has the prior right to the possession of its property and to close up its affairs. If he neglects to do so the executor or administrator must retain the property and administer on the same.' If the surviving partner elects to settle the copartner- ship affairs himself, he should file a petition therefor. 142. [Petition of surviving Partner.] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that he Is a surviving partner of the late firm of B. and C, consisting of A. B. and D. C, that said D. C, died on the day of A. D. , and that your petitioner desires to retain and to have control of the property of said late partnership and close up its affairs. Dated this day of , A. D, . A. B. 143. [Decree.] STATE OF MAINE. ss. At, &c., [Same as Form 7.] Upon the foregoing petition, ordered that the said A. B., be permitted to retain the property and close up the afEairs of the said late copartnership, he first giving bond in the sum of dollars. J. L. H., Judge of Probate. The survivor must then file a bond with sufficient surities, con- ditioned as herein stated.^ Until he has given such bond he has no right to dispose of any of the partnership property.' ' R. S., c. 69, §§ 1, 4. 2 R. 8., c. 69, § 3. 3 Cook V. Lewis, 36 Me. 340. DECEASED PARTNERS. 145 144. [Bond of surviving Partner.'] f Penal clause same as bond of executors, No. 36. ) The conditions are as follows : — The conditions of this obligation are such, that if the above bounden A. B., the surviving partner of the firm of B. & C, doing business in L., in said county, said firm consisting of said A. B. and J. C, late of L., in said county deceased, shall, — First, Use fidelity and due diligence in closing the affairs of the late part- nership aforesaid ; Second, Shall apply the property thereof towards the payment of the part- nership debts ; Third, Shall render an account on oath, to the judge of probate, when required, of all the partnership affairs, including property owned, debts due, to and from, the amount received and collected, and the amount paid ; and Fourth, Shall pay to the executor or administrator of said deceased, his proportion of any balance remaining after settlement, within one year after the date of this bond, unless a longer time shall be allowed by the judge ; Then this obligation shall be void; otherwise it shall remain in fuU force. Signed and sealed in presence of At, &c.. A. B. [L. s.] M. P. [L. s.] R. S. [l. s.] 145. STATE OF MAINE. [Same as Form 7.] The above bond having been examined, is hereby approved, and ordered to be filed and recorded. J. L. H., Judge of Probate. 146. IZetters to surviving Partner.] STATE OF MAINE. ss. Peobatb Cotjet. ToA. B., Greeting. Whereas J. C, late of L., in said county, deceased, was a member of the firm of B. & C. , consisting of , and whereas you have prayed to be allowed to control the property of said partnership and close up its affairs, and have given bond as required by law. I do therefore hereby authorize you to take possession of said property and close up the affairs of the said copartnership, 10 146 PROBATE PKACTICB. and you are hereby directed. 1. To use fidelity and due diligence in the performance of your said duties. 3. To apply said property towards the payment of the partnership debts. 3. To render an account on oath to the judge of probate, when required, of all the partnership affairs, includ- ing property owned, debts due to and from, the amount received and col- lected, and the amount paid. 4. To pay the executor or administrator of said deceased his proportion of any balance remaining after the settlement of said partnership affairs, within one year after the date hereof, unless a lon- ger time shall be allowed by the judge. In testimony, &c., (same as No. 42.) ^o>_, J. L. H., Judge of Probate. If, on being cited, the survivor neglects to accept the trust and give the required bond, the executor or administrator is to give such bond with the necessary variation, take possession of the pro- perty, and administer on the same.* 147. [Petition of JExecutor or Administi'ator to administer Partnership Property.'] To the Honorable Judge of Probate for the county of A. T. W., of C, administrator of the estate of J. C, late of L., deceased, respectfully represents that said deceased was a partner of the late firm of B. and C, consisting of A. B. and J. C, that A. B., surviving partner of said firm, neglects and refuses to give the bond required by law and close up the affairs of said partnership. Wherefore your petitioner prays that he may be allowed to take possession of the property belonging to said part- nership and close up the affairs thereof. Dated this day of A. D. T. W. 148. [Order of Notice J\ STATE OF MAINE. ss. At. &c., [Same as Form No. 7.] Upon the foregoing petition, Ordered, that A. B., surviving partner be cited, &c. [Same as Form 64.] ' R. S., 0. 69, § 4. DECEASED PARTNERS. 147 For manner and form of return of service, see No. 3, and remarks on same. 149. [Decree.] STATE OP MAINE. ss. At, i&c, [Same as Form 7.] Upon the foregoing petition, due notice having been given thereon to the surviving partner pursuant to order of court and he having neglected to give the bond required by law ; ordered that the administrator of the estate of J. C. be authorized to take possession of said partnership property and close up the affairs of said partnership, he first giving bonds in the sum of dollars. J. L. H., Judge of Probate. The conditions of the bond of the executor or administrator so taking possession of partnership property are the same as those in the bonds of the surviving partners. See form of bond No. 144. Surviving partners are to exhibit to executors or administrators all partnership property for appraisal, and if the latter administer, must deliver the same to them, and also all books, notes, docu- ments, and papers pertaining thereto, and give them all reason- able information concerning the partnership affairs. If they neglect to do so, the judge after citing them to show cause may commit them to the county jail until they comply, or are released by the executor or administrator, or by order of the supreme court.i 150. [Complaint against surviving partner.] To the Honorable Judge of Probate for the county of A. T. W., of C, administrator of the estate of J. C, late of G., deceased, re- spectfully represents that said deceased was a partner of the late firm of B. and C, consisting of A. B. and J. C, that A. B., surviving partner has neg- lected and refused to , wherefore he prays that the said A. B. may be cited to appear before your Honor and show cause why he has so refused and neglected, and that such further proceedings may be had as the law requires. Dated this day of , A. D. . T. W. IE. S.,c. 69, §5. 148 PROBATE PRACTICE. 151. l^Order of JVotice.] STATE OP MAINE. ss. At, &c. [Same as Porm 7.] On the foregoing petition, ordered tliat the said H. B., be cited to appear, &c., (same as form No. 64.) 152. [ Warrant to Gotnmit.'] STATE OF MAINE. ss. To the sheriffs of our respective counties or either of theu' de- puties. Greeting. Whereas T. W., of C, administrator of the estate of J. C, late of L., deceased, has duly filed a petition in our probate court alleging that said de- ceased, was a partner of the late firm of B. & C, consisting of A. B. & J. C.i that the said T. W., has been duly authorized to take possession of the pro- perty of said copartnership and administer the same, that the said A. B., surviving partner of said firm has refused to ; and whereas the said A. B. has been duly cited to appear in said court and show cause why he has so refused, and make answer to said petition, and has refused to so appear and answer. Therefore, the truth of said allegations having been made fully to appear, you are hereby commanded in the name of the State of Maine to take the body of the said A. B., and him commit to the keeper of our jail at A., in said county of A., and the keeper thereof is hereby ordered to receive the said A. B. into said jail, and him safely keep until he complies with the order of court, or is released by the executor or administrator of said estate, or by order of the supreme court. In testimony, &c., (same as No. 43.) ^^j.^ J. L. H., Judge of Probate. {.J One year is allowed for closing up the copartnership affairs, but the judge may on application extend the time therefor.' 153. [Decree extending time to close up the Partnership Affairs.] STATE OF MAINE. ss. At, &c. [Same as Porm 7.] A. B., of C, surviving partner of the late firm, consisting of A. B. & J. 1 R. S., c. 69, § 3. DECEASED PARTNERS. 149 C, having taken possession of the property of said partnership for the pur- pose of closing up its affairs and given the bond required, Ordered that the time for closing up such partnership affairs be extended to the day of A. D. J. L. H. , Judge of Probate. Executors and administrators must return an inventory of the partnership property, though the same is retained by the sur- vivor.' The provisions of law relating to exorbitant, unjust or illegal claims against deceased persons apply to claims against a partnership.^ If a partnership is insolvent its estate may be settled like the estate of a deceased insolvent person.^ License may be granted to sell copartnership real estate for the purpose of paying partner- ship debts.' The statutes do not require of the surviving partner any inven- tory, neither is he required to account within any fixed time, but only when ordered to do so by the judge. When the executo;r or administrator is satisfied that the affairs of the partnership have been faithfully closed up, and that the amount received from the survivor is the just and correct proportion of the balance due to the deceased, no account is usually required ; .but the judge may on petition of the executor or administrator cite the surviving partner to render an account, and may adjudicate thereon as if he were an administrator.* Should the person who has given bond to administer upon a partnership estate die before completing administration, the judge may commit administration upon the estate not already administered to such person as he thinks fit; who shall give the requisite bond.' 1 Ante. chap. x. R. S., c. 69, § 1. — 2 B. 8., c. 69, § 6. Ante, chap, xii & xiv. » Laws of 1871, c. 225. * R. S., c. 69, § 3. See post chap, xvii on Accounts. 5 Laws 1876, c. 116. See Forms 51,53 and 53. CHAPTER XVI. SALES OF REAL ESTATE. Statutory provisions. Judges of probate may license execu- tors and administrators in the county where they were appointed, to sell, lease, or exchange any real estate, or any interest therein, situated in any county in this State, as follows.^ 1. So much thereof as may be necessary to pay the debts, legacies and ex- penses of sale and of administration. 2. The whole, or such parts thereof as will not injure the residue, for said purposes, when it appears by the petition and proof that a sale of any portion would greatly depreciate the value of the residue, 'i. Wood and timber standing thereon, for the payment of debts, when it appears to be for the advantage of those interested. 4. Real estate held in mortgage or execution, and the right of redemption foreclosed. 5. Real estate held by a copartnership when a member has deceased.^ 6. Any land warrant issued by act of congress. They may also license the guardians or friends of minors and other incapacitated persons to sell, lease, or exchange for other real estate, a portion of the real estate of their wards, or any trees or timber standing thereon, for the payment of debts, ex- penses of guardianship and support of their wards, and to pro- vide a reasonable sum in anticipation of accruing expenses, when there is not sufficient personal property therefor, exclusive of such as the judge deems proper to be reserved, also to sell and place the proceeds at interest, also to sell for said purposes the whole, or such parts as will not injure the rest, when it appears by peti- 1 R. B., c. 71, § 1. Laws of 1875, c. 51. 2 Laws of 1871, c. 235. SALES OF REAL ESTATE. 151 tion and proof that the residue would be greatly depreciated by a sale of any portion. ^ If it is sold by a friend the proceeds should be paid to the guardian. They may also license the guardian or husband of an insane wife resident in the county to sell, on such terms as the judge deems proper, any real estate held by him in right of his wife, or any of her rights of dower ; also guardians to release their wards' claims for damages, when any highway, railroad or canal is authorized to be constructed through their land, or any dam is constructed so that such land is liable to be flowed.' They may also authorize executors, administrators, or other persons, when a part or all of the heirs live in different states, or when the estate is devised in undivided shares to different persons residing in different states,^ if such heirs or devisees cannot dis- pose of their separate interests, without loss, to sell such real estate and distribute the proceeds among the heirs, unless some owner objects.^ They may also authorize executors or administrators of persons deceased out of tlie state, and guardians of wards living out of the state, on proof of their appointment in such other state, to sell and convey any real estate in their county, as if such persons had died, or such wards lived, in this state, and such executors, administrators and guardians had been here appointed.' They may license the executors or administrators of deceased executors and administrators, who held at the time of their death land taken by them on execution, to sell and convey the same.' NOTES. It is a well settled principle of law that upon the death of a per- son his real estate instantly descends to his heirs or vests in his devisees.' If needed for the payment of debts, legacies, expen- iB. S., c. 71, §1. Laws of 1875, c. 51. 2 Laws of 1871, c. 312. 8 R. 8., c. 71, § 14. 4R. S., c. 65, §34. 5 Ante. chap. ix. 152 PROBATE PRAOTIOB. ses, &c., it may be taken from them, not as the real estate of the deceased, but as the real estate of heirs or devisees inherited from the deceased, or devised by him, subject to the liability of being taken for the payment of debts. Nothing is to be presumed in favor of the right to divest the heir or devisee of his title. The authority so to do is derived solely from the statutes, and the pro- visions thereof must be strictly complied 'with.^ Lands of which the deceased died seized in fee simple, or fee tail, general or special, and all which he had fraudulently conveyed, or of which he was colorably disseized to defraud creditors, may be sold for the payment of debts when necessary.^ But real estate specifically devised is not liable to contribute to the payment of legacies on deficiency of personal estate unless specially charged.^ The petition, which must be filed in writing in the county where the petitioner was appointed, and which may be filed at any time as soon as the necessity exists, must allege sufficient facts to give the court jurisdiction and power to authorize the sale.* 154. \_Peti(ion to sell — so much.] To tlie honorable judge of probate for the county of' A. A. B., of C, executor of the will of, (or administrator of the estate of) B. F., late of G., deceased, (or guardian of H. P., a minor or insane per- son) respectfully represents that the amount due from the estate of said deceased (or from said minor or insane person) for the payment of debts, legacies and expenses of administration, (or the support of said minor, expenses of guardianship, &c.,) as near as can be ascertained is dollars, that the value of the personal estate of said deceased, (or minor, &C.,) available to pay the same, does not exceed dollars and is insufBcientto pay the same, by the sum of dollars, and that a sale of some portion of the real estate of said is necessary for the payment of said defici- ency. Wherefore your petitioner prays for license to sell for the payment of 1 MitcheU ». Lunt, 4 Mass. 654 ; Boynton v. R. R. Co., 4 Cush. 467. 2 R. S., c. 71, § 22. 3 Hayes v. Seaver, 7 Maine, 337. * Overseers e. Gullifer, 49 Maine, 360. SALES OF REAL ESTATE. 153 (the purpose must be fully stated) at (public or private) sale, so mucli Of the following described real estate of said deceased (or minor, &c.,) as wiU raise the last mentioned sum, viz : fhere give a description of the real estate to be sold as particularly as in a conveyance.) Dated this day of A. D. . A.B. 155. [Petition to sell — whole or part.] The allegations are the same as in No. 154. Wherefore your petitioner prays that inasmuch as by a sale of any por- tion of said real estate, the residue would be gi-eatly depreciated in value, he may be licensed to sell for the payment of said (state the purpose fully) at (public or private) sale the whole of the following described real estate of said deceased (or said minor, insane, &c,) viz : (this may be the whole of the real estate, or such part as will not injure the residue. ) Dated this day of , A. D. A. B. 156. [Petition to sell and invest or lease or exchange.'] To the Honorable Judge of Probate for the county of A. A. B., of £)., guardian of M. P., minor (or an insane person, &c.) respect- fully represents, that said ward (or insane, &c.) is seized and possessed of the following described real estate, viz : That it would be for the benefit of said ward, (or insane, &c.) to have the said real estate sold and the proceeds thereof put at interest, (or leased or exchanged. ) Wherefore your petitioner prays that he may be licensed to sell at (public or private) sale, and convey (or lease or exchange,^ the same for the purpose aforesaid. Dated this day of , A. D. . A. B. 157. [Petition to sell Real Estate held in mortgage or execution and distribute proceeds.] To the Honorable Judge of Probate for the County of A. A. B., of C, administrator of the estate of E. P., late of Gr., in said county, deceased, respectfully represents that he holds in his said capacity the fol- lowing described real estate, taken in mortgage (or on execution) the right of redemption being foreclosed, and prays that he may be authorized to sell the same and distribute the proceeds, viz : (here describe the real estate. ) Dated this day of , A. D. . A. B. 154 PKOBATE PRACTICE. Petitions to sell wood and timber must allege that the sale would be for the advantage of those interested in the estate. Advantageous offer. If the petitioner desires license to sell and accept an offer for the real estate deemed bj him to be an advan- tageous one, the foregoing petitions may be changed by striking out the words "at public or private sale," and inserting the words to accept an advantageous offer therefor of dollars. It is believed that the foregoing forms of petition can be used, with slight changes which can be readily made, in all cases where license is desired to sell real estate. The judge on receiving either of said petitions will appoint a time and pla'ce of hearing, and order public or personal notice thereof to be given to all persons interested in the estate to be sold, if the same is of the value of fifty dollars, unless all parties inter- ested therein consent in writing to the sale.^ If any interested - party resides out of the state, such special notice is to be given as the judge directs.' 158. \_Consent to the sale hy interested parties.'] We, the undersigned, being all tlie parties interested in the real estate de- scribed in the foregoing petition, hereby consent that the same- be sold, and that said petition be granted. G. H. L. P. If any minors or other incapacitated persons are interested in the real estate to be sold, and have no guardians, permanent or ad litem, guardians should always be appointed and notice given to them of the pendency of the petition, although the statute no where expressly requires it.^ 159. [^Order of Public Notice.] STATE OP MAINE. ss. At, &c. [Same as Form 7.] A. B., administrator of the estate' of E. F., late of 6., deceased (or guar- iR. S., c. 71, § 5, c. 63, §35. '■^ For form of appointment see Ante chap, vii. Form No. 67. SALES OF REAL ESTATE. 155 dian of H. B., a minor or insane person) having filed a petition for license to sell certain real estate of said deceased (or minor, &c. ) for purposes therein named. Ordered that said petitioner give notice, &c., (same as No. 7.) 160. [Order of Personal JVoiice.] First part same as the above. The order is that said petitioner cause H. J. L. P., &c., to be served with an attested copy of said petition with this order thereon, that they may appear, &o., (same as No. 64.) (For manner of ser- vice and form of return see No. 3, and remarks thereon.) It is the duty of the petitioner to see that notice is given as directed. Hearing. At the hearing, the petitioner after proving that notice has been given as ordered, must satisfy the judge of the truth of the allegations in the petition. They are not to be pre- sumed to be true, if no objection is made, as in the common law courts, but "the facts must be made to appear.'" For this pur- pose the judge may examine on oath the petitioner, any witnesses offered,^ and hear any evidencfe tending to prove the facts alleged. Interested parties opposed may appear and object and be heard by themselves and witnesses, and in case of the sale of the real estate of wards, both heirs apparent and heirs presumptive, (those persons who have an indefeasible right and those who now have a right, though liable to be defeated) are considered as interested.^ The petition is addressed to the discretion of the court.* If the petition is to pay debts, legacies and expenses, the necessity of the sale must, of course, be clearly shown.i For this purpose the petitioner must be prepared to show the amount of the available personal estate, the amount of the debts, and that they are such as can be enforced at law; for since executors and administrators are not authorized to pay a debt which is barred, there can be no legal necessity of selling real estate if the debts cannot be legally enforced.* The lien on real estate ceases when the debt become 1 Gross V. Howard, 53 Me. 192. 2 r. g.^ g. 71, § 9. 3 R. S., c. 71, §.24. * NoweU v. NoweU, 8 Me. 320. 156 PROBATE PRACTICE. barred.^ It is not necessary to prove that the debts are absolutely due, or that the amount of the same be determined by judgment of court, referees or commissioners, but the judge must be reason- ably satisfied that they are due and that the amount is as stated in the petition. It is sometimes the practice, and always advisa- ble, to accompany the petition with a list of the debts, but it is not absolutely necessary. The same may be alleged in gross, but at the hearing the executor or administrator should be examined as to the separate debts. It is not for the judge to investigate the title to the real estate on a petition for license to sell.^ If the petition is to sell the real estate of any ward, not a minor or insane, the petitioner must file a certificate of the overseers of the poor of the town where the ward lives, if in this state, giving their consent to the sale, and stating their opinion as to the sum of money proper to be raised, and whether it is necessary to sell a greater amount to prevent injury to the residue.' 161. \App7'oval of Overseers of the Poor.] We the undersigned overseers of the poor of the town of where the within named resides, hereby consent that the real estate of the said may be sold as within prayed for, and also certify that it is proper to raise thereby the sum of dollars. Dated this day of , A. D. . A. B. CD. E. F. If the petition is to sell the real estate of a person deceased out of the state, or a ward resident in another state, it must be accom- panied by a duly authenticated copy of the appointment of the petitioner in such other state, by a court having jurisdiction.* After examining said copy and ordering it to be allowed, filed and recorded, the judge may license the sale prayed for.' 1 Newell V. Bragdon, 14 Me. 320 ; Heath v. Welles, 5 Pick, 139. 2 Red. on Wills, vol. 3, 133. « R. S., c. 71, § 10. * See remarks on probate of foreign wills, page 30. «R. 8., c. 71, §15. SALES OE REAL ESTATE. 157 Sale prevented — how. No license shall be granted if any inter- ested party gives bond to the executor, administrator or guardian, in such sums and with such sureties as the judge approves, to pay all sums for which the license is asked, so far as the personal estate is insufficient.! 162. [Bond to prevent sale of real estate.^ Know all men by these presents, that we A. B. , as principal, and CD. and E. F., as sureties, all residents of the county of P., in the state of M., are holden and stand bound and obliged unto P. W., of K., in the sum of dollars to be paid to the said P. W., his executors, administrators or assigns, to the true payment whereof we bind ourselves, our heirs, executors and ad- ministrators jointly and severally by these presents. Sealed with our seals and dated this day of , A. D. The condition of this obligation is such that whereas the said P. W., in his capacity as , has presented to the probate court for the county of A., his petition for license to sell the real estate of the said for the purpose of , and whereas the said A. B., is interested in said estate as ■, and is desirous that said real estate should not be sold. Now therefore if the said A. B., shall pay all the sums for the payment of which said license is asked, so far as the personal estate of said is insufficient therefor, then this obligation shall be void, otherwise it shall remain in full force. Signed and sealed in the presence of A. B. [l. s." C. D. [L. s.° H. G. [l. s.' 163. STATE OF MAINE. ss. At, &c. [Same as Form 7.] The above bond having been examined is approved, and ordered to be filed and recorded. J. L. H., Judge of Probate. If the facts alleged in any petition for the sale of real estate are proved, and the judge is of opinion that it should be granted, he will make the following decree, which, if not appealed from, has been held to be conclusive as to whether a sale of a part would injure the residue.^ The license to sell, however, is not conclusive 1 B. S., c. 71, § 6. 2 Allen v. Ashley, 103 Mass. 363. 158 PROBATE PRACTICE. upon the question of the existence of the debts alleged to be due from the estate ; and when there are no such debts, it has been held that the license is wholly void and the purchaser of the es- tate derives no valid title by a sale to him, by virtue of such license.' 164. [Decree licensing sale of real estate.] STATE OF MAINE. SB. At, &c., [Same as Form 7.] On the foregoing petition, notice of the time and place of hearing thereon having been given according to law, and pursuant to the order of court, to all persons interested in the real estate described therein, and the facts therein stated having been made fully to appear. It is decreed, that said petitioner be licensed to sell at sale and convey the real estate described in said petition, which he has prayed for license to sell, for the purpose named therein, he first giving bond in the sum of hundred dollars. J. L. H., Judge of Probate. (In case a non-resident^ estate, add after "appear," and it also having been made to appear that the copy of the appointment of the petitioner is duly authenticated, and that the court making said appointment had jurisdiction, and after "decreed," that said copy be filed and recorded, and if to accept an offer, insert after "licensed," to accept said offer.) 165. \_£ond on being licensed to sell real estate.f Know an men by these presents, that we, A. B., as principal, and C. D., and H. B., as sureties, all of L., in the county of A., and State of Maine, are holden and stand firmly bound and obliged unto Hon. J. L. H., judge of probate for the county of A., in the full and just sum of dollars, to be paid unto the said judge, or his successors in ofiBlce, — to the true payment whereof we do bind ourselves, and our heirs, executors and administrators, jointly and severally, by these presents. Sealed with our seals. Dated the Tuesday of , in the year of our Lord one thousand eight hundred and . 1 Aiken v. Morse, 104 Mass. 377. Lamson v. Shutt et al., 4 Allen, 359. But see Hall v. Woodman, 49 N. H., 395 ; Gordon ». Gordon, 55 N. H., 399; Doolittle v. Holton, 38 Vt., 819; Graham ». Linden, 50 N. r.,550, where a different rule seems to prevail. 2B. S., c. 71, §§ 14, 15. 3 R. S., c. 71, § 3. SALES OF REAL ESTATE. 159 The condition of the above obligation is such, that, whereas the said A. B., in the capacity of , at a court of probate held at A., within and for the county of A., on the Tuesday of eighteen hundred and , has been authorized and empowered to sell and convey the real estate belonging to . Now if the said A. B., shall well and truly observe all the provisions of law for the sale, leasing or exchange of real estate by executors, administrators and guardians, and use due diligence in executing the trust, and truly apply and account for the proceeds of the sale according to law, then this obligation shall be void, otherwise shall be in full force and virtue. Signed, sealed and delivered in presence of 166. STATE OF MAINE. -S3. At, &c. [Same as Form 7.] A. B. [s.] C. D. fs.] H. B. [s.] The above bond having been examined is hereby approved, and ordered to be recorded. J. L. H., Judge of Probate. If the bond is satisfactory to the judge he will approve the same in writing,^ and thereupon issue the license. He should state therein whether the estate shall be sold at public auction or private sale. All sales must be at public auction, unless otherwise specified,' but the judge may authorize the estate to be sold from time to time at private sale, and with or without notice being given that the estate is for sale.' If any notice is required to be given, it should be inserted in the license and given accordingly.' The judge may license the sale for a certain sum offered,' but it is safer and better to obtain license to sell at private sale, for if the offer should be withdrawn, the license would be valueless, and under a license to sell at private sale the offer may be ac- cepted. Sometimes licenses are granted authorizing the sale at public or private sale ; though a person licensed to sell at private sale may sell at auction, by complying with the requirements of law.' > Austin V. Austin, 50 Maine, 74. 2 R. S., c. 71, § 3. 3R. S., c. 71, §11, 160 PROBATE PRACTICE. When a part of the real estate is devised, and it is necessary to sell a portion of the real estate, the part undevised is to be sold in exoneration of that devised, unless the will otherwise directs, and the judge may in any case direct what particular por- tions, and in what order the real estate shall be sold.^ 167. [License to sell Real Estate — Public Sale.] STATE OF MAINE. ss. Pkobatb Couet. To A. B., &c. Greeting. Whereas, at a probate court holden at A., within and for said couiity, on the Tuesday of A. D., , you duly presented a petition praying for license to sell certain real estate of described therein ; and whereas, after due notice, it was decreed that license be granted : Tou are therefore hereby authorized and licensed to sell at public auction and convey the real estate which you have prayed for license to sell in your said petition and des- cribed therein, for the purposes therein specified. 1. Before fixing on the time and place of sale you will take the oath pre- scribed by law before the judge of probate or some justice of the peace, whose certificate you will return into our said court, to the end that it may be there filed and recorded. 3. You will give notice of such sale by causing an advertisement thereof to be published three weeks successively in the , a newspaper printed at L., in said county, the first publication to be thirty days before the sale, or by posting up notices within said lime, in some public place in the town where the estate lies, and in two adjoining towns and in the town where said deceased dwelt, for where the ward resides^. 3. Within eighteen months after the sale, you are to file in the probate court for said county, one of t the original advertisements of the time, place and estate to be sold, or a true copy thereof, together with your affidavit or that of the person employed by you to give such notice, made before the judge of probate or some justice of the peace, in order that evidence of said notice may be perpetuated. 4. This license will remain in force one year from the date hereof and no longer. 5. Any sale duly appointed and notified may be adjourned for a time or times within said year, not exceeding fourteen days in all, by giving such reasonable notice thereof as circumstances will permit. 1 R. S., c. 71, § 31, c. 74, § 13. SALES OF REAL ESTATE. 161 6. You will charge yourself, in your account of administration, with the proceeds of said sale, noting in your final account the surplus thereof remain- ing, to the end that the same may be distributed among the same persons and in the same proportions as the real estate would be by law. In testimony whereof, I have hereunto set my hand and the seal of said court, at a probate court held at A., within and for said county, on the Tuesday of , A. D. 18—. J. L. H., Judge of Probate. pi 168. \_Lice7cse to sell Real Estate — Private Sale.'] STATE OF MAINE. , ss. Probate Coitet. To A. B., &c. Greeting. Whereas, at a probate court holden at A., within and for said county, on the -^ — Tuesday of , A. D. 1& — , you duly presented a petition praying for license to sell certain real estate of said described therein : and whereas, after due notice, it was decreed that said license be granted : You are therefore hereby authorized and licensed to sell at private sale and con- vey the real estate which you have prayed for license to sell in your said peti- tion, and described therein, for the purposes therein specified. 1. Before fixing on the time and place of sale you will take the oath pre- scribed by law before the judge of probate or some justice of the peace, whose certificate you will return into.our said court, to the end that it may be there filed and recorded. 2. You are hereby authorized to sell said real estate without giving any public notice of the time and place of the sale thereof, if in your judgment the interests of all concerned will not be injured thereby. 3. This license will remain in force one year from the date hereof, and no longer. 4. You will charge yourself, in your account of administration, with the proceeds of said sale, noting in your final account the surplus thereof remain- ing, to the end that the same may be distributed among the same persons and in the same proportion as the real estate would be by law. If you sell real estate at public afiction, which you are hereby authorized to do, by complying with all the provisions of law for sales at auction, you are hereby directed, in addition to the foregoing requirements in case of pri- vate sale, — 11 162 PROBATE PRACTICE. 1. To give notice of such sale by causing an advertisement thereof to be published three weeks successively in , a newspaper printed at L., in said county, the first publication to be thirty days before the sale, or by post- ing up notices within said time, in some public place in the town where the estate lies, and in two adjoining towns, and in the town where said deceased last dwelt, (or where the ward resides. ) 3. To file in the probate court for said county, within eighteen months after the sale, one of the original advertisements of the time, place and estate to be sold, or a true copy thereof, together with your affidavit or that of the person employed by you to give such notice, made before the judge of pro- bate or some, justice of the peace,' in order that evidence of such notice may be perpetuated. , In testimony whereof, I have hereunto set my hand and the seal of said court, at a probate court, held at A., within and for said county, on the Tuesday of , A. D. . ,.^j^ . J. L. H., Judge of Probate. • — I — ' The foregoing forms of license can be used for all cases by a slight change of the phraseology. If the petition is to accept an advantageous offer, the license should read, you are hereby author- ized and licensed to accept the sum offered therefor as alleged in your petition, and sell at private sale, ^c. Oath. The first duty of a person licensed to sell, lease or exchange real estate, before fixjng on the time or place of sale, or doing any act towards selling the same, is to make oath, that he will faithfully perform the trust, before the judge or some justice of the peace, whose certificate of the fact must be filed and recorded in the probate court.i A sale, lease or exchange made by a person ■ffho has not taken the oath prescribed, is void.^ 169. [^Certificate of Oath.'\ STATE OF |[AES:E. , ss. , 18—. Personally appeared H. B., administrator of the estate of E. F., late of 1 B. S., c. 71, § i. 2 Campbell v. Knights, 36 Me. 324. SALES OF REAL ESTATE. 163 G., deceased, and made oath that in selling certain real estate of said E. F., pursuant to a license granted therefor at a probate court held at A., within and for said county, on the Tuesday of , 18 — , and in giving the notice thereof required, he will act faithfully, impartially and according to the provisions of law in such cases made and provided. Before me, J. B. P., Justice of the Peace. [^Decree on same.] STATE OF MAINE. , ss. At, &c. [Same as Form 7.] Ordered that the foregoing certificate of oath before sale be filed and recorded. J. L. H., Judge of Probate. Sale to he made in one year. No license to sell, lease or exchange real estate will continue in force more than one year from its date, except in ca.se of the sale of the estate of deceased residents of, or minors residing in, another state, in which case it will continue in force three years. The deed must be executed and delivered within the year, otherwise the conveyance well be void.i When a license has expired, a new license may be granted, with or without notice to the parties interested, on filing a new bond.^ The new license should state that a former license there- for expired on the day of , A. D. . Notice of sale. Every person licensed to sell real estate at auction must give thirty days notice of the time and place of sale, in one of the modes prescribed in the foregoing forms of license.' It is absolutely esssential to the validity of the sale, that notice thereof be given as directed by law.* 170. [Administrator's sale of Heal JEstate.l NOTICE OF SALE. Pursuant to a license from the Hon. Judge of Probate, for the county of A., I shall sell at public auction, on the day of , A. D. — , at ten 1 Mason v. Ham, 36 Me. 573. Marr v. Boothbay, 19 Me. 150. 2 R..S., c. 71, § 18. 3 R. 8., c. 71, § 7. < R. S., c. 71, § 30. 164 PROBATE PRACTICE. o'clock In the forenoon, on the premises, all the right, title and interest which B. F., late of Or., in said county, deceased, had in and to the following de- scribed real estate, viz : (hete describe the estate generally. ) Dated this day of , A. D. . A. B. Notice, how proved. The aflSdavit of the person licensed', or of any person employed by him, made within eighteen months after the sale, and filed in the probate office, with one of the orig- inal notices, or a copy, and recorded, is sufficient proof that the notice was given, and a certified copy of such record is competent evidence thereof.^ The fact, however, may be proved by any other evidence,' but the foregoing method is so convenient and simple that it should always be adopted. 171. \^Oopy of Notice — Affidavit?^ Here insert a copy of the notice given.- [Affidavit.] I, A. B., administrator of the estate of E. F., late of 6., deceased, hereby certify, that pursuant to a license from the probate court for the county of A., which issued on the Tuesday of , 18 — , authorizing me to sell and convey certain real estate of said B. F^, I gave notice of the time, place and estate to be sold by causing an advertisement, of which the above is a true copy, to be published three weeks successively in the , a newspaper printed at , iu said county, the first publication being thirty days before the sale, (or to be posted thirty days prior to the time of sale, in a public place in the town where the estate lies, and in two adjoining towns, and in the town where said deceased dwelt.) • A. D.- A. B. Subscribed and sworn to before me, J. M. S., Justice of the.Peace. 172. \_Decree on same.] 8TATB QF MAINB. At, &c. [Same as Form 7.'] . Ordered tliat the foregoing copy of notice of sale and aflBdavit be filed and recorded. J. L. H., Judge of Probate. 1 R. S., c. 71, § 36. 2 R. S., c. 71, § 37. SALES OF REAL ESTATE. 165 'Adjournment. Any sale duly appointed and n(;^tified may be adjourned from time to time within the year prescribed, not ex- ceeding fourteen days in all, at the discretion of the person licensed, by giving reasonable notice thereof.' Manner of sale. The sale must be conducted in such a man- ner, that the largest sum may be realized theiefrom. The execu- tor, administrator or guardian is not allowed to make any profit in any way from the sale of the property, and if any is so made he may be compelled to account therefor.^ He is not prohibited from purchasing himself, should this be necessary to prevent a sacrifice but he should never do so unless by the consent of the heirs. ^ If more land is sold than the license authorizes, the sale is void.' Suits hrougJit to test the validity of sale. For the provisions of law relating to the limitations of such suits, and to the acts suffi- cient to constitute a valid sale^ the practitioner is referred to R. S., c. 71, §§ 29, 30, 31. Surplus proceeds of any real estate sold by license, remaining on final settlement of the accounts of the person licensed, are to be considered as real estate, and distributed as such.* When lands in this state, held in trust under a foreign will for non-residents, have been sold, the probate court of the county in which the will has been allowed may order the money to be trans- mitted to the trustee, if there is any, in the state or county where the testator had his domicil.^ Sales hy the executors under the will, made in pursuance of the directions thereof, may be made without license, and also without giving bond when the will so directs, but the judge may require the executor to give bond as in other cases, if it appears necessary and proper." If the power be given to the executor as executor, in his official capacity, it is an incident to the office, and may be exercised by an administrator with the will annexed, but if it be 1 E. a, c. 71, § 19. 2 Red. on Wills, vol. 3, 333 f see ante, page 105. ''3 Wakefield v. Oampbell, 30 Me. 398. « R. 8., c. 71, § 33. s Laws of 1876, c. 109. « R. 8., c. 64, §8. 166 PBOBATB PRACTICE. given to the executor hy name, it is a personal trust, and cannot be exercised by any other person.' 173. {^Petition for Executor to give £ond.~\ To the Honorable Judge of Probate for the county of A. A. B., of C, in said county, respectfully represents that E. F., late of G., deceased, testate, whose will has been proved and allowed by the probate court for said county, in his said will authorized and directed H. P., of B., his executor named therein, to sell and convey certain real estate, without being required to give bond for the faithful discharge of his trust in selling the same, but that the interest of all parties interested in said real estate re- quires that the said H. P., should give bond with suflScient sureties for the faithful discharge of his said duty. Wherefore your petitioner who is inter- ested in said real estate as , prays that said H. P., may be so required to give bond. Dated this day of , A. D. . A. B. 174^ \^Order of Personal JVbtice.'] [Same as Form No. 64. J For manner of service and return, see Form No. 3, and remarks thereon. 175. l^Decree orderingi Executor to give BondJ] STATE OF MAINE. , ss. At, &c. [Same as Form 7.] On the foregoing petition. Ordered that H. P., executor of the last will of E. F., late of G., of said county, deceased, give bond in the sum of dol- lars, with sufficient sureties, for the faithful performance of his trust in sell- ing the real estate of the said testator. J. L. H., Judge of Probate. Sales of real estate made by the executor without giving bond ■when so required, would undoubtedly be void. Contracts to convey. When it appears that any deceased per- son in his life time, or insane person under guardianship, made a legal contract to convey real estate, and was prevented by death or insanity from so doing, or that such deceased person in his life time made a legal contract to convey upon condition which in its 1 Putman Free School ». Fisher, 30 Me. 533. SALES OF REAL ESTATE. 167 nature could not be fully performed before the decease of such person, and that the person contracted with, or the petitioner, has performed or is ready to perform the conditions thereof, the judge may on petition in writing of such person, his heirs, assigns or legal representatives, authorize the executor, administrator, special ad- ministrator or guardian, or guardian of the heirs of the deceased, to execute deeds and carry the contract into effect.' 176. [Petition for Conveyance of Ideal Estate according to Contract^ To the Honorable Judge of Probate for tlie county of A. ^ A. B., of C, respectfully represents, that B. P., late of 6., in said county, deceased, in his life time, to wit, on the day of , A. D. , enter- ed into a contract in writing with the said A. B., a copy of which is hereunto annexed, whereby the said deceased agreed with the said A. B., to convey to him, his heirs and assigns, upon the terms and conditions set forth in said contract, certain real estate which is fully described therein ; that said de- ceased died without making such conveyance, and that your petitioner has performed for is ready to perform) all the conditions of said contract on his part. Wherefore your petitioner prays that a specific performance of said con- tract may be decreed, and that H. P., administrator of the estate of the said B. P., may be ordered to execute the necessary deeds to carry said contract into effect according to the terms thereof. Dated this day of , A. D. . ^_ B, 177. \Order of Notice. '\ STATB OP MAINE. , ss. At, &c. [Same as Porm 7.] A. B., having presented a petition praying that H. P., administrator of the estate of B. P., late of G., deceased, may be ordered to convey to him cer- tain real estate of said deceased, according to a contract made by the deceased Ordered that said petitioner give public notice, &c. [Same as Form 7.] J. L. H., Judge of Probate. The petitioner must bring his case strictly within the provisions of the statute. 1. The obligor must have been a person capable 1 B. S., c. 71, § 16, c. 67, § 14. Laws of 1876, c. 104. 168 PROBATE PRACTICE. of executing a legal contract.^ 2. The contract muat have been in writing, as a verbal contract to convey real estate is void.'' 3. The conditions to be performed prior to the death of the obligor, must have been performed according to the terms of the contract.' 178. [Decree.] STATE OF MAINE. , ss. At, &c. [Same as Form 7.] On the foregoing petition, notice having been given thereon pursuant to the order of court, and the facts therein stated having been made fully to ap- pear, It is decreed, that H. P., administrator of the estate of E. F., deceased, be authorized to execute the necessary deeds to carry the contract mentioned therein into effect, on giving bond, as required by law, in the sum of dollars.* J. L. H., Judge of Probate. The penal clause of the bond to be given is the same as that in the bond of executors, &c., in case of the sale of real estate. The condition should read as follows : The condition of the above obligation is such, -that whereas the said H. B. administrator of the estate of E. F., late of G., deceased, has been authorized by the judge of probate for said county, at a probate court held at A, within and for said county, on the day of , A. D. , to convey certain real estate described in a petition filed in said court, by one A. B., to the said A. B , pursuant to a contract made by said E. P., with the said A. B., and annexed to said petition. Now if the said A. B., shall faithfully execute said trust, and account for the proceeds of said conveyance, if any, then this obligation shall be void. The bond having been filed and approved, the administrator is then authorized to make the conveyance without any further order, through he should have an oflBcial copy of the decree as evidence of his authority. If any executor, administrator or guardian should refuse to give bond and make such conveyance, a court of equity would compel him. It would also be deemed sufficient cause for his removal. 1 Ex parte Themes, 3 Me. 50. 2 r. g.^ c. Ill, § 1. 3 Bates V. Sargent, 51 Me. 433. « R. S., c. 71, § 17. SALES OF REAL ESTATE. 169 Whenever the judge shall order any trustees to sell any real estate and invest the proceeds, or for any other purpose, the same proceedings are to be had as in case of sale by guardians, and the same forma of petition, order of notice, decree, license, &c., previously given can be readily used.^ 179. [Administrator's Deed — Private Sale.] Know all men by these presents, That I, A. B., of C, in the county of K., and state of Maine, administrator of the estate of E. F., late of G., in said county, deceased, having obtained license from the Honorable judge of probate, for the county of K., at a court of probate held at A., within and for said county, on the Tuesday of , A. D. , to sell and convey at private sale .the real estate of the said deceased, hereinafter described, and having taken the oath, and given notice of said sale required by law, by virtue of the power and authority with whicli I was as aforesaid vested, and in con- Bideration of the sum of dollars, to me paid by D. M. S., of P., in the county of F., in said state, the receipt whereof I do hereby acknowledge, have given, granted and sold, and by these presents do give, grant, sell and convey to the said D. M. 8., his heirs and assigns forever, the following des- cribed real estate, viz, To have and to hold the same, with all the privileges and appurtenances to the same belonging, in manner as aforesaid, to the said D. M. S., his heirs and assigns forever. And I, the said A. B., in my said capacity, do covenant to and with the said D. M. S., his heirs and assigns, that I have in all thino-s observed the rules and directions of law relative to selling said estate, and have good right and lawful authority to sell and convey the same in manner as aforesaid. In witness whereof, I have hereunto set my hand and seal in my said ca- pacity, this day of , in the year of our Lord one thousand eight hun- dred and . Signed, sealed and delivered in presence of A. B. [ l. s. 1 ss. . Personally appeared the above named A. B., and ac- knowledged the above instrument to be his free act and deed. Before me, R. S., Justice of the Peace. • 180. [Admimstrator''s Deed — Public 8ale!\ Know all men by these presents. That I, A. B., of C, in the county of D. and state of Maine, administrator of the estate of E. F., late of G., deceased 1 R. S., c. 68, § 10. Form No. 15i and following forms. 170 PROBATE PRACTICE. having obtained license from the Honorable judge of probate, for the county of K., at a probate court held in said county, on the Tuesday of , A. D. , to sell and convey the real estate of the said deceased, hereinafter described, and having taken the oath and given notice of said sale as required by law, and having on the — — day of , pursuant to the license and notice aforesaid, sold at public auction to T. W., of L., in said county, the estate hereinafter described, the same having been struck off to him for the sum of dollars, he being the highest bidder therefor, viz ':— , (describe estate,) by virtue of the povrer and authority with which I was as aforesaid vested, and in consideration of the afoi-esaid sum of dol- lars, to me paid by the said T. W., the receipt whereof I do hereby ac- knowledge, have given, granted and sold, and bj' these presents do give, grant, sell and convey to the said T. W., his heirs and assigns forever, the above described premises, .with all the privileges and appurtenances to the same belonging. To have, &c. [ Same as Form No. 179. ] 181. [Ad7ninisirator^s Deed — to carry Contract into effect!] Know all men by these presents. That I, A. B., of C, in the county of E., and state of Maine, administrator of the estate of E. P., late of G., in said county, deceased, having, bean duly authorized by the Honorable judge of probate, for the county of K., at a court of probate held at A., within and for said county, on the Tuesday of , A. D. , to execute the necessary deeds to carry into effect a certain contract whereby the said deceased agreed with one A. B., (insert a copy of the contract, or describe it fully, ) and to convey the real estate of the said deceased, described in said contract and hereinafter descfibed, by virtue of the authority with which I was as aforesaid vested, and in consideration of the full and complete per- formance by the said A. B., of all the conditions required of him by the terms of said contract, and the sum of ~ dollars, to me paid by D. M. S., of P., in the county of F., in said state, the receipt whereof I do hereby ac- knowledge, have given, granted, and sold, and by these presents do give, gi-ant, sell and convey to the said D. M. S., his heirs and assigns forever, the following described real estate, -viz, '-'- : To have and to hold the same with all the privileges and appurtenances to the same belonging, in manner as aforesaid, to the said D. M. S., his heirs and assigns forever. And I, the said A. B., in my said capacity, do cove- nant to and with the said D. M. S., his heirs and assigns, that I have in aU things observed the rules and' directions of the law relative to the execution of this deed, and have good right and lawful authority to convey said real estate in manner as aforesaid. In witness whereof, &c. [Same as Form No. 179.] FORMS OF ACCOUNTS. 171 m Cm O K O ^- P5 H g s Q « o « o H 1= O M o Si o ■ . 3 (C a oD © c3 pq . « .S u a OWOOoOOOOlOOOOOOO ■T-t « o QOCOOT-HOOiOOOTH OS a DO* ro " 2 a fe 03 C- a' 03 O M O 5 -- 3 "■?- m IB f^ 03 — " — oj lAJ ■'-' ra a) 33 en ^ c 'rS -T^ S^ 2 fe S ft© fl t- fl £ > £» -tS 03 03 03 O jS ^ S o, a Pi's Q XI > l>< B 1«1 S ^ i? 'S pq^g£]g (1) ^ >o ^ a 2 "3 o . 3 o3 ooooooicio OOOOOOIXM O iO O tH cq c« Oh .s 03 03 - « ':;1 03 o , Su S3 ^"a'o'S'S " o3.t; s n g_j J5 'O Pi o3 ro rf a g g MiH ^ (S =3 a a o-a ™BS o o « ■2.0 g a a 03 C '"^ O TO ra ^^ OPSUOOPh I 03 2 l> n •53 m 03 a >>>-. a fe 08 03 a ^ . " 33 O o O^'O . ^5-a^ §1-; ""|mo3^ TV, I-! -H H s «^.a §5^3 o P^ t-^ "ij . 03 +J 03 ES 00 ~ 03 a p,_ 10 l» 03 ■ -i3 4i o '3 r o — I M m _ 03 fc^ „-r-£l -tj , +j ,a "m s^i*.::-* 1 8 IK P-i 03 a o S3 03 S S Ola '3 III a 03 _ ^^ >■ OS 03 u c e< 172 PROBATE PRACTICE. 1 t o 1 "S .1 « « 1 » m 1 « «5 -^ cq- :: PQ S < g- «iH £ Pi ■B"2 a a ^ f> i § INSO as on l^l^^l^ h- 1 1 DO 1 ■HP 1 ^ CO D ' o ^ C3 o r <1 c^ «& |« ^ ci8 o « » r OJ o o \-Zi u < o c« i '« *s- •40 00 SH g § -a EH i DR. a page 171. ) Total, is — - day o DR. first ace al, - day of o o ft h o • a i -2 § -a ffi •a 03 ■§ s -g 1 fi 3 S ■a S i» w R FORMS OF ACCOUNTS. 173 0)- a, g;g a, , o o'S 'rO ^ ^ 05 15 m M ?> m to P S S IS 03 □ Q S S ^ ai ^H (D ^i2 o o g g ° £;. ^j:5 a a o SS-S OMOC5.(iit3W!H CHAPTER XVII. ACCOUNTS. Every executor, administrator, guardian and trustee must ren- der his accounts agreeably to the conditions of his bond. Time. The accounts of executors and administrators must be rendered within one year, and those of guardians and trustees within three years from the time of filing their bond, and at any other times when required by the judge.^ The statute of limita- tions of time apply only to the first account. It has been held to be a sufficient compliance with the conditions of the bond, if the account is filed within the time named.^ It is not nece8sa];y that it be allowed within the time. The first three years, within which a guardian must settle his account, do not commence until • assets have come into his hands.' Executors " and administrators), if the estate is insolvent, must settle their account within six months from the time when the report on claims is made, unless the time is enlarged.* Form of exeoutors\ administrators', guardians' and trustees' accounts. On pages,171-173 are forms of a Balance Sheet or Con- solidated Account. The several items of credit should be given in detail in schedule B., accompanying the account. If a balance remains on settlement of the first account, another account must be settled, which should be styled The second account of, ^e., and the first item of debit should be Balance on settlement of first account. The last account settled should always exactly balance, and is usually headed The final account of, ^c. Such a heading 1 R. S., c. 64, §§ 19, 53, c. 67, §§ 10, 19, c. 68, § 1. 2 Eaton V. Brown, 8 Me. 33. ' Hudson t>. Martin, 34 Me. 339. * c. 66, § 19. ACCOUNTS. 175 however, or even a decree upon the account as a final one, is not conclusive that it is so. It is not competent for the ptobate court to decide that an account is final so as to bar further inquiry in regard to matters not included therein.^ Goods and chattels as per inventory. Every executor or admin- istrator shall be held to account for the goods and chattels at their appraised value.^ If sold for more or less than the appraisal, the gain or loss is to be charged under separate items. Rights and credits as estimated hy the appraisers. The Sum ■which can be realized therefrom, exclusive of expenses of collec- tion, must be stated by the appraisers in the inventory.' Execu- tors and administrators are chargeable with the "personal property and effects."^ Rights and credits are effects. If they fail to col- lect as much as the appraisers estimate can be realized, they may be allowed the amount of said loss in their account.^ It is some- times the practice for executors and administrators to charge them- selves only with the sums collected, but it may be doubted whether such a course is a compliance with the present statute. Copartnership property as per inventory.*' This item should include the appraised interest of the deceased in all. copartnership property, whether the same is retained by the survivor or not. The gain or loss thereon will be adjusted according to the amount finally received. Gain on goods and chattels sold. If any of the goods and chat- tels have been sold for a sum exceeding their appraisal, the excess should be charged against this item.^ i Gain on rights and credits above estimate. If a sum is finally received from all the rights and credits, and causes of action, from collections or sales of same, including interest, larger than the amount estimated by the appraisers, the excess should be charg- ed against this item. This item cannot therefore be correctly 1 Field ». Hitchcock, 14 Pick. 405. 2E. S.,c. 64, §49. 4 R. ti., c. 69, § 1. ' R. S., c. 64, § 44. Ante, chap. X. 176 PROBATE PRACTIPB. charged, till all the credits, &c., have been converted in some way into money. . Proceeds of real estate sold. If any- real estate is sold forihe payment of debts or other purposes, the proceeds should here be charged. j,: Income of real estate. If executors or administrators occupy any part of the real estate, they must charge themselves with the rents and profits so received, and account for the same to the heirs or devisees. If they cannot agree on the sum to be allowed for such occupancy, commissioners may be appointed as previously stated. 1 (Ante, chap, xii.) Executors and administrators, not heirs or devisees, are liable on their bond for the rent of land so occupied by them.^ They may if they prefer, settle separate accounts for such rents, but in prac- tice it will probably be found just as convenient to include the same in their ofiBcial accounts. It is to be distributed as real estate unless the parties otherwise agree. Interest. Generally it is no part of the duty of executors or administrators to invest the funds of the estate, but to collect, safely keep and distribute the same as soon as it can be reasonably done ; and ordinarily, they will not be chargeable with interest unless there has been an inexcusable delay in paying the distribu- tive shares, and then caily from such time as they should have paid out the money. But if they use the money of the estate in their own business, they are chargeable with interest thereon compounded annually.^ The whole matter, however, relating to interest, is addressed largely to the discretion of the judge, to be exercised according to the varying circumstances of different cases. Sundry items as per schedule A . Executors and administra- tors must also charge themselves generally with all sums of money, 1 R. S., c. 64, § 55. "(J'- ■i Newcomb «. Stebbins, 9 Met 544. Brooks ». Jackson, 125 Mass. 307. s Paine v. Paulk, 39 Maine, 15. Red. on Wills, vol. 2, 466 et seq. • ACCOUNTS. 177 interest, profit and mcome, officially received by them in any way, and not included in the inventory or in the foregoing items.' jExpenses of administration, ^c. The number of terms and days in attendance, the number of miles travelled, the sums of money paid out, and what it was paid for, must all be separately and distinctly specified in the schedule accompanying the balance sheet. The amount on which commissions are claimed, the rate per cent, and amount thereof should also be stated, that any per- son interested may know how much is claimed. If the judge deems it too large he will reduce it. Costs paid in suits prose- cuted by or against them will be allowed to executors and admin- istrators, unless in the opinion of the judge the suit was prose- cuted or defended without reasonable cause;^ also expenses of assigning dower, and of partition of real estate when paid by order of the judge.' For law and practice relating to expenses of executors and administrators, see ante chap. xii. Funeral expenses — last sickness — taxes — debts — legacies. The difierent sums paid out, and the amounts paid must be separately and clearly stated in the schedule. For the law and practice relating to those items, see ante chap. xii. Allowance to widow and minors. The sums paid to the widow and minor children must be stated under this item, and need not be stated in the schedule. See ante chap. xiii. Loss on co-partnership property. There must be entered against this item the amount which the executor or administrator finally receives less than the appraised value 'of the interest of the deceased in the partnership property. Private claims of executor or administrator. The amount and nature of the claim must be fully and particularly stated in the schedule, or given in a detailed account on a separate sheet.* If the same be disputed by any interested party, it may be decided 1 R S., c. 64, § 54. 2R. S.,c. 87, §2. 3 Post chaps, xix, xx. * R. S., c. 64, § 61. 12 178 PROBATE PRACTICE. by the judge or by referees agreed on in writing by the parties present, their agents, or guardians, and the sums awarded allowed by the judge. For forms of proceeding, see ante chap. xii. Loss on goods and chattels. If on a sale of any of the goods and chattels by order of court, they sell for less than the appraised value, the loss should be stated against this item. If the goods and chattels were sold without license, the loss, if any, cannot be allowed.' Executors and administrators are liable only for want of such care and skill in the preservation of the estate as prudent men ordinarily exercise in their own affairs.^ Hence, if the goods are stolen or burned, or destroyed in any way with- out fault on the part of the executors or administrators, they are entitled to be allowed for their appraised value. Loss on rights and credits, is to be allowed on the same princi- ple that gain on the same is charged.^ See page 176. Widow's sustenance — 90 days. See ante chap. xii. Sundry items. Against this item should be stated the aggre- gate of all sums for which the administrator asks to be allowed, and which cannot be included under any of the foregoing items. Balance. The judge may decree a larger balance to be in the hands of the administrator or executor than is shown by the account, if satisfied more has been received by the accountant than he has stated.^ Distributive shares. The regular and safer course is for the administrator to settle his account containing the several items of debit and credit pi-eviously mentioned, before paying the distribu- tive shares. If his account is allowed, he knows the precise amount in his hands for distribution, and he can safely proceed to distribute the same. But a portion of said shares is frequently paid prior to the settlement of the account, (though not author- ized by law,)* and when so paid may be allowed, and when so 1 R. S., c. 64, 48, § 49. Ante chap. xi. « Red. on WUls, vol. 3, 394. 8 Jeimison v. Hapgood, 10 Pick. 77. * Potter ». Titcomb, 7 Me. 302. ACCOUNTS. 179 allowed, the sums so paid must be deducted from the share of the heir on decree of final distribution.^ ACCOUNTS OF GUARDIANS AND TRUSTEES. Chargeable with what. Guardians and trustees are chargeable generally with the personal estate as appraised, with all gain on the sale thereof, amount received on the rights and credits above the estimate, proceeds of sale of real estate sold, rent and income of real estate, and with all interest, income, gain and profit received by them. "If the guardian neglects to put the ward's money at interest, but negligently suffers it to lie idle, or mingles it with his own, the court will charge him with simple interest, and in cases of gross negligence with compound interest."^ Allowed for what. They are entitled to the same allowances as executors and administrators for expenses and services.^ It has been held that guardians may make specific charges for services,* and that the compensation may be above the commissions allowed by law.' They will also be allowed for sums paid out for taxes, debts and support of the ward, and money invested by the direc- tion of the judge in real estate, loss on sale of personal property or in the collection of rights and credits, &c. Guardians will not be allowed for advancements made from their own means for the maintenance of their ward when the ward has sufficient property therefor.* Neither will they be allowed any compen- sation for their services if they neglect to settle their accounts according to law.' Nor will they be allowed for the support 1 For distribution of the estate, see post chap, xviii. ' 2 Starrett b. Jameson, 39 Me. 504; 2 Kent Com., 331; Woodbury v. Ham- mond, 54 Me. 333. ' R. S., c. 63, § 39. * Hudson V. Martin, 34 Me. 339. 5 Emerson, Appt. 33 Me. 159. 6 Preble «. Longf eUow, 48 Me. 379. ' R. S., c. 67, § 19. Pierce v. Irish, 81 Me. 354. Starrett v. Jameson, 39 Me. 504. 180 PROBATE PRACTICE. of a minor child having a father living with sufficient property, and who can afiford to support and educate the child.' If the > same person is guardian of two or more wards, he must settle a separate account with each ward. But when services were done for two or more wards jointly, the expense thereof should be divided, and so should the allowances for travel and at- tendance at court.^ Accounts of guardians and trustees when balanced. Guar- dians and trustees should balance their accounts at the end of each year, and add thereto interest on all money in their hands, and so on from year to year, although the account may not be settled oftener than once in three years.'^ Notice. The account having been properly stated, signed and filed in court, the statute requires executors and administrators to give reasonable notice thereon before the same is allowed.' No notice is thus required to be given by guardians or trustees.* The statute no where defines what is "reasonable notice." The prac- tice is to order notice by publication in the settlement of all the different kinds of accounts. 182. \^Order of Notice.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] A. B., executor of the will of E. F., late of G., deceased, (or administra- tor of tlie estate of E. F. &c., or guardian of H. P., a minor or insane per- son, or trustee under the will of &c.,) having filed his first account. Ordered, &c. [Same as No. 7.] J. L. H., Judge of Probate. When minor wards who have arrived at full age, or when all parties interested in any account, certify in writing on the account their assent to its allowance, the judge, may adjudicate thereon 1 R. S., c. 59, § 33. Hudson v. Martin, 34 Me. 339. Woodbury v. Hammond, 54 Me. 333. E. S., o. 64, § 53. 4 Hudson ». Martin, 34 Me. 389. ACCOUNTS. 181 without father notice.^ After distribution of an insolvent estate, the accounts of payments may be settled without notice.^ 183. [^Form of Assent.'] To the Honorable Judge of Probate for the county of A. The undersigned being the wards named in the within account and who have arriyed at full age, (or being all the persons interested in the within account,) having examined the same, hereby request that it be allowed with- out further notice. Dated this day of , A. D. H. P. .R- W. Oath. The judge should first administer to the accountant the following oath : You solemnly swear that this, your first (or second, .&c.,) account as executor of the will of, (or as administrator of the estate of, or as guardian of, &c., or as trustees under the will of, &c.,) is true and correct, and that you will make true answers to such questions as may be asked you touching the same. So help totj god. Joint executors and administrators must each make oath as aforesaid, but the account of joint guardians may be allowed no the oath of one of them.' If the accountant is unable to attend court by reason of infirmity or otherwise, or resides more than thirty miles from the place where the court is to be held, the judge may authorize any disinterested justice to administer the oath, who must return a certificate thereof with the account and vouchers.* When no objection is made by parties interested to the allowance of the account the administrator, executor and trus- tee may make oath before a justice of the peace, and when the accountants reside beyond the limits of this state, before a com- missioner for Maine or a United States Consul.* 1 Pierce o. Irish, 31 Me. 354. ^ R. S., c. 66, § 34. 3 R. 8., c. 67, § 31. i R. 8., c. 63, § 13. 5 Laws 1877. c. 174. 182 PEOBATB PRACTICE. 184. [Commission to administer Oath to Accoimiant.'] STATE OF MAINE. To A. B., Esq., a Justice of the Peace within and.for the county of C. Greeting'. H. B., executor of the will of E. F., late of G., deceased, (or administrator of, &c., or guardian of, &c., or trustee under will, &c.,) having presented the annexed account for allowance, and it appearing that said accountant is unable to personally attend our probate court and there make oath to the same by reason of , You are therefore authorized and directed to admin- ister to him the necessary oath to the truth and correctness of said account, and you are to return a certificate thereof into our said court with this com- mission and account annexed, and the vouchers to prove the same, as soon as may be.- In testimony whereof I have hereunto set my hand and the seal of said court at a probate court holden at A., within and for said county on the Tuesday of — ^ A. D. J. L. H., Judge of Probate. {-! 185. [Certi^cate of OaiTi.'] STATE OF MAINE. -, A. D. Personally appeared H. B., and made oath that the account hereunto an- nexed, by him signed, together with the vouchers to prove the same, which are herewith returned, are true and correct. Before me, J. P. L., Justice of the Peace. ^Examination. Any interested party may appear at the time and place of hearing, and object to the allowance of any item for which the accountant asks to be allowed, and may be heard by himself and witnesses, and offer any competent evidence touch- ing the same. The accountant may also be heard touching any item, and offer any evidence in support thereof, and may also be interrogated under his oath aforesaid, by the judge or any inter- ested party in relation to the same, and a record made of his answers if the judge so requires.^ 1 R. S., c. 64, § 53. ACCOUNTS. 188 Vouchers. The accountant must satisfy the judge of the truth and correctness of each item in the account. The usual practice is for him to produce the receipt or other voucher of payments of money, and of the distribution of the estate. Any evidence how- ever which satisfies the judge of the correctness of the a'ccount is sufficient. The items of debit with which the accountant charges himself are generally allowed as stated. If it is claimed that items of debit are improperly omitted, the fact is to be tried on petition, in the manner hereafter stated, and not on settlement of the account pending, unless by consent of parties. It is quite com- mon practice however, for the judge to hear such matters on the settlement of such account, and thereby save time and expense to all concerned. If any of the items of credit are disallowed by the judge in whole or in part, the same must be stated in the decree, unless the accountant on suggestion so amends his account. For form of account and decree, see page 171. Citation to settle an account. If it be claimed that no account has been settled within the time fixed by law ; or that another account should be settled ; or that an error was committed in the settlement of any account in favor of the accountant, by fraud, accident or mistake, whereby he charged himself with a sum too sma:ll, or was allowed a sum too large ; or that personal property embraced in the inventory and not sold, allowed to the widowor distributed, is of greater value than it was appraised at;' or that any accountant has omitted to charge himself with personal pro- perty, whether embraced in the inventory or not, which has come to his hands ;^ or with the proceeds of any real estate sold by him ; or with any interest, profit or income rpceived by him f or with any interest for which he is legally chargeable ; or with further assets received since a prior settlement of account ; or if for any 1 R. f., c. 64, § 49. 2 R. S., c. 64, § 5i. 184 PROBATE PRACTICE. reason it is claimed that the accountant should charge- himself with any sum, the judge may, on petition therefor by any inter- ested person, cite the accountant to render a first account, or further account, or to render an account and charge himself with a sum named. He is entitled to such citation and the privilege of being heard, before a suit for not accounting can be maintained on his bond.^ If an account has been fraudulently settled the judge may cite the accountant to resettle the same.^ An executor or administrator who has resigned may be cited to settle, and may settle an account.' 186. [^Petition that Executor, c&c, be cited to ^Account.] To the Honorable Judge of Probate for the county of A. A. B., of C, in said county, respectfully represents that H. B., of K., was duly appointed , of B. F., late of G., deceased, and gave bond and accepted said trust, and that said H. B., has neglected to render his first account within the time required by law, (or that it is for the interest of all parties interested in said estate, that the said H. B., be ordered to render an account of his administration immediately, or that said H. B., ought in law to account for, and charge himself with . ) Wherefore your peti- tioner, who is interested in said estate as , prays that said H. B., may be ordered to settle an account of his said administration, (or that he maybe ordered to settle an account of his administration, and charge himself with the sum of dollars.) Dated this day of , A. D. . A. B. 187. ' [Order of Ifotice.~\ [Same as Form No. 64.1 For mode of service and form of return, see No. 3, and remarks on the same. Hearing. If the executor or administrator appears he is enti- tled to be heard,! ^^^ ttie judge after hearing the parties and witnesses may dismiss the petition, or order an account to be ren- 1 Potter B. Cummings, 18 Me. 55. 2 Paine u. Stone, 10 Pick. 75. 3 Leland ». Fulton, 1 AUen, 531. ACCOUNTS. 185 dered and fix a time therefor, or may order an account to be ren- dered and the accountant to charge himself therein with a certain sum, as the facts in the case shall appear,^ and if the order is not complied with, the petitioner may then maintain a suit against him on his official bond.^ 188. [Citation to settle an Account.'] STATB OF MAINE. ss. At, &c. [Same as Form 7.] On tlie foregoing petition, personal notice having been given tLiereon pur- suant to the order of court, and the said H. B., having neglected to appear (or the said H. B., having appeared and been heard), It is ordered that the said H. B., render his account of administration into our said court, on oath, on or before the Tuesday of , A. D., , (or that he render his accoimt of administration into our said court, on oath, on or before the Tuesday of A. D., , and charge himself therein with the sum of dollars), and that said H. B., be served with an attested copy of this order within ten days from the date hereof.' J. L. H., Judge of Probate. Accounts when opened. The settlement of an account, when allowed by a decree not appealed from^ is conclusive as to all items therein, expressly or impliedly passed upon by the judge, if within his jurisdiction, unless fraud be charged and proved,* ; but any item not adjudicated or not embraced in the account, may be stated and allowed in a subsequent account, although it should have been stated in the former account.^ So errors in any account caused hj fraud, accident or mistake may be corrected by proper 1 Sturtevant v. TaUman, 37 Me. 78. Emery v. Goodwin, 13 Me. 14. Wil- liams V. Esty, 36 Me. 348. Potter o. Titcomb, 7 Me. 303. 2 R. S., c. 64, § 15 ; c. 67, § 19 ; C. 72, § 53. 3 For manner of service and rettim see No. 8. * Arnold V. Mower, 49 Me. 561. Smith b. Lambert, 30 Me. 137. Field ». Hitchcock, 14 Pick. 405. 5 Starrett v. Jameson, 39 Me. 504. 186 PROBATE PRACTICE. items, to be stated in a subsequent account.^ If the error was against the accountant, as by charging himself with a sum too large, or by being allowed a sum too small, he may ask to have the same corrected, by proper items stated in a future account. If the error was in favor of the accountant, the judge may, on petition and notice, order him to correct the error by proper charges, as previously stated in this chapter. Upon the death of an executor, administrator, guardian or trustee, it is the duty of his representative (executor or adminis- trator) to file his account and settle the same, and not the duty of the administrator de bonis non. The judge will order any balance found due from the deceased administrator or executor to be paid to the administrator de bonis non.'^ Surviving Partners, or executors or administrators who admin- ister on copartnership property, must debit themselves in their copartnership accounts with the full appraised value of the real estate, goods and chattels and all money received, and credit themselves with debts and expenses paid, also with the balance paid by the survivor to the executor or administrator, or if the latter administer, with the amount transferred to, and debited in his account of the individual estate. For decree, oath, citation, &c., see previous remarks and forms relating to administrators.' 189. [Petition for extension of time to settle an account?^ To the Honorable Judge of Probate for the county of A. A. B., of C, administrator of the estate of E. F., late of G., deceased, whose estate has been represented insolvent, respectfully prays that the time for settling his first account may be extended to the day of , A. D., Dated this day of -^— A. D., A. B. " Smith c. Dutton, 16 Me. 308. Sturtevant v. Tallman, 27 Me. 78. Cobum ». Loomis, 49 Me. 406. 2 Nowell ». Nowell, 2 Me. 75. Stover ». Stover, 6 Mass. 391. Wood- bury V. Hammond, 54 Me. 332, and cases there cited. 3 R. S., c. 69, §§ 2, 8. Knowlton ». Chick, 56 Me. 228. Thurlough ». Chick, 59 Me. 395. Ante. chap. xv. ^ R. S., c. 66, § 19. ACCOUNTS. 187 190. [Order of Public Notice.'] STATE OF MAINE. ss. At, &c., [Same as Form 7.] A. B., administrator of the estate of E. F., late of G., deceased, having filed a petition praying that the time of settling his first account may be extended. Ordered, &c. [Same as No. 7.] J. L. H., Judge of Probate. 191. {^Decree on same.] STATE OF MAINE. ss. At, &c., [Same as Form 7.] Upon the foregoing petition, notice having been given thereon, It is decreed that the time for settlement of said petitioner's first account be extended to the day of A. D., . J. L. H., Judge of Probate. 188 PROBATE PRACTICE. TABLE OF CONSANGUINITY. The reader will draw lines with pencil as follows : A to B., B to C, C to D., A to B., E to F., F to G., F to N., E to H., E to 0., G to K., N to R., A to P., H to I., H to L., to S., P to Q., P to T., I to J., L to M. Grandfather. Uncle. N Father. E Uncle. Q Cousin. R Brother. Deceased. A Brother. H Cousin. K Nephew. s Child. P Child. B Nephew. 1 Nephew, L Grand Child. Grand Child. Grand Child. Grand Nephew. Grand Nephew T Q C J M Great Grand Child. D CHAPTER XVIII. DESCENT. Estate of persons dying testate. Real estate devised and per- sonal estate bequeathed go as provided by the will. Real and personal estate not disposed of by will descends, and is to be dis- tributed as if the deceased had died intestate. ^ Omitted ahildren. A child bora after the death of the testa- tor and not provided for in his will takes the same share of his estate, real and personal, that he would have taken if the father had died intestate, and the devisees and legatees will receive so much less, to be deducted in proportion to the value of what they respectively receive under the will, unless a different apportion- ment is necessary to give effect to the intentions of the testator.^ A child, or issue of a deceased child, not having any devise in the will, takes the share of the testator's estate, which he would have taken if no will had been made, unless it appears that such omission was intentional, or not occasioned by mistake, or that such child or issue had received a due proportion of the estate during the life of the testator.' The presumption is that an omitted child was accidentally and unintentionally overlooked, and this presumption must be rebutted to prevent the operation of the statute. It has been held in Massachusetts that it is not neces- sary that it should appear from the will itself that such omission was intentional, but it may be proved by extrinsic evidence : also that the burden of proof is upon those who oppose the claim of 1 K. S., c. 74, § 2. Walker v. Bradbury, 15 Me. 307. 2 R. S., c. 74, § 8. "Waterman ». Hawkins, 63 Me. 156. ' R. S., c. 74, § 9. 190 PROBATE PRACTICE. an omitted child.' An heir at law is not to be disinherited by conjecture, but only by express words or necessary implication.^ "The heir is not to be disinherited unless the intent to do so is very clearly expressed.'" The unintentional omission of a child is not sufficient ground for opposing the probate of the will.* A devise rejected descends to the heirs at law, if there is no other disposition of the estate by will. The law presumes that the devise will be beneficial to the devisee and that he will accept it. There should be proof therefore that it has been rejected, though no particular fortn of rejection is required.* Real estate of a person dying intestate, descends as follows : — ' "1. In equal shares to his children, and to the lawful issue of a deceased child by right of representation. If no child is living at the time of his death, to all his lineal descendants ; equally, if all are of the same degree of kindred ; if not, according to the right of representation. 2. If no such issue, it descends to his father. 3. If no such issue or father, it descends in equal shares to his mother, brothers and sisters, and when a brother or sister has deceased, to his or her children or grand children by right of representation. 4. If no such issue, father, brother or sister, it descends to his mother to the exclusion of the issue of deceased brothers and sisters. 5. If no such issue, father, mother, brother, or sister, it descends to his next of kin in equal degree ; when they claim through different ancestors, to those claiming through a nearer, in preference to those claiming through an ancestor more remote. 6. When a minor dies unmarried, leaving property inherited'' from either of his parents, it descends to the other 1 Tucker v. Boston, 18 Pick. 163. Wilson v. Fosket, 6 Met. 400. Ban- croft V. Ives, 3 Gray, 367. Ramsdell v. Wentworth, 106 Mass. 330. 2 Howard v. American Peace Society, 49 Me. 388. 3 Red. on Wills, vol. 1, 434. < Doane v. Lake, 33 Me. 368. 5 Bugbee v. Sargeant, 38 Me. 369. Red. on Wills, vol. 3, 865, n. 84. 6 R. S., c. 75, § 1. 1 Benson v. Swan, 60 Me. 160. Cables r>. Prescott, 67 Me. 582. DESCENT. 191 children of the same parent, and the issue of those deceased, m equal shares if all are of the same degree of kindred ; other- wise according to the right of representation. (It will be noticed that this rule applies only to property inherited from the parent. Estate acquired in any other way would be governed by the gen- eral law of descent.) 7. If the intestate leaves no kindred, it descends to the surviving husband or wife, if any ; otherwise it escheats to the state." Half blood inherits equally with the whole blood in the same degree.^ Thus if a man have children by two or more wives and one of the children die, the children of the half blood would inherit the estate of the deceased child equally with those of the whole blood; These several rules are distinct and are each to be construed separately and with reference to the conditions therein respec- tively set forth.^ The words heir, and heirs at law, when unexplained and uncon- trolled by the context, designate the person or persons appointed by law to succeed to the real estate in cases of intestacy. The widow (or widower) is held not to be a legal heir of the deceased.' Issue means all lawful lineal descendants of the ancestor.^ Lineal descendants are children, grand-children, great grand-chil- dren, &c. Right of representation means that they represent or receive the same share that some ancestor would have received if living. First. If the descendants of the intestate are all children, or grand-children, &c., then they all share equally, but if be leaves a child (B) and grand-children (T) and (Q) by a deceased child (P) then the grand-children (T) and (Q) take by right of repre- ' R. 8., c. 75, § 2. Benson v. Swan, cited above. 2 Davis V. Stinson, 53 Me. 493. ' Lord V. Bourne, 63 Me. 368. * R. S., c. 1, § i. 192 PROBATE PRACTICE. sentation the same share, their common ancestor (P) would have received if living, the lineal descendants not being of the same degree. Third. When the intestate left no father or mother or lineal descendants, but a sister (H) a niece (S) bj a deceased sister (0) and a grand-niece (M) by a deceased nephew (L), it was held that the grand-niece (M) took the share that (L) would have taken if living, by right of representation.' Fifth. A nephew (I) is preferred to an uncle (G) though equally related, the father being the common ancestor of the deceased and a nephew, and nearer than the grand-father who is the common ancestor of the deceased and an uncle. Grand-par- ents take the estate in preference to uncles or aunts or their chil- dren.* Posthumous children inherit the same as if they were born during the life time of the intestate.^ An illegitimate child born since March 24, A. D., 1864, is an heir of parents who intermarry ; and such a child born at any time is heir of the mother and the person who acknowledges him- self to be his father, in writing, signed in the presence of, and attested by, a competent witness ; and if his parents intermarry and have other children, or his father adopts him into his family, or so acknowledges him, he shall inherit from his lineal and col- lateral kindred, and they from him as if legitimate. ^ If an ille- gitimate child dies intestate without issue, his estate goes to his niother or her heirs, unless such child leaves a husband or widow, who then inherits an equal share with the mother or with her children." Distribution of personal estate. The residue of personal 1 Reynolds, appt. 57 Me. 350. 2 Kent's Com., vol. 4, 407 ; Cables v. Prescott, 67 Me. 583. * Kent's Com., vol. 4, 413; Waterman v. Hawkins, 63 Me. 156. « R. S., c. 75, § 3. 5R. s., c. 75, §4. DESCENT. 193 estate remaining for distribution is to be distributed by the rules relating to real estate, except that if the intestate leaves a widow, and issue, she takes one-third, if no issue one-half, and if no kin- dred the whole.i A widower has the same share in his wife's estate.' A sum of money received for a life insurance, deduct- ing the premiums paid by the deceased therefor within three years, and interest, descends as aforesaid except that if he leaves no issue the whole goes to the widow. ^ It is not liable for debts, though the estate is insolvent, if the intestate leaves a widow or issue ; otherwise it becomes assets for the payment of debts.^ Real estate held by executors and administrators in mortgage and foreclosed, or taken on execution and not redeemed, is to be distributed as personal estate.' Surplus proceeds of the sale of real estate remaining on final settlement of the accounts of such proceeds are to be considered as real estate and distributed as such.* Executors are required to pay the legacies in time and manner as the will directs, but administrators are required "to pay and deliver any balance, or any goods and chattels, rights and credits, remaining in their hands upon the settlement of their accounts, to such persons as the judge may direct."^ It is held that he is not bound to distribute without a previous order for that purpose.^ Order of distribution. "When on ' settlement of any account of an executor or administrator there appears to remain in his hands any property not necessary for the payment of debts and expenses of administration, nor specifically bequeathed, the judge shall order the same to be distributed according to the will of the deceased, if any, so far as it directs, otherwise according to 1 R. S., c. 65, §§ 8, 9. 2 R. S. 0. 75, § 10. Hathaway and als v. Sherman, 61 Me. 466. ' R. 8., c. 65, § 35. Post chap. xix. Ante. chap. xvi. < R. 8., c. 71, § 23. 5 R. 8., c. 64, § 19. 6 2 Kent Com. 430. 13 194 PROBATE PEACTICB. the provisions of law."-^ The statute applies to distributive shares in intestate estates, and to residuary legacies in testate estates, and not to specific and money legacies. The words "specifically bequeathed," embrace specific, general, pecuniary and all other legacies when the article or sum and person to be paid are particu- larly specified. Residuary legacies are usually, and distributive shares in intes- tate estates, are very frequently paid, without any order of the judge, and when so paid the amount may be allowed in settlement of the accounts of the executors or administrators. Such payment however of distributive shares in intestate estates is not a compli- ance with the statutes, and would be no protection to the account- ants if a mistake should be made as to the person or shares, even if allowed in the settlement of their accounts. The administrator therefore should always obtain an order of distribution, and such decree is necessary to enable one to bring an action on the bond for the nonpayment of any residuary legacy or distributive share. ^ The estate of a foreigner, (that is, a person who, at the time of his decease, was not an inhabitant of this state) administered upon here, should be disposed of according to his will if he left any, if not his real estate will descend according to the laws of this state, and his personal estate according to the laws of the state or country of which he was an inhabitant, and the judge may order it distributed or transmitted to the foreign executor or adminis- trator.' A petition for distribution may be filed by any executor, admin- istrator, residuary legatee, or distributee. 1 R. 8., c. 65, § 27. 2R. S., c. 73, §13. Potter «. Titcomb, 7 Me. 303. 3 R. S., c. 65, §§ 36, 37, 38. Laws of 1876, c. 109. DESCENT. 195 192. [Petition for Distribiiiion.] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents, that there remains in the hands of H. B., executor of the will of, '(or administrator of the estate of) E. F.', late of G., deceased, on the settlement of his account of administration of the estate of said deceased, made at the probate court, held at A., within and for said county, on the Tuesday of A. D. , property not necessary for the payment of debts and expenses of administration, nor specifically bequeathed, to the amount of dollars, which sum remains to be distributed among the persons whose names, residences, and relation- ship are as follows : — Wherefore your petitioner prays that distribution of said balance may be ordered among said persons, and such others as may be proved to be entitled thereto, and the share of each determined. Dated this day of , A. D. . , A. B. Before any order, determining who are heirs and the share of each, shall be passed, public or personal notice must be given to all interested. 1 193. [Order of Notice.'] STATE OF MAINE. ss. At, &c. [Same as Form 7.] Whereas, a petition has been duly filed, praying- that the balance remain- ing in the hands of H. B., executor of the will of, or (administrator of the estate of) E. F., late of G., deceased, on settlement of his account, made at a probate court held at A., within and for said comity, on the — • — Tuesday of A. D., , may be ordered to be distributed among the heirs of said deceased, and the share of each determined. Ordered &c. (Same as Form No. 7.) J. L. H. , Judge of Probate. Any interested party may appear at the time of hearing and be heard. The judge must determine from the evidence pre- sented who are entitled to the property, and the share of each, and must decree the same to them by name and amount. He must therefore determine whether any advancement has been 1 R. S., c. 65, § 37. 196 PROBATE PRACTICE. made, and if so to whom and of what value. Aliens inherit, equally with citizens.^ An advancement is not a loan or gift, but is that which is given by a parent to a child or grand-child in anticipation of what he may inherit on the death of the parent.^ It is a part or all of his distributive share distributed during the life time of the intes- tate, or in advance. Hence interest is not chargeable on an advancement.^ When it exceeds his share he is excluded from any further portion.' He cannot be compelled to refund the excess, but if it is less he is to receive sufficient to make it an equal share.' An advancement made in real, is to be regarded as a part of the real, and when personal, as part of the personal estate.* If it exceeds his share of the one, he receives so much less of the other as will make his whole share equal. If he dies before the intestate, leaving issue, it is to be regarded as made to such issue.* The evidence of an advancement must be in writing. It can- not be proved by parol.' Gifts of real or personal estate are deemed an advancement when so expressed in the writing, or charged as such by the intestate, or acknowledged in writing by him to be such.' When the value of an advancement is determined by the intestate it is to be allowed in the distribution, if not so deter- mined it is to be estimated by the judge from the evidence pro- duced.' If the judge is satisfied that an advancement has been made he will first deduct the share of the widow, if any, from the amount to be distributed.* The balance will be the sum to be distributed to the heirs. To this he will add the value of the advancement (if less than the share of the one who received it,) and divide 1 R. S., c. 65, § 37. 2 Osgood v. Breed's Heirs, 17 Mass. 356. 3 R. S., c. 75, § 6. 4 R, S., c. 75, § 7. 5 Porter ». Porter, 51 Me. 376. Smith ». Smitli, 59 Me. 314. R. S. c. 75, § 5. 6 R. 8., c. 75, § 8. DESCENT. 197 the sura by the number of shares. The quotient will be the amount of the share of a child who has had no advancement. Decree of distribution. If the 'estate is not fully settled the judge will order a sufficient sum to be retained to pay the proba- ble debts and expenses, and order the balance distributed, but if all the debts, expenses, &c., have been paid and nothing remains but to distribute the balance, the judge will deduct a sum suf- ficient to pay the expense of settling a "balance account," and order the residue distributed. The court will not however order a ■distributive share to be paid to a person to whom the heir has assigned it, or the share of one heir to be paid to another.^ 194. l^Order for JJistributio7i.] STATE OF MAINE. ■ S9. At, &0. [Same as Form 7.] Upon the foregoing petition, due notice having been given thereon pursu- ant to law and the order of court. It is decreed that the sum of dollars, now remaining in the hands of H. B., executor of the will of, (or administra- tor of the estate of J E. F., late of G., deceased, be distributed among the heirs (or residuary legatees,) of said deceased, whose names and distributive shares are as follows : — J. L. H., Judge of Probate. The foregoing decree is sufficient authority to the executor or administrator, without any separate order to authorize him at once to distribute the estate. It is deemed conclusive both as to the distributees and the sum to be paid them, so far as to protect an administrator acting in good faith in conforming to it.^ A very fre- quent practice is for the executor or administrator to file in the probate court the receipts of the distributees without settling another account, but the safer and better practice is to settle another account. Appraisal of surplus. "When such surplus consists of any other property besides money, the judge may order a specific dis- ' Knowlton v. Johnson, 46 Me. 489. - Loring v. Steineman, 1 Met. 304. 198 PROBATE PRACTICE. tribution of the same in proportion to the value thereof, and for this purpose he may appoint one or more appraisers to value and make such distribution under oath."' 195. [ Warrant to Appraisers^ STATE OP MAINE. ss. To M. S., and J. P. Greeting. "Wliereas, H. B., of , executor of the will of, (or administrator of the estate of) E. F., late of G., deceased, has now in his hands the following articles of personal estate, viz.; — I do therefore hereby authorize and direct you, after you shall have been duly sworn, to appraise said estate and determine how the same shall be dis- tributed, and make your report as soon as may be. In testimony, &c., (same as No. 43.) J. L. H., Judge of Probate. \^. s.} 196. \Gertificate of Oath.] ss. A. D. Personally appeared M. S., and J. P., and made oath that they would faithfully and impartially perform the duties required of them by the foregoing warrant. Before me, E. M. P., Justice of the Peace. 197. \^Iieport.'\ To the Honorable Judge of Probate for the county of A. Pursuant to the foregoing warrant we have appraised the personal, estate described therein, and do determine and report that the same be distributed as follows, viz : to R. S., (here state the article) valued by us at dollars. To T. "W., &c. Dated this day of A. D. . Fees. J." p! \ Appbaisbes. 1 R. S., c. 65, § 28. ^ DESCENT. 199 198. [Decree.] STATE OF MAINE. At, &c. [Same as Form 7.] Ordered that the foregoing report be accepted, and together with the fore- going warrant be recorded, and that distribution be made according thereto. J. L. H. , Judge of Probate. Assignment. If any estate distributed consists of notes, accounts, debts, or choses in action of any kind, they should be assigned by the executor or administrator, whose name may be used in the collection thereof, on his being indemnified against costs.' 199. [Assignment.] I, A. B., of C, executor of the will of, (or administrator of the estate of) E. F., late of Ot., deceased, by authority and direction of the honorable judge of probate for the county of A., do hereby grant and assign to W. B., of L. the within, Cnote, account, debt, &c.,) with fuU power to collect and discharge the same. Dated this day of , A. D. . A. B. Bond of creditors, heirs and legatees. When an executor or administrator pays a creditor (in a solvent estate) heir or legatee a sum exceeding thirty dollars, the judge may authorize him to require of the. payee a bond to refund so much thereof as may exceed his proportion on final settlement.^ 200. [Authority to require a Bond^ STATE OF MAINE. ss. At, &c., [Same as Form 7.] To A. B., executor of the will of, (or administrator of the estate of) E. F., late of G., deceased. you are hereby authorized to require of any (creditor, heir, or legatee) of said estate a sufficient bond to refund so much of any sum paid them by you, as may exceed their equitable proportion on final settlement of said estate, before paying them the same. J. L. H., Judge of Probate. 1 R. S., c. 65, § 29. Post chap. xxiv. « R. S., c. 65, § 30. 200 PROBATE PRACTICE. 201. [Bond by Ifeir, Legatee or Creditor. \ Know all men by these presents, that we A. B., as principal, and C. D., and L. M., as sureties, all of L., in the county of K., are held and bound untoH. B., executor of the last will of, (or administrator of the estate of) E.F., late of G., deceased, in thefsum of dollars, to which payment well and truly to be made to the said H. B., his heirs, executors, administrators and assigns, we jointly and severally bind ourselves, our heirs, executors and administrators by these presents. Dated this day of A. D. , and sealed with our seals. The condition of this obligation is such that whereas the said H. B. has this day paid to the said A. B., as (creditor, legatee, or heir of said deceased) the sum of dollars, the receipt of which is hereby acknowledged, Now therefore if the said A. B. shall refund so much of said sum by him received as may exceed his equitable proportion on final settlement of the estate of said deceased, then the above obligation shall be void, otherwise to remain in full force. Signed, sealed and delivered in the presence of A. B. [l. s. C. D. [l. 8. L. M. [l. s. An omitted child claiming a share of the estate under the stat- ute,^ should notify the executor before the legacies are paid, and file a petition therefor. If the child is a minor the petition should be filed by the guardian. 202. {Petition of a Child omitted^ To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that he is a child of E. P., late of G., deceased testate, whose will has been duly proved and allowed in the probate court for said county, and H. B., of D. , appointed executor thereof, that the said B. F., in his said will made no provision for your petitioner, who is therefore entitled by law to the same share of the estate of said testator, as he would have been if he had died intestate. Wherefore he prays that the executor of said will be ordered to distribute and pay the same to him. Dated this day of A. D. . A.B. iR. S., c. 74, §§8, 9. DESCENT. 201 The judge should order personal notice to be given to the exec- utor and also to the legatees named in the will, before adjudica- ting thereon*. 203. [Order of Personal Ifoiice.'] STATE OP MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition, Ordered that said petitioner cause H. B., exec- utor of said will, and also H. P., R. W., and M. L., legatees named therein, to be served with an attested copy of said petition with this order thereon fourteen days before the Tuesday of A. D. , that they may then appear at a probate court then to be held at A., within and for said county, at ten o'clock in the forenoon, and be heard thereon. J. L. H., Judge of Probate. -For manner and forni of return of service, see No. 3, and remarks thereon. 204. [Decree on Same.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition, personal notice having been given thereon, pur- suant to the order of court, and the facts therein alleged having been made fully to appear. It is decreed that the said A. B. is entitled by law to the same share of the estate of said deceased as he would have .been if the deceased had died intestate, and that H. B., executor of the will of said deceased pay and distribute the same accordingly. J. L. H., Judge of Probate. The foregoing decree only determines that the petitioner is en- titled to a share of the estate. The amount to be distributed to him is to be determined on petition for a distribution of the estate. See Form No. 192. Funds reserved to pay claims not matured. When any claim does not mature within the time during which suits may be brought against an executor or administrator ,the judge may direct sufficient assets to be retained to pay the same, unless the heirs or devisees 202 PROBATE PEACTICE. give bond to the executor or administrator to pay whatever may be found due on aaid claims.' 205. [Petition to have Assets retained.'] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents, that be is a creditor of E. F., late of G., deceased, to the amount of dollars, according to the claim here- unto annexed which is legally and justly due, tbatH. B., has been duly appointed executor of the will of (or administrator of the estate,) said deceased, and given due notiqe of his appointment, that a cause of action on your petitioner's claim does not accrue within the time limited by law for bringing actions against the said executor (or administrator.) Wherefore he prays that said H. B., may be directed to retain sufficient assets to pay your petitioner whatever may be due on said claim. Dated this day of , A. D. . . A. B. The claim must be annexed to the petition and verified by affi- davit, as required in case of claims presented to commissioners on insolvent estates. The judge should order personal notice of said petition to be given to the executor or administrator, and also to the legatees or heirs. 206. [Order of personal notice to Executor or Administrator.] Same as No. 64. The claimant must satisfy the judge that there is reasonable ground to believe that the claim is valid and can be enforced at law. 207. [Decree that Assets be retained.] STATE OF MAINE. SB. At, &c. [Same as Form 7. J On the foregoing petition, personal notice having been given thereon pur- suant to the order of court and the facts having been made fully to appear. It is decreed that H. B., executor of the will of, Cor administrator of the estate of) E. F., deceased, retain the sum of dollars to pay whatever 1 Laws of 1873, c. 85, §§ 14, 15, 16. DESCENT. 203 sum may be found due on said claim, no one liaving appeared to give bond to pay the same. J. L. H., Judge of Probate. If no bond is given the claimant must bring his action within six months from the time when his claim matures.' If a bond is given, no assets shall be ordered to be retained to pay said claim, but the petition should be dismissed. 208; \_£ond of Heirs or Devisees.^ Penal clause, same as No. 26. The condition of this obligation is such that whereas A. B., of C, has filed a petition in the probate court for the county of A., alleging himself to be a creditor of E. P., late of G., deceased, whose estate is being settled in said county, and that his claim does not mature within the time allowed for bringing suits against the executor of the will of said deceased, for adminis- trator of said estate,) and praying that H. B., executor of said will, (or administrator of said estate) may be ordered to retain suflBcient assets to pay said claim. Now therefore if the said R. W., who is an heir (or devisee) of said estate shall pay to said alleged creditor whatever may be found due on his said claim, then this obligation shall be void, otherwise to remain in full force. Signed, sealed and delivered in presence of R. W. [L. s.] C. D. [L. s.] H. W. [l. s.] Form of approval same as No. 166. The foregoing bond must be approved by the judge and ordered to be filed and recorded. The claimant may pursue the estate into the hands of the heirs or devisees, or maintain an action on said bond, in the name of the executor or administrator. ^ 209. . [^Decree dismissing Petition.] STATE OF MAINE. S3. At, &c., [Same as Form 7.] On the foregoing petition, the heirs (or devisees) of the estate having given bond to pay whatever may be found due on the claim mentioned therein. It is decreed that the same be dismissed. J. L. H., Judge of Probate. 1 Law of 1872, c. 85, §§ 14, 15, 16. CHAPTER XIX. PARTITION OF REAL ESTATE. "The court of probate, having jurisdiction of the estate of any deceased person, may make partition of all his real estate in this state, among his heirs, or devisees, and all holding under them, when the proportions of the respective parties are not in dispute between them, or do not appear to the judge to be uncertain, depending upon the construction of any devise or other convey- ance, or upon other questions that he thinks proper for the consid- eration of a jury and a court of common law.''^ "No conveyance of the interest of any heir or devisee, in the lands of the deceased, by deed, levy of execution, or otherwise, shall take from the judge of probate his jurisdiction to divide and assign such lands in manner aforesaid, but the same shall enure to the equitable owner of the part so conveyed."^ ^'Saving jurisdiction" means the court in which the estate has been or is being settled. Partition may be ordered though the estate has been settled many years."* "Any reversion or remainder vested in the heirs, expectant oh the determination of any particular estate under the will or other- wise, may be in like mamier divided, either during the existence of such particular estate or after its determination."^ The prem- ises therefore assigned to the widow as her dower, may be divided among the heirs or persons entitled thereto, during the lifetime of the widow. I R. S., c. 65, § 8. 2 R. s., c. 65, § 13. 3 Bar u. Rowe, 35 Me. 414. « R. S., c. 65, § 9. PARTITION. 205 Real estate held by an executor or administrator in mortgage and foreclosed, the right of redemption having expired, or taken on execution and not redeemed, may be divided in the manner herein provided, but among the persons entitled by the law of dis- tribution to the personal estate.* The widow would therefore be entitled to her share in such real estate absolutely. Such real estate may be given to the widow as an allowance.^ If an executor or administrator who has taken land on execu- tion for debt, dies without disposing of the same, the judge may license his executor or administrator to sell and convey it and carry into effect the trust whereby it is held.' Petition. Persons desiring the division of real estate must file in court a petition therefor. Guardians may petition for a divi- sion of the real estate of their wards.* Partition may be ordered on the petition of any of the owners of any share, after the requisite notice to the other owners.^ 210. [Petition for Pai'tition of Real JEstate.} To the Honorable Judge at Probate for the county of A. A. B., of C, respectfully represents, that E. F., late of G., in said county, deceased, of whose estate the probate court for said county has now juris- diction, died seized and possessed of the following described real estate, viz : (The land should be accurately described by metes and bounds), that the pro- portions of the parties now owning the same are not in dispute, nor uncer- tain, that the names, residences and shares of. said owners, and the capacity in which they own (such as heir, devisee or grantee of heir or devisee, ) are as follows : . (If any of the owners are minors, their names must be stated, together with the name and residence of their guardian. If any minor has no guardian, that fact must be stated. If any advancements have been made to any heirs, the names of the persons to whom and the value of the real estate advanced must be fully stated. ) Wherefore your petitioner prays that partition of the above described real estate may be made amonff the aforesaid owners according to law. Dated this day of — -, A. D. . A. B. 1 See chap, xviii. R. S., c. 65, § 35. » B. 8., c. 65, § 34. 2 Oilman v. Gilman, 55 Me. 531. * R. 8., c. 67, § 14. 5 R. S., c. 65, § 16. 206 PROBATE PRACTICE. If the intestate left several separate parcels of land, or if the testator devised to the same person an interest jointly with others in more than one piece, the petitioner may pray for a division of one or more of the pieces as he desires ; but if he requests the division of only one piece, the judge may, on motion of any inter- ested party, order the partition of any other piece which such party desires to have divided. ^ The motion to have other pieces included, should be in writing and accurately describe the land to be included. Notice. The statute requires that personal notice shall be given of the pendency of the petition to each of the other owners in the state, and also public notice if any reside out of the state.^ Guardian ad litem and agent. "If it appears to the 'COurt that any minor or insane person, who has no guardian in the state is interested in the premises, the court shall assign him a guar- dian for the suit, to appear for him and defend his interest; and if any owner reside without the state, having no agent therein, the judge shall appoint an agent to act for him."^ For form of appoint- ment of guardian ad litem and agent see No. 67. Notice. After appointing the necessary guardians and agents, the judge will make the following order of notice, and great care should always be exercised that all parties interested, however remote, are duly notified.' 211. \^Order of Personal Notice.'] STATE OF MAINB. s&. At, &c. [Same as Form 7.] On the foregoing petition, It is ordered, tliat notice thereof be given 1 E. S., c. 65, § 15. 2 R. S., c. 65, § 16. For manner of service and form of return, see No. 3, and remarlis thereon. By leave of the judge, the petition* may be taken from the files for the purpose of having the return made thereon. ' R. S., c. 65, §§ 16, 18. PARTITION. 207 to the owners of the real estate therein named, who are twenty-one years o age, if they can be found within this state, and to H. P., of D., guardian of the minors therein named, and to R. W., of M., who is hereby appointed guardian a(J litem to P. E., therein named, and to H. D., of K., who is hereby appointed agent for L. b., therein named, who resides without this state, having no agent herein, and to D. T., of O., with whom said real estate is held in common, by leaving at the last and usual place of abode of each of them, or delivering in hand to eacli, a true and attested copy of said petition, with this order of court thereon, fourteen days at least before the Tuesday of next, that they may appear at a probate court then to be holden at A., within and for said county, at ten o'clock in the forenoon, and show cause, if any they have, why the prayer of said petitioner should not be granted. It is further ordered that said guardian ad litem and agent be at the same time served with their letters of appointment. J. L. H., Judge of Probate. 212. [Order of Public Notice.'] STATE OP MAINE. ss. At, &c. [Same as Form 7.] A. B., of C, having presented a petition praying that certain real estate described therein, of which E. F., late of 6., died seized and possessed, and which is. now owned by him in common with others therein named, may be divided and partitioned, Ordered, &c. [Same as No. 7.] J. L. H., Judge of Probate. Notice to cotenant. If the real estate to be divided was held by the testator or intestate in common with other persons, the judge shall order personal notice of the intended division to be given to the cotenant, which notice must contain a description of the premises and the proportion claimed as belonging to the deceased.^ If the cotenant does not reside in the state, notice may be given by publication, or otherwise as the judge requires.^ Any interested party may appear at the hearing and be heard. If the material facts alleged in the petition are proved and if it is made to fully appear that notice has been given as ordered, that the proportions of the owners are not in dispute or uncertaip, and 1 H. 8., c. 65, § 19. 208 PROBATE PEACTICE. that there is no question of law or fact in relation to the matter proper to be submitted to a jury or common law court, the judge, after determining their respective rights, will order the partition prayed for and appoint three disinterested persons (not related to the parties within the degree of second cousin inclusive) to make the division. 1 213. \_Decree ordering Partition of Heal Estate-^ STATE OF MAINE. S3. At, &c., [Same as Form 7.] On the foregoing petition, notice thereof having been given pursuant to the order of court, and the facts therein alleged having been made fully to appear, and it appealing that the proportions of the respective parties are not in dispute, nor uncertain. Ordered, that partition of the real estate described therein be made as prayed for, and that T. W., H. B. and R. P., three disinterested persons, be appointed commissioners to make said partition, and that a warrant issue to them accordingly,. J. L. H., Judge of Probate. 214. [ Warrant to make Partition of Real Estate^ STATE OF MAINE. ss. To T. W., H. B. and R. P. Greeting. Whereas, E. E., late of G., in said county, deceased, of whose estate the probate court for said county has jurisdiction, died seized and possessed of the following described real estate, viz : (copy the description given in the petition) which real estate is now owned by the persons whose names, resi- dences and respective shares are as follows: (liere state the name, resi- dence and share of each ; also the value of any real estate advanced and the names of the person receiving the same); and whereas, on petition duly filed, it was decreed by the judge of said court, that said real estate be divided among said owners in proportion to their respective shares ; I do, therefore, by virtue of the power vested in me by law, hereby appoint you commissioners to make said partition. 1. Before entering upon your duties, you will take the oath prescribed by 1 R. S., c. 65, §§ 10, 19. PAKTITION. 209 law before the judge of probate or a justice of the peace, whose certificate you will return into our said court.' 3. You will appoint a time and place for making said partition, and give at least fourteen days notice thereof in writing to each of the aforesaid owners, their guardians or agents, and annex to your return on this warrant a copy of said notice so given. The notice may be delivered in hand or sent by mail. 3. Tou will first divide and set ofE the estate of the said deceased held in common with D. T., according to their respective shares.' 4. You will appraise all the real estate above described (except the part set oif to any cotenant), each piece by itself, at its present money value, and also determine the aggregate value of all the pieces. 5. After appraising said estate, you will then determine the value of the share of each owner, and assign and set ofE to each, by metes and bounds, his proportional share of the estate in value. 6. When the whole or any part of the premises, of greater value than either party's share, cannot be divided without great inconvenience, you may assign the same to any one or more of the parties who will accept and pay to the others such sum or sums of money as you shall award to make the partition just. But in such assignments males shall be preferred to females, and the elder to the younger children of the same sex.' 7. When you have completed said partition, you will return this warrant with your doings thereon, into our said probate court. In testimony whereof I have hereunto set my hand and the seal of said court at a probate court holden at A., within and for said county, on the Tuesday of A. D. . {-■} J. L. H., Judge of Probate. 215. [^Certificate of Oath.] . A. JD. Personally appeared T. W., H. B. and R. P., the commissioners above named, and made oath that they would faithfully and impartially perform the duties required by the foregoing warrant. Before me, J. M. W., Justice of the Peace. 2R. S.,c.65, §19. 1 R.,S., c. 65, §10. ' R. S., c. 65, §§13, 13, 14 14 210 PEOBATB PRACTICE. If the estate is in different counties, the judge may appoint separate commissioners for each county.^ He may revoke any warrant and grant a new, one or not; as circumstances require.'' The directions given in the foregoing warrant, which embody all the material provisions of the statute, will sufBciently define the duties of the commissioners. Notice by Commissioners. The statutes nowhere require the commissioners to give notice to the owners of the time of making the partition, but it is believed that it has always been the prac- tice to order and to give notice. It may be given personally by one of the commissioners, or notices may be sent to the parties in- terested, or their guardians and agents, by mail. 216. [^Notice of Time of making Partition^' To . You are hereby notified that the undersigned have been duly appointed by the Honorable judge of probate, for the county of A., commissioners to divide certain real estate described In the warrant to us directed, and of which B. F., late of G., In said county, died seized, and that the day of 18 — , and the of in , in said county, are the time and place appointed therefor, at which time and place you may be present and heard in relation thereto. Dated this day of , A. D. . T. W. ) H. B. >■ COMMISSIONEKS. R. P.) Before making the assignment and award mentioned in para- graph 6 of the warrant, the commissioners should satisfy them- selves, as well as they can, wh COMMISSIONBES. Fees. R. P. ) 218. [Qertificate of Acceptance hy owners.^ We, the undersigned, being all the persons interested in the foregoing report, hereby assent thereto, and request that the same be accepted, and that the partition as made by the above commissioners be established without further notice, and we to whom money was awarded acknowledge the receipt thereof or security for the same. 212 PROBATE PBACTICE. If the parties interested do not certify their acceptance of the report, the practice has been to order notice to be given thereon by publication before the report is accepted, although no notice is required by statute. 219. [Order of JVbiice.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] The commissioners appointed to make partition of the real estate of which E. F., late of Q., in said county, died seized, having made return of their doings. Ordered, &c. [Same as No. 7.] ^ In case an heir or devisee, to whom money has been awarded, on an unequal division of the premises, has conveyed away his interest, or the same has been taken on execution or is under attachment, the grantee, or plaintiff, or attaching officer, may make written application to the judge before the report is accepted, for the share of such heir or devisee, and after notice to such heir or devisee, the judge may decide in favor of such, owner, and he shall be entitled to receive said share of the money, or so much as is proportional to his equitable interest. In case of an attach- ment the money is to be paid to the officer.^ The judge may set aside the report and. commit the case anew to the same or other commissioners.^ The report should not be accepted till all sums awarded by the commissioners to be paid by one owner to another have been paid, or secured to the satisfac- tion of the parties entitled thereto.' The evidence of the satis- faction of the parties, should be in writing and endorsed on the report. See No. 218. If said sums are not paid or secured, the report should be recommitted. 220. [Decree accepting the Report.'] STATE OF MAINE. ss. At, &c., [Same as Form 7.] On the foregoing return of conmiissioners, notice having been given 1 R. S., c. 65, §§ 13, 14. » R. S., c. 65, § 13. 2 R. S., c. 65, § 30. For form of decree see No. 331. PARTITION. 213 ftereon pursuant to the order of court (or all parties interested therein, having assented thereto and requested that the same he accepted, ) and all sums of money awarded having been paid, or secured to the satisfaction of the par- ties entitled thereto. It is decreed, that the said return be accepted and recorded, and that the several parts of the real estate therein described be assigned and set ofE to the respective parties therein named, to have and to hold the same in severalty, to them and their heirs and assigns, according to the partition made by said commissioners, and set forth iu their return. J. L. H., Judge of Probate. The return must be recorded in the probate office and also in the registry of deeds in the county where the lands lie.^ 221. [Decree setting aside a Report.'] STATE OF MAINE. SB. At, &c. [Same as Form 7.] On the foregoing return of commissioners, Ordered that the same be not accepted and that said commissioners (or that B. C, D. E. and H. G., be appointed to) make a new partition of said estate. J. L. H., Judge of Probate. A copy of the decree with the original papers should be given to the commissioners, who will proceed to divide the estate as if no division had been made. If new commissioners are appointed, a new warrant must be issued to them. Expenses how paid. The expenses of making the partition are to be paid by the owners of the' real estate in proportion to their interests.^ If however the executor or administrator has not closed his final account and has personal estate in his hands suffi- cient therefor, the judge may, after notice, order him to pay said expenses, if he deems the same proper and just.^ As soon there- fore as the return of the commissioners has been accepted, the petitioner, (who should pay the expenses in the first instance) should file in court an account of the expenses, with a petition praying to have the same allowed and ordered to be paid by the ' B. 8., c. 65, § 20. 2 E. S., c. 63, § 31. 214 PROBATE PRACTICE. proper parties. The usual expenses are the petitioners' travel and attendance, fees of the commissioners and guardian ad litem and agents, paid by him, and money paid for giving notices and recording. 222. [^Petition to have Expenses paid and allowed^ To the Honorable Judge of Probate for the bounty of A. A. B., of C, respectfully represents that partition of the real estate whereof E. F., late of G., in said county, died seized, has been made among the owners thereof and duly confirmed and recorded in the probate court for said county, that your petitioner has advanced and paid out the expenses of making said partition amounting to the sum of — = — do^ars, an account of wliich is hereunto annexed. Wherefore your petitioner prays that said account may be allowed and ordered to be paid to your petitioner by the owners of said real estate for by the executor of the wUl of, or administrator of the estate of said deceased). Dated this day of , A. D. . A. B. 223. [^Order of Personal JV^otice.] STATE OP MAINE. ss. At, &c. [Same as Porm 7.] A. B., having filed a petition, praying that the owners of the real estate of which E. P., late of Q., in said county, died seized, (or the executor of the will of, or administrator of the estate of E. P., late of G., deceased,) may be ordered to pay the expenses of making partition of said real estate. Ordered, &c. [Same as No. 64.] J. L. H., Judge of Probate. . 224. [^Decree ordering Payment of Expenses.] STATE OP MAINE. ss. At, &c. [Same as Porm 7.J On the foregoing petition and account annexed, notice having been given thereon pursuant to the order of court, and the facts alleged therein having been made fully to appear. It is decreed, that said account amounting to the sum of dollars be allowed, and that the same be paid to said petitioner as follows: — (here state the person who shall pay it and the sum to be paid by each.) J. ]j. H., Judge of Probate. PARTITION. 215 In case of neglect or refusal to pay such expenses, the judge may issue his warrant of distress against such delinquent for the amount due with costs of process.' 225. [Petition for Warrant of Distress.] To the Hono rable Judge of Probate for the county of A. A. B., of C, respectfully represents that pursuant to a decree of the judge of probate for said county, passed on the Tuesday of A. D., , directing to pay to your petitioner the sum of dollars each, the same being their respective shares of the expenses of the partition of the real estate, whereof E. F., late of G., in said county died seized, he demanded of them the payment thereof, which they have wholly neglected and refused to pay. Wherefore your petitioner prays that a warrant of dis- tress may issue according to law. Dated this day of , A. D., . A. B. 226 [Decree on Same.'] STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing petition, the facts therein alleged having been made fuUy to appear, It is ordered that a warrant of distress be issued as prayed for. J. L. H., Judge of Probate. 227. [ Warrant of Distress.] STATE OF MAINE. ss. To the sheriff of our respective counties or either of their deputies. Greeting. Whereas A. B., of C, in said county has presented to the judge of pro- bate for said county an account of the expenses of the partition of the real estate whereof E. F., late of G., in said county died seized and possessed, among the owners thereof, which said account was duly allowed by sai(J judge and apportioned among said owners, and ordered to be paid as fol- lows : , and whereas it appears to said court that the several sums afore- 1 E. 8., c. 63, § 31. 216 PEOBATE PRACTICE. said have been demanded of said owners and that said have wholly neglected and refused to pay the same pursuant to said decree. We there- fore command you that of the money, goods or chattels of the said , within your precinct, you csijise to be paid and satisfied unto the said the several sums to be by them paid as aforesaid, together with costs of process and also your own fees ; and for want of goods, money and chattels of the said to be shown to you or found within your precinct to satisfy the sums aforesaid, you are to take the bodies of the said and them commit unto our jaU in A., in said' county, and we command the keeper thereof to receive the said into said jail and them safely keep nntil they pay the sums aforesaid together with your fees, or are discharged therefrom pursuant to law. Hereof fail not and make due return of this warrant together with your doings thereon. In testimony whereof, I have hereunto set my hand and the seal of said court at a probate court, held at A., within and for said county, on the Tuesday of A. D., . ,._i^ J. L. H., Judge of Probate. CHAPTER XX. DOWBK. "The judge of probate, having jurisdiction of the settlement of a deceased husband's estate, may assign dower to the widow, when her right of dower is not disputed by the heirs or devisees, in the lands of which the husband died seized, in any county, including a wood lot, or other land used with the farm or dwelling house, though not cleared, but not including wild lands."^ "Having jurisdiction" means the court in which the estate has been or is being settled. Jurisdiction to assign dower extends to lands in any part of the state.' Parties claiming under the heirs or devisees, may dispute the right, and thus oust the judge of his jurisdiction.^ Bower defined. Dower is the provision which the lay (common and statute) makes for the widow or husband' out of the lands of the other. It has reference solely to real estate.* It is a third part in productive valued (not acres) of the real estate whereof the husband, or wife whose estate is solvent, was seized, if they left issue ; if no issue, and the estate is intestate and solvent, it is one-half part thereof;' so that the person endowed may enjoy during his or her natural life one-third (or one-half as the case may be) of the rents and profits or income of the estate.' Being but a continuation of the estate of the deceased, nothing remains to be done but to have it distinguished or assigned.^ 1 R. S., c. 65, § 1. 2 French v. Crosby, 33 Me. 376. 3 K. S., c. 65, § 7 ; R. S., c. 103, § 15. * Dow ». Dow, 86 Me. 311. « Conner v. Shepherd, 15 Mass. 164; Vol. 4, Kent's Com. 85 ; R. S., c. 65, §§ 6, 7. * VoL i, Kent's Com. 62. 218 PROBATE PRACTICE. Hence the heirs, devisees or guardians of minors,^ may assign dower, even verbally. Marriage, death, and seizin at the time of death^ are neces- sary to give the probate court jurisdiction. Marriage in fact, though not legal, if not annulled, is sufficient.' A divorce, unless decreed for the fault of the husband, bars dow er.* Seizin in law or a right of possession is sufficient.' It is not therefore neces- sary that the deceased should have been in actual possession. Whether the probate court has jurisdiction to assign dower in lands mortgaged by the deceased does not appear to have been settled by the courts of this state. A widow is dowable in lime and other quarries which have been opened and wrought.* But not in lands possessed by the husband under a contract of purchase and paid for, but not conveyed.' Dower barred. If lands are conveyed to an intended wife before marriage, to be in lieu of dower, to take effect on the decease of the husband, or if a pecuniary provision is so made for her benefit for said purpose, it bars her dower, if such convey- ance or provision is consented to by her, (such consent being expressed by her becoming a -party to the conveyance, if of full age, and by joining with her father or guardian if under age.') Lands so conveyed, or any pecuniary provision so made before marriage, without her consent, or made after marriage, with or without her consent, with her knowledge, will have the same effect, unless the widow within six months after her husband's death, elect in writing, filed in the probate court, to waive such 1 R. S., c. 67, § 14. Curtis v. Hobart, 41 Me. 230. 2 R. 8., c. 65, § 1. » Vol. 4, Kent's Com. 37. Carter b. Parker, 38 Me. 509. Red. on Wills, vol. 3, 389. « R. S., c. 60, § 7. Vol. 4, Kent's Com. 58. 5 Vol. 1, Wash on real prop. 173. « Moore ». Rollins, 45 Me. 493. ' Hamlin ». Hamlin, 19 Me. 141. 8 R. 8., c. 103, §§ 7, 8. Vance v. Vance, 31 Me. 364. DOWER. 219 • provision and claim her dower. ^ So a specific provision made for a widow in her husband's will, bars her dower, unless within six months, from the probate thereof she declines to accept said pro- vision, and claims her dower, provided that she shall not be en- titled to both unless it appears by the will, that the testator plainly so intended.^ The foregoing provision applies also to the husband of a deceased wife.' The widow by waiving the provisions of the will does not thereby become entitled to a distributive share in any part of the personal estate which has been disposed of by the testator.* The share of the widow thus waived would go to the residuary lega- tees, if there are any ; if not, the same would descend by the law of descent,^ she receiving her share thereof. The judge may however make her an allowance as previously stated.* If the widow waives any provision made for her, such waiver should be in writing and filed in court and recorded. 228. [ Widow's Waiver.] To the Honorable Judge of Probate for the county of A. A. B., widow of E. F., late of 6., In said county, deceased, respectfully represents that the said E. F., in his last will which was duly proved and allowed in the probate court for said county on the Tuesday of A. D. , made provision for her, which provision she hereby waives and declines to accept, and hereby gives notice that she will claim her dower in the real estate of said deceased and so much of the personal estate as she may be entitled to by law. Dated this day of , A. D. . A. B. 1 R. S., c. 65, § 4. Bubier o. Roberts, 49 Me. 460. Hastings v. ClifEord, 33 Me. 132. 2 R. 8., c. 65, § 5. Hastings v. ClifEord, 32 Me. 133. ' R. S., c. 103, § 15. c. 65, § 6. * Perkins v. Little, 1 Me. 148. ■' Ante chap. xii. ^ Ante chap. xlii. 220 PKOBATB PRACTICE. 229. [Decree thereon.] STATE OF MAINE. ss. At, &c. [Same as Form 7.J On the foregoing waiver. Ordered tliat the same he filed and recorded. J. L. H., Judge of Probate. 230. l^Petition for Assignment of Dower ^ To the Honorable Judge of Probate for the county of A. AB., of C, widow of E. F., late of G., deceased, of whose estate the probate court for said county has now jurisdiction, respectfully represents, that said deceased died seized and possessed of the following described real estate in which she is entitled to dower, viz : (The land should be accu- rately described by metes and bounds. If the land is held in common with other persons that fact must be stated.) She further represents that her right of dower in said land is not disputed by the heirs or devisees, and that the names and residences of the persons interested in the same are as follows. (If any of the owners are minors, the fact must be stated, together with the name and residence of their guar- dian. If any minor has no guardian that fact must be stated.) She therefore prays that her dower in said estate may be assigned to her according to law. Dated this day of , A. D. . A. B. "If it appears to the court that any minor or insane person, who has no guardian in the state, is interested in the premises, the court shall assign him a guardian to the suit, to appear for him and defend his interest ; and if any owner reside without the state, having no agent therein, the judge shall appoint an agent to act for him."i The petitioner must see that the persons so appointed are immediately served wtth their letters of appoint- ment. The statute nowhere expressly requires notice of the petition to be given to the^ heirs, devisees, or parties interested, except 1 E. S., c. 65, § 18. For forms of appointment of guardians ad litem and agents, see Form No. 67. DOWER. 221 when the estate is owned in common with other persons,^ but the practice has been to order notice thereof to be given. 231. [Order of Public Wotice.l STATE OF MAINE. SB. At, &c., [Same as Form 7.] A. B., widow of E. F., late of G., deceased, having presented her petition praying that dower in certain real estate therein described may be assigned to her. Ordered, &c., (Same as No. 7.) 232. [Order of Personal Wotice.] First part same as above. Ordered, &c., (Same as No. 211.) Hearing on the petition. If at the time of hearing it is made fully to appear that notice has been given as ordered, that the material allegations in the petition are true and that the right of dower is not disputed by the heirs, devisees, or persons claim- ing under them,^ the judge will decree that dower be assigned as prayed for. The judge has no power to decide any question of title. If the right of dower is disputed by a person having a right to dispute the same, his jurisdiction is thereby ousted.' The per- sons appointed must be disinterested, that is, not related to the widow, heirs or devisees within the degree of second cousin inclu- sive.' 233. [Decree appointing persons to assign Dower.J STATE OF MAINE. -ss. At, &c. [Same as Form 7.J On the foregoing petition, notice thereof having been given pursuant to the order of court, and it appearing that the petitioner is entitled to her dower in the real estate therein described, and that her right of dower is not disputed by the heirs or devisees. It is decreed, that H. B., P. R., and T. W., three discreet and disin- terested persons, be appointed commissioners to assign to the petitioner her dower in said estate, and that a warrant issue to them accordingly. J. L. H., Judge of Probate. 1 R. S., c. 65, § 19. 2 French v. Crosby, 33 Me. 376. ' R. S., c. 1, § 4. Spec. 23. 222 PROBATE PRACTICE. 234. [ Warrant to Oommissioners to assign Dower.] STATE OF MAINE. ss. To H. B., P. R., and T. W., , Greeting. Whereas, E. F., late of G., in said county, deceased, of whose estate the probate court for said county has jurisdiction, died seized and possessed of the following real estate, viz : — (copy the description in the petition,) and whereas, A. B., of C, widow of said deceased, is entitled to her dower in said real estate : I do, therefore, by virtue of the power vested in me by law, hereby appoint you commissioners to assign and set ofE the same, without favor or affection, as conveniently as may be, in one or more parcels, for the best interest of the parties. 1. Before entering upon your duties you will take the oath prescribed by law before some person authorized to administer oaths, whose certificate you will return into our said court. 3. you will appoint a time and place for making said assignment, and give at least fourteen days notice thereof in writing, to the persons interested therein, their guardians and agents, viz : to . The notice may be de- livered in hand or sent by mail. 3. You will first divide and set off the estate of said deceased held in com- mon with R. S., as above stated, according to their respective shares. 4. You will appraise said real estate (except the part set off to any coten- ant), and also the annual rents and profits thereof, each parcel by itself, at its present^ money value, and also determine the annual rents and profits of the whole. 5. You will then assign and set oiEE by metes and bounds to the said widow of said deceased, equally and impartially, without favor or affection, and con- veniently as may be, in one or more parcels, as may be for the best interest of the parties, such part or parts of said real estate as wiU yield her one-third part of the annual rents and profits of the same. 6. If a division by metes or bounds cannot be conveniently made, you are to assign dower in a special manner, as one-third of the rents and profits of certain specified real estate, or one-third of the time, &c. 7. When you have completed said assignment you will return this warrant with your doings thereon into our said probate court. In testimony whereof, I have hereunto set my hand and seal of said court at a probate court, held at A., within and for said county, on the Tuesday of , A. D. 18— J. L. H., Judge of Probate. 1 Catlin «. Ware, 9 Mass. 218. {-•■} DOWER. 228 235. {^Certificate of Oath.] ss. A. D., 18 -. Personally appeared H. B., P. R., and T. W., the commissioners above named, and made oath that they would faithfully and impartially perform the duties required by the foregoing warrant. Before me, J. W. M., Justice of the Peace. The duties of the commissioners are set forth specifically in the foregoing warrant which embraces all the material requirements of the statute, and should be strictly followed. The notice therein directed to be given is not required by law, and their report would in most cases be accepted if it was omitted, but nevertheless it ought always to be given. 236. \_N'otice to Heirs and Devisees.] See No. 216. The judge may revoke any warrant issued by him for the assign- ment of dower and grant a new warrant or not, as circumstances require.^ [See form No. 126.] A copy of the decree revoking any warrant should be served on the commissioners, if the warrant has been issued. 237. \_Co7nmissioners' Return.] To the Honorable Judge of Probate for the county of A. Pursuant to the foretroing warrant to us directed, we, the undersigned, commissioners therein named appointed to setoff and assign to A. B., widow of E. F., late of G., deceased, her dower in the real estate therein described, have performed said duty, and respectfully submit the following report of our doings. 1. Previous to entering upon our duties, we took the oath prescribed by law, a certificate of which is herewith returned. 1 E. S., c. 65, § 17. 224 PROBATE PRACTICE. 2. We appointed a time and place for asBigning said dower, and gave notice thereof to the persons and in the manner directed, a copy of which notice is hereunto annexed. 3. Before making said assignment of dower we divided and set off the estate of the deceased from that of the cotenant as directed in the warrant, and assigned to each the following parcels, viz ; 4. We appraised the real estate described in said warrant (after setting off the cotenant's share) at its present money value, and also the value of the annual rents and profits thereof. The following is a brief description of each parcel, with the value and annual profits of the same expressed in words at length: 5. We have assigned and set off to the said A. B., widow of the said deceased, to have and to hold as her dower in his said real estate, the follow- ing described premises which we estimate will produce a yearly income of doDars, being one-third of the annual profits of aU the real estate, of said deceased, viz : Dated this day of , A. D. . H. B.) P. K. y COMMISBIONBES. T.W.) Fees. The report of the commissioners must be returned to the judge. The fees of the commissioners and all other costs should be paid in the first instance by the petitioner. The practice has been very general to order notice to be given of the return of the com- missioners by publication, but the same is not required by statute, and may be ordered or not at the discretion of the judge. The assignment of dower is not effectual until the return has been made and is accepted by the court.^ It must then be recorded in the probate office, and also, with the decree accepting the same, in the registry of deeds for the county where the lands lie.i 238. [Decree assigning Dower.] STATE OP MAINE. ss. At, &c., [Same as Form 7.] On the foregoing return of commissioners, notice having been ^ven I R. S., c. 65, § 20. Austin v. Austin, 50 Me. 74. DOWER. 225 thereon pursuant to the order of court, It Is decreed, that said return be accepted and recorded, and that the premises therein set ofE to A. B., widow of E. F., late of G., deceased, be assigned to her as her dower in the real estate of said deceased, to have and to hold the same as tenant in dower dur- ing her life. J. L. H., Judge of Probate. The judge may set aside the return and commit the same anew to the same or other commissioners.^ For form of decree see No. 221. The expenses of assigning dower are to be paid by the same persons and in the same manner as the expenses of the division of the real estate. See chapter xix, Form No. 222, and remarks thereon. IE. S.,c. 65, §30. 15 CHAPTER XXI. APPEALS. "The supreme judicial court is the supreme court of probate, and has appellate jurisdiction in all matters determinable by the several judges of probate ; and any person aggrieved by any order, sentence, decree or denial of such judges, except the appointment of a special administrator, may appeal therefrom to the supreme court to be held within and for the same county, if he claims his appeal within twenty-days from the date of the proceeding appeal- ed from ; or if, at that time, he was beyond sea, or out of the United States, and had no sufficient attorney within the state, w^fhin twenty days after his return or appointment of such attor- ney."! "Within the time limited for claiming an appeal, the appellant shall file, in the probate office, his bond to the adverse party, or to the judge of probate for the benefit of the adverse party, for such sum and with such sureties, as the judge approves ; conditioned to prosecute his appeal with effect, and pay all intervening costs and damages, and such costs as the supreme court taxes against him, and also file in the probate office the reasons of appeal ; and four- teen days at least before the sitting of t he appellate court, shall serve all the other parties, who appeared before the judge of pro- bate in the case, with a copy of such reasons, attested by the register of probate ; but in case of controversy between a person under guardianship and his guardian, the supreme court may sus- tain an appeal on the part of the ward without such bond."^ 1 R. S., c. 63, § 21. Peters v. Peters, 8 Cush. 539. 2 R. S., c. 63, § 33. APPEALS. 227 "After an appeal is claimed, and the bond and reasons of appeal filed, all further proceedings, in pursuance of the matter appealed from, shall cease, until the determination of the supreme court thereon. "1 "Matters determinable by the several judges of probate" means matters over which the court has jurisdiction. An appeal therefrom, taken when the probate court has no jurisdiction, will be dismissed in the appellate court.^ ^^ Any party aggrieved." No person can be aggrieved unless he has an "interest in the subject matter of the decree."^ "It is not a remote and contingent interest, or wish dictated by whim or policy, without any pecuniary interest to be directly affected by the decree, that will suffice."^ "In legal acceptation, a party is aggrieved by such decree only when it operates on his property or bears upon his interest directly."' A surety on the bond of an executor, administrator, guardian or trustee, has no right of appeal.* The heirs of an intestate have no right of appeal from the decree of the Judge of Probate accepting the report of the commissioners on exorbitant claims.' A person aggrieved in legal contemplation may appeal, though he was not a party to the proceedings in the probate court.' 238. [^Appeal and Reasons.'] To the Honorable Judge of Probate for tlie county of A. A. B., of C, respectfully represents that he is interested in the estate of E. F., late of G., deceased, of which your Honor has now jurisdiction, that he is aggrieved by your Honor's decree (order or sentence) made and passed at a probate court held at A., within and for said county, on the • Tues- 1 R. S., c. 62, § 25. '■i Veazie Bank v. Young, 53 Me. 555. White v. Riggs, 37 Me. 114. ' Deering ». Adams, 34 Me. 41. * Woodbury v. Hammond, 54 Me. 832. Tuxbury's appeal, 67 Me. 267. * Reed ». Foster, 54 Me. 499. Burroughs v. Brown, 67 Me. 225. 6 Sturtevant v. Tallman, 27 Me. 78. 228 PROBATE PRACTICE. day of , A. B. , (here state in general terms the decree, order or sentence) and hereby appeals therefrom to the supreme judicial court, being the supreme court of probate, to be holden at A., within and for said county, on the Tuesday of , A. D. , and alleges the following reasons of appeal, viz : Dated this day of , A. D. . A. B. If at the time of the proceeding appealed from, the appellant was beyond sea, or out of the United States, and had no attorney in the state, the fact should be alleged in the petition ; also the time of his return. The foregoing appeal and reasons, should be filed with the register of probate in the probate oflSce within twenty days from the date of proceeding appealed from, or return, if absent.' The register should endorse thereon the time of filing, as follows : Probate Office. ss. Filed , A. JD. . Attest, Q-. S. W., register of probate. The appellant must also execute his bond, have the same approved in writing^ by the judge, and then file it with the reg- ister of probate within said twenty days,^ and the register must certify thereon the time of filing. 239. \^ Appeal Bond^ Know all men by these presents, that we A. B., of P. as principal, and C. D. and E. F., as sureties, all of the county of A. and state of Maine, are holden and stand firmly bound and obliged unto J. S. H., Esq., judge of pro- bate for the county of A. for the benefit of B. M., (name and describe the adverse party) in the sum dollars, to be paid unto him the said judge of probate or his successors in office (or if the bond is to the adverse party, instead of "unto J. S. H.," &c., say unto B. M., (describing the adverse party^ in the sum, of dollars, to he paid unto Mm, the said B. M. his heirs, executors, administrators or assigns,) to the true payment whereof, we bind ourselves, our heirs, executors, and administrators, jointly and sev- erally by these presents. ' R. S., c. 63, § 33. 2 Matthews v. Patterson, 43 Me. 357. R. 8., c. 73, § 1. APPEALS. 229 Sealed with our seals, dated the Tuesday of — , in the year of our Lord, one thousand eight hundred and . The condition of the above obligation is such that whereas the said A. B., being interested in the estate of E. F., late of Gr., deceased, of whose estate said judge has now jurisdiction, has appealed from a decree, (order or sen- tence) of said judge made and passed at a probate court held at A., within and for said county, on the Tuesday of , A. B. , (here state in general terms the decree, &c., appealed from) to the supreme judicial court to be held at A., within and for said county on the Tuesday of , A. D. . Now therefore, if the said A. B., shall prosecute his said appeal with effect and pay all intervening costs and damages, and such costs as said supreme judicial court taxes against him, then this obligation shall be void. Signed, sealed and delivered in the presence of A. B. [l. s.] C. D. [l. 8. J H. B. [L. s.] 240. STATE OP MAINE. The above bond having been examined is hereby approved this day of , A. D. . J. L. H., Judge of Probate. At the following term of the probate court, the judge should examine the appeal and reasons, and if they are in proper form and, together with the bond, were filed within the time required by law, he should make a decree setting forth such fact and order the same to be recorded. It is a common practice in this state for the judge to make a decree allowing an appeal, though the statute does not require it, nor does it seem necessary to the valid- ity of the appeal.^ 241. [Decree.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] On the foregoing appeal, the same with the reasons therefor and the bond required, having been filed within twenty days from the time of the proceed- 1 Boynton v. Dyer, 18 Pick. 1. 230 PROBATE PRACTICE. ing appealed from, It is decreed that said appeal be allowed, and that said appeal, reasons and bond be filed and recorded. J. L. H., Judge of Probate. If the appeal is not properly and legally perfected, the judge should order the papers filed to be recorded and proceed in the settlement of the estate as if no appeal had been taken. A copy of the reasons of appeal attested by the register, must be served on all the parties who appeared before the judge in the case, fourt^.en days before the sitting of the appellate court.^ The return of service should be made on the original reasons of appeal in the probate court. ^ An appeal properly and seasonably taken and perfected, vacates the decree, order or other proceeding appealed from, and all fur- ther proceedings relating to the matter appealed from cease until the determination of the supreme court.' The appellant should file at the next tei'm of the supreme court held after the expiration of thirty-four days from the date of the proceeding appealed from, an attested copy of the decree, order, or proceeding appealed from, also an attested copy of the peti- tion, account , will, or other document or matter, concerning which the decree, &c., was made ; also an attested copy of the appeal, reasons, bond and filings, and decree thereon. It must appear to the judge of the appellate court, that the appeal was properly taken and perfected or it will be dismissed ; and this must be shown by the record of the probate court and not by parol. It is the duty of the appellant as a preliminary proceeding to establish his interest in the subject matter of the decree from which he appeals.* 1 R. S., c. 63, § 33. 2 For manner of service and form of return, see No. 3, and remarks tbereon. 3 R. S., c. 63, § 25. Tarbox b. Fisher, 50 Me. 336. Veazie Bank v. Young, 53 Me. 555. < Moody ». Moody, 11 Me. 347. Veazie Bank v. Young, 53 Me. 555. APPEALS. 231 The case will be entered on the docket and heard in its order before the judge in the same manner as in the probate court, the same parties having the aflBrmative and the open and close, and the same proceedings had as if the case had been commenced in the supreme court, and without regard to any decree previously made in the court below. ^ The appellant, however, will be strictly confined to his reasons of appeal,' but not to the same evidence that was previously introduced. If in the progress of the hearing, any disputed question oifact arises, the judge may determine the same himself, or may at his discretion submit the same, on an issue framed under his direction, to a jury, who are to return a special verdict. Neither party can claim a trial by jury as matter of right.^ To the facts thus established, or found by him without a jury, he is to apply the law and then "reverse or affirm, in whole or in part, the sentence or act appealed from, pass such decree thereon as the judge of probate ought to have passed, remit the case to the probate court for further proceedings, or take any order therein, that law and justice require."' The clerk of the supreme court will send a transcript of the decree or order of the court to the register of the probate court, who will record the same, and the judge of probate will then pro- ceed thereon as if the decree or order had been made by him. If the appellant fails to enter his appeal, the appellee may file a complaint, with a copy of the record which the appellant should have filed, and thereupon the judge will affirm the former decree with costs to the complainant, or make such decree, as law and' justice require.* ^ Gilman v. Gilman, 53 Me. 184. Barnes v. Barnes, 66 Me. 286. 2 R. S., c. 63, § 36. Crocker v. Crocker, 43 Me. 561. Withee v. Rowe, 45 Me. 571. Bradstreet v. Bradstreet, 64 Me. 804. 3 R. 8., c. 63, § 36. «R. S.,c. 63, §34. 232 PROBATE PRACTICE. 242. [Petition to have Decree Affirmed.'] To the Honorable Justices of the Supreme Judicial Court, next to be holden at A., within and for the county of P., on the Tuesday of , A. D. . A. B., of 0., respectfully represents that he la interested in the estate of B. F., late of 6., deceased, as , that at a probate court held at A., within and for the county of P. , on the Tuesday of , A. D. , a decree was made and passed by the judge of probate for said county, (here state generally the decree,) that H. P., who claimed to be aggrieved by said decree, filed in said probate court his appeal therefrom, with his reasons thereof and bond, as required by law, but has failed and neglected to enter and prosecute his said appeal according to law. Wherefore your petitioner prays that said decree may be affirmed with costs, and that such further order may be made thereon as law and justice require. Dated this day of , A. D. . A. B. "If any such person from accident, mistake, defect of notice or otherwise without fault on his part, omits to claim or prosecute his appeal as aforesaid, the supreme court, if justice seems to require a review, may, upon reasonable terms, allow an appeal to be enter- ed and prosecuted with the same effect as if it had been seasonably done.i 243. [Petition to the Supreme Court to allow an Appeal.'] To the Honorable Justices, &c. [Same as No. 24:2.] A. B., of C, respectfully represents that he is interested in the estate of E. F., late of G., deceased, as , that he is aggrieved by a decree of the judge of probate, made and passed at a probate court held at A., within and for the county of P., on the Tuesday of , A. D. , (here state generally the nature of the decree) that he omitted to claim an appeal therefrom for the following reasons, viz : , that he here assigns the fol- lowing reasons of appeal, viz : , Wherefore he prays that he may be allowed to enter and prosecute an appeal from said decree with the same effect as if it had been seasonably claimed. Dated this day of , A. D. . A. B. ' 1 R. S., c. 63, § 23. CHAPTER XXII. BONDS. All bonds required by law (except appeal bonds) must be made payable to the judge or his successors, and all must be examined by the judge, and approved by him in writing. The penal sum should be generally double the value of the personal property, with which the person giving the bond is chargeable. The sure- ties should reside in the state and should each be worth a sum equal to the penal sum in the bond.' New bonds. When the sureties in any bond given to the judge prove to be insufficient, or if in the progress of the settlement of any estate any bond is found to be too small, the judge may require a new bond, and if the same is not furnished it will be deemed sufficient cause for removal.^ When any bond is found to be too small, new bonds may be required without notice, but when the sureties are alleged to be insufficient, new bonds are required only on petition of some person interested and after notice to the prin- cipal. If not given when ordered the principal shall be removed.' 244. [Petition for new Bond.'\ To tlie Honorable Judge of Probate for the county of A. A. B., of C, &c., respectfully represents that he is interested in the estate of E. F., late of G., deceased, that at a probate court held at A., within and for said county, on the Tuesday of , A. D. , J. M., was duly appointed, , and gave bond in the sum of dollars with N. P., and 1 R. S., c. 63, § 22. c. 64, §§ 9, 19. c. 67, § 10. c. 71, § 3. c. 73,§ 1. »R. S., c. 72, § 3. c. 67, § 20. c. 64, § 47. 3R. 8., C..72, §§3,4. 234 PEOBATB PRACTICE. K. S. as sureties, for the faithful performance of said trust, and that said sureties are insufficient for the purpose of said bond. Wherefore your petitioner prays that said J. M. may be required to give a new bond, with sufficient sureties in such sum as your Honor may direct, and that on his failure to do so, he may be removed and another appointed in his place. Dated this day of , A. D. . A. B. 245. {Order of Personal JVotice.] (Same as No. ei.) For return of service see No. 3, and remarks on same. At the time of hearing the petitioner must be prepared with evi- dence to prove the truth of the allegations in the petition. 246. [Decree ordering a new Bond.'\ STATE OF MAINE. as. At, &c. [Same as Form 7.] On the foregoing petition, notice thereof having been given pursuant to the order of court, and the facts therein alleged having been made fully to appear. It is decreed that J. M., mentioned therein file in our said probate court, on or before the day of , A. D. , a new bond with further and suffi- cient sureties, in the sum of doUars, for the faithful performance of the trust mentioned therein. J. L. H., Judge of Probate. Discharge of surety. The judge, on due notice, may, after six years from the date of any bond given to him, discharge any surety from all subsequent liability and require a new bond.^ 247. {Petition of Surety to be discharged.'] To the Honorable Judge of Probate for the County of A. A. B., of C, respectfully represents that at a probate court held at P. within and for said county, on the Tuesday of , A. D. , J. M. was duly appointed , and gave bond for the faithful discharge of said trust, that your petitioner is one of the sureties on said bond, and that more 1 R. S., c. 73, §§ 8, 4. BONDS. 235 than six years have elapsed since the execution thereof. Wherefore your petitioner prays that he may be discharged from any further liability as such surety. Dated this day of , A. D. . A. B. 248. [Order of Public Ifotice.] STATE OF MAINE. ss. At, &c., [Same as Form 7.] A. B., having petitioned to be discharged from aR further liability as surety on the bond of J. M., (here state the office, or trust to be performed.,) Ordered, &c., (Same as No. 7.) 249. [Decree discharging Surety.] STATE OP MAINE. ss. At, &c. [Same as Form 7. J On the foregoing petiticm, notice having been given thereon pursuant to order of court. It is decreed that the said A. B., be discharged from all farther liabilities as surety as mentioned therein, and that J. M., mentioned therein tile a new bond with new and sufficient sureties in the sum of dollars, on or before the day of , A. D. , for the faithful dis- charge of his duties. J. L. H., Judge of Probate. Who may me without leave of the judge. "Any person inter- ested personally or in any official capacity in any probate bond, or in any judgment rendered thereon, whose interest has been specifically ascertained by a decree of the judge of probate, or by judgment of law, may originate a suit on such bond, or scire facias on such judgment, without applying to the judge. "^ The writ must be in the name of the judge and must allege the name and addition of the person for whose benefit the action is brought and that the same is sued out by him in the name of the judge.'. The form of the writ is, to answer unto A. B., judge of pro- 1 R. S., c. 72, § 9. 236 PROBATE PRACTICE. bate for the county of A., this writ being sued out in the name of the said A. B., judge of probate for the county of A., by O. 2>., of E., in the county of F., gentleman. The foregoing provisions of the statutes apply to creditors of insolvent estates, after a decree of distribution has been made,^ to ■widows, heirs and residuary legatees to -whom distributive shares and residuary legacies have been deoreed,^ to creditors of solvent estates and legatees other than residuary, when the debt or legacy due them has been ascertained by a judgment of law,' and to all other cases where the sum to be paid has been conclusively deter- mined by a decree of the judge of probate, or by a judgment of law, and nothing remains to be done but to pay the same.* Before the person bringing the suit can recover, he must prove a demand and refusal of payment and must produce in support of his action a copy of the decree or judgment.'' Who must obtain leave. Suits, for the bringing of which leave must first be obtained, are those brought for the benefit of the estate generally and not for the benefit of any particular person.* They are brought to recover damages for mal administration of all kinds, such as neglect to return an inventory, or to account within one year or when required by the judge, or to raise money from the estate and pay the same when due, or to account for property which has come into an administrator's or executor's hands and not been inventoried, &c., &c. 250. [^Petition for leave to sue Bond.'] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that he is interested in the estate of. B. F., late of G., deceased, as , that at a probate court held at A., 1 R. S., c. 66, § 33. c. 72, § 11. 2 R. S., c. 65, § 27. c. 72, § 13. 3 R. S., c. 72, § 12. 4 R. S. c. 72, §§ 11, 12^ 13. R. S. c. 73, §§ 15, 16, 17. BONDS. 237 within and for said county on the Tuesday of , A. D. , J. M., of K., was duly appointed , and gave bond with E. H. and P. W., as sureties, for the faithful discharge of said trust, that (here state the mal administration complained of.) Wherefore your petitioner prays that he may be authorized to bring an action at common law upon said bond of the said J. M., in the name of the judge of probate for said county, to recover the damages sustained by said malfeasance of the said J. M. Dated this day of , A. D. . A. B. No notice to the obligor is required to be given.' The petitioner must be prepared with evidence sufiBcient to satisfy the judge that there is reasonable ground to believe that there has been a breach of the bond. 251. l^Decree authorising a Suit.'] STATE OF MAINB. 8S. At, &c. [Same as Form 7.] On the folregoing petition, It is decreed that the said A. B., be and he is hereby authorized to bring a suit at common law on the bond of J. M., mentioned therein, in the name of the judge of probate for said county, for the recovery of any and all damages sustained by reason of the malfeasance, if any, of the said J. M. J. L. H., Judge of Probate. The petitioner may appeal from a decree refusing leave to bring a suit, but the principal and sureties cannot.^ The form of the writ is, to answer unto J. L. II., judge of probate for the county of 0., in whose name this suit is prosecuted ly A. B., of C, in the said county, who is expressly authorized so to do by said judge? An attested copy of the petition and decree should be filed in court with the writ as evidence of said authority. Judgments and costs. If such suits are not maintained, exe- cution for costs shall be rendered against the party prosecuting.^ 1 Bulfinch V. Waldoboro, 54 Me. 150. 2 Groton v. Tallman, 37 Me. 68. R. S. c. 73, § 15. ' R. S., c. 73, §§ 5, 10. 238 PROBATE PRACTICE. If judgment is recovered in a suit brought for the benefit of- a particular individual, execution shall issue in the name of the judge, for the use of the person so prosecuting, who may levy the same in his own name.' If judgment is recovered in a suit brought for the benefit of the estate generally, it should be in the name of the judge, who will order the delinquent executor, administrator, &c., to charge himself with the amount thereof in his accounts, if in office, but if not in office, the judge will assign the same to the administrator de bonis non to be collected by him and ac- counted for.^ Like proceedings, so far as applicable, may be had on bonds of guardians, special administrators, trustees and surviving partners.' 1 E. S., c. 73, § 14. Davis v. Bell, 4 Mass. 106. 2 R. S., c. 73, § 17. 3 R. 8., c. 73, § 18. CHAPTER XXIII. RESIGNATION AND REMOVAL OF EXECUTORS, ADMINISTRA- TORS, GUARDIANS AND TRUSTEES. Besignation. The judge of probate "may accept the resigna- tion of any joint or sole executor or administrator, when he is sat- isfied, after public or personal notice to those interested in the estate and a hearing, that there is reasonable cause therefor and that it will not be detrimental to the estate or to those interested therein."^ "He may also dismiss any guardian on his own re- quest therefor."^ "Any trustee at his own request, may be allowed to resign his_ trust when it seems proper to the judge of probate.'" 252. \_Jiesignation.^ To the Honorable Judge of Probate for the county of A. A. B., of C, in said county, respectfully represents, that at a probate court holden at A., within and for said county, on the Tuesday of A. D. , he was duly appointed , and gave bond for the discharge of said trust as required by law ; that he now resigns said trust for the following reasons, , and prays that his resignation may be accepted. Dated this -day of , A. D. . A. B. In case of the resignation of executors and administrators, notice must be given thereon, before the same is accepted. No notice is required on the resignation of guardians and trustees. 1 R. S., c. 64, § 31. 2 R. s., c. 67, § 18. ' R. S., c. 68, § 4. 240 PROBATE PRACTICE. 253. [Order of Public Notice.] STATE OF MAINE. ss. At, &c. [Same as Form 7.] A. B., executor of the will of Cor administrator of the estate of) E. F., late of G., in said county, deceased, having filed his resignation of said trust, Ordered, &c. [Same as No. 7.] J. L. H., Judge of Probate. 254. [Decree accepting the Resignation.] STATE OF MAINE. ss. At, &c., [Same as Form 7.] On the foregoing petition, notice having been given thereon pursuant to the order of court, and being satisfied that there is reasonable cause for the resignation of the petitioner, and that the acceptance of the same will not be detrimental to the estate mentioned therein, or to those interested in the same, It is decreed, that the resignation of A. B., therein named be accepted. J. L. H., Judge of Probate. Removal. "When an executor or administrator, residing out of the state, after being duly cited by the judge of probate, neg- lects to render his accounts and settle the estate according to law ; or when any executor or administrator, joint or sole, becomes insane, or otherwise unsuitable to perform the trust, neglects or refuses to do so, or mismanages the estate, the judge of probate may remove him."^ If any executor or administrator does not give an additional bond when required, he may be removed.^ The judge of probate may dismiss any guardian when it appears nec- essary.' When any trustee becomes insane or otherwise evidently unsuitable to discharge the trust, the judge may remove him.* But before any person can be removed he must be personally noti- fied of the pendency of the petition. 1 R. S., c 64, § 21. 2 R. 8., c. 64, §§ 47. ' R. S., c. 67, § 18. 1 R. S., c. 68, § 4. KBSIGNATION AND EEMOVAL. 241 255. [Petition for removal of executor, administrator, guardian or trustee.'] To the Honorable Judge of Probate for the county of A. A. B., of C, respectfully represents that he is interested in the estate of E. F., late of G., in said county, deceased, that a a probate court held at A., within and for said county, on the Tuesday of , A. D. , J. M. C, was duly appointed and accepted said trust, that said J. M. C, (here state the reasons for the removal, ) Wherefore your petitioner prays that the said J. M. C. may be removed from said office and trust. Dated this day of , A. D. . A. B. 256. [Order of Personal Notice.} Same as No. 64.' 257. [Petition hy insane ward to have guardian removed^ To the Honorable .Judge of Probate for the county of A. A. B., of C, respectfully represents that at a probate court held at A., within and for said county, on the Tuesday of -, A. D. , he was adjudged by the judge of probate for said county to be , and J. C, ap- pointed guardian to him, that the necessity of said guardianship no longer exists. Wherefore he prays that his property may be restored to him and said guardian dismissed. Dated this day of , A. D. . A. B. 258. [Order of Personal Notice.'] Same as No. 64. ' 259. [Decree removing an executor, administrator, guardian or trustee^ STATE OF MAINE. ss. At, &c. [Same as Form 7. J On the foregoing petition, notice having been given thereon pursuant to the order of court, and the facts therein alleged having been made fully to ap- pear. It is decreed that the said J. M. (J., mentioned therein be and he is hereby removed from said office of , (In case of a petition of an insane ward, add to the decree the words, and that the property of said petitioner he restored to him, except a legal compensation to said guardian for his ser- vices.'^) J. L. H., Judge of Probate. ' For form of return of service see No. 3, and remarks on the same. 2 H. S., c. 67, § 23. CHAPTER XXIV. COSTS— FEES— ADOPTION— DECREES— FORMS OP WILL— VALUE OF DOWER— &o., &o. Costs. In all contested cases in the original or appellate court of probate, legal costs may be allowed to either party to be paid by, the other, or costs may be allowed to one or both parties, to be paid out of the estate in controversy, as justice requires ; and ex- ecution may be issued therefor as in courts of common law.-"^ If the executor, administrator, guardian or trustee claims that the costs paid out by him in any ease should be paid to him from the estate, he should state the same in his account and ask to be allowed therefor, and the judge will allow or disallow the item in the settlement thereof; but if one party claims that the costs should be paid to him by the other, he should file a petition, stat- ing the sum claimed and praying that the same may be ordered to be paid. Personal notice thereof should be given to the adverse party. 26a. {^Petition that costs he paid.'] To the Honorable Judge of Probate for the county of A. A. B:, of C, &c., respectfully represents (here state the nature of the con- tested case, the parties thereto, and the result of the issue) that your peti- tioner's legal coats in said case are dollars, which he prays may be allowed and ordered to be paid to him by the said . Dated this day of , A. D. . A. B. 1 K. S., c. 63, § 37. Ware v. Ware, 8 Me. 43. Dennett v. Dow, 19 Me. 110. Reed v. Reed, 35 Me. 243. Tarbox v. Fisher, 50 Me. 336. Red. on Wills, vol. 1, 117, note 30. DECREES, ETC. ,243 261. [Order of Personal Notice.} Same as 64. 262. [^Decree ordering Costs to he paid.} STATE OF MAINE. 38. At, &c. [Same as Form 7.J On the foregoing petition, personal notice having been given thereon pur- suant to the order of court, and the facts therein alleged having been made fully to appear, It is decreed that the said A. B. recover of the said his legal costs in the contested case therein mentioned, taxed at dollars' J. L. H., Judge of Probate. 263. [^Execution for Costs.} STATE OF MAINE. ss. To the Sheriffs of our respective counties, or their Deputies. Greeting. Whereas, A. B., of C, in the county of D., by the consideration of our judge of probate for our county of A., at a probate court held at A., within and for said county, on the ■ Tuesday of , A. D. , recovered judgment against L. P., of M., in the county of K., for the sum of dollars, costs of suit, as appears of record, whereof execution remains to be done: "We command you, therefore. That of the goods, chattels, or lands of the said debtor within your precinct, you cause to be paid and satisfied unto the said creditor at the value thereof in money, the aforesaid sums, being dollars, with interest from the day of , A. D. , being the time of the rendition of judgment, and thereof also to satisfy yourself for your own fees. And for want of goods, chattels or lands of the said debtor to be by him shown unto you or found within your precinct, to the acceptance of the said creditor, to satisfy the sums aforesaid — "We command you to take the body of the said debtor and him commit unto our jail in either of our said counties, and detain him in your custody within either of our said jails, until he pay the full sums above mentioned, with your fees, or be discharged by said creditor or otherwise, according to law. Hereof fail not, and make return of this writ, and of your doings therein, unto the probate court for our county of A., aforesaid, within three months from the date hereof. 244 . PROBATE PRACTICB. Witness, J. L. H., Esq., judge of probate for said county of A., at a pro- bate court, held at A., within and for said county, on the day of in the year of our Lord one thousand eight hundred and J. L. H., Judge of Probate. f'j Fees. Executors, administrators, guardians and trustees, are allowed one dollar for every ten miles or parts thereof, going to and the same returning from court, and one dollar for each day's attendance, and also a reasonable sum for professional aid in cases where legal counsel is necessary.' Witnesses are entitled to one dollar a day, and six cents a mile going to and the same returning from court.". Appraisers and commissioners appointed for any purpose are entitled to a reasonable compensation, to be determined by the judge.^ Adoption of children. "Any inhabitant of this state not mar- ried, or any husband and wife jointly, may petition the judge of probate for their county, for leave to adopt a child not theirs by birth and for a change of his name.'" "Before such petition is granted, written consent to such adop- tion must be given by the child, if of the age of fourteen years, and by each of his living parents, if not hopelessly insane or in- temperate ; or when a divorce from the bonds of matrimony or from bed and board has been decreed to either parent, written consent by the parent entitled to the custody of the child ; or such consent by one parent, when, after such notice to the other parent, as the judge deems proper and practicable, such other parent is considered by the judge unfit to have the custody of the child. If there are no such parents, or if the parents have abandoned the child and ceased to provide for its support, consent may be ^ven iR. S.,c. 63, §39. 2 R. s., c. 63, § 30. Laws of 1876, c. 108. 3 R. S., c. 67, §§ 38, 39, 80, 81. ADOPTION. 245 by the legal guardian, if no such guardian, then by the next of kin in this state ; if no such kin, then by some person appointed by the judge to act in the proceedings as the next friend of such child.'" 264. {^Petition to adopt a child.'] STATE OF MAINE. To the Honorable Judge of Probate for the county o£ A. A. B., and D. B., of L., in said county, husband and wife, respectfully represent that they are desirous of adopting A. M. S., a child of R. B. S. and M. A. S., born on the day of 18 , and that they are of suf- ficient ability to bring up and educate said child properly, having reference to the degree and condition of its parents. They further represent (here state whether the parents of the child are living or dead, and if living where they reside.) Wherefore your petitioners pray that your Honor may grant them leave to adopt said child in the manner provided by law, and that the name of said child be changed to M. A. B. Dated this day of , A. D. . A. B. D. B. [^Consent of Pare7it or Ouardian, &c.J The undersigned being the (father and mother, or guardian, or next of kin, or the person appointed by the judge of probate as the next friend) of the child mentioned in the above petition, hereby consent to the adoption and change of name prayed for. L:M. CM. [^Gonsent of child over fourteen.'] The undersigned A. M. S., being the child mentioned in the above petition and more than fourteen years old, hereby consents to the adoption and change of name prayed for. A. M. 8. "Thereupon, if the judge is satisfied of the identity and rela- tions of the parties, of the ability of the petitioners to bring up and educate the child properly, having reference to the degree and condition of its parents, and of the fitness and propriety of such adoption, he shall make a decree, setting forth the facts, and 246 PROBATE PRACTICE. declaring that from that date such child is the child of the peti. tioners and that his name is thereby changed, without requiring public notice thereof."^ "By such decree the natural parents shall be divested of all legal rights in respect to such child, and he shall be free from all legal obligations of obedience and maintenance in respect to them ; and he shall be, for the custody of the person and right of obedi- ence and maintenance, to all intents and purposes, the child of his adopters, as if they had been his natural parents. But such adoption shall not affect any rights of inheritance, either of the child adopted, or of the children or heirs of his adopters.'" The judge may on petition of two or more inhabitants of his county, after notice and a hearing, and for good cause shown, re- verse and annul such decree.^ 265. IDecree of Adoption.] STATE OF MAINE. ss. At, &c. [Same as Eorm 7.] . A. B. andD. B., having duly presented a petition to our said court, for leave to adopt A. M. S., a child not their own by birth,, and to change its name, and the written consent required by law having been given thereto ; having duly considered the same, and being satisfied of the identity and re- lations of the parties, of the petitioners' ability to bring up and educate said child properly, having reference to the ^pgree and condition of its parents, and of the fitness and propriety of such adoption. It is therefore decreed that from this day said child is to all legal intents and purposes, except inheritance, the child of said petitioners, and its legal name is and shall hereafter be M. A. B. J. L. H., Judge of Probate. 266. [Petition to reverse and annul Decree of Adoption.] To the Honorable Judge of Probate for the county of C. A. B. and 0. D., inhabitants of , in said county of C, respectfully represent that at a probate court, holden at D., within and for said county 1 R. S., c. 67, §§ 28, 29, 30, 31. 2 Laws 1874, c. 342. CHANGE OF NAME. 247 on tie Tuesday of 18—, on petition of E. F., and 6. H., of , for leave to adopt one I. L., a child (describe child) — and for change of name of said child, it was decreed by said court that said child was from that day to all legal intents and purposes, except inheritance, the child of said petitioners and that its name was and should thereafter be, M. A. B. (State reason of reversal of decree.) Wherefore your petitioners pray that such decree may be reversed and annulled. A. B. CD. Dated this day of — , A. D. , 18—. [Orde?' of Personal JVoiice to adopters and adopted ohild.l [Same as No. 64-1 For return of service, see No. 3, and remarks on the same. 267. [^Decree reversing ahd annulling Decree of Adoption.] STATE OF MAINE. ss.. At, &c., [Same as Form 7.] On the foregoing petition, notice having been given thereon pursuant to the order of court, a hearing thereon having been had, the facts therein alleged having been made fully to appear, and good cause therefor having been shown, It is decreed that the decree therein mentioned be and the same is hereby reversed and annulled. J. L. H., Judge of Probate. Change of Name. Whenever any person in this state desires to change his or her name, such person may petition therefor to the judge of probate of the county in which he or she resides, and if the person desiring such change of name be a minor, the person having the legal custody of such minor may petition in .his or her behalf, and the judge is authorized and empowered to change the name of such person, and shall make and preserve a record thereof. 268. [Petition for change of JVame.] To the Honorable Judge of Probate for the county of A. The undersigned, a resident of , in the county of , respectfully 248 PROBATE PRACTICE. represents that he h^,s long been known by, and now bears, the name of, (give name in full, including middle name, if any) and that he desires to change his name to (give name in full,) and (name in full), wife of the said also respectfully represents that she desires to change her name to (give name in full.) Wherefore pray your Honor to change name in accordance with above expressed desire. A. B. C. D. Dated this day of , A. D. 18—. If a minor desires a change of name the person having the legal custody of such minor should petition in his or her behalf, representing that the minor desires such change. The statute does not require any notice of the petition to be given, but the judge will in his discretion order it when circum- stances seem to him to demand it, and direct to whom, and in what manner it shall be given. {Decree for change of name.] STATE OP MAINE. ss. At, &c. [Same as Form 7.J A. B., (and C. D. ) of , in the county of , having duly presented to said court a petition for a change of name from to (notice thereof having been given as ordered by the court), and the matter having been duly considered. It is decreed that the prayer of said petitioner be granted, that name be changed accordingly, and that be allowed hereafter to take and bear the name of ; and it is further ordered that a record of this decree be made and preserved upon the records of said coart. J. L. H., Judge of Probate. Witnesses. Judges of probate may summon vritnesses before them, and if they do not appear and give evidence, may have them arrested and brought into court, and if they do not give a reasonable excuse may fine them not exceeding twenty dollars and cost of the arrest, and commit them until the same and costs of OATHS, NOTICES. 249 commitment are paid.^ No person is obliged to attend as a wit- ness unless his legal fees for travel and one day's attendance are first paid or tendered.^ For forms of subpoena, return, capias and commitment see Nos. 9, 10, 11, 12 and 77, which with slight changes can be used in all cases. Oaths. Ml oaths required to be taken by executors, adminis- trators, guardians and trustees, commissioners, appraisers, or any other person in relation to any proceeding in the probate court, except to the truth of accounts, may be administered by the judge or register of probate, or by any justice of the peace^ Ad- ministrators, executors and trustees are authorized to make oath to their several accounts before a justice of the peace in all cases, and when they reside beyond the limits of this state, before a commissioner for the State of Maine, or a United States consul, when no objection is made by parties interested to the allowance of said account.' Persons conscientiously scrupulous of taking an oath, may make aflSrmation as follows : "I do aflSrm under the pains and penalties of perjury that, &c." Notices. The words "public notice" in all laws relating to probate courts and proceedings denote notice published three weeks successively in a newspaper printed in the county, or if none in the state paper.* The words "personal notice" denote service by a copy given in hand or left at the place of last and usual abode, seven days at least before the time of hearing.* The words "due notice" denote public or personal notice, at the discretion of the judge.* Any notice to be pub- lished, shall be published in such paper in the county as the party required to publish it selects, unless the judge deems such paper uusuitable.' 1 R S., c. 63, §§ 1, 3. c. 83, §§ 90, 91. 2 R. S., 83, § 95. 3 R. 8., c. 68, § 11. Laws 1877, c. 174 * R. S., c. 68, § 35. ' *R. S., c. 63, §36. 250 PROBATE PKACTICB. When notice is ordered at the same term of court to he given on several matters, the following consolidated form of notice may he used. 269. \_Probate Notices.] To ALL Persons Intbebsted in eithee of the Estates Hbreinaftek Named : At a court of probate held at A., within and for the county of A., on the Tuesday of. , in the year of our Lord eighteen hundred and eighty ; the following matters having been presented for the action thereupon hereinafter indicated, It is hereby ordered, That notice thereof be given to all persons interested, by causing a copy of this order to be published three weeks successively in the , printed at L., in said county, that they may appear at a probate court, to be held at said A., on the Tuesday of next, at 10 o'clock in the forenoon, and be heard thereon, and object if they see cause. Henry Long, late of H., deceased. Will and petition for the probate thereof presented by A. W. , the executrix therein named. Charles Wills, late of H., deceased. First account and petition for license to sell and convey real estate, presented by W. T., administrator. Amos Bond, late of B., deceased. Petition for allowance out of personal estate, pjesented by M. A. C, widow of the said deceased. John Rowe, late of B. , deceased. First account presented for allowance ■by W. C, executor. Sarah Jones, late of B., deceased. Petition that'W. F., may be ap- pointed administrator, presented by E. M., a sister of said deceased. J. L. H. , Judge of Probate. A true copy of the original order. Attest: W. K. N., Register. The judge having caused that notice to be given which the law requires, all parties interested are bound by it. The fact that some of the heirs may be idiots, insane or infants will not defeat the pro- late of a will or granting of administration, or other similar act, where the judge has jurisdiction.^ Decrees. Except in cases specially provided for by statute,, the » Parker v. Parker, 11 Cush. 519. DECREES, ETC. 251 judge cannot revoke a decree once made by him or any of his predecessors.' In counties where the courts are held at one place with one term each a month, the following heading for decrees and orders may be adopted. 270. STATE OP MAINE. 38. Peobatb Couet. Term, A. D. . 271. [Decree dismissing a Petition.'] STATE OF MAHSTB. ss. At, &c., [Same as Form 7.] On the foregoing petition, the same having been duly considered, It is decreed that the prayer of the petitioner therein be denied and that said petition be dismissed. J. L. H., Judge of Probate. ■ 272. [Authentication of copies of records to be used in courts of other States?] STATE OF MAIKE. ss. Peobate Cotjet. I, B. F. A, register of the probate court for said county and custodian of its records and seal, hereby certify that I have carefully compared the an- nexed papers with the records of said court, and that said annexed papers are correct transcripts and copies thereof in the matter relating to the . In witness whereof, I have hereunto set my hand and affixed the seal'of said court, this day of , 18 — . B. P. A., Register. {"} I, A. H. "W., judge of the probate court for said county, hereby certify thatB. F. A., whose name is subscribed to the foregoing certifijate, is the 1 Bradbury v. Jeffords, 15 Me. 314. Pettee r. Wilmarth, 5 Allen, 144. " E. S., Statutes of the U. 8., May 36, 1790, Greenl. Ev. vol. 1, § 504. 252 PROBATE PRACTICE. register of said court for eaid county and state, duly conuuissioned and qualified agreeably to the laws of said state, that his said signature is gen- uine, that he has the custody of the records and seal of said court, that full faith and credit ought to be given to his official acts and attestations, and that the foregoing attestation is in due f orin of law. In witness whereof I have hereunto subscribed my name this day of , 18-. A. H. W., Judge of Probate. 273. {^Order establishing times and places for holding Probate Courts.^l STATE OF MAINE. ss. At a probate court held at A., within and for said county, on the Tuesday of , in the year of our Lord one thousand eight hun- dred and , Ordered, that from and after this day, the courts of probate within and for the county of A. be held at the following places and times, to wit : . J. L. H., Judge of Probate. When the business is not finished on the first day and the court is held on the subsequent and sueceeding days, the decrees, orders, &c., may be dated as of the first day of holding the court, but if one or more days intervene, there should be an order of ad- journment in writing and recorded, and the decrees, orders, "&c.,- should be dated as of the adjourned day. 274. \^Order adjourning a Court.'] STATE OF MAINE. ss. At, &c. [Same as previous order.] Ordered,;that said court be adjourned to the day of , A. D. ' , at nine o'clock in the forenoon. J. L. H., Judge of Probate. 1 R. S., c. 63, § 4. ORDERS, ETC. 253 275. [Adjournment by the Hegister.} STATE OF MAINE. . SB. At a probate court which by law should be holden at A., within and for said county, on the Tuesday of , A. D. • The judge of probate for said county being absent, It is ordered that said probate court and all matters returnable to and pending therein, be ad- journed to the Tuesday of , A. D.— , at ten o'clock in the fore- noon. G. S. W., Register. 276. [Order appointing a Special Court.'] STATE OP MAINE. 89. At a probate court, &c.. It is ordered by the judge of probate within and for said county, that a special court of probate be held at , within and for said county, on the day of , A. D. , at ten o'clock in the forenoon, where aU persons interested therein may appear and be heard. J. L. H., Judge of Probate. The foregoing order must be published in some newspaper in said county, for a reasonable length of time before holding said court, and recorded. 277. {Certificate of the Register of the filing of any paper.] ss. Probate Ofllce. Piled , A. D., . G. S. W., Register. During the sickness, absence from the state, or inability of the judge of probate in any county to hold his court, and in case of death of such judge, the court may be held by the judge of any other county.i 1 R. S., c. 63, § 5. 254 PROBATE PRACTICE. 278. \_Court held hy the Judge of another county — Decrees, Orders, dsc, how commenced and signed.'] STATE OF MAINB. ss. At a probate court hoMen at F., within and for said county of H., by J. L. H., judge of probate for the county of A., by request of , the judge of probate for the county of H., who is (sick or absent from the State.) J. L. H., Judge of Probate, for the county of A. 279. l^Bond of Indemnity.^- (Penal clause same as No. 301.) The condition of this obligation is such, that whereas the said H. B., has assigned to the said A. B., . Now therefore, if the said A. B., shall well and truly pay all costs and damages which may be recovered against the said H. B., in any snit prosecuted by the said A. B., in the name of the said H. B., on said and also save the said H. B., harmless from all costs and damages arising by reason of any such suit, then this obligation shall be void. A.B.[l. S.J C. D.[L. s.] E. P.[L. s.] 1 K. S. c. 64, § 48. Ante, page 103. TABLES. 255 o M OH g^ ■< IS © .Q © OH 600 0lj^'<^ ^OtHtJI »OOtOOiaTHCOi-il>CQCO«OK;0»CGOGiOTHCQCO'^iO(:Di>COOiOTHCQ }H'^-(ilr-C- S a as 69.83, ombi ass. 31 S^^ ll'^i:i HI 00 So P^ S^N mult the Esta > 0"S-I3 ,o ca sixt ace .77 .2 53!2 &g» &:..'" -o o &'B .a o o 1-1 ? *i LSSR S^c^-^ i°H 256 PROBATE PRACTICE. WILLS. I, A. B., of C, In the county of D., and state of Maine, do hereby make and publish this my last will and testament, intending hereby to dispose of all my estate, as follows : First. I give and bequeath to my beloved wife C. B., all my household furniture ; also two thousand dollars in money. Second. I rive and bequeath to my son D. B., one thousand dollars,' to be paid in one year from the time of my decease. Third. I give and bequeath to my son F. B., my library and also my gold watch. Fourth. I give and bequeath to my daughter M. B., the interest and income df three thousand dollars, to be paid to her annually by my executor hereafter appointed, so long'^.s she shall remain unmarried. Fifth. I give and devise to my son J. B. , his heirs and assigns, my home- stead farm on which I now live. Sixth. I give and devise to my son K. B., my Brown farm so called, sit- uated in the town of F., containing about sixty acres, to hold to him during his natural life and no longer. Seventh. I give and bequeath to H. G., of K., in the county of D., the sum of five thousand dollars, in trust for the following purposes : First, to pay my beloved wife 0. B., for and during the time of her natural life, in quarterly payments, the income thereof. Second, to pay on her decease the sum remaining to my daughter M. B. Eighth. I do hereby authorize and empower my executor hereinafter named, to sell and convey for such price as he deems proper in fee simple or a less estate, all or any part of the real estate of which I die seized and pos- sessed, which it may be necessary to sell for payment of any of my debts. Ninth. I give, bequeath and devise to my son T. B., his heirs and assigns aU the rest, residue and remainder of my estates, real and personal. Tenth. I hereby appoint J. B., of K., executor of this my last will and testament. In witness whereof, I have hereunto set my hand this day of , in the year of our Lord one thousand eight hundred and , A B. Signed, published and declared by the said A. B., to be his last will and testament, in the presence of us, who at his request and in his presence and in the presence of each other, have hereunto subscribed our names as wit- nesses thereto. R. S. T. W. M. P. WILLS. 257 CODICIL. Whereas, I, A. B., of C, in the county of D., and state of Maine, have made and duly executed my last will and testament in writing, Now therefore I do hereby declare this present writing to be a codicU to my said will and direct the same to be annexed thereto and taken as part thereof, and I do hereby confirm my said will except so much of the same as is hereby altered. First. So far as relates to the disposition thereby made of my residuary personal estate, I do hereby revoke and alter my said will, and all the rest and residue of my personal estate, by my said will, given to my son T. B., I do hereby give and bequeath to my son J. B. In witness whereof, I have hereunto set my hand this-^^ — day of , in the year of our Lord one thousand eight hundred and ^.~ ~- A. B, Signed, published and declared by the said A. B., to be a codicil to his last will and testament in the presence of us, who at his request and in his presence and in the presence of each other, have hereunto subscribed our names as witnesses thereto. R S. T. "W. M. P. NUNCUPATIVE WILL. Know all men by these presents, that A. B., of C, in the county of D., and state of Maine, deceased, on the day of , A. D. 18 — , during his last sickness at his home in said C, (or at E., where he had resided for ten days previous, oratF., where he was suddenly taken sick before returning to his home) in the presence of the subscribers, who were requested by him to be witnesses thereto, did declare and pronounce, as and for his last will and testament, as follows : — "I give my son J. B., one thousand dollars." "I want my wife to have all my furniture." "I want E. F., to be my executor.'' A. B. The foregoing testamentary words pronounced by the said A. B., at the time and place aforesaid, were reduced by us to writing on the day of , A. D. 18—. J. S. P. W. H. G. 17 APPENDIX. ASSIGNMENT AND INSOLVENT LAWS. The statutes of this state have provided two methods by which assignments of insolvent debtors' estates for the benefit of their creditors may be made. The first is contained in the revised statutes, chapter 70 and amendments thereof, under the title of "Assignment for the bene- fit of Creditors," and provides that the debtor himself may make such assignment, which is a purely voluntary act on his part. All proceedings under this statute are in the probate court, under the jurisdiction of the judge as judge of probate. The second method is prescribed by the public laws of 1878, chapter 74, amended bj chapter 154 of the laws of 1879, and is known as the Insolvent Law of Maine. The assignment law was intended to provide for a proportional distribution of all of an insolvent debtor's estate, not exempt from attachment, among all his creditors becoming parties thereto. No form of assignment is prescribed, and only such an instrument has beea required as would efiectually secure the object of the statute.^ The proceedings under it in regard to filing a prescribed bond, returning an inventory of the debtor's estate, citation and exami- nation of parties suspected of concealment or embezzlement of such estate, and the settlement of the assignee's accounts, are very 1 E. S., c. 70, § 1. Beriy v. Cutts, 43 Me. 445. ASSIGNMENT LAW. 259 similar to those commonly followed in tlie settlement of the estates of deceased persons. There has been no uniformity of practice under this law, or in the forms or blanks used, in the different counties of the state ; but the familiar probate forms with slight changes have been found in most instances convenient and satisfactory. It has been questioned whether the assignment law was not re- pealed, by implication, by the passage of the insolvent law of 1878 — at least so far as the two statutes affect the same class of persons.' But this question does not appear to have come before the supreme court ; certainly no decision of it has been promulgated. Practically, however, the former act has been to so great an extent superseded by the latter, which "was evidently intended to accomplish the same object by more ample and efficient means" that the preparation of a set of forms of proceedings under this law seems hardly called for. ASSIGNMENT LAW. Sec. 1. Every assignment, made by any debtor for the benefit of creditors, shall provide for a proportional distribution of all his real and personal estate, except what is by law exempt from attach- ment, among all his creditors becoming parties thereto ; and, in whatever form made, or however expressed, shall have the effect aforesaid, and be also construed to pass all such estate, whether specified therein or not. Sec. 2. The assignor shall make oath to the truth of such as- signment, and a certificate of the fact shall be made thereon by the 1 Carter v. Sibley, 4 Met. 398. Wyles v. Beals, 1 Gray, 233. Edwards v. MitoheU, 1 Gray, 289. 260 APPENDIX. magistrate administering it ; and a release may be inserted therein, which shall forever discharge the assignor from the claims of such creditors as become parties thereto. Sec. 3. The assignee named in such assignment shall give a bond to the judge of probate in such sum and with such sureties, living in the county, as shall be satisfactory to him, and shall imme- diately thereafter take possession of the property assigned ; and within twenty days after the execution of the assignment shall file in the probate office an attested copy thereof, and an inventory under oath of all the real estate, goods, chattels, rights and credits of the assignor which have come to his possession or knowledge, whether contained in the assignment or not. Said bond shall be conditioned as follows : First. — To return into the probate office within ten days after the time allowed to creditors to become parties to the assignment an inventory of any real or personal estate of the assignor not al- ready returned whether contained in the assignment or not, and the names of all the creditors who have become parties to the as- signment, with a list of their respective claims. Second. — To make proportional distribution of all the net pro- ceeds of such estate, among such creditors as become parties to the assignment. Third. — To render a true account of his doings, on oath, to the judge of probate within six months, and at any other time when cited by the judge. The judge of probate within the county in which the assignor resides, shall have the same power and jurisdiction over the doings and accounts rendered of the assignee that he has over the doings and accounts of executors and administrators. Laws 1876, c. 89, §!• Sec. 4. "Within fourteen days after the execution of the assign- ment, the assignee shall give public notice of his appointment in some newspaper printed in the county where either assignor lives, or if ASSIGNMENT LAW. 261 none, in the state paper, such notice to be continued three weeks successively, and three months from the execution of such assign- ment shall be allowed for creditors to become parties thereto. If the assignment is made by indenture in two or more parts, creditors, in order to become parties, are to execute the part held by the assignee. Sec. 5. No such assignment shall be valid against attaching creditors, unless sworn to and notice given as aforesaid, nor unless such bond is filed and approved by the judge of probate within ten days after the execution of the assignment. Sec. 6. Creditors becoming parties to the assignment, and pre senting their claims to the assignee for allowance, shall offer the same proof thereof, and, if dissatisfied with his decision, have the same right of appeal, and the same remedy, that is provided in rela tion to claims presented to commissioners on insolvent estates ; and shall also have the same remedy on the assignee's bond that is pro- vided in relation tc an administrator's bond. Sec. 7. No property, assigned for the benefit of creditors, shall be liable to attachment for six months after the first publication of the notice herein required, nor shall the assignee during that time be liable to trustee process on account thereof; but after the lapse of eighteen months from the assignment, or two years, to which the probate court for satisfactory reasons may extend the time, any creditor, not a party to the assignment, may trustee the assignee for any excess of such estate remaining in his hanis, after the payment of the debts of the parties thereto and lawful expenses ; and if such suit is instituted before the expiration of the terms herein invested, it may be continued till after their expiration, on such conditions as the court directs. Sec. 8. All property conveyed or transferred by the assignor, previous to and in contemplation of the assignment, with the design to defeat, delay or defraud creditors, or to give a preference to one creditor over another, shall pass to the assignee by the assignment 262 APPENDIX. notwithstanding such transfer; and the assignee may recover, col- lect and apply it for the benefit of the creditors. If the assignor shall have fraudulently conveyed or transferred any of his property in contemplation of the assignment, or to defraud his creditors, or shall have fraudulently concealed, with- held or kept from his assignee any property which said assignee may be entitled to hold under the assignment, said assignor shall forfeit all rights under any release in said assignment. Laws 1876, c. 89, §5. The judge of probate, upon application by the assignee or any creditor who becomes a party to the assignment, may cite the assignor to appear before him, for an examination, on oath, upon all matters relating to the disposal or condition of his property, to his dealings with others, to his accounts concerning the same, to his liabilities and the consideration therefor, and to all other mat- ters pertaining to his property and estate, and may require him to produce for the inspection of the court and parties, all books, papers or other documents within his control relating to his busi- ness afiairs. lb. § 2. The judge of probate may in like manner cite before him for examination, on oath, any person suspected of having concealed, withheld, embezzled or conveyed away any goods, efiects or cred- its of the assignor, or which passed or ought to have passed by the assignment, or of aiding others in so doing, and may require such suspected person to produce for the inspection of the court and parties, all books, papers or other documents within his control, relating to the matter under examination. lb. § 3. If any person duly cited, as aforesaid, refuses to appear and submit himself to such examination, or to answer all lawful inter- rogatories, or to produce such books, papers or documents, the judge shall commit him to the jail of the county, there to remain until he submits to the order of the court, or is discharged by the applicant or the supreme judicial court ; and he shall also be liable ASSIGNMENT LAW. 263 to any injured party, in an action on tlie case, for all the dam- ages, expenses and charges arising from such refusal. lb. § 4. Sec. 9. If any assignee dies, resigns, becomes insane, or other- wise unsuitable to perform the trust, refuses or neglects so to do or mismanages the trust property, the judge of probate for the county after due notice, shall appoint another in his place, who shall have the same powers and be subject to the same liabilities as the orig- inal assignee. Sec. 10. A purchaser of any chose in action, sold by an as- signee at public or private sale, may sue therefor in his own name, subject to all legal and equitable defenses. Sec. 11. The assignee, judge and register of probate, shall be allowed a reasonable compensation for all their services under this chapter, to be determined by the judge, subject to the right of ap- peal to the supreme court of probate, as from his decisions in other cases, and to be paid out of the estate. 264 APPENDIX. INSOLVENT LAWS. AMENDMENTS. By chapter 154 of the Public Laws of 1879, amendments of the following sections of the Insolvent Law of 1878 were made — viz: — Laws of 1878, c. 74. Laws of 1879, c. 154. Section 9 £ 10 11 14 15 16 17 20 22 23 26 28 30 35 36 38 39 40 43 45 46 48 51 58 Sections 30 and 40 (the latter as amended by Sec. 18 of c. 154) are further amended by Laws of 1880, c. 199, §§ 2 and 1 respectively. The amendments above named, and an additional provision (Sec. 25, c. 154) relative to the interchange of services by the judges, are all embodied in the law as hereinafter given. idee by Section 1. (( n, (( 2. a ii a 3. a (( (( 4. a (( a 5. a (( a 6. a (( a 7. a « n 8. it ii a 9. a a a 10. a u li 11. a a a 12. li a a 13. a a (( 14. a a (( 15. a a (1 16. a (i a 17. It a a 18. a a (( 19. u a a 20. a a t« 21. a (i a 22. a n a 23. (( a a 24. INSOLVENT LAW. 265 INSOLVENT LAW. GENERAL PROVISIONS. By the Insolvent Law the probate court in the several counties is made a court of insolvency, and ordinarily the assignment of the debtor's estate is to be made by the judge, as judge of the latter court, after certain preliminary proceedings, on the petition of the debtor or of some of his creditors. When, however, the insolvent's debts do not exceed three hundred dollars, the assign- ment may be made by the debtor to the register. If the proceedings are initiated by the debtor the insolvency is voluntary ; if by creditors it is involuntary. The law, as amended, is as follows : Sec. 1. The courts of probate for each county in this state are hereby constituted courts of insolvency, and the judges and registers of probate in their respective counties shall be judges and registers thereof. And said courts shall have original jurisdiction in their respective counties of all cases of insolvency arising under the pro- visions of this act, except where it is otherwise specially provided.. The judges may interchange services, or perform each others' duties, when they find it necessary or convenient, and if a judge is a party or interested to the amount claimed of one hundred dollars, exclusive of interest, in any case arising in his county, or is absent or unable to perform his duties, and no judge inter- changes services or performs the duties of such interested judge, or if there is a vacancy in the office in any county, the duties shall be performed in the same county by the judge of any other county designated by the register, from time to time as necessity or convenience may require. [Additional. Laws 1879, c. 154, §25.] Sec. 2. Each court shall be held at the established places for 266 APPENDIX. holding probate courts, at such times as the judge shall appoint, and may be held at such other places as shall best promote the conven- ience of the public within the respective probate districts. The judge may adjourn any court or meeting from time to time as occasion .requires. Sec. 3. The judge may, in vacation, do such oflBcial acts as do not require notice to an adverse party, the same as in term time. Sec. 4. The judge may keep order in his court, and punish any contempt of his authority, orders and decrees; administer oaths, issue commissions, take testimony and compel the attendance of wit- nesses and the giving of testimony to the same extent as the supreme judicial court, and may appoint such oflScers to attend upon the court as are necessary for the transaction of its business and keep- ing order therein. Sec. 5. The proceedings in courts of insolvency shall be deemed matters of record, and the assignment and certificate of discharge shall be recorded in full. The other proceedings need not be re- corded at large but shall be carefully filed, numbered and kept in the office of the register. Copies of all parts of the records, and of re- cords of prior proceedings in insolvency deposited in his office, duly certified by the register, shall in all cases be admissible as evidence, the same as the originals would be. Sec. 6. The register may administer all oaths required in the course of proceedings before the court, except the oath provided by section thirty-nine of this act, and in the absence of the judge may adjourn the court or meeting, and shall keep 9, docket with an alpha- betical index of all cases, with docket entries of all papers filed and proceedings had in each case. Sec. 7. All assignments, warrants, orders of notice and processes issuing from the court shall be under th6 seal thereof, and shall be executed and obeyed throughout the state, and any officer to whom they are legally directed shall serve the same in any county. The return of such officer shall state the manner of such service, and shall be proof thereof. INSOLVENT LAW. 267 Sec. 8. Each county shall provide suitable court rooms in the shire towns for all meetings, and the safe keeping of all books and records appertaining to the courts of insolvency. Sec. 9. The judges, or a majority of them, may make rules, in writing, for regulating and conducting the business of the courts, and submit the same to the supreme judicial court for approval, amend- ment or alteration. Sec. 10. In all cases of appeal provided for by this act, such appeal shall be taken to the supreme judicial court next to be holden within and for the county where the proceedings in insolvency are pending, and shall be heard and determined by any justice of said court, either in term time or vacation. Upon the hearing of such appeal, exceptions shall be to the ruling of such justice in matters of law, which exceptions shall be certified to the chief justice of the supreme judicial court, and the argument in writing, by the party filing such exceptions, shall be sent to the chief justice with- in ten days after such exceptions are allowed, and a copy thereof shall be served on the opposing party or his attorney, who shall in like manner forward his argument in reply within ten days after such service, and said exceptions shall be considered and decided, by the justices of said court as soon as may be, and the decision shall be certified to the clerk of the said court in the county where the case is pending. In case arguments by either party shall not be furnished within the time prescribed herein, the case shall be determined without the argument of such party, unless the judge allowing the exceptions enlarges the time, which additional time shall in no case exceed ten days. Such clerk shall, without delay, certify all final decisions to the register of the court from which the appeal was originally taken. Upon application of either party the judge may direct the framing of issues of fact to be tried by the jury at the term to which such appeal is taken. When an ap- peal is taken as provided by this section, notice thereof shall be ^ven to the register to be entered with the record of proceed 268 APPENDIX. ings within five days after the rendition of the decision or judg- ment appealed from. But if the appellant, in writing, waives his appeal before the entry thereof, or fails to enter the same on the first day of the term to which such appeal is taken, proceedings may be had in the court of insolvency as if no appeal had been taken. The prevailing party shall recover the costs of appeal as in other cases, and execution may issue therefor from the court of insolvency. No appeal shall lie in any case arising under this act unless specially provided for therein. Sec. 11. The supreme judicial court shall have full equity juris- diction in all matters arising under this act ; the powers herein granted may be exercised by said court or any justice thereof in term time or vacation upon bill, summary petition or other proper process, and upon request of either party the justice before whom a final hear- ing in any proceeding in equity shall be had, shall certify to the full court, for decision, questions of law involved in such proceed- ings, to be heard and determined in the manner provided in sec- tion ten of this act. Sec. 12. In this act the words assignee, creditor and debtor shall include the plural also ; the word messenger shall include his assistants ; and the word sherifi' shall include deputy sheriff. Sec. 13. Any inhabitant of this state, owing debts contracted while such inhabitant, may apply by petition to the judge for the county within which' he resides, setting forth his inability to pay all his debts, and his willingness to assign all his estate and eflTects not exempt by law from attachment and seizure upon execution, for the benefit of his creditors, and praying that such proceedings may be had in the premises as are provided in this act. Sec. 14. If it appears to the satisfaction of the judge thait the debts due from the applicant amount to not less than three hundred dollars, he shall forthwith issue a warrant under his hand, to the sherifi" of the county or either of his deputies, directing him forth- with as messenger to take possession of all the estate, real and per- INSOLVENT LAW. 269 sonal, of the debtor, except such as may be by law exempt from at- tachment, and of all his deeds, books of account and papers relating to his property and estate, and keep the same safely until the election or appointment of an assignee ; to publish notice in such newspapers as the warrant specifies, and give such other notice as the judge shall direct, to all creditors upon the schedule furnished him by the debtor, which notice shall state : First. That a warrant has issued against the estate of the debtor. Second. That the payment of any debts to, or by said debtor, the delivery and transfer of any property by him, are forbidden by law. Third. That a meeting of the creditors of the debtor, to prove their debts and choose one or more assignees of his estate, will be held at a court of insolvency to be holden at a time and place designated in the warrant, not less than ten or more than thirty days after the issuing of the same. Sec. 15. When two or more creditors of a debtor shall make ap- plication under oath, by petition by them signed, to the judge of the county in which the debtor resides, setting forth that they believe their aggregate debts provable under this act, amount to more than one-fourth part of the debts provable against such debtor, and that they further believe and have reason to believe, that said debtor is insolvent, and that it is for the best interests of all the creditors that the assets of such debtor should be divided as provided by this act, and it shall be satisfactorily made to appear to the judge that the allegations contained in such application are true, and that such debtor is insolvent, it shall be the duty of the judge to issue his warrant, under his hand, to the sheriff of the county or either of his deputies, directing him forthwith to attach the real and personal estate of the debtor not exempt by law from attach- ment and seizure on execution, wherever the same may be situ- ated, within this state, and forbidding the payment to or by such 270 APPENDIX. debtor of any debt, demand or claim whatsoever, and the sale, transfer, mortgage, pledge, conveyance, or removal by such deb- tor, his agents or attorneys, of any of his estate, property, rights or credits, and the making of any contracts for the sale or pur- chase thereof, or relating thereto, until such warrant shall be re- voked by said judge. Upon the issuing of such warrant the reg- ister shall cause an attested copy of such application and warrant to be served upon the debtor, or such other notice as the judge may order to be given, who thereupon may appear, and a hearing shall be had upon such application by the judge, who may there- upon revoke such warrant, unless such allegations are proved. After the service of the copy of the application and warrant upon such debtor, or the giving of such other notice as the judge may order, provided by this section, and until the revocation of such war- rant, any payment of any debt, demand or claim, to or by said debtor, and any sale, transfer, mortgage, pledge, conveyance, or contract, for the sale or purchase of any estate, property, rights or credits of such debtor, by such debtor, or his agent or attorney, shall be null and void. If upon hearing or default, the judge shall find the allegations of such application to be true and proved, and that said debtor is insolvent, he shall issue his additional warrant to •the said sheriff or either of his deputies, and cause such other proceedings to be had as are provided in section fourteen of this act. Sec. 16. When the warrant is issued as provided by this act, commanding the messenger to take possession of all the estate, real and personal, of the debtor, except such as may be by law exempt from attachment and seizure on execution, and of all his deeds, books of account, and papers relating thereto, he shall proceed forthwith and demand and receive from the debtor, and other per- sons, all the estate of the debtor, with all deeds, books of accounts, and papers relating thereto. In case such warrant is revoked, such estate, deeds, books and papers, shall be returned to the deb- tor or his legal representatives. INSOLVENT LAW. 271 Sec. 17. Upon demand made by the messenger, the debtor shall forthwith deliver to him all his estate, all deeds, books of accounts and papers relating to his property and estate, and shall also furnish him within five days a full schedule of all creditors, with their places of residence and the sum due to each so far as the same shall be known to the debtor, together with the consideration of the indebtedness, and a statement of any existing mortgage, pledge, or other collateral security given to secure the same, and a full list of all his assets, with a brief description of all real estate or interest in real estate which he may own, and the place where the same is situated. Sec. 18. Upon the application in writing, of any party inter- ested, the judge may order the messenger to sell, after due public notice and notice to the debtor, for cash, in such manner as he may direct, any part of the debtor's estate and collect and receive debts due such insolvent ; and such messenger shall keep a correct ac- count of the names of the purchasers, the articles sold, and the prices received therefor, and of all debts collected by him. Sec. 19. Upon the election of an assignee, the messenger shall deliver to him all the property held by him, and cash for goods sold by him, and received by him from the collection of debts, together with an account of the same, and shall return to the register his war- rant, with a record of all his doings thereon. Sec. 20. If the debtor dies after commencement of proceedings, such proceedings shall be continued and concluded in like mapner, and with like validity and efiect as if he had lived. ■ The judge of pro- bate may make an allowance to the widow or minor children of the deceased, out of such estate, as is now provided by law. Sec. 21. When a creditor has a mortgage or pledge of real or personal estate of the debtor, he cannot vote for assignee, except upon unsecured claims, unless he shall file with the register a dis- charge of his security, and shall prove his claim against the estate as an unsecured debt. 272 , APPENDIX. Sec. 22. All debts due and payable from the debtor at the time of the filing of the petition by or against him, and all debts then ex- isting but not payable until a future day, a rebate of interest being made when no interest is payable by the terms of the contract, may be proved against the estate of the insolvent. All demands against the insolvent for or on account of any goods or chattels wrongfully taken, converted or withheld by him, may be proved and allowed as debts, to the amount of the value of the property so taken or withheld, with interest. When the insolvent is liable for unliqui- dated damages arising out of any contract or promise, or on ac- count of any goods or chattels wrongfully taken, converted or withheld, the court may cause such damages to be assessed, in such mode as it may deem best, and the sum so assessed may be proved against the estate. In all cases of contingent debts and contingent habilities, contracted by the insolvent, and not herein otherwise provided for, the creditor may make claim therefor, and have his claim allowed with the right to share in the dividends if the contingency happens before the order for the final dividend ; or he may at any time apply to the court to have the present value of the debt or liabiUty ascertained and liquidated, v/hich shall then be done in such manner as the court shall order, and he shall be allowed to prove for the amount so ascertained. Any person lia- ble as bail, surety, guarantor, or otherwise for the insolvent, who shall have paid the debt, or any part thereof, in discharge of the whole, shall be entitled to prove such debt, or to stand in the place of the creditor, if the creditor has proved the same, although such payments shall have been made after the proceedings in insolvency were commenced. And any person so liable for the insolvent, and who has not paid the whole of such debt, but is still liable for the same or any part thereof, may, if the. creditor fails or omits upon request to prove such debt, prove the same either in the name of the creditor or otherwise, as may be provided by the rules of the court, as provided in section nine of this act, and subject to such INSOLVENT LAW. 273 regulations and limitations as may be established by such rules. Where the insolvent is liable to pay rent or other debt falling due at fixed and stated periods, the creditor may prove for a propor- tionate part thereof up to the time of the insolvency, as if the same fell due from day to day, and not at such fixed and stated periods. No debts other than those specified in this section, shall be proved or allowed against the estate. No debt shall be proved or allowed unless the creditor or his authorized attorney makes oath in substance as follows: I, do swear that , of , by or against whom proceedings in insolvency have been instituted, was and still is justly and truly indebted to me in the sum of , that the consideration for said indebtedness was and is , that the credit to be given upon said claim is , that the only security I hold upon said claim is , and that I have not, nor has any other person for me to my knowledge or belief, received any other security or satisfaction whatever ; and I do further swear that said claim was not procured by me for the purpose of influencing the proceedings in this case ; and I do further swear that I have not, nor has any other person to my knowledge or belief, directly or indirectly entered into any bargain, expressed or implied, whereby I am to receive any exclusive benefit hereafter, or whereby my vote for assignee, or my assent to the debtor's discharge is or shall be in any way affected or controlled. Such proof may be made, and such oath may be taken before the register of any court of insolvency, or iat the creditor's own expense may be proved in like manner before any justice of the peace or notary public, and such register, justice of the peace or notary public, shall forward such demand and proof to the register of the court of insolvency where the, proceedings in insolvency are pending. Such oath or afHdavit shall be taken as prima faoie evi- dence of the facts therein stated. The assignee, or any other per- son interested, may at any time before final dividend, file objections 18 274 APPENDIX, in writing to the allowance of such claim, and thereupon the judge may upon such notice as he shall direct to the claimant or his at> torney, order a hearing upon the same,, and thereupon may admit the claim to be proved, or may disallow the same, in whole or in part, and at such hearing the judge may require the examina- tion under oath of the claimant or other persons, touching said claims, and all matters connected therewith ; whenever the party to be so examined shall not reside in the county where such hearing is to be had, such examination may be had before- the judge or register of the court of insolvency of the county where the witness to be examined resides, and such examination shall be taken upon oral or written interrogatories, as the case may be. The notice to be given to the person to be examined shall be at least one day for every twenty miles travel of the witness to the place of examination. If the claimant or person making the origi- nal proof of debt, after due notice, shall without good cause, neg- lect or refuse to appear and submit to such examination, the judge may reject such claim without further hearing thereon, and witnesses shall be entitled to the usual fees as now allowed by law before the probate courts. The assignee, claimant, creditor or other person intereste'd, may appeal from the decision of the judge allowing or disallowing in whole or in part any debt, claim, or demand, against the debtor or his estate, to the supreme judicial court next to be holden within and for the county where the proceedings in insolvency are pend- ing, which appeal shall be taken, heard and determined, as pro- vided in section ten of this act. Sec. 23. Any creditor may prove his claim at any time before the final dividend. Sec. 24. For the purpose of making the application provided by section fifty-eight, of effecting the composition, provided by said sec- tion fifty-eight, and of proving claims against an estate of any insol- vent under this act, a creditor, who holds security, shall be con- INSOLVENT LAW. 275 sidered a creditor only for the amount of his debt above the value of his security. First. — In case of such application, such value shall be made to appear, in the first instance, by the creditor, to the satisfaction of the judge, and be formally determined by him upon the hearing upon said application, if any shall be had. Second. — In case of composition, such value shall be determined by the judge, upon application of either the creditor or debtor. Third. —In case of proof of claims, such value may be deter- mined by agreement between the creditor and assignee, or by the judge, upon application of either the creditor or assignee, either by an adjudication thereof, or by decreeing a sale of such security, in such manner and upon such notice as he may order. Sec. 25. The judge may postpone the proof of any debt until after an assignee is elected or appointed. Sec. 26. A person who has accepted any preference, knowing the debtor was insolvent or in contemplation of insolvency, shall not prove the debt on which the preference was given, nor receive any dividend thereon until he shall surrender to the assignee all property, money, benefit or advantage received by him under such prefer- ence. The assignee, after demand, may recover back by action of assumpsit, from any creditor whose claim is disallowed in whole or in part, any dividend or proportional part thereof, paid to such creditor before the disallowance of such claim. Sec. 27. Any creditor may act at all meetings by his authorized attorney, the same as though personally present. Sec. 28. The creditors shall at the first meeting, in the presence of the judge, choose one or more assignees of the estate of the deb- tor ; such choice shall be made by the greater part in number and value of the creditors present in person or by attorney, who have proved their debts ; and such election shall be subject to the approval of the judge, who may appoint additional assignees or order a new election. If no choice is made by the creditors at 276 APPENDIX. said meeting, the judge shall appoint one or more assignees, and the judge may at any time for good cause shown, remove any assignee and appoint another in his place. Sec. 29. Upon the application, in writing, of one or more credi- tors, representing one-fourth part of the amount of debts proved, the judge shall require the assignee to give a bond for the faithful performance of his duties, in such sum as he shall direct, and with such sureties as he shall approve. Sec. 30. The judge shall, by an instrument under his hand, as- sign and convey to the assignee, all the estate, real and personal, of the debtor, except such as is by law exempt from attachment and seizure on execution, together with all deeds, books of account, and papers relating thereto, which assignment shall be recorded forth- with in the registry of deeds for the county where such proceed- ings in insolveney are pending, and in the registry of deeds in each county in which there may be real estate of the debtor, and such assignee shall give such public notice of his election or ap- pointment as the judge may order ; such assignment shall relate back to the commencement of proceedings in insolvency, and by operation of law shall vest the title to all the property and estate of the debtor not exempt by law from attachment and seizure on execution, in the assignee, although the same is then attached on mesne process as the property of the debtor, or is claimed under any mortgage given by the debtor to secure a debt to a prior ex- isting creditor, which has not been recorded at least three months prior to commencement of insolvency proceedings, and such assign- ment shall dissolve any such attachment made within four months, and any such mortgage not recorded at least three months next preceding the commencement of proceedings in insolvency. Such assignee may sue for and recover by an action at law, or by a bill in equity, any sums of money paid by the debtor to any creditor upon any writ, judgment or execution, when such payment is made within two months prior to the commencement of the pro- INSOLVENT LAW. 277 ceedings in insolvency, and is received by the creditor as a pre- ference, in violation of the provisions of this act, and the creditor knows at the time such payments are made that the debtor making the same is insolvent. Sec. 31. Whenever any creditor of a debtor, by or against whom proceedings in insolvency shall be commenced, shall at any time within four months prior to the commencement of such proceed- ings commence against such debtor any suit at law or in equity, for the recovery of any debt or claim against such debtor, and upon such suit the goods, effects or estate of the debtor shall be seized or attached, the assignee of such debtor, when chosen or appointed, may be admitted to prosecute such suit to final judg- ment or decree, and may in his own name levy upon or sell the property, effects or estate so attached, in the same manner as the creditor might have done had no proceedings in insolvency been commenced ; and such attachment and the proceeds of the pro- perty so attached shall be held for the benefit of the estate of ■ such insolvent, and when such attachment is made in good faith, the creditor shall be paid out of the estate the costs and expenses arising from such suit and attachment, and the safe keeping or sale of the property so seized and attached, and the expenses of any levy made upon the same, incurred prior to the appearance of such assignee in such suit, and such creditors shall be allowed to prove his debt or claim upon which such suit is brought, in the same manner as if a suit had not been commenced. In case the assignee shall elect not to appear and prosecute such suit, if it shall appear to' the court that it was commenced in good faith for the benefit of all the creditors, he shall order the said costs, and expenses incurred prior to the assignment of the estate to the assignee, to be paid out of the estate. ' Sec. 32. The assignee shall sell and dispose of all the property and estate coming to his hands, and upon petition the judge may make such order concerning the sale or disposition of the insolv- 278 APPENDIX. ent estate as he may deem proper, and any assignee shall have power to maintain in his own name all suits at law and in equity, for the recovery and preservation of the insolvent estate, and for the recovery of all dues and claims belonging thereto, whether the same arose prior to the commencement of proceed- ings in insolvency, or arise under the provisions of this act, and shall be admitted to prosecute and defend all suits relating to said estate, and may with the consent of the judge settle any demand or controversy by compromise or arbitration, and sell and assign all uncollected or disputed claims, and the purchaser may com- mence or prosecute a suit thereon in his own name, and the as- signee shall not be liable for any costs thereon. Sec. 33. Whenever upon petition of the assignee it appears that the title to any portion of the estate which has come to his posses- sion is in dispute, the judge may, after such notice to the claimant, his agent, or attorney, as the judge shall deem reasonable, order the sale thereof in such manner as the judge shall direct, and the assignee shall hold the funds received therefor in place of the estate so sold, and the proceeds of the sale shall be considered the measure of the value of the property in any suit between the parties in any court. But this provision shall not prevent the re- covery of the property from the possession of the assignee by an action of replevin commenced at any time before the judge orders the sale. Sec. 34. The assignee shall deposit in his name, as assignee, in such bank as the judge shall approve, all money coming to his hands belonging to the insolvent estate, and shall account for all interest received thereon. Sec. 35. Whenever an assignee shall receive from the estate as- sets available to pay a dividend equal to twenty-five per cent of the debts proved, exclusive of expenses, he shall declare and pay such dividend, and render an account thereof to the judge. No divi- dend already declared, shall be disturbed by reason of debts being INSOLVENT LAW. 279_ subsequently proved, tut the creditors proving such debts shall be entitled to a dividend equal to those already received by the other creditors, before any further payment is made to the latter. In all cases of contingent or disputed claims the assignee may reserve an amount equal to the dividend which would be due upon such claim if finally allowed, unless otherwise ordered by the judge ; if such disputed or contingent claim shall be finally allowed, such re- served amount shall be paid to the owner of such claim, otherwise it shall be accounted for when the final distribution ,of the estate is made. And for each twenty-five per cent of assets received a like dividend shall be made. A final dividend shall be made at such time as the judge shall direct, and when the same is made, the assignee shall exhibit an account of the full settlement and dis- position of the estate coming to his hands, and of -the fees and ex- penses arising therefrom, which shall be examined by the judge, and if found correct, shall be by him approved, and thereupon the assignee shall be discharged from his trust. Sec. 36. In making a dividend under the preceding section, the following claims shall first be paid in full in their order : First. — The fees, costs and expenses of suits and proceedings in insolvency under this act. Second. — All debts and taxes due to the state, or any county, city, or town therein, and the United States. Third. — Wages due to any operative, clerk, or house servant, to an amount not exceeding fifty dollars, for labor performed with- in six months next preceding the filing of the petition. Sbc. 37. An assignee may, with the consent of the judge, resign his trust and be discharged therefrom, and from any personal liabili- ty, provided he has acted in good faith. Vacancies, caused by death or otherwise, in the ofiSce of assignee, may be filled by appointment of the judge, or, at his discretion, by an election at a meeting called for the purpose, by such notice to all known creditors, as the judge shall direct ; and such assignee shall receive a certifi- 280 APPENDIX. cate of his election or appointment, under the hand of the judge, and shall give such notice thereof as the judge shall direct, and he shall succeed to all the rights of property, powers and duties of the assignee in whose place he is so elected or appointed. Sec. 38. The debtor shall at all times before the granting of his certificate, upon reasonable notice, attend and submit to an examina- tion on oath, before the judge or some person appointed by him to take such examination, upon all matters relating to his insolvency, and apon application of any party interested, the judge may in like manner order the examination of any other person upon any mat- ters concerning the insolvent estate, which examination shall be reduced to writing and signed by the person examined, and placed upon the files of the court. The insolvent shall execute all such conveyances, powers of attorney, or other instruments, and do such acts as the assignee may require, under the direction of the court, to enable the assignee to recover and receive the estate of the insolvent. Sec. 39. The assignee with the approval, of the judge shall appoint a second meeting of the creditors, to be held at such place as he may designate, not more than three months after the date of the warrant, the debtor may then amend and correct his schedule of creditors, and shall take and subscribe an oath before the judge in substance as follows : I, do swear that the account of my creditors con- tained in the schedule made and signed by me is true, according to rriy best knowledge and belief; and 1 do further swear that I have delivered to the messenger, all my estate except such as was by law exempt from attachment and seizure on execu- tion, and all my books of accounts, and papers relating to said es- tate that were within my possession or power when the same were demanded of me by the messenger ; that I have delivered to my as- signee all such of my estate, books and papers as have since come to my possession, and will deliver any other estate, books and INSOLVENT LAW. 281 papers which ought to be assigned and delivered to my assignee which shall come to my possession or knowledge ; and I do further swear that there is not any part of my estate or effects made over, concealed or disposed of in any manner for the future benefit of myself, my family, or any other individual, or in order to defraud my creditors. Sec. 40. At any time after the expiration of four months from the time of commencement of proceedings, the debtor may apply in writing to the judge for a discharge from his debts. The judge shall order notice to be given to the creditors by mail or otherwise, to appear on a day appointed for that purpose, and show cause why a discharge should not be granted to the debtor. Any creditor opposing the discharge may file a specification in writing of the grounds of his opposition, and a hearing shall be had thereon at such time as the judge appoints. If it shall appear to the court that the insolvent has in all things conformed to his duty under this act, and all acts amendatory thereof, and that he is entitled under the provisions thereof to receive a discharge, the court shall grant . him a discharge from all his debts, except as hereinafter provided, and shall give him a certificate thereof under the seal of the court. In all cases when the judge shall grant or refuse to grant a dis- charge under the provisions of this act there shall be an appeal to the supreme judicial court next to be holden within and for the county where the proceedings in insolvency are pending, to be taken, heard and determined in the manner provided in section ten of this act. The party appealing shall file at the time of entering his appeal, in the supreme judicial court, a copy of the specifications of the grounds of opposition to the dischai'ge certified by the register. A.t the request of the debtor, or opposing creditor, the presiding judge shall order the question of discharge to be tried by the jury at the first or any subsequent term of said court. Ex- ceptions shall be had as to matters of law, to be heard and decided as provided by said section ten. 282 APPENDIX. Sec. 41. A discharge shall not be granted to a debtor a second time insolvent, unless the assent in writing of a majority in number and in value of his known creditors shall first be filed in the case, to be verified by proof satisfactory to the judge. And a discharge shall not be granted to a debtor a third time insolvent, unless- the assent in writing of three-fourths of all his creditors in number and in value shall first be filed in the case, to be verified in like manner. Sec. 42. A discharge shall not be granted, or if granted be valid, if the debtor has sworn falsely, or if he has concealed any property, books or papers relating to his estate and business, or if having reasonable cause to believe himself insolvent, or being in contem- plation .of insolvency he has within four months of the issuing of the warrant paid or secured, directly or indirectly, in whole or in part, any borrowed money or pre-existing debt, or any liability of his o;r for him, or if he has caused his effects to be attached, or if he has destroyed, altered, mutilated or falsified any of his books, documents, papers, writings or securities, or has made or been privy to the making of any false or fraudulent entry in any book of account or other document, with intent to defraud his creditors or to give a preference contrary to the provisions of this act, or has removed or allowed to be removed, any property with a like intent, or has made any fraudulent payment, gift, transfer, con- veyance or assignment of any part of his property, or if having knowledge that any person has proved ' a false debt against his estate he has not disclosed the same to the assignee within thirty days after such knowledge, or if being a merchant or trader he has not since the passage of this bill kept a cash book and other proper books of account. And the discharge shall be null and void if the debtor or any person in his behalf shall have procured the assent of any creditor thereto by any pecuniary consideration or promise of future preference. Sec. 43. No debt created by the fraud or embezzlement of the INSOLVENT -LAW. 283 insolvent or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in insolvency under this act, but such debt may be proved and the dividend thereon shall be a payment on account of such debi. Sec. 44. No discharge shall release, discharge or afl'ect any person liable for the same debt for or with the insolvent, either as partner, joint contractor, endorser, surety or otherwise. Sec. 45. A discharge in insolvency duly granted shall, subject to the limitations in and by the two preceding sections, within this state, release the insolvent from all debts, claims, liabilities and de- mands, which were or might have been proved against his estate in insolvency; it may be pleaded by a simple averment that on the day of its date such discharge was granted to the insolvent, setting forth a copy of such discharge, which shall operate as a full and complete bar to all suits brought on any such debts, claims or lia- bilities as were or might have been proved as aforesaid ; the cer- tificate shall be conclusive evidence in favor of such insolvent, of the fact and regularity of such discharge. Any creditor of an in- solvent whose debt was proved or provable against the estate in insolvency, who desires to contest the validity of the discharge on the ground that it was fraudulently obtained, may at any time within two years after the date thereof apply to the court which granted it, to annul the same. The application shall be in writ- ing, and shall specify which in particular of the several acts men- tioned in section forty-two it is intended to prove against the insol- vent, and set forth the grounds of avoidance ; and no evidence shall be admitted as to any other of such acts, but the application shall be subject to amendment at the discretion of the court. The court shall cause reasonable notice of the application to be given to the insolvent, and order him to appear and answer the same, within such time as to the court shall seem proper. If upon hear- ing the parties the court finds the fraudulent acts, or any of them, 284 APPENDIX. set forth by the creditor against the insolvent are proved, and that the creditor had no knowledge of the same until after the granting of the discharge, judgment shall be given in favor of the creditor, and the discharge of the bankrupt shall be annulled ; but if the court finds that the fraudulent acts, and all of them so set forth, are not proved, or that they were known to the creditor before the granting of the discharge, judgment shall be rendered in favor of the insolvent, and the validity of his discharge shall not be affected by the proceedings. In all cases arising under this section, there shall be an appeal to the supreme judicial court next to be holden within and for the county where the proceedings in insolvency are pending, to be taken, heard and determined, in the manner provided in sec- tion ten of this act. The party appealing shall file at the time of entering his appeal in the supreme judicial court, a copy of the application to have the discharge annulled, certified by the register. At the request of either party, the presiding judge shall order issues of fact to be tried by the jury at the first or any subsequent term of said court. Exceptions shall be had as to mat- ters of law, to be heard and decided as provided by said section ten. Sec. 46. No claim purchased after commencement of proceed- ings in insolvency shall be set off against a claim due the estate prior to such purchase. Sec. 47. No creditor shall commence or maintain any suit against the insolvent debtor, upon any claim or demand which he has proved against such debtor in insolvency, until after a discharge has been refused such debtor, provided such debtor shall proceed with reasonable diligence to obtain such discharge, and no debtor against whom a warrant in insolvency has been issued shall be liable to arrest on mesne process or execution, where the claim was prova- ble in insolvency during the pendency of the insolvency proceed- INSOLVENT LAW. 285 ings, unless the same shall be unreasonably protracted by the fault or neglect of such debtor. Sec. 48. If any person being insolvent or in contemplation of in- solvency, within four months before the filing of the petition by or against a debtor, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures or suffers any part of his property to be attached, se- questered or seized on execution, or makes any payment, pledge, as- signment, transfer or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person re- ceiving such payment, pledge, assignment, transfer or conveyance, or to be benefited thereby, or by such attachment, having reason- able cause to believe such person is insolvent or in contemplation of insolvency, and that such payment, pledge, assignment or con- veyance is made in fraud of the laws relating to insolvency, the same shall be void, and the assignee may recover the property or the value of it from the person so receiving it or so to be benefited, and if such sale, assignment, transfer or conveyance is not made in the usual and ordinary course of business of the debtor, that fact shall be prima facie evidence that such sale, assignment transfer or conveyance was intended as such preference, in viola- tion of the provisions of this act ; but nothing in this section or act shall be construed to invalidate any loan of actual value or the security therefor made in good faith, upon a security taken in good faith on the occasion of making such loan. Sec. 49. The debtor shall be allowed out of his estate for his ser- vices, attendance, and for the necessary support of himself and his family, such sum not exceeding one dollar per day for himself, and three dollars per week for each member of his family, and for such time not exceeding three months, as the judge may order. Sec. 60. If a debtor, after notice of the filing of a petition by or against him, sells, removes, secretes or conceals any property, mon- ey or effects belonging to his estate, or any books, papers, documents 286 APPENDIX. « or writings relating thereto, or in any manner whatever disposes of any part of his estate, with a view to defraud his creditors, or to prevent the same from coming to the hands of his assignee, except such as may reasonably be expended for the support of himself and family, not exceeding the amount specified in section forty-nine, he shall, upon conviction thereof, be punished by imprisonment in the county jail not more than one year, or by fine of not more than five hundred dollars. Sec. 51. If any person knowingly and wilfully aids the debtor after the commencement of proceedings against him under this act, in concealing any property, books or papers relating to or belonging to such debtor's estate, with the intent to prevent the same coming to the hands of the assignee of such debtor, or to defraud the creditors of such debtor, or shall by himself, his agent'or attorney, make any fraudulent purchase or fraudulent agreement to pur- chase of the messenger or assignee having the possession of the debtor's estate, any of the property or estate of such debtor, at a less price than its fair market value, he shall, upon conviction thereof, be punished by imprisonment in the county jail not more one year, or by fine of not more than five hundred dollars. Sec, 52. If any messenger or assignee having.possession of the debtor's estate under a warrant, as provided by this act, shall know- ingly and wilfully suffer any of the property belonging to such estate to be destroyed or wasted, or shall fraudulently sell or cause to be sold or disposed of, any of the properly belonging to the estate of the debtor at less than its fair market value, he shall, upon con- viction thereof, be punished by imprisonment in the county jail not more than one year, or by fine of not more than five hundred dollars. PARTNERSHIP. Sec. 53. The provisions of this act shall apply to all cases where two or more persons are doing business within this state as partners, INSOLVENT I LAW. 287 ' and wbere either of such persons reside in this state, and in suet cases the notice required by this act shall be given to all the known partners residing within the state. Either partner may file his petition as herein provided, which shall contain the averment that the partnership of which he' is a member is insolvent, and unable to pay its debts, and that it is for the best interest of such partner- ship and its creditors that its property and estate should be distri- buted according to the provisions of this act, but no warrant shall issue until such notice as the judge directs shall be given to the remaining partners, and upon hearing, it shall appear to the satis- faction of the judge that the allegations contained in the petition are true. The schedule required by this act shall contain the names of all creditors of the firm, and the residences of the same, so far as they shall be known, the amount due to each with the consideration thereof, and^a statement of any existing, mort- gage, pledge, or other collateral security given to secure the same, and also a like list of the creditors of each individual mem- ber of the firm. Upon issuing the warrant, all the property and estate of the partnership, and also all the separate estate of each in- dividual partner, except such as may be by law exempt from attach- ment, shall come into the hands and possession of the messen- ger, shall be returned to the assignee, and otherwise disposed of as hereinbefore provided, and all creditors of the partnership, and the separate creditors of each partner may prove their debts in the manner provided by this act. Sec. 54. The assignee shall be chosen by the creditors of the partnership, and shall also be assignee of the estate of each separate member of such partnership, and shall keep separate accounts of the -funds of the estate of the partnership and of the estate of each mem- ber thereof, and after deducting out of the whole amount received by him the total expenses and disbursements, the net proceeds of the partnership property shall be appropriated to pay the creditors of such partnership ; and the net proceeds of the separate estate 288 APPENDIX. of each partner shall be appropriated to pay his separate creditors. ' If there is any balance of the separate estate of a partner after the payment of his separate debts, it shall be added to the avails of the partnership property, so far as necessary for the payment of the partnership debts. If there is a balance of the partnership assets remaining after the payment of the partnership debts, it shall be divided among the separate estates of the several partners, according to their respective rights and interests therein, as it would have been had the partnership been dissolved without insol- vency, and the sum so appropriated to the separate estate of each partner shall be applied to the payment of his separate debts, and in case anything remains it shall be divided among the several partners, according to their respective interests. Sbc. 55. The certificate of discharge shall be granted or refused to each partner as it would or ought ifi be if the proceedings had been against him alone. In all other respects the proceedings against partners shall be conducted in the same manner as against a single person. Sec. 56. In all proceedings against partners, each shall be enti- tled to the same allowance as that provided in section forty-nine of this act, to continue for such time as the judge may direct, not exceeding two months. Sec. 57. The provisions of this act shall apply to all corpora- tions created by the authority of the laws of this state, carrying on manufacturing, trading, mining, building, insurance or other private business, but notto.include corporations engaged inabusiness involv- ing public duties and obligations, among which are railroads, banks, corporations engaged in supplying cities and towns with gas or water, and other corporations of like character ; and upon the petition of any officer duly authorized by a legal vote of such cor- poration,, passed at a legal meeting called for that purpose, or upon a petition of any creditor or creditors of such corporation, made and presented as in this act is provided in the case of an in- INSOLVENT LAW. 289 dividual debtor, and upon such notice as the judge shall order, a hearing shall be had upon such petition, and if it shall appear that such corporation is insolvent, and that such facts exist as would authorize the judge to issue a warrant against the estate of an in- dividual debtor, such corporation shall be adjudged to be insolvent, and a warrant shall issue against its property and effects as here- inbefore provided ; and all the provisions of this act relating to proceedings subsequent to the issuing of a warrant against the es- tate of an individual debtor, shall apply to said corporation and the disposition of its effects and estate, but no discharge shall be granted to such corporation, and nothing in this act shall affect the liability of any stockholder in such corporation as is now pro- vided by law. Sec. 58. In all cases of insolvency where the debtor or debtor's Uability exceeds the sum of three hundred dollars, if the debtor or debtors at any meeting of the creditors shaill produce an affidavit by him or them signed and sworn to before the judge or register of the court of insolvency, of the tenor following : I, of , in the county of , do solemnly swear that I have not removed, concealed or secreted any money, papers, securities, effects, or property, real or personal with the intent, purpose or expectation of receiving, directly or indirectly, any benefit or advantage to myself, and that I have not changed or falsified any of my books of account, deeds or papers relating to my estate, and that I have not sold, pledged, conveyed or transferred any of my property or estate in anticipa- tion of insolvency, or made any conveyance, mortgage, pledge, transfer or payment to any creditor, or caused or procured any attachment of my property for the purpose of preferring any of my creditors ; and that I have not, directly or indirectly, given any creditor or other person any compensation or promise of re- ward, except reasonable counsel fees for services or influence in effecting a compromise with my creditors, and that my assets and 19 290 APPENDIX. liabilities are correctly stated in the schedule hereunto annexed and signed by me. And at the same time shall also produce an agreement signed . by a majority in number of his creditors, whose debts shall each exceed the sum of rfty dollars, and by creditors holding three- fourths of all his indebtedness, in the form following : We, the undersigned, creditors of , of , in the county of , do hereby agree to accept per cent, of our actual net claims against him, the amounts of which are correctly stated against our respective names, in full discharge of the same. And we further agree that we have not, directly, or indirectly, received any compensation or promise of future payment beyond the per cent, herein named. And if the judge shall be satisfied that such agreement is signed by said proportion of the creditors of such debtor, and that such debtor has either paid or secured the percentage named in such agreement and according to the terms thereof, he shall give such debtor, under his hand and the seal of the court, a full discharge of all his debts and liabilities contracted prior to the commencement of the proceedings in insolvency, and named in the schedule annexed to said affidavit. Such discharge shall not be valid if the signature of any creditor has been obtained by fraud, or if any material statement contained in such affidavit or schedule is false, to the knowledge of the debtor making the same, and any creditor may within two years sue for and recover the balance of his claim or debt against such debtor. In case the pro- ceedings in insolvency are by or against a co-partnership, the affi- davit, agreement and certificate shall be varied accordingly, and shall contain both the names of the firm and the names of the members thereof. Before such certificate shall be granted, the debtor shall pay all expenses incurred during the proceedings. Sec. 59. Any person whose debt or debts do not exceed the sum of three hundred dollars, may at any time assign, convey and INSOLVENT LAW. 291 deliver to the register of the probate court of the county within which he resides, all of his real and personal estate, rights and credits not exempt by law from attachment and seizure on execu- tion, together with a schedule of the same, signed by such debtor, and a list of all, his creditors, with their places of residence, so far as the same are known to him, and thereupon the register shall, with the approval of the judge, appoint the time for a hearing thereon, before the judge, or such a person as he may appoint to take such examination, and shall give such notice to the creditors, of the time and place of such hearing as the judge may order, and any creditor may appear at such hearing and examine the debtor, un- der oath, concerning his business, property and effects, and the disposition of the same. Such examination shall be confined with- in such limits as the judge shall direct, and in no case shall such examination be extended to any matters arising prior to the time of the contracting of the debts owed by such debtor at the time of the examination. If it shall appear to the judge, or the persoii ap- pointed by him to take such examination, that the debtor has as- signed, conveyed and delivered to the register all his said real and personal estate, rights and credits, and that he has disclosed to the register the names and places of residence of all creditors known to him, he shall administer to such debtor the following oath : I, , do swear that the account of my creditors con- tained in the schedule made and signed by me is true, according to my best knowledge and belief ; and I do further swear that I have delivered to . , the register of probate, all mj estate, rights and credits, except such as is by law exempt from attach- ment and seizure on execution ; and I do further swear that there is not any part of my estate, rights or credits, made over, con- cealed, or disposed of in any manner, for the future benefit of my- self, my family, or any other individual, or in order to defraud my creditors ; unless he shall have discovered, by such examina- 292 APPENDIX. tion, such facts as shall render it inconsistent for the debtor to take such oath, or finds that any of the statements made by such debtor upon said examination are not true. When such debtor has taken and subscribed said oath, the judge shall give him a certificate thereof under his hand, and thereupon he shall be thereafter released and discharged from arrest upon mesne pro- cess or execution, arising from any debt or debts contracted prior to the taking such oath, and owing to any creditor named in said schedule. The provisions of this section shall also apply to any person who has been arrested or committed to jail upon mesne process or execution, and such debtor shall be taken by the jailer, or ofiBcer having him in charge, before the court for the purposes specified in this section. After the assignment and conveyance provided by this section, the register, or some person appointed by the judge, shall dispose of said debtor's property and efiects to the best advantage, keeping and rendering to tbe judge a strict account of its disposition, and the net proceeds thereof, after re- serving such percentage as the judge shall decide to be reasonable, to be paid by the register into the county treasury, shall be divided pro rata among the creditors named in the schedule of said deb- tor in part satisfaction of their respective debts. The examination herein provided for shall be in writing, and shall be signed by the debtor and filed in the office of the register, and in case the judge shall appoint any person to take such examination he may allow him reasonable compensation therefor, to be paid out of the deb- tor's assets if they shall be sufficient, otherwise such compensation or such part thereof, as shall remain unsatisfied out of the debtor's estate, shall be paid out of the county treasury. Sec. 60. The fees of all officers, the compensation of assignees, and of the judges and registers of probate, under the provisions of this act, shall be established by the supreme judicial court, and shall be paid out of the estates. And in all voluntary proceedings under the provisions of this act, the fees and costs shall be paid by the petitioners. INSOLVENT LAW. 293 RULES. In accordance with the provisions of section ten of the foregoing law, authorizing the judges of the court of insolvency to make rules in writing for regulating and conducting the business of the courts, the judges have established the following, which have been approved by the supreme judicial court, and are now THE RULES OE THE COURTS OE INSOLVENCY. 1. The register shall enter upon each petition the day and hour when the same is filed. 2. Every paper filed shall have endorsed upon it a brief state- ment of its character, and no paper shall be taken from the files for any purpose except by order of the court. 3. To promote uniformity in the blanks used in these proceed- ings, they will be furnished by the registers, and no other blanks will be allowed to make a part of the files. 4. The evidence of debts proved, such as notes and other writ- ten securities shall be annexed to the deposition, and retained on the files of the case ; but upon application in writing they may be taken from the files, copies being left in their place. Such copy shall be attested by the register, and accompanied by a certificate of the creditor or his attorney of record that the original has been withdrawn. 5. All papers filed in court, shall be indorsed by the attorney presenting them, giving his place of residence. 6. No petition for insolvency proceedings shall be filed unless accompanied by a deposit of twenty-five dollars with the register, who shall give a receipt for the same. , 7. The rules of evidence shall be substantially the same as those in the courts of common law, except so far as changed or modified by express statutes. « 294 APPENDIX. 8. The first meeting of creditors shall remain open at least one hour before an assignee is chosen or appointed, unless within that time it shall appear that the requisite number and value of the creditors named in the statute have proved their claims and made choice of an assignee. 9. After a claim is sworn to and before its allowance, the judge shall state in open court, the name of the creditor, and the nature and amount of the claim, and that the same will be allowed, unless objected to by some party having the right so to object. 10. No claim, once regularly proved, shall be expunged or re- considered, except upon the fo rmal petition of some party inter- ested, verified by oath, setting forth the grounds of objection to such claim; a copy of which petition the petitioner shall cause to be served upon the creditor, a reasonable time before the hearing thereon. 11. The signature of any written instrument shall not be denied, unless the party offering the same, shall have reasonable notice, after presenting the same, that it will be so denied. 12. The returns upon all orders for meetings, and accounts of assignees, and all other returns except those made by sworn oiEcers, shall be made under oath, before the court, or any person qualified to administer oaths. 13. When a creditor has reason to believe that a debtor holds a set-off to a claim proposed to be proved, it shall be the creditor's duty to ascertain, as nearly as possible, the amount thereof, to state it as part of, or in connection with the bill of particulars, voucher or security filed, and to prove only the balance, as and for the claim due him. 14. A bill of particulars, substa ntially like that required in the courts of common law, shall in all cases be filed before the allow- ance of a claim existing in account. 15. Claims of creditors are to be made up as cash, to the day of the filing the petition, interest when it is legally due, being added to claims overdue, and deducted on claims not due on that day. INSOLVENT LAW. 295 16. Where a creditor claims interest, it shall be his duty to cast and state the same as a distinct item before presenting his demand for proof; and the register shall receive the amount stated in or with the bill of particulars, voucher, or security presented for proof, as the sum to be inserted in the affidavit, and the same rule shall apply, when the law requires a discount or rebate of in- terest. 17. The oath of the creditor, his guardian or attorney, cogni- zant of the facts shall be required in all cases in establishing proof of debts and when made by guardian or attorney, a reason satis- factory to the court, why the same is not made by the claimant shall be stated therein. 18. The messenger in notices of first meetings, shall insert therein the date when the petition was filed, and the words "to which date interest on claims is to be computed." 19. The assignee shall make a report to the court on oath, on the first Monday of each month of all moneys received and depos- ited belonging to the estate, and at the expiration of three months from his appointment or as much earlier as the court may order, he shall file an account of his receipts and disbursements, and set- tle the same at such time after notice thereon, as the court may designate. 20. No attorney at law in active practice shall be accepted as surety in any proceedings in insolvency. 296 APPENDIX. DECISIONS UNDER THE INSOLVENT LAW. But few questions in the administration of this law have been determined by the supreme court. These, however, are of such importance that the several cases in which they have arisen, and the opinion of the court thereupon, are given at length in the following pages. In re Herbert L. Damon, appellant from Decree of Judge of Insolvency. Androscoggin County. Insolvent act. Constitutional law. The constitution of the United States does not prohibit the enactment of an insolvent law by a state. The insolvent act of this state, having been enacted while the federal bank- rupt law was in force, went into full operation upon repeal of the bank- rupt law, and not before. The provisions of Stat. 1878, c. 74, § 15, authorizing the sequestration of the estate of an insolvent without previous notice to him, is not unconstitutional for that cause. On exceptions. On December 9, 1878, the judge of the court of insolvency, on application of the creditors of the appellant, issued a warrant for taking possession of the appellant's estate in accordance with the provisions of Stat. 1878, c. 74, §§ 14, 15. The warrant was made returnable December 24, 187,8, and ordered the appellant to then appear. On return day Damon appeared before the court of insolvency, resisted the prayer of the application, and filed a motion alleging, in substance, that he was adjudged an insolvent on December 9, 1878, on the petition of his creditors and without any notice to INSOLVENT LAW DECISIONS. 297 himself, contrary to the law of the land ; that the statute under which he was so adjudged is unconstitutional and void, for that when said statute was enacted, to wit: February 21, 1878, the federal bankrupt law was in force and so continued until Septem- ber 1, 1878 ; that the state statute did not take effect upon its passage, or at the expiration of thirty days after the recess of the legislature which enacted it, by reason of the federal bankrupt law ; and that the state statute never became of effect. The prayer of the motion was for a dismissal of the proceedings against him. The judge of the court of insolvency overruled the motion ; and Damon appealed to the supreme judicial court. ' The presiding justice of the appellate court ruled, as matter of law, that the decree appealed from be affirmed. Thereupon the appellant alleged exceptions. Appleton, C. J. The insolvent law of this state, c. 74, of the acts of 1878, was enacted while the bankrupt law of the United States was in full operation. The proceedings in the case before us are under the insolvent law of this state, and were commenced since the repeal of the bankrupt law. I. It is objected that the statute of this state is unconstitutional and void because enacted while the bankrupt act of the United States was in full force. It is provided by section eight of the first article of the consti- tution of the United States that "congress shall have power . . to establish . . uniform laws on the subject of bankruptcies throughout the United States." Here is no prohibition against the passage of bankrupt or insolvent laws by the states. As long as the national government abstains from legislation on this sub- ject the states may act. "It is sufficient to say," observes Mar- shall, C. J., in Sturgu v. Orowninshield, 4 Wheat. 122, "that until the power to pass uniform laws on the subject of bankrupt- cies be exercised by Congress, the states are not forbidden to pass 298 , APPENDIX. a bankrupt law, provided it contain no principle which violates the tenth section of the first article of the constitution of the United States." The right of the states to pass insolvent or bankrupt laws, and that the power given to the United States is not exclusive, has been repeatedly aiSrmed. Boyle v. Zaoharie, 6 Pet. 348. Cook v. Moffat, 5 How. 310'. Baldwin v. Rale, 1 Wall. 223. If there is a state law on the subject, the subsequent passage of a bankrupt law by congress neither repeals nor annuls it. It only suspends its operation so far as the law of the state may be in con- flict with the act of congress. As was said by Bartol, C. J., in Lavender v. Gosnell, 43 Md. 153, "the act of congress suspends the state law but does not repeal it. Proceedings commenced under the state law prior to the passage of the bankrupt act may be carried on to their final termination in accordance with the provisions of the state law." Judd v. Ives, 4 Met. 401. Oham- berlain v. Perkins, 51 N. H. 387. A voluntary assignment by a debtor for the benefit of his cred- itors, under the insolvent law of the state, is prima facie an act of bankruptcy within the thirty-fifth section of the bankrupt act of 1867, but such an assignment, no proceedings in bankruptcy hav- ing been instituted, remains valid, unless such proceedings are in- stituted within six months thereafter. Malthie v. Hotchkiss, 38 Conn. 80. The insolvent law of this state is not wholly super- seded by the bankrupt act of the United States, but when they come in conflict, the latter must prevail. Hawkins' Appeal, 34 Conn. 549. Gerry's Appeal, 43 Conn, 289. In Iowa it was held that the state insolvent law was not nullified, superseded or sus- pended by the bankruptcy law, and that jurisdiction might be ex- ercised under the former until proceedings have been commenced under the act of Congress. Meed v. Taylor, 32 Iowa, 209, But it is not required to go to the length of the case last referred to. INSOLVENT LAW DECISIONS. 299 While the bankrupt law is in full force, it has, or may have, jurisdiction of cases within its provisions. "Upon the repeal of that law," observes, Dewey, J., in Atkins v. Spear, 8 Met. 491, "the insolvent law of Massachusetts was revived, and with its re- vival all the limitations and restrictions upon the right to a dis- charge revived, although the acts occurred during its suspension." The bankrupt law mereiy suspending the state insolvent laws, upon its repeal they at once revive and need not be re-enacted. Lav- ender V. Gosnell, supra. "If the right of the states to pass a bankrupt law is not taken away by the mere grant of the power to congress," observes Marshall, C. J., in Sturgis v. Orowninshield, supra, "it cannot be extinguished ; it can only be suspended by the enactment of a general bankrupt law. The repeal of that law cannot, it is true, confer the power on the states ; but it re- moves a disability to its exercise, which was created by the act of congress." It follows from these decisions that a state insolvent law is not unconstitutional, and that it is neither repealed, annulled, nor ren- dered void by the passage of the bankrupt law, for proceedings commenced under its provisions may be completed, notwithstanding the existence of a bankrupt law enacted after their commencement, and because the moment the act of congress is repealed the state law at once revives. It is evident, therefore, that the state law has vitality notwithstanding and during the existence of the para- mount law of the United States, for if it was void by the act of congress it could not revive. We now come to the question whether the state can pass an in- solvent or bankrupt law during the existence of an act of congress on the subject. In other words, whether the act under discussion is in force. Its validity is unquestioned unless absolutely void in its inception. No constitutional provision has been violated, for the passage of such a law is not merely not prohibited, but it is impliedly sane- 300 APPENDIX. tioned by the clause giving congress power over the subject mat- ter of bankruptcies. The legislature may pass a law to take effect instantly, or at a future day, or on the happening of a future event. If the statute had said that it was to take effect upon and after the repeal of the bankrupt law of congress, there could have been no doubt as to its validity. But such is the precise effect of the law without the insertion of any such provision. The act of congress is the paramount law on the subject when called into action. The law of the state is subordinate to it. The efficient action of the state law is suspended for the time being precisely as in the cases already considered, when a national bankrupt law was passed subsequently to a state law on the same subject. The state may pass a law which is subordinate to the paramount authority of national legislation, and is only subordinate - to that, 270 return if warrant is revoked 270 debtor to deliver to messenger 271 judge may order sale of 271 messenger to deliver to assignee 271 acquired under preference to be surrendered 275 disposal of by assignee 277 sale of , in dispute .' .. 278 fi-audulent attachment or conveyance of, void 285 loans of actual value secured in good faith not invalidated 285 of firm and each partner to be returned to assignee 287 RECORDS, how to be made ; 266 flies kept 266 copies admissible as evidence 266 county to provide for safe keeping 267 INDEX. 351 REGISTER, PAGE. powers and duties of 266 docket entries to be made 266 notice of appeal to be given to 267 final decision to be certified to 267 to cause copy of application and warrant to be served 270 messenger to return warrant to 271 discharge of security to be filed witli by creditor 371 proof of debt and oath before 273 assignment to when debt does not exceed fSOO 290, 291 duties as such assignee .' 291, 292 RENT, creditor may prove for proportionate part 273 RULES OF COURTS, judges may make 267 rules adopted and in force 293-295 SALE, of debtor's property forbidden 270 of security when may be ordered 275 of debtor's estate by assignee 277 of property in dispute 278 when considered fraudulent 285 penalty for fraudulent 285, 286 (see Property.) SCHEDULE OP ESTATE AND NAMES OP CREDITORS, debtor to furnish messenger 271 in partnersliip cases to contain what 287 required in case of corporations 289 " " " "composition 290 " " " " assignment to register 291 SEQUESTRATION OP DEBTOR'S ESTATE, provision for constitutional 296 • SET OPP, claim purchased after commencement of proceedings can not be 384 rule relating to 294 SHERIFF, includes deputy 268 warrant to be served by , 268, 370 to act as messenger 268 352 INDEX. SUPREME JUDICIAL COURT, page. appeal to 367, 268 to have full equity jurisdiction 268 rules of insolvent court to be submitted to 267 SURETY, privileges of in certain cases 272 VACANCIES, in office of assignee, how filled 279 VALIDITY OF DISCHARGE, how contested 283, 284 WARRANTS, to be under seal 266 judge shall issue 268 directed to sherifE as messenger 268, 269 special direction in on creditor's petition / 269 notice and hearing 270 judge may revoke when 270 " " issue additional when 270 to be returned to register 271 when to be returned 269 provision for in partnership cases 287 WITNESSES, judge may compel attendance of 266 fees of 274 examination of in certain cases to be in writing 280