The right of a widow to an allowance under this section is personal in its character, and does not pass to her representatives in case of her death. Thus the death of a widow, while an appeal from the decree making her an allowance was pending, was held to put an end to the claim. Adams v. Adams, 10 Met. 170. So where the decree of the probate court allowed the widow certain articles to be selected by her, and she died before making the selection;- but it seems that if she had died after making her selection and after making a demand for the articles selected, her executor or administrator might have maintained an action for the same against her husband's estate. Drew v. Gordon, 13 Allen 120, 122.

It seems that a widow will be entitled to her allowance, even though her husband leaves a will, the provisions of which she does not waive. Williams v. Williams, 5 Gray 24. (It is to be noted however that this case arose prior to St. 1854, c. 428, re-enacted in Gen. St. c. 92, s. 24.)

The court has power to make a second allowance to a widow at any time before the personal estate of the deceased is exhausted. Hale v. Hale, 1 Gray 518, 521.

Where the court allowed the widow such articles as she might choose out of her husband's personal estate to a certain amount according to the inventory, such amount being greater than the appraised value of all the personal estate then in the hands of the administrator, and the administrator afterwards sold the whole of such personal estate without her waiving her claim to her allowance, it was held that she was entitled to the whole of the proceeds of such sale. Kingsbury v. Wilmarth, 2 Allen 310.

Collection of the Effects, &c.

SECT. 6. For cases relating to the examination of executors and administrators under this provision, see Boston v. Boylston, 4 Mass. 318, 322. Higbee v. Bacon, 7 Pick. 14. s. c. 8 Pick. 484.

A party to whom interrogatories are put under this section

cannot avoid the effect of admissions made by him by stating independent matter in his answers. Higbee v. Bacon, 8 Pick. 484, 489.

The complainant may offer evidence to disprove answers given by a party interrogated under this section. Higbee v. Bacon, 8 Pick. 484, 489.

A bill in equity in the supreme court cannot be maintained in the cases provided for by this section. Wilson v. Leishman, 12 Met. 316, 320.

It seems that proceedings cannot be instituted under this section, except where the estate concerned is already under administration in the probate court. Arnold v. Sabin, 4 Cush. 46.

SECT. 7. The debts, to pay which the real estate of one deceased may be sold under this section, are only those debts. which can be enforced at law. Lamson v. Schutt, 4 Allen 359.

SECT. 9. The heirs of a mortgagee, who dies before foreclosure, have not such an interest in the mortgaged premises as entitles them to enter or to bring an action for condition broken. Smith v. Dyer, 16 Mass. 18.

The quitclaim deeds of such heirs, if made before a decree of distribution of the mortgagee's estate, will not give the grantees sufficient title to sustain a writ of entry even against such heirs themselves. Tuft v. Stevens, 3 Gray 504.

After entry to foreclose, the executor or administrator of the mortgagee, who has died before foreclosure, may maintain a writ of entry against a disseisor of the mortgaged premises, or trespass against the heir of the mortgagee. Richardson v. Hildreth, 8 Cush. 225.- Palmer v. Stevens, 11 Cush. 147, 150.

SECT. 10. "Shall be seised of the mortgaged premises in trust for the persons," &c. See note to next section.

SECT. 11. "Shall be seised of such real estate in trust for the persons," &c. This is not a trust which is executed by the statute of uses. See Boylston v. Carver, 4 Mass. 598, 609.

Baldwin v. Timmins, 3 Gray 302.-Johnson v. Bartlett, 17 Pick. 477, 484.

SECT. 12. Prior to St. 1849, c. 47, which this section reenacts, an executor could not, even before entry to foreclose, make a valid assignment of a mortgage of real estate except by license of court. Ex parte Blair, 13 Met. 126. — Burt v. Ricker, 7 Allen 77, 78. By St. 1851, c. 288, however, all such assignments made subsequent to the Revised Statutes and prior to St. 1849, c. 47, were declared to be valid, though made without license.

It seems that this section is applicable only to executors and administrators appointed in this state. Cutter v. Davenport, 1 Pick. 81, 85.- Hutchins v. State Bank, 12 Met. 421, 424. As to the right of an executor to make a conditional assignment of a mortgage, see Burt v. Ricker, 7 Allen 77.

SECT. 13. If an executor or administrator sells without license as provided in this section, his deed will not be void, but only voidable by the next of kin, legatees, or creditors of the deceased. Baldwin v. Timmins, 3 Gray 302, 304.Thomas v. Le Baron, 10 Met. 403, 407.

"After the right of redemption is foreclosed." When an executor or administrator obtains a release of the equity of redemption of a mortgage held by him, a license to sell the mortgaged estate will be equally as necessary as if the mortgage had been foreclosed by entry and three years' possession. Johnson v. Bartlett, 17 Pick. 477, 486, 487.

CHAPTER XCVII.

OF THE PAYMENT OF DEBTS AND LEGACIES.

As a general rule, an executor or administrator is only required to pay, and only justified in paying, legal demands against the estate which he represents. But it is to some extent true that he will be allowed in his account for the payment,

made in good faith, of any claim which could be supported by any proceeding either at law or in equity. Phillips v. Frye, 14 Allen 36, 38.- Ripley v. Sampson, 10 Pick. 371, 373.

It would seem that in the payment of debts by an executor or administrator, interest should be paid to the day of payment, and that even if the debt did not bear interest before, interest should be allowed after the death of the testator or intestate. See Williams v. American Bank, 4 Met. 317.

SECT. 1. If an executor gives a notice as administrator, the notice will not for that reason be void. Finney v. Barnes, 97 Mass. 401.

SECT. 2. If an affidavit is not filed pursuant to this section, the giving of the notice may be proved by oral evidence. Henry v. Esty, 13 Gray 336.

SECT. 4. As to the liability which an executor, &c., will incur by omitting to give due notice of his appointment, see Forward v. Forward, 6 Allen 498.

SECT. 5. Where a claim has been cut off by this section, the supreme court may give relief in equity, if justice and equity require it, and the claimant is not chargeable with culpable neglect. St. 1861, c. 174, s. 2.- St. 1863, c. 235.

As to the application of this section to an executor, who is residuary legatee, and who gives bond under Gen. St. c. 93, s. 3, to pay all debts and legacies of the testator, see Holden v. Fletcher, 6 Cush, 235, 237, 238.

It is the duty of an executor or administrator to plead this statute of limitation in bar of any action brought against him after the time prescribed. Lamson v. Schutt, 4 Allen 359, 360. But it seems that there is no such duty to plead the general statute of limitations. Emerson v. Thompson, 16 Mass. 429, 431.-Foster v. Starkey, 12 Cush. 324, 327.

This section does not limit the time within which the administrator of a deceased defendant shall be cited in to defend the action. Bank of Brighton v. Russell, 13 Allen 221.

An executor or administrator may plead this statute of limi

tation in answer to claims in set-off filed after the expiration of the two years. Lowell v. Nelson, 11 Allen 101, 102.

"From the time of his giving bonds," &c. Where a bond was given and approved by the judge of probate on a day prior to that on which the will was proved and the letters testamentary issued, on which latter day the bond was filed in the probate office, it was held that such latter day was the time of giving bond within the meaning of this section. Wells v. Child, 12 Allen 330, 333..

If a bond without sureties be given without the notice to creditors, &c., required by Gen. St. c. 93, s. 5, the two years' limitation provided for by this section will not begin to run. Abercrombie v. Sheldon, 8 Allen 532.

SECT. 6. This section was enacted in adoption of the rule laid down in White v. Swain, 3 Pick. 365. See also, as to the earlier law, Johnson v. Libby, 15 Mass. 140. "When assets come to the hands of an executor," &c. The assets here referred to are new assets for which the executor or administrator has not been previously liable, not those which merely come into his hands in a new shape, as by the payment of a note which had been inventoried, or from the sale of real estate for the payment of debts. Sturtevant v. Sturtevant, 4 Allen 122, 124.-Chenery v. Webster, 8 Allen 76.- Veazie v. Marrett, 6 Allen 372.- Bradford v. Forbes, 9 Allen 365, 368.

SECT. 18. "He shall be discharged upon proving such payments." It seems that mere proof of the fact of such payments will not be sufficient, but that the executor must have filed an inventory, and settled an account in the probate court showing such fact. Cushing v. Field, 9 Met. 180. See also section 20.

SECT. 19. "That the remainder is insufficient," &c. If however there is either real or personal estate which can be made applicable to the payment of debts, the executor will be liable to an action upon a demand such as is here referred Hildreth v. Marshall, 7 Gray 167, 169.

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