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Ordered, That the Committee to whom was referred the petition of Mary Arms, be directed to inquire into the expediency of making further provision in relation to the claims of creditors of insolvent estates.



IN SENATE, FEB. 23, 1833.

The Committee to whom was referred the petition of Mary Arms, for relief as a creditor of the estate of Cephas Hoyt, and who were also directed to enquire into the expediency of making further provision in relation to the claims of creditors of insolvent estates, have attended to the duty assigned them, and ask leave to

report a Bill.

D. WELLS, Chairman.


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In the Year of our Lord One Thousand Eight Hundred

and Thirty-Three.

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To authorize the Courts of Probate to grant leave to

Claimants upon Insolvent Estates to institute suits in certain cases.

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1 Sec. 1. Be it enacted by the Senate and House of 2 Representatives in General Court assembled, and by the 3 authority of the same, That in all cases in which, 4 through mistake, accident or otherwise, a person

has 5 been or shall hereafter be prevented from present6 ing his or her claim to the commissioners of insol7 vency, on any estaic duly represented insolvent, 8 within the time limited by law for the presentation of

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9 claims against such estate, it shall be lawful for the 10 Judge of Probate of the County wherein such es11 tate is under administration, upon the petition of 12 such person, and due notice to the executor or ad13 ministrator on said estate, to authorize and empower 14 the said executor or administrator to pay or allow 15 the said claim or so much thereof as he shall 16 judge to be justly due, and in case of the neglect or 17 refusal of said executor or administrator to make 18 such allowance or payment, to authorize and em19 power such claim, and to institute a suit at common 20 law for the recovery of the same, which suit shall be 21 prosecuted to final judgment, in the same way and 22 manner as if the said estate had not been represent23 ed insolvent, subject however, to the restrictions and 24 limitations hereinafter imposed.

1 Sec. 2. Be it further enacted, That if, prior to 2 the due service of notice of said petition upon the 3 executor or administrator aforesaid, a final decree of 4 distribution shall not have been made, then the sum 5 so agreed or the judgment so recovered, shall be 6 added to the list of claims against said estate, pro7 vided that such addition shall not affect any previ. 8 ous decree of distribution. And if, prior

And if, prior to such 9 notice, all the claims against said estate regu10 larly allowed by the commissioners aforesaid shall 11 have been paid or decreed to be paid in full, it shall 12 then be the duty of the said executor or administra13 tor to pay the sum so agreed upon, or the judgment 14 so recovered out of any estate of the deceased, not 15 heretofore appropriated to the payment of the debts 16 and charges of administration on said estate, pro17 vided the said estate so remaining shall be sufficient 18 for this purpose.

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1 Sec. 3. Be it further enacted, That no executor 2 or administrator shall be holden to pay to such credSitor more than the sum so remaining as last afore4 said, and in any suit brought by virtue of the provi5 sions of this act, such executor or administrator shall 6 be permitted to prove under the general issue, that 7 he has fully administered on said estate, or that 8 there is only sufficient remaining to pay the said 9 claim in part, in which case such judgment shall be 10 rendered, as is according to the rules and usages of 11 the common law in such cases; and if it shall be 12 necessary in order to ascertain the amount of the 13 property so remaining, that the same should be sold, 14 it shall be the duty of the court before whom the 15 suit is pending, to continue the same until such 16 sale can be made, 1 Sec. 4. Be it further enacted, That the provi2 sions of this act shall not extend to any case, where 3 the petition is not presented and notice thereof given 4 as aforesaid, within four years from the granting of 5 administration on said estate, and such petition and 6 notice shall be taken and deemed to be the com7 mencement of a suit, within the meaning of the sec8 ond section of the act for the limitation of suits 9 against executors and administrators, passed the four10 teenth day of February, in the year of our Lord ono 11 thousand seven hundred and ninety-two.

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Ordered, That the Committee on Banks and Banking be instructed to consider the expediency of repealing or modifying the thirty-second section of an Act passed February 28th, 1829, entitled, “ An Act to regulate Banks and Banking." And that said Committee be instructed to report on the subject matter of this order as early as convenient.

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Sent down for concurrence.




L. S. CUSHING, Clerk.

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