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CHAP. 104. school district is a party, or interested, though such coroner may, at the time, be a member of the corporation interested.

Same subject. 1821, 93, § 1.

SECT. 61. When the office of sheriff in any county may vacant, any coroner of such county shall have the like power to execute and return all writs and precepts, which are by law appointed to be served and returned by the sheriff or his deputies, until another sheriff shall be appointed and legally qualified.

Jailer to reside SECT. 62. Every keeper of a county jail shall reside constantly, in the house with his family, if he have any, within the house provided for such provided for him, as such, if keeper, where good and sufficient buildings are provided for that good and suffipurpose, in the opinion of the county commissioners of the county, cient. where the buildings are located; and, in case of his neglect so to do, he shall forfeit and pay a sum, not exceeding three hundred dollars, to be recovered by indictment to the use of the county.

1824, 277.

TITLE NINTH.

Of courts of probate, and the settlement of the estates of persons deceased.

CHAPTER 105. Of the court of probate.

106. Of granting probate and administration, and the general obligations and
powers of executors and administrators.

107. Of public administrators, special administrators, executors in their own
wrong, and administrators of persons deceased out of the state, and pro-
ceedings of surviving partners.

108. Of the modes of distributing real and personal estate, and lands held in
mortgage or taken on execution.

109. Of insolvent estates.

110. Of guardians.

111. Of testamentary trustees.

112. Of sales of real estate by executors, administrators, guardians and others,
under special license of court.

113. General provisions respecting probate bonds, and remedies on the same.

CHAPTER 105.

OF THE COURT OF PROBATE.

SECT. 1. Present judges to remain in office. | SECT. 23. By whom probate oaths to be ad

2. Vacancies to be supplied.

3, 4. Jurisdiction of the court.

5. Judge may issue processes, and to have a seal.

6. Officers to obey his precepts. 7. Power to punish for contempts. 8. Days and places for holding courts to be fixed, and public notice thereof given.

9. Appointment of register of probate.

10. His general duties.

11. His bond and the condition thereof.

12. Of its forfeiture, and the effect. 13. Register pro tem.

14. His oath and bonds. 15. Records to be examined. 16. Appropriation of penalty of the register's bond.

17. Further liability of the register. 18, 19. When judge is interested, jurisdiction transferred to another county.

20. Judge not to be attorney, nor counselor in matters incompatible.

21. Register also prohibited.

22. Assumed jurisdiction, in certain cases, voidable only on appeal.

ministered.

24. Supreme court of probate. 25. Right of appeal.

26, 27. How to be exercised.

28. When appeal is not entered, &c. remedy of the appellee.

29. When the aggrieved party is out of the United States.

30. Of accidental omissions to claim or prosecute appeals.

31. Notice to adverse party. Limita

tion.

32. After bond given, further proceedings to cease.

33. Proceedings in the supreme court of probate.

34. Questions of fact may be tried by a jury.

35. Of the recovery of costs. 36. Approval of bonds by the judge, to be certified thereon. 37. Of probate districts, parts of counties.

38. When oaths may be administered, under special commissions. 39. Cases, in which no probate, nor administration shall be granted. 40. How the deceased's property shall vest in such cases.

CHAP. 105.

CHAP. 105.

SECTION 1. All judges of probate, now in office, shall continue Present judges to hold their offices, according to the tenor of their commissions, where not inconsistent with the constitution.

to remain in

office.

Vacancies to be supplied. 1821, 51, § 1.

Jurisdiction of
the court.
1821, 51, § 1.

1837, 292, 63.

9 Mass. 513.

519.

SECT. 2. Whenever a vacancy in the office shall happen in any county, there shall be appointed, pursuant to the constitution of the state, some able and learned person, to be judge of probate for such county.

SECT. 3. The judge of probate for each county shall have power to take the probate of wills, and grant letters testamentary, or administration, on the estates of all persons deceased, who were, 5 Pick. 65,370, at the time of their decease, inhabitants of, or resident in the same county, and of all who shall die without the state, leaving any estate to be administered within such county, or whose estate may afterwards be found in said county; and also to appoint guardians. to minors and others, in the cases prescribed by law. The said judge may also, on application, grant administration on the estate of any person, who shall, by due course of law, be under sentence of imprisonment for life in the state prison, either by commutation of a previous sentence, or otherwise.

Same subject.
1821, 51, § 1.
5 Pick. 370, 519.

Judge may is

sue processes,
and to have a
seal.
1821, 51, § 1.
Officers to obey
his precepts.
1821, 51, § 1.

Power to pun

ish for con

tempts.

SECT. 4. He shall have jurisdiction of all matters, relating to the settlement of such estates, and to such persons, under guardianship, and to whatever else, by the provisions of law may come under his cognizance and jurisdiction; and, when a case shall be originally within the jurisdiction of the probate court, in two or more counties, the court, which shall first take cognizance thereof by the commencement of proceedings, shall retain the same throughout, exclusively.

SECT. 5. He shall have authority to issue whatever processes be necessary for the discharge of his official duties, and he shall have an official seal.

may

SECT. 6. Sheriffs and their deputies, coroners and constables shall serve and execute all legal warrants and processes, by him directed to them.

SECT. 7. Contempt of his authority, in any cause or hearing before him, may be punished, in like manner as such contempt may 1821, 51, §1,75. be punished in the district court. Any person, summoned to appear, as a witness, before him, and who shall refuse to appear and give evidence, shall be liable to the like penalty or damage, as for refusing to appear and give evidence before any district court.

Days and places for holding courts to be

SECT. 8. The judges of probate, in their respective counties, shall have certain fixed days and places for holding their courts, fixed, and pub- and making and publishing their orders and decrees, where no exlic notice thereof given. press provision is made by standing laws; and such days shall be 1821, 51, § 5. made known, by public notifications thereof in the several counties. Appointment of SECT. 9. Registers of probate shall continue to hold their offices register of pro- according to the tenor of their commissions; and, as vacancies 1821, 51, § 3. occur, there shall be appointed, in the manner provided by the constitution, a suitable person in each county, to be register of probate therein, to hold the office for the term prescribed by law; and who shall be duly sworn.

bate.

His general du

ties.

1821, 51, § 3.

SECT. 10. The register shall have the care and custody of all files, papers and books, belonging to the probate office; and shall

duly record all wills, proved in said office, letters of administration, CHAP. 105. or guardianship, granted, accounts allowed, and all orders and decrees of the judge, and such other matters, as the judge may direct.

the condition

SECT. 11. Every register, before he enters upon the duties of His bond, and his office, shall give bond to the treasurer of the county, to which thereof. the office pertains, in a sum, not less than one hundred, nor more 1821, 108, § 1. than one thousand dollars, with one or more sufficient sureties, at the discretion of the judge of probate, who shall certify his approval thereon; and the bond shall be conditioned for the keeping up, seasonably and in good order, the records of the same court, and for making and keeping convenient and correct alphabets of the records in the custody of said register, and for the faithful discharge of all the other duties of the office.

1921, 103, § 2.

and the effect.

SECT. 12. If such register shall incur a forfeiture of his said Ofits forfeiture, bond, he shall thenceforth be disqualified from holding said office, or being reappointed; and, if he shall neglect to complete his records, for more than six months at any one time, sickness or any extraordinary casualty excepted, such neglect shall be adjudged a forfeiture of his said bond.

tem.

SECT. 13. In case of the death or absence of the register, the Register pro judge of probate shall appoint a suitable person to officiate as regis- 1921, 51, § 3. ter, until the standing register shall be able to perform his duty, or until another shall be appointed by the governor and council.

bonds.

SECT. 14. Such temporary register shall be duly sworn, and, His oath and if the judge of probate shall require it, shall give bonds, as in case of a standing register.

examined.

1826, 343, § 6.

SECT. 15. Every judge of probate shall constantly inspect the Records to be conduct of the register, whether permanent or temporary, with respect to his records, and the duties of his office; and give information, in writing, of any breach of the bond of such register to the county treasurer, having the same in keeping; whose duty it shall be to put the same in suit, on receipt of such information. SECT. 16. The money, recovered on such bond, shall, in the first Appropriation instance, be applied for the expenses of duly completing the records of penalty of of such register, under the direction of the judge, in whose office bond. such deficiency shall happen, and the overplus, if any, shall enure 1826, 343, § 6. to the use of the county.

the register's

ter.

SECT. 17. If the whole penalty of such bond be not sufficient Further liabilito defray the expenses of completing such records, the treasurer ty of the regismay recover the amount of such deficiency of the register, in a special action on the case.

another county.

1822, 198.

SECT. 18. Whenever any judge of probate shall be interested, When judge is interested, as Leir, legatee, creditor or debtor, or within the degree of kindred, jurisdiction by means of which, by law, he might, by any possibility, be heir to transferred to any part of the estate of any person deceased, such estate shall be 1821, 51, § 2. settled in the probate court of the most ancient adjoining county; 5 Pick. 483. provided, that the amount of the interest of such judge shall not be 21 Pick. 101. less than one hundred dollars in such estate. If his interest com- 22 Pick. 507. mence at any time, after he shall regularly have assumed jurisdiction of such estate, further proceedings therein shall be transferred

to the probate court, held in the most ancient adjoining county.

SECT. 19.

The will of any such deceased person may be there Same subject. 1821, 51, § 2.

CHAP. 105. proved, or administration granted, as the case may require, and all subsequent proceedings be had thereon, in like manner, as if the deceased had died in that county.

Judge not to be attorney nor counselor, in

matters incom

patible.
1821, 51, § 4.

Register also prohibited. 1821, 51, § 4.

Assumed juris

void

tain cases, able only on

SECT. 20. No judge of probate shall have a voice in judging and determining, nor be attorney or counselor, in or out of court, in any civil action or matter whatever, which may depend on, or relate to any sentence or decree, made by him in his office; nor be attorney or counselor in any civil action, for or against any executor, administrator, or trustee under any last will and testament, or guardian, as such, within his county.

SECT. 21. No register of probate shall be attorney or counselor, in or out of court, in any suit or matter, whatever, pending in the court of which he is register, nor in any appeal therefrom; nor shall he be executor, administrator, trustee, guardian, commissioner of insolvency, appraiser or divider, of or upon any estate, or in any case, that is within the jurisdiction of the court, of which he is register, nor be in any manner interested in the fees or emolument, arising from any of the said offices.

SECT. 22. The jurisdiction assumed in any case by a judge of diction, in cer- probate, except in cases of fraud, so far as it depends on the place of residence of any person, or the locality or amount of the property to be administered upon, shall not be contested in any suit or proceeding whatever, except on an appeal from the probate court in the original case, or when the want of jurisdiction appears on the same record.

appeal.

By whom pro

bate oaths to

ed.

1833, 62, § 2.

SECT. 23. All oaths, required to be taken by executors, adminbe administer istrators, trustees or guardians, excepting to the truth of inventories or accounts by them rendered, and all oaths, required of commissioners of insolvency, appraisers and dividers of estates, or of any other persons, in relation to any proceeding in the probate court, or to perpetuate the evidence of the publication of any order of notice, or of any notice of the time and place of sale of real estate by executors, administrators, guardians, or others, by license of any judicial court or court of probate, may, at any convenient time and place, be administered by the judge of probate, or by any justice of the peace, and a certificate thereof, when taken out of court, shall be returned into the registry of probate, and there filed and recorded.

Supreme court
of probate.
1821, 51, § 6.

Right of appeal.

3 Pick. 443.

SECT. 24. The supreme judicial court shall be the supreme court of probate, and shall have appellate jurisdiction, in all matters determinable by the judges of probate in their respective

counties.

SECT. 25. Any person, aggrieved by any order, sentence, de1821, 51, 64. cree or denial of a judge of probate may appeal therefrom to the said supreme court of probate, to be held within and for the same county, provided the appeal be claimed, before the expiration of thirty days from the date of the proceeding appealed from.

16 Pick. 264. 18 Pick. 1.

22 Pick. 507.

How to be exercised.

1821, 51, 64. 1 Mass. 543.

4 Pick. 465.

SECT. 26. Within ten days after claiming his appeal, the appellant shall make his bond to the adverse party, for such sum and with such sureties, as the judge shall approve, conditioned for the prosecution of his appeal with effect, at the next term of the supreme court of probate, where the same may be entered, and to pay all

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