Where witness to in jail or prison rules upon civil process, in any other county or his testi nony is to be obtained. CHAP. 156.-An ACT concerning the probat of wills in certain cases." (Passed February 17th, 1823.) 1. Be it enacted by the general assembly, That it shall be lawful a will is confined for any court, when any will shall be produced to them for probat, and any witness attesting the same shall appear to be in confinement in jail or prison rules, upon any civil process in any other county or corporation, how corporation of this commonwealth, to issue in open court a commis. sion or commissions annexed to such will, directed to the court of that county or corporation in which such confinement is had, authorizing and requesting the taking and certifying of the attestation of such witness to said will; whereupon it shall be the duty of that court, to cause said witness to be brought before it in custody of the sheriff, and receive the evidence of his or her attestation; which evidence shall be entered of record in the court where taken, and certified to the court from which the said commission or commissions issued; which evidence and certificate, shall be returned to the proper court, with the commission and will annexed to it as above mentioned, and shall be received as evidence on the question of probat, and shall have the same effect as if the said evidence had been given personally by the witness in the court from whence such commission issued. Nothing herein contained shall be taken to release the witness from his or her said confinement; who shall be immediately remanded after giving his or her evidence as aforesaid. Proviso. Devise of lands, how to be executed, and attested. Commencement. 2. And be it further enacted, That no last will and testament shall be good and valid to pass any estate, right, title or interest in possession, reversion, or remainder in lands, tenements or hereditaments, or annuities, or rents, charged upon or issuing out of them, unless such last will and testament be signed by the testator or testatrix, or by some other person in his or her presence, and by his or her direction, and moreover if not wholly written by himself, or herself, be attested by two or more credible witnesses subscribing their names in his or her presence. (a) 3. This act shall take effect from its passage. CHAP. 157.-An ACT to amend an act, entitled, "an act reducing into one the several acts concerning wills, the distribution of intestates' estates, and the duty of executors and administrators, and for other purposes."t (Passed February 19th, 1823.) Executors, &c. 4. Be it further enacted, That so much of the twenty-fifth section when defendants, of an act, entitled, "an act for limitation of actions, for preventing not to be compelled to pay costs, of frivolous and vexatious suits, concerning jeofails and certain protheir proper goods ceedings in civil cases," passed February the twenty-fifth, eighteen and chattels. hundred and nineteen, as authorizes a judgment or decree for costs to be levied of the proper goods and chattels of any executor, administrator or other person having charge of the estate of a testator Acts 1822-3, ch. 27, p. 27. (a) See 1 Rev. Code 1819, ch. 104, § 1, p. 375. The only difference between this section and that contained in the revised act, so far as it relates to the execution of a devise of lands, is in the requisition, that the attesting witnesses should subscribe their names in the presence of the testator or testatrix. + Acts 1822-3, ch. 28, p. 28. The first, second and third sections of this act are omitted, as they are totally repealed by the twelfth section of the act of 1824-5, see post. ch. 158; acts 1824-5, ch. 8, p. 10. or intestate, where such executor, administrator or other person is a defendant, shall be and the same is hereby repealed. (a) 5. This act shall commence and be in force from and after the Commencement: passage thereof. CHAP. 158.-An ACT to amend the act, entitled, "an act reducing into one the several acts concerning wills, the distribution of intestates' estates, and the duty of executors and administrators."* [Passed February 16th, 1825.] 1. Be it enacted by the general assembly, That before granting Oath to be taken by executor or ada certificate of the probat of any will, whereby the executor or ex-ministrator with ecutrix, administrator or administratrix with the will annexed, may by the will is auwill annexed, who be authorized to sell any real estate within this commonwealth, or thorized to sell or receive profits of to receive the rents and profits of any such real estate, such exreal estate. ecutor or executrix, administrator or administratrix with the will annexed, (as the case may be,) shall in open court take the following oath, to wit: "You shall swear that this writing contains the true last will of the within named as far as you know or believe, and that you will well and truly perform the same, by paying first his or her debts, and then the legacies contained in the said will, as far as his or her goods, chattels and credits, and the real estate within this commonwealth, which by the said will may be sub. ject to your authority, will extend, and the law charge you; and that you will make a true and perfect inventory of all the said goods, chattels and credits, together with an inventory of the said real estate, as also a just account when thereto required." And shall Bond to be given. also give bond in such penalty as will be equal to the full value of all the said estate at least, and with such security as shall be approved of by the court, with the following condition, to wit: "The condition of this obligation is, that if the said executor or executrix of the last will and testament (or administrator or administratrix with the will annexed,) of deceased, do make a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, together with an inventory of the real estate within this commonwealth, which by the said will may be subject to his or her authority, and which have or shall come to the hands, possession or knowledge of the said or into the hands or pos session of any other person or persons for made, do exhibit to the court of and the same so at such time as actings and shall be thereto required by the said court, and the same goods, chattels and credits, and real estate, do well and truly administer according to law, and make a just and true account of doings therein, when thereunto required by the said court; and further, do well and truly pay and deliver all the legacies contained and specified in the said will, as far as the said goods, chattels and credits, and real estate, will extend, according to the value thereof, and as the law shall charge ; then this obligation to be void, or else to remain in full force." Which bond shall be payable to To whom payable, and how to be put the judges or justices sitting in court, and shall not become void upon the first recovery, but may be put in suit, and prosecuted from time to time, by and at the costs of any party injured by a breach thereof, until the whole penalty be recovered thereupon.(b) (a) 1 Rev. Code 1819, ch. 128, § 25, p. 494. Acts 1824-5, ch. 8, p. 10. (b) 1 Rev. Code 1819, ch. 104, § 21, pp. 360, 381. in suit. Under what circumstances no se curity shall be required. Court, when re sponsible for not taking suflicient security. Justice dissenting, rated. 2. But where any testator or testatrix shall leave visible estate more than sufficient to pay all his or her debts, and by will shall direct, that his or her executors shall not be obliged to give security, in that case no security shall be required, unless the court shall see cause, from their own knowledge, or the suggestions of creditors or legatees, to suspect the executors of fraud; or that the personal estate, as well as the real estate by the said will devised to be sold, when the same may be subjected by the said will to the payment of debts, will not be sufficient to discharge all the debts, and shall require security, when the same shall be given before a certificate shall be granted, notwithstanding any directions to the contrary in the will. (c) 3. If any court shall grant probat of any will, or administration with the will annexed, to any person, from whom by law security should be required, or shall grant a certificate for obtaining administration on the estate of any intestate, and shall fail to take good security from the executor or administrator, according to the requirement of the law, to be judged of according to the apparent circumstances of the security when taken, and not from subsequent accidents or discoveries thereof, the judges or justices of such court then sitting, or so many of them as shall approve such grant, shall be answerable to the person or persons injured, for all loss or damage occasioned by not requiring any, or by taking insufficient security, recoverable with costs, by action on the case in any court of record. (d) 4. When probat of any will, or certificate for obtaining letters how to be exone of administration on any estate shall be granted, and bond and security is received from the executor or administrator, or the probat or certificate is granted without security, it shall be lawful for any justice then sitting to enter on the record his dissent from such grant without security, or his dissent from the sufficiency of the security received by the court, and such dissent shall protect the dissenting justice from all liability on account of such insufficient security, or grant without security. But if such dissent be not entered on the record, all the sitting justices shall be held to have Duty of clerk to approved of the act of the court. It shall be the duty of the clerk names of justices. to enter particularly on the record the names of the justices sitting at the time of granting such probat or certificate without security, and at the time of accepting such bond and security and if any clerk shall fail to make such entry, or shall make an erroneous entry in relation thereto, it shall be deemed a breach of his official duty, and he shall be answerable therefor to the person or persons injured thereby. enter on record Suits may be maintained on executorial bonds tices, though dead. 5. Every action upon the official bond of any executor or administrator, whether such bond shall have been executed before or in names of jus- after the passage of this act, may be brought, maintained and prosecuted to judgment and final execution, in the names of the judges or justices to whom it is made payable, for the benefit of the person injured by the breach of the condition, whether such judges or jusNot to abate by tices be alive or not; and such suit shall not be abated, nor shall death of justices. execution of the judgment thereon be hindered or delayed by any (c) 1 Rev. Code 1819, ch. 104, § 22. This section is extended to real as well as personal estate, which was alone provided for in the revised act. (d) Ibid. § 37, p. 384. allegation of the death of the said judges or justices, or any of them. 6. Every court granting a certificate for the probat of any will Appraisers of real and personal whereby the executor or executrix, administrator or administratrix estate to be nomiwith the will annexed, may be authorized to sell any real estate nated. within this commonwealth, or to receive the rents and profits of any such real estate, shall nominate three or more appraisers in every county or corporation, where any of the personal estate, or of the said real estate of the decedent shall be, who, being sworn before a justice of the peace for that purpose, shall truly and justly, Their duty. to the best of their judgment, view and appraise all the said personal and real estate to them produced or shewn, and shall return such appraisement under their hands to the court ordering the same; which appraisement, if signed by the executor or administrator, Appraisement, may be considered as an inventory of such part of the estate as had sidered as an inheretofore come to his hands. (e) when to be con ventory. 7. Nothing in this act contained shall be so construed as to Distinction beabolish or alter the distinction now established, between legal and tween legal and equitable assets, equitable assets; but the executor or administrator with the will to remain in full annexed, shall apply the assets legal and equitable, in the same course of administration as if this act had never passed.(ƒ) force. hereafter and their accounts. 8. And be it further enacted, That henceforth it shall be the Executors, &c. duty of every executor or executrix, administrator or administratrix, heretofore ap curator or committee, who shall hereafter qualify or receive their pointed, when and how to apply appointment in any court within this commonwealth, within two for settlements of years from the time of such qualification or appointment, and so in like manner in every two years thereafter, and of every executor or executrix, administrator or administratrix, curator or committee, who shall heretofore have received his appointment, or qualified as aforesaid, within two years from the commencement of this act, and so in like manner in every two years thereafter, to apply to the Proceedings in court from which their powers emanate, to appoint a commissioner such cases. or commissioners to state, settle and adjust their accounts on the estate committed to their charge, as far as they may have progressed in administering the same; and it shall moreover be the duty of such executor or administrator, curator or committee, within six months after the said order shall have been procured, to cause his accounts to be settled before such commissioners, and such account, so settled and adjusted, to return to the proper court; which said commissioner or commissioners so appointed, previous to entering on the duties assigned them, shall take the following oath: "I, A. Oath of commisB., do swear, that I will, to the best of my skill and judgment, faithfully discharge the duties of a commissioner, in stating, settling and adjusting the accounts of C. D. on the estate of E. F., and make true and correct report thereof, without favour, partiality or affection. So help me God." The said commissioners shall each Compensation. receive the sum of one dollar per day for every day's service by them rendered, to be paid by the representative, and debited in the account which they may settle. Any executor or executrix, ad- Penalty on execuministrator or administratrix, curator or committee, who shall fail tor, &c. for failing to comply with to comply with the provisions of this act, shall forfeit all right to provisions of this any commission or compensation whatever, for services rendered in (e) 1 Rev. Code 1819, ch. 104, § 44, p. 386. sioners. act. Proviso. Duty of court where interest of estate is endan gered by misconduct, &c. of exe cutors, &c. or by failure or removal of sureties. Executor or alministrator ma king payments to legatees or distributees, under what circumstances protected against creditors. administering so much of the estate of the testator or intestate, as shall not have been settled agreeably to the provisions of this act; and in no case where such failure may occur, shall any compensation for such service be allowed by the court to which such account may be rendered: Provided however, That the forfeiture of commissions hereby declared, shall not be incurred in any case in which, within the periods above described for a settlement, the accounts of such executor or executrix, administrator or administratrix, curator or committee, shall have been actually settled with the parties entitled to the assets, or shall have been referred to a commissioner in chancery for settlement in a pending suit, and shall thereafter be actually settled in such suit.(g) 9. Be it further enacted, That whenever it shall appear to the court, from the report of the commissioner or commissioners appointed to settle the accounts, that the interest of the estate is endangered either by the misconduct, incapacity or removal of the executor or executrix, administrator or administratrix, curator or committee, or by the failure in circumstances or removal of the securities or any of them, such court shall, in the same manner as if complaint had been made by a creditor, legatee, distributee or other person interested, proceed in the manner prescribed by the fortyfirst section of the act, passed on the third day of March, eighteen hundred and nineteen, entitled, "an act reducing into one, the several acts concerning wills, the distribution of intestates' estates, and the duty of executors and administrators," either to require of such representative, other good security for the performance of his duties, or to revoke or annul his power over the estate, and if necessary, to appoint an administrator de bonis non, or to commit the estate to the hands of the sheriff or serjeant in the same manner as if there had been no executor or administrator. Such revocation shall, in all respects, have the same effect, as if made under the aforesaid forty-first section of the act aforesaid.(h) 10. And be it further enacted, That if any executor or administrator, more than twelve months after he shall have qualified to his office, shall hereafter disburse any of the assets of his testator or intestate to any legatee or distributee, who, the debts being paid, would be entitled thereto; and shall have taken from such legatee or distributee, any refunding bond with security, good at the time when taken; and such executor and administrator, after the lapse of ten years from the time when the first executor or administrator of the estate qualified to his office, shall be sued by a creditor, for any debt due from the testator or intestate, whereof such executor or administrator had not notice, at the time of such disbursement or within the ten years aforesaid, such disbursement may be pleaded and shall be allowed as a lawful disbursement of so much of the assets aforesaid: Provided, That such refunding bond shall have been acknowledged or proved by one witness at least, and recorded Creditor to look to in the court granting probat or administration; and in such case, legatee or distri- the creditor shall have full power and authority to pursue the legasureties in refund- tee or distributee, and his securities in such refunding bond, or their representatives; and may recover from them, so much as the executor or administrator ought to have recovered, if he had been butee, and his ing bond, for satisfaction. (g) See acts 1822-3, ch. 28, § 1, 2, p. 28, repealed by this act. |