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But the creditors of the deceased, who have been previously paid, shall not be liable to refund,fc. This applies whether such creditors have been paid in full, or only in part. Colegrove v. Robinson, 11 Met. 238, 240.

This proviso applies only to creditors who have been paid after the expiration of the year from the appointment of the executor. If however an administrator within the year pays a debt of his intestate, he may, if the estate afterwards proves insolvent, recover back the excess of the sum so paid over the amount finally allowed such creditor. Heard v. Drake, 4 Gray 514, 516. — Richards v. Nightingale, 9 Allen 149.

SECT. 22. “ The question to whom and at what time a legacy or distributive portion under a will is to be paid by an executor, is one of which the judge of probate has no jurisdiction.” Per Shaw, C. J., in Cowdin v. Perry, 11 Pick. 503, 511. “Executors must see at their peril that they pay legacies to persons legally authorized to receive them, and a literal compliance with the directions of the will is not in all cases sufficient.” Per Shaw, C. J. Newcomb v. Williams, 9 Met. 525, 535.

Under this section an action of contract will lie for a specific legacy. Colwell v. Alger, 5 Gray 67.

An action for a legacy will not lie until after a demand by the legatee upon the executor. Brooks v. Lynde, 7 Allen 64, 68. — Miles v. Boyden, 3 Pick. 213, 218.

It seems that there is no limitation of the time within which an action to recover a legacy may be brought. Brooks v. Lynde, 7 Allen 64, 66.

It seems that an action for a legacy will lie against an executor after the expiration of one year from his appointment, but not sooner. Brooks v. Lynde, 7 Allen 64, 67. – Howland v. Howland, 11 Gray 469, 476. - Pollard v. Pollard, 1 Allen 490, 491. See also section 21. As to annuities, see section 24, last clause.

SECT. 23. See Lovering v. Minot, 9 Cush. 151, 157.

SECT. 24. There is nothing in this section which, when a tax is assessed during the life of A. upon property to the income of which he is entitled, can authorize its apportionment in case of his death within the year for which the tax is laid. Holmes v. Taber, 9 Allen 246, 248.

Dividends from the profits of incorporated companies, not declared at the time when the death or contingent event happens, are not apportionable under this section. Granger v. Bassett, 98 Mass. 462, 469.

Sect. 26, 27. See Willey v. Thompson, 9 Met. 329, 336.

Sect. 28. At common law, upon the death of one of two joint promisors the survivor alone was liable to an action upon the contract, and the executor or administrator of the deceased party could not be sued thereon. This rule was first altered in this state by St. 1799, c. 57, re-enacted in this section. Rice, Appellant, 7 Allen 112, 114.- Burnside v. Merrick, 4 Met. 537, 544.— Foster v. Hooper, 2 Mass. 572. But this section does not alter the old rule so far as it rendered the survivor severally liable on the joint contract after the death of his joint promisor, and it seems, consequently, that an action cannot be maintained against such survivor jointly with the executor or administrator of the deceased party. Rice, Appellant, 7 Allen 112, 115.

This section gives a creditor, in the case of the decease of one of two joint debtors, such a clear and adequate remedy at law against the estate of the deceased that he is not entitled to a remedy by bill in equity. Curtis v. Mansfield, 4 Met. 152, 154. But if the debt be one due from partners, a bill in equity will be maintainable for the purpose of applying the real estate of a deceased partner to the payment of a partnership debt. Burnside v. Merrick, 11 Cush. 537, 544.

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CHAPTER XCVIII.

OF THE ACCOUNTS AND SETTLEMENTS OF EXECUTORS AND

ADMINISTRATORS.

Payments by an executor to residuary legatees of their shares of the residue are not properly allowable in his accounts; the settlement of his accounts “ should determine the amount of residue subject to distribution, but not the rights or shares of those who are entitled.” Granger v. Bassett, 98 Mass. 462, 469.

Sect. 5. See notes to chapter 96, sect. 12.

Sect. 8. The heirs of one deceased are entitled to the rents and profits of his real estate until it is sold for the payment of his debts. Gibson v. Farley, 16 Mass. 280. — Lobdell v. Hayes, 12 Gray 236. The executor or administrator may, however, receive such rents and profits by the consent of the heirs, in which case he will be liable to account for them as provided in this section. Stearns v. Stearns, 1 Pick. 157, 158. — Edwards v. Ela, 5 Allen 91. — Adams v. Palmer, 6 Gray 338, 339.

When an executor or administrator is chargeable with profits under this section, he will also be allowed for reasonable expenditures in the care of the real estate. Edwards v. Ela, 5 Allen 87, 90.

If a party in possession of the real estate of the deceased be not only an executor or administrator, but also an heir or devisee of the deceased, his possession will be presumed to have been in the latter capacity. Newcomb v. Stebbins, 9 Met. 540, 545.

An executor is not chargeable with rents and profits of real estate situated in another state. Morrill v. Morrill, 1 Allen 132.

Sect. 9. “And he may be examined on oath,fc. See Sigourney v. Wetherell, 6 Met. 553, 558.

SECT. 10. Reasonable expenses.“Executors, who are

obliged to employ counsel in the settlement of their accounts, shall be allowed to charge to the estate the reasonable fees of counsel.Forward v. Forward, 6 Allen 494, 497.

As to costs recovered against an executor or administrator, see section 13.

Sect. 12. As to the reopening of accounts in cases of fraud, see Jennison v. Hapgood, 7 Pick. 1, 7. — Davis v. Cowdin, 20 Pick. 510, 512.

All his former accounts may be so far opened.This refers only to former accounts in the course of settlement of the same estate, and not to accounts relating to other estates, although the same person may be executor or administrator, and although the property of one be derived from the other. Granger v. Bassett, 98 Mass. 462, 467.

Except that any matter in dispute between two parties which had been previously heard and determined,fc. See Wiggin v. Swett, 6 Met. 194, 198.

SECT. 13. The amount paid by him thereupon shall be allowed.The payment of the amount is a condition precedent to its allowance. Thacher v. Dunham, 5 Gray 26.

CHAPTER XCIX.

OF INSOLVENT ESTATES.

For a case in which it was held that money paid to a deceased insolvent, having been kept distinct from his general funds, was not to be included in the general assets to be divided pro rata among the creditors, but might be recovered of the administrator in full, see Cunningham v. Munroe, 15 Gray 471, 478.

SECT. 1. If a creditor of the deceased hold security of less value than the amount of his debt, he can prove his claim only for the difference between the amount of the debt and the value of the security. Amory v. Francis, 16 Mass. 308. — Haverhill Loan & Fund Ass. v. Cronin, 4 Allen 141.–Middlesex Bank

v. Minot, 4 Met. 325. If he prove the whole claim, and receive a dividend thereon, he will be held to have waived his security. Hooker v. Olmstead, 6 Pick. 481.

A debt, which is not contingent, may be proved although not payable till a later day. Haverhill Loan & Fund Ass. 4 Allen 141, 144.

Sect. 2. When a commissioner dies, resigns, neglects to make return, or is removed, the probate court may fill the vacancy, &c. St. 1868, c, 327, s. 1. [St. 1863, c. 217, s. 2, repealed by St. 1868, c. 327, s. 3.]

Sect. 4. The court may allow such further time,fc. Such allowance may be made even after a report of the commissioners has been made and accepted. Walker v. Lyman, 6 Pick. 458, 460.

Not exceeding eighteen months.In case of pendency of an appeal a further time may be allowed. St. 1863, c. 217, s. 1.

" Shall make their return.” It seems that, as a general rule, commissioners of insolvency in making their return may reckon interest to the date of the death of the deceased debtor, or to the date of their return; but the creditors will be entitled, if the estate proves to be sufficient, to interest to the date of the decree of distribution, and even those claims which did not bear interest before the death of the debtor are to be allowed it after that time. Williams v. American Bank, 4 Met. 317.

SECT. 5. Is liable as a surety for the deceased.” This does not apply to all cases of sureties, but only to those where the holder of the debt cannot, or from some cause does not, prove his debt under the commission, or where the surety cannot, before the close of the commission, make the debt his own by payment. Cummings v. Thompson, 7 Met. 132, 134.

Or any other contingent claim.As to the meaning of " contingent," see Sears v. Wills, 7 Allen 430.

SECT. 8. Any heir, legatee, devisee, or creditor may appeal. St. 1865, c. 258.

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