Effect of Death on the Rights of Creditors. the expiration of the four years, or the right of action accrues after that time. (a) Computation of periods mentioned in statute of limitations.In the computation of the periods mentioned in the statute of limitations, the day on which the cause of action accrued is to be included. (b) Statute of limitations, not affecting trusts.-The general statute of limitations of six years does not affect trusts. (c) 10. Effect of Death on the Rights of Creditors. Appointment and removal of executors and administrators, with the will annexed, and bond to be given by them.-Every executor and administrator with the will annexed, before entering on his duties, must give bond to the judge of probate, with sufficient sureties, in such sum as such judge directs, to return to the probate court within three months a true inventory of all the real and personal estate to be administered; to duly administer all such estate as may at any time come to the possession of such executor or administrator; and to render on oath a true account of his administration within one year, and at other times when required by said judge. If any person appointed an executor refuse the trust, or do not give bonds, as above provided, within twenty days after probate of the will, the judge of probate will commit administration to such person as would have been entitled thereto, had the deceased died intestate. The judge of probate may remove an executor or administrator who neglects to settle the estate according to law, or becomes insane, or otherwise incapable of discharging the trust, or unsuitable for it. (d) Distribution of personal estate of intestates.-The personal estate of intestates is to be distributed as follows: 1. The widow, if any, is allowed her articles of apparel and ornaments, and such necessaries for the use of herself and family as the judge shall order. (a) R. S. 66. 11 Pick. R. 173. 20 Ib. 321. (b) 15 Mass. R. 193. (d) R. S. 63. Effect of Death on the Rights of Creditors. 2. The personal estate remaining after such allowance, is to be applied to the payment of the debts of the deceased, the charges of his funeral, and of settling his estate. 3. The residue of personal estate, if any, is to be distributed among the heirs, as real estate would be, excepting that alienage will be no impediment to receiving a share; that, if the intestate were a married woman, her husband will receive all the residue of the personal estate; that, if the intestate leave a widow and issue, the widow will receive one-third of said residue; that, if there be no issue, the widow will receive one-half thereof; that, if the intestate leave no kindred, the widow will receive the whole of said residue; and that, if there be no widow, the whole will escheat to the commonwealth. (a) What court will grant administration.-The judge of probate of any county wherein deceased was an inhabitant or resident, will grant administration on his estate; and if deceased were resident in any other state or country, leaving estate to be administered in this state, administration will be granted by the judge of probate of any county where the property is situated. To whom administration will be granted.-The order of persons entitled to administration on the estate of an intestate are, 1. The widow, or next of kin, or both. 2. One or more of the principal creditors, if there be any competent and willing to undertake the trust, and if there be none such, the judge will appoint whom he thinks fit, provided, 3. That if the deceased were a married woman, administration will be granted to her husband, unless she has made some testamentary disposition of her separate estate which makes it proper to appoint some other person. 4. That if deceased were an alien and left no widow or next of kin in this state, administration will be granted to the consul or vice-consul of the nation to which he belonged. Examination of persons suspected of concealing effects of the deceased. Upon complaint to the judge of probate, any person suspected of concealing, embezzling, or conveying away effects of the deceased, may be examined on oath; and if he refuse to appear and answer all lawful interrogatories, he may be committed to the common jail. (a) R. S. 64. Effect of Death on the Rights of Creditors. Proceedings when personal estate is insufficient to pay debts.— When the personal estate of the deceased is insufficient to pay the debts and charges of administration, real estate may be sold for this purpose, upon due license from the judge. Proceedings when the estate is insolvent.-An insolvent estate, after discharging expenses of the last sickness, funeral, and administration, will be applied to the payment of debts in the following order: 1. Debts entitled to a preference under the laws of the United States. 2. Public rates and taxes, and sums due the commonwealth for duties on auction sales, and other excise duties. 3. Debts due all other persons. (a) When it shall appear to the judge that the estate is probably insolvent, he will appoint commissioners to examine all claims, and return to the probate court a list thereof with the sum they have allowed on each claim, within six months (or eighteen months, if so much is required) from the date of the commission. Appeals may be made from the decision of the commissioners to the courts of common law. After thirty days from the return of the commissioners, the judge will order a distribution of the effects among the creditors, and if the whole assets are not then distributed, further distribution will be made as the judge shall order. Time within which original administration will be granted.— No original administration will be granted after the expiration of twenty years from the death of the testator or intestate. (b) Remedies for enforcing a settlement.-The administration bond may be put in suit by any creditor, for his own benefit, whenever he has recovered judgment against the executors or administrators, and they have neglected to pay his debt on demand, or show property to be taken in execution for that purpose; or when the amount due him has been ascertained by the decree of distribution, and the executors or administrators neglect to pay on demand. (c) Such suit may be brought by the next of kin to recover his share of the personal estate, after a decree of the court ascertain (a) R. S. 68. (b) Ib. 64. (c) Ib. 70. Effect of Death on the Rights of Creditors. ing the amount due him, if the administrator or executor neglect to pay on demand; and generally it may be brought by any person interested in the estate who may be authorized by the judge. Suits on administration bonds must be brought in the Supreme Judicial Court for the county in which the administration bond is taken. (a) If the effects of the deceased are sold or embezzled by any person who has not taken out letters testamentary or of administration thereon, and given bond as executor or administrator, he will be liable to the actions of all persons aggrieved, as an executor in his own wrong. No executor or administrator, after due notice of his appointment, will be held to answer to the suit of a creditor of the deceased, unless commenced within four years from the time of giving the administration bond, except when assets are received after the expiration of said four years. (b) No executor or administrator will be held to answer to the suit of any creditor of the deceased, within one year after the giving of the administration bond, except for the recovery of a demand that would not be affected by the insolvency of the estate, or unless such suit be brought after the estate has been represented insolvent for the purpose of ascertaining a contested claim. If, in consequence of unreasonable delay on the part of any executor or administrator to convert the estate of the deceased into money, said estate shall be taken in execution by any creditor of the deceased, such executor or administrator will be liable in an action on his bond for all damages occasioned thereby. The bond of any executor or administrator neglecting to render an account when duly cited by the judge, may be put in suit, and if he persist in such neglect, judgment will be rendered against him, and he will be held liable as if he had been an executor in his own wrong. (c) (a) R. S. 64. (b) Ib. 66. (c) Ib. 68. In what actions this process lies.—All personal actions may be commenced by trustee process, except actions of replevin, actions on the case for malicious prosecution, or for slander, either by writing or speaking, and actions of trespass for assault and battery. (a) Attachment of what-authorized by the writ.-The writ authorizes an attachment of the goods and estate of the principal defendant in his own hands, and also of any goods, effects, or credits of said defendant in the hands of any person or corporation summoned as a trustee, which goods, &c., will be held to respond to the final judgment, as in the ordinary process. (b) Payments made and liabilities incurred after service of the writ, but before such service is known to the trustee.—If after the service on the trustee, but before he has knowledge thereof, he in good faith makes any payment, or becomes in any way liable to any third person for or on account of the goods, effects, or credits in his hands, or has delivered the same to the original defendant, or to any other person entitled thereto, he will be allowed therefor as if such payment or delivery had been made, or liability incurred, before the service of the writ on him. (c) Trustee when and how discharged.-If the supposed trustee appear in person or by attorney, and declare in writing, that he had not, when the writ was served on him, any goods, effects, or credits of the principal, and submit himself thereupon to examination on oath, and if the plaintiff decline to examine him, or on examination his declaration appear to the court true, he will be discharged. Examination of trustee.-If the plaintiff proceed to examine the supposed trustee on his declaration, he must propose interrogatories in writing, to be answered in writing, signed, and sworn to; and if the person so summoned admit that he has goods, ef (a) R. S. 109. (b) 3 Pick. R. 302. 7 Mass. R. 259. 6 Pick. R. 120. 2 Mass. R. 37. (c) 3 Pick. R. 65. |