sonally or by leaving the same at their usual dwelling place, in case TITLE 4. of their absence, at least fourteen days, before the time appointed for such hearing. confirmed. $65. If upon the hearing of such application, and the examination when to be of the proceedings, it shall appear to the satisfaction of the chancellor, that the said sale was made fairly, and in good faith, he shall make such order for confirming the sale and conveyance, as he shall deem equitable, and such sale and conveyance shall from that time, be confirmed and valid, according to the terms of the order.63 lands to be $66. If the deceased, at the time of his death, was possessed of a Contracts for contract for the purchase of land, his interest in such land and under sold. such contract, may be sold on the application of his executor or administrator, or of any creditor, in the same cases and in the same manner, as if he had died seised of such land; and the same proceedings may be had for that purpose, as are prescribed in this Title in respect to lands of which he died seised, except as herein after provided. sale, bond of $67. Such sale shall be made subject to all payments, that may Terms of thereafter become due on such contract; and if there be any such pay-purchaser. ments thereafter to become due, such sale shall not be confirmed by the surrogate, until the purchaser shall execute a bond to the executors or administrators of the deceased, for their benefit and indemnity, and for the benefit and indemnity of the persons entitled to the interest of the deceased in the lands so contracted for, in a penalty double the whole amount of payments thereafter to become due on such contract, with such sureties as the surrogate shall approve, conditioned that such purchaser will make all payments for such land, that shall become due after the date of such bond, and will fully and amply indemnify the executors or administrators of the deceased, as the case may be, and the persons so entitled, against all demands, costs, charges and expenses, by reason of any covenant or agreement contained in such contract, or by reason of any other obligation or liability of the deceased, on account of the purchase of such lands, and against all other covenants and agreements of the deceased, to the vendor of such land, in relation thereto. $68. But if there be no payments thereafter to become due on ac- Ib. count of such contract, no bond shall be required of the purchaser. be assigned. $69. When such bond shall be executed, in the cases where it is Contract to required, and in all cases where the sale shall be confirmed, the surrogate shall direct the executors or administrators of the deceased, to execute an assignment of such contract, to the purchaser; which assignment shall vest in such purchaser, his heirs and assigns, all the right, interest and title, of the persons entitled to the interest of the deceas (63) Laws of 1819, p. 214; 1825, p. 445. TITLE 5 ed, in the land sold, at the time of sale; and such purchaser shall have the same rights and remedies against the vendor of such land, as the deceased would have had, if he had lived. When part of land to be sold. Proceeds of sales. Dower. Application of proceeds of sales. Conveyance of part of land. Contract of sale how enforced. $70. If in the judgment of the surrogate, a part of the land so contracted, may be sold advantageously to the interest of the estate of the deceased, and so that the purchase monies of such part, will satisfy and discharge all the payments to be made for such land, according to the contract, he may order such part only to be sold; and in that case, the purchaser shall not be required to execute any bond. $71. The monies arising from any sale, under the five last sections, shall be paid to the surrogate, and shall be disposed of by him, in the payment of the charges and expenses of such sale, and in satisfying any claim of dower which the widow of the deceased may have upon the lands so sold, in the manner herein before provided, in respect to the sale of lands, of which the deceased died seized. $72. But such claim of dower is hereby declared to extend only to the annual interest, during the life of the widow, upon one-third of the surplus of the monies arising from such sale, which shall remain, after paying all sums of money due from the deceased, at the time of such sale, for the land so contracted and sold. $73. The surrogate shall apply the residue of the monies arising from such sale, in the first instance, to the payment of all sums of money, then due from the deceased to the vendor of the land so contracted, on account of such contract, and shall then proceed to distribute the balance among the creditors of the deceased, in the manner herein before provided; and if there be any surplus, after payment of debts and expenses, the same shall be distributed among the persons, who would have been entitled to the interest of the deceased in the land sold if such sale had not been made, or the persons claiming under them, in proportion to their respective rights in the premises sold. $74. Where a portion only of the land so contracted, is sold, the executor or administrator shall execute a conveyance therefor to the purchaser, which shall transfer to him all the rights of the deceased to the portion so sold, and all rights which shall be acquired to such portion, by the executor or administrator, or by the persons entitled to the interests of the deceased in the land sold, at the time of sale, on the perfecting of the title to such land, pursuant to the contract. $75. Upon the payment being made, in full, on a contract for the purchase of land, a portion of which shall have been sold, according to the preceding provisions, the executors or administrators of the deceased, shall have the same right to enforce the performance of the contract, which the deceased would have had, if he had lived; and any deed that shall be executed to them, shall be in trust and for the benefit of the persons entitled to the interest of the deceased, sub- TITLE 5. ject to the dower of the widow, if there be any, except for such part of the land so conveyed as shall have been sold to a purchaser according to the preceding provisions; and as to such part, the said deed shall enure to the benefit of the purchaser. TITLE V. OF THE RIGHTS AND LIABILITIES OF EXECUTORS AND ADMINIS TRATORS. Src. 1. Executors, &c. not to be liable on certain promises, unless made in writing. 2. Actions upon contract may be brought by and against executors. 3. Administrators entitled to same actions and subject to same liabilities as executors. 4. When actions for trespass may be maintained by executors, &c. 5. When executors, &c. liable to actions of trespass. 6. Executors and administrators of executors, &c. when liable. 7 & 8. When judgments against heirs, &c. to bar suits against executors, &c. 9. When legatee and relatives may prosecute executors, &c. for legacy, &c. 10. Bond to be given its terms. 11. Further condition of bond when given by a legatee. 12. Minor may sue by guardian, who is to give bond; its terms. 13. When abatement from legacy to be made. 14. Suits not to be abated by death, &c. of executors, &c. 15. When plaintiff may proceed against executors, &c. superseded; effect of the judg ment. 16. Person succeeding executor, &c. may be made defendant; how. 17. In case of death of executors, &c. successor may be made defendant. 18. Payment of debts and legacies, and distribution may be decreed by surrogate. 19. Application to surrogate for order to issue execution on judgment against executors, &c. 20. Citation to executors, and proceedings thereon. 21. Effect of order, and how suspended by appeal and bond. 22. When further order for execution to be granted. 23. Provisions of this Chapter to extend to one of several executors, &c. and to executrix, &c. 24. Surrogate of county in which letters are granted, to act in all matters relative to the same estate. &c. on pro mises. $1. No executor or administrator shall be chargeable upon any Liability of special promise to answer damages, or to pay the debts of the testator executors, or intestate, out of his own estate, unless the agreement for that purpose, or some memorandum or note thereof, be in writing, and signed by such executor or administrator, or by some other person by him thereunto specially authorised. and against executors. $2. Actions of account, and all other actions upon contract, may Actions by be maintained by and against executors, in all cases in which the same might have been maintained, by or against their respective tes tators. Administra and liabili ties. $3. Administrators shall have actions to demand and recover the debts due to their intestate, and the personal property and effects of tors' rights their intestate; and shall answer and be accountable to others to whom the intestate was holden or bound, in the same manner as executors. TITLE 5. $4. Executors and administrators shall have actions of trespass against any person who shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods of their testator or intestate in his life time. They may also maintain actions for trespass committed on the real estate of the deceased, in his life time. Trespass by executors, &c. Trespass against exe § 5. Any person, or his personal representatives, shall have accutors, &c. tions of trespass against the executor or administrator of any testator or intestate, who in his life time shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of any such person. Liability of executors, &c. When suits against ex barred. $6. The executors and administrators of every person, who, as executor, either of right or in his own wrong, or as administrator, shall have wasted or converted to his own use, any goods, chattels, or estate, of any deceased person, shall be chargeable in the same manner, as their testator or intestate would have been, if living. $7. Every judgment against an heir or devisee, shall be a bar to ecutors, &c. any subsequent suit against the executor or administrator of the ancestor or devisor, for the same debt or damages, upon which such judgment shall have been obtained, unless the plaintiff shall show an execution against such heir or devisee, returned unsatisfied, or that no sufficient lands or tenements, have descended or been devised, to such heir or devisee. Tb. Legatees, &c. when to pro socute. Bond $8. In all cases where a judgment shall be recovered against an heir or devisee, for a debt or legacy expressly charged on the estate descended or devised, it shall be an absolute bar to any subsequent suit, against the executor or administrator, for the same debt or legacy. S9. If after the expiration of one year from the granting of letters testamentary or of administration, there be more than sufficient assets in the hands of any executor or administrator, to discharge the debts of the testator or intestate; and if after reasonable demand made, and the offer of a bond with sufficient sureties, as in the next section prescribed, by any legatee, or by any of the next of kin entitled to share in the distribution of the estate, such executor or administrator shall refuse to pay the legacy bequeathed by any will to such legatee, or the share of any such person entitled to distribution, he shall be liable to such action as the case may require, at the suit of such legatee or next of kin, or their personal representatives. $10. Previous to the commencement of any such action, a bond to the executor or administrator shall be filed with the clerk of the court, with such sureties as the court or any judge thereof shall approve, in double the sum of such share or legacy, conditioned, that if any debts owing by the testator or intestate, shall afterwards be re covered or duly made to appear, for the payment of which, there shall TITLE 5. be no assets, other than the said share, or legacy, that then such person shall refund the legacy or share that may be recovered in such action, or such rateable part or proportion thereof, with the other legatees or representatives of the deceased, as may be necessary for the payment of the said debts, and the costs and charges incurred by a recovery against such executor or administrator, in any suit therefor. tee. 11. When given by a legatee, the bond shall be further condi- ru. of legationed, that if no sufficient assets shall thereafter remain, to pay any other legacy which may be due, that then such person shall refund such rateable part or proportion thereof, with the other legatees or representatives of the deceased, as may be necessary for the payment of the proportional part of such other legacy. nors. $12. A minor may bring such action by his guardian or next suits by mi friend, as in other cases; but not until such guardian or next friend shall have filed with the clerk of the court, a bond to the minor, in such sum, and with such sureties, as the court shall approve, conditioned that such guardian or next friend shall duly account to such minor when of full age, or to his personal representatives in case of his death, for all monies which may be recovered in such suit. from legacies. suits. § 13. In any such suit brought by a legatee, if it appear that there Abatement are not assets sufficient to pay all the legacies that may have been given, then an abatement shall be made in proportion to the legacies 60 given, and such legatee shall recover only a proportionate part. $14. No suit that may have been commenced by any executors Abatement of or administrators, who shall die, be removed or superseded, or who shall become incapable of acting, shall be abated thereby, but may be continued by the co-executor or administrator, if there be any, and if there be none, by and in the name of the person who shall succeed the executor or administrator so dying, removed, superseded or becoming incapable, in the administration of the same estate. executors, $15. If an executor or administrator be defendant in a suit, pend- Suits against ing at the time of the revocation or superseding of his power as such, &c. supersedthe plaintiff in such suit, may proceed therein, against such executor or administrator, in order to charge him personally; but no judgment recovered therein, after such revocation or superseding, shall be binding, or be of any force as against the estate of the testator or intestate, or any person succeeding to the administration of the same estate. ed. tinued cessor. $ 16. If the plaintiff shall not elect so to proceed against such ex- How conecutor or administrator, the court in which such suit may be pending, against sueon the application of the plaintiff therein, and after reasonable notice to the person succeeding to the administration of the same estate, may, by rule of court, substitute the person so succeeding, as defendant in |