legatee, or other person aggrieved by such failure, to bring an action on the bond.

23 M. 295.

§ 6. (SEC. 5.) Court may cause bond to be prosecuted, when. Whenever an executor, administrator or guardian refuses or omits to perform any order or decree made by a judge of probate having jurisdiction, for rendering an account, or upon a final settlement, or for the payment of debts, legacies or distributive shares, such judge of probate may cause the bond of such executor, administrator or guardian to be prosecuted, and the moneys collected thereon applied in the same manner as such moneys ought to have been applied by such executor, administrator or guardian.

§ 7. (SEC. 6.) Permission to sue-certified copy of bond. On the application of any person authorized by this chapter to commence an action on such bond, the judge of probate may grant permission to such person to prosecute the same, and shall thereupon furnish to the applicant, on his paying the legal fee, a certified copy of the bond, together with a certificate that permission has been granted to prosecute it, and the name and residence of the applicant.

$8. (SEC. 7.) Judgment, for what amount rendered successive actions. The judgment of the plaintiff, in any action on such bond, brought for the benefit of any particular person, shall be for the amount of the damages which he shows himself entitled to, in consequence of the breach of the condition of said bond; and successive actions may be brought on said bond for the benefit of persons injured by any breach thereof.

$ 9. (SEC. 8.) Execution, how awarded. If judgment is rendered for the plaintiff, in any action upon such bond for any breach thereof in not performing any order or decree of the judge of probate, as mentioned in the fifth section of this chapter, execution shall be awarded for the full value of all the estate of the deceased, or ward, that has come to the hands of such executor, administrator or guardian, and for which he has not satisfactorily accounted, and for all such damages as have been occasioned by his neglect or maladministration.

§ 10. (SEC. 9.) Disposal of moneys collected on execution. All moneys received on any execution issued on a judgment in favor of the judge of probate, as mentioned in the preceding section, shall be paid over to the co-executor or co-administrator, if there is any, or to such person, other than the defendant therein, as shall then be the rightful executor, administrator or guardian; and such moneys shall be disposed of according to law.

§ 11. (SEC. 10.) Actions on bond by and against personal representatives. Claims for damages on account of the breach of the conditions of any bond may be prosecuted by any executor, administrator or guardian, in behalf of those he represents, in the same manner as by persons living and of full age; and such claims may be prosecuted against the representatives of deceased persons, in the same manner as other claims against such deceased persons.

§ 1. Allowance to children before division of estate. Before any partition or division of any estate among the heirs, devisees or legatees, an allowance shall be made for the necessary expenses of the support of the children of the deceased, under seven years of age; and the probate court may order the executor or administrator to retain in his hands sufficient estate for that purpose, except where some provision has been made by will for their support.

§ 2. Sale of lands for support of children. If, in case of intestate estates, after the payment of debts and charges of administration, there is no personal estate, or not enough remaining in the hands of the administrator to maintain the minor children under seven years of age, as now provided by law, the probate court may, upon application of such administrator, and with the assent, in writing, of all the heirs, by themselves or guardians, residing in this state, authorize and empower such administrator to sell at public auction or private sale, as he may find necessary, so much of the lands of such estate as will raise a sum of money sufficient for the support of such minor children till they arrive at the age of seven years, which sum of money so raised shall, under the order of the probate court, be retained in the hands of such administrator, for the purpose aforesaid; and partition of the residue of such estate may be made in the same manner as now provided by law.

§3. Same-sale, how made. In making such sale of lands as is by this chapter authorized, the administrator shall be sworn to the faithful discharge of his trust; and the rules and regulations, so far as applicable, relative to the sale of real estate by executors and administrators, now by law established, shall be observed.

§4. Assignment of residue of estate, after payment of debts, etc. After the payment of the debts, funeral charges, and expenses of administration, and after the allowance made for the expenses of the maintenance of the family of the deceased, and for the support of the children under seven years of age, and after the assignment to the widow of her dower, and of her share in the personal estate or when sufficient effects are reserved in the hands of the executor or administrator for that purpose-the probate court shall, upon the application of the executor or administrator, or any other party having an

interest in the estate of the deceased, by a decree for that purpose, assign the residue of the estate, if any, to such other persons as are by law entitled to the same; and in such decree the court shall name the persons, and the proportions or parts to which each is entitled, and if real estate, give a description, as near as may be, of the land to which each is entitled; and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same; and such decree shall at once be recorded in the office of the register of deeds in every county in this state in which are situate any of the lands described in such decree; and such register of deeds shall enter in his reception book the name of the deceased as grantor, and the names of the heirs or legatees as grantees, and shall make in such reception book so many separate grantor and grantee entries for such decree as there are persons taking under the same in such county. (As amended 1875, c. 56, § 1.)

16 M. 494.

§ 5. Application for decree-bond to be given. Such decree may be made on the application of the executor or administrator, or of any person interested; but no heir, devisee or legatee is entitled to a decree for his share, until payment of the debts and allowances and expenses, mentioned in the preceding section, is made or provided for, unless he gives a bond to the judge of probate, with such sureties as the court directs, to secure the payment of his just proportion of such debts and expenses, or such part thereof as shall remain unprovided for, and to indemnify the executor or administrator against the same.

§ 6. Partition between heirs, etc., to whom estate is assigned. When the estate, real or personal, assigned to two or more heirs, devisees or legatees, is in common and undivided, and the respective shares are not separated and distinguished, partition and distribution may be made by three discreet and disinterested persons, to be appointed commissioners for that purpose by the probate court, who shall be duly sworn; and the judge of probate shall issue a warrant to them for that purpose.

§ 7. Same-real estate in different counties. If the real estate lies in different counties, the probate court may appoint different commissioners for each county; and in such case the estate in each county shall be divided separately, as if there was no other estate to be divided; but the commissioners first appointed shall, unless otherwise directed by the probate court, make divisions of such real estate, wherever situated within this state.

§ 8. Order of distribution-notice to be given. Such partition and distribution may be ordered on the petition of any of the persons interested; but before any partition is ordered as directed in this chapter, notice shall be given to all persons interested, who reside in this state, or their guardians, and to the agents, attorneys or guardians, if there are any in this state, of such as reside out of the state, either personally or by public notice, as the probate court shall direct.

16 M. 494.

§ 9. Partition of real estate, when shares have been conveyed. Partition of the real estate may be made as provided in this chapter, although some of the original heirs or devisees have conveyed their shares to other persons; and such shares shall be set to the persons holding the same, in the same manner as they would have been to such heirs or devisees.

§ 10. Shares to be set out by metes and bounds. The several shares in the real and personal estate shall be set out to each individual in proportion to his right, by such metes and bounds, or description, that the same may be easily distinguished; unless any two or more of the parties interested consent to have their shares set out so as to be held by them in common and undivided.

§ 11. Proceedings when estate cannot be divided. When any such real estate cannot be divided without prejudice or inconvenience to the owners, the probate court may assign the whole to one or more of the parties entitled to shares therein.

who will accept it; always preferring the males to the females, and, among children, preferring the elder to the younger: provided, the party so accepting the whole pays to the other parties interested their just proportion of the true value thereof, or secures the same to their satisfaction; the true value of the estate shall be ascertained by commissioners appointed by the probate court, and sworn for that purpose.

§ 12. Same when any tract of land, etc., cannot be divided. When any tract of land, messuage or tenement, is of greater value than either party's share in the estate to be divided, and cannot be divided without injury to the same, it may be set off by the commissioners appointed to make partition, to either of the parties who will accept it, giving preference as prescribed in the preceding section: provided, the party accepting it pays or secures to one or more of the others, such sums as the commissioners award, to make the partition equal; and the commissioners shall make their award accordingly; but such partition shall not be established by the court until the sums so awarded are paid to the parties entitled to the same, or secured to their satisfaction.

§ 13. Proceedings when deceased was a tenant in common. When partition of real estate among heirs or devisees is required, or dower is to be assigned to a widow in the same, and such real estate lies in common, and undivided, with the real estate of any other person, the commissioners shall first divide and sever the estate of the deceased from the estate with which it lies in common; and such division so made and established by the probate court is binding on all persons interested.

§ 14. Guardians for minors, and agents for non-residents-notice to be given. Before any partition is made, or any estate divided, as provided in this chapter, guardians shall be appointed for all minors and insane persons, interested in the estate to be divided; and some discreet person shall be appointed to act as agent for such parties as reside out of the state; and notice of the appointment of such agent shall be given to the commissioners in their warrant; and notice shall be given to all persons interested in the partition, their guardians or agents, by the commissioners, of the time when they will proceed to make partition.

§ 15. Report of commissioners and proceedings thereon. The commissioners shall make report of their proceedings to the probate court, in writing; and the court may, for sufficient reasons, set aside such report and commit the same to the same commissioners, or appoint others; and the report, when finally accepted and established, shall be recorded in the records of the probate court, and a copy thereof, attested by the judge of probate under the seal of the court, shall be recorded in the office of the register of deeds of the county where the lands lie.

$16. When partition may be dispensed with. When the probate court makes a decree assigning the residue of any estate to one or more persons entitled to the same, it shall not be necessary to appoint commissioners to make partition or distribution of such estate, unless the parties to whom the assignment is decreed, or some of them, request that such partition be made.

§ 17. Court to deicde on advancement effect of final decree. All questions as to advancements made, or alleged to be made, by the deceased to any heirs, may be heard and determined by the probate court, and shall be specified in the decree assigning the estate, and the warrant to the commissioners; and the final decree of the probate court, or, in case of appeal, of the district or supreme court, shall be binding on all persons interested in the estate.

§ 18. Appeals. Any person aggrieved by any order, decree or denial of a probate court, in pursuance of the provisions of this chapter, may appeal therefrom, as provided in other cases.

$19. Partition conclusive, when. The partition, when finally confirmed and established, shall be conclusive on all the heirs and devisees, and all persons claiming under them, and upon all persons interested.

599

§ 20. Expenses of partition or distribution, how paid. If, at the time of the partition or distribution of any estate, as provided in this chapter, the executor or administrator has retained sufficient effects in his hands which may lawfully be applied for that purpose, the expenses of such partition or distribution may be paid by such executor or administrator, when it appears to the court just and equitable, and not inconsistent with the intention of the testator.

§ 21. Parties interested to pay expenses, when. But if there are no effects in the hands of the executor or administrator which may be lawfully applied to that purpose, the expenses and charges of the partition, being ascertained by the probate court, shall be paid by all the parties interested in the partition, in proportion to their respective shares or interests in the premises; and the proportion shall be settled and allowed by the probate court; and if any one neglects to pay the sum assessed on him by the court, an execution may be issued thereof against him by such court, in favor of the person entitled to the same.

§ 22. Assignment and partition of reversion. When the term of a widow entitled to dower or other life estate in the lands of a deceased person expires, the reversion may be assigned to the person entitled to the same, and the partition thereof be made in the manner prescribed in this chapter in relation to other estates of deceased persons.

§ 23. Court may appoint agent of absent person. When any estate is assigned by decree of the court, or distributed by commissioners, as provided in this chapter, to any person residing out of this state, and having no agent therein, and it is necessary that some person should be authorized to take possession and charge of the same, for the benefit of such absent person, the court may appoint an agent for that purpose, and authorize him to take charge of such estate, as well as to act for such absent person in the partition and distribution.

$24. Such agent to give bond—his account and expenses. Such agent shall give bond to the judge of probate, to be approved by him, faithfully to manage and account for such estate, before he is authorized to receive the same; and the court appointing such agent may examine and allow his account, on application made by him or any person interested, and may allow a reasonable sum out of the estate for his services and expenses.