Money receiv

ed therefor to

be assets, &c.

Courts may

respondents

aforesaid, and a full hearing had, grant license to, and empower the executors or administrators of such deceased obligor, covenantor, or contractor, to make and execute such conveyance or conveyances to such person or persons, contracted with as aforesaid, as it shall appear the said obligor, covenantor, or contractor would by his bond, covenant or contract, be obliged to make and execute, in case he, she, or they were living at the time of the performance of the conditions of the bond, covenant or contract by the contractees on their part, making reasonable allowances for any alteration, improvements or injuries, that may be made or done in the same. estate since such contract was made, as the said Justices may award; which conveyance or conveyances when the instruments thereof are duly acknowledged and recorded in the Registry of Deeds for the county where such estate shall lie, shall be good and valid; and the monies or consideration paid for such estate, if not paid to the deceased contractor in his life time, shall be assets in the hands of the said executors or administrators, and be apportioned among the representatives of the deceased as other personal estate.

SEC. 14. Be it further enacted, That when it shall appear to award costs to the said Justices, on examination, that the said petition or pewhen petitions, titions in any of the foregoing applications, are unreasonaonable. ble, the said Justices may award costs to such respondents. as shall appear and object thereto.

&c. are unreas.

Mode of perpetuating no

executors, ad

guardians, &c.

SEC. 15. Be it further enacted, That the affidavit of any tice of sale of executor, administrator, guardian or other person, who has real estate, by been, or hereafter may be duly licensed to sell real estate, ministrators & or of any person employed by any of them, taken within eighteen months, next following the sale of such real estate, and filed in the Probate Court, and recorded together with one of the original advertisements of the time, place and estate to be sold, or a copy of such advertisement, are hereby declared to be one mode of perpetuating the evidence that such notice was given, and also to make the originals or copies thereof, from the Register of the Probate Court, admissible evidence in any Court of law. And when the person employed by the executor, administrator or guardian to post up such notifications, or cause them to be printed as aforesaid, resides more than ten miles distant from such Probate Court, his deposition respecting that matter, taken before a Justice of the Peace, and filed in such Probate Court within eighteen months as aforesaid, shall have the same force and effect, as if the same was taken before the Probate Court.

Lands set off on execution to executors or administra.

SEC. 16. Be it further enacted, That wherever any executor or administrator shall recover judgment for any sum of money, tors; or recov. whereon execution shall issue, and lands, tenements, or hereditlosing mortaments shall be set off to the said executor or administrator, in gage, to be for discharge of the said execution, the said executor or adminisw and heirs: trator shall be seized and possessed of the whole estate in the

ered on, fore

the use of wid

vided as other

lands, tenements, or hereditaments so set off to the sole use and may be di and behoof of the widow and heirs of the deceased intestate, estate, &c. or to the residuary legatee or legatees of the testator, as the case may be; and the Court of Probate may make distribution of the same, as well as of lands and tenements mortgaged to testators or intestates, of which seizin and possession shall have been recovered by executors or administrators as of personal estate, accordingly; unless the lands, tenements or unless necessa hereditaments so set off on the said execution, or of which rol seizin and possession shall have been recovered, shall be ment of debts, necessary for the payment of debts, legacies, annuities or charges of administration; and in that case, the said executor or administrator, having obtained license in manner as herein provided, shall have full right, power and authority to dispose and make sale of the whole or part of the lands, tenements or hereditaments aforesaid, subject however to the right of redemption, in case such sale be made before such right shall be extinguished.

for the pay

&c.

administrators

entitled to re

off, &c.

and release the

same.

SEC. 17. Be it further enacted, That after executors or ad- Executors of ministrators shall become seized and possessed of lands, ten- to receive mone ements or hereditaments, by having the same set off in dis- ey from persons charge of an execution as aforesaid, and before conveyance dem estate set or assignment thereof in manner aforesaid, if the person, his and to discharge heirs, executors, administrators or assigns, whose estate has been levied upon as aforesaid, shall within the time limited, redeem the same, the executors or administrators shall, in every instance, be entitled to receive the said redemption money, and are hereby authorized, empowered and directed to discharge the said estate, levied upon, by release, quitclaim, or other legal conveyance: Provided, That nothing in Proviso. this and the sixteenth sections of this Act contained, shall be construed to control any last will or testament, or any part thereof.

be sued within

SEC. 18. Be it further enacted, That no executor or ad- No executor to ministrator shall be compelled in any Court of law to defend 12 months any suit that shall be commenced or instituted against him, in said capacity, within the term of twelve months next after his taking upon him that trust, unless the same shall be in- unless, &c, stituted for the recovery of a demand that will not be affected by the insolvency of the estate, or the suit shall be instituted for the purpose of ascertaining a claim that is contested. And all suits brought within one year as aforesaid, (except for exceeding in the purposes aforesaid,) shall be continued at the plaintiff's ex- brought against pense, until that term from the time the executor or adminis- within the year trator gave bond in the Probate Court, for the faithful discharge of his trust, shall be fully expired, and in case the executor or administrator pay the demand, or will bring sufficient money into Court for that purpose, and there leave the same for the plaintiff's use, or shall make a legal tender thereof to the plaintiff within the year, he shall recover his costs.

case of suits

administrator

cutions to run

and estare of

ecutor or administrator's

body or estate.

suggestion of

waste.

Writs and exe- SEC. 19. Be it further enacted, That all writs of attachment against goods and executions shall run only against the goods or estate of party deceased- the deceased, in the hands of executors or administraparty not against ex- tors, and not against their bodies; nor shall any executor or administrator be held to special bail upon mesne process, nor his own proper goods or estate be attached or his person be arrested or taken in execution for the debts or legacies of the Proceedings on testator or intestate, but upon suggestion of waste, founded on a return made by the Sheriff, that he could not find any goods or estate of the testator or intestate; in which case a writ commonly called scire facias, shall be issued out of the Clerk's office of the same Court, against such executor or administrator, and if upon said writ being duly served and returned, such executor or administrator shall make default of appearance, or coming in shall not show cause sufficient to the contrary, execution shall be adjudged and awarded against him, of his own proper goods and estate, to the value of such waste, where it can be ascertained; otherwise for the whole sum recovered, with interest thercon from the time when the first judgment was rendered; and for want of goods or estate, against the body of such executor or administrator.

Administrator de bonis non, may become party to suit

previous ad

ministrator or executor

SEC. 20. Be it further enacted, That whenever any executor or administrator shall die, or be removed from office, durCommenced by ing the pendency of any suit brought by, or against him, in said capacity, the same suit may be prosecuted by, or against any administrator de bois non, who shall thereupon be appointed, and process may thereupon issue in due form of law, to compel any such administrator de bonis non to become a party to the suit; and if such administrator de bonis non shall, after due service of such process, neglect or refuse to become a party to the suit, judgment may be rendered against him in the same manner as if he had voluntarily come in and become a party to the suit, and had therein been defaulted or nonand have seire Suited. And when judgment shall be had in any suit in which facias to com- an executor or administrator is a party, and such executor or ments and may administrator shall afterwards die, or be removed from office, Perfexecu in such case a scire facias may be sued and execution taken

plote judg

tions, &c.

out upon such judgment, either by or against any administrator de bonis non, who shall be thereupon appointed, and any execution, which may have duly issued upon such judgment, may be perfected by either of said parties respectively; and and may bring a writ of error to correct any errors in such judgment may be brought in manner prescribed by law, either by, or against such administrator de bonis non, in like manner as might have been by, or against the original executor or administrator who was a party to such judgment.

and defend writs of error.

In case of death

of either party

SEC. 21. Be it further enacted, That in case of the death after appeal of any party, either the appellant or appcllce, before the sitand before sitting of the Court appealed unto, or where any action or suit appealed to, or is or shall be depending either in the Circuit Court of Com

ting of Court

judgment, the

ministrator

if cause of ae

tions in certain

mon Pleas, or in the Supreme Judicial Court in any county before final of this State, and it so happen that either party be taken executor or adaway by death before final judgment, the executor or admin- may prosecute istrator of such deceased party, who was plaintiff, complain- and defend, &e. ant or defendant, (in case the cause of action doth by law tion survive. survive,) shall have full power to prosecute or defend any such suit or action from Court to Court until final judgment; and the defendants or appellees are hereby obliged to answer to such actions accordingly; and the Justices of the Circuit Court of Common Pleas and Supreme Judicial Court respectively, before whom such causes are or may be triable and depending, are hereby empowered and directed to hear and determine all such causes, proceed to judgment, and award execution accordingly: and if it shall so happen, that the ex- court may con ecutor or administrator of the deceased, hath not suitable tinue such actime in the judgment of the Court where such action or suit cases. shall be pending, and doth by law survive as aforesaid, to prepare for managing the cause, or to become duly qualified to prosecute or defend the same; in such case it shall and may be lawful for the Court to suspend the hearing and trying thereof until the next term. And if by the verdict of a Judgment how Jury, or by the default or neglect of the executor or admin- rendered in istrator, in prosecuting or defending such suit, after the executor or administrator shall have appeared and undertaken in his capacity to prosecute or defend the suit, judgment pass against the executor or administrator, the Supreme Judicial Court and Circuit Court of Common Pleas are hereby respectively authorized, empowered and directed, to enter up judgment for or against the estate of the deceased in their hands and under their administration, as the case may require.

such cases.

or administra

party

what proceed

had.

SEC. 22. Be it further enacted, That all actions pending in when executor the Supreme Judicial Court or in any Circuit Court of Com- tor refuses to mon Pleas in this State, by appeal, continuance or otherwise, become, in caswhere the plaintiff or defendant, appellant or appellee, com- es aforesaid, plainant or respondent shall die before final judgment, and ings shall be the executor or administrator of the deceased party, after taking upon himself the said trust, shall neglect or refuse to ' become a party to the suit, the Court before whom such cause shall be pending, in case the cause of action does by law survive, may enter up judgment against the goods and estate of the deceased party, in the same way and manner judgment might have been, in case the executor or administrator had voluntarily after such death made himself a party to the suit: Provided always, That such executor or adminis- Executor or adtrator be duly served with a notification from the Clerk of the ministrator to Court where such suit is pending, fourteen days before the ed. sitting thereof.

be duly notifi

SEC. 23. Be it further enacted, That executors, administra- Executors and tors and guardians shall not be compelled to plead specially

administrators

plead specially.

not bound to to any action or suit at law, brought against them in their said capacity; but may under the general issue give any special matter in evidence.

Mode of levy.

ing executions on estates of

ed,

ing such estate.

SEC. 24. Be it further enacted, That the real estate of any testator or intestate is and shall be liable to be taken persons deceas and levied upon by any execution issuing upon judgments recovered against executors or administrators in such capacity, being the proper debts of the testator or intestate, and that the method of levying, appraising and recording, shall be the same as by law is provided respecting other real estate leviand of redeemed upon and taken in execution, and may be redeemed by the executor, administrator or heir, in like time and manner. SEC. 25. Be it further enacted, That the goods and estate on joint con- of each deceased debtor in every joint contract, whether obtract to be lia ligation, covenant or other instrument under seal, promissory and several, for note, memorandum in writing, or any other contract express Such contract, or implied, or in any judgment on any contract, shall be liable in the hands of his executors and administrators for the payment thereof, in like manner; and the creditor shall have the same remedy, and may have and maintain an action against such executors and administrators in the same manner as if such contract had been joint and several.

Estate. &c. of deceased debior

ble, a if joint

payment of

&c.

Actions against

administrators

years.

SEC. 26. Be it further enacted, "That no executor or adminexeentors and istrator shall be held to answer to any suit that shall be comlimited to four menced against him in that capacity, unless the same shall be commenced within the term of four years from the time Provided no- of his accepting that trust: Provided, Such executor or adment be given ministrator shall give public notice of his appointment to that according to office in the manner directed by law, and filing a claim with What shall be the commissioners upon an estate represented insolvent, shall originating a be esteemed equivalent to originating a suit against executors or administrators, within the meaning of this Act.

tice of appoint

Jaw.

equivalent to

suit.

Provision for case of demand

on contract &c.

not due until after 4 years;

and proceed

⚫ings therein.

SEC. 27. Be it further enacted, That when any demand against the estate of any person deceased, arising from covenant, contract or agreement shall become due after the said term of four years, and which could not, by virtue of such covenant, contract or agreement, be claimed until after the said term, in such case, the claimant may, at any time within the said term of four years, file such demand at the Probate Office where administration was granted, or the will was approved; and the Judge of Probate shall direct the executor or administrator to retain in his hands assets, (if sufficient there be,) to answer said demand, unless the heirs to such estate, or devisees thereof, or some one or more of them, shall give good and sufficient security, in the opinion of the Judge of Probate, for such executor or administrator to respond such demand; and when security is so given, such executor or administrator shall not be allowed to retain in his hands assets for the purpose aforesaid; the estate of the said deceased shall however be liable, in the hands of the said heirs or devisees, or their heirs or assigns, to answer the said demand.