|Pages 432-448||Pages 467-488|
| CHAP. IV.
An Act for the better management and security of Orphans, and their estates.
|[From edit. 1752.]|
|I. BE it enacted, by the Lieutenant-Governor, Council, and Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the same, That where any person hath, or shall have, any child or children, under the age of twenty one years, and not married, at the time of his death, it shall and may be lawful to and for the father of such child or children, whether born at the time of the decease of the father, or then an infant or infants in the womb, or whether such father be within the age of one and twenty years, or of full age, by his deed executed in his life time, or by his last will and testament in writing, in the presence of two or more credible witnesses, in such manner and from time to time as he shall think fit, to dispose of the custody and tuition of such child or children, for and during such time as he, she, or they shall remain under the age of one and twenty years, or for any lesser time, to any person or persons, in possession or remainder, other than popish recusants; and every such disposition heretofore made, or hereafter to be made, shall be good and effectual against all and every person and persons claiming the custody and tuition of such child or children, as guardian in soccage, or otherwise; and the person or persons to whom such custody and tuition hath been or shall be so disposed, or devised, shall and may maintain an action of ravishment of ward, or trespass, against any person or persons who shall wrongfully take away or detain such child or children, for the recovery of such child or children and shall and may recover damages for the same, in the said action, for the use and benefit of such child or children.|| |
Fathers may by deed, or will, dispose of the custody and tuition of their unmarried infant children.
|II. And that every person and persons to whom such custody and tuition hath been, or shall be so disposed, or devised, as aforesaid, shall and may take into his or their custody, to the use of such child or children, the profits of all lands, tenements, and hereditaments, and also the slaves, goods, chattels, and personal estate of such child or children, till their respective age of one||Such guardian shall have custody of the infants estate,|
|and twenty years, or any lesser time according to such disposition aforesaid, and may bring such action or actions, in relation thereunto, as by law a guardian in common soccage might do.|
|III. Provided always, That nothing herein before contained, shall extend to discharge any apprentice from his apprenticeship: Nor to take away the power of the general court, or county court, upon complaint to them made, of such guardian abusing the trust reposed in him, by misusing the child or children under his tuition, or neglecting the care of their education suitable to their estate, or wasting, converting to his own use, or otherways mismanaging such estate, to make and establish, from time to time, such rules, orders and decrees for securing the estate, and for the better education and usage of such orphans, as they in their discretion shall judge meet and necessary.||But may not discharge an apprentice; nor abridge power of court.|
|IV. And be it further enacted, by the authority aforesaid, That the general court, and the several county courts of this dominion, within their respective jurisdictions, have, and shall have full power and authority, from time to time, to take cognizance of all matters concerning orphans and their estates, and to appoint guardians in such cases, where to them it shall appear necessary, and shall take good security of all guardians by them appointed, for the estates of the orphans to them respectively committed; and if any county court shall commit an orphans estate, to the charge or guardianship of any person or persons, without taking good and sufficient security for the same, in such case, the justices appointing such guardian or committing such estate, and every of them, shall be liable for all loss and damage sustained by the orphan, for want of such security; to be recovered with costs, by action at the common law, in any court of record, at the suit of the party grieved.|| Jurisdiction of the General Court, and County Courts concerning
orphans, and guardians. |
Court shall take security of guardians by them appointed.
County court failing so to do, the justices liable for damages.
|V. Provided always, That where the securities were good at the time of their being so accepted and taken, but afterwards become insolvent, in such case the justices shall not be liable.||Where not liable.|
|VI. And be it further enacted, by the authority aforesaid, That wherever a guardian shall be appointed to any orphan, by the general court, or by any county court, such guardian shall, at the next court after his appointment, exhibit his account upon oath of all the||Duty of guardians appointed by the court.|
|estate of such orphan, which he shall have received into his hands; and every guardian heretofore, or hereafter to be by such court appointed, shall, once every year, exhibit his account and state of the profits and other incomes of the estate of such orphan, upon his oath: And such accounts so to be exhibited, shall be entred by the clerk in a book to be provided and kept for that purpose only: And when the said courts shall respectively know, or be informed, that any guardian or guardians, by them respectively appointed, do waste or convert the money or estate of any orphan to his or their own use, or do in any manner mismanage the same, or do not take due care of the educating and maintaining any orphan, according to his degree and circumstances; or where such guardian or his securities are likely to become insolvent, such court shall have power, from time to time, to make and establish such orders and rules, for the better ordering, managing, and securing such estate, and for the better educating and maintaining such orphans, or to appoint another guardian, as they in their discretion shall think most fit and expedient.|| |
Their accounts to be entred by the clerk.
Power of courts relating to guardians breach of trust.
Or becoming insolvent.
|VII. And that every person heretofore appointed, or hereafter to be appointed guardian to any orphan, by any county court, shall, at the court held for that county in the month of August, in every year, or if no court be then held, at the next succeeding court held for that county, exhibit such account as aforesaid: And the justices of every county court shall yearly, at the same court, examine into all accounts of guardians so to be exhibited to them, and shall direct process to issue returnable to their next court, against all guardians who shall then fail to appear and render such account, whether such guardian be resident in the same or in any other county; and shall then also enquire into the abuses and mismanagements of guardians, and whether they or their securities are likely to become insolvent, and thereupon to proceed according to the power in this act before given them; and the justices of every county court who shall fail or neglect to do their duty herein, shall forfeit and pay the sum of five thousand pounds of tobacco, one half to our sovereign lord the king, his heirs and successors, to and for the use of the county, and the other half to|| Guardians shall render annual accounts.
To be examination by the justices.
Process against guardian failing.
Penalty on justices failing.
|the informer; to be recovered by action of debt or information, in any court of record in this colony.|
|VIII. Provided always, That nothing herein before contained shall be construed to abridge or restrain the power of the several county courts to enquire, as often as they shall think proper, into the abuses and mismanagements of guardians, but that it shall be lawful for them to exercise such power, at any time or times, when to them it shall appear necessary; any thing in this act to the contrary, or seeming to the contrary notwithstanding.||Court may, at any time, enquire into the conduct of guardians.|
|IX. And be it further enacted, by the authority aforesaid, That it shall be lawful for every guardian, to charge in his account, all reasonable disbursements, and expences; and if upon rendring such account, it shall appear to the court, that such guardian hath really and bona fide disbursed more in any one year than the profits of the orphans estate, do amount unto, for the education and maintenance of the orphan, such guardian shall be allowed and paid for the same, out of the profits of such orphans estate, in any other year during his or her guardianship.||What guardians may charge in their accounts.|
|X. Provided always, That such disbursements be, in the opinion of the court, suitable to the degree and circumstances of the estate of such orphan: And that where such estate shall be of so small value, that no person will educate and maintain him or her for the profits thereof, such orphan shall, by direction of the court, be bound apprentice, every male to some tradesman, merchant, mariner, or other person approved by the court, until he shall attain the age of one and twenty years, and every female to some suitable trade or employment,'til her age of eighteen years; and the master or mistress of every such servant, shall find and provide for him or her, diet, cloaths, lodgings and accommodations fit and necessary, and shall teach, or cause him or her to be taught to read and write, and at the expiration of his or her apprenticeship, shall pay every such servant, the like allowance as is by law appointed for servants by indenture or custom, and on refusal, shall be compelable thereto in like manner: And if upon complaint made to the county court, it shall appear, that any such apprentice is ill used, or not taught the trade or profession to which he or she was bound, it shall be lawful for such court to remove|| Disbursements must be suitable to the orphan's degree and
Provision for poor orphans.
|and bind him or her to such other person or persons as they shall think fit.|
|XI. And be it further enacted, by the authority aforesaid, That where any person who now is, or hereafter shall be security for the estate of any orphan, shall afterwards conceive himself in danger by reason thereof, and petition the court where such security was entred into for relief, it shall be lawful for such court, upon petition to them exhibited, forthwith to order summons to issue against the party or parties, with and for whom the petitioner stands bound, returnable to the next court; and thereupon to compel such party or parties to give sufficient, other, or counter security, to be approved by the said court, or to deliver up the estate to the petitioner, or such other person as the court shall direct, or they may, and are hereby impowered to make such other order or decree therein, for relief of the petitioner and better securing such orphans estate, as to them shall appear just and equitable.||How securities for an insolvent guardian may be relieved.|
|XII. Provided always, That such court shall take good and sufficient security of the person or persons to whom such estate shall be so committed, in the like manner, and under the like penalty, as is by this act required to be taken of guardians appointed by the court; and every such person shall also exhibit his account, and be subject to the rules and orders of the court, in the same manner, to all intents and purposes, as is herein before required of guardians, or they are made subject unto.||Proviso.|
|XIII. And be it further enacted, by the authority aforesaid, That when any guardian, or person chargeable with the estate of any orphan, or with the estate of a person deceased, to him committed by any court of record in this colony, shall die so chargeable, the executors and administrators of such person so dying shall be compellable to pay and satisfy, out of the estate of their testator or intestate, so much as shall appear due to the estate of such orphan, or person deceased, before any other or proper debt whatsoever of such testator, or intestate; any law, custom, or usage, to the contrary thereof, in any wise, notwithstanding.||Where a guardian dies the orphans estate shall be secured before any other debt.|
|XIV. And be it further enacted, by the authority aforesaid, That all and every other act and acts, clause||Repealing clause.|
|and clauses, heretofore made, for or concerning any matter or thing within the purview of this act, shall be and are hereby repealed.|
|XV. And be it further enacted, by the authority aforesaid, That this act shall commence, and be in force, from and immediately after the tenth day of June, which shall be in the year of our lord one thousand seven hundred and fifty one.||Commencement of this act.|
|An Act directing the manner of granting probats of Wills, and Administration of Intestates Estates.||[From edit. 1752.]|
|I. BE it enacted, by the Lieutenant-Governor, Council, and Burgesses, of this present General Assembly, and it is hereby enacted by the authority of the same, That the county courts of this dominion, and every of them, within their respective counties, have and shall have jurisdiction and authority to hear and determine all causes, matters, suits, and controversies testamentary, which shall be brought before them, and to examine and take the proof of wills, and to hear and determine the right of administration of the estates of persons dying intestate, and to grant certificates thereof, to the governor or commander in chief of this dominion, for the time being, or to his deputy, or deputies appointed for that purpose, being a member, or members of the said courts respectively, for obtaining thereupon a probat, or administration with the will annexed, or a commission of administration, as the case shall require, according to the methods and rules herein after directed: That is to say, if any person having a mansion house, or other place of known residence and abode, within this dominion, shall depart this life, and dispose of his or her estate, or any part thereof, by will, such will shall be proved in the court of that county where such mansion house, or place of residence shall be; and if any person having no mansion house, or place of residence, within this colony, shall devise lands therein, by will, in writing, such will shall be proved in the court of that county wherein such lands shall lie, and|| |
County courts may take proof of wills, and grant administrations.
Rules of probats of wills.
|if such lands lie in several counties, and the testator dies in any one of them his will shall be proved in that county where he died; and if he dies in some other county, then in the court of one of the counties wherein such devised lands shall lie, and not in any other connty ; and every such will so proved, as aforesaid, shall be as effectual for the disposing of lands, or any other estate, as if the same had been proved in every county where any of the lands or estate shall be.|
|II. And where any person shall depart this life, having first made a will, and therein appointed his executor or executors, and they shall all of them refuse the executorship, in such case, the same court wherein the will should have been proved, if the executors had accepted the trust, shall have power and authority to hear and determine the right of administration, and to grant certificate for obtaining letters of administration with the will annexed.||Where executors refuse administration with the will annexed shall be committed.|
|III. When any will shall be exhibited to be proved in the General Court, or in any county court, such court may immediately proceed to receive the proof thereof, and to appoint appraisers to value the slaves and personal estate of the testator.||When wills may be proved in court.|
|IV. But where by any will the lands of the testator, or any part thereof, shall be devised away from the heir or heirs at law, such proof, as to him, her or them, shall not be binding, but the court shall cause such heir or heirs to be summoned, to appear at the next court, and to contest the validity of such will, if he, she, or they think fit; and if there be several heirs, in equal degree to the testator, every such heir shall be so summoned; and if no heir be known to the court, then proclamation of such will, being exhibited and proved, shall be made by the sheriff at the court house, on two successive court days, and he shall also publish notice thereof, in writing, affixed at the door of every church in his county, and all persons concerned in interest, who at the time of proving any will, shall be under the age of one and twenty years, feme covert, non compos mentis, imprisoned, or out of this colony, shall have liberty to contest the proof thereof, within ten years after their several disabilities and incapacities removed, and not afterwards.|| Where the heir at law may contest the will. |
Rules in case of several heirs.
Or, where no heir is known.
Infants, &c. may contest a will, within 10 years after disabilities removed.
|V. And if any person having a mansion house, or other known place of residence, within this dominion, shall die intestate, the court of that county wherein such mansion house, or place of residence is, shall hear and determine the right of administration of the estate of such intestate, and grant certificate thereof in manner aforesaid.||Rules in case of administration.|
|VI. Where the intestate had no mansion house, or known place of abode in this colony, certificate for obtaining administration shall be granted by the court of the county wherein he died: If an executor or administrator dies intestate, not having fully administered the estate of his testator or intestate, the same court by whom certificate for probat, or administration was granted to such executor, or administrator, shall determine the right of administration of the estate not administred, and grant certificate thereof.|
|VII. And be it further enacted, by the authority aforesaid, That all devises and bequests of any lands, or tenements, shall be in writing, and signed by the party devising the same, or by some other person in his presence, and by his express direction, and shall be attested, and subscribed in the presence of the said devisor, by two or more credible witnesses, or shall be wholly writ by the said devisors own hand, or else they shall be void and of no effect.|| Devise of lands, or tenements must be in writing. |
How to be attested.
|VIII. And that no devise, in writing, of lands, tenements, or hereditaments, or any clause thereof, shall at any time afterwards be revocable, otherwise than by some other will, or codicil, in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same, by the testator himself, or in his presence, and by his directions and consent: But all devises and bequests of lands, or tenements, shall remain and continue in force, until the same be burnt, cancelled, torn, or obliterated, by the testator himself, or by his directions in manner aforesaid, or unless the same be altered by some other will, or codicil in writing, or other writing of the devisor, signed in the presence of two or more witnesses, declaring the same; any law, or usage, to the contrary, notwithstanding.||Such devises shall remain valid, unless revoked in writing, or cancelled by the devisor.|
|IX. And for prevention of fraudulent practices, by setting up nuncupative wills, Be it further enacted, by the authority aforesaid, That no nuncupative will shall||Rules concerning nuncupative wills.|
|be good, where the estate thereby bequeathed, shall exceed the value of ten pounds current money, that is not proved by the oaths of two or more witnesses, present at the making thereof; nor unless it be proved that the testator, at the time of pronouncing the same did bid the persons present, or some of them, bear witness, that such was his will, or to that effect; nor unless such nuncupative will were made in the time of the last sickness of the deceased, and in the house of his or her habitation or dwelling, or where he, or she hath been resident for the space of ten days, or more, next before the making of such will; except where such person was surprised or taken sick, being from his or her own home, and died before he or she returned to the place of his dwelling.|
|X. And be it further enacted, by the authority aforesaid, That after six months passed, after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing, within six days after the making such will.||Where they shall not be of force.|
|XI. And that no certificate for granting probat of any nuncupative will, or for administration of the estate, by such will given or bequeathed, shall be granted by any court, 'til fourteen days, at the least, after the decease of the testator, shall be expired; nor shall any nuncupative will at any time be admitted to be proved, unless summons have first issued, to call in the widow, or next of kindred to the deceased, to the end that they may contest the same if they please.|| Nor any probat, or administration granted thereon. |
The widow, or next of kin, shall be the first summoned.
|XII. And be it further enacted, by the authority aforesaid, That no will in writing, concerning any goods, chattels, or personal estate, shall be repealed, nor shall any clause, devise, or bequest therein, be altered or changed, by any words, or will, by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof, read unto the testator, and allowed by him, and proved to be so done by two or more witnesses.||Written legacies of personal estate not revocable, except in writing.|
|XIII. Provided always, That any soldier being in actual military service, or any mariner, or seaman being at sea, may dispose of his moveables, wages, and personal estate, as he or they might have done before the making of this act.||Soldiers, or mariners, excepted.|
|XIV. And be it further enacted, by the authority aforesaid, That administration of the estate of every person dying intestate, and administration with the will annexed of the estate of every testator, whose executor, or executors, shall refuse to prove and execute his will, shall be granted in manner following: That is to say, first, to the husband or wife of the deceased, and if none such, or if they refuse, then secondly, to the child or children, or their legal representatives, and if none such appear or claim, then thirdly, to the father or mother, or if none such, then thirdly, to the father or mother, or if none such, then fourthly, to the brothers and sisters, and if none such, then to the next of kindred to the deceased person; and if no will shall be exhibited, or administration sued forth, before or at the next court held after expiration of thirty days from any person's death, the court may grant administration to any creditor or creditors of the deceased, suing for the same, or to any other person the court in their discretion shall think fit.|| Rules in granting administrations. |
Where creditors may be admitted.
|XV. Provided always, That where it shall appear to the court, either of their own knowledge, or upon application to them made by creditors, or legatees, that any estate is likely to be wasted, or imbezzled, such court may, and are hereby authorised and required, to proceed immediately to grant certificate for obtaining administration thereof.||Method to prevent waste, or imbezzlement.|
|XVI. Provided also, That if no will shall be afterwards exhibited to be proved, or any of the deceased person's kindred, not having before refused, shall appear and pray certificate for obtaining probat or administration, the same shall be granted in like manner, as if no former administration had been granted or obtained; nor shall any thing herein before mentioned be construed, to disable any court from summoning any person, or persons whatsoever, having the will of a person deceased, in his, her, or their custody, or possession, to exhibit the same to the court, in order to a legal probation thereof; but the court may compel such person or persons, by summons, or other lawful process as they shall think fit, to produce such will, that the just and legal proceedings may be had thereupon.|| Wills may be proved after administration granted. |
Court may compel any person to produce the will of a person deceased.
|XVII. And be it further enacted, by the authority aforesaid, That before granting certificate for probat||Executors & administrators shall be sworn.|
|or administration, to any person or persons whatsoever, he, she, or they, shall personally, in open court, take one of the following oaths, as the case shall require, to wit,|
|The Oath of an Executor, or Administrator, with the Will annexed.|
|YOU shall swear that this writing contains the true last will of ht within named A. B. deceased, as far as you know or believe, and that you will well and truly perform the same, by paying, first, his debts, and then the legacies, contained in the said will, as far as his goods, chattels, and credits, will thereunto extend, and the law charge you, and that you will make a true and perfect inventory of all the said goods, chattels, and credits.||Executors oath.|
|So help you God.|
|The Oath of an Administrator.|
|YOU shall swear that A. B. deceased, died without any will, as far as you know or believe, and that you will well and truly administer all and singular the goods, chattels, and credits of the said deceased, and pay his debts, as far as his goods, chattels, and credits will thereunto extend, and the law require you, and that you will make a true and perfect inventory of all the said goods, chattels, and credits, as also a just account when thereunto required.||Administrators.|
|So help you God.|
|And shall also give bond, in a sufficient sum, proportionable to the full value of the estate, at the least, and with such sufficient security of persons residing in the same, or any other county, as by the court shall be approved of, and with one of the conditions following, to wit,||And give bond and security.|
|Condition of the Bond to be given by Executors, or Administrators, with the Will annexed.|
|THE condition of this obligation is, that if the above bound A. B. executor of the last will and testament of C. D. deceased, (or administrator with the will annexed, of all the goods, chattels, and credits of C. D. deceased) do make, or cause to be made, a true and perfect inventory of all and singular the goods, chattels, and credits of the said deceased, which||Executors bond.|
|have or shall come to the hands, possession, or knowledge of him the said A. B. or into the hands, or possession of any other person, or persons for him, and the same, so made, do exhibit or cause to be exhibited into the county court of N. at such time as he shall be thereto required by the said court, and the same goods, chattels, and credits, and all other the goods, chattels, and credits, of the said deceased, at the time of his death, which at any time after shall come to the hands, or possession, of the said A. B. or into the hands, or possession, of any other person or persons for him, do well and truly administer, according to law, and further, do make a just and true account of his actings and doings therein, when thereto required by the said court, and also do well and truly pay and deliver all the legacies, contained and specified in the said testament, as far as the said goods, chattels, and credits will thereunto extend, according to the value thereof, and as the law shall charge him, then this obligation to be void, otherwise to remain in full force and virtue.|
|Condition of an Administration Bond.|
|THAT if the above bound A. B. administrator of all the goods, chattels, and credits of C. D. deceased, do make, &c. −− [as before unto the words −− when thereto required by the said court,] and all the rest and residue of the said goods, chattels, and credits, which shall be found remaining upon the said administrator's account, the same being first examined and allowed by the justices of the said court for the time being, shall deliver and pay unto such person, or persons respectively, as the said justices by their order or judgment shall direct, pursuant to the laws in that case made and provided: And if it shall hereafter appear, that any last will and testament was made by the said deceased, and the executor or executors therein named do exhibit the same in the said court, making request to have it allowed, and approved, accordingly, if the said A. B. being thereto required, do render and deliver up his letters of administration, approbation of such testament being first had and made in the said court, then this obligation to be void, &c.||Administrators.|
|Which bond shall be payable to the justices of the court sitting at the time the same shall be entered into and taken, and their successors, and shall not become void||The whole penalty recoverable thereon.|
|upon the first recovery, but may be put in suit, and prosecuted, from time to time, by and at the costs and charges in the law of any party or parties injured, until the whole sum of the penalty expressed in such bond shall be recovered thereon.|
|XVIII. And be it further enacted, by the authority aforesaid, That if any court shall grant certificate for obtaining administration of the estate of any person deceased, without taking good security for the same, as by this act required, the justices granting such certificate, and every of them, shall be answerable for all loss and damage accruing for want of such security, recoverable by action at the common law, by any person or persons injured.||Where no security shall be taken, the justices liable.|
|XIX. Provided nevertheless, That if the securities taken by the court were good, at the time of their being so accepted and taken, but afterwards become insolvent, in such case the justices shall not be answerable: And that where any person shall be security for any decedent's estate, or for the estate of any orphan, and shall conceive himself in danger, by reason thereof, and petition the court for relief, it shall be lawful for the said court to summon the party, with and for whom the petitioner stands bound, and to make such order or decree thereupon, as to them shall seem just and equitable, for relief and indemnifying of such petitioner, by counter security or otherwise.|| But where good securities afterwards become insolvent the
justices discharged. |
How securities may be indemnified.
|XX. Provided also, That where any testator shall leave visible estate, more than sufficient to pay all his debts, and by his will shall direct, that his executor or executors shall not be obliged to give security, in such case, no security shall be required of him her or them: But where the court shall see cause, either upon their own knowledge, or the suggestions of creditors, or legatees, to suspect any executor or executors of fraud, or that the testators personal estate will not be sufficient to discharge all his debts; in such or the like cases, the court may, if they think fit, require such executor or executors to give security, notwithstanding their testator's directions to the contrary: and if he, she or they, shall refuse or fail to give security, when ruled thereto by the court, such refusal or failure shall amount to a refusal of the executorship; and administration, with the will annexed, shall be committed in the manner by this act before directed.|| In what cases security not required. |
Executors refusal to give security, or refusal of the executorship.
|XXI. Provided also, That nothing herein before contained shall be construed to abridge or restrain the power of executors over their testators estates, until probat of the will, or administration with the will annexed, be obtained or granted; but they may possess themselves thereof, and 'til then execute their trust, as fully and amply as if this act had never been made.||Executors may take their testator's estate 'til probat or administration granted.|
|XXII. And be it further enacted, by the authority aforesaid, That all probats of wills, commissions of administration, or of administration with the will annexed, issued upon certificates granted according to this act, and signed by the governor, or commander in chief of this dominion for the time being, with the public seal of this colony affixed thereto, or signed by such other person or persons, being one or more of the magistrates in commission of the peace, as shall be thereto authorised by the said governor, or commander in chief, and sealed with the seal of the court granting certificate, which seal every county court is hereby impowered to provide, at the charge of their county, shall be and are hereby declared to be, good and effectual in law, to impower and enable the executors, and administrators, therein named, and every of them, to possess themselves of the estates of their testators, or intestates, by any lawful ways or means whatsoever.||Rules in probats and administrations.|
|XXIII: And to the end the value of estates may be the better known and a just account thereof kept.|
|XXIV. Be it further enacted, by the authority aforesaid, That all executors and administrators shall exhibit a true and perfect inventory of all the estate to him her or them committed, to the court granting the probat or administration.||Inventory to be returned.|
|XXV. And that every court granting probat or administration, shall then also appoint and nominate three or more appraisers, in every county where any of the testator's or intestate's slaves, goods, or chattels shall be, who being sworn before any one justice of their county, truly and justly to value the estate to them produced, to the best of their judgment, shall accordingly appraise the same, and return such appraisement, under their hands, to the court ordering the same; and every appraiser shall be paid thirty pounds of tobacco, per day, for his trouble and attendance, to be defrayed by the estate, and allowed to the executor or administrator upon passing his account; and such appraisement|| And the estate appraised. |
|may be given in evidence, in any action or suit brought against the executor or administrator, to prove the value of the estate, but shall not be binding either upon the executor, administrator, creditor, or other person whatsoever, where it shall appear, by any other legal proof, that the slaves, goods, or chattels were really worth, or bona fide sold for more, or less, than the appraisement.||How far appraisements shall be binding.|
|XXVI. And be it further enacted, by the authority aforesaid, That all executors and administrators, as soon as conveniently the same may be done, after the debts of their testator or intestate shall be fully satisfied and paid, shall sell and dispose of all such goods and chattels of their testator or intestate, specific legacies excepted, as are or may be liable to perish, consume, or be the worse for using, or keeping, for the most that can be got for the same in money, by public sale or auction, and shall and may, for the enhancing the price thereof, give credit upon good security, for what time such executor or administrator shall think fit, having regard to the circumstances of the estate, and the time when the legacies will become due, or distribution of such estate is to be made; and when such goods and chattels shall be so bona fide sold, the executor or administrator shall be answerable for the value of such sale, and no more; and in case any executor or administrator shall sell goods of his testator, or intestate, to be paid for at a future day, the buyer shall enter into bond to such executor or administrator, with one or more sureties, or shall give some other sufficient security, for payment of the money accordingly; and the executor or administrator, after the time of such payment is past, shall take and pursue all lawful ways and means to recover and receive the money, upon pain of being answerable for the same himself; and if the same shall not be received, before the legatees or other persons intituled to the distribution thereof shall have right to demand the same, it shall be lawful for the executor or administrator to assign such bond, or other security, to such legatee or other person as aforesaid, and such assignment shall discharge such executor or administrator, for so much against him or them.|| Duty of executors & administrators, in selling perishable goods.
Specific legacies excepted.
|XXVII. Provided nevertheless, That if after such assignment, the obligor or obligors in such bond become insolvent, so as the money for which such bond or other||Proviso.|
|security was given to be lost, such loss shall be made good to the assignee out of the estate of such testator or intestate.|
|XXVIII. Provided also, That where any testator shall direct, that his estates hall not be appraised, or shall be preserved in specie, and not sold, and shall leave personal estate more than sufficient to pay all his debts, nothing in this act shall extend or be construed to controul such last will, but the same shall and may be pursued and fulfilled; and the returning an inventory of the estate of such testator, without appraisement, shall be sufficient.|| Where no appraisement shall be necessary. |
And an inventory sufficient.
|XXIX. Provided also, That no executor or administrator hath or shall have any power, to sell or dispose of any slave or slaves of his testator or intestate, except, for the paying and satisfying the just debts of such testator or intestate, and then only, where there is not sufficient other personal estate to satisfy and pay such debts; and in that case, it shall be lawful for the executor or administrator to sell, at public auction such or so many slave or slaves, as shall be sufficient to raise so much money as the personal estate falls short of the payment of the debts.||Slaves shall not be sold, except where not enough other goods to pay debts.|
|XXX. And be if further enacted, by the authority aforesaid, That where any person shall die, between the first day of March, and the twenty fifth day of December, the servants and slaves which such person was possessed of at the time of his or her death, shall be continued and employed upon the plantation and plantations, held and occupied by the deceased person, until the twenty fifth day of December then next following, for the making and finishing a crop of tobacco, corn, or other grain; which crop, so made and finished, shall be assets in the hands of the executors or administrators, after the charges of cloathing and feeding such servants and slaves, with the expence of tools and utensils for them to work with, and also the quit-rents of the land whereon they work, levies and other incident charges, shall be deducted.||Rules concerning servants, slaves, and crops.|
|XXXI. And after the said twenty fifth day of December all the servants and slaves of such deceased person shall be delivered up, to the party or parties having legal right to demand the same, and all such of the said servants or slaves, as shall then be of the age|| Servants & slaves to be delivered up, after Dec. 25. |
All above 10 years, well cloathed.
|of ten years or more, shall be delivered, well cloathed, at the charge of such decedent's estate.|
|XXXII. Provided always, That no executor or administrator shall be answerable for any servant or slave, dying before the said twenty fifth day of December, altho' such servant or slave be inventoried, or appraised.||If dead before that time executor not answerable.|
|XXXIII. And for the better preservation of wills, Be it further enacted, by the authority aforesaid, That all original wills shall remain in the clerk's office, among the records of the respective counties where they shall be proved, whereto any person may have recourse, as to other records, except for the time the same shall be removed by direction of the general court; and that to every probat shall be annexed a true copy of the will whereupon such probat was granted.||Wills to remain in the clerk's office.|
|XXXIV. And forasmuch as the preserving of neat cattle, and their increase, may be of great advantage to orphans, for improving their lands; Be it further enacted, by the authority aforesaid, That where any person dying intestate, shall leave sufficient to satisfy his debts, besides slaves and neat cattle, the heir at law being under age, such cattle shall be kept upon the lands and plantation of such heir, until he shall come of age, and he shall have the benefit of their increase, and bear all loss, if any shall happen.||Cattle shall be preserved till the heir comes of age:|
|XXXV. Provided nevertheless, That the administrator of such estate, or guardian of such orphan, in case such stock grow too numerous, or if it will be to the advantage of such orphan, shall, and my sell such part of such stock, as he shall think fit; and also that such heir at law shall satisfy and pay unto the other children, or such other persons as shall be intituled to a distribution of such intestate's estate, his, her or their proportionable part or parts of the value of such stocks of cattle, as shall be left at the time of the death of such intestate.|| But if too numerous part may be sold. |
And the heir shall be answerable to the other children.
|XXXVI. And be it further enacted, by the authority aforesaid, That all and every the executors and administrators of any person or persons, who, as executor or executors, in his or their own wrong, and the executor or executors, administrator, or administrators, of any executor or administrator of right, who shall waste, or convert to his own use, goods, chattels, or estate of his testator or intestate, shall be liable, and chargeable, in||Executors, &c. in their own wrong, answerable to executors, &c. of right.|
|the same manner, as his or their testator or intestate, should or might have been.|
|XXXVII. And that actions of account shall and may be brought and maintained against the executors or administrators of every guardian, bailiff and receiver, and also by one joint tenant, or tenant in common, his executors or administrators, against the other, as bailiff, for receiving more than comes to his just share or proportion, and against the executor or administrator of such joint tenant in common.||Executors of guardians, joint-tenants, &c. accountable for receiving more than their share.|
|XXXVIII. And that all executors and administrators shall be allowed in their accounts, all reasonable charges and disbursements, which they shall lay out and expend, for selling any estate, and receiving the money, upon such sale pursuant to this act; and also, for collecting and receiving the outstanding debts of their testator, or intestate; and no other allowance whatsoever.||Executors & administrators allowance.|
|XXXIX. And be it further enacted, by the authority aforesaid, That the clerk of every county court shall, in the months of April and October, annually, return to the secretary's office, a list of all certificates for obtaining probats or administrations, granted by their respective courts, from time to time, containing the names of the testators or intestates, their executors or administrators, and the names of the securities; which lists, the secretary of this colony, is hereby required to cause to be recorded in his office, alphabetically, in books for that purpose.||List of probats and administrations when, and how to be returned.|
|XL. And be it further enacted, by the authority aforesaid, That where any testator or intestate shall leave estate, real or personal, of the value of one hundred pounds current money, or more, it shall and may be lawful for the general court of this dominion, upon motion to them made, to receive the proof of such testator's will, to them exhibited, and to hear and determine the right of administration of the estate of such intestate, and thereupon to grant certificate for obtaining probat or administration, or administration with the will annexed, as the case shall require, in the same manner, and with the same rules and limitations, as by this act is before directed to be observed in the county courts: And that all probats, and commissions of administration, granted upon certificates obtained in the general court, shall be issued under the seal of this colony, and signed||Where an estate is of the value of 100l. or more, probat, or administration may be granted by the general court.|
|by the governor, or commander in chief of this dominion for the time being, or by the president of the council for the time being, or by such judge or judges of the said court, as shall be for that purpose authorised, by commission of the said governor or commander in chief, which shall be good and effectual in law, to enable the executors, or administrators therein named, to recover and take the estate of their testator or intestate, so to them committed.|
|XLI. And that the forms of all oaths and bonds, by this act required of executors and administrators, shall be the same in the general court, as in the county courts.||Oaths, and bonds, as before.|
|XLII. Provided always, That where the general court shall grant certificate for obtaining the administration of any estate, and shall fail to take sufficient security for the same, in such case the members of the said court, granting such certificate and every of them, shall be liable to pay all loss and damages accruing by such failure, in the same manner as the justices of the county court in the like case should have been.||And security.|
|XLIII. And be it further enacted, by the authority aforesaid, That all and every other act and acts, clause and clauses, heretofore made, for or concerning any matter or thing, within the purview of this act, shall be, and are hereby repealed.||Repealing clause.|
|XLIV. And be it further enacted, by the authority aforesaid, That his act shall commence and be in force, from and immediately after the tenth day of June, which shall be in the year of our Lord one thousand seven hundred and fifty one.||Commencement of this act.|
|Pages 432-448||Pages 467-488|