SEC. 15. Upon a plea of the general issue or non est factum to When plaintiff

not required to declaration or count upon any promisory note, bond or other instru- prove the making of a bond, ment in writing, the plaintiff shall not be required to prove the mak- note, &c. ing or execution of such note, bond or other instrument, but the same shall be taken as admitted, unless the defendant, or some one knowing the facts, shall file an affidavit with such plea denying the making or execution of such note, bond or other instrument in writing, and serve a copy thereof on the plaintiff's attorney, and the rule shall be the same when an action is brought against an endorser or guarantor of any such note or other instrument pleading or like plea : Provided, This section shall not apply to suits of attachment.

clerks of the

SEC. 16. That each of the clerks of the supreme court shall ap- Each of the point some proper person to be his deputy by writing under his hand supreme court

and the seal of said court, the said appointment to be filed in his of

to appoint a

deputy, &c.

who shall take an oath and

duties of clerk,

fice, and the said deputy shall take and subscribe the constitutional oath of office, and in case of the absence, death, resignation or remo- perform the val from office of either of said clerks or of a vacancy in the office &c. of clerk by any other means, such deputy shall perform all the duties of clerk until such vacancy shall be filled.

of supreme

a transcript of

SEC. 17. Each of the clerks of the supreme court shall send a Each of clerks transcript of all records, orders and judgments of such courts, as soon court to send as the supreme court shall direct, to each of the other clerks of said all records &c court, who shall file and enter the same in such manner as the court shall either by general or special rule direct.

when directed by supreme

court.

ed.

SEC. 18. The charges and expenses of preparing and transmit-Charges and ting the transcripts provided for in the preceding section of this act, thereof how shall be severally included in the taxable costs in the respective suits paid and taxin which the aforesaid records, orders and judgments may be entered, and for all other services performed by the said clerks respectively, they shall receive the fees established therefor in the revised statutes. SEC. 19. This act shall take effect and be in force from and after its passage.

Approved March 9, 1843.

Not necessary

[No. 81.]

AN ACT to provide for the equitable settlement of the estate of deceased persons.

SECTION 1. Be it enacted by the Senate and House of Representato exhaust per- tives of the State of Michigan, That it shall not hereafter be neces

sonal estate before sale of real estate.

Same proceed-
ings for sale
as heretofore.

Judge of probate to elect appraisers.

Duties of appraisers.

sary for any executor or administrator to exhaust all the personal estate of any estate of which he may be executor or administrator before he shall be entitled to a license to sell the real estate, but such license may be granted whenever it shall be made satisfactorily to appear to the judge of probate that the personal estate is sufficient to pay the debts due from said estate.

SEC. 2. The same proceedings in other respects to obtain license to sell the real estate, shall be had as are now required by law, and a like notice of the time and place of sale shall be given.

SEC. 3. After the said license is granted, and the notice of sale published, in pursuance of law, the judge of probate shall elect three disinterested freeholders of the county, to appraise the lands or real estate proposed to be sold.

SEC. 4. The said appraisers shall be sworn or affirmed by some person authorized to administer oaths or affimations, well and truly to appraise the interest of the estate in the real estate shown to them in that behalf at its just cash value, which oath or affirmation shall be in writing and filed with the judge of probate, and the said appraisers shall proceed to examine said lands, and make and deliver to the executor or administrator, a certificate of said appraisal, in which the value of said interest in each distinct parcel shall be set forth.

SEC. 5. No real estate shall be sold by any executor or adminisNo real estate to be sold at trator, at a less sum than its value as certified by the said appraisers, its appraisal. but if the whole or any parcel of said estate be purchased at such

less sum than

sale, for its said appraised value, the purchaser shall be entitled to a deed therefor, on the conditions and in the manner now provided for by law.

SEC. 6. In either of the cases referred to in the preceding section, Executor &c.

to make re

the executor or administrator shall return all his doings forthwith to turn.

the judge of probate, together with the certificate of appraisal.

tate to be

SEC. 7. If any part of the said real estate shall be sold, the judge Pro rata disof probate, shall, after the payment of the necessary expenses and tribution of escosts, direct a pro rata distribution of the money to the several cred-made and diitors whoso claims are or may hereafter be allowed.

rected.

money not re

direct notice

ed.

SEC. 8. If sufficient money shall not be realized on account of If sufficient such sale, or offer to sell, to satisfy and liquidate the debts of said alized, judge estate, the judge of probate shall cause a notice of such fact to be of probate to published in a newspaper published in said county, if one is there to be publishpublished, if not, in a newspaper published in an adjoining county, or in the state paper, once in each week for twelve successive weeks, which notice shall also request any creditor who may have a claim against said estate, to prove the same before the said judge of probate within six months from the first publication of said notice.

Claims against proved before

SEC. 9. Any person having a claim against the said estate, may prove the same before the judge of probate within the time required estate to be by said notice, or such further time as the judge shall grant for the judge of prohearing of the same, and either party may, within sixty days after the expiration of said time, appeal from the decision of said judge of peal. probate to the circuit court for the proper county.

bate.
Party may ap-

real estate.

SEC. 10. The claim of any person, which shall have been duly Claim and proved before the judge of probate, and not appealed from, or if on a lien on the judgment to be appeal to the circuit court, judgment shall be therein rendered in favor of the claimant creditor, such claim or judgment shall be a lien on all the real estate of the deceased person, to the amount of such claim or judgment.

devisee or cre

SEC. 11. At any time after the expiration of the time of appeal When heir, from the decision of the judge of probate, in the allowance or rejec-ditor or other tion of any claim, any heir, devisee, creditor, or any other person in- petition for a terested in the said estate, may file a petition with the judge of pro- estate &c. bate for a partition of the real estate of the deceased, among the sev

eral creditors and heirs or other persons entitled thereto, which peti

person may partition of the

Petition how tion shall be signed by the person or persons making such application

signed, and what to contain.

and shall contain a brief statement of all the proceedings in relation to the settlement of said estate, a description of the real estate or chattels real belonging to the said estate, or in which the said estate has any interest and the amount of said interest, and all the heirs, devisees and creditors, whose claims may have been allowed by the judge of probate, or who may have appealed from the decision of the said judge, and who shall not have had a judgment rendered against them on said appeal, shall be made parties either as petitioners or de

fendants.

SEC. 12. Upon the filing of such petition with the judge of pro

Upon filing petition, judge bate, he shall name a day for the hearing of such petition, which of probate to name a day for shall not be less than three months from the day of filing the same, hearing same, and notice to be published, &c.

and cause a notice to be personally served on all parties interested who have not signed said petition, at least thirty days before the day of hearing, or cause such notice to be published in a paper printed in the county, if one is there published, once in each week for twelve successive weeks preceding the said day of hearing, and if no paper is printed in the county or an adjoining one, such notice may be published in the state paper.

SEC. 13. The judge of probate may, on the day assigned for the The day may be postponed. hearing, for any good cause shown postpone the hearing until any other day.

Commission

ers to be appointed to make partition.

Commisioners to be sworn-their

duties to be

SEC. 14. If no valid objections are interposed, the judge of probate shall appoint three disinterested freeholders, commissioners to partition said estate among the heirs, devisees and creditors, in proportion to their several interests.

SEC. 15. The said commissioners before entering upon the discharge of their duties, shall be sworn well and faithfully to discharge the trust reposed in them, and shall be furnished by the judge of proa transcript, bate with a transcript of the inventory of the real estate, and of all the claims that have been allowed by the judge of probate, as well as those on which judgment has been rendered against the executor or administrator in the circuit court and those there pending, and the

commission delivered to them in pursuance of their appointment shall contain a direction when the same shall be returned to him with their doings.

SEC. 16. The said commissioners shall proceed to partition and Commissioners to partition set off the said real estate, to the several creditors, whose clairis the estate, and their duties, have been allowed, in proportion to their respective interests, and if &c. there shall be more real estate at its cash value than is sufficient to satisfy the claims of said creditors, and the costs and charges incident thereto, such excess shall belong to and be vested in the heirs and assigns or other persons entitled thereto; provided, that nothing in this act contained shall affect the right of the widow to dower; and provided further, that any two or more creditors may unite their claims, and the claims thus united shall in the partition be treated as one claim.

after

bate to con

firm report of

commissioners if no objection is made, &c.

SEC. 17. Upon the return of the report of the commissioners to Judge of pro the judge of probate, the same shall be confirmed by him, if no reasonable objections are shown against such confirmation, and if thirty days from the time of entering such order of confirmation, no ap-executor &c: peal is taken from such order to the supreme court, the said judge of to execute deeds, &c. probate shall by an order direct the executor or administrator to execute deeds of conveyance to the several creditors of the parcels assigned to them by such partition, which deeds shall vest all the title and interest of said estate in the said creditor.

commissioners

estates.

SEC. 18. When any estate shall be represented insolvent, it shall Not necessary not be necessary for any judge of probate to appoint commissioners to appoint as now required by chapter six, title four, of part second of the revis- on insolvent ed statutes, but all such claims may be received and examined by the judge of probate, who shall give the like notice now required by law of commissioners, and the parties shall have the same right of appeal they now have from the decision of said commissioners.

SEC. 19. The judge of probate shall be entitled to the same fees for services required by this act as are now allowed by law for like bate entitled services, and he may in all cases when his fees or costs are taxed by and may insist the circuit court of any county, issue an execution for the collection in advance.