Claims of exec- tration. R. S. 66, § 18. 9 Met. 329. of his creditors, it shall be deemed unfaithful administration, and he shall be liable in an action on his administration bond for all damages occasioned thereby. SECT. 26. If a debt claimed by an executor or administrator as due to him from the deceased, is disputed by any person interested in the mitted to arbi- estate, the claimant shall file in the probate [court] a statement of his claim in writing, setting forth distinctly and fully the nature and grounds thereof; and the same may then be submitted under an order of the court to one or more arbitrators, to be agreed on by the claimant and the party objecting. The court shall have like power to discharge the rule by which the claim is referred, and to reject and disallow the award, or to recommit it to the arbitrators, as might be exercised by the courts of common law with regard to cases referred by a rule of those courts. The award of such arbitrators if accepted by the probate court shall be final and conclusive. decided by court or jury, on appeal. R. S. 66, § 19. Estate of deceased joint debtor, liable. R. S. 66, § 27. 2 Mass. 572. 4 Met. 544. 11 Cush. 152. SECT. 27. If parties do not agree in the appointment of arbitrators, or if the award is not confirmed by the probate court, the judge shall decide on the claim, upon such evidence as shall be adduced before him. On appeal to the supreme court of probate, either party or the court may have the claim submitted to a jury, and thereupon an issue shall be made up, under the direction of the court, and tried by a jury as other issues in civil actions are tried; and the verdict thereon, being duly allowed and recorded, shall be conclusive. SECT. 28. When two or more persons are indebted in a joint contract, or upon a judgment founded on such contract, and either of them dies, his estate shall be liable therefor as if the contract had been joint and several, or as if the judgment had been against himself alone. Personal estate how accounted for. to be charged SECTION 1. Executors and administrators shall account for the personal estate at its appraisal, except as hereinafter provided. SECT. 2. They shall make no profit by the increase, and sustain no Executors, &c., loss by the decrease or destruction without their fault, of any part of the estate; if they sell any of the personal estate for more than the and allowed for appraised value, they shall account for the excess; and if they for less than the appraised value, they shall be allowed for the loss, if it appears to the probate court that the sale was expedient and for the interest of all concerned in the estate. for increase, decrease. R. S. 67, § 2. Probate court sell any SECT. 3. The probate court, on application made by the executor, may order sale. administrator, or any person interested in the estate, after the return of the inventory, may order any part or all of the personal estate to be R. S. 67, § 3. sold by public auction or private sale, as shall be deemed most for the interest of all concerned; and the executor or administrator shall account therefor at the price for which it sells. may license claims, which SECT. 4. The probate court upon petition of the executor or admin- Probate court istrator, and after such notice thereof to the parties interested as the sale of out court may order, and a hearing thereon, may for the purpose of closing standing the settlement of an estate, license the executor or administrator to sell cannot be coland assign any outstanding debts, claims, and assets, which cannot be lected without collected, received, or determined, without inconvenient delay. The 1851, 136, § 1. sale shall be conducted in such manner as the court, having regard as far as it may be thought advisable or prudent to the law in relation to sales of real estate by executors and administrators, shall order. delay. mortgages, &c. 1849, 17. SECT. 5. Nothing in the preceding section shall deprive executors Executors, &c., and administrators of the right to transfer at pleasure deeds of mort- may transfer gage, and the real estate conveyed, and the debts secured, thereby, either before or after possession taken for foreclosure; and all such transfers heretofore made, and all titles to real estate held under such transfers, are ratified and confirmed. 1852, 41, § 1. 1 Pick. 81. 13 Met. 126. not chargeable with bad SECT. 6. No executor or administrator shall be accountable for debts inventoried as due to the deceased, if it appears to the probate debts. court that they remain uncollected without his fault. SECT. 7. Every executor and administrator shall be chargeable in his account, with all goods, chattels, rights, and credits of the deceased, which come to his hands and which are by law to be administered, although they are not included in the inventory; also with all proceeds of real estate sold for the payment of debts or legacies, and with all interest, profit, and income, that come to his hands from the personal estate of the deceased. R. S. 67, § 4. fects not inven- R. S. 66, § 5. 1 Pick. 156. with income received. 5 Greenl. 387. SECT. 8. If the real estate has been used or occupied by the executor or administrator, he shall account for the income thereof, as ordered of real estate if by the probate court with the assent of the executor or administrator R. S. 67, § 6. and of such other parties interested as are present at the rendering 16 Mass. 280. of the account. If the parties do not agree on the sum to be allowed, 1 Pick. 156. it shall be determined by three disinterested persons to be appointed by the probate court, whose award being accepted by the court shall be final. 6 Gray, 339. to render ac count within one year, and counts, &c. Pick. 198. Met. 553. further ac 6 R. S. 67, § 7. SECT. 9. Every executor and administrator shall, within one year after giving bond for the discharge of his trust, render upon oath his first account of administration; and such further accounts from time to time as may be necessary or convenient, or as the probate court may require, until the estate is wholly settled; and he may be examined on oath before the court upon any matters relating to his accounts. SECT. 10. Executors and administrators shall be allowed their reasonable expenses incurred in the execution of their respective trusts, for services, &c. and shall have such compensation for their services as the court in which their accounts are settled considers just and reasonable. See Ch. 101, §§ 6, 7. allowances to 1838, 144, § 1. ing accounts. 5 Gray, 26. SECT. 11. When an executor or administrator, after being duly cited how liable by the probate court, neglects to render an account of his administra- for not rendertion, his bond may be put in suit as provided in chapter one hundred R. S. 67, § 9. and one; and if he persists in such neglect, judgment shall be rendered against him, and he shall be liable in like manner and to the same extent as an executor in his own wrong. cases be SECT. 12. When an account is settled in the absence of any person Accounts setadversely interested, and without notice to him, the account may be tled, in what opened, on his application at any time within six months thereafter; opened. R. S. 67, § 10. and upon the settlement of any account by an executor or administra- 3 Foster, 225. tor, all his former accounts may be so far opened as to correct any mis- 7 Pick. 1. take or error therein; except that any matter in dispute between two 6 Met. 194. parties, which had been previously heard and determined by the court, See Ch. 101, § 7. 20 Pick. 510. 48 Costs recovered against executor, &c., how ed. shall not be again brought in question by either of the same parties without leave of the court. SECT. 13. If judgment is recovered against an executor or adminis trator for costs in a suit commenced or prosecuted by him in that capaid and allow- pacity, the estate in his hands shall not be taken on execution therefor, but execution shall be awarded against him as for his own debt; and the amount paid by him thereupon shall be allowed in his administration account, unless it appears to the probate court that the suit was commenced or prosecuted unnecessarily or without reasonable cause. R. S. 67, § 11. 16 Mass. 530. Debts entitled R. S. 68, § 1. 1. Debts entitled to preference. 2. Representation of insolvency, and appoint- 3. Commissioners to give notice of meetings. 8. Claims to be decided at common law, upon 9. Notice to be given on appeal, and when. 11. Claim may be submitted to arbitration. 13. Remedy when appeal is omitted by acci- 14. Allowance of appeal not to disturb prior 15. Commissioners, &c., may examine claim- SECTION 1. SECTION 17. Copartnership and individual claims to be separate. 18. Distribution among creditors after commissioners' return. 19. Further distribution. 20. Actions by creditors after representation of insolvency. 21. Claims not proved to be barred, unless, &c. 22. If assets sufficient, debts paid in full. Surplus. 23. Surplus, how divided. 24. Administrator liable only for assets in his hands. 25. Creditor may sue after eighteen months, in case, &c. 26. Penalty on executor, &c., neglecting to set- 27. Dividends unclaimed for twenty years, to When the estate of a person deceased is insolvent or to preference. insufficient to pay all his debts, it shall, after discharging the necessary expenses of his funeral, last sickness, and administration, be applied to the payment of his debts in the following order: 1852, 139. 16 Mass. 308. 4 Met. 317. 9 Met. 180, 507. See § 18. Ch. 127, § 4. Representation and appoint ment of commissioners. First. Debts entitled to a preference under the laws of the United Second. Public rates, taxes, and excise duties: If there is not enough to pay all the debts of any class, the creditors of that class shall be paid ratably upon their respective debts; and no payment shall be made to creditors of any class until all those of the preceding class or classes, of whose claims the executor or administrator has notice, are fully paid. SECT. 2. When it appears to the probate court from the representaof insolvency, tion of an executor or administrator, that the estate of the deceased will probably be insufficient for the payment of his debts, the court shall appoint two or more fit persons to be commissioners to receive and examine all claims of creditors against the estate, and to return a list of all claims laid before them, with the sum allowed on each claim. The commissioners shall be sworn before entering on the duties of their office. R. S. 68, § 2. 16 Mass. 308. 6 Pick. 481. Commissioners SECT. 3. They shall appoint convenient times and places for their meetings to receive and examine claims of creditors, and shall by mail to give notice to make report. See § 18. SECT. 4. Six months after the appointment of the commissioners Commissioners shall be allowed for the creditors to present and prove their claims; R. S. 68, 54. and the court may allow such further time for this purpose, not exceed & Pick. 458. ing eighteen months from the date of the commission, as shall be deemed necessary; and at the expiration of the time for the proof of debts, the commissioners shall make their return to the probate court. SECT. 5. If at the return of the commission any person is liable as a Provision for surety for the deceased, or has any other contingent claim against his contingent estate which could not be proved as a debt under the commission, the R. S. 68, §5. court upon proof thereof shall, in ordering a dividend, leave in the hands 7 Met. 132. debts. и of the executor or administrator a sum sufficient to pay to such contin allen 430 gent creditor a proportion equal to what shall then be paid to the other creditors. SECT. 6. If such contingent debt becomes absolute within four years Same subject. after the date of the administration bond, it may be allowed by the R. S. 68, § 6. probate court if not disputed by the executor or administrator; and if disputed, it may be proved before the commissioners already appointed or others to be appointed by the judge, in like manner as if presented before the first return of the commissioners. SECT. 7. Upon the allowance of such claim, the creditor shall be Same subject. entitled to a dividend thereon equal to what has been paid to the other R. S. 68, § 7. creditors, so far as the same can be paid without disturbing the former dividend; and if his claim is not finally established, or if the dividend due to him does not exhaust the assets in the hands of the executor or administrator, the residue of the assets shall be divided among all creditors who have proved their debts. SECT. 8. Any person whose claim is disallowed in whole or in part, and any executor or administrator who is dissatisfied with the allowance of a claim, may appeal from the decision of the commissioners, and the claim shall thereupon be determined at common law in the county in which the probate or administration is granted. If the demand exceeds the sum of three thousand dollars in the county of Suffolk, or one thousand dollars in any other county, the appeal shall be directly to the supreme judicial court; otherwise to the superior court; and in either case it shall be tried and determined in like manner as if an action had been brought therefor by the supposed creditor against the executor or administrator. Claims to be decided at comappeal. mon law, upon R. S. 68, § 8. 1856, 308. 6 Met. 271. Met. 132. and when. SECT. 9. Such appeal shall be claimed and notice thereof given at Notice to be the probate office within thirty days after the return of the commission- given on appeal, ers. If the appeal is by an executor or administrator, he shall give R. S. 68, § 9. notice thereof to the creditor within said thirty days. The appeal shall be entered at the court appealed to, held next after the expiration of said thirty days. execution R. S. 68, § 10. SECT. 10. At the term of the court at which the appeal is entered, Trial and judgthe supposed creditor shall file a statement in writing of his claim, set- ment, but no ting forth briefly and distinctly all the material facts which would be thereon. necessary in a declaration for the same cause of action; and like proceedings shall be thereupon had in the pleadings, trial, and determination, of the cause, as in an action at law prosecuted in the usual manner; except that no execution shall be awarded against the executor or administrator for a debt found due to the claimant. The final judgment shall be conclusive, and the list of debts allowed by the commissioners shall be altered, if necessary to conform thereto. Claim may be bitration. Costs upon ap- Remedy when appeal is omit ted by accident, &c. R. S. 68, § 13. 7 Met. 211. Allowance of appeal not to disturb prior dividends. R. S. 68, § 14. Commission ers, &c., may ant on oath. SECT. 11. After the claiming of such appeal, the parties may waive a trial at law and submit the claim to the determination of arbitrators to be agreed on between them, and appointed accordingly by a rule of the probate court; in which case the appeal shall not be entered at the court appealed to; and the award of such arbitrators, if accepted by the court, shall be conclusive in like manner as is provided in the preceding section with regard to a judgment in a court of common law. SECT. 12. The party prevailing upon such appeal shall be entitled to costs, which if recovered against the executor or administrator may be allowed to him in his administration account. SECT. 13. Any person whose claim is disallowed by the commissioners, and who, for other cause than his own neglect, omits to claim or prosecute his appeal as before provided, may, upon his petition therefor to the supreme judicial court holden in any county, be allowed to claim and prosecute an appeal in manner aforesaid, upon such terms as the court imposes, if it appears that justice requires a further examination of his claim; but no such petition shall be sustained unless presented within two years after the return of the commissioners, and within four years after the date of the administration bond. SECT. 14. The allowance of such appeal and the judgment thereon shall not disturb any distribution ordered before notice of the petition, or notice of the intention to present the same has been given in writing at the probate office or to the executor or administrator; but the debts thus proved and allowed shall be paid only out of such assets as remain in or come to the hands of the executor or administrator after payment of the sums due on such prior decree of distribution. SECT. 15. The commissioners may require the claimant to make true examine claim- answers under oath to all questions relating to his claim; and if he refuses to take such oath or to answer fully all questions, they may dis allow his claim. On appeal from their award, the court shall have like power to examine the claimant and disallow his claim. R. S. 68, § 15. may administer oaths. R. S. 68, § 16. Distribution among credit ors, after com turn. R. S. 68, § 17. 1 Greenl. 251. 4 Met. 317. SECT. 16. Either of the commissioners may administer oaths to claimants and to witnesses. SECT. 17. After the expiration of thirty days from the return of the commissioners, the probate court shall make such decree for the dis missioners' re- tribution of the effects among the creditors, as the case according to the provisions of this chapter requires. If before making the decree the court has notice of an appeal from the commissioners, then claimed or pending, the decree may be suspended until the determination of the appeal, or a distribution may be ordered among the creditors whose debts are allowed, leaving in the hands of the executor or administrator a sum sufficient to pay the claimant whose demand is disputed a proportion equal to that of the other creditors. SECT. 18. If the deceased had been a member of a copartnership, and copartnership and individual claims are proved against his estate, the commissioners shall make separate lists of said claims. In making a dividend the court shall order the joint and separate estate to be distributed in the same manner, and among the same classes of creditors, as provided in the case of insolvent debtors under chapter one hundred and eighteen. SECT. 19. If the whole assets are not distributed upon the first decree, or if further assets come to the hands of the executor or adminis trator, the probate court shall make such further decrees for distribution as the case requires. SECT. 20. No action shall be maintained against an executor or administrator after an estate is represented insolvent, unless for a demand entitled to a preference and which would not be affected by the insolvency of the estate, or unless the assets prove more than sufficient to pay all the debts allowed by the commissioners. If the estate is repre |