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Full text of "The Revised Laws of the Commonwealth of Massachusetts : enacted November 21, 190l, to take effect January 1, 1902 : with the Constitution of the United States, the Constitution of the Commonwealth, and tables showing the disposition of the public statutes and of statutes passed since the enactment of the Public Statutes"

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THE 



REVISED LAAVS 



OF 



CI;t Cammantrrealtb af Massacbitsetts; 



Enacted JS'ovember 21, 1901, 
To TAKE Effect January 1, 1902. 

WITH THE 

CONSTITUTION OF THE UNITED STATES, THE CONSTITUTION OF THE 

C0]M]VI0N\VEALTH, and TABLES SHOWING THE DISPOSITION 

OF THE PUBLIC STATUTES AND OF STATUTES 

PASSED SINCE THE ENACTMENT OF 

THE PUBLIC STATUTES. 

P^RT II. 

Chapters 127 to 227 and Index. 




BOSTON : 
"WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 

18 Post Ofkice Square. 
1902. 



C 
H 



.>UM Ofi.. 



STATE LIBRA (?Y Of a AiiSACHUStlTS 
0EC30 1946 

diAt£ H<»U»t, BOSiTON 



• »* * *^ 



■ • :: ■>'.* 






PART II 



OF REAL AND PERSONAL PROPERTY AND THE 
DOMESTIC RELATIONS. 



TITLE I. 



OF THE TITLE TO REAL PROPERTY. 

Chapter 127. — Of the Alienation of Land. 

Chapter 128. — Of tlie Registration and Confirmation of Titles to Land. 

Chapter 129. — Of Estates for Years and at Will. 

Chaitek 130. — Of Easements. 

Chapter 131. — Of Homesteads. 

Chapter 132. — Of the Rights of a Husband in the Real Projjerty of his De- 
ceased Wife, and the Rights of a Wife in that of her 
Deceased Husljand. 

Chapter 133. — Of the Descent of Real Property. 

Chapter 134. — General Provisions relative to Real Property. 



CHAPTEE 127. 

OF THE ALIENATION OF LAND. 



Sections 1-6. — Conveyance Ijy Deed. 

Sections 7-23. — Acknowledgment and Recording of Deeds. 

Sections 2-1-27. — Barring of Estates Tail. 

Sections 28-32. — Conveyance of Estates subject to Remainders, etc. 

Section 33. — Instruments of Defeasance. 

Sections 31, 35. — Discharge of Mortgages. 

CONVEYANCE BY DEED. 

1 Section 1 . A deed which is executed and delivered by the per- Conveyance of 

2 son, or by the attorney of the person, who has authority therefor mt, ^i^n^ 

3 shall, .><ubject to the limitations of section four, be .sufficient, with- R.I'.'ssi.Vi- 

4 out any other act or ceremony, to convey land. u Pick. 224. p.' I.' ilo.Vi. 

12 Met. l.'iT. 13 Met. 79. 16 Gray, 309. 137 Mass. 584. 

[1221] 



1222 



ALIENATION OF LAND. 



[Chai-. \21. 



Effect of quit- 
claim deed. 
R. S. 511, § 5. 
G. S. 89, I 8. 
r. S. l-.'O, § i. 



Section 2. A deed of quit-claim and release .shall be .suffit'ieiit 1 

to convey all the estate which could la^x^uliy be conveyed by a 2 

deed of bargain and .sale. 3 

8 Pick. 143. Vi Pick. 82. 131 Mass. 200. 168 Mass. 203. 



Estate created 
without writ- 
ing to liave 
effect of estate 
at will. 
C. L. 32, § 1. 
169-2-3, l.i, § 1. 
178:^, 37, § 1. 
R. S. 59, § 29. 



Section 3. An estate or interest in land which is created with- 1 

out an instrument in writing signed by the grantor or by his 2 

attorney shall have the force and eifect of an estate at M'ill only, 3 

and no estate or interest in land shall be assigned, granted or sur- 4 

rendered unless by such writing or by operation of law. 5 



G. S. 89, § 2. 
P. S. 120, § 3. 



1 Pick. 43. 
9 Met. 462. 



o 

11 Met. 251. 
1 Gray, 571. 



4 Allen, SO. 
117 Mass. 351. 



1.50 Mass. 19. 
171 Mass. 33B. 



Effect of un- 
recorded 

deeds. 
C. L. 32, § 4. 
1697, 21, ^ 2. 
1783, 37, § 4. 
R.S. .59, §§1,28. 
G. S. 89, §§ 1, 3. 
P. S. 120, § 4. 
15 Mass. 439. 
13 Pick. 460. 
22 Pick. 295. 



Section 4. A conveyance of an estate in fee simple, fee tail or 1 

for life, or a lease for more than seven A'cars fi'om the making there- 2 

of, shall not be valid as against any person, except the grantor or 3 

lessor, his heirs and devisees and persons having actual notice of it, 4 

unless it, or an office copy as provided in section lifteen of chapter rt 

twenty-two, is recorded in the registry of deeds for the county or 6 

district in which the land to which it relates is situated. 7 



23 Pick. 80. 

24 Pick. 221. 

1 Met. 212. 

2 Met. 619. 

12 Met. 17, 157. 
6 Cusli. 163. 
9 Gray, 306. 



2 Allen, 115. 

3 Allen, 487. 

7 Allen, 16. 

8 Allen, 584. 

9 Allen, 80. 
12 Allen, 472. 
99 Mass. 248. 



101 Mass. 444. 
103 Mass. 491. 
113 Mass. 72. 

129 Mass. 210. 

130 Mass. 86. 

131 Mass. .510. 

132 Mass. 3-20. 



140 Mass. 112. 
146 Mass. 610. 
149 Mass. 3ln. 
162 Mass. 108, 473. 

167 Mass. 443. 

168 Mass. 118. 



Record to be 
evidence of 
delivery. 
1892, 256. 
161 Mass. 381. 



Section 5. The record of a deed, lea.se, power of attorney or 
other instrument, duly acknowledged or proved as hereinafter pro- 
vided and i>urporting to affect the title to land, shall be conclusive 
evidence of the delivery of .such instrument, in favor of purchasers 
for value without notice who claim thereunder. 



1 
2 

3 
4 
5 



Effect of con- 
veyance by 

disseisee. 
1891, 354. 
101 Mass. 179. 
172 Slass. 395. 
175 Mass. 355. 



Section 6. A conveyance of land, if otherwi.se valid, shall, 
notwithstanding disseisin or adverse possession, be as effectual to 
transfer the title as if the grantor were actually seised and possessed 
of such land, and shall vest in the grantee the rights of entry and 
of action for recovery of the estate incident to such title. 



1 
2 

3 
4 
5 



Acknowledg- 
ment of deed 
before record. 
C. L. 32, § 4. 
1697, 21, § 1. 
1783, 37, § 4. 
R. S. 69, § 22. 
G. S. 89. § 28. 
1869, 167. 
I*. S. 120, § 5. 
4 Mass. 641. 



acknowledgment AND RECORDING OF DEEDS. 

Section 7. No deed shall be recorded unless a certificate of its 1 

acknowledgment or of the proof of its due execution, made as here- 2 

inaftcr provided, is indor.sed upon or annexed to it, and such 3 

certificate shall be recorded at length with the deed to which it re- 4 

lates ; but the provisions of this section shall not apply to convey- 5 

ances from the United States. 6 

10 Pick. 72. 22 Pick. 86. 23 Pick. 80. 2 Cusli. 494. 174 Mass. 2!e. 



Acknowledg- 
ment, how 
mailc. 
178;<, 37, § 4. 
1829, 125, § 1. 
R. S. 69, §§ 12, 
IS, 22, 

18.56, 2,53, § 1. 
G. S. 89, §§ 18, 
19, 28. 

1867, 250, § 1. 
1876, 142. 
P. S. 120, § 6. 



Section 8. The acknowledgment of a deed shall be by the 1 

grantors or one of them, or by the attorney wlu) executes the deed, 2 

and, if made in this commonwealth, shall be made before a justice 3 

of the i^eace or notary public ; if made elsewhere in the United 4 

Stiites, before a justice of the peace, notaiy public, magistrate or .5 

commissioner appointed for the purpose b}' the governor of this (5 

commonwealth ; and, if in a foreign countrj', before such a justice, 7 



Chat. 127.] alienation of land. 1223 

8 notary, magistrate or cominis.sioner, or before an ambassador, min- epick. se. 

9 ister or consul of the United States or a consular officer of the n cush. ut. 

10 United States accredited to such country. The officer before iVAUenfwg. 

11 whom an acknowledgment is made shall indorse upon or annex to i63 Mass. 359. 

12 the deed a certificate of such acknowledgment. 

1 Section 9. The acknowledgment by a married woman may be Acknowiedg- 

2 taken in the same form as if she were sole, and mthout any exami- ma?riet^ 

3 nation separate and apart from her husband. isw'.'Sm, § 2. 

1 Section 10. K a grantor dies or removes from this common- Proof of execu- 

2 wealth without having acknowledged his deed, the due execution is^dea'd o™non^ 

3 thereof may be proved before any court of record in this common- lHy7fiI','§ 2. 

4 wealth by the testimony of a subscribing witness thereto. r!*!'. m'.Vu. 

G. S. 89, § 20 P. S. 120, § 7. 1 Mass. 68. 174 Mass. 292. 

1 Section 11. If all the subscribing witnesses to the deed are also —if the wit- 

2 dead or out of this commonwealth, the due execution thereof may be deaffor^nou- 

3 proved before such court by proving the handwriting of the grantor '''■*''^''"'- 



17t<7 



and of a subscribing witness. g. s. 89, §21. p. s. 120, §8. sMet. s&i. R. s. 59, §15. 



s 



1 Section 12. If a gi-an tor refuses to acknowledge his deed, the —if the 

2 grantee or any person who claims under liim may apply to a court fuses to aii. 

3 of record in the county in which the land lies, or in which the oTla^i^H. 

4 grantor or a subscribing witness to the deed resides, and such court JS^,; |i; | ?; 

' 5 shall thereupon issue a summons to the grantor to appear at a certain Jl- '^- ^s. §§ 16. 

6 time and jjlacc to hear the testimony of the subscribing witnesses, g- s. S9, §§ 22, 

7 Such summons, with a copy of the deed annexed, shall be .served p.'s. 120, §9. 

8 .seven days at least before. the time therein assigned for proving the 

9 deed, and at such hearing the due execution of the deed may be 

10 proved by the testimony of one or more of the subscribing wit^ 

11 nesses. 

1 Section 13. If a grantor refuses to acknowledge his deed and Jj^ssJs^are'*" 

2 the subscribing witnesses to such deed are all dead or out of this rtTg^^g^nt"""' 

3 commonwealth, the execution thereof may be proved before any R- 1- 5m. § js- 

4 court of record in this commonwealth by proving the handwriting p.' s. 126, §"16. 

5 of the grantor and of a suliscribing witness, the court first summon- 

6 ing the grantor for the pm-pose and in the manner provided in the 

7 preceding section. ' 

1 Section 14. A person who is interested in a deed which has not n°f Jptnowi*? 

2 been acknowledged may, before or during proceedings before a edged mav i.e 

« '^ , , ■ . ,. fi • I • filed in registry 

court tor })root ot the execution thereof, hie in the proper registiy of deeds. 

4 of deeds a copy of such deed, compared with the original by the i697,'2i"'§ s.' 

5 register ; and the filing of such copy shall, for thirty days thereafter, k.*^'. 59, §§19, 
(1 have the same effect as the recording of the deed, if the deed is g.' s. 89, §§ 25, 

7 within that time duly proved and recorded ; or if, at the expiration pg 1.30 §11. 

8 of said thirty daj's, such proceedings are pending, the effect of filing 

9 such copy shall continue until the expiration of seven days after the 
10 termination of such proceedings. 

1 Section I.t. The execution of a deed shall not be proved in the Deed without 

2 manner before provided unless it has at lea.st one subscribing wit- be' proved? 

3 ne.ss. g. s.89, §27. p. s. 120, §12. R. &. 59, §21. 



1224 



.VLIEXATIOX OF LAND. 



[Chap. 1:.^; 



Tnilorsumunt 

of CLTtillcate. 

nsi, 37, § 5. 

K. S. o'J, §§ 17, 

2*2. 

G." S. 89, §§ 23, 

2S. 

P. S. 120, 5 13. 



Suction 16. A certificate of the proof of the e.Kecution of a 1 

deed .shall be indor.sed upon or aniie.xed to the deed by the clerk or 2 

register of the court or by the judge before whom such proof is ;> 

made, and the certificate shall state whether the grantor was present 4 

at the hearing. 5 



Powers of 
attorney to 
convey real 
estate. 
1S49, 20.'). 



Section 17. The provisions of law relative to the acknowledg- 1 

ment and recording of deeds shall a{)ply to letters of attorney for 2 

the conveyance of real estate. '6 

G. S. 89, § 29. 1879, 86. P. S. 120, § 14. 22 Pick. 8.-J. 



Forms of ac- 
knowledg- 
ment. 
1894, 253, § 1. 



Proof or 
acknowledir- 
mcnt of (li'cci, 
et<-., in other 
st'ites or terri- 
tories. 
1894, 2flS, § 3. 



Certificate of 
otlicer to l)e 
attached to 



Section 18. The following form.s of acknowledgment of convey- 1 

ances or of other written instruments may be used : (Caption speci- 2 

tying the state and place where the acknowledgment is taken.) 3 

1. Acknowledgment of a natural person acting in his own right: 4 

On this day of 19 , before me personally appeared 5 

A B (or A B and C D), to me known to be the person (or persons) (> 

described in and who executed the foregoing instrument, and ac- 7 

knowledged that he (or they) executed the same as his (or their) 8 

free act and deed. 2. Acknowledgment of a natural person act- 9 

ing by attorney' : On this day of 19 , before me per- 10 

sonally appeared A B, to me known to be the person Mho executed 11 

the foregoing instrument in behalf of C D, and acknowledged that 12 

he executed the same as the free act and deed of said C D. .5. 13 

Acknowledgment of a corporation or joint .stock association : On 14 

this day of 19 , before me appeared .\ B, to me jier- 15 

sonally known, M'ho, being by me dul}' sworn (or affirmed), did .say 1() 

that he is the president (or other officer or agent of the corporation 17 

or association) of (describing the corporation or a.ssociation) and 18 

that the .seal affixed to .said instrument is the corporate seal of said 1!) 

corporation (or association), and that said instrument was signed 20 

and sealed in behalf of said corporation (or association) by author- 21 

ity of its board of directors (or trustees), and said A B acknowl- 22 

edged said instrument to be the free act and deed of .said corj)oration 23 

(or association). If the corjioration or association has no corpo- 24 

rate seal, the words " the seal affixed to said instrument is the 25 

corporate seal of said corporation (or association), and that" shall 2(> 

be omitted, and at the end of the affidavit shall be added the words 27 

"and that said corporation (or as.st)ciation) has no coi'porate seal". 28 

(Signature and title of the officer taking the acknowledgment.) 2t> 

Section 19. The proof or acknowledgment of a deed or other 1 

written instrument which is required to be proved or acknowledged 2 

in order to be entitled to lie recorded or to l)c admitted in evidence. 3 

if made in another state may be made before any officer of such 4 

state who is authorized by the laAvs thereof to take the proof and 5 

acknowledgment of deeds, and, if taken and certified as herein pro- fi 

vided, shall be entitled to be recorded in this commonwealth and 7 

may be admitted in evidence in the same manner and with like ellect 8 

as proofs and acknowledgments which are taken before an\' of the 9 

officers named in section eight. 10 

Section 20. Tn order to entitle any conveyance or written in- 1 

strument which has been acknowledged or proved under the pro\'i- 2 



Chap. 127.] alienation of land. 1225 



onveyaiice, 
etc. 



3 sions of the preceding section to be admitted in evidence or recorded I 

4 in this connnonwealth, there shall be subjoined or attached to the is**. 253, §i 
,T oertiticate of proof or acknowledgment, signed b}' such officer, a cer- 

() titicate of the secretary of state of the state in which such olEcer 

7 resides, under the seal of such state, or a certificate of the clerk of 

8 a court of record of such state in the county in which said officer 

9 resides or in which he took such proof or acknowledgment, under 

10 the seal of the court, stating that such officer was, at the time of 

11 taking such proof or acknowledgment, duly authorized thereto in 

12 said state, and that said secretary of state or clerk of court is 

13 well acquainted with his handwriting and verily believes that the 

14 signatm'c affixed to such certificate of proof or acknowledgment is 

15 genuine. 

1 Section 2 1 . The following form of authentication of the proof Form of au- 

2 or acknowledgment of a deed or other written instrument, if taken ordei'is "' 

3 in ail}' other state, or anj' form substantially in compliance with the fn o'ther stafel 

4 provisions of the three preceding sections, may be used: (Caption is^)*. '^ss, § 5. 

5 specifying the state, county or place where the authentication is 
(i made.) I, , clerk of the in and for said count}', which 

7 court is a court of record having a seal, (or, I, , the secretary 

8 of state of such state or territory) do hereby certify that , by 

9 and before whom the foregoing acknowledgment (or proof) was 

10 taken, was, at the time of taking the same, a notary public (or other 

11 officer) residing (or authorized to act) in said county, and Mas duly 

12 authorized by the laws of said state (territory or district), to take 

13 and certify acknowledgments or proofs of deeds of land in said 

14 state (territory or district), and further that I am well acquainted 

15 with the handNvinting of said , and that I verily believe that 

16 the signatiu"e to said certificate of acknowledgment (or proof) is 

17 genuine. In testimony whereof, I have hereunto set my hand and 

18 affixed the seal of the said court (or state) this day of , 

19 19 . 

1 Section 22. The proof or acknowledgment of a deed or other AcknowiortK- 

2 instrument Avhich is requu'ed to be proved or acknowledged in order witiunit the 

3 to be entitled to be recorded or to be admitted in evidence, if made S94!'263f§'6^^' 

4 ^vithout the United States, may be made before any officer named 

5 in section eight or before any ambassador, minister, consul, vice- 

6 consul, charge d'affaires or consular agent of the United States, resi- 

7 dent in any foreign country or port, and when certified by him under 

8 his seal of office it may be recorded in this commonwealth and 

9 admitted in evidence in any court in this conmionwealth in the 

10 same manner and with like effect as if duly proved or acknowledged 

11 within this commonwealth. 

1 Section 23. The provisions of the five preceding sections shall ,fed!Sg°8ec-'^*" 

2 not prevent the acknowledgment of conveyances or other written ^jJiS^^gg 

3 instruments in any form and manner heretofore lawfully used, nor 

4 the recording thereof if so acknowledged, nor require formalities 

5 other than those heretofore required. 



1226 ALIENATION OF LAND. [ChAP. 127. 

BARRING OF ESTATES TAIL. 

''^':','!'\"'.i!!..^'il, Section 24. A person seised of land as tenant, in tail may 1 

III.IN 1 i'lIYtj' 111 1 »■ 

i-yi"6o'''^i t'onvey such land in fee simple by a deed in coninion form, as if he 2 

R. s, 59, § 3. were seised thereof in fee simple ; and such conveyance shall bar the 3 

estate tail and all remainders and reversions expectant thereon. 4 

p. S, 1-20, 5 15, 15 Pick. IM. 5 Gray, 523. 99 JtaBS. 3G4. 1.38 Mass. 376. 15S Mass. 74. 
9Mas8. IBl. 3 Gray, 162. 4 Alien, 477. 102 Mass. '262. 147 Mass. 17. 159 Mass. 4. 

andAMi'.a'i'nder SECTION 25. If land is held by One pcrson for life with a Vested 1 

man in tail remainder in tail in another, the tenant for life and the remainder 2 

fee'simpie. mail mav convey such land in fee simple by their deed or deeds in 3 

1804 59 * . . . I . 

R. s. 69, §4. common form, as if the remainder had been limited in fee simple; 4 

p.' s.' 120, § ie. and such deed or deeds shall bar the estate tail and all remainders 5 

and reversions expectant thereon. 6 

fq'utoiL"' Section 26. Equitable estates tail, in possession or remainder, 1 

il5i'i4*fi' ^^^^ ^^^ remainders and reversions expectant thereon, may be barred 2 

G. s. 89, §6._ in the same manner as legal estates tail and the remainders and re- 3 

versions expectant thereon. 4 

bere!fuir"(fto SECTION 27. Tlic pci'son to whom an equitable fee simplc is con- 1 

™t"r-'^ '"^fc'"' veyed pursuant to the preceding section shall, upon recjue.st therefor, 2 

1851, 14, § 2. be entitled to a conveyance of the outstanding legal estate from the 3 

p.' s.' 126, §'i8. person in whom such legal estate is then or thereafter vested in trust. 4 

CONVEYANCE OF ESTATES SUBJECT TO REMAINDERS, ETC. 

8ubje°Vto"con. SECTION 28. If land is subject to a contingent remainder, ex- 1 

tingeutre- ecutoiy devise or power of appointment, the probate court for the 2 

1868, ;287,'§§i',2. couut}' in which such land is situated ma}', upon the petition of any 3 

i87i| 322] §§ 1-3. person Avho has an estate in possession of such land, and after 4 

p.'s'.S,Vi9- notice and other proceedings as hereinafter required, appoint one 5 

12,3 Mall: lia or more trustees and authorize him or them to sell and convey (5 

KB Mass. 308. sm.li ];ind or any part thereof in fee simple, if such sale and con- 7 

veyance ajipcars to the com't to be necessar}" or expedient, or to 8 

mortgage the same, either with or without a power of sale, for such 9 

an amount, on such terms and for such purposes as may seem to the 10 

court judicious or expedient; and such conveyance or mortgage 11 

shall be valid and binding upon all parties. 12 

i^iblerfS)*^' Section 29. If land is subject to a vested remainder or rever- 1 

vested re. siou, the probatc court for the county in which such land is situated 2 

180,5, iM, § 1. may, u[)()ii the petition ot any person who lias either an estate in 3 

jjosscssion or the remainder or reversion in such hind, and after 4 

notice and other proceedings as hereinafter required, apjjoint one 5 

or more trustees and authorize him or them to sell and convey such 6 

land, or any part thereof, in fee simple, if such .sale and conveyance 7 

ajijiear to the court to be necessary or expedient ; and such convey- 8 

ance shall be valid and binding upon all persons. 9 



1897, 136. 



rSlKHitSn"" Section 30. Notice of a petition under the provisions of the two 1 

Is-'i"' ■!•"' I ■'■ preceding sections shall be given, in such manner as the court may 2 

p. s'. 120, § 20. order, to all ]>ersons who arc or who may become interested in 3 

1895 IKS S '* ' " 

le'i'iiass.'sis. the land to which the petition relates, and to all persons whose 4 



Chap. 127.] alienation of land. 1227 

5 issue, not in being, may become interested therein ; and the court 

6 shall of its own motion in every case appoint a suitable person 

7 to appear and act therein as the next friend of all minors, persons 

8 not ascertained, and persons not in being, who are or may become 

9 interested in such land ; and the provisions of sections twenty-three 

10 and twenty-four of chapter one hundred and forty-five, which are 

11 not inconsistent herewith, shall applj' in the case of such appoints 

12 ment. 

1 Section 31. A trustee who is appointed under the provisions Bond, duties, 

2 of section twenty-eight or twent3^-nine shall give bond in such form niaking'the'**^ 

3 and for such amount as the com't appointing him may order, and mortgage. 

4 he shall receive and hold, invest or apply the proceeds of any sale }|S*' *^' |§j'' ^■ 

5 or mortgage made hy him for the benefit of the persons who would igJ-}^'!!^^- 

6 have been entitled to the land if such sale or mortgage had not been 

7 made, and the probate court of any county in which any part of 

8 such land is situated shall have jurisdiction of all matters thereafter 

9 arising relative to such trust. 

1 Section 32. If land is charged with the payment of money, saieofiand 

2 either in fixed amounts or in annuities for a life or lives or for years, rilarges for 

3 the supreme judicial court shall have jurisdiction in equity in the anhuuiel^ltc. 

4 county in which any part of such land is situated, upon the petition p™' ilo l^-iV'' 

5 of the persons holding title thereto subject to the charge of such 
G payment, and after notice and a hearing, to authorize them to sell 

7 and to con\'ey by private sale or public auction the whole or any 

8 portion o^ such land in fee simple and free from such charges, 
;i wliether present or future, certain or contingent, and the coiu't shall 

10 in such case provide by its decree for the payment of the amounts 

11 charged upon such land by placing the whole or any portion of the 

12 proceeds of the sale thereof in the hands of a trustee to be appointed 

13 by it, b}' the purchase of annuities for the persons entitled to 

14 receive the amounts so charged, or by any other means which shall 
1.') be considered just and reasonable. Such trustees shall give bond 
1(5 in such sum as the court may order, shall, under the direction of 

17 the court, manage and account for the trust fund and shall distrib- 

18 ute the income thereof accorclinof to its decree. 



instruments of defeasance. 

1 Section 33. K a deed purports to contain an absolute con- Effect of un- 

2 veyance of land, but is made defeasible by a deed, bond or other [nsti™nent8 

3 instrument, the original deed shall not be thereb}' alfected, as i'iot'^S!'^'""*' 

4 against any person other than the maker of the instrument of defeas- ^ I' Is | S' 
.J ance and his heu-s and devisees and persons havino- actual notice of f v^-.i-^'j -*• 

I ^ 5 Pick. 4.o0. 

t) it, unless such instrument is recorded in the registry of deeds for 7 pick. i,56. 

1 . . 2 Cush 494 

7 the count}^ or district in which the land to which it relates isscushlno! 

8 situated. us Mass. 389. 



discharge of mortgages. 

1 Section 34. A mortgage may be discharged by an entry ac- Mortgages, 

2 kno wledging the satisfaction thereof, made on the margin of the record charged. 

3 of the mortgage in the registry of deeds and signed by the mort- \fg^\ l]\ 1 1[ 



1228 



UEGISTRATION, ETC., OF TITLES TO LAND. [ChAP. 126. 



U.S. 59, §33. gagoQ, or by bi.s executor, adiiiinistrator or a.ssignee, and .such entry 
iI'to.'iti.^'*"' i^hall have the .same eU'ect as a deed of release dul}' acknowledged 
■^■.'^■'^'^^^' ii'id recorded. One of two or more joint holders of a mortgage 
mMaVlso ^^y ^^ discharge it, or he may di.scharge it by a deed of release 
duly acknowledged and recorded. 



4 
5 
6 
7 
8 



Murtjjrapee 
li.tble for 
refusing to 
discharjre. 
16SI7, -n, § i. 
I7S3, 37, I 6. ■ 
R. S. 59, § 34. 
G. S. 89, § 31. 
P. S. 120, § 26. 



Section 35. If a mortgagee, or his executor, administrator or 1 

assignee, after full performance of the condition of his mortgage, 2 

whether before or after breach of such condition, refuses or neglects 8 

for seven days after recjuest therefor and after a tender of his rea- 4 

sonable charges, to make such discharge or to execute and acknowl- 5 

edge a deed of release of the mortgage, he shall be liable in an action 6 

of tort for all damages caused by such neglect or refusal. 7 



CHAPTEE 128. 

OF THE REGISTRATION AND CONFIRMATION OF TITLES TO LAND. 



Sections 1-17. 
Sections 18-48. 
Sections 49-55. 



Sections 

Sections 

Section 

Sections 

Section 

Sections 

Sections 



66-58. 
59-62. 

63. 
64-68. 

69. 
70-78. 
79-86. 



Sections 87, 88. 
Sections 89, 90. 
Sections 91, 92. 
Sections 93-102. 
Section 103. 



Section 


104 


Section 


105, 


Section 


106 


Section 


107, 


Section 


108 


Section 


109 


Section 


110 



-Court of Land Registration. 
-Original Registration. 

- Voluntary' Dealing with Land after Original 

Registration. 
-Conveyance in Fee. 
-Mortgages. 
-Leases. 
-Trusts. 
-Legal Incidents of Registered Land. 

- Attaclinients and Otlier Liens. 

-Pending .Suits, Judgments, Decrees and Par- 
titions. 

- Insolvency. 
-Eminent Domain. 

-Transfer by Descent and Devise. 
-Assurance Fund. 
-Powers of Attorney, 
-Lo.st Duplicate Certificates. 
-Adverse Claims. 

-Snrriiidcr of Dnjilicate Certificates. 
-Amendment and Alteration of Certificates of 
Title. 

- Service of Notices after Registration. 
-Fees for Registration. 

- Penalty. 



Court of land 
rcjjistrjition. 

l««i, 131, § 1. 

I'.KHJ, 3.>», § 1. 
175 Mass. 71. 
179 U. S. 405. 



COURT OF LAND REGISTRATION. 

Section 1 . The court of land registration shall be a court of 
record and .shall have exclusive original jurisdiction of all ajiplica- 
tions for the registration of title to land within the commonwealth, 
with i)ower to hear and determine all (juestions arising upon such 
applications, and of such other questions as may come l)efore it 
under the provisions of this chapter, subject to the right of appeal, 



1 
2 
3 

4 

(> 



Chap. 12iS.] uegistration, etc., of titles to land. 1229 

7 as hereinafter provided. The proceedings upon such applications 

8 shall, be proceedings in rem against the land, and the decrees shall 

9 operate directly on the land and vest and establish title thereto. 

10 The court shall hold its sittings in Boston, but may adjourn from 

11 time to time to such other places as the public convenience may 

12 require. In the county of Sufl'olk, the board of aldermen of the 

13 city of Boston, and in other counties, the county commissioners, 

14 shall pro\ide suitable rooms for the sittings of said court in the 

15 same building with, or convenient to, the probate court or the 
l(j registry of deeds, and shall provide all necessary books and such 

17 printed blanks and stationery for use in registration proceedings as 

18 the court may order. 

19 The court shall have jurisdiction throughout the conunonwealth, 

20 shall always be open, except on Sundays and legal holidaj-s, and 

21 shall have a seal with which all orders, processes and papers made 

22 by or proceeding from the court and requiring a seal shall be 

23 sealed. Notices, orders and processes of said court may run into 

24 any county and be returnable as the court directs. 

25 The court shall from time to time make general rules and forms 

26 for procedure, conforming as nearly as may be to the practice in 

27 the probate courts. Such rules and forms, before taking eftect, 

28 shall be approved by the supreme judicial court or by a justice 

29 thereof. 

1 Section 2. There shall be two judges of the court, one of whom court of land 

2 shall be appointed, commissioned and qualified as judge of land [u!f|tt>Jo".*'°' 

3 registration and the other as associate judge of land registration. HH.f'.'c^i^Ll'. 



1898, 563, § 3. 1900, 354, § 1. 



1. 



1 Section 3. The court may be held by one judge and simul- Yg^^^^^'i'i. 

2 taneous sessions may be held, either in the same county or in 

3 ditt'erent counties, and shall be so arranged as to insure a prompt 

4 discharge of the business of the court. 



'O^ 



1 Section 4. Processes issuing fr-om the court shall bear teste of ^98"^2°?g 

2 the judge of land registration, shall be under the seal of the court 

3 and be signed by the recorder. 

1 Section 5. In case of a vacancy in the office of judge of land j^dlloUo'act, 

2 registration, or of his interest, absence or inability to perform his j^gyf^^K g 

3 duties, the associate judge shall perform them. 

1 Section (i. The governor, with the advice and consent of the — recorder of. 

2 council, shall appoint a recorder, who shall be clerk of the court ^*' ^'S • 

3 and who shall hold his office for the term of five years. He shall . 

4 attend the sessions of the court and keep a docket of all causes, 

5 and shall affix the seal of the court to all processes or papers which 
(i require a seal. 

1 Section 7. The recorder shall be under the direction of the —duties and 

2 court, shall have the custody and control of all papers and docu- ?«"?dlr ot. 

3 ments filed with him under the provisions of this chapter and shall ^^'■'*' ■"''■^' ^ **• 



1230 



REGISTRATION, ETC., OF TITLES TO LAND. [ChAI'. 128. 



cart'fully number and index them. vSaid papers and documents shall 4 

be kept in Boston in the land registration office, which shall be near 5 

the court of land registration. The recorder may, with the sanction 6 

of the court, employ such assistants and messengers as may be 7 

necessaiy. 8 



Recorder to act 
In auv county. 
189S, 56i, § a.' 



Section 8. The recorder may act in any county, and after land 1 
has lieen registered, he may make all memoranda atiecting the title 2 
and enter and issue certificates of title as herein provided. 3 



Register of 

deeds, duties 

ot. 

1898, 562, 5 10. 



Section i). The register of deeds in each distinct in which land 1 

has been registered shall have the same authority as the recorder to 2 

make all memoranda affecting the title of such land, and to enter 3 

and issue new certificates of title as herein provided, and to affix 4 

the seal of the court to such certificates and duplicate certificates of 5 

title ; but in executing the provisions of this chapter, registei'S 6 

of deeds shall be subject to the general direction of the recorder, 7 

in order to secure uniformity throughout the commonwealth ; and, in 8 

the performance of their duties under the provisions of this chapter, 9 

the official designation of registers of deeds shall be assistant 10 

recorders for their respective registry districts. In case of the 11 

death or disabilitv of the recorder, the assistant recorder for the 12 

Suffolk district shall perform the duties of the recorder. 13 



Oath and bond 
of recorder. 
1898, 56-2, § 11. 



Section 10. The recorder and all assistant recorders shall be 1 

sworn liefore the judge of land registration, and a record thereof 2 

shall be made. They shall give bond in a sum to be fixed by the 3 

court, for the fiiithful performance of their official duties, before -4 

entering upcm the same. They ma}' administer oaths to persons 5 

who appear before them in matters pertaining to the registration of (j 

land, if an oath is required. They shall keep accurate accounts 7 

of all money received as fees or otherwise, which shall be subject 8 

to examination by the controller of county accounts, in the same SI 

manner a.s accounts of registers of deeds, and they shall, except as 10 

provided in section twelve, jiay over such money (juarterly to the 11 

treasurer and i-eceiver general. In case of the absence of an assist- 12 

ant recorder, the assistant register for the district, or if there is 13 

no assistant regi.ster, the jjcrson acting as clerk in the office of the 14 

register of deeds, shall perf(n-m the duties of the assistant I'ecorder, 15 

and the assistant recorder shall be responsible for him. 16 



Examiners of 

title. 

1898, 562, § 12. 



Section 1 1 . The judge of land regi.stration may appoint one or 1 

more examiners of title in each county, who shall be attorneys at 2 

law and who shall be' subject to removal by the supreme judicial 3 

court. 4 



.Salaries and 
expenses of 
judge, etc. 
1898, .Vi2, § 13. 
190U, 3H, § 2. 



Section 12. The salary of the judge of land registration shall 1 

be forty-five hundred dollars a year and the salary of the associate 2 

judge of land registration shall be four thousand dollars a year. 3 

The salaries of the recorder, assistant recorders, examiners of titles 4 

and all a.ssistants and messengers shall be fixed by the governor and 5 

council. All salaries and expenses of the court shall be paid by the (i 



CllAP. 128.] REGISTRATION, ETC., OF TITLES TO LAND. 1231 

7 commonwealth, except the salaries of the assistant recorders and 

b the expenses incurred by them under the provisions of this chapter, 

y which shall be paid by the respective counties. All fees collected 

10 by the assistant recorders, except those received upon the filing of 

11 applications, M'hich shall be transmitted with the applications to the 
1'2 recorder, shall be paid to their respective counties. 

1 Section 13. Every order, decision and decree of the court shall ^SSrTOurt 

2 be subject to appeal to the superior court for the county in which J^Hf ■ v? ? • | .]■'• 

3 the land lies, to which such order, decision or decree relates. The its iiass. eo'. 

4 appeal shall be claimed and entered within thirty days after the date 

5 of such order, decision or decree, and upon the entry of the appeal 
t; the appellant shall file in the superior court copies of all material 
7 papers in the case, certified by the recorder. Appearances and 
iS answers shall be filed in the superior court within thirty days after 
II the appeal has been entered, unless for good cause fui'ther time is 

10 allowed. Upon the motion of either party, the cause shall be ad- 

11 A'anced for sjieedy hearing, and shall be tried by the court, unless 

12 either party within the time allowed for entering appearance claims a 

13 trial by jury. In such case, issues for the jury shall be fi-amed. 

14 Questions of law arising in the superior court may be taken to the 
1.") supreme judicial court for revision by any party aggrieved by any 
1() opinion, ruling, direction or judgment of the court, in the same 

17 manner as in proceedings at law in said com't. 

18 Questions of law arising in the court of land registration on any 

19 decision or decree ma^^ be taken b}' any party direct to the sujireme 

20 judicial court for revision, in the same manner as questions of law 

21 are taken to that court from the superior court. The court of land 

22 registration, after any decision or decree dependent upon a question 

23 of law, may report such decision or decree, with so much of the 

24 case as is necessary for understanding such questions of law, for 

25 the determination of the supreme judicial court. 

1 Section 14. The clerk of the supreme judicial court or of the certiflcation of 

2 superior court shall, upon the determination of proceedings pend- peiiate court. 

3 ing therein, certify to the court of land registration the final deci- islw; isii f sf " 

4 sion, and the court of land registration shall enter the final decree 

5 in the cause, in accordance with the certificate. 

1 Section 1.5. If the appellant does not duly prosecute his appeal ,^1"""™,?° 

2 Mathin the time limited, the original order, decision or decree shall J^y'g'^gL s,g 

3 stand as if no appeal had been taken. 

1 Section 1(i. The court of land registration may enforce its Enforcement 

2 orders or decrees in all matters over which it has jurisdiction in isss, 562, §'17. 

3 the same manner as decrees are enforced in equity and, upon the 

4 request of the judge of land registration, the sheriii" of any county 

5 shall assign a deputy to attend the sittings of the court in that 

6 county. 

1 Section 17. Costs shall be taxed and the collection enforced as costs. 

2 in the superior court sitting in equity, unless a different provision " ' ' " 

3 is made. 



12;}2 



REGISTKATION, ETC., OF TITLES TO LAND. [CUAl'. 128. 



AppUcition 

for registni- 

tlon. 

1898, 662, § 19. 

1900, 354, § 3. 



ORIGINAL KEGISTKATIOX. 

Section 18. Application for registration of title may be made 
by the folloM'ing persons : — 

" First, The person or persons who claim, singly or collectively, 
to own the legal estate in fee simple. 

Second, The person or persons who claim, singly or collectively, 
to have the power of appointing or disposing of the legal estate in 
fee simple. 

Third, Infants and otlier persons under disability, by their legally 
appointed guardians ; Imt the person in whose behalf the application 
is made shall be named as applicant. 

Fourth, Corporations, by any officer dul}- authorized b^- a vote 
of the directors. 

One or more tenants for a term of years, which is regarded as a 
fee simple in section one of chajtter one hundred and twenty-nine, 
shall not make application except jointly with those who claim the 
reversionary interest which makes up the fee simple at common 
law ; nor shall a mortgagor, except as hereinafter provided, make 
application without the "consent in writing of the mortgagee ; nor 
shall a married woman make application witiiout the consent in wi-it- 
ing of her husband, unless she holds the land as her separate prop- 
erty or has a poMcr to appoint the land in fee simple, or is living 
apart from her husband for a justifiable cause which has been estab- 
lished bv a decree of court : nor shall one or more tenants who 
claim undivided shares less than a fee simple in the whole land de- 
scribed in the application make application for registration. If the 
holder of a mortgage does not consent to the making of the ajiplica- 
tion, it mav be entered nevertheless, and the title registered, sub- 
ject to the niortgage, which may be dealt with or foreclosed as if 
the land sulijcct toit had not been registered. The decree of regis- 
tration in such case shall describe the mortgage, and shall state that 
it has not been registered and that registration is made subject to 
it, and shall provide that no subsequent certificate shall be issued 
and no further papers registered relative to such land after a fore- 
closure of such mortgage. 



•> 
4 
.') 
I> 
7 
8 
l» 
10 
11 
12 
18 
14 
15 
l(i 
17 
18 
lil 
20 
21 
22 
23 
24 
25 
2(J 
27 
28 
29 
30 
31 
32 
33 
34 



Record of 
memorandum 
of application. 

1898, 562, § 20. 

1899, 131, § 4. 



Section 19. The application may be filed with the recorder, or 1 

with the assistant recorder at the registry of deeds for the district 2 

in which the land, or any portion thereof, lies. Upon filing his 3 

application, the applicant shall forthwith cause to be tiled in the rcg- 4 

istry of deeds for the said district or districts a memorandum stat- r> 

ing that application for registration has been filed, the date and (i 

place of filing and a copy of the description of the land contained in 7 

the application. Such memorandum shall be recorded and indexed 8 

by the register with the records of deeds. Each assistant recorder !> 

shall alstr keep an index of all applications in his district, and in 10 

every case in which the application is filed with him shall transmit 11 

the application, the papers and plans filed therewith and such mem- 12 

oi-andum, when recorded, to the recorder. 13 



Form and con. SECTION 20. The application shall be in -m-iting, signed and 

tent8 of appll- , , .1 ' , , , Z.\ ■ j • \ • 

cation. sworn to bv the ai)i)licant or bv a person duly authorized in Ins 

1898,562,5 21. -- _.-. . ■' . - ' ,. . . ,• ,• .• i.ii 



behalf. If "there is more than one ai)plicant, the application shall 3 



(."lIAT. 1:.'.S.] UEGISTRATION, ETC., OF TITLES TO LAND. 1233 

4 be .signed and sworn to by or in behalf of each. It shall contain a 

5 description of the land, and shall state whether the applicant is niar- 
(> ried ; and if married, the name of the wife or husband; and if un- 

7 married, whether he or she has been married, and if so, when and 

8 how the marriage relation terminated ; and if by divorce, when, 
il Avhere and by what court the divorce was granted. It shall also 

10 state the name in full and the address of the aj)plicant, and the names 

11 and addresses of the adjoining owners and occupants, if known ; and 

12 if not known, it shall state what search has been made to find them. 

13 It maj' be in form as follows : 

COMMONWEALTH OF MASSACHUSETTS. 

I'o the Honorable the Judge of (he Court of Land Registration. 

I (or we) the undersigned, hereby apply to have the land hereinafter described 
brought under the operation and provisions of chapter one hundred and twenty- 
eight of the Revised l^aws relative to the registration and eontirmation of titles to 
land, and to have my (or our) title therein registered and continued. And I 
(or we) declare: (1) That I am (or we are) the owner (or owners) in fee 
sinii)le of a certain parcel of land with the buildings (if any, and if not, strilie 
out the clause), situate in (here insert accurate description). (2) That said 
land at the last assessment for taxation was assessed at dollars - and the 

buildings (if any) at dollars. (3) That I (or we) do not know of any 

mortgage or encumbrance affecting said land, or that any other person has any 
estate or interest therein, legal or equital)le, in possession, remainder, reversion 
or expectancy. (If any, add "other than as follows," and set fortli each clearly.) 
(4) That I (or we) oljtained title (if by deed, state name of grantor, date and 
place of record, and tile the deed or state reason for not filing. If in any other 
way, state it). (.">) That said land is occupied. (If occupied state name 

in full, residence and post ofHce address of occupant and tlie nature of his oc- 
cupancy. If unoccupied, insert "not".) (6) That the names in full and ad- 
dresses as far as known to me (or us) of the occupants of all lands adjoining 
said land are as follows : (Give street and numljer if possible. If names not 
known, state whether inquiry has been made, and what intjuiry.) (7) That the 
names and addresses so far as known to mc (or us) of the owners of all lands 
adjoining the above land are as follows : (Same directions as above.) (8) That 
I am (or we are) married. (Follow literally the directions given in section 
twentj- of chapter one hundred and twenty-eight of the Revised Laws.) (9) That 
my (or our) full name (or names) , residence and post office address is (or are) 
as follows : 

Dated this day of in the year nineteen hundred and 

(Schedule of documents.) (Signature.) 

COMMONWEALTH OF MASSACHUSETTS. 

SS. 19 . 

Then personallj' appeared the above named , known to me to be the 

signer (or signers) of the foregoing application, and made oath that the state- 
ments made therein, so far as made of his (or their) own knowledge are true, 
and so far as made upon information and belief, that he (or they) believe them 
to be true, before me, 

Juki ire of (he Peace. 

1 Section 21. If the applicant is not a resident of the common- Agent for non- 

2 wealth, he shall tile with his application a paper appointing an agent Sflw,' § 22. 

3 residing in the connnonwealth, giving his name in full and post 

4 office address, and shall therein agree that the service of any legal 

5 process in proceedings under or growing out of the application shall 

6 be of the .same legal efl'ect if made on said agent as if made on the 

7 applicant within the commonwealth. If the agent dies, or removes 

8 from the commonwealth, the applicant shall forthwith make another 



1234 



REGISTRATION, ETC., OF TITLES TO LAND. [ChAP. 128. 



appointment ; and if he fails so to do, the court may dismiss the 9' 
application. 10 



Amendments 

to application. 
ISaS, 862, § 23. 



Section 22. Amendments to the application, including Joinder, 
•substitution, or discontinuance as to parties, shall be allowed by 
the court at any time upon terms that are just and reasonable ; but 
all amendments shall be in M'riting, signed and sworn to, like the 



original. 



1 

2 
■A 
4 



Application 
may include 

eev'eral par- 
cels. 

isy8, 662, § 24. 
1899, 131, § 5. 



Section 23. An application may include two or more con- 1 

tiguous parcels of land, or two or more parcels which constitute 2 

one holding under one and the same title, within the .same registry 3 

district. But two or more persons who claim in the same parcels 4 

different interests which collectivel}'- make up the legal estate in fee 5 

simple in each parcel, shall not join in one application for more than t> 

one parcel unless their interests are alike in each and every parcel. 7 

The com't may at an}' time order an apjilication to be amended by 8 

striking out one or more of the parcels, or by a severance of the 9 

application. . 10 



— as to land 

bounding on 

way. 

1898, 562, § 25. 



Section 24. If the application describes the land as bounded 1 

on a public or private way, it shall state whether or not the aji- 2 

plicant claims any and what land within the limits of the wa^-, and 3 

Avhether the applicant desires to have the line of the way deter- 4 

mined. 5 



Filing, plans 
and muni- 
ments. 
1898, 662, § 26. 



Section 25. The applicant shall file with the application a plan 1 

of the land, and all original muniments of title within his control 2 

which are mentioned in the schedule of documents. Such original 3 

muniment*! as affect land not included in the application may be 4 

withdrawn upon filing certified copies tliereof. If an application is 5 

dismissed or discontinued, the applicant may, with the consent of 6 

the coiu't, withdraw such original muniments of title. 7 



Application 

suDject to 

mortgage or 

lease. 

189H, .'162, § 27. 

1900, 354, § 4. 



Section 2(5. If an application is made subject to an existing 
recorded mortgage, the liolder of which has consented thereto, or 
subject to a recorded lease for a term exceeding seven years, or 
if the registration is to be made subject to such a mortgage or lease 
executed after the time of the application and liefore the date of 
the transcription of the decree, the ai)i)Iicant, before a decree of 
registration is entered, shall, if required by the court, file a certi- 
fied copy of such mortgage or lease, and shall cause the original, 
or, in the discretion of the court, a certified copy thereof, to be 
presented for registration ; and no registration fee shall be charged 
for registering such original mortgage or lease or such certified 
copy. 



1 

2 

3 

4 

5 

G 

7 

8 

!t 

10 

11 

12 



Additional 

tacts. 

1898, 662, § 28. 



Section 27. The court may by general rule require additional I 
facts to be stated in the application and may require the filing of 2 
additional papers. 3 



San^VCTspend- SECTION 28. After the filing of an application, and bcforc rcgis- 1 

ing appiica. tratiou, the land therein described may be dealt with, and instruments 2 

tion, etc. , • , 1 ,1 1 1 . 1 -i* t •! 

1898, 562, § 29. relating thereto shall be recorded in the .same manner, as it no such 6 



Chap. li's.J registration, etc., of titles to land. 1235 

4 application had been filed ; but all instruments left for record which 

5 relate to such land shall be indexed in the usual manner in the 

6 registry indexes and in the index of applications. As soon as an 

7 application is disposed of, the recorder shall make a memorandum 

8 stilting the disposition of the case, and shall send the same to the 

9 register of deeds for the proper district or districts, who shall record 

10 and index it with the records of deeds and in the index of appli- 

11 cations. If a decree of I'egistration of title is entered the land 

12 included in the decree shall, when the decree is transcribed as pro- 

13 vided in section forty, become registered land, and thereafter no 

14 deeds or other instruments which relate solely to such land shall be 

15 recorded with the records of deeds, but shall be registered in the 
1(5 registration book and filed and indexed with the records and docu- 
17 ments relating to registered land. 

1 Section 29. Innnediately after the filing of an application, the Reference to 

Oil' cxiiiuinpr. 

2 court shall enter an order referring it to one of the examiners of isss, 562, § 30. 

3 title, who shall search the records and investigate all ftxcts stated in 

4 the application, or otherwise brought to his notice, and shall file in 

5 the case a report thereon, concluding with a certificate of his 

6 opinion upon the title. The recorder shall give notice to the ap- 

7 plicant of the filing of such report. If the opinion of the examiner 

8 is adverse to the applicant, he shall be allowed by the court a rea- 

9 sonaljle time in which to elect to proceed further or to withdraw his 

10 application. The election shall be made in -writing and filed with 

11 the recorder. 

1 Section 30. If, in the opinion of the examiner, the applicant Publication of 

-» 1 1 j_'^i 11 1 1 i* • • . , notice of appb- 

z has a good title as alleged, and proper tor registration, or, it the cation. 

3 applicant after an adverse opinion of the examiner, elects to pro- ns^Masl. 71. ' 

4 ceed further, the recorder shall, immediately upon the filing of the ^'^ u- ^- ■'"^• 

5 examiner's opinion, or upon the filing of the applicant's election, as 

6 the case may be, cause notice of the filing of the application to be 

7 published in a newspaper published in the district in which any 

8 portion of the land lies. The notice shall be issued by the order 

9 of the court, attested by the recorder, and shall be in form substan- 
10 tially as follows : — 

registration of title. * 

Suffolk, ss. Court of Land Registration. 

To (here insert the names of all persons known to have an adverse interest, 
and the adjoining owners and occupants, so far as known), and to all whom it 
may concern : 

Whereas an application has been presented to said court by (name or names 
and address in full) to register and confirm his (or their) title in the following 
described land (insert description) . 

You are hereby cited to appear at the court of land registration to be held at 
, in said county of on the day of A.D., , at 

o'clock in the forenoon, to show cause, if any you have, why the jirayer of said 
application should not he granted. And unless you appear at said court at the 
time and iilace aforesaid your default will be recorded, and the said application 
will be taken as confessed, and you will be forever barred from contesting said 
application or any decree entered thereon. 

Witness Esquire, judge of said court, this day of in the 

year nineteen hundred and 

Attest : 

Recorder. 



1230 



UKUISTUATION, KTC, OF TITLES TO LAND. [ClLM'. 1:2S. 



Tleturn cla 
notice, 
is'is, fii;-2, § 
1900, 354, § 



Section 31. The return day of said notice shall be not less 1 

thiin twenty nor more than sixt}' days after tll<^ date of issue. The 2 

court shall also, within seven days after publication of said notice 3 

in a newspaper, cause a copy thereof to be sent by the recorder by 4 

mailing a registered letter to every person named therein whose 5 

address is known. The court shall also cause a duly attested copy (i 

of the notice to be posted in a conspicuous place on each parcel of 7 

land included in the application, by a sherift" or deputj^ sherift", 8 

fourteen days at least before the return day thereof, and his return it 

shall be conclusive proof of such service. If the applicant requests 10 

to have the line of a public way determined, the court shall order 11 

notice to be given by the recorder, by mailing a registered letter 12 

to the mayor of the city or to one of the selectmen of the town or 13 

towns in which the land lies, or, if the way is a highway, to one of 14 

the county commissioners of the county or counties in which the 15 

land lies. If the land borders on a river, navigable stream or 16 

shore, or on an arm of the sea where a river or harbor line has 17 

been established, or on a great pond, or if it otherwise appears 18 

from the application or the proceedings that the commonwealth ma}' 19 

have a claim adverse to that of the applicant, notice shall be given 20 

in the same manner to the attorney general. The court may also 21 

cause'other or further notice of the application to be given. The 22 

court shall, so tar as it considers it possible, require proof of actual 23 

notice to all adjoining owners and to all persons who appear to 24 

have any interest in or claim to the land included in the applica- 2;") 

tion. Notice to such person by mail shall be by registered letter. 2(5 

The certificate of the recorder that he has served the notice as 27 

directed b}^ the coiu't, by jjublishing or mailing, shall be filed in 28 

the case before the return da}', and shall be conclusive proof of 29 

such service. 30 



Guardian ail 
litem. 

1898, m2, § 33. 

1899, 131, § B. 



Answer to aji. 
Ucation. 
1898, 562, § 34. 



Section 32. Upon the return of the notice, and upon proof of 1 

service of all orders of notice is.sucd, the court may appoint a 2 

disinterested person to act as guardian ad litem for minors, and for 3 

all per.sons not in being, who are unascertained, unknown or out 4 

of the commonwealth, and who may have an interest. The com- 5 

pensation of the guardian shall be determined by the court and paid (! 

as part of the expenses of the court. 7 

Section 33. Any person who claims an interest, whether named 1 

in the notice or not, may appear and tile an answer on or befori> the 2 

return day, or within such further time as the court may allow. 3 

The answer shall state all objections to the application, shall .set 4 

forth the interest claimed by the person who files it, and shall be 5 

signed and sworn to by him or by a person in his behalf. 6 



Order of gen- 
eral default; 
effect. 

1898 wa, § 36. 
173 Mass. 71. 



Section 34. If no person appears and answers within the time 1 

allowed, the court may at once ujion motion of the applicant, no 2 

reason to the contrary appearing, order a general default to be re- 3 

corded and the application to he taken for confessed. By the de- 4 
scription in the notice, "to all whom it may concern", all the . 5 

world are made parties defendant and shall be concluded by the (5 

default and order. After such default and ord(!r, the court may 7 

enter a decree confirming the title of the applicant and ordering 8 



ClIAl'. ll^.S.] KEGISTRATION, ETC., OF TITLES TO LAND. 1237 

9 re<ristration thereof. The court shall not bo bound by the report 

10 of the examiner of title, but may requke other or further proof. 

1 Section 35. If, in any case, an appearance is entered and ^lac^fj ""*'" 

2 answer filed, the cause shall be set down for hearing on the motion igql*?"!:, ,„ 

3 of either party, but a default and order shall first be entered against 

4 all persons who do not appear and answer, in the manner provided 

5 in the preceding section. The court ma^^ refer the cause or any 
(5 part thereof to one of the examiners of title, as master, to hear the 

7 piU'ties and their evidence, and luake report thereof to the court. 

8 His report shall have the same ett'ect as that of a master appointed 
!l by the superior court in equity, and he shall proceed according to 

10 the rules of said court, applicable to masters, except as the same 

11 may l)e modified 1)}' the rules of the court of land registration. 
1-2 The court may, in any case before decree, require a survey to be 

13 made for the purpose of determining boundaries, and may order 

14 durable bounds to be set, and referred to in the application, by 

15 amendment. The expense of survey and l)Ounds shall be taxed in 
IG the costs of the case and may be apportioned among the parties as 

17 justice may require. If no persons appear to oppose the applica- 

18 tion, such expense shall be borne by the applicant. 

1 Section 36. If the court finds that the applicant has not title Dismissal, etc., 

2 proper for registration, a decree shall l)e entered dismissing the ib«8','562',''f37™ 
3. application, and such decree may be ordered to he Avithout preju- 

4 dice. The applicant ma}' withdraw his application at an}* time 

5 l)efore final decree, upon terms to be determined b_\' the court. 

1 Section 37. If the court after a hearing finds that the applicant pe'"™? of con. 



•) 



has title as stated in his application, and proper for reoistration , a registration. 

3 decree of contii-mation and registration shall be entered, which shall ns iias's. 71. " 

4 bind the land and (luiet the title thereto, subject onlj^ to the excep- ''" u- ■'^- *^^- 

5 tions .stated in the following section. It shall be conclusive upon 
() and against all persons, including the commonwealth, whether 

7 mentioned by name in the application, notice or citation, or in- 

8 eluded in the general description "to all whom it may concern". 
S) Such decree shall not be opened by reason of the absence, infancy 

10 or other disability of any person affected thereby, nor by any pro- 

11 ceeding at law or in equity for reversing judgments or decrees; 

12 subject however to the right of any person deprived of land or of 

13 any estate or interest therein by a decree of registration obtained by 

14 fraud to file a petition for review within one year after the entry of 

15 the decree, provided no innocent purcha.ser for value has acquired an 
IG interest. If there is any such purchaser, the decree of registration 

17 shall not be opened but shall remain in full force and effect forever, 

18 subject only to the right of appeal hereinbefore provided. But 

19 any person who is aggrieved b}' such decree in any case may pursue 

20 his remedy by action of tort against the applicant or against any 

21 other person for fraud in procuring the decree. 

1 Section 38. Every applicant who receives a certificate of title Tenure of 

2 in pursuance of a decree of registration, and every subsequent pur- tmcaTeof*titi'e. 

3 chaser of registered land who takes a certificate of title for value \l^\ 131; 1 2^- 

4 and in good faith, shall hold the same free from all encumbrances 



1238 



REGISTRATION, ETC., OF TITLES TO LAND. [ChAP. 128. 



except those noted on the certificate, and any of the following en- 5 

cuinbrances Avhich may be existing : (j 

First, Liens, claims or rights arising or existing under the laws 7 

or constitution of tlie United States \vhich the statutes of this com- 8 

monwealth cannot require to appear of record in the registry. 9 

Second, Taxes, within two years after the}' have been committed 10 

to tlie collector. 11 

Thu-d, Any highway, town wa}', or any private wa}' laid out 12 

under the provisions of section sixty-five of chapter forty-eight if 13 

the certificate of title does not state that the bomidary of such way 14 

has been determined. 15 

Fourth, Any lease for a term not exceeding seven years. 16 

Fifth, Any liability to assessment for betterments, or other 17 

statutory liability which may attach to land in this commonwealth 18 

as a lien prior to, or independent of, the recording or registering 19 

of any paper ; but if there are easements or other rights appurtenant 20 

to a parcel of registered land which for any reason have failed to be 21 

registered, such easements or rights shall remain so appurtenant 22 

notwithstanding such ftiilure, and shall be held to pass with the 23 

laud until cut ofl' or extinguished by the registration of the servient 2-1 

estate, or in anv other manner. 2.5 



Contents of 

decree. 

1898, 662, § 40. 



Section 39. Every decree of registration shall bear date of the 1 

year, month, day, hour and miiuite of its entry and shall be signed 2 

by the recorder. It shall state whether the owner of the land regis- 3 

tered is married or unmarried, and if married, the name of the hus- 4 

band or wife. If such owner is under disabilit}' it shall state the 5 

nature of the disability, and if a minor, shall state his age. It shall (> 

contain a description of the land as finally determined by the court, 7 

shall set forth the estate of the owner and also, in such manner as 8 

to show their relative priorit}*, all particular estates, mortgages, 9 

easements, liens, attaclunents and other encumbrances, including 10 

rights of husband or ^vife, it" any, to which the land or the owner's 11 

estate is subject, and ma}' conttiin any other matter properly to be 12 

determined in pursuance of this chapter. The decree shall be stated 13 

in a form convenient for transcription upon the certificates of title 14 

hereinafter mentioned. 15 



Transcription 
of decree in 
registry. 
1898, 562, § 41. 



Section 40. Immediately upon the entry of the decree of regis- 1 

tration, the recorder shall send a certified copy thereof, under the 2 

seal of the court, to the register of deeds for the district or districts 3 

in which the land lies, and the register, as assistant recorder, shall 4 

transcribe the decree in a book to be called the registration book, 5 

in which a leaf or leaves in consecutive order shall be devoted ex- 6 

clusively to each title, and note therein the day, hour and minute 7 

when said decree is ti'anscril)ed. The entry made by the assistant 8 

recorder in this book in each case shall be the original certificate of 9 

title, and shall be signed by him and sealed with the seal of the '10 

court. All certificates of title shall be numbered consecutively, be- 11 

ginning with number one. The assistant recorder shall in each case 12 

make an exact duplicate of the original certificate, including the 13 

seal, but putting on it the words " Owner's duplicate certificate", 14 

and deliver it to the owner or to his duly authorized attorney. In 15 

case of a variance between the owner's duplicate certificate and the 16 



CUAr. 128.] KEGISTUATION, ETC., OF TITLES TO LAND. 1239 

17 original certificate, the original shall prevail. The certified coj^v of 

18 the decree of registration shall be filed and numbered by the assist- 

19 ant recorder, with a reference noted on it to the place of record of 

20 the original certificate of title. If an application includes land 

21 h'ing in more than one district the court shall cause the part laying 

22 in each district to be described separately by metes and bounds in 

23 the decree of registration, the recorder shall send to the assistant 

24 recorder for each registry- district a cop}' of the decree containing a 

25 description of the land within that district, the assistant recorder 
2(i shall register the same and issue an owner's duplicate therefor and 

27 thereafter, for all matters pertaining to i-egistration, the portion in 

28 each district shall be treated as a sepai-ate parcel of land. 

1 Section 41. The certificate fii'st registered in pursuance of a Transcription, 

2 decree of registration in regard to any parcel of land shall, in the efeH?e^from 

3 registration book, be entitled " Original certificate of title, entered ?*<^, se-i, § 42. 

4 pursuant to decree of the court of land registration, dated at" (stat- 

5 ing time and place of entry of decree and the number of the case). 
() The certificate shall take effect trom the date of the transcription of 

7 the decree. Subsequent certificates relating to the same land shall 

8 be in like form, but shall be entitled "Transfer from No. " (the 
il number of the last previous certificate relating to the same land), 

10 and also the words '* Originally registered " (date, volume and page 

1 1 of registration ) . 

1 Section 42. If two or more persons are registered owners as Duplicate cer- 

2 tenants in common, or otherwise, one owner's duplicate certificate estates ?n com. 

3 ma}' be issued for the whole land or a separate duplicate may be "gyg'/se^, § 43. 

4 issued to each for his undivided share. 

1 Section 43. A registered owner who holds one duplicate cer- ^^JfJ^^^j'^g''''* 

2 tificate for several distinct parcels of land may surrender it, with the \^^^^^^ ''"^• 

3 approval of the court, and take out several certificates for poitions issts, 562, § «. 

4 thereof, or if he holds separate duplicate certificates for several dis- 

tinct parcels, he may siurrender them and, with like approval, take 
G out a single duplicate certificate for the whole land, or several cer- 

7 tificates for difl'erent portions thereof. An owner who subdivides a 

8 tract of registered land into lots shall file with the recorder a plan 

9 thereof, when applying for a new certificate or certificates, and the 

10 court, before issuing tlie same, shall cause the plan to be verified, 

11 and require that all boundai'ies, streets and passageways shall be 

12 distinctly and accurately delineated thereon. 

1 Section 44. The obtaining of a decree of registration and the certificate an 

2 entry of a certificate of title shall be regarded as an agreement run- Sfn| TithhaSd! 

3 ning with the land and binding upon the applicant and all his sue- ^**^' *'' ^ *^' 

4 cessors in title that the land shall be and forever remain registered 
.5 land and subject to the provisions of this chapter and of all acts in 

6 amendment hereof. 

1 Section 45. No title to registered land in derogation of that of f^^fSeci^'. 

2 the registered owner shall be acquired by prescription or adverse i^^s, 662, § m. 

3 possession . 



1240 



REGISTRATION, ETC., OF TITLES* TO LAND. [ChAP. 128. 



Evidence, 
what to be. 

1898, 562, § 47, 



Section 46. The original certificate in the registration book, 1 

an}' cop3' tliereof duly certified under tlie t^ignature of the recorder 2 

or an ai^sistant recorder and the seal of the court, and also the '^ 

owner's duplicate ceitificate, shall be received as evidence in all the 4 

courts of the commonwealth, and shall be conclusive as to all mat- 5 

ters contained therein, except so far as otherwise provided in this (> 

chapter. 7 



Contents of 
certificate. 

1898, 662, § 48. 



Section 47. Every certificate of title shall set forth the names 1 

of all the persons whose estates make up the estate in fee simple in 2 

the whole land, and duplicate certificates may be issued to each per- ii 

son, but the recorder or assistant recorder shall note in the registra- 4 

tion book and on each duplicate, to whom such duplicate was issued. 5 



Indexes, 
record books, 

1898, 662, § 49. 



Section 48. The recorder, under the direction of the court, 1 

shall make and keep indexes of all applications and of all decrees 2 

of registration, and shall also index and classify all papers and 3 

instruments filed in his ofiice which relate to applications and to reg- 4 

istered titles. The recorder shall also, under the direction of the 5 

court, cause forms of indexes and registration and entry books to be (> 

prepared for the use of the assistant recorders. The coiu't shall 7 

prepare and adopt convenient fomis of certificates of title and shall 8 

also adopt general forms of memoranda to be used b}' the assistant !l 

recorders in registering the common forms of conveyance and other 10 

instruments to express briefly their eflect. 11 



voluntary dealing avith land after original registration. 



Owner of reg. 
istered land 
may convey, 

1898, 662, § 50. 



Section 49. An owner of registered land ma}' convey, mort- 
gage, lease, charge or otherwise desil with it as fullv as if it had not 
been registered. He ma}' use forms of deeds, mortg-ages, leases or 
other voluntary instruments like those now in use and which are 
sufficient in law for the purpose intended. But no deed, mortgage 
or other voluntary instrument, except a will and a lease for a term 
not exceeding seven years, which purports to convey or aflect reg- 
istered land, shall take eflect as a conveyance or bind the land, but 
shall operate only as a contract between the parties, and as evidence 
of authority to the recorder or assistant recorder to make registra- 
tion. The act of registration only shall be the opei'ative act to con- 
vey or affect the land and in all cases the registration shall be made 
in the office of the assistant recorder for the district or districts in 
which the land lies. 



1 
2 
3 

4 

r> 

(> 

7 

8 

9 

10 

11 

12 

13 

14 



Notice of en. 
cumbrances. 

1898, 562, § 51. 



Section 50. Every conveyance, lien, attachment, order, decree, 
instrument or entiy affecting registered land, which would under 
other provisions of law, if recorded, filed or entered in the registry 
of deeds, aflect the land to which it relates, shall, if registered, 
filed or entered in tlie office of the assistant recorder of the district 
in which the land to which such instrument relates lies, be notice to 
all persons fi'om the time of such registering, filing or entering. 



1 
2 

3 
4 
5 
(5 
7 



Estate less 
than fee 
simple, how 
registered. 
1898, 662, § 62. 



Section 51. No new certificate shall be entered or issued upon 1 
any transfer of registered land which does not divest the title in fee 2 
simple from the owner or some one of the registered owners. All 3 



Chap. 128.] registration, etc., of titles to land. 124:1 

4 interests in registered land less than an estate in fee simple shall be 

5 registered b}' filing with an assisttmt recorder the instrument which 
(5 creates or transfers or claims such interest and by a brief memo- 

7 randum thereof made bv an assistant recorder upon the certificate 

8 of title, and signed bv him. A similar memorandum shall also be 
!• made on the owner's duplicate. The cancellation or extinguishment 

10 of such interests shall be registered in the same manner. 



of 



1 Section 52. If the assistant recorder is in doubt upon an}' Reference 

2 question, or if any party in interest does not agi-ee as to the proper tions. '^ 

1 i- l" J • r 1 J i. ISa**, 562, § 53. 

.-5 memorandum to be made in pursuance ot any deed, mortgage or 

4 other \0luntar3' instrument presented for registi'ation, the question 

f) shall be referred to the court for decision, either on the certiticate 

(i of the assistant recorder stating the question upon which he is in 

7 doubt, or upon the suggestion in writing of any party in interest ; 

8 and the court, after notice to all parties and a hearing, shall enter 
!l an order prescribing the form of memorandum to the assistant 

10 recorder, who shall make registration in accordance therewith. 

1 Section 53. Every deed or other voluntary instrument which V"'"*'^!^"'';''- 

•*• 111 • i"-i T • ileiKe, etc., to 

2 IS presented for refjistration shall contain or have indorsed upon it be stated. 

3 the full name, residence and post office address of the grantee or ■ • ■ 

4 other person who ac(|uires or claims an interest under such instru- 

5 ment, and ever^' deed shall also state Avhether the grantee is married 
ti or unmarried, and if man-ied, the name in full of the husband or wife. 

7 Any change in the residence or post office address of such person 

8 shall be indorsed by an assistant recorder on the original instru- 

9 ment, upon receiving a sworn statement of such change. All 
10 names and addresses shall also be entered on all certificates. No- 
ll tices and processes issued in relation to registered land may be 

12 served upon any person in interest b}' mailing them to the address 

13 so given, and shall be binding, whether he resides within or without 

14 the coumionwealth. 

1 Section 54. No new certificate of title shall be entered, and no Presentntiou of 

2 memorandum shall be made ui)on ain- certificate of title b}' the rateonVutiV' 

3 recorder or any assistant recorder, in pursuance of any deed or rate.^etc?*'""'" 

4 other voluntary instrument, unless the owner's duplicate certificate ^'*^*' "*""' ^ °^' 

5 is presented with such instrument, except in cases expressly pro- 
G vided for in this cha}iter or upon the order of the court, for cause 

7 shown, and whenever such order is made, a memoi-andum thereof 

8 shall be entered on the new certificate of title and on the owner's 
[) du])licate. The production of the owner's duplicate certificate, 

10 whcne\'er a voluntary instrument is presented for registration, shall 

11 be conclusive authority from the registered owner to the recorder 

12 or an assistant recorder to enter a new certificate or to make a 

13 memorandum of registration in accordance with such instrument, 

14 and the new certificate or memorandum shall be binding iqion the 

15 registered owner and upon all persons claiming under him, in favor 
1(5 of every pm-chaser for value and in good faith. In all cases of 

17 registration which are procured by fraud, the owner may pursue all 

18 hi.-, legal and equitable remedies against the parties to such fraud, 
ly without prejudice however to the rights of any innocent holder for 



124:2 REGISTRATION, ETC., OF TITLES TO LAND. [ClIAP. 128. 

value of a certificate of title. After the transcription of tlio decree 20 

of registration on the original application, an}' subset jucnt rcgistra- 21 

tion which is procui'ed by the presentation of a forged duplicate 22 

certificate, or of a forged deed or other instrument, shall be null 23 

and void. In case of the loss or theft of an owner's duplicate 24 

certificate, notice shall be sent bv the owner or b}- a person in his 25 

behalf to the assistant recorder for the district in which the land 26 

lies, as soon as the loss or theft is discovered. 27 

DSpllcates^ind SECTION 55. Each assistant recorder shall keep an entry book 1 

copiS^'^ in which he shall enter, in the order of their reception, all deeds 2 

1898, 562, § 56. and other voluntary instruments, and all copies of writs or other 3 

processes filed with liim which relate to registered land. He shall 4 

note in such book the 3'ear, month, da}', hour and minute of recep- 5 

tion of all instruments, in the order in which they are received. H 

They shall be regarded as registered from the time they are so 7 

noted, and the memorandum of each instrument, when made on the S 

certificate of title to which it refers, shall bear the same date. 9 

Ever}' deed or other instrument, voluntary or involuntary, which 10 

is so filed ^rith the recorder or assistant recorder, shall be numbered 1 1 

and indexed, and indorsed with a reference to the proper certificate 12 

of title. All records and papers relative to registered land in the 13 

office of the recorder or of an assistant recorder shall be open to 14 

the public in the same manner as probate records, subject to such l.*") 

reasonable regulations as the recorder, under the direction of the l(i 

court, may make. 17 

Duplicates of all deeds and voluntary instruments which are filed 18 

and ri'gistered may be presented with the originals, shall be attested lit 

and sealed by the recorder or an assistant recorder, indorsed with 20 

the file number and other memoranda on the originals and may be 21 

taken away by the person ^\'ho presents them. 22 

Certified copies of all instruments which are filed and registered 23 

may also be obtained at any time, upon payment of the assistant 24 

recorder's fees. 25 

CONVEYANCE IN FEE. 

fee^Jf regis* '° SECTION 56. An owner who desires to convey his registered 1 

™c'*i?.°'l*;, land or anv portion thereof in fee shall execute a deed of convev- 2 

1898, 562, § 57. i • *i i ^ • ' •, 

1899, 131, §8. auce, which the grantor or the grantee may present to the assistant 3 

recorder in the district in Mhich the land lies. The grantor's dupli- 4 

cate certificate shall be produced and presented at the same time. 5 

The assistant recorder shall thereupon, in accordance with the rules 6 

and instructions of the court, make out in the registration book a 7 

new certificate of title to the grantee, and shall prepare and deliver 8 

to him an owner's duplicate certificate. The assistant recorder 9 

shall note upon the original and duplicate certificates the date of 10 

transfer, the volume and page of the registration book in which the 11 

new certificate is registered and a reference by number to the last 12 

preceding certificate. The grantor's duplicate certificate shall be 13 

surrendered and the word "cancelled" .shall be .stamped upon it. 14 

The original certificate shall also be .stamped "cancelled". The 15 

deed of conveyance .shall be filed and indorsed with the number 16 

and place of registration of the certificate of title of the land 17 

conveved. 18 



Chap. 1:^8.] kegistratiox, etc., of titles to land. 1243 

1 Section 57. If a deed in fee is for a part only of the land p<^e(Jofpor. 

■,.-,, , ^ /».ii . lion or regis- 

2 described in a certificate of title, the assistant recorder shall also, "^l^'^.'je- 

3 in accordance with the rules and instructions of the court, enter a luiwl sal; § e. ' 

4 new certificate and issue an owner's duplicate to the grantor for the 

5 part of the land which is not included in the deed. In every case 
G of transfer, the new certificate or certificates shall include all the 

7 land described in the original and surrendered certificates ; but no 

8 new certificate to a grantee of a part only of the land shall be 

9 invalid by reason of the failure of the assistant recorder to enter a 

10 new certificate to the grantor for the remaining unconveyed por- 

11 tion. If the land which is described in a certificate of title is 

12 divided into lots, designated by numbers or lettei's, with measure- 
18 ments of all the bounds, and a plan of said land has been filed with 

14 the recorder and verified pursuant to the provisions of section 

15 forty-tlii'ee, and a certified copy thereof is recorded in the registra- 

16 tion book with the original certificate when the registered owner 

17 makes a deed of transfer in fee of one or more of such lots, the 

18 assistant recorder may, instead of cancelling such certificate and 

19 entei'ing a new certificate to the grantor for the part of the land 

20 not included in the deed of transfer, enter on the original certificate 

21 and on the owner's duplicate certificate a memorandum of such 

22 deed of transfer, with a reference to the lot or lots thereby con- 

23 vej'ed, as designated on said plan, and that the certificate is 

24 cancelled as to such lot or lots. Every certificate with such memo- 

25 randum shall be as efl'ectual for the purpose of showing the grantor's 

26 title to the remainder of the land not conve3'cd as if the old cer- 

27 tificate had been cancelled and a new certificate of such land had 

28 been entered ; and such process may be repeated so long as there 

29 is convenient space upon the original certificate and the owner's 

30 duplicate certificate for making such memorandum of sale of lots. 

1 Section 58. If, at the time of any transfer, encumbrances or statement of 

2 claims ad\erse to the title of the registered owner appear upon the isls^sliCrsI)!^' 

3 registration book, they shall be stated in the new certificate or cer- 

4 tificates, except so far as they may be simultaneously released or 

5 discharged. 

MORTGAGES. 

1 Section 59. The owner of registered land may mortgage it by Mortgage of 

2 executing a mortgage deed. Such deed may be assigned, extended, flfd.''^'^'^ 

3 discharged, released in whole or in part, or otherwise dealt with by i^"*- se^, § eo. 

4 the mortgagee by any form of deed or instrument which is sufficient 

5 in law for the purpose. But such mortgage deed, and all instru- 

6 ments which assign, extend, discharge and otherwise deal with the 

7 mortgage, shall be registered, and shall take effect upon the title 

8 only from the time of registration. 

1 Section 60. Registration of a mortgage shall be made in the Registration of 

2 following manner : — The owner's duplicate certificate shall be pre- isXooCfei. 

3 sented to the assistant recorder with the mortgage deed, and he 

4 shall enter upon the original certificate of title and also upon the 

5 owner's duplicate certificate a memorandum of the purport of the 

6 mortgage deed, the time of filing and the file number of the deed, 

7 and shall sign the memorandum. He shall also note upon the 



V2U 



KEGISTUATION, ETC., OF TITLES TO LAXD. [ChAP. 128. 



mortgage deed the time of filing and a reference to the volume and 8 

page of the registration book in which it is registered. The assist- !• 

ant recorder shall also, at the request of the mortgagee, make out 10 

and deliver to him a duplicate of the certificate of title like the 1 1 

owner's duplicate, except that the words " ^Iortg-agee"s duplicate" 12 

shall be stamped upon it in large letters diagonall}- across its face. 13 

A memorandum of the issue of the mortgagee's duplicate shall be 14 

made upon the original certificate of title. 15 



Assignment, 
etc., of mort- 



gage 
If - 



.888, 662, § 62. 



Sectiox 1)1. If a mortgage upon which a mortgagee's duplicate 
has been is.sued is assigned, extended or otherwise dealt with, the 
mortgagee's duplicate shall be presented AN-ith the instrument which 
assigns, extends or otherwise deals with the mortgage, and a memo- 
randum of the instrument shall be made upon the mortgagee's 
duplicate certificate. When the mortgage is discharged or other- 
^vise extinguished the mortgagee's duplicate certificate shall be 
surrendered and stamped "cancelled". The production of the 
mortgagee's duplicate certificate shall be conclusive authority to 
register the instrument therewith presented, subject however to all 
the provisions and exceptions contained in section fifty-five so ftu* 
as they are applicable. 

A mortgage on registered land may be discharged by the mort- 
gagee in person on the registration book in the same manner as a 
mortaBoe on unregistered land mav be discharged bv an entrv on 



the record book in the registry of deeds, and such 
be attested by an assistant recorder. 



discharge 



shall 



I 

8 
S) 

10 

11 
12 
13 
14 
15 
1(5 
17 



Foreclosure of 

mortgages. 
ISSS, 662, § 63. 



Section <)2. Mortgages of regi.stercd land may be foreclosed like 1 

mortgages of unregistered land ; but in case of foreclosure by entry 2 

and possession, the certificate of entry recjuired by section two of 3 

chapter one hundred and eighty-seven shall be filed and registered 4 

b}' an assistant recorder within thirty days after the entry, in lieu 5 

of recording. .Vfter possession has been obtained by tlie mortgagee (! 

or his assigns, by entr}' or b}' action, and has continued for the 7 

time required by law to complete the foreclosure, he or his assigns 8 

may petition the court of land registration for the entry of a new !) 

certificate, and the court, after notice to all parties in interest, shall 10 

have jurisdiction to hear the cause, and may order the entry of a 11 

new certificate on such terms as ecjuity and justice may recjuire. 12 

In case of foreclosure b}' action as provided in chapter one hun- 13 

dred and eighty-seven, and by exercising the power of .sale in the 14 

mortgage under the direction of the com't as provided therein, a cer- 15 

tified copy of the final decree of the court confirming the sale may, lU 

after the time for appealing therefrom has expired, be filed with the 17 

assi-stant recorder, and the purchaser shall thereupon be entitled to 18 

tlie entry of a new certificate. 11^ 

In case of foreclosiure bv exercising the power of sale \\nthout 20 

a previous decree of court, the affidavit recjuired b}' section fif- 21 

teen of chapter one hundred and eighty-seven .shall be filed and 22 

registered with the assistant recorder, in lieu of recording. The 23 

purchaser at the foreclosure .sale or his assigns may thereupon at 24 

any time present the deed under the power of .sale to the assistant 25 

recorder for filing and registration, and obtain a new certificate, 2(5 

after the owner's duplicate certificate and the mortgagee's duplicate, 27 



Chap. 1:28.] registration, etc., of titles to land. 1245 



28 if an}', has been delivered up and cancelled ; but the provisions of 

25) this chapter shall not prevent the mortgagor or other person in 

30 interest, i)rior to the entry of a new certificate of title, from 

31 directly impeaching, by bill in equity or otherwise, any foreclosure 

32 proceedings which aftect registered land. 

33 After a new certificate of title has been entered, no judgment 

34 which may be recovered on the mortgage note for any balance due 

35 thereon sliall operate to open the foreclosure or atfect the title to 

36 registered laud. 

LEASES. 

1 Section 63. Leases of registered land for a term of seven years Leases otreg- 

2 or more shall be registered, in lieu of recording. A lessee's dupli- ilgs^M'iri'M. 

3 cate certificate may be issued to the lessee upon his recpiest, subject 

4 to the provisions hereinbefore made relative to a mortgagee's dupli- 

5 cate certificate, so far as they are applicable. 



TRUSTS. 

1 Section 64. If a deed or other instrument is filed for the pur- Trusts in reg- 

2 pose of transferring registered land in trust, or upon any equitable i8^^m2!'§66. 

3 condition or limitation expressed therein, or for the purpose of 

4 creating vr declaring a trust or other equitable interest in such land 

5 without transfer, the particulars of the trust, condition, limitation 
6 . or other equital)le interest shall not be entered on the certificate ; 

7 but a memorandum thereof shall be entered by the words "in trust", 

8 or "upon condition", or other apt words, and by a reference by 

9 number to the instrument which authorizes or creates the same. A 

10 similar memorandum shall be made u))on th(> duplicate certificate. 

11 The assistant recorder shall note upon the original instrument which 

12 creates or declares the trust or other equitable interest a reference 

13 l)y number to the certificate of title to which it relates, and to the 

14 volume and page in the registration book in which it is registered. 

15 If the instrument which creates or det'lares a trust or other equitable 

16 interest is already recorded in the registry of deeds or of probate, 

17 a certified copy may be filed by the assistant recorder and registered. 

1 Section 6."). ]f the instrument which creates or declares a trust —with power 

2 or other e(juitable mtcrest contains an express power to sell, mort- how expressed. 

3 gage or deal with the land in any manner, such power shall be stated " ' ' 

4 in the certificate of title l\v the words " with power to sell", or 

5 " power to mortgage", and by apt woi'ds of description in case of 

6 other powers. No instrument ^vhich ti'ansfers, mortgages or in any 

7 way deals mth registered land held in trust shall be registered, 

8 unless the power thereto enabling is expressly conferred in the in- 

9 strument of trust, or unless the decree of a court of competent juris- 

10 diction on a bill for instructions or other proceeding has construed 

11 the instrument in favor of the power. In such case a certified copy 

12 of such decree may be filed with the assistant recorder, and he shall 

13 make registration in accordance therewith. 

1 Section C\i]. "When a new trustee of registered land is appointed o^^fpoinP 

2 by the supi-eme judicial court, the superior court or the probate m^"' <" "ew 

3 coml, a new certificate shall be entered to him upon presentation to isgs, 582, § 67. 



12-16 REGISTRATION, ETC., OF TITLES TO LAND. [ChAI'. 128. 

the assistant recorder of a certified copy of tlie decree aud the sur- 4 
render of the duplicate certificate. 5 



Implied, etc., 

trusts, how 
established. 
1898, 562, § 68. 



Section (57. Whoever claims an interest in registered land by 
reason of an}' implied or constructive trust shall file for registration 
witli the assistant recorder a statement thereof which shall contain 
a description of the land, and a reference to the number of the cer- 
tificate of title and the volume and page of the registration book in 
which it is entered. Such claim shall not affect the title of a pur- 
chaser for value and in good faith before its registration. 



^pp^cattonby SECTION 68. A trustee may file an application for registration 1 
registration of of any land held in trust by him, unless expressly prohibited by the 2 
i898,'662, § 69. instruuieiit which creates the trust. 3 



Incidents of 

registered 

land. 

1898, 662, § 70. 



LEGAL INCIDENTS OF REGISTERED LAND. 

Section 69. Registered land, and ownership therein, shall in 1 

all respects be subject to the .same burdens and incidents which 2 

attach by law to unregistered land. The provisions of this chapter 3 

shall not relieve registered land or the owners thereof from any 4 

rights incident to the relation of husband and wife, or from lialjility 5 

to attachment on mesne process or levy on execution, or from lia- 6 

bility to any lien of uny description established by la^v on land and 7 

the buildings thereon, or the interest of the owner in such land or 8 

buildings, or to change the laws of descent, or the rights of parti- 9 

tion between co-tenants, or the right to take the same by eminent 10 

domain, or to relieve sucli land from liability to be recovered by an 11 

assignee in insolvency under the pi'ovisions of law relative to prefer- 12 

ences, or to change or affect in any way any other rights or liabilities 13 

created by law and applicable to unregi.-itcred land, except as other- 14 

wise expressly provided in this chapter or any amendment hereof. 15 



Attachment of 

registered 

land. 

1898, 562, § 71. 



ATTACHMENTS AND OTHER LIENS. 

Section 70. If a ^vriting of any description or a copy of any 
writ is required b}^ law to be filed or recorded in the registry of 
deeds in order to create or preserve any lien, right or attachment 
upon unregistered land, such writing or copy, if intended to affect 
registered land shall, in lieu of recording, be filed and registered in 
the office of the assistant recorder for the registry district in which 
the land lies, and, in addition to anv particulars required in such 
papers for recording with records of deeds, shall also, except in 
the case of attachment on mesne process, contain a reference to the 
number of tiie certificate of title of the land to be affected, and the 
volume and ])age of the registration book in which the certificate is 
registered, and also, if the attachment, right or lien is not claimed 
on all the land in any certificate of title, a description sufficiently 
accurate for identification, of the land intended to be affected. 



1 
2 
3 
4 
5 
6 



9 
10 
11 
12 
13 
14 



Mowm"^"" Section 71. If an attachment or other lien or adverse claim of 
i89§"S2"s72 "'"J description is registered, and the duplicate certificate is not 



2, § 72. 



presented at the time of registration to the assistant recorder, he 
shall, within twenty-four hours thereafter, send notice by mail to 



1 
2 
3 
4 



Chap. 128.] regiistration, etc., of titles to land. 1247 

5 the registered owner, stating that such paper has been registered, 

6 and requesting him to send or produce liis duplicate certificate in 

7 order that a nienioranduni of the attaclmient or other lien or ad- 

8 verse claim may be made tliereon. If the owner neglects or refuses 
i) to compl}^ within a reasonable time, the assistant recorder shall 

10 suggest the fact to the court, and the court, after notice, shall enter 

11 an order to the owner to produce his certificate at a time and place 

12 to be named therein, and may enforce the order by suitable jarocess. 

1 Section 72. Attachments on mesne process and liens of every DiBsoiution, 

2 description upon registered land shall be continued, reduced, dis- mentsfetc!"' ' 

3 charged and dissolved by any method which is sufficient in law to ^'''**' ^'^' ^ ^^' 

4 continue, reduce, discharge or dissolve like liens on unregistered 

5 land. All certificates or other instruments which are permitted or 

6 required by law to be recorded in the registiy of deeds to give 

7 eifect to the continuance, reduction, discharge or dissolution of at- 

8 tachments or other liens upon unregistered lands, or to give notice 

9 of such continuance, reduction, discharge or dissolution, shall, in 

10 the case of like liens upon registered land, be filed with the as- 

11 sistant recorder and registered in the registration book, in lieu of 

12 recording. 



&• 



1 Section 73. All provisions of law relative to attachments of pUcaWeTo* *''" 

2 real estate and leasehold estates on mesne process shall apply to a«aj-hments to 

3 registered land, except that the duties required to be performed by isss, 662, § 74. 

4 the register of deeds shall be performed by the assistant recorder 

5 for the registry district in which the land lies, who, in lieu of 

6 recording, shall register the facts required to be recorded, and for 

7 that purpose shall keep books similar to those required to be kept 

8 for attachments by registers of deeds, and the fees for registering 

9 attachments shall be the same as are provided for recording. 

1 Section 74. The name and address of the plaintiff's attorney indorsement 

2 shall, in all cases in which an attachment is made, be indorsed upon ■I'ttorney upon 
3^ the writ, and he shall be deemed to be the attorne}' of the plaintifi' is)b*'562, § 7r,. 

4 until written notice that he has ceased to be such shall have been 

5 filed for registration by the plaintiff. 

1 Section 75. If an attachment on mesne process is continued, Reeistration of 

. I ' orders of court, 

2 reduced, dissolved or otherwise affected by an order, decision or et*'. 

* 18y8 562 § 76. 

3 judgment of the court in which the action or proceeding in which 

4 said attachment was made is pending, or by an order of a court 

5 having jurisdiction in insolvency or banliruptcy, a certificate of the 

6 entr}^ of such order, decision or judgment from the clerk or register 

7 and under the seal of the court, shall be entitled to be registered 

8 on presentation to the assistant recorder. A like certificate of the 

9 allowance by the court of an amendment which a subsequent at- 

10 taching creditor or purchaser contends had the effect of dissolving 

11 an attachment may be registered as an amendment allowed, but 

12 shall not be conclusive of dissolution, unless the com't in which the 

13 action or suit is pending adjudicates that the amendment dissolved 

14 the attachment, in which case a certificate of the order, as soon as 

15 it becomes absolute, shall be registered as a dissolution of the af^ 
1(3 tachment. 



li>48 



KEGISTRATION, ETC., OF TITLES TO LAND. [ClIAP. 128. 



Registration of Rectiox 76. If registered land is included with unregistered 
isSs^sai, § 77. land in the statement required by section six of chapter one hun- 
di'cd and ninety-seven to be filed in the registry of deeds, an at- 
tested copy of sucli statement shall be filed with tlie assistant 
recoi'der and registered. 



Liens on regis- 
tered land, how 
enforced. 
1S98, 562, § 78. 



Section 77. A lien of any description upon registered land 
shall be enforced in the same manner as like liens upon unregistered 
land. If registered land is set oti' or sold on execution, or taken 
or sold for taxes or for any assessment, or sold to enforce a lien for 
labor or materials, or the lien of a mortgagee or co-tenant arising 
from a payment of taxes, or for an assessment under the provisions 
of sections twenty -tlu-ee to twenty -five of chapter fifty, or for costs 
and chai'ires for taking down dangerous structiu-es under the pro- 
visions of section seven of chapter one hundred and four, or for 
erecting fences along the line of a railroad corporation under the 
provisions of section one hundred and twenty-one of chapter one 
huncU-ed and eleven or for improving meadows and swamps under 
the provisions of sections four to seven, inclusive, of chapter one 
hunch-ed and ninety- five, or for flo\ving land under the provisions 
of section fourteen of chapter one hundred and ninet3'-six, or for 
any costs and charges incident to such liens, any execution, or 
copy of the execution, any officer's return, or any deed, demand, 
certificate or affidavit or other instrument made in the course of 
proceedings to enforce such liens and required by law to be re- 
corded in the registry of deeds in the case of um-egistered land, 
shall he filed with the assistant recorder for the district in which 
the land lies and resri.stered in the rei-istration book, and a memo- 
randum made upon the proper certificate of title in each case as an 
adverse claim or encumbrance. 



1 

2 

3 

4 

^ 

(! 

7 

8 

1) 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 



Application 
for oertitlcate 
by ext'cutiuii 
creditors, cU'. 
lSi)8, bOi, § 7a. 



Section 78. Upon the expiration of the time allowed by law 
for redemption after registered land has been set oft" or sold on 
execution, or taken or sold for the enforcement of a lien of any 
description, the person who claims under an execution, or under a 
deed or other instrument made in the course of proceedings to levy 
such execution or enforce any lien, may petition the com-t for the 
enti-y of a new certificate to him, and the application may be 
granted. Every new certificate entered under the provisions of 
this section shall contain a memoi-andum of the nature of the pro- 
ceeding on which it is based. A new certificate which is entered 
in pursuance of any tax title .shall contain a memorandum that it is 
suliject to the rights of redemption reserved in sections fift3'-eight 
and .seventy-five of chapter thirteen. At any time prior to the 
entry of a new certificate, the registered owner may pursue all 
legal and equitable remedies to impeach or annul proceedings under If) 
executions or to enforce liens of any description. 16 



1 
2 

3 

4 

.'i 

6 

7 

8 

<l 

1(1 

11 

12 

13 

14 



pending suits, Jtn>GMENTS, DECREES AND PARTITIONS. 

Sus^'etc. Section 79. No ^\Tit of entry, petition for partition, or other 1 

S',S5' ?i"riii- action at law, or any proceedinir in eciuitv which aifects the title to 2 

land or the use and occupation thereof or the buildings tliereon, and 3 

no judgment or decree, nor any writ of error, bill of review or 4 



189S, S62, § SO. 



Chap. 128.] registration, etc., of titles to land. 1249 

5 other proceedinc: to vacate or reverse any judgment or decree, shall 

6 have any effect upon registered land as against persons other than 

7 the parties thereto, unless a memorandum like that described in 

8 section twelve of chapter one hundred and thirty-foui' containing 
il also a reference to the number of the certificate of title of the land 

10 affected, and the volume and page of the registration book in 

11 which it is entered, shall be filed and registered. The provisions 

12 of this section shall not apply to attachments, levies of execution, 
lo or to proceedings for the probate of wills, or for administration, in 
14 the probate court. If notice of the pendency of the action has been 
l.T duly registered, it shall be sufficient to register the judgment or 
1() decree in such action within sixty days after the rendition thereof. 

1 Section 80. At any time after final judgment or decree in Registration of 

'2 favor of the defendant, or other disposition in the manner specified judgment.etc. 

3 in section thiiteen of chapter one hundred and thirty-four, of an}^ ^^^' ^^' ^ ®^' 

4 case in whicii a memorandum has been registered as provided in the 

5 preceding section, a certificate of the clerk, stating the manner of 
(i disposal thereof, as provided in said section thirteen, shall be enti- 
7 tied to registration. 

1 Section 81. If iudcrment is entered for the plaintiff or demand- -"'J'"''?™®"' 

. •' t^ . . ^ . for demand- 

2 ant m a real action anectmo; rejjistered land, exceijt m actions of "nt- 

. . 1898 562 5 S'2 

3 ejectment and actions under the provisions of chapter one hundred 

4 and eighty-one relative to terms of less than seven years, such 

judgment shall be entitled to registration on presentation of a cer- 
() titicate of the entry thereof from the clerk of the court in which 

7 the action is pending to the assistant recorder, who shall enter a 

8 memorandum upon the certificate of title of the land to which such 

9 judgment relates. If the judgment does not apply to all the land 

10 described in the certificate of title, the certificate of the clerk and 

11 the memorandum entered by the assistant recorder shall contain a 

12 description of the land which is affected by the judgment. 

1 Section 82. If an execution or writ of seisin has been issued ^igfj^eu-"* 

2 upon a \vi-it of entry affecting registered land and served by the ""yg ''^'i'Tss 

3 officer, he shall cause an attested copy of the execution, with a 

4 return of his doings thereon, to be filed and registered within three 

5 months after the service and before the return of the execution 
I) into the clerk's office, and the demandant, if the judgment was 

7 that he Avas entitled to an estate in fee simple in the demanded 

8 premises, or in any part thereof, and for which execution issued, 
!) shall thereupon be entitled to the entry of a new certificate of title ; 

1" but, in informations under the provisions of chapter one hunch'ed 

11 and eighty-eight, the commonwealth shall be entitled to have the 

12 certificate of the registered owner cancelled by the court of land 

13 registration as soon as iudsrment is rendered in its favor. 

1 Section 83. If, in a M'rit of dower, iudgment is entered con- —of certiflcate 

c r- • , . , . . 11 • • /• o' judgment lu 

2 firming the report ot the commissioners under the provisions of writ of dower, 

3 section seven of chapter one hundred and eighty, or if, in a writ i8S)8, sea, § S4. 

4 of waste, judgment is entered that the plaintiff recover the place 

5 wasted, a certificate of the entry of such judgment may be regis- 
G tered as an encumbrance. 



1250 REGISTRATION, ETC., OF TITLES TO LAND. [ChAP. 128. 



Registration of SECTION 84. A decree of a court of eciuity which aflects title 1 

decrees in . . 

equity. or riffhts in registered land, whether made in the exercise of general 2 

1898 662 5 86 • • • 

' ' ' equity jurisdiction, or in the exercise of jurisdiction conferred by 3 

statute for the quieting of titles or removing clouds from titles, as 4 

provided in chapter one hundi-ed and eightj'-two, or for an}' similar 5 

purpose, may be registered in the same manner as a judgment at 6 

law. But every court of equity Avhicli passes such a decree shall, 7 

upon application of the plaintitf or petitioner, order any parties 8 

before it to execute for registration any deed or instrument neces- 9 

sary to give efi'ect to its decree, and ma}' requii-e the registered 10 

owner to deliver his duplicate certificate to the plaintili" or 11 

petitioner to be cancelled or to have a memorandum entered upon 12 

it by the assistant recorder. If the person who is required to 13 

execute any deed or other instrument which may be necessary to 14 

give eliect to the decree is absent from the commonwealth, or 15 

is a minor, or insane, or for any reason is not amenable to the 16 

process of the coui't, the court may appoint a trustee to execute 17 

such instrument, which, when executed, shall be registered and 18 

shall have full force and eiFect to bind the land to be affected 19 
thereby. 

j^id'l^^elit'fOT'' Section 85. In all proceedings for partition of registered land, 1 

PI!^"io°'.''i5- or for the assignment in fee of registered land claimed by husband 2 

1898, S62, § 86. O . , '^ ^ 1 r- 1 1 

or wife by statutory right, atter tlie entry of the nnal judgment or 3 

decree of partition and the acceptance of the report of the com- 4 

missioners, a copy of the judgment or decree and of the return of 5 

the commis.sioners, certified by the clerk or register, as the case (> 

may be, shall be filed and registered ; and thereupon, if the land 7 

is set off to the owners in severalty, any owner shall be entitled to 8 

have a certificate entered of the share set off to him in severalty, 9 

and to receive an owner's duplicate therefor. If the land is ordered 10 

by the court to be sold, the purchaser or his assigns shall be en- 11 

titled to have a certificate of title entered to him or them upon 12 

presenting the deed of the commissioners for registration ; but any 13 

new certificate entered in pursuance of partition proceedings, 14 

whether by way of set-off or of sale, shall contain a reference to 15 

the final judgment or decree of partition, and shall l)e conclusive IG 

as to the title to the same extent and against the same persons as 17 

such judgment or decree is made conclusive by the statutes ap- 18 

pli cable thereto. A person who holds such certificate of title or a 19 

transfer thereof shall have the right to petition the court at any 20 

time to cancel the memorandum relative to such judgment or 21 

decree, and the court, after notice and a hearing, may grant the 22 

application. Such certificate shall thereafter be conclusive in the 23 

same manner and to the same extent as other certificates of title. 24 

t'ere°[mifrt'agc SECTION 8(). If a Certified copy of a judgment or decree for 1 

to tju asain partition and of the return of the commissioners is isresented for 2 

retfistered on a., ,.« i ,.. .r, i 

reiristration of registration, and if a mortgage or lease anecting a specific i)or- A 

partition. "^ tion or an undivided .share of the premi.ses had iireviously been 4 

' '' ■ registered, the tenant who claims under the mortgagor or lessor 5 

shall cause the mortgage or lease and any duplicate certificate of <> 

title issued to the mortgagee or lessee to be again presented for 7 

registration, and the assistant recorder shall indorse on each a 8 



Chap. 1:28.] registration, etc., of TiTLEts to land. 1251 

!t nicuioranduui of such partition and a description of the land set off 

10 in sevcraltj' on whicii sucia mortgage or lease remains in force. 

11 Such tenant shall not be entitled to receive his own duplicate cer- 

12 tificate of title until such mortgage or lease has been so presented 

13 for registration. 

INSOI-VENCY. 

1 Section 87. The messenger shall register notice of the issuing Hefristratum ot 

2 of a warrant in insolvency or bankruptcy against a debtor who is rant in"iusoi- 

3 an owner of registered land, when the same is committed to him, b}' i8as,s6-2, §88. 

4 filing a copy thereof with the assistant recorder. 

5 An assignee in insolvency or trustee in bankruptcy shall be 
(i entitled to the entry of a new certificate of registered land of the 

7 debtor upon presenting and filing a certified copy of the assign- 

8 ment with the insolvent's duplicate certificate of title ; but the new 
i) certificate shall state that it is entered to him as assignee in insol- 

10 vency or trustee in bankruptcy. 



e 



1 Section 88. If proceedings in insolvency or bankruptcy against —o* discharge, 

2 a registered owner, of which notice has been registered, are vacated i«'s, 662, § 89. 

3 by decree, or if the court of insolvency or bankruptcy gTants a dis- 

4 charge in composition proceedings and orders a reconveyance of 

5 land to the debtor, a certified copy of the decree, or of such dis- 
fi charge and order, may be filed and registered. If a new certificate 

7 has been entered in the name of the assignee in insolvency or trustee 

8 in bankruptcy as registered owner, the debtor shall be entitled to 
II the entry of a new certificate in his name, and the certificate of the 

10 assignee or ti'ustee shall be suiTendered. 



eminent domain. 

1 Section 89. If land of a registered owner, or any right or — ofiamuaken 

2 interest therein, is taken by eminent domain, the commonwealth or inain"""'^" 

3 body politic or corporate or other authorit}' which exercises such '*'"'' '**''"' ^ '*" 

4 right shall file for registration in the proper registry district a de- 

5 scription of the registered land so taken, giving the name of each 

6 owner thereof, referring by number and place of registration in the 

7 registration book to each certificate of title, and stating what estate 

8 or interest in the land is taken, and for what purpose. A memo- 

9 randum of the right or intci'est taken shall be made on each certifi- 
10 cate of title b}^ the assistant recorder, and if the fee simple is taken, 

11 a new certificate shall be entered to the owner for the land remain- 

12 ing to him after such taking. If the owner has a lien upon the land 

13 taken for his damages, it shall be so stated in the memorandum of 
^4 registration. All fees on account of any memorandum of registra- 
1.5 tion or entry of new certificates shall be paid b}' the commonwealth 
Kj or bodv politic or corporate or other authority which takes the 
17 land. 



1 Section 90. If land which was taken for a public use reverts by New certificate- 

2 operation of law to the owner from whom it was taken or to his oHan^J'^'^'*'^ 

3 heirs or assigns, the court, upon the petition of the person entitled i««**. 562, § 9i. 

4 to the benefit of the reversion, after notice and a hearing, may 

5 order the entry of a new certificate of title to him. 



1252 



REGISTRATION, ETC., OF TITLES TO LAND. [ChaP. 126. 



Transfer by 
descent or " 
devise. 
1898, 662, § 92. 



TRANSFER BY DESCENT AND DEviSE. 

Section 91. Upon the death of a registered owner his heiris at 1 

law or devisees, upon the expiration of thirty days after the entiy 2 

of a decree of the probate court gi'anting letters testamentary or of 3 

administration, or in case of an appeal from sucli decree, at any 4 

time after the entry of a final decree, ma}^ file a certified cop3^ of 5 

the final decree of the probate court and of tlie will, if any, with (> 

the assistant recorder, and make application for the entry of a new 7 

certificate. The court shall issue notice to the executor or adminis- 8 

trator and to all other persons in interest, and maj^ also give notice II 

by publication in such newspaper or newspapers as it may con.sider 10 

proper, to all whom it may concern, and, after a hearing, may direct 11 

the entry of a new certificate or certificates to the person or persons 1 2 

entitled as heirs or devisees. Any new certificate so entered liefore \'A 

the final settlement of the estate of the deceased owner in the 14 

probate court shall state expressly that it is entered by transfer from 1.") 

the last certificate by descent or de^'ise, and that the estate is in Ki 

process of settlement. After the final settlement of the estate in 17 

the probate court, or after the expiration of the time allowed by LS 

law for bringing an action ag-ainst an executor or administrator by 19 

creditors of the deceased, the heu"s at law or devisees ma}^ petition 20 

the court for an order to cancel the memorandum upon their certifi- 21 

cate, .stating that the estate is in course of settlement, and the court, 22 

after notice and a hearing, may grant the petition ; but the liability 23 

of heirs or devisees of registered land for claims against the estate 24 

of the deceased shall not in any way be diminished or changed. 2r> 



Executor's 
right to sell, 
etc., un- 
affected. 
1898, 562, § 93. 



Section 92. The provisions of this chapter shall not in any way 1 

affect or impair the jurisdiction of the probate court to license an 2 

executor or administrator or guardian to sell or mortgage registered 3 

land for any purpose for which a license may be gi"anted in the case 4 

of unregistered land. The piu-c baser or mortgagee who takes a 5 

deed which is executed in pursuance of such license shall be entitled 6 

to a new certificate of title, or memorandum of registration. 7 



Assurance 

fund. 

1898, 662, § 94. 



ASSURANCE FUND. 

Section 93. Upon the original regi.stration of land, and also 1 

upon the entry of a certificate showing title as registered owners in 2 

heirs or devisees, there shall be paid to the recorder one-tenth of 3 

one per cent of the assessed value of the land, on the basis of the 4 

last assessment for municipal taxation, as an assurance fund. 5 



— custody and 
investment of. 
1898, 662, § 95. 



Section 94. All money received by the recorder under the 1 

provisions of the preceding section shall be paid to the treasurer 2 

and receiver general, who shall keep it invested, with the advice 3 

and approval of the governor and council, and shall report annually 4 

to the general court the condition and income thereof. 5 



Section 95. 



A person who, without negligence on his part, 1 

2 

interest therein after the original registration of land, b}' the regis- 3 
tmtion of another person as owner of such land or of any estate or 4 



— action for 

compensation i • i /. i i r 

from. sustains loss or damage, or is dei)rived of land or of anv estate or 

1898, 662, § 96. - _ P' _ ' - _ _ .' . ...... 



ChAI'. ll-'iS.] REGISTRATION, KTC, OF TITLES TO LAND. 1253 

5 interest therein, tlirough fraud or in consequence of any error, oniis- 

(j siou, mistake or uiisdescriptiou in any certificate of title or in any 

7 entry or memorandum in the registration book, may bring an 

(S action of contract in the superior court for the recoveiy of com- 

1) pensation for such k)ss or damage or for such land or estate or 

10 interest therein from the assurance fund ; but if the person who is 

11 deprived of land or of any estate or interest therein in the manner 

12 above stated has a right of action or other remedy for the recovery 

13 of the land or of the estate or interest therein, he sliall exhaust 

14 such i-emed}' befoi'e resorting to the action of contract herein pro- 

15 vided. The provisions of this section shall not deprive the plaintiti" 
Hi of any action of tort which he may have against any person for 

17 such loss or damage, or deprivation of land or of any estate or 

18 interest therein. But if the plaintiff elects to pursue his remedy in 

19 tort, and also brings an action of contract under the provisions of 

20 this chapter, the action of contract shall be continued to await the 

21 result of the action of tort. 

1 Section 9(i. If such action of contract is brought to recover for Action against 

2 loss or damage or for deprivation of land or of any estate or in- receiver gen. 

3 terest therein which arises wholly tlirough any fraud, negligence, fggg; ^2? §97. 

4 omission, mistake or misfeasance of the recorder, assistant recorder 

5 or of any of the examiners of title, in the peri'ormance of executive 

6 or ministerial duties, or of any of the assistants or clerks of the 

7 recorder, in the performance of their respective duties, the action 
,S sliall be brought against the treasurer and receiver general as sole 
il defendant. If such action is brought to recover for loss or damage 

10 or deprivation of land or of any estate or interest therein which 

11 arises wholl}' through any fraud, negligence, omission, mistake or 

1 2 misfeasance of some person or persons other than the recorder, assist- 

13 ant recorder or the other ofhccrs and assistants above-named, or 

14 which arises jointly through the fraud, negligence, omission, mis- 
la take or misfeasance of such other jjcrson and the recorder, assistant 
1(5 recorder or other officers and assistants above-named, such action 

17 shall be brought against both the treasurer and receiver general and 

18 such other person or persons, as joint defendants. 

1 Section 97. If there are defendants other than the treasurer Judgments, 

2 and receiver general and judgment is entered for the plaintiff isas, 662, § 98.' 

3 against the treasurer and receiver general and against some or all 

4 of the other defendants, execution shall issue against the other 

5 defendants and be levied upon them. If the execution is returned 
(5 unsatisfied in whole or in part, and the officer returning the same 

7 certifies that the amount due cannot be collected from the land or 

8 goods of such other defendants, a justice of the superior court shall 

9 direct the clerk to certify the amount due on the execution to the 

10 auditor of the commonwealth, who shall thereupon audit and certify 

11 the amount of the execution in the same manner as claims against 

12 the commonwealth, and the treasurer and receiver general shall 

13 pay the amount out of the assurance fund, without any further act 

14 or resolve making an appropriation therefor. 

15 If judgment in such action cannot for any reason be entered 
lt5 against all or any of the other defendants it may be entered against 
17 the treasurer and receiver general alone or against him and such of 



1254 REGISTRATION, ETC., OF TITLES TO LAND. [ChAP. 128. 

the other defendants as are found to be liable, and against whom 18 

judgment can lawfully be entered. If judgment is entered against 19 

the treasurer and receiver general alone, whi'ther in a case where he 20 

is sole defendant or joint defendant with others, the justice of the 21 

superior court before whom the action is tried .shall direct the clerk 22 

to transmit to the auditor a certificate of the entry of judgment and 28 

of the amount due, and the treasurer and receiver general shall pay 24 

the same upon the certificate of the auditor, as above provided. 2;") 

SsurancefSnd SECTION 98. If the assurancc fund at any time is not sufficient 1 

',L!?*?il'*'i1S'- to meet the amount called for by such certificate of the auditor the 2 

18%, 562, §99. , iini ii/?* 

treasurer and receiver general shall make up the defacienc}' irom H 

any funds in the trcasuiy not otherwise appropriated ; and in such -t 

case, any amounts thereafter received by the treasurer and receiver .') 

general on account of the assurance fund shall be transferred to the (> 

general funds of the treasury, until the amount paid on account of 7 

the deficiency shall have been made up. 8 

commonwealth SECTION 99. In every case in which payment has been made by 1 

ri^i'w'when ^^^ treasurer and receiver general under the provisions of sec- 2 

1898, 562. § 100. tioii ninety-scveu, the commonwealth sliall be .subrogated to all 3 

rights of the plaintifl' against any other parties or securities, and 4 

the treasurer and receiver oreneral shall enforce the same in behalf 5 

of the commonwealth. Amounts so recovered by the treasurer and (j 

receiver general shall be paid into the treasury of the common- 7 

wealth to the account of the assurance fund. 8 

fund,™p^ica- SECTION 100. The iiicoiiie of the assurance fund shall be added 1 

1898 K2°§ iw''' *° *^^^ principal and invested, until said fund amounts to two hun- 2 

dred thousand dollars, and thereafter the income of such fund shall 3 

be used to defray, as far as may be, the expenses of the administra- 4 

tion of the provisions of this chapter, instead of being added to the 5 

fund and accumulated. 6 

when' "'''''^' Section 101. The assurance fund shall not be liable to pa}' for 1 

1898, 562, § 102. ^nv loss, damage or dcprivatit)n occasioned by a bi'cach of trust, 2 

1899, 126. ^ ^.,.*, ., *ii o 

whether express, implied or constructive, by any regi.stercd owner 3 

who is a trustee, or by the improper exercise of any power of sale 4 

in a mortgage. Nor shall an}' plaintifl' recover as compensation in 5 

an action of contract under the provisions of this chapter more than (! 

the fair market value of the land at the time when he suftered the 7 

loss, damage or deprivation thereof. 8 

"™'S1etions Section 102. Actions of contract for compensation under the 1 

1898, 562, § 103. provisious of tliis chapter by reason of any loss or damage or depri- 2 

vation of land or any estate or interest therein shall be begun 3 

witliin six years after the time M'hen the cause of action accrued, 4 

and not afterward ; but the plaintifl" in an action for the recovery of 5 

the land or estate or interest therein in accordance with the pro- fi 

visions of section ninety-six may bring the action of contract for 7 

compen.sation within one year after the termination of such action. 8 

The action of contract herein i)rovided shall survive to the personal 9 

representative of the registered owner, unless barred in his lifetime ; 10 

but the proceeds thereof shall be treated as real estate. 11 



Chap. 128.] registration, etc., of titles to land. 1255 



POWERS OF attorney. 



1 Section 103. Anj'^ person may, by attorney, procure land to Powers ot 



104. 



2 be registered and convey or otherwise deal with registered land, 'i898,662,'§ 

3 but the letters of attornej^ shall be acknowledged and filed with the 

4 i-ecorder or the assistant recorder of the proper registry district, 

5 and registered. Any instrument revoking such letters shall be 
(3 acknowledged and registered in like manner. 

lost duplicate certificates. 

1 Section 104. If a duplicate certificate is lost or destroyed, or Lost duplicate 

2 cannot be produced by a grantee, heir, devisee, assignee or other ilgsIselflVx 

3 person who applies for the entry of a new certificate to him or for 

4 the registration of an}^ instrument, a suggestion of the fact of such 

5 loss or destruction may be filed by the registered owner or other 

6 person in interest and registered. The court may thereupon, upon 

7 the petition of the registered owner or other person in interest, 

8 after notice and a hearing, direct the issue of a new duplicate cer- 

9 tificate, which shall contain a memorandum of the fact that it is 

10 issued in place of a lost duplicate certificate, but shall in all re- 

11 spects be entitled to lilvc feith and credit as the original duplicate, 

12 and shall thereafter be regarded as the original duplicate for all the 

13 purposes of this chapter. 

adverse claims. 

1 Section 105. Whoever claims any right or interest in registered ,-^|Ji™^^® 

2 land adverse to the registered owner which arises subsequent to the isns, 562. § loe. 

3 date of original registration may, if no oth^r provision is made in 

4 this chapter for registering the same, make a statement in writing 

5 setting forth tully his alleged right or interest, and how or under 

6 whom it was acquired, and a reference to the volume and page of 

7 the certificate of title of the registered owner, and a description of 

8 the land in which the right or interest is claimed. The statement 

9 shall be signed and sworn to, and shall state the adverse claimant's 

10 residence, and designate a place at which all notices may be served 

11 upon him. This statement shall be entitled to registration as an 

12 adverse claim, and the court, upon the petition of any party in in- 

13 terest, shall grant a speed_y hearing upon the question of the validity 

14 of such adverse claim, and shall enter such decree thereon as justice 

15 and equity may require. If the claim is adjudged to be invalid. 
It; the registration shall be cancelled. If the court, after notice and a 

17 hearing, finds that a claim thus registered was ti-ivolous or vexatious, 

18 it may tax the adverse claimant double costs. 

SURRENDER OF DUPLICATE CERTIFICATES. 

1 Section 106. If the recorder or any assistant recorder is re- surrender of 

2 quested to enter a new certificate in pursuance of an instrument tiflcates. 

3 whicli purports to be executed by the registered owner, or by reason ^'^''*' ^'^' ^ '''^• 

4 of any instrument or proceedings wliich divest the title of the regis- 

5 tered owner against his consent, and the outstanding owner's dupli- 

6 cate certificate is not presented for cancellation when such request 

7 is made, the recorder or assistant recorder shall not enter a new 



125G 



REGISTRATION, ETC., OF TITLES TO LAND. [ClIAP. 128. 



certificate, but the person who claims to be entitled thereto may 8 

appl}' by petition to the court. The court, after a hearing, may 9 

order the registered owner or an}' person withholding the duplicate 10 

certificate to surrender it, and direct the entry of a new certificate 11 

upon such suiTender. If the person withholding the duplicate cer- 12 

tificate is not amenable to the process of the court, or if for any 13 

reason the outstanding owner's duplicate certificate cannot be de- 14 

livered up. the court may by decree annul it and order a new certif- 15 

icate of title to be entered. Such new certificate and all duplicates 16 

thereof shall contain a memorandum of the annulment of the out- 17 

standing duplicate. 18 

If an outstanding mortgagee's or lessee's duplicate certificate is 19 

not produced and surrendered when the mortgage is discharged or 20 

extinguished or the lease is terminated, like proceedings may be had 21 

to obtain registration as in the case of the non-production of an 22 

owners duplicate. 23 



Amendment, 
etc., of certifi- 
cates. 

1898, 662, § 108. 



AMENDMENT AND ALTERATION OF CERTIFICATES OF TITLE. 

Section 107. Xo erasure, alteration or amendment shall be 1 

made upon the registration book after the entry of a certificate of 2 

title or of a memorandum thereon and the attestation of the same 3 

by the recorder or an assistant recorder, except by order of the 4 

court. A registered owner or other person in interest may at any 5 

time apply bj' petition to the court, upon the ground that registered 6 

interests of any description, whether vested, contingent, expectant 7 

or inchoate, have terminated and ceased ; or that new interests have 8 

arisen or been created which do not appear upon the certificate : d 

or that any error or omission was made in entering a certificate or .10 

any memorandum thoi-eon, or on any duplicate certificate : or that 11 

the name of any person on the certificate has been changed ; or 12 

that the registered owner has married, or if registered as m.uTied, 13 

that the maiTiage has Ijeen terminated : or that a corporation which 14 

owned registered land and has been dissolved has not conveyed the L") 

same witliin tliree years after its dissolution ; or upon any other lt> 

reasonable ground : and the court shall have jurisdiction to hear and 17 

determine the petition after notice to all parties in interest, and 18 

may order the entry of a new certificate, the entry or cancellation of 19 

a memorandum upon a certificate or grant any other relief upon such 20 

terms, requu'ing secm-itj' if necessary, as it may consider proper ; 21 

but the provisions of this section shall not gi\ e the court authoritj'^ 22 

to open the original decree of registration, and nothing shall be 23 

done or ordered by the court M'hich shall impair the title or other 24 

interest of a pm'chaser who holds a certificate for value and in good 25 

faith, or his heirs or assigns, without his or their \\Titten consent. 26 

Any petition filed under the provisions of this section and all 27 

petitions and motions filed under the provisions of this chapter after 2S 

original registration shall be filed and entitled in the original case 29 

in which the decree of registration was entered. 30 



Service of 
notice after 
regletratlon. 
im, 662, § 109. 



SERVICE OF NOTICES AFTER REGISTRATION. 

Section 108. All notices which are reijuired by, or are given in 1 

pursuance of, the provisions of this chapter by the recorder or any 2 

assistant recorder, after original registration, shall be sent by mail 3 



Chap. 128.] registration, etc., of titles to land. 1257 

4 to the person to be notified to his residence and post office address 

5 as stated in the certificate of title, or in any registered instrument 

6 under which he claims an interest, in the office of the recorder or 

7 assistant recorder, relating to the parcel of land in question. 

8 All notices and citations directed by special order of the court 

9 under the provisions of this chapter, after original registration, may 

10 be served in the manner above stated, and the certificate of the 

11 recorder shall be conclusive proof of such service ; but the court 

12 may in any case order different or further service, by publication 

13 or otherwise. 

FEES for registration. 

1 Section 109. The fees payable under the provisions of this Fees for regis- 

2 chapter shall be as follows : — 1898,°m2, § no. 

3 For every application to register land under the provisions of 

4 this chapter and indexing, recording and transmitting it to the 

5 recorder, when filed with assistant recorder, three dollars. 

6 For ever}' plan filed, seventy-five cents. 

7 For indexing an instrument recorded while application for regis- 

8 tration is pending, twenty-five cents. 

9 For examining title, five dollars, and one-tenth of one per cent 

10 of the value of the land. 

11 For each notice by mail, twenty-five cents and the actual cost of 

12 printing. 

13 For all services by a sheriff under the provisions of this chapter, 

14 the same fees as are now provided by law for like services. 

15 For each notice by publication, twenty-fi\je cents and the actual 
1(5 cost of publication. 

17 For entry of order dismissing application or decree of registra- 

18 tion and sending memorandum to assistant recorder, one dollar. 

19 For copy of decree of registration, one dollar. 

20 For entry of original certificate of title and issuing one duplicate 

21 certificate, thi-ee dollars. 

22 For making and entering a new certificate of title, including issue 

23 of one duplicate certificate, one dollar. 

24 For each additional duplicate certificate after the first, fifty 

25 cents. 

26 For the registration of every instrument, whether single or in 

27 duplicate or triplicate, including entering, indexing and filing same 

28 and attesting registration thereof, and also making and attesting 

29 copy of memorandum on one instrument or on a duplicate certifi- 

30 cate when required, one dollar and fifty cents. 

31 For making and attesting copy of memorandum on each addi- 

32 tional instrument or duplicate certificate if recjuired, fifty cents. 

33 For filing and registering an adverse claim, tliree dollars. 

34 For entering statement of change of residence or post office 

35 address, including indorsing and attesting same on a duplicate cer- 

36 tificate, twent3'-five cents. 

37 For entering any note in the entry book or in the registration 

38 book, twenty-five cents. 

39 For the registration of a suggestion of death or notice of issue 

40 of a warrant in insolvency, twenty-five cents. 

41 For the registration of a discharge or release of mortgage or 

42 other instrument creating an encumbrance, fifty cents. 



1258 BSTATE.S FOR YEARS AND AT WILL. [ChAP. 129. 

Tor the registration of a memorandum or certificate of entry for 43 

possession or deposition in proof thereof, fifty cents. 44 

For the registration of an}" levy, or of any discharge or dissohi- 45 

tion of any attachment or levy, or of any certificate of or receipt 4() 

for pa3'ment of taxes, or of any mechanic's lien or lien for labor or 47 

materials, or notice of any pending action or of a judgment or 48 

decree, fifty cents. 451 

For indorsing on any mortgage, lease or other instrument a 50 

memoi-andum of partition, one dollar. 51 

For every petition filed under the provisions of this chapter after 52 

original registration, one dollar. 53 

For a certified copy of any decree or registered instrument, the 54 

same fees as are provided by law for registers of deeds by chapter 55 

two hundred and foiu*. 5fi 

In all cases not expressly provided for by law, the fees of all 57 

public officers for any oflScial duty or service under the provisions 58 

of this chapter shall be at the same rate as those prescribed herein 5!:T 

for like services. 60 

PENALTi'. 

ft-audSenT SECTION 110. Whoever, with intent to defraud, sells and con- 1 

conveyance, vcvs registered land, knowang that an undischarged attachment or 2 

1898 562 $ 115. «/ o ^ o ~ 

any other encumbrance exists thereon which is not noted by 3 

memorandum on the duplicate certificate of title, without in- 4 

forming the gi'antee of such attachment or other encumbrance 5 

before the consideration is paid, shall be punished by imprisonment b 

in the state prison for not more than three years or in jail for not 7 

more than one year. 8 



CHAPTER 129. 

OF ESTATES FOR YEARS AND AT WILL. 



torTCarfto^e SECTION 1. If land is dcmiscd for the term of one hundred 1 

resiirrtedas years or luorc, the term shall, so long as fifty years thereof remain 2 

8hi''|)'ie."" "^"^ unexpired, be regarded as an estate in fee simple as to every thing 3 

if s.wSf w,"' concerning the descent and devise thereof upon the decease of the 4 

G." s. 90, §§ io, owner, tliiJ right of dower or of curtesy therein, the sale thereof 5 

psi-216 1 l^y executors, administrators, guardians or trustees, the levy of (5 

iw Mass. -247. cxccution thcreon, and the redemjjtion thereof if mortgaged or 7 

taken on execution ; and whoever holds as lessee or assignee under 8 

such a lease shall, so long as fifty years of the term remain unex- 9 

pired, be regarded as a freeholder for all purposes. 10 

Provisions SECTION 2. If curtcsv Or dower is assigned out of such land, 1 

is assijincd t)ut thc husbaud Or widow and his or her assigns shall pay to the owner i 

\'m^\ffi,\k ' of the unexpired residue of the term one-third of the rent reserved 3 

g'. s! 9o| 1 22; in the lease under Avhich the Avife or husband held the term. 4 

p. s. 121, § 2. 

Tenant at SECTION 3. Tenants at sufferance in possession of land or tene- 1 

suiferance , \ t* t* \ i^- n. o 

iiai>ie for rent, mcnts shall be liable to pay rent therefor for such time as tliey may i 

G. S. 9(1, § 2.5. , . , 'a 

P. s. 121, §3. occupy or detain the same. lo Alien, 26o. los Mass. 486. o 

115 Mass. 367. 1S2 Mass. 346. 184 Mass. 238. 156 Mass. 209. 



Chap. 129.] estates for years and at will. 12.19 

1 Section 4. A person who is in possession of land out of which Jt^^nd de '''"^' 

2 rent is due shall be liable for the amount or proportion of rent due ""'sed u.nijie 

for rPTit 

3 from the land in his possession although it is only a part of what R. s. 6o,'§ 22. 

4 was originall}^ demised. p.s.'m/n.' 

17 Mass. 440. 22 Pick. 565. 2 Alet. 505. 8 Gray, 204. 

1 Section 5. Such rent may be recovered in an action of contract, Reioveryof 



O 



and the deed of demise or other insti'ument in writing, if any, 1825, 89, §'5. 

3 showing the provisions of the lease, may be u.sed in evidence by g! s. 90! § 20! 

4 either party to prove the amount of rent due from the defendant. ^' *' ^'^^' ^ ^' 

1 Section 6. Such action may be brought by or against executors Action for 

2 and administrators for any arrears of rent accrued in the lifetime of or aga^nst**'^ 

3 the deceased parties, respectively, in the same manner as for debts flis'^so"?.^*^'^' 

4 due from or to the same parties in their lifetime on a personal con- 5- §• S' f '^- 

5 tract. P- s. 121, § 6. 

1 Section 7. The provisions of the six preceding sections shall Landlords not 

2 not deprive landlords ot any other legal remedy for the recovery ot other remedies. 

3 theu' rents, whether secured to them by lease or by law. g! s;9o|§28; 

p. s. 121, § 7. 

1 Section 8. If land is held by lease of a person who has an Api.ortion- 

2 estate therein determinable on a life or on a contingency, and such istj», 368, |§ 1I3. 

3 estate determines before the end of a j:)eriod for which rent is pay- 3 bus'it 20;.'*' 

4 able, or if an estate which is created by a written lease or an estate e ai'i™,' 21.?.' 

5 at will is determined before the end of such period by surrender, }|| ^ass' m 
(i either express or by operation of law, by notice to quit for non- 

7 payment of rent, or b}' the death of any party, the landlord or his 

8 executor or administrator may, in an action of contract, recover a 

9 proportional part of such i-ent according to the portion of the last 

10 period for which such rent was growing due which had expired at 

11 such determination. 

1 Section 9. If, upon the determination of a tenancy, in any Recovery back 

2 manner mentioned in the preceding section, before the end of a advance"\viie'n 

3 period for which rent is payaljle, the rent for such period has been terminated. 

4 paid before such determination, a proportionate part of the rent so p.^s.m' §9. 

5 paid, according to the portion of such period then unexpired, may 

6 be recovered back in an action of contract. 

1 Section 10. Debts for the rent of a dwelling house which is claims forrent 

2 occupied by the debtor or his family shall be considered as claims necessari'es* 

J^ ' 1859 127 

tor necessaries. • 



G. S. 90, § 29. P. S. 121, § 10. 8 Gray, 226. 1 Allen, 219. 



1 Section 11. Upon the neglect or refusal to pay the, rent due Termin.ation of 

2 according to the terms of a written lease, fourteen days' notice to to^quitfornon- 

3 quit, given in writing by the landlord to the tenant, shall be sufE- S.'"^"*"' 

4 cient to determine the lease, unless the tenant, foiu- days at least }^^' 14.2' 1 .2' 

5 before the return day of the ^ATit, in an action brought by the land- Jf'J.'^.Sj'roo. 

6 lord to recover possession of the premises, pays or tenders to the ip.Js.' 

7 landlord or to his attorney all rent then due, with interest thereon 8 cu'sii. isa. 

8 and with all costs of suit. 137 Mass. is. 



1260 



EASEjrENTS. 



[Chap. 130. 



Wi> 



Termination 
of U-nancy at 
will, by notice 
to quit. 
Is-JS, 811, § 4. 
R. S. m, § -26. 
G. S. 'M, §31. 
1'. .S. 1-21, § li. 

13 Met. -277. 
r. Cusll. 133. 

11 Cusll. 93, 191. 
11 Gray, 181. 
7 Allen, 487. 

14 Allen, 43. 
103 Mass. 154. 



Section 12. E.state.s at will may be determined by either part}' 
by three months' notice in writing for that purpose given to the other 
part}' ; and if tlie rent reserved is i)a3-abk' at period.s of less than 
three months, the time of such notice shall be sufficient if it is equal 
to the interval between the daj's of payment ; and in all cases of neg- 
lect or refu.sal to pay the rent due from a tenant at will, foiu-teen 
days' notice to quit, given in writing b}^ the landloi-d to the tenant, 
shall be sufficient to determine the tenancy. 



108 Mass. 150, 553. 
113 Mass. 531. 



1-26 Mass. 143. 
130 Mass. 532. 



Maes. 13. 
Mass. 443. 



107 Mass. 406. 

im Mass. 351. 
172 Mass. 145. 



1 

2 
3 
4 
5 
6 
7 
8 



CHAPTEE 130, 



OF EASEMENTS. 



Easements of 
light and air 
not to be ac- 
quired bv use. 
1852, 144." 
G. S. 9(1, § .32. 
P. S. 122, § 1. 



Section 1 . Whoever erects a house or other building with win- 1 

dows which overlook the land of another person shall not, by the 2 

mere continuance of such windows, acquire an ea.sement of light or 3 

air so as to prevent the erection of a building on such land. 4 

115 Mass. 204. 



^ufreVby use" SECTION 2. \o pcrsoii shall acquii^c by adverse use or enjoyment 
ies°s"thaif '""^ a right or privilege of way or other easement from, in, upon or over 
tnenty years, the land of another, unle.ss such use or enjo}inent is continued unin- 3 



R. s 



, § 27. 



g'. s! 9o', § 33'. terruptedly for twenty years. p. s. 122, §2. 2Cush. vji. 10 Alien, 557. 



1 

2 



Acquirement 
of easement by 
use may be 
lirevented i)y 
notice, etc. 
1824, .i2. 
R. S. 60, § 28. 
G. S. 90, § 34. 
1867, 302. 
P. S. 122, § 3. 
1.56 Mass. 4.53. 
157 Mass. 443. 



Section 3. If a person apprehends that a right of way or other 1 

easement in or over his land may be acquii-ed by custom, use or 2 

otherwise by any person or cla.ss of persons, he may give public 3 

notice of his intention to pi-event any person from ac(juiring .such 4 

easement, b}' causing a copy of such notice to be posted in a conspic- 5 

uous place upon the premises for six successive daj's, and the post- 

ing of such copy .shall prevent the accjuiring of such easement bv 7 

use for any length of time thereafter ; or he ma}' jirevent a particular )i 

person or persons from acquiring such easement by causing a copy of i) 

such notice to be served upon him or them in the manner provided 10 

by law for the service of an orisrinal summons in a civil action. Sucli 1 1 

notice from the agent or guardian of the owner of land shall have 12 

the same effect as a notice from the owner himself. A certificate, b}' 13 

an officer (jualified to serve civil process, of the fact that such copy 14 

has been served or posted by him as above provided, if made upon 15 

the original notice and recoi'ded with it, within three months after the 10 

service or po.sting, in the registry of deeds in the county or district 17 

in which the land lies, .shall be conclusive evidence of the service 18 

or posting of .such copy. Ill 



Such notice to 
be a disturb- 
ance of the 
easement. 
R. S. 119,514. 
G. S. 1.54, § 14. 
P. S. 1-22, § 4. 



Section 4. A notice given under the provisions of the preced- 
ing section shall be a disturbance of the ea.sement to which it relates 
which .shall entitle the person who claims such easement to an 
action for such disturbance for the purpose of trying the right ; 
and if he prevails in such action, he shall be entitled to full co.sts 
although he recovers only nominal damages. 



1 
•> 

3 
4 
r> 
() 



CHAI*. 131.] HOJIESTEADS. 12G1 

CHAPTER 131. 

OF HOMESTEADS. 

1 Section 1. A householder who has a family shall be entitled ^^',1?'*'"* 

2 to an estate of homestead, to the extent in value of eight hundred i«si. sio, §i. 

3 dollars, in the farm or lot of land and buildings thereon which is i857;298;§i! 

4 owned or rightl}^ possessed by lease or otherwise and occupied by p.' s.' m,' § i.' 

5 him as a residence, and such estate shall be exempt from attachment, i6Grayfi46. 

6 lev}' on execution and sale for the payment of his debts or legacies 8 iiilS,' a's*^^' 

7 and fi'om the laws of conveyance, descent and devise, except as here- }J Alien' m' 

8 inafter provided. 12 Alien, so. 13 Alien, 286. sTMaes. sse. 

100 Mass. 234. 101 Mass. .418, 426. 138 Mass. 542. 161 Mass. 276. 

1 Section 2. To create such estate of homestead, the fact that it -acquisition 

2 is desiofned to be held as a homestead shall be set forth in the deed i85i, 340, §3. 

• • . 1857 *29H 5 S 

3 of conveyance by which the property is acquired ; or, after the title g. s. 104, § 2. 

4 has been acquired, such design may be declared by a writing duly fiAiie'n,^!?^' 

5 signed, sealed and acknowledged and recorded in the registry of deeds '^ ■*^"'*°' *'■ 

6 for the county or district in which the property is situated. The 

7 acquisition of a new estate of homestead shall defeat and discharge 

8 any such previous estate. 

1 Section 3. All existing estates of homestead, which have been Former rights 

2 acquired under any law heretofore in force, shall continue to be held saved"'™'*'"' 

3 and enjoyed notwithstanding the repeal of such law; and the pro- i^?; las', l/i, 

4 visions of the preceding section .shall not require the design so to Jf- s 104 § s 

5 hold the same to be declared and recorded anew; but no person J'-,?- I'^^'s*- 

1111111 1 1 11 l** Orav, 21. 

6 shall hold, exempted as a homestead, property to the value of more sAiieu, 510. 

7 than eight hundred dollars. lei Mass. 2:6. 

1 Section 4. No property shall, b}' virtue of the provisions of this Homestead 

2 chapter, be exempt ti-om sale for taxes, or from levy for a debt con- Ixe'mpt'tioiii 

3 tracted for the jjurchase thereof, or for a debt contracted before the J.'Jp^ '"'' ""'*'^' 

4 deed or wi'iting requii-ed by section two is recorded, or before I'sfHaMg' 

5 the estates of homestead mentioned in the preceding section were i^st! mK § 4! 

6 acquired; nor shall buildings on land which is not owned by the p.' s.' 123,' § 4.' 

7 householder be exempt from .sale or levy for the ground rent of the il Gray', 142, 

8 lot of land whereon they stand. lOAiien.uo. 11 Alien, u.'i. e^'iien. 437. 

1 Section .5. No estate of homestead shall affect a mortgage, lien Previous mort. 

2 or other encumbrance previously existing. unf^ecteci. 

ISio, 238, § 4. 1S7, 298, § 5. G. S. 104, § 6. P. S. 123, § 5. ' ^^^^' ^■"'' § ■''• 

1 Section 6. Property which is subicct to a mortgage, executed Provision for 

I •' ■'.,,. ^ '^ homestead 

2 before an estate of homestead was acquired therein, or executed estate subject 

3 afterward and containing a release thereof, shall be subject to an gage. 

4 estate of homestead, except as against the mortgagee and those p.' I.' m,' 1 6." 

5 claiming under him, in the same manner as if there were no such 
fi mortgage. If the OM'ner of the equity in such pro]ierty redeems the 

7 mortgage, he shall not be allowed to claim under it against the 

8 owner of the estate of homestead, his widow, heirs or assigns, but 



12G2 



HOMESTEADS. 



[Chap. 131. 



if said owner of the estate of homestead, his widow, heirs or assigns 9 

offers to redeem the residue above the homestead estate and the 10 

mortgage from a sale or set-off on execution and the judgment cred- 11 

itor has redeenu'd the mortgage, tlie amount paid for such redemp- 12 

tion of the mortgage, with interest and expenses, shall be included 13 

in the amount to be paid for the redemption of said residue. 14 



Release of 

homestead 

riglits. 

18S1, 340, 5§1,6- 

l!sW, 23S, 5§ 1, 5. 

la57, -iH!*, §§1,3, 

6-8, 10, U, 13. 

G. S. 104, §§ 7, 8. 

P. S. 1-23, § 7. 

11 Gray, 214, 

332. 

15 Gray, 139. 

16 Grav, 146. 

2 Allen", 202, 390. 
4 Allen, 516. 
6 Allen, 401. 
14 Allen, 1. 

99 Mass. 7. 

100 Mass. 234. 

101 Mass. 426. 



Section 7. No conveyance of property in which an estate of 
homestead exists, and no release or waiver of such estate, .shall 
convey the part so held and exempted, or defeat the right of the 
owner or of his wife and children to a homestead therein, unless 
such conveyance is by a deed in which the wife of the owner joins 
for the purpose of releasing such right in the manner in which she 
may release her dower, or unless such right is released as provided 
in chapter one hundred and fifty-three ? but a deed duly executed 
without such release shall be valid to pass, according to its 
terms, any title or interest in the property beyond the estate of 
homestead. 121 Mass. 19. 

137 Mass. 30. 140 Mass. 64. 156 Mass. 114. 161 Mass. 276. 



1 

2 
3 

4 
5 



9 
10 
11 



Homestead 
estate, contiu. 
uance of, after 
death of house- 
holder. 
1851, 340, § 2. 
1855, 238, ? 2. 
1857, 298, § 2. 
G. S. 104, § 12. 
P. S. 123, § 8. 
5 Allen, 146. 
11 Allen, 194. 
97 Mass. 136, 
392. 

lOOMass. 234. 
131 Mass. 186, 
446. 
ISSMass. 286. 



Section 8. The estate of homestead exi.sting at the death of a 1 

householder shall continue for the benefit of his widow and minor 2 

children, and shall be held and enjoyed by them, if one of them or a 3 

imrchaser under the provisions of section ten occupies the premises, 4 

until the youngest child is twenty-one years of age and until the 5 

marriage or death of the widow. But all the right, title and (i 

interest of the deceased in the premises in which such estate exists, 7 

except the estate of homestead thus continued, shall be subject to 8 

the laws relating to devise, descent, dower and sale for the payment 9 

of debts and lejjacies. uiMass. i87. loi Mass. 276. 10 



Section 9. If a widow or minor children are entitled to an 



— set-off of, to 

widow or chil- .... , . . . 

dren. estate of homestead as provided in the precedmsj section, it may 

1867, 298, § 14. ' I tr ' ./ 

G. S. 104, § 13. 
P. S. 123, § 9. 



be set otl" to them in the same manner as dower. 5 Alien, 77. 

8 Allen, 575. 9 Allen, 239, 242. 97 Mass. 392. 101 Mass. 418. 131 Mass. 186. 



— sale of rights 

of widow, etc., 

in. 

G. S. 104, § 14. 

P. S. 123, § 10. 

11 AUen, 194. 



Section 10. The widow and the guardian of the minor children, 1 

if he has obtained a license therefor from the probate coiut as in 2 

the case of sales of land of minors, may join in a sale of an estate 3 

of homestead ; or, if there is no widow entitled to rights therein, 4 

the guardian may, upon obtaining such license, make sale of such 5 

estate ; and the widow may make such .sale if there are no minor (5 

children. The piu'chaser .shall enjoy and possess the jiremises for 7 

the full time that the Avidow and children or either of them might 8 

have continued to hold and enjoy them if no sale had been made. 9 

The probate court may apportion the proceeds of the .sale among 10 

the parties entitled thereto. 11 



Section 11. If an estate of homestead exists in property in 



Partition of 
property in 

which estate which other parties have an interest, the iiartv entitled to the home- 

of homestead ' . i • i " 

exists. stead, or any other party interested in such property, may have par- 3 

G. s. 104, § 9.' tition thereof like tenants in common. p. s. 123, §ii. 4 



Set.off of 

homestead 

cst:ite of in. |aw 

Bolvent. 



Section 12. If the property of a debtor is assigned under the 1 
relative to insolvent debtors, and such debtor claims, and 2 



Chap. 132.] rights of husband and wife. 1263 

3 it appears to the court wherein the proceedings in insolvency are isst, sas, § le. 

4 pending, that lie is entitled to hold a part thereof as a homestead and p.' s.' 123,' | w." 

5 that the iiroj)i'rtA' in which such estate of homestead exists is of greater ^'" ^"''°' ^*'' 

6 value than eight hundred dollars, the com-t shall cause thf propert}' to 

7 be appraised hy three disinterested appraisers, one of whom shall be 

8 apjiointed by the insolvent, one b}^ the assignee and the third by the 

9 court : or if either the assignee or insolvent neglects to appoint, the 

10 court shall appoint for him. The appraisers shall be sworn faithfully 

11 and impartially to appraise the jiropcrty, and shall appraise and set 

12 oft' an estate of homestead therein to the insolvent debtor in the 

13 manner prescribed in the following section in case of a judgment 

14 debtor : and the residue shall vest in and be disposed of by the 

15 assignee in the same manner as property which is not exempt by 
1(> law from levy on execution. The appraisers shall be entitled to the 
17 same fees, to be paid out of the estate in insolvency, as are allowed 
IS to an appraiser of land seized upon execution. 

1 Section 13. If a judgment creditor requires an execution to be Levy of execu. 

2 levied on property' which is claimed by the debtor to be as a home- pro,"?ty"in 

3 stead exempt from such levy, and if the othcer who holds such "tiadVST 

4 execution is of opinion that the premises are of greater value than jg'. i^j. § ^• 

5 eight hundred dollars, appraisers shall be appointed to appraise the iss'i ius; § is. 

fi propertv in the manner provided by law for an apiiraisal in the case g. s. iw, § 11. 
All/ 1 1/ !■* T*^l '2'-t s 1 ^ 

7 of the levy of an execution on land. If, in the judgment of the ap- noray/n-. ' 

8 praisers, the premises are of greater value than eight hundred sg'jiass.^??' 

9 dollars, they shall set ofl' to the judgment debtor so much of the 

10 premises, including the dwelling house, in whole or in part, as shall 

11 appear to them to be of the value of eight hundred dollars; and 

12 the residue of the property shall be levied upon and disposed of in 

13 like manner as land which is not exempt from levy on execution ; 

14 and if the projierty levied on is subject to a mortgage, it may be set 

15 ofl' or sold subject to the mortgage and to the estate of homestead, 

16 in like manner as land which is subject to a mortgage only. 



CHAPTER 132. 

OF THE RIGHTS OF A HUSBAND IN THE REAL PROPERTY OF HIS DE- 
CEASED WIFE. AND THE RIGHTS OF A WIFE IN THAT OF HER 
DECEASED HUSBAND. 

1 Section 1. A husband shall, upon the death of the wife, hold ^afd'OT^MoW 

2 one-third of her land for his life. Such estate shall be known as inreaii>rop. 

,. ,, .. y. ■, 1.11 ertv ot the 

3 his tenanc\' by curtesy, and the provisions 01 law applicable to otiier. 

4 dower shall be applicable to curtesy. A wife shall, upon the death isVi-'s, 14, § i. 

5 of her husband, hold her dower at common law in her deceased Uot', lo, f 1* ' ''^' 
tj husband's land. Such estate shall be known as her tenancy by r '|'. eo, |u, 17. 

7 dower. But in order to be entitled to such curtesy or dower the }^' 40^5 4 

8 surviving husband or wife shall file his or her election and claim J^gfg'*''-^^^' 

9 therefor in the registry of probate within one year after the date ^fy^- 

10 of the approval of the bond of the executor or administrator of the p. s.i24',§§i,3. 

1 1 deceased, and shall thereupon hold instead of the interest in real prop- 1899; 479I §§"1, 2. 

12 erty given in section three of chapter one hundred and forty, curtesy 7'Gra'y,''533?' 



1264 



RIGHT8 OF HUSBAND AND WIFE. 



[Chap. 132. 



2 Allen, 45. 
113 M.nss. its. 
150 Mass. t4, 
•28a. 

167 Mass. 575. 
189 Mass. -213. 
171 Mass. HI. 
173 Mass. M'J. 
lU Mass. 582. 



or dower, respectively, otherwise such estate shall be hold to be 13 

^\•aived. Such curtesy and doiver may be assigned by the probate 14 

court in the same manner as dower is now assigned, and the ten- 15 

ant by curtesy or dower shall be entitled to the i)ossession and Ki 

profits of one undivided third of the real estate of the deceased from 17 

her or his death until the assignment of curtesy or dower, and to all LS 

remedies therefor which the heirs of the deceased have in the resi- IS) 

due of the estate. Rights of curtesy which exist when this chapter 20 

takes eti'ect may be claimed and held in the manner above provided, 21 

but in such case the husband shall take no other interest in the real 22 

or personal property of his wife, and, except as preserved herein, 23 

curtesv at common law is abolished. 24 



Eights of 
husband or 
ivirtow in 
real property 
of the other. 
1874, 184, § 2. 
F. S. 124, § 2. 



Section 2. If a deed of land is made to a mamed woman , who, 1 

at the time of its execution, mortgages such land to the grantor 2 

to .secure the payment of the whole or a part of the purchase money, 3 

or to a third person to obtain the whole or a part of such purchase 4 

money, her seisin shall not give her husband an estate by the curtesy 5 

as against such mortgagee. 6 



Wife not dow- 

able in wild 

laud. 

R. S. BO, § 12. 

1854, 40H, « 2. 

G. S. DO, §§ 12, 

15. 

P. S. 124, § 4. 



Section 3. A widow shall not be entitled to dower in wild land 1 

of which her husband dies seised, except wood lots or other land 2 

used with his fanu or dwelling house, nor in such land which is 3 

conveyed by him although it is afterward cleared. 4 

15 Mass. 164. 1 Pick. 21. 7 Pick. 143. 17 Pick. 248. 



Dower ill hus- 
band's rij^ht o 
redemption. 
R. S. 00, § 2. 
G. S. 'M, § 2. 
P. S. 124, § 5. 
15 Mass. 278. 
12 Cusll. 288. 

6 Gray, 314. 

7 Gray, 148. 

100 Mass. 224. 

101 Mass. 428. 
105 Mass. 111). 



Section 4. If, upon a mortgage made by a husband, his wife has 
released her right of dower, or if a husband is seised of land subject 
to a mortg<age which is valid and eflectual as against his wife, she 
shall nevertheless be entitled to dower in the land mortgaged as 
against ever}' person except the mortgagee and those claiming under 
him. K the heir or other person who claims under the husband re- 
deems the mortgage, the widow shall either repay such part of the 
money which was paid by the person so redeeming as shall be etjual 
to the proportion which her interest in the land mortgaged bears to 
the whole value thereof or, at her election, she shall be entitled to 
dower according to the value of the estate after deducting the money 
paid for redemption. 



1 
2 
3 
4 

5 

6 

7 

8 

9 

10 

11 

12 



— how re- 
leased. 
1097, 21, § 3. 
1783, 37, § 5. 
1823, 146, § 1. 
R. S. 60, § 7. 
1866, 169. 
G. S'. 90, § 8. 
P. S. 124, § 6. 
7 Mass. 14. 
18 Pick. a. 
6 Cush. 196. 



Section 5. A married woman ma}' bar her right of dower in 1 

land which is conveyed by her husband or by operation of law by 2 

joining in the deed conveying the land and therein releasing her 3 

right to dower, or by releasing the land by a subsecjuent deed ex- 4 

ecuted either separately or jointly with her husband. Her dower 5 

may also be released in the manner provided in chapter one hundred 6 

and fifty-three. 7 

4 Gray, 600. 107 Mass. 328. 137 Mass. 30. 



— how barred 

by jointure 

before mar. 

riage. 

R. 8. 60, § 8. 

G. s. 90, 1 a. 

p. S. 124, § 7. 
7 Mass. 1.53. 
2 Cush. 467. 
07 Mass. 196. 



Section 6. A woman may also be barred of her dower in all the 1 

land of her husband by a jointure settled on her with her assent 2 

before her marriage, if such jointure consists of a freehold estate in 3 

land f(n' her life at lea.st and is to take effect in posses.sion or profit 4 

immediatelj' upon the death of her husband. Her assent to such 5 

jointure shall be expressed, if she is of full age, by her becoming a 6 



Chap. 1o2.] rights of husband and wife. 1265 

7 party to the convc^-ance b}' which it is settled, and, if she is under 

8 age, b}' her joining with her father or guardian in sueli conveyance. 

1 Section 7. A pecuniary provision, made for the benefit of an in- Dower, how 

2 tended wife and in lieu of dower, shall, if assented to as provided peruni«ry 

3 in the preceding section, bar her dower in all the land of her hus- Ji™s"«'"§9- 

4 band. ISMass. lOe. 2Cu8h. 467. 5AUen, 187. 9 Allen, 234. P.' I.' 124,Vs.' 

1 Section 8. Such jointiu-e or pecuniary provision, if made after wanerof 

2 marriage, or made before marriage and without the assent of the in- withoJtwife't 

3 tended wife, shall bar her dower, unless within six months after the marria^e.""'"^ 

4 death of her husband she makes her election to waive such jointm-e J?; |; !j^; | j^; 

5 or provision. If the husband dies while absent from his wife, she J^y'^^ls ili 

6 shall have six months after notice of his death within which to make 

7 such election ; and she shall in all cases have six months after notice 

8 of the existence of such jointure or provision within which to make 
[) such election. 

1 Section 9. If a widow is entitled by the provisions of law. Assignment ot 

2 by deed of jointure, or under the will of her husband, to an undi- teresunims- 

3 vided interest in liis land either for life or during widowhood and in"otdisiJuted. 

4 her right is not disputed b}' his heirs or devisees, such interest J^io; nf.^ ^' 

5 may be assigned to her, in whatever counties the land lies, by the Q"s'ao'§§3 17 

6 probate coui't for the county in which the estate of her husband is i»'| «<^ j^ 

7 settled. Such assignment may be made upon her petition or. if she a kass! 9. 

8 does not petition therefor within one year after the decease of her 4 cusii'. -ai. 

9 hu.sband, upon petition by an heh- or devisee of her husband, by mMass.'lj. 

10 any person having an estate in the land subject to such interest or i^^ass. 46. 

11 by the guardian of any such heir, devisee or person. 

1 Section 10. Upon such petition, the coui-t shall issue a warrant f "^,e g'et'^og {.y 

2 to three discreet and disinterested persons, who shall be sworn to metesand ' 

, • 1 n • 1 n ,, 1 . -11 11 1 11 IV I'ounds, or out 

3 perform their duty laithtulh' and impartially and who shall set oil ojreuts. 

4 the widow's interest by metes and bounds if it can be so done with- nss, 4'o'§'3. 

5 out damage to the whole estate. But if the estate out of which a 2: s. an; §| 3,' s! 

6 widow's interest is to be assigned consists of a mill or other tene- fjiass'lsiB.^^' 

7 ment which cannot be divided without damage to the whole, such isMass. i64. 

8 interest may be assigned out of the rents or profits thereof, to be 

9 had and received b}' the widow as a tenant in common with the . 
10 other owners of the estate. 

1 Section 11. If a woman is entitled to an undivided interest in Provision ii 

2 land which is owned by her husband as tenant in common, the pro- tenant in 

3 bate court, upon petition b}' her or by any person entitled to petition \^","73.°' 

4 for assignment of her interest in her husband's land, after notice as Hvf/s^.'^*' 

5 in case of other partitions, may empower the commissioners to make ^- s- 1-*- ^ ^'- 

6 partition of the land so owned in common, and then to assign to the 

7 widow her interest in the portion set ofl" to the estate of her hus- 

8 band. 

1 Section 12. If a widow is entitled to an interest in land of .^'hne"?*^ 

2 which her husband died seised, she may, without having her interest j,'*u,'^y'*g'f„ 

3 assigned, continue to occupy such land with the heirs or devisees ^^nw" «>ti» 



1266 



DESCENT OF REAL PROPERTY. 



[Chap. 133. 



E. S. 60, § 6. 
<_;. S. 90, § 7. 
r. S. 124, § 13. 
Ifil Mass. 140. 
170 Mass. 643. 



of the deceased, or to receive her share of the rents or profits 4 

thereof, so long as such heirs or devi.sees do not object thereto ; and 5 

when the heu's or devisees or an^- of them desire to hold or occupy (5 

their share in severalty, the widow may claim her interest and shall 7 

have it assigned to her according to law. 8 



Limitation for 
claim of 
iutt'rest in 
realty. 
185.H, 61). 
G. S. 90, § 6. 
P. S. r24, § 14. 
1.199, 479, 5 4. 
l',«Kl, 4.i(l, § 6. 
7 Met. -24. 
161 Mass. 140. 



Section 13. No surviving husband or widow of a deceased per- 1 

son shall make claim for an interest in the real estate of such de- 2 

ceased or begin an action or other proceeding for the recovery 3 

thereof unless such claim or action is made or begun within twenty 4 

years after the decease of the wife or husband or after he or she has 5 

ceased to occupy, or receive the jffofits of, his or her share of such (> 

real estate, except that if at the time of such decease the surviv- 7 

ing husband or widow is absent from the commonwealth, under 8 

twenty-one years of age, insane or imprisoned, he or she may make 9 

such claim or begin such action or proceeding at any tune within 10 

twenty years after such disabilit}' ceases. 11 



Re-endowment 
of woman if 
evicted. 
R. S. 60, § 13. 
G. S. 90, 1 13. 
P. S. 124, § 15. 
13 Mass. 162. 
1 Met. 66. 



Section 14. If a woman is lawfully evicted of land which has 1 

been assigned to her as dower or settled upon her as jointure, or is 2 

deprived of the provision made for her by will or otherwise in lieu 3 

of dower, she ma}' be endowed anew in like manner as if such 4 

assignment, jointure or other provision had not been made. 5 



CHAPTEK 133 



OF THE descent OF REAL PROPERTY. 



Descent of real 
property of in- 
testiites'regu- 
luted. 

C. L. 168, § 3. 
1692-3, 14, § 1. 
1710-11, 2, § 1. 
1719-20, 10, § 4. 
1734-5, 16. 
1783, 36, § 1. 
17.H9, 2. 
1805, 90, § 1. 
R. S.61, §§ 1,12. 
G.S.91, §^ 1,11. 
1876, 220, §§ 1, 3. 
1880, 219. 
P. S. 126, § 1. 
20 Pick. 514. 
3 Jlct. 187. 
9 Met. 28. 
6 Clish. 156. 
1 Gray, 284. 
129 Mass. 266. 
149 Mass. 39. 
167 Mass. 499. 



130 Mass. 178. 
132 Mass. 628. 



Section 1. When a person dies seised of land, tenements or 1 

hereditaments, or of any right thereto, or entitled to any interest 2 

therein, in fee simple or for the life of another, not having la^\^'ully 3 

devised the same, they shall descend, subject to his debts and to the 4 

rights of the husband or wife and minor children of the deceased as 5 

provided in the two preceding chapters and in chapter one hundred (> 

and forty, in manner folloM'ing : — 7 

First, In equal shares to his children and to the issue of any de- 8 

ceased child by right of representation ; and, if there is no sm'viving S) 

child of the intestate, then to all his other lineal descendants. If all 10 

such descendants are in the same degree of kindred to the intestate, 11 

they shall share the estate equally; otherwise, they shall take 12 

according to the right of representation. 13 

Second, If he leaves no issue, then in equal shares to his father 14 

and mother. 1-^ 

Third, If he leaves no issue nor mother, then to his father. K! 

Fourth, If he leaves no issue nor ftither, then to his mother. 17 

Fifth, If he leaves no issue and no father or mother, then to his 18 

brothers and sisters and to the i.ssue of an}' deceased brother or sister lit 

by right of representation ; and, if there is no sm-viving brother or 20 

sister of the intestate, then to all the issue of his deceased brothers 21 

and sisters. If all such issue are in the same degree of kindred to 22 

the intestate, they .shall .share the estate equally ; otherwise, they 23 

shall take according to the right of representation. 24 



Chap. 134.] general provlsions relative to real property. 1267 

25 Sixth, If he leaves no issue, and no father, mother, brother or m Mass. .m 

2(5 sister, and no issue of any deceased brother or sister, then to his 149 Mass.' 502.' 

27 next of kin in equal degree ; but if there are two or more collateral 

28 kindred in equal degi'ee claiming through different ancestors, those 

29 who claim tlirough the nearest ancestor shall be preferred to those 

30 claiming thi'ough an ancestor who is more remote. 

31 Seventh, K an intestate leaves no kindred and no widow or le Pick. 177. 

32 husband, his or her estate shall escheat to the commonwealth. 

1 Section 2. The degrees of kindred shall be computed according Degrees ot 

2 to the rules of the civil law ; and the kindred of the half blood shall 173 36, §1. 

3 inherit equally with those of the whole blood in the same degree. R.^s.m.lk 

p. S. 1-25, § 2. 12 Mass. 489. 5 Gush. 232. 116 Mass. 562. '^- ^- ^^' ^ ^• 

1 Section 3. An illegitimate child shall be heir of his mother and JUfil'toTeheir 

2 of anv maternal ancestor, and the lawful issue of an illegitimate ?£,'?'''';"'">'"'• 

'ill 1 1111 1***^' ^■'■'■ 

3 person shall represent such person and take by descent any estate k- s. bi, § 2. 

. ... 1851 211 

4 which such person would have taken if living. g. s'. 9i,'§ 2. 

11 Met. 2i»4. 108 Mass. 40. 113 Maes. 430. 172 Mass. 473. ' ' ' 

1 Section 4. If an illegitmiate child dies intestate and without ^eTiei'r 01-°*' '° 

2 issue who may la^\'fully inherit his estate, such estate shall descend jj'-^ |3i>. 

3 to his mother or, if she is not living, to the persons who would g. s. 9i|§3! 

. . ^ . . p. S. 125 §4. 

4 have been entitled thereto by inheritance through his mother if he 1882,' 132.' 

5 had been a legitimate child. 4Pick. 93. 149 Mass. 502. 



1 Sections. An illegitimate child whose parents have intermarried, ^rteredieAti- 

2 and whose father has acknowledged hun as his child, shall be consid- !""'*•, "Z'**"^- 

, . ~ I.S52, Hi. 

3 ered legitimate. 18.53,2.53. g. s. 91, §4. r. s. ei, §4. 

p. S. 125, § 5. 5 Allen, 257. 8 Allen, 551. 

1 Section 6. Inheritance or succession by right of representation construction 

2 is the taking by the descendants of a deceased heir of the same n. .s.™i,^'§ 13. 

3 share or right in the estate of another person as their parent would p.' s.' i26,V6. 

4 have taken if living. Posthumous children shall be considered as 

5 living at the death of their parent. 



CHAPTEE 134. 

GENERAL PROVISIONS RELATIVE TO REAL PROPERTY. 



may 
take and con- 



1 Section 1. Aliens may take, hold, tran,smit and convey real ^"™*, 

2 property, and no title to real property shall be invalid on account vey reai prop 

3 of the alienage of a former owner ; but the provisions of this section i&ii.'io, 86. 

4 shall not defeat the title to any real property heretofore released or p.' s.' i>h, § i.' 

5 conveyed by the commonwealth or by authority thereof. 100 Mass. 627 



1 Section 2. If a contingent remainder, executory devise or other contingent 

2 estate in expectancv, is so granted or limited to a i^orson that in aiieuahie. 

3 case of his death before the happening ot the contingency the g. s. wi', § 37'. 

4 estate would descend to his heirs in fee simple, he may, before the ^Me'Jseer^" 



1268 



GENERAL PROVISIONS RELATIVE TO REAL PROPERTY. [ChaP. 134. 



3 Gray, 398. 
121 Mass. 198. 
125 Mass. 366. 



happening of the contingency, sell, assign or devise the land 5 

subject to the contingency. 126 Mass. 230. 139 Mass. 262. 6 



Estates tail 
liable for 
debts, etc. 
1791, 60, § 2. 
R. S. 60, § 29. 
G. S. 90, § 36. 
P. S. 126, § 3. 
4 Mass. 189. 
3 Gray, 162. 



Section 3. Land held in fee tail, except an estate tail in re- 1 

mainder, shall be liable for the debts of the tenant in tail, both in 2 

his lifetime and after his decease, as if held in fee simple ; and if 3 

taken on execution or sold by executors, administrators or guar- 4 

dians, the creditor or purchaser shall hold such land in fee smiple. 5 



e^JtorViu^' Section 4. If land is granted or devised to a person and after 
tobeirs""'"''^' ^^'^ death to his heirs in fee, however the grant or devise is ex- 
JCoR|i9. pressed, an estate for life only shall vest in such first taker, and a 
R. s. 59, §9. remainder in fee simple in his heirs. 

G. S. 89, § 12. 4 Gray, 3.'J3. 120 Mass. 106. 157 Mass. 53. 

P. S. 126, § 4. 16 Gray, 568. 131 Mass. 323. 163 Mass. 69. 

1 Met. 281. 99 Mass. 454. 149 Mass. 200. 



1 

2 
3 

4 



Effect of words 
" die without 
Issue", etc. 
1888, 273. 
163 Mass. 374. 



Section 5. In a limitation of real or personal property by deed, 1 

mil or other instrmiient in writing executed after the thirtieth day 2 

of April in the year eighteen hundred and eighty-eight, the words 3 

" die without issue ", or " die without leaving issue ", or " have no 4 

issue", or " die without heirs of the body", or other words im- 5 

porting either a want or failure of issue of any person in his life- 6 

time or at the time of his death, or an indefinite failure of his issue, 7 

shall, unless a contrary intention clearly appears by the instrument 8 

creating such limitation, mean a want or failure of issue in the life- SI 

time or at the time of the death of such person, and not an indeti- 10 

nite failure of his issue. 11 



— of con- 
veyances and 
devises to two 
or more per- 
sons. 

1785, 62, § 4. 
R. S. 59, §§ 10, 
11. 

G. S. 89, §§ 13, 
14. 

P. S. 126, §§ 5, 6. 
1885, 237. 

6 Mass. 343. 

7 Mass. 131. 
11 Mass. 469. 



Section 6. A conveyance or devise of land to two or more 1 

persons or to husband and wife, except a mortgage or a devise or 2 

conveyance in trust, shall create an estate in common and not in 3 

joint tenancy, unless it is expressed in such conveyance or devise 4 

that the gi'antees or devisees shall take jointly, or as joint tenants, 5 

or in joint tenancy, or to them and the survivor of them, or unless 6 

it manifestly appears from the tenor of the instrmiient that it was 7 

intended to create an estate in joint tenancy. 8 



16 Mass. 59. 
16 Pick. 491. 
4Cu8li. 111. 



5 Cusll. I.i3. 

6 Grav, 428. 
8 Gray, 154. 



16 Gray, 308. 
2 .\llen. 115. 
110 Mass. 396. 



141 Mass. 219. 
1.54 Mass. .537. 
158 Mass. 11. 



ten"intTo1-?iie SECTION 7. A Conveyance by a tenant for life or years which 1 

R 'ftll% 6 purports to grant a greater estate than he possesses or can la\\-fully 2 

g! is! 89, § o! convey shall not work a forfeiture of his estate, but shall via.ss to the 3 

T> S 126 5 7 • 

' ' ' grantee all the estate which such tenant can lawfully convey. 4 



Section 8. No expectant estate shall be defeated or barred by 



Expectant 
estJite not to be 

deicatciibvact an alienation or other act of the owner of the precedent estate, nor 
precedent liy the destruction of such precedent estate by disseisin, forfeiture, 

estate, etc. ' , ' 

R. s. 59, § 7. surrender or merger. 



G. S. 89, § 10. 



P. S. 126, § 8. 



1 Allen, 230. 



171 Mass. 504. 



1 

2 
3 
4 



Effect^oUw^ Section 9. The provisions of the two preceding sections shall 1 
tions. not prevent the barring of estates tail in the manner provided in 2 



Chap. 134.] general provisions relative to real property. 12(39 

3 chapter one hundred and twenty-seven, nor an expectant estate fi-om r. .s. 59, § 8. 

4 being defeated in a manner provided for or authorized by the person p.' s.' lie, § h.' 

5 creating such estate. 

1 Section 10. Fixtures annexed to the freehold by a life tenant ^"^^"l^'^j 

2 or b}' his assigns may be removed during the continuance of the life tenant 

3 estate or within a reasonable time after its determination ; and in p.'s. iW, §§ 10, 

4 determining what are fixtures, the rules of the coumaon law which 

5 prevail between a landlord and a tenant for years shall govern, 
fi The provisions of tliis section shall not aft'ect the right of the owner 

7 of land to make a dilierent provision b}' will or otherwise as to the 

8 removal of fixtures, nor impair or ali'ect the provisions of any will or 
Jt other instrument by which an estate for liie in land is created or 

10 limited. 

1 Section 11. If the supreme judicial court or the probate court Provision for 

2 for the county in which the land lies finds that wood or tim- ing wood 

3 ber, standing on land the use and improvement of which belongs, esbitefetc! 

4 for life or otherwise, to a person other than the owner of the fee r.^I. m, §§ 33- 

5 therein, has ceased to improve by growth, or ought for any cause to ^'s. 90 §§39- 

6 be cut, it may appoint a trustee to sell and convey said wood or *|^g ^49 

7 timber to be cut and carried away within a time to be limited in the p. s". ise, § 1-2. 

8 order of sale, to hold and invest the proceeds thereof after paying 

9 therefrom the expenses of such sale, to pay over the income, above 

10 the taxes and other expenses of the trust, to the person entitled to 

11 such use and improvement while his right thereto continues, and 

12 thereafter to pay the principal of the fund to the owner of such 

13 land. If wood or timber has been cut as aforesaid, no more thereof 

14 shall be cut on such land by the person entitled to such use and im- 
l.T )jr()vemeiit without permission from said court. Such sale if au- 
11) thorized b}' a probate court, shall be made in the manner pro\ided 

1 7 by law for the sale of real property by guardians ; and if such sale 

18 is authorized by the suj^reme judicial court, the trustees shall give 

19 to such person as the court shall designate a bond, for the use and 

20 benefit of the persons interested in the proceeds of the sale, with 

21 condition for the faithful discharge of the ti'ust ; and the com-t may 

22 from time to time remove the trustee, and appoint another in his 

23 stead. 

1 Section 12. A writ of entry, petition for partition or other pro- Proceedings 

2 ceeding, either at law or in equity, which affects the title to real to realty wnd- 

3 property or the use and occupation thereof or the l)uildings thereon, p^inies^when. 

4 shall not have any effect except against the parties thereto, their J?'^'||^'|^/^ ^• 

5 heu's and devisees and persons having actual notice thereof, until isa:, 463.' 

6 a memorandum containing the names of the parties to such pro- 

7 ceeding, the court in which it is pending, the date of the writ or 

8 other commencement thereof, the name of the city or town in ^vhich 

9 the real property liable to be affected thereby is situated and a de- 

10 scription of such real property sufficiently accurate for identification 

11 is recorded in the registry of deeds for the county or district in 

12 which such real property is situated ; but the provisions of this 

13 section shall not apply to attachments, levies of execution or pro- 

14 ceedings in the probate courts. 



1270 GENERAL PROVISIONS RELATIVE TO REAL PROPERTY. [ClIAP. 134. 

iiecord of cer. SECTION 13. At ail V time after filial iudiTment OF a decree ill favor 1 

titifJite of final ,. i i /. i /. it '. ~ ,. . , , 

iiispoBition of of the Qeiendaiit, or alter the discontinuaiiee, di.siiu.s.sal or other 2 

isTViM, r^- final dispo.sition, b}' consent of parties or otherwise, of a proceed- 3 

p. s. 126, §u- j,-jg mentioned in the preceding section, or in ease of the non-entr}' 4 

of the writ, petition or bill of comjilaint, the clerk of the court 5 

wherein such judgment, decree, discontinuance, dismissal or other (> 

final disposition is recorded, or out of which such writ issued or 7 

to which such petition or bill of complaint was addressed, shall 8 

upon demand give a certificate of the fact of such judgment, decree, i) 

discontinuance, dismissal, final disposal or non-entry, and such 10 

certificate may be recorded in the registry in which the original 11 

record mentioned in said section was made. 12 

raen'tsa^'cting SECTION 14. A judgment or decree, at law or in equity, ren- 1 

i892''289. dered after the eighth day of June in the year eighteen hundred 2 

and ninety-two affecting the title to real property, shall not have any 3 

efi'ect except against the parties thereto, their heirs and devisees and 4 

persons having actual notice thereof, unless a certified copy of the 5 

record thereof has been recorded in the registry of deeds for the (> 

county or district in which the land lies, with a memorandum of 7 

the city or town in which the land lies and a description thereof suffi- 8 

ciently accurate for identification if the record of the judgment or Vt 

decree does not give those particulars. If a notice of the pendency 10 

of the action has been duly recorded in the registry of deeds, the 11 

record of the judgment or decree may be made within sixty days 12 

after its rendition, and the entry of an ordinary attachment of real 13 

property in the registry of deeds shall be considered notice of the 14 

pendency of the action. l5 

S-tfidiieii!''*^^ Section 15. A person shall not make an entry into land or tene- 1 

1-8^8 '/i^^' ™6nts except in cases where his entry is allowed by law, and in 2 

R. s. 104, § 1. such cases he shall not enter by force, but in a peaceable manner. 3 



1861, 233, § 76. 



G. S. 137, § 1. 5 Met. 343. 1 Allen, 215. 121 Mass. 309, 

P. S. 126, § 1,5. 4 Cusli. 141. 99 M.1S8. 385. 170 Mass. 29. 



breach^of SECTION 1(5. If real property has been conveyed by deed on a 1 

i89s'6i4°' condition therein expressed, which is not a mortgage, the grantor, 2 

his heirs and devisees upon breach of such condition may enter 3 

on the granted premises in order to revest the title ; and a certifi- 4 

cate of such entry, made and sworn to before a justice of the jieace .') 

by two competent witnesses and recorded within thirty days after (i 

such entry in the registry of deeds for the county or district in which 7 

the land is situated, or a duly certified copy of the record of such S 

certificate shall, after tlie exiiiration of three years from such entry, !• 

be jirima facie evidence of such breach and entry. If a grantor, his 10 

heirs or devisees made such entry and certificate and filed the cer- 1 1 

tificate as herein requii-ed prior to the ninth day of June in the year 12 

eighteen hundred and ninety-eight, said certificate or a duly cer- 13 

tified copy of the record thereof shall have like force and effect. 14 

Effectof Section 17. No descent or discontinuance shall take away or 1 

fKeo«nt or dlB- , . • i ,. ,. ■ ,. i /. , 

continuance, defeat any right oi entry or ot action tor the reco\'ery oi real prop- 2 

R. S. 101, i6; ^ •' ° •' "^ o 

U9, §13. erty. g. s. 134, §<; 154, §i3. p. s. 126, §i6. o 



Chap. 134.] general provisions relative to real property. 1271 

1 Section 18. If real property, upon -which aii}^ cncumbi'ance ex- Grantor to 

2 ists, is convej'cd by deed or mortgage the grantor, in whatever br'ances known 

3 capacity he may act, shall before the consideration is paid, by ex- issIT^ttTI'i. 

4 ccption in the deed or otherwise, malie known to the gi-antee the p.' |: ilti.Vn- 

5 existence and nature of such prior encumbrance so far as he has 

6 knowledge thereof. 

1 Section 19. Whoever conveys real property by a deed or mort- -uabie 

2 gage which contains a covenant that it is free from all encumbrances in removing 

3 shall, if it appears by a public record that an actual or apparent encumbrance. 

4 encumbrance, known or unknown to him, exists thereon, be liable Jl^l'.sg.'ln. 

5 in an action of contract to the grantee, his heirs, executor, admin- fgg ^11^'. 439.' 

6 istrator, successors or assigns, for all damages sustained in remov- Jgi^asIiaT' 

7 ing the same. 

1 Section 20. Conditions or restrictions, unlimited as to time, by ReBtrictions or 

2 which the title or use of real property is affected shall be limited to etc°foi''reai 

3 the term of thirty years after the date of the deed or other instrument f^T'i'iF' 

4 or the date of the probate of the will creating them, except in cases 

5 of gifts or devises for public, charitable or religious purposes. The 

6 provisions of this section shall not apply to conditions or restrictions 

7 existing on the sixteenth day of July in the year eighteen hundred 

8 and eighty-seven or to those contained in a deed, gift or grant of 
y the commonwealth. 



1272 WILLS. [Chap. 135. 



TITLE II. 

OF WILLS, OF THE SETTLEMENT OF THE ESTATES OF DECEASED 
PERSONS, OF GUARDIANSHH', AND OF TRUSTS. 

Chapter 135.— Of Wills. 

Chapter 136. — Of the Probate of Wills and the Appointment of Executors. 

Chapter 137. — Of the Appointment of Administrators. 

Chapter 138. — Of Public Administrators. 

Chapter 139. — General Provisions rel.ative to Executors and Administrators. 

Chapter 140. — Of Allowances to Widows and Children, the Distribution of 
the Estates of Intestates and of Advancements. 

Chapter 141. — Of the Payment of Debts, Legacies and Distributive Shares. 

Chapter 142. — Of Insolvent Estates of Deceased Persons. 

Chapter 143. — Of the Settlement of the Estates of Deceased Non-Residents. 

Chapter 144. — Of the Settlement of Estates of Absentees. 

Chapter 145. — Of Guardianship. 

Chapter 146. — Of Sales, Mortgages and Leases of Real Property by Execu- 
tors, Administrators and Guardians. 

Chapter 147 . — Of Trusts. 

Chapter 148. — Provisions relative to Sales, Mortgages, etc., by Executors, 
etc. 

Chapter 149. — Of Bonds of Executors, Administrators, Guardians and 
Trustees. 

Chapter 150. — Of the Accounts and Settlements of Executors, Administra- 
tors, Guardians, Trustees and Receivers. 



CHAPTEK 135, 

OF WILLS. 



Sections 1-9. — M.aking and Revocation. 

Sections 10-15. — Custody of Wills, and their Production in Court. 

Sections 16-18. — Rights of Husband or Widow . 

Sections 19-24. — Provisions for .Special Cases. 

Sections 25-30. — Contribution among Devisees and Legatees. 

MAKING AND REVOCATION. 

By whom and SECTION 1. Everv persoii of fiill age and sound mind may by 1 

how wills may ... .,i . . . ~ ^ . i , i • * , . , . -^ - 

be made. his last Will in Writing, Signed by him or by a person in his pres- 2 

fs. • •' • • cnce and by his express dii-ection, and attested and subscribed in 3 

c.'l.'i,§2. his presence by three or more competent witnesses, dispose of his 4 

im":)!' '^^' property, real and ])crsonal, except an estate tail, and except as is .5 

R.'^s.w.llV,^' pi"ovided herein and in chapters one hundred and thirtj'-one and (5 

Jj^ ,^ one hundred and thirty-two and in section one of chapter one hun- 7 



Chap. 135.] avills. 1273 

8 dred and fifty-three. A married woman, in the same manner and [^^Oj '^JJ"- ^ , 

9 with the same effect, may make a will. is57;24a;§4. 

G. S. a2, §5 1, 1S85, 255. 9 Met. 28. 09 Mass. 79. 

2, 6; 108, §'§ 9, 10. 1887, 200, § 2. 2 Cush. 433. 110 Mass. 137. 

1864, 198, 270. 1899, 479, Ǥ 8, 9. 12 Cusll. 332. 133 IMass. 238. 

P. S. 127, §1; 1900, 4.10, § 7. IfiGrav, 91. 160 Mass. 140. 

147, § 6. 17 Pick, 134, 373. 10 Alk-'n, 1.53, 1.56. 169 Mass. 74, 186. 

1884,301. 23 Pick. 10. 11 Allen, 49. 176 Mass. 216. 

1 Section 2. If a witness to a will is competent at the time of ^""nesses'^ °' 

2 his attestation, his subsequent incomiietency shall not prevent the r'^^' 'J^; L'^ = 

3 probate and allowance of sucli will, nor shall a mere charge on the g. s. 92', §§ e', ' 

4 land of the testator for the payment of his debts prevent a creditor p.'s. 127, §2. 

5 from being a competent witness to his will. " *^^' '^' 

9 Pick. 350. 10 Allen, 153. 

1 Section 3. A beneficial devise or legacy which is made in a will ^fr^jJ.^v^^tcT 

2 to a subscribing witness thereto, or to the husband or wife of such 5;|j"t4'*«n 

3 witness, shall be void unless there are three other competent sub- is. ' 

,.,.'., 4. 1 -n R. S. 62, §8. 

4 scribing witnesses to such will. g. s. 92, §io. 

1878, 122. P. S. 127, § 3. 106 Mass. 474. 172 Mass. 425. 

1 Section 4. A will which is made and executed in conformity wiiismadein 

2 with the law existing at the time of its execution shall have the wi'ti'/ii""'^^'' 



o 



iw at 



3 same effect as if it were made pursuant to the provisions of this ijJUJ* «' ^xecu- 

4 chapter. isss, 2. g. s. 92, § 7. p. s. 127, § 4. 

1 Section 5. A will which is made out of the commonwealth and '^i^^^eomn^ 

2 is valid according to the laws of the state or country in which it was mnnweaith. 

O . . » 1.843, 92. 

3 made may be proved and allowed in this commonwealth, and shall <;. s. 92^§8. 

4 thereupon have the same effect as if it had been executed according a cu'siit'246. " 

5 to the laws of this commonwealth. i3Aiien,38. i3Gra>,330. 

1 Section (5. A soldier in actual militarv service or a mariner at -riuncupa- 

2 sea may dispose 01 his personal property by a nuncupative will. 1692-3, 15, § 11. 

R. S. 62, § 7. G. S. 92, § 9. P. S. 127, § 6. '^ . - . i ■ 

1 Section 7. No will, except as provided in this chapter and in — probate of, 

2 chapter one hundred and fifty-tliree, shall pass anv i)ro})crtv, real or r.'^.s,'62,^§ 32. 

"' G. .S. 92, § 38. 

"^ , § 7. 

433. 



3 personal, or charge or in anyway affect the same; and no will p^i! 

4 .shall take effect until it has been duly proved and allowed in the \\^l^^^'^ 

5 probate court. Such probate shall be conclusive as to the due ?,*'!'*?''*'■„ 

1 . , .,, ^ 11 Cusll. ol9. 

6 execution ot a will. 140 Mass. 411. 12AUen, 1. 



114. 



1 Section 8. Xo %vill shall be revoked except by burning, tear — revocation 

2 ing, cancelling or obliterating it with the intention of revoking it 1692-3, 15, §§ 4, 

3 b}' the testator himseff or by a person in his presence and b_v his jijg .^4 §g .j^ e. 

4 direction ; or by some other writing signed, attested and subscribed ys'?ii'|?i 

5 in the same manner as a will ; or bv subsequent changes in the }'„?-.^''^Iil *• 

T • . !• 1 ' • 1 • 1 .1 Pick. 535. 

6 condition or circumstances 01 the testator troiii which a revocation 5 pick. 112. 

_ . . , . 1 , , 9 Pick. 3.50. 

7 is implied bv law. l^S Mass. 102. 138 Mass. 45, II6. 141 Mass. 75. 4 Grav, 162. 

'■ - 114 Mass. 510. 

1 Section 9. The marriage of a person shall act as a revocation —revocation 

2 of a will mad(^ by him previous to such marriage, unless it appears ^lage^™*"^" 

3 from the will that it was made in contemplation of such marriage. uimVIs. 475. 

4 K the will is made in the exercise of a power of appointment and JfiiMass'loi" 



1274 



WILLS. 



[CiiAv. 135. 



the real and personal property subject to the appointment would 
not, without the appointment, pass to the persons who would have 
been entitled to it if it had been the estate and propext}' of the 
testator making the appointment if he had died intestate, so much 
of the will as makes the appointment shall not be revoked by the 



(i 
7 
8 
i) 
10 



Deposit of 
will iu rejriBtry 
of proljate. 
R. S. m, ^ 10. 
G. S. 92, § 12. 
I'. S. 127, § 9. 



CUSTODY OF WILLS, AND THEIR PRODUCTION IN COURT. 

Section 10. A will may be deposited by the testator, or by any 
person for hmi, in the registry of probate in the county in which the 
testator lives, to be safely kept until delivered or di.sposed of as 
hereinafter provided ; and the register, upon being paid a fee of 
one dollar therefor, shall receive and keep such will and give a cer- 
tificate of the deposit thereof. 



1 
2 

3 
4 
5 
6 



Form of 
deposit. 
R. S. 62, § 11. 
G. S. 9-2, § 13. 
P. S. 127, § 10. 



Section 11. A will intended to be deposited as aforesaid shall 1 

be enclosed in a sealed wrapper, with an indorsement thereon of 2 

the name and residence of the testator and of the day when and 3 

the person by whom it is deposited, and the \VTapper may also have 4 

indorsed upon it the name of a person to whom the will is to be 5 

delivered after the death of the testator. A will, when so depos- ti 

ited, shall not be opened until it is delivered to a person entitled to 7 

receive it or is otherwi.se disposed of as hereinafter provided. 8 



Delivery of 

will so de- 
posited. 
R. S. 62, 5 12. 
G. S. 92, § U. 
P. S. 127, § 11. 



Section 12. During the lifetime of the testator such will siiall 1 

be delivered only to him or in accordance with his order in ^vi'iting 2 

duly proved before the judge of probate by the oath of a sub- 3 

scribing witness ; and after his death it shall be delivered to the 4 

person named in the indorsement, if such person demands it. 5 



^"to'be*""""' Section 13. K the will is not called for by the person, if any, 1 

opened at first named in the indorsement, it shall be publicly opened at the first 2 

R. s. 62, §13. probate court held after notice of the testator's death, and shall be 3 

retained in the registry' until it is so opened. If the jm-isdiction 4 

of the case belongs to another com't, it shall be delivered to the 5 

executors or other persons entitled to the custody thereof, to be b}' 6 

them presented for probate in such other court. 7 



G. S. 92, § 1.5 
P. S. 127, § 12 



Possessor of 
will to present 
it for probate. 
16M-3, 14, § 2. 
naS, 24, § IK. 
1817, li», § 32. 
R. S. 62, § 14. 
G. S. 92, § 16. 
187S, 210. 
P. S. 127, § 13. 
4 Mass. 137. 
4 Pick. 33. 



Section 14. A person who has the custody of a -will, other than 
a register of jirobate, shall, within thirt}' days after notice of the 
death of the testator, deli\er such will into the probate court which 
has jurisdiction of the probate thereof, or to the executors named 
in the will, who shall themselves deliver it into such court within 
.said time ; and if a person neglects without reasonable cause so to 
deliver a will, after being duly cited for that purpose by such couit, 
he may be committed to jail by -warrant of the court until he 
delivers it as above provided ; and he shall be fui'ther liable to a 
person who is aggrieved for the damage sustained by him by reason 
of such neglect. 



1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 



rgSt^ef-* Section 15. If a person claiming to be interested in the estate 1 

sons suspected of a person deceased makes comi)laint under oath to a probate court 2 

of concealing .' i^^.. ,. .. o 

wills, etc. against any one suspected oi retaining, concealing, or conspiring 3 



ChAI'. 135.] WILLS. 1275 

4 with others to retain or conceal, a will or testamentary insti-ument J?^^,. [*>^- 

5 of the deceased, the court may cite the suspected person to appear «-, '1 
(5 befoi'e it and be examined on oath upon the matter of the complaint. • ■ "'• 

7 Upon such examination all interrogatories and answers shall be in 

8 writing signed by the person examined, and shall be filed in the 

9 court. If the person cited refuses to appear and submit to examina- 

10 tion or to answer such interrogatories as are lawfull}^ propounded 

11 to him, or to obey an}' la«i:'ul order of the court, he luay be com- 

12 mitted to jail by warrant of the com't until he submits to its order. 

13 The court may award costs to be paid by either party, and may 

14 issue execution therefor. 



RIGHTS OF HUSBAND OR wmOW. 

1 Section 16. The surviving husband, except as provided in Rights of 

2 section thirty-six of chapter one hundred ^nd fifty-tliree, or the nidmv.*'"'^ 

3 widow of a deceased person, at any time within one year after the uiH;^;^*' 

4 probate of the will of such deceased, may file in the registry of pro- J^sV^.]:!!!^"- 

5 bate a ^vriting signed b}' him or b}' her, waiving any provisions that 'i^.f- [Ijv |¥- 

6 may have been made in it for him or for her, or claiming such por- isTiiaoo! 

7 tion of the estate of the deceased as he or she would have taken if p. s. i^':, § i8. 

8 the deceased had died intestate, and he or she shall thereupon take ium'; Iw J ?!*' 

9 the same portion of the property of the deceased, real and personal, •] iiion,' Iw! 

10 that he or she would have taken if the deceased had died intestate ; ''nf '^'"' i"*- 

11 except that if he or she would thus take real and personal property J'jrJ}"*^^- ■•'•'. 

12 to an amount exceeding ten thousand dollars in value, he or she nis Massl 413! 

13 shall receive in addition to that amount onlv the income during- his 

14 or her life of the excess of his or her share of such estate above that 

15 amount, the personal property to be held in trust and the real 

16 property vested in him or her for life, from the death of the 

17 deceased ; and except that if the deceased leaves no kindred, ho or 

18 she upon such waiver shall take the interest he or she would have 

19 taken if the deceased had died leaving kindred but no issue. If 

20 the real and personal property of the deceased which the surviving 

21 husband or widow ttikes under the foregoing provisions exceeds ten 

22 thousand dollars in value, the ten thousand dollars above given 

23 absolutely shall be paid out of that part of the personal px'operty in 

24 which the husband or widow is interested ; and if such part is in- 

25 sufBcient the deficiency shall, upon the petition of any person 

26 interested be paid from the sale or mortgage in fee, in the manner 

27 provided for the payment of debts or legacies, of that part of the 

28 real property in which he or she is interested. Such sale or mort- 

29 gage may he made either before or after such part is set ofl" from 

30 the other real property of the deceased for the life of the husband 

31 or widow. 

32 If, after probate of such will, legal proceedings have been in- 

33 stituted wherein its validity or efl'ect is drawn in question, the 

34 probate court may, within said one year, on petition and after such 

35 notice as it may order, extend the time for filing the aforesaid 

36 claim and Maiver until the expiration of six months from the ter- 

37 mination of such legal proceedings. 



1 Section 17. The probate court may upon application of a Appointment 

2 person interested appoint one or more trustees, who shall be subject hoidliusfifinJi's 



1276 



WILLS. 



[Chap. 135. 



to the provisions of chapter one hundred and forty-seven so far as 3 
applicable, to hold during the life of a husband or widow any -t 



or widow's 

share. 

1861, 164, 5 2. 

1870, 262, § 1. - - - . . , 

P. s 127, §19. personal property to the income of which he or she may be entitled 

1899, 4,1), §11. ' J ,, ' . . J. ,, J. ,. *' 

1900, 460, §8. under the provisions 01 the preceding section. 



Widow not to 
have dower iu 
additiou to 
provisions of 
mil, unless, 
etc. 

1783, 24, § 8. 
R. S. 60, § 11. 
G. S. 92, § 24. 
1861, 164, § 1. 



Section 18. A husband shall not be entitled to his tenancy by 1 

the curtesy in addition to the provisions of his deceased wife's will, 2 

nor a M'idow to her dower in addition to the provisions of her 3 

deceased husband's will, unless such plainly appears by the will to 4 

have been the intention of the testator. 5 



p. S. 127, § 20. 
12 Pick. 146. 



5 Met. 277. 
4 Cush. 174. 



\m Mass. 246. 
135 Mass. 326. 



140 Muss. .562. 
144 Mass. 564. 



Child not pro- 
vided lor in 
wUl. 

1700-1, 4, 1 2. 
1783, 24, § 8. 
E. S. 62, § 21. 
G. S. 92, § 2a. 
P. S. 127, § 21. 

2 Gray, 535. 

3 Gray, 367. 



PROVISIONS FOR SPECIAL CASES. 

Section 19. If a testator omits to provide in his will for any 1 

of his children or for the issue of a deceased child, they shall take 2 

the same share of his estate which they would have taken if he 3 

had died intestate, unless they have been provided for by the testator 4 

in his lifetime or unless it appears that the omission was intentional 5 

and not occasioned by accident or mistake. 6 



11 Allen, 47. 
97 Mass. 439. 
101 Mass. 126. 



106 Mass. 320. 
112 Mass. 184. 
126 Mass. 135. 



132 Mass. 131. 
137 Mass. 86. 
164 Mass. 38. 



170 Mass. 403. 
133 U. S. 216. 



rmidre"""' Section 20. If a child of a testator, born after his fathers 1 

i78.3"24*§V' death, has no provision made for him by his father in his will or 2 

5-§?i§*f otherM'ise, he shall take the same .share of his father's estate which 3 

he would have taken if his father had died intestate. 137 Mass. 527. 4 



G. S. 92, § 26. 
P. S. 127, § 22. 



Devisee or 
legatee dying 



Section 21. If a devise or legacy is made to a child or other 
bSore tesbitSr. relation of the testator, who dies before the testator, but leaves 

~ ~ issue surviving the testator, such issue shall, unless a dmerent di.s- 

position is made or required by the will, take the same estate which 
the person Avhose issue they are would have taken if he had sur- 
vived the testator. 9 cush. 122. 

101 Mass. 36. 108 Mass. 382. 1.5S Mass. 415. 162 Mass. 448. 



R. S. 62, § 24 
G. S. 92, § 28. 
P. S. 127, § 23. 
18 Pick. 41. 
5 Met. 3%. 
7 Met. 141. 



1 

2 

3 
4 
5 
6 



Devise to give SECTION 22. A devise shall convey all the estate which the tes- 1 

G I'li'lt' tator could lawfully devise in the land mentioned, unless it clearly 2 

p. s. 127, §24. appears by the will that he intended to convey a less estate. 

4 Gray, 348. ^' -^ ■' 



98 Mass. 76. 



108 Mass. 529. 



147 Mass. 670. 



168 Mass. 144. 



170 Mass. 403, 540. 



6 ISIass. 149. 
5 Pick. 112. 



7 Met. 141. 
12 Met. 262. 



1 Cush. 107. 
4 Cush. 369. 



106 Mass. .578. 
170 Mass. 403. 



quh-ed'a'fter SECTION 23. An cstatc, right or interest in land acquired by a 1 

to^'pasf by it.'" tcstator after the making of his will shall i)ass thereby in like man- 2 

G I' if>' ti "^^ ^''' ^^ possessed b}^ him at the tmie when he made his will, unless 3 

p.' s. 127, § 25. a different intention manifestly and clearl}-^ appears by the will. 4 



Devise of land 
to wliich 
testiitor has 
only right of 
entry. 
R. S. 62, § 2. 
G. S. 92, § 3. 
p. S. 127, § 26. 
10 Mass. 131. 
16 Mass. 115. 
15 Pick. 185. 
12 Met. 501. 



Section 24. If a testator devises land of which he is not seised, 1 

but in Avhich he has a right of entry, or if, after making a will, he 2 

is disseised of land devised thereby, such land shall nevertheless 3 

pass to the devisee in like manner as it would have descended to 4 

the testator's heirs if he had died intestate, and the devisee .shall 5 

have the same remedy for the recovery of such land as such heirs 6 

might have had. 7 



Chap. 135.] wills. 1277 

contribution among devisees and legatees. 

1 Section 25. If a posthumous child or a child, or the issue of a Contribution 

2 child, omitted in the will takes under the provisions of section nine- portion o"'' 

3 teen or twenty a portion of the estate of a testator, such portion or omu'ted'^ 

4 shall be taken from all the devisees and legatees in proportion to n^f.24, § 7. 

5 and not exceeding the value of what they respectively receive under ^- g g| | f^- 

6 such will, unless in consequence of a specific devise or legacy or Jg^'jjagg' y^- 

7 of some other provision of the will a diflerent apportionment is 

8 found necessary to give efl'ect to the testator's intention relative 

9 tf) that part of his estate which passes by his Mall. 

1 Section 2(5. Tf property which is given bv will is taken from — otdeviseeor 

2 a devisee or legatee for the payment of the debts of the testator, property is 

3 all the other devisees and legatees shall, subject to the provisions pa/ment^oi^* 

4 of the following section, contribute their respective jn-oportions of rrss^g, 37, § 3. 

5 the loss to the person from whom such property is taken, so that R.^l'.'^i.l'is. 
(5 the loss may fall on all the devisees and legatees in proportion p' §• j.fi V'^fj 
7 to and not exceeding the value of the property received by each. ekass. m 

» 1 1 J J 1 Cush. 107. 

1 Section 27. If the testator, by making a specific devise or speciHi appro- 

2 bequest, has virtually exempted a devisee or legatee from liability' I'stati'maiie'iiy 

3 to contribute with the others for the pajnnent of the debts, or if by 

4 any other provisions in his will he has prescribed or required an 

5 appropriation of his estate diiferent from that prescribed in the pre- «• s. 92, §§ 30, 

6 ceding section, his property shall be appropriated and applied in rv'^-.?-",'(.i^"- 

7 conformity with the provisions of the will, so far as such appi'opria- 13 Alien, iw. 

8 tion and application can be made without affecting the liability of v2-2 Mass! isi. 

9 his M^hole estate for the payment of his debts. 127 Mass! w!'' 

1 Section 28. If a posthumous child or a child, or the issue of ?^°,ttuT('hiia°'^ 

iialjle and 
entitled to con- 



tt^stator to be 
followed. 
R. S. «■->, §. 



2 a child, omitted in the will takes under the provisions of section 

3 nineteen or twent}' a portion of the estate of a testator, such portion ti'iijutVon." ' " 

4 of the estsite shall, for the purposes of the two preceding sections, g. s. o-2J§33! 

5 be considered as if it had been devised or bequeathed to such child •*'i-''§'^''- 

6 or other descendant : and he shall contribute with the devisees and 

7 legatees, and be entitled to claim contribution from them, as before 

8 i)rovided . 

1 Section 29. If a per.son who is liable to contribute according to insolvency of 

2 the provisions of the three preceding sections is insolvent or unable legatee. 

3 to pay his just jiroportion of the contribution required, the other g. s! 92', §33. 

4 i)ersons so liable to contribute shall be .severally liable for the loss ?• s. 127, § si. 

5 occasioned by such insolvency, each one in proportion to and not 

6 exceeding the value of the jirojierty received by him from the estate 

7 of the deceased ; and if a person who is so liable dies without 

8 having i)aid his ])roportion, his executors and adinini.strators shall 

9 be liable therefor in like manner as if it had been his own debt and 
10 to the extent to which he would have been liable> if living. 

1 Section 30. If the estate of a devisee under a will is taken for contribution 

il pst^ttp is 

2 the tenancy hy tiie curtesy of the husliiind, or for tiie dower of the taken from 

3 widow, of tiie testator, all the otiier devisees and legatees shall con- dmver! eie"! 

4 tribute their I'cspective proportions of the loss to the jierson tixnn u;^s'.'ii2,V3b. 



1278 



PROBATE OF WILLS. 



[ChaI'. 13(i. 



P. S. 127, § 32. 
137 Mass. 627. 



whom the estate is so taken, so that the kjss may fall upon all the 5 

devisees and legatees in proportion to and not exceeding the value 6 

of property I'cceived by them under the will ; but no devisee or 7 

legatee shall contribute if exempted therefrom by the provisions of 6 

the will. 9 



CHAPTER 136. 

OF THE PROBATE OF WILLS AND THE APPOINTMENT OF EXECUTORS. 

under°oath.''^ SECTION 1. A petition for the probate of a will, letters of 1 

1891,414. administration or letters testamentary shall have annexed an atfi- 2 

davit of the petitioner that the statements therein made are true to 3 

the best of his knowledge and belief. 4 



Proof of will 
on testimony 
of one 



Section 2. If it appears to the probate court, by the consent in 
witness. Writing of the heirs, or by other satisfactory evidence, that no 
1817, ii)o, § 33. person interested in the estate of a person deceased intends to 
-■'-'-'--■ object to the probate of an instrument piu-porting to be the will of 



G. 8. 92, § 19, 
P. S. 129, § 1. 
1901,242. 
3 Mass. 23(i. 



such deceased person , the court may gi'ant probate thereof upon the 
testimony of one only of the subscribing witnesses ; and the affidavit 
of such witness, taken before the register of probate, may be received 
as evidence. 



1 

2 
3 
4 
5 
() 
7 
8 



Probate of will 

conclusive, 

wlien. 

1889, 43,5. 

3 Allen, 87. 

144 Mass. 416. 



Section 3. A decree allowing a will or adjudicating the inte.s- 1 

tacy of the estate of a deceased per.son in any coiu't in this com- 2 

monwealth having jurisdiction thereof shall, after two j-cars from 3 

the rendition of such decree, or, if proceedings for a reversal 4 

thereof are had, after two years from the establishment of such 5 

decree, be final and conclusive in favor of purchasers for value, in 6 

good faith, without notice of any adverse claim, of any property, 7 

real or personal, from devisees, legatees, heirs, executors, adminis- 8 

trators or guardians ; and in favor of executors, administrators, 9 

trustees and guardians, who have settled their accounts in due form 10 

and have in good faith disposed of the assets of the estate in accord- 11 

ance with law ; and also in favor of persons who have in good faith 12 

made pajaiients to executors, administrators, tru.stees or guardians. 13 

If a subsequent decree reverses or qualifies the decree so originally 14 

rendered, heh's, devisees, legatees and distributees shall be liable 15 

to a subsequent executor, administi"ator or other person found 1(5 

entitled thereto, for any proceeds or assets of the estate received 17 

by them under the former decree, and in such case proceeds of 18 

real property shall be treated as real property. The jirovisions 19 

of this section shall not make an adjudication of the fact of death 20 

conclusive. 21 



Probate court 

to issue letters 

testa tnentarv 

or of admluis. 

tration. 

R. S. 63, § L 

a. a. 93, § 1. 

p. S. 149, § 2. 



Section 4. If ^ will has been duly proved and allowed, the 
probate court shall issue letters testamentary thereon to the executor 
named therein, if he is legally competent and accepts the trust and 
gives bond to discharge the same ; otherwise .said court shall grant 
letters of administration on the estate as provided in the follow- 
ing chapter. 



ClIAP. 136.] PROBATE OF AVILLS. 1279 

1 Section 5. If a person named as executor in a will has deceased if one executor 

1 /• 1 • 1 1 • 1 /• 1 does nut jic- 

2 or rciuses to accept the trust, or, atter being duly cited tor the "ept, utters 

•~> 1 i. i i. ii 1 i. i" i i 1 ""*y '"^ granted 

6 pm-jiose, neglects to accept the same or neglects tor twenty da3's to the others. 

4 after the probate of the will to give bond according to law, the Rfl'.ll'.ls!' 

5 court shall grant letters testamentary to the other executors, if (^|'.S3,'§6. 
G there are an}' competent and willing to accept the trust. 172 Miiss. 4%. fij'^jjjfg' |.|,- 

1 Section 6. If a person named as executor in a will is at the if one executor 

2 time of the probate thereof under the age of twenty-one years, the Jfthers'imy aln 

3 other executor or executors, if a.ny, shall administer the estate until ?7Je',"^,'§'n5^' 

4 the minor arrives at full age, when, upon giving bond according to §' I'^'f;' 

5 law, he may be admitted as a joint executor of such will. p. s: 129, § i. 

1 Section 7. If a judge or register of probate desires to be Appointment 

2 appointed executor of the will of his M'ife, child, tather or mother, Teg\stvroi 

3 who at the tune of their decease were inhabitants of or resident in executor* etc. 

4 his county, or to be appointed admini.strator, or administi'ator with is9''>69>§i. 

5 the will annexed, of the estate of such wife, child, father or mother, 
<i such will may be proved and allowed and appointment made and all 

7 subsequent proceedings relative to the estate may be had in the 

8 probate court of any adjoining county. 

1 Section 8. The register of probate of the countv in which such copyofpro- 

-..,,. 1 , '^ . . 1 1 11 .. ■ 1 ■ , . ccedings filed, 

2 Will IS proved or such appointment is made shall forthwith transmit where. 

3 to the register of probate of the county in which the deceased ' ' 

4 resided, or of which said deceased was an inhabitant, a true and 

5 attested copy of the petition, the decree thereon, the will allowed, 

6 if any, the bond given and the letters of administration or letters 

7 testamentary, and he shall thereafter so ti-ansmit an attested copy 

8 of any inventory, account, affidavit or other paper that shall be tiled 

9 and entered on the docket, and of any petition on which a decree 

10 shall be made and of the decree thereon, which shall all be recorded 

11 by the register to M'hom the}' are transmitted. 

1 Section 9. The executor of an executor shall not, as such. Executor of 

, , . . /. 1 r- executor. 

2 administer on the estate 01 the hrst testator. nss, 24, § 19. 

R. S. fi3, 5 10. P. S. 121), « 10. 156 Mass. 313. 

G. S. as, § 9. 131 Mass. 408. 1.57 Mass. 160. 

1 Section 10. A person interested in a will which has been proved Allowance of 

c. in 1 • 1 /. 1 TT . 1 o ■ f • foreign wills. 

z and allowed in any other ot the United States or m a foreign country i786, 12, §§ 1, 2. 

3 according to the laws of such state or country, or in a will which, is. ' " 

4 by the laws of the state or country in which it was made, is valid i8'78,'2oi. ' 

5 Avithout probate, maj' produce to the probate court in any count}' in p.'s. m, lis. 
(i which there is any property, real or personal, on which such will 

7 may operate, a copy of such will and of the probate thereof, duly 

8 authenticated, or, if such will is valid without probate as aforesaid, 

9 a co))y of the will or of the official record thereof duly authenticated 

10 by the proper officer having custody of such will or record in such 

11 state or country; and the coui't shall thereupon assign a time and 

12 place for a hearing and cause notice thereof to be given to all per- 

13 sons interested by publication in a newspaper three weeks succes- 

14 sivcly, the first publication to be tliirty days at least before the time 

15 assigned for the hearing. 



1280 



ADMINISTRATORS . 



[Chap. 137. 



Allowance of 
foreign wills. 
1785, 1-2, §2, 
R. S. a, § lil. 
G. S. 9-2, § 2-2. 
187S, isa, § 1. 
P. S. 1-27, § 16. 

12 Met. 421. 
11 Cush. 519. 
10 Gray, 162. 

13 Gray, 330. 
HI Mass. 331. 



Section 11. If at such hearing tlie court finds from the copies 1 

before it and any additional iiroof as to the authenticity and execu- 2 

tion of the will that the iiisti'uiiient ought to be allowed in this com- 3 

nion wealth as the last will of the deceased, it sliall order the copy to 4 

be filed and recorded, and the will .shall then have the .same eU'ect 5 

as if it had been originally pi'oved and allowed in the probate court ti 

in the usual manner ; but the provisions of this section shall not 7 

give effect to a will which is made in this commonwealth by an in- 8 

habitant but is not executed according to the law thereof. 9 



Settk'ineut of 
estate in such 
casjs. 
1783, 12, § 1. 
E. S. 62, § 20. 
G. S. 92, § 23. 
P. S. 127, § 17. 
10 Cush. 17. 



Section 12. After allowing a will under the provisions of the 
two preceding sections, the probate court shall grant letters testa- 
mentary on such will or letters of administration with the will 
annexed, and shall proceed in the settlement of the estate which 
may be found in this commonwealth in the manner provided in 
chapter one hundred and forty- thi'ee relative to such estates. 



1 
2 

3 
4 
5 
6 



CHAPTEE 137. 

OF THE appointment OF ADMINISTRATORS. 

Sections 1-.5. — Ordinary Administration. 
Sections 6, 7. — Administration with the Will annexed. 
Section 8. — Administration de Bonis Non. 

Sections 9-15. — Special Administration. 



Administra- 
tion, to whom 
grautefl. 
C. L. 158, § 2. 
1692-3, 14, § 1. 
1783, 36, § 8. 
1817, 190, § 14. 
1833, 100. 
R. S. 64, 5 4. 

1839, 142, § 1. 

1840, 40, 5 1. 
185.S, 419. 
G. S. 94, § 1. 
P. S. 130, « 1. 
1890, 265, § 2. 

18 Pick. 24. 

19 Pick. 336. 
1 Cush. 525. 
4 Cush. 408. 



ORDINARY ADMINISTRATION. 

Section 1. Administration of the estate of a person deceased 
intestate shall be gi-anted to one or more of the persons hereinafter 
mentioned, M'ho .shall, subject to the provisions of the following 
section, be entitled thereto as follows : — 

First, His widow or his next of kin, or the widow jointly with 
the next of kin, as the probate court may determine. 

Second, If tlie deceased was a married woman, her husband, 
if he is competent and willing to undertake the tru.st, unless it is 
necessary or proper to appoint some other person. 

Third, If all said persons are incompetent or evidently unsuit- 
able for the discharge of the trust, or renounce the administration, 
or if without sufficient cause they neglect for thu-ty daAs after the 
death of the intestate to take administration of his estate, one or 
more of the principal creditors, after public notice upon the peti- 
tion. 

Fourth, If there is no such creditor willing and competent to 
undertake the trust, any suitable person. 

Fifth, If there is no widow, husband or next of kin within this 
commonwealth, a public administrator in preference to creditors. 



1 
2 
3 

4 
5 

i; 

7 
« 
1) 
10 
11 
12 
13 
14 
15 
l(i 
17 
18 
19 



klifwithout' Section 2. Administration of the estate of an intestate ma^' be 1 

liSS'ltJo granted to one or more of his next of kin or any suitable person, 2 

i89o; -266; § 1. if his widow and all his next of kin resident in the common- 3 

wealth, who are of full age and legal capacity, consent in writing 4 



Chap. 137.] administrators. 1281 

5 thereto. Notice of the petition may be dispensed with as if all 

6 parties entitled thereto had signified their assent or waived notice. 

1 Section 13. Administration shall not be originally granted after Adminietia. 

2 the expiration of twenty years fi"om the death of the testator or gmuted after 

3 intestate, except in cases expressly authorized by law. nil^se, h'o^.^ 

R. S. 64, § 13. G. S. 94, § 3. P. S. 130, § 3. 6 Custi. 493. 140 Mass. 156. 1^1^> l**, § 17. 

1 Section 4. If administration has not been taken on the estate —exception. 

2 of a testator or intestate within twenty years after his decease, g*'s.'^^!'§ 4. 

3 and any property or claim or right thereto remains undistributed r8'8f,'242.'^*' 

4 or thereafter accrues to such estate and remains to be administered, JaoVa^s. 83. 

5 original administration may for cause be gi-anted, but such admin- 

6 istration shall affect no other property. 

1 Section 5. If, after the granting of letters of administration as —to be 

2 upon an intestate estate, a will of the person deceased is dul_v probate of a 

3 pz'oved and allowed, such letters shall be revoked ; and the exec- TAi, \m, § u. 

4 utor or an administrator with the will annexed may demand, collect g! I'. 94', § ,5!"' 

5 and sue for all the personal property of the deceased which remains ^- ^- ^^' ^ ^• 

6 unadministered. 



administration with the will annexed. 

1 Section 6. If no executor is named in a will, or if all the exec — with the 

2 utors therein named are dead or incompetent or refuse to accept rea-i-s^u.T-i.' 

3 the trust, or if, after being duly cited for the purpose, the executor R.'^s'.iis', §5!' 

4 neglects to accept the trust, or neglects for twenty daj-s after the til's'. 93"; 5 e. 

5 probate of the will to give bond according to law, the court shall fji jj^lg' ||i 

6 commit administration of the estate, with the will annexed, to such 

7 person as would have been entitled thereto if the deceased had died 

8 intestate ; but after the expiration of said twenty days, and before 
!l letters of administration with the will annexed have been granted, 

10 the court may grant letters testamentary to any person named as 

11 executor who gives the bond required by law. 

1 Section 7. If a person named as executor is at the time of the —with the win 

2 probate of the will under the age of twenty-one years, administra- be griacteti 

3 tion with the will annexed may be granted during his minority, il i^nfum" ""^ 

4 unless there is another executor who accepts the trust. i783, 24, § 17. 

R. S. 63, § 6. G. S. 93, § 7. P. S. 130, § 7. 

administration de bonis non. 

1 Section 8. If a sole or smwiving executor or administrator -de bonis 

2 dies, resigns or is removed before having fully administered an 1723U, 3. 

3 estate, and there is personal property of the deceased not admini.s- nss; 24; f 197^' 

4 tered to the amount of twentj' dollars, or debts to that amount i8]7Vi9b, § 17. 

5 remaining due from tlie estate, or anything remaining to be per- ^••'!-^''j^j5y'i"'' 
(1 formed in execution of the will, or if there is an order of distribu- i?^|'^„-j 

7 tion in accordance with the provisions of section twenty-six of 2,5' 

PS 130 5 9 

8 chapter one hundred and fifty, the jirobate court shall grant letters i8'9o,'408,'§2.' 

9 of administration, with the will annexed, or otherwise as the case 2Pick!'36o.' 

10 may require, to a suitable person to administer the goods and estate 3*"^'i*''- 

11 of the deceased not ah'eady administered. 128 Mass. 590. 



1282 



ADMINIST U ATORS . 



[Chap. 137. 



Appointment 
of special ad- 
njinistrators. 
I!<34, 174, § 1. 
R. s. a, § 6. 
G. S. iH, §6. 
1876, 200, §1 1,4 
P. S. 130, § 10. 



SPECIAL ADMINISTRATION. 

Section 9. If for any cause the judge of probate decides that 1 

it is necessary or expedient, he may, at any time and place, with or 2 

M'ithout notice, appoint a special admini.sti'ator who, in case of an 3 

appeal from the decree appointing him, shall nevertheless proceed 4 

in the execution of his duties until it is otherwise ordered by the 5 

supreme judicial court, and may in like manner discharge him. 6 

Such appointment and discharge shall be entered forthwith on the 7 

records of the court and notice thereof given to the executor or 8 

administrator, if any. B 



Powers and SECTION 10. A Special administrator shall collect all the per- 1 

duties ot r. 1 1 1 1 1 11 1 i* 1 -v 

special admin- sonal property of the deceased and shall iireserve the same tor the i 

executor or administrator when appointed, and tor that purpose 6 

may commence and maintain suits. If he is appointed by reason 4 

of delay in granting letters testamentary, the court may authorize 5 

him to take charge of the real property of the deceased or of any i)art t> 

thereof, and to collect the rents, make necessary repairs and do all 7 

other things which it may consider needful for the preservation of 8 

such real property and as a charge thereon. He shall receive such 9 

compensation for his services as the court allows. 10 



istrators, 
lKf4, 174, § 2. 
R. s. 64, § 8. 
185.S, 122. 
G. S. !I4, § 8. 
P. S. 130, § 12. 



Same subject. 
1S34, 174, § 2. 

R. .S. 64, § 8. 
18SS, 122. 
G. S. 94, § 8. 
P. S. 1.30, § 12. 

1898, 414. 

1899, 301. 



Section 11. The probate court may, upon such notice as it con- 
siders reasonable, authorize or require a special administrator to sell 
or do such other acts relative to any property or estate in his charge 
as in the opinion of the court said property or estate may require ; 
but the provisions of this section shall not give to the special admin- 
istrator other or greater powers than an administrator, except that 
he may be authorized to continue the business of the deceased for 
the benefit of his estate. 



1 
2 
3 
4 
5 
(5 
7 
8 



to'lv?dow"ir°** Section 12. Upon the petition of the widow or of -Any child of 
children; tjje deceased, the probate court may, after notice, make a reasonable 

18.19, 143, §§ 1-6. allowance out of the real or personal propert}' in the hands of a 
p.'s. 130, §§'i3,' special administrator appointed on account of the pendency of a 
petition relative to the probate of a will or the appointment of an 
administi"ator or of an administrator with the will annexed, as an 



u 

1S99, 311. 

109 JIass. 14G. 

160 Mass. 232. 



advancement for the support of such widow or children, not exceed- 
ing such portion of the estate as they would finally be entitled to. 
An appeal from a decree relative to such allowance shall not prevent 
the jiayment of the allowance, if the petitioner gives l^ond to tlie 
sjiecial administrator, with sureties approved by the court and con- 
ditioned to repay it if the decree is reversed. 



1 

3 

4 

.") 

(5 

7 

8 

it 

10 

11 

12 



Payment of 
certain ex- 
penses and 
delds. 

1859, 143, § 6. 
G. S, 94, § 11. 
P. S. 130, § 15. 
1884, 291. 
1897, 199. 



Section 13. A special administrator may by leave of the pro- 1 

bat« court pay from the j)ersonal property in his hands the expenses 2 

of the last sickness and funeral of the deceased, the exjjenses in- 3 

ciuTcd by the executor named in the will of a deceased person in 4 

proving the will in the ])rol)ate court or in sustaining the proof 5 

thereof in the supreme judicial court and also, after notice, such (5 

debts due from the deceased as the probate court may approve. 7 



Chap. 138.] public aixmixistkatoks. 128'J 

1 Section 14. Upon the granting of letters testamentary or of fpeT'^i^i^imi,,. 

2 administration, the powers of the si^ecial administrator shall cease, istrator tu 

3 Upon the teriinnation of his iKnvers, tho s]:)iH*ial adiiiinistrator shall pointnifutof 

. . oxt^cutur etc 

4 forthwith deliver to the executor or administrator or to such iierson 1,^34, 174, '§.3.' 

5 as is otherwise lawfully authorized to receive it all the estate of the g'. s! m, § 12. 
(> deceased in his hands; and the executor or administrator may be ^' ''■ '^''' ^ ^*" 
7 admitted to prosecute a suit commenced by the special administrator 

<S in like manner as an administrator de bonis non may prosecute a 
i* suit coimuenced by a former executor or administrator. 

1 Section 15. A special administrator shall not be liable to an Effect of 

'/ action by a creditor of the deceased : and the time of limitation for fs'tnition 0™'° 

3 all actions against the estate shall begin to run only after the gi-antr- I-nditors. 

4 ing of letters testamentary or of administration in the usual form JJ^^'.'w'uo. 
in like manner and subject to the same conditions as if special ad- p' f' "*,', Mf; 
H ministration had not been granted ; l)ut if an appeal is taken from 175 Mass. 4S3. 

7 the decree of the probate comt appointing an executor or adminis- 

8 ti-ator the time shall run in like manner and subject to the same 
It conditions, if the decree is affirmed, from the time of the afErmation 

10 if t lie bond has been filed, and, if not, from the date of the filing of 

11 the bond : if the decree is reversed, from the time when an appoint- 

12 ment is finally made or affirmed and the bond is filed. 



CHAPTEK 138. 

OF PUBLIC ADMINISTRATORS. 



1 Section 1. There shall be in each county one or more public Appointment 

, . . -Ill ''ill' 1 "' pnolH' an- 

2 admmistrators, appointed b}' the governor with the advice and con- iiiinistratore. 

3 sent of the council, who shall hold office during the pleasure of the g's. iB.'u.' 
I „ ^ PS. i:ji,§ 1. 

4 governor. 

1 Section 2. Such administrators shall, except as hereinafter pro- Their duties. 

2 vided, take out letters of administi'ation and taithfully administer R..s.(i4,§ 4. 

3 upon tlie estates of persons who die intestate within their county S; lof' ^ '■ 

4 or elsewhere, leaving property in such county to be administered p.f.isi^Yi 

5 and not leaving a known husband, widow or heir in this common- 

6 Avealth. 

1 Section 3. Administration shall not be granted to a public ad- f^l'^.l^^'f^lfi^ 

2 ministi-ator when the husband, widow or an iieir of the' deceased, act wiien heir, 

„ . . . , . , • 1 /■ 1 • • • i 1 *'•' • claims the 

3 in writing, claims the right 01 administration or requests the ap- riKiit. 

4 pointment of some other suitable person to the trust, if such g.'s. !«,§.?. 

5 husband, widow, heir or other person accepts the trust and gives I'-^'^i'Ss. 

6 the bond required. 

1 Section 4. If, after the granting of letters of administration to Powers to 

2 a public administrator and before the final settlement of the estate, win is proved. 

3 the husband, widow or an heir of the deceased, in writing, claims a s.^I'lie*.' 

4 the right of administration or requests the appointment of some (f^l.as^Vts. 

5 other suitable i^erson to the trust, or if a will of the deceased is ^- s- i^i. § i- 



1284 



PUBLIC ADMINISTEATORS. 



[Chap. 138. 



thereafter proved and allowed, the probate court shall grant letters G 

of administration or letters testamentary accordingly' ; and when 7 

the person to whom such letters are so granted gives the bond 8 

required by law the powers of the public administrator over the 9 

estate shall cease. 10 



Surrender of 
letters on ap- 
pointment of 
Buccessor. 
Iftl7, 1!)0, § 14. 
R. S. 64, § 16. 
1839, 142, § 2. 
G. S. 95, § 5. 
P. S. 131, § 5. 



Section 5. A public administi-ator shall, upon the appointment 
and (lualification of an executor or administrator as his successor, 
surrender into the probate court his letters of administration in such 
case with an account under oath of his doings therein ; and, upon a 
just settlement of such account, shall pay over and deliver to his 
successor all money remaining in his hands, and all property, 
eflPects and credits of the deceased not then administered. 



1 
2 
3 
4 

5 
6 
7 



Bond. 

1839, 142, §§ 1, 2. 
G. S. 95, § 6. 
P. S. 131, § 6. 



Section 6. A jniblic administrator shall give bond i)a3able to 
the judge of the probate court and his successors for the faithful 
performance of his duties in like manner as other administrators, 
with the further condition to comply with the provisions of the pre- 



ceding section. 



1 
2 
3 
4 
5 



General bond. 
1S49, 123, §§ 2, 3. 
G. S. 95, § 7. 
P. S. 131, § 7. 



Section 7. Instead of a separate bond for each estate, a public 1 

administrator may give a general bond for the faithful admiiiistra- 2 

tion of all estates on which letters of administration ma}' be granted 3 

to him as such public administrator. Such bond shall be given 4 

with sufficient surety or sm-ctics, in such sum as the probate com't 5 

may order, payable to the judge of said court and his successors, G 

and with condition sub.stantially as follows : — 7 

Fir.st, To make and return to the probate coiu't, within thi'ee 8 

months from the time of granting to hiui, as public administrator, 9 

letters of administration on the estate of a person deceased, a ti'ue 10 

inventory of all the real and personal propert}' of such person which 11 

at the time of making such inventory shall have come to his posses- 12 

sion or knowledge. 13 

Second, To administer according to law all i)ersonal property 14 

of every such person which may come to his possession or of any 15 

person for him, and also the proceeds of any of the real property 16 

of such person which may be sold b}- him. 17 

Third, To render upon oath a true account of his administration 18 

of every such estate at least once a year until the ti'ust is fulfilled, 19 

unless he is excused therefrom in any year by the court ; and also 20 

to render such account at such other tunes as the court may order. 21 

Fourth, To pay the balance of every such estate remaining in 22 

his hands lipon the settlement of his accounts to such persons as 23 

the coiu-t may du-ect ; and when such estate has been fully admin- 24 

istercd to dejiosit with the treasurer and receiver general the whole 25 

amount remaining in his hands. 26 

Fifth, Upon the appointment and qualification in anj'^ case of 27 

an executor or administrator as his successor, to smTender into the 28 

probate court his letters of administration in such case with an 29 

account under oath of his doings therein and, upon a just settle- 30 

nient of such account, to pay over and deliver to such successor all 31 

money remaining in his hands, and all property, effects and credits 32 

of the deceased not then administered. 33 



Chap. 138.] public administrators. 1285 

1 Section 8. A public administrator who gives such general bond ^^""""^^'1;^ 

2 shall, at the probate coiu't first held in his county after the first da^- rendered, if 

' .'■ •'. 1 ^ n , i" ifeueral bond 

3 01 .January in each year, render an account under oath ot all bal- isgiven. 

4 anccs of estates then reinainino; in his hands; and the court may g. s. 95,'§ s.' 

5 at any tuue require additional sm-eties to be fm-nished upon such ' ' 

6 administrator's bond or may rec^uire a new bond to be given. 

1 Section 9. Periods of time which by law run in other cases Limitation of 

2 from the .time of giving bond by an administrator shall, when such ^reu^raVbond 

3 general bond is given, run as to each estate trom the date of the 'ilfs'^^j^" 5 3. 

4 letters of administration. g. s. 95, §9. p. s. isi, §9. 

1 Section 10. Public administrators may be licensed to sell real P«i)iic admin. 

• 1 I 1111 1 • 1 istrators may 

2 property tor the payment ot debts and shall, except as herein other- seii real prop. 

. crty for uiiv- 

3 wise provided, administer estates and render their accounts in the ment ot debts, 

4 same manner as other administrators. 1839, 142, §§1,3. 

1S49, 123, §§ 2, 3. G. S. 95, § 10. P. S. 131, § 10. 

1 Section 11. After three years from the date of letters of ad- saieofreai 

.... property. 

2 ministration to a pubhc administrator, the probate court ma}', if i«w, Y'l § *■ 

3 it apvjears to be for the interest of all concerned, authorize such isso, iiii.' 

4 administrator to sell the real property of the deceased, although ' ' 

5 such sale is not necessary for the payment of debts. In such case 
<) the public administrator shall proceed in the same manner as other 

7 administrators licensed to sell real property for the pajTiient of 

8 debts. 

1 Section 12. When an estate has been full}' administered bj' a Pubiie admin. 

2 public administrator, he shall deposit the balance of such estate pos'it'balaiuTs" 

3 remaining in his hands with the treasurer and receiver general, tile'^treasurer''' 

4 who shall receive and hold it for the benefit of those who may have G^|'"5"'|y'*' 

5 lawful clamis thereon. p. s. i3i, §12. 7 Alien, 509. 

1 Section 13. The probate courts shall require ever}' public Annual 

2 administrator in their respective counties to render an account of ii«)!"i42r§§ 4, 5. 

3 his proceedings under any letters of administration at least once in p; t; isi.Vis. 

4 each year until the trust has been fulfilled. And when, upon a 

5 final settlement of an estate, it appears that money remains in the 

6 hands of such administrator which by law should have been de- 

7 posited with the treasurer and receiver general, the court shall 

8 certify that fact and a statement of the amount so withheld to said 
i) treasurer and receiver genei-al, who, unless such deposit is made 

10 within one month after the receipt of such notice, shall cause the 

11 bond of the administrator to be prosecuted for the recovery of such 

12 money. 

1 Section 14. If, at any time within six years after a public ad- Heirs, etc., 

2 ministrator has made deposit with the treasurer and receiver gen- adrninistration 

3 eral of the balance of an estate remaining in his hands, any person state 'tres'isury" 

4 applies to the probate court which gi-anted letters of administration Gfs."/,'§ 14. 

5 on such estate, and makes it appear that he is legally entitled by psi3i, §14. 

6 the will of the deceased or otherwise to the administration thereof, 

7 the court shall gi-ant administration thereof, or, upon probate of 



1286 



PUBLIC ADMINISTRATORS. 



[Chap. 138. 



such will, shall grant letters testamentary to such applicant or at 8 

his request to some other suitable person ; but before granting such 9 

administration, the coui"t shall order personal notice of the applica- 10 

tion to be sei'ved, at least fourteen daj's before the hearing, upon a 11 

public administrator of the county, who shall appear in behalf of 12 

the commonwealth. 13 



ami*r««iver SECTION 15. After the cxpiration of thirty days from the ap- 1 

general to pay pointnient of an executor or administrator as provided in tlie pre- 2 

over to exec- ' . i-i-i, • i^ 

utor,etc.,if Ceding sectiou, u no appeal is claimed by any person interested, 3 

the treasurer and receiver general shall pay over to such executor 4 

or administrator all money deposited in the treasury to the credit 5 

of such estate, to be administered in like manner as the estates of 6 

other deceased persons. 7 



appointed. 
1839, U-i, § 6. 
G. S. »5, § l!i. 
P. S. 131, § 15. 



Proceedings on 
deatli, etc., of 
pul)li<' admin- 
istrator. 
1849, 123, § 1. 
G. S. 95, § 16. 
P. S. 131, § 16. 



Section 16. Upon the death, resignation or removal of a public 1 

administrator, the probate com't shall issue a warrant to some other 2 

public administi-ator in the same county, upon his application there- 3 

for, requiring him to examine the accounts of such late public admin- 4 

istrator relative to the estates on which he has taken out letters of .5 

administration, and to return into the probate court a statement of (j 

all of such estates that are not fully administered and of the balance 7 

of each estate which remained in the hands of such public admin- 8 

istrator at the time of his death, resignation or removal. And !^l 

thereupon the court shall issue to the public admini.sti-ator making 10 

the return, upon his giving the requisite bond, letters of adminis- 11 

tration upon such of said estates as are not already administered, 12 

although the personal property remaining may not amount to 13 

twenty dollars. 14 



District at- 
torneys to 
prosecute in 
case of neglect, 
etc., by public 
administrators. 
1846, 211. 
G. S. 9.5, § 17. 
1874, 105. 
P. S. 131, § 17. 



Section 17. If a public administrator neglects to return an 1 

inventory, to settle an account or to peribrm any other duty in- 2 

cumbent on him in relation to an estate, and there apj)eai"s to be 3 

no heir entitled to such estate, the district attorney for the district 4 

Mnthin which the administrator received his letters shall, in behah" 5 

of the commonwealth, prosecute all suits and do all acts necessary 6 

and proper to insure a prompt and faithful administration of the 7 

estate and the ijaj'inent of the proceeds thereof into the treasury 8 

of the commonwealth ; and if no heir has, within two years after 9 

the granting of letters of administration, appeared and made claim 10 

in the probate court for his interest in such estate, it shall be pre- 11 

sumed that there is no such heir and the burden of proving his 12 

existence shall be upon the public administrator. 13 



Estates of less 
than twenty 
dollars, liuw 
disposed of. 
1874, 254, § 1. 
P. S. 131, § 18. 
1883,264. 



Section 18. If the total property of an intestate which has 
come into the possession or conti'ol of a public administrator is of 
a value less than twenty dollars, unless the same is the balance of 
an estate received from a prior public administrator, he shall forth- 
with reduce all such property into money, not taking administration 
thereon, and shall deposit such money, first deducting his reason- 
able expenses and charges, with the treasiu'cr and receiver general, 
who shall receive and hold it for the benefit of any persons who 
may have legal claims thereon. Such claims may be presented to 



1 
2 

3 

4 
,5 
() 
7 
8 

y 



Chap, loi).] general provisions relative to executors, etc. 1287 

10 the auditor of the commonwealth within one year from such pay- 

11 uient to the treasurer and receiver general and the auditor shall 

12 examine such claims and allow such as may be proved to his satLs- 

13 faction and upon the expiration of the year shall forthwith certify 

14 the same to the governor and council for payment of the whole of 

15 the claims or such proportion thereof as the funds will allow. 

1 Section 19. A public administrator, upon making such deposit, ^TT^l^i^ 

2 shall file with tlie treasurer and receiver general a true and T^articu- tti"n twenty 

3 lar account, under oath, of all his dealings, receipts, payments and ist^.'sm, §2. 

4 charges on account of the propert}^ from which the money so de- " ' ' 

5 posited proceeds, including the name of the intestate, if known to 
G hmi, and the treasurer and receiver general shall thereupon deliver 

7 to him a receipt for such money. Such deposit shall exempt the 

8 public administi'ator making it from all responsibility for or on ac- 

9 count of the money so deposited. 



1,33. 

1,13. 



CHAPTEK 139. 

GENERAL PROVISIONS RELATIVE TO EXECUTORS AND ADMINISTRATORS. 

Sections 1-4. — Xotice of Appomtment. 

Sections 5-7. — Inventories and Appraisals. 

Sections 8-10. — Agents of Non-Resident Executors and Administrators. 

Sections 11-13. — Removal and Resignation. 

Sections 14, 15. — Executors in Their Own Wrong 

NOTICE OF APPOINTMENT. 

1 Section 1. An executor or administrator shall, within three Notice of ap. 

2 months after giving bond for the performance of his trust, cause exe"Sl™or' 

3 notice of his appointment to be posted in two or more public places 'n^^jJe'"/?''"' 

4 in the city or town in which the deceased last dwelt ; or he may be Ql'g-- f 

5 requu'cd by the probate com-t to give notice by publication in a p. s! 1.32, §'i. 

6 newspaper, or in such other manner as the coiu't may order. 

1 Section 2. An afiidavit of the executor or administrator, or of i"erpetu.ition 

• . r.1 1 1 of evidence of 

2 a person employed by him to give such notice, tied and recorded "pt'^*-. 

3 with a copy of the notice in the reijistrv of probate, or such afK- issoi uk 

4 davit made by any person and so filed and recorded with such js'55,'132. 

5 copy by permission of the coiu't upon satisfactory evidence that the isT^/Ti'.'Te^' 
(3 notice was given as ordered, shall be admitted as evidence of the imui'lv 

7 tune, place and manner in which the notice was given. ^^■ 

13 Gray, 336. 16 Gray, 363. 104 Mass. 277. 

1 Section 3. If by accident or mistake the notice is not given, or Notice may be 

2 if the evidence that it was given is not perpetuated as provided propw^time, 

3 in the preceding section, the probate court may, upon the petition ^%"'g^ 525. 

4 of the executor or administrator, order such notice to be jjiven at §f i^^Mi 

5 any time afterward. In such case the jjeriods of time limited for 

6 the commencement of actions against executors and administrators 

7 and for other jiurposes, which run from the tmie of their giving 

8 bond, shall run from the time of the passing of such order. 



1288 



GENERAL PEOVISIONS KELATIVE TO EXECUTORS, ETC. [ClIAT. I'M). 



Liawiityfor SECTION 4. All oi'clcr uiidor thc i)rovi.si()ns of the la-t't'cdinu; 1 

oniUBiun tu -in i • • i • ■ 

Kive "otico. .scction sliall iiot exciupt an (.'Xrcutor or adnuiu.stnitor or Ins .surotic?* 2 

(i. s! H-', § 4. ' from any liability for daniasjcs which may be incurred by reason of 3 

the omission to giye notice within the thi'ee months. « AUen, ws. 4 



INVENTORIES AND APPRAISALS. 



Inventories, 
17U3-t, 12, § 1. 



Section 5. Every executor, except one who gives bond under 

7iy-2o. 1(1, § 1. the provisions of section two of chapter one hundred and forty- 
si? liK) § 14. , , , , , , ^. 

nine, and every administrator shall, within three months after his 
appointment, make under oath and return to thc probate court a 
ti'ue inventory of the real and personal propert}' of the deceased 
which at the tune of making such inventor}' shall have come to his 
possession or knowledge. 



I 

R. S. KS, § 1 

G. s. yfi, ? 1. 

p. S. 132, § 5. 
162 Mass. 412 



1 

2 
•6 
4 
5 
6 
7 



Appraisers. 
171ii-2(i, 10, § 1. 
1783. 32. § 14. 
1S17, 1110, § 14. 
K. S. iib, § 2. 
G. S. Wi, § 2. 
P. S. 132, § 6. 



Section 6. The property comprised in the inventory shall be 1 

appraised in any count}' by three suitable, disinterested persons 2 

appointed by the probate court or a disinterested justice of the S 

peace may ajipoint such appraisers of any part of the estate which 4 

may be in the county in M'hich such justice resides. The apprais- 5 

ers .shall be sworn to the faithful jierformance of their duties. 6 



wTappraUerr SECTION 7. When appraisers arc appointed by a justice of the 
Gs'g'e'ls' peace, he shall issue an order to them, in substance as follows: — 

p.' S.' 132, § 7. 

, ss. 
To of in said county. You are herebj- appointed to appraise on 

oath the estate and effects of , hite of , deceased whieli may be in 

said irounty. When you have performed that service, you will deliver this 
order anil your doings in pursuance tht^reof to , executor (or adminis- 

trator, as the ease may be) of said deceased, that he may return the same to 
the probate court for the county of 

Given under my hand this day of in the year 

• , Justice of the Peace. 



1 
2 



1803, 118. 
lUOl, 37. 



AGENTS OF NON-RESIDENT EXECUTORS AND ADMINISTRATORS. 

Section 8. An executor or administrator who is appointed in, 1 

2 
3 
4 

(i 
7 
8 
9 
10 

shall, if made on said agent, have like ctfcct as if made on himsi-lf 11 
personally within the commonwealth, and such service shall have 12 
such effect. Said writing and also the notice of appointment of such 13 
executor or administrator shall state the name and address of the 14 
agent. An executor or administrator who, after his appointment, 15 
removes from, and resides witliout, the commonwealth shall so 16 
appoint a like agent. 17 



Agent of 

non-resMent ... 

executor or but rcsides out ot, tliis Commonwealth shall not enter upon the 
1870, 180, §'§1,2, duties of his ti'ust nor be entitled to receive his letter of appoint- 
p. s. 132, §§8, ment until he shall, by a writing filed in the registry of probate for 
•?>J?-..- tin, county in which lie is appointed, have appointed an agent re- 

siding in this commoinvcalth, and, by such WTiting, shall have agreed 
that the service of any legal i)rocess against him as such executor 
or administi-ator, or that the service of any such process agiiinst him 
in his individual capacity in any action founded upon or arising out 
of any of his acts or oniLssions as such executor or administrator 



Chap. 13SI.] general provisions relative to executors, etc. 1289 

1 Section 9. If an agent appointed under the provisions of tlie Kew appoint. 

2 preceding section dies or removes from the commonwealtli before isTa, i^o, If™*! 

3 the final settlement of the accounts of his principal, another appoint- n.*'' ^^'''' ^^ '"' 

4 ment shall be made and filed as above provided, and the powers 

5 of an agent appointed under the provisions of this and of the pre- 

6 ceding section shall not be revoked prior to the final settlement 

7 of the estate unless another appointment shall be made as before 

8 provided. 

1 Section 10. Neglect or refusal by an executor or administrator Failure to 

2 to complv with any provision of the two preceding sections shall isreriso.Ts"*' 

3 be cause for removal. ^- ^- ^^'^' ^ ^'''• 



removal ANT) resignation. 

1 Section 11. If an executor or administrator becomes insane or Removal of 

2 otherwise incapable of performing the trust, or is unsuitable therefor, a'dmi" isn-a'tor. 

3 or if an executor or administrator who resides out of this common- liovS,' 1 1'.'' 

4 wealth, having been duly cited by the probate court, neglects to^-|jf'^"' 

5 render his accounts and to settle the estate, the probate court may plJgi'f ^ 

6 remove him ; and thereupon the other executor or administrator, if }i?|'j'''^''^j*; 

7 any, may proceed in performing the trust as if the one removed lOAUen, li. 

8 were dead or, if there is no other executor or administrator, the 

9 court may appoint an administrator as provided in section eight of 
10 chapter one hundred and thirty-seven. 

1 Section 12. If an executor or administrator is removed or if ^uJ^maamia 

2 letters of administration are revoked, all previous sales, whether of istrator before 

n ^ 1 i 111- nil 1 removal to be 

6 real or personal property, made lamully by the executor or ad- vaiid._ 

4 ministrator and with good faith on the jiai't of the purchaser and all g'. s. loi, § s,'. 

5 other lawful acts done by such executor or administi-ator shall • ''• i^'^> 5 1^- 

6 remain valid and effectual. 

1 Section 13. An executor or administrator may resign his trust, f^^lf^oro?"^ 

2 when it appears to the probate court proper to allow him so to do. administrator. 

1843, 'JT. G. S. 101, § 5. P. S. 132, § 16. 12 Mass. 35S. 



executors in their own wrong. 

1 Section 14. Whoever iniuriously intermeddles with any personal Executors in 

„ <■ 1 1 .11.1 1 • 1 their own 

2 property of a deceased person, without being thereto authorized by wrong. 

3 law, shall be liable as an executor in his own wronff to the persons nsi, 24, §'i6.' 

4 aggrieved. g. s. 94, §14. p. s. 132, §17. 114 Mass. 420. 



R. S. 64, 6 11. 



5e 



1 Section 15. An executor in his own wrong shall be liable to the Liability of 

2 rightful executor or administrator for the full value of the per- utors!''^^*' 

3 sonal property of the deceased taken by him and for all damages §; |; tj^; | }|; 

4 caused by his acts to the estate ; and he shall not be allowed to ^7jiass"'i|g*' 

5 retain or deduct any part of such estate, except for funeral expenses los Mass. ssi. 

6 or debts of the deceased or other charges actually paid bj' him and 

7 Avhich the rightful executor or administrator might have been com- 

8 pelled to pay. < 



1290 



ALLOWANCES TO WIDOWS, ETC 



[Chap. 140. 



CHAPTEK 140. 

OF ALLOWANCES TO WIDOWS AND CHILDREN, THE DISTRIBUTION OF 
THE ESTATES OF INTESTATES AND OF ADVANCEMENTS. 

Sections 1, 2. — Allowances to Widows and Children. 
Section 3 . — Distribution . 
Sections 4-9 . — Advancements . 



Apparel of 
winow and 

i^hiklreii. 
Quarantine. 
1783, 3U, § 3. 
180-2, 93. 
1805, 90, § 2. 
1816, 95, § 1. 
R. S. 60, § 16; 
65, §4. 



Allowance of 
necessaries. 
1710-11, ■-'. ^ 2. 
1783, 3ii, § 3. 
180-2, 93. 
1805, 90, § '2. 
1816, 98. 
1833,40. 
R. IS. 60, §16; 
&■), §§ 4-6. 
1838, 145, § 2. 
184-2, 15. 
G. .S. 96, § 5. 
P. S. 135, § 2. 
1S99, 479, ? 6. 
1900, 450, § 2. 
6 Cush. 20. 

1 Grav, 518. 
6 Gray, 24. 

2 Allen, 310. 
13 Allen, 1-20, 
207. 

110 Mass. 461 
117 Mass. 27. 
1-2:^ Mass. 413. 
1-27 Mass. 111. 
130 Mass. 376. 



ALLOWANCES TO WIDOWS AND CHILDREN . 

Section 1. The articles of apparel and the ornaments of the 1 

widow and minor children of a deceased person .shall belong to 2 

them respcctivel}'. The widow may remain in the house of her 3 

husband for not more than six months next succeeding his death 4 

without being chargeable for rent. 5 



1838, 145, § 1. 

G. S. 90, § 18; 96, §4. 



P. S. 124, §3; 135, § 1. 
1899, 47U, §§ 2, 5. 



1900, 450, § 1. 
119 Mass. 598. 



Section 2. Such parts of the personal property of a deceased 1 

person as the probate court, having regard to all the circumstances 2 

of the case, ma}' allow as necessaries to his widow for herself and 3 

for his family under her care or, if there is no widow, to his minor 4 

children, not exceeding one hundred dollars to any child, and also ."J 

such provisions and other articles as are necessar\^ for the reason- (5 

able sustenance of his family, and the use of his house and of the 7 

furniture therein, for six months next succeeding his death, shall 8 

not be taken as assets for the pajTiient of debts, legacies or charges 9 

of administration. After exhausting the personal property, real 10 

property ma}^ be sold to provide the amount of allowance decreed, 11 

in the same manner as it is sold for the payment of debts, if a 12 

decree authorizing such sale is made, upon the petition of any party 13 

in interest, within two years after the approval of the bond of the 14 

executor or administrator. 139 Mass. 144. 155 Maes. Ul, 153. I68 Mass. -i-iS. 15 



Distribution 
ot persoual 
property of 
intestates. 
C. L. 158, « 3. 
1692-3, 14, § 1. 
1710-11,2, § 1. 
17.14-5, 16. 
1783, 36, § 2. 
1789, 2, § 1. 
1805, HO, §§ 2, 4. 
18:^3, 40. 
R. S. 64, § 1. 
1845, 208, 5 7. 
1854, 406, ^ 3. 
G. S. 94, § 10. 
1876. -220, § 4. 
P. S. 13.5, § 3. 
1882, 141. 
18.'«, 276. 
1899, 479, ? 7. 
IIKK), 450, §§ 3, 4. 
1 Met. -204. 
5 Allen, 187. 
9 Allen, 234. 
13 Allen, 277. 
101 Mass. 40. 

136 Mass. .54. 

137 Mass. 156. 



DISTRIBUTION. 

Section 3. If a person dies possessed of property not lawfully 1 

disposed of by will, it shall be distributed as follows : — 2 

First, The personal property remaining after said allowances shall 3 

be applied to the j^ayment of the debts of the deceased and the 4 

charges of his last sickness and funeral and of the settlement of his .5 

estate. ISOMass. ns. l:W Mass. 304. 146 Mass. ^.sl. (i 

Second, The residue of the personal property shall be distributed 7 

among the persons and in the proportions prescribed for the descent 8 

of real property in chapter one hundred and thirty-tliree, except as 9 

otherwise j)rovidcd herein. 149 Mass. .502. 10 

Third, If the deceased leaves no issue, the surviving husband 11 

or widow shall take five thousand dollars and one-half of the remain- 12 

iiig personal property and one-half of the remaining real property. 13 

If the personal property is insufficient tt) pay said five thousand 14 

dollars, tht; deficiency shall, upon the petition of any party in 15 

interest, be paid from the sale or mortgage, in the manner pro- 16 

vided for the payment of debts or legacies, of any interest of the 17 



Chap. 140.] allowances to widows, etc. 1291 

18 deceased in real property which he could have conveyed at the 

19 time of his death. 

20 If tlie deceased leaves issue, a surviving liusband or widow 

21 shall take one-third of the remaining personal property and one- 

22 third of the remaining real property. 

23 If the deceased leaves no kindred, a surviving husband or widow 

24 shall take the whole of the remaining real and personal property. 

25 If the deceased leaves no husband, widow or kindred, the whole 
2(5 of the remaining personal property shall escheat to the common- 
27 wealth. 

ADVANCEMENTS. 

1 Section 4. Property, real or per.sonal, which is given by an in- Advance- 

2 testate in his lifetime as an advancement to a child or other lineal ™6\"state*'of 

3 descendant shall be considered as part of the intestate's estate in '"S**®' 

4 the division and distribution of such estate among his issue, and JgafloH'l^' 

5 shall be taken by such child or other descendant toward his share k|\6i, §§6,7; 

6 of such estate; but he shall not be required to restore any part cj.'s. 91, §6; 

7 thereof, although it exceeds his share. The widow shall be entitled p.'.I.128,§§i,6. 

8 only to her share in the residue after deducting the value of the ^ ^"'''' ^^'' 

9 advancement. 



1 Section 5. If such advancement is made in real property, the same subject. 

2 value thereof shall be considered as part of the real property to be g. s'. 91' | ?.' 

3 divided ; if it is in personal propert^s it shall be considered as part feMaaf'ioo.' 

4 of the personal property ; and if in either case it exceeds the share 
,T of real or personal property, respectivel3s which would have come 
(i to the heu- so advanced, he shall not restore any part of it, but 

7 shall receive so much less out of the other part of the estate as will 

8 make his whole share equal to the shares of the other heirs who 

9 are in the same degree with him. 

1 Section H. Gifts and gi-ants shall be held to have been made as Proof of 

2 advancements, if they are expressed in the gift or grant to be so h^fsefrT'" ' 

3 made, or if charged in writing as such by the intestate, or acknowl- Ks.ei'.ll. 

4 edged in writing as such by the party receiving them. g. s. 91, §8. 

p. S. 1-28, § 3. •2-> Pick. 508. Ifl Gray, 104. 10.S Mass. 164. 

14 Pick. 318. 1 Gray, 507. 13 Allen, 334. 120 Mass. 553. 

1 Section 7. If the value of an advancement is expressed in the value of ad- 

2 conveyance, in the charge thereof made hy the intestate or in the howascer-' 

3 acknowledgment by the person receiving it, such value shall be i805,*'y6, § 3. 

4 adopted in the division and distribution of the estate ; otherwise q' | |J| t J"' 
.") it shall be determined according to the value when the property ^; Maae^'^g' 

120 Mass. 559. 

1 Section 8. If a child or other lineal descendant who has re- oeatiiofper- 

2 ceived an advancement dies before the intestate, leaving issue, the advanrement 

3 advancement shall be considered as part of the intestate's estate in toS'^*"' '"'"*' 

4 the division and distribution of such estate, and the value thereof §. s! 91', | lo'. 

5 shall b(; taken by the representative of the heir to whom the ad- ^- *• ^^' § ^• 

6 vancement was made toward his share of the estate, as if the 

7 advancement had been made directly to him. 



1292 



PAYMENT OF DEBTS, ETC. 



[Chap. 141. 



Deteniiination 

of iiucfltions 

of jitlvjince- 

iiients. 

R. S. 103, §§ 6'2, 

(3. 

(i. S. 136, § 66. 

P. S. 1-2H, § 7. 

16 Mass. 167, 

•.'(10. 

102 Ma68. 355. 



Section 9. The probate court in whuh tho estate of a decca.sed 
pcr.son is settled may hear and determine all qiiestion.s of advance- 
ments arising relative to such estate, or such questions mux lie 
heard and determined upon a petition for partition either in the 
superior court or the probate court ; but if such question arises 
upon a petition for partition, the court may suspend proceedings 
until the question has been decided in the probate court in which 
the estate of the deceased is settled. 



1 

2 
3 
4 

5 
6 

7 
8 



CHAPTER 141. 

OF THE PAYMENT OF DEBTS, LEGACIES AND DISTRIBUTIVE SHARES. 

Sections 1-8. — Payment of Debts. 
Sections 9-18. — Limitation of Actions by Creditors. 
Sections 19-25. — Payment of Legacies and Di.stributive Shares. 
Sections 26-32. — Liability of Heirs, etc., after Settlement by 
Executor, etc. 



"Exeoutor, etc., 
not liable to 
antion for a 
year after 
j<ivmy bond. 
17H1S, 66, ^ i. 
R. S. 66, § 10. 
G. S. 97, § 16. 
1'. S. 136, § 1. 
116 Mass. 436. 
134 Mass. 155. 



PAYMENT OF DEBTS. 

Section 1. An executor or administrator shall not be held to 1 

answer to an action b^' a creditor of the decea.sed which is com- 2 

menced within one 3'ear after his giving bond for the performance 3 

of his ti"ust, unless such action is brought for the recovery of a 4 

demand which would not be affected by the insohencv of the estate 5 

or, after the estate has been represented insolvent, for the purpose (> 

of ascertaining a contested clami. 7 



— may pay 
creditors, if 
assets sutli- 
cient for all 
claims pre- 
sented witiiin 
tlie year. 
1M23, 144, § -2. 
R. S. 66, « 11. 
G. S. !I7, § 17. 
1*. S. 136, § i. 



Section 2. If an executor or administrator who has given due 1 

notice of his appointment does not within one year thereafter have 2 

notice of demands against the estate of the deceased which authorize 3 

him to represent such estate to be insolvent, he may, after the 4 

expiration of said year, pay the debts due from the estate and shall 5 

not be personally liable to any creditor in conseijuence of such pay- 6 

ments made before notice of such creditor's demand. 7 



dei^nre** Section 3. If an executor or administrator pays, under the 

apainstfurtiier provisions of tlio preceding section, before notice of the demand of 

elaims, when. ' ,•.,,,., i /,. i- i i 

1H23, 144, § 2. any other creditor, the whole ot the estate and enects ot the de- 
g! is. !i7', § 18. ceased, he shall not be required in consequence of such notice to 
J ifet.'*8o? *' represent the estate insolvent, but in an action against him he .'•^hall 
be discharged ujion proving such pa^-ments. 



1 

2 

3 
4 
5 

(5 



Extent ot lia- 
iiility if residue 
is insurticient 
to meet new 
elaims. 
ISil, 144, §3. 
K. S. 66, ^ 13. 
(.;. S. 1)7, § 1!). 
v. S. 136, § 4. 
11 Met. 238. 
4 Gray, 514. 
V Grnv, 167. 
9 Allen, 149. 
130 Mass. 885. 



Section 4. If an executor or administrator pays, under the 1 

provisions of section two, so much of the estate and efl'ects of the 2 

deceased that the remainder is insufficient to satisf}' a demand of 3 

which he afterward has notice, he shall be liable on such last- 4 

mentioned demand for only so much as may then remain. If h 

two or more such demands are exhibited, which together exceed 

the amount of assets remaining in his hands, he may represent the 7 

estate insolvent, and shall, pursuant to a decree of the probate court, 8 



Chap. 141.] payjient of debts, etc. 1293 

{) divide and pay over what remains in his hands among the creditors 

10 wlio prove their debts under the commission of insolvenc}' ; but the 

11 creditors of the deceased who have been previous!}^ paid shall not 

12 be liable to repay any part of the amount received by them. 

1 Section 5. If it appears, upon the settlement of the account of '^rJJ"^"^"'^ 

2 an executor or administrator in the probate com't, that the whole "laims to b.nr 

3 estate and efl'ects ^vhich have come to his hands have been exhausted mon creditors, 

4 in payiuir the charges of administration and debts or claims entitled i823,"i44, § i. 

5 by laM' to a preference over the conmion creditors of the deceased, g. lioT^fM. 

6 such settlement shall be a bar to an action brought against hun by f40Mils.|l7 

7 a creditor who is not entitled to such preference, although the JS JJ"^^- *"2- 

.1^ ' o 173 Maes. 112. 

8 estate has not been represented insolvent. 

1 Section 6. If a debt claimed by an executor or administrator as settlement of 

2 due to him from the deceased is disputed by any person interested d»'eL«i'ta ws 

3 in the estate, the claimant shall file in the probate court a statement n^*™!" ? f '^^ 

4 of his claim in writing, setting forth distinctly and fully the nature §' ||&li^' 

5 and grounds thereof: and the same may then be submitted under an p." s.' ise, § e.' 

t . . » . U Met 329 

6 order of the coiu't to one or more arbitrators, if the claimant and the i4i)Mas8.'620. 

7 party objecting agree upon the arbitrators to be appointed. The ^6. '''^^' ''*' 

8 com't shall have the powers of com-ts of common law to discharge 

9 the rule by which the claim is referred, to reject and disallow the 

10 award or to recommit it to the arbitrators. The award of such arbi- 

11 trators, if accepted, by the probate coiu't, shall be final and conclusive. 

1 Section 7. If the parties do not agree upon the arbitrators, or same subject. 

2 if the award is not confirmed by the probate court, the court shall g. s. wj', § 27! 

3 decide upon the claim. Upon appeal to the supreme judicial court, <rjie't?329.^ "' 

4 upon motion of either party or by order of the court, an issue shall 

5 be framed and tried by a jury as other issues in civil actions are 

6 tried ; and the verdict thereon, when duly allowed and recorded, 

7 shall be conclusive. 

1 Section 8. If one of two or more persons who are indebted ^Jbueof dJ- 

2 upon a joint contract, or upon a judgment founded on such contract, '^^.i\f^'f Joi^fy 

3 dies, his estate shall be liable therefor as if the contract had been ™. 57- 

4 joint and sevei^al or as if the judgment had been against him alone, g. s. 97', § as'. 

p. S. 136, § 8. 4 Met. .537. 7 Allen, 113. 120 Mass. 137. 

2 Mass. 672. 11 Cush. 152. 119 Mass. 361. 124 Mass. 219, 367. 

limitation of actions by creditors. 

1 Section 9. An executor or administrator, after having given -of executor, /ta-z-^^^ 

^1 ^- X' 1 • • X i. u 11 i u I IJ i ? etc., to actions US*-^**^'^<. 

2 due notice of his appointment, shall not be held to answer to an b.v creditors. , 

3 action by a creditor of the deceased which is not commenced within nai^ogji: ^^f*fC. 9^ 

4 two years from the time of his giving bond for the performance of {|^|;.2m', § l -''' 3 

5 his trust, except as hereinafter provided. p. s. ise, §9. g^I'I^'ss 

l.iMnss. 6. 12 Allen, 330. 117 Mass. 222. 149 Mass. 62. " ' '' S ■ 

20 Pick. 2. 104 Mass. 277. 121 Slass. 222. 161 Mass. 418. 

4 Allen, ,3.59. 112 Mass. 27. 124 Miiss. 240. 172 Mass. 356. 

8 AUen, 532. 115 Mass. 508. 134 Mass. 115. 173 Mass. 233. 

11 Allen, 101. 116 Mass. 447. 142 Mass. 248. 175 Mass. 483. 

1 Section 10. If the supreme judicial court, upon a bill in equity supreme judi. 

2 filed by a creditor whose claim has not been prosecuted within the reueve"aft™^ 

claim Imn-cil. 



1294 



PAYMENT OF DEBTS, ETC. 



[Chap. Ul. 



1861, 174, 5 2. 
P. S. 13B, § in. 
1-2S Mass. 4S). 
Ill M:l6S. -JUS. 
1411 -Mass. i.')n. 
liai Mass. .'iSD. 
16!! Mass. 97. 



time limited b}' the preceding .section, is of opinion that justice and 3 

equity reciuire it and that such creditor is not chargeable with cul- 4 

pablc neglect in not prosecuting hi? claim within the time so limited, 5 

it may give him judgment tor the amount ot" his claim against the (5 

estate of the deceased person ; but such judgment shall not affect 7 

any payment or distribution made before the tiling of such bill. 8 



Extension of 
time lor creil- 
iturs' actions 
, by receipt of 
uew assets. 

R. .s. en, § 4. 

Itiai, 294, § 1. 
U. S. 97, § 6. 
1'. S. 138, § 11. 
3 Pick. 365. 
6 Allen, 372. 
9 Allen, 365. 
99 Mass. 616. 
105 Mass. 229. 
117 Mass. 222. 
137 Mass. Ul. 
157 JIass. 3.58. 
163 Mass. 491. 



Section 11. If uew assets come to the hands of an executor or 1 

administi'ator after the expu-ation of two 3'ears from the time of his 2 

giving bond, he shall account for and apply the same in like manner 3 

as if they had been received within said two years, and shall be 4 

liable, on account of such new asset*, to an action at law or to a 5 

proceeding in the probate com't by or for the benefit of a creditor, (J 

in like manner as if such assets had been received within the two 7 

years, if such action or proceeding is commenced within one year 8 

after the creditor has notice of the receipt of such as.sets, and within 9 

two year-s after they are actually received. le- Mass. 536. 10 



— if action 
fails from de- 
fect in fonn, 
etc. 

18.55, 157, § 1. 
G. S. 97, § 7. 
P. S. 136, § 12. 
174 Mass. 171. 



Section 12. If an action commenced against an executor or 1 

administrator before the expiration of two years from the time of 2 

his giving bond fails of a sufficient service or return by an unavoid- 3 

able accident ; if the writ in such action is abated or defeated in con- 4 

sequence of a defect in the form thereof or of a mistake in the form 5 

of the proceeding ; if, after a verdict for the plaintiff, the judgment ti 

is arrested ; or, if a judgment for the plaintili' is reversed on a writ 7 

of error ; tlie plaintiff ma}^ commence a new action for the same 8 

cause at any time Avithin one year after the abatement or other 9 

determination of the original action, or after the reversal of the 10 

judgment therein. 11 



Provision for 
<'reditor whose 
rii,'ht of action 
accrues after 
the two Years. 
178fi, 66, § 4. 
K. S. 66, § 5. 
G. S. 97, § S. 
1879, 71, 243. 
P. S. 136, § 13. 
104 Mass. 577. 
131 Mass. 351. 
146 Mass. 3CS. 
151 Mass. 601. 
1.54 Mass. 266. 
15s Mass. 418. 

171 JIass. 3SH. 

172 Mass. 356. 
176 Mass. 141. 



Section 13. A creditor of the deceased, whose right of action 1 

does not accrue within two years after the o-ivins of the administra- 2 

tion bond, may present his claim to the probate coiut at any time 3 

before the estate is fully administered ; and if, upon examination 4 

thereof, the court finds that such claim is or may become justl\' 5 

due from the estate, it shall order the executor or administrator 15 

to retain in his hands .sutticient as.sets to .sati-sfy the .same. But 7 

if a person interested in the estate offei's to give bond to the alleged 8 

creditor with sufficient surety or sm-eties for the jiayment of his 9 

claim if it is proved to be due, the court may order such bond to 10 

be taken, instead of requiring as,sets to be retained as aforesaid. 11 

This section, so tar as it relates to claims to become due, shall 12 

not apply to an estate M'hich M'as in process of settlement on the 13 

twenty-eighth day of February in the year eighteen hundred and 14 

seventy-nine. 15 



Same subject. 
R. S. t)6, § 6. 
G. S. 97, I 9. 
1S71, 238. 
P. S. 136, § 14. 



Section 14. The decision of the probate court upon the claim 1 

of such creditor .shall not be conclusive against the executor or 2 

administrator or other person interested to oppose the allowance 3 

thereof, and he shall not be compelled to pay the .same unless it 4 

is proved to be due in an action commenced by the claimant within 5 

one 3car after his claim becomes payable, or, if an appeal is taken 6 

from the decision of the probate court, in an action commenced 7 



Chap. 1-11.] payment of debts, etc. 1295 

8 within one year after the final determination of the proceedings on 

9 such appeal. 

1 Section 15. The action referred to in the preceding section Provision for 

2 shall be brought against the executor or administrator, if he has ligiu'of iuti"cm 

3 been reijuircd to retain assets therefor; otherwise, upon the bond "he'two years. 

4 given under the provisions of section thirteen. 

R. S. 6(i, § T. G. S. 117, § 10. P. S. 136, § 1.5. 127 M-ISS. 268. 

1 Section 16. If the action is brought on such bond, the plaintiff iJs^li'^'^^lf'- 

2 shall set forth liis original cause of action against the deceased, in SffliVh 

3 like maijncr as would be required in a declaration for the same 
■4 demand against the executor or administrator, and may allege the 

5 non-payment of the claim as a breach of the condition of the bond ; 
(i and the defendant maj' answer any matter of defence which would 

7 l)e available in law against the claim if prosecuted in the usual 

8 manner against the executor or administrator. 

1 Section 17. If an executor or administrator dies, resigns or Limitation of 

2 is removed, without having fully administered the estate of the adilfiSfeS'or' 

3 deceased, and a new administrator is appointed, such new adminis- R^sfed^ls^o- 

4 trator shall be liable to the action of a creditor for two years after j^i,, .^^^ , ^ 

5 he has given bond for the performance of his trust, unless such ^- s- '■'"•'§§ 12, 

6 action had l)een barred iirior to the termination of the previous ad- p.' s. ise, § 17. 

145 Mass 489 

7 ministration ; but after the ex])iration of said two years, he shall, 

8 it" he has given due notice of his appointment, have the benefit of 

9 the limitations provided for original administi'ation. 

1 Section 18. If new assets come to the hands of such new Liability upon 

2 administrator after the time before limited for the commencement atsets.' "* °*'^ 

3 of actions ag-aiiist him, he shall account for such new assets, and g. 1. 97', | u. 

4 shall be liable on account thereof to an action at law and to pro- *"• ^- ^'^^' ^ '^• 

5 ceedings in the probate court by or in behalf of a creditor, in like 

6 manner as is provided in this chapter relative to an original executor 

7 or administrator. 



payment of legacies and distributive shares. 

1 Section 19. A legatee mav recover his legacv in an action at A"''?"''? 

. P n i • \ 1 Tt ^ legatee at any 

2 law ; and the provisions of this chapter shall not bar an action M^'ne. 

3 brouo'ht at anv time against an executor or administrator with the i7b3U,'i2,'§5. 

4 will annexed for the recoveiy of a legacy-. p. s. i,s6, § 19. nm, m, § 5.'' 

11 Pick. 503. 6 Allen, .9(]0. 112 M:i68. 110. UO Mass. 502. R. S. 66, § 16. 

13 Pick. 398. 7 Allen, 64. 121 Mass. 249. 1,56 Mass. 313. G. S. 97, § 22. 

5 Gray, 67. 106 Mass. 586. 136 Mass. 142. 163 Mass. 381. 

1 Section 20. If an executor or administrator, within two years indemnity for 

2 after having given bond for the performance of his trust, is required feg4cy,'etc! if 

3 by a legatee or next of kin to make pa^mient, in whole or in part, two'v«irs "'''° 

4 of a li'gacy or distributive share, the probate court may require ^'s' 66''«M^' 
.5 that such leaatee or next of kin shall first give bond to the exec- ^- s- s"'. § 21'. 
(i utor or administrator, with surety or sureties to be approved by 144 liiass. iss.' 

7 the court, and conditioned to repay the amount so to be paid or 

8 so much thereof as may be necessar}^ to satisfy any demands which 

9 maj"^ be thereafter recovered against the estate of the deceased, and 



1296 



PAYMENT OF DEBTS, ETC. 



[Chap. 141. 



to indemnif}' the executor or administrator against all loss and 10 
damage on account of such payment. 11 



Partial (iietri- 

bution at any 

time. 

l!<T3, ■2-24, § 2. 

P. s. la;, § -21. 

151 Mass. 696. 

152 Mass. 74. 
163 Ma88. 233. 



Section 21. If the probate court finds that a partial distribution 
of tlie personal property of an estate in process of settlement therein 
can, without detriment to such estate, l3e made to the persons en- 
titled thereto, the com-t ma}', subject to the rights of creditors and 
after notice, order such partial distribution to be made. 



Payment of 
legacv. 
1895, l34. 



Section 22. If b}' the provisions of a will a legacy is to be 
distributed in whole or in part among the heirs or next of kin of any 
person, or among persons of a certain cla.ss, tlie probate court, upon 
the application of any person interested, after notice, may order 
distribution to be made among such persons as according to the will 
seem to be entitled to the legacy. 



1 

3 
4 

6 



Set-off of debts 

due from 

legatees, etc. 

1879, 225, §§ 1, 2, 

4. 

P. S. I3(i, §§ 22, 

23. 

114 Mass. 24. 

13S Mass. 138. 

169 Mass. 430. 



Section 23. A debt due to the estate of a deceased person from 1 

a leffatee or distributee of such estate shall be set oif against and 2 

deducted from the legacy' to such legatee or from the distributive 3 

share of such distributee ; and the jirobate court shall hear and de- 4 

termine the validity and amount of any such debt, and may make 5 

all neces.sary or proper decrees and orders to etiect such set-otf ti 

or deduction ; but the provisions of this section shall not prej- 7 

udice any remedy of an executor or administrator for the recovery 8 

of such debt nor affect the liabilitj' of the legatee or distributee for 9 

the excess of his indebtedness over the amount of his share in or 10 

claim upon the estate to which he is indebted. 11 



Annuities, etc., 

payable Irom 

death of tLS- 

bitor. 

1848, 310, « 1. 

G. S. HT, § 2.'j. 

P. S. 13i;, § 24. 

102 Mass. 55. 

103 Mass. 297, 
345. 

121 Mass. 178. 
128 Mass. 575. 



Section 24. If an annuity, or the use, rent, income or interest 1 

of property, real or personal, is given by will, deed or other instru- 2 

ment to or in trust for the benefit of a person for life or until the 3 

happening of a contingency, such person shall be entitled to receive 4 

and enjoy the same ti-om and after the decease of the testator, unless 5 

it is otherwise provided in such will or instrument. 6 

131 Mass. 20. 137 Mass. 21. 138 Mass. 303. 163 Mass. 610. 



— apportion- 
ment of, etc. 
1848, 310, § 2. 
G. S. 97, § 24. 
P. S. 1.30, § 25. 
9 Allen, 246. 
98 Mass. 462. 
103 Mass. 297. 
121 Mass. 178, 
220. 
139 Mass. 449. 



Section 2.5. A person entitled to such annuitjs rent, interest 
or income, or his representative, shall have the .same apportioned if 
his right or estate therein terminates between the days upon which 
it is payable, unless otherwise provided in said will or instrument ; 
but no action shall be brought therefor until the expiration of the 
period for which the apportionment is made. 

146 Mass. 424. 171 Mass. 42. 



1 

2 

3 
4 
5 
6 



Liability of 
heirs, etc., 
after settle- 
ment by execu- 
tor, etc. 
1788, 66, § 5. 
R. S. 70, § 13. 
G. S. 101, § 31. 
V. S. 136, « 26. 
13 Mass. 3M. 
17 Pick. 14. 
20 IMck. 2. 
6 Cush. 236. 
8 Allen, 259. 



liability of heirs, etc., after settlement by executor, etc. 

Section 26. After the settlement of an estate by an executor or 1 

administrator, and after the expiration of the time limited for the 2 

commencement of actions against him by the creditors of tlie de- 3 

ceased, the heirs, next of kin, devisees and legatees of the decea.sed 4 

shall be liable in the manner ])rovided in the following sections for 5 

all debts for which actions could not have been brought against the (i 

executor or administrator, and for which provision is not made in 7 

the preceding sections of this chapter. 8 



118 Mass. 369. 
127 Mass. 268. 



128 Mass. .W5. 
137 Mass. 195. 



144 Mass. 13S. 
146 INlass. 366. 



158 Mass. 418. 
171 Mass. 386. 



Chap. 141.] payment of debts, etc. 1297 

1 Section 27. A creditor whose right of action accrues after the Mode of en. 

2 expiration of said time of limitation, and whose claim could not iiabinfy^"' 

3 legally be presented to the probate court, or whose claim, if pre- Rfs.'fo'.VH. 

4 sented, has not been allowed, may, by action commenced within one p.' f.' is^' | It.' 

5 year next after the time when such right of action accrues, recover o^S^f ■¥^- 

*' o ' iv I irk, z. 

6 such claim against the heirs and next of kin of the deceased or wim^ss. soe. 

~ 1-S Mftss 277 

7 against the devisees and legatees under his will, each of whom shall is? iviass! iiis! 

8 be liable to the creditor to an amount not exceeding the value of the ne Mass! 'm. 

9 real or personal property which he has received from the deceased. 

10 But if by the will of the deceased any part of his estate or any one 

11 or more of the devisees or legatees is made exclusively liable for the 

1 2 debt in exoneration of the residue of the estate or of other devisees or 

13 legatees, such provisions of the Avill shall be complied \\^th, and the 

14 persons and estate so exempted shall be liable for only so nuich of 

15 the debt as cannot be recovered from those who are &'st chargeable 

16 therewith. 

1 Section 28. If an heir, next of kin, devisee or legatee dies with- i,'!l?"eto"hi°' 

2 out having paid his just proportion of such debt, his executor or toireMaWe'*^^' 

3 administrator shall be liable therefor, as for his own debt, to the r*!' -o'I'is 

4 extent to which he would have been liable if living. g. s'. loi, § 33. 

p. S. 136, § 28. 1 Met. 387. 

1 Section 29. K, under the provisions of the two preceding sec- suit in equity 

2 tions, more than one person is liable for the debt, the creditor may one heir, et«., 

3 recover such debt by a suit in equity in the supreme judicial coiu-t k.^s. to, Tifi- 

4 or the superior court against all persons so liable or again. st such p.' ,s.' 'si;,' fla.' 

5 of them as are within reach of process. The court shall detenuine, f'jiet.'^js™''' 
(3 by the verdict of a jury if either party requires it, what amount is ]';? ^'rj'^'jji'y 
7 due to the plaintifl", and shall decide how much each of the defend- i« <^r»y', i> 

• T 1 111 ^'^ IVfiiea nl 

■8 ants IS liable to pa}' toward the debt. 



136 Miiss. .504. 



1 Section 30. Such suit shall not be dismissed or barred for not 7:°""" I'®. 

dismissed tor 

2 making- all the persons who might have been so included defendants ; want of proper 

ubtfiiuiints. 

3 but in an}' stage of the cause the court may, upon terms, award e. s. to, § is. 

4 projjcr process to bring in other parties, and may allow amendments p.' s.' i36,' § so.' 
.5 in order to charge them as defendants. 

1 Section 31. If an heir, devisee or other person who is liable ^J^!'*^" "'„ tf •■• 

2 for the debt is insolvent, unable to pay his proiiortion thereof or to pay, the 

• * others to be 

3 beyond reach of process, the others shall be liable to the creditor iiabietor 

4 for the M'hole amount of his debt ; but no one shall be compelled to rT^','L'!M8.°*' 

5 pa}' more than the amount which he has received from the estate of r.'^I.^o, § 17. 

6 the deceased. p. s. i36, §31. g. s. 101, § ,S5. 

1 Section 32. If, in consequence of insolvency or bankru])tcy, if one heir, 

2 absence or other cause, a person who is liable for such debt fails to pay' his just 
.3 pay his ju.st proportion thereof to the creditor, he shall be liable s'l'iai'i^be'Mabie" 

4 to indemnify all who, by reason of .such failure on his part, pa}' r. s'.M),"rw.' 

5 more than their ju.st proportion of the .same. Such indemnity may p.' |; Se,' | fi' 
t) be recovered, at their election, by all of them jointly, or in separate w Mass. 4,%. 

7 actions by one or more of them for his or theii' parts respectively. 



1298 



INSOLVENT ESTATES OF DECEASED PERSONS. [ChaP. 142. 



CHAPTEE 142. 

OF INSOLVENT ESTATES OP DECEASED PERSONS. 

Section 1 . — Order of Fiwrnent of iJebts. 

Sections 2-10. — Proof of Claims. 
Sections 11-17. — Appeals. 

Sections 18-26. — Payment of Dividends to Creditors. 
Sections 27-29. — Contingent Claims. 
Sections 30-32. — Actions by Creditors during Pendency of 
Insolvency Proceedings. 



Order of pay- 
ment of debts. 
C. L. -250, § 4. 
169-2-3, 16, § 1. 
1696, S, § 1. 
17S4, 2. 
R. S. 68, § 1. 
G. S. U9, § 1. 
18S1, 159. 
P. S. 137, § 1. 
1884, 293. 
U. S. Rev. St8. 
§ 3466. 
6 I'ick, 481. 
16 Pick. 2.55. 
4 Met. 325. 
15 Grav, 471. 
4 Allen, 141. 
127 Mass. 242. 
137 Maee. 412. 
139 Mass. 304. 
143 Mass. 326. 



ORDER OF PAYMENT OF DEBTS. 

Section 1. If the estate of a person deceased is in.sufficient to 1 

pay all his debts, it .shall, after discharging the necessary expenses 2 

of his funeral and last sickness and the charges of administration, 3 

be applied to the payment of his debts, which shall include equitable 4 

liabilities, in the following order : — 5 

First, Debts entitled to a preference under the laws of the United 6 

States. 7 

Second, Public i-ates, taxes and excise duties. 8 

Third, Wages or compensation, to an amount not exceeding one i> 

hundred dollars, due to a clerk, servant or operative for labor per- 10 

formed within one year last preceding the death of such deceased 11 

person or for such labor so performed for the recovery of payment 12 

for which a judgment has been rendered. 13 

Fourth, Debts due to all other persons. 14 

If there is not enough to pa}' all the debts of any class, the cred- 15 

itors of that class shall be jiaid ratal^ly upon their respective debts ; 16 

and no payment shall be made to creditors of any class until all those 17 

of the preceding class or classes, of whose claims the e.xecutor or 18 

administrator has notice, have been fully paid. 19 



CommieBioners 
to examine 
claims of 
i'reditors. 
C. L. 2.50, 5 4. 
1692-3, 16, § 1. 
16'.K;, 8, § 1. 
1784, 2. 
R. S. 68, § 2. 
G. S. 99, § 2. 
P. S. 137, § 2. 



PROOF OF CLAIMS. 

Section 2. If the probate court finds from the representation 1 

of an executor or administrator that the estate of the deceased will 2 

probably be insufEcient for the payment of his debts, it may ap- 3 

point two or more commissioners to receive and examine all claims 4 

of creditors against such estate, and to return a list of all claims 5 

presented to them, with the amount allowed on each claim. 6 



2 Mass. 498. 
120 Mass. 516. 



127 Mass. 242. 
139 Mass. 360. 



140 Mass. 596. 
143 Mass. 326. 



149 Mass. 520. 



— duties 
C. L. 260, 
1692-3, 16, 
1696, 8, 5 
1752-;i, 12, 
1784, 2. 
R. S. 68, . 
18,54, 92. 
(S. S. 99, 
P. S. 137, 
139 Mass. 



of. 

5 4. 

§1. 
1. 

§3. 

i§2-l. 

i§2-4. 

§3. 

360. 



Section 3. The commissioners shall be sworn before entering 1 

upon the performance of their official duties ; they shall appoint 2 

convenient times and places for their meetings to receive and ex- 3 

amine claims ; and shall b}' mail or otherwise give to all known 4 

creditors at least seven days' written notice of the time and place 5 

of each meeting, and also such other notice thereof as the court 6 

■shall order ; and the executor or administrator shall, fourteen days 7 

at least before the first meeting, furnish to the commissioners the 8 

names and residences of aU knoAvn creditors. At the expiration of 9 



141 Mass. 609. 



Chap. 142.] insolvent estates of deceased persons. 1299 

10 the time allowed for the proof of clauns, the commissioners shall 

11 make their return to the court. 

1 Section 4. If the court does not appoint commissioners accord- aniiJ^^daims 

2 ing to the provisions of section two, it shall itself receive and ex- 5^,^^°;-., 

3 amine the claims of creditors, allow such as should legally be p.'s'.'i.'iT, §■*' 

4 allowed and cause a hst of all claims presented for proof, with the 

5 amount allowed or disallowed on each claim, to be made and cer- 

6 tified by the register of said court. 

1 Section 5. The court shall in such cases order the executor Notice to 

2 or administrator to give to creditors notice of the times when and i87^'52f§2. 

3 places where theii" claims will be examined, in the same manner as insist, §5. 

4 is required of commissioners by the provisions of section three. 

1 Section 6. If a commissioner appointed under the pro\isions Appointment 

2 of section two dies or resigns before his duties are fully performed, missume?"'". 

3 or, if for unreasonable neglect to make the return required by J^LI; I27,' § i! 

4 law or for any other cause he is removed, the probate court may fill J^^mIss 456 

5 the vacancy. 

1 Section 7. The commissioners or the court may require a claimants to 

2 claimant to make true answers under oath to all questions relative "afi"'^'^ "^'^"^ 

3 to his claim; and if he refuses to take such oath or to answer fully r.^I.'S', §§15 

4 all questions, his claim may be disallowed. Any one of the commis- ^-g y,,' ^^ 

5 sioners may administer the oath to claimants and witnesses. le- 

*' p. S. 137, §§7, 8. 



1 Section 8. The probate com't may, except while an appeal j^^*™'"*"°° 

2 under the provisions of section eleven is pending, upon the applica- <ymt. 

3 tion of the executor or administrator, examine upon oath any person 

4 whose clami has been allowed as aforesaid unless such allowance 
.5 has been made by the supreme judicial court or the superior court 
t) on appeal, may summon any person to give evidence relative to 

7 such claim and, upon notice, alter or expunge a claim which it finds 

8 is founded wholly or partially in fi-aud, illegality or mistake. 

1 Section 9. Six months after the appointment of the commis- Limit of time 

2 sioners or after the order of the court under the provisions of sec- J?aini8°"'°' 

3 tion five shall be allowed for the creditors to present and prove j^ega^sfu;',!*'. 

4 their claims ; and if a new commissioner is appointed under the J™' ?,• ^ '• 

5 provisions of section six, the time shall be extended until the ex- Rs. w, §4. 

. . . . . G. s. vty $ 4. 

6 pu'ation of six months from his appointment. The court may 11*3,' 217, § 1. 

7 allow further time, not exceeding eighteen months from the original 18731 2.')>! § 4! 

8 appointment or order ; and, upon an appeal as hereinafter provided, « i>?ck.^458.'''' 

9 it may extend the time to a date not more than one month after IVi'et'aVf'^' 
10 the final decision of such appeal. J" ^''^^- fj.- 

^ i lib Maes. 447. 

1 Section 10. A creditor who does not present his claim for claims not 

2 allowance in the manner herein provided shall be barred from b.™red, 'unless, 

3 recovering the same ; but if further assets of the deceased come to ^'^'l. 250 5 4. 

4 the hands of the executor or administrator after the decree of distri- {®|^--'^ ^*\^ '' 

5 bution, the claim may be proved, allowed and paid as provided in ''«'-• 
,.,,.,',. ■••^ . 1 ■ ^ R. s. en, §20. 
b this chapter tor contingent claims. g. s. 99, §21. 

p. S. 137, § 10. 15 Mass. 140. 1 Cush. 461. 104 Mass. 277. 



1300 



INSOLVENT ESTATES OF DECEASED PERSONS. [ChAP. 142. 



Appeal from 
tteciBiou of 
coinniissioD- 
ers. 

lIKiti, 8, § 1. 
1784, 2. 
R. S. (i8, § 8. 
G. S. 911, § 8. 
1865, 258. 
1873, ibi, § 4. 
P. S. 137, § 11. 
1884, 293. 
8 Met. 132. 
116 Muss. 125. 
127 JIasB. 242. 
143 MaBB. 326. 



APPEALS. 

Section 11. A person whose claim is disallowed in whole or in 1 

part, and an executor, administrator, heir, legatee, devisee or cred- 2 

itor who i.s dissatisfied with the allowance of a claim, may appeal 8 

from the decision of the commissioners or of the court, and the claim 4 

shall thereupon be determined at common law in the county in which 5 

the probate or administration was gi-anted. If the demand exceeds (> 

four thou.sand dollars in the county of yuftblk, or one thousand 7 

dollars in any other county, tlie appeal shall be either to the S 

supreme judicial court, or the superior court ; otherwise, to the 9 

superior court, and it shall be tried and determined in like manner 10 

as if an action had been brought therefor by the supjDOsed creditor 11 

aeainst the executor or administi-ator. 12 



— time for 
claiming. 
1784, 2. 
R. S. 68, § 9. 
G. S. 99, I 9. 
1873, 2!)2, § 3. 
P. S. 137, § 12. 
1885, 384, § 5. 
110 MaBS. 229. 



Section 12. Such appeal shall be claimed and notice thereof 1 

given at the registry of probate within thu-ty days after the retiu-n 2 

of the commissioners ; or, when the court receives and examines 3 

the claims, \vithin thu-ty days after the allowance or rejection of the 4 

claim. If the appeal is by an executor or administrator, he shall 5 

give notice thereof to the creditor within said thirty days. The (i 

appeal shall be entered on the first Mondav of the calendar month 7 

next succeeding the expiration of .said thirty da^'s. 8 



proceedings SECTION 18. Upon the entry of the appeal, the .supposed 1 

creditor shall file a statement in writing of his claim, setting forth 2 

briefly and distinctly all the material facts which would be necessary 3 

in a declaration for the .same cause of action ; and like proceedings 4 

shall thereupon be had in the pleadings, trial-, and determination .') 

of the cause as in an action at law ; but no execution shall be (5 

awarded against the executor or administrator for a debt found due 7 

to the claimant. The ajjpellate court shall have the .same power as 8 

the probate court or the commissioners to examine the claimant. 9 

The final judgment shall be conclusive and the list of debts allowed 10 

shall be altered, if neces.sary, to conform thereto. 11 



on 

1784, 2. 

E. S. 68, §§ 10, 

15. 

G. S. 99, §§ 10, 

18. 

1873, 252, § 4. 

P. S. 137, § 13. 

162 Mass. 450. 



-waiver of, SECTION 14. After claiming such api)eal, the parties may waive 

sion to iiriiitra- a trial at law and submit the claim to the determination of arbitrators 
i7w,'2. agreed on b}' the parties and apjiointed by the probate com-t and 

G. s. 1*; I 'iV. thereupon the appeal shall not be entered. The award of such arbi- 
i2'cu8fi!'22o"' trators, if accejjted by the court, shall be as conclusive as a judg- 
ment in a court of common law. 



1 
2 
3 
4 
5 
(5 



R*s^*5Ti2°' Section 15. The party who prevails upon such appeal shall be 1 

p'.li3rVw entitled to costs, which, if recovered again.st the executor or ad- 2 

ministrator, may be allowed to him in his administration account. 3 



— after the 
time limit, 
may lie heard, 
how. 
1816, 62. 
R. S. 68, 5 13. 
G. S. 99. § 13. 
P. S. 137, § 16. 
7 Met. 211. 
121 Mass. 565. 



Section l(i. If a per.son whose claim has been disallowed by the 1 

commissioners or by the probate court omits, for cause other than 2 

his own neglect, to claim or jirosecute his appeal as before pro- 3 

vided, the supreme judicial court in any county, may, upon his 4 

petition filed within two years after the return of the commissioners 5 

and within four years after the date of the administration bond, (i 

allow him upon terms to enter and prosecute his appeal. 7 



C'HAr. 142.] INSOLVENT ESTATES OF DECEASED PERSONS. 1301 



•2 



1 Section 17. The allowance of such appeal and the iudgment Effect of aiiow- 

,. ., . 1 1 1 ,• • ,• 'inceot appeal. 

2 thereon shall not aiiect any distribution ordered beiore notice oi wk;, w. 

3 the petition or of the intention to present the same has been given g. s. n § i*. 

4 in writing at the registry of probate or to the executor or adminis- ^-^-i^'-S". 

5 trator ; but any debt thus })roved and alloM'ed shall be paid only out 

6 of such assets as remain in or come to the hands of the executor or 

7 administrator after paj^ment of the amounts payable on such prior 

8 decree of distribution. 



PAYMENT OF DIVIDENDS TO CREDITORS. 

1 Section 18. After the expiration of the time allowed by the Distribution of 

2 provisions of section twelve for claiming appeals from the allow- iTOiitol-""'"^ 

3 ance or disallowance of a claim, the probate court shall make a "re^prove™^ 

4 decree for the distribution of the estate amono: the creditors accord- JJ*i' -„,, , ,_ 

5 ing to the provisions of this chapter. If, before making the decree, p|j?iyjg 

6 the court has notice of an appeal then claimed or pending, the tcusu. 353. 

7 decree may be suspended until the determination of the appeal, or 

8 a distribution may be ordered among the creditors whose debts are 
il allowed, leaving in the hands of the executor or administi-ator an 

10 amount sufficient to pay to the claimant whose demand is disputed 

11 a proportion equal to that of the other creditors. 

1 Section 19. The court may, at an^^ time before the expiration same subject. 

2 of the time allowed for claiming appeals, in its discretion order p.^'. m',|i9. 

3 dividends to be paid to creditors whose claims have been proved 

4 and allowed, if there is left in the hands of the executor or admin- 

5 istrator an amount sufficient to pay upon claims that may jirobably 
(i be proved afterward a proportion otiual to what is so paid to such 

7 creditors. Such amount shall remain unappropriated in the hands 

8 of the executor or administrator until the tinal dividend is declared, 

9 or until a distribution is ordered. 

1 Section 20. If the whole assets are not distributed upon the same subject. 

2 fii'st decree, or if further assets come to the hands of the executor or «! s! m! " *' 

3 administrator, the court shall make fiu-ther decrees for distribution, 



- IS. 
p. S. 137 ,'§ 20. 



1 Section 21. If the deceased had been a member of a partner- ProTisionfor 

2 ship, and partnership and individual claims are proved against his Iief4°se(ico- 

3 estate, separate lists of said claims shall be made, and in making ii'! s°|)J,' § is. 

4 dividends the court shall order the joint and the sei^arate estate to Jo Met 305.'^' 

5 be distributed in the same manner and amono' the same classes of ? A'lfn, 156 

••11 1 1 ' JMass. HI. 

t) creditors as is provided in the case ot insolvent debtors under the 

7 i)rovisions of chapter one hundred and sixty-three. 

1 Section 22. If, after the completion of the list of allowed claims, Proceedings 

2 the assets prove sufficient to pay all such claims, the executor or suracfentYo^ 

3 administrator shall pay them in full : and if any other debt is after- /alowed':''""'* 

4 ward recovered against him, he shall be liable therefor only to the }J^s'.6s!'§§2i. 

5 extent of the assets then remaining. K there are two or more such 'g-g ^ _^ 
(i creditors, the assets, if insufficient to pay their demands in full, p-g ' 'j 
7 shall be divided among them in proportion to their debts. 23'. 



1302 



INSOLVENT ESTATES OF DECEASED PERSONS. [CUA1». 142. 



Proceedings 

if nssets arc 
eulfifient to 
pay nil claims 
allowed. 
1833, IWI. 
R. S. 6.H, § 23. 
G. S. 99, § 24. 
P. S. 137, § 24. 



Section 23. The executor or adrainisti-ator, in an action 1 

brought against him on such demand, may prove the amount of 2 

a.s.sets in his hands, and thereupon judgment shall be rendered in 3 

the usual form ; but execution .shall not isjsuc for more than the 4 

amount of such assets ; and if there are two or more judgments, the 5 

court shall apportion the amount between them. 6 



Disposition of 
unclaimed 
dividends. 
I»i44, 11.'), « 1. 

G. S. 99, § 27. 
P. S. 137, § 25. 



Section 24. After twenty years from the decree of distribution 1 

of an insolvent estate, the probate court, upon apjjlication by a 2 

creditor whose claim was proved and allowed, and after notice of 3 

such application published in one or more newspapers of the countv 4 

for not less than two years on such days as the court shall direct, 5 

may order an}' unclaimed dividends, with the interest received 6 

thereon, after deducting all expenses and charges of administration 7 

since the decree of distribution, to be distributed anew among the 8 

creditors who have received their dividends. If tliere is a surplus 9 

after satisfying the claims of sucli creditors with interest, it shall be 10 

distributed to the persons legally entitled thereto. 11 



Same subject. 
1844, 115, § 2. 
G. S. 99, § 28. 
P. S. 137, § 26. 



Section 25. If a creditor who has failed to receive his dividend 1 

as aforesaid has deceased, the probate court for the county in which 2 

administration on his estate might have been gi*anted shall, at any 3 

time before a decree to distribute the unclaimed dividends is passed, 4 

gi'ant administration upon his estate, although more than twenty 5 

years may have elapsed since his death, and the administrator may 6 

receive and administer such dividend. 7 



Removal of 
executor, etc., 
neglecting to 
account. 
1794, 5. 
R. S. 68, § 25. 
G. S. 99, § 26. 
P. S. 137, § 27. 
3 Met. 109. 
129 Mass. 226. 



Section 26. If an executor or administrator neglects to render 1 

and settle his accounts in the probate court within six months after 2 

the final determination of the claims of creditors of an insolvent 3 

estate, or within such further time as the court ma^' allow, and 4 

there liy delays a decree of distribution, such neglect shall be uu- 5 

faithful administration and he may be removed. 6 



Contingent 
claims not 
payable. 
1821, 72. 
R. S. 68, § 5. 
G. S. 99, § 5. 
P. S. 137, § 28. 
7 Met. 132. 
16 Grav, .512. 
7 Allen, 430. 
123 Mass. 489. 



CONTINGENT CLAIMS. 

Section 27. If, at the expii-ation of the time allowed for the 1 

proof of claims, a person is liable as a sm-ety for the deceased, or has 2 

a contingent claim against his estate M'hich could not bo proved 3 

as a debt within said time, the court upon proof of such facts shall, 4 

ill ordering a dividend, leave in the hands of the executor or admin- 5 

istrator an amount sufficient to pay to such contingent creditor a (5 

proportion equal to what is then to be paid to the other creditors. 7 



Same subject. 
1821, 72. 
R. S. 68, § 6. 
G. S. 99, § 6. 
P. S. 137, § 29. 



Section 28. If such contingent debt becomes ab.solute within 1 

foiu' years after the time of the giving of the executor's or adminis- 2 

ti-ator's bond, it may be proved before the probate coiu't, liefore the 3 

commissioners already appointed, or befoi-e others to be appointed 4 

for the purpose by the court. 5 



iS?,^?!"''^*''*' Section 29. Upon the allowance of such claim the creditor shall 1 

G I'^'l? ^^ entitled to a dividend thereon eijual to what has been paid to the 2 

•p. s. i37, §30. other creditors, so far as the same can be paid without disturbing 3 

the former dividend ; and if the claim is not finally established, or if 4 



ChAI'. 143.] SETTLEMENT OF ESTATES OF NON-RESIDENTS. 1303 

5 the dividend upon it does not exhaust the assets in the hands of the 

6 executor or adaiinistrator, the residue of tlie assets shall be divided 

7 among all creditors who have proved their debts. If there is. a 

8 surplus after satisfying the claims of such creditors, with interest, 

9 it shall be distributed to the persons legally entitled thereto. 



ACTIONS BY CREDITORS DURING PENDENCY OF INSOLVENCY PRO- 
CEEDINGS. 

1 Section 30. Except as provided in the following section, no Actiona 

2 action shall be maintained against an executor or administrator after ex«utor°et<-., 

3 an estate has been represented insolvent, unless for a claim entitled fatfoVonn^^"' 

4 to a preference which would not be aflected by the insolvency of fUye™"/!. 

5 the estate or unless the assets prove more than sufficient to pay all ^^ ^ 

6 the debts allowed bv the commissioners. If the estate is repre- o. s. 99; § 20. 

» . .PS 137 § 31 

7 sented insolvent while an action is pending for a claim which is ikass. 502. 

8 not entitled to such preference, the action may be discontinued nn Massrw?. 

9 without costs; or, if it is disputed, the action may be tried and uiMassiiar; 

10 determined and judgment rendered thereon in the same manner and 1*9 Mass. isa. 

1 1 with the same effect as is provided in the case of an appeal from the 

12 allowance or di.sallowance of the claim of a creditor; or the action 

13 may be continued M'ithout costs until it appears whether the estate 

14 is insolvent, and, if it is not insolvent, the plaintiii' may prosecute 

15 the action as if no such representation had been made. 

1 Section 31. If it is not ascertained at the end of eighteen -to be com. 

2 months after the granting of letters testamentaiy or of administra- 'S.'^^iss. ^ '^°' 

3 tion whether an estate represented insolvent is or is not so in tact, 2; |; 99; | ll\ 

4 au}^ creditor whose claim has not been presented for proof may com- Jjg jj^la' If;'' 

5 mence an action therefor against the executor or administrator, and 

6 such action may be continued without costs for the defendant until 

7 it appears whether the estate is insolvent ; and if it is not insolvent, 

8 the plaintiff may prosecute the action as if no such representation 

9 had been made. 

1 Section 32. If judgment has been rendered against the estate Proceedings 

2 of a deceased person which has been repi'esented insolvent, and a ment iia'sfieen 

3 certified copy from the probate court, showing such representation, a^ifngt an in- 

4 has been filed in the clerk's office of the court in which the judgment ^.s^)"*/**'""*' 

5 was rendered, no execution shall be issued on such iudiiinent ; but }'•. 't-,'^ '•!,??• 

. ' 1-11 • 1 136 Maes. 294. 

b such judgment may be presented tor allowance in the same manner 

7 as other claims of creditors, and otherwise the proceedings relative 

8 to such judgment shall be the same as those relative to judgments 

9 rendered on appeal under the provisions of section thu'teen. 



CHAPTER 143. 

OF THE settlement OF THE ESTATES OF DECEASED NON-RESIDENTS. 

1 Section 1. If administration is taken in this commonwealth ^^"of'lstates 

2 on the estate of a person who was an inhabitant of anv other state of rieceased 

o ^ ' /.ii ii»> "/•I'll uon-resideuts. 

o or country, his estate found here shall, after payment of his debts, k. s. 70, §21. 



1304 



SETTLEMENT OF ESTATES OF ABSENTEES. [ClIAI". 144. 



1843,92. 
G. S. 101, § 38. 
P. S. l:«, § 1. 
V Maes. 337. 
11 Mass. 2ot>. 
e Pick. 481. 
3 Met. 109. 
147 Mass. 204. 
\6o Mass. 240. 



be dispo-sed of according to his last Mill, if he left any dul}- ex- 4 

ccutcd according to law ; otherwise his real property shall descend 5 

according to the law.s of this commonwealth, and his personal prop- G 

ert}^ yhall be distributed and disposed of according to the laws of 7 

the state or country of which he was an inhabitant. 8 



.\4hninistra- 
tiou of estates 
of deceased 
non-residents. 
R. S. 70. § 22. 
G. S. 101, § .39. 
P. S. 138, § 2. 
151 Mass. 601. 
152JVla8S. 74. 



Section 2. After the payment of all debts for which such estate 1 

is liable in this commonwealth, the residue of the personal projierty 2 

may be distributed and di.sposed of, as provided in the preceding 3 

section, by the probate court; or, in the discretion of the court, it 4 

may be transmitted to the executor or administrator, if an}-, in the 5 

state or countiy of which the deceased was an inhabitant, to be 6 

there disposed of according to the laws thereof. 7 



Settlement of 
such estate 
wlien insol- 
vent. 

K. S. 70, § 23. 
G. S. 101, § 40. 
P. S. 138, § 3. 



Section 3. If such person dies insolvent, his estate found in 1 

this commonwealth shall, as far as practicable, be .so disposed of that 2 

all his creditors here and elsewhere maj^ each receive an equal pi'O- 3 

portion of their respective debts. spick. i28. s Pick. 475. 4 



Same subject. 

R. S. 70, §§ 24, 

25. 

G. S. 101, § 41. 

P. S. 138, § 4. 



Section 4. The estate shall not be transmitted to the foreign 1 

executor or administrator until all the creditors who are citizens 2 

of this commonwealth have received the proportion which would 3 

be due to them if the whole estate of the deceased, wherever 4 

found, which is applicable to the payment of common creditors ."> 

were divided \vithout preference among all the creditors in pro- (> 

portion to their respective debts ; and no creditor who is not a 7 

citizen of thi.s commonwealth shall be paid out of the as.sets found 8 

here, until all those who are such citizens have received the propor- 9 

tion provided in the preceding section. 10 



Same subject. 
R. S. 70, § 2«. 
G. S. 101, 1 42. 
P. S. 138, § 5. 



Section 5. If there is a residue after such payment to the 1 

citizens of this commonwealth, it may be paid to ain- other creditors 2 

who have duly proved their debts here, in proportion to the amount 3 

due to each of them, but no one shall receive more than would be 4 

due to hhn if the whole estate were divided ratably among all the 5 

creditors as before jjrovided. The balance may be ti-ansiuitted to 6 

the foreign executor or administrator; or if there is none, it shall, 7 

after the expiration of four years from the appointment of the ad- 8 

ininLstrator, be distributed ratably among all creditors, both citizens U 

and others, who have proved their debts in this commonwealth. 10 



CHAPTEE 144, 



Petition for 
uppointment 
of receiver. 
1894, 203. 
1897, 447, § 1. 



OF THE settlement OF ESTATES OF ABSENTEES. 

Section 1. If a resident of the commonwealth having property 
therein has dLsajipeared, absconded or is absent therefrom and has 
left no aoent therein and his whereabouts are unknown : or if such 
resident, who has a wife or minor child dependent upon him wholly 
or partlj'^ for support, has disappeared without making sufBcient 
provision for such support and his whereabouts are unknown, or if 



1 
2 

3 
4 
5 

() 



Chap. 144.] settlement of estates of absentees. 1305. 

7 it is known that tliej arc without the coinmonwealtli, a person wlio 

8 would be entitled to administer upon his estate if he were dead, or 

9 sui-li wife, or a person in behalf of such wife or minor child, may 

10 file a petition, under oath, in the prol)atc court for the count}' in 

11 which any such property is located or found, stating the name, age, 

12 occupation and last known residence or address of such absentee, 
i;5 the date and circumstances of Ids disapiiearancc, and the names 
14 and residence of the family of such absentee and of other persons 
1.') of whom incjuiry may be made and containing a schedule of his 
1(1 iiroperty, real and personal, so far as known, and its location within 

17 tlie commonwealth, and praying that such propert}' may be taken 

18 possession of and a receiver thereof appointed under the provisions 
lit of this chapter. 

1 Section 2. The court may thereupon issue a warrant directed J^g*"^"'. i. 

2 to the shcrifl' or his deput}', which may run into and be served in 

3 an}' comity, commanding him to take possession of the property, 

4 named in said schedule and hold the same subject to the order of 

5 the court and make return of said warrant as soon as may be with his 
li doings thereon with a schedule of the property taken possession of 

7 by virtue thereof. The offit'cr shall post a copy of the warrant 

8 upon each parcel of land named in the schedule and cause so much 

9 of the ^\•arrant as relates to land to be recorded in the registry of 

10 deeds for the county and district in which the land is located. He 

11 shall receive such fees for serving the warrant as the court allows 

12 but not more than those established by law for similar service upon 

13 a writ of attachment. If the petition is dismissed, said fees and 

14 the cost of publishing and serving the notice hereinafter provided 
1.') shall be paid by the petitioner. If a receiver is appointed said fees 
l(i and cost shall be paid by the receiver and allowed in his account. 

1 Section 3. Upon the return of such warrant, the court may Notice. 

2 issue a notice which shall recite the substance of the petition, war- " '' '"' ' 

3 rant and officers return and shall be addressed to such absentee and 

4 to all persons who claim an interest in said property, and to all 

5 whom it may concern, citing them to appear at a time and place 

6 named and show cause why a receiver of the property named in the 

7 officer's schedule should not be appointed and said property held 

8 and disposed of under the provisions of this chapter. 

1 Section 4. The return day of said notice shall be not less than same subject. 

2 thirty nor more than sixty days after its date. The court shall ''^'' ''^ 

3 cause said notice to be published in one or more newspapers within 

4 the commonwealth, once in. each of three successive weeks and to 

5 be posted in two or more conspicuous places in the city or town in 

6 which the absentee last resided or was known to have been either 

7 temporarily or permanently and upon each parcel of land named in 

8 the officer's schedule, and a copy to be mailed to the last known 

9 address of such absentee. The court may order other and further 

10 notice to be given within or without the commonwealth. The 

11 certificate of the resrister of the court that he has served the notice 

12 as directed by the court shall be filed before the I'eturn day and 

13 shall be conclusive proof of such service. 



1306 



SETTLEMENT OF ESTATES OF ABSENTEES. [ChAP. 144. 



Appointmen 
of receiver. 
Bond. 
1897, 447, §§ 1, 



~ Section 5. The absentee and any person who claims an interest 1 

in any of the property may appear and show eausc wh}' tlie prayer 2 

of the petition sliould not ha granted. The court may after hearing 3 

dismiss the petition and order the property in possession of the 4 

officer to be returned to the person entitled thereto, or it may 5 

appoint a recei\'er of the property which is in the possession of the (5 

officer and named in his schedule. If a receiver is appointed the 7 

court shall find and record the date of the disappeai'ance or al^scond- 8 

ing of the absentee ; and such receiver shall give bond to the judge 9 

of probate and his successors in office in such sum and with such 10 

condition as the court orders, with a company named in section 11 

sixty-one of chapter one hundred and eighteen and approved by 12 

the court as surety thereon. 13 



Transfer of 
property, etc. 



Section fi. After the filing and approval of such bond the 
court ma.y order the sheriff or his deputy to ti-ansfer and deli\ er to 
such receiver the possession of the property under the aforesaid 
warrant, and the receiver shall file in the registi'y of probate a 
schedule of the propert}^ received by him. 



Possession of 
additional 
property. 
Debts. 



Section 7. Such receiver upon petition filed by him ma}' be 1 

authorized and du-ected to take possession of any additional prop- 2 

erty within the commonwealth which belongs to such absentee and 3 

to demand and collect all debts due' such absentee from any person 4 

within the commonwealth, and hold the same as if it had been .'> 

transferred and delivered to him by the officer. 6 



Management 
and sale of 
property. 
1897, 447, § 3. 



Section 8. The court may make orders for the care, custody, 1 

leasing and investing of said property and its proceeds. If an}' of 2 

said property consists of live animals or is perishable or cannot be 3 

kept without great or disproportionate expense, the court may, at 4 

an}' time after the return of the warrant, order such property to be .5 

sold at public or private .sale. After the appointment of a receiver, (5 

upon his petition and after notice, the court may order all or part of 7 

said ])roperty, including the rights of the absentee in land, to be 8 

sold at public or private sale to suppl}' money for payments author- 9 

ized by this chapter or for re-investment approved by the court. 10 



Allowance to 
widow and 
children. 
1897, 447, § 3. 



Section 9. The court ma}' order said property or its proceeds 
acciuired by mortgage, lease or sale to be applied in pa}'ment of 
charges incurred or that may be incurred in the sujiport and main- 
tenance of the absentee's wife and minor children, and to the dis- 
charge of such debts as may be proved against said absentee. 



Compensation 

of receiver ; 

accounts ; 

barring of 

suits. 

1897, 447, § 6. 



Section 10. The receiver shall be allowed such compen.sation I 

and such disbursements as the court orders to be paid out of said 2 

liroiK'ity or its proceeds. If such absentees appears within fourteen 3 

years after the date of the disapi)earance and absconding as found 4 

and recorded by the court, the receiver shall account to him for, 5 

deliver and pay over the unexpended balance of said property. 6 

If, within said fourteen }oars, an adininisti-ator, executor, assignee 7 

in insolvency or trustee in bankruptcy of said absentee is appointed, 8 

such receiver sliall account for, deliver and pay over to him tlio 9 

unexpended balance of said property. If said absentee does not 10 



ChAI". 1-tf).] GUARDIANSHIP. 1307 

11 apjjear and claim said propertj' within said fourteen years, all 

12 the right, title and interest of said absentee in said property, real 

13 or personal, or the proceeds thereof shall be barred and no action, 

14 suit or petition in any form shall be commenced by said absentee 

15 after the expiration of said fourteen years for or on account of said 

16 jDroperty or its proceeds. 

1 Sectiox 11. If, at the expiration of said foiu-teen years, said ^ropem""'"'* 

2 property has not been accounted for, delivered or paid over under iss". «7, '§§ 4, 5. 

3 the provisions of the preceding section, the court shall order the 

4 distribution of the unexpended balance thereof to the persons to 

5 whom, and in the shares and proportions in which, it would have 

6 been distributed if said absentee had died intestate on the day four- 

7 teen years after the date of the disappearance or absconding as 

8 found and recorded by the court. 

1 Section 12. If such receiver is not appointed within thirteen Limitation if 

2 years after the date found liy the court under the provisions of apimrnted "" 

3 section live, the time limited* for accounting for, or iixed for dis- years" "'"''*''° 

4 trijjuting, said property or its proceeds, or for barring actions 

5 relative thereto, shall l)e one year after the date of the appointment 

6 of the receiver instead of the fourteen years provided in the two 

7 preceding sections. 



CHAPTER 145, 

OF GUARDIANSHIP. 



Section 1 . — Jurisdiction. 

Sections 2-5. — Of Minors. 

Sections 6-11. — Of Insane Persons and Spendthrifts. 

Sections 12-15. — Of Married Women. 

Sections 16-19. — Of Persons out of the Commonwealth. 

Sections 20, 21. — Temporary Guardians. 

Section 22. — Removals, Resignations, etc. 

Sections 23,24. — Guardians ad Litem and Next Friend. • 

Sections 25-39. — General Powers and Duties of Guardians. 

Sections 40,41. — Conservators of the Property of Aged Persons. 

Section 42. — Agents of Non-resident Guardians and Conservators. 

.JURISDICTION. 

1 Section 1. The probate court may, if it appears necessary Appointment 

2 or convenient, appoint guardians of minors and others who are c. i"''i! § 2°^' 

3 inhabitants of or residents in the county or who reside out of this J-^;; f^\ ^ '"• 

4 commonwealth and have estate within the county. isnl lab.^^i. 

R. S. 79, § 1. G. S. 109, § 1. p. S. 139, § 1. 5 Pick. 370. 128 Mass. 587. 



or minors. 

1 Section 2. If a minor is under the age of fourteen years, the same subject. 

2 pi-obate court maj' nominate and appoint his guardian. If he is iTs.sr.s's.Vi. 

3 above that age, he may nominate his own guardian, who, if approved §;!: lo9,^§'2. 



1308 



GUARDIANSHIP. 



[(Jhai'. i-t.j. 



p. S. 139, § 2. 
154 Mass. 37H. 



by the court, shall be appointed accordingly. If the person nomi- 
nated is not approved b}' the court, or if the minor resides out of the 
commonM'ealth, or, after being cited, neglects to nominate a suitable 
person, the court may nominate and appoint his guardian in the 
same manner as if he ^vcre under the age of fom'teen years. 



4 
,") 
() 

7 
8 



Appointment 
of guardians. 
\15i-S, 1-2, § 7. 
17!«, 3S, § 1. 
R. S. 7:), § 3. 
1837, 171, § 2. 
G. S. lO'J, § 3. 



Section 3. The nomination of a guardian b}' a minor above the 
age of fourteen years ma}' be made before a justice of the peace, 
special commissioner or a cit}' or town clerk, who shall certify the 
fact to the probate court. p. s. 139, § 3. 1899, its, § 2. 



1 
-> 

.3 

4 



Power of 
j:uai'dian of 
minor. 
C. L. 211,§4. 
R. S. 79, § 4. 
G. S. 109, § 4. 
1871, IW. 
1873, .307. 
1880, B6. 
P. S. 139, § 4. 
149 Mass. 57. 



Section 4. The guardian of a minor, unless sooner discliarged 1 

according to law, shall continue in office until the minor arrives at 2 

the age of twenty-one years, and he shall have the custody and tui- H 

tion of his ward and the care and management of all his estate, excejit 4 

that the father of the minor, if living, and in case of his death, the ,i 

mother, they being, respectively, competent to ti"an.sact their own (> 

business, shall be entitled to the custody of the person of the minor 7 

and to the care of his education ; but the probate court may order 8 

that the guardian shall have such custody, if, upon a hearing and after 9 

such notice to the parents or surviving parent as it may order, it 10 

finds such parents or parent to be unfit to have such custody, or if 11 

it finds one of them unfit therefor, and the other files in such court 12 

his or her consent in writing to such order. 13 



Appointment 
of testamen- 
tarv guardian. 
R. S. 79, § K. 
G. S. 109, § 5. 
1877, 128. 
P. S. 139, § o. 
1898, 138. 

8 Met. 127. 

9 Allen, 518. 



Section 5. A father, or, if he has died without exercising the 1 

power, a mother may by his or her last will in ^\^■iting ajipoint, 2 

subject to the approval of the probate court, a guardian for his or 3 

her child, whether born at the time of making the will or after- 4 

ward, to continue during the minority of the child or for a less .5 

time. Such testamentary guardian shall have the same powers and (> 

perform the same duties, relative to the person and estate of the 7 

ward, as a guardian appointed by the probate court. 8 



— of guardian 
of insane per- 
son. 

1893-1, 18. 
172(i-7, 12, § 1. 
1731-2, 14, § 1. 
1737-8, 9, § 1. 
178;^, 38, § 2. 
R. S. 79, § 9. 
G. S. 109, § 8. 
P. S. 139, 4 7. 
8 Mass. 129. 
12 Mass. fiOo. 
5 Pick. 490. 



OF INSANE PERSONS AND SPENDTHRIFTS. 

Section 6. If the relations or fi-iends of an insane person, or 1 

the mayor and aldermen or selectmen of a city or town of which 2 

an insane person is an inhabitant or resident, apply to the jirobate 3 

court to have a guardian appointed for him, the court shall cause 4 

not less than fourteen days' notice of the time and place ap])ointed r> 

for the hearing to be given to him ; and if after a hearing the court (i 

finds that he is incapable of taking care of hmiself, it shall appoint 7 

a guardian of his person and estate. 8 

7 Met. 388. 4 Gray, 63. 102 Mass. 14. 154 Mass. 378. 



— of guardian 
of spend- 
tlirift. 
1783, 38, § 7. 
R. S. 79, §§ 11, 
12. 

lS4fi, 249. 
G. S. 109, § 9. 
P. S. 139, § 8. 
1897, 173. 
12 I'ick. l.')2. 
lOB Mass. 501. 



Section 7. If a per.son, by excessive drinking, gaming, idle- 1 

ness, or debauchery of any kind, so spends, wastes or lessens his 2 

estsite as to expose himself or his family to want or sufiering, or 3 

any city or town to charge or expense for hi,s support or for the 4 

support of his family, the overseers of the poor of the city or town .5 

of which he is an inhabitant or resident, or upon which he is or may 6 

become chargeable, or a relation or relations of such spendtlu-ift, 7 

may file a petition in the probate court, stating the facts and cir- 8 



Chap. 145.] guardianship. 1309 

y cmnstances of the case and praying to have a guardian appointed. 

10 In towns in which overseers of the poor are not chosen and in which 

11 selectmen act as such, the selectmen may file such petition. Upon 

12 the filing of such ))etition, the court shall cause not less than four- 

13 teen days' notice of the time and place appointed for the hearing 

14 to be given to tlie supposed spendthrift ; and if, after a hearing, it 
1.5 finds that he comes within the above description, it shall appoint a 
16 guardian of his person and estate. 

1 Section 8. Such petitioners may cause a copy of the petition. Effect on con. 

2 with the order of notice thereon, to be recorded in the registry of reponiingcom- 

3 deeds for the county and district in which anj'- land of the supposed n^Js".*^, § 7. 

4 spendthrift is located ; and if a guardian is appointed upon such {g.],^ Jig- , j 

5 petition, all contracts, except for necessaries or relative to land, and y'|JoiA'i5 

6 all gifts, sales or transfers of personal property made by the spend- p- s. 139,' § 9. ' 

7 thrift after an order of notice upon the petition has been issued by ut Mass. sos.' 

8 the i)n)hate court, and all contracis relative to and sales and con- 130 mj'ss! ws. 

9 veyances of land made by the spendthrift after such record in the iMMassisst; 

10 registry of deeds for the county and district in which the land is 

11 located, and before the termination of the guardianship, shall be void. 

1 Section 9. If a guardian is appointed for an insane person Allowance for 

2 or spendthrift, the court shall make an allowance, to be paid by the fusaiTperson. 

3 guardian, for all reasonable expenses incurred by the ward in de- Rfs.w.Vu. 

4 fending himself against the petition. p. s. 139, §10. g. s. 109, §u. 

1 Section 10. The guardian of an insane person or spendthrift !'<';>;■'■'•>;• p'<-. 

2 shall have the care and custody of the person of his ward and the insTnu- p, '1 s..ii 

3 management of all his estate, and shall give the bond prescribed in ntll 3°,' §§'5! 

4 section one of chapter one hundred and fortv-nine, except that the r.s. 79, §§io, 
i relative to the education of the ward shall be 01 

p. S. 139, § 11. 5 Mass. 427. 1«2 Mass. 582. 



5 conditions relative to the education of the ward shall be omitted. g.' s- 109, § 12. 



1 



Section 11. The guardian of an insane i)erson or siiendthrift Termination of 

a .... 1 t '1 1 T • /.I jiiiariiianslnp. 

Z may be discharofed bv the iH'obate court, upon the aiiiihcation ot the 11. s. 79, §23. 

3 ward or otherwise, when it appears that the guardianship is no p.' s.' 139,' § 12." 

4 longer neces.sary. 

OF married women. 

1 Section 12. If a married woman owns property, real or per- Appointment 

2 sonal. a guardian may be appointed for her for the same causes, in "f Sril'd" 

3 the same manner and with the same powers and duties, as if she g^s.^'iw, § is. 

4 were sole, except as hereinafter provided. But a guardian shall "*• '^^ i^"- § i^' 

5 not be so appointed without such notice to the husband as the court 

6 maj' order. 

1 Section 13. Such guardian shall not have the care, custody or snciigusirdian 

2 education of his ward, except in ease of the insanity of her hus- cust'o"i''?etc., 

3 band, or of his abandoning her by absenting himself from this ei(^p"'etc. 

4 commonwealth and making no sufficient pi'ovision for her. p'li39'li4' 

1 Section 14. Such guardian shall not apply the property of his —not to apply 

2 ward to the maintenance of herself and lier family while she is mar- lup'i)ort\v'i'th" 

3 I'ied, unless he is thereto authorized by the probate court on account probate court. 



1310 



GUARUIANSHIP. 



[Chap. 145. 



G. s. 108, §18. of the inability of her husband suitably to maintain her or them, or 
p. s. 139, § 15. ^.^^ other cause which the coiu-t considers sufficient. 



Section 15. If a married woman is by reason of insanity or 



Guardian for 

insane married ^ ^ ^ - 

wonian having infancv incoiiii^etcnt to release her right of dower or of homestead, 

riglit of dower, - ^ • i /• i . i •,. i 

etc. a guardian may be appointed tor her in the same manner as it she 

1856, 169, §§1,2. ^ , -ii .1 1 1 i. ■ . T 

1867, 298, e§ 8, 9. wcrc solc, witli the powers and duties given to guardians ot mar- 
p." s.' 189,' 1 16.' ried women who own property, and the husband or any suitable 

1890,2.59. - - 



person may be appointed such guardian. 



1 
•2 

4 
5 
(5 



Appointment 
of guardian of 
non-resident. 
1783, 38, § 1. 
R. S. 79, § 28. 
G. S. 109, § 13. 
P. S. 139, § 17. 
4 Allen, 166. 



OF PERSONS OUT OF THE COMMONWEALTH. 

Section 16. If a person who is liable to be put under guardian- 1 

ship according to the provisions of this chajitei' resides out of the 2 

conimonMcalth and has anj^ estate therein, a friend of such person 3 

or any one interested in his estate, in expectancy or otherwise, may 4 

apply to the probate court for a county in which there is such estate, 5 

which, after notice to all persons interested and a hearing and (5 

examination, may appoint a guardian for him. 7 



Powers, etc., 
of sucli 
guardian. 
R. S. 79, § 29. 
G. S. 109, § 14. 
P. S. 139, § 18. 
13 Met. 80. 
2 Allen, 206. 



Section 17. Such guardian .shall liave the .same powers and 1 

duties relative to any estate of the ward found within the common- 2 

wealth and also relative to the person of the ward, if he comes to 3 

reside therein, as other guardians who are appointed under the 4 

provisions of this chapter. 4Aiieti, 321. 5 



Form of bond 

to be given by 

him. 

R. S. 79, § 30. 

G. S. 109, § 15. 

1879, 184. 

P. S. 139, § 19. 



Section 18. Such guardian shall give the bond prescribed in 1 

section one of chapter one hundred and forty-nine, except that the 2 

conditions relative to tlie inventory, the disposal of the estate and 3 

effects and the account to be rendered by him shall be confined to 4 

such estate and effects as come to his hands in this commonwealth. 5 



Proceedings 
for non-resi- 
dent guardian 
of non-resident 
wanl to receive 
ward's estjite 
here. 
1875, 189. 
1880, 154. 
P. S. 139, § 20. 
1900, 232. 



Section ID. If a person who is a resident in another state is 
entitled to real or personal property of any description in this 
commonwealth, and is under the guardianship of a person who is 
also resident in such other state, who produces to the probate court 
of the county in wiiich such jiroperty or the jirincipal part thereof 
is situated a full and complete and duly exemi)lified or authenticated 
transcript from the records of a court of competent jurisdiction in 
such other state, showing that he has there been apjiointed such 
guardian, and has given a bond and security in double the value 
of the property of such ward, then such transcri})t may be recorded 
in such probate court, and such guardian shall be entitled to receive 
from such court letters of guardianshi]) of the estate of such ward 
in this commonwealth which shall authorize him to care for and 
manage the real and personal property of sucii ward, to collect the 
rents and profits therefrom and to demand, sue for and recover any 
such property, and to remove any of the movable property or 
estate of such ward out of this commonM'ealth, if such removal will 
not conflict with the terms and limitations attending the right hy 
which tlie ward holds the same. Such jirobate court may also 
order an}' resident guardian, exec^itor or administrator who has any 
of the estate of such ward to deliver the same to any person who 
lias taken out letters of guardianship as aforesaid. 



1 

2 

3 

4 

5 

() 

7 

8 

9 

10 

11 

12 

13 

14 

15 

Ifi 

17 

18 

l!l 

20 

21 

22 



Chap. 145.] guardianship. 1311 

temporary guardians. 

1 Section 20. Upon the iietition of the mayor of a city, the select- Temporary 

2 men of a town, the overseers of the poor of a city or town or other pointnifut of. 

3 person in interest, the judge of the probate court may, after giving p. s'. iW, §«. 

4 due notice according to the rules of the pi-obate court, api)oint a ifmoialsllu.s. 

5 temporary guardian of a minor, insane person or spendthrift and i"*!!. ■^is, 523. 

6 may, with or without notice, remove or discharge him or terminate 

7 the trust. If the court finds that the welfare of such minor requires 

8 the immediate appointment of a temporary guardian of his person, 

9 such appointment mayl)e made without notice. A temporaiy guar- 

10 diau sluiU proceed and continue in the execution of his duties, not- 

11 withstanding an appeal from the decree appointing him, until it is 

12 otherwise ordered by the supreme judicial court, or until the ap- 

13 pointment of a permanent guardian, or until his trust is otherwise 

14 legally terminated. . 

1 Section 21. Such temporary guardian shall, until otherwise —powers and 

2 ordered, or until his removal or the appointment of a permanent isr^Msof' 

3 guardian, have the same powers and perform the same duties re la- iw.ill,'!!.' 

4 tive to the person and estate of the ward as permanent guardians, i9<». 345,§§2,5. 

5 and may be decreed the custody of the persons of minors, if the court 

6 finds the parent or parents unfit therefor or if it finds one of them 

7 unfit therefor and the other consents to such custody by the tempo- 

8 rary guardian or if a temporary guardian is serving or appointed to 
!) serve in place of a temporary guardian removed. If such temporary 

10 guardian of a minor is appointed pending proceedings for an order 

11 for custody under the provisions of section four or for the removal 

12 of a guardian of a minor, he shall have the sole custody and control 

13 of the ward during the pendency of such proceedings. Upon the 

14 termination of his powers, a temporary guardian shall deliver to 
1.5 the guardian or such person as is otherwise la^vfully authorized to 
11) receive it the estate of the ward in his hands. A guardian may 

17 be admitted to prosecute an action commenced by a temporary 

18 guardian. 

REMOVALS, resignations, ETC. 

1 Section 22. If a guardian who has been appointed either b}' a Removal, et<-., 

2 testator or by the court becomes insane or otherwise incapable of ailaHJoTiIt. 

3 performing his trust or is unsuitable therefor, the probate comt, "esso".' ''"' ' 

4 after notice to him and to all other persons interested, may remove jii^'itj;, §3^ 
.5 him. Upon the recjuest of a guardian, the probate court may in its ??• s ^iliX-Hk 

6 discretion allow him to resign his trust. Upon such removal or i'- s. iiw,' § 21. 

7 resignation, and upon the death of a guardian, another may be ap- 8 Pick! m.' 

8 pointed in his stead. 105 Mass. 501. 128 Mass. 087. iss Mass. 433. ™^' 



guardians ad litem and next friend. 

1 Section 23. If, under the terms of a written instrmnent or Appointment 

2 otherwise, a minor or person under disability, or a person or per- Sdlitem.""" 

3 sons not ascertained or not in Ijeing, may be or may become inter- i^^^- ■•■''"'■§ '• 

4 ested in any propertv real or personal, the court in which any action, 

5 petition or proceeding of any kind relative to or affecting any 

6 such estate is pending, except the court of land registration, may, 



1312 



GUARDIANSHIP. 



[Chap. 145. 



Cost of appear- 
ance. 

1896, 456, § i. 



upon the representation of any party thereto, or of any person inter- 7 

ested, appoint a suitable person to appear and act therein as guar- 8 

dian ad litem or next friend of such minor or person or i)crsons 9 

under disabilit}' or not ascertained or not in being ; and a judgment, 10 

order or decree in such jjroccedings, made after such aj)))ointment, 11 

shall be conclusive upon all persons for whom such guardian ad 12 

liteiu or next friend was appointed. 13 

Section 24. The reasonable expenses of such guardian ad litem 1 

or next friend, including his compensation and that of his counsel, 2 

shall be determined by the court and paid as it may order, either 3 

out of the estate or by the plaintilf or petitioner. If such expenses 4 

are to be paid by the plaintift" or petitioner execution therefor may 5 

issue in the name of the guardian ad litem or next friend. 6 



Powers and 
duties of 
guardians. 
1726-7, 12, § .i. 
17.S1-2, U, § 0. 
lTi:-S, 9, § 3. 
17t«, 38, § 4. 
mm, 102. 
R. S. 79, § 17. 
G. S. 101), « IS. 
P. S. 131), « 29. 
13 Muss. 237. 
1 Pick. 314. 
."i Pick. 431. 
19 Pick. 346, 
506. 

8 Cusl). .5S7. 
12 Cush. .324. 



GENERAL POWERS AND DUTIES OF GUARDIANS. 

Section 2.5. A guardian shall pay all just debts which are due 1 

from his ward out of the personal property, if sufficient, and, if not, 2 

out of the real property, upon obtaining a license for the .sale thereof 3 

as provided in chapter one hundred and forty-si.x. He shall settle 4 

all accounts of his ward and demand, sue for and receive all debts 5 

due to him or, with the approval of the probate court, may com- 6 

promise the same and give a discharge to the debtor. He shall 7 

appear for and represent his ward in all actions, suits and proceed- 8 

ings, unless another person is appointed for that purpose as guar- 9 

dian ad litem or next friend. 10 



9 Gray, 84, 2.5,'). 
5 Allen, 464. 

10 Allen, 463. 



97 Mass. .108. 
100 Mass. 239. 
lul Mass. 60. 



106 Mass. .501. 
Ill Mass. 263. 
133 Mass. .Wl. 



1.5.5 Jlass. 1.%. 
168 Mass. 21.5, .573. 
170 Mass. 499. 



Same subject. 
1726-7, 12, § 4. 
1731-2, 14, § 4. 
1737-8, 9, § 3. 
1783, 3S, § 4. 
1806, 102. 
R. S. 79, § 18. 
G. .S. 109, § 19. 
P. S. 139, § 30. 
20 Pick. 116. 
4 Allen, 426. 
8 Allen, 427. 
10 Allen, .59. 
109 JIass. 2.52. 



Section 26. He shall manage the estate of his ward frugally 
and without waste, and shall ajiply the income and profits thereof, 
so far as may be necessary, to the comfortalile and suitable mainte- 
nance and support of the ward and his familv. If the income and 
profit.s are insufficient for that }>iU'pose, the guardian may sell the real 
property upon olitaiiiing a license therefor, and shall apply the pro- 
ceeds of such sale, so far as may be necessary, for the maintenance 
and support of the ward and his family. 120 Mass. 487. leo Mass. 233. 

Section 27. A guardian may, except when he has an interest 
adverse to that of the ward in the estate to be divided, make parti- 
tion of his ward's real property if lying in common and undivided, 
either upon petition for partition or otherwi.se, as fully and in like 
manner as the ward could do if he were under no disability, may 
assign and set out dower in his ward's estate to any widow entitled 
tliereto, and may apjioint an appraiser of real property on an execu- 
tion either against or in favor of his ward. 

m"n'S?ciiiid by Section 28. The probate court may, upon the petition of a 
larents. guardian entitled to the custody of his minor ward, during the life- 

time of either or both of his jiarents, and after notice to all i)arties 
interested, order and require said })arents or either of them to con- 
tribute to the supj)ort and maintenance of such minor in such 
amounts and at such times as it determines are just and reasonable. 
Such i)arent or parents may be recjuired to give a bond conditioned 



Same subject. 
1727, .5. 
1783, 41, § 1. 
R. S. 79, § 19. 
18.52, 248. 
G. S. 109, § 20. 
P. S. 139, § 31. 
1 Pick. 221, 314. 



r. 



1891, 368. 



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Chap. 145.] guakdianship. 1313 

8 to conijily with such order and payable to the judge of said court 

9 and his successors in such sum and with such sui'eties as the court 

10 orders. The court may from time to time, upon application of 

11 cither party, I'evise or alter such order or make such new order or 

12 decree as the circumstances of the parents or the benetit of the 
I'd minor may require. 

1 Section 29. If a minor, who has a father living, has property Appiiration of 

2 sufficient for his maintenance and education in a manner more ex- eityTo*iii'™''" 

3 pensive than the father can reasonably afford, regard being had to latliert 11"""^ 

4 the situation of the father's family and to all the circumstances of j^s;^- J^' ^ '^• 

5 the case, the probate coiu't may order that such expenses of the p|J.?'''||i' 

6 maintenance and education of such child as it determines are rea- 2 Mass. 415. " 

7 sonablc may be defrayed out of his owni property; and if necessary, sciishiss?. 

8 his real property upon obtaining license therefor may be sold for that ^'^ '*'''^^' **^' 

9 purpose by the guardian. 

1 Section 30. The probate court may, upon the application of the support of 

2 guardian of an insane person or of a child or the guardian of a insau'ei'ersou 

3 child of an insane person, after notice to all other persons inter- dlaJfe'iifp.'""' 

4 ested, authorize and require the guardian of such insane person to p"s' 139533 

5 apply to the maintenance and education of any child or children of 
(5 said ward such portion as the court orders of the income of the 
7 ward, which is not required for his maintenance and support. 

1 Section 31. The probate court for the county in which a guar — of wife of 

2 dian of an insane person has been appointed ma}' make an allowance IrndCT^if™"" 

3 out of the estate of such insane person for the support of his wife, fsss] tS.'' 

4 to be paid to her by the guardian during the continuance of the Jf^g' ^-fjj, .,g 

5 guardianship in such manner as the com't orders. leo Mass. 233. p"'l Vs'' 5 -u 

1 Section 32. The probate court may, after notice to all persons Guardiansmay 

2 interested, authorize guardians to obtain b}' purchase the release oi'doww.'eto? 

3 and conveyance of a right of dower or of curtesy, homestead, life property* '^''''' 

4 estate, estate for years or other interest, vested or contingent, held p^'s'^s^V^ 

5 or owned by any jjerson in or to any real property of their ^vards, 

6 and to make any contract relative to such rights or interests which 

7 may be necessary to effect such purchase. 

1 Section 33. If property, rights or benefits given hy Mill or Election or 

2 by provision of law depend upon the election, waiver or other gua'rdfa'n. 

3 act of a person incompetent by reason of insanity or minority to p.'g.^is.,, § 31;. 

4 exercise or perform the same, his guardian may make such election J"! JJjlsg' fS^- 

5 or waiver or perform such act. 

1 Section 34. Upon taking an inventory, the estate and effects Appraisal of 

2 com})rised therein shall be appraised by three appraisers, who shall lsIt'uw, § 34. 

3 be appointed and sworn as is required bylaw relative to the in- S. l'.io!if§"i7. 

4 ventory of the estate of a deceased person. ^'- s- ^*'' § ^~- 

1 Section 35. The probate court ma}^ upon the application of a saieofper. 

2 guardian or of any person interested in the estate of a ward, after of'ward."^*'^'^ 

3 notice to all other persons interested, authorize or require the IsSi m*'?^?^'^' 

4 guardian to sell and transfer any personal property held by him as g- 1- i|Iy^5^.2.i 



1314 



GUARDIANSHIP. 



[Chap. 145. 



p. S. 139, § 38. 
2 Pick. ■243. 
S Allen, IS. 
120 Muss. 102. 
14M M.18S. 375. 
168 Mass. 576. 



guardian and to invest the proceed.s thereof and all other money 
in hi.s hands in such manner as may be most for tlie interest of all 
concerned. Said court may make such further order and give such 
directions as the case maj' re(]uu-e for the management, investment 
and disiwsition of the estate in the hands of the guardian. 



Transfer of 
estJite of ward 
who lias no 
>;uardian in 
this sUite. 
1866, 122, § 2. 
1877, 127. 
P. S. 139, § 40. 



Section 36. An executor, administrator or trustee who has in 1 

his hands personal property belonging to a person under guardian- 2 

.ship residing out of this commonwealth and having no guardian ap- 3 

pointed therein may pay over and transfer the whole or an>' part 4 

of such personal jiroperty to a guardian, trustee, or conniiittec a])- o 

pointed by comj)ctent authority in the state or country in which tJ 

such person resides, upon the terms and in the manner required 7 

by the provisions of section twenty-live of chapter one hundred and 8 

forty-six. ;i 



ria|e*of'(™maie SECTION 37. The marriage of a female under guardianship as a 1 

ir's"*™ §23 iiTiiiioi" shall deprive her guardian of all right to her custody and 2 

(i.s. 109, §26. education, but not of his right to the possession of her property. 3 

p. S. 139, § 41. 15 Gray, 445. 



Recovery of 
property of 
ward which 
lias been 
embezzled, etc. 
1726-7,12, §§2,3. 
1731-2, 14, §§2, .3. 
1737-8, 9, § 2. 
1783, 38, § 3. 
R. S. 79, § 27. 
1.8ii7, 71, § 2. 
G. S. 109, § 30. 
P. S. 139, § 42. 
U Gray, 210. 



Section 38. Upon complaint to the probate coui-t by a guardian, 1 

ward, creditor or other ))erson interested in the estate of a ward 2 

or by a person having claims thereto in expectancy as heu' or other- 3 

wise, against any one suspected of having fraudulently received, 4 

concealed, embezzled or conveyed away any of the property, real 5 

or personal, of the ^vard, the court may cite and examine such su.s- (5 

pected person, although he is the guardian, in the manner and 7 

subject to the penalties provided relative to jtersons su.spectcd of 8 

fraudulently receiving, concealing or embezzling the estate of a de- !» 

ceased person. ' 10 



Provisions of 
this chapter 
not to prevent 
appointment 
of f^uardian 
ad litem or 
next friend. 
R. S. 79, § 8. 
G. S. 109, § 7. 
P. S. 139, § 43. 
1896, 4.16, § 3. 
8 Cush. 507. 



Section 30. The provisions of this chapter shall not affect the 
power of a court or trial justice to ap])oint a guardian to defend 
the interests of a minor impleaded in such court or before such 
trial justice, or interested in a suit or matter there pending, nor 
the }Knver of such court or justice to appoint or allow a person, as 
next friend for a minor, to commence, prosecute or defend a suit 

in his behalf. m Mass. 265. 11K Mass. 377. 



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3 
4 
5 
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sons. 

1898, 527, § I. 

1901, 125. 



CONSEKVATORS of the PROPERTY OF AGED PERSONS. 

o"thepTO^e?ty SECTION 40. If a person by reason of advanced age or mental 
of aged per. weakness is unable to properly care for hi.s property the i)rol>ate 
com-t of the county in which he resides may, upon his petition or 
of one or more of his friends, appoint a conservator of his property. 
Upon the filing of such petition, the court shall appoint a time and 
place for a hearing, and shall cause at least fourteen days' notice 
thereof to be given to the person for whom a conservator is to be 
appointed if he is not the petitioner. If at the hearing it appears 
that such person is incajiable of projierly caring for his propert}^ a 
conservator shall be appointed who shall have the charge and man- 
agement of such property subject to the direction of the court. 
Such conservator may be discharged by the probate court upon tlic 



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C'lIAP. 1-16.] SALES, ETC., BY EXECUTOHS, ETC. 131^ 

13 application of the ward, or otherwi.se, when it appears that the con- 

14 scrvator.ship is no longer necessary. 

1 Sectiox 41. Such conservator shall give such bond as is re- Bon.iofion- 

2 quu'cd of guardians of insane persons, and all jjrovisions of law ml'^r^i:^'^ 2. 

3 relative to the management, sale or mortgage of the property of 

4 insane persons shall apply to such conservator. 



AGENTS OF XON-KESIDENT GUARDIANS AND CONSERVATORS. 

1 Section 42. The jn'ovisions of sections eight, nine and ten of ,f,*-;f','.'JiX.„t 

2 chapter one hundred and thirty-nine shall apply to non-resident Ku:ii'ii->n or 

'-. - *^ ri J (conservator. 

3 guardians and conservators. 1893, 11s. issa, 4w. 



CHAPTEE 146. 

OF SALES, MORTGAGES AND LEASES OF REAL PROPERTY BY EXECU- 
TORS, ADMINISTRATORS AND GUARDIANS. 

Sections 1-18. — Sales. 

Sections 19-2-4. — Sales by Guardian for Maintenance or Investment. 

Section 25. — Sales by Guardian of Xon-Resident Ward. 

Sections 26-28 . — Mortgages . 

Section 29. — Leases. 

Sections 30-33. — By Foreign Executors, etc. ' 

SALES. 

1 Section 1 . If the personal propertj^ of a deceased person is in- saie of real 

2 sufficient to pay his debts and legacies with the charges of admin- {lay'deiAs'.'eu:. 

3 istration, his executor or administrator shall, for the purpose of i™; 3"; 1 1.' 

4 making such payment, sell his real property in the manner herein- ^'^ 'm'sVI' ii- 

5 after provided, and the proceeds of such sale shall be a.ssets in the ^'I^V'si- V 
(3 hands of the executor or administrator in like manner as if the}' had 102, .§§1! 19.'"' 
7 originally been part of the j)er.sonal projierty of the decea.sed. "' ' 

18 Pick. i.S.!. 3 Gray, 205. 105 Mass. 33. 125 Mass. 363. 

6 Cusli. 4'J3. 4 Allen, 359. 12-2 Mass. 2S2. 140 Jlass. 351. 

1 Section 2. The real property so liable to be sold shall include Real iiroiKity 

2 all land of the deceased, all rights of entry and of action and all soiti.'^ *" ''"^ 

3 other rights and interests in land, which by law Mould descend to r.°s. n,| n. 

4 his heirs or which would have been liable to attachment or execution H^f m'u'^' 

5 bv a creditor of the deceased in his lifetime : but the title i)assed by p.-.C''^'*' \,?; 

V 1 ».' 167 Moss. 20f), 

6 any such sale shall be subject to the right of dower of the wife or to 

7 the right of curtesy of the husband of the deceased, and no claim by 

8 entry or by action to land fraudulently conveyed by the deceased 

9 shall be made unless within five j'cars after the decea.se of the 
10 grantor. 

1 Section 3. Real property not devised shall be first chargealile undeTised 

2 with the payment of debts or legacies in exoneration of the real fiju'ie to be'^ 



3 i)roperty devLsed. If a difierent intention appears by the will, it r.'s' .«.,, § 



30. 



shall control. r. s. 134, §.3. cMass. uo. s pick. 47s. -Cush. lei. o. s. 92, §34. 



131G 



SALES, ETC., BY EXECUTORS, ETC. 



[ClIAP. 14(5. 



Sale of reJil 
jiroperty of 

],!<i, SS, §4. 

ism;, 1(12. 

IMX, 112, § 1. 

im>, uo, § 1. 

E. S. 71, 5 2«. 
G. S. 102, § 24. 
P. S. 140, § 1. 

isaa, 147. 



Section 4. If the ijorsonal property in the hand.s of a guardian 1 

is insufficient to pay all the debts of the ward, with the cliargcs of 2 

nmnaging his property, the guardian may be licensed to sell the 3 

ward's real property for that jjurpose or for the piu-pose of raising 4 

money with which to pay, in wliole or in part, any ineumbranee ."> 

existing on real property when the title thereto came to his ward, (i 

in like manner and upon like terms, except as hereinafter provided, 7 

as are provided for a sale of real property by an executor or admin- 8 

istrator. S' 



What court SECTION 5. A liccuse to an executor or administrator to sell the 1 

ninv ^rjini m i i » 

lioeuee to sell, i-eal propcrtv ot a deceased person or to a guardian to sell the real 2 

17KI-70, 20. property ot his ward may be granted b}' the probate com-t troni wlncli ,-} 

the letters testamentary or of administration or of guardianship 4 

1830,45; 140, §1. 5 
R. S. 71, §§2, 30; 72, §6. G. S. 102, §§ 2, 37. P. S. 134, § 4; 140, § 13. 



1783, 32, § 1. 

1801;, 102. 

1817, I'.HI, § 10. • 1 

1818, 112, §§1,3. issuea. 



Form of 
petition for 



Section 6. To obtain such license, the executor, administrator 
licensejto^seii. or guardian shall file a iietition stating the value of the personal i)roi)- 
-"^""' erty in his hands, the amount of the charges of administration or 

management, the amount of debts due from the deceased or ward, as 
nearly as they can be a.scertained, and, if a person dies testate, the 
amount of any legacies given in his will. If it is necessary to sell 
a jiart only of the real property, the A'alue, description and con- 
dition of the part M'hich it is proposed to sell may also be set forth, 
and the court may direct what specific part shall be sold. 



R. S. 71, § 3 
G. S. 102, § 3. 
P. S. 134, § .'i 
140, « 4. 
7 Met. 4,-.4. 
8Met. .'il. 
fi Cush. ,'524. 
14 Gray, .loo. 



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Whole may lie SECTION 7. If it is represented in such petition and appears to 

8oki It partial i^ ' i. j 

sale \yoiiiii ill- the coui't to bc neccssarv to sell a part ot the real property, ana 
i783,32t§2. ' that by such partial sale the residue of the property or of a specific 
182S); liit I L part or jiiece thereof would be greatly injured, the court may license 
r!'s'.7i',''§§v27. a sale of the whole of the property or of such part thereof as may 

G. S. 102, §§4, a^pppai- best. 1880, 1.W, § -2. 

p. S. 134, § 6; 140, §2. 6 Gray, 53.1. 14 Gray, ,500. 102 Mass. 262. 



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Marshalling of 
assets acconl- 
ing tu will. 
R. S. 71, § 7. 
G. S. 102, § 7. 
P. S. 134, § 8. 
B Mass. 14!). 
16 Pick. 285. 



Section 8. If a will contains a provision for the payment of 1 

debts, or which may require or induce the court to marshal the 2 

assets in a manner different from that which the law would other- 3 

wise provide, the executor shall set forth in the petition a copy of 4 

the will and the court shall marshal the assets accordingly, so far as h 

can be done consistently with the rights of the creditors. (> 



Public or pri- 
vate sale of 
laiiii. 

17.8.1, 32, §§ 1, 2 
.38, § 4. 
1806, 102. 

1817, 182, ? 1. 

1818, 112, ?1. 
18:i0, 140, « 1. 
R. S. 71, §§ 10, 
17, 26. 

G. S. 102, §§ 10, 
17, 24. 
1872, 278. 
P. S. i:)4, § 11; 
140, §5 1, 18. 

1.8.85, 2.>8. 
18.80, 137, § 1. 
18HH, 147. 
4 Cnsli. m. 



Section 9. Upon the petition of an executor or administrator 
for a license to sell the re:il propt'rfy of the deceased or of a guar- 
dian to sell the real property of his ward, the coiu-t may, if the 
lietitioner so requests, authorize him to sell such property at public 
auction and to convey to the purchaser all the estate, right, title 
and interest which the deceased had therein at the time of his death 
and which was then chargeable ^vith the jiayment of his debts or 
which the ward has at the time of the sale. If the petitioner re- 
(|uests that such proiierty may be sold by private sale and the court, 
upon a hearing, finds that an advantageous offer for the purchase 
thereof has been made to the petitioner, and that the interests of 



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11 



C'liAl'. 14(i.] SALES, ETC., BV EXECUTOKS, ETC. 1317 

12 all parties will be promoted by an acceptance of such offer, it may 2 Gray, im. 

13 authorize a conveyance by private sale in accordance with such mjuBsl^g. 

14 offer or upon other terms ; but such i)etitioner so authorized may 
l;") nevertheless sell such property by public auction in accordance with 
l(i the provisions of this chapter. 

1 Section 10. A license shall not be granted until notice of the Notice of peti- 

2 petition and of the time and place appointed for hearing the same to'sel?.'^'"*"^'' 

has been given by serving such notice personalh' on all jjersons jsi?; iao,\'io. 

4 interested in the estate at least foui'teen days before the time ^^^!; f^ , g 

5 appointed for the hearing, or by publication once in each of three ^- 1- }.^|. | s- 
ti successive weeks in such newspaper as the court orders. i8«),'i37,'§-2.' 

' ' 1 Mass. 256. 

8 Met. SI, 3m. 9 Ciisli. 223. 13 Gray, .il3. 

1 Section 11. A license to sell real property shall not be granted ^rantedoni'^ ■ 

2 to a guardian until notice, by public advertisement or otherwise atter notice. 

c ' t A 1788 ii'l § 1. 

3 as the court orders, has been given to the next of kin of the ward, ixii.-T. 

4 to all his heirs apparent or presumptive and to all persons interested limis.' 

5 in the estate. g. s. 102, §§ sn, «. p. s. 140, §§ 15, le. 72', 'I's'.^' ^^ *' "**' 

1 Section 12. A licen.se .shall not be granted to an executor or so license 

2 administrator, if any of the persons interested in the estate give bond to pay'^debts!' 

3 to him in a sum and wdth sureties approved by the court, condi- r.^s'. n'S^s.'^' 

4 tionod to j)ay, so far as the personal property of the deceased .shall p's'J.y'f'io 

5 be insufficient therefor, all legacies mentioned in the petition, all •? Alien, lis. 

~ I ' i{H) Miiss. '224. 

(> debts therein mentioned which .shall eventually be found due from 
7 the estate and the charges of administering the estate. 

1 Section 13. A licen.se to sell shall not be granted to the guar- License to 

2 dian of an insane person or spendtlii'ift who resides in this common- filsfme' "iJerson, 

3 wealth, unless seven days' notice of the petition therefor has been noti'i-" to ov'e" 

4 gi^•en to the overseers of the poor of the city or town in M'liich the f^i*;^'^,"/, •'""'• 

5 ward is an inhabitant or resides. Such notice may be served upon JSl**' "'-• ^ '• 

•' i 182b, 64. 

b any one 01 such overseers. mo, uo, § i. 

R. S. 71, §28; 72, § 9. G. S. 102, § 38. 1874,202. P. S. 140, § 14. 

1 Section 14. The executor, administrator or guardian shall give xoticeotsaie 

2 notice of the time and place of the sale by auction by causing notices i7iS!'iu,''§ 2. 

3 thereof to be posted, thu'ty days at least before the sale, in a jniblic Jiuln;^'' 

4 place in the city or town in which the land lies, and in two adjoin- JJ-'I' \*f 'A'/,, 

5 ing cities or towns, if there are so many in the county, or, if the ?5; 72, §§ 12, in. 
b court gi'anting the license so orders, b}' j)ubiishing the notice once *i- 

7 in each of three successive weeks in a newspaper. 

1877, LW, § 1. P. S. 134, § 12; 140, § 17. 

1 Section 15. An affidavit of the executor, administrator or guar- Perpetuation 

2 dian or of the person employed by him to give such notice, filed and tiie^sivfiig o" 

3 recorded with a copy of the notice in the registry of probate, or such ""^^1%^ §§ 6, 7. 

4 affidavit made by any person and tiled and recorded with such copy R.'s.n, §§i6, 

5 by permission of the court upon satisfactory evidence that the notice ^J,;^'!,!^ ^''' '■^• 
(^ Avas given as ordered, shall be admitted as evidence of the time, g. .s. ioi, §§ le, 
7 place and niamier in which the notice was given. 

1876,71,76. P. S. 134, § 13; 140, § 17. 1SS8, US, § 2 ; 380. 8 Met. 355. 



lolS SALES, ETC., BY EXECUTORS, ETC. [ChAP. 14(5. 

(tt''i°ie™'"''°* Section Ifi. If at the time appointed for such sale the executor, 1 

r's -l^'lsr' administrator or guardian considers it for the interest of all persons 2 

is,\h; tV,) is. concerned that the sale should be postponed, he ma}' adjourn it for ;-$ 

18, ii. '*' ' not more than fourteen da_ys, and notice of such adjournment shall 4 

i4(if§ 17*'^ '*' be given by a public declaration at the time and place first ap- .5 

15 Mass. 175. pointed for the sale. If the adjoiuniment is for more than one day, (i 

further notice of the sale shall be given by posting or publishing, 7 

as time and circumstances may admit. 8 

TOsseBswifot Section 17. If an e.Kccutor or administrator is licensed to sell 1 

lenu *cou*" ^^^^ which has been fraudulently conveyed by the deceased or is 2 

veyed. fraudulently held by another person for him, or land to which the ;-> 

13. ' ' ' ' deceased had a risht of entry or of action or of which he had a right 4 

13'. ' " ' to a conveyance, he may, within one year after such license, sell ."> 

.rcu'B?i!*5-/4.'"' the land without first obtaining possession thereof by entry or t! 

s^Aiien/sgi"' action, or he may without a formal entry bring an action to obtain 7 

losMasI'ls^' possession by virtue of such license, demanding the land as executor 8 

132 Mass. 462. or administrator, and may sell the same within one year after pos- !• 

147 Mass. 4al. ..,,.' •' -' i , . 

.session is obtained. HI 

mi'nistrator for SECTION 18. The probatc court may, upon the petition of an ad- 1 

i89o"266''™' iiiinifstrator, with the con.sentof all parties interested or after notice, 2 

license him to sell the real property or any undivided interest .'5 

therein belonging to the estiite of the intestate, unless the appraisal 4 

shows that it exceeds fifteen hundred dollars in value, in such "> 

manner and upon such notice as the court orders, for the purpose (> 

of distribution ; and the net proceeds of such .sale, after deducting 7 

the expen.ses thereof and such amount as may be required for the 8 

payment of debts in consequence of a deficiency in the personal !l 

property, shall, after two years from the time of the filing of the 10 

administrator's bond, be distributed to the persons who would have 11 

been entitled to .said real property and in the proportions to which 12 

they would have been entitled had it not been sold. IH 

SALES BY GUARDIAN FOR MAINTENANCE OR INVESTMENT. 

rtianl;)"'"^' Section 19. If the income of the estate of a ward is insufficient 1 

maiuU'Diince to maintain him and his family or if it appears that it would be for 2 

or investment. i.i ,/. t 

iHi«-t,is,§§3,4. his benefit that his real propertv or anv part thereoi or any staiulinii- 6 

178,S,32, §5; 38, . J ,, 1 Ti , "l 1 1 il l" 1 1 ■ I 

§4. or growing wood thereon sliould be sold and tlie proceeds placctl on 4 

i8i.s| ii2i§ 1. interest or invested in a jn-oductive security, his guardian may st'll o 

itfi',u\. such real property or wood upon obtaining a license therefor and (? 

ifs^^w.'nvii P^°*^^'-"*-^^"o ^'^ hereinafter provided. If standing or growing wood 7 

i8B-^'-''ii^' ^ "''■ i'' ■"*" sold, the guardian may grant to the purchaser the privilege of 8 

p. s. 140, § 3. entering upon the land and cutting and cariying away such wood !• 

within such time as the guardian may allow. 1" 



petYtLn'and SECTION 20. To obtaiii such liccnsc, the guardian shall file a 1 

^ s*^*!;^?-- l)ctition setting forth the condition of the estate and the facts and 2 

G. s! 102, § 27. cu'cumstances on which the petition is founded. If after an ex- H 

"■ '' ■ amination, on the oath of the petitioner or otherwise, the court 4 

finds that it would be for the benefit of the ward that the sale peti- •") 

tioned for .should be made, it may grant a license therefor, specify- 'i 

ing therein whether the sale is to be made for the niaintenance of 7 



Chap. 146.] sales, etc., by executors, etc. 1319 

8 the ward and his family', or in order that the proceeds ma}^ be 

9 placed on interest or invested as aforesaid. 

1 Section 21. If the sale is made for the maintenance of the ward D'spos.^i of 

urot't^fiifl or 

2 and his family, the guardian shall apph' the proceeds, so far as sale ii made for 

3 necessarj^ to that pm'pose, and shall place the residue on interest R.'s. 72, §3. " 

4 or invest it according to his best judgment until the capital is f.' s.' uo,' § s!*" 

5 wanted for such maintenance ; in such case, the capital may be 
t) used for that purpose as if it had been personal property. 

1 Section 22. If the property is sold in order to place on interest —if made for 

itivcstnipiit 

2 or invest the proceeds, the guardian shall make the investment ac- r. s. 7-2, §4. 

3 cording to his best judgment, or in pui'suance of any order of the p.' s.' uo,' § e. " 

4 court relative thereto. 8 Alien, 125. 

1 Section 23. A sale of the property of a minor for the purpose Property of 

2 of investment ma}' be made upon the petition of the guardian or soid°b.v'"fer6'ou 

3 any friend of the minor, and the court may authorize the guardian guardian" "'* 

4 or another person to sell and convey the property. The provisions J|^| 'i^JI!; ^31 

5 of this chapter relative to licenses and sales upon the petitions of p. s. un,' § 7. ' 

6 guardians shall, except as provided in the following section, apply 

7 to licenses and sales under the provisions of this section. 

1 Section 24. If the sale is made by a person other than the Disposal of 

2 guardian, the proceeds shall be forthwith paid to the guardian OTretniuSh 

3 upon his giving to the judge of probate a bond with sufficient Jlfs,', 90, §2. 

4 sureties conditioned to account for such in-oceeds. If there is no Jf""-^'*' .,. 

5 guardian, the proceeds shall be placed on interest or invested hy p. s. uo, §8. 
(5 the person authorized to sell the property, in like manner as is 

7 required of a guardian. 



SALES BY GUARDIAN OF NON-RESIDENT WARD. 

1 Section 25. A guardian appointed within the commonwealth, '^™"erfvo/ 

2 whose ward removes from or resides out of this commonwealth, ma^' "on residtnt 

oiii.1 1 /»!• 11 (• 1 1^ Avanl to non- 

o sell the real property 01 his ward, and transfer and pay over the resident guar- 
4 whole or any part of the j^roceeds and the whole or any part of the isfl'fn.' 
ward's personal propertv' to a guardian, trustee, or committee ap- iliif.'m^"^' 



1(<62, 139. 
1866, 122, § 1. 



(3 pointed by competent authority in the state or country in which the 

7 ward resides, upon such terms and in such manner as the probate J^y ji^le' y^^ 

8 court b}' which he was appointed may, after notice to all parties 

9 interested, decree upon petition filed therefor. 



mortgages. 

1 Section 26. The probate court may, upon petition and after Executor or 

2 notice to all persons interested, if upon a hearing it appears to be nia^'moitgage, 

3 for the benefit of the estate, authorize an executor, administrator with l^g^"2i2, §§ 1,2. 

4 the will annexed, or administrator to mortgage any of the real jg7e'7;j'§i 

5 property for the purpose of paying debts, legacies or charges of fg^-j^^'^^^- 

6 administration or for the purpose of paying an existing lien or 

7 mortgage on the estate of the deceased ; or it may authorize such 

8 executor or administrator to make an agreement for the extension 

9 or renewal of such existing mortgage. 



1S71, -iS-i, 
l(t7S, 2»0, 


§1. 
§1- 


Kcirm of 
iH'titlou and 


aecree. 
18M, i\i, 
1871, ■JS'i, 
1876, 79, ! 
P. .s. 134 
140, § 12. 


, § 20; 



1320 SALES, ETC., BY EXECUTORS, ETC. [ChAI'. Uti. 

im')"rr-i"'e "'"'^ SECTION 27. Tlic probatc court may, upon petition of a guardian, 1 

iM4, iii-2, § 3. if after notice and a licaring, it apix'ars to be necessary or expe- 2 

dient, authorize him to mortgage an)' real property of his ward. 3 

p. S. 140, § 11. 

Section 28. The petition under the provisions of the two pre- 1 

ceding sections sliall set forth a description of the estate to be mort- 2 

gaged, the amount of money necessary to be raised and the purposes 3 

tor wliich sucli mone}' is required ; and the decree of the court upon 4 

such petition shall fix the amount for which the mortgage may be 5 

given and the rate of interest which may be paid thereon, and may (> 

order the whole or any part of the money secured by the mortgage 7 

to be paid from time to time out of the income of the property 8 

mortgaged. 9 

LEASES. 

^ro'ert'oT' SECTION 29. The probate court may, upon the petition of a 1 

ward. guardian setting forth a description of the real property of his ward, 2 

the reason why it is necessary or expedient to give a written lease 3 

thereof and the length of the term, if, after notice and a hearing it 4 

appears to be necessary or expedient, authorize such guardian to 5 

give a wi'itten lease of the real property of his ward, and the decree (i 

of the court shall fix the term and the amount for which it may be 7 

leased. 8 

BY FOREIGN EXECUTORS, ETC. 

Foreign exec- SECTION 30. An cxccutor or administrator appointed in another 1 

utor, etc., may '^'- 

iieiiceiiBedto state or country upon the estate of a person who was not at the 2 

[iroperty. tiiuc of liis death a resident of this commonwealth and upon whose 3 

u. s. 7V,'§ 21. estate administration has not been granted in this commonwealth, 4 

p.' s.' m,' 1 16.' duh' qualified and acting, may file an authenticated cop}- of the r> 

1901,315. record of his appointment and of his bond in the probate court for l> 

any county in which there is real property of the deceased ; and 7 

such executor or administrator, after such notice to the treasurer S 

and receiver general, creditors and all persons interested as the !i 

court may order, ma}' be licensed to sell said real property or an un- 10 

divided interest in real property in such manner and upon such notice 1 1 

as the court orders. But such license siiall not be granted unless 12 

the com't finds that the whole of the real property of the deceased 13 

in this conunonwealth docs not exceed fifteen hundred dollars in 14 

value, that six months have expired since the death of the deceased, l^ 

that the executor or administrator has given a sufficient bond and K? 

will be liable to account for the j)roceeds of the .sale in the state or 17 

country in whicii he was ai)pointed, and that no creditor or other IS 

person interested will be jn-ejudiced thereby. The net proceeds of lit 

such sale, after deducting the expenses thereof and after the payment 20 

and .satisfaction of all claims against said estate in this common- 21 

wealth, may be taken tiy said foreign executor or administrator out 22 

of this comnionwealth to be accounted for in the court in which he 23 

received his appointment. 24 

di^m'nmri'>r' SECTION 31. If a minor, insane person or spendthrift, who 1 

licpnscrtt.i sell resides out of this common weultli, is under guardianship in the state 2 

of ward. or country in which he resides and has no guardian appointed in this 3 



Chap. 147.] trusts. 1321 

4 conuiiomvealth, the foreign guardian may file an authenticated copy isn, is2, §i. 

,") of his aj)i)ointmcnt in the probate court for any county in which 72',si4.'^'' 

6 there is real property of the ward ; after which upon petition he p; f; uo,' | hP' 

7 may be licensed to sell, mortgage or lease the real property of the 

8 ward in any county, for the purposes, in the manner and upon the 
!• terms provided in this chapter for a guardian appointed in this 

10 commonwealth, except as hereinafter provided. 

1 Section 32. If tlie court finds tliat such foreign guardian has Bond in certain 

2 given bond with sufficient siu-ety or sureties, in the state or coun- i?rf,^i82, § 2. 

3 try in which he was appointed, to account for the proceeds of such 33;* -2^ §17.^^' 

4 sale, mortgage or lease, and if an authenticated copy of such bond «• s- 102. §§ 34- 
.") is filed in said court, no further bond shall be required ; otherwise, be- p- s-i*o, § 10. 

() fore such license is granted, he shall give bond payable to the judge 

7 of said coivrt and his successors with sufficient surety or sm-eties and 

8 with condition to account for and dispose of said proceeds according 

9 to law. 

1 Section 33. A foreign executor, administrator or guardian who Notice of sale, 

2 has been licensed to sell real jjroperty shall, except as otherwise 1817, 182. 

3 provided, give notice of the time and place of sale, and otherwise §'. 1. 102^/23. 

4 proceed as is provided for an executor, administrator or guardian J?'^- *]|j |'^jg 

5 appointed in this commonwealth : and the evidence of such notice i*i' •*!•'>• § ^■ 

6 may be perpetuated in the same manner. 



CHAPTER 147. 

OF TRUSTS. 

Sections 1-3. — Creation of Trusts. • 

Sections 4-13.- — Appointment and Removal of Trustees. 
Section 14. — Agents of Non-resident Trustees. 

Sections 15-17. — Sale of Trust Estate. 
Sections 18, 19. — Mortgage of Trust Estate. 
Section 20. — Distribution of Trust I'^state. 

Sections 21-23. — Trusts for tlie Benefit of Creditors. 

CREATION OF TRUSTS. 

1 Section 1. No ti-ust concerning land, except such as may arise creation ot 

2 or result by implication of law, shall be created or declared unless ^"^1™°"'"^°" 

3 b}' an instrument in writing signed by the party or by the attorney ^^.c-ir. ii.c.s, 

4 of the part}' creating or declaring the trust. itss'Iv^s'I"' 

E. S. 59, § 30. 10 Cush. 4.i8. lOii Mass. 581. 118 Mass. 108. 

G. S. 100, § 19. 10 Allen, W. 110 Mass. 392. 137 Mass. 184. 

P. S. 141, §1. 11 Allen, l.!), 542. 112 Mass. 171. 158 Mass. 146. 

12 Pick. 240. 103 Mass. 484. 113 Mass. 372. 160 Mass. 195, 538. 

1 Section 2. If a trust concerning land is created or declared by Record to be 

2 such instrument, the recording of the instrument in the registry of ^.^s.\v!^^2.^^' 

3 deeds for the county or district in which the land lies shall be p;|;i™'||.'' 

4 equivalent to actual notice to every person who claims under a 

5 convevance, attachment or execution thereafter made or levied. 



1322 



TRUSTS. 



[Chap. 147. 



I'urcliasers, 
et<'., witlioul 
iintice. 
R. S. .Ill, § 31. 
G. S. IIHI, § 20. 
P. .S. 141, I 8. 
Ill Maes. 370. 
168 Mass. US. 
173 Mass. 37S. 



Section 3. No tru.st concerning land, whether implied by law 1 

or created or declared by the parties, shall defeat the title of a pur- 2 

chaser for a valuable consideration and M'ithout notice of the trust, 3 

nor prevent a creditor who has no notice of the trust from attaching 4 

the land or fi'om taking it on execution in like manner as if no .') 

such trust existed. (i 



Apijointment 
of testamen- 
tJiry trustee. 
lain, l.W. 
1885, 307, § 1. 
G. S. 100, § 7. 
P. S. 141, §4. 



APPOINTMENT AND REMOVAL OF TRUSTEES. 

Section 4. If a testator has omitted in his mil to appoint a 1 

trustee in this commonwealth and such appointment is necessaiy to 2 

carry into eflect the provisions of the will, the probate court may, 3 

after notice to all persons interested, appoint a trustee who shall 4 

have the same powers, rights and duties and the same title to the 5 

estate as if he had been originally appointed by the testator. (5 



Appointment 
to fill vacancy. 
1817, liW, §§ 40, 
41. 



R. S. «it, §§ 7, 
1843, 10. 
1852, 212. 
G. S. 100, 5 9. 
1877, 31. 
P. S. 141, § 5. 
4 Met. 330. 
12 Cush. 41. 
1 Gray, 220. 



Section 5. If a trustee under a WTitten instrument declines, 1 

resigns, dies or is removed before the objects of the ti'ust are ac- 2 

complished and such instrument makes no adequate provision for 3 

supplying the vacancy, the supreme judicial court, the superior 4 

court or the probate court shall, after notice to all persons in- 5 

terested, appoint a new trustee to act solely or jointly with the 6 

others as the case may be. 102 Mass. ii. 7 



115 Mass. 424. 
117 Mass. 2111. 



120 Mass. 412. 

121 Mass. 568. 



128 Mass. 398. 

129 Mass. 339, 513. 



148 Mass. 431. 

149 Mass. 1)2. 



Trust estate to 

vest in new 

trustee on liis 

giving bond, 

eti^. 

1817, 190, § 40. 

R. S. 09, § 8. 

1843, 19. 

1852, 212. 

G. S. 100, §§ 9, 

10. 

1878. 2.54, 5 1. 

P. S. 141, §6. 

5 Gray, 336. 

6 Allen, .540. 
115 Mass. 424. 
132 Mass. 405. 
134 Mass. 426. 



Section 6. A new trustee appointed under the provisions of the 1 

preceding section, or appointed in the place of a former trustee in 2 

conformity with a written instrument creating a trust, shall, upon 3 

giving such bond as nia}^ be required, have the same powers, rights 4 

and duties and the .same title to the estate, whether as a sole or a 5 

joint trustee, as if he had been originally appointed ; and the court 6 

may order any conveyances to be made by the former trustee or his 7 

representatives or by the other remaining trustees which it may find 8 

proper or convenient to vest the trust estate in the new trustee 

either solely or jointly with the others. iso Mass. 484. 10 



Return uC in- 
ventory may 
be iliHi'ienseil 
with, wlien, 
1817, 190, (j 41. 
R. S. 69, 5 9. 
G. S. 1110, « 11. 
p. S. 141, § 14. 



Section 7. If a trustee is appointed by the probate court as 
the successor of a prior trustee, the court may dispense with the 
making and return of an inventory if it appears to be unnecessary, 
and in such case the condition of the bond shall be altered accord- 



ingly, 



1 
2 
3 
4 
5 



raquhTd'""^ Section 8. If an inventory is required to be returned by a 1 

estate to be trustcc, tile cstatc and cifects shall he appraised bv three suitable 2 

jippraiseil. • i i 

R. .s. 69, § 10. j)ersons, who sliall be appointed and sworn as is reijuired by law 3 

p.' s.' 141,' §15! relative to the inventory of the estate of a deceased person. 4 



I'. S. 141, § • 



trusuiv^tot'ikc Section !). If a trustee Mho derives his appointment or author- 
lettiTs of trust, itvfroin a coiu't which has no jurisdiction within this coininon wealth 
1871, 327, §1. holds land in this commonwealth in trust for persons resident here 
he shall, upon petition to the probate court in tlie county in which 
the land lies, and after notice, be reciuired to take out letters of 
tiai.st irom .said court; and upon his neglect or refu.sal so to do, the 
coui't shall declare such trust vacant, and shall appoint a new 



1 
2 

3 
4 

5 
(> 
7 



Chap. 147.] trusts. 1323 

8 trustee, in whom the trust estate shall vest in like manner as if he 

;i had been originally api)ointed or authorized by said court. 

1 Section 10. The notice to the trustee required by the provisions Non-reeident 

2 of the preceding section may be given by serving on him a copy of '™tenfof trust, 

3 the petition, and of the citation of the court issued thereon, four- Ish^mt, § 2. 

4 teen days at least before the time fixed for the return of such cita- ^'- ®- "'• § *• 

5 tion, or by such other notice as the court may order. 

1 Section 11. The supreme judicial court, the superior court or Removal of 

2 the probate coui't may, upon petition of a party beneficially inter- Sit'm, §41. 

3 ested in the trust and after notice to the trustee and all persons in- J^f;iji';^"' 

4 terested, remove a trustee under a written instrument if it finds that JPi-'-.'l- ,„ 

5 such removal is for the interests of the beneficiaries of the trust or i'- ■'*; \*\;.§ ^■ 
G if the trustee has become insane or otherwise incapable of perform- iioMass"2ig. 
7 ing his ti'ust or is unsuitable therefor. 121 Mass. ses. usMass. 4!». us Mass! 215! 

1 Section 12. A trustee ma}^ upon his own request resign his ResiKnation of 

2 trust, if the court which is authorized to appoint him finds it proper isn'^, § 39. 

3 to allow such resignation. k. s. b9, §5. 

G. S. 100, § 5. 1S74, 352, § 1. P. S. 141, § 10. 6 Gray, 428. 

1 Section 13. A person who succeeds to a trust as executor or Executor, etc., 

2 administrator of a former trustee shall not be requu'ed to accept truste™'^'^ 

3 such trust. isn, lao, § 39. b. s. 69, § u. g. s. 100, § e. p. s. 141, § 11. 



agents of non-resident trustees. 

1 Section 14. The provisions of sections eight, nine and ten of n^nresment 

2 chapter one hundred and thii'ty-nine shall ap{)Iy to non-resident '™*'^'^.\ 

3 trustees, except that said Avriting shall be filed in the clerk's office isgsliis! 

4 of the court M'hich appointed him if he is appointed b}' a court 

5 other than the probate court. 



SALE OF TRUST ESTATE. 

1 Section 15. If the sale and conveyance, transfer or exchange order for sale 

2 of an}- real or personal property held in trust or the partition of an}' fu trustfilow 

3 such real property held in common and undivided appears to be i|2o!'m,'§3. 

4 necessary or exjiedient, the supreme judicial court, the superior court f^f.f^.; ^ "■ 

5 or ^the probate court may, upon petition of a trustee or other person J5. s. 100, §§ 14, 
li interested, after notice and other proceedings as hereinafter required, im, les, § 1. 

7 order such sale and conveyance, transfer, exchange or partition to p. s. i4i, § 20. 

H be made, and the investment, reinvestment and application of the u AOra', 24'.' 

9 proceeds of such sale in such manner as will best effect the objects I09 Mais', l' 

10 of the trust. 119 Mass. 1, 52. 125 Mass. 138. 168 Mass. 576. 



1 Section 1(3. If the court, upon proceedings under the provi- o^'e'tMo^nfor 

2 sions of the preceding section , finds that the estate which is the sub- smli eaie. 



3 jeet of the jietition maybe held in trust for, or that a remainder ism! ws, § 2. 

4 or contingent interest therein may be limited over to, persons not miviass. 10b.' 

5 ascertained or not in being, notice shall be given in such manner 

6 as the court may order to all persons who are or may become in- 



1324 



TRUSTS. 



[Chap. 147. 



terested in such estate, and to all persons whose issue, not tiien 7 

in being, nia}' become so interested ; and the court shall of its own S 

motion in every such case appoint a suitable person to appear and Jl 

act therein as the next friend of all persons not ascertained or not 10 

in being, who are or may become interested in such estat«, and 11 

the provisions of sections twenty-three and twenty-four of chapter 12 

one hundred and forty-five which are not inconsistent herewith 18 

.shall apply to such appointment. A conveyance or transfer made 14 

after such notice and j)roceeding shall be conclusive upon all per- 1.^ 

sons for whom such guardian ad litem or next friend was appointed. 1(5 



in ctTtain 
(■ayes. 

G. S. 100, § 15. 
1861), 3.S1. 
P. S. 141, § 22. 
11« iM.H8S. 377. 
163 Muss. 503. 



ki'^?r''us?^ '"'^''^ Section 17. If a person who is seised or possessed of real or 
iiiiiiors, etc., personal property or of an interest therein upon a trust, express or 
.iiul conveyed implied, IS Under the age ot twentA'-one years, insane, out ot the 
commonwealth or not amenable to the process of any coiu't therein 
which has equity powers, and in the oj^inion of the sujircme judicial 
com-t, the superior coiu"t or the jirobate court it is fit that a sale 
should be made of such propert}' or of an interest therein , or that a 
conveyance or tran.sfer should be made thereof in order to carry 
into effect the objects oi the trust, the court may order such sale, 
conveyance or transfer to be made and may appoint a suitable 
person in the place of such trustee to sell, convey or transfer the 
same in such manner as it may I'equire. If a person so seised or 12 
possessed of an estate or entitled thereto upon a ti'ust is within the IH 
jurisdiction of the court, he or his guardian may be ordered to make 14 
such conveyances as the court orders. 15 



1 
2 

3 

4 
.") 
() 
7 
8 
•) 

10 

11 



Trustees may 
be autliorized 
to mortgage, 

IWi'J, 451, ? 1. 
1872, 370, § 1. 
187G, 199, § I. 
P. S. 141, § 23. 
18S9, 66. 



Korni of peti. 
tion and 
decree. 

1.S72, 370, §§1,2. 
1S7(;, 1',)<.I, § 2. 
P. S. 141, § 24. 



MORTGAGE OF TRUST ESTATE. 

Section 18. The court which has jurisdiction of a trust created 
by a ■\\Titten instrument may, upon petition and after notice to all 
persons interested, if upon a hearing it a))pears to be for the benefit 
of the trust estate, authorize trustees to mortgage any real property 
held by them in tru.st for the purpose of paying assessments upon 
their trust estate for betterments or for the expense of repairs and 
improvements on such estate made necessaiy by such betterments or 
by the la^^'ful taking of such estate or of a part thereof by a city or 
town ; for the purjiose of paying the expense of erecting, altering, 
completing, repairing or imjiroving a building on such estate ; or for 
the pm'pose of paying the expense of other improvements of a per- 
manent nature made or to be made upon such estate ; or for the 
purpose of paying an existing lien or mortgage on such trust estate 
or on a part thereof; or it may authorize such trustees to make an 
agreement for the extension or renewal of such existing mortgage. 

Section Ifl. Such jietition shall set forth a description of the 
estate to be mortgaged, the amount of money necessary to be 
raised and the purposes for which such money is required, and, 
if made to a probate court, shall be made in the county in which 
the trustees were appointed, if the trust was created by will, or, 
if it was not so created, then in the county in which the estate or a 
])art of the estate which is the subject of the jM-tition is situated. 
The decree of the court upon such petition shall fix the amount for 
which the mortgage may be given and the rate of interest which may 



1 
2 

:^ 

4 

r> 
I) 

7 

8 

!l 

10 

11 

12 

i;! 

14 

1.^) 
1 

2 

;i 

4 

,") 

1) 
7 

8 
<) 



Chap. 147.] trusts. 1325 

10 be jiiiid thereon, and may order the interest and the whf)le or any 

1 1 part of the money .secured by the mortgage to be paid from time to 

12 time out of the income of the property mortgaged. 

DISTRIRITTION OF TRUST ESTATE. 

1 Section 20. If, b}' the i)rovisions of a written instrument, a trust nietribution of 

2 estate is to be distributed in whole or in part, the probate court i^as, aa, § i. 

3 may, upon the petition of a person interested, after sucli notice 

4 as it may direct, order the tnistee to convert the said estate, both 

5 real and personal, or either, into cash and to disti-ibute it among 

6 such persons as, according to such instrument, are entitled thereto. 

TRUSTS FOR THE BENEFIT OF CREDITORS. 

1 Section 21. If a debtor wlio resides in this commonwealth has Protection of 

2 made an assignment to a trustee for the benefit of his creditors, the isst'sm', § i. 

3 acts of the trustee thereunder in protecting and caring for tlie prop- 

4 erty and converting it into money, if done in good faith and with 
f) reasonable judgment and discretion, shall, subject to tlie provisions 
(5 of the following section, be valid notwithstanding subsequent pro- 

7 ceedings in insolvency by or against the debtor, and the assignee in 

8 insolvency shall, if such assignment is avoided by him, recover the 

9 net amount of money received for, or the price of, the property 
10 sold and converted by such trustee instead of the property itself. 

1 Section 22. The provisions of the preceding section shall not condwons 

2 apply to the acts of such trustee unless the assiannient conveys all iw, 346, §§ i, 2. 

3 the property and estate of the debtor wherever situated, either 

4 within or without this commonwealth, not exempt from attachment 

5 by the laws of this connnon wealth, and provides for its distribution 

6 in substantial conformity with the provisions of chapter one hun- 

7 dred and sixtj'-tlu'ee ; nor unless a majority in number and value 

8 of the creditors, whose claims are neither secured nor preferred by 

9 said chapter, have assented in ^^I'lting to the assignment : nor un- 

10 less the trustee, before proceeding to act and immediatel}^ on the 

11 acceptance of his trust, gives notice in writing by mail or otherwise 

12 to all known creditors of the debtor of such assignment and his 

13 acceptance thereof, and deposits with the clerk of the city or town 

14 in which the principal business of the debtor is carried on a copy 
l.T of such assignment, which shall be filed and indexed by said clerk 

I <i upon receiving a fee of one dollar therefor. 

1 Section 23. If, upon petition or otherwise, the probate court of™,'",'g*j°° 

2 of the count}' in which letters testamentary or of administration buneHtoi 

3 have been granted on the estate of a person deceased, finds that such nted I'y per-*^ 

4 person in his lifetime riiade a conveyance of real property in this iJifl"! -jSTriuA 

5 commonwealth in trust for the benefit of his creditors, and the Ji^; ^' '""• *^^ "' 

6 ti'ustce certifies that all the debts seciu-ed by such convej'ance and .f^.- ®- "^' ^^ '•^■''> 

7 due to persons other than himself have been jiaid or otherwise 

8 adjusted to the satisfaction of the creditors so tar as known and 

9 that he desires to settle his trust account and to terminate the trust, 
10 the court shall appoint a time and place for hearing all persons 

II interested in such trust, of which notice shall be given by adver- 



1326 PROVISIONS AS TO CERTAIN SALES, ETC. [ChAP. 148. 

tiseiiient in a newspaper published in the county, or otherwise, 12 

as the court orders. Upon such hearing the court may terminate 13 

the trust so far as the creditors and persons claiming under them 14 

are concerned, may discharge such real property from the trust, 15 

may settle the trust account, and make any fiu'ther order as to the 16 

disposition, distribution or partition of the remaining trust estate, 17 

not inconsistent with the provisions of the original instrument 18 

creating the trust. The provisions of this section shall not apply 15) 

to an}' case in which the instrument creating the trust does not 20 

bear date moi'e than six years previous to the time appointed for 21 

the hearing ; nor shall they affect the operation of the insolvent 22 

laws of this commonwealth. 23 



CHAPTEE 148. 

PROVISIONS RELATIVE TO SALES, MORTGAGES, ETC., BY EXECUTORS, 

ETC. 

Sections 1-12. — General Provisions. 
Sections 13-18. — Compromises, etc. 
Sections 19-26. — Irregular and Invalid Sales, etc., 
by Executors, etc. 

GENERAL PROVISIONS. 

to^TOuvevreai' SECTION 1. If a pcrsoH who has entered into a wi-itten agree- 1 

iiroiiiriy, lucnt for thc couvevance of real proiiertv dies or is put under <;uar- 2 

wiiK'li Wstfttor, ...". 11* 1 o 

etc., imd dianship before making such conveyance, the probate court shall 3 

agree cou- j^^^,^ iurisdictioH concurrent with the supreme judicial court and 4 

i783,'3i, § 4. ' the superior court to enforce a specific performance of such agree- /) 

is'J,' 374.^^ '^'^' iiicnt, and, upon a petition therefor by any person interested in (i 

iT-sin 5§s 6 ^^^^ conveyance, shall, after notice, if upon the liearing it apjiears 7 

P-J "'-.SI- that the deceased, were he living or the ward, were he not under 8 

8 lir'ay, M2. guai'diauship, M'ould be required to make the conveyance, order the 5' 

US) MiiBs! 4S-]; executor or administi-ator or the guardian to make the same, which 10 

convej'ance shall have like force and effect as if made by the person 11 

who agreed to convey. 12 

propert^dc. SECTION 2. If, uiidcr the provisions of a \\ill, tiie sale of real 1 

ronseii t <i'i''"" pi'operty by a trustee or executor is dependent upon the consent of 2 

adfceased a person who has deceased, the ])rol)ate court having jurisdiction of 3 

isfi^M. the settlement of the estate may, in its discretion and if ail parties 4 

.s. ui, §j. interested assent, authorize the sale and conveyance of such real 5 

l)roperty in like manner as if no such consent had been re(juired. () 

foreSexec SECTION 3. An cxecutor, administrator, guardian or trustee duly 1 

utnr, eu-., to appointed in another state or in a foreign countrvand dulv qualitied 2 

dispose of per. and acting, who may be entitled to an}' personal ju'operty, situated 3 

S',' iio"'"^ ■' in tliis commonwealth, may file an authenticated co]iy of his ap- 4 

1". s. 142, §3. poiiitment in the jirobate court for an}- county in which there is 5 

real i)ropert}' of his trust or, if there is no sucli real jiroperty, in (5 

any county in wliich there is personal property of his trust, and 7 

may upon petition to said court, after such notice to the treasurer 8 



ClL^P. 14:8.] PROVISIONS AS TO CERTAIN SALES, ETC. 1327 

9 and receiver general, creditors and all pei'sons interested as the 

10 court may order, be licensed to receive or to sell hy public or 

11 private sale, upon such terms and to such person or persons as 

12 he shall think fit, or otherwise to dispose of, and to ti'ansfer and 

13 conve}^ shares in a corporation or other personal property, if the 
11 com't finds that there is no executor, administrator, guardian or 
1.5 trustee appointed in this commonwealth who is authorized so to re- 
Ui ceivc and dispose of such shares or estate, and that such foreign ex- 

17 ecutor, administrator, guardian or trustee will be liable, upon and 

18 after such receipt or sale, to account for such shares or estate, or 

19 for the proceeds thereof, in the state or country in which he was 

20 appointed ; and that no person resident in this connnonwealth and 

21 interested as a creditor or otherwise objects to the gi-anting of such 

22 license or appears to be prejudiced thereby ; Init no such license 

23 shall be granted to a foreign executor or administrator until the ex- 

24 pmition of six months after the death of his testator or intestate. 

1 Section 4. An executor, administrator, guardian or trustee vesteci or con. 

2 ma}', after the notice required upon a petition by him for a license terfst"! 'how 

3 to sell real property, be authorized by the probate court to release exw^SV^'eu-. 

4 and discharge, upon such terms and conditions as may appear to be ^s '^yV |"i'] 

5 proper, a vested, contingent or j)ossible right or interest, if such }? *'^,' '^,4?,' , , 

6 release or discharge appears to be for the benefit of the persons or 

7 estates which he represents. 

1 Section 5. An executor, administrator, guardian or trustee saie or reieaBe 

2 may be authorized by the jirobate court, after notice to all persons renie4ries. 

3 interested or upon their assent thereto, to sell and convey or release, p^'s.ua, §6. 

4 upon such terms and in such manner as said courts may ox"der, lots 

5 in cemeteries which belong to the persons or estates by them 

6 represented. 

1 Section (3. A mortgage which is given by an executor, ad- ^°oy^J,°J^.^^^^ 

2 ministrator, guardian or trustee, by license of court, may contain a "my i'L>iven 

3 power of sale, and every such mortgage shall state that it is made etc., by license 

4 under license of court and the date of such license. i864, 21.!,' § 4. 

1S89, 219, § 2; 451, § 2. 1872, 370, § 3. 1,«76, 79, §§ 3, 4; P. S. 142, § 6. 
1871, 282, I 3. 1873, 280, § 2. 199, § 3. 11 Gray, 492. 

1 Section 7. All proceedings in probate courts relative to sales Petitions for 

2 by a foreign executor, administrator, guardian or trustee shall be in foreign exec 

3 the county in which an authenticated copy of his appointment is first brougllt',' 

4 filed. R. S. 71, §25; 72, § 16. G. S. 102, § 4-!- P. S. 142, § 7. 1817 ' 182 § 1 

1 Section 8. No license for a sale by an executor, administrator. License for 

2 guardian or trustee shall be in force for more than one year after the fn toire f'w '" 

3 granting thereof, except as jn'ovided in section seventeen of chapter i'^nfS'j 1-2. 

4 one hundred and forty-six. g. s. 102, §43. p. s. 142, §8. ?>' sis''^ ^''' 

1 Section 9. In every sale of the real property of a deceased i?e''e'ifs'o1:*'siiSs'' 

2 person or of a ward by an executor, administrator or guardian, the to be treated 

■*■ *^,. . ~as real prop- 

3 suriilus of the proceeds remaining on the final settlement of the erty. 

R S 71 5 %i ' 

4 accounts .shall be considered as real r^roperty and shall be disiiosed 72, 5«5.'n. 

5 of to the same persons and in the same proportions to whom and p.' s.' 142,' § 9. ' 
(5 in which the real property if not sold would have descended or 

7 have been disposed of by the laws of this commonwealth. 



1328 



PROVISIONS AS TO CERTAIN SALES, ETC. [ChAP. 148. 



ofobiecttou*to Section 10. If a person appears and objects to the granting of a 1 

the granting of license to Sell real proiwrty and the court finds that either the 2 

ft li(*6DS6- 

1783, 32, §6. petition or the objection thereto is unreasonable, it may award costs 3 



R. s. 

72, §18.' 



to the prevailing party. 



G. S. 10-.', § 45. 



P. S. 142, § 10. 



Examination 
of persons 
licensed to sell 
laud. 

R. S. 71, §39; 
72, § 21. 
1857, 71, § 1. 
G. S. 102, § 49. 
P. S. 142, § 11. 



Section 11. A person who is authorized to make sale of land by 1 

license of coiu't shall be required, upon petition to the probate court 2 

by an heir, creditor, ward or other person interested in the estate, ;> 

to make answer upon oath as to all matters relative to his exercise 4 

and fulfilment of .said license, as fully as he is liable to account o 

and be examined relative to personal property. K, in relation to (i 

the exercise of such license or to a sale under it, there is any neglect 7 

or misconduct in the proceedings of such person by which a pei-son 8 

interested in the estate sutlers damage, such interested person may 9 

recover comjiensation therefor on the probate bond or otherwise as 10 

the case ma}- require. 1 1 



Sale of prop. 
erty held for 
churches, etc. 
1897, 462. 



Section 12. The supreme judicial court, upon petition of a 
party interested and after notice, may order the sale or tran.sfer of 
any real or personal property which is held for chiu'ches, cemeteries 
or other like trusts and the investment or disposition of the pro- 
ceeds, and may make oi'ders and decrees necessarv to secure the 
rights of owners of, or of other persons claiming an interest in, 
pews or in tombs or lots in cemeteries. 



1 
■2 

3 

4 
5 
6 



►3 L >*^ 



Compromises 
by executor, 
etc., under au- 
thority of pro- 
bate court. 
1817, 190, § 21. 
182«, 136. 



Executor, 
etc., may, un- 
der authority 
of supreme 
court, compro- 
mise, etc., 
controversies 
between claim- 
ants to estate. 
1861, 174, § 1. 
P. S. 142, § 13. 
170 Mass. 330. 



compeojuses, etc. 

Section 13. The probate court may authorize an executor, 
administrator, guardian or trustee to adjust by arbitration or com- 
promise any demand in favor of or against the estate b}' him repre- 
sented. 

79, § 17. 



2f/ „ xkr 



183.1, 03. 
1838, 92. 



R. S. 65, § 10; 
1855, 37, 432. 



G. S. 101, § 10. 
r. S. 142, § 12. 



9 Allen, 173. 
137 Mass. iM. 



Section 14. The supreme judicial coiu't ma}' authorize an execu- 
tor, administrator, guardian or trustee to adjust by arbitration or 
compromi.se any controver.sy that may arise between different claim- 
ants to the estate in his hands, to which arbitration or compromise 
such executor, administrator, guardian or trustee, and all other 
parties in being who claim an interest in such estate, shall be parties. 
An award or comjiromise made in writing in such case shall, if found 
by the coiu"t to be just and reasonable in its etfects upon any future 
contingent interests in .said estate, be valid and binding upon such 
interests as well as upon the interests of parties in being ; and if tlie 
court finds that such future contingent interests may be affected, it 
may appoint some person or persons to represent such interests 
in such controversy, upon such conditions as to costs as it may 
order. 



1 
2 
3 
4 



1 
2 

•1 
o 

4 

5 

() 

7 

8 

il 

10 

11 

12 

13 

14 



Arbitration of 
controversies 
as to wills. 
1864, 173, § 1. 
P. S. 142, § 14. 
1889, 26B. 



Section \f>. The .supreme judicial court shall have jurisdiction 
in equity to authorize the persons named as executors in an instru- 
ment purporting to be the last Avill of a person deceased, or the 
admiiii.strators with such will annexed, to adjust by arbitration or 
compromise any controversy between the persons who claim as 
devisees or legatees under such will and the persons entitled to the 



1 
•) 

3 
4 
.5 
b 



C'nAr. 148.] ritovisioxs as to certain sales, etc. 1329 

7 estate of the deceased under the statutes regulating the descent and 

8 distribution of intestate estates, to which arbitration or compromise 
1) the persons named as executors, or the administrators with the will 

10 annexed, as the case maj be, those claiming as devisees or legatees 

11 whose interests will in the' opinion of the comt be aiiected by the 

12 proposed arbitration or compromise, and those clamiing the estate as 
i;> intestate, shall be parties. 

1 Sectiox Hi. If the com-t finds that a,ny future contingent inter- continKeutin 

2 ests, which would arise under said will if admitted to probate, j'n',uxi;.','i'?u 
o would be afl'ected by the arbitration or compromise, it shall a]i- v"'rsies.'"™" 
-t point some person or persons to represent such interests in such Jj*^' \^' § -jg 

controversy, and the court shall have like power as to any bequests 
*i luade in the Mall for charitable purposes, if no trustees have been 

7 appointed in such will ; in both cases with such conditions as to 

8 costs as the com-t orders. 

1 Section 17. An award or compromise made in writing in any Effect of com. 

2 t«uch case shall, if found by the court to be just and reasonable in iiJm™}?!; §§ 3, 4, 

3 relation to the parties in being and in its efJect upon an}' futm-e con- fosMits'.los.' 

4 tingent interests that might arise under such will and upon an}' be- 
j quests to charities made in the same, be valid and binding upon such 
ti interests and upon such bequests, as well as upon the interests of all 
7 persons in being, but it shall not impair the claims of creditors. 

1 Section 18. If a minor or a person under guardianship is a Minor, etc, to 

2 necessary party to an arbitration or compromise under the provi- liy g'SrmlTnT'* 

3 sions of section fifteen, he shall be represented in the proceedings ijgj jgg 

4 hy his guardian, or by a guardian ad litem appointed by the court, i^- s. 142, § ir. 

5 who shall in the name and in behalf of the party he represents make 

6 and receive all proper conveyances and payments necessary to carry 

7 into effect any award or compromise sanctioned by the court. 

lEREGLXAR AND INVALID SALES, ETC., BY EXECUTORS, ETC. 

1 Section 19. Xo sale of real pro])erty made by an executor, ad- irregular, etc., 

, . I ealeB ot real 

2 ministrator, guardian, trustee or other person bv license of courts property by 

3 and no title under such sale, shall be avoided for the reason that the eifectof.' 

4 deed was not delivered within one 3'ear after the license, or on i-i'fio.' "' 

5 account of any uTegularity in the proceedings, if it appears, g!"s.'io2, §47 

6 First, That the license was gi-anted by a court of comj)etent jiu-is- 



ISIill, 60. 
IXI-A, 137, 



I 



diction; ?-■?,■ "-'.Ai'- 

' lo Mass. 326. 



8 Second, That the person licensed gave a bond which was approved ■! ^''''^-.'il"- 



') 



8 Met. 355. 



bv the iudge of the probate court, it a bond was renuu-ed uiion the scush isi. 

1,, •..*',?., ,. ' ' 9 0ray, 141. 

10 gi-anting ot the license : 3 Alien, 25. 

11 Third, That the notice of the time and place of sale was given loj^jiass.u'.' 

12 according to the order of the court ; and, luilMassiSv. 

13 Fourth, That the property was sold by public auction in accord- iw^^'ss. 50, 

14 ance with the notice, and is held by one who purchased it in good i46 Mass. 100. 

15 faith. 153 Mass. 3-25. 161 Mass. 315. 

1 Section 20. If the validit}' of a sale is drawn in question by a validity of 

2 person who claims adversely to the title of the deceased or of the eoluested? ''" 

3 ward, or who claims under a title which is not derived from or "°''^®^- 



1330 



PROVISIONS AS TO CERTAIN SALES, ETC. [ChaI*. U.S. 



R. S. 71, §40; 
72, § ii. 
G. a. 102, § 48. 
P. S. 142, § 19. 



through the deceased or the ward, the sale shall not bo void by -I- 

reason of any irregularity in the proceedings, if the e.vecutor, ad- .') 

ministrator, guardian or tru.stee was licensed to make the sale by a i> 

court of competent jurisdiction and executed and acknowledged in 7 

legal fonn a deed for the conveyance of the propcrt\-. 8 



Adjudication 
as to debts 
Haul, wheu. 
1874, 346, § 2. 
P. S. 142, § 2U. 



Section 21. If a license is granted by a pi'obate court for a sale 
or mortgage of real property to pay the debts and charges of a de- 
ceased person or of a person under guardianship, the adjudication 
of said court as to the existence of such debts and charges shall be 
final, so far as the same may affect any title ac(|uired by virtue 
of such licen.se, but .shall not affect the right of the executor, ad- 
ministrator or guardian to contest the validity of such debts and 
charges. 



Action or entry 
for recovery of 
land sold by 
executor, etc. 
1817, l',)0, ? 12. 
R. S. 71, §37; 
72, 6 19. 
G. S. 102, § 4<i. 
P. S. 142, 5 21. 

9 Gush. 223. 

10 Gray, 31. 



Section 22. No action for the recovery of property .sold by an 1 

executor or administrator under the provisions of chapter one hun- 2 

dred and forty-six shall be maintained by an heir or other person o 

who claims under the deceased, unless it is commenced within five 4 

years next after the sale ; and no action for property sold by a .5 

guai'dian under the provisions of said chapter shall be maintained t> 

by the ward or by any person who claims under him, unless it is 7 

commenced within five years next after the termination of the 8 

guardianship ; except that persons out of this commonwealth and !• 

minors and others under legal disability to sue when their right of 10 

action first accrues, may commence such action at any time within 11 

five years after the removal of the disability', or after their retmni to 12 

the commonwealth. No entry, unless by judgment of law, .shall be K^ 

made upon land .so sold, with a view to avoid the sale, unless within 1-4 

the times of limitation before prescribed for the commencement of 1.') 

an action. 1(> 



Confirmation, 
etc., of void 
acts of exec- 
utor, et<'. 
1873, 253, 5 3. 
P. S. 142, § 22. 
142 Mass. 470. 
150 Mass. 381. 



Section 23. If an act or proceeding of a person acting as exec- 1 

utor, administrator, guardian or trustee under an appointment or 2 

license of a probate court is void or voidable by reason of an irregu- 3 

larity or of want of jurisdiction or authority in the court which made 4 

the appointment or gi'anted the license, any person interested in or r> 

affected by such act or proceeding may have the matter heard and l! 

determined by the supreme judicial court in e(juity, which may 7 

confirm or .set aside, in whole or in part, the act or proceeding. 8 



Ratification of 

douljtful acta 

of e.xecutor, 

etc. 

1.S74, 340, § 1. 

P. S. 142, § 23. 

1888,420. 



Section 24. If the authority or validitj' of an act or proceed- 1 

ing of the probate court or of a person acting a.s executor, 2 

administrator, guardian or tru.stee is drawn in question by rea.son .'$ 

of an alleijed irrcijularitv, defective notice or want of autlioritv, 4 

any party intei'ested in or afl'ected by such act or proceeding .") 

may apply to the probate court wliich has jurisdiction of the sub- l> 

ject-inatter relative to which the act or proceeding has been had, 7 

and the court, after notice to all parties interested, and to the S 

persons who may be the jiarents of such parties not in being, '.i 

with power to appoint a guardian or next friend to represent -tlie Id 

interests of an}' person unborn or unascertained, may hear and 1 1 

determine the matter and confirm the act or proceeding, in wlioic 12 



Chap. 145t.] bonds of executors, etc. 1331 

13 or ill part, and may authorize and empower the executor, admin- 

14 i.sti'ator, guardian or trustee, or any successor or other person 

15 who may be legall}^ appointed to act in the same capacitj', to ratify 

16 and confirm such act or proceeding and to execute and deliver 

17 such deeds, releases, conve3'ances and other instruments as ma^' be 

18 found necessary for that purpose ; but no act or proceeding shall be 

19 ratified or confirmed which the court might not have passed or au- 

20 thorized in the fu'st instance upon due proceedings. 

1 Section 25. An executor, administrator, guardian or trustee Liability of 

2 whose appointment is invalid by reason of an irregularity or of want (Jpolnte/es- 

3 of jurisdiction or authority in the court which made it, shall account Icc^'ik^"^^" *** 

4 for all money, property or assets which have come to his hands as p.'|' u^, f -i'.^' 

5 such executor, administrator, guardian or trustee, or b}' reason of I'^Mase. los. 
() such ajipointment, as if the appointment had been regular and valid ; 

7 and any bond given in pm-suance of such appointment shall be valid 

8 and binding on the princijjals and sureties, and payments to or by 

9 a person so appointed, if in other respects properly made, ma}' Mith 

10 the approval of the probate court be ratified and confirmed by the 

11 executor, administrator, guardian or trustee who is afterward legally 

12 appointed. 

1 Section 26. If an executor, administrator, guardian or trustee, Failure of 

2 or a person employed by him to give notice of an appointment or of aliimiDt" ""^ 

3 notice of sale of real property, has failed to file an affidavit of such howVemedfed. 

4 notice in the probate court and such affidavit cannot be obtained, i^sa, sio. 

5 the probate court may, upon petition of any person interested in 

6 real property the title to Avhich may be affected thereby, stating the 

7 particular failure complained of and averring that the affidavit can- 

8 not be obtained, order notice by publication to creditors of, and 

9 others interested in, the estate in the settlement of which the failure 

10 complained of occurred. If, ujioii return of such notice and after a 

11 hearing, the court is satisfied that such notice was in fact given, it 

12 may make a decree that such notice was in fact given. 



CHAPTEK 119. 

OF BONDS OF EXECUTORS, ADMINISTRATORS, GUARDIANS AND TRUSTEES. 

Sections 1, 2. — Form and Conditions of Probate Bonds. 
Sections 3-.5. — Exemption from Giving Sureties on Bonds. 
Section 6. ■=— Exemption from Giving Bond. 

Sections 7, 8. — Effect of Neglect to give Bond. 

Sections 9-19. — General Provisions. 

Sections 20-3.5. — Remedj' upon Bonds. 

FORM AND CONDITIONS OF PROBATE BONDS. 

1 Section 1. An executor, administrator, administrator with the Bonds otexec- 

2 will annexed, special administrator, receiver of an absentee, tem- p.''s.'ii9,§5; 

3 porary guardian and, unless otherwise expressly provided, a guar- SsSill'l'; uil' 

4 dian or trustee under a will or appointed by the probate court, ^^ '-• ^^- 



iHH2 



BONDS OF EXECUTORS, ETC. 



[Chap. 149. 



1897, 13.1, §3; 
«7, ? -2. 
liKKI, 34S, § 4. 



Conriitious of 
boudof execu- 
tor. 

1783, 24, § 17. 
ISlli, 94, § 1. 
1S17, 1^«), § 14. 
K. S. ()3, §§ ■.!, S. 
G. S. 93, §§ 2, 8. 
1 871), 28.5. 
1S78, 154, § 1. 
1880, 152, § 1. 
P. .S. 129, §5; 
130 § 8. 

13 Pick. .328. 

7 Cusli. 207. 
lOCush. 1. 
5 Grav, 342. 

14 Grav, 114. 

8 Allen, 6,32. 
lOti Mass. 15. 



—of aclminis- 
trator. 

lB92-:j, 14, § 1. 
1783, 38, S .S. 
1811), 94, § 1. 
1817, 190, § 14. 
R. tj. ()4, § 0. 
G. S. 94, I 2. 
1878, 154, ? 1. 
1880, l.W, § 1. 
1'. S. 130, § 2. 
12« Mass. 4.50. 
134 Mass. 120. 
136 Mass. 297. 



133 Mass. 111. 
136 Mass. 54. 
151 Mass. 596. 



— of special 
administrator. 
1834, 174, !) .-1. 
R. H.IU, §7. 
G. S. 94, § 7. 
1876, 2O0, § 2. 
P. S. 130, § 11. 



— of receiver 
of absentee. 
1897, 447, § 2. 



—of temporary 
guardian. 
1897, 1.35, § ». 
1900, 345, § 4. 



before entering upon the duties of his tru.st, shall give bond with f) 

sufficient sureties, in siieli sum as the probate court ina}' order, (! 

payable to the judge of said coiut and his successors, and with con- 7 

dition substantially as follows : — 8 

1. In the ease of an executor or administrator with the will it 
annexed : 10 

First, To make and return to the probate court within tliree 1 1 

months a ti'ue inventory of all the testator's real and personal prop- 12 

erty which at the tunc of making such inventory shall have come to IH 

his po.ssession or knowledge ; 152 Mass. 412. 14 

Second, To administer according to law and to the will of the 15 

testator all personal property of the testator which may come into his K! 

possession or into the pos.session of any person for him, and also the 17 

l)roeeeds of any of the real projierty of the testator which may be 18 

sold or mortgaged by him ; uo Mass. 351. 143 Mass. 326. 19 

Third, To render upon oath a true account of his administration 20 

at least once a year until his tru.st is fulfilled, unless he is excused 21 

therefrom in any year b}^ the court, and also to render such account 22 

at such other times as the eoiu't may order. 23 

2. In the case of an administrator : 24 
First, To make and return to the probat« court within three 25 

months a true inventory of all the intestate's real and personal prop- 2(5 

erty which at the time of making such inventory shall have come to 27 

his po.ssession or knowledge ; 28 

Second, To administer according to law all the personal property 2ii 

of the deceased which may come into his possession or into the pes- 30 

session of any person for him, and also the proceeds of any of the 31 

real property of the deceased which may be sold or mortgaged by 32 

him; ' ' 33 

Third, To render upon oath a true account of his administration 34 

at least once a year until his trust is fulfilled, unless he is excu.sed 35 

therefrom in any year by the court, and also to render such account 3() 

at such other times as the court orders ; 37 

Fourth, To pay to such }iersons as the court orders any balance 38 

remaining in his hands upon the settlement of his accounts ; 3!» 

Fifth, To deliver his letters of administration into the court if 40 

a will of the deceased is thereafter duly proved and allowed. 41 

3. In the case of a special administrator: 42 
That he will make and return to the probate court within such 43 

time as it orders a true inventory of all the personal property of 44 

the deceased which at the time of making such inventory shall have 45 

come to his jiossession or knowledge, and that he will, whenever 4() 

required by the probate court, truh' account on oath for all the 47 

projierty of the deceased which may be received by him as such 48 

special administrator, and will deliver the same to any per.son who 49 

may be ai)pointed executor or administrator of the deceased, or 50 

may be otiierwise lawfully authorized to receive the same. 51 

4. In the case of a receiver of an ab.sentee appointed under 52 
the jirovisions of chapter one hundred and forty-four : 53 

AVith condition substantially as provided for the bond of an exec- 54 

utor or administrator, and with the further condition to obey all 55 

orders and decrees made by the jirobate court. 5(5 

5. In the ca.se of a tcm])orary guardian a))iiointed under the pro- 57 
visions of section twenty of chapter one hundred and forty-five : 58 



C'lIAP. 149.] BOXDS OF EXECUTORS, ETC. lo33 

> 51) That ho will make and return to the probate court within such 

60 time a.s it .shall order a true inveiitoiy of" all the personal property 

<!1 of the ward which at the time of making such inventor}^ shall have 

^^^2 come to his possession or knowledge, and that he will, whenever 

<).'? re(juired by the probate court, truh' account on oath for all the 

(i4 jn'Ofiertj' of the Mard whicii may be received by him as such tem- 

<).') porar}' guardian, and will deliver it to any person who may be 

<)() appointed guardian or may be otherwise lawfully authorized to 

()7 receive it. 

t)8 6. In the case of a guardian : Conditions of 

()!l First, To make and return to the probate court at such time as it )fS"r(i?iin. 

70 orders a true inventor}^ of all the real and personal property of the 7'"'^'' '-'^5®- 

71 ward which at the time of making such inventory shall have come 1^31-2, u, §§ 6, 
12 to his possession or knowledge : }SH',\l^''*' 

73 Second, To manage and dispose ot all such property accordmg to J^i',. ijf' . § 34-_ 

74 law and for the best interests of the ward, and faithfully to perform isss/asid.' 

75 his trust in relation to such property and to the custody, education vi. ' '*' 
7i) and maintenance of the ward ; ibsniiwji! 

77 Third, To render upon oath at least once a year until his trust is f jfagg^'i,!;"' 

78 fulfilled, unless he is excused therefrom in any year by the court, a 7 p{J!k' 9'f ' "''^' 
7tl true account of the property in his hands, including the proceeds of ^^p^:^'^- 
<Si) all real jiroperty sold or mortg'aged liy him and of the management 2I i'i<k!36. 

81 and disposition thereof, and also to render such account at such n t^isi'i.''2o! 

82 other times as said comt may order ; and li'tlray.'^k 

83 Fourth, At the expiration of his trust to settle his account in the JoHMMssliw. 

84 probate court or with the ward or his legal representatives, and to ]*,' J'"'"'- }^.l- 

- 1 T 1 . • • • 1 • 1 -I lUMims. 19o. 

^o pay over and deliver all the property remanimg in his hands or due is* Muss. -m. 

8() from him on such settlement, to the person or persons lawfully 

87 entitled thereto. 

88 7. In the case of a trustee under a will or appointed by the iiro — of trustee. 
811 bate court : isii, luo, §§ 37, 
W) First, To make and return to the probate court at such time as it r.s. eu, §§ 1,9. 
ill orders a true inventory of all the real and personal jji-operty belong- J^^- «• n". §§ 1. 
'.•2 ing to him as trustee which at the time of the making of such in- J^ra, 3nT. ^ 
il3 ventory shall have come to his possession or knowledge ; ps'- wi', §§ 12, 
!)4 Second, To manage and dispose of all such property, and faith- 221'iok. 215. 
!'.') fidly to perform his trust relative thereto according to law and to 153 mS. 249. 
{••"> the will of the testator ; 

!I7 Tliii'd, To render upon oath at least once a year until his trust is 

1'8 fulfilled, unless he is excused therefrom in any 3'ear by the court, a 

'.lit true account of the property in his hands and of the management 

10(» and disposition thereof, and also to render such account at such 

101 other times as said court orders ; and 

102 Fourth, At the expiration of his ti-ust to settle his account in the 

103 probate court, and to pay over and deliver all the property remain- 

104 ing in his hands, or due from him on such settlement, to the person 

105 or persons entitled thereto. 

1 Section 2. If the executor of a will or an administrator with tor^vim'it''^''" 

2 the will annexed is residuary legatee thereunder, and it appears f|^j,'J^^"'>' 

3 that the bond reciuired of him in the preceding section is not neces- nss, 24; § 17. 

4 sary for the iwotection of anv iierson interested in the estate, the im^es! 

court may pemiit such executor or administrator with the will ig^o.'iw. ' 

t> annexed, instead of giving such bond, to give bond in a sum and toff's!*' ^^^'"' 



1334 BONDS OF EXECUTORS, ETC. [CuAl'. 1411. 

3 Mass. 5-23. witli sureties to the satisfaction of the coiu't, and with condition to 7 

s'pk'k'.W." pay all debts and legacies of the testator and such amounts as may be 8 

ocusii'^ii. allowed by the couil to the widow or minor children for necessaries. It 

iGrav'uT*' I" such case he shall not be requu'ed to retm-n an inventory. The 1() 

133 Miiss. 447. aivingr of such bond shall not discharge the lien on the real otou- 11 

140 Mass. 66, erty ot the testator for the payment of his debts, except on such 12 

part as may be sold by the executor or administrator with the will i;^ 

annexed to a purchaser in good faith and for a valuable considera- 14 

tion ; and all property not so .sold may be taken on execution by 15 

a creditor not otherwise satisfied, in like manner as if a bond had 16 

been given in the other form. 17 

EXEMPTION FROM GIVING SURETIES ON BONTJS. 

^x^et^fc'r^etc' SECTION 3. An exccutoF shall be exempt from giving a surety 1 

ft-om>'ivinK ' gn his bond if the testator has ordered or requested such exemption 2 

sureties, when. ,1111,1 1 !•• 

1S5.S72. or that no bond should be taken, and an executor, administrator 6 

p.s.'i2'j, M. or an administrator with the will annexed, shall be so exempt if all 4 

8Ai"ien,»2.' the pcrsons interested in the estate who are of full age and legal o 

12 AUen, 330. capacity, other than creditors, certify to the probate court their con- (i 

sent thereto ; but not until all creditors of the estate, and the guar- 7 

dian of any minor interested therein, have been notified and have had 6 

opportunity to show cause against the same. The probate court may 9 

however upon or after the granting of letters testamentary or letters 1<> 

of administration require bond, with sutEcient surety or sui'eties. 11 

a^d*tfSgttti'!°° Section 4. A testamentary guardian and a trustee under a will 1 

It's' 6'7'/>^"79 ^^^^ be exempt from giving surety or sureties on his bond, if 2 

§,7. ' '^ ' the testator has ordered or requested such exemption, or that no 3 

109, §6.' '' bond should be required, or in the case of a trustee, if all the per- 4 

1873', lii; § 1. sons beneficially interested in the trust, who are of full age and 5 

i&oiS"'^"' legal capacity, other than creditors, request such exemption; but t) 

•S';l4i!'§Vi6,^^- "°*- i^wt^il ths guardian of any minpr interested therein and such 7 

J-fi"'ick"'-2i-. other persons as the court orders, have been notified and have had 8 

u9MasB.sk. oijportunit}"^ to .show cause again.st the .same. The probate coiut !• 

nia\' however at any time recjuire such guardian, trustee or trustee 10 

apjiointed b}' the probate coiul to give a bond with suret}' or siu'cties. 11 

ruretVof'J,-mir. SECTION 5. , If the custodv of a minor is given to a guardian, 1 

lustodv^ot''' pursuant to the provisions of section four of chapter one hundred 2 

H-arri. " and fortv-fivc, for tlic rcasoii that one or both of his ijarents are 3 

1881 -37. * ; . 

P. s'.iW, §25. unfit to have such cu.stody, such guardian may in the discretion of 4 

the court give a bond without a surety ; but the court in such case 5 

may, at any time if it finds that the protection of the ward's interests t> 

renders it necessary, require such guardian to give a bond with 7 

surety or sureties. 8 

exejiption from giving bond. 

frSttecs ex-*""* Section 6 . A guardian or trustee who was not required to give 1 

empt from bond bv thc Uiws in force at the time of his apiiointment shall not 2 

Xiviiig bond, . . . ' i , 

when. be required to give bond under the provasions of the preceding sec- 6 

1817', iu6, § 37. tions of this chapter, except bv special order of the court under the 4 

R. S. B9, §3. . . r X- i- ;^ 

G. s. 100, § 3. provisions ot section tour. o 

1873, 122, § 2. 1880, 34, §2. . 1'. s. ::!.),§ 27; 141, § 19. 117 Mass. 513. 



L'UAP. 14'J.] BONDS OF EXECUTORS, ETC. 1335 

EFFECT OF NEGLECT TO GIVE BOND. 

1 Section 7. A person required by the provisions of the preced- ^"^I'^if^'iJ^ ,, 

2 ing sections to give a bond who, for thirty days after his appoint- i^fi^g^'i""- 
8 ment or after the entry of the decree re([uiring him to give bond, isnlipo, §38. 

4 fiiils to file the bond, duly approved, may be found to have declined aisliob, §i. 

5 or resigned the trust. 1869,35-. 18-3,122, §2. isso, 34, §2. 

p. S. 139, § 26; 141, § 18. 1898, 458. 110 Mass. 298. 

1 Section 8. An executor, administrator or administrator with f^^^i^f^^' 

2 the will annexed who neglects to give bond, with surety or sureties, 

3 when required by the probate court within such time as it orders, in 

4 accordance with the provisions of section three, shall be found to 

5 have declined or resigned the trust. 



' GEN'ERAL PROVISIONS. 

1 Section 9. The sureties on everj^ bond given to a judge of pro- suretie.son 

2 bate shall, except as provided in section sixty-one of chapter one iXiifit"nts 

3 hundred and eighteen, be inhabitants of this commonwealth, and weaiti"""'"' 

4 .satisfactory' to sucli judge or to the register. isn, i9o, § 23. ^'*^' '^^' ^ *• 

R. S. 70," § 2. G. .S. 101, § 12. P. S. 143, § 1. 1901, 463. 7 Allen, 425. 

1 Section 10. No bond required to be given to a judge of probate Bomistoijo 

2 or to be filed in a registry of probate shall be sufficient, unless it has "uci^Je w " 

3 been examined and approved by the judge or by the register, and prlbate."' 

4 his approval over his official signature written thereon. isn, i9o, § 23. 

R. S. 83, §32. P. S. 143, § 2. 3 Ciisli. 466. 113 Mass. 472. 

G. S. 101, § 12. 1901, 463. 12 Alleu, 3.S0. 126 Mass. 105. 

1 Section 11. Two or more persons acting jointly as executors. Joint or sepa. 

2 administrators, trustees or otherwise, who are required to give Joint e"xc<u.''^ 

3 bonds, may give either separate or joint bonds. issl,' m,' § o. 

R. S. 70, § 2. G. S. 101, § 14. 1874, 366. P. S. 143, § 3. 



1 Section 12. If two or more persons ai"e appointed executors, Exeiutomot 

2 none shall intermeddle or act as such but those who give bond as io"tlfin™r. 

3 before provided. r. s.63, §2. g. s. 93, §2. p. s. 129, §9. i783,'24,' § 17. 

1 Section 13. If a license or authority for the sale or mortgage sp«iai bond 

2 of real property has been granted to an executor, administrator, exerutor^etc" 

3 guardian or trustee, no special bond shall be required ; but if the uuiess.'ite. ' 

4 court finds that the bond given by him uj)on his appointment is }^g' '"i^^j^i. 

5 insufficient, it shall, before gi-anting such license or authority, E^s'.7i,§6;72, 
(i require an additional bond containing the same conditions as are Jfi^*^-,^. 

7 refjuired in the bond to be given upon the appointment of such 102! §§6,28. 

8 executor, administrator, guardian or trustee. 

1880, 152, § 2. P. S. 143, § 4. 139 Mass. 3.58. 153 Mass. 329. 

1 Section 14. If the sureties or the penal sum in a bond given xewijoud 

2 to a judge of probate are insufficient, the supreme judicial court or eu-.^insum"'^' 

3 the ])robate coiut may, after notice to the principal in such bond, S'i"'i,4, § .5. 

4 recjuire a new bond with such surety or sureties and in such penal ^^i'- ^'•*"> ^ *-■ 

5 sum as the court orders. r. s. 70, § 27; -9, § 24. i85i, 31, § 1. 

G.S. 101, §15; 1877,134. 3 Gush. 46.5. 142 Mass. 399. 

109, § 27. P. S. 143, § 5. 1 16 M:is8. 435. 171 Mass. 386. 



1336 



BONDS OF EXECLTOnS, ETC. 



[CiiAP. uy. 



Mi'ivt'ielP "' Section 15. A surety on a bond given to a judge of probate 

r'Js' 7o''§^4?' ™^y' upon his petition to the supreme judieial eoiu't or the i)rol)ate 

Tu, §-24.' ' c-oiu't, be diseharjred from all further resiionsibilitv, if the eourt, 

G.'s'.'ioi; §"i6; after notiee to all persons interested, finds such discharge reasonable 

I"', s. Us, § 6. and proper ; and the principal shall thereupon give a new bond with 

13M MiiBs. 356. g^j^jj surety or sureties as the court orders. 



1 
2 

3 
4 
5 
6 



Rc-niovaiof SECTION 16. If, in the cases specified in the two preceding sec- 

trustue if new , ' i ,.'..,='. 

ijominot|iven. tions, the principal does not give such new bond M'lthin such time 
R.s.7o,'§2s.' as is ordered by the court, he shall be removed from his trust, and 
another person appointed in his stead. 

G. S. 101, § 17. P. S. 143, § 7. 



1S43, 56, 
1851,31,1 1 



1 

2 
3 
4 



Sureties on 
prior bond 
liable until 
new bond 
approved. 
1S17, UK), § 42. 
R. S. 70, § 30. 



Reduction of 
penal sum of 
bond. 
ISSW, 278. 



Section 17. If a new bond is required as above provided, the 1 

sureties on the prior bond shall be liable for all breaches of the 2 

condition thereof which are committed before the new bond is 3 

approved by the judge. 4 



1843, 56, § 3. 
G. S. 101, § IS. 



P. S. RS, § 8. 
116 Mass. 552. 



130 Jlass. 404. 
132 Mass. 343. 



142 Mass. 399. 
171 Mass. 886. 



Section 18. If a surety company becomes surety on a bond 
given to a judge of probate, the court may, ui)on the ))ctition of 
any party in interest and after notice, reduce the penal sum in 
which the principal and surety shall be liable for a violation there- 
after of the conditions thereof. 



Release of 
sureties by 
marriage of 
executrix. 
186i), 400, § 2. 
1". S. 143, § ». 



Section 19. In case of the marriage of a woman who is an 
executrix, administratrix, guardian or trustee, her sureties shall 
have the right, upon jjctition to the probate court in which her bond 
is filed, to be released from any further liability on such bond, 
beyond accounting for and jiaying over the money and projierty 
already in her hands by virtue of such ti-ust ; and if her sm-etics are 
so released, she shall be required to fiu'nish a new bond to the satis- 
faction of .said eourt, or shall be discharged from said trust. 



1 
2 

3 
4 
5 
(i 

7 
8 



Suit by cred- 
itor on bond of 
exe<'Utor, etc. 
1786, 55, § 2. 
K. S. 70, § 3. 
G. S. 101, § 19. 
P. S. 143, § 10. 

15 Mass. 6. 

16 Mass. .524. 
20 Pick. ,53. 
9 Met. ,525. 

2 Gray, 154. 



REMEDY UPON BONDS. 

Section 20. Bonds given by executors or administrators for the 
performance of their trust may be put in suit by a creditor of the 
deceased for his own benefit, when such creditor has recovered judg- 
ment for his debt against the executors or administrators and they 
have neglected upon demand made by him to pay the same or to 
show sufficient goods or estate of the deceased to be taken on exe- 
cution for that inirpose. 117 Mass. 222. 138 Mass. 336. 142 Mass. 227. 



1 

2 

.» 

r> 
4 

5 
(j 



Same subject. 
1786, 55, § 2. 
R. S. 70, § 4. 
G. S. 101, I 20. 
P. S. 143, § 11. 
21 Pick. 58. 



Suit by next of 

kin. 

1786, 55, § 2. 

R. S. 70, § S. 

G. S. 101, §21. 

P. S. 143, § 12. 

126 Mass. 450. 



Section 21. A creditor of an estate which has been represented 
insolvent may bring such action if the amount due to him has been 
ascertained by the decree of distiibution, and the executor or ad- 
ministrator neglect-s upon demand to i)ay siu'li amount. 

Section 22. Such action may be brought by a person who is next 
of kin to recover his share of the personal property after a decree of 
the probate court ascertaining the amount due to him, if the execu- 
tor or administrator neglects upon demand to pay such amount. 

144 Maes, 138. 



1 

2 
3 
4 

1 
2 

3 
4 



Chap. 141).] bonds of executous, etc. 1'.jo7- 

1 Section 23. If the probate ooiu't, iii)on the representation of :'^i\l\.|"v^;nfv'' 

2 any person interested in an estate, finds that tlie executor or i"j|ii„j"''"''*" 

3 administrator has failed in any manner not specified in the three executor, eu-. 

4 preceding sections to perform the conditions of his bon4, it r.'s. 7o','§1i. 

5 ma}' authorize any creditor, next of kin, legatee or other person p.' s.' i«,' | la.' 
I) aggrieved by such maladministration to bring an action on the ? c'l^'iK i'iv. 

7 bond. ISGrav, 57. 13 Alien, 10!). llfi Srass. .518. 133 Mass. 447. J rSv' '?-^' 

flAlleii, 344. 110 Mass. IM. liu Mass. 7.1. 136 Mass. 104. i<jr,i\,i,o. 

1 Section 24. If a judge of probate is obligor, either as prin — imw brouKiit 

2 cipal or as surety, in a bond given to a former judge of the court, is imowigor."'* 

3 any action authorized by the provisions of this chapter may be g^I'.'wi, §§•«, 

4 brought upon such bond in the name of the judge mentioned |*gj^3^^,^ 

5 therein or in the name of his executor or administi'ator, and the 
t) register of probate for the county in which such bond was given 

7 may authorize an action thereon in like manner and upon the same 

8 conditions as may be done in other cases by the court. 

1 Section 25. The wife of a iudare of probate may be a defendant -as"'"*' wife 

, , . V • 1 • ■ 1 • 1 °f probate 

2 in an action upon a bond given to him or to Ins predecessor in such judge. 

j« 1896, 20S. 

3 oince. 

1 Section 26. In every action on a bond under the provisions of indorsementof 

2 sections twenty, twenty-one and twenty-two, the writ shall be in- {^**| '^i; Vl- 

3 dorsed by the persons for whose benefit or at whose request the action «• s! loi, §'«. 

* . . . P .S 143 5 X^ 

4 is brought or by their attorney, and the indorsers shall be liable for 2 iia'ss. i4;i. " 

5 the costs of suit, and execution therefor sliall be issued against 2 Ai'ien, 537. 
(5 them and not against the judge. If the action is brought for the 

7 benefit of creditors or next of kin, there shall be a further indorse- 

8 ment on the writ specifying that it is brought for the benefit of 

9 such creditors or next of kin. 

1 Section 27. If the principal in the bond is a resident of this obiigormaybe 

2 commonwealth at the commencement of the action, and is not made wh""!""'^'^' 

3 a defendant therein or is not served \vith proces.s, the com-t may, at r.I;'. 7o',|s. 

4 the request of any of the sureties, continue or postpone the action p.f.uj'lfe' 

5 so long as may be necessary to summon or bring in the principal as 

6 provided in the foUoM'ing section. 

1 Section 28. The sureties may take out a ^vi'it, in such form as .same subject. 

2 the court may prescribe, to aiTest the principal or to attach his R.*'.7o,Vfl. 

3 goods or estate, and to summon him to appear and answer as de- p.' |; J43'; | n." 

4 fendant in the original action. If, after being served with such 

5 process fourteen days at least before the time appointed for him to 
fi appear and answer to the action, he neglects so to do, and if judg- 

7 ment is for the plaintiff, such judgment shall be rendered against the 

8 principal obligor with the other defendants in the same manner as 

9 if he liad lieen originally a party to the action. An attachment or 

10 bail on such process shall be liable to respond to the judgment in 

11 like manner as if made or taken in the original action. 

1 Section 29. Bonds ofiven by ijuardians or trustees may be put Actions upon 

. & f 11 12 I* bonds of guar- 

2 in suit by order of the probate court tor the benent ot any per.son diansortrus- 

3 interested in the estate, and the proceedings in such actions shall be rim'.m. 



1338 



BONDS OF EXECUTORS, ETC. 



.[Chap. 14!). 



isio, 86, §3. conducted in like manner as is provided relative to actions on 
K. s. (i;i,'§ 13;' boiuls given by executors or administrators. 

'a. § -5- r. S. 143, § 18. 19 rick. 403. 21 Pick. 36. 



G. S. 100, § 12; 109, §28. 
140 Mase. 357. 



4 

5 



.wii'one''upon SECTION 30. An actiou on a bond payable to a judge of probate 
V-°u'i'*l- ^ ; shall be brought in the superior court held for the county in which 

1,86, So. § <!. ^, , , ^ , * •' 

1810, 86, § 3. the bond was taken. isn, i90, § 43. r. s. 69, § 13; 70, § lo; 79, § m. 

G. S. 100, § 12; 101, § 28; 109, § 28. P. S. 143, § 19. IS',17, 131. 



Form of execu- 
tion in action 
on bond. 
1786, 5t>. 
1816, 94, § 2. 
R. S. 7U, § 10. 
G. S. 101, § 128. 
P. S. 143, « 20. 
16 Gray, 267. 
107 Mass. 474. 
110 Mass. li«. 
116 Mass. mi. 
155 Mass. 203. 



Section 31. If the court finds that there has been a breach of 1 

the condition of the bond of an executor or administrator, it shall, 2 

upon a hearing in equity, award execution in the name of the plain- 3 

tiii' as follows : — 4 

First, If the action is brought for the benefit of a creditor, execu- 5 

tion shall be awarded for the use of the creditor for the amount dtie (! 

to him upon the judgment which he has recovered, or upon the 7 

decree of distribution in his favor. ^i 

Second, If the action is lirought for the benefit of a person who it 

is next of kin, execution shall be awarded for the use of such per- 10 

son for the amount due to him according to the decree of the probate 11 

court. 1 •> 

Third, If the action is brought for a breach of the condition in 13 

not accounting for the estate as recjuired by laM% execution shall be 14 

awarded, without expressing that it is for the use of any person, for 15 

the full value of all the estate of the deceased which has come to the l(i 

hands of the executor or administrator and for which he docs not 17 

satisfactorily account, and for all damages caused by his neglect or is 

maladministration. lit 

Fourth, K the action is brought for any other breach of the con- 21' 

dition of the bond, execution shall be awarded for such amount and 21 

for the u.se of such person or persons, or without expressing it to be 22 

for the u.se of any particular person, as the court determines. 23 

Fifth, If there are two or more persons for Avhose use execution 24 

is to be awarded as jirovided in this section, a separate execution 2.t 

shall be issued for the amount due to each of them. 2(5 

Sixth, The execution .shall include the costs of suit, as well as 27 

the debt or damages ; and if there is more than one execution, the 2S 

costs shall be divided lietween them as the court orders. 29 



Proceedings if 
execution is 
awarded for 
tlie use of a 
liarticular 
person. 
1786, 5n, § 1. 
R. S. 70, § 10, 
<•,!. 7. 

G. S. 101, § 28, 
rl. 7. 



Section 32. If an execution which is awarded under the pro- 
visions of the preceding section is expressed to be for the use of a 
particular person, such person shall be considered as the judgment 
creditor, and may cause the execution to be levied in his name and 
for his benefit, as if the action had been brought and the judgment 
recovered in his name. p. s. 143, §21. scusii. 289. 



— If awarded 
witliout ex- 
pressing for 
wliose use. 
R. S. 70, § 11. 
G. S. 101, § 29. 
P. S. 143, § 22. 
9 Met. 525. 



Section 33. If such execution is awarded without expressing 1 

it to be for the use of any particular jierson, all money received 2 

thereon shall be paid to the; co-executor or co-administrator, if any, 3 

or to the person who is then the rightful executor or admin is ti'ator, 4 

and shall be assets in his hands to be administered accordinc: to law. 5 



Provision for Sectiox 34. If, after execution has once been awarded in an 1 

ucw brea(rli ' ... 

after execution action ui)()n a boiid, the executor or administrator commits a new 2 

awarded. ' 



t'lIAT. !.")().] ACCOITXTS AND SETTLEMENTS OF EXECUTORS, ETC. 13^}9 

biviK'h of the condition of the bond, or if a crcditoi-, next of kin, r. s. 70, §12. 

4 legatee or other person interested in the estate has a claim for further p.' |." J^; | Is'; 

5 damages on account of any neglect or maladministration of the 
() executor or administrator, a ^\Tit of scire facias on the original judg- 
7 ment ma}- be sued out in like manner as is provided for the com- 
M mencement of the original action ; and the court shall thereupon 
it award a new execution in like manner as might have been done in 

10 the original action. 

1 Section 35. No action shall be maintained against the sureties Limitation r.f 

2 on a bond given by a guardian, unless commenced within four 3- ears suret'i'eVmi""*' 

3 from the time of the discharge of the guardian ; but if at the time i^'^\\ uj 

4 of such discharge the person entitled to brinsj such action is out of 5- §■;■!•§■% 

5 this commonwealth, it ma}' be commenced within four years after i'- **' '•'*'''■. * ■^• 
(3 his return. laoray, 56i. ui Mass. 507. 



CHAPTEE 150. 

OF THE ACCOUNTS AND SETTLEMENTS OF EXECUTORS, ADMINISTRATORS, 
GUARDIANS, TRUSTEES AND RECEIVERS. 

1 Section 1. An executor, administrator or guardian, or a trus- when accounts 

2 tee who is required b}' law to give bond to a judge of probate, dem/'"""' 

3 shall render an account relative to the estate in his hands at least r.^I'%'"!!'' 

4 once a 3ear and at such other times as shall be required by the JJ-jq*;^^' 

5 court, until his trust is fulfilled ; but the court may upon his applica- i'- '^- '+ij,,§ i- 
(1 tion excuse him from rendering an account in any year, if satisfied ui »ias8?'587. 
7 that it is not neces.sary or expedient that it should be rendered. ' ass. 0- . 

1 Section 2. Accounts rendered to the jiro bate com-t by an execu- Forms of ac- 

2 tor, administrator, trustee or guardian shall be for a period dis- S?iw. 

3 tinctly stated therein, and shall consist of three schedules, of which i*^ Mass. 373. 

4 the first shall siiow the amount of personal property according to 

5 the inventory, or, instead thereof, the amount of the balance of the 
() previous account rendered, as the case may be, and all income and 

7 other propert}^ received and all gains from the sale of any property 

8 or otherwise ; the second shall show payments, charges, losses and 

9 distributions, and the third shall show the investment of the balance 

10 of such account, if any, and changes of investment. A trustee 

11 shall .state in his accounts the receipts of principal and income sep- 

1 2 arately and also the paj'ments and charges on account of such prin- 

13 cipal and income separately. 

1 Section 3. An executor, administrator, guardian or trustee may Examination 

2 be examined on oath before the coiu-t upon any matters relative to R!s"ii7,'§7. 

3 his accounts. p. s. 144, §2. u. s. as, §9. 

1 Section 4. An executor, administrator, guardian or trustee Personal prop. 

2 shall account for the personal property at its appraised value, but fKcouuted for 

3 he shall make no profit by the increase, nor sustain any loss by the vaiueyexcept, 

4 decrease or destruction ^\ithout his fault of any part thereof. If lie ^^^:. jg^ „ jg 

5 sells any of the personal propertj' for more than its appraised value, 34. ' ' 



1340 



ACCOUNTS AND SETTLEMENTS OF EXECUTORS, ETC. [CHAP. 150. 



?■ 7!) ^§"-20^ '' "' '^^ >i^^^^ account for the excess; and if he sells any for less than its 

•:i'- s/hs §i 1, 2, appraised value, he shall be allowed for the loss, if the court finds 

Rs. 144, §'3. that the sale was expedient and for the interest of all concerned; 

and he shall not be accountable for a debt inventoried as due to 

the estate, if the coui"t finds that it remains uncollected without his 

fault. 



7 

s 
;t 

in 
11 



wMrh'arcouiit- yECTiON 5. An executor, administrator, guardian or trustee shall 
'i's'i-'nu^^^m'"' "^^ chargeable in his accoiuit with all the personal i)roperty of the 
R. s'.G7,'j5; 79, deceased which comes to his hands and M'hich is bv law to lie admin- 

§ '20. 

■ "" istered, although not included in the inventory; also with all pro- 

ceeds of real property which is sold or mortgaged and with all 
interest, profit and income that come to his hands from the personal 
propei'ty of the deceased. 



G. S. 98, § 7; 

IIIH, § 17. 

P. S. 144, § 4. 



Section (5. If the real property has been used or occupied by an 



Income de- 
rive<l from real 

property to be exccutor Or administrator, he shall account for the income thereof as 

accountt'dlor. i i , i .11 *. 1 i 

1789. 11, §i. ordered bv the iirobate court with the assent ot the executor or ad- 

R. S. 67, § 6. .1 

G. S. 98, § 8. 
P. S. 144, § 6. 
1 Allen, 132. 
UK) Mass. -218. 
12.1 Mass. 307, 
311. 

136 Mass. 297. 
145 Mass. 522. 



ministrator and of such other parties interested as appear upon the 
filing of the account. If the parties do not agree on the amount to 
be allowed, it shall be determined by three disinterested persons, 
who shall be appointed by the }jrobate court and whose award, 
when accepted by the court, shall be final. 149 Mass. 262. 



Mortj;ag:e of 
real property 
to be personal 
assets. 
1786, 5, § 1. 
1788, .'Jl, 5 1. 
R. S. 6.5, § 11. 
G. S. 96, § 9. 
P. S. 13.S, § 6. 
16 Mass. 18. 
14 Pick. 399. 
8 Cusll. 225. 
11 Cusb. 147. 



Section 7. If a mortgagee of real property, or an assignee of 
such mortgagee, dies without having foreclosed the right of re- 
demption, the moi'tgaged property and the debt secured thereby 
shall be personal assets in the hands of his executor or adminis- 
trator, and shall be administered and accounted for as such ; and 
the executor or admini.strator shall have the .same rights of entry 
and of action under said mortgage as the mortgagee or his as.signee. 



3 Gray, 504. 



10 Allen, 430. 



108 Mass. 379. 



138 Maes. -284. 



In <'a9e of 
redemption, 
executor, etc., 
to release. 
1786, .'i, §§ 2, 4. 
1788, .il, §§ 2, 4. 
R. S. 65, § 1-2. 
G. S. 96, § 10. 
P. S. 133, § 7. 



Section 8. Upon the redemption of such mortgage the money 1 

paid thereon .shall be received by the executor or administrator, and 2 

he shall thereupon release and discharge the mortgage ; and until 8 

such redemption the executor or administrator, if possession has 4 

been taken either by him.self or by the deceased, .shall be seised of .t 

the mortgaged property in trust for the persons who would be en- (5 

titled to the money if the property had been redeemed. 7 



Land taken 
on execution 
by executor, 
et<"., to be per. 
sonal assets. 
1786, 5, § 3. 
178S, 51, § 3. 
R. S. 65, § 13. 
G. S. 06, § 11. 
P. S. 1,33, § &. 
4 Mass. 698. 
17 Pick. 477. 
3 Gray, 304. 



Section 9. If an executor or admin i.stra tor recovers judgment 1 

for a debt due to the deceased, and levies the execution on real 2 

propertAS he shall be seised of such real property in trust for the o 

persons who would have been <»ntitled to the money if the judgment 4 

had been satisfied in money; and the estate so taken on execution .'") 

shall be considered as personal as.sets in his hands ; and if redeemed, (i 

the money shall be received by the executor or administrator, who 7 

shall thereupon release the estate. 8 



How mort- 
gajres lield by 
executor, etc., 
mav be sold. 
1786, 5, § 3. 
1788,51, §3. 
R. S. 65, § 14. 
1849, 47. 
1851, -288. 



Section 10. Real property which is held by an executor or ad- 
min isti-ator in mortgage, or taken on execution by him, may, at any 
time Ix'fore the right of redemption is foreclo.sed, be sold subject to 
such right, in the same manner as jiersonal ])roperty of a person 
deceased ; and after such right has Ijcen foreclosed, it may be sold 



1 
2 

3 
4 

5 



Chap. 150.] accounts and settlements of executors, etc. 1341 

ti ill the same manner as real property of which the deceased died Q"|'"g ccjg 

7 seised. p. S. ISS, §9. nPUk. 477. 1-2 Met. 421. OAIlen, 77. 13; 98, §5. 

1 Pick. 81. 10 Met. 403. 3 Gray, .'i02. 

1 Section 11. If land so held by an executor or administrator in How disposed 

2 mortgage or on execution is not redeemed or sold as before pro- vie!^Xs^^^' 

3 videcl, it .shall be assigned and distributed to the .same persons and r.*|'. ^5,1%. 

4 in the same ])roportions as if it had been part of the j)ersonal property p'|'i|j\^f|j 

5 of the deceased ; and if upon such distribution the property comes 
(i to two or more persons, the probate court ma}' cause partition 

7 thereof to be made between them, in like manner as if it had been 

8 real property held by the deceased in his lifetime. 

1 Section 12. A reasonable amount expended for a burial lot and burLHi tonmd'^ 

2 a monument may be allowed bv the court as iiart of the funeral ex- "louumeut. 

. *^ . " 1 1 1S7S, 228. 

3 pen.ses ot a testator or intestate and the court ma}' at an}' time, p. s. i44, §6. 

4 upon petition of an executor or administrator, after notice, deter- 139 Mass. 304. 

5 mine the amount which may be expended. 167 Mass. 307, 577. loaMass. ise. 

1 Section 13. An executor or administrator may pay to a cem- cost of per. 

2 etery corporation or to a city or town which has a burial place isSl^si^l"^''' 

3 therein a reasonable amount for the perpetual care of the lot in 

4 which the body of his testate or intestate is buried. The jirobate 

5 court shall determine, after notice, to whom the same shall be paid 

6 and the amount thereof, and such amount shall be allowed to the 

7 executor or administrator in his final account. 

1 Section 14. An executor, admini.strator, guardian or trustee compensation 

2 shall be allowed his reasonable expenses incurred in the execution otexet'i'torr 

3 of his trust, and shall have such compensation for his services as Tg'.f^l!'^*' 

4 the coiu't in which his accounts are settled may allow. (fs ss'sio- 

p. S. 144, § 7. 101 Mass. .W2. 121 IMass. 220. 130 Mass. 262. 109, § 3l'. 

19 Pick. 473. 109 Mass. 2.i2, 541. 125 Slags. 307. 140 Mass. 373. 

6 Allen, 491. 117 Mass. 41. 128 Mass. 140. 149 Mass. 375. 

1 Section lr>. IMoncy paid with the approval of the judge of pru'/.^fng^ 

2 probate to a coriioration duly oraanized or authorized to act in this surety ciiaree- 

„ II- •■ 'i ,• 1 !• • 1 • • able ou estate. 

3 commonwealth in guaranteeing the hdelity ui i)ersons and m acting is*<o, 233. 

4 as surety on bonds, or to any j)erson for acting as surety on any 

5 official bond given to such probate court, may be allowed as a charge 

6 against the estate. 

1 Section IG. If an executor or administrator, after being duly Executor, etc., 

2 cited by the jirobate coiu't, neglects to render an account of his ad- neViectto 

3 mini.stration, his lx>nd may be })ut in suit as provided in the preced- R.'s^CT.'gg. 

4 iiig cliajiter : and if he persists in .such neglect, judgment shall be pfiliVs' 

5 renderc^d against him, and he shall be liable in like manner and to 
(5 the same extent as an executor in his OMn ^VTong. 

1 Section 17. If an account of an executor, administrator or openinprof set. 

2 trustee is settled in the absence of a person adversely interested and R!'s."ti7,"|"iof' 

3 without notice to him, it maybe opened upon his application at any is'v^,',^'.^^^' 

4 time within six months after such settlement. Ujion the settlement ^pf,'.k^'.^^' 

5 of an account, all former accounts of the same accountant maybe so ^oi'ick-sio. 

. . 1 . , 1 • 1 • . <) Met. 194. 

b tar opened as to correct a niistukc or error therein ; but a matter in 98Mass. 4«2. 



1342 



ACCOUNTS AND SETTLEMENTS OF EXECUTORS, ETC.. [('lIAT. l')(» 



109 Mais! ^i'. dispute, which has been prcviou.sl}' lieard and deterniincd by the 7 



134 Mass' i2o' "-'o^rt, shall not without leave of the court be again brought in ques- 
U4 Mass. 415, tion by any of the parties to such dispute. us Mass. 434. 



Distribution. 



Section 19. If the estate of a deceased person is to be dis- 
tributed in whole or in part, the probate court, upon the petition 
of any person interested, after such notice as it may order, may 
order the executor or administrator to convert the personal prop- 
erty, into cash and to distribute it among the persons entitled 
thereto. 



Section 20. If an executor, administrator, guardian or trustee 



G. S. 101, §7 
P. S. 144, § 12, 



Section 18. Probate courts may allow the account of two or 1 
more joint executors, administrators, guardians or trustees, upon 2 
the oath of one of them. r. s. 70, §31; 79, §33. g. s. ioi,§f;. p. s. 144, §11. 8 



1 
•> 

4 
5 



Final dis- 
charge of exec- 

r'°s! 7o?'§ 32. Ji^'^ P^id or delivered over to the persons entitled thereto the money 
or other property in his hands, as required by a decree of a pro- 
bate court, he may perpetuate the evidence thei-eof by presenting 
to said court, within one year after the decree is made, an account 
of such payments or of the delivery over of such property ; which 
account being ])roved to the satisfaction of the court, and veri- 
fied by the oath of the accountant, shall be allowed as his final 
discharge and ordered to be recorded. Such discharge shall forever 
exonerate the accountant and his sureties from all liability under 10 
such decree unless his account is hnpeached for fraud or manifest 1 1 
error. 12 



i89™303.'^^'*'^^'' Section 21. If without an order of coiu't an administrator pays 1 

or delivers to a widow, husband or other person any money or other 2 

property in his hands, and thereafter renders an account upon oath 3 

with a full and detailed statement thereof, and after notice it appears 4 

that the persons to whom such money has been paid or property 5 

delivered would have been entitled to an order of coiu't for such 6 

payment or delivery and that such account ought to be allowed, 7 

the probate court may make a decree, which shall have the same 8 

efl'ect to discharge and exonerate the accountant and his sureties 9 

from further liability as if such payment or delivery had been made 10 

under a previous order of the probate court. 11 



Appointment 
of next friend 
for persons un- 
born, ete^ on 
settlement of 
jiccounts. 
1877, VM,^ 1,2. 
1879, im, §§ 1, 2. 
P. S. 144, § 13. 
1889, 4(16. 
1895, 288. 
136 Mass. 67. 



Section 22. If an account has Vieen filed in the probate court 1 

and if the court finds that the items of said account should be 2 

finally determined and adjudicated, or if the accountant after two 3 

years from a former adjudication or from his appointment desires 4 

such determination and adjudication, notice of such projjosed action 5 

on such account shall be given to all parties as it may order. If the (i 

interest of a person unborn, unascertained, or legally incompetent 7 

to act in his own behalf, is not represented excejit by the ac- 8 

countant, the court shall apjioint a competent and disinterested 9 

person to act as guardian ad litem or next friend for sucli person, 10 

and to represent his interest in the case. The person so appointed 11 

shall make oath to ))erform his duty fiiithfully and imi)artially, and 12 

shall be entitled to such reasonable compensation for his services 13 

as the court allows, 14 



Chap. 150.] accounts and settlements of executors, etc. 1343 

1 Section 23. If money which a decree of a probate court has unclaimed 

2 ordered to be paid over remains for six months luiclainied, the ex- del'ifsned in 

3 editor, administrator, guardian or trustee, Avho was ordered to paj- ^^^'"s* '^•''"''' 

4 over tiie same, may deposit it in a savings banlc or other like ^. *. to, §§ 33, 

5 institution, or invest it in bank stock or other stocks, as the pro- p|}lj]'|% 

6 bate court orders, to accumulate for the benefit of the person entitled issiiass. u. 

7 thereto. Such deposit or investment shall be made in the name of 

8 the judge of probate for the time being, and shall bo subject to the 

9 order of the judge and of his successors in otKce as hereinafter pro- 

10 vided. The person who makes such deposit or investment shall 

11 file in the probate court a memorandum thereof, with the original 

12 certificates or other evidences of title thereto, which shall be allowed 

13 as a sutBcient voucher for such payment. When the person entitled 

14 to the mone}' deposited satisfies the judge of his right to receive 

15 it, the judge shall cause it to be paid over and transferred to him. 

1 Section 24. If the residence of a legatee under the provisions Deposit of 

2 of a will which has been duly pi'oved or of a person entitled to a of unknown ' 

3 portion of a trust fund under an order of distribution provided by isfs.'sTe. 

4 section twenty of chapter one hundred and forty-seven is unknown J^s'eff'ga. 

5 or if he is a minor without a legal guardian, the court may, if satis- i*5 Mass. 517. 

6 fied of such fact, order that the Icgac}' or the share of the trust fund 

7 due to him be deposited or invested as provided in and subject to 

8 the provisions of the preceding section . 

1 Section 25. If an executor, administrator, guardian or trustee —of other 

2 has mone}' which he considers it advisable to deposit in a savings bank 1899, 90. 

3 in the name of the judge of probate for the benefit of such person, he 

4 may ajipl^' to the probate court by which he was appointed for leave 

5 so to do, and the court may in its discretion, without notice, direct 

6 such money so to be deposited. When the deposit is made the 

7 deposit book of the bank shall be filed in said court. When the per- 

8 son entitled to such money satisfies the court of his right to receive 

9 it, the court shall by decree direct it to be transferred to him. 

1 Section 26. The probate court may, upon the petition of any rinai disposi- 

2 person interested and after public notice, order all money or the posits. 

3 proceeds thereof deposited or invested by its authority and which ^^' **'^' ^ '' 

4 shall have remained unclaimed for twenty years from the date of 

5 such deposit or investment to be paid to the residuarj^ legatee, if 
t) any, of the testator to whose estate the monej^ belonged, or, if such 

7 residuary legatee is dead, to his heirs who are living at the time of 

8 such distribution ; and if no such residuaiy legatee or any of his 

9 heirs be then living, or if the deceased person died intestate, said 

10 monej' and the proceeds thereof shall be disposed of and distrib- 

11 uted among the persons who are entitled thereto and in the man- 

12 ner provided by chapter one hundred and forty. The court shall 

13 first require from the pei-son or persons to whom such money shall 

14 be ordered to be paid, a sufficient bond of indemnity with two suffi- 

15 cient sureties to be approved by him, with condition to i-epay to 
1(5 the person or persons for M'hose benefit such deposit or investment 

17 was originally made or to the personal representati\es of such per- 

18 son or persons, all mone}' paid over by the order of the court under 

19 the provisions of this section. 



V)U 



ACCOUNTS AND SETTLEMENTS OF EXECUTORS, ETC. [ChAP. 150. 



I f licnefidarieB 
live out of oom- 
nionwcalth 
courts ni:iy 
order trust 
funtl itaUi over 
to trust JL' in 
anotlier state. 
187a, ITtJ, § 1. 
P. S. 144, § 17. 



Same subject. 
1879, 17lj, « -2. 
P. S. 144, § 18. 



Section 27. If all living parties who are interested as bene- 1 

fieiaries in a trust created b\' a will which i.s proved and allowed in 2 

this ooumionwealth reside out of this commonwealth, the probate 3 

court Avliich has juri.sdiction of the trust ma\', upon petition of the 4 

parties in interest, or of the executor, administrator or trustee, if it 5 

considers it just and expedient, authorize the executor, adminis- (> 

trator or trustee to pay over the fund to a trustee appointed b}- the 7 

proper court in any other state or country, if all the beneficiaries 8 

who are living and the executor, administrator or trustee signity '• 

their consent, and the court is satisfied that the laws of such other 10 

state or country secure the due performance of said trust: and upon 11 

such payment, shown to the satisfaction of said probate court, the 12 

executor, administrator or trustee appointed here may be dis- 13 

charged from further responsibility by decree of said court. 14 

Section 28. If there arc contingent interests in such trust fund, 1 

whether the persons who may be entitled thereto are in being or 2 

not, or if any of the beneficiaries are minors, the court, before 3 

making an order or decree, shall cause such interests and minors to 4 

be jiroperly represented by guardians ad litem or otherwise at its 5 

discretion. 'i 



Settlements by 
receivers. 
181)7, 400. 
171 JIass. 2-2. 
170 Mass. 283. 



Section 29. The following claims shall, in the settlement of 1 

estates by receivers, be entitled to priority in the order named : 2 

First, Debts due to the United States or debts due to. or taxes 3 

assessed b}', this commonwealth or a county, city or town herein. 4 

Second, Wages to an amount of not more than one hundred dol- ^ 

lars due to an operative, clerk or servant for labor, either pertormcd (i 

within one year last preceding the appointment of the receiver or 7 

for the payment for which a suit, which was commenced within one 8 

year after the performance of the labor, is pending or was termi- 9 

nated within one year after said appointment. 10 

Third, Debts to an amount of not more than fifty dollars due to 11 

physicians for medical attendance on the debtor or his funnily, which 12 

weVe rendered within six months prior to said appointment. 13 



TITLE III. 

OF THE DOMESTIC RELATIONS. 

Chapter 151. — Of Marriage. 

Chapter 152. — Of Divorce. 

Chapter 153. — Of Certain Rights and Liabilities of Husband and Wife. 

Chapter 154. — Of the Adojjtion of Children and Change of Names. 

Chapter 155. — Of Masters, Apprentices and Servants. 



CHAPTEK 151. 

OF MARRIAGE. 

Sections 1-11. — Certain Marriages Prohibited . 

Sections 12-15. — Legitimacy and Care of Issue of Void Marriages. 

Sections 16-29. — Notice of Intention of Marriage. 

Sections 30—36. — Solemnization of Marriage. 

Sections 37-31). — Evidence of Marriage. 

Sections 40—14. — Penalties. 

CERTAIN MARRIAGES PROHIBITED. 

1 Section 1 . No man shall marry his mother, grandmother, daugh- Mamage be- 

2 ter, granddaughter, sister, stepmother, grandfather's M'ife, son's SatiliSis'ino! 

3 wife, grandson's wife, wife's mother, wife's grandmother, wife's c.'L'."i(i2 §5 

4 dauiihter, wife's granddaughter, brother's daughter, sister's daugh- !--!?i.'„-vV' 

5 ter, lather's sister or mother's sister. g. s. loe, § 1. p. s. 145, § 1. R- s. tb, § i. 

1 Section i. No woman shall marry her father, grandfather, son, same subject. 

2 grandson, brother, stepfatlier, grandmother's husband, daughter's R.'^l.Ts.l-i. 

3 husband, gTanddaughter's husband, husband's father, husband's p'f'/ll^'l.f 

4 grandfather, husband's son, husband's grandson, brother's son, lOMet. *5i. 
f) sister's son, father's brother or mother's brother. 

1 Section 3. The prohibition of the two preceding sections shall r*s|'75"§'3''*" 

2 continue notwithstanding the dissolution, by death or divorce, of p|J^'|i- 

3 the marriage by which the afBnity was created, unless the divorce 

4 was granted because such maiTiage was originally unlawful or void. 

1 Section 4. A marriage contracted while either party thereto has Polygamy for- 

-vrt ^ ..-1.^.. bictaeu. 

z a lormer wife or husband living, except as provided in section six nsf, «, § 2. 
3 and in chapter one hundred and fifty-two, shall be void. r.s. 75, §*. 

p. S. 145, § 4. 113 Mass. 458. 170 Mass. 150. 171 Mass. 560. *"■ ^' ^°^' ^ *' 

[ 1345 ] 



1346 



MARRIAGE. 



[Chap. 151. 



Insane persons 

incapable of 

marrying. 

R. S. 75, §5. 

1843,5. 

1845, -222. 

G. S. lUli, §5; 

107, § 2. 



Section 5. An insane person or an idiot shall not be capable 1 

of contracting marriage. The validity of a nian-iage .shall not be 2 

questioned by reason of the insanity or idiocy of either part}' in the 3 

trial of a collateral issue, but shall be raised only in a process in- 4 

stituted in the lifetime of both parties to test such validity. 5 



p. S. 145, §§ 5, 9. 



12 Mass. 3G3. 



4 Pick. 32. 



4 Allen, 458. 



Marriage dur- 
ing existence 
of t'ornierniar- 
riage valid, 
when. 

1895, 427. 

1896, 4i)l). 

170 Mass. 150. 

171 Mass. 560. 



Section G. If a person, during the lifetime of a husband or wife 1 

with whom the marriage is in force, enters into a subsequent mar- 2 

riage contract with due legal ceremony and the parties thereto live 8 

together thereafter as .husband and wife, and such subsequent mar- 4 

riage contract was entered into by one of the parties in good faith, 5 

in the full belief that the former husband or wife was dead, that the (> 

former marriage had been annulled by a divorce, or without knowl- 7 

edge of such former marriage, they shall, after the impediment to S 

their marriage has been removed by the death or divorce of the other 9 

party to the former marriage, if they continue to live together as 10 

husband and wife in good faith on tlie part of one of them, be held 11 

to have been legally married fi-om and after the removal of such 12 

mipediment, and the issue of such subsequent marriage shall be con- 13 

sidered as the legitimate issue of both parents. 14 



Minors not to 
be married 
without con- 
sent ol parents, 
etc. 

1602-3, 25, § 1. 
1605-6, 2, § 4. 
1786, 3, § 3. 
1834, 177, § 2. 
R. S. 75, § 15. 
G. S. 106, § U. 



Section 7. A magistrate or minister shall not solemnize a mar- 
riage if he has reasonable cause to believe that the male is under the 
age of twenty-one years or the female is under the age of eighteen 
3'ears, except with the consent of the parent or guardian having the 
custody of the minor, if there is any such parent or guardian in this 
commonwealth competent to act. p. s. us, §6. i2T;Ma88. 468. 



2 
•^ 
4 

."> 

(> 



Marriages 
void without 
decree, when. 
1605-6, 2, § 1. 
1785, 60, § 2. 
R. S. 76, § 1. 
G. S. 107, § 1. 
P. S. 145, § 7. 



Section 8. A marriage solemnized within this commonwealth 
which is prohibited b}' reason of con.sanguinity or affinity between 
the parties, or of either of them having a former witb or husband 
living, shall be void without a decree of divorce or other legal 
process. 



1 
2 

3 
4 
;") 



miuwrvoid Section 9. A marriage solemnized when either party is under 1 

alter scpara- i\^q age of conscut shall be void without a decree of divorce or other 2 

tion,et<'. o , 

R. s. 76^§2. legal process if the parties separate during such nonage and do not 3 

p.' s.' 146,' § 8.' afterward cohabit. i Gray, no. 4 



void, when. 
R. S. 7S, § 6. 



Section 10. 



- foreign, 
1, whe 

, < „„■«,■ the parties, both beinjr resident here and intending to retmni and 



A marriage shall be void in this commonwealth if 



p. s. uo,§ 10. reside here, in order to evade any of the i)rovisions of the fir.st live 

157 Mass. 73. , *■ i • i • i i i 

170 Mass. 150. scctioiis ot this cliaijtcr SO into another state or country and there 

171 Mass. 660. 1 ,, . . i^-i ^ J. j -ji 

have their maiTiage solemnized, and return and reside here. 



1 
•> 

• > 
4 
.5 



.d'v'd"'my"r Section 11. If the validity of a marriage is doubted, either 
marriage i)artv mav file a libel for annulliiifr such marriage, or if it is denied 

Iv. .S. ill, SS '•» 4. * * . . ~ , 

1846,107. or doiil)ted by cither party, the other party ma\' file a libel for 

g! s'. 107, §§ 4, ,5. affirming the marriage. Such libel shall be filed in the same nian- 
i8mIi'36.''' " n(>r as a libel for divorce, and all the provisions of chapter one 
114 Aiass. 663, iii„„|,.,.(i a,id fifty-two rektivc to libels for divorce sliall, so far as 
156 Mass! 578! api)ropriate, apply to libels under the provisions of this section. 
161 Mass. 115. Upon proof of the validity or nullity of the marriage, it shall hv 



ClIAl'. 151.] MARRIAGE. 13J:7 

9 afSrnied or declared void by a decree of the court, and such decree ni Mass. 404. 

10 ot" nullity may be made although the marriage was .solemnized out of sss. ""^ °'' 

11 the connuon wealth, if at that time and also when the libel was filed 

12 the libellant had his domicil in the commonwealth or has resided in 

13 this commonwealth foi' five years last preceding the filing of said 

14 libel, unless the court finds that he has removed into this coninion- 

15 wealth for the purpose of obtaining said decree. 

LEGITIMACY AND CARE OF ISSUE OF VOID MARRIAGES. 

1 Section 12. The issue of a marriage which is declared void b}' issue (if void 

2 reason of consanguinity or affinity between the parties shall be megiti'iiKite. 

3 illegitimate. r. s. 76, §21. g. s. 107, §28. p. s. u.i, § 12. 

1 Section 13. The issue of a marriage which is declared void by — of marriage 

2 reason of the nonage, insanity or idiocy of either paity shall be the of nonage," "" 

3 legitimate issue of the parent who was capable of contracting the R.^s."7h\'§^2l' 

4 marriage. p. s. 145, §13. g. s. 107, §29. 

1 Section 14. If a nuirriage is declared void bv reason of a prior — of marri.ige 

2 marriage of either party, and it appears that the second marriage of prior '^'' " 

3 was contracted in good faith and with the full belief of the paii^ies R%""if!')i -23. 

4 that the former husband or wife was dead, that fact shall be stated p; I; us; | ?4; 

5 in the decree, and the issue of the second marriaire, born or begotten UcAlilf!-^- 

6 before the commencement of the suit, shall be the legitimate issue 

7 of the parent capable of contracting the marriage. 

1 Section 15. Upon or after a decree of nullity, the court shall Ji.na'„"."'J,"''"''°" 

2 have similar power to make orders relative to the care, custodv "^^hiidren of 

o !• ft . I'll ,'1 . 1 ^'*^^*^ marriage. 

6 and maintenance of the minor children of the parties as upon a de- 1820, sh, §1. 

. ,. ] . ' ' R. S. 76, § 26. 

4 cree or divorce. g. s. 107, § 33. p. s. us, § 15. 



notice of intention of marriage. 

1 Section 1(>. Persons who intend to be joined in marriage in this Notice of mten 

2 commonwealth shall before their marriage cause notice of their in- riage''to"i« 

3 tention to be entered in the office of the clerk or registrar of the city c° L^'iui, 5 2. 

4 or town in which they respectiveh' dwell, or, if they do not dwell }727l8'ii**' 

5 within the commonwealth, in the office of the clerk or registrar of J^o^fJi., 
() the city or town in which they propose to have the marriage solem- r. .s. 75','§ 7.' 
( nized. G. s. 106, §7. 1867, ss, §1. p. s. 145, §iu. 

1 Section 17. The clerk or registrar may require notice of inten- —form of. 

2 tion of marriage to be given to him in writing, on blanks to be i'^^*' *"^' § i- 

3 furnished by him, by one of the parties to such intended marriage, 

4 or by his or her parent or legal guardian, and may require the 

5 pai'ty who gives such notice to make oath before him to the truth 

6 of all the statements therein, M'hereof he or she could have knowl- 

7 edge. No fee shall be charged for administering such oath. 

1 Section 18. The clerk or registrar shall not be required to — wiiereand 

2 recei\e notices of intention of marriage on the Lord's day nor on receivable. 

3 legal holidays nor at any place except his office. ' '" 



1348 



MARRIAGE. 



[Chai'. 151. 



Section 19. 



The clerk or registrar shall not, except as provided 1 

2 
cerbiin niVnors. riagc of aiiv iiialc Under the age of eighteen years, nor of any female 3 

1894,401, §1. ? .1 -• • . * . ' J 

under tlie age oi sixteen j'cars. 4 



Notice ot In 

tention of mar- »^*-ivvxiv^i-» ^i-. j,*^^^ ^■v.i.*. wi^xv^^ ^ , . , 

riaKcnotru. jn the following scctiou, receive a notice of the intention of mar 

ceivjible irom ~ 



Marriage of 
minors, liow 
authorized. 
1SB4, 401, § 2. 
1S9SI, 197. 



Section 20. The judge of probate for the county in which a 
minor under the age specified in the preceding section resides may, 
after a hearing, make an order allowing the marriage of such minor, 
if the father of such minor or, if he is not living, the mother or, if 
neither parent is alive and resident in this commomvealth, a legal 
guardian duly appointed has consented to such order. Said judge 
of probate may also after a hearing make such order in the case 
of a person whose age is alleged to exceed that specified in the ])X'e- 
ceding section, but who is unable to j)roduce an official record of 
birth, whereby the I'casonablc doubt of the clerk or registrar, as 
exercised under the provisions of section twenty-eight, may l>e re- 
moved. Upon the receipt of a certified copy of such order by 
the clerk or registi'ar of the city or toAvn in which such minor 
resides, he shall receive the notice required by law and issue a 
certificate as in other cases. 



1 

2 
3 
4 
5 
6 
7 
8 
;» 

10 
11 
12 
18 
14 
15 



Notion of in- 
tention not to 
be given with- 
out eonBcnt of 
parties. 
1S94, 40'.>, § H. 



Cancellation of 
notice of in- 
tention. 
IH'M, 409, § 7. 



Section 21. Whocvei', without the consent of both parties to 1 

an intended marriage, orives the notice of their intention of marriaire 2 

which is required hy law shall be liable in damages to eitlier of such 3 

parties whose name was so used without such consent. The .superior 4 

court may, upon petition of either pailv who is alleged to intend 5 

marriage in a notice of intention of marriage given without the con- (5 

sent of both jxirties, and which is not followed by their inter- 7 

marriage, after notice and a hearing, order that such notice of 8 

intention of marriage be cancelled in the records of the city or town 9 

in which it was recorded. 10 



Notice of in- 
tention of 
marriage of 
adoptetl per- 
sons. 
18U7, 424, § 4. 



Section 22. A part}'^ to an intended marriage who has been 1 

legally adopted shall, upon the notice of intention of such marriage, 2 

give the names of his or her parents by adoption ; and the names of 3 

his or her parents may also be added. The consent of a parent 4 

by adoption to the marriage of a minor shall be sufficient if the 5 

consent of a parent of a minor is required hy law as a preliminaiy (J 

to marriage. If the natural parents of a minor have been divorced 7 

and the consent of one of them is required by law, preliminary to 8 

the marriage of such minor, tlie consent of the parent who has the !• 

custody of such minor shall be sufficient. 10 



Certifleate of 
Intention of 
marriage. 
1727-8, 7l. 
K.-iii, 3, § 3. 
\XU, 177, § 2. 
I{. S. 75, § il. 
\mt, 121, § i. 

a. a. lot), § 8. 

1S67, 68, § 1. 
p. S. 146, § 17. 



Section 23. The clerk or registrar shall deliver to the parties 1 

a certificate signed by him, specifying the time when notice of the 2 

intention of mairiagc was entered ^vith him and all facts relativt^ 3 

to the marriage which are required by law to be ascertained and 4 

recorded, except those relative to the person by whom the marriage 5 

is to be solemnized. Such certificate shall be delivered to the min- 6 

ister or magistrate before M'hom the marriage is to be contracted, 7 

before he proceeds to solemnize the same. 8 



iTrtiS'i't'u'o/ Section 24. No alteration or erasure shall be made by any 
intention pro- pcrsou ou such Certificate, until it has been returned to the posscs- 

18U7, 424, § 1. 



Chap, lol.] marriage. 1349 

3 sion of such clerk or registrar, and then onh' in such form and to 

4 such extent as said clerk or registrar may prescribe. Anj' such cer- 

5 tificate may be recorded after correction in accordance herewith. 

1 Section 25. If the clerk or registrar issues such certificate to a Penalty for 

2 male under the age of twenty-one years, or to a female under the iate'to'wmin" 

3 age of eighteen years, when he has reasonable cause to believe the J^^^sss § i 

4 person to be under such age, except upon the application or con- ps'J"^'!!; 
.5 sent in writing of the parent, master or guardian of such person, 

(i he shall forfeit not more than one hundred dollars ; but if there is 

7 no parent, master or guardian in this conunonwealth competent to 

8 act, a certificate may be issued without such application or consent. 

1 Section 26. If it is necessary to give notice in two cities or Duplicate 

2 towns of the intention of marriage of a minor, the clerk or registrar the' o1 huen. 

3 who first takes the consent of the jjarent or guardian shall take it in *vheu'"""°™' 

4 duplicate, retaining one copy and delivering the other duly attested iss*. 409, §4. 

5 by him to the person who obtains the certificate, to be given to the 

6 clerk or registi-ar issuing the second certificate ; and no fee shall be 

7 charged for such consent or copy. 

1 Section 27. The clerk or registrar may require of an applicant Affidavit of 

2 for such certificate an affidavit setting forth the age of the parties, ims, 335, § 2. 

3 Such affidavit shall be sworn to before a justice of the peace, and p.' s.' uf,' | is.' 

4 shall he sufficient proof of age to authorize the issuing of the 

5 certificate. 

1 Section 28. The clerk or registrar ma}' refuse to issue a cer- Refusal of c<>r> 

2 tificate if he has reasonable cause to believe that an_v of the state- isSif io9r§ 2^°' 

3 ments contained in the notice of intention of marriage are incorrect ; 

4 but he may, in his discretion, accept depositions under oath, made 

5 before him, which shall be sufficient proof of the facts therein stated 

6 to authorize the issuing of a certificate. He may also dispense with 

7 the statement of any facts requu'ed by law to be given in a notice of 

8 intention of marriage, if they do not relate to or aflect the identifi- 

9 cation or age of the parties, if he is satisfied that the same cannot 
10 with reasonable effiort be obtained. 

1 Section 29. If a marriage is solemnized in another state be- citizens mar- 

2 tween parties living in this coinmonM'ealth, who return to dwell ro,nmomvoaiti, 

3 here, they shall, within seven da^'s after their return, file with the 'a^'here'"'' 

4 clerk or registrar of the city or town in which either of them lived J?^- ^f^ s^^,-., 

5 at the time of their marriage a certificate or declaration of their mar- p- s.' 145,' § -ii.' 

6 riage, including the facts relative to maiTiages which are required 

7 by law, and for neglect thereof shall forfeit ten dollars. 



solemnization of marriage. 

1 Section 30. A marriage may be solemnized in any place within solemnization 

2 this commonwealth b}' a minister of the gospel, ordained according "■. i'.%™f 5. 

3 to the usage of his denomination, who resides in this commonwealth Joilrllivi^^jl'' 

4 and continues to perforin the functions of his office ; by a rabbi of Iti'IIs^'oJ!'' ^ ^' 

5 the Israelitish faith, duly licensed by a congregation of said faith .]"--3' ^i- §§ i- 



1350 MARRIAGE. [ChAP. 151. 

1786, 3. §§1,2,8. established in this commonwealtli, who has iiled with the clerk or 6 

\fm. If.' registrar of the citj^ or town in which he resides a certificate of the 7 

{^•yj_'||i^_^- establisluuent of the synagogue, the date of his appointment thereto 8 

iko i>i §fl ' ^"*^ ^^ *^® *^"" ^* ^'* engagement; by a justice of the peace if he 5) 

G. s. r«i, §§ 14, is also clerli or assistant clerk of a city or town, or a registrar or assist- 10 

1S67, 68, §2. ant re<ristrar, in the city or town in which he holds such office, or if 11 

■si ' he is also clerk or assistant clerk of a court, in the city or town in 1 2 

i8a4;409;|5! which the court is authorized to be held, or if he has been desig- i:^ 

iIw'sstIIi.' nated as provided in the follo^\dng section and has received a cer- 14 

i27MaB?*459 tificate of designation and has ciualified thereunder, in the cit}- or 15 

[lou. A. G. town in which he resides ; and it may be solemnized among Friends Ifi 

or Quakers according to the usage of their societies ; but no jjcrson 1 7 

shall solemnize a marriage in this commonwealth unless he is able 18 

to read and wTite tlie English language. 19 

^8tif°8*oniie' Section 31. The governor maj'^ in his discretion designate a 1 

peiite to soiem- uistice of the peace in each city and town and such further mmiber, 2 

1899, 387, §§ 2, 3. not exceeding one for every five thousand inhabitants of a city or 3 

town, as he considers expedient, to solemnize marriages, and may 4 

for cause at any time revoke such designation. The secretary of 5 

the commonwealth shall, upon payment of five dollars to him by a (J 

justice of the peace so designated, issue to him a certificate of such 7 

designation. 8 

nSnK°ma?-^'"" SECTION 32. Evcry justicc of the peace, minister, rabbi and 1 

rijigeB to keep clerk Or keeper of the records of a meeting wherein marriages among 2 

recurtls and *■ . ~ o o 

make returns. Friends or Quakcrs are solemnized shall make and keep a record of 3 

iH'.fi-i, 25, §3. each marriage solemnized by him, or in such meeting, and of all facts 4 

i7ifci7,^il,S*3^' relative to the marriage which are required to be recorded b^- the 5 

1795'?!^^'''*' provisions of section one of chapter twenty-nine. He shall also, <> 

!v-Ji'?~ s« - o between the first and tenth davs of the month following each mar- 7 

R-s-75, §§17, i-iage solemnized by him, return each certificate issued under the 8 

iSitT iiH, § 3. provisions of section twentv-three to the clerk or registrar who 9 

G. S. 106, §§ IB, J J ., 1 -i- il" • 1 • 1 • -t in 

17. issued the same ; and 11 the marriage was solemnized 111 a city 10 

I881; ii?'§ 1. or town other than the place or places in Avhich the parties to the 1 1 

i8S7,'2itt,'§*3'!'' marriage resided, return a copy of the certificate, or of either certifi- 12 

1897' 424' §5 ^'^^^ if two were issued, to the clerk or registrar of the city or town 13 

in which the niarriage was solemnized. Eacli certificuti' and cojn' 14 

so retiu'ned shall contain a statement giving the jjlace and date of 15 

marriage, attested by the signature of the person who solemnized Ki 

the same or of said clerk or keeper of the records of a Friends or 17 

Quaker meeting. The person who solemnized the marriage shall 18 

add the title of the office by virtue of which the marriage was solem- 1!' 

nized, as "justice of the peace ", ' ' minister of the gosjjcl ", ' ' clergy- 20 

man", "priest" or "rabbi", and his residence. AH certificates or 21 

copies so returned shall be recorded by the clerk or registrar who 22 

receives them. AVhoever neglects to maki' the record and returns 23 

required by the provisions of this section shall for each neglect 24 

forfeit not less than twenty nor more than one hundred dollars. 25 

hii'iw-'feiTccr- SECTION 33. If a Certificate of marriage is found, u])on its re- 1 

tiiicatesot tuni to the clerk or registrar, to have heon incorrectlv filled out 2 

mamaKe. i i ■ i • i .^ i i i .> 

1897, 424, §2. b}' the person who solemnized a marriage under it, the clerk or .> 

registrar shall have it corrected and shall enforce the penalties, if 4 



Chat. 151.] marriage. 1351 

5 ail}', provided by law relative thereto. Such imperfect certificates 

6 .shall be recorded and indexed by the clerk or registrar. 

1 Section 34. A marriage M-hich is solemnized by a person who MamaKes 

2 professes to be a justice of the peace, a minister of the gospel or a hreguiariy^'' 

3 rabbi or which is solemnized among Friends or Quakers according i^i™-^^''^ 

4 to their usages shall not be void, nor shall the validity thereof be g- 1- {^^Hh 

5 in anj^ way affected by want of authority in such person or society, If**?.' '^'J "-^^ 

6 or b}" an omission or by informality in the manner of entering the i8!)3,'46i,'§2.'" 

7 intention of marriage, if the marriage is in other respects lawful and 127 Mass! 465! 

8 is consummated with a full belief of either of the persons so married ^^ *"'^®' ^" 

9 that they have been lawfully married. 

1 Section 3.5. Marriages which are solemnized in a foreign coun- Marriage by 

2 try by a consul or diplomatic agent of the United States shall be g.'s.^c«,'§ -23. 

3 valid in this commonwealth. p. s. 145, § 2s. 5 Alien, 257. 

1 Section 3(i. A city by ordinance and a town b}^ vote may Fees iiy nties 

2 authorize its clerk or registrar to pay on demand, in his office, pctsodI"^'" 

3 twenty-five cents to any person who has legally solemnized a mar- mtSlages.'^ 

4 riage in this commonwealth, after the receipt by such clerk or 1^®^' *'^*' § 3- 

5 registrar of the certificate in legal form of the solemnization of such 

6 marriage. A city or town which passes such ordinance or vote 

7 shall annually approjiriate the nione}' necessary therefor, and the 

8 clerk or registrar thereof shall file quarterly with the treasurer or 

9 other proper financial officer of said city or town proper vouchers 
10 for all payments so made by him. 



EVIDENCE OF jIARRIAGE. 

1 Section 37. The record of a marriage made and kept as pro- Record. 

2 vided by law b}^ the person l)y whom the marriage was solemnized, g! s! ioisf §'2i. 

3 or by the clerk or registrar of a city or town, or a copy of such loAiira'lKL' 

4 record duly certified, shall be prima facie evidence of such marriage. Jsejiass'P^' 

1 Section 38. A copy of the record of a marriage solenniized by certificate, 

2 ii consul or diplomatic agent of the United States or a certificate etc!'° ™"^"' 

3 from such consul or agent shall be prima facie evidence of such p'luf'flo' 
4 

1 Section 39. Marriage may be proved by evidence of an admis- Admissions 

2 sion thereof by an adverse party, by evidence of general repute or reijute,"!^.' 

3 of cohabitation of the parties as manned persons, or of any other 1^?;^! 

4 fact from which the fact may be inferred, g. s. loe, § 22. p. s. 145, § 31. 

3 Pick. 293. 5 Allen, 2.')7. 9n Mass. 444. 120 Mass. 387. 

14 Gray, 411. 10 Allen, ISIfi. 110 Mass. 314. 163 Mass. 453. 

penalties. 

1 Section 40. Whoever, not being duly authorized by the stat- Penalty tor 

' ,~ - . . * . Boleninlzmg 

2 utes of this commonwealth, undertakes to loin persons in marriage marriage with. 

„.,. 1,,!,, -iiii^i- i .,1 out authontv. 

3 in this commonwealth shall be punished by a tine ot not more than nss, 3, §5. 

4 five hundred dollars or by imprisonment for not more than one year, k. s. 75,'§ 20. 

5 or by both such fine and miprisonment. 

G. S. 106, § IH. P. S. 145, § 26. 1896, 306, § 2. 



1352 



Penalty 

for joining 
liL'i'soue iu 
niarriajre witli 
out ctrtifit-ate. 
111'J.T-C, i, § 4. 
1772-3, SI, § 3. 
17S«, 3 - - 



DIVORCE. 



[Chap. 152. 



Section 41. Whoever, being duly authorized to solemnize 
marriages in this eomuiomvealth, joins in marriage persons who have 
not complied with the stixtutcs relative to procuring ceitificates of 
notice of intention of marriage shall be punished b}- a fine of not 



is34;i77,§'§4,9. more than five hundred dollars 

G. S. 106, § 18. 1S67, 6S, § 3. 



R. S. 



P. S. 146, § 25. 



la, § 19. 

1896, 306, § 1. 



1 

2 

4 
5 



Section 42. Whoever makes an illegal alteration or erasure on 



— for ilU'Kal 

alteration of ^_^^v^iiv_'ii ^-^. . . ^xw. . ^a ^*.*.^-..-v-..^ t*.x .*.^^n 

(crtiiioitf of a certificate of intention of marriage shall be punished by a fine of 

intention. ,11111 

itiu7, 4-24, § 1. not more than one liundred dollars. 



^oCTt.n'inp'ro" SECTION 43. Whoever violates any of the provisions of sections 1 

^'s'o"f of this seven, seventeen, twenty-one or twenty-six shall, upon conviction 2 

1894,409,5 8. thereof within one year after such violation, be punished as pro- 3 

vided in section forty. 4 



— for false 

statement. 

1857, 34. 

G. S. 106, § 11. 

p. S. 145, § 20. 



Section 44. Whoever, when applying for the certificate de- 
scribed in section twenty-tliree, wilfully makes a false statement rel- 
ative to the age, residence, parent, master or guardian of either of 
the parties intending marriage shall forfeit not more than two hun- 
dred dollars. 



1 
2 

3 
4 
5 



CHAPTEE 152, 



OF DIVORCE. 



Sections 


1-5 


Sectioxs 


6-19 


Sectiox 


20 


Section 


21 


Section 


22 


Sections 


23,24 


Sections 


25-28 


Sections 


29-3-1 


Section 


35 


Sections 


36-il 


Sections 


42,43 



-Causes for Divorce. 
-Libels for Divorce. 

- Resumption of Former Name by Wife. 
-Right to Marry Again. 

- Effei't of Divorce on Legitimacy of Cliiklren. 

- Effect of Divorce on Rights to Property. 

- Care and Svipport of Children. 
-General Powers of Court. 
-Foreign Divorces. 

- Criminal Provisions. 
-Statistics of Divorce. 



CanseB for 

divorce. 

1785, (19, § 3. 

1810, 119. 

R. S. 76, §§ 5, 6. 

1838, 126, « 1. 

1857, 228, § 2. 

U. S. 107, §§ 6, 

7,9. 

1870, 404, § 2. 

1873, .371, 5§2,6. 

P. S. 146, § 1. 

1889, 447. 

I Mass. 240, 

346. 

4 Mass. .586. 

7 Mass. 471. 



CAUSES FOR DIVORCE. 

Section 1. A divorce from the bond of matrimony may be 1 

decreed for adultery, impotency, utter desertion continued for three 2 

consecutive years next jirior to the filing of the libel, gross and 3 

confirmed habits of intoxication caused by the voliintarv and ex- 4 

cessive use of intoxicating liquor, oiiium or other drugs, cruel and 5 

abusive ti-eatment or, on the libel of the wife, if the husband, t> 

being of sufficient ability, gi'ossly or wantonly and cruelly refuses 7 

or neglects to provide suitable maintenance for her. ^ 8 



7 Grav, 279. 
99 Jiass. 493. 
112 Mass. 29S. 
117 Mass. 202. 



126 Mass. 205. 
140 Mass. .528. 
142 Mass. 361. 
14;) Mass. .577. 



1.50 Mass. 111. 
154 Mass. .51.5. 
1.57 Mass. .506. 
159 Mass. 281. 



160 Mass. 216. 

lr.8 Mass. .50, 204, 486. 

171 Mass. 146. 

175 Mass. 7. 



g|™««!J^J««'- Section 2. A divorce may also be decreed if either party has 1 
i850,'i'oo',§i. been sentenced to confinement at hard labor for life or for five years 2 



Chap. 152.] , divorce. 1oo3 

3 or more in the state prison or in a iail or house of correction ; and, S- f • .^PJ' I ,?■ 
4 altera divoree lor such cause, no pardon m-anted to the party so 124 m;iss. '394. 

. 1111 i 1 . 1 • Y . 1 • , " 1"' Muss. 151. 

sentenced shall restore such party to his or her conjugal rights. itw Mass. 592. 

1 Section 3. A divorce may be decreed for anj^ of the causes Divorce after 

2 allowed by the provisions of the two preceding sections although a'preTunTpuln^ 

3 the libellee has been continuously absent for such time and under i^ifafj,'; 

4 such circumstances as would i-aise a presumption of death. 

113 Mass. 314. 147 Mass. 2S)4. 

1 Section 4. A divorce shall not, except as provided in the fol- -opbif 

, , . .. , . 1 •!• J, • f ,-1 , parties liave 

2 lowing section, be decreed it the parties have never hved together lived tufiether 

3 as husband and wife in this conimoinvealth ; nor for a cause which oc- wealth. 

4 curred in another .state or country, unless before such cause occurred, gVs'. Io't?!^"' 

5 the parties had lived together as husband and wife in this common- Js Malt'.' ill.' 

6 wealth, and one of them lived in this commonwealth at the time iil Maes' 43s" 

7 when the cause occurred. 135 Mass. 83. 143 Mass. 274. 

1 Section 5. If the libellant has lived in the commonwealth for Exception. 

2 live years last preceding tlie filing of the libel, or if the parties it's. "107, § u. 

3 were inhabitants of this commonwealth at the time of their marriage }?'^' \^^ . 5 

4 and the liViellant has lived in this commonwealth for three A'ears last ?.9™-^' 's'- 

5 preceding sucli filing, a divorce may be decreed for any cause isiMassisos! 

6 allowed by law, whether it occurred in this commonwealth or else- 

7 where, unless it appears that the libellant has removed into this 
>i commonwealth for the purpose of obtaining a divorce. 



libels for divorce. 

1 Section 6. Libels for divorce sliall be filed, heard and determined ^^m® .?/ \'^^'- 

2 in the superior court held for the county in which one of the parties I'ss, wj, §' 7. 

3 lives, except that, if the libellant has left the county in which the r.'s. 7b', §§ 7, 8. 

4 parties lived together and the libellee still lives therein, the libel g.^s. "iot; §§ 13, 

5 shall be heard and determined in the court held for that county. p.'s. ue, §6. 

1887, 332, § 1. HI Mass. 158. 150 Mass. 280. 

1 Section 7. The libel shall be signed bv the libellant, if of sound Libcitobe 

2 mind and of legal age to consent to marriage ; otherM'ise, it mav be Rs. 7(i, §12. 

~ ~ ~ ' ■■('Sill" KIR 

3 signed by the guardian of the libellant or by a person admitted by p.'s.'i46,'§7.' 

4 the court to prosecute the libel as his or her next Mend. 1 Met.^382.' 

8 Allen, 311. 139 Mass. 377. 

1 Section 8. The court or clerk may order the libellee to be Notice to 

2 summoned to appear and answer at the court having jurisdiction of iTssyeii,' § 8. 

3 the cause, by the publication of the libel or of the substance thereof, {I- s- w, §§ is- 

4 with the order thereon, in one or more newspapers which shall be «■ s. 107, §§ i9, 

5 designated in the order, or by delivering to the libellee an attested i**62, 90. 

o ^ ^ J ,0 1863 109 S 1 

6 copy of the libel and a summons, or m such other manner as it or p. s. ue, §§'9, 

7 he may require. If such order is made by the clerk, the court may 1890,370. 

8 order an additional notice. If the libellee does not appear and the lafjilfss. 191. 

9 court considers the notice defective or insutEcient, it may order 1^1 Mass. 432. 
10 further notice. 



]3oi 



DIVORCE. 



[Chap. 152. 



Who may 
eonteet. 
ISIK), 370. 
18U8, 487. 



■Section 9. A person with whom the libellee Ls alleged in a libel 1 
for divorce for adultery to have committed adultery may appear and 2 
contest the libel. 3 



Attachment 

of husband's 
propertv. 
1X55, 137", § 1. 
G. S. 107, § 50. 
ISiK, 14S, § 2. 
1". .S. 146, § 11. 
107 Mass. 4-28. 



Section 10. Upon a libel by a wife for a divorce for a cause 1 

which accrued after marriage, the real and personal property of the 2 

hu.sband ma^' be attached to .secure a .suitable support and main- 3 

tenance to her and to such children as may be committed to her care 4 

and custody. ISO Mass. 92. 163 Mass. 530. 5 



— how made. 

1S55, 137, §§ 2, 3, 

5. 

G. S. 107, ? .51. 

1S66, 14S, § 3. 

P. S. 146, § 1-2. 



Section 11. The attachment may be made upon the summons 1 

issued upon the libel, in the same manner as attachments are made 2 

upon writs in actions at law, for an amount which shall be expressed 3 

in the summons or order of notice. The attachment may be made 4 

by trustee process, in which case there shall be inserted in the sum- 5 

mons or order of notice a direction to attach the goods, effects and 6 

credits of the libellee in the hands of the alleged trustee, and service 7 

shall be made upon the trustee b}' eopy. If attachment is made 8 

by the trustee process, the libel shall be filed as provided in section 9 

six notwithstanding the provisions of section two of chapter one 10 

hundred and eighty-nine. The court may in such cases make all 11 

necessary orders to secure to the trustee his costs. 12 



Section 12. 



The laws relative to attachments of real or personal 1 

2 
laws are not inconsistent with the provisions of the two preceding 3 
sections. 4 



Same subject. 
18.55, 137, § 4. 

r' I' 146' 1 13' P^opert}^ shall apply to attachments herein provided for, so far as such 



Sslne'tibeuce. SECTION 13. If diu'ing the pendency of a libel the libellee be- 
B. s. 76^§i8. comes insane, the court shall appoint a suitable guardian to appear 



G. S. 107, § 21. 
P. S. 146, § 14. 
13 Gray, 264. . 

114 Mass. 379. an action at law may be appointed 



and answer in like manner as a guardian for an infant defendant in 



1 

2 
3 
4 



mraydurinK SECTION 14. The court may I'equire the husband to pa}' into 
pendency ot court for the use of the wife during the pendency of the libel an 
1851,82, §1. amount which may enable her to maintain or defend the libel, 
G. .s. ro7,V22. ■ although exceeding the taxable costs; and may require him to pay 
p. s. 146, §io. ^^ ji^p ^^,j^g alimony during the pendency of the libel. 

6 Gray, 341. 147 Mass. 159. 161 Mass. 111. 



1 

2 
3 
4 
5 



Protection of 
personal liber- 
ty of wife dur- 
ing pendency. 
1820, 56, § 1. ■ 



Section 15. The court sitting in any county mav, upon the 1 

petition of the wife, prohibit the husband from imposing any re- 2 

straint upon her personal liberty during the pendency of the libel. 3 

R. S. 76, § 24. G. S. 107, § 31. P. S. 110, § 16. 



Custody of 
cliUdreii dur- 
ing; pendency. 
\S-1U, 56, § 1. 
R. S. 76, § 2o. 
G. S. 107, § 32. 
P. S. 146, § 17. 



Section IH. The court may in like manner, upon the applica- 1 

tion of either party, make such order relative to the care and cus- 2 

tody of the minor children of the ))arties during the pendency of 3 

the libel as it may consider expedient and for the benefit of the 4 

children. 5 



«bci"and"o''r-"' Section 17. The court may, without entering a decree of di- 1 

ders'for tempo- vorcc, causc the Hbcl to be continued uiion the docket from time to 2 

rarv sei)ara- .,,. . ',, ,, „ 

tion, etc. time, and during such continuance may make orders and decrees o 



ChaI'. 152.] DIVORCE. 1355 

4 relative to a temporary separation of tlie parties, the separate 1881,234, §3. 

5 maintenance of the wife and the custody and support of minor ^'oMaBe'.lsl.' 

6 oliiidren. Such orders and decrees may be changed or annulled as 

7 the court may determine, and shall, while they are in force, super- 

8 sede any order or decree of the probate court under the provisions 
tl of section thuty-thi-ee of chapter one hundred and fifty-three, and 

10 may suspend the right of said court to act under the provisions of 

11 said section. 



1 Section 18. Decrees of divorce shall in the first instance be Decrees of di 

2 decrees nisi, and shall become absolute after the expiration of six Entered' nisi 

3 months from the entry thereof, unless the court before the expira- ]'^%[ f^4, | a 

4 tion of said period, for sufficient cause, upon application of any Jsn'lar'll 

5 ])arty interested, otherwise orders. J;"*}.- '^,%' I '■;,> 

■*■ ^ 1 . S. 146, § 19. 

1S82, 223. 1893, 194, 280. 157 MasB. 503. 168 Mass. 228. 

1 Section 19. A libel for divorce for desertion shall not be de- Libeifordeser- 

2 feated by a temporary return or other act of the libellee if the court aeJeawd'by * 

3 finds that such return or other act was not made or done in good ^tu^n™"^^ 

4 faith, but with the intent to defeat such libel. p. s. i46, §20. J?^'!- ^S H- 

resumption of former name by wife. 

1 Section 20. The court upon granting a divorce to a woman ResumiJtion of 

2 may allow her to resume her maiden name or the name of a by'^wue!"""'^ 

3 former husband. g. s. 107, §23. p. s. ue, §21. is49, 141. 



RIGHT TO MARRY AGAIN. 

1 Section 21. After a decree of divorce has become absolute, Remarriage of 

2 either part v may marry again as if the other were dead, except that ^.'J^^"''"^^*'' i"""- 

3 the party from whom the divorce was granted shall not marry within J^g^^a. 

4 two years after the decree has become absolute. 1855,137, §9; 

1864, 216. 1881, 234, 5 4. 113 Mass. 458. 126 Mass. 34. G. S. 107, § 25. 

1873, 371, § 4. P. S. 146, § 32. 123 Mass. 3. 153 Mass. 533. 

EFFECT OF DIVORCE ON LEGITIMACY OF CHILDREN. 

1 Section 22. A divorce for adultery committed by the wife shall °juitery^i?y 

2 not affect the leffitimacv of the issue of the marriage, but such legit- witenottoaf. 

. . . 1 1 n 1 • 1 11 .1 T I lect legitimacy 

3 imacv, it nuestioned, shall be tried and determmed accordinor to the ot issue. 

, •' ,. J, , •' 1785, 69, § 6. 

4 coiu'se ot the common law. g. s. 107, § 27. p. s. ue, § 23. r. s. 76, § 20. 



effect of divorce on RIGHTS TO PROPERTY. 

1 Section 23. Upon a divorce for adultery committed by the Effect of 

2 wife, her title to her separate real and personal property during her a,\u1ter/o^f 

3 life shall not be affected, except that the court may decree to the eeplrate prop- 

4 husband so much of such property as it considers necessary for the iJ'^i^g^., 

5 support of the minor children of the marriage who may have been p. s. ue, § 27. 

6 decreed to the husband's custody ; and if the wife afterward con- 

7 tracts a lawful marriage, the interest of the divorced husband in 

8 the wife's separate real and personal property, after her death, shall 

9 cease, except in so much thereof as may have been decreed to him 
10 as herein provided. 



1356 



DIVORCE. 



[Chai>. 



152. 



No (lower to 
wife after 
divorce, ex- 
<'cpt, ett'. 
17S5, OS), § 5. 
R. S. 7I>, §32, 
102, § 9. 
G. S. 107, § 38; 
135, § 211. 
1870, 404, 5 4. 
P. S. 14(;,§28; 
174, § 13. 



Section 24. After a divorce, a wife shall not be entitled to 
dower in the land of her hu.sband, unless, after a decree of divorce 
nisi granted upon the libel of the wife, the husband dies before 
.such decree is made absolute, except that, if the divorce was for the 
cause of adultery committed b}' the husband or because of his sen- 
tence to confinement at hard labor, she shall be entitled to her 
dower in the same manner as if he were dead. 

13 Maes. 230. 14 Mass. 210. 2 Allen, 4,5. 110 Mass. 463. 



1 

2 
3 
4 

5 
(> 
7 



CARE AND SUPPORT OF CHILDREN. 

lemfiuo'lir**"" Section 25. Upon a decree of divorce, or upon petition at any 
Is- '""si; ' §'i'™°' ^i"^^ after such decree, the court may make such decree as it con- 
^\-J-J!''<l'f- siders expedient relative to the care, custody and maintenance 
" '" ' "'" of the minor children of the parties, and may determine with which 
of the parents the children or any of them shall remain ; and after- 
ward may from time to time, upon the petition of either parent, 
revise and alter such decree or make a new decree, as the cir- 
cumstances of the parents and the benefit of the children may 
require. 



G. S. 107, §§ 33, 

4S. 

1S73, 371, § 7. 

I". S. 14ti, § 29. 

1.52 Mass. 16. 



1 

2 

4 

5 
(> 
7 
8 



— when 
(livoree ob- 
t;iine(l out 

nf cntnllion- 

weultli. 
[fii-i, Ki. § 1. 
G. S. 107, § 34. 
]'. S. 146, § 30. 
1.56 Mass. 27. 



Section 26. If, after a divorce has been decreed in another 
state or country, minor children of the marriage are inhabitants 
of this commonwealth, the .superior court, upon the jietition of either 
parent or of a next friend in behalf of the children, after notice to 
both parents, may make like decrees relative to their care, custody, 
education and maintenance as if the divorce had been decreed in 
this commonwealth. 



1 
2 

4 
5 
C 
7 



Children not 
to be removed 
from common- 
wealth. 
1842, .SJ, § 2. 
G. S. 107, §35. 
P. S. 146, § 31. 



Custody of 
children. 
18.5.5, 1.S7, § 7. 
G. S. 107, § 37. 
1". S. 146, § .32. 
151 Mass. 34U. 



Proceedings 
under this 
clKnitcr. 
1785, 6!), § 8. 
1820, .56, I 1. 
R. S. 76, § 38. 
G. S. 107, § 5:i. 
P. S. 146, « .33. 
1887, 332, § 1. 
107 Mass. 428. 
109 Mass. 306. 



Section 27. A minor child of divorced parents who is a native 
of or has resided five vears within this commonwealth and over 
whose custody and maintenance the superior court has jurisdiction 
shall not, if of suitable age to signify his consent, be removed 
out of tills comuioinvealth without such con.sent, or, if under that 
age, without the consent of both ])arents, unless the court upon cause 
.shown otherwise orders. The court, ui)on application of any person 
in behalf of such child, may require .security and maj' issue writs 
and processes to etfect the )uirposes of this and the two preced- 
ing sections. 

Section 28. In making an order or decree relative to the 
custody of children i)ending a controversy between their jiarents. 
or relative to their final possession, the rights of the parents shall, 
in the absence of misconduct, be held to be equal, and the happi- 
ness and welfare of the children shall determine their custod\- or 
possession. 

GENERAL POWERS OF COURT. 

Section 29. The superior court may, if the course of proceed- 
ing is not specially jirescribcd, hear and determine all matters 
coming within the purview of this chapter according to the cour.^e 
of proceeding in ecclesiastical courts or in courts of e(|uity, and may 
issue process of attachment and of execution and all other i)roper 
and necessary processes. 1.50 Mass. 57. 161 Jiass. m. 



.-> 
4 
5 
(i 

7 
8 
!» 

10 

1 
•) 

H 
4 
■') 
(> 



Chap. 1o2.] divorce. Vd~)7 

1 Section 30. Upon a divorce, or upon petition at any time after Alimony. 

2 a divorce, the superior court may decree alimony to the wife, or a libsisT!^" 

3 part of her estate, in the nature of alimonjs to the husband. ilis'i.w"' 

1844,129. G.S. in7,§§43,44,48. 100 M;iS8. 3ffi. 147 Jl.'ise. 1.59. fli^'S Vo' 

1S.T0, 100, § 3. 1873, 371, § 7. 107 M.1SB. 428. 150 M.-18B. 92. '=**• ^^''> § ■'• 

18!i3, 23, § 1. P. S. 146, § 36. 108 M.lss. .314. 161 Mass. HI. 

1867, 328, §3. 1S87, 332, § 1. 120 Mass. 390. 168 Mass. 511. 

1 Section 31. The court may enforce decrees made for allowance, —emorcemeut 

2 for alimony or for allowance in the nature of alimony, in the same i48,'^47.'''^^ '"'^' 

3 manner as it may enforce decrees in equity. p.' I.' ue,' | It.' 

105 Mass. 3S5. 106 Mass. 499. 130 Mass. 163, 189. 134 Mass. 353. 166 Mass. 226. 

1 Section 32. When alimou}' or an annual allowance is decreed ^.jo*"^"/'!"!, '"''■ 

2 for the wife or children, the court may require sufficient security to S|iI;V§)'i- 

3 be given for its payment according to the terms of the decree. p.' s.' ue" § ss.' 

1 Section 33. After a decree for alimony or an annual allow — revision of 

2 ance for the wife or children, and also altera decree for the appoint- r78576!),'§5'.**"' 

3 ment of trustees to receive and hold property in trust for the use of r.^s.76!'§36. 

4 the wife or children as before provided, the court may, from tune to g*s*V|;47 

5 time, upon the petition of either party, revi.se and alter its decree *?-^ 

(i relative to the amount of such alimony or annual allowance and the m Mass. 3.53.' 

7 payment thereof and also relative to the appropriation and payment 168 Mass! 511! 

8 of the princijial and income of the property so held in trust, and 

9 may make ain' decree relative to said matters which it might have 
10 made in the oi'iginal suit. 

1 Section 34. In all proceedings under the provisions of this -costs on peti- 

2 chapter, the court may award costs in its discretion. i82o,''56, §' 2. ' 

R. S. 76, § 37. 1853, 23, § 2. G. S. 107, § 49. P. S. 146, § 40. 161 Mass. HI. 



FOREIGN DIVORCES. 

1 Section 35. A divorce decreed in another state or country validity of tor. 

2 according to the laws thereof by a court having jurisdiction of Rfs.l6!'§§"sy,' 

3 the cause and of both the parties, shall be valid and efl'ectual in g.' s. 107, §§ 54, 

4 this commonwealth; but if an inhabitant of this commonwealth -J?- g j^g ,^j 

5 soes into another state or countrv to obtain a divorce for a cause 2_oray, sb7. 

1-1 11 1-11 "■ -111 /• 97MasB. o3S. 

6 which occurred here while the parties resided here, or tor a cause 115 Mass. 438, 

7 which would not authorize a divorce by the laws of this common- 122'Mass. 3, 106. 

8 wealth, a di\orce so obtained shall be of no force or effect in this lie Mais] Ms. 

9 commonwealth. ISTMsiss. 42. I67 Mass. 474. 176 Mass. 92. 154 Maes. 290. 



CRIMINAL PROVISIONS. 

1 Section 36. If persons who have been divorced from each other cohabitatum 

2 cohabit as husband and wife or live together in the same house, they b"aduite"ry™ "^ 

3 shall be held to be guilty of adultery. g. s. 107, §24. p. s. i46, §42. r.^|.76,|*i9. 

1 Section 37. Whoever falsely personates another or wilfully and j^|°*J*^t^;5^_ 

2 fraudulently procures a person to personate another, or fraudulently i^^.^i" divorce 

3 procures false testimonjr to be given, or makes a false or fraudulent i87|,'37i, §1. 

4 return of service of process upon a libel for divorce or in any pro- • • ■ ^• 

5 ceeding connected therewith, shall be punished by a fine of not 



1358 



DIVORCE. 



[Chap. 152. 



Penalty for 
procuring 
unlawful 
divorce. 
1886, 342. 



liiore than one thousand dollar,s or by imprisonment for not more 6 

than two years. 7 

Section .38. Whoever linowingly procures or obtains or assists 1 

another to procure or obtain any false, counterfeit or fraudulent 2 

divorce or decree of divorce, or any divorce or decree of divorce 3 

from a court of another state for or in favor of a person who at the 4 

time of making application therefor was a resident of this common- 5 

wealth, such court not having jurisdiction to grant such decree, B 

shall be punished by a fine of not more than two hundred dollars 7 

or bv imprisonment for not more than six months. 8 



— for adver- 
tising to pro- 
cure divorces. 
1887, 320. 



Section 39. Whoever, not being duly admitted as an attorney- 1 

at-law in this commonwealth, writes, prints or publishes, or solicits 2 

another to write, print or publish, any notice, circular or advertise- 3 

ment soliciting employment in the business of procuring divorces 4 

or offering inducements for the purpose of procui'ing such employ- 5 

ment shall be punished as provided in the preceding section. 6 



— for unlaw- 
fully issuing 
certificates of 
divorce. 
1891, 69. 



Section 40. Whoever, except in compliance with an order of a 1 

court of competent jurisdiction, gives, signs or issues any writing 2 

which purports to gi-ant a divorce to persons who are husband and 3 

wife according to the laws of this commonwealth or which purports 4 

to be a certificate that a divorce has been gi-anted to such persons 5 

shall be punished by a fine of not more than one thousand dollars 6 

or by imprisonment in the jail for not more than thi-ee j'ears, or by 7 

both such fine and imprisonment. 8 



Notice to dis- 
trict attorney 
of criminal 
offences. 
1881, 234, § 1. 
P. S. 146, § 44. 



Section 41. If a divorce is gi-anted for a cause Avhich con- 1 

stitutes a crime, committed within this commonwealth and within 2 

the time provided by law for making complaints and finding indict- 3 

ments therefor, the court which grants the divorce may in its dis- 4 

cretion cause notice of such facts to be given by the clerk of the 5 

court to the district attorney for the county in which such crime (? 

was committed, with a list of the witnesses proving such crime 7 

and any other information which the court may consider jiroper, 8 

and thereupon the district attorney shall cause complaint therefor !• 

to be made before a magistrate having jurisdiction thereof, or 10 



shall present the evidence thereof to the grand jury. 



11 



statistics of divorce. 



Returns of 
statistics of 
divorce. 
1882, 194, ( 



Section 42. The clerks of the courts and the clerk of the supe- 
, J 2 rior court for civil business in the county of Sufiblk shall annualh', 
in February, make returns for the last preceding calendar year to 
the socretaiy of the commonwealth, uj)()n suitable blank forms which 
shall be provided by him, of the number of libels pending at the 
beginning of the year, the number of libels filed within the year, 
the number of divorces gi-anted, the number of divorces refused, the 
number of libels contested, the number of libels uncontested, 
the alleged cause for divorce in each case, the sex of the libellant 
and the length of time the parties have been married, and the 
number of cases in Avhich notice has been ffiven to the district 



1 
') 

3 
4 
5 
6 
7 
8 
<i 

10 
11 



attorney for prosecution under the provisions of the preceding 12 



Chap. 153.] rights and liabilities of husband and wife. 1359 

13 section and the crime for which divorce has been gi-anted in such 

14 cases. 

1 Section 43. The secretary shall annually prepare from said Jlj^s'trarts^of"' 

2 returns abstracts and tabular statements of the facts relative to Returns. 

3 divorces for each county, and embody them, with necessary analyses, 

4 in his annual report to the general court relative to the registry of 

5 births, marriages and deaths. 



1S82, 194, § 3. 



CHAPTER 153. 

OF CERTAIN RIGHTS AND LIABILITIES OF HUSBAND AND WIFE. 

Sections 1-14. — General Provisions. 

Sections 15-25. — Provisions if Husband or Wife is nnder Disability. 

Sections 26-28. — Marriage Contracts. 

Sections 29, 30. — Married Women Coming from other States, etc. 

Sections 31-37. — Married Women Abandoned by tlieir Husbands, etc. 

GENERAL PROVISIONS. 

1 Section 1. The real and personal property of a woman shall Married 

I . ., ., -I . wonian may 

2 upon her mamage remain her separate property, and a married i-"iitn.i sii.a. 

3 woman ma}' receive, receipt for, hold, manage and dispose of iSis.iON'ls.^' 

4 property, real and personal, in the same manner as if she were sole. i8fl5;3('4j«'i,3. 

5 But no conveyance by a married woman of i"eal property shall, ex- g!"!'. Ki!i,§|i',^' 

6 cept as provided in section thirty-six, extinguish or impair her hus- %^ 'f<ij. 

7 band's tenancy by the curtesy by statute or his rights to curtesy I?''',' '1i> t V 

8 which existed at the time this chapter takes effect in such property i'*'^". -"■*• 

9 unless he joins in the convej'ance or otherwise releases his said in Mass! m.' 
10 rights. vis Mass. ISO, 2B'j. leTMase. syo. 

1 Section 2. A married wonian may make contracts, oral and '^^^^^°'^' 

2 wTitten, sealed and unsealed, in the same manner as if she were isss, 304, §3. 

. ItfST ''49 5 2 

3 sole, except that she shall not be authorized hereby to make con- g. s'.'ios, §3. 

4 tracts with her husband. i869!304! 

p. 8.147,5 2. iii) Mass. .562. 130 Mass. 407. 145 Mass. 339. 1874, 184, § 1. 

10 Cusli. .WO. 114 Mass. 520. 135 Mass. §7. 146 Mass. 517. 

SGrav, .542. 124 Mass. 108. 139 Mass. 202. 150 Mass. .578. 

8 AUeu, .581. 125 JIass. 28. 140 Mass. 63, 202, 521. 158 Mass. 388. 

II Allen, 345. 126 Mass. 297. 141 Mass. 283. 168 Mass. 471. 

1 Section 3. The provisions of the two preceding sections shall Transfcrhe. 

2 not authorize a husband or a wife to transter property one to the »'"! ",>'<■ 

.-, , , ... 'i'. x- 11,1 • torbiddt'n. 

3 other, except that a wiie may bv gitt ironi lier liusband acfiuire as 1867,249, §5, 

J 1 / i ■■ ■ '' 1 .i- 1 i- 1 G. S. IDS, § 10. 

4 her separate property wearing apparel, articles ot personal orna- 1874, i84, § 1. 
.5 ment and articles necessary for her personal use, to a value of not p.'s.if7', §3. 
(3 more than two thousand dollars; but this exception shall not make Jal'iiln', foV, 
7 valid a gift b}' a husband in fraud of his creditors. ii^- 

114 Mass. 167. 119 Mass. 596. 128 Mass. 169. 146 Mass. 25. 

116 Mass. 490. 126 Mass. 113. 134 Mass. 138. 158 Mass. 342. 

1 Section 4. Work and labor performed by a married woman Labor of mar- 

2 for a person other than her husband and children shall, unless there m«,2o°9""'°' 

3 is an express agreement on her part to the contrary, be presumed ufs.'iot'.l/s.e. 

4 to be pei-foniied on her separate account. p.'sm'IV 

14 Gray, 389. 1 Allen, 258. 131 JIass. 533. 165 Mass. lOO. 



1360 RIGHTS AND LIABILITIES OF HUSBAND AND WIFE. [ClIAP. 153. 

wSman'mavbe ■ SECTION 5. A married woman iniiy be an exeeutrix, adminis- 1 

e^?,cutrix etc. tratrix, guardian or trustee, and may bind herself and the estate 2 

G. s. 109, § -25. which she represents without an}' act or assent on the part of her 3 

1874| is4i § 4. husband . p. s. 147, § 5. 4 

besued^"*"'"^ SECTION 6. A married woman luaj' sue and be sued in the same 1 

i^?'?^M/; , manner as if she were sole ; but the provisions of this section shall 2 

iMT, 249, §s. not authorize suits between husband and wife. is74, is4, §3. 3 

G. s. ins, § 8. 

1S71, 312. P- S. 147, § 7. 10 Allen, 512. lit* Mass. .58. 155 Mass. 1.S6. 

6 Gray, .562. 115 Mass. ll.i. 120 Mass. «). 173 Mass. 214. 

^r husband's SECTION 7. A married woman shall not be liable for the debts 1 

1^**304 $u 6. of li"?!" husband, nor shall her propeitv be liable to be taken on an 2 

G.s.io8',§§i,'7. execution against him, except as provided in section ten. 3 

p. S. 147, § 8. 

Sufie'fOT °"' Sections. A husband shall not be liable upon a cau.so of action 1 

J^lt^'fJ^l"?- which oi'io^inated against his wife prior to their marriaire, nor to iiav 2 

18o.i, 304, §2. . =• C 1 >— '!„ 

G. 8.108, §8. a ludgment recovered aijauist her, exceiit as i)rovided in section ten. 3 

1871, 312. J e f^ '11 

p. S. 147, § 9. 10 Allen, 238. 118 Mass. 58. 120 Mass. 89. 

i^ntacts*^'" Section 9. Contracts made by a manied woman relative to her 1 

man-iage! scpamtc property, ti-ado, business, labor or services shall not, ex- 2 

}?-5> *,'?' t J.- cept as provided in the followino: section, bind her husband nor 3 

p|'u-'l?n render him or his property liable therefor ; but she and her .separate 4 

property shall be liable on such contracts in the same manner as 5 

if she were sole. 6 



p. S. 147, § 10. 



De8s"certiflc.ate SECTION 10. If a married woman does or proposes to do business 1 

issi' K4"*« ■i "" ^^^^" separate account, she shall cause to be recorded in the clerk's 2 

p.'s. u'7;§i'i.' office of the city or town in which she does or proposes to do such 3 

1 Allen, 2.58. busiucss a Certificate stating her name and that of her husband, the 4 

109 Mass! 289. nature of the business and the place where it is or is proposed to 5 

114 Mass! 77!*" Ije carried on, giving, if practicable, the street and the number on (i 

120 Mass. 332, ^ijg street, and the name, which shall not be her hu.sband's, under 7 

iss m'"*^' -?"■ ^^lii*^'! ■''h® proposes to caiTj'^ on business ; and if the nature of the 8 

194.' ' ' business or the place where or the name under Avliich it is carried il 

loO Mass 82 . • ^ 

27.5.' " ' on is changed, a new certificate shall be recorded accordingly. If 10 

170 Mass.' 142.' she tails to cause such certificates to be recorded her husband may 1 1 

iiSMass. 90. cause them to be recorded; but if such certificates arc not so re- 12 

corded by either husband or wife, the personal ]iroperty employed 13 

in such business shall be liable to be attached as the ])r()perty of 14 

the husband and to be taken on execution against him, and the 15 

husl)and shall be liable upon all contracts la^'fully made in the prose- Ki 

cution of such business in the .same manner and to the same extent 17 

as if such contracts had been made by hiinself. The provisions of 18 

this section shall not, however, atlect the rights of any person under 19 

any certificate filed or recorded prior to the first day of August in 20 

the year eighteen hundred and ninet3'-eight. 21 

rerttflcates. SECTION 11. A citj' or town clcrk shall, upon pajTiient of twenty- 1 

I'^'^s '147^612 five cents, record in a book kept for the jnirpose the certificate 2 

1.50 Mass. 75. required by the provisions of the preceding section, noting in such 3 

book and on the certificate itself the time when it is received, and 4 

a certificate shall be considered as recorded at the time when it is 5 



Chap. 153.] rights and liabilities of husband and wife. 1361 

6 left for record. The clerk shall keep au index of all certificates so 

7 recorded. 

1 Section 12. The probate com-t may, upon the petition of a Trustee fm- 

2 married woman who has separate property', appoint a trustee to woman's sepa- 

3 hold the same in trust for her, to whom she may thereujion convey isil, 20(s §8. 

4 it upon such trusts and to such uses as she may declare. The p.' 1.' ut,' § ts. 

5 trustee may prosecute and defend all actions relative to such prop- Jfl'j^u' ilf 
(i erty brought by or against her ; and the property in his hands shall iss Mass. its. 
7 be liable to be attached or taken on execution in any such action. 

1 Section 13. If real property of a married woman is taken for Dispositionof 

2 a railroad, a way or any other public use, or is damaged by the laj'- lauToTma"'^ 

3 ing out of a raih'oad, way or by any other public works, the dam- Sk"" "wraii. 

4 ages or compensation aM^arded therefor may be so invested and dis- i^35'''i4^'' 

5 posed of as to secure to her the .same riii'hts in the amount so r!- §• 'iAiJ,^!v 

6 awarded and the income thereof as she would have had in the real J/,?:¥''.Li''- 

7 property and the income thereof if such real property had not been 

8 so taken or damaged. The probate court shall have concurrent 

9 juri.sdiction in etjuity, upon the petition of such woman, to hear and 
10 determine it and to enforce and secure her rights. 



14 Pick. lOS. 



1 Section 14. The provisions of the thirteen preceding sections Marriage 

2 shall not invalidate a marriage settlement or contract. affeckMi." 

G. S. 108, § 10. 1874, 184, § 6. P. S. 147, § 16. 136 Mass. 342. ^^^^' ■*'■*' ^ "' 



provisions if hitsband or wife is under disability. 

1 Section 15. If the guardian of a married man is licensed to Release of 

2 sell real property of his ward, the wife of the ward may join with <>? ward." "^' * 

3 the guardian in the conveyance, and thereb}' release her right of r."|'. 77,''/u. 

4 dower and the estate or right of homestead in the granted property, p.' 1; 147; | Jg.' 

5 in like manner as she might have done by joining in a conveyance 

6 thereof made by her husband if he had been under no legal disability'. 

1 Section 16. If such guardian is licensed to sell the interest of feafpropert- 

2 the ward in any real property of his wife, the wife may join with the i*^|. li^- § i- 

3 guardian in the conveyance, and thereby convey all her estate and g. s'. 10s, § ii. 

4 interest in the granted property, in like manner as she might have ' ■ '• 

5 done by a conveyance thereof made joint!}' with her husband, if 

6 he had been under no legal disabilit}'. 

1 Section 17. If the wife so releases her right of dower or an Dispositionof 

2 estate of homestead, or so conveys her own estate, the proceeds of Sfsail^. 

3 the sale may be so invested and disposed of as to secure to her, and jfLn^'/ie. 

4 to the minor children of the owner if it is an estate of homestead, p ; f; J47; | Jg ; 

5 the same rights in the principal and the income thereof as she or 
(i they would have had therein if it had not been sold. An agree- 

7 ment made between her and the guardian for securing and dispos- 

8 ing of the proceeds or of any part thereof for the purpose aforesaid, 

9 if approved by the probate court for the county in which the 

10 guardian was appointed or by the supreme court of probate upon 

11 appeal or, in default of an agreement between her and the guardian 

12 approved as aforesaid, an order therefor made by the probate court 

13 shall be valid and binding on all persons interested in the granted 



13G2 RIGHTS AND LIABILITIES OF HUSBAND AND WIFE. [ClIAP. lOO. 

property or in said proceeds, and may be enforced by the coui't or 14 

by an action at law. 15 

OT'hustatfeTof" Section 18. The wife of a man who is under guardianship may 1 

ward with join with his guardian, and the guardian of a woman may ioin with 2 

jjuarilijin in •' p , , ' . . " . , ^ •' 

making parti- her husbaud, in making partition oi her real property which is lield 3 

issoJm. in joint tenancy or in common, and they may make any release or 4 

Gisiiofif/is. other conversance necessary or proper for that purpose, in like 5 

p. s. 147, § la. manner as the parties might do if neither of them were under legal 6 

disability. 7 

dower o?' Section 19. The husband or wife of an insane person who de- 1 

curtesy of sLtcs to convey his or her real property absolutely or by niort<raire 2 

insane person. : . . , i i • • ' i , 

185R, IBM, § 3. may nio a petition in the probate court describing such real prop- H 

1857 '29H 6 10. . L X 

G. s.'ias, § 20. erty and iiraying that the dower of the wife or an estate of home- 4 

i886,->4s,'§i. " stead or a tenancy by the curtesy at common law or by statute of .5 

{I^J; 2K4i § 1. the husband therein may be released and stating the facts and rea- (5 

sons why the prayer of the petition should be granted. The court 7 

may, after notice and a hearing, by a decree authorize the guardian 8 

of the insane person to make the release b}^ joining in any deed or 9 

deeds, mortgage or mortgages of the whole or a part of said real 10 

property which is or are made within five years after said decree by 1 1 

the husband or wife of the insane person or by a trustee for such 12 

husband or wife. 13 

toSjand of Section 20. If the guardian of an insane husband is authorized 1 

portion of uudcr the provisions of the preceding section to release such ten- 2 

isse, -245, § 2. ancy by the cm-tesy and the i)robate court finds that a portion of 3 

lyy9 '^84 52 1-.' . 

i9oo; 4.io; § s! the proceeds ot such real jiroperty, or of an amount loaned on 4 

' ■ mortgage thereof, should be reserved for the use of such ward, it 5 

may order that a certain portion, not exceeding one-third of the (i 

net amount if it is in respect of the tenancy by the curtesy by 7 

statute, of the proceeds or amount actually realized from such sale <S 

or mortgage, exclusive of any encumbrance then existing on the 9 

property, shall be set aside and paid over to such guardian who 10 

shall invest and hold it for the benefit of the husband diu'ing liis life 11 

if he siuwives his wife. The income of such i)orti()n shall be re- 12 

ceived and enjoyed by the wife during the life of her husband, or 13 

until otherwise ordered by the court for cause. If she survives 14 

Mm the principal shall upon his decease be paid over to her, but if 15 

she does not survive him, to her heirs, executors or administrators. 16 



■2 



— for wife of Section 21. If the guardian of an insane wife is authorized 1 

portion of . . ^ " . . , , , .. I . 

proceeds upon under tile provisions oi section nineteen to release the dower oi his 

dower. ward, and the probate court finds that a portion of the jtroceeds of 3 

G. s. loi', § ii. such real property, or of an amount loaned on mortgage thereof, 4 

p. s. 14,, §21. gijQ^iifi jjg i-cserved for the use of such Avard, it ma}' order that a 5 

certain portion, not exceeding one-third of the net amount of the (j 

proceeds or amount actually realized from such sale or mortgag(\ 7 

exclusive of any encumbrance then existing on the property, shall 8 

be set aside and paid over to such guardian, Avho shall invest and 9 

hold it for the benefit of the wife during her life if she survives her 10 

husband. Tlie income of such portion shall be received and enjoyed 11 

by the husband dui'ing tlie life of his wife, or until otherwise or- 12 



Chap. 153.] rights and liabilities of husband and wife. 13(33 

13 dered by the court for cause. If he survives her the principal shall ' 

14 upon her decease be paid over to him, but if he does not survive 

15 her, to his heirs, executors or administrators. 

1 Section 22. If tlie guardian of an insane wife is authorized Keseryation 

. . ,,~ . . tor wite upon 

2 under the provisions ot section nineteen to release an estate of reieaseof 

3 liomestead, and tlie probate court finds that a portion of the pro- issr, ms, § ii. 

4 ceeds of the real property sold, or of an amount loaned on mort- p.' s.' mt,' § 22.' 

5 gage thereof, should be reserved for the use of the ward, it may 
(> order that a certain portion, not exceeding eight hundred dollars, 

7 shall be set aside and paid over to such guardian to be invested in a 

8 homestead, and held b}' him for the benefit of his ward, if she sur- 

9 vives her husband : the rent or use thereof to be received and 

10 enjoyed by the husband during the life of his wiie, or until other- 

11 wise ordered by the court for cause ; and the homestead to be his, 

12 and to be conveyed to him by said guardian, if he survives her. 

1 Section 23 . If the husband or wife of an insane person conveys conveyance it 

2 real propert}' in trust without a power of revocation and makes a EerofcSmsy 

3 provision therein for the insane husband or wife, respectively, which 5'^6"JJ!5,'^"§ 5. 

4 the probate court, uj)on petition, after notice and a hearing, finds ^ • |' JJS' 1 1|- 

5 is suflScient in lieu of curtesy or dower, the trustee may convey 

6 such real property fi'ee from all right of curtesy or dower. 

1 Section 24. The court, under the provisions of the preceding same subject. 

2 section, may find that the provision for the husband or wife is sufE- g.^s.\'os',|24. 

3 cient in lieu of curtesy or dower either in the whole or in particular ^' ^' ^*"' ^ '^' 

4 portions of the real property of the husband or wife and thereujion 

5 the guardian of such insane husband or wife may be authorized to 

6 release the curtesy or dower in the whole or in particular portions 

7 thereof. 

1 Section 25. Proceedings under the provisions of the six pre- venue of 

2 ceding sections shall, if the husband or wife of such insane person issJi^TilHlTT- 

3 is an inhabitant of this commonwealth, be in the county in which he p.' |; ul; 1 1|; 

4 or she resides ; otherwise, in a county in which any of his or her real is»6, 245, §3. 

5 property is situated ; and a certified copy of all final orders (n- de- 

6 crees in such proceedings shall be recorded in the registry of deeds 

7 in every county or disti'ict in which such real property is situated. 

MARRIAGE CONTRACTS. 

1 Section 26. At any time before a marriage, the parties may en- Ante-nuptiai 

2 ter into a contract in writing, agreeing and providing that, after the "racts"^'^ '^"°' 

3 marriage is solemnized, the A\-hole or any designated part of the real g.*|'. iol, §27. 

4 or personal property or any right of action, of which either party foray^Ml^*'' 

5 may be seised or possessed at the time of the marriage, shall remain ^45 ^J-^il- ^|- 

6 or become the property of the husband or wife, according to the 

7 terms of the contract. Such contract may limit to the husband or 

8 wife an estate in fee or for life in the whole or in any j^art of the 

9 property, and may designate any other lawful limitations. All such 

10 limitations shall take eiffect at the time of the marriage in like man- 

11 ner as if they had been contained in a deed conveying the property 

12 limited. 



13Gi 



RIGHTS AND LIABILITIES OF HUSBAND AND AVIFE. [ChAP. 153. 



Record of 
contract and 
de8crij)tiuu of 
propertv. 
lS4fl, -ids § -2. 
U. S. 108, § -Jti. 
1867, 24fi. 
P. S. 147, § 27. 
4 Allen, 412. 
100 Mass. 3.H7. 
169 Mass. 189. 
176 Mass. 349. 



.Section 27. There shall be annexed to such contract a schedule 1 

of the property intended to be affected thereb}', which .shall contain 2 

a sufficiently clear description of the property to enable a creditor of 3 

the husband or Mile to distinguish it from all other property ; and 4 

such contract and schedule shall, either before the marriage or within .") 

ninety days thereafter, be recorded in the registry of deeds for the 6 

county or district in which the husband resides at the time of the rec- 7 

ord, or, if he is not a resident of this commonwealth, then in the 8 

registi-y of deeds for the county or district in which the wife resides 9 

at the time of the record, if it is made before the mairiage, or in 10 

which she last resided, if made after the marriage. If the contract 11 

is not so recorded, it shall be void except as between the parties 12 

thereto and their heirs and personal representatives. It .shall also 13 

be recorded in the registry of deeds for every county or district in 14 

which there is land to which it relates. 15 



Marriage con- 
tract of female 
minor ward. 
1869, 292. 
P. S. 147, § 28. 



Section 2&. A female mingr who has attained the age of 
eighteen years may join with her guardian in making such mar- 
riage contract, and for such purpose the guardian and M'ard mav 
convey her real and personal property to trustees approved by the 
probate court having jurisdiction over .said minor, to be held upon 
the trusts declared in such contract, and such conveyance shall 
have like eflcct as if said minor was of full age, and the guardian in 
the settlement of his accounts shall be allowed by the probate court 
for all property so conveyed to said trustees ; and said court may 
require said trustees to give bond with sufficient sureties for the 
faithful performance of their trust. 



1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 



JIARRIED women COMING FROM OTHER STATES, ETC. 

Rights of Section 29. If a married woman comes from another state 

into comniou- Or couutry into this commonwealth witln)ut her husband, who has 

to-^iiVsban.T' ucver lived with her in this commonwealth, she shall have all the 

g! s'. io8,\^29. I'ights and powers which are given to married women by the pre- 

isMass^'al""'' i^'-'ding provisions of this chapter, and may tran.sact business, make 

conti'acts, sue and lie sued in her own name, and dispose of her 

property which may be found here, in like manner as if she were 

sole. 



1 
2 
3 
4 
5 
6 
7 



— of parties 
married out of 
common- 
wealth, and 
coming iiere 
tfi reside. 
R. S. 77, § 19. 
18.W, 304, § 8. 
G. S. 10.s,§3n. 
P. S. 147, § 30. 



Section 30. If a husband and his wife, married in another 1 

state oT country, come into this commonwealth, cither at the .same 2 

time or at different times, and reside here as husband and wife, she 3 

shall retain all property which she had acquired by the laws of any 4 

other state or country, or by a marriage contract or settlement made 5 

out of this commonwealth. Such residence together here shall ti 

have the same effect, relative to their subsequent rights and lia- 7 

bilities, as if they had married in this commonwealth at the begin- 8 

ninsj of such residence. 9 



Conveyance, 
et<'., of prop- 
erty l>y mar. 
ried wo man 
abandoned, 
et<-. 



MARRIED WOMEN ABANDONED BY THEIR HUSBANDS, ETC. 

Section 31. The pi'obate court, ujion the petition of a married 1 

woman whose husband abandoning and not sufficiently maintaining 2 

her has absented himself from this commonwealth, or has been 3 



Chap. 153.] rights and liabilities or iii'Sband and wife. 1365 

4 sentenced to confinement in the state prison, nicay autliorize her to nsr, 32^§i. 

5 sell, conve}', receive and receipt for her real and personal property, r. s. 77,§§ i-s, 
(i any personal property which may have come to her husband by u.^^s.^ibsf '§§ 31, 

7 reason of the marriage and remains in this commonwealth undis- p-g j^- -gj 

8 posed of b}' him or any personal property to which he is entitled J.^I'.p'^' |^' 

9 in her right, and to use and dispose of the same or the proceeds 

10 thereof, dm-ing his absence or imprisonment, as if she were sole ; 

11 and the authority so granted shall continue until the husband re- 

12 turns to this couunonwealth and claims his marital rights, or is 

13 discharged from prison. 

1 Section 32. A petition mentioned in the preceding section may Proceedings to 

2 be filed, heard and determined in the probate court in any county, authority. 

3 and notice thereon shall be given in the manner provided for r.^s. ~',f n.^' 

4 giving notice of libels for divorce when the libellee is out of this p.l.uf'llf: 

5 commonwealth. mi'.asi'^i'' 

1 Section 33. If a husband fails, without just cause, to provide orders for 

2 suitable support for his wife, or deserts her, or if the wife, for justi- f," 'wife ' '^'*''' 

3 fiable cause, is actually living apart from her husband, the {probate I'Jr^^Ss.' 

4 com't may, upon her petition or, if she is insane, upon the i)etition j;<JJ;; ,'4''*§V' 

5 of her guardian or ne.Kt friend, iirohibit the husband from imposing- p.s.u't, §33. 

& . 1 ,. n . , . 1 lan Mass. 320. 

fi any restraint on her personal libert}' during such time as the com! i;w M"ss. iss. 

7 shall b^^ its order direct or until the further order of the court i3.'< Mass! loe! 

8 thereon : and, upon the application of the husband or wife or of her !« Mass.' i,*! 
1* guardian, the com*t may make further orders relative to the sujiport S.t'iMassiiii. 

10 of the wife and the care, custod}^ and maintenance of the minor jsf, j{a|s; yf ' 

11 children of the parties, may determine with which of their parents ]^^j,j,gg .33.2 

12 the children or any of them shall remain and ma,y, from tune to jw, waes. ss. 

13 time, upon a similar application, revise and alter such order or ' 

14 make a new order or decree, as the circumstances of the parents or 
1.^ the benefit of the children ma}^ require. 

1 Section 34. A petition under the provisions of the preceding venue of 

2 section may be brought in the county in which either of the jiarties lifsi,'^" 

3 lives, except that if the petitioner has left the county in which the ^- *• "'•§**■ 

4 parties have lived together and the respondent still lives therein, 

5 the petition shall be brought in that county. 

1 Section 35. Upon such petition, an attachment of the husband's Attachment of 

2 property may be made as upon a libel for divorce ; and the pro- prnjlenyln 

3 visions of sections fourteen, twenty-nine and thirty-one of chapter iJ"!)' {'s^g^'g 2. 

4 one hundred and fifty-two shall apply to proceedings upon such p^|^i\-- .35 

5 petition, so far as appropriate. mi Mass. 432. 

150 Mass. 92. 1&3 Mass. 38. 163 Mass. 530. 

1 Section 3(i. If a court having jurisdiction has entered a decree conveyance 

2 that a married woman has been deserted by her husband or is Hving ™frrTed ""^ 

3 apart from him for justifiable cause, she may convey her real \)Top- a™""" "^'"^ 

4 ert}' in the same manner and with the same effect as if she were J^;!^;^! 

5 sole ; and the surviving husband shall not be entitled under the pro- 

6 vi.sions of section sixteen of chajiter one hundred and thirty-five to 

7 waive the provisions of a will made by her. 



1366 ADOPTION OF CHILDREN. [ChAP. 154. 

oi'l-fiiia^c^n'^of Section 37. If the parents of minor children live separately', 1 

ieparntt'iy?"*^ the probate coui't shall have the same power, upon the jietitioii 2 

tfs u)T55 36 "f either parent, to make decrees relative to their care, custodj-, 3 

3?'. ' ' education and maintenance, as relative to children whose i)arents 4 

18*7 ,'332,' §2.' are divorced ; and shall determine which of the parents of such 5 

childi-en shall be entitled to such custody in accordance with the (5 

law relative to the custody of children whose parents have been 7 

divorced. 8 



CHAPTEE 154. 

OF THE ADOPTION OF CHILDREN AND CHANGE OF NAMES. 

Sections 1-1 1 . — Adoption of Children. 
Sectioxs 12-14. — Ciiange of Names. 

ADOPTION OF CHILDREN. 

^m'fOTleaveU) SECTION 1. A person of full age may petition the probate court 1 

adopt iiihiM. in the county in which he resides for leave to adopt as his child 2 

G?s'. Tki, § 1.' another person younger than himself, unless such other person is 3 

1876', iiai §§ i, his or her wife or husband, or brother, sister, uncle or aunt, of the 4 

p.'s.'us, §1. whole or half blood. If the petitioner has a husband or wife living, 5 

i37MalB :i46; ^^'1^0 i*^ competent to join in the petition, such husband or wife shall (> 

171 Mass. sw. join therein, and upon adoption the child shall in law be the child 7 

of both. Ka person who is not an inhabitant of this commonwealth 8 

desires to adopt a child who resides here, the petition may be made 9 

to the probate court in the county in which the child resides. 10 

8ent'?f°cCTbiin SECTION 2. A decree for such adoption shall not be made, ex- 1 

persons re- ecpt as hereinafter provided, without the written consent of the 2 

1851, 324, §5 2,3. cMld, if it Is abovc the age of fourteen years ; of her husband, if she 3 

iBsslsi'r' is a married M'oman ; of the laA\-ful parents, or surviving parent; 4 

isn.sio,'!!!;*; of the parent having the la\\-ful custody of the child, if the parents .5 

p.'s."i48',| 2. are divorced or are living separately ; of the guardian of the child, if (> 

154 Mass. 378. anv ; of the mother oulv of tlic child, if illegitimate ; or of the per- 7 

son substituted for any of the above named by the provisions of 8 

this chapter. The fact of illegitimacy shall in no case ai)i)ear upon 9 

the record. A person whose consent is hereby required shall not 10 

thereby be debarred from being the adopting parent. If the child 1 1 

has been previously adopted, the consent of the previous adopting 12 

parent shall al.so be requh'ed. 13 

Conscntnot SECTION 3. The conscut of the persons named in the preceding 1 

wiK-n. section, other than the child or her husband, if any, shall not bo 2 

i859;6ir§i. required if the person to be adojited is of full age, nor shall the 3 

i8'7f,yi(i%|'3,6. consent of any such person other than the child be required if such 4 

i^fil^Js,' 1/3,4. l)erson is adjudged by the coiu-t hearing the petition to be hopelessh' 5 

1886' m'll' iiisaiit% or is imprisoned in tlie state prison or in a house of correc- 6 

If^^^/i?; K^- tion in this commonwealth under sentence for a term of which more 7 

than three years remain unexpired at the date of the petition ; or if 8 

he has wilfully deserted and neglected to provide proper care and 9 

maintenance for such child for two years last preceding the date of 10 



137 Mass. .346. 



Chat. 154.] adoption ov children. 1367 

11 the petition ; or if he has suffered such child to be supported for 

12 luore than two years continuously, prior to the petition, by an in- 

13 corporated charitable institution or as a pauper hy a city or town 

14 or by the conmlon^vealth ; or if he has been sentenced to iniprison- 

15 nient for drunkenness upon a third conviction within one year and 
Iti neglects to provide proper care and maintenance for such child ; or 
17 if such person has been convicted of being a common night walker 
IS or a lewd, wanton and lascivious person, and neglects to provide 

19 proper care and maintenance for such child. A giving up in writing 

20 of a child, for the purpose of adoption, to an incorporated charitable 

21 institution shall operate as a consent to any adoption subsecjuently 

22 approved by such institution. Notice of the petition shall be given 

23 to the state board of charity, if the child is supported as a pauper 

24 by a city or town or by the commonwealth. 

1 Section 4. If the written consent required by the provisions of ^"glj^^^eu. 

2 the two preceding sections is not submitted to the coiu't ^nth the ^^'s'/iV l^, 

3 petition, the com-t shall order notice by personal service on the J^Sf- s'^.f i- 

/»i .. Ill '^1 18/1, 310, §5. 

4 parties of a copy of the petition and order thereon, or, ii they are isp.sii, §3. 

5 not found within this commonwealth, by publication of the petition p.'s. us, §4. 
ti and order once in each of three successive weeks in such newspaper sio/ "^^' ' 

7 as the court orders, the last publication to be seven da^'s at least 

8 Ix'fore. the time appointed for the hearing, and the court may recjuire 

9 additional notice and consent. 

1 Section 5. If, after such notice, a person whose consent is re- Persons not ap. 

2 quired does not appear and object to the adoption, the coui't ma^^ (JeitUoTOusent. 

3 act upon the petition without his consent, subject to his right of JpsJsL'^^' 

4 appeal, or it may appoint a guardian ad litem with power to give fmiimllt 

5 or withhold consent. p. S. us, §5. llS Mass. ara. is? Mass. 346. 1S76, ■213, § B. 

1 Section 6. If the com't is satisfied of the identity and relations Decree of court 

2 of the persons, and that the petitioner is of sutEcient ability to bring ""m.'sL*; H5I7. 

3 up the child and provide suitiilile support and education for it, and fei';3in''||7r9: 

4 that the child should be adopted, it shall make a decree, by which, j^;6, 213, §§ 7, 

5 except as regards succession to property, all rights, duties and other f^o Matl. Us. 

6 legal consequences of the natural relation of child and parent shall 

7 thereafter exist between the child and the petitioner and his kin- 

8 dred, and shall, excejit as regards marriage, incest or cohabitation, 

9 terminate between the child so adopted and his natural parents and 

10 kindred or any previous adopting parent ; but such decree shall not 

11 place the adopting parent or adopted child in any relation to any 

12 person, except each other, different from that before existing as 

13 regards marrias-e, rape, incest or other sexual crime committed by 

14 either or both." The court may also decree such change of name as 

15 the petitioner may request. If the person so adopted is of full age, 

16 he .shall not be freed by such decree from the obhgations imposed 

17 by the provisions of section t«n of chapter eighty-one. 



itcd child 



1 Section 7. A person who is adopted in accordance with the pro- Kjsntsof 

2 visions of this chapter shall take the same share of the property which asto ™cc,_ 

3 the adopting parent could dispose of by will as he would have taken ll-t".'" •"■"''" 

4 if born to such parent in lawful wedlock, and he shall stand in re- issi- 324, § e. 



13(58 



G. S. 110, 
1871, 310, 
1876, -J 13, 
P. S. US, 
144 Mass 
US Mass. 
1S3 Mass. 



CHANGE OF NAMES. 



§8. 

§7. 

441. 

«19. 

525. 



[Chap. 154. 



srard to the legal descendants, but to no other of the kindred of .such 5 

adopting parent, in the same position as if so born to him. If the H 

person adopted dies intestate, his property' acquired by himself or 7 

by gift or inheritance from his adopting parent or from the kindred 8 

of such parent shall be distributed according to the provisions of 9 

chaptei's one hundred and thh"t3--three and one hundred and forty 10 

among the pei'sons who would have been his kindred if he had been 11 

born to his adopting parent in lawful wedlock; and property re- 12 

ceived b}' gift or inlieritance from his natimxl parents or kindred 13 

shall be distributed in the same manner as if no act of adoption had 14 

taken place. The apportionment and distribution shall be ascer- 1.5 

tained by the court. A person shall not by adoption lose his right Iti 

to inherit from his natui-al parentis or kindred . 1 7 



Rights of 
adopted child 
under wills, 
trusts, etc. 
1878, -213, § a. 
P. S. 148, § 8. 
11.5 Mass. ies. 
144 Mass. 441. 



Section 8. The word "child ", or its equivalent, in a gi"ant, tru.st- 1 

settlement, entail, devise or bequest shall include a child adopted 2 

by the settlor, grantor or testator, unless the conti-ary plainly ap- 3 

pears by the terms of the instrument ; but if the settlor, grantor or 4 

testator is not him.self the adopting parent, the child by adoption .5 

shall not have, under such instrument, the rights of a child born in <) 

lawful wedlock to the adopting parent, unless it plainly appears to 7 

have been the intention of the settlor, gi-antor or testator to include 8 

an adopted child. 9 



— In this com- 
monwealth of a 
child adopted 
in another 
state. 

1878, 213, § U. 
P. S. 148, § ». 
129 Mass. 213. 



Section 9. An inhabitant of another state, adopted as a child 
in accordance with the laws thereof, shall upon proof of such fact 
be entitled in this commonwealth to the same rights of succession 
to property as he would have had in the state in Avhich he was 
adopted, except so far as such rights are in conflict with the jiro- 
visions of this chapter. 



Effect of 

second adoii- 

tion. 

1878, 213, § 13. 

P. S. 148, § 10. 



Section 10. If the child ha.'^ been previously adopted, all the 
legal consequences of the former decree shall, upon a subsecjuent 
adoption, determine, except so far as any interest in property may 
have vested in the adopted child, and a decree to that effect shall 
be entered on the records of the court. 



Appeals. 
1851, 324, § 8. 
185'.l, Bl, § 2. 
G. S. 110, §§ 9, 
10. 

1871, 310, § 10. 
1878, 213, § 12. 
P. S. 148, « 11. 
154 Mass. '574. 



Section 11. The supreme judicial court ma}' allow a parent, 
who, upon a petition for adoption, had no personal notice of the 
proceedings before the decree, to appeal therefrom within one year 
after actual notice thereof, if he first makes oath that he was not, at 
the time of filing such petition, undergoing imprisonment as speci- 
fied in section tliree or that, if so imprisoned, he has since been 
pardoned on the ground of innocence or has had his sentence re- 
versed. 



Petitions for 
change of 

name. 

ISil, 2,5G, § 1. 

18.M, 24. 

G. S. no, §§ 11, 

IS. 

P. S. 148, § 12. 



CHANGE OF NAMES. 

Section 12. A petition for the change of name of a person may 
be heard by the probate court in the county in which the petitioner 
resides. Xo change of the name of a person, except upon the adop- 
tion of a child under the provisions of this chajiter or upon the 
marriage or divorce of a woman, shall be lawful unless made by 
said court for a suflicient reason consistent with public interests and 
.satisfactory to it. 



4 

(5 

7 



Chap. 155.] masters, apprentices and servants. 1oG9 



1 Section 13. The court shall, befoi'c decreeing a change of name, xotucand 

2 require public notice of the petition to be given, and any person i.sii, iSB, §'2. 

3 may be heard thereon. It shall also require public notice to be p.' s.' hsI 1 13.' 

4 given of the change decreed, and on return of proof thereof niay 

5 grant a certificate, under the seal of the court, of the name which 
(5 the person is to bear and which shall thereafter be his legal name. 

1 Section 14. Each register of probate shall annually, in Decem- Annu-ii return 

2 ber, make a return to the secretar}' of the commonwealth of all changes mi, i^X*- 

3 of names made in the court of which he is register. ' "■ ^^^' ^ ^ ' 

p. S. us, § 14. 1897, 89. 



CHAPTEE 155. 

OF MASTERS, APPRENTICES AND SERVANTS. 



1 Section 1 . A child under the age of fourteen years may be Minors may 

2 bound as an apprentice or sei-vant until that age ; and a minor a'pi,renti(4's* 

3 above said age may be bound as an apprentice or servant, a female JtuI^^I'j l' 

4 to the age of eighteen years or to the time of her marriage within Qs"n'i\^i 

5 that age, and a male to the age of twenty-one years. p- s- 149, § 1. 

1 Section 2. A child under the age of fourteen years may be — iiow bound 

2 bound by the father, or, in case of his death or incompetency, by foul-teeS years. 

3 the mother or legal guardian. If illegitimate, he or she may be R.'1i'.'i>,|§'^ 

4 bound by the mother during the lifetime of the putative father as o;|''iii, §•>. 

5 well as after his decease. If such children have no parent compe- ps. 149, §2. 

6 tent to act and no guardian, the}- may, with the approval of the 

7 selectmen of the town in which they reside, bind themselves. The 

8 power of a mother to bind her children shall cease upon her subse- 

9 quent marriage, and shall not be exercised by herself or by her 
10 husband during the continuance of such marriage. 



4-6; 



'to 



1 Section 3. A minor above the age of fourteen years may be —how bound 

, . . . ... 1 ' 1 1 1 • 7 -T- wlien above 

2 bound in the same manner, but, it bound hv his parent or guardian, fourteen. 

3 the indenture shall recite his consent and shall be signed by him. b.' s. so, § 3. 

G. S. Ill, § 3. P. S. 149, § 3. 5 Cush. 417. 

1 Section 4. A minor child who is, or either of Avhose parents is, certain minors 

2 chargeable to a toM-n as having a lawful settlement therein or sup- by uvwseers'' 

3 ported there at the expense of the commonwealth may, whether ?42'l3,28,"§7. 

4 under or above the age of fourteen years, be so bound by the over- j^jf,:]]'^; | {; 

5 seers of the poor, a "female to the age of eighteen years or to the jlS^tS- !"■ ^ '■ 
fi time of her marriage within that age, and a male to the age of irk 6\i, § 4. _ 

7 twenty-one years; and provision .shall be made in the conti-act for G'.s.iii',§§4',6: 

8 teaching such minor reading, wi'iting and arithmetic, and for such .?p*rk.^25o.*' 

9 other instmction, benefit and allowance, either within or at the end fjpay;!^,-. 
10 of the temi, as the overseers may require. 107 Mass. 4i9. 152 Mass. 438. 9Aiieu,207. 

1 Section 5. A minor shall not be bound as an apprentice or ser- indenture to be 

2 vant except by an indenture of two parts sealed and delivered by 1"^,'^^, § 1. 



1370 



MASTERS, APPREXTICES AND SERVANTS. 



[Chap. 155. 



approval of the 



R. s. 80, §§ 4, 8. both pai-ties ; and if a minor is bound with the 

risiualls: selectmen, the}' shall ceitity such approval in writing upon each 

9 Gray, 377. „„,.<. „^ ,.u„ ;„^„„f„..„ 5 



part of the indenture. 



3 
4 



Olid part of Section 6. One part of the indenture shall be kept for the use 

kept for minor, of the minor bv the parent or guardian who executes it, and, if 
r!*s. «i,|§ o, 8. made with the approval of the selectmen or by the overseers of the 
p." I.' 149," I «; poor, shall be deposited with the town clerk for the use of the 
minor. 



1 
2 
3 

4 
5 



Money, etc., SECTION 7. All Considerations of money or other things paid or 1 

to lie for use of allowed by the master upon a contract of service or apprenticeship 2 



17a4, 64, § 1 
R. S. 80, § 9. 

a. s. ui, § 8. 



made in pursuance of this chapter shall be paid or secured to the 
sole use of the minor who is bound therebv. p. s. i4u, §• 



Bonds to tie 

fiven. 
865, -270, § 1. 
p. S. 149, § 8. 
See c. 106, § 45. 



Section 8. No minor shall be bound as an apprentice or ser- 1 

vant unless his parent or guardian or a responsible person in his 2 

behalf gives a bond in the sum of two hundred dollars to the 3 

master, With condition that the minor shall serve liim for the full 4 

term of his apprenticeship or service, and that the master shall be 5 

held harmless from any loss or damage from the breach of such 6 

condition ; but if the parents are unable to give such l)ond a bond 7 

in such sum as may be agreed upon by and between the master and 8 

the parents or guardian of such child mav be given. The master 9 

shall also give bond to the minor in a like sum, with condition that 10 

the master shall comply with the conditions of the indenture, shall 11 

not be guilty of an}' misconduct towards the apprentice or servant 12 

and shall hold the apprentice or sen-ant harmless fi-om any loss or 13 

damage by reason of any failure ou his part to com}ily Avith the 14 

term-s" of the indenture. If minors are bound by state, town or 15 

municipal authorities or authorized agents, the bond required to be 16 

given to the master may be waived by the parties. 17 



The bond given by the master shall be kept for the 



Bond given by SECTION 9. 

master, how „ , . , , . "^ . ■ t i -i' ^.i 

kept. use of the minor bv his parent or guardian ; and it there is no 

p. s. '149, §9. parent or guardian, it shall be deposited with the clerk of the town 3 

in which the master resides for the use of the minor. 4 



Parents, select- 
men, etc., to 
inquire into 
treatment of 
children. 
I71W-4, 14, § 1. 
1710-11,6. 5 1. 
1793, 59, § 5. 
I'M, 64, § -2. 



Section 10. Parents, guardians, selectmen and overseers shall 
inquire into the treatment of all children bound by them or with 
their approval, or by their predecessors in office or with their 
approval, and shall defend all such children from cruelt}-, neglect 
or breach of contract on the part of their masters. 

R. S. 80, § 10. G. S. Ill, § 9. P. S. 149, § 10. 



1 
9 

3 
4 
5 



Complaint for SECTION 11. Comi)laints bv parents, guardians, selectmen or 

misconduct of ,. ■ , " i ^ x- >.i i. j i, tU 

master or ser. ovcrseei's lor misconduct or neglect ot the master, and by tne 

court."!!"""' master for gross misbehavior of the apprentice or servant or his 

i7.5!^9,''i7;|-2: rcfasal or wilful neglect to do his duty may he filed in the probate 

1794; 64; |§\ 4. court in the county in which the master resides and shall state 

wli^.^^'^' the fact« and circumstances of the case 



The court shall order 



1 
2 
3 
4 
5 
6 



Cha1\ 155.] MASTERS, APPRENTICES AND SERVANTS. 1371 

7 notice to the adverse party, .and, if tlie complaint is made by the g. s. in, §§in, 

8 master, to all })ersons who have covenanted in behalf of the appren- p.'s. W8, §§ ii, 
1) tiee or servant and to the selectmen who approved the indenture ^'"' 

10 or to their successors in office, and it shall have jurisdiction in 

11 equity to hear and determine such comjilaint. It may enter a 

12 decree that the minor be discharged from his apprenticeship or 
lo service, or that the master be discharged from his contract. A 
14 minor who has been so discharged may be bound out anew. 

1 Section 12. Costs may be awarded to the pi'evailing party, court may 

2 and execution issued therefor ; but no costs shall be awarded 'S.'^oi)™^..^' 

3 against selectmen or overseers, unless it appears that the complaint R.1'.'jfo',f§"i3!' 

4 was made without just and reasonable cause. Costs in favor of the '§;§. m §12 

5 master may be recovered of the parent or guardian who executed p-s. 149,513. 

6 the indenture, or, if there is no parent or guardian liable therefor, 

7 such costs may be recovered in an action against the minor when 

8 he arrives at full age. 

1 Section 13. All damages recovered from a master in an action Damages re- 

2 on the indenture for the breach of a covenant on his part shall, after ImsteMn™™ 

3 deducting the necessary charges in prosecuting such action, be the denture" '°' 

4 property of the minor and may be applied and ap})ropriated to r"! ];'; l"i4 

5 his use bv the person who recovers the same, and the residue shall g. s. n'l, §is. 

1 , . 1 • , ' . . ,. ,. p. S. 149, § 14. 

h be paid to the minor, it a male, at the age ot twenty-one 3^ears, or, 

7 if a female, at the age of eighteen years or at the time of her mar- 

8 riuge within that age. 

1 Section 14. Such action may be brought by the parent of the By whom such 

2 minor or his executor or administrator, by the guardian of the bJougivt!*^ ''^ 

3 minor or his successor or by the overseers of the poor or their sue- Rfl.'tio.l^is. 

4 cessors ; or it may be brought in the name of the minor by his Jj- 1- J]J' | \f 

5 guardian or next fi-iend, as the case may require, or by himself 

6 after the expii'ation of the tenn of apprenticeship or service. 



1 Section 15. If the action is brought by the overseers, it shall ?f™;tion\°^°' 

2 not abate bv the death of any of them, or bv their being succeeded brought by 

3 in office, but shall proceed in the names of the oriofinal plaintiti's or 1793, 59, §.5. 

4 of the sun'ivor of them, or of the executor or administrator of the g! s! 111, § I's. 

5 siu-vivor ; and the money recovered in such action shall be depos- ' *"' ^' ' ^' 
() ited in the city or town treasury, to be applied and disposed of as 

7 provided in section thirteen. 

1 Section 16. No such action shall be maintained, unless com- Limitation of 

2 menced during the tenn of apprenticeship or sei-vice or within two preut'ioS "'' 

3 years after its expiration . g. s. 111, § le. p. s. 149, § 17. 140 Mass. ise. g"!; f^^ | %_ 

1 Section 17. K judgment in such action is rendered for the Discharge of 

2 plaintifl', the court ma}', upon his motion, discharge the minor from ^Sn^^^'^'' ^^ 

3 his apprenticeship or service, if it has nut already been done as Rl'l.go.V'i's- 

4 before provided, and the minor may be bound out anew. piiiugjls: 



1372 



MASTERS, APPRENTICES AND SERVANTS. 



[ClI 



\I' 



155. 



DiBcbarpe of 
apprentice 
by death of 
master. 
1794, (i4, § 5. 
R. S. 80, § 24. 
G. S. Ill, §21. 



Section 18. No indenture of apprenticeship or of service made 
in pursuance of tliis cliapter sliall bind tiie minor after the death 
of his master, but the apprenticeship or service shall be thereby 
discharged, and the minor may be bound out anew. 

p. S. 149, § 19. 



1 
2 

4 



Chapter to 
apply to mis- 
tresses. 
R. S. 80, § 25. 



Section 19. The foregoing provisions of this chapter shall 1 
apply as well to mistresses as to masters. 2 

G. S. Ill, § 22. p. S. 149, § 20. 



Performance, 

in cities, of 
duties men- 
tioned in this 
chapter. 
R. S. SO, § 27. 
G. S. Ill, §24. 



Section 20. The provisions of this chapter relative to the 
selectmen or overseers of the poor of a town shall apply to the 
mayor and aldennen and overseers of the poor of a city or to such 
other officers as have charge of the poor therein. p. s. 149, §21. 



PART III. 



OF COUETS AND JUDICIAL OFFICERS AND PRO- 
CEEDINGS IN CIVIL CASES. 



TITLE I. 

OF COURTS AND JUDICIAL OFFICERS. 

Chapter 156. — Of the Supreme Judicial Court. 

Chapter 157. — Of tlie Superior Court. 

Chapter 158. — Provisions Common to tlie Supreme Judicial Court and the 

Superior Court. 
Chapter 159. — Of the Equity Jurisdiction and Procedm-e of the Supreme 

Judicial Court and the Superior Court. 
Chapter 160. — Of Police, District and Municipal Courts. 
Chapter 161. — Of Justices of the Peace and Trial Justices. 
Chapter 162. — Of Probate Courts. 
Chapter 163. — Of Courts of Insolvency. 

Chapter 164. — Of Judges and Registers of Probate and Insolvency. 
Chapter 165. — Of Clerks, Attorneys and other Officers of Judicial Courts. 
Chapter 166. — Of Provisions relative to Courts and of Naturalization. 



CHAPTEE 156. 

OF THE SUPREME JUDICIAL COURT. 



1 Section 1. The supreme iudicial court shall consist of one chief Number of 

. . , . . '^ . .. justices. 

2 justice and SIX associate justices. leaa-noo, s, § i. nw, iv. Ded.oiKightB, 

1782, 9, 6 1. lH-23, 9S. 1840, 87, § 6. G. S. 112, § 1. ^'^- '^^■ 

17911, 82, § 1. R. S. 81, § 1. 1848, 9. 1873, 40. 

1804, 106, § 1. 18:j7, 78. 1852, 127, § 1. P. S. 150, § 1. 

1 Section 2. The full court shall be the supreme judicial court Q.;|;j5™- ^ 

2 in banc, and four justices shall constitute a quorum to decide allnso, 17. ' 

3 matters which are i-equired to be heard by it. 1862, 127, § 2. isool 71, § i. 

1859, 196, § 39. G. S. 112, § 2. P. S."l50, § 2. 1883, 223, § 2. ^- ^- *1> § H- 

1 Section 8. The supreme judicial court shall have general super- sui.erintend; 

2 intendence of all courts of inferior jurisdiction to correct and prevent TOurts.'" ''™^ 

3 errors and abuses therein if no other remedy is expressly provided ; e.^I.s'mm, 5. 

[ 1.37-3 ] 



1371 SUPREJIE JUDICIAL COURT. [CllAP. 15(j. 

1859, 190, §38. and it may issue v.Tits of eiTor, certiorari, mandamus, proliibi- 4 

p.' s.' 150,' § 3.' tion, (juo warinvuto and all other A\Tits and processes to such courts 5 

icushiiw. and to corporations and individuals which may be necessary to the 6 

i-23Mas8*«o, furtheitiuce ot" justice and to the regular execution of the laws. 7 

*"1- 127 Mas6. 59, 60, 257. ItS! Mass. UC. 167 Mass. 123. 

^?ertain SECTION 4. A majority of the justices may, if in their judg- 1 

L™™rs 5- "^ent the public good so requires, remove fi-om office the clerks of 2 

G^s'.iVi, §4. the coiu'ts or of their own court; and if sufficient cause is shoAvn 3 

p.'s. 150, §4. therefor and it appears that the public good so requires, may, upon 4 

11 Gray,' 206. a bill, petition or other process, upon a summarv hearing or other- .3 

I Allen, 368. -wise, reuiove a clerk of the superior com't, or of a police, district or (5 

municipal court, a count}' commissioner, sheriff, register of probate 7 

and insolvency or district attorney. 8 

eenmai':"''"' SECTION 5. The court shall have original and concurrent juris- 1 

i6u^i7uo, 3, § 1. diction with the superior court of actions of conti^act or replevin in 2 

i|*<'9.§|-,, which the damages demanded or property claimed, if the actions 3 

iiJ4o,'s7,'§ iV are brought in the county of Suli'olk, exceed in amount or va\ue 4 

g!''s. 112, § 6.' four thousand dollars or, if brought in any other county, exceed 5 

issvis?' one thousand dollars, if the plaintiff, or a person in his behalf, 6 

L5bf§5!''^^*' before .service of the writ, makes oath before a justice of the peace 7 

II Met. 293. tij.jt \iQ believes the matter souifht to be recovered actuallv equals 8 
99 Mass. 468. in auiount or valuc Said amounts, resiiectivel v. A certihcate ot such 9 

127 Mass. 316. , 1 17 , . 1 1 1 1 " . rr»i ., /- 

138 Mass. 328. oatii .sliall bc indorsed on or annexed to the writ, ihe comt may 10 

163 Mass.' 270.' also on petition hear and determine all matters and questions aris- 11 

167 Mass. 424. i„g under wiUs. 12 

lawto bulicard SECTION (5. QuestioDS of law arising upon exceptions or report, 1 

by full (om't. upon appeals fi"om the superior court, upon cases stated or upon 2 

H. ,s'. 8i,'§ 13. special verdicts and all issues in law, except as otherwise provided, 3 

p.' 1.' i.io,' § 7.' .shall be heard and determined by the full coiu't. 4 



2 Met. 379. 



120 Mass. 87. 134 Mass. 338. 137 Mass. 536. 168 Mass. 297. 170 Mass. 1.52. 



Eesei;T,ation of SECTION 7. Qucstions of law ari.sins: upon a trial or other pro- 1 

questions ot ^ . , ^ i • ■ • 

law- _ ^ ceeding or upon a motion tor a new trial by reason ot an opinion, 2 

G. .s. m, § 10. direction, order or refusal of one justice in matter of law may be 3 

6 Alien, 150.' rcscrvcd for the consideration of the full court, and so much of 4 



lis Mass. MO. the case as is necessary for understanding the (juestion shall be 5 
reported. lei Mass. 46. 6 



144 Mass. 260. 



when''ar(fueir' SECTION 8. Qucstions of law wWch are entered upoo the dockct 1 

(Ts u"' rw ^^' ^^^ ^"^^' court shall, when reached, be argued in their order, if 2 

1864, iii,'§ i. either party is ready, unless the court for good cause shown post- 3 

115 Mass. 33.5. pones the argument. But no party shall be compelled to be ready 4 

for argument within ten days after the question has been duly 5 

reser\'ed of record in the court in which the case is pending. 6 

nai"dw^e7it''' SECTION 9. Qucstions arising upon appeals and exceptions in 1 

Boston. the suiierior court in criminal cases, and all processes and other pro- 2 

18.59, 196, § 4«. 1- • 1 1-1 1 J- 11 1 r 4.\ i. o 

G. s. ii2,§§35, ceedings in such cases which may la«-tull_y come betoi-e tiic court 6 

p.'s. 150, §10. for the commonwealth at Boston, shall be entered upon the criminal 4 

docket, and be in order and have precedence for argument on such 5 



Chap. 156.] supreme judicial court. 1375 

6 clay ill every month in wliicli the court may be in session as the 

7 eoiu't may designate ; and the arguments shall be continued until 

8 such cases are disposed of, and shall not be postponed except for 
y ijood cause shown. 

1 Section 10. K, when a question is reached in the order of the Hearings ex 

2 docket, only one party is ready for argument, the com-t may hear ?|^iou8 wuliout 

3 it, ex parte ; or, if, upon exceptions, neither party is ready, the iJIg""'^" V 47 

4 exceptions may be passed upon by the court without argument, or, g. s. 112, § 37. 

5 for cause shown, the argimient may be postponed ; but no case the 
(5 ai'gument of which has been postponed shall be again in order for 

7 argument until all the other cases ready for argument have been 

8 argued, postponed or otherwise disposed of. 

1 Section 11. The full com-t shall, as soon as may be after the judgment or 

2 decision of the questions submitted to it, make and enter a proper det-lsion**'*'^ 

3 order, direction, judgment or decree for the further disposition g;''!'/*^^^' 

4 of the case, or cause a rescript, containing; a brief statement of the 1?''S'?^-^- .,„ 

_ . . ~ "■ ^- l'">0, § 12. 

5 grounds and reasons of the decision, to be filed therein ; or it may 12 Alien, iofi. 

6 by a writ of certiorari or other proper process remove the record of 123 Mass! tis. 

7 the case, or order it to be removed, into the supreme judicial court, 130 Mass! 201! 

8 there enter judgment, and remand the record to the court from 1^ '^i''^^- ''^s. 

9 which it was removed to carr}' such judgment into efl'ect, or instead 

10 thereof, the full court may order a new ti'ial or fm-ther proceedings 

11 at the bar of the supreme judicial court, or order sentence to be 

12 awarded or execution issued in said com"t. 

1 Section 12. The records and rescripts which are made after the contents of 

2 decision of questions t)f law shall contain a brief statement of the isMriae^HS.' 

3 reasons therefor; and if no further opinion is written within sixty p.' 1.' Jso' § 13' 

4 days, the reporter shall publjsh the case with the opinion contained 

5 in such record or rescript. 

1 Section 13. If, upon the hearing of an appeal or exceptions in rrivoiouaex- 

2 an action at law, a suit in equity or other proceeding, it appears that S.'tm 5. 

3 the appeal or exceptions ai-e fi-ivolous, immaterial or intended for ^' g,y|'^^'' 

4 delav, the court mav, either upon motion of a imrtv or of its own y- f- ?-'?• f ,i?- 

p. .* ^ . ' , ., -Ill -r. ». loU, § 14. 

5 motion, award against the aiiiicllant or excepting partv double costs if^isj, 223, § 15. 

o 11 loit joo Mass. '218. 

6 from the time when the appeal was taken or the exceptions were 121 Mass! m. 

7 allowed, and also interest from the same time at the rate of twelve 130 mUbs! 265. 

8 per cent a year on any amount which has been found due for debt ^^ ^''s^- ^s". 

9 and damages, or which he has been ordered to pay, or for which 

10 judgment has been recovered against him, or may award any part 

11 of such additional costs and interest. 

1 Section 14. If, by mistake or accident, an appeal from the Late entry of 

2 superior court or a bill of exceptions which has been allowed by i7ai*'i7, § 1. 

3 the supreme judicial court or the superior court is not duly entered es-si. §§34- 

4 in the full court, that coiu't, upon petition filed within one year after pf-}g|'|JI- 

5 the appeal or bill of exceptions should have been entered, and upon J.^'^fa*;'-.,^^ 
(1 terms, may allow the appellant to enter his appeal or the excepting lei Mass! 593! 

7 party to enter his bill of exceptions. But no security by bond, 

8 attachment or otherwise, which has been discharged by the omission 



i;}TG 



SUl'REME JUDICIAL COUKT. 



[Chap. lot). 



to enter an appeal or bill of exceptions shall be revived or continued 9 
in force by the entr^' thereof. 10 



Law sitting for 

tlie common- 

wealtli. 

ISoa, 1%, § 36. 

G. S. 112, § -in; 

11.5, § 18. 

P. S. Lin, § SO; 

1.t3, § If!. 

1(13 Mass. 535. 



Section 15. A law sitting of the court for the commonwealth 
shall be held annually at Boston on the fii'st Wednesday of January 
and may be adjourned from time to time to places and times most 
conducive to the dcsj)atch of business and to the interests of the 
public. At such sitting, questions of law arising in the counties 
of Barnstable, Middlesex, Norfolk and Suffolk and, by consent of 
the parties filed in the case, such questions arising in other counties, 
and such (juestions for which no other provision is made, shall be 8 
entered and determined. 9 



other law 
sittings. 
178-2, ii, § 1. 
171W, 82, §§ 2, 3, 
1800, 71, § 2. 

Berksliire. 

l,sBi, ;«), § 1. 

18t>.s, 32ij, § 1. 

Franklin and 
Hampshire. 
1861, i)i), § 2. 



Hampden. 



Worcester. 
1885, 48. 

Plvmowth. 
lSti2, 21.5, §§ 1, 2. 

Bristol, Dukes 
Countj" and 
Nantucket. 



Essex. 
1868. 168. 
1870, 351. 



Section 16. For hearing questions of law arising in the follow- 1 

ing counties, law sittings shall be held as follows : — 2 

1802, 39. 1820, U, §§ 1, 6. R. S. 81, § 50. G. S. 112, § 27. 

1804, 105, §§ 2, 3. 1828, 2. 1859, 196, § 36. P. S. 150, § 31. 

For the count}' of Berkshire, at Pittsfield, on the second Tuesday 3 

of September. 4 

For the counties of Franklin and Hampshire, alternately at Green- 5 

field and Northampton, on the first Monday after the second Tues- 6 

day of September, the sittings at Northampton being in the even 7 

years. 8 

For the county of Hampden, at Springfield, on the second Mon- 9 

day after the second Tuesda}' of September. 10 

For the count}' of Worcester, at AVorcester, on the third Monday 11 

after the second Tuesday of September. 12 

For the county of Plymouth, at Plj'mouth, on the third Tuesday- 13 

of October. ' ' 14 

For the counties of Bristol, Dukes County and Nantucket, at 1.^ 

Taunton, on the fourth Monda}' of October. 1(5 

1S61, 206. 1877, 178, § 3. 1891, 287, § 1. 

For the county of Essex, at Salem, on the first Tuesday of 17 

November. 18 

Such sittings may be held for the trial of causes and for the 19 

despatch of business for which a court may be held by one justice 20 

in the county in or for which the court is held; but no juiy shall 21 

be summoned for such sittings, except in the county of Essex, unless 22 

an order therefor is issued by the justices of ,-<aid court, or one of 23 

them, directed to the clerk of the courts of said county. 24 



Transfer of 
cases by full 
court. 
1892, 127. 
162 Mass. 90. 



Section 17. The full court sitting in an}' county, or for the 1 

commonwealth, shall have jurisdiction of all (jucstions of law and of 2 

all cases and matters at law or in equity, ci^'il or criminal, which 3 

arise in any county other than that in or for which it is sitting, 4 

and ^\•hich might properl}' be heard and determined by it sitting for 5 

such county ; and, upon the application of a party, the full court (i 

may, in its discretion, order any such questions of law, or ca.se or 7 

matter, to be entered and determined by the full court sitting in any 8 

county, or for the commonwealth. 9 



ca^HtiTcases SECTION 18. Exceptions which are alleged at the trial of a 1 
i^s S Vio ♦■'ipital case in any county may be entered and determined either at 2 
i89i,'379,'§2. ■ the law sitting of the supreme judicial court held for the county in 3 



(JlIAr. lotj.] SUPREME JUDICIAL COURT. 1377 

4 which they arise, or, upon the order of the justices presiding at the i894, 2m. 

... . 162 Mass 90 

5 trial, at the sitting of the court for the commonwealth. 

1 Section 19. If the justice before whom an action or proceeding He.iringsin 

2 is tried in the supreme judicial coiu't or the superior court in questious ariB- 

3 counties other than Barnstable, ^Middlesex, Norfolk or Sufiblk con- TOunties!"*'^ 

4 siders that a (juestion of law which arises for the deteraiination of ui'l. u's,|''i3. 

5 the fall com-t is innnaterial, frivolous, or intended merel}' for delay, Jj^ Mass lo**' 

6 or that the interests of the jjarties or of the public recjuire a more 

7 s})eedy determination thereof than can be reached in the sitting 

8 established for the county in which the action or proceeding is tried, 

9 he shall so certify and order the question of law to be entered 

10 and heard at the sitting of the court for the commonwealth ; and 

11 all the other proceedings shall be the same as if the question had 

12 arisen in one of the above-named counties. 

1 Section 20. Questions of law arising at the October sitting of ^^Essex^"""' 

2 the superior court for civil business for the county of Essex may, isge, 4i2V§i. 

3 if so ordered by the presiding justice, unless otherwise agreed by 

4 the counsel, be entered and determined at the sitting of the court 

5 for the commonwealth. 

1 Section 21. Jury sittings of the court shall be held by one Jury sittings. 

1782 9 § 1 

2 iustice and he shall there have and exercise all the powers not ex- 1799', s-z, Ǥ 2, 3. 
01 J i j-i i- 11 i isoo, 71, §2. 

6 pressly reserved to the tuU court. is2o, 14, §§ 1, e. i828, 2. 1802I sh. 

■r.S.81,§59. 18S9, 196, § 66. G. S. U2, § 28. P. S. 150, § 32. 1804, 10.% §§ 2, 3. 

4 Such sittings shall be held as follows : — 

5 For the county of Barnstable, at Barnstable, on the first Tuesday Barnstable. 
(3 of May. 

7 For the county of Berkshire, at Pittsfield, on the second Tuesday Berkshire. 

•^ •' 1868,325, §1. 

8 01 May. 

9 For the counties of Bristol, Dukes Count}^ and Nantucket, at Bristol, Dukes 

10 Taunton, on the tliird Tuesday' of April, and at New Bedford, on the Nantucket. 

11 second Tuesday of November. 1877, ns, §3. is-s, m, § 1. i^orv™! 

12 For the county of Essex, at Salem, on the third Tuesday of April g|^<^-^j|, .^ 

13 and the first Tuesday of November. is7o;3oi! 

14 For the county of Franklin, at Greenfield, on the second Tuesday Frankim. 
T e \ -1 " I860, 57, § 1. 
lo 01 April. 

16 For the county of Hamjjdcn, at Springfield, on the fourth Tues- Hampden. 

17 day of April. 

18 For the county of Hampshire, at Northampton, on the third "ampsbire. 

19 Tuesday of April. 

20 For the county of Middlesex, at Lowell, on the third Tuesday of ?|^f^S§f|i. 

21 April, and at Cambridge, on the third Tuesday of October. i83-;89,'§2. 

I860, 57, §2; 210, § 1. 

22 For the county of Norfolk, at Dedham, on the thu-d Tuesday of ^"■"f""'- 

23 February. 

24 For the county of Plymouth, at Plymouth, on the second Tues- Plymouth. 

25 day of May. ''^' '''''■ 
2(i For the county of Sufi"olk, at Boston, on the first Tuesday of fg'if»J^g 

27 Ajiril, and the second Tuesday of Se})tember. 

28 For the county of Worcester, at Worcester, on the second Tues- Worcester. 

29 day of April. 



1378 



SUPERIOR COCRT. 



[Chap. 157. 



Sittings .It Fall 
River. 
187(1, 107, § 1. 
P. S. 150, § U. 



"Section 22. If the publir business so requires, the court may 1 

adjourn an established sitting within and for the county of Bristol 2 

from either Taunton or New Bedford to Fall Kiver, in the manner 3 

and with the eti'ect of an adjouiMiment to another shire town ; and 4 

such adjournment shall be subject to all the provisions of law rela- 5 

tive to adjoui'nments to another shire town. 6 



?r"NantiK^e?^ SECTION 23. An action, suit or proceeding arising or pending 1 

c.ise8 to be }„ jj^g countv of Dukcs Countv or Nantucket, which is cognizable 2 

tried lu Bristol. ..' , ii.i. iii^ o 

R. s. !*i, § 5«-. by the supreme judicial com't and which is to be heard before one 3 

justice, shall be entered, heard, tried and determined at the court 4 

held in the county of Bristol, in all respects as if the same court 5 

were held in the county of Dukes County or Nantucket, as the case (> 

may be ; and all matters cognizable by the full court arising or 7 

pending in the county of Dukes County or Nantucket shall be heard 8 

and determined as if arising in the countj- of Bristol. 9 



G. S. 112, § 

1877, 178, § 3. 

1878, 151, § 1. 
P. S. 150, § 35. 



Section 24. Four or more justices present at a jury sitting 
shall have and exercise the powers of a full court. One justice 



Powers o£ 
justices at jury 
and law sit- 

R. s.'si, § 38. present at a law sitting shall have and exercise the same authority 

1S59 196 5 39... ' 

G. s. ii-i, § 18. as at a jury sitting. 



p. S. 150, § 36. 



1 

2 
3 
4 



accoums etc SECTION 25. The full coiut, sitting for the commonwealth, shall 1 

G. s. ii-2,'§39. examine and audit all accounts for services and expenses incident to 2 

said com't, and they shall be paid b}' the commonwealth. 3 



Salaries. 

Decl. of Rights, 

art. 29. 

1780, a. 

1789, 44. 

1806, 3. 

1809, 13. 

R. S. 81, § 61. 

1843,9. 

1844, 24. 

18.56, 10. 



Section 2(5. The chief justice of the court shall receive an 
annual salary of eight thousand live hundred dollars, and each of the 
associate justices an annual salaiy of eight thousand dollars, and the 
chief justice and each of the associate justices shall annualh' receive 
live hundred dollars in full compensation for travelling expenses, to 
be paid by the commonwealth. g. s. 112, § 40. 1866, 46, § 1. 

1872, 160. P. S. 1.50, § 39. 1888, 274, § 1. 1892, 1(M. 1900, .185, § 1. 



1 

2 
.t 
.•> 

4 

h 



ctortcai assist- SECTION 27. The justices of the court shall be allowed annually 1 

i89i,'89. not more than twenty-five hundred dollars for clerical assistance, 2 

which shall be paid by the commonwealth upon the certificate of the 3 

chief justice. 4 



CHAPTEK 157. 



OF THE SUPERIOR COURT. 



Number of 
jQstices. 
1799, 81, § 1. 



Section 1. The superior court shall consist of one chief justice 1 
and seventeen associate justices. 2 



1820, 79, § 2. 
R. S. 82, § 1; 
86, §1. 
1843, 7, § 4. 



l.«45, 1.55. 
1851, 330, § 1. 
18.55, 449, § 1. 
18.59, 196, § 7. 



G. S. 114, § 1. 
1875, 230. 
P. S. 1.52, § 1. 
18«i, 31. 



1888, ,58. 
1892, 271. 
1896, 526. 



Court, how 
held. 

l.-yo, 79, § 1. 
R. S. 82, § 32. 
G. S. 114, §2. 
P. S. 152, § a. 



Section 2. The court may be held by one or more of the jus- 
tices, and when so held shall have and exercise all the power and 
jurisdiction committed to said court, exceiit as provided in section 
two of chapter two hundred and one and .sections five and eight of 
this chapter. 



Chap. 157.] scperior court. 1o79 

1 Section 3. The court shall have exclusive original jurisdiction Exclusive 

2 of actions of tort except those of which other courts or trial justices is2o, n. s i.' 

3 have concurrent original jurisdiction, of liliels for divorce or for ifio.^;. 

4 affinuing or annulling marriage, of writs of entry for the furecloswe ilss^ Itlif/s. 

5 of mortgages and other real actions, of complaints for flowing lands Jf"|' J'l^'L'g 4 
(1 and of claims atjainst the connnonwealth, and original iurisdiction }*I"'^^"'§i-' 

~ . ^ . . . 1880, *2S. 

7 of all civil actions exceiit those of which other comls or trial iustices p. s. i.r.>, §§ 3, 4. 

...... 18S7 33"2 5 1 

8 have exclusive original jurisdiction. 

1 Section 4. The court shall ha^e original and concurrent juris- concurrent 

2 diction with the su})reme judicial court of actions of contract or i""if7M,'|T' 

3 replevin in which the amount demanded or proj^erty claimed ex- liss,'i"^i,^|3^'*" 

4 ceeds in amount or value four thousand dollars if brought in the J?-''| '^jj L'^ g 
f> countv of Suffolk, and one thousand dollars if brought in anv J'-,*,-.'''^'^!!'"- 

• ' . . , ..... '^ . , .'138 Slass. 338. 

() other county; and original and concurrent jurisdiction with police, 

7 district and municipal courts and trial justices of personal actions in 

8 which the amount demanded or the value of the property claimed 

9 exceeds one hundred dollars, except actions of replevin of beasts 

10 distrained for the recover}' of a penalty or forfeiture, or to obtain 

11 satisfiiction for damages. No action shall be commenced in the 

12 court wherein the debt or damages demanded do not exceed one 

13 hundred dollars. 



1 Section 5. Actions in which the amount demanded or property Trials by three 

2 claimed exceeds in amount or value ten thousand dollars if brought i"'ji'"i7, § 1. 

3 in the county of Suffolk, and five thousand dollars if brought in 

4 any other county, and in which the plaintiff or a person in his 

5 behalf files in the court, with, or subsequent to, the agreement of 
(3 reference, an affidavit sworn to by him before a justice of the peace 

7 that he believes the matter sought to be recovered actually equals 

8 in amount or value said amounts, respectivel}', may, by agreement 

9 of the j)arties, be heard and determined by tliree justices, sitting 

10 without a jury, a majority of whom shall, except as provided in 

11 section ninety-six of chapter one hundred and seventy-tliree, deter- 

12 mine all (|uestions of law and fact arising therein. 

1 Section 6. The court shall have jurisdiction of all civil actions Appellate ravu 

2 and ]-)roceedings which are legally brought before it by appeal or i"2nr7",*r°' 

3 removal. 

E. S. S2, § 3. G. S. 114, § 5. 1887, 33-2, § 3. 1898, 562, § 14. 

Ift59, 19B, § b. P. S. 15-2, § .5. 1890, 127, § 1. 1S99, 131, § 2. 

1 Section 7. The court shall have original jurisdiction of all ffi";!i|'o'S!" ^™^' 

2 crimes, and appellate jurisdiction of crimes which are tried and JJJIfJ' J|' |J- 

3 determined before a police, district or municipal court or a trial I812; 133. 

4 justice. 

1830, 113, § 1. 1843, 7, § 1. G. S. 112, § .i; U4, § 6. 

1832, 130, §1. ISW, 449, 5 3. P. S. I.tO, § 5 ; 152, § 6. 

R. S. 81, § 17; 82, §25; 86, §4. 1859, 196, § 1. 1891, 379, § 1. 

1 Section 8. In capital cases, all proceedings, except the trial ^"apl^a"^'^ 

2 of the indictment, may be before one justice. Such trial shall be ^^^''"g.y^ ^ 2. 

' ' '204.' 



162 Mass. 94. 



3 held before two or more iustices, either at a regular or special sit- i894 20 

4 ting. Upon the death or disability of one of the justices sitting at 

5 su(-h trial, any other justice of said court may sit in his place. 



1380 



SUPERIOR COIRT. 



[Chap. 157. 



After a decision upon exceptions, judgment may be entered and 6 
sentence awarded or a new trial granted b}' one justice. 7 



TransmiBsion 
of IndU'tment. 

18611, 433. § -2. 
P. S. ISO, § 18. 
1891, 37a, § 3. 



Section 9. The clerk of the courts for the county in which an 1 

indictment for a capital crime has been entered, or, if it has been 2 

entered in the county of Suffolk, the clerk of the superior court for 3 

criminal business, shall forthwith send notice thereof, with a copy 4 

of the indictment, to the chief or first justice of the court and to 5 

the attorney general. Any justice of said court may thereujion 6 

appoint a time for the arraignment of the prisoner, which shall 7 

take place either at a regular sitting or on a day special!}' assigned 8 

therefor. 9 



Section 10. If the prisoner pleads guilty, the com-t shall award 



Arraignment. 

18-20, 14, § 8. 

R*'' '^''A'is sentence against him ; if he does not plead guilty, the court may 
16. ' ' assign him counsel and take all other measures iireparatorA' to a 

G S 112 65 8 9 • • • . . . *■ 

2o'. ■ • ' • trial, which shall, subject to the provisions of section si.\ty-one 
fsof.sTit'li.^' of chapter two hundred and eighteen, be held as soon after the 
1893, 365. finding of the indictment as the other official duties of the justices 

will admit and the circumstances of the case require. 



1 
2 
3 

4 
5 

(5 

7 



Indictments in 
Dulles County 
and Nantucket. 
1832, 130, 5 «. 
E. S. 81, § 4U. 
G. S. 112, « 24. 
1878, l.'il. 
P. S. InO, § 24. 
1891, 379, § 5. 



Section 11. An indictment for a capital crime found in the 
county of Dukes County or Nantucket .shall be tried in the county 



of Bristol ; and the court for that purpose shall be convened and 
held, and all proceedings relative thereto conducted, as when held in 
the county in which an indictment is found. The court may in such 
case, from time to time while the indictment is pending, make 
orders relative to the place of confinement of the prisoner, and the 
expense of his keeping shall in all ca.ses be paid by the county in 
which the indictment is found. 



1 

2 
3 
4 
,') 
(> 
7 
8 
9 



Change of 
venue. 
1871, 240, § 1. 
P. S. 150, § 26. 
1891, S79, § 6. 



Section 12. Upon the petition of a person indicted for a cajiital 1 

crime, the court may, if in its opinion an impartial trial cannot be 2 

had in the county in which the case is pending, order a change" of 3 

venue to uny county adjoining the county in which the indictment 4 

Avas found ; and on such order, the court shall have jurisdiction in the 5 

county to which such change may be made. All other jiroceed- 6 

ings in such case shall be the same, as nearly as may be, as if the 7 

indictment had been originally entered in such adjoining count}'. 8 



Transmission 
of papers. 
1871, 240, § 2. 
p. S. LW, § 27. 
1891, 379, § 7. 



Section 13. The clerk of the courts in the county in which 1 

the indictment is pending, or, if the indictment is pending in the 2 

county of Suft'olk, the clerk of the superior court for criminal 3 

business, shall forthwith, ujion the entry of such order upon the 4 

docket, transmit the original indictment, with the papers in the 5 

case and a duly certified copy of said order, to the clerk of the courts 6 

for the county to which the venue has been changed, or, if the last 7 

named county is the county of Sulfolk, to the clerk of the superior 8 

court for criminal business ; and the clerk, upon receiving the in- 9 

dictment so ti-ansmitted, shall make immediate entry of the case 10 

upon the docket of the superior court for such county. 1 1 



ney'to'cond'uct SECTION 14. After the venue has been changed under the pro- 1 
case in new visions of the two nrccediii": sections, the district attorney for the 2 

venue. i o ' •' 



CilAl-. 157.] SUPERIOR COL-RT. 1381 

3 oounty in which the indictment was found shall continue to have is-i, 240, §3. 

4 the same authority and duty in the case as if the venue had not i8'9i,'37V§ s* 

5 been changed. 

1 Section 15. If a change of venue is ordered, the sherifi'who custody of 

2 has custody of the prisoner shall forthwith deliver him to the sheriff i'"r"4(ii§ 4. 

3 of the county to which the venue has been changed, who shall is'ui.'sVa.'la.^' 

4 receive and safely keep him as if the indictment had been found 

5 in such county. 



1 Section l(i. A justice of the court, sitting at the trial or compenBation 

2 other proceedings upon an indictment for murder, maj^ allow reason- prisoner!^ ° 

3 able compensation for the services of counsel assigned to defend the ^^^^' ^^' ^ "' 

4 prisoner if he is otherwise unable to procure counsel, and such com- 

5 pensation shall be paid by the county in which the indictment is 
i) found. 

1 Section 17. The reasonable expenses incurred and paid by the Expenses of 

2 counsel assigned by the court for the defence of a person indicted ','ii's"ner. 

3 for murder, who is otherwise unable to procure counsel, shall be paid ''"'*^' '^'^*' ^ '' 

4 by the count}' in which the indictment is found after approval by a 

5 justice sitting at the trial or other proceedings of the case. 

1 Section 18. If an appeal or a bill of exceptions in a case, civil gSuponap- 

2 or criminal, has been duly entered in the supreme judicial court, 1*^"^- ^..^ 5 ,, 

3 anv security which has been taken in the case, by bond, attachment ifi'ou.'iaB, §31. 

4 or otherwise, shall stand as if no judgiuent had been rendered or p.' s.' 15-2,' § i2.' 

5 exception taken in the superior court, until final judgment shall be 
(3 entered, unless, in the case of a bill of exceptions, execution is 

7 awarded because the exceptions are immaterial, frivolous or in- 

8 tended for delaj'. 

1 Section 19. Orders or decrees of the supreme judicial court "f,"eml'ju,ii. 

2 upon questions which arise in a case pending in the superior court ;;i;,','„'^Jj^^^' '" ^^ 

3 shall be entered of record in the superior court, and such case shall g. |. n4,| i|. 

4 be disposed of as law and iustice require, conformably to the re- los Maes'. 4-^6.' 

. ^^ , ,. ^, *'.,..; , ■' 124 Mass. 353. 

5 script or order ot the supreme judicial court. 

1 Section 20. Parties to an action which is submitted to the de- .Judgment anai 

2 termination of the court may agree that the judgment therein shall r^I.^sI.Tu"*' 

3 be final. g. s. n4,§i3. p. s. 152, §14. 

1 Section 21. The clerk shall, at the expense of the appellant or Trausmission 

2 excepting party, or of the plaintiff upon a case reserved or reported, i859ri%™§§ 33, 

3 or of the commonwealth in criminal cases, prepare and transmit to o.'s. n4,§i4. 

4 the supreme judicial court for the proper county one copy of every J'gMas's'.'u^' 

5 paper on file in the case, except papers used in evidence only, and 

6 of all papers made part of the case or refen-ed to in the bill of ex- 

7 ceptions or report, or so much thereof as is necessary fully to pre- 

8 sent the question of law, for the use of the chief justice, and a like 

9 copy for the clerk of the supreme judicial court, which shall be kept 

10 on tile in said court ; and one copy of the bill of exceptions, report 

1 1 or jiapers upon which the question of law arises on appeal for each 



1382 



SUPERIOR COI'RT. 



[Chap. 157. 



associate justice, for each party and for the reporter of decisions. 12 

Original papers used in the trial, which are needed in the supreme 13 

judicial court, shall be transuiitted to its cleric to be b}- him kept on 14 

file until the rescript in such action is sent. The expense of such 15 

copies and transmission shall be taxed in the bill of costs of the 16 

prevailing party, if lie has paid it. 17 



AflBrmation of 
judgment of 
district, etc., 
court upon 
non-entry of 
appeal. 
17«3, 42, § 6. 
R. S. 85, § 15. 
G. S. Kd, § 27. 
P. S. l.io, § 34. 
18a3, SiW, § 30. 
117 Ma68. 27H. 
lis JI.I88. 418. 
171 MaSB. 444. 



Sectiox 22. If, upon an appeal in a civil action or proceeding 
from a judgment of a police, district or municipal court or trial 
ju.stice, the appellant fails to enter and prosecute his appeal, or if, 
upon such appeal from a trial justice, the ajipellant fails to produce 
the copies or papers mentioned in section one hundred and three 
of chapter one hundred and seventj'-tliree, the court may, upon 
complaint of the apj)ellee, affirm the fonuer judgment or render 
such other judgment as law and justice require. 



1 
2 

4 
5 
(3 
7 
8 



Late eutry of 

appeal. 

1791, 17. 

R. S. 82, §§ 21- 

24. 

G. S. U4, § 15. 

P. S. 1.52, § 16. 

117 Mass. 280. 



Section 23. If, by mistake or accident, an a]ipeal to the supe- 1 

rior court is not duly entered therein, or if, for a like reason, a 2 

complaint founded on an omission to enter an apjieal has not been 3 

entered by the appellee, the court, upon petition tiled within one 4 

year after the appeal or complaint should have been entered, and 5 

upon terms, may allow the appellant to enter his appeal or the (> 

appellee to enter his comi)laint. Attachments made and security 7 

given in the original action shall not be revived or continued in 8 

force by the entry of such appeal or complaint. 9 



SittingB of 
court. 



Barnstable. 
1833, 51. 
18«9, 354. 

Berkshire. 

185fl, 258. 
LSti.*, 3-25, § 1. 
1871, 84. 



Bristol. 
1827, 13,5, § 2. 

1878, H5. 
1888, 314, ?§ 1, 3. 
1891, 2.S7, § 2. 
1899. 140. 



Dukes Countv 

1825, 107, § 2. " 
1827, 18. 

Esse.x. 
1839, 1.50. 
l.*49, .39. 
1852, 288. 
mw, (12. 
1870, 315. 
l.s\5, 191, § 1. 
1889, 461. 
1896, 412. 



Franklin, 
issi, 44. 
1S.S9, 327. 

Hampden. 
1830, 40. 
1.-44, 171. 
1815, 2.53. 
1849, .53. 
1868, 2.50. 
1S85, 27. 



Section 24. Sittings of the court shall be held as follows 



1799, 81, § 1. 

R. S. 82, §§ 40, 41 ; 8<i, § 1. 



18.55, 449, 5 7. 
18.59, 196, I 10. 



G. S 114, § 16. 
V. S. 152, § 17. 



For the county of Barnstable, at Barnstable, on the first Tuesday 2 
of April and on the second Tuesday of October. is9i, its. i899, 271. 3 

For the county of Berkshire, at Pittstield, for civil business, on 4 
the fourth ilondays of February, June and October ; for criminal .5 
business, on the second ^Mondays of January and July. (i 

For the county of Bristol, for civil business, at Taunton, on the 7 
first jNIonday of March and the second Monday of September, and 8 
at New Bedford, on the first IMondays of May and December : for 9 
criminal business, at Taunton, on the first ^Monday of February, at 10 
New Bedford, on the first Monday of June, and at Fall River, on 11 
the first Monday of XovemlK-r. 12 

For the county of Dukes County, at Edgartown, on the last Tues- 13 
days of April and September. 1833, 51. 1874,34. i8S9, 30s. 14 

For the county of Essex, for civil business, at Salem, on the first 15 
Mondays of June and December : at Lawrence, on the first ilonday 1(5 
of March; and at Xewburvport, on the first ^Monday of October ; for 17 
criminal business, at Salem, on the second ]\Ionday of January; at 18 
Newburvport, on the second Monday of May; and at Lawrence, on 19 
the second ]\Ionday of September. • 20 

For the county of Franklin, at Greenfield, on the second Mondays 21 
of March, July and Xovember. 1898, 355. 22 

For the county of Ilamjiden, at Springfield, for civil business, on 23 
the .second Mondays of ^larch and .Tune and the fourth Monday of 24 
October ; for criminal business, on the first Monda\- of May, the 25 
foui-th Monday of September and the third Monday of December. 2io 



Chap. 157.] superior court. 1383 

27 For the county of Hampshire, at Northampton, for civil business, Hampshire. 

28 on the third ^Monday of February, the first ^Monday of June and the issi] lu. 

29 third Monday of October ; for criminal business, on the second Mon- 

30 day of June and the third Monda}' of December. 

31 For the county of ^liddlesex, for civil business, at Lowell, on the Middlesex. 

32 first Mondays of April and October, and at Cambridge, on the first iis!!7|«V§2. 

33 Monday of January; for criminal business, at Cambridge, on the isVil iii! 

34 second Mondaj^ of February and the first Monday of June, and at mI;!^^, §2. 

35 Lowell, on' the third JMonday of October. 189-2,391. 1901,162. ists, 9. 

36 For the county of Nantucket, at Nantucket, on the first Tuesday's Nantucket. 

37 of July and October. is:!3, .•ii. isrs, 100. '"' '' 

38 For the county of Norfolk, at Dcdham, for civil basiness, on the f^l''>^^^- 

39 first INIondays of January, May and October; for criminal business, wsa'.-zsi. 

40 on the first Mondays of April, September and December. 

41 For the county of Plymouth, at Plymouth, on the second Mondaj's fj^^,™^]'"'- 

42 of February and June and the fourth ^Nlonda}' of October. issii -21,5, § 3. 

43 For the county of Suftblk, at Boston, for civil business, on the ^,^"j°j'^gg 509 

44 first Tuesda3^s of Januar}-, April, July and October; for criminal 

45 business, on the first Monday of every month. 

4(i For the county of Worcester, for civil business, at Worcester, on wore«ster. 

J -, 183.1 llG 

47 the first Monday of March and the second Monday of December, and wm. m. 

48 at Fitchburg, on the first Mondays of June and November ; for 

49 criminal business, at Worcester, on the third IMonday of January, 

50 the second IMonday of I\Iay and the third Monday of October, and 

51 at Fitchburg, on the third Monday of August. 

1 Section 25. The court shall, except in July, August and Sep- speedy trials 

2 tember, hold a separate and continuous session, so far as is practicable, im, 'im, 547. 

3 in the county of Suftblk for the speedy trial of causes which have ^^^' *^^- 

4 been advanced for speedy trial according to law, of causes which 

5 have been entered in said court on appeal, of actions of contract orig- 
G inally commenced in the superior court in which the amount de- 

7 manded or proiDcrty claimed does not exceed in amount or value two 

8 thousand dollars, of petitions to enforce liens under the provisions 

9 of chapter one hundred and ninety-seven, and, upon the application 

10 of either party, of actions in which a new trial by jury has been 

11 granted or an auditor's report has been filed, and of all other cases 

12 in which, in the opinion of a justice of said court, substantial jus- 

13 ticc and relief require a speedy trial. A trial list of such cases shall 

14 be made every month. 

1 Section 26. The court shall not be required to sit for the trial f^reefusHces. 

2 of actions described in section five, except in Boston, Worcester is9i."".§§ 3,4. 

3 and Sjn-ingfield, and the justices shall, from time to time, make pro- 

4 vision for such sittings in said cities, and may make provision for such 

5 sittings in any county, at times which are most convenient. Such 

6 actions shall be tried in such one of said cities as the parties may 

7 agi'ee upon or as the court orders. 

1 Section 27. The court may adjourn any established sitting in 4<'^»^™°*, 

2 and for the county of Bristol from Taunton or New Bedford to Fall Fan mver. 

3 River, or in and' for the county of Plymouth from Plymouth to i%n, is. 

4 Brockton, in the manner and with the effect of an adjournment fgs.\]34.'^^*" 

1888, 314, § 4. 



1384 



SUTERIOU COURT. 



[Chap. 1.')7, 



to another shire town ; and such adjournment shall be subject to all 5 
the provisions of law relative to adjijuriunents to another shire (J 
town. 7 



Return day In 
criminal cases. 
1841, 111, § X. 
185D, 11«;, ? 1-2. 
G. S. 114, §lb. 
P. S. 1.t2, § -23. 
18U7, 490, § 3. 
11 Gray, iOS. 



Section 28. The first Monday of every month .shall be a return 1 

day for the entry of apj)eals from police, district and municipal courts 2 

and trial justices and of suits upon recognizances and bonds in crim- 3 

inal ca.ses. Such ajjpeals shall be entered on the return day next -4 

after the appeal is taken. Such suits may be made rcturna]>le at the .') 

election of the district attorney at any such return da^^ within three ti 

months after the date of the writ. Trials by jury of such suits shall 7 

take place at criminal sittings ; and such suits shall be filed, dock- 8 

eted and recorded as criminal cases. 9 



Criminal busi- 
ness, only at 
siltin^rs lor 
criminal busi- 
ness. 

1835, IIB, § 3. 
R. S. 82, § 42. 



Section 29. In the counties in which separate sittings of the su- 1 

perior court are established for civil and criminal business, criminal 2 

cases only shall be tried by jury at the criminal sittings, and civil 3 

cases only at the civil sittings. 4 

1859, 196, § 11. G. S. 114, § 17. P. S. Iij2, § 22. 1897, 490, § 4. 



— special 
tings for. 
1874, 200. 
P. S. 162, ( 
1897, 490, § 



sit- 



19. 
5. 



The chief justice of the court may, by an order in 1 

writing directed to the slieritf, ordei' a special jury for a sitting for 2 

criminal business to be held in any county at such time and place as 3 

may be appointed in such order. The sheriff shall give notice thereof 4 

as directed in the order therefor ; but no person under recognizance .T 

to answer to an indictment or to a criminal complaint shall be held i> 

to appear at such special sitting or at any time and jilace other than 7 

the regular sittings of the court, unless duly notified by written 8 

summons from the clerk. 9 



Kran"furyf "' SECTION 31. The cWcf justicc of the com't may, b}' an order in 1 

1897, 490, § 6. writing, directed to the sheriff, cause the grand jury in any county 2 

to be assembled at such time and place as may be appointed in such 3 

order. 4 



Precedence of 
(XTtain prose- 
cutions. 
Is.V), .iVi. 5 35. 
1.859, lll(>, § .54. 
G. S. 80, § 68; 
1 14, § 20. 
P. S. 162, § 25. 



Section 32. At a sitting of the court at which criminal busi- 
ness may be transacted, cases arising under the provisions of chap- 
ters one hundred and ninety-one, one hundred and one hundred and 
one shall lia\ e precedence in the order in which said chapters are 
herein named, next after the cases of persons who are actually con- 
fin(^d in prison and awaiting trial. 



sitthig^'"" °' Section 33. If a criminal case is on trial at the end of a sitting, 1 
|F*.' 'f-:, c.,,, such sitting may be continued, and the jurors serving in such ca.-^e 2 
121 Mass. si". ' may be required to serve until the case is finished. 3 



Custody of 
records. 
1859, IWl, § 4. 
G. S. 114, § 21. 
P. S. 152, § 27. 



Section 34. The records of courts which are transferred to the 1 

superior court shall remain in custody of its clerks. In the county 2 

of Suffolk, the clerk of said court for civil business .shall have the 3 

cu.stod}' of .said records in civil cases, and the clerk for criminal 4 

business shall have the custody of said records in criminal cases. 5 

Cojiies of .said records may be cei'tified by said clerks respectively. ti 

Judicial writs and processes which ai'c founded upon such records 7 



Chap. 158.] supreme jubicial and superior courts. 1385 

8 shall isfsue under the seal of the superior court, in like manner and 

9 with the same effect as similar writs and processes which are 
10 founded upon its own records. 

1 Section 35. The chief justice of the court shall receive an salaries. 

2 annual salary of seven thousand dollars, and each associate justice g. s. iw, § 2S!- 

3 an annual salarj' of six thousand five hundred dollars, and the chief isTviw! 

4 justice and each associate justice shall annually receive five hundred r.'s.isi', §28. 

5 dollars in full compensation for travelling expenses, to be paid by j^s!v?74: 

6 the commonwealth. J«J5> g^- ^ ^ 



CHAPTER 158. 

PROVISIONS COMMON TO THE SUPREME JUDICIAL COURT AND THE 

SUPERIOR COURT. 

1 Section 1. In case of a vacancy in the office of chief justice vacancies, etc. 

2 of the supreme judicial court or the superior court, or of the illness g.I. mfn. 

3 or absence of the chief justice, his duties shall be performed by psiss, 51. 

4 the senior justice of such court who is present and qualified to act. 

1 Section 2. If, in the opinion of a justice of either court, it is iBsueofproc- 

2 important that a writ or other process should be speedil}^ issued in county*"^ 

3 a cause pending in the court of which he is a justice, he may order i"*^>^"^- 

4 it to be issued by the clerk of the courts in the county in which he 

5 is sitting ; and such clerk shall transmit the order to the clerk of the 

6 courts of the county in which the cause is pending, to be filed and 

7 recorded with the other papers in the case. 

1 Section 3. The courts shall, respectively, from time to time Rules. 

2 make and promulgate uniform codes of rules, not inconsistent with i8iu!7y, §7. 

3 law, for regulating the practice and conducting the business of such S'f's:!'^^"' 

4 courts in cases not expressly provided for by laM' ; for the purpose of, }|5; Ssl §§^44, 

5 First, Simplifying and shortening pleadings and procedure. issi sii; §§34 
(5 Second, Prescribing the terms upon which amendments will be Jl^g'g-,',^ 

7 allowed or unnecessary counts and statements stricken from the i!«7;ai7;§3! 

IT • T J J -i i- J I 18S9, 1%, §§ 35, 

8 record ; discouraging negligence and deceit ; preventing delay ; se- 49. 

9 curing parties from being misled ; placing the party not in fault as niifn!^'^"^' 

10 nearly as possible in the condition in which he would have been if p^l'.fgi.las; 

11 no mistake had been made; distinguishing between form and sub- iss.h-J^^^' 

12 stance ; and substituting fixed and certain requirements for the dis- 

13 cretion of the court. 

14 Third, Conducting trials. 

15 Foiu-th, Presenting distinctly the questions to be tried by the 

16 jury. 

17 Fifth, Giving a party such notice of the evidence which is in- 

18 tended to be oflered by the adverse party as will prevent surprise 

19 and enable him to jirepare for trial. 

20 Sixth, Prescribing such forms of verdicts as will place upon 

21 record the finding of the jury. 

22 Seventh, The entry of judgment by the clerk under a general i8«s. 384. § 12- 

23 order in all cases ripe for judgment. 



1386 



SUPREME JUDICIAL AND SUPERIOR COURTS. [ChAP. 158. 



1894, -283, § 2. - Eighth, Expediting tlie decision of causes and securing the speedy 24 

trial thereof. 2.5 

Ninth, Remed^'ing abuses and imperfections in practice and 2() 

diminishing costs. 27 

1S97, 472. Tenth, Filing and hearing motions to set aside verdicts and 2<H 

notifj'iiig adverse parties thereof. 2H 

1896,401. Eleventh, The superior court may also from time to tune make 30 

and |)romulgate such rules for the regulation of the printing, j)ubli- 31 

cation and distribution of trial lists and for notifying attorneys of 32 

trials in civil causes as the public convenience in the several coun- 33 

ties requires. 34 

The rules of the superior court shall not conflict with those of the 35 

supreme judicial court. 36 



Courts always 

open. 

188.5, 384, § 2. 

1897, 490, § 1. 

153 Mass. 31U. 

175 Mass. 37. 



Section 4. The courts shall be always open in every county and 1 

the business thereof, or of the justices thereof, may be transacted at 2 

any time ; but such business .shall not, except as provided in section 3 

five of chapter one hundred and sixtj'-six, be transacted on the 4 

Lord's da}^ or on a legal holiday unless it relates to an application 5 

which, in the opinion of the justice to whom it is made, is of ti 

pressing necessity. 7 



busSslnny SECTION 5. The couits and the justices thereof, respectively, may 
mTm §3 '" ^"^ county transact any business of such couils and direct the 
entry of an}' order, judgment or decree in an action, suit or proceed- 
ing i^ending in the same court in another county. 



1 
2 
3 
4 



Duration of 
sittinjj^s. 
1885, 384, § 4. 
1897, 490. 



Section 6. Regular sittings of the courts for the transaction of 1 

civil or criminal business shall commence on the day ajtpointi^d by 2 

law therefor, and shall end on the day preceding the day next ap- 3 

pointed by law for a sitting in such county for the transaction of the 4 

same kind of business. Such regular sittings may at any time be 5 

adjom'ned from time to time or without day, and such adjournment (i 

.shall excuse the attendance diu'ing the adjoiu-nment of all persons 7 

who are required to attend at the sitting, unless expressly notified ^ 

to attend, but shall not otherwise terminate the sitting. 9 



Simultaneous 
sessions. 
1851, 330, § 2. 
1859, 19«, § 13. 
G. S. 115, § 16. 
P. S. 153, § 22. 



Section 7. Two or more simultaneous sessions of the court may 
be held in the .same county, if the public convenience so ref|uircs ; 
and the business may be so divided as to secure its speedy and con- 
venient disposal. 



1 

2 

3 
4 



J^-TOunt"™"' Section 8. The courts shall, respectively, receive, e-xamine and 1 

»"!i'?,c... allow accounts for services and cxiicnscs incident to their sittings 2 

1859, 190, §20. in the several counties and order payment thereof out of the respec- 3 

G. S. 11,5, § 17. ,. . , . ' •' ' . 

p. 8.153, §23. tive county treasuries. io4 Mass. 537. 4 



Atti^ndanre of 
justices. 
1821, 23, ? 1. 
R. S. 82, § 38. 
G. S. 116, § 18. 
P. S. 153, § 24. 



Section 9. The justices of said courts, respectively, or a 1 

majority of them, shall from time to time make such arrangements 2 

for the attendance of a justice at the several times and places 3 

appointed for holding the courts as will be most convenient and 4 

as will insure the prompt peiformance of their duties. 5 



Chap. 159.] equity jurisdiction. 1387 

1 Section 10. A justice of either court who, having attained tlie Retirement of 

2 age of seventy years and having served in either or both of said .•ige'.'""' '""^ 

3 courts for at least ten consecutive years, resigns liis office shall, isstIISo; 

4 during the remainder of his life, receive an amount equal to three- i8si9, 310, § i. 

5 fourths of the salary which is by law payable to him at the time of 
(i his resignation, to be paid by the conuuon wealth in the same manner 
7 as the salaries of justices of said courts are paid. 

1 Section 11. A justice of either court who, having attained the —for 

2 age of sixty years and having served in either or both of said courts 1899, mJi 2. 

3 tor at least fifteen consecutive years, shall have become disabled for 

4 the full perfoiTuance of his duties as such justice by reason of ill- 

5 ness or othei-wise may, with the approval of the governor and 

6 council, resign his office under the provisions of this section, and 

7 shall thereafter, daring the remainder of his life, receive the same 

8 amount, and in the manner provided, in the preceding section. 

1 Section 12. If the public business so requires, either court may Adjournment 

2 adjourn an established sitting in one shire toMti to another in the shire "town. 

3 same county. Persons, recognizances and processes required to issy;!^; 

4 appear at or to be returned to the established sitting shall appear at, p; |; J^' 1 05" 

5 be returnable to and have day in, the adjourned sitting. 

1 Section 13. If no justice is present at the time and place ap — in absence 

2 pointed for holding a court at the beginning of a sitting or at an i78-!",';i,'|'!>- 

3 adjournment thereof, the sherifl" of the county or any of his deputies is2o;i4t'§^5t79, 

4 may adjourn the court from day to day or from time to time, as \^ jjg ^g 

5 circumstances require, or as ordered by any of the justices, and shall k. s 8i, §39; 

6 give notice of such adjournment by making public proclamation in ism, i9«, § 19. 

7 the court house, and by a notice posted on the door of the court p.' s.' 153,' ? 26! 

Q ^ I 1 • 1 1 • 97 Mass. 214. 

liouse or published in a newspaper. 

1 Section 14. In such case, any justice may by a written order same subject. 

2 require the sheriif or his deputy to adjourn the court without day e.*I'.8'i?§4o. 

3 or to the time expressed in the order: and the officer shall adjourn p.' s! 153,' § I?.' 

4 the court accordingly by public proclamation in the court house. 

1 Section 15. Each court may e*tabli.sh a seal and appoint all seai, ,>iu(i otii- 

•. „ . . ^'^ eers ol court. 

2 officers necessary for the transaction 01 its business. 1859, i9b, § is. 

G. S. 116, § 22. P. S. 153, § 28. 



CHAPTER 159. 

OF THE EQUITY JURISDICTION AND PROCEDURE OF THE SUPREME 
judicial court and the SUPERIOR COURT. 

1 Section 1. The supreme judicial court and the superior court oenerai equity 

2 shall have original and concurrent jurisdiction in equity of all cases concurrent.' 

3 and matters of equity which are cognizable under the general prin- g. .s'.'iis, § 2. 

4 ciples of equity jurisprudence and, with reference thereto, shall be p.'s'.\m',V*- 

5 courts of general equity jurisdiction. lofiifs^s.^lek^' 

140 Mass. 4,')9. l.TO Blass. .3.%. Ififi M.'ies. 394. 172 Mass. .'iS. 135 Mass. 140. 

141 Mass. 545. 165 Mass. 123. 168 Mass. 76. 177 Mass. 230. 



1388 



EQUITY JUIUSUICTION. 



[ClIAl>. 159. 



Stiitutury 
equity juris- 
ilu'tiun. 
G. S. 113, § 1. 
P. S. l.il, § 1. 
1883, -iiX, § 1. 
160 M:l8«. 73. 
155 Mass. 417. 



Section 2. The .supreme judicial coui-t shall have orinfintil and 1 

exclusive jurisdiction in eijuiU' of all cases and matters of ecjuity 2 

which are cognizable under the provisions of any statute and are not 3 

within the jiu-isdiction confeiTed by the provisions of the preceding 4 

section, unless a different provision is made ; and the superior court 5 

shall have like original and exclusive, or like original and concur- (i 

rent, jiu'isdiction only if the statute so provides. 7 



Special juris- 
du'liuu. 
R. S. SI, § 8. 
tJ. S. 113, § 2. 

Uo-ddivery, 

i't<-. 

1823, 140, § 1. 

18.i3, 371, ? 4. 

20 I'ick. 28. 



Contribution. 
183a, no, § 2. 
1853, 371, §4. 



Multiplicity of 
interests. 
13 Gray, 5. 
5 Allen, 380. 
100 Mass. 357. 



Joint owuers, 

et<'. 

1891, 383. 



.Joint trustees, 

etc. 

1832, lfi2. 

.■Vccounts. 
li. S. 118,5 43. 
101! Mass. 50. 
110 Mass. 32. 
114 Mass. 122. 

Credit*:ir8' bills. 
1851, 2oe. 
1838, 34. 
1884, 285. 
1 Allen, ofiC. 
10") Mass. 423. 
118 Mass. 273. 

127 Mass. 206. 

128 Mass. 478. 
132 Mass. 104, 
408. 

130 Mass. 73. 
137 Mass. i)-23. 
140 Mass. 271, 
404. 

147 Mass. 81. 

148 .Mass. 76, 
411. 

141) M;iss. 24, 

487. 

I.'iO Mass. 211, 

280. 

131 Mass. 200, 
481, 51.3. 

1.32 Mass. R4. 
131 Mass. 302. 
13.1 Mass. 2,i!l, 
H4. 

Ml Mass. 58. 
I ;3 Mass. 127. 
I«4 Mass. 85, 
2-4. 



Section 3. The supreme judicial court and the superior comt 
shall have original and concurrent jm'isdiction in equity of the fol- 
lowing cases : — p. s. isi, § 2. 1.883, 223, § 2. 12 Met. 310. 

Clause 1. Suits to compel the re-deliveiy of goods or chattels 
which have been taken or detained from the oMner, and are so 
secreted or withheld that they cannot be replevied. 

134 Mass. 181. 



23 Pick. 22s. 
7 Cush. .330. 



16 Grav, 219. 
131 Mass. 319. 



Clause 2. Suits for contribution by or between devi.sees, lega- 
tees or heirs liable for the debts of a deceased testator or intestate, 
and by or between other persons respectively liable for the same 
debt or demand, if there are two or more such persons liable at the 
same time to make such contribution. 

Clause 3. Other cases in which three or more j)ai1:ies have dis- 
tinct rights or interests which cannot be justly and definitely de- 
cided and adjusted in one action at law. 

105 Mass. 543. 110 Mass. 54. 113 Mass. 502. 120 Mass. 481. 

Clause 4. Suits between joint owners of personal property, 
and their legal representatives, relative to such property, with 
authority to determine their respective rights and interests therein, 
to order a division or sale thereof and make and order a proper 
distribution of the proceeds of a .sale, and to do all other things 
relative to a determination of the owner.ship, division and distribu- 
tion of such property or the jiroceeds thereof. 

Clause 5. Suits between joint trustees, co-executors and co- 
administrators, and their legal representatives, e. s. 70, §S5. 1853, .371, § 4. 

Clause 6. Suits upon accounts, the nature of which is siicii 
that they cannot be conveniently and properly adjusted and settled 

in an action at law. 123 Mass. 117. 145 Mass. .39. 

Clause 7. Suits by creditors to reach and apph', in payment of 
a debt, any property, right, title or interest, legal or ecjuitiible, of a 
debtor, within or without this common wealtli. which cannot be reached 
to be attached or taken 011 execution in an action at law, althougli the 
amount of the debt is less than one hundred dollars or the property 
sought to be reached and applied is in the hands, jiossession or control 
of the debtor independently of any other jierson or cannot be reached 
and applied until a future time or is of uncertain value, if the value 
can be ascertained by .sale, apprai.sal or by any means within the ordi- 
nary procedure of the court. In such suit, the interest of a partner 
of the defendant in the jiartnership property may be reached and 
a]iplied in payment of tlio jilaintiffs debt ; but unles.-< it is a judg- 
ment debt, the business of the partnershij) .shall not be enjoined or 
otherwise interrujited further than to restrain the withdrawal of any 
portion of the debtor's share or intere.st therein until the ))laintiirs 
debt is established ; and if either jiartner gives to the ])laintiff a 
sufficient bond with sureties approved by the clerk, conditioned to 



1 

2 
3 
4 
5 

(> 

7 
8 

10 
11 
12 
13 
U 

15 

k; 

17 

IS 

i;> 
20 
21 
22 

23 
24 
2.^ 
2(> 
27 
28 
2!l 
3(1 
31 
32 
33 
34 
3.") 

3(; 
37 

38 
3!> 
40 
41 
42 
43 



1 



Chap. 159.] equity jurisdiction. 1389 

44 pay to the plaintiff tlic amount of his debt and costs within thirty ic5 stass. ssg. 

45 days after it is established, the court shall proceed no fuither therein b/jo. '"*^' '' 
4(5 than to establish the debt ; and upon the filing of such bond, any in- 

47 junction previously issued in such suit shall be dissolved. 

48 Clause 8. Suits to reach and apply in paj'ment of a debt any Fraudulent 

49 jiroperty, right, title or interest, real or personal, of a debtor, liable isTsr^ss""''^' 

50 to be attached or taken on execution in an action at law against- him isj,' aJs,' 1 1; 

51 and fraudulently conveyed by him with intent to defeat, delay or J^j jjjjg^l^j}; 

52 defraud his creditors, or purchased, or directly or indirectljqjaid for, J^jJills'lio' 

53 by him, the record or other title to which is retained in the vendor 

54 or is conveyed to a third person with intent to defeat, delay or de- 

55 fraud the creditors of the debtor. 

1 Section 4. Each court may, if it is necessary to secure justice issue of proc- 

2 and equity, issue to courts of inferior jurisdiction, corporations and i7.s>, a, §2. 

3 persons all general and special writs and processes required in pro- r s. si.Vi'. 

4 ceedings in equity. p. s. ir>i, §1. is83, 223, §1. g. s. 113, §1. 

1 Section 5. Suits in equity in said courts may be brought in venue. 

2 any county in which a transitory action between the same parties losiiass ' 

3 might be brought, as well as in counties in which it is elsewhere 

4 provided that such suits may be brought. 



37B. 



Section 6. No suit in equity in said courts shall be defeated on Amendments. 

IS^nI 223 § IT 

2 the ground that there is an adequate remedy at law, nor shall an}' les Mass. 74. ' 

3 action at law be defeated on the ground that the relief sought can 

4 be obtained only by a suit in equity, but such proceedings shall, at 

5 any time before a final judgment or decree, be amendable at the dis- 

6 cretion of the court upon terais. 

1 Section 7. Procedure, jjrocess and practice in equity causes in Procedure in 

2 the superior court shall, as nearly as may be, conform to that of the i8li!"^'i§3. 

3 sujireme judicial court, the general mles of which for the regulation 

4 of practice in equity shall, so far as applicable and except as heroin- 

5 after provided, be the rules of the superior court for the regulation 

6 of practice in equity. 

1 Section S. Suits in equity may be commenced by bill or peti- n,ent"oT^its 

2 tion, with a wi-it of subpoena according to the usual course of proceed- iSgl'^^'i^-V j 

3 ings in equity, or by an original writ of summons or of sunmions k.s. uo, §117; 

4 and attachment or by the trustee process, or maybe commenced lesb, 371, §§ 1, 2. 

5 by a declaration in an action of contract or tort, as the case may be, g*I. ns, §3. 
(5 with or without an order for tlie attachment of the property or fssf,' 223,' |§^i, 

7 arrest of the defendant, and shall be returnable on the return days }'^j,e„_ ^-^ 

8 prescribed by section twenty-four of chapter one hundred and 137 Mass. 403. 

9 sixty-seven or on the rule days established by the court. 

1 Section 9. If a suit in equity is commenced by bill or petition Bin not re 

-..",. . . , . ,i ±- 1 j_i 1 (luireo in « 

2 inserted in an original writ of summons or of summons and attacii- mons._ 

3 ment, or in a M-rit of trustee process, or by a declaration in an action ^"8. m, § b. 

4 of contract or tort, the bill, petition or declaration need not be in- if«*.2i3.§2. 

5 serted in the separate summons, in the copy of the original writ to 

6 be served on the defendant nor in the copy of the wiit to be deposited 



quired In sum- 



139U EQUITY JURISDICTION. [ChaP. 159. 

Of left with or in the ofEce of a register of deeds or ofBuer of a eor- 7 

poration or other person, for the purpose of making an attachment. 8 

HonTmlde?*^' SECTION 10. Upon petitions for the construction of wills, or for 1 

i8iw*373 instruction relative to wills, the court, instead of the notice now re- 2 

(juu-ed by law, n\a,y order notice of the petition and of the time and 3 

place for hearing to be served on such number of the paities in 4 

interest representing all possible interests as the court shall direct, 5 

and to be published for three weeks successivel}' in such newspaper 6 

as it dh'ects. If it appears that any possible interest is not repre- 7 

sented, frnther service may be ordered until all possible interests 8 

are represented before the com't or until a guardian ad litem has 9 

been appointed. If all possible interests are represented by persons 10 

before the court, it shall not be necessary to make otlier persons 11 

having similar interests parties defendant. 12 

?°equity°8uit8. SECTION 11. Suits in equity in the superioT court shall be entered 1 

1884' 3ik'^^' *^" ^^^'^ same docket as other cases, except in the counties of Suflblk 2 

1892,440. and Middlesex, where they shall be entered upon a separate equity 3 

docket. All processes shall be returnable at the return day oc- 4 

curring next aftei' fourteen daya from the date of the process, if 5 

required to be served fourteen days before the return day, or at 6 

the return day occuiring next after thirty days from such date if 7 

i-equired to be served thirty days before the return day, or at any 8 

rule day within three months after the date of the jirocess. 9 

^5"iw§§'i3 Section 12. The material facts and circumstances which are 1 

r' I' m' V~'*' I'^li'^'i on by the plaintifl" shall be stated with brevity, and immaterial 2 

1883,' 223,' §§ 2, and irrelevant matters shall be omitted. The bill, unless actuallv 3 
10 . . . . . 

inserted in a ^vi-it, shall l)e entitled in the proper coui't, with the full 4 

title of the cause containing the names and descriptions of all the 5 

parties. It shall not be required to contain any address to the court, 6 

or the usual commencement, or any ])i-ayer for an answer, for general 7 

relief or for j^rocess. Discovery may be sought b}' inserting a prayer 8 

therefor in the bill, petition or declaration, or b}' interrogatories. 9 

?n8Tv"7au'd SECTION 13. A defence to a suit in equity shall be made by 1 

isMiw §§s 4. demurrer, plea or answer. A demurrer or plea need not contain a 2 

G.s'. iisisHJs. protestation or eoncludino- praver ; but a demurrer shall be accom- 3 

lo- paniod by a certificate that it is not intiMided for dclav. An answer, 4 

1883 '2'23 5S 2 . * 

10. except to a bill for discovery only, shall not be made under oath or 5 

111 mTs's. 300. under seal, and it need not contain any .saving of exceptions to the (5 

bill, or a prayer to l)e di.sniissed or for costs. Answers to inter- 7 

rogatories in a bill for discovery shall be made within such time as 8 

the court orders, and questions arising thereon shall be detcnnined 9 

by the rules apjilicable to bills for discovery. 10 

pieadi'nss.'" SECTION 14. Bills, answers, petitions and other pleadings may 1 

1883, 223, § 10. |j^> signed hy the party or his attorney, and shall not require any 2 

other signature. 3 

torie"."'""" Section lo. Either party may, at an}' time after the filing of 1 

i"*!' uiS's ^^^^ answer in a suit in eijuity, file interrogatories in the clerk's office 2 

im, 223,'§ 2. for the discovery of facts and documents which are material to the 3 



Chap. I'jti.] eqihty jurisdiction. 1391 

4 support or defence of the suit, to be answered upon oath b}^ the 

5 adverse part}' in the manner and subject to tlie provisions of chapter 

6 one hundred ajid seventy-three relative to interrogatories in actions 

7 at law. 

1 Section 1G. If a pai-tv neglects or refuses to expunge, amend Refusal lo 

^ . " ^. ., 1 answer, etc. 

2 or answer accordinfi: to the requirements ot chapter one hundred and jwi-', «, § 2. 

. . . . p. S. 151 § 9 

3 seventy-three, the bill shall be dismissed or taken as confessed, or if«3,'2i!3,'§2.' 

4 such other order oi' decree may be entered as the case may require. 

1 Section 17. Suits in equity, and motions and other applications Hearing by 

2 therein, whether interlocutory or final, shall in the first instance be igsu.^ifTlfi. 

3 heard and determined by one justice of the court. p.' 1.' 151,' § li. 

1883, 2-23, § 2. 120 Mass. 87. 137 Mass. 4)*7. 

1 Section 18. For hearings, and for making, entering and modi- J?,°^.y* *'"'*y^ 



open. 



2 lying orders and decrees in equity causes, by one lustice, and tor Ruiedafs. 

• • -i • 1 tl i 1 11 1 1 • 18'2«, 109, 6 1. 

3 issuing writs in sucli causes, the courts shall always be open in every 1827, 26. 

4 county, except on legal holidays ; and all such proceedings shall be .^- '^^ *!• §§ 20, 

5 considered as taking place in court and not in chambers. The G^s.'fi's^yv. 
(j supremo judicial couit shall est^iblish rule days for the transaction fssjj.j.lj'l^"^- 
7 of business pertaining to jurisdiction in equity. SAi'ien.'si. 

1 Section 19. A party who is aggrieved by a final decree of a Amxaiftom 

2 justice of the supreme judicial court or a final decree of the superior fsi'il 237?! 2. 

3 com't may, within thirty days after the entiy thereof, appeal there- Jj; ^; JgJ' | f^ 

4 from. An appeal from a final decree of a justice of the supreme }if^[^4V''-2 

5 judicial coml shall be entered on the docket of that comi., and an "■'; ^{l'^". m. 

6 appeal from a final decree of the superior coml shall forthwith be 120 m.'iss! 302! 

7 entered in the supreme judicial coiu't. The copies and papers in lin Mass! i,-'o! 

8 the cause shall be prepared by the clerk of the court and transmitted \^ HlH; ll~, 
H to the supreme judicial com't and entered on the docket of the full j'J2 5[J{;||; ^| 

10 court. - When such aiiiieals have been entered as aforesaid, all pro- J!!? J!"^"- *?.»■ 

11 in 1 11 Ifil Mass. 593. 

11 ceedings under such decree .shall be sta^'ed, and the cause shall i"i Mass. sag. 

12 thereupon be pending before the full court, which shall hear and 

13 detemiine the same, and affirm, reverse or modify the decree appealed 

14 from. Upon the icversal of a final decree, the court may remand 
1.5 the cause to a justice of the supreme judicial court or to the superior 
1() court, with such directions as are neces,sary and proper further to 

17 proceed therein, or the court may refer it to a master or take such 

18 other order relative to future proceedings therein as equity and the 

19 jiLst and speedy determination of the case require. 



1 Section 20. The clerk of the court for the commonwealth shall ^tXrequI?*' 

2 enter ajipeals in equity and probate matters on a separate equity audpTOijate 

3 and probate docket, g. s. us, §14. p. s. 15],§14. 1883,223, §2. 150 Mass. se. issu, m', § 53. 



1 Section 21. Upon an appeal from a final decree, the justice of receivOT°pend- 

2 either court by whom it was made may make such orders for the i,ns'»ppeai. 

•^ , ... lySV), 237, § 3. 

3 appointment of receivers, and of injunction or prohibition, or for «. .s. iis, § 9. 

4 continuing the same in force, as are needful for the protection of the i883,'223,'§2. ' 

5 rights of parties, until the appeal shall be heard by the full court ; 

6 subject, however, to be modified or annulled by the order of the 

7 full court upon motion, after the appeal is taken. 



1392 



EQUITY JURISDICTION. 



[Chac. 159. 



ModiScation of 
decree of supe- 
rior court. 
ISCi, -22;), § 6. 
rjOl, 244. 



■ Section 22. After an appeal has been taken from a decree of 1 

the superior court, the full court may, by an order, on terms or 2 

otherwise, suspend the execution or operation of the decree aji- .3 

pealed from, pending the appeal, and may modify or annul any 4 

order made for the protection of the rights of the parties pending 5 

the appeal ; but, until such order has been modified or annulled, (> 

the justice of the superior court by whom the order or decree 7 

appealed from was made, or any other justice of said court, may S 

make any proper interlocutory orders, pending such appeal, in- !• 

eluding orders for the appointment of receivers, of injunction, of K) 

prohibition, and orders for continuing in force such orders pre- 11 

viously made, or for modifying or dissolving them. The justice 12 

who makes any such interlocutory orders may enforce them hy ap- 13 

propriate proceedings, pending the appeal. 14 



Report of 

facts. 

lS!v), 223, § 7. 

1893, 61. 

173 Mass. 170. 

174 Mass. 2ya. 



Section 23. Upon an appeal from a decree of either court, the 
justice by whom the decree was made shall report the material facts 
found by him, if so requested by the appellant within four days 
after the appellant has been notified of the entry of the decree ; 
otherwise, such report shall be in the discretion of the justice. 



— of teetlmony 
upon appeal. 
186;i, 237, § G. 
G. S. 113, § 21. 
P. S. l.il, § 2tj. 
ism, -'23, § 2. 
13 Allen, 21)11. 
1)5 Mass. 336. 

116 Mass. 230. 

117 Mass. 403. 
130 Mass. 20. 



Section 24. Upon an appeal, the testimony of witnesses who 1 

have been examined orall}^ before a justice of cither coiut shall, at 2 

the request of any part}' made before any e^'idcnce is oftcrcd, be 3 

reported to the full court. The courts shall provide by general rules 4 

for some convenient and efiectual means of having the same reported 5 

by the justice by Avhom the case is heard or by a person designated (i 

by him for that purpose. No oral evidence shall be exhibited to 7 

the full court, but the cause shall be heard on appeal upon the same 8 

evidence as on the original hearing. In cases of accident or mis- 9 

take, the full court may grant leave to parties to exhibit fiu'ther 10 

evidence, and may provide by general rules or special oixler for the 11 

conditions under and modes bv which such evidence shall be taken. 12 



Interlocutory 
decree, appeal 
from. 

185!), 237, § 4. 
G. S. 113, § 10. 
P. S. 151, ? 16. 
1883, 223, § 2. 
103 Mass. 4WSt. 
115 Mass. 119. 
125 Alass. 24. 
165 Mass. 1. 



Section 25. A party who is aggrieved by an interlocutory 1 

di^crce of a justice of either coiu't may, in like manner, appeal to the 2 

full court ; but the appeal shall not suspend the execution of such 3 

decree, except as provided in section twcnty-twO, nor transfer to the 4 

full court the entire cause or any matter therein except the question 5 

whether the interlocutory decree appealed from shall be affirmed, (5 

reversed or modified. 7 



— revision of. 
185a, 237, § 5. 
G. S. 113,? 11. 
P. S. 151, § 17. 
1883, 223, § 2. 
127 Mass. 28. 
109 Mass. 417. 



Section 26. Interlocutoiy decrees which are not appealed from 1 

shall be open to revision upon appeals from final decrees, so far only 2 

as it appears to the full couil that such final decrees are erroneously 3 

aft'ectcd thereby. 4 



fTiifcourt"'' '" Section 27. If, upon making an interlocutory decree or order, 
p.' s.' 1,5?,' 1 18.' *^^ justice is of opinion that it so atfects the merits of the cou- 
188.3, 223, §2. troversy that the matter ousrht, before further ])roceedings, to be 

Uo Mass. 119. V 1 ^ ,, , 1 ■ /. 1 

120 Mass. 281. determined bv the full court, he mav report the (luestion lor that 

165 Mass. 1. 1 ■ i 11 1- .Li !•■ i. 1 

purpose, and stay all lurther proceedings except such as are neces- 
sary to presei-ve the rights of the parties. 



3 
4 
5 
6 



C'hAI'. 159.] EQUITY JURISDICTION. 

1 Section 28. A party who has by accident or mistake omitted retition for 

ICllVC to HUTlCill 

2 to claim an aiJiieal from a final decree within the time prescribed issh, jst, § lo. 

3 therefor may, within one 3'ear after the entry of the decree from p. s.' isi! § 19! 

4 which he desires to appeal, petition the full court for leave to ap- lii'Mlifs.Ves. 

5 i)eal, which may be granted upon terms. 

1 Section 29. A justice of either court by whom a case is heard ft/fuTi'comt. 

2 for final decree may reserve and report the evidence and all ques- J|^| 'fj.^ 5 Yj 

3 tions of law therein for the consideration of the full court; and p- s. loi,' § 20. 

1S83 2'J3, ^ 2. 

4 thereupon like proceedings shall be had as upon appeals from final ui Mirsa.isb. 

5 decrees. 

1 Section 30. If the defendant in a suit in equity in the superior Eemovaiof 

2 court, or a person in his behalf, within thirty Aays after the day for rior cmirt.^"''^" 

3 appearance, makes afiidavit of his belief tliat the matter involved in !"***• --s- § *. 

4 the suit equals four thousand dollars in value, that his interest alone 

5 or with the interest of any other defendant having a joint or conmion 

6 interest with him equals said value and that he has a substantial 

7 defence, and of his intention to bring the cause to a hearing, the 

8 ease, with the papers therein shall, upon his request and at his ex- 

9 pense, be forthwith removed to the supreme judicial court where 

10 it shall proceed as if originally commenced therein. Before such 

11 i-emoval, the superior coiut may make such orders for the appoints 

12 ment of receivers, and of injunction or prohibition, or for continu- 

13 ing the same in force, as are necessaiy for the protection of the 

14 rights of the parties until the case shall be heard by the supreme 
l.T judicial court; subject, however, to be modified or annulled by the 
1(5 order of that court upon motion after the case has been removed. 

1 Section 31. A justice of the supreme judicial court may, if upon — for heiirmf 

2 motion it appears that a suit in equity pending in the superior court isss) S,'*! ™''' 

3 ought to be heaid with a suit or cross suit in equity pending in the 

4 supreme judicial court, order the suit to be removed at the expense 

5 of the applicant from the superior court to the supreme judicial 

6 court, where it shall proceed as if originall}' commenced therein. 

1 Section 32. A justice of either of said courts shall not dissolve control of case 

2 an injunction which has been issued by the other court, or by a in/jurisdkJ' 

3 justice thereof, or interpose in uny proceeding in the equity jurisdic- fsS,' ^ss, § 12. 

4 tion of the other court, except as provided in sections twent} -two, 

5 thirty and thirty-one. 

1 Section 33. Every order and decree shall bear date of the day Decree, etc., to 

2 M-hcn it is actually entered b}' the clerk, and, at the time of the entry."/" 

3 entry, he shall note such date upon the order or decree and upon g^^s. m.Vw- 

4 the docket. isss, 223, § 2. 5 Alien, si. ''• *■ ^"' ^ '■^'• 

1 Section 34. No process for the execution of a final decree of fl,f,a''deCTee?" 

2 either comt shall issue until the expiration of thirty days after the i|5| ^st^ yK_ 

3 entry thereof, unless all parties aaaiiist whom such decree is made p.' s.' i.ii,' § 22.' 

4 waive an appeal by a writing filed with the clerk or by causing an iksMa'ss. 209. 

5 entry thereof to be made on the docket. 



1304 



EQITTT JURISDICTION. 



[Chap. 159. 



^MMinf i?^- Section 35. A justice of either court or the full court may, 1 

'i'siriii"i§Ti;. ^ necessary, hear and deteraiine cases pending iu a county other 2 

R.S. *i, |§i;- than that in which such justice or court is sitting, or any motion 3 

G. s. 113, « 1*- therein ; but a motion shall not be so heard nor a decree or order so 4 

p.' s. 151,55 s- made until reasonable notice thereof has been given to the advei^se 5 

jjarty or his counsel : and either party may transmit his reasons in t5 

wi-iting for or against the application to the court or justice, who 7 

shall examine the same and proceed thereon as if the i^arties were 8 

present. All orders and decrees made on such hearings shall be !• 

transmitted to the clerk in the proper county, and be entered bv 10 

him. ' ' 11 



iN-.^. as. 5 i. 

5 Allen. SI. 
lei Mass. 4o0. 



JuTT issnes. 
IrfS', U. 
E. S. S3, § 46. 
ISaa, -237, 5 13. 
G. S. US, 5 22. 
P. S. 151, § *T. 
l*afl. 116, 5 1. 
123 JI.IS?. oHO. 
137 Mass. 4M2. 



Section 36. The supreme judicial court, upon request of a party 
to an equity cause pending therein, may, in its discretion, frame is- 
sues of fact to be tried by a jmy and order the same to be ti'ied in 
that com! or in the superior court in the county in which such cause 
is pending, or upon the request of all parties in any other county. 

U2 Mass. 161. 143 M.nss. 543. 



1 

2 
3 
4 
5 



.Jar>- mar be 
suminuned. 
1IST4, 3S9, § 3. 
P. S. 151, § iS. 



Section 37. If there is no regular sitting of the supreme judi- 1 

cial court within thi-ee months after the framing of such issues, a 2 

justice thereof may order the clerk of the couits for the county in 3 

which the cause is pending to simmion a jury to try such is.sues, and 4 

the proceedings at such trial shall be in all respects the same as in 5 

a trial at a regular sitting. (> 



.Jnry issues In 

5Ui'erii>r 

court. 

1SS3, 223, § 16. 



Section 38. The superior court may, upon request of a party to 1 

an equity cause jiending therein, fi-ame issues of lact to be tried by 2 

a jury and order them to be tried in the county in which such cause 3 

is pending. 4 



a^^'ex^e^wiS? Section 39. The courts may issue writs of seisin and execution 
fr*i«'^^' ^° common form if such process is appropriate for the enforcement 
G. s. 113, 5 23. of a decree in equity. p. s. isi, 5 29. isss, 223, § 2. loe Mass. 500. 



ConttnnoaB 
sitting in Bos- 
ton. 

1S5M, 196, § 50. 
G. S. 113, 5 24. 
P. S. 151, § 30. 



Section 40. A justice of the supreme judicial court and a jus- 1 

tice of the superior court shall, at all convenient times, sit in Boston 2 

for the puriiose of hearing and determining suits in equity arising in 3 

any county. 4 



Hearing at 
chambers for 
western conn- 
ties. 

1?74, 339, § 1. 
P. S. 151, 5 31. 



Section 41. A jastice of the .supreme judicial court shall sit at 
Springfield, on the first Monday of February, June, August and 
December, for the pur|)ose of hearing such matters in equity as ma}' 
be heard and detennined at chambers, which arise in the counties 
of Berkshire, Franklin, Hampshire and Hampden. 



1 
2 

3 
4 
5 



Taklne papers 
from files. 
1859, 19H, § M. 
G. S. 113, § -25. 
P. S. 151, -532. 
1883, 223, 5 2. 



Section 42. The original papers in a suit in equity pending in 1 

either court ma}- be taken from the files in any county by the counsel 2 

of record of either jiarty, for use before the court, upon leaving a 3 

memorandum and receipt on such files, containing a shoit descri}> 4 

tion of the pajiers so taken. 5 



Chap. H5U.] police, district and municipal courts. 1395 

CHAPTER 160. 

OF POLICE, district AND MUNICIPAL COURTS. 

Sections 1-5. — Police, District and Municipal Covirts. 

Sections G-17. — Justices and Clerlis. 

Sections 18-23. — Civil Jurisdiction. 

Sections 24-38. — Criminal Jurisdiction. 

Sections 39-48. — Sessions and Proceedings. 

Sections 49-54. — Mimicipal Courts. 

Sections 55-61. — ^Municipal Court of the City of Boston. 

Sections 62-66. — Constables and Coiu-t Officers 

Sections 6 7-7 1 . — Salaries . 



1 



POLICE, district AND MUNICIPAL COURTS. 



Section 1. The cities and towns of Chicopee, Fitchbivrg, Hoi- f>23"^|.'^^'V^°- 

2 yoke, La\vi'ence, Lee, Lowell, Lynn, ]\Iarlboroush, Newton, Soiiier- k. s. st, § 29. 

3 ville and "Willianistown .shall each continue to be a judicial district iWa^si.H.' 

4 under the jiu-isdiction of the police court thereof. §'if 4^', |V.^^^' 

G. S. 116, § 1. 1S71, 173, § 1. 1876, 19.5, § 1. 1882, 233, § 3. 
1868, 124, § 1. 1872, 233, § 1. 1". S. 1.54, § 1. 1893, 3%, § 69. 

1 Section 2. The judicial districts of the remaining police courts pouceand dis- 

2 and of the several district courts shall continue to comprise the fol- p."s.*i54f§°2. 

3 lowing cities and towns, respectively: — isas, 396, § 69. 

4 The police coiut of Brockton, held at Brockton ; Brockton, Bridge- Brockton. 

5 water, East Bridgewater and West Bridgewater. \^l\ ||^' ^ ^• 

ISai, 155, § 1. 1887, 322. 

6 The police couit of Chelsea, held at Chelsea ; Chelsea and Revere, cheisea. 

G.S. 116, §1. 1874,201,51. 1855, 26, §1. 

7 The police court of Xewbuxyport, held at Xewburyport ; New- Newburyport. 

8 bury port and Newbiuy. g. s. ue, §i. i879, 234, § .5. r*s. 87^/29. 

9 The police coiu't of Springfield, held at Springfield ; Springfield, springrfieid. 

10 Agawani, Longmeadow, East Longmcadow, Hampden, AVest Spring- d^s.'iis, § i. 

11 field and Wilbraham. 1874, 180, §2. i878, ss, §7. 

12 The tu-st district court of Barnstable, held at Barnstable and f^^^ie'''"^''" 

13 Boiu'ne ; Barnstable, Bourne, Yarmouth, Sandwich, Falmouth and 1890, 177, §1. 

14 Mashpec. 

15 The second district court of Barnstable, held at Harwich and ftS**^*™" 

16 Provincetown ; Provincetown, Trrn'o, Wellfleet, Eastham, Orleans, 1890,177, §2. 

17 Brewster, Chatham, Harwich and Dennis. 

18 The district coiu-t of centi-al Berkshu-e, held at Pittsfield ; Pitts- central Berk. 

19 field, Hancock, Lanesborough, Peru, Hinsdale, Dalton, Washing- i^"3io,§i. 

20 ton and Richmond . iscg, 4i6, § 1. issi, 105. *^- ®- ""^^ § ^■ 

21 The district court of northern Berkshire, held at North Adams ; Northern 

22 North Adams, Clarksbiu-g and Florida. JIm^'h"!. 

G. S. 116, §1. 1870, 201, §1. 1878,143 §6. 

23 The district court of southern Berkshire, held at Great Barring- southern 

24 ton ; Sheffield, Great Barrington, Egremont, Alibrd, Mount Wash- TstoI'Iomi. 

25 ington, ^Monterey and New Marlborough. 

26 The fourth district comt of Berkshire, held at Adams ; Adams, Fourth 

27 Cheshire, Savoy and Windsor. is95,i76,§i. Berkshire. 



i;3<)5 



i'(jlk;k, distuict and municipal courts. [Chap. KiO. 



First Bristol. 
lt<.W, 84, § 1. 
G. .S. Ill), 5 1. 
1.S74, ■i'.«, § 1. 

1877, ISil. 
Swond Bristol. 
18,iJ, 3(14, § 1. 
G..S. llti, §1. 

Tliird Bristol. 

18:j4, :K. 

G. .s. 11(1, § 1. 

1878, 15'.>. 



Dulies County. 
18U8, '287, § 1. 



First Essex. 
1874, 224, § 1. 

Second Essex. 
1888, 11)3, § 1. 

Central north- 
ern Esse.x. 
1854, 34, § 1. 



Eastern Essex. 
1858, 13(), § 1. 
G. .S. 110, § 1. 

Franklin. 
1896, 353, § 1. 



Eastern 
Fraulclin. 
181)1), 31)1, § 1. 

Eastern 
Hampden. 
1S7-2, 277, § 1. 

Western 
Hampden. 
1886, I'JO, §§ 1, 3. 



Hampsliire. 
1882,227, §§1,3. 



Central 

Middlesex. 
1874, 31,-), § 1. 

First iiortliern 
Middlesex. 
1872, 26a, § 1. 



First eastern 
Middlesex. 
1874, 31)2, § 1. 
1893, 350. 

Second eastern 
"Middlesex. 
1.>(S1, Pis, § 1. 

Tliird eastern 
Middlesex. 
18.-)4, 335, § 1. 



Fourth eastern 
Middlesex. 
1882, 2:i3, § 2. 
1888, ,■)!). 
188U, 312. 

First simtliorn 
Middlesex. 
1874, 35, § 1. 
1881, 223. 
1882, 169. 



'The first di.strict coui't of Bristol, held at Taunton and Attlebor- 28 

ough ; Taunton, Relioboth, Berkley, Dighton, Seekonk, Attlebor- 29 

ough, Norton, Man.sfield, Easton, Raynliain and North Attleborough. 30 

The second district couit of Bristol, held at Fall River ; Fall 31 

River, Freetown, Somerset and Swan.sea. 1874, ais, § i. 32 

The third district comt of Bristol, held at New Bedford ; New 33 

Bedford, Fairhaven, Acushnet, Dartmouth and Westport. I8-4, 293, §1. 34 

The second and third district courts of Bristol shall have con- 35 

current jiu'isdiction in Westport and Freetown. 36 

The district court of Dukes Countjs held at Cottage City, Edgar- 37 

town and Tisbury ; Edgartown, Cottage City, Tisbury, West Tis- 38 

bury, Chilmark, Gay Head and Gosnold. 39 

The first district court of Essex, held at Salem ; Salem, Beverly, 40 

Danvers, Hamilton, Middleton, Topsfield and Wenham. 41 

The second di.strict court of E.ssex, held at Amesbury ; Ames- 42 

bury and Merrimac. 43 

The central district court of northern Essex, held at Haverhill ; 44 

Haverhill, Groveland, Georgetown and Boxford. 45 

G. S. 116, § 1. 1861, 207, § 1. 1866, 296. 1867, 316. 1896, 365. 1899, 255. 

The district court of eastern Essex, held at Gloucester ; Glouces- 46 

ter, Rockport and Essex. p.s.i54,§i. 1888, 249. 1,897,403. 1900,400. 47 

The district court of Franklin, held at Greenfield, at Tiu-ner's Falls 48 

in the town of Montague, and at Shelburne Falls in the towns of 49 

Shelburnc and Buckland ; the county of Franklin exccj)t the towns 50 

of Orange, Erving, Warwick, Wendell and New Salem. 51 

The district com't of eastern Franklin, held at Orange; Orange, 52 

Erving, Warwick, Wendell and New Salem. 53 

The di.strict court of ea.stern Hampden, held at Palmer; Pahner, 54 

Brimfield, Monson, Holland and Wales. 1874, iso, §1. 55 

The district court of western Hampden, held at Westfield and 56 

Chester ; We.stfield, Chester, Granville, Southwick, Russell, Bland- 57 

ford, Tolland and Montgomery. 58 

The district court of Ham]ishire, held at Northampton, Amherst, 59 

Cummington, Belchertown, Huntington, Ware and Easthampton ; 60 

the county of Hampshire. 61 

The district court of central Middlesex, held at Concord ; Acton, 62 

Bedford, Carlisle, Concord, I^iincoln, ]\Ia>'nard, Stow and Lexington. 63 

The fir.st district court of northern Middlesex, held at Aycr; 64 

Ayer, Groton, Pepperell, Townsend, Ashby, Shirley, Westford, 65 

Littleton and Boxliorough. 66 

The first district court of eastern Middlesex, held at INIalden ; 67 

North Reading, Wakefield, Melrose, Maiden, Everett and Med- 68 

ford. 69 

The second district court of eastern Middlesex, held at Waltham ; 70 

Watertown, We.ston and Waltham. 71 

The thu'd district court of eastern Middlesex, held at Cambridge ; 72 

Cambridge, Arlington and Belmont. 73 

G. S. 116, § 1. p. S. 1.54, § 1. 1882, 2.33, § 1. 

The fourth district court of eastern Middlesex, held at Woburn ; 74 

Wobui'n, Winchester, Burlington, Wilmington, Stoneham and 75 

Readino:. i898, 250. 76 

The first district coiu't of southern Middlesex, held at Framing- 77 

ham ; Ashland, Framingham, HoUiston, Sherborn, Sudbury and 78 

Wayland. 79 



Cjl.vr. KiO.] POLICE, DISTRICT AND MUNICIPAL COUUTS. lo91 



The district court of East Norfolk, held at Quincy ; Randolph, East Norfolk, 
raintree, Cohasset, Weymouth, Quincy, Holbrook and Milton. isTsili. ' 



80 The district court of northern Norfolk, held at Dedham ; Dedham, Northern 

81 Ilvde Park, Dover, Norwood, Westwood, Medfield, Needham and i^us'iTs 

82 Wcllesley, 
83 

84 Braintree, 

85 The district coiut of southern Norfolk, held at Stoughton and |"".''^^™ 
8(1 Canton; Stoughton, Canton, Avon and Sharon. isw, ■.>73;§§i,3. 

87 The district coiui; of western Norfolk, held at Franklin and Wal- ^,%^l^[^ 

88 pole ; Bellingham, Foxborough, Franklin, Medwa}', Millis, Norfolk, isus, ^t', § i. 

89 Walpole and Wrenthain. 

90 The second district coiu-t of Pl3^mouth, held at Abington and f,';™"^^,, 

91 Hinirhani : Abington, Whitman, Rockland, Hinghani, Hull, Han- J'*"*' sso, § i. 

o^' o'' 'O' ' 1;^75, 36, § 10. 

92 over, Scituate, Norwell and Hanson. istu, .ms, § s! 

93 The thh-d district court of Plymouth, held at Plymouth ; Plymouth, Third 

94 Kingston, Plvmpton, Pembroke, Duxlim'v and Marshtiold. is7i?35o, §i. 

95 The fom-th district court of Ph-mouth, held at ISIiddleborough and J."'"' ;^'' ^ *■ 

T- ' . . r uurth 

96 AA^areham ; Jliddleborough, Warehain, Lakeville, Marion, INIattapoi- J'Lyniout''- 

97 sett and Rochester. i^iso^sb.' 

98 The East Boston di.strict court, held at East Boston; Wintlirop East Boston. 

99 and the district and territory included in wards one and two of Is;?; m! ^ "' 

100 the city of Boston as such wards existed on the first day of March J^^; }.^f ■§ -2. 

101 in the year eighteen hundred and eighty-six. 

102 The central district court of Worcester, held at Worcester ; central 

103 Worcester, Millbury, Sutton, Aubm-n, Leicester, Paxton, West i872!f99, §']• 

104 Boylston, Holdcn and Slu-ewsbmy. 

105 The first district coiu't of northern Worcester, held at Athol and ^y^^rc""^^'"'™ 
10(> Gardner; Athol, Petersham, Phillipston, Royalston, Temple ton, i8**4..2ir),§'i. 

107 (iardner and Ilubbardston. 

108 The first district court of eastern Worcester, held at Westborough First eastern 

109 and Grafton ; Southboro ugh, Westborough and Grafton. isn,''-m^l'i. 

110 The second district court of eastern Worcester, held at Clinton ; second eastern 

111 Clinton, Berlin, Bolton, Boylston, Harvard, Lancaster, North- isri^'SiT.Ti- 

112 borough and Sterling. " is97,40i. 18%, -m 

113 The first district coiu't of southern Worcester, held at Southbridge First southern 

114 and Webster ; Sturbridge, Southbridge, Charlton, Dudley, Oxford is7"i?3Ui,ri. 

115 and Webst«r. 

116 The second district court of southern Worcester, held at Black- second south. 

117 stone and Uxbridge ; Blackstone, Uxbridge, Douglas and North- Wj, -201, u.'^ ' 

118 bridge. 

119 The third district court of southern Worcester, held at Milford ; ^l'^;:;?e'ster.'"™ 

120 Milford, Mendon, Upton and Hopedale. g. s.ii6,§i. 1S72, i.w, § 1. i8B4,60,§i. 



1 Section 3. No police court shall hereafter be established in a Poiice courts. 
less than ten thousand inhabitants. 

G. S. 116, § 2. p. S. 1.t4, § 3 



town which has less than ten thousand inhabitants. be eetebLhed . 



1 Section 4. The judicial di.stricts of the municipal courts of eJ.urts'or' 

2 Boston shall continue as heretofore provided by law, and shall, JJ»f™^ 

3 respectively, embrace the districts and territory included in the iseel 279," § 1. 

4 following named wards of said city as such wards existed on the first i»js', im, § 4. 

5 day of February in the year eighteen hundred and eighty-two : — H^, i&, 1 4*' 

C -rpu • • "l ^ ' 18'S. 240, 242. 

b i he municipal court, p. s. 154, §42. 

7 Of the city of Boston ; wards six, seven, eight, nine, ten, eleven, i54 Mass. 128. 

8 twelve, sixteen, seventeen and eighteen : 



1398 POLICE, UISTKICT AND MUNICIPAL COURTS. [ChAP. 1()0. 

Of the Charlestown district ; wards three, four and five : 9 

Of the South Boston district ; wards tlm-teen, fom'teen and fifteen : 10 

Of the Roxbuiy district ; wards nineteen, twenty, twenty-one and 11 

twenty-two : 12 

Of the Brighton district ; ward twenty-five : 13 

Of the West Roxbiu'^' district ; ward twenty-three : 14 

Of the Dorchester district ; ward twentj-four. 15 

?ourt'oFBrook. SECTION 5. The town of Brookliiie shall continue to be a judi- 1 

line. cial district under the jiu'isdiction of the municipal court thereof. 2 

1882, 233, § i. 1898, 2U. 

JUSTICES AND CLERKS. 

co*'uX'°'To°be* Section 6. Police, district and municipal courts shall be courts 1 

courts of of record, and, except the municipal coml of the city of Boston, shall 2 

K. s. ST, § 30. " consist of one iustice and two special justices. Each of said coiu'ts 3 

ikw! 27b; § 5! shall have a seal, which shall be in the custody of its clerk, or of 4 

G.s. 116, §§3, ^j^g justice if it has no clerk, and which shall be afl5xed to all proc- 5 

p.s. 154, 5§4, ggggg issued by said courts which require a seal. 6 

1893, 396, §§ 2, 58. 3 Cusli. 58t. 168 Maes. 234. 

13 Met. 2.51. 134 Mass. 313. 172 Mass. 430. 

ttonofoaths SECTION 7. Justices and special justices of said courts may, 1 

G s' i'mi^^m ^" ^^ ^^^ °^ court, administer oaths in all cases in which an oath 2 

p.^s.'m,'§ii'; is required, unless otherwise expressly provided. 3 



135, § 2. 



1893, 396, § 60. 145 Mass. 223. 



Contempts^ SECTION 8. They may punish such disorderly conduct as inter- 1 

p' '^' ^u I n- ^^Pts any judicial proceedings before them or is a contempt of theu- 2 

15I5, § 68.' ' authoritj' or persons, by a fine of not more than fifty dollars or b}* 3 

iGray, 123. ' uuprisonment in jail for not more than fifteen daj^s ; and processes 4 

issued in such cases may be served by any officer qualified to sen-e 5 

criminal process. (> 



Clerks, ap. SECTION 9. Clcrks of poUcc, district and municipal com-ts 1 

pomtinent and , ,, . , , . ^ , n ■ » 

tenure. sliall, cxccpt as provided in the three following sections, be ap- 2 

R.'s. 87,'§ 18. pointed by the governor, with the advice and consent of the council, 3 

G. S. 116, § 4. !. , , , ' ^s. , 

1866, 16M. tor the term ot five years. 4 

1S77, 210, § 1. P. S. I.i4, §§ 5, .tS. 1893, 396, § 3. 

OT appoint*"' Section 10. The justice of a police or district com-t for which 1 

1I34' wV « 12 ^^ clerk is required by law shall keep a record of its proceedings 2 

G. .s. 116, §§ 6, and perform all other duties of a clerk, or he may appoint a clerk, 3 

p.'s. 154, §§6, who shall be paid by him, for whose official acts he .shall be re- 4 

i8ii3, 3116, §§ 4, 8. sponsible and who shall hold his office during the pleasure of such .'> 

9 Gray, 4. justice. ti 

(tfTCstTnts' Section 11. The clerk of a police, district or municipal court 1 

ii's s^'sVis ^^J' subject to the approval of the justice, ti'om time to time aj)- 2 

24. ' ' point one or more assistant clerks, who shall be removable at his 3 

1874,36, §§ 11, pleasivre or at the pleasure of the court, for whose official acts the 4 

1876,227, §8. clerk shall be responsible and who shall be paid by liiiii unless 5 

imls^'JI' they receive salaries which may be allowed and fixed by law. (3 

111 Slass. 420, 422. 1.33 Mass. 159. 



Chap. KiO.] police, district and municipal courts. 1399 

1 Section 12. In case of the absence, death or removal of a clerk fJ,t,'pore'° 

2 of a police, disti-ict or municipal couit, the coiu-t maj' appoint a q. |; ii;j^§^|; 

3 clerk pro tempore, who shall act until the clerk resumes his duties l^fl^'f^- 

4 or until the vacancy is tilled. 

16 Gray, 88. 'J Allen, 488. 163 Mass. 211. 

1 Section 13. The clerks, assistant clerks and clerks pro tempore cicrkstobe 

2 of said coiu'ts shall be sworn. They or one of them shall attend all r^mMs, etc-' 

3 sessions of the court, unless otherwise expresslv provided, and shall iJiV J-J"' ^ "' 

4 keep a record of all its proceedings. If the office of clerk is estab- .^; fi.*"' ^^ ^''• 
.5 lished bylaw, the clerk may make and issue wan-ants, ^^^•its and 5s-"' i™' 1 1'- 
(i jirocesses, shall make all retiu'iis of the coiu't, tax all bills of costs and ■^';!;.^|-V^-3' 

7 receive all tines, forfeitures, fees and costs accruinar from the business i8.i7,' id', § s. 

8 of the com't in civil and criminal cases, including fees for blanks and 23', as. 

II copies. V. S. 154, §§ 9, 3:5. 1893, 396, § 8. 163 Mass. 218. 

1 Section 14. Ju,stices of police, district and municipal courts office hours of 

2 shall prescribe reasonable dail}' office hours for the clerks of their isss, siic, §s. 

3 respective courts during which the offices of the clerks shall be re- ^^^' '^*^' 

4 quired to be open. Such hours shall be fixed with reference to the 

5 business of said covu'ts and with reference to the convenience of the 
() public and of attorneys. The office hours as fixed shall be po.sted 

7 in a conspicuous place in each of said offices, and shall be set forth 

8 in the printed rules of said courts. Clerks .shall also keep theii* 
!• offices open whenever the court so orders. 

1 Section 15. The clerk of any of said courts or, if no clerk is Bond of clerk 

2 requu-ed by law, the justice, before entering upon the performance i8ii?1uu*§ 5. 

3 of his official duties, shall give l)ond in the sum of one thousand R"|'.g7;§i9. 

4 dollars to the treasui-er of the county, with sufficient siu-eties to be Jf|'?i6,V8. 

5 approved by a justice of the superior coiu-t, conditioned to account if74, 3!«.'§3^-^ 

6 for and pav over as and when required bv law all fines, forfeitm-es, is'93,'3i«i,'§7." 

, , • 1 , 1 • • "^1 • i- 1 • ii2 153 Mass. 218. 

7 lees and other money received by him 111 the exercise ot liis office. 

8 A failiu-e so to account or pay over shall be a breach of the con- 

9 dition of his bond, and a failure to give such bond shall be a suffi- 
10 cient cause for his removal from office. 

1 Section 1G. A justice, clerk or assistant clerk of any of said fJJ^fSotuflct 

2 coiu-ts shall not be retained or employed as attorney in an action, J|,f"°™«y- 

3 complaint or proceeding pending in his coiu-t, or which has been ^21, 109, § ,5. 

4 examined or tried therein; and a special justice shall not be so 44'^ "'" 

5 retained or employed in any case in which he acts or has acted as 1857; 264', | "' 

6 justice. G. s. 116, §9. p. s. 1.54, § 10. is93, 396, § 10. 

1 Section 17. A justice, special justice acting in the place of the -norto 

2 iustice, clerk or assistant clerk of anv of said com-ts shall not mtionai fees, 

!*■ Ill" <*tC 

3 receive any fee or compensation to his own use, other than his i^yi, i.w. 

4 regular salar}- or allowance, for making complaints or issuing in Jfi's'. uli.V^. 

5 anv capacity warrants, subpoenas or other criminal processes which JglJ; :]/^': ^^ "• '■ 

6 he" is authorized by law to issue, or for any official seiwices per- p-s. m, §§ 66, 

7 formed by him in court. A clerk or assistant clerk shall not receive, isk, 396, § 11. 

8 in addition to his salary, any fee or compensation for making out 

9 bail i)apers, or for admitting a prisoner to bail while the coiu-t is in 
10 session or diu-ing the hours "when his office is required to be open. ' 



1400 



POLICK, DISTRICT AND MUNICIPAL COURTS. [ClIAP. 160. 



Original exclu- 

Bive jurisdic- 

tiuu. 

is-il, lOi). 

It. s. SI, n 11, 

M. 

l.sM, 46. 

1S57, 51. 

G. .S. 116, §§ 10, 

IH. 

1877, 210, 5 4. 

r. S. l.M, § 11 ; 

l.W, § 12. 

l.'^D.H, 3!«;, § 12. 

lMa4, 431. 



CIVIL .JURISDICTION. 

Section 18. Police, di.strict and imiiiicij)al coiu'ts shall have 1 

original jui'isdietion, exclusive of the superior couit, of actions of 2 

contract, tort or replevin, in which the debt or damages demanded 3 

or the ^•alue of the property alleged to be detained does not exceed 4 

one hundred dollars ; of actions of replevin for Iieasts distrained or 5 

imjiounded in order to recover a penalty or forfeitiu'e sujiposed to 6 

have been incuiTcd by their going at large, or to obtain satisfaction 7 

for damages alleged to have been done by them ; and of sunimar\' 8 

process under the provisions of chapter one hundred and eighty-one. 9 



Original and 
concurrent 
jurisdiction. 
W!l, 144. 
1877, 210, § 4. 
P. S. I.'i4, § 11 ; 
l.W, § 13. 
181)3, 3116, § 12. 
1894, 431. 
164 Mass. 145. 



Section 19. Police, district and municipal courts, except the 1 

municipal court of the city of Bo.ston, .shall have original and con- 2 

current jui-isdiction with the superior coiu't of actions of contract, .3 

tort or replevin in which the debt or damages demanded or the value 4 

of the property alleged to be detained is more than one hundred and 5 

does not exceed one thousand dollars ; and of petitions to enforce (> 

liens under the provisions of chapter one hundred and ninety-seven, 7 

if the amount of the claim does not exceed one thousand dollars. 8 



.luriediction 
exclusive in 



Section 20. The jurisdiction of a police, district or municipal 
district, when, eourt shall exclude the iurisdiction of a trial iustice, if anv of the 
U.S. 116,' §18. parties lives or has his usual place of business iu its distric^t or if, 

p. S. I.i4, § 13. i i • /• , ,, . . .. , 

1S113, 3%, § 13. in an action ot summary process under the provisions ot chapter 
^^fiiass. «o. one hundred and eighty-one, the land in controversy is situated in 
its district. 



164 M1IS.S. 144. 



1 

2 
3 
4 
5 
6 



Scire facias 
against bail. 
17.W-4, 18, § 3. 
1783, 32, § 9; 42, 

1803, 132, § 1. 
R. S. 8.1, § 16. 
G. S. 120, § 3. 



Section 21. Said courts may issue wTits of scire facias against 1 

executors and administrators upon a suggestion of waste after a 2 

judgment again.st them and also against bail taken in a civil action 3 

before them, and proceed to judgment and execution as the superior 4 

court might do in like cases. 5 

p. S. 1!)4, § 11 ; l.-)5, § 14. 1893, 396, § 14. 1894, 431. 



— service of 
such write. 
1803, 132, § 1. 
R. S. 8.5, § 17. 
G. S. 120, § 4. 



Section 22. Such writs shall be served not less than seven days 1 

before the retiu'n day, which shall be not more than sixty days aft(>r 2 

the date thereof, and they may run into any county in which the 3 

defendant may be found. 4 

p. S. 154, § 11 ; 1,55, § 1.5. 1893, 396, § 15. 1894, 431. 



diHiou''fn"uch Section 23. Said courts .shall have jurisdiction of actions ujion 
im'\»^ § 1 '''"'-'^^ ^^Tits although the debt and costs on the original judgment 
together exceed one th(nisand dollars or, in the niuiiici)ial court of 
the city of Boston, exceed two thousand dollars ; and judgment and 
execution may be awarded bv the court for the whole amount due 



K. S. 85, § 18. 
(i. S. 120, 5 .5. 
P. S. 154, § 11 
1.5.5, 5 hi. 
1893,' 396, § 16. 
1894, 431. 



to the plaintiff with costs of the new action. 



1 
2 

3 
4 
5 
6 



CRIMINAL JXmiSDICTION. 



Criminal 
jurisdiction. 
1S21, 109. 
R.S. 87, 55 3,32. 
1S48, 331,' « 4. 
ls-4, 277, § 2. 
1855, 448, § 1. 



Section 24. Police, district and municipal courts shall have 1 

original jurisdiction, concurrent with the superior court, of misde- 2 

meanors committed within their respective counties, e-xcejit conspir- 3 

acies and libels, and unless otherwise expressly provided, they 4 



Chap. 160.] police, district and municipal couhts. 1401 

5 may impose the .same penalties as the superior comt in like cases, isss, 40, §i. 

(i Their jm-isdiction of crimes committed in their respective judicial jj ''• i""' §§ '-• 

7 districts shall, except as provided in section forty-six of chapter Hf^] '^' | n" 

8 two hundred and eighteen, exclude the jm-isdiction of other police, J!,'!;,^*''^^''' 

9 district and nmniciiial com-ts and trial iustices. isss, 322. 

' •" 1893, 396, § 34. 

1S94, 431. 144 Mass. 170. 151 Mass. 62. 

138 Mass. 4Sa. iriO M:iss. US. 156 Mass. 4S9. 

1 Section 2.'). The_\' shall have jiu'isdiction, as aforesaid, of fel- ivumu.'s """ "'^ 

2 onies which are not iiunisiiable by death or imprisonment for life j'"i'iiiie 
/} committed by juvenile oiienders under seventeen years of age ; and, if;7->. 3.^,s. ' 
4 upon their conviction may sentence them to any punishment author- isi^ i.sj! ^ '' 
Ti ized by law for such crime, except imprisonment in the state prison, 'w.^^iw'!'^"' 
() or may commit them to any institution established by law for the isal'Si!^^' 

7 reformation of juvenile oiienders, or may bind them over for trial in i-" m»6s. 450. 

8 the superior court. 

1 Section 2(5. They shall have jurisdiction, as aforesaid, of the — ofassarJt 

2 crime of assault and battery ; including assault and batteiy witli a wa-i-sfil^s. 

3 weapon dangerous to life if no intent to commit a felony is shown, itwISJs! 

4 unless it is committed in the commission or attempted commis- Js^^s,' liis, Vl" 
5. sion of a felony, or unless the person assaulted is maimed or his j^^J'^Vj"' 
(5 life is endangered; and, upon conviction of the defendant, may Jj,- *'• n". § i3- 

7 punish him by a line of not more than one hundred dollars or by p- s'. ih, § is. 

8 imprisonment for not more than one year. If the defendant is a vm, 'im, § 36. 

9 female above the age of seventeen years, the imprisonment ma}' be isSi^'?!' 

10 in the reformatory prison for women for one j'car. 132 Mais! sf^' 

l.W Jtass. 502. 165 Mass. 447. 

1 Section 27. They shall have jm'isdiction, as aforesaid, of the — of iireaciies 

2 crime of distm'bing the peace to the great damage and common ?692-.s,'i8r§'6. 

3 nui.sance of persons in the place in which the distm'bance occiu's ; ireviJJJ; 

4 of atirays and riots ; of going armed oti'ensively to the terror of the isbl.'ss,'.^ ^^' 

5 people ; of uttering menaces or tlireatening speeches and of being j^^f "j'fg"' ' ^^■ 
(5 a dangerous and disorderly person ; and, upon conviction of the p'|''/4' , ii- 

7 defendant, ma^' iiunish him by a fine of not more than fifty dollars iss, § 46.' 

,, ,••.,• .. i-l • 4-1 ' 1893, 3%, § 37. 

8 or by imprisonment ior not more than six months. 1894,431. 

1 Section 28. They shall have iurisdiction, as aforesaid, of the -ojiar. 

2 crime of larceny ; of fraudulently obtaining property by any game, r.s. 126, §23. 

3 device, sleight of hand or pretended fcutune telling or b}^ any trick 448f'§L'''^^' 

4 or other means by the use of cards or other huplements or instru- G.^s'.'^uelf i!.^" 

5 ments ; and of buying, receiving or aiding in the conceahnent of fHflf'g.^jt'lgl" 

6 stolen property, if the property alleged to have been stolen or to J.?*!*-^!' „, 

-1 ,' ' ,.1,1 ■ 1 ii 1 i i- 13 Allen, 552. 

7 iiave been so obtained, bought, received, or the concealment ot 

8 which is so aided, is not alleged to exceed the value of one hundred 

9 dollars; and may punish persons found guilty of any of said crimes 

10 by a fine of not more than one hundred dollars or by imprison- 

11 ment for not more than two years. 

1 Section 29. They shall have jm'isdiction, as aforesaid, of the —of indecent 

2 crime of indecent exposiu'e of the person ; of the violation of the isie, w^I'l 

3 provisions of section one hundred and sixteen of chapter two hundred p.' |; -m] | m. 

4 and eight, if the value of the property destroj'ed or the amount of IggilllKlfsg'.^ 

5 the injury done is not alleged to exceed one hundred dollars; of iss*. •'^i. 



1402 



POLICE, DISTRICT AND MUNICIPAL COLTJTS. [ClIAP. 160. 



1897, 180. 
Ill Muss. 4-27. 
l.')7 .Mass. 14. 
16o Mass. 594. 



nuisances at common law ; of the common law crime of keeping and 6 

maintaining a conunon, ill-governed and disorderl}' hoii.se ; and, 7 

upon conviction of the defendant, may punish huii by a fine of not 8 

more than one hundred dollars or by imprisonment for not more 9 

than one }'ear ; but if the \alue of the property so destroyed or in- 10 

jured or the amount of injuiy done is not alleged to exceed fifteen 11 

dollars, the fine shall not exceed fifteen dollars or the imprisonment 12 

exceed thirty days. 13 



-Turisdictlon 
of violation 
of milli and 
dairy laws. 
18!»,"149. 
1897, 349. 



Section 30. They shall have jurisdiction, as aforesaid, of viola- 1 

tions of the laws relative to inspection and sale of milk or of dairy 2 

products and imitations thereof, and may uiipose the same penalties .3 

as the superior court in like cases. 4 



— of violation 

of cit.v and 

townby-laws, 

eto. 

1801, 6i. 

R. S. l.i, § 13. 

1849, -211, § 7. 

G. S. 130, § 40. 



Section .31. They shall have jurisdiction, as aforesaid, of the 1 

violation of city and town by-laws, orders and ordinances, and of 2 

the violation of the laws and regulations relative to the public health 3 

and of complaints for defective highways. 4 



1S76, -227, § 1. 



r. S. 1.54, §§11, 20; 15.i, §48. 



1893, 396, § 40. 



1894, 431. 



Recojrnizance 
to koep tlie 
peace, et*.-. 
R. S. 8,1, § 2.5. 
G. S. 120, § 39. 
P. S. 1.54, §11; 
15.5, § 47. 

1893, Silfi, § 41. 

1894, 431. 



Section 32. They may require persons who are found guilty of 1 

any crime within their final jiu'isdiction, except a crime named in the 2 

preceding section, in addition to the punishment prescribed bylaw, 3 

to recognize with sureties, in a reasonable simi, to keep the peace 4 

or be of good behavior, or both, for not more than one ye&T, and 5 

to stand committed until they so recognize. The provisions of sec- (? 

tions thirteen, sixteen and seventeen of chapter two hundred and 7 

sixteen shall apply to recognizances so taken. 8 



Complaints, 
warrants, com- 
mitments, ett*. 
R. S. 87, § 33. 
1858, i;W, § 1. 
G. S. 120, §§ 32, 
3B. 

1877, 211, § 4. 
P. S. 154, §11; 
1.V), §§ 43, 44. 

1893, 3i)6, § 42. 

1894, 431. 

1B5 Mass. 144. 



Section 33. They may receive complaints and issue waiTants 1 

and other processes for the apprehension of persons charged with 2 

crime and found within their county, or who after committing crime 3 

therein escape therefrom, returnable before a coiut or trial justice of 4 

the county having jurisdiction of the trial or examination of the .5 

person charged with the crime. They shall commit or bind over for (> 

trial ill the superior coiu*t persons brought before them who api)ear 7 

to be guilty of crimes which are not within theu* final jiu'isdiction. 8 



Final jurisdic- 
tion mav be 
declined. 
18.53, 19h, § 2. 
18.5.5, 448, § 2. 
1857, 1.57, § 2. 
G. S. 116, § 15. 



Section 34. In any criminal case of which they have final 
jurisdiction, they may in theu' discretion commit or bind over the 
defendant for trial in the superior court, if he appears to be guilty 
of the crime charged. p. s. 154, §21. 1893,3%, §42. iic Mass. 349. 



(reneral 

])(iwers of jus- 
tices and spe- 
cial justices. 
IS.52, 94, 5 25. 
1S.M, 312, § .5. 
G. S. UB, § 16. 
P. S. 1.54, § 2-2. 
1893, 396, § 43. 



Section 35. Justices and special justices of said courts may 
at an}' time receive complaints and issue waiTants and search war- 
rants, under their own hands and seals, rctm'nable before a court 
or trial justice having jiu'isdiction of the trial or examination of the 
person charged with the crime. 



1 
■) 

3 

4 



Clerk may 
receive com- 
plaints, etc. 
1n5s, u<, § 1. 
G. .S. 120, § 36. 
1877, 211, § I. 
P. S. 155, § 6. 
1893, 396, § 44. 
18»(, 431. 



Section 36. The clerk of a police, district or municipal court, 
if his office is created by law, may receive complaints, administer to 
complainants the oath required thereto, and issue wairants, search 
warrants and summonses, returnable as required when such processes 
are issued bv .said courts. 153 Mass. leo. 



1 
2 
3 
4 
5 



CllAl'. !()().] POLICE, DISTRICT AXD MUMCU'AL COURTS. 1403 

1 Section 37. Said coui'ts may dispense witli tlie issuino- of a WHrrantrtis- 

... 1 1 • 1 • 1 1 i 1 -ii peused with, 

2 warrant it tlie person cliarged with a erune has been arrested with- wIkh. 

3 out a warrant and has been brought before the eoiu't or admitted to islii', 431! 

4 bail ; but in sueli case, the officer who makes the arrest sliall indorse 

5 upon the complaint a statement of his doings. 

1 Section 38. Warrants and other crmiinal processes may be warrants, etc., 

2 directed to and served b}' a coiu-t officer or to and by a constable or and ssryi-n, etc. 

3 police officer of arn' city or town in the count}- in which the com-t Jf s. n'ti.Vit. 

4 by which they are issued has jiu'isdiction, or to and by an}^ officer p.'l.'f^^jj.^g, 

5 qualified to serve crmiinal process in any county. Said courts, Jij,. j^^ 
(3 iiLstices, special iustices and clerks may issue .smiimon.ses or other ifi«;i«7. 

- 7. •; • • • 1 ■ i. il 1 i i1 IM13, o»t>, § 46. 

( processes tor witnesses in criminal cases, to run throughout the isw, 431. 

8 commonwealth and to be served by the sherift", his deputy, or by a I'ei Mall! 210; 

9 constable or police officer, in his own county, city or town, or in any 
10 other count}^ city or town, in which any witness may be found. 

SESSIONS AND PROCEEDINGS. 

1 Section 39. Police, district and municipal courts shall always Sessions of 

2 be open and business may be transacted at any time, except as pro- r. s. 87, §§ 42, 

3 vided in section five of chapter one hundred and sixty-six. Sittings g.'s. us, §20. 

4 of the courts shall be held in the court houses or other places pro- i^|jj; ;"?; 

■5 vided therefor b}' the county, at the times and in the cities and ig,^;^^^:!^: 

() to\vns established by law : but if the times are not established by i»-]^' *^i' 

7 law they shall be fixed by the com-ts by general rule. Sittings mav if Mi.s9.4u. 

* ,. .* . *^ ^ . . T- ' I'iS 3I:iSS. hi. 

8 be adjom-ned trom tmie to tmie as occasion requires, ana cases, iw Mass. sue. 

9 civil or criminal, may be continued to any future day fixed for the 

10 sitting of the court, and, exccjit as provided in section fifty-five of 

11 chapter one hundred, complaints in crhuinal cases may be placed 
1-2 on file. 

1 Section 40. The iustices and clerks of police, district and iiiu- Books and 

- - - - _ . . .. ^, ^ supplies. 



nicipal courts, except the municipal court of the cit}' of Boston, may g. s. ne, § 21. 
prociu-e all law books relating to the laws of the conunonwealth, p.''s.im, §24. 

4 including the reports of the supreme judicial com-t, the Massachu- JSJ^o; So, § 11. 

5 .setts digests, all blank books, blanks, stationer}^ and other inci- J^j^g^ji 
<> dentals which may be required by said courts. The expenses 189?,' 245! 

7 thereof shall be certified by the justices monthly, and shall be trans- 

8 mitted to the county commissioners who shall audit the bills therefor 

9 and order paj'uient thereof by the county. 

1 Section 41. Police, di.strict and municipal coiu'ts, except the courts, by 

2 municipal court of the cit^- of Boston, shall he held by the rcspec- R.s!";r§3i. 

3 five justices thereof; and,\ipon request of the justice, either special l;SlS;s6juo; 

4 justice may hold the com-t and perform the duties of the justice, or JjJif 3^4; 5 .,. 

5 iiold a .second or third .session thereof, and two or more simultane- J^05J^;." j.,. 

6 ous .sessions may be held. In case of a vacancy in the office of 'g+.Vj'-g ^''^^ 

7 justice, and in "case of the illness, absence or other disability of pis.' 154,' §25.' 

8 the justice, the special ju.stice who holds the senior commission shall, ls|; twl § 55. 

9 if no request has been made as aforesaid, have the powers and 54*^u,^|;-.;^^i|; i8_ 

10 jiei-fbrm the duties of the justice. When a special justice holds the 1-Aiien,349. 

1 1 coiu-t or a session thereof or an inquest, or certifies a bill of costs to ]g w^s's- s|9- 

12 a county, city or town treasurer, that fact, and the fact which gave isi jiass! sso! 



1404 



POLICE, DISTRICT AND MUXICIl'AL COURTS. [ChAP. 1()0. 



iMMaes'm ^'"^ jurisdiction, sliall be; oiitered upon the general records of tiie 13 
court, but need not be stated in the record of the case heard b}' him. 14 



Trial before 
BtandiD^ and 
Bjjefial JU8- 

tlCl'ft. 

mti, ITS, 1 1. 
1896, 220. 



Section 42. If all the parties to an action in a police, district 1 

or municipal court, except in the municipal court of the city of Bos- 2 

ton, file a ^^Titten Avaiver of the right of appeal, they may, uj)on de- 3 

mand, have the action tried before the justice and special justices 4 

sitting together ; and there shall be no right of appeal from a judg- .i 

ment of such justices or of a majority thereof sitting together. ti 



Adjournment. 
Ifxi, IK*. 

i«'j3, sae, § 56. 



Section 4.3. If no justice or special ju.stice is present at the 
time and place appointed for holding a session of a police, district 
or municipal coiui;, the sheriff or any of his deputies or the clerk 
may adjoiurn the court fi-om day to day or ft'oin time to time, giv- 
ing notice thereof as circmnstances may re(iuire. 



1 

2 

4 



Section 44. Justices of police, district or umnicipal coui'ts, ex- 



lutercbange 
of services. 

18^3' sae' « sj "^^P^ *^^ municipal court of the city of Boston, ma}' perform each 
other's duties when thev find it necessary or convenient. 



1 

2 
3 



Rules. 

G. S. 116, § 23. 
P. S. lai, § 27. 
1«X}, 35a. 
1893, 3'J6, § 59. 



Section 4.'). The justices, or a majority of them, of the .several 1 

police, district and municipal com'ts, except the municipal comt of 2 

the city of Boston, shall from time to time mak(! and promulgate 3 

uniform rules regulating thi; tmie for the entry of writs, processes 4 

and a})i)earances, the filing of answers and for holding trials in civil .5 

actions, and the practice and manner of conducting business in cases H 

which are not expressly provided for b}' law, and .shall submit a copy 7 

thereof to the superior court or a justice thereof, for approval, 8 

amendment or alteration. 9 



FroceBseB to be 
under seal, 
bear teste, etc. 
1S22, 12. 
R. s. !<7, 5 12. 
l!«."i, 270, § 5; 
4iS, § 7. 
ISSr, 264, §8. 
G. S. 116, § 26. 
P. S. Iij4, § 30. 
18.XH, 415. 
1893, 3%, § 64. 
13 Gray, 74. 



Depositions. 
1877, 211, § .i. 
P. s. 1.54, §11; 
l.M, § 70. 
1893, 396, § 65. 



Section 46. Processes issuing from such of said courts as have 1 

a clerk shall be under the seal of the court, signed by the clerk or an 2 

assistant clerk, and shall bear teste of the justice, or, in the muni- 3 

cipal court of the city of Bo.ston, the chief justice, unless he is a 4 

party or unless his office is vacant, and in such cases, they shall r> 

bear teste of the special justice who holds the senior commission or (> 

the senior associate justice. 7 

14 Gray, 19. 135 Mass. 519. 145 Mass. 118. 158 Mass. 168. 

Section 47. Police, district and municipal courts shall have the 1 

.same authority to issue commissions to take depositions in cases 2 

pending before them as the superior court has in ca.ses pending 3 

therein . 4 



Disposition of 

fees, lines, etc. 

R. S. 87, §§ M, 

39. 

law, 57, I 7. 

lS.Vi, 26, § 4. 

18.Vi, l.i8, § 2. 

G. S. 116, §§ 2!^ 

31. 

1877, 210, § 3. 

187", 142. 

P. S. lU, §§ 34- 

.36, .53. 

l'«7, 4.)8, § 5. 

18,88, 180. 

l.^JO, 2114; 216, 

§2; 440, §§6, 8. 

1891, 392. 



Section 48. Clerks of police, district and municipal coiu'ts, ex- I 

cept the municipal court of the city of Boston, and justices of such 2 

courts as have no clerk shall, on or before the tenth day of -Taiiu- 3 

ar\', April, -Tuly and Octol)cr, in each 3 ear, account for and jiay 4 

over to the county treasiu-cr all money received by them from civil ."> 

business, including fees for blanks and copies, and to city and town t> 

treasurers all fines and forfeitures received by them which are pay- 7 

able to said cities or towns and render to said treasurers a detailed 8 

account on oath of the same. Such jiayiiicnts shall include the 9 

balances due and payable at the end of the (juarter last preceding 10 



Ch.\1'. IGO.] POLICE, OISTKICT AND JUMCIFAL COURTS. 1405 

11 the day of payment. They shall, at the end of a eriniinal ease, pay J^jJ^'^'f ?■ 

12 the fees and expenses of offiecrs who are entitled thereto from the laoiii-ie! 

13 funds in their hands which are payable to the citj' or town liable 

14 for the payment of such fees and expenses, if they have suihcient 
1.5 funds therefor, and all such fees and expenses which are not so 
l(i i)aid shall be certified at the end of each month to the treasm'er 

17 of the city or town liable therefor, who shall pay them to the 

18 parties entitled thereto. They shall, at the end of a criminal case 
ly or inquest, pay the fees of witnesses for the commonwealth and 

20 the fees and expenses of ofEcei's at inquests who are entitled to 

21 such by law, from the funds furnished them by the county treasm'er 

22 for that ))m'pose, or out of any funds which may be paid into comi: 

23 and are payable to the county-, except naturalization fees. They 

24 shall be allowed for the amounts so paid in theu- settlement with the 
2.T county, city and town treasm'ers. If the}' do not have sufficient 
2() funds in their hands which are returnable to counties with which to 
27 pay such fees as herein jtrovided, the}' may make written requisition 
28, therefor upon the county treasurer, who shall pay to them not more 

29 than one hundred dollars each in any one month ; but if it ajijiears 

30 necessary to the controller of county accounts, he may approve a 

31 requisition for not more than two iuindred dollars in any one month, 

32 and, upon receipt of a requisition so apjjroved, the county treasurer 

33 may pay to them such amount as may be called for. The}- shall 

34 account therefor in their regular settlements with the county treasurer 

35 and shall be liable therefor on their official bonds. A clerk or jus- 
3(5 tice who violates the foregoinir provisions of this section shall be \nin- 
37 ished by a fine of not more than one hundred dollars for each offence. 



MUNICIPAL COURTS. 

1 Section 49. The provisions of this chapter which relate to Provisions 

2 police and district com-ts, to their justices and clerks and to the ist'l'I'279^'§§ i, 

3 rights, duties and liabilities of parties to proceedings therein shall, i^u'-iii uu 

4 so far as appropriate, apjjly to municipal com-ts, to theu- justices and }|J;g ^^^ 

5 clerks and to the parties to proceedings therein, except as herein i^tb! 2-27! § s; 

6 otherwise provided. isso, 20. p. s. 154, §43. i8in, 431, §1. 

1 Section 50. Upon the death, resignation, absence or disability substitute 

2 of the justice and s)iecial justices of any of the municipal com'ts, iss-V'iB.' 

3 except the municipal eoiut of the city of Boston, the duties of jus- 

4 tice thereof may, at the request of the clerk, be performed for the 

5 time being by a justice or special justice of any other f)f said mu- 

6 nicipal eom-ts. 

1 Section 51. The municipal comls in the city of Boston shall Concurrent 

-^ 1 •!.. n 'iTii 1*1 jurisaictiun. 

2 have concuiTent jurisdiction over all waters, islands and places which ist4, 271, § is. 

3 are not included in the district of an}' one of said coiu'ts or of the 

4 police coiu-t of Chelsea and which are within the jiu'isdiction of 

5 the superior court for the county of Suifolk, except as provided in 

6 the following section. 

1 Section 52. The municipal coiu't of the city of Boston, of the concurrent 

2 Charlestown district and of the South Boston district, and the East alctum'ov""^' 

3 Boston district coui't, shall have and exercise, concurrently witli |j';'in" >-^i->"''8. 



1406 



POLICE, DISTRICT AND MUNICIPAL COUKT8. [ClIAr. 100. 



1878, 53. 

P. a. 154, § 45. 

188«, 15, § 3. 



each other, the same c-riiiiiual jiu'i.sdietion as said coui'ts have within 4 

their respective districts over all island.s, except East Boston, and 5 

watei's within the criminal jurisdiction of the superior court for the (5 

county of Suffolk. 7 



Sentences to 
Deer Island. 
ISSl, 10. 
V. S. 1.54, § 51. 
1888, 15, §§ 3, 5. 
ISilS, iU. 
18%, 536, § 9. 



Section 53. In cases in which municipal comts or the East 
Boston district court are authorized to sentence to imprisonment 
in the house of correction or county jail, or to commit thereto for 
non-payment of fine or expenses of prosecution, the}' may sentence 
to imprisonment in the house of correction at Deer Island or commit 
thereto. 



1 
2 
3 
4 
.5 
(3 



Payment of 
fees and ex- 
penses. 
1891, 392. 
1898, -204, § 1. 



Section 54. In the municipal courts in the county of Suflblk, 1 

except the municipal court of the city of Boston, and in the East 2 

Boston district court, witness fees and the fees and expenses of 3 

officers named in section fort3'-two of chapter two hundred and four 4 

and of all other persons shall, at the end of a criminal case or inquest 5 

in which such fees or expenses accrue, be paid by the clerks to the (i 

persons who are entitled thereto. If the}' do not have sufficient 7 

funds in their hands with which to make such jiayments they may 8 

make m-ittcn requisition upon the auditor of the city of Boston, 9 

and thereupon the treasurer of said city shall advance to them not 10 

more than one hundred dollars each in any one month, for which 11 

they shall, before the tenth day of each month, account to said 12 

city and for which they shall be liable on their official bonds. 13 



J^. 



1^^ 



>^f 



V Justices. 
> 1,S21, lUM. 

R. s. 87, § 1. 

G. S. lie, § 35. 

1866, 279, § 4. 



\i 



Allowance of 

etc. 
186B, 27;i, § 8. 
P. S. 154, § 56. 



/ 



Special jus. 

tices. 

1870, 

1879, 

1881, 

P. s. 

1885, 
1896, 
1897, 
1899, 



330, § 1. 
265, I 9. 
256. 

1.54, § 57. 
42, § 1. 
•234. 
360. 
313. 



MUNICIPAL COURT OF THE CITY OF BOSTON. 

Section 55. The municipal court of the city of Boston shall 1 

consist of one chief justice, seven associate justices and two special 2 

justices. p. S. 1,54, § 55. 1882,41. 1888, 419, § 11. 1894,308. 1899, .313. 3 

Section 56. The justices shall meet quarterly, and as much 1 

oftener as may be necessary, to allow bills of costs, accounts, 2 

charges and expenses which arise in said court, and shall certify to 3 

the public officer by Avhom they are payable such amounts as are 4 

allowed by them. 5 

Section 57. The special justices of said court, at the request 1 

of the justice whose duty it may be in rotation to hold a session of 2 

said court, may and, in case of the illness or absence of a justice 3 

or of a vacancy, at the request of the other justices of said court 4 

or any of them, shall hold any sessions thereof. The chief jus- 5 

tice or, in case of his death, illness, absence or incapacity, the senior (> 

associate justice, if in liis oi)inion the pulilic business so rc(juires, 7 

may also request the special justices to hold additional sessions of 8 

the court, and the clerk shall enter said request of record. During 9 

the continuance of such requests, or diu'ing the time of such illness, 10 

absence or vacancy, a s})ccial justice shall have and exercise all 11 

the powers and duties of a justice of said coiu't. His compensation 12 

shall be fifteen dollars for each day's service ; and, excejjt when 13 

holding an additional session as above pi'ovided, the compensation 14 

for .service in excess of thirt}' days in any one year which may be 15 

rendered to or for any one justice shall be deducted by the treasurer Hi 

of the county of Sufiblk from the salary of such justice. 17 



/IlL^(^ 



Chap. 100.] police, district and mlxicipal courts. 1407 

1 Section b%. There ssball be a clerk and five as.si.stant clerks of cierks-imi 

x.i ./. ••11- 111 IP ■ 11 assistauts. 

2 said court lor crinuual business, and a clerk and loui' assistant clerks i^uu, .!?.i, § i;. 

3 of said coiu't for civil business. The assistant clerks shall be ap- isral -257,' § i ,"' 

4 pointed by the clerks, respcctiveh', subject to the approval of the issi.ea. 

5 justices or of a majority of theoi, and the clerks shall be rcspon- f^l^i^jlf"^' 

6 sible for the doin<Ts of their assistants, and may remove them at Hl!,^,'iv> 

, '^ ' V 188y, 1(0. 

7 pleasm'e. 1397, iss. 

1 Section 59. In addition to the jurisdiction otherwise conferred, {•!,„" ^""^''''■" 

2 said court shall have original and concurrent jurisdiction with the issb,' 279, § o. 

3 superior court of actions of contract, tort or replevin in which the \«ii 271; § c. ^jjp^^t^ 

4 debt or damages demanded or the value of the property alleged to i?!^; is?! ^ ^' ' . 

5 be detained exceeds one hundred and does not exceed two thousand Xiillmll^' /^fZ- O , <^ 

6 dollars, if one or more of the defendants, or, in actions by the leaMaBlitoi; 

7 trustee process, if one or more of the persons named in the MTit as 

8 trustees, li\e or have tlieh' usual place of business in the county 

9 of Suflblk, and of petitions to enforce liens under the provisions of 

10 chapter one hundred and ninety-seven, if the amount of the claim 

11 does not exceed two thousand dollars. 

1 Section (lO. The court shall be held for crmiinal business dail3% sittings of 

2 except on Sundays and legal holidays, at nine o'clock in the fore- Sf279, §11. 

3 noon and, if it appears expedient to any of the justices, at tliree p.^|'.\^f§"62. 

4 o'clock in the afternoon, or at some horn' thereafter ; and it shall be 

5 held weekly for civil business. Each sitting shall commence on 

6 Saturday, and actions therein may be continued to a futm'e day. 

7 Simultaneous sessions may be held for the trial of civil or criminal 

8 cases. 

1 Section 61. The clerks shall, on or before the tenth day of each "jfs^eti!"""'* 

2 month, account for and pay over to the collector of the cit}^ of Bos- J|^'^g'^^- 

3 ton, or to any other officer who is authorized by law to receive the 

4 same, the balance due and payable at the end of the preceding month 

5 of all moneA^ received by them which is payable by law to the county 

6 of Suflblk, and shall render to said collector or other officer a de- 

7 tailed account thereof under oath. Whoever violates the provisions 

8 of this section shall be punished b}^ a tine of not more than one hun- 

9 dred dollars for each oflence. 

constables and court officers. 

1 Section 62. The justice of each police and district court, except f^o^S'^^g, 

2 the East Boston district court, may designate a constable to attend 

3 the sessions thereof, to preserve order and to serve such ^varrants, 

4 mittimuses, precepts, orders and processes as may be committed 

5 to him by said coiu't. Said constable shall receive such conipensa- 

6 tion from the county in which the court for which he is appointed 

7 is established as shall be determined and allowed by the justice, 

8 subject to the approval of the county commissioners ; and it shall 

9 be paid upon vouchers approved by the justice and by the county 
10 commissioners. 

1 Section 63. The justice of the municipal court for the Dorches- court officers 

2 ter district, for the West Roxbiu-y district and for the Brighton TOurt""'"'"' 

3 district, and the justice of the East Boston district court, may each iSiviu!^*' 



140S 



POLICE, DISTUICT AND MLNICIl'AL COURTS. [ChAP. 160. 



P. S. 154, § B4. 

l(<!<i;, IS, § 5. 
1900, 433, §§ 1, 2. 



appoint one officer for attcnclance upon the sessions of said courts, 4 

and the justice of the municipal court for the Soutii Boston district, 5 

for the Charlcstown district and for tlie Roxburj- district ma-y each 6 

appoint two such officers. Each of said justices may remove an 7 

officer who has been appointed b}'^ him for an}' cause which he con- 8 

siders to be sufficient, and shall fill any vacancy which is caused by 9 

removal or otherwise. Each of said officers may serve the war- 10 

rants, mittimuses, precepts, orders and processes of the court for 11 

which he is appointed. 12 



Oflicers in 
muiticipal 
court of city 
ot Boston. 
1.S7:1, 310, § 1. 
1874, IBS). 
1870, 257, § 3. 
P. S. 154, 5 63. 
1895, 457, §§ 1, 
2,5. 
1898, 254. 



Section 64. The justices of the municipal court of the city of 1 

Boston, or a majority of them, shall appoint officers for attendance 2 

upon the sessions of the coiut, not exceedincr six for criminal busi- 3 

ness and three for civil business, and may at any time remove said 4 

officers for a cause which is considered by the justices to be suffi- 5 

cient, and shall fill any vacancy which is caused by removal or other- 6 

wise. Such officers may ser\'e the warrants, mittimuses, precepts, 7 

orders and processes of said com't. 8 



Bond. 

1805, 4.57, § 4. 
1900, 433, § 1. 



Section 6;!. Each officer who is appointed under the provisions 1 

of the two precedino; sections shall give bond for the faithful per- 2 

formance of his duties in the sum of one thousand dollars payable 3 

to the treasurer of the count}' of Suffolk, with sufficient sureties, 4 

who shall be ajiproved by the chief justice or the standing justice of 5 

the com't, as the case may be. 6 



Temporary 
con8tal)les or 
ollicers. 
1900, 179. 



Section 6(5. In police, di.strict and municipal courts which have 1 

only one constable or officer the justice ma}', in case of the absence 2 

of the constable or officer, appoint a constable or an officer pro tem- 3 

pore, who shall have the powers and perform the duties of the con- 4 

stable or officer, and shall receive for each day's service an amount 5 

equal to the rate by the day of the salary of the constable or officer ; 6 

but the amount so ]iaid to a constable or officer pro tempoi'e for 7 

service in excess of fourteen days in any one calendar year shall be 8 

deducted by the county treasurer from the salary of the constable or 9 

officer. 10 



Salaries of 

jiisticee and 

clerks. 

G. S. IKi, §33. 

1877, 210, « i. 

P. S. 1,54, § 64. 

Police courts. 

Brockton. 
1874, 31(1, Ǥ 3, 6. 
1879, 248, §§ 1, 3. 



Cliclsca. 
18(H, 2.5li. 
1869, 359 



Chlcopee. 

im'J, 3.59. 
1879, 232, § 2. 

Fitclilnirg. 
18(!8, 124, § 3. 
1871, 80, § 2. 



SALARIES. 

Section 67. The justices, clerks, assistant clerks, con.stables and 1 

officers of the following courts shall receive from the counties in 2 

whicli said courts are established annual salaries and allowances, as 3 

follows : — 4 

The police court, 5 

Of Brockton, the justice, two thousand dollars ; the clerk, thir- 6 

teen hundred dollars : 1881,247. I8.S3, .57. 7 

1885, 1.55, § 3. 1895, 500. 1899, 339. 1900, 419, § 1. 

Of Chelsea, the justice, eighteen hundred dollars ; the clerk, 8 

twelve hundred dollars : 1874, 201, §§ 2, 5. 1879, 2(i5, § 6. 9 

1882, 17G, § 3. 1884, 197, § 1. 1887, 117. 1894, 470. 

Of Chicopec, the justice, one thousand dollars ; the clerk, five 10 

hundred dollars: m)i, 78. 11 

Of Fiti'hburg, the justice, eighteen hundred dollars ; the clerk, 12 

twelve hundred dollars : i»n, 76. is79, 233, § 2. 13 

1882, 245. 1889, 97, 289. 1891, 71. 1899, 315. 



Chap. IGO.] police, district and municipal courts. 1409 

14 Of Holvoke, the justice, eisrhteen hundred dollars ; the clerk, Hoiyoke. 

*' ~ 1871 173 

15 thu'teen hundred dollars: i87»; -is-i; § a. 

18S1, 148, §§ 1,3. 1884,68. 1886,151. 1887,318. 

16 Of La\n'eiice, the justice, twent}'-five hundred dollars; the clerk, pgj^,gg''^- 

17 foiu'teen hundred dollars : wtsI 234,' § s. 

18S7, 208. 
1888, 110. 1893, 479. 1900, 268. 

18 Of Lee, the justice, one thousand dollars; the clerk, five hun- Lee. 
lit dred dollars: 1874, 171. 

1879, 219, § 1. 1881, 246. 1894, 373. 1900, 138, § 2. 

20 Of Lowell, the justice, twenty-seven hundred dollars ; the clerk, Ji-.y,y^ 

21 two thousand dollars; the assistant clerk, twelve hundred dol- 1*79; 247^ § i. 

OT 1 1882,63. 

22 lars : isse, 307. 1889, 152, § 2. is93, 479. 1899, 234. 

23 Of Lynn, the justice, twenty-five hundred dollars ; the clerk, J^^^g^ ^.^ 

24 fifteen hundred dollars : ises! 359! 

1873,141. 1881,290. 1891,162. 1900,26.5. 

1879, 234, § 2. 1886, 154. 1893, 479. 1901, 418. 

25 Of ^Marlborough, the justice, fifteen hundred dollars ; the clerk, f|tJ,'233,T6.''' 
2(i eight hundred dollars: 1892,93. 1889119.' 

27 Of Newburyport, the justice, twelve hundred dollars ; the clerk, ^«.« '^n^i'oft- 

28 one thousand dollars : is79, 234, § 4. 1.882, 245, § 1. 1889, 277. 1901, 415. 1877! i48. 

29 Of Ne^\i;on, the justice, eighteen hundred dollars ; the clerk, nine Newton. 

30 hundred dollars : is8i, 2.51. IstS; H^] | t 

1886, 158. 1890, 93. 1893, 479. 1898, 362. 

31 Of Sonierville, the iu.stice, two thousand dollars ; the clerk, one somerviiie. 

o -. il 1 1 11 " 1872,233,8 4. 

32 thousand dollars : 1879,247, §2. 1874I235! 

1882, 24,'j. 1887, 180, 265. 1891, llil. 1897, 318. 

33 Of Springfield, the justice, twenty-five hundred dollars ; the clerk, springiicid. 

34 fourteen hundred dollars ; the assistant clerk, si.x hundi-ed dol- I872; les," § 3. 

35 lars : 1S74, 180, § 4. is79, 232, § 1. i8S6, 155. 1887, 171. 

18S9, 28. 1897, 359. 1898, 372. 1899, 204. 

3t) Of Williamstown, the iustice, eight hundred and fifty dollars. wiiiuimstown. 

^ "^ 1879 219 5 1 

1897, 325. 1900, 229. ' ' * 

37 The district court, District i-mirts. 

38 Fu'st of Barnstable, the justice, one thousand dollars : 1390,177, §3. First Bam. 

39 Second of Barnstable, the justice, one thousand dollars : 1890,177, §3. lelmici Bnrn- 

40 Of central Berkshire, the justice, two thousand dollars ; the clerk, cen'trai Berk- 

41 one thousand dollars : 1874,123. 1879,219. i86™359- 416 

1882, 245. 1887, 190. 1893, 479. 1899, 314. 1^6. ' 

42 Of northern Berk.shire, the ju.stice, eighteen hundred dollars; the Northern Berk. 

43 clerk, one thousand dollars : i87i, 326. is79, 219. isX^di, § e. 

1>87, 1,1. 1888, 89. 1898, 216. 1899, 217. 

44 Of southern Berkshire, the justice, twelve hundred dollars; the southern Berk. 

45 clerk, seven hundred dollars : i87™202, § 2. 

1.871, 349, § 1. 1879, 219. 1886, 3,33, § 2. 1894, 374. 
1874, 126. 1884, 231. 1887, 227. 1897, 322. 

4() Fomth of Berk.shire, the justice, fourteen hundred dollars; the Fourth Bcrk- 

47 clerk, six hundred dollars : 1895, no. i898, 46o. 

48 First of Bristol, the justice, eighteen hundred dollars ; the special ft^fj^'.j^^fl'io! 

49 justice who holds court at Attleborough, at the rate of eight hundred J^sfV .]„!■ |J' 

50 dollars, as provided in chapter one hundred and eighty-nine of the J^^-^*^' 

51 acts of the year eighteen hundred and seventy-seven; the clerk, iwi^iei! 

52 thirteen hundred dollars : 

53 Second of Bristol, the justice, three thousand dollars; the clerk, second Bristol. 

54 eighteen hundred dollars : 1869! 359, § 2. 

1872, 77. 1876, 198, § 1. 1879, 201, § 3. 

1874, 293, § 20. 1877, 188. 1891, 108. 



UIO 



POLICE, DISTRICT AND MUNICIPAL COURTS. [ChAP. lliO. 



Third Bristol. 

1S74, i'J3, § -20. 
187», 201, § -2. 

Dukes County. 

First Essex. 
1S74, 2-.'4, Ǥ .1,7. 
1S7!), ■.>34, § 1. 

Second Esse.x. 

Central 

nortliern 

Essex. 



Eastern Essex. 
INi;4, 127. 
l.-iKI, 3,ia. 



Franklin. 
18%, 353, § 2. 

Eastern 
Franklin. 
1«W, 3'Jl, § 2. 

Eastern Hamp- 
den. 

1872, 277, § 5. 

Western 
Haniiiden. 
ISSll, 11)11, § 2. 

Ilampsliire. 
1SS2, 227, § 2. 
1883, 75, 80. 

Central 
Middlesex. 

Nortitern 
Middlese.x. 
1872, 2«!l, § 5. 



First eastern 
Middlesex. 
1874, 3112, « 6. 
18711, 247, 5 2. 
1882, 87, 245. 



.Second 
eastern 
Middlesex. 



Tldrd eastern 
Middlesex. 
ISCtl, 2118, § 1). 

I8i;ii, 3.')ii. 

18711, 247, § 1. 



Foui'tti eastern 
MidcllcBcx. 
Iss-.', 233, § (5. 

Southern 
•Middlesex. 
1874, 3.i, §§ 2, 4. 

Northern 
Norlolk. 
18118, 478, § 2. 

East Norfolk. 

1872, 2811, §§2,4. 

1873, 18. 



Southern 

Norfolk. 
18111, 273, § 2. 

Western 

Norfolk. 
181)8, 41)7, § 3. 

Second 
rivniouth. 
18^4, 3.10, § 18. 



Third of Bristol, the justice, twenty-five hundred dollars ; the 
clerk, thirteen hundred dollars : isso, 41,54. 1893,479. i8i)8, 429. 1900, 3S4. 

Of Dukes Count}', the justice, five hundred dollars : 1898,287, §2. 

First of Essex, the justice, eighteen hundred dollars ; the clerk, 
thirteen hundred dollars : 1882, 245, § 1. 

Second of Essex, the justice, twelve hundred dollars : isss, 193, §4. 

Central of northern Essex, the justice, eighteen hundred dollars ; 
the clerk, one thousand dollars : 

1867, 316, § 6. 1874, 207. 1882, 245, § 1. 

1871, 314. 1879, 234, § 2. 188N, .55. 

Of ea.stern Essex, the justice, eighteen hundred dollars ; the 
clerk, one thousand dollar.s : 1877,212, §3. 1879, •2;i4, § 2. 

1883, 53. 1888, 234, 2;«. 1897, 324. 1900, 400, § 6. 

Of Franklin, the justice, fifteen hundred dollars ; the clerk, .seven 
hundred dollars : 

Of eastern Franklin, the justice, five hundred dollars ; the clerk, 
two hundred dollars : 

Of eastern Hampden, the justice, twelve hundred dollars ; the 
clerk, five hundred dollars : 1879,232, §2. 1889, 130. 1896,3.37. 

Of western Hampden, the justice, twelve hundred dollars; the 
clerk, six hundred dollars : 1888, ss. issb, 479. 

Of Hampshire, the justice, twentj'-three hundred dollars ; the 
clerk, thirteen hundred dollars : 1886, loe. 1893,479. 

Of central Middlesex, the jastice, eight hundred dollars : 

1874, 315, § 5. 1879, 247, § 3. 18110, 238. 

Fu'st of northern Middlesex, the justice, one thousand dollars ; 
the clerk, six hundred dollars : 

1874, 281, §§ 1, 2. 1879, 247, §§ 2, 3. 1888, 214. 1889, 198. 

First of eastern Middlesex, the justice, twentv-five hundred dollars ; 
the clerk, sixteen hundred dollars ; the assistant clerk, one thousand 
dollars : isse, les, lev. 1893, 479. lan, (i5, § 2. 

1897,422. 1900,332. 1901,4,57. 

Second of eastern Middlesex, the ju.stice, eighteen hundred dol- 
lars ; the clerk, one thousand dollars : 



1881, 128, § 4. 
1883, 97. 



1885, 180. 

1886, 123. 



1888, 2.33. 
18111, 107. 



1894, 336. 
1897, 390. 



Thu'd of eastern Middlesex, the justice, twentj'-seven hundred 
dollars ; the clerk, sixteen hundred dollars ; the assistant clerk, one 
thousand dollars : 1882, as, § e. 1886, los. isus, 370. 

1897, 260, § 2. 1898, 358. 1899, 297. 

Foiu'th of eastern ^liddlesex, the ju.stice, eighteen hundred dollars ; 
the clerk, one thousand dollars : 1887, 174. 1893, 479. I897, 3.58. inoi, 392. 

Fu'st of southern Middlesex, the justice, fifteen hundred dollars ; 
the clerk, eight hundred dollars : 1879, 247, § 2. 1886, i56. 1889, 12. 

Of northern Norfolk, the justice, fifteen hundred dollars ; the 
clerk, eight hundred dollars : 

Of East Norfolk, the justice, fifteen hundred dollars ; the clerk, 
one thou.sand dollars : 1874,S64. 

1879, 220. 1888, 54. 1889, 263. 1893, 479. 

Of southern Norfolk, the justice, one thousand dollars 
five hundred dollars : 

Of western Norfolk, the justice, one thousand dollars 
five hundred dollars : 

Second of Plymouth, the justice, twelve hundred and fifty dol- 
lars ; the clerk, six hundred and fifty dollars: 1879, 248, §§i,>. 1880,226. 



the clerk, 

the clerk. 



5» 
56 
57 

58 
59 
60 
61 
62 

6S 

64 

ii^ 
66 

67 

69 
70 
71 
72 
73 
74 
75 

76 

77 

78 
79 
80 

81 

82 

83 
84 
85 

86 
87 
88 
89 
90 
91 
92 
93 

94 
95 
9(i 
97 
98 
99 



Chap. 1(50.] police, district and municipal coluts. 1411 

100 Third of Plymouth, the justice, eight hundred dollars ; the clerk, Jiymoutn. 

101 five hundred dollars : is79, 248, §§ i, -2. iss9, 137. ism, 321. ist4, 350, § is. 

102 Foiu'th of Plymouth, the justice, one thousand dollars ; the clerk, f.^^^^^^^^a,, 

103 five hundred dollars and his travelling expenses which are necessarih' {sjf/.^^vVf'j 

104 incurred in the performance of his official duties, not exceeding one is^iiW. 

' o 1S8'J 281. 

105 hundred dollars a jear : is9i, lao. 

106 Of East Boston, the justice, twenty-two hundred dollars; the East Boston. 

107 clerk, fourteen hundred dollars; the officer, eleven hundred is7'i,'-io5,'§. 5.'' 

108 dollars: I882, 24.5. § 1. isse.ir,. i8'j2, 100. i^"i' -«'- -ei- 
lOil Central of Worcester, the justice, three thousand dollars ; the central 

110 clerk, twenty-two hundred and fifty dollars; the assistant clerk, is72','i1«^|§ 5, 7. 

111 twelve hundred dollars : 18S2, 245, §1. isss, 50. issa, 83. 189.3,479. i§7J;->^;§i. 

112 First of northern AVorcester, the justice, foiuteen hundred dol- xoithern 

113 lars ; the clerk, eight hundred dollars; for the travelling expen.ses if^'-no,l'i. 

114 which are necessarily incurred and paid by the justice and the clerk ]^93;47'): 

115 in the performance of theu" official duties, one hundred and fifty !*''**'• ■■^''• 

116 dollars each : 

117 Fh'st of ea.stern Worcester, the justice, one thousand dollars: First eastern 

1872, 200, § 5. 1879, 233, § 2. 1S81, 245. 1884, 208. " on-ester. 

118 Second of eastern Worcester, the ju.stice, twelve hundred dollars ; second eastern 

119 the clerk, six hundred dollars. Until the fii-st day of January in ]1-X''3i7^l'6. 

120 the year nineteen hundred and tlu'ee, in addition to his salary the liS';!!!' fV'^" 

121 justice shall receive annually three hundred dollars and the clerk, }|y^' ^jS' |J^- 

122 foiu' hundred dollars : 

123 Fh'st of southern Worcester, the justice, fifteen hundred dollars; rirst southern 

124 the clerk, eight hundred dollars : " i^;?.s;a.'|'o. 

1881, 245. 1890, 131. 1898, 369. 1899, 154. l**'"' -'*^' ^ -'. 

125 Second of southern Worcester, the iustice, fourteen hundred secoiKi 

•' southern 

12D dollars: I872, 201, § .'S. Worcester. 

1874, 85, § 2. 1879, 233, § 2. 1881, 245. 1888, 173. 

127 Thu'd of southern Worcester, the justice, sixteen hundred dollars ; Twrd southern 

128 the clerk, five hundred dollars. i87'2','i.^!Tft- 

1879, 233, § 2. 1882, 246, § 1. 1900, 326. 

129 The municipal com-t, cimis!'''''' 

130 Of the city of Boston, the chief justice, fortj^-three hundred Boston. 

131 dollars; the associate justices, four thou.sand dollars each; the isw, 355; § e'; 

132 clerks, tlu'ee thousand dollars each; the first, second, thh'd and is?}, 43. 

133 fourth assistant clerks of the coiu't for civil business, twenty-five 1S79' 2.^7' Ira'' 

134 hundred dollars, two thousand dollars, fifteen hundred dollars and I':*'!'?,--' „., 

135 fifteen hundred dollars, rc.spectivcl}' ; the first, .second, thuxl, fourth ^i,-. 

136 and fifth assistant clerks of the court for criminal business, twenty- ]37i'|§i.2. ' 

137 five hundred dollars, eighteen hundred dollars, sixteen hundred i887;it;.s; 

138 dollars, fourteen hundred dollars and foiu'teen hundred dollars, re- I'slji ss^'ill^' 

139 spectively ; the three ofiicers in the civil sessions, twelve hundred }i".j ,g 

140 dollars each; and the six ofiicers in the criminal sessions, fifteen }-'•!?■ fll'- , „ 

ls9o, 4.1 (, § 3. 

141 hundred dollars each : 1897, i83. 1898,254. 

142 Of the Charlestown district, the justice, twenty-two hundred j!,',';',''!™'"""- 

143 dollars; the clerk, fifteen hundred dollars; the ofiicers, one thou- i«72rnj8. 

1 i < 1 1 11 1 1879, 205, §4. 

144 sand dollars each: 1881,259,261. 

1886, 136. 1887, 175. 1889, 227. 1891, 160. 1901, 372. 

145 Of the South Boston district, the justice, twenty-five hundred soutii Boston. 

146 dollars: the clerk, fourteen hundred dollars; the assistant clerk, i87i;376! 

147 eight hundred dollars; the officers, eleven hundred dollars each: 19.'" '' 

1879, 265, §4. 1881,261. 1882, 24,5, § 1. 1887,327. 1889,242. 1894,379. 18 • 5, 182. 



1412 



POLICE, DISTRICT AND Mt N'ICIPAL COURTS. [ChAP. IfiO. 



Roxbury. 

1871), 'iKS, 5 3. 
Itftil, 'Jtii, -201. 
lft*.>, 24;), § 1. 
ISS'.I, 174, ••17, 
23i). 

Brighton. 

1874, 271, §§ 17, 

19. 

1879, 265, § 5. 

WestRoxlniry. 
1874, 271, §§ 17, 
19. 

1879, 2(ffl, § .=). 

1881, 2G1. 

Dorchester. 
1870, SH, § 3. 

1873, .31)3, § 3. 

1874, 338. 
1879, 265, § 5. 

Brookline. 

1882, 233, § «. 
1884, 211. 



Clerical 
aBBistnnce. 

1888, 184, 246. 

1889, 62. 
189.% 260. 

1897, 263. 

1898, 286, :ai. 

1900, 419, § 2. 

1901, 295, 3.36. 



— in police' 
courts. 



— in district 
courts. 



— in municipal 
court of tlie 
citv uf Boston. 
1879, 257, §§ 1,2. 
I'. .S. 1.54, § 58. 
1883, 47. 
1888, 419, § 13. 
1893, 371. 
1896, 125. 
1899, 3.53. 



— inmuniciiKil 
courts. 
1889, 206. 
1897, 397, § 1. 



Of the Roxbiu-y diistrk-t, tho ju.stice, tluvc thou.sand dollar.s ; the 
clerk, eighteen hundred dollar.s ; the a.ssistant clerk, twelve hundred 
dollars ; the officers, twelve hundred dollars each : 

1893, 479. 1897, 3,56. 1900, 330, 331. 

Of the Brighton district, the justice, sixteen hundred dollars ; the 
clerk, nine hundred dollars : the officer, one thousand dollars : 

1881, 261. 1885, 49. 18S6, 148. If'M, 3Gi. 

Of the West RoxbiuT district, the justice, si.xteen hundred dol- 
lars ; the clerk, one thousand dollars ; the officer, one thousand 
dollars : 1883, iii. 1886, 148. 1887, 274, § 2. 1889, 92. 1893, 479. 

Of the Dorchester district, the justice, sixteen hundred dollars ; 
the clerk, one thousand dollars ; the officer eight hundred dollars : 

1881, 261, 1885, 79. 1886, 124. 1893, 479. 

Of Brookline, the justice, one thousand dollars ; the clerk, five 
liundred dollars : isss, eo. i898, 214. 

.lustices, clerks and officers whose yearly salaries are stated in 
this section, shall be paid at the same rate for any part of a ^■ear. 

Clerks of the following police and district courts shall lie allowed 
for extra clerical assistance, upon the certificate of the ju.stice and the 
clerk that the work was actually performed and was necessary, with 
the time occupied in its jx-iformance and the names of the persons liy 
whom it was pcribrincd, and subject to the a|)pro\al in writing of 
the county commissioners, the following amounts, paj'able monthly 
to the persons who are so einplo3'ed : 

The police com't. 

Of Brockton, not more than two hundred dollars : 

Of LauTence, Lowell and Lynn, not iiK)re than five hundred dol- 
lars each ; 

The district court, 

Second of Bristol, not more tliuii five hundred dollars ; 

Thu'd of Bristol, not more than five hundred dollars ; 

Central of northern Essex, not more than four hundred dollars ; 

Central of Worcester, not more than t^velve hundred dollars. 

The clerk of the municii)al com"t of the city of Boston for criminal 
business, an amount not exceeding nineteen hundred dollars a year, 
and the clerk of said court for civil business, an amount not exceed- 
ing fifty-two hundred dollars a year, which shall be expended by 
them, respectively, for extra clerical assistance ; but no more than 
forty-two hundred dollars a year shall be paid to the clerk of the 
court for civil business without the approval of the justices of said 
court or of a majority of them. 

The clerk of the municipal court for the Dorchester district, not 
more than two hundred dollars annually for clerical a.ssistance ; and 
the clerk of the municipal court for the Charlestown district, if it is 
considered necessaiy by the justice, not more than five hundred dol- 
lars in any one year for clerical assistance actually peribrmed, which 
shall be paid to the person who actually performs the woi-k upon his 
certificate stating the amount of work done, to which certificate the 
approval of the justice shall be affixed. 



Section 68. The special justice of the first district court of 1 
Bristol who holds the session of said court at Attleborough shall be 2 

d 
4 



Travelling 
expenses. 
1884, 205. 

1S9U,' iio.' allowed fifty dollars a year by the county for travelling expenses 

which may be incmTed by him in the transaction of the business 



C'llAr. 1(11. J JUSTICES OF THE PEACE AND TItlAL .7LSTICES. 1413 

5 of the coiu-t. The special justices of the district com-t of Hanip- 

(i shire shall each be allo\recl not more than one hundred dollars by 

7 the county for their travelling expenses which may be necessarily 

8 incurred when holding sessions of said com-t out of the places 

9 where they respectively reside, which shall be audited by the county 

10 commissioners. The justice, special justices and clerk of the district 

11 court of Franklin shall each be allowed by the county their travel- 
1-2 ling expenses which may be necessarily incurred when holding 

13 sessions of said court out of the towns where they severally reside, 

14 which shall be audited by the county commissioners. 

1 Section 69. Unless otherwise provided, special justices of police, compensation 

2 disti'ict and municipal com'ts, except the municipal com't of the city justkes. 

3 of Boston, shall be paid compensation by the county for each day's is'??, -jiu, §§ 2, :. 

4 service at the same rate as the rate by the day of the salary of the J^"; 2^\ 

5 justice of the same com-t ; but compensation so paid for service in fsfl|;s^;|bu 
(1 excess of thirty days in anyone calendar year, except for services 4|^'j\"^'^'"' 

7 in holding a simultaneous session or a session under the provisions 

8 of section forty-two, shall be deducted by the county treasurer from 

9 the salary of the justice. 

1 Section 70. Clerks pro tempore of police, district and municipal ten,pore'!''° ""^ 

■2 com-ts shall receive from the county as compensation for each dav's Ji' „■ },J^'' | Jj; 

3 service an amount equal to the rate by the day of the salary of the I'll^^'ilfJ-'fii 

^. , I iii I- • 18i)H, 31)0, § bi. 

4 clerk ; but compensation so paid to a clerk pro tempore tor service, isie, 24s. 
n in excess of thirty days in any one calendar 3'car, shall be deducted 

(! by the count}' treasm'er from the salary of the clerk. 

1 Section 71. In computinsj the rate bv the day of the compen- Compiitation 

1 t^. . ■ f 1 1 IT 111"' compeiisa- 

•2 sation of justices and clerks ot said courts, Sundays and legal hoi- tion. 

3 idays shall not be included in the da\'s in which the courts are open 

4 for business. 



CHAPTER 161. 

OF JUSTICES OF THE PEACE AND TRIAL JUSTICES. 

Sections 1-5. — Justices of the Peace. 

Sections 6-10. — Trial Justiees. 

Sections 11-27. — Jurisdietion and Proceedings in Civil Matters. 

Sections 28-47. — Jurisdiction and Proceedings in Criminal Matters. 

Sections 48-63. — General Provisions. 

JUSTICES OF THE PEACE. 

1 Section 1. Justices of the peace shall be appointed, and their Justices of tbe 

2 commissions shall be issued, for the commonwealth, and they shall meut'i'etJ!?'"'" ' 

3 have jm-isdiction tliroughout the commonwealth except as provided \^o. 120! ^ '' 

4 in sections tliree and four. p. s. 155, § 5. ^**' "^• 

1 Section 2. Justices of the peace and special commissioners may -;;'i^j;,1'J,„ti,a^ 

2 administer oaths or atfirmations in all cases in which an oath is re- ete.^ ^ .3^ ' 

3 quired, unless otherwise expressly provided. g. s. 12b, § 49. 

p. S. 155, § 2. 1899, 178, § 3. U5 Mass. 225. 



1414 



JUSTICES OF TIIE PEACE AND TRIAL JUSTICES. [ChAP. 161. 



Justices deslg- 
naU'd to issue 
warrants autl 
take bail. 
I871I, -int. 
V. S. l.V), § 4. 

1HS4, iHll. 

1S1I7, 4(;i. 
mi; Mass. 156. 
155 Mass. n. 
[1 Op. A. G. 
318.1 



Section 3. The governor, with the advice and consent of the 1 

council, ma}' from time to time, upon the i)etition of the mayor and 2 

aldermen of a city or the selectmen of a town which is included 3 

within the judicial district of a police or district coiu-t, and in which 4 

neither a justice nor the clerk of such coiut resides, designate and 5 

commission a justice of the peace A\ho resides in said cit}' or town (> 

to issue warrants returnable to said com't and to take bail in crim- 7 

inal cases arising within such judicial district. 8 



islt^'si".''^*'''' Section 4. The governor, with the advice and consent of the 
council, may from time to time designate and commission a justice 
of the peace who resides in the city of Quincy to issue warrants 
retiu'nable to the district court of East Norfolk and to take bail in 
criminal cases arising within the judicial district of said court. 



Limitation of 

powors of 

justices of the 

peace. 

18,58, 138, § 1. 

1859, 1113. 

G. S. 12(1, § .36. 

1877, 211, § 1. 

P. S. 15,5, § 6. 

126 Mass. 236. 



Section 5. A ju.stice of the peace who is not designated and 1 

commissioned as a trial justice shall not have or exercise power, 2 

authorit}' or jurisdiction to try cases, civil or criminal, receive com- 3 

plaints or issue warrants, except as jirovided in sections tlii'ee and 4 

four ; but a justice of the peace who is also a clerk or assistant clerk .5 

of a police, district or municipal court may receive complaints and (5 

issue warrants, retm-nable before the police, district or municipal 7 

court or trial justice which has jurisdiction of the trial or examina- 8 

tion of the person charged with the otience. 9 



trial justices. 



Section 6. The governor, with the advice and consent of the 
council, shall, from time to time, desiii'nate and commission in the 



Trial justices. 
18.58, 138, § 1, 
18511, 1113. 
1860, 187, § 1. 

S§-,^1-"'I3^- several counties a suitable number of iustices of the peace as ti'ial 

p. S. 1.1,1, §7, .. . 111.- 

134 Mass, 226. justices, and may at any time revoke such designation. lesMass. 234. 



1 
2 
3 
4 



Section 7. A trial justice; shall hold his office for the term of 



Term of oflice. 

18H0, 187, § 2. 

p's'.iss'^^u. three years from the time of his designation, unless during that 

134 Mass. 226. period he cea.ses to hold a commission as justice of the peace or 3 

unless such designation and commission as trial justice is revoked. 4 



Bond. 

1874, 394, § 3. 
P. S. 1.55, § 76. 



Section 8. A trial justice, before entering upon the duties of his 
office, shall give bond for one thousand dollars ]iayal)le to the treas- 
urer of the county, with sufficient sureties who shall be apjirovcd hy 
the superior court or by a justice thereof, conditioned to account for 
and pa}^ over all fines, co.sts, forteitm'cs, fees and money which he 
shall receive in the e.xercise of his office. A faihu'e so to account 
or pay over shall be a breach of his bond. A failure to give 
such bond shall be a sufficient cause for the revocation of his com- 
mission. 



185^1.38' 5 2, Section 0. Such trial justices shall be distributed as the con- 

1869 aii'''^ ^*' '^'cnience of the several counties requires, and the number in com- 
p.s'. 1,5,5, § 10, mission shall not exceed nine in Barnstable, twelve in Berkshu'e, 
thirteen in Bristol, three in Dukes County, nineteen in Essex, ten 
in Franklin, ten in Hampden, ten in Ilamiishire, thirty in Middle- 
sex, two in Xantucket, seventeen in Norfolk, fifteen in Plvmouth, 
one in Sulfolk, twenty-six in Worcester. 



ChAI'. 1(31.] .JUSTICES OF THE PEACE AND TRIAL JUSTICES. 1415 

1 Section 10. K a trial justice changes his domicil to a place Authority to 

2 within the district and jurisdiction of a police, district or municipal rliauge'T 

3 court, his authority to try civil or crmiinal cases, receive complaints Lm'isi'.f 2. 

4 and issue warrants shall cease, and another trial justice may be iJ-^'./n'AF' 

5 designated and ai^pointed in his place. }',„4,^^''''' ^ "• 

o 1 1 L 120 Maes. 242. 

JURISDICTION AND PROCEEDINGS IN CIVIL MATTERS. 

1 Section 11. Trial justices may hold courts within the counties Exclusive 

- - ■ original juris- 



') 



for which the}^ are appointed, and shall, subject to the provisions (Uition. 



3 of section twenty of chapter one hundred and sixty, have original i77il«6, 2s,' § i. 

4 jurisdiction, exclusive of the superior com't, of actions of contract, ifS;-^;;!}; 

5 tort or replevin in which the debt or damages demanded or value of 5Jii|^' 1.^,3 5 j 
(i the property alleged to be detained docs not exceed one hundred }i*-2;'fr''Vi. 

7 dollars; of actions of replevin for bea.sts distrained or impounded ioir§4;'u3,' 

8 in order to recover a penalty or forfeitm'e supposed to have been g.s. 120, §1. 

9 incm-red by their going at large, or to obtain satisfaction for damages i>.'s."i55',|\2. 

10 alleged to have been done by them ; and of summary process under iH ^IH; i^[ 

11 the provisions of chapter one hundred and eighty-one. les Maes. 234. 

1 Section 12. They shall, subject to the provisions of section original and 

2 twenty of chapter one hundred and sixty, have original and concm*- 'juSu^ti^n. 

3 rent jm'isdiction with the superior court of actions of contract, tort J'siw 'su l^i 

4 or replevin in which the debt or damages demanded or value of H-*'.,V"i''/.3"' 

5 property alleged to be detained is more than one hundred and does p.'s'.'i.w, §13. 

6 not exceed tliree hundred dollars. 

1 Section 13. They may is.sue writs of scire facias against execu- .scire facias 

2 tors and administrators upon a suggestion of waste after judgment utorB^etc^*"^^' 

3 against them, and also against the bail taken in a civil action before n^^'li's'l-^' 

4 themselves, and proceed therein to iudgment and execution as the f:Jt„, /, 

r • ..1,1.1.1 -^ >- lyu^, 1^2, § 1, 

5 superior court misrht do m like cases. p. .s. i.w, § u. b. s. bs, §i6. 

'^~ G. S. 120, § 3. 

1 Section 14. Such writs shall lie served not less than seven days service. 

2 before the retiuni day, which shall be not less than sixty daj's after R.^La^^'/n. 

3 the date thereof, and they may run into any county in which the Jt; |; JI5' | (g 

4 defendant may be found. 

1 Section 15. They .shall have jurisdiction of actions upon such Limit of juris- 

2 writs although the debt and costs on the original judgment to- l?^';"™"'™'''' 

3 gether exceed thi'ee hundred dollars ; but judgment and execution R.^l.al'j^ig 

4 may be awarded by the trial justice for the whole amount due to J^I'JgMig 

5 the plaintiff, with the costs of the new action. 

1 Section 16. Actions before trial justices may be heard and where causes 

2 determined at theii" dwelling houses or at any other convenient and is2s, m. 

3 suitable place ; and wi'its and processes may be made retiu'iiable 180?,'%.' 

4 accordingly, but not earlier than nine o'clock in the forenoon nor p.' f.' li?,' 1 26. 

5 later than five o'clock in the afternoon. 147 Mass. 70. 4Cush. 455. 

1 Section 17. The reasonable and necessary expenses, not ex- office rent. 

2 ceeding ten dollars a month, actually inciUTed by a trial justice for iwi! 24«.' 

3 the rent of an office which is used by him for com't purposes, shall i«6 Mass. 303. 

4 be paid by the county in which the office is located, in the same 

5 manner as the expenses for rent of police and district courts. 



1416 



JUSTICES OF TJHE PEACE AND TRIAL JUSTICES. [ClIAP. llil. 



Failure of jus- 
tice to atteml, 
in civil process. 
184fi, VIS. 
G. S. I'JO, § 10. 
1878, 4a. 
18S0, 1S2. 
1". S. Ifi5, § 21. 



Removal of 
cases concern- 
ing laud. 
16H8, 7, § 4. 
1783, 42, § 2. 
1825, 8i), § 3. 
R. S. 8,5, § 8; 
104, § 'J. 
y. S. 120, § 13. 
1863, 12,5, § 2. 
P. S. 1,5,5, § 24. 
1885, 384, § 5. 
19 Pick. 419. 
8 Met. 166. 
10 Met. 248. 
115 Mass. 568. 



Section 18. If a trial ju.sticc fails to attend at the time and 1 

place to which a civil process is rctuiniablc or continued before him, 2 

any other trial justice for the same county or a justice of the peace 3 

may attend and continue the process for not more than thirty days, -l 

without costs, and saving the rights of all jjarties ; and he shall 5 

make a certificate thereof, which shall be filed with the papers in the (> 

case and entered upon the record by the justice before whom the 7 

process was retiu'iiable. S 

Section 19. If, in an action pending before a trial justice, 1 

it appears b}^ the pleadings or otherwise that the title to land is 2 

drawn in question, the fact, unless it appears by the pleadings, shall 3 

be stated on the record, and the case shall, at the request of either 4 

part}', be removed to and entered in the superior comt for the same 5 

c-ount}' at the retiu'n day next after the removal is requested, and tj 

shall be there tried and determined as if it had been originally com- 7 

menced, or, if it is a writ of scu-e facias, as if the original judgment 8 

had been obtained, in that coiu't. 123 Mass. ss. 128 Maes. i;)2. lai Mass. 543. It 



Plaintiff 
removing to 
recognize. 
1698, 7, § 4. 
1783, 42, 5 2. 
R. S. 85, § 4. 
G. S. 120, § 14. 
P. S. 1,55, § 25. 
1886, 384, § 6. 



Section 20. The part}' who requires the case to be so removed 1 

shall, except as provided in section one hundred and one of chapter 2 

one hundred and seventy-three, recognize to the other party in a 3 

reasonable sum with sufficient siu'ety or sui-eties, with condition to 4 

enter the action at the su))erior coiu't for the same county at the .5 

retm'n day next after the removal is requested ; and if he fails so to (5 

recognize, the trial justice shall hear and determine the case as if no 7 

removal had been requested. 8 



Proceedings 
on removal. 
1698, 7, § 4. 
\lt<i, 42, § 2. 
It. .S. 86, § 5. 
G. S. 120, § 15. 
P. S. 155, § 26. 



Death of 
justice before 
entry. 

1862, 141, §1. 
P. S. 156, § 87. 



Section 21. The recognizor shall produce at the superior court 
a copy of the record and all papers required to be produced by an 
appellant, and if he fails so to do, or so to enter the action, he shall, 
upon complaint of the adverse party, be there defaulted or non- 
suited, as the case ma}' be, and such judgment shall be thereuj)()n 
rendered as law and justice may require. 

Section 22. If a trial ju.stice before whom a civil action has 
been commenced dies after the service of the ^\1■it either In' attach- 
ment of property or by personal service on the deicndaiit and 
before the entry thereof, the plaintiff may enter the action before 
any other trial justice for the same county, who may jirocccd in the 
case as if the writ had been originally issued with his signature, 
except as provided in section twenty-four. 



1 
2 
3 
4 
.") 
t) 

1 
2 

3 
4 
,") 
I) 
7 



i^d"efo''rc'^^ Section 23. If a trial justice before whom a civil action has 
iut|K"'eit. been entered and is pending dies before the final judgment in the 
p. s. 15,5, § 38. ease has been rendered by liim, an}' other trial ju.stice for the same 
county may, upon the application of any one of the parties to the 
action, cause the papers in the case to be brought and entered before 
him, and he may thereupon i)roceed in the action in the same man- 
ner as if it had been originally entered before him, except as provided 
in the following .section. 



4 
f) 
1; 

7 
8 



Notice to the SECTION 24. If an actioii is entered as provided in section 1 

partK'B, etc. * 

1862, 141, §3. twenty-two or it the pai)crs in a ca.se are brought and entered as 2 

p. S. 156, § 89. *^ *■ ^ ^ 



Chap. 161.] justices of the peace and trial .rosTiCES. 1-117 

.3 provided in the preceding section, the trial justice before wlioni the 

4 case is so entered shall issue notice to the other party or parties to 

5 the action, that they may appear before him. Such notice shall be 
G ser\'ed in the manner provided for the service of \vrits retiu-nable 

7 before trial justices, and no fiuthcr proceedings shall be had in the 

8 case until such notice has been given. 

1 Section 25. If a trial justice dies while a iuderment rendered ?<'?.""'',., 

Ti-i- • i- • ^ 1 .,."'.'',. , justice while 

2 by hmi remams unsatished, any other ti'ial justice lor the same judgment 

3 county may, u])on the ai)i3lication of the creditor, cause the record i7M-lt,^i7!§'i. 

4 of the judgment to be brought before him, and shall thereupon tran- r.'s. sH.Vw- 

5 scribe the same upon his own book of records, note on the original p."|;i55,'|«" 
G that he has so transcribed it and deliver it to the person who pro- 

7 duced it. 

1 Section 26. The trial justice who is applied to under the pro- Production of 

2 visions of section twenty-tliree or twenty-five shall, unless the pro- rea'se'd justice. 

3 visions of section sixty-one have been complied with, if necessary nSirlifl'sV' 

4 issue a siunmons to the executor or administrator of the deceased g |' ^b^/sb 

5 justice, or to any other person who is supposed to have the custody p''|' Y^'i 4, 

6 of the jjapers or records, requiring him to produce the same or to 

7 submit to an examination on oath as to the place where they may 

8 be found ; and may commit such person as for contempt until he 
y submits to such examination, if required, and produces the papers 

10 and records, if they are within his custody or control. 

1 Section 27. After the record of a judgment has been dul}'^ tran- Execution 

2 scribed by a trial justice, he may issue execution on the judgment S4riTr§i. 

3 as if it had been rendered by himself, changing the fomi as the ch- Rfl'. »',|li. 

4 cimistances requu-e ; and a copy of the record, certified by him, shall p.'f' Jg^'lfj' 

5 have the same effect as an authenticated copy of the original. 



.JURISDICTION AND PROCEEDINGS IN CRIMINAL 1L\TTERS. 

1 Section 28. Trial justices may, within the counties for which niay'iesue"*^ 

2 the}' are appointed, receive complaints and issue warrants against j^^^l'''jo5J^j 

3 persons charged with crmie unless the crmie was committed within i^iajias! 

4 the judicial district of a police, district or municipal court. sb. ' ' ' 

1877, 211. P. S. 155, § 43. 1-26 Mass. 235. 

1 Section 20. "Warrants and other criminal processes which are warrants, etc., 

2 issued by a trial justice may be directed to and served b}' a con- amisen-'eXetc. 

3 stable of any city or town in the county in which such trial justice \l^~i .^i^ § 4, 

4 has jm-isdiction, and siu'h warrants shall be made returnable before ^VMass' f,^' 

5 a trial justice or a police, district or municipal coiu't which has jm-is- i<J* ^'a^B- '^"'J- 

6 diction of the trial or examination of the person charged with the 

7 crune. 

1 Section .30. Trial iustices .shall have im'isdiction, concurrent t'riininai juris- 

■ ' u let ion "^cii- 

2 with the sui)erior court, of all crimes which may be subiect to the frai. 

n ,,. ,. ^ ^ n ■. £■ _ .L il--„ .CJi_. _l/ll_^_ /• l.-'SN, 45, § -2. 



3 penalties of a fine or forfeiture of not more than fifty dollars or of lii's. iVo, §'37. 

4 imprisfinment for not more than six months, or to both of said uGray^^*"'*' 

5 penalties. 



108 Mass. 483. 



U18 



JUSTICES OF THE PEACE AXD TRIAL .JUSTICES. [ChAI>. Kil. 



Criminal 
jurisdiction 
of Ijreaclies 
of the peace. 
lii'J2-3, 18, § 6; 
2S, § 7. 

ntsi, 51. 

17!)4, 26. 

R. S. 85, § 24. 

ia54, 3-28. 

G. .S. 1-20, § 38. 

1871, 115. 

187B, 174. 

P. S. 155, § 46. 

11 Cueh. 262. 



Section 31. They .shall have jiu'i.sdiction, a.s afbre.said, of the 1 

crimes of assault and batter}' and of other breaches of the peace 2 

which are not of a high and aggravated nature ; of distui-bing the 3 

peace to the great damage and common nuisance of the inhabitants 4 

of the place in which the distiu-bance occurs ; of affrays and riots ; 5 

of going armed oflensivel}' to the terror of the people ; of uttering 6 

menaces or tlireatening speeches ; and of being a dangerous and dis- 7 

orderly person ; and, upon conviction of the defendant, may puni.sh 8 

him by a fine of not more than thirty dollars or by imprisonment 9 

for not more than ninet}' days. 10 



— to bind over 

to superior 

court. 

R. S. 85, § 25. 

G. S. 120, § 39. 

P. S. 156, § 47. 



Section 32. Whoever is arrested for any of the crimes named 
in the preceding section shall be examined b}' the trial justice before 
whom he is brought, and may be tried before him, and, if convicted, 
may be requu'cd to find sureties to keep the peace and be pun- 
ished by fine or imprisonment as before provided ; or, if the offence 
is of a high and aggravated nature, he may be committed or bound 
over for trial before the superior coiu-t. 



— of violations 
of by-laws, etc. 
1692-3, 28, § 5. 
1801, 62. 
R. S. 15, § 13. 
1849, 211, § 7. 
18.52, 299. 
1857, 194, § 5. 
G. S. 120, § 40. 
P. S. 155, § 48. 



Section 33. Trial justices shall have jurisdiction, as aforesaid, 1 

of violations of city and town ordinances, by-laws and orders ; of 2 

offences of keeping billiard tables or bowling alleys contrary to the 3 

provisions of section one hundred and sixty-nine of chapter one hun- 4 

dred and two ; of violations of the laws relative to the public health ; 5 

and of offences against property in cemeteries ; but no single penalty 6 

imposed for offences against property in cemeteries shall exceed 7 

fiftv dollars. 8 



— of violations 
of milk and 
dairy laivs. 
1885, 149. 
1897, 349. 



Section 34. They .shall have jm-i.sdiction, as aforesaid, of cases 1 

arising under the laws relative to the inspection and sale of dairy 2 

products and imitations thereof, and of cases arising under the pro- 3 

visions of chajiter fifty-six relative to the inspection and sale of 4 

milk, and -may impose the penalties therein prescribed. 5 



— of felonies 
by juvenile 
offenders. 
1872, 358. 
1877, 211, § 6. 
1880, 183. 
P. S. 1.55, § 49. 
127 Mass. 45U. 



Section 35. They .shall have jm-isdiction, as aforesaid, of felo- 1 

nies which are not punishable b}^ death or imprist)nment for life and 2 

which are committed b}' juvenile offenders under se\'enteen years 3 

of age, and, upon theh* conviction, may sentence them to any i)un- 4 

ishment authorized by law for such crime, except miprisonment in 5 

the state prison, or they may commit them to any institution estab- 6 

lishcd by law for the reformation of ju\enile offenders, or may bind 7 

them over for trial in the superior coiu't. 8 



— of larcenies ; 

bnyinff, etc., 

stolen jroods. 

1804, 143, § 2. 

K. S. 126, §§ 18, 

23. 

1851, 156, § 4. 

18,52, 4. 

18.55, 135, I 2. 

1857, 80. 

G. S. 120, §§41, 

P.' S. 1.55, §§ 50, 

56. 

9 Gray, 114. 



Section 3(5. They shall have jim.sdiction, as aforesaid, of the 1 

crime of larceny ; of the crime of buying, receiving or aiding in the 2 

concealment of stolen propert}' ; and of the crime of fraudulently 3 

obtaining property by any game, device, sleight of hand, pretended 4 

fortune telling, or by any trick or other means liy the use of cards or 5 

other implements or instnunents ; if the value of the property in re- 6 

spect of which the crime is committed is not alleged to exceed ten 7 

dollars. In all such cases the defendant, upon a fh'st conviction, 8 

shall be punished b}' a fine of not more than fifteen dollars or by 9 

imiirisonment for not more than six months; and upon a .second 10 

conviction of the like offence, committed after a former conviction, 11 



Chap. 101.] jUvStices of the peace and trial justices. 1-119 

12 he shall be punished by a fine of not more than twenty dollars or 

13 by imprisonment for not more than one year ; but if the person who 

14 is convicted of buj'ing, receiving or aiding in the conceahnent of 

15 such stolen goods or property makes satisfaction to the person in- 
1(3 Jmvd to the full value of the property stcjlen and not restored, the 
17 punishment may be mitigated as justice may require. 

1 Section 37. They shall have jurisdiction, as aforesaid, of all a^HonoV"'^'^' 

2 the crimes mentioned in sections ninety-nine, one hundred, one malicious 

3 hundred and five, one hundred and six and one hundred and six- isas-^, io, § is. 

4 teen of chaj)ter two hundred and eight, if the value of the trees, i7S5i2s,'§"i. 

5 fruit, flowers or other jiroperty injm-ed, destroyed, taken or carried r.'I'.^i26,^§ 46. 
(j away, or the injmy occasioned by the trespass, is not alleged to g*s. rio! §42. 

7 exceed one hundred dollars ; and may punish the same by a fine of p^l^il^' ||i 

8 not more than one hundred dollars or by imprisonment for not wi Mass. 241. 
1) more than six months, or by both such fine and. imprisonment ; l)ut 

10 if the value of the property so destroyed or injured or the amount 

11 of injury done is not alleged to exceed fifteen dollars, the fine im- 

12 posed for a violation of said section one hundred and sixteen shall 

13 not exceed fifteen dollars or the huprisonment exceed thirty days. 

1 Section 38. They shall have jurisdiction, as aforesaid, of of- ^u4"°df"^'"' 

2 fences under the provisions of section fift^'-four of chapter two •mimii'is, eu-.. 

oil! I'll 111 •* 1 INio, 3!», § 2. 

hundred and eight ; liut thev shall not nnpose a greater penalty u- s. 120, § 43. 
4 than is authorized by section thu'ty of this chapter. p. s. 155, § 52. 

1 Section 39. They shall have jurisdiction, as aforesaid, of viola — of violations 

2 tions of the laws regulating the taking of fish and game, the penalty game^avrl 

3 for which does not exceed a fine of filty dollars or imprisonment for 

4 more than six months. 

1 Section 40. They shall have jurisdiction, as aforesaid, of of- ;:7c°'niiis'aute8 

2 fences under the provisions of sections six and seven of chapter one j^'- J;;- 

3 hundred and one; and, upon conviction of the defendant, may i8ee!28oi§3. 

4 punish him by a fine of not more than one hundred dollars and by p.' s. 153, 5 .53. 

•- i •,•,.. ,1 111 Mase. 427. 

imprisonment tor not more than one year. 147 Mass. 29. 137 Mass, 14. 

1 Section 41. They shall have jurisdiction, as aforesaid, of the —of disorderly 

2 common law offence of keeping and maintaining a common, ill- im^K. 

3 governed and disorderly house ; and, upon conviction of the defend- Iseei'iMs. 

4 ant, may punish him by a fine of not more than one hundred p.'l'/isl^jga. 
.0 dollars or by imprisonment for not more than one year. 

1 Section 42. They shall have jiu'isdiction, as aforesaid, of vio — of intoxicat- 

2 lations of the provisions of chapter one hundred, and of the pro- tomi?",'X'. 

3 visions in chapter two hundred and twelve relative to tramps, Is^'.ImJs! 

4 vagrants and vagabonds and to ci-uelty to animals. isto! 203^/3; 

1880, 239, § 7; 257, § 4. P. S. 135, § 54. 

1 Section 43. They shall have jurisdiction, as aforesaid, of all iTea^s' '^™°''^°" 

2 cases of drunkenness arising under the provisions of chapter two i«9-. i^"- 

3 hundred and twelve, and may impose the penalties prescribed by 

4 said chapter. 



1420 



JUSTICES OF THE PEACE AND TRIAL JUSTICES. [ChAP. 161. 



Criminal 
jurisdiction 
of peddling 
contrary to 
law. 



— of selling 
obscene 
literature. 
1894, 433, § -i. 



Section 44. They may in their di-scretion take jurisdiction of 1 

oflfence.s described in .section thirteen of chapter .sixt3'-five, and in 2 

such cases may impose a fine of not more than tift}' dollars. S 

1868, 12. P. S. 15.5, I 56. 

Section 4.5. They shall have jurisdiction, as aforesaid, of of- I 

fences under the provisions of .section twenty of chapter two hun- 2 

dred and twelve, and for a violation thereof may impose the 3 

penalties prescribed by .said section. 4 



Failure of jus- 
lice to attend 
in criminal 
prix'css. 
l.-<8:i, 175. 
1.56 Maes. 270. 



Section 4(i. If a trial justice fails to attend at the time and I 

place to which an examination or trial has been adjom-ned l)y him 2 

under the prftvisions of section thirty-four of chapter two hundi'ed S 

and seventeen, any other trial justice for the same county may 4 

attend and hear or try said case, and may fiu-thcr adjoiu'ii such ."> 

examination or trial in the same manner as the justice before whom (> 

the case was fii'st jTending. The justice who so takes cognizance 7 

of the case shall make a minut« of the proceedings before huuself 8 

on the complaint and certify the same, and it shall be entered on it 

the records of the justice who makes the final order, sentence or 10 

decree in the case. Any recognizance taken by the ju.stice before 11 

whom the case %vas originally jx'uding shall continue in full force 12 

and efl'ect. The same costs shall be taxed in any case which is IH 

continued or tran.sfcrred from one trial justice to another as if all 14 

the proceedings had been before one justice. l'> 



Proceedings 
upon deatli of 
justice. 
I(i71, 386. 
P. S. 1.55, § 66. 



Section 47. If a trial justice before Avhom any criminal pro- 
ceeding is pending dies before final judgment has been rendered 
therein, any other trial justice or any jjolice, district or municipal 
court in the same county ma^' cause and allow the papers in the 
case to be brought and entered before him or it, and may thereupon 
proceed as if the case had been originally commenced before him 
or it. 



1 



general provisions. 



Contempt. 
1784, as § 6. 
R. S. 85, § 33. 
O. S. 1-20, § 60. 
P. S. 155, § 68. 
•i Gray, li3. 
120 Maes. 121. 



Section 48. Trial justices may punish such disorderly conduct 
as interrupts any judicial proceedings before them, or as is a con- 
tempt of their authority or jiersons, by a fine of not more than ten 
dollars or by imprisonment for not more than fifteen days. 

168 Mass. 234. 



1 

2 

4 



ISecorde. 
1783, 42, § 3. 
K. S. 85, § 35. 
G. S. I2U, « 51. 
P. S. 155, « i;'J. 
1888, 211, § 1. 
12 Met. H. • 

2 Grav, 117. 

3 Grav, 574. 

4 Grav, 29. 
168 Mass. 234. 



Section 49. They .shall keep a record of all thch- judicial jiro- 
ceedings, both in civil and criminal cases. They .shall safely pre- 
serve all dockets and records of their judicial proceedings and 
other official papers in their custody, .shall keep them open, under 
jiroper regulations, to public inspection and examination and shall 
fm-iiish copies thereof upon rcfiuest and payment of such fees as are 
allowed in similar cases to clerks of com-ts. 



1 
•} 

4 
.') 
() 
7 



S77°2U Ts' Section .")0. They shall have the same authority to issue com- 1 

p. s'. 15.5, § 70. missions to take depositions in cases pending before them as the 2 

superior court has in cases pending therein. 3 



.tt'courtB*"""' Section 51. They may adjourn their coiu-ts in all cases on trial 
17.S3, 42, §2. before them, civil or criminal, to aiiv other thne or i)lace as occasion 



1 



ClIAP, Kil.] JUSTICES OF THE PEACE AND TRIAL .JUSTICES. 1121 

3 may re(]uii-e, except as provided in section thirty-lour of chapter k. s. S5, § 3-2. 

4 two luuidred and seventeen. usMass. 2o«. p.' s.' iS,' | n.' 

1 Section !'>2. They sliall not commence or be concerned in the Trial justiies 

2 commencement of civil actions retmniable before themselves. nienwTrtioiiB 

1S51, 273. G. S. 1-20, § 53. P. S. 155, § 72. 103 Mass. .^.W. selves ""^"'' 

1 Section 53. They shall not be retained or employed as attor- —not tube 

2 neys before any com-t, upon appeal or otherwise, in an_v suit or Attorneys, etc. 

3 action previously determined before themselves ; nor shall they try Jgjg; 4!;^ ''■ 

4 any civil action commenced by themselves or b}' their order or direc- J^- 1- jo^^i^^i 

5 tion ; and every civil action so commenced shall be dismissed with p^*- p^J ''^■ 

(i costs for the defendant. 9 Gray, see. 1 AUen, -210. 102 Mass. 372. 11 CuBli. 315. 

1 Section 54. At the end of the trial of a criminal case before a Payment of 

2 trial justice, he shall pay the fees and expenses of ad officers who "jHcers^.''^'""' 

3 are entitled thereto and which accrue in such case from the funds in 1J90' 44°, §§ « a 

4 his hands and which are payable to the city or town liable for the \l^' :]^J' | }• 

5 payment of such fees and expenses ; and all such expenses and fees isoil '-e' 
(> which are not so paid shall be certified at the end of each month 

7 to the treasurer of the city or town liable therefor, who shall pay 

8 them to the persons entitled thereto. At the termination of an 
t* inquest or a crmiinal proceeding, he shall also pay theh* fees to the 

10 witnesses for the commonwealth, except those named in section 

11 fort}'-two of chajiter two hundred and four, and the fees and ex- 

12 pcnses of officers at inquests out of any funds in his hands which 

13 are retiu'nable to the county, and shall take receipts therefor. The 

14 amounts so paid and receipted for shall be allowed in the settlement 
1.') with the county, city and town ti'easiu-ei-s , respectivelv. A trial 
Ifi justice who does not have sufficient funds in his hands which are 

17 returnable to the county with which to pay witnesses and officers 

1 8 at inquests as herein provided may make written requisition therefor 
!!• upon the county treasiu'er, who shall advance to him not more than 

20 one hundred dollars in any one month ; but if it appears necessary 

21 to the controller of county accounts, he may approve a requisition 

22 for not more than two hundred dollars in any one month, and, upon 

23 receipt of a requisition so approved, the county treasurer may pay 

24 to the trial justice such amount as may be called for. The trial 

25 justice shall account for such amounts in his regular settlements 
2() with the county treasurer and shall be liable therefor upon his 
27 official bond. 

1 Section 55. If the commission of a trial ju.stice expires while a Effect of 

2 judgment rendered by him remains unsatisfied, he may issue execu- eommiss'ion''. 

3 tion thereon with the same effect as if it had not expired, p. s. 155, §74. g; |; mJi%- 

1 Section 56. If the commission of a trial justice expu-es without JJSg'j,'^^"''* 

2 renewal, or is terminated by resignation, change of domicil or rev- business. 

3 ocation, he may fini.sh any business which has been commenced or p\ s. 1.55, § s. 

4 is pending before him and certify copies of his records and papers ; ' " 

5 or any party to a civil action which has been commenced or is 
(i pending before him may enter or transfer such action for proceed- 

7 ings before any other trial justice for the same county, in the 

8 manner provided in sections twenty-five and twenty-seven. 



1422 



JUSTICES OF THE PEACE AND TRIAL JUSTICES. [ChAP. 1(31. 



Completion of 
uuflnisiuMl 



Section 57. If a trial justice is commissioned and qualified 1 

businisB when aucw at or before the expiration of his former commission, his au- 2 

thority siiail continue : and all business which has been commenced 3 

b}' or before him under the former commission may be prosecuted 4 

and eomjileted in the same manner as if that commission had con- 5 

tinned in force. 6 



r.oninnssiuu is 
renewed. 
ITfM, I'J, § 2. 
R. S. Hi), § -23. 
1852, 283, § 4. 
G. S. 121), § 56. 
P. S. Inft, § 75. 



Costs to be 
entered in a 
record book. 

imi, nil, § 7. 

p. S. 155, § 77 



Section 58. Trial justices shall enter all costs which are taxed 1 

and allowed by them in a record book which they shall keep for 2 

that purpose, and shall specify the case in which, and the person 3 

to whom, they were allowed and the several items of charge speeiti- 4 

cally ; and the receipt of the jierson who is entitled thereto shall be 5 

entered upon the book when the amount so allowed is paid. 6 



Accounts for 
Ilnee, et<'. 
17011-1, n, § 3. 
178;',, .t2, § 8. 
171)1, .53, § 4. 
R. S. 85, § 37. 
G. S. 120, § .57. 
P. S. 1.55, « 78. 
1887, 438, § .5. 
1890, 204, 210. 



Section 59. They shall, on or before the tenth day of January, 
April, July and October, in each year, account for and pay over to 
the county, cit}^ or town treasurers, or to such other officer as is 
authorized by law to receive the same, all money received by them 
which by law is payable to counties, cities and towns, and shall 
render to said treasiu'ers or other officer a detailed account thereof 
under oath. Said payments shall include the lialances due and 
payable at the end of the quarter last preceding the day of pay- 
ment. A trial justice who violates the provisions of this section 
shall be punished by a fine of not more than one hundred dollars for 
each offence. 



1 
2 
3 
4 
5 
6 



9 
10 
11 



ui?ns to county SECTION 60. They shall annually, on the first day of January, 
i.s47,^!>74,'^§'i. return to the county treasurers of their respective counties all fees 
g,-.s-^i-"' § 58. of .sheriffs, deputy sheriffs, constables and witnesses which have 
r. s. 155, § 79. been taxed and allowed durins: the i:)recedino; year and which then 

14 Alien 217. ... o i o v' 

remain in their hands, and a schedule thereof. 



1 

9 

3 
4 
5 



ScOTtfs'with Section (i1. Upon the death, resignation or removal from office 

J^lji^^jf <■«;;•'"■ of a trial justice, all his dockets, records of his judicial proceedings 
and other official pajjcrs in his custody shall be deposited in the 
office of the clerk of the com'ts in the county for which he was des- 
ignated, or, if he was designated for the county of SuSblk, in the 
office of the clerk of the superior court for civil business. 



1 

2 
3 
4 

5 
fi 



Penalty for 
neglect to 
deposit. 
1888, 211, §§3, 4. 



Section ()2. A trial justice who neglects for three months after 1 

his resignation or removal from office so to deposit his dockets, I'ec- 2 

ords and other official papers shall forfeit not more than five hun- 3 

dred dollars, and the executor or administrator of a deceased trial 4 

justii'e who neglects for three months after the filing of his bond so 5 

to deposit in the clerk's office the dockets, records and other official (> 

papers of the deceased which come into his hands shall forfeit a like 7 

amount. 8 



me'nt'o^f^rw*' SECTION (53. Whocver knowingly and wilfully destroys, defaces 1 

is8!f'2ii §5 "^ conceals the dockets, records or other official papers of a trial 2 

ju.stice shall forfeit not more than one thousand dollars, and shall 3 

be liable in damages to any person who is injured thereby. 4 



Chap. 162.] probate courts. 1423 



CHAPTER 162. 

OF PROBATE COURTS. 

Sections 1-7. — Courts and Jurisdiction. 
Sections 8-28. — Appeals. 
Sections 29-54. — General Provisions. 
Sections 55-60. — Sessions of the Courts. 

COURTS AND JURISDICTION. 

1 Section 1. Probate coiu-ts shall be courts of record, and the courts of 

2 judge and register of probate and insolvency for each count}' shall be n^^'lfe'.lu, 2. 

3 the judge and register of the probate couit of such county. H^s'.ss^'slViio' 

I8.W, 93, § 1. G. S. 117, § 1. 186-2, 68, § 3. P. S. 156, § 1. 

1 Section 2. The probate courts shall be courts of superior and superior 

2 general jurisdiction witli reference to all cases and matters in which i89i, 415, §4! 

3 they have jiu'isdiction, and it shall not be necessary for any order, 

4 decree, sentence, warrant, ^\n-it or process which may be made, 

5 issued or pronounced by them to set out any adjudication or cir- 

6 cumstances \vith greater particularity than would be reijuired in 

7 other courts of su[)crior and general jurisdiction, and the like pre- 

8 sumption shall be made in favor of proceedings of the probate 

9 court as would be made in favor of proceedings of other courts of 
10 superior and general jurisdiction. 

1 Section 3. The probate com't shall have jurisdiction of the pro- .JuriBdiction. 

2 bate of wills, of granting administration of the estates of persons isif; ilio.Vi. 

3 who, at the time of theu* decease, were inhabitants of or resident l',f§tj'6!''' 

4 in the county, and of persons who die out of this commonwealth g^^'s^'""' ^ ^' 

5 leaving estate to be administered within the county; of the appoint- Jjiii^sp- 

6 ment of guardians to minors and others ; of all matters relative to spirk. 20, 6.% 

7 the estates of such deceased persons and wards ; of petitions for the lo^us'h. 17. 

8 adoption of children, and for the change of names ; and of such other 4 aS, Iw'. 

9 matters as have been or may be placed within theu* jurisdiction. 131 Mass! 477! 

1 Section 4. The probate com't shall have exclusive original juris- same subject. 

2 diction of petitions of married women relative to theu* separate ^'^*''**'^'5'^- 

3 estate, and of petitions or applications relative to the care, custody, 

4 education and maintenance of minor children which is provided for 

5 by sections thirty-one, thirt3'-two and thirty-seven of chapter one 
f) hundred and fifty-three. 

1 Section 5. The probate com't shall have jurisdiction in equity. Equity juris- 

2 concm'i'ent with the supreme -judicial court and with the superior e.' s.^esi, § 12. 

3 coiu't, of all cases and matters relative to the administration of the J|s(?ias1'^*'^' 

4 estates of deceased persons, to wills or to trusts which are created itj^fiif^f- 

5 by will or other written instrument. Such jurisdiction may be exer- 1*'-^ iij'' 

6 ciscd upon petition according to the usual com'se of proceedings in lee mass! 2114; 

-,,;,', ° '■ ° M Mass. 1»9, 

t .the probate court. 265. 



1424 



PROBATE COURTS. 



[Chap. 1(12. 



Court first 
taking juris- 
dictiuu to 
retain it. 
17SS, 1-2, § 1. 
1S17, ll«l,§§),16. 
R. S. (a, § jo; 
W, § 3; 79, (, :!1; 
Ki, ^ 14. 
G. S. 117, § 3. 
P. S. 156, § 3. 



Section 6. If a case is within the jurisdiction of the probate 1 

coui'ts in two or more counties, the coiut which first takes cogni- 2 

zancc tliereof b}' the coniniencenient of proceedings therein shall re- 3 

tain jiu'i.sdiction thereof, and shall exclude the jiu'isdiction of the 4 

pi'obate courts of all other counties ; and the administration or guar- "> 

dianship which is first granted shall extend to all the estate of the (i 

deceased or ward in the commonwealth. 7 



Jurisdiction of 
trusts. 
1S74, 352, § 3. 
1". S. 141, § 28. 



Sectiox 7. All matters of trust of which probate courts have 
jmnsdiction, except those arising under M'ills, shall be within the 
jurisdiction of the probate coiu't of any county in which any of the 
parties interested in the trust reside, or in which any of the land 
held in trust is situated ; but such jm-isdiction, when once assumed, 
shall exclude the probate court of any other county from taking 
jm'isdiction of any matter subsecj[uently arising in I'elation to the 
same trust. 



1 
-J 

i> 
4 
.5 
(i 

7 
8 



APPEALS. 



Supreme court 
of i-irobate. 
17.S3, 4«, ^ 3. 
1S17, ISO, 5 «. 
E. S. S3, §33. 
G. S. 117, §7. 
P. S. 156, I 5. 



Section 8. The supreme judicial court shall be the supreme 
coiu't of probate, and it shall have appellate jiu'isdiction of all 
matters which are determinable by the probate courts and by tlie 
judges thereof, except as otherwise expressly provided. 



Appeal. 
lHy2-3, 14, § 1 
4«, §1. 
vv.m, 8, § -2. 
1700-1, 5. 
17^«, 4K, § 4. 
1S17, I'JO, § 7. 



Section 9. A person who is aggrieved by an order, sentence, 1 

decree or denial of a probate court or of a judge of such cf)m-t may, 2 

except as otherwise provided, appeal therefrom to the su})reme judi- 3 

cial COlU't. R- S. 83, § 34. G. S. 117, § 8. p. S. 156, § 6. 4 



4 Picli. 41. 
IS Pick. -285. 
11 Met. 3'JO. 
4 Cusli. 408. 



1 Grav, 518. 
3 Allen, 556. 
lU .M:i88. 346. 
128 Jliiss. 692. 



129 Mass. 527. 
140 Mass. .596. 

143 Jlass. ■>:». 

144 Muss. 135, 415. 



148 Mass. 421. 
154 Mass. 574. 
170 Mass. 1)3. 
175 Jliiss. 483. 



Entry of 
appeal. 
171;»-20, 10, § 5. 
1783, 46, § 4. 
1817, ISHI, § 7. 
R. S. 83, I 36. 
G. S. 117, § 9. 
P. S. 1.56, « 7. 
1888, 290, § 1. 
118 Mass. 508. 
1,53 Mass. 4:W. 
165 Mass. 240. 



Section 10. Xotice of the appeal shall be filed in the registry of 
probate and the appeal shall be entered in the supreme judicial coiu't 
within thu'ty days after the act appealed from. Ujion the entry of 
the appeal, the ajipcllant shall file a statement of his objections to 
the act appealed from. A copy of such notice, and of so much 
of the record of the probate court as relates to the ai)iieal, shall be 
filed in tlie supreme judicial com't upon the entry of the appeal, or 
as soon as may be thereafter. 



St^'**"' Section 11. Notice of the entry of the appeal shall be given to 

i7i9--2b, 10, § 5. all parties adversely interested who shall have ent<'red appearances 

1S17J liw, § 7. in the probate court, and it may be served in the manner provided 

g! s! niS 10. by the rules of court for the service of notices ; but the court mnv 

p. S. 1.56, § 8. ■ 
188)1, 290, § 2. 



order further notice to be given. 



Consolidation 
of appeals by 
apj)ell:int. 
1888, 290, § 4. 



Section 12. An apjicllant from decrees of the probate coiu't 1 

settling difl'erent accounts of an executor, administrator, guardian 2 

or trustee ma}"^ unite his appeals in one notice of appeal and enter 3 

them as one appeal in the supreme judicial court ; and an appeal 4 

taken by another appellant from any of the same decrees, or from .5 

another decree made at the same time or earlier, settling any other (i 

account of such executor, administrator, guardian or trustee, may be 7 

entered in the supreme judicial court as part of the matter com- 8 



< llAP. Itil'.J PROBATE COURTS. 142." 

y priftied in the appeal previoussh' entered. The eoiu't may, upon 

10 appeal, deal with sueh ditlerent aeeounts as if they formed one con- 

11 tinuous aeeount, and may give efieet to any alterations whieh it may 

12 make in any account by altering the balance of the last account 

13 without altering the balance of any previous account. 

1 Section 13. If a person who is aggrieved omits, without default ap^ai?'""' 

2 on his part, to claim or prosecute his appeal and it ai)pears that im'^. «]^ .. 

3 justice requires a revision of the case, the supreme com't of pro- R. s. «</§ :ii. 

4 bate or the superior coui't, in cases in which appeals may be taken p." s.' im, § a. ' 

5 thereto, may, upon his petition and upon terms, allow an appeal to iGi'ay', his?' 
<i be entered and })rosecuted. iSucli petition may be entered in the "Aiuln^^'i 



. clerk's office at any time and the order of notice thereon may be Jla'^iagy "S; 

iS made retiu'nable at a rule day. us Mass. as?. iss Mass. s 

1 Section 14. Such appeal shall not be allowed without due same subject. 

2 notice to the party adversely interested, nor unless the petition i78,s,4(;, §4. 

3 therefor is filed within one year after the passing of the decree or isnl isk), §§ 7, s. 

4 order comi^lained of, except that, if the petitioner was out of the k- s. f^?. §'§ «, 

5 United States at the time of the passing of the decree or order, he f^- s- n'. §§ i^. 
t) may file his petition at any time within tlu'ee months after his re- p. s. isc, § lo. 
7 turn and within two 3-ears after the act complained of. 

1 Section I.t. Appeals and petitions for appeals shall be entered 2"? in §14 

2 on the same docket with cases in equity, and shall have the same Jl-^^i'^'ty- 

. . . i • ' 162 Mass. tiO. 

3 rights as to hearing and determination as such cases. 

1 Section 1G. After an api)eal has been claimed and notice has stayofpro- 
2. been given at the registry of probate, all proceedings in pm'suance of appeal"'*"'"'" 

3 the acl; appealed from shall, except as otherwise expressly provided, Imt! i«' \\ 

4 be stayed until the determination thereof by the su])reme court of G.tnv.Vis. 

5 probate ; but if, upon such appeal, such act is affirmed, it shall there- p™'\|b ^j., 

6 after be of full force and validity. If the appellant in writing \\'aives *|,^^j^],'-.*|- 

7 his appeal before the entry thereof, the probate court may proceed as i^Mass.'sTi. 
<S if no appeal had been taken. it.t Mass. 4s;?. 144 Mass! 415! 

1 Section 17. An appeal from a final or interlocutory order or Appeals in 

2 decree in e(]uity of a probate court which is made in the exercise of isili, lia, § 3. 

3 any jurisdiction in equity conferred upon it shall not suspend or sta}' 

4 proceedings under such order or decree, pending the appeal. But 

5 the probate court, or a justice of the supreme judicial coiu-t in case of 
() such api)eal, may stay all proceedings under such order or decree 

7 and make the necessaiy or jiroper orders to protect the rights of 

8 persons interested, pending the appeal, and any such order of the 
tl probate court for a sta^^ of proceedings, or for protection of any 

10 such rights, may be varied or discharged by a justice of the supreme 

11 judicial court upon motion, and shall not be otherwise subject to an 

12 appeal to that court. 

1 Section 18. A person who is aggrieved by an order, sentence, -to superior 

2 decree or denial of a probate coiul u})on a petition for separate sup- lisT^ssi, §3 

3 port under the provisions of section thirty-three of chapter one ^'**' '-'''' ^ ^■ 

4 hundred and fiftj'-three, or upon tlie i)etition of a married woman 



1426 PROBATE COURTS. [ChAP. I*y2. 

relative to her separate estate, or upon a petition or application rela- 5 

tive to the eare, custody, education and maintenance of minor (> 

I children provided for bv sections thirty-one, thirty-two and thirty- 7 

seven of said chapter, nia}' appeal therefrom to the su})erior couit in 8 

the manner provided in sections ten and eleven of this chapter, 9 

and all proceedings thereon shall, so far as practicable, be the same 10 

as on appeals to the supreme judicial coiu't. 11 

fe^™e*for SECTION 19. A decree or order of a probate coiu't made in jn-o- 1 

tenanc? etc '"' ceedings under the provisions of section thkty-thi'ee of chaj^ter 2 

isso, M,'§|. one hundred and fifty-three shall have effect, notwithstanding an H 

i«)oV26i,'§ 1. ' appeal, until otherwise ordered by a iustice of the superior coiut, 4 

who may, in any county, suspend or modify such decree or order o 

during the pendency of the appeal. 6 



144 Mass. -278. 



mOTau"^ Section 20. A decree of a probate com-t removing an executor, 1 

?:\Sf^i'.'i''iff\, administrator, guardian or trustee, shall have effect, notwithstand- 2 

IShO, l?<b, §s l-^* . 11/' '11 • 111 • • (• .1 

1S81, iau. incr an ai)peal theretrom, until otherwise ordered bv a lustice oi A 

155 Mass. 437.' thc Supreme coiu't of probate, and a decree of a justice of the sui)reme 4 

coiu-t of probate upon appeal affirming such decree, or ordering such 5 

removal when the same has been refused by the probate court, shall 6 

have effect, notwithstanding an appeal therefrom to the full court 7 

until otherwise ordered by the full court. The probate court may, S 

in either such case, appoint a successor to the person removed, to 9 

whom the person removed shall thereupon deliver all the property' 10 

held b}' hull as such executor, administrator, guardian or trustee and 1 1 

who shall proceed in the })erformance of his duties in like manner 12 

as if no appeal had been taken ; but if the decree of removal is IH 

reversed by a final decree of the supreme judicial coiu't, the }iowi'rs 14 

of such successor shall thereupon cease and he shall forthwith deli\'er 1.5 

to his predecessor in the trust, or to such person as the com't may Ki 

order, all property of the estate in his hands. 17 

is8™''i8g''sT'' Section 21. A decree of a probate court made in pm-suance of 1 

p. s. i5ii, § 15. the provisions of the preceding section .shall have effect, notwitii- 2 

standing an appeal therefrom, until otherwise finally determined by o 

the appellate court. 4 

Mofiiflcation of SECTION 22. After an appeal has been claimed from an order or 1 

peakMi tifim. dccrcc referred to in the two preceding sections, and before such 2 

p. s. 150, §"16. appeal has been finally determined, a ju.stice of the supreme coiu't 3 

of probate may suspend or modify such order or decree during the 4 

pendency of such appeal. 5 

luih-nmnlrof Section 23. The supreme judicial court may, upon appeal, 1 

'itT% §44 reverse or affirm, in whole or in part, any decree or order of the 2 

«s'ii7,|ie. probate com-t, and may enter sui-h decree thereon as the probate 3 

iwMa'ss. 377.' court ought to have entered, may remand the case for further pro- 4 

" "**' ■ ceedings, or make any other order therein, as law and justice may 5 

6 



require. 



Faiinreto SECTION 24. If an appellant fails to enter and prosecute his ap- 1 



prosecute 



appeal. peal, the supreme court of probate; may, upon the complaint of any 2 



ClIAI'. 1G2.J PROBATE COURTS. 1427 

3 person interested, affirm the former decree or order, or make such 1719-20, i", § 5. 

4 other order as hiw and justice niay require, or, if the appellant fails isniiyo, §7. 

5 to enter his appeal within the time allowed by law, the probate court g! I'. ii7,\*i7. 

6 from which the appeal was taken may, upon petition of any person p.*s'.\5g, §i8. 

7 interested, and upon such notice to the aj^pellant as the court shall issMass. 8. 

8 order, dismiss tlie appeal and affirm the decree or order appealed 

9 from, and fiu-ther proceed as if no appeal had been taken. 

1 Section 25. The supreme judicial court, upon request of a Jury issues. 

2 party to a probate matter pending therein, may in its discretion 1817; isio, § 7. 

3 frame issues of fact to be ti'ied by a jurj^ and direct them to be tried l, §Vh"' ^ ^'^' 

4 in the supreme judicial com-t or in the superior comi. in the county ii'7*§ is! ^ '"' 

5 in which the matter is pending, or, upon the request of all parties, in Jsgai'^f^?' ^ ^^• 

6 any other county. 123 Mass. 590. 157 Mass. 90. lli7 Maes. 524. 120 Mass. 281. 

1 Section 26. If there is no regular sitting for such trial within Special jury. 

2 three months after such issues have been framed, a jiuy may be p. s. isb, § 20. 

3 summoned as provided in equity cases by section thirty-seven of 

4 chapter one hundred and fifty-nine. 

1 Section 27. The supreme judicial court or the superior court consolidation 

2 may at any time, in its discretion and upon terms, consolidate any eoifr't!"^''^ ^ 

3 separate appeals from the probate court pending therein, respec- i89o| 261,' § 3! 

4 tively, and may thereafter deal with such consolidated appeals to- 

5 gether or otherwise, as justice requires. 

1 Section 28. Probate appeals in the counties of Berkshire, Appeals in 

2 Franklin, Hamjiden and Hampshire may be heard and determined at TOuntak 

3 Springfield at the same times and in the same manner as is provided p.'sVise,^ 2i.'' 

4 in section fortj'-one of chapter one hundred and fifty-nine relative to 

5 the hearing and determination of equity cases in said counties ; and 

6 a probate appeal pending in any of said counties shall be considered 

7 ready for a hearing at any time after the rule day at which it is en- 

8 tered in the suj^reme court of jirobate, and it may be heard before 

9 the justice sitting at Springfield, unless there is an order for a jury. 

GENERAL PROVISIONS. 

1 Section 29. The judges of the probate courts or a majority of S^L'^^Ao ,« 

2 them shall from time to time make rules for regulating the practice g- s! in, § ia. 

3 and for conducting the business in their coiu'ts in all cases not ex- i8y3,'372,'§ 1. ' 

4 pressly provided for by law and shall prescribe forms, and, as soon 

5 as convenient after making or prescribing them, shall submit a copy 

6 of their rules, forms and coiu'se of proceedings to the supreme 

7 judicial coiu't, which may alter and amend them and, from time to 

8 time, make such other rules and forms for regulating the proceedings 

9 in the jn'obate courts as it considers necessary in order to secure 
10 regularity and uniformity. 

1 Section 30. The supreme iudicial court and the probate courts —as to notice. 

„,,,,, . f y- /< 1 • .■ .1 1890, 420, §2. 

2 shall make rules requiring notice of any hearmg, motion or other 

3 proceeding before said courts to be given to parties interested or to 

4 the attorney who has entered his appearance for them. 



Ii28 



PROBATE COURTS. 



[Chap. I(r2. 



Biirinessoutof \Section 31. Judges of the probate courts may transact business 
i87o;275' ^^^ of court at an}- time and place, if all parties who ai'e entitled to 

p. s. 156, § 24. notice assent thereto in writing or voluntaril}' appear ; and in such 

eases, theu* decrees shall be entered as of such sessions of the court 

as the convenience of the parties may requu'e. 



1 
•2 
3 
4 
5 



noti«?etc. SECTION 32. Ordcrs of notice and other official acts which are 1 

g:s.u7^§'23. passed as of course, and which do not require a previous notice to 2 
i>. s. ioti','^-25. an adverse party, may be issued and performed at any time. 3 



Enforcenieut 
of orders in 
equity. 
18a 1, 415, § 2. 



Section 33. Probate courts shall have like power to enforce all 1 

orders, decrees and sentences made b}^ them in the e.xercise of any 2 

authority or jm'isdiction which may be conferred upon them, and to 3 

punish contempts of their authority, as the supreme judicial court 4 

has in like cases. 5 



Revocation of 
warrants and 
oommissitins. 
R. S. KS, § 31. 
G. S. 117, § 24. 
P. S. 156, § 26. 



Section 34. A warrant or commission for the appraisal of an 1 

estate, for examining the claims on insolvent estates, for the par- 2 

tition of land or for the assignment of dower or curtesy or other 3 

interests in land may be revoked by the court for sufficient cause, 4 

and a new commission may be issued or other appropriate proceed- 5 

ings taken. 6 



Decrees to be 
in writinj;, and, 
with wills, t't<*-., 
to be recorded. 
R. S. S.'i, § 7. 
G. S. 117,' § 21. 
P. S. 156, § 27. 



Section 35. Decrees and orders of the probate courts and of 1 

the judges thereof shall be made in writing, and the registers shall 2 

record in books which they shall keep for the purpose all such 3 

decrees and orders, all wills proved in the comt, with the probate 4 

thereof, all letters testamentary and of administration, all warrants, .^ 

retiu'ns, reports, accounts and bonds, and all other acts and proceed- (! 

ings, which are required to be recorded by the rules of the court or 7 

by the order of the judge. 8 



Docket and 
Index. 
1881, 215, § 3. 
P. 8. 156, § 28. 



Section 36. Each register shall keep a docket of all eases and 1 

matters in the probate coiu't of his county, and shall enter therein 2 

every case or matter by its appropriate title and number, brief 3 

memoranda of all proceedings had and papers filed therein, the dates 4 

of such proceedings or filing of such papers, and references to the 5 

places in which the proceedings or papers are recorded, if there is a (5 

record thereof. He shall also keep a separate alphabetical inde.x of 7 

all such cases and matters, which shall refer both to said docket IS 

and to the files of the court. Such docket and index shall at all !• 

reasonable times be open to public inspection. 10 



Oaths. 

R. S. S3, § 30. 

18.52, 341. 

G. 8. 117, § 28. 

1871, 122, 4 1. 

P. S. 15C, § 30. 



Section 37. Oaths which may be required in proceedings in 
jirobate courts may be administered by the judge or register in or 
out of court or by a justice of the jieace, and, when administered 
out of court, a certificate thereof shall lie retiu-ned and filed or 
recorded with the proceedings ; but the judge may requu-e any such 
oath to be taken before him in open court. 



Enforcement 
of delivery of 
proi»ert.v by 
executors, etc., 
wilt) resign. 
1881, 140. 
P. 8. 156, § 31. 



Section 38. If an executor, administrator, guardian or trustee 1 

resigns his trust and neglects or refuses to deliver to his successor 2 

all the property held by him under his trust, the probate coiu't may, 3 

upon the application of such successor or of any person beneficially 4 



Chap. 1()2.] probate courts. 1429 

5 interested, order such deliver^' to be made, and shall have like 

6 powers for enforcing such order as ai"e given to it by the provisions 

7 of section thirty-three. 

1 Section 39. A probate court ma}', upon application of a person Temporary in. 

2 interested in an estate in process of settlement in such court, direct istIs','"!?'!'!. 

3 the temporary investment of any money belonging to such estate in ^' ^' ^^^' ^ ^^" 

4 securities to be approved by the judge ; or it may authorize the 

5 money to be deposited in any bank or institution in this common- 

6 wealth which is empowered to receive such deposits, upon such 

7 interest as such bank or institution may agree to pay. 

1 Section 40. A duly authorized attorney-at^law may enter his Appearances. 

2 appearance as attorney for the jjarty represented by him in any pro- ' > - • s • 

3 ceeding in a probate com't, and all processes and notices which ma^- 

4 be served upon him shall have the same force and effect as if served 

5 upon the party whom he represents. 

1 Section 41. In proceedings in probate courts, the petitioner or interroga. 

2 the respondent may, at any time after the filing of the petition, file isTiut*, §i. 

3 interrogatories in the register's office for the discovery of facts and ^- ^' ^^' ^ ^" 

4 documents material to the support or defence of the ])rocceding. 

5 Such interrogatories shall be answered under oath by the adverse 

6 party in the same manner and subject to the same restrictions and 

7 regulations as are provided by chapter one hundred and seventy- 

8 tlu'ee relative to interrogatories in civil actions. 

1 Section 42. If a party neglects or refuses to expunge, amend Jj'J^^reg""" 

2 or answer according to the provisions of said chapter one hundred p'|\^' Vij 

3 and seventj'-tliree, the jietition shall be dismissed or its prayer 

4 granted, or such other order or decree entered as may be requii-ed. 

1 Section 43. Upon complaint to a probate court by a person in- Persons sue- 

2 terested in the estate of a person deceased against a person who is reaiuig^iroi"" 

3 suspected of having fraudulently received, concealed, embezzled or Ix'finined'^" 

4 conveyed away any property, real or personal, of the deceased, the g^L^'gai'^ja 

5 com't may cite such suspected person, although he is executor or 3!i'£"^' j";,^"^- 

6 administrator, to appear and be examined under oath upon the ivom.'s. 

7 matter of the complaint. If the person so cited refuses to appear nki, 3'2,"§ ii. ' * 

8 and submit to examination, or to answer such interrogatories as ma}' i8'o7,'7^','§'2.' 

9 be lawfully propounded to him, the com't may commit him to jail p.' I; isiV'i. 
lU until he submits to the order of the com't. The interrogatories and ^ p^l^f/'*' 
11 answers shall be in writing, signed by the party examined, and shall ?i''rt*?*- 

_ &' O J I J Vi Met. 316. 

ii be hied in the court. 4 Cusli. 46. 9U Mass. 470. 175 Mass. 4. 

1 Section 44. In cases which arc contested before a jirobate court ^?^^\ ,^ 

2 or before the supreme com't of probate, costs and expenses in the is<i7|i9o, §§'7, 

3 discretion of the court may be awarded to either party, to be paid r.' s. ss, §§ 47, 

4 by the other party, or they ma}' be awarded to either or both parties, g.' s. 117, §§ 25, 
.") to be paid out of the estate which is the subject of the controversy, p.' s. ise, §§ 35, 
<) as justice and equity may require. If costs are awarded to be paid 'f^^^ j^j 

7 by one party to the other, execution may issue. 5 Alien ^"' 

ll-i Mass. 269. 134 Mass. 249. 139 Mass. 59. 147 Mass. Ifl. 



1430 



PROBATE COURTS. 



[Chat. ltJ2. 



Section 45. The notice which may ho required by law in any 



Waiver of 
notice. 

p's M 6S7 proceeding in a probate coiul may be dispen.sed witli if all partic 
151 Maes'. '695.' who are entitled thereto assent in writing to such proceedings or 
waive notice. 



ot'oue'inV"'"' Section 4G. In appraisals of property, the judge or register 1 
p™ser. may appoint only one a})j)raiser if in his opinion the natui'e of the 2 

1897! 14-'. property makes it advisable so to do. 3 



Selection of 
newspapers 
for notices, 
mil, LSI*. 
G. S. 117, § 29. 
1'. S. 150, I 38. 



Section 47. Parties to probate proceedings may select the 1 

newspapers in which the notices which nia}' be oi'dered upon their 2 

petitions shall be published ; but the court may order the notice to 3 

be published in one other newspaper. 4 



Receipts, etc., 
to executors, 
etc., may be 
recordea. 
1864, 93. 
P. S. 166, § 39. 



Section 48. A paper or instnunent, discharging a claim or pm-- 
porting to acknowledge the performance of a duty or the paj'uient 
of raonej' for which an executor, administrator, guardian or trustee 
is chargeable or accountable in a i)robate court, shall, upon the 
request of a party interested, be recorded in the registry of said 
court ; and the registers of probate in their respective counties shall 
enter, record, index and certify any original paper or instrument 
offered as aforesaid, and shall receive for such sendees the like com- 
pensation as registers of deeds would be entitled to demand for like 
services. Such compensation shall be paid by the person who leaves 
such paper or instnunent for recoi'd, at the time of leaving it. 



1 
2 
3 
4 



10 

11 



Copy of certain 
papers witliout 
chnrge. 
ma, 141, § 3. 
R. S. 83, § .53. 
G. S. 117, § 30. 

V. s. im, § 40. 



Section 49. The register of probate shall make without charge 
one certified copy of all wills proved, of inventories retiu'ned, of 
accounts settled, of partitions of land, of assignments of dower or 
curtesy, and of all orders and decrees of the com't, and shall deliver 
such copies upon demand to the executor, administrator, guardian, 
widow, heir or other person who is principally interested. 



rooms ™*r'"^' Section 51. County commissioners .shall provide and maintain 

record, etc. to .suitable rooius for the use of the probate courts, amijle fireproof 

1)0 i)rovided. i-ii ij .i-i * t- 

1823,1414 4. rooms and suitable alcoves, cases and boxes tor the sate keeinnii: ot 

g'^'s! ii7, §' .31. all records, files, papers and documents which belong to the several 

1876; 234; §1. registries of probate, and shall also provide all books which may be 

p. s. 156, § 42. ,^ecj>gsar3' for keeping the records, and all printed blanks and 
stationery which are used in proliate i)roceedings. 



1 

2 
3 

4 
5 
(> 



mav'betiJken SECTION 50. The jjrobatc coiu't in which a will has been duly 1 

fj?!".'"^*'''''*''^' proved, allowed and recoi'ded ma}', aft<?r the expiration of the thixty 2 

p.'s. 156', §41. days within which an appeal may be taken from the decree admitting 3 

such will to probate, uitoii the petition of the executor or of a legatee 4 

named in such will, or of any person interested in the estat<> of the 5 

testator, and after notice and a hearing, permit the original will, if •> 

it appears to be necessary for the purpose, to be taken from the files 7 

of such com't for the piu'pose of establishing the right or title of such 8 

executor, legatee or person to the estate of the testator in aii_\' 9 

foreign country. 10 



1 

2 
3 
4 
5 
(5 
7 



ilrc'yr'sT'' Section 52. If in the ()i)inion of a ju.stice of the supreme judicial I 
p. s. 156, § 43. court the fii'cproof rooms provided under the preceding section are 2 



CH.VP. 1()2.] PROBATE COtTRTS. 1431 

3 insufficient, lie shall, upon application of the judge or register of 

4 in-obate of the count}', certity the need of additional accommodations 

5 to the county commissioners of such county, and they shall forth- 

6 with provide such additional fireproof rooms and other accommoda- 

7 tions as may be necessary. 

1 Section 53. If, in the iudgnient of the county commissioners, PreservaHon 

^ , T • • ii i. iU i- il Of dorkets, etc. 

2 public convenience so requu'es, they may, at the expense oi the isu, 225. 

3 county, cause the files and records of the probate coiu-ts, except in ils'?/'' "^^ ^' 

4 tlic county of Suifolk, to be rearranged, indexed and docketed, the 

5 dockets which are worn or defaced to be renewed and the indexes 
li to be consolidated, under the dii-ection and supervision of the regis- 
7 ters of said courts. 

1 Section 54. The expense of recording probate proceedings in Expense of 

2 the county of Suftblk, not exceeding forty-five hundred dollars in bat«'^pn!?eed"' 

3 any one year, shall be paid by said county, upon the official certifi- isTs/^ks'l"""'' 

4 cate of the register, countersigned by a judge of the probate com-t jjjsi*; iis\' ^ **' 

5 for said county, in the amounts and to the persons who are named i^^|> -^^ 

6 in such certificate. 

sessions of the courts. 

1 Section 55. The judge of a probate court may keep order in Contempt ot 

2 court, and may punish any contempt of his authority. l7s^, k. § 1. 

ISIT, 1!I0, § 1. R. S. &3, § 10. G. S. 117, § 33. P. S. 156, § 45. 

1 Section 56. The probate com-t in each count}' shall always be courts always 

2 open, except on the Lord's da}' and legal holidays, for all hearings, i^is^ks. 

3 for matters in ecjuity, for proceedings in contempt and for making ^""''"i- 

4 orders and decrees in all matters before them ; but the times of all 

5 hearings shall be discretionary A^ath the judges of said courts. 

1 Section 57. The judge of a probate court may adjourn the court ^^ij''"^"""""'- 

2 as occasion recjuires ; and if he is absent at the time appointed for Jf^-iwi ^^f-^.^- 

3 holdins: a court, the register shall adioiu-n it as he may consider is-w.ii." 

f' , , . ^1 1 n^i -J. , G. S. 117, § 34. 

4 necessary or as the judge may order, ihe register may also p. s. ise, §46. 

5 adjoiu-n the com-t when there is a vacancy in the office of judge. 

1 Section 58. If the regular time for holding a probate com-t No courts on 

2 occurs on a legal holiday or on the day of an annual state election, eiectiuii days. 

3 -the com-t shall be held on the next secular day thereafter ; on which ^*'**' "^' 

4 day all notices, citations, orders and other papers made retm-nable 

5 at said regular time shall be returnable. The proceedings thereon 
(5 shall be of the same validity as if the notices, citations, orders and 

7 other papers had been made so retm-nable. 

1 Section 59. No court shall be held by adjournment or other- court not to be 

2 wise unless the register, assistant register or a temporary register is TegisteT. Sc. 

„ , O ' -- 1 ./ o R. S. 83, §20. 

6 present. p. s. i.56, § 47. g. s. 117, § 35. 



1 Section 60. Probate courts shall be held in each year at the -when and 

2 times and within the cities and towns hereinafter mentioned, in such const., c.iii., 

3 places therein as the judges shall from time to time appoint. Suffi- mV >(],' 10, § s. 

4 cient notice of such appointments shall be given by the judges, as k.'s". 83,'|§ 2, 

55-57. 



1432 



PROBATE COURTS. 



[Chap. K!: 



G. S 


.117 


, § 36. 


P. S, 


. 156, 


,§48. 


Riirnytable. 


Isi7. 


113. 




IwiT, 


307. 




isf;,s, 


1116. 




iHi'.i, 


.>"" 




W77, 


54.' 




LS1J3, 


343. 




Rcrksliire. 


1S4'.), 


41. 




is:i7, 


16. 




l»w. 


32.i, 


§2; 


:W9. 






186a, 


60,! 


51- 


1872, 


402. 





Bristol. 

1842, 88. 
18.57, LW, § 1. 
186-2, 5, § 1. 
1878, 121. 
1898, 199. 



Dukes County. 
1856, 265. 
1859, 56. 
1862, 114. 



Essex. 
1848, 234. 
1853, 407. 
1874, 273. 



Frauklin. 
18.50, 244. 
1867, 249. 
1887, 46. 
1898, 218. 
1901, 259. 



nnii 

1836, 


IfKlCU. 

256. 


1843, 


29. 


1,S=)(I, 


287. 


18lin, 


Tffl. 


1874, 


157. 


1884, 


394. 


Hiinipslure, 


1836, 


256. 


IM-.i. 


40. 


1S6C., 


60. 


1,S74, 


146. 


1886, 


145. 



often as changes take place, b}" advertisement in a newspaper or by 5 

posting the notice in public places : 6 

For the county of Barii.stablc, at Barnstable, on the second Tues- 7 

day of January, February, March, ]\Iay, June, July, August, Sej)- « 

tember, November and December, and on the first Tuesday of April St 

and October. lt> 

For the county of Berkshu-e, at Pittsfield, on the first Tuesday of 11 

January, February, March, April, May, June, .Septembcl', October 12 

and December, on the third Tuesday of July, and on the "Wednesday i;5 

next after the first Monday of November ; at Lee, on the Wednesday 14 

next after the first Tuesday of Januar}', April and October, and on lr> 

the Wednesday next after the thh-d Tuesday of July ; at Adams, on K! 

the Thiu'sday next after the first Tuesday of January and October, 17 

on the Wednesday next after the fir.st Tuesday of March, and on the 18 

Thm-sday next after the thu'd Tuesday of July ; and at Great Bar- 19 

rington, on the Wednesday next after the first Tuesday of Februarjs 20 

May, September and December. 21 

For the county of Bristol, at Fall River, on the fii-st Friday of 22 

January, April, Jul}- and October, on the third Friday of Februaiy, 23 

May and November, and on the second Friday of September ; at 24 

New Bedford, on the first Friday of February, May, August and 25 

November, and on the third Friday of INIarch, June and Septemlier ; 26 

and at Taunton, on the first Friday of March, June, September and 27 

December, and on the third Friday of January, April, October and 28 

December. 29 

For the county of Dukes County, at Edgartown, on the third Mon- 30 

day of January and July, and on the first Monday of March and 31 

December ; at Vineyard Haven, on the third Monday of Ajiril, and 32 

on the first Monday of September ; and at West Tisbury, on the first 33 

Monday of June, and on the third IMondav of October. 34 

For the county of Essex, at Salem, on the first Monday of each 35 

month and on the third Monday of each month exccjit August ; at 3G 

Lawrence, on the second INIondaj^ of January, March, May, June, 37 

July, September and November; at Haverhill, on the second Mon- 38 

day of April and October ; at Newlniryport, on the foiu-th ]\Ionday 39 

of Januaiy, March, May, June, Jul}', Sei^tcmber and November; 40 

and at Gloucester, on the fourth IVIonday of April and October. 41 

For the county of Franklin, at Greenfield, on the first Tuesday 42 

of each month except November, and on the thu-d Tuesday of 43 

February, March and December ; at Orange, on the third Tuesday 44 

of Januar}', April, Jul}- and October; at Shelburne Falls, on the 45 

third Tuesday of May and November ; at Northfield, on the third 46 

Tuesday of September ; and at Conway, on the third Tuesday of 47 

.Tune. 48 

For the county of Hampden, at Springfield, on the first AVednes- 49 

day of each month except August; at Holyoke, on the third 50 

Wednesday of January, March, June and October; at Palmer, on 51 

the second Wednesday of February, IMay and September, and the 52 

fourth Wednesday of ' November ; and at We.stficld, on the third 53 

AVednesday of February, May, September and December. 54 

For the county of Hampshh-e, at Northampton, on the fii'st Tues- 55 

da}' of each month ; at Amherst, on the second Tuesday of January, 56 

March, June, August and November ; at Belchertown, on tlie .second 57 

Tuesday of May" and October ; at Williamsburg, on the third 58 



Chap. 1(53.] courts of insolvency. 1433 

59 Tuesday of May and October ; and at Ware, on the second Tuesday 

60 of February, September and December and on the thu-d Tuesday 

61 of June. 

62 For the county of Middlesex, at Cambridge, on the ftrst, second iJj^*^.2fof^" 

63 and fourth Tuesday of each month, except August, and at Lowell, J^gg'^g 

64 on the thu'd Tuesday of each month, except August. 

1S67, 220, § 2. 1808, 213, 1S8'J, lS-2. 

65 For the county of Xantucket, at Xantucket, on the Thursday next j"^J*5|'"'*- 

66 after the second Tuesday of each month. isoo, i«i. isos, ue. i843,'4. 

67 For the county of Norfolk, at Dedham, on the first and thu-d f^^l^f^] 

68 Wednesday, at Quincy, on the second Wednesdays and at Brook- J^^-'^J*- 
6!) line, on the fourtli Wednesday of each month exceiit August. The iwwisoi. 

70 county commissioners of the county of Norfolk may provide, fur- 

71 nish and maintain suitable rooms and accommodations in the city 

72 of Boston for the use of the probate court for the county of Nor- 

73 folk, for the hearing and trial of such contested cases in said court 

74 as the parties thereto or their counsel may desu-e to have heard and 

75 tried in the city of Boston. 

76 For the county of Plymouth, at Plymouth, on the second ]\lon- ri.ymoiitii. 

77 day of each month except August, and at Brockton, on the fourth ^s^l;•203; 

78 Monday of each month except July. isso, 237, -269. is»/, es. 

79 For the county of Sufiblk, at Boston, on each Thm'sday, except f^^"^^- 

80 the fii-st, second, fourth and fifth Thursdaj's of August. ists.'s-s. 

1S7S, 137. 1881, 115. 189-2, 202. 

81 For the county of Worcester, at Worcester, on the fii-st, second, J^^2'^o^^^- 

82 thu'd and fifth Tuesday of each month except August, and at Fitch- J^,- jJJ- 

83 burg on the fom-th Tuesday of each month except August. i846| i-2s. 

1864, 318. 1869, 253. 1878, 128. 1893, 348. 



Sections 


1-19. 


Sections 


20-30. 


Sections 


31-48. 


Sections 


49-81. 


Sections 


82-87. 


Sections 


88-105. 



CHAPTEK 163. 

OF COURTS OF INSOLVENCY. 

-General Provisions. 

- Petition by Debtor. First Meeting. 

- Debts and Proof of Claims. 
-Assignment anil Assignee. 

- Examination of Debtor. 
-Second and Third Meetings. Oath and Discharge. 

Sections 106-109. — Matters Avoiding Discharge. 

Sections 110-112. — Preferences. 

Sections 113-11.5. — Allowance and Sm-plus. 

Sections llG-128. — Aeconnts and Dividends. 

Sections 129-132. — Petition by Creditors. 

Sections 133-135. — Petition by Creditors of Insane Persons. 

Section 136. — Concealment of Property. 

Sections 137-142. — Partnerships. 

Sections 143-149. — Corporations. 

Sections 150-169. — Composition. 

Sections 170-175. — Fees and Costs. 

Section 170. — -Vacating Proceedings. 

Section 177. — Returns . 



1434 



COUUTS OF INSOLVENCY. 



[Chap. HS'6. 



Courts of 
record, etc. 
1856, -284, 5 1. 
185S, 93. 
G. S. 118, §1. 
P. S. 157, § 1. 



GENERAL PROVISIONS. 

Section 1. The courts of insolvencj' shall be courts of record, 1 

and the judge and register of probate and insolvenc}- for each county 2 

shall be the judge and register of the court of insolvency for such 3 

county. 4 



Superior 
Jurisdiction. 
1894, 1B4, § 3. 



Section 2. The courts of insolvencj^ shall be courts of superior 1 

and general jurisdiction with reference to all cases and matters in 2 

which they have jurisdiction, and it shall not be necessary for any 3 

order, decree, sentence, warrant, writ or process whicli ma}- be 4 

made, issued or pronounced by them, to set out an}' adjudication or 5 

circumstances with greater particularity than would be required in 6 

other courts of superior and general jurisdiction, and the like pre- 7 

sumption shall be made in favor of proceedings of the probate court 8 

as would be made in favor of proceedings of other courts of superior It 

and general jurisdiction. lU 



Jiirisdlctlon. RpT'Trnxr ^ 

185H, 284, § 2. , ntt.llUW O. ^„ .^ „... .._.„., v...^._; „,.^i. .,„ , ^ „^,g 

g"s u's^s'a ^" theu- respective counties of cases of insolvency under the pro- 

p. s. 157,' § i. visions of this chapter. 



Courts of insolvency shall have original jurisdiction 1 

2 
3 



Petitions liled 
in more than 
one countv. 
1893, 403, § 5. 



Section 4. If a petition in insolvency is within the jurisdiction 
of more than one court of insolvency, the court in which it is fii'st 
filed shall have exclusive jurisdiction thereof if a warrant is issued, 
and proceedings upon a petition filed in another county shall be 
stayed until the court in which the petition was fii'st filed determines 
whether a warrant shall be issued. 



1 
2 
3 

4 
o 
(5 



Equity juris- 
diction. 
18i(4, 164, §1. 
167 Mass. lu. 



Section !). Courts of insolvency shall have jurisdiction in 
equity, concurrent with the supreme judicial court and the superior 
court, of all cases and matters pending in said courts of insolvency, 
and such jiu'isdiction may be exercised upon petition, according to 
the usual course of proceedings in courts of insolvency. 



1 
2 
3 
4 
5 



Enforcement 
of orders In 
e(iuitv. 
1894, m, § -2. 



Section 6. Courts of insolvency shall have like power to en- 1 

force all orders, decrees and sentences made by them in the exercise 2 

of any authority or jurisdiction conferred upon them and to punish 3 

contempts of their authority as the supreme judicial court has in 4 

like cases. 5 



Courts, where 

lield. 

Is:i8, 163, § IB. 

1S44, 1T!<, § 16. 

1S16, 168, § -2. 

1S3B, i84, §§ 3, 

13. 

1858, 93, § 11. 

G.S. 118,i§3, 8. 

P. S. 157, §§3,8. 

1895, 215. 

1901, 61. 

7 Met. 431. 
4 Cnsli. 684. 

8 Gray, 193. 



Section 7. Courts of insolvency shall be held at the shire towns 
of the county at times appointed by the court, and may be held at 
such other places as will best promote the com enience of tiie public. 
They shall always be open, except on the Lord's day and legal holi- 
days, for all hearings, for matters in equity, for iirocecdings in con- 
tempt and for making orders and decrees in all matters before them ; 
but the tunes of all hearings shall be discretionary with the judges 
of said courts. The judge or, in his absence or in case of a vacancy 
in that ofBce, the register may adjourn any court or meeting from 
time to time as occasion recjuires, and all acts lawfully done at an 
adjourned meeting shall have like effect as if done 



meeting. 



at the original 



1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 



<.'llAr. Ilia. J COURTS OF INSOLVENCr. 1435 




4 done as matters of course and do not require notice. rl'is-'ll" 



r. S. 157, 1 4. 

1 Section 9. The judge may keep order in his court and punish adn'Seiing 

2 any contempt of his authority, admiui.ster oaths, issue commissions, "* o"!''^ f^''- 

3 compel the attendance oi witnesses and the giving oi evidence in ihsb, 2m, §§ :, 9. 

4 lilce manner as the superior court ; and may appoint such officers to p.' s.' 157,' § 5.' 

5 attend upon the court as are necessary to keep order therein and to 

6 transact its business. 

1 Section 10. Proceedings in courts of insolvency shall be matters proceedings 

2 of record, and the assignment and certificate of discharge shall be J-efordf "ivi- 

3 recorded in full. Other proceedings need not be so recorded, but i838™i63, §u. 

4 shall be carefully numbered, filed and kept in the oliice of the regis- q^'^]% jg 

5 ter. Copies of all parts of the records and of records of prior p-s. i.'>7'§6. 

T .. 1 1 .,.,. T, -r-lii t; Met. 518. 

b proceedings in insolvency deposited in his ottce, certined by the 5Cu8h.6i5. 

7 register, shall be prima facie evidence of the facts therein stated. 3Grajv2.T5'. 

4 Allen, 77. 99 Mass. 64. 130 Mass. 368. 

1 Section 11. Each register shall keep a docket with an alpha- Docket; duties 

2 betical index of all cases in the court of his county, in which he i^^lal^'^ra- 

3 shall enter every case by its appropriate title and number with brief i858|ll*'i!if§5. 

4 memoranda of all proceedings and papers filed therein. The docket, f■^f ^^^' §5". 

5 and all books, records, documents and papers in his office relative to jj"".. ^s?. ||- 
(5 insolvency shall at all reasonable times be open to the inspection of 

7 the public. He shall make computations of dividends and orders 

8 of distribution, and shall furnish to the assignee a certified cop}^ of 
U the schedules of creditors and assets filed in each case, and of the 

10 orders of distribution, and with each copy of an order of distribu- 

11 tion a dividend sheet, without charge therefor. He may administer 

12 all oaths required in proceedings before the com-t, except the oath 

13 named in section eightj'-eight. 

1 Section 12. Assignments, warrants, orders of notice and other warrants, etc., 

2 processes issued by the court shall be under the seal thereof, and ."biel'e'tc."™" 

3 shall be executed and obeyed throughout the commonwealth; and J^ll^Jg: 

4 any officer or other person to whom they are legally directed may Jj; |; Hf | J^; 

5 serve them in any county. A\'ari'ants shall be returnable not less 

6 than ten nor more than sixty days from the date of theh' issue. 

1 Section 13. Parties to insolvency proceedings may select the selection of 

2 newspapers in which notices which may be ordered upon then- peti- "^ notll-ls." 

3 tions shall be published, but the court may order the notice to be gI'.s.Vi?', §12. 

4 i>ublished in one other newspaper. p. s. 157, §ii. 

1 Section 14. Each county shall provide suitable court rooms counties to 

2 and, in the city or town in which the registry of probate and insol- room'e.Vtc."'^ 

3 vency is situated, a suitable fii-eproof room in which the records, Gfs.nt'.l^is. 

4 books, documents and papers relative to the business of the court ^- **• i"- ^ ^'^■ 

5 and the records in cases in insolvency shall be kept. 



143G 



COURTS OF IXSOLVEXCY. 



[Chap. 1()3. 



fn5(;!'S4?§23. Section 15. Expcii.sos attending the sessions of the courts and 1 

rsis-'lil' *^® transaction of business therein, for blank books for records and 2 

for blank forms and st*itioncry neccssar}- for the business of the 3 

courts shall be paid b}' the commonwealth. 4 



isLs^i'tis'us- Section 1(3. The judges or a majority of them shall, as pro- 1 

io51' :1':i' I }!;■ vided in section tMenty-nine of chai)ter one hundred and sixtv-two, 2 

180D, iSi, § 1(1. ^ . . Ill" " 

ii'om time to time make rules and prescribe lorms tor their courts. 3 



G. S. 118, §§ 1.1, is. 



r. S. U)7, §§ 11, 15. 



1893, S72, § 1. 



Jurisdiction 
of eiijirenie 
iutiicuil court. 
1«W, 163, § 18. 
1851, 3-27, § 16. 
G. S. 118, § 16. 
P. S. 157, § 16. 
1894, 1B4, § 4. 
4 Met. .504. 
■2 (Jush. 294. 
4 Cuell. 270. 
7 Cush. 183. 



Section 17. The supreme judicial com-t shall have general 
superintendence and jurisdiction of cases arising under the provi- 
sions of tills chapter : and, except as otherwise provided, may, upon 
the bill, petition or other proper process of a party aggrieved, hear 
and determine the case as a court of equitj'. 



8 Grar, 316. 
9Gr.iv, 356. 
16 Gray, 137. 
5 Allen, 530. 



6 Allen, 118, .160. 

7 Allen, lli. 
107 Mass. 79. 
132 Mass. 4«6. 



139 Mass. 84. 
146 Mass. 444. 
150 Mass. .674. 
157 Mass. 252. 



166 Slass. 582. 
166 Mass. 379. 
168 Mass. 100, 103. 
171 Mass. 239. 



1 

2 
3 
4 
5 



Rules as to 
notice. 
1890, 420, § 2. 



Section 18. The supreme judicial court and the courts of in- 1 

solvency shall make rules retjuu'ing notice to be given to the parties 2 

interested or their attorney who has entered his appearance of any 3 

motion, hearing or other proceeding before said courts. 4 



Appearance 

by attorney. 
1838, 103, § 15. 
G. S. UH, § 33. 
P. S. 157, § 34. 
1890, 420, § 1. 



Section 19. A duly authorized attorney at law may enter his 1 

appearance as attorney for the party represented by him in any 2 

proceeding in a court of insolvency and may act for him at all 3 

meetings. Processes and notices served upon such attorney sliall 4 

have like eflect as if served upon the party whom lie represents. 5 



Petition. 
1838, 163, § 1. 
1855, 363. 
18.58, 93, § 10. 
G. S. 118, § 17. 
1881, 233. 
P. S. 1.57, 5 16. 
1893, 405, § 1. 
1 Cush. 631. 
4 Allen, 170. 
6 Allen, 118. 
138 Mass. 372. 



PETITION BY DEBTOR. FIRST MEETING. 

Section 20. An inhabitant of tliis commonwealth owing debts, 1 

contracted while such inhabitant, may file a petition in the court 2 

of insolvency for the count}', if an}^ in which he has last resided or 3 

had a usual place of business for tlii'ee consecutive months, other- 4 

wise in the court for the countv in which he resides or has a usual 5 

place of business, stating his inability to pay his debts and his (> 

willingne.ss to assign his property for the benefit of his creditors, 7 

and pra3'ing that such proceedings may be had as are provided in 8 

this chapter. 9 



Warrant to 

niesHcnt^er. 
18.is, va, Ji§ 1, 2 

1-m, i-.'4. ^ 1. 

1844, 178, § 10. 
1846, 168, § 4. 
1848, 3114, § 6. 
lam, 319. 
18.54, 329, § 4. 
G. S. 118, § 18. 
1879, 107. 
P. S. 157, § 17. 
7 Cush. 136. 
166 Mass. 317. 



Section 21. If it appears to the satisfaction of the judge that the 1 

debts due from the petitioner amount to two hundred dollars or 2 

more, he shall forthwith sign and issue a warrant to the sheriff of 3 

the county or one of his deputies ordering him forthwith as mes- 4 

senger to take possession of all the property of the debtor not ex- 5 

empt from attachment, and of all his deeds, books of account and 6 

papers, and keep the same safely until the appointment of an assignee ; 7 

to publish notice in such newspaper or newspapers as the warrant 8 

specifies, send MTitten notice by mail or otherwise to all creditors i) 

upon the schedule furnished him by the debtor and to give such per- 10 

sonal or other notice to any |iersons concerned as the waiTant orders. 1 1 

Such notice shall state that a warrant has issued against the prop- 12 



Chap. 163.] courts of insolvency. 1437 

13 ertj' of the debtor ; that the payment of aii}^ debts and the delivery 

14 of an}' propcrt}' belonging to such debtor, to him or for liis use, aud 

15 the transfer of au}^ property b}' him are forbidden by law ; that a 

16 meeting of the creditors of the debtor to prove their debts and choose 

17 one or moi's assiojnees of his propert}' will be held at a court of in- 

18 solvency to be Iield at a time and place designated in the warrant, not 

19 less than ten nor more tlian sixty da^'S after the date of its issue. 

1 Section 22. The messenger shall forthwith demand and receive Messenger to 

2 from the debtor and other persons all the property in his or tlieir Jiroperty. 

3 possession, wliich is herein ordered to be assigned, with all the }|*s.^n^,|^i'9. 

4 deeds, books of account and papers of the debtor relative thereto, pjief^l^**' 

■>Cush. 48. 8 Allen, 134. 148 Mass. 69. 

1 Section 23. Upon demand by tlie messenger under the pro- Delivery of 

2 visions of the preceding section, the debtor shall forthwitli deliver schedule by"* 

3 to liim such of the property and other things demanded as is in his f^'^'^ji^ gg 

4 possession or power, and shall disclose the situation of such portion J?'*|^i",V«2o 

5 thereof as is in the possession of any other person. The debtor isia, na.'s i- 

6 shall also, except as provided in the following section, within thi-ee 8 Met. Vs. 

7 davs after the date of the warrant make on oath and deliver to the ^^' "^^^ 

8 messenger a schedule, containing a full and true account of his 

9 creditors, with the residence of each, if known to the debtor, and 

10 the amount due to each, and the nature of each debt, whether 

11 founded on written security, account or otherwise, and also the 

12 true cause and consideration thereof, and a statement of any exist- 

13 ing mortgage, pledge or other collateral security given for the pay- 

14 ment of the same. 

1 Section 24. If by accident or mistake .such schedule is not Late schedule. 

1886 '^^l) 

2 delivered to the messenger within said three days it shall be so de- 

3 livered within such time thereafter as will enable the messenger to 

4 comply with the terms of the warrant, and such delay shall not 

5 aflect the granting of a certificate of discharge unless caused by the 

6 default of the debtor. 

1 Section 25. If the court finds that the property of the debtor saie of perish- 

2 or any part thereof is perishable or likely to deteriorate in value i84'|,3()4,''§'iE' 

3 before an assignee can be appointed, it may order the same to be p.' 1; 157' | |o; 

4 sold in such manner as it orders under the direction of the messen- 

5 ger who shall hold the funds received in place of the property sold. 

1 Section 26. After a warrant has issued against the estate of an Messenger to 

2 insolvent debtor and before the appointment of an assignee, the artTon'^bj- order 

3 judge may at an}' tune order the messenger to commence an action J'^^v-'a,' § 2. 

4 for the recoverv of a debt due to the debtor or do any other act i'- ®- 1^"- § '^^■ 

5 which might be done by an assignee. The messenger shall there- 

6 upon in his own name commence and prosecute such action or do 

7 any other act so ordered as if he were assignee. If, upon the ap- 

8 pointment of the a.ssignee, an action or proceeding commenced by 

9 the messenger has not been determined, the a.ssignee may in his own 

10 name or in the name of the me.ssenger with his consent prosecute it 

11 or otherwise proceed. 



1438 



COLTRTS OF INSOLVENCY. 



[Chap. 103. 



Delivery of 
Bcht'diirt* of 
eredilore, etc., 
by debtor to 
register. 
1838, 1(3, 5 (;. 
1841, 124, « •-'. 
1854, 32;i, 5 3. 
G. S. 118, § 22. 
1862, 179, § 1. 
P. S. 157, § 22. 



"Section 27. The debtor shall, except as provided in the follow- 1 

iiig section, within five da^s after the date of the warrant make on 2 

oath and deliver to the rcgi.ster a schedule of his creditors as 3 

l)rovided in section twentv-tlu-eo, and a schedule of all his property, 4 

with a description thereof, stating where it is situated, and all 5 

encumbrances thereon, -with the date of each and the consideration G 

thereof. 7 



Late 
schedules. 

1863, 71. 

P. S. 1S7, § 23. 



Section 28. If by accident or mistake such schedules ai'c not 1 

delivered to the register -Hithin said five da3's they shall be so 2 

delivered before or at the first meeting of the ci-editors and .such 3 

delay shall not affect the granting of a certificate of discharge unless 4 

caused b}' the default of the debtor. 5 



ViiBt meeting. 
1838, 163, « 6. 
1841, 124, § 2. 
1848, 3114, ? 8. 
18,i4, 3211, § 3. 
G. S. 118, §§ 22, 
23. 
P. S. 137, § 24. 



Section 2i). At the meeting held in pursuance of the notice, 
the messenger shall make return of the warrant and his doings 
thereon, and deliver to the register the schedule of creditors re- 
ceived from the debtor. If the court finds that the notice to the 
creditors required by the provisions of section twenty-one has not 
been given, it shall forthwith adjourn the meeting and order such 
notice. 



1 
2 

o 
.» 

4 
5 
6 



debtor."' Section 30. If the debtor dies after the warrant has been 

if^'s ni' \% issiisd, the proceedings .shall be concluded in lilie manner and Mith 
p.' s.' 157," § 2,i.' like effect as if he had lived. 



1 
2 

3 



Claims 
provable. 
I8:i8, 1(>3, §§ 2, 
3, 7, 12, 13. 
G. S. 118, §2.'). 
P. S. I.i7, § 26. 
7 Met. 348, 424. 

6 Cush. 537. 

7 Cush. 592. 
6 Gray, 674. 
10 Griiy, 600. 
15 Gray, 274. 

3 Allen, 22, 64. 
5 Allen, 163. 
13 Allen, 2M. 
134 Mass. 6'J. 
138 Mass. 111. 
144 Mass. 109. 
1.52 Mass. 5i)6. 
150 Mass. 515. 
1.57 JIass. 33. 
166 Mass. 37U. 
174 Mass. 475. 
177 Mass. 224. 



DEBTS AND PROOF OF CLAIM.*;. 

Section 31. Debts due and payable from the debtor at the time 1 

of the fii'st publication of the notice of issuing the warrant may be 2 

proved and allowed again.st his estate at any meeting ; and debts at 3 

that time absolutch' due, although not payable, ma.y be proved and 4 

allowed as if payable, with a discount or reliate of interest if no in- 5 

terest is payable b}' the contract. Money due on a bottomry or 6 

respondentia bond or policy of insurance may be proved and al- 7 

lowed, if the contingency or loss happens before the making of the 8 

first dividend, in like manner as if the same had happened before 9 

the first publication of the notice. If the debtor is liable for a debt 10 

in consequence of having made or indorsed a bill of exchange or 11 

promissory note before said fii'st publication, or in consequence of 12 

the payment by a party to a bill or note of a part of the money 13 

secured thercb}^ or of the payment of an amount by a siu'cty of the 14 

debtor in a contract, if the payment is made before the making of 15 

the first dividend, such delit may be proved and allowed as if it had 1(5 

been due and payable by the debtor before the first publication. All 17 

demands against the debtor for or on account of goods or chattels 18 

Avrongfully otitained, taken or withheld In^ him, may be proved and 19 

allowed as debts, to the amount of the value thereof. 20 



Equitable 
claims. 
1884, 293. 
8 Allen, 581. 
141 Mass. 283. 



Section 32. An equitable liability of an insolvent debtor may 1 

be proved and allowed against his estate in like manner and subject 2 

to like conditions as a legal claun. 3 

143 Muss. 326. 1.58 Mass. 388. 177 Mass. 224. 



Chap. I(i3.] courts of insolvency. 1439 

1 Section 33. If any of the property of a debtor consists of a Leases, etc. 

2 lease or agreement in writing, wlicx'eby be is liable for the rent p.'s'.1.57',|2c. 

3 therein resci'ved or for the use and occupation of premises as therein i^MagelTO" 

4 stipulated, the assignee at an}' time may, and upon request in writ- 

5 ing hy the debtor, or by the lessor or those having his estate in the 
(5 premises shall, ■vvithin twenty days after such request, by a writing 

7 filed in the case, elect to accept and hold under said lease or agree- 

8 ment or to disclaim it. If he elects to disclaim, such lease or 

9 agreement in writing shall thereupon be considered to have been 

10 smTcndercd as of the day on which .^aid disclaimer was so filed. If 

11 the debtor obtains his discharge in insolvency, he shall be discharged 

12 from all liability under or b}' reason of said lease or agi-eement, 

13 whether the assignee does or does not disclaim the same as afore- 

14 said ; and the lessor or those having his estate in the premises may 

15 prove such damages, if any, as are caused by such surrender, as a 
1(5 debt against the estate of the debtor ; but the provisions of this 

17 section shall not apply to leases or agreements in writing as afore- 

18 said in force on the twenty-second day of April in the j'car eighteen 

19 hundred and seventy-nine. 

1 Section 34. Mutual credit or mutual debts between the debtor set-os. 

2 and a creditor shall be set ofl' one against the other and the balance g!*|'. m,^§^i6. 

3 allowed or paid. SCusli.m. 4 Gray, 284. 7 Gray, 4-25. e'jfe't'Sv^ "'' 

3 Allen, Ul. 4Allen, 36S. 131 Mass. 14. 138 Mass. 330. 10 Met. 194. 

1 Section 35. The assignee, by an assignment in writing of a Proof of claim 

2 non-negotiable legal chose in action, may prove a claim in insol- Siereof?"^^ 

3 vency, in his own name, sulijcct to all defences and rights of counter- ^*^"' *''^' 

4 claim, recoupment or set-off to which the debtor would have been 

5 entitled if the claim had been proved in the name of the assignor. 

1 Section 36. A creditor who lias a inortg-age or pledge of prop- Mortgage, 

2 erty of the debtor, or a lien thereon, to secure the payment of a 1838,^1(8,^3!°" 

3 debt claimed by him, may require such property to be sold, and pIJ.'v'I^" 

4 the proceeds applied toward the ptxyment of his debt, and he shall | C;'"^}]- ^''• 

5 be admitted as a ci-editor for the residue. The sale shall be made e Gray, 523. 
G in such manner as the court orders and the creditor and assianee au. ' ' 

7 shall execute necessary and proper deeds and papers. If the cred- 130 Mass. m. 

8 itor does not require such sale and join in the conveyance, he may i;^| '*'"«^- ''• 

9 release and deliver to the assignee the property held as security, S37 m'Iss] 4i'2' 

10 and be admitted as a creditor for the whole of his debt. If the }^ jj^gg- ^ig- 

11 propertj' is not so sold or released and delivered the creditor shall *55- 

12 not prove any part of his debt. i.oo Mass. 317. 175 Mass. 547. 

1 Section 37. A mortgage of land recorded more than four Mortgage 

2 months after its date shall not be valid against an assignee of the than^fovu-"""^*^ 

3 estate of the mortgagor if proceedings in insolvency are commenced 

4 within one year from the recording of such mortgage. 1888,393. 

163 Mass. 85. 172 Mass. 384. 

1 Section 38. A mortgage or pledge of property, or payment of ^"""sctt?-?' 

2 money given or made by an insolvent debtor for legal services ren- 1^9 120. 

3 dercd or to be rendered in, or in contemplation of, insolvency 

4 proceedings, shall be valid for such amount as the court allows. 



months after 
date. 



1J4() 



COUKT8 OF INSOLVENCY. 



[Chap. 1(53. 



An appeal from the decision of said court shall be allowed in the 5 
manner provided in section fort3--five. 6 



Claims to be 
proved on 
o;ith. 

183S, 1(3, § 4. 
1848, 3114, § 14. 
18.il, 1811, § 1 ; 
34i), § 1. 

18.i2, 189, 55 1, 2. 
18.111, 2,14, § 35. 
G. S. UH, 5 28. 
P. S. 157, § 29. 
8 Allen, ,581. 
147 Mass. 122. 



Section 39. No debt shall be proved or allowed unless the 
creditor, or, if he resides in a foreign country and the debt is 
founded on a contract made by the debtor with the consignee or 
agent of the creditor residing in the United States, such consignee 
or agent makes oath in substance as follows : — 

I, , tlo swear that , of , by (or against) whom proceedings 

in insolvency liave been instituted, at and before the date of such proceedings 
was and still is justly and truly indeljted to me in the sum of , for wliich 

sum or any part thereof I have not, nor lias any other person to my use, to my 
knowledge or belief, received any security or satisfaction whatever, beyond 
what has been disposed of agreealily to law. And I do further swear that said 
claim was not procured by me for the purpose of influencing the proceedings in 
this case. And I do further swear that I have not directly or indirectl)- made 
or entered into any Itargain, arrangement or agreement, express or implied, to 
sell, transfer or dispose of my claim, or any part of my claim, against said 
debtor, nor have directly or indirectly received or taken, or made or entered into 
all}' bargain, arrangement, or agreement, exjiress or implied, to take or receive 
directly or indirectly any money, property-, or consideration whatsoever to my- 
self, or to any person or persons to mj' use or benefit, under or with any under- 
standing or agreement, express or implied, whereby my vote for assignee or my 
assent to the debtor's discharge is or shall be in any way affected, influenced, or 
controlled, or whereby the proceedings in this case are or shall be affected, 
influenced or controlled. 



1 

2 
3 
4 
5 



No claim shall be allowed unless 
the oath are true. 



all the statements set forth in 



Oiith by 
attorney. 
1852, 189, §§ 1, 2. 
G. S. lis, § 29. 
P. S. 157, 5 30. 



Section 40. If the creditor is disabled b}'. absence from the 1 

commonwealth, illness or other cause from proving his claim, the 2 

above oath may be made by his agent or attorney testifying to 3 

the best of his knowledge and belief; but the court may require 4 

further proof of the truth of the statements therein. 5 



Before whom 

oath may be 

made. 

18.38, 1G3, 5 4. 

18.58, 93, 5 9. 

G. S. ll.S 5 30. 

1879, 245, § i. 

1880, 241), 5 1. 
P.S. 157, §31. 
1899, 178, § 4. 
3 Gray, 113. 



Section 41. The oath may be made Avithin the commonwealth 1 

before a ju.stice of the peace, notary public or special commissioner 2 

and, without the commonwealth, before a justice of the peace, 3 

notary public or commissioner for ^Massachusetts, and, if the cred- 4 

itor is in a foreign countiy, before an ambassador, minister, consul fi 

or vice-consul of the United States. But the court may at anj' (> 

time requu-e the affiant to appear personally before it to be further 7 

interrogated on oath. The debtor and any party proving a debt 8 

may be examined on oath in presence of the judge on all matters 9 

relative thereto. 10 



Postponement 
of claims. 
18.Tt), 284, § 33. 
G. S. 118, 5 31. 
P.S. 157, § 32. 
1(15 Mass. 682. 



Section 42. If a claim is presented for proof before the election 1 

of an assignee, and the coiu't is of opinion that the validity or rigiit 2 

of such claim ought to be investigated by the as.signee, it may 3 

postpone the proof of the claim till after the assignee is chosen . 4 



Claims not to 
be allowed. 
1838, Kii, § in. 
]85ti, 284, 5 32. 
G. S. 118, '5 32. 
P.S. 1.57, §33. 
172 Mass. 227. 
177 Mass. 257. 



Section 43. A person who has accepted a preference, having 1 

reasonable cause to believe that it was made or given by the debtor 2 

contrary to an}^ provision of this chapter, shall not prove the debt 3 

or claim on account of \vliich such preference was made or given, 4 

nor receive a dividend thereon. 5 



Chap. 163.] courts of insolvency. 1441 

1 Section 44. The court shall allow all debts proved and shall Allowance and 

-t exi^iuugiug of 

2 cause a list thereof to be made and certified by the register. It <iai>"8. 

3 may upon application by the assignee, a creditor, or the debtor, g.s. iis, §33. 

4 examine upon oath any person who has made proof of a clauii and p.^s. ig;',§§34, 

5 ma}' summon any person to give evidence relative to such proof, 138 Mass. 5'J2. 

6 and may alter or expunge such clami if the evidence shows that it 4I5 Mass! 587! 

7 is founded in whole or in part in fraud, illegality or mistake. 

1 Section 4.5. A supposed creditor whose claim is wholly or in Appeal. 

2 part rejected or an assignee who is dissatisfied with the allowance g^'s.'us'.Im. 

3 of a claim may appeal from the decision to the superior court ; but fgsl' ^4 '||f" 

4 no appeal shall be allowed unless it is claimed and notice thereof 4^Ilsh'o-o' 
/) given to the register, to be entered with the record of the proceed- scush. tiio. 
(1 ings, and also to the assignee or creditor, as the case may be, M'ithin u uraj, m. 

7 ten days after the decLsion appealed from. The appeal shall be iss Mass. 592. 

8 entered at the return day of the superior court for the county next iSm."s8:26!' 
!l after the expiration of fourteen days from the time of claiming loajiass. 587. 

10 it. If the appellant in ^\Titing waives his appeal before the entry 

11 thereof, proceedings may be had in the court of insolvency as if no 

12 appeal had been taken. 

1 Section 4(i. Upon the entrj' of an appeal the appellant shall J'4°''*|f*s*4^' 

2 file in court a statement of his claim substantially as in a declara- jj-s. ii8,'§36. 

3 tion at law. The subsequent pleadings and proceedings shall be lesjiase. su.' 

4 substantial!}' as in an action at law, except that no execution shall 

5 be awarded against the assignee for the amount of a debt found due 
(1 to the creditor. 

1 Section 47. The final judgment of the court shall be conclusive, judgment on 

2 and the lists of debts shall, if necessary, be altered to conform iS^I'm, m!"'" 

3 thereto. The prevailing party shall be entitled to costs, to be p.'s.'wv.'fll.' 

4 taxed and recovered as in an action at law ; if recovered against "^ ^"^^ *°- 
.") the assignee, they shall be allowed out of the estate. 

1 Section 48. A bill of exchange, promissor}' note or other in- Evidence of 

2 strumcnt used as evidence upon the proof of a claim and left in "f ciaS""' 

3 court or deposited in the registry may be delivered by the register g^|. nl',^/37. 

4 to the person who used it, upon his filing a copy thereof attested p-s. 157, §39. 

5 b}'^ the register, who shall also indorse upon it the name of the 

6 party against whose estate it has been proved and the date and 

7 amount of any dividend declared thereon. 

assignment and assignee. 

1 Section 49. The creditors shall, subject to the approval of the choice of 

2 court, choose one or more assignees of the estate of the debtor in is38f?sl,'§3. 

3 the presence of the court at the first meeting. The choice shall be g'?s. ns.y'ss, 

4 made by a majority in value of the creditors who have proved theu- ^g- j^g ^3 

5 debts ; but if the number of creditors present amounts to five and is^al 93,j 2. 

6 less than ten, the votes of two at least, and, if the number of cred- ii- 

7 itors amounts to ten or more, the votes of tlu'ee at least, shall be 

8 neces.saiy for a choice, and no creditor having a preferred claim 

9 shall vote thereon, except on so much of said claim as exceeds the 
10 amount preferred by law. If no choice is made by the creditors at 



1442 



COURTS OF INSOLVENCY. 



[Chap. 1«3. 



said meeting, the court shall appoint one or more assignees. If an 
assignee so chosen or appointed fails Avithin four days to accept in 
writing tlie trust, the court ma'^' fill the vacancy. The court ma^' 
appoint additional assignees or order a new election, or it may at 
the first meeting without an election appoint one or more disin- 



•terested assignees. 



11 
12 
13 
14 
15 
16 



Section r>(). The com't at any time may, and, upon request in 
one-fourth in number and value of the creditors who 



Bond of 

assignee. 

iS^'iili'^"' "^™ti"o by 

G. s. iw, §§ «, have proved theii* claims, s-liall, require the assignee to file a bond, 

isia, 173, §4. approved by the judge, to the judge and his successors in office, 
conditioned for the faithful performance of his duties, which shall 
inure to the benefit of all creditors proving their claims and may be 
prosecuted in like manner as an administration bond. An assignee 
who fails to s:ive a bond ^-ithin such time as the court orders, not 
exceeding ten days after notice to him of such order, shall be re- 
moved and another appointed by the court. 



1879, iiS, § 'J. 

P. S. 157, §§ 42, 

43. 

4 yr.iv, 2S6. 

6 Gray, 364. 



1 
2 
3 
4 

5 
li 
7 
8 
l» 
10 



A^9]^|n™ent by SECTION 51. The judge shall, by an instrument under his hand, 
i83isT ies, § 0. assign and convey to the assignee all the property of the debtor, 

(j, S, lis S 42. ® . 

p.' s.' 1.17,' § 44.' not exempt from attachment, and all his deeds, books and papers 

97 Mass. 2.i3. 1 J.* J_^ ^ 

153 Mass. 311. relative thereto. 



1 

2 

3 
4 



Record of as- 
signment and 
notice. 

ItvJS, 163, § 11. 
G. S. UH, § 4.3. 
P. S. 157, § 45. 
5 Allen, 126. 
130 Mass. 36S. 



Section 52. The assignee shall forthwith cause the assignment 
to be recorded in the registr}' of deeds in each county or district in 
which there is land of the debtor upon which it may operate : and 
shall give such public notice of liis appointment as the judge may 
order. 



1 
2 
3 
4 
5 



Airent of non- 
resident as- 
signee. 
l!iS9, 313. 
isaj, 118. 



Section 53. An as.signee appointed in, but residing out of, this 
commonwealth .shall not receive the instrument of assignment until 
he shall have appointed an agent as provided in sections ciglit to 
ten, inclusive, of chapter one hundred and thhly-nine, and the pro- 
visions of said .sections shall apply to such appointment except that 
said A\Titing shall be filed in the registry of insolvency. Notice of 
a new appointment of an agent, witii his name and address, shall 
be given in the next notice requu-ed to be given b}' the assignee, or 
as the court may order. 



4 
5 
(5 
7 
8 



Effect of 
assignment. 
l.-<iH, itis, 5 ft. 
IMl, 327, § 20. 
(J. S. llfi, §§44, 
123. 

1862, 17(1, § 7. 
1S7'.), 24.5, « 3. 
1,-H), 246, § 7. 
I". S. 1.57, § 46. 
4 Met. -.m;, 537. 

8 Met. III. 

9 Met. 23. 

4 Cush. 357. 
3 Grav, 247. 

7 Grav,. 539. 

9 Gray, 42. 
1 Allen, 373. 

5 Allen, 126, 
382, .5.<2. 

8 Allen, 20, 598. 

10 Allen, 258, 
4611. 

12 Allen, Mb. 
<Ji Muss. 305. 



Section 54. The assignment shall vest in the assignee all the 
propert}' of the debtor, not exempt from being taken on execution, 
which he could have lawfully sold, assigned or conveyed at the time 
of the first publication of tlie notice of issuing the warrant in case 
of voluntar}^ proceedings, and at the time of the fii-st publication of 
notice of the filing of the petition in case of involuntary proceed- 
ings, and shall, subject to the provisions of the following section, 
dissolve any attachment on me.sne process made not more than four 
months j)rior to the time of said first |)ublication. The a.ssigiiment 
shall vest in the assignee all debts due to the debtor or a person for 
his use, and all liens and securities therefor, and all his rights of 
action for, and of redeeming, property. The assignee may redeem 
all niortgiiges. conditional contracts, pledges and liens of or u[)oii 
any property of tlie debtor, or sell it subject to .such mortgage or 



1 
2 
3 
4 
5 
1) 
7 
8 
:) 

10 

u 

12 
13 
14 



Chap. 1(13.] courts of insolvency. 1J4o 

1,") other encumbrance, and if a mortgage is foreclosed pending pro- loo m.iss. 44«, 

1(1 ceedings in insolvency and before, or within sixty days after, the ap- 102 Maes. 47s. 

17 pointmcnt of an assignee the assignee ma}' redeem the same witliin igyM^ssi^'k. 

18 sixty days after his appointment, with remedies similar to those pro- J^ jJilsg' j[ig" 
1!) vided for the redemption of mortgages before foreclosure. ^T-'^?^- „ 

-*■ ^ ~ 14( Maes. 8. 

14!) Mass. 158, 310. 154 Mass. 302. 163 Mass. 350, 530. 14(5 U. S. 303. 

1.53 Mass. 311. 159 Mass. 420. 172 Mass. 384. 175 U. S. 3%. 

1 Section .t'). If a debtor whose property is attached conveys Attachments, 

2 before judgment in the action any part of such propertj^ and sub- i°4",'i24,^§'6.'^^' 
8 sequently thereto and before execution Issues, proceedings are com- i8a7'247. 

4 menced bv or a<i'ainst him as an insolvent debtor, or if a dissolution Vi-o'l-'lt-- 

5 of an attachment under the iwovisions of the preceding- section *?iv^- ■''"■ 

. 11,. . , ° ]3 Mi't. 2110. 

() miglit prevent the property attached from passing to the a.ssignee, 2 cush. 124. 

7 the court in which proceedings in insolvenc}^ are pending or to « Gnly', .123. 

8 which the writ of attachment is returnable, ma}', upon application issMass^Iss, 
1) on or before the day of the thu'd meeting of creditors by a person 137 jiass. 3!)9 

10 interested, for cause, order the lien created by the attachment to f^l\, 

. *' lob Mass. 14*. 

11 continue, llie action may be continued or execution stayed until 

12 the assignee is chosen and takes char<i-e of the action. The assii>nee 
lr> may jn-oceed with the action and levy the execution at the exjjcnse 

14 of the estate ; and the amount recovered, exclusive of costs due to 

15 the original plaintifl", shall vest in the assignee. 

1 Section 0(5. The assignee shall demand and i-eceive from the Assignee to 

2 messenger and all other persons all the propert}' in his or their reeuive^nop. 

3 possession a.ssigned or intended to be assigned under the provisions iroounti.'"^'''' 

4 of tliis chapter ; and shall keep a regular account of all money re- J?^!' H'?: VA: 

... . ,1 T • G. S. ll^, § 4b, 

5 ccived by him as assignee, to which every creditor shall at reason- p-s.io7, §4». 

6 able times have free access. 

1 Section 57. The assignee shall, unless tlie court otherwise inventory. 

2 orders, at or before the second meeting of the creditors, make and p.''s'.i57',|49. 

3 return upon oath to the court of insolvency a true inventory of all 

4 the property of the debtor, of all debts due to the debtor or an- 

5 other person for his use, of all his rights of action for and of ledeem- 
(5 ing property, which the assignment lias vested in such assignee 

7 and wliich have come to his po.ssession or knowledge. The projierty 

8 included in such inventory shall be appraised in like manner as 
1) the estate of a deceased person, and the appraisal returned at or be- 

10 fore said meeting. 

1 Section 58. The a.ssignee shall account for the property of the Assignee to 

2 debtor which has vested in him by the assignment, at the appraised projit'itv at .ap- 

3 value, except as herein provided. He shall make no profit by the isl'i.^t.^a!^" 

4 increase and sustain no loss by the decrease or destruction, with- lo'cusill'ifs^"' 

5 out his fault, of any part of the property ; if he sells any thereof jf,?j,'.'|s;^5ao 

6 for more than the appraised value, he shall account for the excess, is-* 'i"88. si. 

7 but if he sells for leiss, the court ma^', if it appears that the sale 

8 was expedient and for the interest of all concerned in the estate, 
{• allow him for the loss. In either case the assignee shall return to 

10 the court a true account of .sales, and shall sell the property at 

11 public auction unless the court, upon petition therefor, otherwise 

12 orders. 



i.y4 



COrKTS OF INSOLVENCV. 



[Chap. 163. 



Assignee 
to commence 
and prosecute 
actions, etc. 
183S, IWJ, § fl. 
G. S. 118, §47. 
P. S. 157, § 81. 
1 Gray, 416. 
10 Gray, 32!). 
5 Allen, .T-'-'a. 
10 Allen, 36, 460. 
130 Mass. 36*. 
148 Mass. 21)9. 
167 Mass. 468. 
163 Mass. 3.TU. 



Section 59. He may recover all the property' and debts, in his 
own name, as the debtor might have done had no assignment been 
made. If at the date of the a.ssignment an action is pending in the 
name of the debtor for the recovery of a debt or other thing which 
might or ought to pass to the assignee by the assignment, the 
assignee shall, if he so requires, be admitted to prosecute the action 
in his own name, in like manner and with like effect as if com- 
menced by him. Xo action pending in the name of the a.ssignee 
shall be abated b}' liis death or removal ; but the surviving, remain- 
ing or new as.signee, as the case may be, shall be admitted to prose- 
cute the action. The assignment b}^ the judge shall be conclusive 
evidence of the authoi'itv 



of an assignee to sue. 



1 
2 

3 

4 

5 

(J 

7 

8 

9 

10 

11 

12 



Limitation of 
actions. 
1895, 432. 
7 Met. 348. 



Section ()(). An as.signee shall not commence or be made a 1 

party to an action or other proceeding at law or in equity relative 2 

to any property or rights thereto unless the same is commenced 3 

within six years from the time when the right accrued to or against 4 

the insolvent. The provisions of section nine of chapter two liun- ,5 

dred and two shall apply to such actions and proceedings. C> 



18.56, iM, § 28. 
G. S. 118, § 4X 
P. S. 157, § 52. 
8 Gray, .572. 



8i™ea'wUhin^' SECTION (51. A draft, bill of exchange, promissory note, claim, 1 

six months, not demand or other cause of action, which within six months before -J 

the filing of the petition by or against a debtor has been assigned, 3 

transferred, conveyed or delivered to a person indebted or liable to 4 

the debtor shall not be set oti" or pleaded in defence in an action 5 

by the a.ssignce to i-ecover such debt or liability ; but the assignee (i 

may recover the same, not\nthstanding such draft, bill of exchange, 7 

promissory note, claim, demand or cause of action, if the person to 8 

whom it has been so assigned, tran.sferred, conveyed or delivered 9 

had at the time of such assignment, transfer, conveyance or delivery 10 

reasonable cause to believe the debtor insolvent. 11 



Property to be 
kept separate 
1)V assignee. 
1838, 163, §11. 
G. S. 118, § 4'J. 
P. S. 157, § 53. 



Section (j2. The assignee shall, as soon as may be after receiv- 1 

ing any money belonging to the estate, deposit it in a bank in his 2 

name as assignee, or otherwise keep it distinct and apart from 3 

all other money in his possession ; and shall as far as practicable 4 

keep all other property of the estate separate and apart from all .5 

other property in his possession, or designated by appropriate (i 

marks, so that it may be easily and clearly distinguished and not 7 

be exposed or liable to be taken as his property or for the payment 8 

of his debts. 9 



Temporary 
investment of 
property, 
wlieu. 
18.5a, 119. 
G.S. 118, §60. 
p. S. 157, § 54. 



Section fiS. If the court finds that the distribution of the estate 1 

may be delayed b}' litigation or other cause it ma}' order the tem- 2 

porary investment of the money of such estate in securities approved 3 

by the judge, or may authorize its deposit in a bank in this common- 4 

wealth upon such interest as the bank may contract with the assignee 5 

to pay thereon. 6 



Carrying on 
of ))U8ine6s. 
1SII7, 120. 



Section (i4. The court may for cause order the messenger or 
assignee to cam' on the business of the debtor or any part thereof 
under its direction. 



Chap. 163.] couets of insolvency. 1445 

1 Section (35. The assignee shall give written notice to all known Notice of divi. 

2 creditors by mail or otherwise of all dividends, and such notice of meeffn'ss!* 

3 meetings after the first as the judge orders, o.s. ns, §51. p.s. isr, §55. ilso'sial^*' 

1 Section (56. He shall be allowed by the court from the mone}- compensation 

2 in his hands the necessary disbursements made by him in the per- i^3sf!Ji"™i]. 

3 formance of his duty, and a reasonable compensation for his services. p.I.isy;!^; 



•) 



1 Section (57. He may, under the direction of the court submit sui.mission to 

,.,»'. ., , /■!• 1 arbiti'atiou. 

2 anv controversy which arises in the settlement 01 clamis by or it*38, les, § u. 

3 against the estate to the determination of arbitrators who shall be p.' s.' 157,' § si.' 

4 chosen by him and the adverse party ; and may under such dh-ec- ^^ "^'^' "^^ 

5 tion compromise and settle any such controversy if in his judgment 
(5 it is proper and for the interest of the creditors. 

1 Section 68. If the court finds that the title to any property of f j^j^ 5;' PfJ^^J;- 

2 the estate which has come into possession of the assignee is in pencuntr .djs " 

«i. 11 1 ..111 1.11 1 • P^'*^ *'^ title. 

3 dispute and that the propert}' is perishable or liable to deteriorate isw, 73. 

4 in value, it may, upon petition by the assignee and notice to the p.' s.' 157,' § as.' 
.") claimant, his agent or attorney, order it to be sold under the direc- 

6 tion of the assignee, who shall hold the proceeds in place of the 

7 property sold ; and such proceeds shall be the measure of the value 

8 of the property in an action or controversy between the parties. 

9 But the provisions of this section shall not prevent the recovery of 

10 the propert}^ from the possession of the assignee by action of re- 

11 plevin commenced at any time before the court orders the sale. 

1 Section 69. "When an assignee has received from the estate Accounts. _ 

2 assets sufficient to pay fifty per cent of the debts and claims proved J^s.ns.Vo's- 

3 against it, he shall certify the fact and render his accounts therefor ^'' *■ ^^'' * ^' 

4 to the court ; and when he has received twenty-five per cent more 

5 from the assets, he shall in like manner certify and render his ac- 
(5 counts therefor. He shall also certify and render his accounts when 
7 requu'ed by the court. 

1 Section 70. At a meeting called by order of the judge in his Removal ot 

2 discretion for the purpose, and which shall be called upon the cremtors. '^ 

3 petition of a majorit}' of the creditors in number or vahie, the igai; 69^' ^ '^' 

4 creditors may, with the consent of the court, remove an assignee by p;|;J5f'lBo; 

5 such vote as is jn'ovided in section forty-nine for the choice of 9Cu8U.a8j. 
6 

1 Section 71. If the court, upon complaint of any person inter — by court 

2 ■ ested in the estate, after notice and a hearing, finds that an assignee pFamt™"'" 

3 has fi-audulently received, concealed, embezzled or conveyed away g^I'.hs.VsI'. 

4 an}' of the money or other property of the e.state or has been inter- J^'|ray"/i4^.^' 

5 ested in an action at law relative to .said estate for the purpose of 

6 securing to himself a preference or priority over the other creditors, 

7 or has in his possession or control any part of the estate with intent 

8 to appropriate the same unlawfully to his own use, or has been 
;i guilty of a fraudulent act relative thereto it may remove him. 

1 Section 72. The court may also remove an assignee who, having other srounds 

2 removed from the commonwealth, unreasonably refuses or neglects is.5if3Sy§ ••. 



1446 



COURTS OF INSOLVENCY. 



[Chap 163. 



(I'^I'YiV'Vm **' °^^y ^ lawful order for calling meetings of the creditors, to 3 

F. s. In?,' § 62. settle his accounts, or otherwise to perform his duties ; and for any 4 

other sufficient cause. 5 



Section 73. 



Resiffuation of 

iKw, 141, §3. resign his trust and be discliarged therefrom 

U.S. 1US§69. => O 



An assignee may with the consent of the court 

p. S. 157, § 83. 



Filling of 

vacancies. 

1838, 1B3, §§ 2, 

11. 

18i)8, 141, §§ 2, 3. 

G. S. 118, § 60. 

P. S. 137, § 64. 

9 Allen, 197, 

199. 



Section 74. Vacancies caused by death or otherwise in the office 
of assignee may be filled by the court or in its discretion by an 
election by the creditors as provided in section fort^'-nine at a 
regular meeting or at a meeting called for the purpose, after notice 
thereof in \\Titing to all known creditors by such person as the 
court orders. 



Effect of resig- 
nation, etc. 
1858, 141, §3. 
G. S. 118, § 61. 
P. S. 167, § 65. 



Section 75. The resignation or removal of an assignee shall 
not release him from performing all things re(]uired of him for the 
proper closing up of his trust and the transmission thereof to his 
successors, nor aflect his liability or that of his surety on his bond. 



1 
2 
3 

4 



Vesting of 
est.'tte upon 
ileatii, etc. 
18.38, 163, § 11. 
184S, 3114, § 12. 
1851, 34U, I 2. 
G. S. 118, §62. 
P. S. 157, § 66. 



Section 7(5. If by death or otherwise the number of assignees 
is reduced, the estate of the debtor not lawfully disposed of shall 
vest in the remaining a.ssignee or assignees and the persons selected 
to fill vacancies, with the same powers and duties relative thereto 
as if they had been originally chosen. 



1 
2 

3 
4 



Former 

assignee to 
execute deeds, 
etc. 

1838, 163, § 11. 
1851, 34!l, § 2. 
1858, 141, §4. 
G.S. 118, §63. 
P. S. 157, § 67. 



Section 77. A former assignee, his executor or administrator, 
upon request and at the expense of the estate, shall make and exe- 
cute to the new assignee all deeds, conveyances and assurances, and 
do all other lawful acts, necessary to enable him to recover and 
receive all the estate ; and the court may pass orders to secure per- 
formance of the duties of a former assignee, and the rights and 
interests of all persons interested in the estate. 



Preferred cred- 
itors not to 
vote for, etc. 
18.56, 284, § 34. 
G.S. 118, §64. 
P. S. 157, § 68. 



Section 78. No person who has received a preference contrary 1 

to the provisions of this chapter shall vote or be eligible as assignee ; 2 

but no title to property, sold, transferred or conveyed b}' an as- 3 

signee shall be afl'ected by reason of his ineligibility. 4 



Penalty tor 
neglect, etc. 
1838, 1(3, § 23. 
G. S. 118, §6,5. 
P. S. 167, § 69. 



Section 79. An a.ssignee refusing or unreasonably neglecting 
to execute an in.strumcnt when lawfully re(|uired by the court, or 
disobeying a lawful order or decree of the com't, may be committed 
to jail in the county in which he is found or in which he resided 
when appointed, until he obeys such order or decree. 



1 
2 
3 
4 
5 



Appointment 
uiion death of 
assignee with 
accounts un- 
settled. 
1891, 400, § 1. 



Section 80. If an assignee has died and it does not appear of 1 

record that his accounts have been .settled or that the propert}' of 2 

the estate has been disposed of or distributed by him, and the court 3 

in which proceedings in insolvency were comniciiccd, upon petition 4 

b}' a creditor or the insolvent or a person who claims under either of 5 

them, after public notice and a hearing, finds as alleged in such t! 

petition that there is property to which the assignee would be en- 7 

titled if living and which, if real estate, does not api)ear of record 8 

to have been conveyed by him or his heirs, representatives or 9 

devisees, it shall, unless cau.se is shown to the contrary, altliough 10 



Chai". 1(53.] COURTS or insolvency. l-itiT 

11 there may be no record of the proceedings in the case, appoint an 

12 assignee who may be re(iuired to give bond in such form and with 

13 such surety or sureties as it may order. Such property shall there- 

14 upon vest in said assignee, shall be sold at public or private sale by 
1,5 him and the net proceeds disposed of as hereinafter provided. 

1 Section 81. The assignee shall ffive notice of his appointment Dieti-ibution. 

a • J -T uf- \ A • Vt t. A ■ u^■ \ J ■ 1891, 400, §§ 2, 3. 

2 in a daily newspaper published in Boston and in one published in 

3 the county of his appointment, once in each of five successive 

4 weeks, calling upon creditors to file their claims in said court 

5 within three months from a date stated in the notice subsequent to 
G the first publication of said notice. The court shall hear and decide 

7 all claims so filed within said period, subject to appeal in like iiian- 

8 ner as other claims in insolvency, and all other claims shall be 
!• barred. When the amount due on such claims finall}^ allowed has 

10 been ascertained or upon the expiration of said period without 

11 claim, the assignee shall apply for a decree of distribution, which 

12 shall be made after public notice, shall designate the claimants, to 

13 whom and in what pro})ortions the amount in his hands shall be 

14 paid, and shall bind all jiarties. But the provisions of this and the 

15 preceding section shall not divest any title held b}' a bona fide pur- 

16 chaser who claims directly or indirectl}' under the insolvent. 

EXAMINATION OF DEBTOR. 

1 Section 82. The debtor shall, if required by the court at any Examination 

2 time before the granting of his certificate, upon reasonable notice, otbe^pefsons. 

3 attend and submit to an examination on oath before the court, by Jj^l". Hb^leB. 

4 the assignee or by a creditor, relative to his trade and dealings, his {f^g'^ig^'ljo 

5 property and debts, and all matters which may atfect the settlement ^ j'"*-^"!- 

6 of his estate: and upon cause shown bv affidavit of any person 3 Gray, iiii, 250. 

_.,.,.', i 4. ii i 4Cusli. 448. 

7 interested m the estate, the court may summon any person sus- HAiien, 573. 

8 pected of having fraudulently received, concealed, embezzled or is/jia^s-sTT. 

9 conveyed away property of the debtor, or of having assets of the isa Mass. 193. 

10 debtor in his possession, or having knowledge of any thing material 

1 1 relative to the assets or dealings of the debtor, to appear and sub- 

12 mit to an examination in like manner. If the person summoned 

13 fails after notice to appear and submit to such examination, or 

14 to answer such interrogatories as are lawfully propounded to 

15 him, the court may commit him to the jail of the county until 
Ifi he submits to the order of the court. The judge may requh'c such 

17 examinations to be in ^xTiting, signed by the person examined, and 

18 filed in court. 

1 Section 83. If the debtor is in jail on an action or proceeding Examination 

2 for or on account of a debt or claim provable against his estate, at prison. ""^^ '° . 

3 any time before the gi-anting of his certificate and if his attendance g^|. ub'.le;. 

4 is requu'ed before the court or the as.signee, or at a meeting of his ps. ibt, §71. 

5 creditors, the judge maj', by a ^\Tit, recjuu-e the jailer to produce 
(5 the debtor for said purposes, at a time and place specified in the 
7 ^\Tit. 

1 Section 84. If the debtor, by reason of imprisonment, illness, — ifiiiorun. 

2 or other sufficient cause, is unable to attend before the court or the 1838,163', §™ 



1448 



COUKTS OF INSOLVENCY. 



[Chap. 1i;3. 



G. S. lis, § 68. 
p. S. 157, § 72. 



assignee or at a meeting of liis creditors, the court or a person ap- '^ 

pointed b}' it and the assignee, or a person appointed by him, shall 4 

conduct the examination of the debtor in jail or elsewhere, if he is 5 

within this commonwealth. 6 



Examination 
of debtor 
if out of the 
coinnion- 
wealtli. 
183!<, l(i3, § ii. 
G. S. 118, §(;9. 
P. S. 157, § 73. 



Section 85. If the debtor is without this commonwealth and 
unable to return and personally attend at any of the times and for 
the purposes specified in this chapter, and if the court finds that 
such absence was not caused b}' his wilful default, and as soon as 
may be after the removal of such impediment he offers to attend 
and submit to an examination on oath before the court and the as- 
signee as herein provided and to do all things required by the pro- 
visions of this chapter for the purpose of obtaining his certificate, he 
shall be entitled thereto in like manner as if he had done the same 
things at the times herein provided. 



1 
2 

i\ 
4 
."i 
G 
7 
8 
It 
10 



Debtor to do 

all necessary 

acts. 

18;j8, 163, § 5. 

G. S. 118, § 70. 

P. S. 157, § 74. 

157 Mass. 468. 

133 U.S. 107. 



Section 86. The debtor shall, at the expense of the estate, 
make and execute such deeds and Awitings and indorse such bills, 
notes and other negotiable papers, draw such checks and orders for 
money deposited in banks or elsewhere and do such other la\\'ful 
acts as the assignee reasonably requu'es and as are necessaiy or 
useful to confirm the assignment, and enable the assignee to demand, 
recover and receive all the property so assigned, especially anj' 
part thereof which is without this commonwealth. 



1 
2 
3 
4 
.") 
G 
7 
8 



Failure to exe. 
cute instru- 
ments, etc. 
1838, 163, § 23. 
G. S. 118, §71. 
P. S. 157, § 75. 
2 Met. 573. 
157 Mass. 468. 



Section 87. If the debtor refuses or unreasonably neglects to 
execute an instrument lawfully requu'ed by the com-t or disobeys a 
lawful order or decree, the court shall issue its warrant to a civil 
officer, commanding him to arrest and commit the debtor to the 
jail in the county in which he ma}' be found, or in which he dwelt 
at the time of his insolvency until he obeys such order or decree. 



1 
2 

8 
4 
5 
G 



Second meet- 
ing. Oath. 
18:i8, 163, § 7. 
1854, 32iP, § 3. 
G. S. lis, §72. 
P. S. 157, § 76. 
11 Cush. 164. 



second and third meetings, oath and discharge. 

Section 88. The judge shall appoint a second meeting of the 
creditors, to be held at a court not more than three months after 
the date of the warrant. 'Ilie debtor may then amend and correct 
his schedule of creditors, and shall take and subscribe an oath before 
the court, which shall be certified by him and filed in the case, in 
substance as follows : — 



1 
2 
3 
4 
-^ 
6 



I, 



do sweiir that tlio. aocoiiiit of my creditors contained in the .si-licd- 



ule made and sijrned l)y nie and now on file in court is in all respects just and 
true, according to my best knowledge and belief. And I do furtlier swear, that 
I have delivered to , the messenger, all my estate, not exemjit from at- 

tiichment, except such as has been necessarily expended for the support of my- 
self and my family, and all my books of account and papers, relative to my said 
estate, that were within my possession or power wlien the same were demanded 
of me by the messenger ; that 1 have dcdivered to my assignee such of my said 
estate, books .an<l papers as has since come to my possession ; and that if any 
other estate, books of account or i)apers, which shall or ought to be assigned 
•and delivered to the assignee, shall hereafter come to my knowledge or pos- 
session, I will forthwith disclose or dcli\-er them to him. And I do further swear 
that there is not any part of my (iroperly made over or disposed of in any man- 
ner for the future benelit of niyself or my family, or in order to defraud my 
creditors. 



Chap. 163.] courts of insolvency. l-MO 

1 Section 89. If a debtor or assigneo who is required to make oaths out of 

2 oath before the judge is unable by reason of ilhicss or other cause Isel, iJs.j i._ 

3 to attend personall}- in court, the oath ma}^ be administered out of p-^is'. §■?"• 

4 court by the judge or by a person to whom a commission is issued 

5 therefor. 

1 Section 90. If by reason of proceedings in the supreme judicial {i'gby°coSrt!"' 

2 court or for other cause, a failure to call or hold a second or third Q^'ffjjll^ 

3 meeting witliin the time provided occurs, the court may, upon peti- ^86|, ia'ss-^ 

4 tion by an interested party, order such meeting to be held at a sub- 

sequent date. 

1 Section 91. Upon the death, resignation or neglect of the —by register 

2 assignee, or his absence from the count}', whereby a meeting to be court. 

3 notified by him is liable to be defeated, it may be notified by the g!*s.1i8,|I'4. 

4 resistor on the order of the judge upon petition by an interested p-s. is-, §79. 
") party, with notice at the discretion of the judge to the assignee if 

() living-. 

1 Section 92. The judge shall appoint a tliird meeting of the Third meeting. 

2 creditors to be held within six months after the appointment of the dfscharge." 

3 a.ssignee. If at such meeting or a meeting thereafter, the court J^SIithJI; 

4 finds that the debtor has made a full disclosure and delivery of all Q;'s'.^nt<'_^§re. 
.5 his property as herein requu'ed, and that he has conformed to the 5igugjj"'3|5^''" 

6 provisions of law relative to insolvent debtors, the judge shall grant «2- ' 

7 him a certificate which shall state all fiduciary debts exempt fii'om 

8 discharge, and be in substance as follows : — 

COMMONM^EALTIl OF MASSACHUSETTS. 

, ss. Court of Insolvency. 

To all people to whom these presents sh.all come, I, A. B., judge of the court Formof cer- 
of insolvency for said ooimty of , send greeting. diBcSarSe. 

"\Miereas it lias Ijeen made to appear to me that C. D., of B., in said county issMasB. 84. 
of , whose estate has lieen assigned for the benefit of his creditors accord- 

ing to law, has made a full disclosure and delivery of all his estate, and that lie 
has conformed to the provisions of law in that behalf made and provided, I do 
certify tliat said C. D. is absolutely and wholly discharged from all his debts 
which have been or shall be proved against his estate assigned as aforesaid, and 
from all debts which are provable against his estate, and which are founded on 
any contract made Ijy him within tliis connnonwealth or to be performed within 
the same, and from all debts whicli are provable as aforesaid, and which are 
founded on any contract made by him, and due to any persons who were resi- 
dent within tliis commonwealth on the day of last, being the day 
(of the first pulilication of the notice of the warrant issued for tlie seizure of the 
estate of said C. D. — or in involuntari/ proceedimis — of the first publication of 
the notice of the filing of the i)etition against said C. D.) ; and from all claims 
against him for or on acooimt of any goods or chattels wrong-fully obtained, 
taken or withheld by him, according to the provisions of chapter one hundred 
and sixty-three of the Revised Laws. And I do further certify that said C D. 
is by force of said chapter forever discharged and exempted from arrest or im- 
prisonment in an action or upon any proceeding, for or on account of any debt or 
demand wliich miglit have Ijeen proved against his estate assigned as aforesaid. 

Given imder my hand and the seal of said court this day of in 

the year 

1 Section 93. The debtor shall thereupon, except as provided in Effect of 

2 sections ninety-six and ninety-seven, be discharged from debts how pilTd'ed. 

3 proved against his estate and from all debts provable under the pro- Jffl.^S.Vre. 



1130 



COURTS OF INSOLVENCY. 



[Chap. 163. 



1879, 2+5, § 4. 
I'. S. 157, I) til. 

10 Met. as-.'. 
6 Cusli. ±15. 
g Cush. 375. 

11 (Jush.'iil, 356. 
13 Gray, 21B. 

1 Alien, 4.111, .".12. 
5 Allen, 10. 
8 Allen, 315. 
Ill M116S. 77. 
130 M.HS8. .VB. 
132 Miiss. l!*, 

4i;(;. 

I;i3 Maes. 5.57. 
134 JIass. 4*. 
139 Mass. H. 
1.50 Mass. 353. 
151 Mass. .51*9. 
156 Mass. 515. 

165 Mass. 76. 

166 Mass. 577. 
168 Mass. 28. 

172 Mass. 154. 

173 Mass. 258. 



vision.s of tlii.s chapter and founded on any contract made by him 4 

while an inliabitant of this commonwealth, if made witliin this com- 5 

moiiwealth, to be performed therein or due to any per.son resident 6 

therein at the time of the fii"st publication of the notice of the issu- 7 

ing of the warrant in voluntary proceedings or of the first publi- 8 

cation of the notice of the filing of the petition in involuntary 9 

proceedings, and from all demands for or on account of any prop- 10 

ert}^ wrongfuUjr obtained, taken or withheld by hhn, as provided in 11 

section thirty-one, while such inhabitant. Such discharge ma}' be 12 

pleaded b}' a simple averment that on the day of its date it was 13 

granted to the debtor, setting forth a copy thereof, as a full and 14 

complete bar to all actions brought on such debts or claims. The 15 

certificate shall be conclusive evidence of the fact and regularity of 16 

such discharge. 177 Mass. 224. 17 



Discharge 
from imprison- 
ment. 

1838, 163, ? 9. 
G.S. 118,"§77. 
P. S. 157, § 82. 
ISO Mass. 415. 



Section 94. If the debtor at the time of obtaining his certificate 1 

is in jail on an action or proceeding for or on account of a claim 2 

provable against liis estate, he shall be discharged from such im- 3 

prisonment, upon producing to the jailer his certificate granted 4 

under the provisions of this chapter. 5 



— from arrest 
anfl property 
exempt from 
atuichmeut, 
etc. 

1838, 163, § 7. 
1850, 97. 
G.S. 118, §78. 
P. S. 157, § 83. 
7 Met. 257. 
12 Allen, 3H5. 
136 Jlass. 73. 
1.50 Mass. 411. 
164 Mass. 1.55. 
166 Mass. 126, 
128. 

170 Mass. 405. 
172 Mass. 519. 



Section 95. The debtor .shall also be forever thereafter dis- 
charged and exempt from arrest or imprisonment in any action or 
proceeding for or on account of a debt or demand provable against 
his estate. And the property of the debtor ac(iuh'cd by him sub- 
setiuently to the time of the fii"st publication of the notice of the 
issuing of the warrant in voluntary proceedings or of the first pub- 
lication of the notice of the filing of the petition in involuntary 
proceedings shall not be subject to attachment by trustee process 
or otherwise in any action to recover a debt M'hich ma}' have been 
so provable and due to any person not resident in this common- 
wealth at the time of such first publication, or founded on a con- 
tract existing at the time of said first publication and made or to be 
performed out of this commonwealth. 



1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 



Debts not 

diseliarsied. 
1844, 178, § 3. 
1848, 304, § 10. 
G. S. 118, § 79. 
1879, 245, § 5. 
1881, 257, § 2. 
P. S. 1.57, §84. 
1885, 3.53, § 6. 
a Gray, 211. 
15 Lirav, .547. 
1 AUeii, 219, 
456. 

5 Allen, 210. 
7 Allen, 264. 
12 .^lli'n, 366. 
100 Mass. 498. 
132 .M.iss. 28:1. 
158 Mass. 2.50. 
176 Mass. 460. 



Section 96. No debt created by the debtor's defalcation as a 1 

public oificer, executor, administrator, guardian, receiver, trustee 2 

or assignee of an insolvent estate, or by the fraud or embezzlement 3 

of the debtor, nor claim for goods attached on mesne process or 4 

taken on execution by the debtor as an officer or for misfeasance in 5 

office, nor debt or claim against a pledgee created by his sale of (5 

collateral securities in a manner not authorized by his contract with 7 

the pledgor or by the provisions of sections ciglit and nine of chap- 8 

ter one hundred and ninety-eight shall be discharged under the 9 

l)rovisions of this chapter, but the dividend declared thereon shall 10 

be payment of so much of said del)t or claim. A claim for neces- 11 

saries furnished to the debtor or his family shall not be so discharged 12 

unless the claim lias been proved against his estate. 13 



Action on 
claim omitted 
from schedule. 
1897, 427. 



Section 97. A creditor having a claim against an insolvent 1 

debtor which was omitted from the schedule of creditors as filed 2 

by .said del)tor, and who has not jiroved his claim, may, subject to 3 

the provisions of the preceding section, recover from the delitor in 4 

an action at law, notwithstanding a discharge in insolvency, the 5 



Chap. 103.] coluts of insolvency. 1451 

6 same amount that the other creditors received who proved their 

7 claims. 

1 Section 98. A discharge shall not I'elease a person liable for the Persons jointly 

2 same debt as a partner, joint contractor, indorser, surety or other- leased"*"™' 

3 wise for or with the debtor. g. s. us, §80. p. s. isv, §85. issis, les, § v. 

1 Gray, 6'23. 10 Gray, 333. 168 Mass. 102. 170 Mass. 179. 

1 Section 99. A discharge shall not be gi'anted to a debtor whose Discharge by 

•2 assets do not pay fift}^ per cent of the claims proved against his it!fr™'° ^^'"^' 

;3 estate, unless the assent in writing of a majority in number and ihl4;i7p;|4; 

4 value of his creditors who have proved their claims has been filed y''^? '^'^f^ i^^-j 

5 within six months after the date of the assignment. p. s. 157,' § se. 

3 Gray, 254. 9 Gray, 364. 5 Allen, 10. 11 Allen, .566. 

1 Section 100. A discharge shall not be gi-anted to a debtor a - upon suijse- 

2 second time insolvent whose assets do not pay fift}^ per cent of the ?ency.'"^"'" 

3 claims proved against his estate, unless the assent in writing of Iss^; 2.57! ^^ ^' "' 

4 three-fourths in value of his creditors who have proved theu* clahns p'|Jfl7'||f 

5 has been filed within six months after the date of the assignment, scush. sj. 

^T ,. , T , , , . , . . ^ , 10 Gray, 327. 

(1 JNo discharge shall be granted to a debtor a third time insolvent, loe Mass. 224. 

7 unless he has paid all the debts owed b}' him at the time of his pre- 

8 vious insolvency or has been voluntarily released therefrom by his 

9 creditors. 

1 Section 101. A creditor may as.sent to the debtor's discharge Assent of cred- 

2 under the provisions of the two preceding sections, although an stonSuis'*'' 

3 appeal from the allowance of his clami is pending, and such assent iism^ 293. 

4 shall be valid if the claim is finallj' allowed. 3 Gray, 255. p's'isfl^' 

1 Section 102. In determining the requisite assent of creditors, Preferred cred- 

2 no preferred claim which is paid in full, and, if not paid in full, no yot"'"""* 

3 part thereof which is paid, shall be reg-arded. I'^s.ilr'.lsb. 

1 Section 103. If a discharge has been refused a debtor for the Diecharge of 

2 sole reason that the assent of the retjuisite majority of his creditors i!y a^ddent"^ 

3 has not been seasonal)ly obtained or filed, or for the reason that he oatV/"*"'^' 

4 has not taken the oath re(juired by the provisions of section eighty- J|°|' ^f^^ 

eight, the judge, upon petition by the debtor within two years after isso, 24h,'§4. 

6 the date of the assignment and with the written assent of a majorit}', le's'iiia'se. 232.' 

7 or, in case of his second iiisolvenc}-, of three-fourths in number and 
cS value of the creditors who have proved their claims, may, if the 
9 debtor takes the oath and obe3's all lawful orders of the court, grant 

1(> his discharge, if after notice and a hearing, he finds that the failure to 

11 olitaiii or file the assent was caused by accident or mistake or other 

12 sufficient cause and hy no feult of his own, or that the omission to 

13 take the oath was owing to his inability by reason of illness, acci- 

14 dent or mistake to attend and take such oath. 

1 Section 104. The debtor or the assignee may, \vithin ten days Appeal on 

2 after the decision of the judge upon the question of granting the [llseba'rge" 

3 certificate of discharge to a debtor, upon notice to the register to J^; jjjf ; | ji 

4 be entered with the record of proceedings, appeal from such decision p|; Js^'fli' 

5 to the superior court. The appeal shall be entered at the return isss, 384, § 5. 



1452 



COURTS OF INSOLVENCY, 



[Chap. 1()3. 



11 Gray, 184. 
7 AlU-u, 112. 
13-2 Mass. 4«i. 
177 Mass. 5.s(t. 



day next after the expiration of fourteen da3-.s from the time of 
claiming it. If the appellant in writing waives hi.s appeal before 
the entry thereof, proceedings may be had in the court of insolvency 
as if no appeal had been taken. 



Proceedings. 
lt<3f*, 1B3, § s. 
G. .S. 118, § SB. 
18M, 254. 
P. S. 157, § 92. 



Section 10"). The superior court shall, upon demand in writing 
filed with the clerk by the debtor, the assignee or a creditor, frame 
issues of fact for trial by jury, which shall be tried as nearly as may 
be as an action at law ; otherwise the appeal shall be heard and de- 
termined by the court. The assignee or a creditor may appear and 
object to the allowance of the certificate. If upon a hearing the 
court finds that the debtor has made a full disclosure and deli\(Ty 
of all his estate as herein re(iuired, and that he ha.s conformed to the 
provisions of this chapter, it shall cause a certificate tliereof .sub- 
stantially as pro\ided in section ninety-two to be made under its 
seal, signed by the clerk and delivered to the debtor. 



.) 
(> 

7 

;) 

10 
11 



MATTERS AVOIDING DISCHARGE. 



184S, 
1 



Forfeiture of 

discharjre by 

fraud of cred. 

itor. 

183.S, 1(;3, § 10. 

1841, 124, 5 3. 

1844, 178, § 8. 

' ^ 304, § 9. 

2.^4, § 31. 
IS.>, .-,4. 
G. .S. 118, §87. 
1881, 235, § 2. 
P. S. 157, § 93. 
1886, 322. 
1898, 465. 
8 Jtet. 490. 
8 Gush. 103, 377 

12 Cusb. n'M. 

5 Allen, 124. 

6 Allen, 327. 
il Allen, 555. 

13 Allen, 182. 
128 M:iss. 124 
132 Muss. 233 
136 Mass. 38, 
:M0. 

16B Mass. 379 



Section 106. A discharge shall not be granted or be valid, if 1 

the debtor has wilfully sworn falsel}- to a material fact in the pro- 2 

ceedings, or if he has fi-audulently concealed any part of his prop- 3 

erty or anj' books or ^\'ritings relati\e thereto ; or has made a 4 

fraudulent payment, gift, tran.sfer, conveyance or assignment of 5 

any part of his property, or spent any part thereof in gaming; or 6 

if, within six months before the filing of the petition b}" or against 7 

him, he has obtained on credit from a person any property or other S 

thing of value, with intent not to pay therefor ; or has procured his H 

■ property to be attached, sequestered or seized on execution ; or has 10 

destroyed, altered, mutilated or falsified any of Ms books, docu- 11 

ments, papers, writings or securities or has made or been privy to 12 

the making of any false or fraudulent entry in a book of account KJ 

or other document with intent to defraud his creditors ; or with in- 1-4 

tent to defraud his creditors has expended, invested or used any Li 

part of his property in the erection, alteration, repaii- or location of l(i 

a building, portion of a building, structure or other object, on land 17 

owned or leased wholly or in part by another so that it cannot be 18 

lawfully removed ; or has removed himself or removed or caused to 19 

be removed any part of his property from the commonwealth Mith 20 

intent to defraud his creditors; or if, having knowledge that a per- 21 

son has proved a false claim against his estate, he lias not disclosed 22 

the same to his assignee 'witiiin one month after such knowledije : 2.> 

or, except as jirovided in the following section, if, being a merchant 24 

or tradesman, he has not kept proper books of account. A dis- 25 

charge shall be void if the debtor or a person in his behalf has 2() 

procured the assent of a creditor thereto by a pecuniary consider- 27 

ation. 28 



Dis<*barp:e 

wlien liuoks of 

aceonnt nut 

l<e|it. 

1894, 496. 

11 .\lleli, Mii. 



Section 107. If the sole reason for not granting a discharge to 1 

a debtor is that ho has not kept proper books of account and if no 2 

fraud is proved and the debtor has never been discharged in insol- ;? 

vency, the judge may after the expiration of six months from the 4 

date of the assignment giiint his discharge if the total amount of the .") 

claims proved do not exceed five thousand doUar.s and two-thirds in i! 



Chap. 1G3.] courts of insolvency. , 14:53 

7 number and a majority in value of the creditors who have proved 

8 theh' clamis assent thereto in writino'. 

o 

1 Section 108. If a person, in contemplation of becoming insol- ^'^^J'^rse 

If.,.. Ti ..1 avoided by 

2 vent and ot obtainino; a discharge in insolvency, makes a payment, ftauduient 

, ij' pi'cfereuce 

3 pledge, assignment, transfer or convej^ance of any part of his prop- i838, i63, § lo. 

4 erty, directl}' or indirectly, absolutely or conditionally, for the i85k| 284| f Is. 

5 purpose of preferring a creditor or person who has a claim against p; |; ll~i | yf; 

6 liim, or is or ma}^ be under any liability for him, or for the purpose s^et. 62, 377. 

7 of preventing the property from coming to the hands of his assignee 

8 in insolvency, or from being distributed under the laws relative to 
It insolvency in satisfaction of his debts, he shall not be entitled to a 

10 discharge, and a discharge, if received 'by him, shall be void. 

1 Section 109. A creditor whose debt was proved or provable -how con- 

2 against an estate may, within two years after the date of a certificate W7vi'', §*■ 

3 of discharge, applj^ by petition to the court which granted it to annul nsliaBs'. Ilf." 

4 the same, on the ground that it was fraudulently obtained, specif}'- 

5 ing all acts mentioned in section one hundred and six relied on 

6 in avoidance, and no evidence shall be admitted as to any other of 

7 such acts ; but the petition may be amended in the discretion of 

8 the court. If after notice to the debtor and a hearing the fraudu- 

9 lent acts charged or any of them are proved and the court finds that 

10 the creditor had no knowledge thereof until after the granting of 

11 the discharge, it shall be annulled ; otherwise it shall not be afl'ected 

12 thereby. 

prefekences. 

1 Section 110. If a person who is insolvent or in contemplation rrauduient 

2 of insolvency, within six months before the filing of the petition by i?3^,"k3*^§ in. 

3 or against him, for the purpose of preferring a creditor or person issel Mtl I/25, 

4 who has a claim against him or Mdio is under any liabilit}^ for liini, |?g jjg .gg 

5 prociu-es any part of his property to be attached, sequestered or ?jyf t^m'o* *' 

6 seized on execution, or makes a pajauent, pledge, assignment, 2 cusii. le'o. 

7 transfer or other conve3'ance of any part of his property, either 3 Grayi 6»s. 

8 dii'ectljr or indirectly, absolutely or conditionally, the person re- 6 GrayJ loo! 

9 ceiving such payment, pledge, assignment, transfer or conveyance, lo'AUen"!)!. 

10 or to be benefited thereby, having reasonable cause to believe such J,J 1^'.,'™;^^^ 

11 person is insolvent or in contemplation of insolvency and that such JIJ^ ji"*"*' j2o' 

12 payment, pledge, assignment, or conve3'ance is made in fraud of isiMass. sw. 

13 the laws relative to insolvency, it shall be void ; and the assignees 135 Mass! aia 

14 may recover the property or the value thereof from the pei'son so uijiMssin.' 

15 receiving it or so to be benefited. isi Mass. 142. l4lMa88;69^ 

152 Mass. 249. 15!( Mass. 3fi5. 166 Mass. .323. 171 Mass. 74, 341. 507. 

l.WMasB. 242. 161 Mass. 274. 168 Mass. 401. 177 Mass. 257. 

156 Mass. 114. 164 Mass. 182. 169 Mass. 291. 164 U.S. 347. 

1 Section 111. If a person who is insolvent or in contemplation Fraudulent 

2 of insolvency, within six months before the filing of the petition by is56,%?4r§ 27. 

3 or against him, except as provided in section thirtv-eight, makes p.'l.'isT^'lys." 

4 a sale, assignment, transfer or other conversance of any part of his g^!!™'!^. 

5 property to a person having reasonable cause to believe him in.sol- J|,^"''"' i'^- 

6 vent or in contemplation of insolvency, and that such sale, as- 13.5 Mass. 299. 

. 139 Mass. 566. 

7 signment, transfer or other conveyance is made in order to prevent 142 Mass! sis! 



the property from coming to his assignee in insolvency, or to 



147 Ma 86. .388, 
510. 



1454 



COLKT.S OK INSOLVENCY. 



[Chap. 1(53. 



148 Mass. 48. 

I.i3 Mass. 243, 

50-2. 

l.iSI Muss. -271, 

3i;."i, 4!IJi. 

171 Mass. 341. 

Iti4 U. .S.347. 



pfeveut it from being distributed under the laws relative to in- ii 

solvency, or to defeat the object of, or to impair, hinder, impede or 10 

delay the operation and efl'ect of, or to evade, any of said provi- 11 

sions, the sale, assignment, transfer or other conveyance shall be 12 

void, and the assignee may recover the property or the value thereof 13 

as assets of the estate. If such sale, assignment, transfer or con- 14 

ve3'ance is not made in the usual and ordinary course of business 15 

of the debtor, that fact shall be prima facie evidence of such cause 16 

of belief. 17 



;™'edfng''se"' SECTION 112. The provlsions of 
','""^-,„ .„- shall not apply to a payment of monev 

iS-oti, 284, § 2o. A 1 */ X */ b 

G. s. 11!*, § s)o. payment, not exceeding twenty-five dollars in amount, upon a debt 
contracted for necessaries furnished to the debtor or his family. 



1*. S. 157, § 97, 



the six preceding sections 1 
or transfer of property in 2 

3 
4 



ALLOWANCE AND SURPLUS. 



Allowance to 

(Iflitor. 

1838, 113, §§ 6, 8 

(i. S. 118, § 92. 

P. S. ir>7, § 99. 

W8S, 67. 

8 Cush. 109. 

160 Mass. 232. 



The debtor shall receive from the assignee one 



Section 113 
dollar a day for his attendance upon the court or the assignee if 
required under the provisions of section eighty-two. He shall also 
be allowed out of his estate, for the necessary support of hmiself 
and family, such amount not exceeding the x-ate of three dollars a 
week for each member of his famih% and for such time not exceed- 
ing two months, as the court orders. A debtor Avho is discharged 
shall be allowed five per cent on the net proceeds of all his estate 
received by the assignee, if such net proceeds after such allowance 
is sufficient to pay the creditors entitled to a dividend the amount 
of fifty per cent on their debts : but the allowance shall not exceed 
in all five hundred dollars. In case of the absence of the debtor or 
his failure to appl}' for either of said allowances the judge may 
allow the same amount to his wife or anj^ minor child or children 
of the debtor. 



1 

2 

3 

4 

5 

6 

7 

8 

1) 

10 

11 

12 

13 

14 

15 



— how paid In 
rase of death. 
1838, 163, § 6. 
G. S. 118, § 93. 
P. S. 157, § 100. 



Section 114. If an allowance to the debtor on the net proceeds 1 

of his estate becomes due and is not paid to him in his lifetime, it 2 

shall be paid to his executor or admin isti'ator, and be disposed of in 3 

like manner as other property of which he may be possessed at his 4 

decease. 5 



nmi'roecUo'''' SECTION 115. If aftcr the payment of all debts proved a sur- 1 

i''',''.'".'.-, c ,., plus remains in the hands of the assignee, it shall be paid or re- 2 

183>, IW, § 13. * -IT ^1 • 1 1 . rt 

U.S. lis, §94. conveyed to or revest in the debtor or his legal representatives. 3 

p. S. 157, § 101. 6 Met. 203. 



Accounts. 
18:i8, \Si, § 12. 
<;. s. us, §95. 
1862, 179, § 6. 
P. S. 1.57, § 102. 
1884, 126. 
10 Cush. 173, 
498. 

6 Gray, 366. 
14 Gray, 154. 



ACCOUNTS AND DIVIDENDS. 

Section llfi. At the third meeting the assignee shall exhibit 1 

under oath to the court and creditors present fair and just accounts 2 

of all his receij)ts and payments relative to the estate, and may be 3 

examined relative thereto by the court. If there are two or more 4 

joint assignees their accounts may be allowed upon the oath of one 5 

of them. The notice of the third and all subsei|uent meetings of 6 

creditors shall contain a statement that the accounts of the assignee 7 

will be presented, and that creditors may appear and object to the 8 



Chap. 163.] courts of insolvency. 14:55 

9 allowance thereof. Special notice of the presentation of accounts 

10 ma}' be ordered at otlier times by the court to be given in such 

11 manner as it orders. In all cases the judge shall pass upon the 

12 reasonableness of the accounts of assignees, although no creditor 

13 appears to object. 

1 Section 117. The judge shall at said third meeting order a div- Dividend. 

2 idend of the propertj', or a part thereof, among the creditors who G^^'/iS.llfs. 

3 have proved their claims, in proportion to their respective debts ; p.™'. ^7' 1 103. 

4 but, at any time after the assignment, upon request of the assignee sAUen, sis. 

5 or a creditor, and upon notice to the creditors and assignee, the 

6 judge may order the payment, in whole or in part, of claims entitled 

7 to priority or preference under the provisions of this chapter. 

1 Section 118. In the order for a dividend under the provisions preferred 

2 of the preceding section, the following claims shall be first paid in iJss^ibs, 51 12, 



o 



full in the following order : — j^i^^ 124, §6. 



4 First, The twenty-five dollars or expense of publication as pro- J^^jJ- :;J|- .,^ 

!) vided in section one hundred and seventy paid b}' a creditor and iffi*! ii"' 

(! the legal fees, paid by him, of an officer for the service of the %'."' _ 

7 order of notice to the debtor upon the original petition and for the iki,'§ii ' 



8 service of a writ of injunction issued to restrain the transfer or dis- p.'s'. i5^,^§§im, 

9 position of any part of the debtor's property, not exempt from |^4:_ .j;,^^ ^^ g_g 

10 attachment, and from an}' interference therewith. is^Gra'^Kiv 

11 Second, The legal fees of the messenger. issMase.ga. 

12 Third, Debts due to the United States, and debts due to and i^o Mass. iso. 

13 ta.xes assessed by this commonwealth, or a county, city or town 

14 therein. 

15 Fourth, Wages, to an amount not exceeding one hundred dollars, 

16 due to a clerk, servant or operative for labor performed within one 

17 year last preceding the fii\st publication of the notice, or for labor 

18 for the recovery of payment for \vhich an action commenced witliin 

19 one year after the performance thereof is pending, or has terminated 

20 mthin one year from said first pul)lieation. 

21 Fifth, Debts duo to physicians for medical attendance on the 

22 debtor or his family, rendered within six months prior to the insti- 

23 tution of proceedings in insolvency, to an amount not exceeding 

24 fifty dollars. 

25 Sixth, Debts due to persons who by the laws of the United States 
2G or of this commonwealth are or may be entitled to a priority or 

27 preference in like manner as if this chapter had not been enacted. 

28 Seventh, Other legfil fees, costs and expenses of suit, and for 152 Mass. sob. 

29 the custody of the property proved as preferred under the pro- 

30 visions of section one hundred and seventy -four. 

1 Section 119. Upon petition by a creditor upon whose petition Allowance to 

2 a warrant lias issued against a debtor and after notice to such debtor .'•mm'oi'for 

3 and his assignee, if any, the court may allow as a preferred clahii ^;^'^™sei fees, 

4 again.st the estate such amount as said creditor has actually paid for 1^^"' i^^- 

5 his expenses and for counsel fees incurred for services rendered 

6 upon such petition and in the legal proceedings connected there- 

7 with prior to the issuing of the warrant. Such petition shall be 

8 verified by the oath of the creditor and of the counsel to whom such 

9 money was paid. 



1456 



COURTS OF INSOLVENCY. 



[Chap. 163. 



Wi'fc'e|^dueto SECTION 120. The estatc shall be liable for wages due to an 1 

from au opera- operative from another operative who has contracted or asreed to 2 

uniier contract, do Certain Specified work for the debtor, to the amount of one hun- 3 

p.'s'.W, §105. dred dollars, for labor actually performed on such work within one 4 

year last preceding the first publication of the notice, and in the 5 

division of the estate such wages shall have the priority given to 6 

wages due to operatives under the provisions of the preceding sec- 7 

tion ; but all payments under the provisions of this section shall be 8 

charged to the account of the operative ^vho, as principal has con- 9 

tracted or agreed to do the work, and such payments, and the 10 

liability herein imposed, shall not exceed the amount due such 11 

principal operative for such work performed within the time here- 12 

inbefore mentioned. The provisions of this section shall not ajiply 13 

to cases within the provisions of sections one hundred and sixty-four 14 

to one hundred and sixty-eight, inclusive, of chapter one hundred 15 

and eleven. 16 



Reservation 
for absent 
creditors. 
1838, i(13, § 12. 
G. S. 118, § 97. 
P. S. 157, § 106. 



Section 121. If at the time of ordering the dividend it appears 1 

probable that there are just claims against the estate which for 2 

.sufficient reason have not been proved, the judge in ordering the 3 

dividend shall leave in the hands of the assignee an amount suffi- 4 

cient to pay every such absent creditor a proportion equal to what 5 

shall be then paid to the other creditors. Such amount shall re- 6 

main thus unappropriated in the hands of the assignee until the 7 

final dividend is declared, or until the judge orders its distribution. 8 



Unclaimed 
dividends. 
1883, -242. 
1897, 303, § 1. 



Section 122. If a dividend, which the judge has declared or 1 

which has become pa3'able to a creditor who has proved his claim 2 

under a composition confirmed by the court remains for six months 3 

unclaimed, the assignee or, in a case of composition, the register, 4 

may deposit it in a savings bank or other like institution or invest 5 

it in bank stock or other stocks, as the court may order, to accu- 6 

inulate for the benefit of the person entitled thereto. Such deposit 7 

or investment .shall be made in the name of the judge and shall be 8 

subject to his order and that of his successors in office as hereinafter 9 

provided. The person who makes such deposit or investment shall 10 

file in court a memorandum thereof, with the original certificate or 11 

other evidence of title thereto, which shall be allowed as a voucher 12 

for such payment. When the person entitled to the money de- 13 

posited has satisfied the judgx; of his right to receive the same, he 14 

shall cause it to be transferred and paid over to him. 15 



Unclaimed 
deposits. 
1897, 303, § 2. 



Section 123. If money deposited with a register to secure the 1 

payment of fees or to carry out a composition confirmed by the 2 

court remains unclaimed for one year after the depositor or other 3 

person is entitled to receive it, the register may, under the direc- 4 

tion of the judge, deposit it in a savings bank or invest it in the 5 

manner and subject to the provisions of the preceding section. 6 



Second 
dividend. 
Assignee's 
acconnts. 
1S3.<, im, § 13. 
G. S. lis, « 98. 
P. S. 157, § 107. 



Section 124. The assignee shall, at such time as the judge 1 

orders within eighteen months after his appointment, declare a sec- 2 

ond dividend of tiie estate, if the property was not wholly distrib- 3 

uted upon the first dividend, and shall give notice of a meeting of 4 

all the creditors of the debtor for such purpose. At such meeting 5 



Chap. IG;^.] courts of insolvency. IttoT 

6 the accounts of the assignee shall be produced and exanihied as 

7 provided in section one hundred and sixteen and settled by the 

8 court ; and any balance appearing to be in the hands of tlie assignee 
it shall, by order of the judge be divided among all the creditors who 

10 have proved their debts, in proportion thereto. 

1 Section 125. If at any time before the final dividend any out- saie, etc.. of 

-.ii- -iii 1 ii 11 • ,1 outetandmg 

2 standing debts or other property due or belonging to the estate debts, eu:. 

3 which cannot in the opinion of the court be collected and received g.s. U8, §99. 

4 by the assignee without unreasonable or inconvenient delay, re- p- ''■ i^'- 5 ws- 

5 main in the hands of the assignee he may under the direction of the 

6 court sell and assign such debts or other property in such manner 

7 as the court orders. 

1 Section 126. An action upon a claim sold by an assignee shall A'"""" ".^ ^ 

1 */ o claims sola by 

2 'be brought in the name of the purchaser. The fact of sale and of asBiguees. 

3 i^urchase by the plaintifl" shall be set forth in the writ, and the wss), 194. 

('S11HS1 fin 

4 defendant may avail himself of any matter of defence of which he p.' s.' 157,' § 109.' 

5 could have availed liimself in an action upon the claim by the as- 3Aiien;99^' 

6 signee. Costs in such actions shall be recovered by or against the iesMalliTo'' 

7 plaintifl', and the assignee shall not be liable therefor. 

1 Section 127. The second dividend shall be final; but if an Further 

2 action relative to the estate is then pending or part of the estate is Msfii's^lis. 

3 outstanding or other property of the debtor afterward comes to the p.' s.' 157,' | no! 
i hands of the assignee, another dividend shall be made by order of 

5 the judge. Further dividends shall be made in like manner as 
(j often as occasion requires. 

1 Section 128. No creditor whose debt is proved at the time of de^/mHto'be 

2 the second or any subsequent dividend shall disturb a prior dividend, disturbed. 

3 but he shall be paid so lar only as the lunds remaining unappropri- g. s. ii^ § 102. 

4 ated in the hands of the assignee are sufficient therefor. • • 3^ 

petition by creditors. 

1 Section 129. If a person arrested on mesne process in a civil fredUOTs^^ 
action for the amount of one hundred dollars or more founded upon J'^^ i''^- \p- 



9 

3 a clahu provable against the estate of an insolvent debtor, has not ii7i3- 

i O ' lwr,l 1 



4 given bail therein on or before the return day of such process, or issel 284; §§ -is, 

5 has been actually imprisoned thereon for more than thu-ty davs ;?■'.' s. 118, § 103. 
fi or if a person whose propert}' has been attached on mesne process ihhI' Ili]; § I' 

7 in such action founded upon such contract has not before the return p**J;'™' 5112 

8 day of such process dissolved the attachment as provided by law ; j*i;J!Mfi,''so 

9 or if a person has removed hunself or an}^ part of Ms property from i':i'^';f/- 

10 the commonwealth, with intent to defraud his creditors; or has 2 jieit sfa. 

11 concealed himself to avoid arrest, or an}' part of his property to 1! cusiii^'iui. 

1 2 prevent its being attached or taken on a legal process ; or pro- * qI^\ 1™; ' 

13 cured his arrest or his property to be attached or taken on legal gj^™^!'|'i2' 

14 process ; or made a fraudulent payment, conveyance or transfer of "^[i^^'^if, 

15 any part of his property; or, being a banker, broker, merchant, i-'s Mass. 120. 

16 trader, manufacturer, contractor, builder or miner, has fraudu- uiiMassisss'. 

17 lently stopped payment, or has stopped or suspended and not re- lesMaslim; 



1458 



COURTS OF INSOLVENCY. 



[Chap. 1(;;5. 



sumed payment of his commercial paper \\'itliiii fourteen days ; any 18 

of his creditors whose claims provable against his estate amount to IS) 

one hundred dollars, may, witliin ninety days thereafter, or, in the 20 

case of any such fi'audulcnt conveyance of land, within ninety daj's 21 

after it has been recorded, if the debtor has resided in the common- 22 

wealth within one year, file a petition under oath in the court of 23 

insolvency for the count}', if any, in which the debtor has last 24 

resided or had a usual place of business for tlu'ce consecutive months 2.5 

before the filing of said petition, otherwise in the court for the 2(> 

county in which he resides or last resided, or has or has had a usual 27 

place of business, stating the facts and the nature of their claims 28 

and praying that his property may be seized and distributed accord- 2S» 

ing to the provisions of this chapter. 30 



Notice of peti- 
tion, etc. 

1879, 245, § 7. 

1880, 246, § 2. 

1881, 235, § 3. 
P. S. 157, § 113. 



Section 130. The register shall cause notice of the filing of 1 

such petition to be published twice in not more than two news- 2 

papers, and shall forthwith make and file a certificate of the fact 3 

and date of publication. The actual expense of such publication 4 

shall be paid from the amount deposited by the creditor therefor ,') 

as provided in section one hundred and seventy ; but a hearing (5 

upon the petition may be had or a warrant issued thereon prior to 7 

the completion of the publication of said notice. The court may, 8 

after the commencement of proceedings by or against the debtor 9 

and before the hearing upon the petition, by injunction restrain the 10 

debtor and any other person from making, transferring or disposing 11 

of any part of the debtor's property' not exempt from attachment, 12 

and from any interference therewith ; and if pi'obablc cause appears 13 

for believing that the debtor is about to conceal or remove from the 14 

commonwealth his property or his evidence of property, or any 15 

part thereof or to make a fraudulent conveyance or disposition 1(> 

thereof, the judge may issue a warrant under his hand to the sheriff 17 

of the county or one of his deputies, ordering him forthwith as mes- 18 

senger to take possession of all the propert}^ of the debtor, not lit 

exempt from attachment, and safely keep it until the further order 20 

of the court. 21 



Warrant. 
Proceedings 
thereon. 
1838, 1(13, § li). 
G. S. lie, § 104. 
P. S. 157, § 114. 
6 Met. 518. 
4 CuBh. 121. 
8 Gray, 316. 



Section 131. If, after notice of the petition to the debtor by a 1 

cop3' thereof served upon him pcrsonall}^ or left at his last and 2 

usual place of abode, and a hearing of the petitioner and debtor, or 3 

a default b}' the debtor to appear in pursuance of .said notice, the 4 

court finds the facts stated in the petition to be true, the judge shall 5 

forthwith issue a warrant to take possession of the property of the (5 

debtor. The warrant shall be du'ccted, and the property of the 7 

debtor shall be thereupon taken and distributed in like manner and 8 

Avith proceedings similar to those herein provided in case of volun- i) 

tary petitions. 10 



stay of 
proceedings. 
1851, 189, § 3. 
G. S. 118, § 105. 
1880, 246, § (i. 
P. .S. I.'i7, § 115. 
1SU4, 139. 
163 Maes. 171. 



Section 132. If a person or corporation has committed an act 
of insolvency from which he or it should be ecjuitabl}' relieved, the 
court may upon petition by him or it, with or without notice to the 
petitioning creditor, stay proceedings in insolvency and if, upon a 
hearing, it finds that he or it is solvent or that the proceedings 
ought to be stayed it may dismiss the petition in insolvency. 



1 
2 
3 
4 
o 
G 



Chap. 163.] courts of insolvency. 14:59 

petition by creditors of insane persons. 

1 Section 133. Any of the creditors of an insolvent insane per- Petition by 

2 son, whose claims provable against his estate amount to one hundred fuLie ifereou. 

3 dollars, may file a petition under oath in the court of iusolvenc}' ihs'i'i Ib! ^^ '' *' 

4 for the county, if anj^ in which the debtor has last resided or had l^'g^'^'s'la"''' 

5 a usual place of business for three consecutive months before the 

6 filing of said petition, otherwise in the court for the county in ^vhich 

7 he resides, or has a usual place of business, stating his insolvency 

8 and the nature of their claims, and praying that his property may 
it be seized and distributed according to the provisions of this chapter. 

10 If after public notice and the appointment of a guardian ad litem 

11 for such insane person, and a hearing, the court finds that the 

12 intex'ests of the debtor and creditors so require, the judge may 

13 issue a warrant to take possession of the property of the debtor 

14 and thereupon like proceedings shall be had as in the settlement 

15 of estates of other insolvent debtors. 

1 Section 134. In such case, the schedules of creditors and of fiSl?i^'^Y7^§'2. 

2 propert}^ required by the provisions of this chapter shall be made ^'- '^- ^^"> § n'- 

3 and filed by the messenger, upon his best information and belief. 

4 The debtor shall not be required to attend at any meeting of cred- 

5 itors nor be subject to examination, unless ordered by the court. 

1 Section 135. Within six months after recovering from his in- Debtor, after 

2 sanity, the debtor may petition the court for a discharge from his from insality, 

3 debts, and shall thereupon be required to deliver to his assignee Sha'r!,^! '"' 

4 for the benefit of his creditors any property which was in his hands p^'s'.'lsV.liig. 

5 or possession or to which he was entitled at the tune of the filing 

6 of the original petition, and which had not come into the hands or 

7 possession of his assignee ; shall make a full disclosure thereof, and 

8 shall take and subscribe an oath that he ha.s so done ; shall submit 

9 himself to examination thereon, and may within tlu'ee months after 

10 the filing of Ms petition file the assent in Mriting to his discharge 

11 of a majority in number and value of his creditors who have proved 

12 theii" claims, as provided in section ninety-nine. If the court finds, 

13 at a meeting of the creditors called for the purpose, that he has 

14 made a full disclosure and delivery of his property as herein re- 

15 quired, that he has conformed to the provisions of this chapter so 

16 far as applicable and that his assets have paid fifty per cent of the 

17 claims proved against his estate, or that the assent in writing to his 

18 discharge of a majority in number and value of his creditors who 

19 have proved their claims has been filed, the judge shall grant liim a 

20 certificate, which shall state all fiduciary debts exempt from dis- 

21 charge and shall be in the form and have the effect provided by this 

22 chapter for discharges of other insolvent debtors. 

concealment of property. 

1 Section 136. A debtor who after notice of the filing of a peti- concealment, 

o _ r gtp _ of prop. 

2 tion by or against him secretes or conceals property belongmg to eity. 

J r^ . . ^ ~. 1856 2S4 5 30. 

3 his estate, or any books, deeds, documents or writings relative u. s. us, § loe. 

4 thereto, or removes or causes to be removed the same or any part 130 Mass. lea. ' 

5 thereof out of the commonwealth, or otherwise disposes of any part 



14G0 



COURTS OF INSOLVENCY. 



[Chap. 163. 



thereof, in order to prevent it from coming to the possession of the 6 

messenger or assignee, or to Iiinder, impede or dela}' either of them 7 

in recovering or receiving tlie same, or who malies a payment, gift, 8 

sale, assignment or otlier conveyance of propert}^ belonging to his 9 

estate ; or spends anj' part thereof in gaming, or otlierwise except 10 

such as may reasonably be expended for the support of himself and 1 1 

famil}', not exceeding the amount allowable by laM', shall be pun- 12 

ished by imprisonment in the state prison for not more than five 13 

years, or in jail for not more than two years. 14 



Petition by or 
against part- 
nerships. 
1838, 1(3, § 21. 
185B, 2.'*t, § 37. 
1858, i)3, § 10. 
G. S. 118, § 108. 
1881, 233. 
P. S. 157, § 120. 
1893, 405, § 4. 
18',t4, 30. 

2 Cush. 175. 
4 Cush. 127. 
6 Cuell. 224. 
11 Cush. 236. 

3 Grav, &'.), .542. 
3 Allen, .554. 
101 MUBS. 300. 
148 Mass. 2fi!). 
167 Maes. 123. 



PARTNERSHIPS. 

Section 137. Upon petition by one or more partners who are 1 

insolvent to the court for the county, if any, in which the part- 2 

nership has last had a usual place of business for tliree con.secutive 3 

months before the filing of such petition, otherwise to the court for 4 

the county in which it has or last had a usual place of business, .") 

after notice to the other partners if within the commonwealth, or (i 

upon petition by a creditor of the partners, the judge may issue a 7 

warrant as provided in this chapter, upon which the proi)erty of the H 

firm and the separate estate of each of the partners, not exempt 9 

from attachment, shall be taken, and the creditors of the firm and 10 

the separate creditors of each partner may prove their respective 11 

debts. 12 



Choice of as- 
Blgnee; joint 
ami separate 
property. 
1838, 163, § 21. 
G.S. 118, § 109. 
P. S. 157, § 121. 
4 Cush. 99. 
10 Cush. 458. 
fi Gray, 574. 
10 Gray, 254, 
260i 263. 
13 Griiy, 115, 
4«5. 

148 Mass. 269. 
160 Mass. 171. 
1(3 Mass. :i52. 

165 Mass. 312. 

166 Mass. 379. 
177 Mass. 62. 



Section 138. The as.signee shall be chosen by the creditors of 1 

the firm and shall keep sejiarate accounts of the joint propert}' of 2 

the firm, and of the separate estate of each member thereof; and 3 

after deducting from the whole amount received by him the total 4 

expenses and disbursements paid, the net proceeds of such joint 5 

property shall be appropriated to pay the creditors of the firm, and ti 

the net proceeds of tlie separate estate of each partner shall be ap- 7 

propriated to i)ay his separate creditors. If there is a balance of 8 

the separate estate of a partner after the payment of his separate 9 

debts, it shall be added to such joint property for the payment of 10 

the firm creditors. If there is a balance of such joint property after 11 

the payment of the firm debts, it shall be divided and appropri- 12 

ated to and among the separate estates of the several partners ac- 13 

cording to their respective rights and interests therein, and as it 14 

would have been if the partnership had been dissolved without l.'i 

insolvency ; and the amount so appropriated to the separate estate l(i 

of each partner shall be applied to the payment of his separate 17 

debts. 18 



Ijimitcil 
i)artner8hips. 
I.SiS, 1(3, § 22. 
G.S. 118, § 110. 
P. S. 157, § 122. 
101 Mass. 300. 



Section 139. The provisions of the two preceding sections 1 

shall apply to insolvent limited partnerships formed under the pro- 2 

visions of chapter seventy-one or the corresponding provisions of 3 

earlier laws ; but the separate estates and separate debts of the 4 

special partners shall not be subject to the proceedings against the 5 

partnership. 6 



ffP?";^'"^!!?"' Section 140. Each partner shall be entitled to allowance as 1 
partner. hereinbefore provided for the maintenance of himself and family ; 2 



Chai'. 1(!;3.] courts of insolvency. liGl 

3 and the allowance from the net proceeds of the estates as provided J|^| \^! Yhi 

4 in section one hundred and thirteen shall be computed on the firm p- *• J57,' § 123. 

S tills ll 104 

5 estate and also on each of the separate estates as if there had been les Mass. 295. 

6 a separate warrant against eacli ; but none of the partners shall re- 

7 ceive in all more than five hundred dollars. 

1 Section 141. The certificate of discharge shall be granted or certificate of 

2 refused to each partner as it would or ought to be if the proceed- eir'h''i',!if?nl*'r. 

3 ings liad been against hun alone ; otherwise the proceedings against G\'^'.'i''ii',Vn-2. 

4 partners shall be the same as against an individual. scusb.eis. r. s. 157, § 1-24. 

1 Section 142. If upon the dissolution of a partnership, one or proof of part- 

2 more of the partners or a new partnership formed by the addition ""ifmeci by*^ 

3 of new members has agreed to pay any outstanding debts of sucli pHrunrs^et.-. 

4 partnership, or if a person or firm, in consideration of the receipt or \f'^^ ^i^'tVm,' 

5 transfer of property, has agreed to pay any outstanding debts of j*_, '. 

() the person from whom such propert}' was received or transferred, sAiie'ri/nTM.' 

7 and the person agreeing to pay has become insolvent, such debts 166 Mass. 376. 

8 may, if the creditors so elect, be proved against the estate of such 

9 insolvent debtor or debtors, and the proof and allowance thereof 

10 shall discharge the person originally liable therefor. If the original 

11 debtor, in either of such cases has been compelled to pay the debt 

12 so agreed to be paid, he may prove tlie amount so paid as the 

13 original creditor might have done. 

corporations. 

1 Section 143. A domestic corporation or a foreign corporation petition by 

2 mentioned in section four of chapter one hundred and twenty-six, iS5?,"327!§'§'f,-2, 

3 except raih'oad and banking corporations and foreign insurance ggnf^gjug^ 

4 companies, may file a petition signed by an officer duly authorized },'*;, ,^. ^^ j.,. 

5 by a vote of a majorit}- of the corporators present and voting at a J*- ' ^ 

6 legal meetinof called for the purpose, in the court for the countv is Aiieu' 10s. 

o . , . 1()7 MaeB 28 

7 in which the corporation has its principal place of business, stating 172 Mass! lai. 

8 its inability to pay its debts and its willingness to assign its i)rop- 

9 erty for the benefit of its creditors, and praying tiiat such proceed- 

10 ings may be had as are hereinafter provided. The judge shall forth- 

11 with issue a warrant, as upon a petition b}' a debtor under the 

12 provisions of -section twenty, which shall require tliat the notice 

13 given by the messenger shall state further that the making of any 

14 contract by the corporation is forbidden by law. The proceedings 

15 thereon, except as hereinafter provided, shall be the same as upon 

16 the petition of a natural person, and in the case of foreign cor- 

17 porations shall apply only to property of the corporation within the 

18 commonwealth and the oath provided for in section one hundred 

19 and forty-five shall be modified in accordance herewith. 

1 Section 144. Claims on account of bills of exchange, indorse- ciaimsprov- 

2 ments, money due on bottomry or respondentia bonds or paid upon fasfdivmrnd. 

3 indorsements or as surety may be proved against an insolvent cor- J|!*k'n'^,|\i6. 

4 poration before the making of the last dividend, in like manner as ^^■sSJ'Jl'^' 

5 against the estate of an insolvent debtor before the making of the 152 iiass. 596. 

6 first dividend. 



14G2 



COUKTS OF INSOLVENCY. 



[Chap. lt)3. 



Scliedules. 
Duties, etc., 
oIUferB. 
1S5!, 327, §§ ■ 
G. S. IIS, ^ 1 
P. S. liiT, § l: 
ISIKI, 321, « 1. 
168 Muss. S2. 



of 



Section 14.5. The schedules to be furnished shall be prepared 1 

and furnished by the treasurer or other financial officer of the cor- 2 

poratiou, with such assistance from the other officers as he may 3 

require ; and the provisions of this chapter which apply to the 4 

debtor or set forth his duties relative to executing papei's, submit- o 

ting to examinations, disclosing, making over, secreting, conceal- (5 

ing, conveying, assigning or paying away his money or property, 7 

shall apj^ly to each officer of the corporation relative to the same 8 

matters concerning the corporation and the money and property 9 

thereof. Said officers shall at the second meeting severall}' make 10 

and subscribe an oath in substance as follows: — 11 



Oath. 



I,- 



— , (president, etc., or treasurer, etc.,) do swe.ar that I verily believe 
the account of the creditors of the corporation, contained in tlie schedule signed 
by A. B., and now on lile in court, is in all respects just and true; that 1 do 
verily believe that all the property and estate of said corporation, and all its 
books of account and papers, have been delivered to the messenger or the 
assignee ; and that if any goods or estate not so delivered hereafter come to nij' 
knowledge, I will faithfully and diligently apprise the assignee thereof. .\nd 
I do further swear that, to the best and utmost of my knowledge, infoi-mation 
and belief, there is no part of the estate or effects of said corporation made over 
or disposed of in any manner in fraud of the laws relative to insolvency or of 
the ci-editors of said corporation. 



Powers and 

duties of as- 
siijnee. 
1890, 321, § 2. 



Section 14(5. An assignee of a foreign corporation shall have 1 

like rights and duties as an assignee of a domestic corporation rela- 2 

tive to property within the conunonwealth or which may be put 3 

into his possession by said corporation. He shall as far as practi- 4 

cable so distribute the assets that all the creditors within or without .i 

the commonwealth shall receive proportionate dividends from the (i 

assets whether they are in the control of the assignee or not. The 7 

claims entitled to priority under the provisions of this chapter shall 8 

have like priority in the case of such corporations. 9 



La^^^amages SECTION 147. Claims against a corporation authorized to take 
ci!>im6._ land or materials for damages for such taking shall be preferred 

G. s. lis, § 119. claims, next after debts due to the United States and to the com- 

P. S. 157, § 133. ,,, 

mon wealth. 



Void prefer. 

ences. 

1S51, 327, § 9. 

(i.S. US, §§120, 

121. 

I'. S. lr,7, §§ 134, 

135. 

1(1 (irav, 243. 

121 Mass. 39'.). 



Section 148. The provisions of sections one hundi'cd and ten 
and one hundred and eleven shall apply to corporations subject to 
the provisions of this chapter, and an allowance or discharge shall 
not be granted to a corporation, nor to a person as officer or mem- 
ber thereof. 



1 
2 
3 
4 
5 



Petition by 

iTcditore. 

isil, 327, § 17. 

1S5«, iX4, § 25. 

G. S. 118, § 122. 

P. S. 157, § 130. 

1890, .321, § 1. 

1897. 124. 

IKJ Mass. 171, 

2.52. 

172 Mass. 166. 



Section 149. If a corporation described in section one hundred 
and forty-three whose property has been attached on mesne proces.s 
in a civil action founded on a contract for the amount of one hun- 
dred dollars or more, which is provable under the provisions of this 
chapter, has not within fourteen days from tlie return day of the 
\\Tit, dissolved the attachment as provided by law, or if such corpo- 
ration has removed any part of its property from the commonwealth, 
with intent to defraud its creditors, or conceals any part of its 
property to prevent its being attached or taken on legal process, or 
has procured its property to be attached or taken on legal process, 
or has made a fraudulent payment, conveyance or transfer of its 



1 
2 
3 
4 
5 
t> 
7 
8 
9 
10 
11 



Chap. 1(j3.] courts or in.soIjVency. 1463 

12 property or any part thereof, or has stopped or suspended and has 

13 not resumed paj luent of its commercial paper witliin fourteen days, 

14 any of its creditors whose claims provable against its estate amount 

15 to one hundred dollars may, within ninety days thereafter, file a 

16 petition under oath in the court for the county in which the corjDO- 

17 ration has its principal place of business, stating the facts and the 

18 nature of theu' claims, and praj'ing tliat its propert}^ or, if a foreign 

19 corporation, its property in the commonwealth, may be seized and 

20 distributed according to the provisions of this chapter : and thcre- 

21 upon, if after notice to a domestic corporation by serving on its 

22 president, treasurer or clerk, or to a foreign corporation by serving 

23 upon the commissioner of corporations, thu'ty daj's at least before 

24 the return day of the notice a copy of the petition, and a hearing 

25 or upon default of the corporation to api)ear at the time and place 
20 appointed in the notice, the court finds the facts stated in the peti- 

27 tion to be true, the judge shall forthwith issue a warrant to take 

28 possession of the property of tlie corporation or, if a foreign corpora- 

29 tion, of its property in the commonwealth; and thereupon like 

30 proceedings shall be had as upon a warrant issued upon the petition 

31 of a corporation. 

composition. 

1 Section 150. Instead of proceeding as required by the laws composition. 

2 relative to insolvency, an insolvent debtor or a domestic corpora- i897;247||i! 

3 tion subject to the provisions of this chapter having capital stock 

4 may obtain a discharge from his or its debts as hereinafter provided. 

1 Section 151. At any time after the filing of the petition by or proposal for 

2 against the debtor and the schedules re(iuh-ed b}" law, he may file a im^iH^f-l' 

3 written proposal for composition with his creditors, stating the 

4 amount of the proposed dividend, which shall be payable only in 

5 money, the date Mhen payable and the security to be given for 

6 such payments so far as deferred. Such proposal shall not be con- 

7 sidered unless it conforms to such requirements, nor unless it pro- 

8 vides for payment in full of all debts and charges entitled to 

9 priori t}'. 

1 Section 152. If the allegations of the petition appear to be stayofpro- 

2 true or if a warrant has been issued thereon, the court, upon the eourt^fic!'^ 

3 filing of the proposal for composition, may stay or suspend any \W>,'^i,ti. 

4 process or proceeding which would otherwise be reiiuired hy \a,w JesVass^sr 

5 and ma}- make appropriate orders relative thereto or to the custody lesMass. loo. 
(i of tlie estate. It sliall order a hearing on such proposal or a modi- 

7 fication thereof under the provisions of section one hundred and 

8 fiftv-six, of which the register shall send notice by mail post paid 

9 to all known creditors not less than seven days before the day 

10 appointed therefor, stating the substance of the proposal or modi- 

11 fication thereof. 

1 Section 153. Books of account and papers of the debtor rel- pa*l^°"°ipe°^o 

2 ative to his estate shall until the final hearing on confirmation of iSi"o36'"iT' 

3 the composition be open at all reasonable times to examination by 

4 any creditor or his agent, and the court may enforce production 

5 thereof; and during such period tlie debtor or any other person 



1464 COUUTS OF INSOLVENCY. [C'lIAP. 163. 

may be examined by the court or by a creditor as provided by (5 

section eiglity-two. 7 

rppurabwf Section 154. Tlie provisions of sections thirty-one, thirty- 1 

is8s'?i5'li' tlu'ee, thirty-four, thirty-six, tliLrty-nine, forty, fortj'-one and forty- 2 

is: Mass. 175. tliree to forty-eight, inclusive, relative to debts and proof of claims, 3 

1(55 Mass! 5«5. shall apply to composition proceedings so far as applicable thereto ; 4 

but the proceedings shall not be stayed or suspended on account of 5 

an appeal from the allowance or rejection of a clahn. 6 

no^tfce of pro. SECTION IS.*). In Composition proceedings in wliich no Warrant 1 

Ko°.''';.,o . . has been issued the date of the notice by the register to the cred- 2 

1889, 406, § 1. itors of the debtor's proposal of composition shall have the same 3 

efl'ect relative to the proof of claims and the debtor's discharge as 4 

the date of the first publication of the issuing of the warrant in vol- 5 

untary proceedings in insolvency. 6 

^stenrff CTed. SECTION 15(). The debtor shall be present at the hearing and 1 

i*?,^^-,,. c. „ = niav then be examined by the court or by a creditor relative to his 2 

1884, 23fi, §§ 6-8. •■' .^ »■!* •ii>i 

1885, 358, §§ 2, 3. estatc, and other evidence may be onered. At any time beiore the 3 

i6i'iiae8. 554. hearing is closed the debtor may file any modification of his pro- 4 

posal which shall thereafter be considered the proposal. The hear- 5 

ing shall then be adjourned not less than seven days, and if at or (i 

before the day to which such or any subsequent adjournment is 7 

made the debtor files in court the written assent to the proposal 8 

of a majority in number and value of his creditors who have proved 9 

theu" claims if the same be for the pajanent of not less than fifty 10 

per cent to the general creditors, or if less than fifty per cent, 11 

of thi'ee-fourths in number and value of such creditors, the court 12 

shall at the hearing, or at a further adjournment thereof determine 13 

whether the composition shall be confiirmed, and any creditor may 14 

be heard thereon. Any matters which would prevent or avoid a 15 

discharge in insolvency may be considered in ascertaining the ex- 1(5 

pedicnc}' of confirming the same, but not as an absolute bar thereto. 17 

If the only objection thereto relates to the security for deferred 18 

payments, other security may then be ottered. No claim entitled 19 

to priority shall be counted nor shall a creditor whose claim is less 20 

than fifty dollai's be counted in the number of creditors. 21 

o?,™™o8Uion. Section 157. If the court finds that the composition has been 1 

\iit^ix, § 9 ^^^y assented to and is consistent with justice and for the interests 2 

i89o' 387'. of the creditors, it shall order the same to be confirmed ; and by 3 

147 M1188. 192. , 1,1,,.., . .,. 1-1 e 1 J 

160 Mass. 353. the Same order shall limit the time within which money tor casli 4 

171 Mass! ill! payments and vouchers and securities for deferred payments shall 5 

be deposited in court ; and upon such deposit within the time so 6 

limited therefor, the judge shall gi-ant to the debtor a certificate of 7 

discharge from his debts, which shall be substantially in the form 8 

and have the same effect as though obtained by the other proceed- it 

ings in insolvenc3^ It shall not be annulled for a cause which was 10 

brought to the notice of the court on the hearing for confirmation, 11 

or which was then known to the creditor petitioning to have the 12 

same annulled ; nor shall it bar the debt of a creditor whose name 13 

was fraudulently and wilfully omitted from the debtors schedule of 14 

creditors. But the debt of a creditor omitted therefrom by mistake 15 



Chap. 1(>3.] courts of insolvency. 1465 

1() onl}' or want of knowledge, shall be barred and he shall be entitled 

17 to and may recover against the debtor the amount of the dividend 

ly to which he would have been entitled in the composition proceed- 

19 ings. 

1 Section 158. If there are unsecured claims included in the unproved 

2 debtor's schedule of creditors which have not been proved at the S'^kV. 

3 time of the deposit, the deposit shall include a dividend at the rate 1™ Maes' 466' 

4 proposed on all such claims computed on the amount set forth in 
.') the schedule ; and after the expiration of five mouths and within 
(i six months from the time of the first hearing on the debtor's pro- 

7 posal for composition, the court shall order a hearing for the proof 

8 of such unproved claims, of which notice shall be given in like 

9 manner as of the previous hearings ; and upon proof and allowance 

10 thereof at such hearing, the court shall order dividends to be paid 

11 on all debts so proved at the rate allowed on debts formerly proved, 

12 and the money deposited on claims then remaining unproved shall 

13 then be refunded to the depositor. 

1 Section 159. Upon the granting of the discharge, the money. Disposition of 

2 vouchers and securities deposited in court shall be paid and deliv- SS!wge!''^"° 

3 ered by the register upon demand to the persons entitled thereto, ln5*iS\^' 

4 and all other property of the debtor shall revert to and revest in i"" Mass. 9. 

5 him ; and the court may order any necessary or proper release or 

6 reconveyance thereof by an assignee or trustee to whom the same 

7 may have been assigned or conve^'ed. 

1 Section 160. After the expiration of one 3' ear from the deposit Return of 

2 in court of the money, vouchers and securities, as provided in sec- i»%353,'§5. 

3 tion one hundred and fifty-seven, the court may, after notice by mail 

4 postpaid, to creditors who have not taken up their dividends, order 

5 all such money, vouchers and securities then remaining on deposit 
(5 in said court, to be paid and transferred to the depositor. 

1 Section 161. If the money for the cash payments and the Effectof 

2 vouchers and securities for deferred pa3'ments are not deposited in TOnH™8mon. 

3 court within the time limited by the order of confirmation , the case '*'^' '^^- ^ ^^■ 

4 shall proceed in insolvency, and the register shall deliver to the 

5 assignee all money and securities which are the propert}' of the 

6 debtor which shall have been deposited in court ; and all other 

7 securities and vouchers which shall have been so deposited shall be 

8 returned by the register to the persons who furnished or deposited 

9 the same or be otherwise disposed of as the judge may order. In 

10 such case the stay or suspension of other proceedings by reason of 

11 the attempted composition shall not aft'ect any rights, and the period 

12 of suspension shall be excluded in computing other periods of time 

13 provided by the laws relative to insolvency. 

1 Section 162. The provisions of this chapter shall not release stookhoider's 

2 an ofiicer or stockholder of a corporation from any liability under affe'ctea.'^°' 

3 the provisions of sections fifty-eight and fifty-nine of chapter one ^^^' '^'' ^ ^' 

4 hundred and ten, but if such corporation applies for a discharge 

5 as hereinbefore provided anj^ creditor may, at any time after the 

6 filing of the offer in composition, file a bill in equity in behalf 



14:GG 



COURTS OF INSOLVENCY. 



[Chap. KJB. 



of .himself and other creditors of the corporation, against it and all 7 

persons who were stockholders therein at the time of the filing of 8 

the petition in insolvency by or against the corporation, or against 9 

all the officers liable for its debts and contracts, for the recovery of 10 

tlie amounts due from the corporation to himself and the other 1] 

creditors for whicli tlic stoclvholders or officers ma}' be personally 12 

liable, by reason of any act or omission on its part or on that of its 13 

officers, stating the nature of his claim and the grounds upon which 14 

it is expected to charge the stoclvholders or officers personally, l.") 

It shall not be necessary to allege or prove a judgment against the 1(! 

corporation or the return of an execution unsatisfied. If the ground 17 

upon which it is expected to charge the officers of the corporation 18 

is an excess of debts above the capital stock, the extent of such 19 

excess shall be taken to be that existincr at the time of the filino: of 20 

the petition in insolvency by or against said corporation. 21 



Section 1(53. If, at the time 



of the filing of 



the otier in com- 



Elfect of com- 
poaitiou upou 

rg^'^MfTa""' PO'^^tion by a corporation, an action is pending against it on behalf 
of a creditor who would be entitled to enforce a liability against 
its officers or stockholders under the provisions of chapter one 
hundred and ten, the plaintiff may change his action into a suit 
in equity, making parties thereto the stockholders and officers 
who were such at the time of the filing of the petition in insolvency 
by or against the corporation, and may proceed thereafter in like 
manner as provided in the preceding section. If the ground upon 
which it is expected to charge the officers of the corporation is an 
excess of debts above the capital stock, the extent of such excess 



shall be taken to 
said action. 



be 



that existing at 



the time of the beffinninjj of 



1 
2 

3 
4 

5 

() 

7 

,s 

<i 

10 

11 

12 

13 



Proceedings. 
1897, 427, § 6. 



Section 1(54. A suit in equity under the provisions of the two 1 
preceding sections shall be subject to the provisions of sections 2 
sixty-three to sixty -seven, inclusive, of chapter one hundred and ten. 3 



Schedule of 
otIicerB, etc. 
1897, 4-27, § 4. 



Section 16.5. A corporation which makes an ofl'er of compo- 1 

sition .shall file, at the time of filing the schedules of assets and lia- 2 

bilities, a schedule of all its officers and stockholders who were such 3 

at the time of the filing of the petition in insolvency by or against 4 

it, with the holdings of stock at such time. 5 



Effect of dis- 
v.hATue upon 
uttHclinients. 
IKWI, 40B, § 2. 
170 Mass. 17y. 



Section 1(5(5. A discharge under the provisions of section one 1 

hundred and fifty-seven shall dissolve any attachment on mesne 2 

process made not more than four months prior to the time of giving 3 

the notice to the creditors of the debtor's proposal of composition. 4 



Amendments 
and orders. 
1884, 236, § 12. 



Section 1(57. The court, except as herein otherwise provided, 1 

may allow amendments and make appropriate orders, in the course 2 

of the proceedings or thereafter, necessary to carry the same into 3 

full effect. 4 



'^iac?n "' fl "tl Section 1(58. An insolvent debtor who knowingl}' places upon 1 

tious debt upon Jjig schcdulc of Creditors a false or fictitious debt with intent to 2 

1884, 236, § 13. dcccivc OT dcfraud his creditors, or who having notice or knowl- 3 

edge that a person has proved or attempted to prove a false or fie- 4 



Chap. IGo.] courts of ixsolvency. l-iGl 

5 titious debt against his estate, fails to disclose the same forthwith 

6 to tlie court or who makes a payment or gives or promises an 

7 advantage to a creditor witli intent thereby to procure his assent 

8 to a composition, sliall be punished by imprisonment in the state 
it prison for not more than five years or in jail for not more than 

10 two years. 



1 Section 169. A creditor of an insolvent debtor who know- Penaity 

2 ingly proves a false or fictitious debt against the estate, or receives lietiuo'usdebt. 

3 or procures or attempts to procure a payment or advantage in con- ''*''' '^'^' ^ "■ 

4 sideration of his assent to a composition, shall be punished by im- 

5 ])risonnient for not more than two years or by a tine of not more 

6 than one thousand dollars. 



FEES AND costs. 

1 Section 170. A debtor's petition for the institution of volun- Fee for receiv- 

2 tary insolvency proceedings shall be received and entered by the etf.^^" "°' 

3 register only upon i)aymcnt to him of twent^^-five dollars. A cred- }^^ J^; 1 24; 

4 itor"s petition for the institution of proceedings against a debtor shall p.l.iyflis^; 

5 be received and entered by the I'egister onl v upon payment to him of I'^'^s, 3i)4, §§ 1, 2. 
t? tlie amount necessary to defray the expense of publishing the notice 

7 of the filing of such petition, but the warrant shall not issue until 

8 twenty-five dollars is paid to the register. A proposal by a debtor 
i) for composition with his creditors shall not be received or entered 

10 by the register after the filing of a creditor's petition for involun- 

11 tary proceedings, and before the issuing of a warrant thereon, until 

12 twenty-five dollars has been paid to the register. 

1 Section 171. The register shall, on the first day of January, Accountsof 

2 April, .July and October in each year, render an account under isfh-fi^', § 24. 

3 oath of all fees so received by liini during the tliree months last isHr/isTl' ^ ^^^' 

4 preceding, and on or before the tenth day of said months pay over i^af^'J^'Isf*' 

5 the same to the treasurer and receiver general. 

1 Section 172. In composition cases no fees or compensation No fees in 

2 shall be paj'able to the register for giving notices to creditors or cases^when. 

3 for the custody of money, vouchers or securities, or for the pay- 1895; ISl § 4] 

4 ment of dividends. 

1 Section 173. In all cases in a court of insolvency the messen- Messenger's 

2 ger shall be entitled to the following fees: — for service of the i^as,' les, § 16. 

3 warrant, two dollars ; for necessary travel, at the rate of four cents oi's. rit\V?i'5- 

4 a mile ; for each written notice to creditors named in the schedule, J^gfJ^'Is.*'" 
.'i ten cents ; for the custody of property, publication of notices and 

(5 other services, the amounts actually incurred and paid and returned 

7 by him in an itemized account under oath and approved by the 

8 court. For cause and upon a hearing the court may make a fur- 

9 ther allowance. 

1 Section 174. If an attachment on mesne process has not been costs if 

2 dissolved before commencement of proceedings in insolvency, or dissolved. 

3 if sucli attachment has been dissolved by bond and the claim upon G^s/ii^'.^m. 



1^G8 



JUDGES AND REGISTERS OF PROBATE, ETC. [ChAP. 1()4. 



1S62, 1-fl, § 5. w-hich the action was commenced is proved against the estate of the 4 

is'ui.'ssu.'*^'^' debtor, the plaintiff may also prove the legal fees, costs and ex- 5 

uTMassiiM! penses of the action and of the custody' of the property to the date of t> 

152 Mass. 596. tiig gpgt meeting, and the amount thereof .shall be a privileged debt. 7 

Costs, iiow Section 17.'). In matters of insolvency which are contested in 1 

1856, 284, §§ 38, a coui't of Insolvcncy, the .superior court or the supreme judicial 2 

G.' s. lis, §§ 1-28. court, said courts may in their discretion award costs to either 8 

p. s. 157, §§ 140, party to be paid by the other, or to either or both parties to be 4 

**'■ paid out of the estate. If costs are awarded to be paid by one party ;'> 

to the other, said courts, respectively, may issue execution therefor. (> 



Vacating 
proceedings. 
lt<4«, 304, § 13. 
G. S. 118, § 130. 
P. S. 167, § 142. 
3 Gray, 531. 



VACATING PROCEEDINGS. 



Section 17(i. Upon petition by a creditor Avho has proved his 1 

claim the court may order the proceedings to be stayed and, after 2 

notice and a hearing, if no objection is made by the debtor or any 3 

such creditor, enter an order vacating all proceedings therein. 4 



Returns by 

reiristere. 
i4i;, h;x, § 3. 
1S51, :k7, 5 24. 
G. S. 118, § 131. 
p. S. 157, § 143. 
1897, 89. 



RETURNS. 

Section 177. Each register shall on or before the tenth day of 1 

each month make a return to the secretary of the commonwealth of 2 

the name, residence and occupation of each person by or against 3 

whom, as an insolvent debtor, and of the name of each corporation, 4 

the kind of business for which it was organized, the place or places r> 

in which its business was principally done, b\' or against which, as 6 

an insolvent corporation, a petition has been filed in his court 7 

during the month last preceding, with the dates of such petitions. 8 

The secretary shall enter such returns, conveniently for reference, 9 

in a book which shall be open to public inspection. 10 



CHAPTER 164. 

OF JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY. 

Sections 1-9. — .Judges. 
Sections 10-2-i. — Registers. 
Sections 2o, 26. — General Provisions. 
Sections 27-32. — Salaries and Fees. 
Sections 33-35. — Court Officers. 



Judges. 

1858, 93, § 1. 
G. S. 119, § 1. 



.JUDGES. 

Section 1. There shall be one judge of probate and insolvency 
in each county except in the counties of Suliblk and Middlesex. 

p. S. 1.58, § 1. 



ini'(?Midmu9ex SECTION 2. There shall be two judges of probate and insolvency 1 

1894' 52-' 5 1 for each of the counties of Suflblk and Middlesex. The .senior judge 2 

■shall be the first judge of probate and insolvency in each county, to .3 

whom, and to his successors, all bonds which are required by law to 4 



Chap. 1G4.] judges and registers of probate, etc. 1469 

5 be given to the judge of the probate court or of the court of insol- 

6 vency for said counties shall be made payable. The probate court 

7 and the coiu-t of insolvency for said counties may be held b}^ one or 

8 both of the judges and, when so held, shall have and exercise all the 

9 powers and jm-isdiction committed to the respective comls. The 

10 judges sliall so arrange the performance of their duties as to insure a 

11 promi)t and punctual discharge thereof. Simultaneous sessions of the 

12 coiu'ts in said counties may be held if the public convenience so re- 

13 quh'es. Citations, orders of notice and all other processes issued 

14 by the register of probate and insolvency for either of said counties 

15 shall bear teste of the first judge of said courts, respectively. A 
1(! deposit or investment which is made in the name of the judge of the 

17 probate com't or the com't of insolvency for either of said counties 

18 shall be made in the name of the first judge of the court, and shall 

19 be subject to the order of the court. 

1 Section 3. A judge of probate and insolvency, before entering oath of judge. 

2 upon the pertbrmance of his official duties, in addition to the oaths c.'e! art?*!! ^' 

3 prescribed by the constitution, shall take and subscribe an oath that Amend, const., 

4 he will faithfully discharge said duties and that he will not dm-ing Jlge^^^'V^^ 

5 his continuance in office, directly or indirectly, be interested in, or Jf^lff^Vi'*" 
fi be benefited by, the fees or emolmnents wiiich may arise in any suit p- s.' ws, § 2! 

7 or matter pending in either of the coiu'ts of which he is judge. Such 

8 oath shall be filed in the registry of probate of the county for which 

9 he is appointed. 

1 Section 4. The judges may perform each other's duties when Judges may 

2 they find it necessary or convenient. etc?"^*^ ''°^^' 

1869, 110, § 1. G. S. 119, § 3. P. S. l.W, § X. 16 Gray, 459. 

1 Section 5. If a judge of probate and insolvency is unable or Assistance of 

2 fails from any cause to perform his duties or any part of them, or njslVc.'tl*^' 

3 it", in his opinion, the com-t requires the assistance of another judge, isn] iSo, § .•i. 

4 or if there is a vacancy in the office of judge of probate and Jlj^ .if^ Yt 

5 insolvency, his duties, or such of them as he niav request, shall be S-f-,-"''-? f 
(5 performed in the same county by the judge of probate and insolvency is»2, s-it, § i. 

7 of any other county who may be designated b}^ the judge, or, in im.'sib.ii. 

8 case of his faihu-e so to designate, who may be designated b}' the 

9 register of probate and insolvency from time to time as may be 

10 neces.sary ; but, unless objection is made by an interested party 

11 before the decree is made, any case may be heard and determined 

12 out of said county in the performance of such duties by such other 

13 judge, who may send his decree to the registr}^ of probate for the 

14 county in which the case is pending. Two or more simultaneous 

15 sessions of the court may be held, the fact being so stated upon the 

16 record. 

1 Section 6. The register of probate and insolvency shall certify certification of 

2 upon his records and to the auditor of the commonwealth the lumi- assfsl^uce. 

3 ber of days and the dates upon which, and the" occasion for which, g!'s'.Vi9,\"5. 

4 the duties of the judge of probate and insolvency are performed by J^'gf'g'Jf'H; 

5 such judge of another county under the provisions of the preceding Jg^'|[H|- 

6 section. 



1470 



JUDGES AND REGISTERS OF PROnATE, ETC. [ClIAP. 164. 



Compensation. 
!»»>, :«:, § 3. 
1894, 377, § 3. 
1899, 3^, § 3. 



- Section 7. The judge who performs aii\" cliiU' under the i)ro- 1 

visions of section five shall, except as provided in the following 2 

section, receive from the commonwealth, in addition to the amount '6 

othersvise allowed to him by law, fifteen dollars for each day that 4 

he performs such duties. Such compensation, so far as it is for 5 

services rendered for any cause, except for such interest as pre- ti 

vents the performance of his duties b}'^ the regular judge, shall, for 7 

any excess above three per cent of his salaiy, be deducted from the 8 

salary of the judge so assisted. 9 



Bonds to act- 
ing judge. 
1859, 110, § 3. 
G. S. 119, § 5. 
P. S. 158, § 5. 



Section 8. Bonds which are required to be given to the judge 1 

shall be given, in case of vacancy in the oiEce of judge, to the 2 

acting judge, and to his successors in office, and all business shall 3 

be done in his name or in the name of the probate court or the 4 

court of insolvency for the county in which the case or matter is 5 

pending ; but bonds may be approved, and other acts, A\hich are 6 

required to be done or certified b}' the judge, may be approved, 7 

done or certified by the acting judge. 8 



Decree out of 
countv. 
1898, 131. 



Section 9. The judge of probate and insolvency may, in cases 1 

in which a decree, order or allowance can be made without a hear- 2 

ing, and in all cases after a hearing, make such decree, order or 3 

allowance, and approve bonds, at any place in the commonwealth, 4 

with the same etlect as if so made and approved in their respective 5 

counties ; and if such judge, under the provisions of section five, <5 

acts in a county other than his own, such decrees, orders or allow- 7 

ances may be signed, and bonds approved, outside of the county in 8 

which he may have been designated to act. The provisions of this 9 

section shall not aiiect the validity of any decree, order or allow- 10 

ance which was signed or bond which was approved prior to the 11 

third day of ]\Iarch in the year eighteen hundred and ninety-eight. 12 



Oaths. 
Const., pt. 2, 
c. 6, art. 1. 
Amend, const., 
art. 6. 

1817, 190, § 2. 
R. S. .8.3, §21. 
1851), 2M, § 12. 
1858, 93, § 5. 
G. S. 119, § 7. 
P. S. 158, § 6. 



REGISTERS. 

Section 10. Every register of probate and inisolvency, before 
entering upon the performance of his official duties, in addition to 
the oaths prescribed by the constitution, shall take and subscribe an 
oath that he will faithfully discharge said duties, and that he will not 
during his continuance in office, directly or indirectly, be inter- 
ested in, or be benefited by, the fees or emoluments which may 
arise in any suit or matter pending in either of the coiuts of which 
he is register. Such oath shall be filed in the registiy of probate 
of the county for which he is elected. 



1 

2 
3 
4 
5 
6 
7 



Bonds. 
17B2.3, 24, § 2. 
178«, 57, § 2. 
R. S. 83, § 21. 
18.W, 284, § 12. 

mi-, l.l. 

law, 93, 14 5, 8 
G. S. 119, § 8. 
1'. S. 158, § 7. 



Section 11. He shall give bond to the treasurer and receiver 1 

general for the faitliful i)erformance of his official duties, in a sum 2 

not less than one thousand nor more than ten thousand dollars, as 3 

may be ordered b}' the judge, with one or more sm-eties who shall 4 

be apjiroved by him. 5 



Custody of 
rt'i'ords. 
1817, 190, § 2. 
R. S. 83, § 22. 
1866, 284, § 13. 



Section 12. The register shall have the care and custody of all 1 
books, docmuents and papers which appertain to the courts of which 2 
he is register, or which are deposited with the records of insolvency 3 



Chap. 164.] judges and REGitsTERS of probate, etc. l-iTl 

4 or filed in the registry of probate, and shall carefully preserve them isss, 93, §5. 

5 and deliver them to his successor. He may, with the approval of p.' s.' iss,' | s?' 

6 the county commissionei's and at the expense of the county, cause i^oo, iso. 

7 copies of the indexes, or new indexes, to the records which are in 

8 his custody, to be printed and to be sold at a price which shall be 
'J not less than the cost of paper, printing and binding. He shall 

10 peri'orm such other duties which appertain to his office as may be 

11 required by law or prescribed by the judge. 

1 Section 13. He may at any time receive and place on file pc- Petitions and 

2 titions and applications to the probate coiut or the court of insol- mil'itis. 

3 vency, and may issue orders of notice and citations in like manner p*s.i^',§9. 

4 and with lilie efi'ect as if they were issued by the judge ; but if the 

5 judge considers that such notice is insufficient, he may order further 

6 notice. 

1 Section 14. He may issue process of attachment and of execu- Attachment, 

2 tion, and all other processes and all warrants, letters and licenses ig^i, 215, § 2. 

3 which may be necessary to carry into eifect any order or decree of issaiaa.'^^"' 

4 the courts, and they may run into any county and shall be exe- 

5 cuted and obej-ed throughout the commonwealth. He may appoint 

6 appraisers to make any inventory which may be required to be 

7 returned to said courts. 

1 Section 15. He shall furnish copies of records or other papers Registers to 

2 in his custody and shall collect therefor the fees provided by law. Isg™^!),™ ll''" 



Accounts. 
1S93, 469, § 3. 



1 Section 16. He shall, on the first Monday of January, April, 

2 July and October, in each year, account for and pay over to the 

3 treasurer and receiver general all fees and compensation which have 

4 been received by him otherwise than by salary. 

1 Section 17 . The judges for the counties of Bristol, Essex, Frank- ^iUto-"' 

2 lin, Hampden, Hampshire, Middlesex, Norfolk, Sufiblk and Worces- ^"{"^.'^iPj- ^' 

3 ter may each appoint an assistant register of probate and insolvency Amend, const., 

4 for his county, who shall hold office for thi'ee yeai's unless sooner jsss, k, §§ e, s. 

5 removed by the judge. Such assistant register in Bristol, Hamp- p.' 1.' i.w,' | u.' 

6 den and Hamp.shire maybe a w^oman. Before entering upon the JfJ; Jij]; ^ ^' 

7 performance of his duties, an assistant register shall take the oaths S' J^'fJ' 

8 prescribed b}' the constitution, and shall give bond to the trcasiu-er 

9 and receiver general for the faithful pertbrmance of his official duties, 

10 in a smii not less than five hundred nor more than five thousand 

11 dollars, as may be ordered by the judge, with one or more sureties 

12 who shall be approved by him. 

1 Section 18. The register of probate and insolvency for the cierkinsuf. 

2 county of Suffolk may, subject to the approval of the judges of isTs.n!?."'^' 

3 probate and insolvency for said county, appoint a clerk and may ^" *• ^^*' ^ ^*" 

4 remove him at pleasure. 

1 Section 19. The register shall forthwith report to the secretary Notice of 

2 of the commonwealth a vacancy in the office of assistant register and offlce"of .-Issist, 

ant. 



1472 



JUDGES AND REGISTERS OF PROBATE, ETC. [ChAP. 164. 



p*s' 158 8*13 *^^ name, residence and date of appointment of the person who may 3 
have been iijjpointed to fill sueh vacancy. 4 



Aesistant 

regieU'r, duties, 
isos, U3, §§ 0, 7. 
G. S. IIH, 5 12. 
P. S. 158, § 14. 



Section 20. An assistant register shall perform his duties 
under the direction of the registt-r, and shall pay over to him all fees 
and amounts received as such assistant. He may authenticate papers 
and perform such other duties as are not performed by the register. 
In case of the absence, neglect, remo\al, resignation or death of the 
register, the assistant may complete and attest any records which 
remain unfinished and may act as register until a new register is 
qualitied or until the disability is removed. 



Inspection of 
records, etc., 
by judges. 
1861, a5, § 1. 
P. S. 158, § 15. 



Section 21. The judges shall semi-annually inspect the doings 1 

of the registers of their courts, and see that the records and files 2 

are made up seasonably and kept in good order : and il" the records 3 

are left incomplete for more than six consecutive months, such 4 

neglect, unless caused by illness or casualty, shall be adjudged a 5 

forfeitm-e of the bond of the register. 6 



Notice to treas- 
urer of forfeit- 
ure of repris- 
ter's bond. 
1861, 95, § 2. 
P. S. 158, § 16. 



Section 22. In ca.se of any neglect which causes a forfeiture of 1 

the bond of the register or assistant register, the judge shall forth- 2 

with give notice thereof in \\Titing to the treasm-er and receiver 3 

general, who shall thereupon cause the bond to be put in suit ; and 4 

the amount recovered in such suit .shall be applied to the expense of 5 

making up the deficient records under the direction of the court in 6 

whose records the deficiency exists, and the surplus, if any, shall 7 

be canned into the account of such treasurer. 8 



^t^exemjjt'*^^'' Section 23. The provisions of the two preceding sections shall 1 

from iiitions ^ot exempt registers or assistant registers from an action for any 2 

on l)onas. ',*^,,. t ni t't » 

1861, 95, §3. other breach of their bond, or from other liabilitv tor neglect or 3 

p. S. 158, §17. • 1 4. • V.1 • «: * "^ A 

mi.sconduct in theu' ofnce. 4 



re^il'te?"^ Section 24. If, upon the death, resignation, removal or absence 

R^s' ^^"'sl V "^ ^^'^ register, there is no assistant register, or if he also is absent, 

25. ' the iudofc shall appoint a temporarv re<rister who shall act until a 

1856 173 §8' ,^. . ^.. 

284, '§§ i.i,i5.' register is aiujointed or elected and tiualificd, or until the disability 

6,6.' ''' ' ' is removed. Such temporary register shall be sworn before the 

G. s. 119, §§ 14, ju(jgc^ and a certificate thereof, with his appointment, shall be re- 

p. s. 158, §§ 19, corded with the proceedings of each com-t in which he acts. 



1 
2 
3 
4 
5 
6 
7 



Judge, regiB- 
tt?r, etc., to be 
disiiitereeted. 
1727, 3. 
1H15, 49. 
1S17, 190, § 4. 
R. S. 83, §§ -2*;, 

or- 

18.56, 284, §§ 16, 

17. 

1858, 93, §§ 2, 3, 

5. 

a. S. 119, §§ 6, 9. 

1879, 292, § 1. 

P. S. 158, § 21. 

5 Pick. 483. 

UO Mass. 189. 



GENERAL PROVISIONS. 

Section 25. No judge, register or assistant register of probate 1 

and insolvency or any person who is employed in the rcgistrj' of 2 

])robate and insolvency in any county shall be interested in, or be 3 

benefited by, the fees or emolmnents which may arise in any matter 4 

pending before the probate comt or court of insolvency of such 5 

county ; nor shall he act as counsel or attorney, either in or out of 6 

court, in any matter pending before said coiu'ts or in an a])peal there- 7 

from; nor shall he be appointed executor, administrator, guardian, 8 

commissioner, appraiser or assignee of or upon an estate within the 9 

jurisdiction of such courts ; nor shall he be interested in the fees 10 



Chap. 164.] judges and registers of probate, etc. 1473 

11 or emoluments ai'ising from any of said trusts ; and no judge shall 

12 be retained or employed as counsel or attorney, either in or out of 

13 comt, in any suit or matter which may depend on or in any way 

14 relate to a sentence, decision, warrant, order or decree made or 

15 passed by him ; nor for or against an executor, administrator or 
Ki guardian appointed within his jm-isdiction, in any action or suit 

17 brought by or against the executor, administrator or guardian 

18 as such ; nor in any action or suit relating to the official conduct 

19 of such party ; nor for or against a creditor, debtor or assignee, 

20 in a cause or matter which arises out of or is connected with any 

21 proceedings before him ; nor in an appeal in such cause or matter. 

1 Section 26. If a judge or register of probate desires to be Judge or regis- 

2 appointed guardian of his minor child, who is an inhabitant of or muliiTohiid! °' 

3 resides in the same county, such appointment may be made, and i\s.ll^', §•>>. 

4 all subsequent proceedings in regard thereto had, in the probate 

5 court of the most ancient adjoining county. 



salaries and fees. 

1 Section 27. Judges, registers and other officers of courts of i^'|''J4i' 

2 probate shall receive from the commonwealth annual salaries as fol- ^ ^- ^> 5§ *9, 

3 lows : — if6e, 284. isos, m. ^ is, 14. g. s. no, § le. 

1864, 298. 1867, 357. I». S. 158, § 23. 1893, 469, { 1. 

4 For the county, 

5 Of Barnstable, the judge and register each, thirteen hundred dol- ^™.?^9'''''" 

6 lars : " is«'i ^<^- 

7 Of Berkshire, the judge, twenty-five hundred dollars ; the reg- Berkshire. 

8 ister, eighteen hundred dollars : isss] aso! 

9 Of Bristol, the judge, three thousand dollars ; the register, twenty- Bristol. 

10 five hundred dollars ; and the assistant register, one thousand dol- 18.8,5; m. 

11 lars: 1889,211. woo, 144, §1. 

12 Of Dukes County, the judge and register each, seven hundred {^".^''lyf""'"^' 

13 dollars: " " i885;3l8: 

14 Of Essex, the judge, forty-five hunchfed dollars ; the register, Essex, 
lo thirty-thi'ee hundred dollars; and the assistant register, twent}'- is87,'273; 

16 tliree hundred dollars : 19(10,328,408. 18,88,112. 

17 Of Franklin, the judge and register each, fifteen hundred dollars ; Franklin. 

18 and the assistant regi.ster, five hundred dollars : i893i 1.51; § 2. 

19 Of Hampden, the judge, tkree thousand dollars ; the register, HjimiHien. 

20 twenty-five hundred dollars ; and the assistant register, one thou- is^i] 2.53! 

21 sand dollars : isse, 189. is94, 3,52. is98, 234. 1884, .'48. 

22 Of Ilampshu'e, the judge and register each, sixteen hundred dol- JJ74'§.|7"™' 

23 lars ; and the assistant register, six hundred dollars : i^^*^. isi. § 2. 

24 Of ^liddlcscx, the iudges each, forty-five hundred dollars : the Middlesex. 

* ^ ' . . 1882 129 

25 register, foiu* thousand dollars ; and the assistant register, twenty- i8S6', 184! 

26 five hundred dollars : is9i, 318. mu, .527, § 3. 1897, 383. 1900, 347. im, ill. 

27 Of Nantucket, the judge and register each, nine hundred dol- ^?,j;*iw*'' 

28 lars: " mi'.iss. 

29 Of Norfolk, the iudse, twentv-eiarht hundred dollars ; the register, Norfolk. 

30 twenty-three hundred dollars; and the assistant register, twelve iss?! 73.' 

31 hundred dollars : 

32 Of Plymouth, the judge, two thou.sand dollars ; the register, Plymouth. 

33 eighteen hundred dollars : 1886; m. 



1474 



JXJDGES AND REGISTEKS OF PROBATE, ETC. [ChAP. 1()4. 



Suffolk. 
lt<71, -^77. 

1S7S, iia. 

1882, 144. 

Worcester. 

1h:J3, 173. 
18,'«, 275. 
1888, 162. 
1899, 284. 



Of Suffolk, the judges each, five thou.sand dollars ; the register, 34 

five thousand dollars ; the assistant register, twenty-eight hundred 35 

dollars; and the clerk, twelve hundred dollars : issii, 203. isui, ui. 3(5 

Of Worcester, the judge, forty-five hundred dollars ; the register, 37 

three thousand dollars ; and the assistant register, twenty-three 38 

hundred dollai'S. 1900, 408. 39 



Conipeusation 
I'or extra cleri- 
ral assistance. 
18711, 2112, § 2. 
lf<81, 21.1, § 1. 
P. .S. iriS, § 24. 
1885, 20.'), § 2. 
1893, l.il, § 2. 
1899, 191, § 2. 



Section 28. If it is considered necessary by the judge, the 1 

regi.ster shall be allowed annually an amount not exceeding one- 2 

third of his salary for extra clerical assistance actually perfbrnicd, 3 

which shall be paid by the coniiiion wealth. The judges in theii' 4 

respective counties shall audit and approve the accounts of the regis- .5 

ter. The provisions of this .section shall not apply to the county (5 

of Suflblk, nor shall it appl}^ to the counties of Franklin or Hainp- 7 

shu'e so long as a salary is paid to an assistant register therein. 8 



Additional 
clerical assist- 
ance. 



1889, 136. 
1900, 144, § 2. 

1886, 114. 

1895, 174. 

1896, 219. 



1885, 304. 
1890, 192. 
1893, 344. 
1895, 4.59. 
1898, 332. 



1901, 302. 



1894, 322. 



1885, 205, < 

1888, 280. 

1889, 418. 

1892, 230. 

1893, 431. 
1895, 3M. 
1897, 317. 



18.87, 39. 
1889, 209. 
1894, 269. 
1898, 117. 



Section 29. In addition to the amount allowed by the preceding 
section, registers of probate and insolvenc}' shall be allowed for 
clerical assistance not more than the following amounts, which shall 
be paid by the commonwealth or county as hereinafter stated to the 
persons who actually perform the work : 

For the county, 

Of Bristol, two hundred dollars, payable by the commonwealth 
upon the certificate of the judge of probate and insolvency : 

Of Essex, twenty-five hundred dollars, payable by the common- 
wealth upon the certificate of the judge of probate and insolvency : 

Of Hampden, six hundred dollars, payable by the commonwealth 
upon the certificate of the register, counte^'signed by the judge of 
probate and insolvency : 

Of Middlesex, foiu" thousand dollars, payable by the common- 
wealth upon the certificate of the judge of jtrobate and insolveiuy, 
and two thousand dollars from said county upon the certificate of the 
register, countersigned b}' the judge of probate and insolvenc}' : 

Of Norfolk, six hundred dollars, payable by tlie commonwealth 
upon certificate of the judge of proliate and insolvency : 

Of Plymouth, five hundred dollars, payable by the commonwealth 
upon the audit and approval of the accounts of the register therefor 
by the judge of probate and insolvency : 

Of Surtblk, fifty-one hundred dollars, payable by the common- 
wealth, and twenty-five hundred dollars and such further amount 
as the board of aldermen of the city of Boston may by vote ajijjrove, 
pa3'able by said county, all ui)on the certificate of the register, 
countersigned b}' a judge of jirobate and insolvency : 

Of Worcester, thirty-three hundred and fifty dollars, jiayable by 
the commonwealth niton the certificate of the register, countersigned 
by the judge of probate and insolvenc}'. 



I 
2 
3 

4 
5 
(> 

7 
8 

;i 

10 

11 
12 
i;-. 
u 
if) 
11; 

17 
18 
19 
20 
21 
22 
2;) 
24 
2,') 
2i; 
27 
28 
29 
30 



Travelling 
expenses. 
1896, 316. 



Section 30. Judges and registers shall receive from their re- 
spective counties their actual and proper travelling expenses which 
may be incurred by them in the pertbrmance of their otficial duties 
in holding and attending court at a j^lace other than that in which 
the registr}'^ of probate is situated, upon an itemized statement of 
such cxi)enses being certified to, and approved by, the county com- 
missioners of the respective counties. 



1 

2 
3 
4 
,') 
1) 
7 



Chap. 164.] judges and registers of probate, etc. l-iTS 

1 Section 31. A temporary regiistcr shall be entitled to the same compensation 

2 compensation as the register aiul shall be paid by him if the ap- reKiXi"''"" 
'd pointment is eaused by his al^senee ; but if the appointment is r.^s.j^'I'mI 

4 eaused by his death, remoyal or resignation, the temporarj' register ll;,^; flf'^^^'*' 

5 shall be paid b}^ the commonwealth. p. s. iss, § 23. g. s'. n'a, § it. 

1 Section 32. Xo judge or register of probate and insolvency judscB, etc., 

2 shall receive any fee or compensation in addition to his salarj' for ""es'" '''"'"^"^ 

3 holding or attending courts or acting as judge or register in an}^ r."s. ^^3^'/52■. 

4 count}'-, nor for anything done in his oiScial capacity, except as };^^L' J^*' | ,|i- 

5 expressly provided by law. g. s. iw, §i8. p. s. iss, §26. 18.58, as, '§§2, 

COURT OFFICERS. 

1 Section 33. The judges of probate and insolvency for the county officer in 

2 of Suifolk shall appoint an officer to attend the sessions of the pro- isj^4,"u6. 

3 bate coiu-t and court of insolvency, and ma}' at any time, for a cause }slil;66?' 

4 which they consider sufficient, remove him, and may fill any vacancy i*''^> i**- 

5 caused by removal or otherwise. Such officer .shall give bond in the 

6 smn of one thousand dollars for the faithful performance of his 

7 duties payable to the treasurer of the county of Suffolk, witli sutfi- 

8 cient sm'etie.s who shall be approved by a judge of said comt. 

9 Such officer may serve the orders, precepts and processes issued by 

10 said courts or by a judge thereof. He shall be jjaid by the county, 

11 in monthly in.stalnients, a salary of fifteen hundred dollars a year. 

1 Section 34. In addition to the officers whom the sherifi' of the oracerin 

2 county of Middlesex is authorized by section seventy-thi-ee of ?8y!!,''423!''' 

3 chapter one hundred and sixty-five to appoint, he may appoint, sub- 

4 ject to the approval of the judges of probate and insolvencj' for said 

5 count}^ an officer who shall serve as a permanent court officer for 

6 attendance at the sessions of the probate court. Such officer shall 

7 give bond in the simi of ten thousand dollars, for the faithful per- 

8 formance of his duties, payalile to the sheriff of said county with 

9 sm-eties who shall be approved bj' either of said judges. He shall 

10 serve the orders, precepts and processes issued by said probate court 

11 or by either judge thereof. He shall receive from the county of 

12 ]\Iiddlesex an annual salary of seventeen hundred dollars in full 

13 pa^'inent for all services performed by him, ten cents a mile for 

14 travel out and home once a week during such attendance, if such 

15 distance exceeds five miles one way, and one hundred dollars, 

16 annually, in addition to his salar}% to provide a uniform, which he 

17 shall wear while in attendance on said courts. 

1 Section 35. The judges of probate and insolvenc}' for the ncssenserin 

2 county of Middlesex may appoint a messenger for the courts of wufsba!"^' 

3 proliate and insolvency for said county, may at any time reint)\e 

4 him for a cause which is by them considered sufficient, and ina,y fill 

5 a vacancy caused by a removal or otherwi.se. Said messenger shall 

6 wait upon .said courts and perform .such duties as the judges may 

7 direct, and siiall receive from said count}- an annual .salary of one 

8 thousand dollars, payable in equal monthly instalments. 



1176 



CLERKS OF COLUT6, ATTOU^fEYS, ETC. 



[CUAP. 165. 



CHAPTER 165. 

OF CLERKS, ATTORNEYS AND OTHER OFFICERS OF JUDICIAL COURTS. 

Sections 1-38. — Clerks of the Courts. 

Sections 39, 40. — Bar Examiners. 

Sections 41-51. — Attorneys at Law. 

Sections 52-54. — Masters, Referees and Assessors. 

Sections 65-60. — Auditors. 

Section 61. — Reports of Masters and Auditors. 

Sections 62-67. — Reporter of Decisions. 

Sections 68-79. — Deputy Sheriffs and Other Court Officers. 

Sections 80-88. — Stenographers. 



CLERKS OF THE COURTS. 

to?TOmmoS^ Section 1. The justices of the supreme judicial court or a 
is,w' 1% 5 411 majority of them shall appoint the clerk of the court for the com- 
G. .s. i-2i', §§ 1, ?. mon wealth for a term of five years from the date of his appoint- 
ment, and ma}' appoint an assistant clerk of said court for a term 
of three years from the first day of January next after his appoint- 
ment ; and may remove them. 



p.s. I5a,§§l, 2. 



1 

2 
3 
4 
5 
6 



{^yi'ia5_*|'5 4?- Section 2. The clerk shall attend all sessions of the coml, pre- 
g' s in s-,') •'^srve all the files and papers thereof, keep a docket record of all 



I 
2 

p. s. 159, §§ 3-^7. cjuestions tran.sferred, and of all petitions, complaints or other 3 

processes presented to the court, and enter thereon the name of the 4 

parties in full and the name of the counsel who appear in behalf of 5 

either party, and a brief description of the nature of the action or 6 

proceeding. He shall also record thereon accm-ate minutes of all 7 

orders, decrees or directions of the court in each case, transmit 8 

forthwith to the clerks of courts in the several counties all rescript.s 9 

which are made or ordered by the com't and the papers which belong 10 

to the supreme judicial coml or the superior court in each case, and 11 

receive and keep safely all papers transmitted to him by the clerks 12 " 

of the courts. He shall make copies of all papers on file in said 13 

coiu't and of the docket record thereof, if desired, and certify them 14 

under the seal of the court. He shall issue such writs or other proc- 15 

esses as the com't orders, shall charge the fees provided by law for Ifi 

like services for clerks of courts, and, if no express fee is provided, 17 

he .shall receive a fair compen.sation for the services requh'cd of 18 

him in analogy to like services for which a compen.sation is fixed 19 

by law. He shall annually, before the last Wednesday of Decem- 20 

ber, account with and pay over to the treasurer and receiver general 21 

aU fees which have been received by him. 22 



ciirki^^ Sections. The clerk and assistant clerks of the courts shall be 1 

county com- clerk and assistant clerks of the county commissioners. 2 

misslouers. .' 

18.57, 1. G. S. 121, § 6. 1860, 11. P. S. l.iil, § 6. 



Assistant 
rlerks 



,.,^.j.^g Section 4. The justices of the supreme judicial court or a 

iSi' 1k%V' luajority of them .shall appoint an assistant clerk of the courts for 
i856| 449, § -2. each of the counties of Bristol, Essex, Hampden, Middlesex, Nor- 



Chat. I(i5.] clerks of courts, attorneys, etc. 1477 

4 folk and AYorcester, and of the supreme judicial court in the count}' issk, 37, §i. 

5 of Suflblk, for a term of three 3'ears from the date of his appoint- ufs. m'.l's. 

6 ment, and may remove him. The assistant clerk for the county of \^{\ '^[ ^ *• 

7 Hampden may be a woman. p. s. 159, §8. 1897,220. 

1 Section 5. The justices of the supreme judicial court or a ma- AssiataDt 

2 jority of them may appoint, for a term of three years from the date Essex and 

3 of their appointments, a second assistant clerk of the courts for isTsfj^f^'^' 

4 the county of Essex and a second and a third assistant clerk of the ,^J-,';"'"',1?- 

. " , • A r* 1 1 iwt9, 11, 444. 

5 coiu'ts tor the county or Middlesex. i896, 21s. 

1 Section 6. The justices of the superior com-t or a majority of '^^anm'7i!r 

2 them may appoint, for a terra of tliree years from the date of their ^^.^■ 

3 appointments, nine assistant clerks of said court for civil business i889iso.' 

4 in the county of Suffolk, one of whom shall perform such duties as i896,'25i, 393, 

5 may be required of him as clerk in equity proceedings in said 1897, .3;m. 

6 court for equity business in .said county. ^^'^' ^""' 

1 Section 7 . The clerks of the courts for the counties of Norfolk r « ?f<"'f''jk, 

. 1 'Sunolk and 

2 and \\ orcester may each appoint a second assistant clerk, and the J^'j?''''''s^'^«'"- 

3 clerk of the superior court for cruuinal business for the county of i'- s. iW, § 9. 

4 Suffolk and the clerks of the courts for 'the counties which have 

5 no permanent second assistant clerks may appoint assistant clerks 

6 pro tempore, or for a term of one year, subject to removal by the 

7 court or by the clerk. 

1 Section 8. If, by reason of illness or other cau.se, the clerk of cierks pro tem- 

, . ^ . , pore. 

2 the. coiu'ts in anv countv, or of the suin-eme ludicial com't in the 18.51,1.58, §§ 1,3. 

■^ . ' 1859 19(i § M 

3 county of Sufiblk, is unable to perform the duties of his office, and o.s. mVf'il. 

4 there is no assistant clerk or he also is unable to perform the duties ' •"'*"• 

5 of his office, the justices of the supreme judicial court or a majority 

6 of them may ajipoint a clerk pro tempore, who shall perform the 

7 duties of the office until the clerk or assistant clerk resumes his 

8 duties. The justices of the superior court may in like manner ap- 

9 point a clerk pro tempore if a clerk and assistant clerk of that court 

10 in the county of Suffolk cannot perform the duties of the office. 

11 "When, after any such temporary ajijiointment, the clerk or assistant 

12 clerk resumes his duties, he shall make a record of that fact, with 

13 the date, under his signature, in the latest book of records in each 

14 of the courts. 

1 Section 9. If an assistant clerk of the courts is unable to per- Assistant 

2 form the duties of his office, the justices of the court who are tempore™ 

3 authorized to appoint him or a majority of them may appoint an p^l'IVju 

4 assistant clerk pro tempore, who shall perform the duties of that 
.") office until the assistant clerk resumes his duties. 

1 Section 10. If, at a sitting of any court, neither the clerk nor Appointment 

2 as.sistant clerk is present, the court may appoint a clerk pro tempore, cierk pro'tem. 

3 who shall perform the duties of the office during the sitting or until J'^i^g^. 

4 the clerk or assistant clerk resumes his duties, unless an appointment g- '^j^'' 5 1*; 

5 under one of the preceding sections is .sooner made or unless a new *i- ■?• i;'- ^ 'J- 

6 clerk has been elected and has (jualitied. 



1478 



CLERKS OF COITRTS, ATTORNEYS, ETC. 



[CUAP. 1G5. 



Clerks to be 
sworn. 
1782, 9, § 5. 
IT!*, 'J5, § 2. 
ITiW, 81, § 1. 
1811, 8, § 3. 
1815, 37. 
R. S. 86, § 8; 
88, §§ 4, 14. 



Section 11. The clerk, assistant clerk, clerk pro tempore and 1 

assistant clerk i)ro tempore of a coiut shall be sworn before a justice 2 

thereof, who shall, upon administering the oaths of office, forthwith 3 

make return of such act, with the date thereof, to the secretar}- of 4 

the commonwealth. 5 



18.W, 2:)«, § 1. 

1851, 38, § 1; 158, §2. 

1856, 37, § 1. 



1SJ9, 196, §§ 40, 41. 
G. S. 121, § 11. 
18KJ, 64, § 2. 



P. S. 1.59, § 13. 
1894, 22(>. 



Bonds of 
clerks. 

1762, 3; 24, § 1. 
1786, .'57, § 1. 
1811, 8, § 3. 
1821, -23, § 3. 
R. S. 88, § S. 

18.50, -236, 5 1. 

18.51, 38, §1; 
158, § 2. 
1856, .37, § 3. 
1859, 196, § 41. 
G. S. 121, § 12. 
1863, 64, § 2. 
P. S. 159, § 14. 



Section 12. The clerk and assistant clerk of the supreme judi- 1 

cial court for the commonwealth shall, before entering upon the 2 

peribrmance of his duties, each give bond in the sum of two thou- 3 

sand dollars for the faithful performance of his otiicial duties, pay- 4 

able to the treasurer and I'eceiver general, with sufficient surety or 5 

.sureties who shall be approved by the court. Each clerk, assistant (5 

clerk, and each assistant clerk pro tempore who is appointed under 7 

the provisions of section nine, shall give bond in like manner to the 8 

county treasurer, in a sum not less than five hundred nor more 9 

than two thousand dollars, to be determined by the court ; and 10 

each clerk pro tempore who is appointed under the provisions of 11 

section eight shall give bond in like manner, if required by the 12 

court. 13 



Notice to 
secretary of 
vacancy in 
office of assist- 
ant. 

1880, 139, § 3. 
P. S. 159, § 15. 



Section 13. Each clerk shall forthwith report to the secretary 1 

of the commonwealth a vacancy in the oHice of assistant clex-k, and 2 

shall report the name and residence of the person who is appointed 3 

to fill such vacancy, and the date of the expu'ation of the term of 4 

service. 5 



General duties 
of clerks. 
1782, 9, § 5. 
1786, 57. 
1811, 8, § 1. 
1830, 129, § 2. 
R. S. 88, § 5. 
G. S. 121, § 13. 
P. S. 1.59, § 16. 



Section 14. The clerks shall attend all the courts of which they 1 

are clei'ks when held in their respective counties, and the sessions 2 

of the county commissioners, and shall record their proceedings ; 3 

and shall have the care and custody of all the records, books and 4 

papers which appertain to, or are filed or deposited in, theu" re- 5 

spective offices. 6 



— of clerk of 
supreme judi- 
cial court in 
Suffolk. 
1887, 291, § 2. 



Section 1.5. The clerk of the supreme judicial court for the 
count)^ of Suftblk shall act as clerk of the supreme judicial court 
when sitting in Boston for the hearing of cases from an^^ county 
other than Sutlblk, except when sitting as a full court, and for such 
purposes as the court may order. 



— of clerk of 
superior court 
in SulTolk. 
1896, 413. 



Section 16. The clerk of the .superior court for civil business 1 

in the county of Sutlblk, or such assistant clerk of said court as the 2 

justices thereof or a majority of them may, from time to time, de.s- 3 

ignate for such duty, shall act as clerk of said court when sitting in 4 

Bo.ston for the hearing of cases from any count}' other than Sutlblk, 5 

and for such purposes as the court may order. & 



Forwarding 
exceptions to 
attorney 
j^eueral. 
18911, 374. 
1896, 372. 



Section 17. The clerks shall cause one or more copies of all 
appeals, bills of excejitions and reports of cases in which the attor- 
ney' general a})pears for the commonwealth to he printed and for- 
warded to him at Boston as soon as may be after they have been 
allowed and filed. 



Chap. 1(55.] clerks of courts, attorneys, etc. 14:79 

1 Section 18. When a rescript is filed in a case or proceeding in Notice of 

2 the supreme judicial court or the superior court, the clerk of such ileg"^*' 

3 court shall forthwith give notice thereof to an attorney of record of ^' ®' ^^' ^ ^"' 

4 each party, and transmit a copy of such rescript to the reporter of 

5 decisions. 

1 Section 19. "VXHien iudgment is entered by the superior court No«ce of 

-, J JO ,.-, ,•' J Y . . judgment. 

2 upon a demurrer, or upon a case stated, or when a decision is ren- isva, 4. 

PS 153 5 9 

3 dered in an action which is heard without a jury, the cleriv shall i899,'357.' 

4 give notice thereof to the parties or to theu- attorneys. 

1 Section 20. A fac-simile of the signature of tlie clerk of any racsimiie of 

2 court in the commonwealth, imprinted by him ujDon any WTit, sum- iJS.vSi™' 

3 mons, order of notice or order of attachment, except executions, i*'*'^''- 

4 shall have the same validity as his written signature. 

1 Section 21. The name of an assistant clerk of any court, fafi°^™c°erk 

2 followed by the designation ' ' assistant clerk ", shall be a sufficient J**?, f s- 
^ ... ■ T ■ ° i*y5i -51- 

3 oincial signature. i8%, 413. 



may 
issue orders of 



1 Section 22. The clerk of the courts may issue any order of f^^^^l 

2 notice upon any petition or other proceeding at law or in equity ?gi|*'|i„ 

3 which might be issued by the court; but the court or a justice p. s. 159, § 17. 

4 thereof mny cause additional notice to be given. 

1 Section 23. Tlio clerlis sliall keep an alphabetical list of the Alphabetical 

2 names of all the parties to every action or judgment which is n4°57m'i?2. 

3 recorded in the records and a reference to the book and page where §; |; ilif /i4. 

4 it is recorded ; and, if there are two or more plaintiffs or defendants, ^- ^■'^^^- § ^^■ 

5 the name of each and a lilie reference shall be inserted in its appro- 

6 priate place in the alphabetical list. 

1 Section 24. Clerks of com-ts, or, in the county of Suffolk, the Preservation 

2 clerk of the superior court for civil business, shall receive and safely ^riirjustos! 

3 keep the dockets, records and other official papers of trial justices 1*^. ^i'. §«• 

4 which may be deposited in theii' offices under the provisions of sec- 

5 tion sixty-one of chapter one hundred and sixty-one, and shall 

6 make and certify copies thereof which shall have the same effect as 

7 if certified b}' trial justices. They shall be allowed the same fees 

8 for making such copies as are allowed to them in similar cases. 

1 Section 25. The supreme judicial court may, by general rule or Extension of 

2 special order, direct what portion of the papers in causes which are re™rds"° 

3 entered in said court or in the superior coui't shall be extended upon p.'|'.^^\ § jy. 

4 the records after final judgment or otherwise. 

1 Section 26. The clerks of the courts in the several counties cierktoex- 

2 and of the supreme judicial court and the superior court in the r. s*88?hl' 

3 county of Suffolk shall at the first sitting in each 3'ear of the su- p.' |; ifj; f 20! 

4 preme judicial court in their counties exhibit their latest books of is Mass. 382. 

5 records to a justice of the couit, who shall cause errors and defects 

6 therein to be corrected. 



1480 



CLERKS OF COURTS, ATTORNEYS, ETC. 



[CiiAi-. ii;.'). 



Justices to in- 
spect records. 
17(i2, 3; 24, §4. 
17i«:, 57, 5 4. 
R. S. W, § K. 
G. S. 121, § IC. 
P. S. loi), § 21. 



Section 27. The justices of the several courts shall inspect the 1 

doings of the clerks from time to time, and .shall see that the records 2 

are made up seasonably and kept in good order : and, if the records 3 

are left incomplete for more than six consecutive months, such ncg- 4 

lect, unless caused b}' illness or ca.sualty, shall be adjudged a for- ."> 

feiture of the bond of the clerk. U 



Forfeiture o 

bond. 

17«2, 3 ; 24, § 

17»i, .'57, § 4. 

R. S.88, §§'J, 

G. S. 121, 

18. 

1'. S. 159, 

2,'!. 



Section 28. In case of anv neglect which causes a forfeiture of 



§§17, 



*■ the bond of a clerk or assistant clerk, the justices shall forthwith 
10. give notice thereof in writing to the treasurer who has the custody 



thereof, who shall tliereupon cause suit to be brought thereon. The 
amount recovered in such suit shall be applied to the expense of 
making up the deficient records under the direction of the court in 
whose records the deficiency exists, and the surplus, if an}-, shall 
be carried into the account of such treasurer. 



Liability for 
otiier breacbes. 
R. S. 88, § 12. 
G. S. 121, § 19. 
P. S. 139, § 24. 



Section 29. The provisions of the two preceding sections shall 1 

not exempt a clerk or assi.stant clerk from an action for any other 2 

breach of the condition of his bond, or fi-om his liabilit}' in any S 

other way or to any party for neglect or misconduct in his office. 4 



Duties of 

assistant clerk. 

ISiiO, 2S(i, § 2. 

1851, 38, § 2. 

1866, 37, § 2. 

G. S. Kl,§§20, 

21. 

1873, 181, § 1. 

P. S. 159, §§ 9, 

25, 26. 

13 Grivy, 74. 



Section 30. Each assistant clerk shall, under the direction of the 1 

clerk, perform any of the duties of the clerk and shall pay over to 2 

him all fees and amounts received as such assistant. In the absence 8 

or upon the resignation, death or removal of the clerk, the assistant 4 

clerk shall perform his duties, under the direction of the court, until a 

he returns or until a clerk is elected or appointed and has qualified, (> 

and, upon the death, removal or resignation of the clerk, the assist- 7 

ant clerk shall account with, and pa}' over the money in his hands S 

to, the officer with whom the clerk is b}' law recjuired to account. y 



Clerk to 
account for 
fees, etc. 
1811, 8, § 2. 
1813, 77, § 2. 
182U, 84, § 1. 
1830, 129, § 3. 
18:)3, 124, « 2. 
R. S. 88, § 15. 
(i. S. 121, § 22. 
1879, 300, § 1. 
1>. S. 159, ? 27. 

1887, 291, 5 1. 

1888, 2.37, § 4. 
1891, 230. 



Section 31. The clerks of the courts in the several counties, 1 

and of the supreme judicial court and the superior court in the 2 

county of Sufiblk, shall keep a cash book, which shall be county 3 

property and shall be and remain a jiart of the records of the courts, 4 

in wliicli they shall keep accounts of all fees received by them for .5 

their official acts and services, including fees for copies which they (> 

are not recjuired by law to furnish, fees and money in proceedings 7 

relative to naturalization or for naturalization certificates, aiid all X 

fees and mone}' of whatever description or character received by !• 

them, or by any assistant or other person in their offices or cmplo}- 10 

ment, for any acts done or services rendei-ed in connection with 1 1 

their .said offices, and shall on or before the tenth day of each month 12 

pay o\'er to the treasurer of the count}', or to such other officer as 13 

is entitled to receive them, all fees received during the precluding 14 

calendar month, and shall render to him an account thereof under I.t 

oath. lt> 



— for un- 
claimed funds. 

1890, 330. 



Section 32. Clerks of courts who have in their custody monc}' 1 

or dividends of an insolvent savings bank or insurance company 2 

whose affairs have been wound up by the courts of which the}- are 3 

clerks, which money or dividends have remained unclaimed for more 4 

than ten years after the order of final settlement by the court, shall, 5 

after deducting all amounts due to themselves, to the county or to 6 



Chap. Hi').] clerks of courts, attorneys, etc. 1481 

7 the commonwealth for fees or expenses, pa^y over the balance to 

8 the treasurer and receiver general and file \\'ith him a schedule of the 
i) names and residences, so far as known to them or shown by the 

10 record, of the parties who are entitled thereto. The fees and ex- 

11 penses so deducted shall be audited and adjusted by the controller 

12 of county accounts and paid forthwith to the persons who are entitled 

13 thereto. After such payment of fees and expenses, and of the pay- 

14 ment of the balance to the treasurer and receiver general, the liability 

15 of clerks for such money and dividends shall cease. The treasurer 

16 and receiver genei-al shall hold such funds in trust for two years ; 

17 and if they are not paid over by him within that time to the persons 

18 who are entitled thereto, upon proper demand and satisfactory 

19 evidence of the identity of the claimant and of the justice of the 

20 claim, they shall escheat to the commonwealth. 

1 Section 33 . The clerk of the court for the commonwealth shall f^g^l\°^ f^^ 

2 receive from the commonwealth an aniuial salary of three thousand '■"™™°"- ' 

3 dollars, and five hundred dollars a year for clerk hire, and the assist- i>*-w, i%, §§4(i, 

43 

4 ant clerk shall receive from the commonwealth an annual salary of g.' s. 121, §§ 5, 
.T fifteen hundred dollars. p. s. 159, §§ a, 31. 1S94, ise. '^' 

1 Section 34. The annual salaries of the clerks of the courts shall, ■■'"'""''^ "* 

2 except as herein otherwise provided, be payable in monthly instal- S']?^'^*- 

3 ments by the respective counties, and shall be as follows : — For the R. s. 88,'§§ is, 

4 county of Barnstable, twelve hundred and fifty dollars; Berkshire, isst, 273. 

5 twenty-eight hundred dollars ; Bristol, four thousand dollars ; Dukes i>i;:.' -M,' i •!*' 
(5 County, six hundred dollars; Essex, fifty-two hundred dollars ; JJif; 42''268. 

7 Franklin, eighteen hundred dollars ; Hampden, thu-ty-hve hundred J|,,^?.i'^;'; f,||3- 

8 dollars; Hampshire, twenty-tliree hundred dollars; Middlesex, six ||i;'i- 

9 thousand dollars ; Nantucket, six hundred dollars ; Norfolk, twenty- 1892I95.' 

10 eight hundred dollars ; Plymouth, two thousand dollars ; Worcester, 

11 fittj'-two hundred dollars ; Suffolk, the clerk of the supreme judicial 

12 court, sixty-five hundred dollars, of which fifteen hundred dollars 

13 shall be paid b}^ the commonwealth ; the clerk of the superior court 

14 for civil business, sixty-five hundred dollars ; and of the superior 

15 court for criminal business, six thousand dollars. 

1 Section 35 . The annual salaries of assistant clerks of the courts , — of aBsistant 

2 payable in monthl}^ instalments by the respective counties, shall be iiso'^^i 

3 as follows:- _ ' _ ^W^"^- 

4 In the count}' of Suflblk, the assistant clerk of the supreme judi- Jfl ^I'.'i^ ^e 

5 cial court, twenty-five hundred dollars ; of the superior court for i^bs, 21)!).' 

6 civil business, the first assistant clerk and the assistant clerk for i^o'ssii! 

7 equity bushiess, three thousand dollars each, and the second, third, 1S72! iVi; 307, 

8 fourth, fifth, sixth, seventh and eighth assistant clerks, twenty-five is7'7fi7i§i. 

9 hundred dollars each ; Bristol, the assistant clerk, eighteen hundred {fs. isl'.TIi. 

10 dollars and liis travelling expenses ; Essex, the first assistant clerk, },^s?' jil!!' 

11 twenty-six hundred dollars and the second assistant clerk, t^oj^'ifjo 

12 thousand dollai's ; Hampden, the assistant clerk, thii'teen hundred -tii.' 

13 dollars ; JVIiddlesex, the first assistant clerk, twent^^-six hundred dol- isin] h.' _ 

14 lars, the second assistant clerk, twenty-five hundred dollars and the i-^ils; 1^3,^196. 

15 third assistant clerk, two thousand dollars; Noriblk, the assistant ^Jlo^' '^■'''' ^'^' 
1() clerk, eighteen hundred dollars; Worcester, the assistant clerk, J^^j^-j^^-g^^ 
17 twenty-three hundred dollars. 1899,377. 1900,329. 1901,510. isgsl 376| sis. 



1482 



CLEKKS OF COUKTS, ATTORNEYS, ETC. 



[Chap. 165. 



Sal.'iries of 
c.k'rk auii 
assietjmt clerk 

t)ro tempore. 
i. S. 88, § 14. 
G. S. 1-21, § 27. 
ISKll, I'll. § 9. 
l,s;8, W, § 2. 
1'. S. 159, § 32. 



Section 36. Each clerk pro tempore shall be paid by the clerk 1 

for whom he is acting such com^jensatioii as the court ai)pointing 2 

him may determine. Each assistant clerk })ro tempore who Ls ap- 3 

pointed under the provisions of section nine shall receive fi'om the 4 

county the same salar}' as the assistant clerk for whom he is acting, 5 

and the amount so paid shall be deducted from the salary of such 6 

assistant clerk. 7 



Salaries to be 
ill lull t'oni- 
peueutiou. 
1888, 257, § 2. 



Section 37. The annual salaries of clerks shall be in full com- 1 

pensation for all services rendered by them in the civil or criminal 2 

courts, to the county commissioners, in making any returns re- 3 

quh'ed by law or in the performance of any other official duty 4 

except for such clerical assistance as may be allowed under the pro- 5 

visions of the following section. 6 



Extra clerical 

assistance. 
1873, ISI. 
1879, .3011, § 4. 
P. S. 159, §§ 9, 
33. 

1898, 238. 

1899, 350. 
[lOp. A.G. 
467.] 



Section 38. Upon the certificate of the clerk of the courts in 1 

the sevei-al counties, or of the clerk of the supreme judicial court or 2 

the superior court in the county of Suflblk, that extra clerical assist- 3 

ance was actually performed and was necessary, stating the names 4 

of the persons by whom it was performed and the time occupied, 5 

he shall be allowed such amounts as the county commissioners, in (i 

a writing signed by them, or, in the county of Suffolk, the board of 7 

aldermen of the city of Boston, by vote, approve. Said amounts 8 

shall be paid by the county monthly to the person or persons 9 

employed, including assistants appointed under the provisions of 10 

section seven. 11 



Barexamin- 
1»7, 508, § 1. 



BAR EXAMINERS. 

Section 39. There shall be a board of bar examiners consisting 
of five persons, who shall reside in different counties, one of whom 
shall annually be appointed by the justices of the supreme judicial 
court for a term of five years from the fii'st day of October in the 
year of his apijointment, and who may be removed by them. Such 
justices may till any vacancy which occui's in the board. 



1 

2 

3 

4 



Duties of 
board. 

1897, 508, § 3. 

1898, 312. 



Section 40. Said board shall determine the time and place of 1 

all examinations for admission to the bar, conduct the same and 2 

may, subject to the approval of the supreme judicial court, make 3 

rules therefor. The members shall receive from the fees received 4 

under the provisions of the following section such compensation as .5 

the justices of the supreme judicial court, or a majority of them, may (i 

allow, and from the commonwealth, such amount for the expenses 7 

of the board as may be certified b}^ its chairman and approved by a 8 

justice of the supreme judicial court. 9 



Attorneys at 

law. 

1785, 23, § 1. 

1795, 80, I 4. 

R. S. 88, §§ 19, 

20,23. 

1852, 1.54. 

G. S. 121, §§ 28, 

29, 32. 

1876, 197. 

P. S. 169, §§ 34, 

87. 



ATTORNEYS AT LAW. 

Section 41. A citizen of this commonwealth, or an alien who 
resides in this commonwealth and has made the primary declaration 
of his intention to become a citizen of the United States, including 
women, may, if of the age of twenty-one years, file a petition in the 
supreme judicial court or in the superior court to be examined for 
admission as an attorney, whereupon, unless the court otherwise 
orders, the petition may be referred to the board of bar examiners 



1 
2 

3 
4 

5 
6 

7 



Chap. 165.] clerks of courts, attorneys, etc. 1483 

8 to ascertain his acquii'ements and qualifications. K tlie board re- issa, 139. 

9 ports that the petitioner is of good moral character and recommends i^k,' I"; 1 1'. 

10 his admission, he may be admitted unless the court otherwise deter- lo^Met'^ais. 

11 mines, and thereafter may practise in all the courts in the common- is' Mass. 376. 

12 wealth. If the court makes an order relative to a petition for 
I'd admission, the petitioner shall be admitted in accordance there- 

14 with. The petitioner shall pay to the clerk a fee of ten dollars 

15 upon the entiy of his petition, and a further fee of five dollars upon 

16 the entry of a subsequent petition by him. Such fees shall be paid 

17 over b}' the clerk to the treasurer and receiver general. The peti- 

18 tioner shall also pay a fee of five dollars for admission to the bar, 

19 which shall be paid over by the clerk to the county treasurer. 

1 Section 42. Whoever is admitted as an attorney shall, in open oath of office. 

2 court, take and subscribe the oaths to support the constitution of art.'e" ' '^°"^''' 

3 the United States and of this commonwealth, and the following nsv'sy'jVf' 

4 oath of office shall be administered to and sub.scribed by him : — r.s. ss, §§21, 

G.' S. 121, §§ 30, 
31. 

You [repeat the name] solenmly swear that you will do no falsehood, nor P. S. 159, §§ 35, 
consent to the doing of anj- in court; you will not wittinjily or willingly pro- 
mote or sue any false, groundless or unlawful suit, nor give aid or consent to 
the same ; you will delay no man for lucre or malice ; but you will conduct 
yourself in the oiHce of an attorney within the courts according to the best of 
your knowledge and discretion, and with all good lidelity as well to the courts 
as your clients. So help you God. 

1 Section 43. A person who has been admitted as an attorney or Attorneys 

2 counsellor of the highest judicial court of any other state of which states? 

3 he was an inhabitant, and who subsequently becomes a citizen of g. sim.Vss. 

4 this commonwealth, may be admitted to practise here upon the P-s. 159, §3b. 

5 production of satisfactory evidence of his good moral character and 

6 his professional qualifications. 

1 Section 44. An attorney may be removed by the supreme Removal. 

2 judicial court or the superior court for deceit, malpractice or other g! s. iVi, § 34. 

3 gross misconduct, and shall also be liable in damages to the person nlhin','47?' 

4 injured thereby, and to such other punishment as may be provided i26Mass. 222. 

5 by law ; and the expenses and costs of the inquuy and proceedings lesMass. i69. 

6 in either court for the removal of an attorney shall be paid as in 

7 criminal prosecutions in the superior court. 

1 Section 45. Whoever has been so removed and continues there- Penalties on 

2 after to practise law or to receive any fee for his services as an attorneys. 
;> attorney at law rendered after such removal, or who holds himself i**"!'*!*- 

4 out, or who represents or advertises himself as, an attorney or coun- 

5 seller at law, and whoever, not having been admitted to practise as 

6 an attorney at law in accordance with the provisions of this chap- 

7 ter, represents himself to be an attorney or counsellor at law, or 

8 to be lawfully qualified to practise in the courts of this common- 

9 wealth, by means of a sign, business card, letterhead or otherwise, 

10 shall, upon a first conviction, be punished by a fine of not more 

11 than one hundred dollars or by imprisonment for not more than six 

12 months, and, upon any subsecjuent conviction, by a fine of not 

13 more than five hundred dollars or by imprisonment for not more 

14 than one year. 



1484 



CLERKS OF COURTS, ATTORNEYS, ETC. 



[Chap. Ifi5. 



mauTcVtiSlIr SECTION 46. Pai'tics Diaj luaiiagc, prosecute or defend their 1 

own|mt8. own suits personally, and by such attorneys as the}^ may cnijagc ; 2 

1708-11; 3| § 2! but not more than two persons for each party shall, without per- 3 

178.% 23, §2. mission of the court, be allowed to manage any case therein. 4 

1789, 58. R. S. 88, § 26. G. S. 121, § 35. P. S. 168, § 40. 



Persons 

Bpi'Oi.ally 

niithorized, 

etc. 

1781), 68. 

R. S. 88, § 27. 

G. .S. 121, § 38. 

18C6, 81. 

P. S. 159, § 41. 



Section 47. Any person of good moral character, unless he has 
been removed from practice as an attorney under the provisions of 
section forty-four, may manage, prosecute or defend a suit if he is 
specially authorized b}^ the party for whom he appears, in writing 
or by personal nomination in open court. 



1 
2 

3 

4 
5 



Lien for fees. 
1810, 84. 
1.83(1, 124. 
R. S. 88, § 28. 
G. .S. 121, § 37. 
P. S. 16a, § 42. 
.i Mass. 309. 
11 Mass. 236. 
13 Mass. .525. 
4 Gray, 357. 



Section 48. An attorne}' who is lawfully possessed of an e.xe- 1 

cution, or who has prosecuted a suit to final judgment in favor of 2 

his client, shall have a lien thereon for the amount of his fees and 3 

disbursements in the cause, but the provisions of tliis section shall 4 

not prevent the payment of the execution or judgment to the judg- 5 

ment creditor by a person who has no notice of the lien. (> 

103 Mass. 33. 176 Mass. 162. 



Penally for not 
paying over 
to <'-lient. 
1881), 166, § 1. 
G. S. 121, § .38. 
P. S. 151), § 43. 



Section 49. An attorney at law who unreasonably neglects to 
pay over money which has been collected by him for and in bt^half 
of a client, when demanded b}^ the client, shall forfeit to such client 
five times the lawful interest of the money from the time of the 
demand. 



1 

3 
4 
5 



Attorney not 
to act in suit 
previously de- 
cided by I'lini. 
170.5-6, 7, § 2. 
1815, 41), § 1. 
R. S. 81), § 8. 



Section 50. No person shall be employed or allowed to appear 1 

as attorney before a court in any proceeding, civil or criminal, 2 

which shall have been previously determined before himself as a 3 

judge of any court or as a trial justice. 4 

G. S. 121, § 39. P. S. 151), § 44. 1884, 170. 



Sheriff, etc., 
not to act as 
attorney. 
1736-7, 3. 
1742-3, 25. 
1758-1), 14. 
1783, 44, § 3. 
1822, 20. 
R. S. 14, §§ 79, 
80; 88, §§29,80. 
G. S. 17, § 64; 
121, § 40. 
P. .S. I.V.), § 4,5. 
6 Picli. 483. 



Section 51. A sherift', deputy sheriff or constable, who appears 1 

in a court or before a trial justice as attorney for any party to a 2 

suit, or who draws, makes or fills up a wi'it, declaration, plea or 3 

process for such party, or who, with intent to procure himself to be 4 

employed in the collection of a demand, or in any manner to make 5 

gain or profit therefrom, advises, counsels or encourages a person, (> 

directly or indirectl}^ to commence a suit or process, shall forfeit 7 

fifty dollars. H 



Masters in 
cliancery. 
182(1, 101), § 4. 
R. S. 88, §§ 31, 
32. 
1838, 162. 

1844, 9, 173. 

1845, 22. 
184.'<, 277. 

G. S. 121, §41. 
18118, 186. 

1873, 365. 

1874, 1. 



MASTERS, REFEREES AND ASSES.SORS. 

Section 52. The governor, with the advice and consent of the 
council, shall, as vacancies occur, appoint mastei-s in chancery so 
that the number thereof in the several counties shall be ele\en in 
Suffolk, nine in Ussex, seven in Middlesex, seven in AVorcestcr and 
not more than five in any other county. They shall be sworn, and 
shall hold their offices for a term of five years, unless sooner re- 
moved by the governor and council. 

1876, 13. 1879, 142. P. S. 1.59, § 46. 131 Mass. 204. 



Completion of 
burtincss if 
(roniiiiission 
expires. 
1844, 138. 



Section 53. A master may comi)l('t(' any unfini.shcd proceed- 
ings and processes pending before him or commenced under his 
direction notwithstanding the expiration of his commission. 



G. s. i;i, § .15. 



1'. s. 15:i, § ,50. 



1 
•) 

3 



Chap. 165.] clerks of courts, attorneys, etc. 14:85 

1 Section 54. The supreme judicial court and the superior court compensation. 

2 shall award reasonable compensation to commissioners, assessors, i^"«!5i- 

3 referees, masters in chancery and special masters, for duties per- is)9, iss! 

4 foi'med under the direction of said courts, and to arbitrators ap- '"•''• *^- 

5 pointed under the provisious of chapter one hundred and ninety-four 
(5 upon whose awards judgment is entered, which shall be paid by the 
7 counties in which they are appointed. 

AUDITORS. 

1 Section 55. When a civil action is at issue, the supreme judicial ^"-'"Jj^^- 

2 court or the superior court, in its discretion, and a police, district R- s. ae, §§ js, 

3 or municijial court, if both i)arties assent thereto in writing, may nie, 2n->. 

4 appoint one or more auditors to hear the parties, examine their im^m.'ii!'' 

5 vouchers and evidence, state accounts and report upon such matters n Met 297.^^' 
(5 therein as may be ordered b}' the court. The reitort shall be prima \l '^Hl] 3^?; 

7 facie evidence upon such matters only as are expressly embraced J^A^ie'if'.^'*' 

8 in the order. 100 Mass. 193. 112 Mass. .S20. 115 Mass. 44. ^frf ^''^°'' ^'^^' 

117 Mass. 107. 1-26 »Ia6s. 21. 129 Mass. 299. 141 Mass. .304. 

122 Mass. 505, 522. 127 Mass. 530. 1:« Mass. 54». 150 Mass. 535. 

1 Section 56. After any account of an executor, administrator, Appointment 

2 guardian, trustee or other person who is required by law to render TOurt.'^""^ 

3 an account in the probate court has been filed therein, the judge ^**'''*"- 

4 of said court nia}^ before apju'oving it, ajjpoint one or more auditors 

5 to hear the parties, examine vouchers and evidence and report upon 
(-) the same to the court. The rei)ort shall be prima facie evidence 
7 upon such matters as are expressly referred to such auditors. 

1 Section 57. The auditors shall give notice to the parties of the Notice to 

2 time and place appointed for their meeting, and may adjourn from &"s!%, §§26, 

3 time to time as may be necessary. If there is more than one ^ g, x.jj^ 55 4,^ 

4 auditor, all shall meet and hear the cause, but a report may be *^- 

5 made by a majority. p. s. 159, §§ 52, 53. 15 Gray, 351. 

1 Section 58. The court may, for cause, discharge the auditors Discharge by 

2 and ajipoint others, and may recommit the report for revision or k."s.'%. § 29. 

3 further examination to the same or to other auditors. o. s. 121, §49. 

p. S. 159, § 54. 4 Pick. 283. 100 Mass. 153. 1.32 Mass. 489. 



1 Section 59. The court in which a cause is pending may, upon Hearings iie- 

2 application of either party, appoint a day certain for the hearing i9oo,4i8,'§°™' 

3 thereof before the auditor. The hearing shall be had upon the day 

4 appointed, and shall proceed, unless the parties otherwise agree or 

5 the auditor otherwise orders, fi'om day to day until the conclusion 

6 thereof. If either party neglects to appear at the time appointed 

7 for such hearing or at any adjournment thereof, without good cause, 

8 or if at such hearing either party wilfully refases to produce in 

9 good faith the testimony relied upon by Mm, the auditor ma}- report 

10 such neglect or refusal to the court, which may thereupon enter a 

11 default or a nonsuit against such party. 

1 Section 60. The court shall award reasonable compensation to compensation. 

2 auditors, and it .shall be paid by the county if they are appointed b.^s'.w;7§3i. 



1486 



CLERKS OF COURTS, ATT0RNT:YS, ETC. 



[Chap. 1()5. 



G. S. 1-21, § 50. 
1887, BT. 
1S73, Hi. 
1878, 173. 
P. S. l.i'J, § 65. 
11*9, .311. 
U5 Mass. 316. 



by the supreme judicial court, the superior court or the probate 3 

court. If they are appointed by any other court, the conipensa- 4 

tiou awarded nuiy be i)aid by cither party and taxed in his bill of 5 

costs if he prevails ; but the jjlaintift' shall be liable for such pay- fi 

ment, and the court may make all orders and decrees, and issue 7 

jirocess to enforce the same. 8 



Reports of 
inastei'B and 
auditors. 
1888, 282. 



REPORTS OF MASTERS AND AUDITORS. 

Section 61. Auditors, masters in chancery and special masters 1 

shall file their final report in the office of the clerk of the court by 2 

which the}' are apjiointed within ninety da3's after the hearing before 3 

them has been closed or within such fiurther time as the court may 4 

allow, and, in default thereof, shall not be entitled to any fees. 5 



REPORTER OF DECISIONS. 



Section (?2. The reporter of the decisions of the supreme judi- 



Reporter of 

decisions. 

R s' 't^'sVs'e ^^^^ court shall be appointed by the governor, with the advice and 
3"- ' ' consent of the council, and shall hold his office at their pleasure. 

G. S. 121, § .51. P. S. l.W, § .56. 142 Mass. 29. 



Preparation of 

reports. 

l-i03, 133, § 1. 

1826, 31. 

R. S. SS, §§ 38, 

39. 

1838, 100. 

G. S. 121, §§ 52, 

63. 

1879, 2S0. 

P. S. 1.5i), §§ 57, 

58. 

1889, 471, § 3. 



Section ()3. He shall attend the law sittings of the court, make 1 

true reports of decisions upon all questions of law which are argued 2 

by counsel, and shall prepare them for publication with suitable 3 

head notes, tables of cases and indexes, furnish them to the publisher, 4 

and superintend the correction, proof reading and publication thereof. ^ 

He shall in his discretion rejwrt the several cases more or less at (! 

large according to their relative mn)ortance, so as not unnecessarily 7 

to increase the size or number of the volumes of reports. The 8 

reports of the decisions upon all questions of law argued and de- 9 

termined before the fii'st dav of September in each }'car shall be 10 

published within ninety daj'S thereafter. 11 



style of re. 
ports. 
1867, 2.39. 
1'. S. 139, § ( 



Section 64. The volimies of reports shall be styled " Massa- 1 
chusetts Reports ", and the name of the reporter shall not be added 2 
thereto. 3 



Preserv.atlon 
of opiuious 
until publica- 
tion. 
1874, 43. 
P. S. 139, « 61. 
142 Mass. 29. 



Section 6.5. The county of Suffolk shall provide a safe and con- 1 

venient place in the city of Boston in which the reporter shall keej) 2 

the ANTitten opinions of the coiui; in all law cases argued in the several 3 

counties until their pulilication in tiie reports, and his dockets and 4 

copies of paj>ers in .such cases, and in which he shall afford due facil- 5 

ities for their examination. 6 



Deputy to 
reporter. 
R. S. s.s, 5 41. 
G. S. 121, ? 55. 
P. S. 159, § 62. 



Section 66. If the reporter is prevented from attending at a 1 

sitting, he shall depute a suitable person to attend for him and 2 

take notes of the decisions : or the court may appoint a person to 3 

act for him until he resumes the peri'ormance of his duties, or until 4 

another is appointed. 5 



iwsjiss,'!'""''' Section 67. The reporter shall receive from the commonwealth 1 
R. s. 88,'§ 42. an annual salarv of foiu* thousand dollars, and shall be allowed not 2 



Chap. 1(55.] clerks of courts, attorneys, etc. 1487 

3 more than two thousand dollars a year for clerk hire and for the is43, 9, § i. 

4 incidental expenses of his ofBce which shall be paid by the com- il'7*;28a' ^ ^" 

5 mon wealth. Such amounts shall be in full compensation for his fss^tfi^^i^' 

6 services and for clerk liirc and incidental expenses. All fees re- i^^^-i, aso. 

7 ceived by him for copies of opinions, rescripts and other papers 

8 shall be paid by hun quarterly to the treasurer and receiver general 

9 with a detailed statement thereof. 



DEPUTY SHERIFFS AND OTHER COURT OFFICERS. 

1 Section 68. Not more than four deputy sherifl's shall receive officers of 

2 compensation for attendance upon a civil sitting of the supreme clai'uo'uit" '' 

3 judicial court unless the presiding justice in writing requii'es the p."!'. 159, lie. 

4 sheriff to procure the attendance, for the whole or a portion of such 

5 sitting, of an additional number. 

1 Section (39. Eacli officer in attendance upon the supreme iudi- salaries of offl- 

-. . 1 .1 /• 1 /r n T • • 1 T 1 ^^^^ ^^ supreme 

2 cial court in the county 01 Simolk, not exceedino^ six, including- the judicial court. 

3 messenger of the justices of said court, shall receive in full for all isseisT^Vi.' 

4 services performed l^y him seventeen hundred dollars, of which thir- ^^'"'•^^• 

5 teen hundred dollars shall be paid by said county and fom- hundred 

6 dollars by the commonwealth. 

1 Section 70. Xot more than four deputy .sheriffs shall receive officers of 

2 compensation for attendance ui)()n a sitting of the superior coiut for iSsrira! I""'"" 

3 civil business or a sitting of said coiu't for both civil and crhninal ^' *■ ^"'■'' ^ '^^^ 

4 business unless the presiding justice or the district attorney in 

5 Tiriting requires the sheriff to jirocure the attendance, for the whole 

6 or a portion of such sitting, of an additional number. 

1 Section 71. Not more than six deputy sheriffs or constables —for criminal 

2 shall receive compensation for attendance upon a criminal sitting of i8"],°fo-2, § 2. 

3 the superior com-t for criminal business unless the district attorney i'- s- loa, § us. 

4 in writing requires the sheriff" to procure the attendance, for the whole 

5 or a portion of such sitting, of an additional number. 

1 Section 72. The sheriff of the county of Sullblk shall appoint, —for superior 

court ill 

2 subiect to the apiiroval of the iustices of the superior coiut or a suifoik. 

3 majority thereof, officers for attendance upon the several sessions p. s. isy, § eV. 

4 of said court in said county, not exceeding fom- for each session for !**''• ^s,, § 1. 

5 civil business held with jiu-ies, three for each session held without 

6 juries and six for the session for criminal business. The sheriff" shall 

7 from time to time interchange said officers between the several ses- 

8 sions so as to secure, as nearly as may be, the pert'ormance of equal 

9 service bv all officers. 



Section 73. The sheriff of the county of Middlesex may appoint, —for superior 

1 f ^ • • V 1 ■ ^ /» court m 



1 ^ 

2 subiec-t to the ai)iiroval of the iustices of the superior coml or of a Mifi'tiie'sex. 

3 majority thereof, eight officers for attendance on the sessions of said i8ii5i24B!§L 

4 comt for civil or criminal business. Such officers shall, when re- 

5 quired hy the sheriff, attend the sessions of the supreme judicial 

6 court and probate comt, when not in attendance on the superior 

7 court. 



1188 CLEUKS OF COUUTp;, ATTOUNEYS, ETC. [ChaF. 165. 

Authority ' SECTION 74. Each of the officers named in the two preceding 1 

18*. 357, §§ 2, 3. sections shall give to the sheriff of the count}' a bond with sufficient 2 

sureties, in the siun of fifteen hundred dollars, for the faithful per- 3 

forniance of his duties. Such officers shall have the authority of 4 

constables to serve venires for jurors and the processes of said coiu'ts, 5 

ajid shall be paid by the county their actual expenses necessarily 6 

incurred in making such services. 7 

atl^ndanceat SECTION 75. Dcputv sheriffs who do uot Tcceivc an annual sal- 1 
m/'ii 6 1 ^^y ^^^^^^ ^^ P^i^ ^^^ dollars a day by the county for attendance 



'} 



R. s'. 1-22, §§'o, 8. upon the supreme judicial court or the superior court or the probate '6 
1856; 18.^. " court or court of insolvency, and five cents a mile for travel out 4 
See,' 190! ' ' and home once a week, during such attendance. Constables shall 5 



i87»; 227; § 1. be paid four dollars a day for such attendance and the like amount 6 

1882 '232 '1 2.^' ^^^' travel. Said officers or any officers additional to those allowed 7 

1895' sei' ^y ^^^ provisions of section sixty-nine whose attendance may be 8 

189'?; 342! required b}' the supreme judicial com-t in the county of Suffolk 9 

shall, if deputy sheriffs, receive five dollars and, if constables, four 10 

dollars and fifty cents a day for attendance upon said court, and 11 

for travel, the same as in other counties. Said compensation, when 12 

said court is sitting for the commonwealth, shall be paid by the 13 

commonweajth, and in other cases by the countj^ 14 

offlcers^n* SECTION 76. Each officer in attendance upon the sessions of the 1 

eupiTior oojirt superior court in the county of Suflblk and Middlesex and the 2 

-MiiiiiksLX. messenger or the justices oi the superior court shall receive in full 3 

isT7| iBHi§§i,'3. for all services performed by him an annual salary of seventeen 4 

1882,' 215,' la/' hundred dollars which shall be paid monthly by said counties, re- 5 

isseisT^M- spectively ; and said officers in the count}' of Middlesex shall, in 6 

1895' 246 1 2- addition, receive ten cents a mile for ti'avel out and home once a 7 

week during such attendance if such distance exceeds five miles in 8 

one direction. Any additional officers whose attendance may hv, 9 

requu'cd in said court in the county of Suffolk, as provided in sec- 10 

tions seventy and seventy-one, shall be allowed three dollars for each 11 

day of service actually rendered, which shall be paid by said county. 12 

unit J^ms* ^^"^ SECTION 77. The officers named in sections sixty-nine, seventy- 1 

i89i'isi' three and seventy-six and deputy sheriffs in attendance upon the 2 

1892^ 107; §§ 3, 5. sui)reme judicial com-t or the superior court in the county of Suffolk 3 

' ' ' ■ or Middlesex shall, while on duty in said coiuts, wear uniforms which 4 

shall be designated by the sherifl' of the count}' and, except the deputy 5 

sheriffs in the county of Middlesex, shall each be annually allowed 6 

by the respective counties one hundred dollars in addition to the 7 

salary allowed by law in order to provide such uniforms. 8 

w'itSirsses"^"' Section 78. The officers in attendance upon the sessions of the 1 

officers iu superior court for criminal business in the county of Suffolk shall 2 

1879, 193. summon witnesses on behalf of the commonwealth from any iiart of 3 

P S 159 § 70 . . . 

' ' ' ' the commonwealth, but shall receive therefor no compensation in 4 

addition to theii* salaries except for expenses actually incurred and 5 

paid. 6 

drlwd^ouwe" SECTION 79. No deputy sheriff or constable who is in receipt of 1 

pay- a salary .from the county shall bo designated to attend, for couipen- 2 



C'hap. 1I)5.] clerks of coitrts, attokxeys, etc. 1489 

3 sation ))}' the da^-, upon the sessions of the supreme judicial coui't }^5?'iS:'§*- 

4 or the superior court, and no deputy sheriff or constable shall re- p.'s. m, §71. 

5 ceive compensation for attendance upon the sessions of more than 

6 one court, nor upon more than one session of the same court, on 

7 the same day. 

STENOGRAPHERS . 

1 Section 80. The justices of the superior court, or a majority Appointment 

'2 of them, shall appoint a stenographer for each regular session of said p'lefs""'''"'" 

3 court held for civil business and for the session of said court held p™'.^iK(',f§ Vl' 

4 for criminal business within and for the county of Siiifolk, and a l*^ .-^^ „ ^ 3 

stenographer for said court in all other counties. They may also, if f^.^. ,, ',, 

6 the business of the coiu't requires it, appoint an additional stenoir- i««i4u4. 

7 rapher in any county except Suffolk, who shall serve when desig- isae! 459! §§ li s! 
<s nated for duty. Each stenographer shall be an officer of the court 

!l and shall be sworn, and the same person may be appointed stenog- 

10 rapher for more than one count3^ Such justices, or a majority of 

11 them, may remove said stenographers at an}' time, and may till a 

12 vacancj' which is caused by such removal or otherwise. 

1 Section 81. Each stenographer who is appointed for the county -of aseietnnts 

2 of Suffolk under the provisif)ns of the preceding section may, with p.'s.asi', §75. 

3 the approval of any justice of said court, appoint one or more assist- i'^;!^];!^; 

4 ants, who shall also be sworn ; but no additional compensation shall 1**. «'J. § 4- 
f) be paid or expense incurred by reason of such appointment. The 

(i presiding justice of said court may, except in the county of Suffolk, 

7 in case of the illness or temporary absence of the stenographer, ap- 

8 iroint a competent person to act during such illness or absence. 

1 Section 82. The presiding justice of any special or temporary Temporary 

2 session of the superior court for civil or criminal business in the fn'^suSolk."^'^ 

3 county of Suffolk may, in his discretion, appoint one or more IsummJs; 

4 stenographers to attend therein, M'ho shall be officers of the court 

5 and who shall be sworn. But it shall not be necessary to ap{)oint 

6 a stenographer for any session for civil business if the justices do 

7 not consider it of a permanent and continuous character. 

1 Section 83. At the trial of any issue of fact in the supreme stenographer 

2 judicial court, or at the trial of any criminal case in the superior JudiHfflnl 

3 court, the presiding justice may appoint a stenographer, who shall eourta!"^ 

4 be sworn. i^^^- *"^' § i- 

1 Section 84. A justice of the superior court may, upon the —lor grand 

2 request of the district attorney, appoint a stenographer, who shall i89f,'478, § 2. 

3 be sworn and who shall take stenographic notes of such testimony 

4 given before the grand jury as he may dii'ect and shall provide him 

5 with a transcript fully written out of such part of said notes as he 

6 may re(|uire. The provisions of this section shall not authorize 

7 the taking of any statement or testimony of a gi-and juror. 

1 Section 85. Stenographers shall attend the sessions of the Duties of 

2 courts for which they are appointed, and those who are appointed isto"!™^'^.™" 

3 for jury sessions of the superior court for civil business in the county i8s5,'2S)'i,'|'?' 

4 of Sutiblk shall, when directed by the justice presiding in such i*I'.|*'§5 1.2; 



1400 CLERKS Of COUKT8. ATTORNEV8, ETC. [ClIAl>. K!."). 

181)2,133. session, serve in any other of said sessions as the necessities of the 5 

iRusi 489, |§ 2, 3. service may require. Said stenographers, unless excused there- (> 

1897, «8, §1. from by the presiding justice, stenographers for criminal business 7 

in the county of Sufiblk, upon the retjuest of the presiding justice, 8 

the district attorney or the defendant, stenographers for civil busi- 9 

ness in counties except Suttblk and stenographers a})pointed under 10 

the provisions of sections eighty-two and eighty-tlu'ce shall take 11 

stenogi'aphic notes of all the evidence given at each trial in their 12 

respective coiu-ts and of the rulings and charge of the presiding l;i 

justice, and, when requested by him, shall read from such notes 1-J 

in open court any ])ortion of the testimony so taken and, upon l.'i 

request, shall provide him with a transcript of such notes, fully li> 

■written out, of such part of said testimon_v, rulings or charge as 17 

may be desired, and, upon request, shall within a reasonable time 1<S 

furnish to either party a like transcript, upon jiayment b}' the party IH 

requesting it of ten cents a hundred words for each copy so fur- 20 

nislied. If the transcript is furnished at the re(iuest of the pre- 21 

siding justice, the stenographer shall be paid therefor at the same 22 

rate by the county, upon a voucher approved by the justice, and, in 23 

criminal cases in the county of Suftblk, such expense and the ex})ense 24 

of transcripts furnished to the district attorney shall be taxed 25 

like other expenses. The stenographer appointed for the criminal 26 

session of the superior court for the county of Sutlblk, when not 27 

employed in said court, shall perform such services as stenographer 28 

as may be required by the district attorney, and shall receive the 21t 

same compensation for transcripts as is hereinbefore provided. 30 

stenographers. SECTION 86. Eacli Stenographer who is appointed for the ses- 1 

1894, 424, §3. sions of the superior com't for civil business without jiu"ies in the 2 

county of Suftblk shall attend therein wiien requested by the presid- 3 

ing justice, and shall perform the duties required by the preceding 4 

section of stenographers in the jury sessions of said court, and shall ^ 

render such other clerical assistance to the justices of said court as (> 

said justices may consider necessary. He shall receive for tran- 7 

scripts furnished to parties the compensation provided in the pre- 8 

ceding section. 9 

sei^Ires""^* "' Section 87. Official stenographers of tlie superior court in the 1 

18% 4OT Ig' same or diflerent counties may, with the consent of said court, in- 2 

terchange services or perform the duties of each other. 3 

TOmpiMmfiHon. Section 88. Stenographers who are appointed for the sessions 1 

1^'"' •','--!; Us of the superior court for civil business with iuries in the count v of 2 

1 . N. I.V.I, § |2. - , A .... * 

iss^'' ^u'iV-' Suiiolk and the stenograjiher appointed for the session of said court 3 

74;§i. ' ' for criminal business in said county shall each receive an annual 4 

isiis; 404; 4.')2. salary of twent^'-five hundred dollars which shall be paid In* the .5 

424?§ri', it?"' county; stenographers appointed for the sessions of said court with- ti 

iSr?; 478. ^^ ^' ^' 0"t juries shall each receive such salary as the justices of said court 7 

19U1, 32S). shall establish, not exceeding twent3'-fivc hundred dollars which 8 

shall be paid by the count}'. The stenographers appointed for the 9 

superior court for other counties which contain a population of more 10 

than two hundred thousand shall each receive such salary as the 11 

justices of .said court shall establish, not exceeding twenty-five 1- 

iiundred dollars a year. Stenographers ajipointed foi' the superior 1 •) 



Chap. 166.] provisions relative to courts. 1491 

14 court for civil business in other counties shall each receive nine 

15 dollars for each day's actual and necessary attendance at court which 
1(5 shall be paid by the county upon the certificate of the presiding 

17 justice as to such attendance. Stenographers appointed under the 

18 provisions of section eighty-three shall each receive ten dollars for 

19 each day's actual and necessary attendance at court, and the stenog- 

20 rapher appointed under the provisions of section eighty-four, a like 

21 amount and ten cents a hundred words for transcripts furnished to 

22 the district attorney which shall be paid by the county. Stenog- 

23 raphers appointed under the provisions of section eighty-two shall 

24 each receive nine dollars a day for each day of actual and necessary 
2.5 attendance in court and the same amount for transcripts as is 
iio allowed by section eighty-five. 



CHAPTER 166. 

OF PROVISIONS RELATIVE TO COURTS AND OF NATURALIZATION. 

Sections 1-13. — Provisions relative to Courts. 
Sections 14-20. — Naturalization. 

PROVISIONS RELATIVE TO COURTS. 

1 Section 1. The courts of the commonwealth, the justices thereof pu°.|re'of 

2 and trial justices shall have and e.xercise all the powers which may ji^^/'f c.j 

3 be necessary for the performance of their duties. They may issue all 17x3! ie, § i. 

4 writs, warrants and processes and make and award judgments, de- I'w'Vi.' 

5 crees, orders and injunctions which iw&y be necessary or proper to ss, I'sb;'!!, §9- 

6 carry into effect the powers granted to them, and, if no form for i?r)l,1]*7'i!*§'l.^*' 

7 such \vrit or process is prescribed by statute, they shall frame one in fie'Vir'fiT' 

8 conformity with the principles of law and the usual com-se of pro- f.-'i,' V-'i- 1 ^J- 

9 ceedings in the com'ts or this commonwealth. 154, §12; 155, 

* § 67 ; 150, § 23. 

1893, 396, § 57. 2 Met. 271. 155 Mass. 486. 

1 Section 2. The justices of the supreme judicial court and of the .luBtioes to be 

2 superior com't, justices and special justices of police, district and of'the"eac™ 

3 municipal courts, by virtue of their offices, and justices of the nsi'V/i.*"' 

4 peace shall be conservators of the peace thi'oughout the common- }Ig' g' § i- 

5 wealth and as such may, upon view of an affray, riot, assault or ^f^SVi'l^ 

6 battery, without a wan-ant in AVTitins:, command the assistance of is.54,33.5,'§'5. 

7 every sheriff, deputy sherili', constable and police officer and of all g!'s'. iis, §2'; 

8 other persons present for its suppression and for the arrest of all i-'.Vili, §2; 

9 persons concerned therein as provided in chapters two hundred and |''^.'^^^' ^^^' 

10 sixteen and two hundred and seventeen. Persons so arrested shall ^uVay''m^' 

11 be taken before a police, district or municipal com't or a trial justice 

12 for examination. 

1 Section 3. In writs, processes, records and judicial proceed- fittf,'g'Yow 

2 ingfs, civil or crmiinal, the day on which anv sitting is to commence i'6i,Kn-';te<i- 

3 maybe designated as the first, second or other Monday, or other ism.'hw, §i8. 

4 day in the week, as the case may be, of the month in which the rj^^u.^' 

5 sittina: commences. p. s. 153, § 21 ; leo, § 1. 



Ii92 



PROVISIONS RELATIVE TO COURTS. 



[Chap. 166. 



Clmnfce of 
time and place 
of court. 
ITUiMl, 1-2. 

na:, ii,, § lo. 

R. s. W), §« 2, 3. 
G. S. 122,§§2,3. 
P.S. ItiO, §§-2,3. 



Section 4. If it is unsafe or inexpedient to hold a court at the 1 

time and place appointed, a justice of the coiu't may appoint anotlier 2 

time and place within the same count}' for holding the same. Such 3 

adjournment shall be made b}^ an order in \vriting, signed b}' the 4 

justice or justices, and served by public proclamation bv the person .5 

to whom it is du-ected in the shu'e town or as near thereto as is 6 

safe, and also bj^ publication in such newspaper or in such other 7 

manner as is required in the order. 8 



Courts not to 
be open Sun- 
day, etc., 
unless, etc. 
B. S. W), § 4. 
18.5(1, 113, § 1. 
G. S. 1-22, § 4. 
18S11, 71. 
J>. .S. KW, § 4. 
181)4, 130, §§ 3, 4. 
18%, IH2, ? 1. 

13 Mass. 347. 

14 Allen, l.W. 
107 Mass. -209. 



Skction b. Com'ts shall not be opened on Sunday, on a legal 1 

holiday or the following day if a holiday (jccm's on Sunday, except as 2 

provided in section four of chapter one hundred and fift3'-eight or 3 

except for the pm'pose of entering or continuing cases, instructing or 4 

discharging a jiu'>', receiving a verdict or adjom-ning : but the pro- .5 

visions of this section shall not prevent the exercise of the juri.sdic- 6 

tion of any magistrate in crhuinal cases to preserve the peace or arrest 7 

oflenders. 8 



Sheriffs, etc., SECTION 6. Slierifls, deputv sheriifs, coustables and othcT officcrs 1 
p™<™8- shall serve all lamul processes issued by a court, judge, judicial 2 

4B, §1.' ' officer or countv commissioners which are legally directed to them. 3 

1817 IS " 190 § 1 o *' 

R. S. 14, § 68; 83, § 11 ; 84, § 3; S.5, § 30. G. S. 122, § 5. P. S. 160, § 5. 



Attorneys, 
etc., nol'to buy, 
etc., demands 
for collection. 
1811, fi2. 

R. S. 811, §§ 5-7. 
G. S. 122, ^ 6, 7. 
P. S. KiO, §§ 6, 7. 
13 Pick. 79. 
109 Maes. 237. 
138 Mass. 530. 



Section 7. An attorney, ju.stice of the peace, sheriff, deputy 
sherifi' or constable who, directly or indu-ectly, buj's or is interested 
in buying, or, du'ectly or indirectly, lends or advances or agrees 
to lend or advance any money or other goods, or gives or promises 
any valuable consideration whatever to any person, as an induce- 
ment to place or in consideration of having placed in the hands of 
any person any bond, note, book debt or right of action for collec- 
tion, with intent to make for himself any gain from the fees arising 
from such collection by legal proceedings, shall, for each oflence, 
forfeit not less than twenty nor more than five hundred dollars. 



1 

2 
3 
4 
.") 
6 
7 
8 
it 
10 



Criers. 
1859, 207. 
G. S. 122, § 12. 
P. S. 160, § 12. 



Section 8. Clerks or assistant clerks of courts, .sheriffs or their 1 

deputies, as the court may direct, shall perform the duties of criers, 2 

^vithout additional compensation ; and any officer may adjourn the 3 

com-t by order thereof. 4 



Judfie, etc., 

not disftuali- 
lieilb>- interest, 
when". 
1808, 19, § 2. 
1815, 103, § 2. 
1.S28, 13, 5 3. 
R. S. 90, « 124. 
1><K, 4, « 13. 
G. S. 122, § 1.3. 



Section 9. No person .shall be disqualified from acting as judge, 1 

magistrate, appraiser or officer of any kind in a suit or proceeding 2 

in which a city or town is interested by reason of his interest as an 3 

inliabitant thereof. No juror shall be disqualified by reason of 4 

being an inhabitant of the city of Boston. p. s. leo, §13. 5 

^ 2 Allen, 39G, 402, 5%. 139 Mass. 315. 147 Mass. 585. 157 Mass. 14. 



iudSi'^ofli™r Section 10. No person who holds a judicial office under the laws 1 

186.5, 489, § 14. ' of the United States shall hold any judicial office under the consti- 2 

G. .s. 144, § 67. tution and laws of this commonwealth, exceiJt that of trial justice or 3 

1868,24,5 1. • .• .-tl A 

P.S. 160, §14. justice ot the peace. * 



Sfnknf.l"- Section 11. No person who holds the office of referee in bank- 1 

nottoimul ruptcy under the laws of the United States shall at the same time 2 
iH67!'3!57?§'2!°' hold any judicial office, except that of justice of the peace, nor the 3 



Chap. 1(!(3.] naturalization. 1493 

4 ofEfo of clerk or assistant clerk of anv coiu't, or register or assistant 

5 register of probate and insolvency, under the laws of this common- 

6 wealth. 

1 Section 12. Any court or trial justice may exclude minors as Minora may be 

2 spectators from the coiu-t room during the trial of any cause, civil or coSltrooi!?!*'"' 

3 criminal, if their presence is not necessar}' as witnesses or parties. p.*s' wfo §i6 

1 Section 13. Commitments for contempt of court may be made commitments 

2 to any jail in the commonwealth ; and processes issued in proceed- se^™eoi"'''' 

3 ings relative to alleged contempts may be served b}^ any sheriff or i^*^**^'. 

4 deputy sheriff to whom they are dii'ected in any other count}' as 

5 well as in that for which such sheriff' or deputy sheriff is chosen or 

6 appointed. 

naturalization. 

1 Section 14. The supreme judicial court, the superior court, Jurisdiction of 

2 and, if it has common law jurisdiction, a seal and a clerk duh- isob, +7, §"i. 

3 appointed by the governor, any police, district or numicipal court, (Ts. 122, § s. 

4 may, respectively, have jurisdiction of primaiy declarations of inten- i8S5,'3«,'|i.' 

5 tion of aliens to -become citizens of the United States, and of final }syi;4?^: 

6 applications for naturalization of aliens ; but no declaration or ap- !''*-• ^**- 

7 plication shall be received by the supreme judicial court or the 

8 superior court unless the ajiplicant resides in the county in which 

9 the coiu't is held, nor by any police, district or municipal court 

10 unless the applicant resides in the district for which the coiu-t is 

11 established. If the applicant does not reside in the judicial district 

12 of anv police, district or nuuiicipal court which has a seal and a 

13 clerk duly appointed by the governor, he may apply to such one of 

14 said courts as is held nearest to the town in which he resides. 

1 Section 1.5. Primary declarations of intentions of aliens to Primarj- 

2 become citizens of the United States may, at any time, be filed in when iuid"^' 

3 the supreme judicial court or the superior comt, or in a police, c^s.^iif I'g. 

4 district or municipal court which has jurisdiction of naturalization, J^^f ■^''' ^ *• 

5 and tlie required oath may be administered by the clerk at the is^i' i*'''- 
(> time such declaration is filed and a record thereof shall be entered 

7 on the docket. 

1 Section 16. Every application for naturalization shall be en- Final appiica- 

2 tered on the docket of the com-t and final action thereon shall be mei' "'"^" 

3 had at any regular sitting of the com't. Such ajiplication shall con- \^' li^' f f 

4 tain the name, age, occupation and residence of the applicant, the 

5 name of the street and number of the house in which he resides, 

6 the names of the persons whom he intends to smnmon as witnesses 

7 at his final hearing and the name of the street and number of the 

8 house in which they severall}' I'eside ; but if the name of the street 

9 or the nimiber of the house thereon cannot be given, the place of 

10 residence shall be described with sufficient accui'acy for identifi- 

11 cation. 

1 Section 17. A record of every application for naturalization. Record and 

2 the action thereon and the names and residences of the witnesses urSlzltion"*'' 

3 shall be kept by the clerk of each com-t and a return shall be made j^l^; gg^- ^ ^- 



1494 



NATURALIZATION. 



[Chap. 1(5(5. 



annually, on or before the fii'st day of February, to the secretary of 
the commonwealth, of the name, age, occupation and residence of 
every person naturalized prior to the first day of the preceding Jan- 
uar}^ the date of the natm'alization and the names and residences 
of the witnesses. Such returns shall be preserved by the secretary 
in a form convenient for reference. 



I 

8 
9 



Fees. 

1879, 300, § 3. 
P. S. 199, § 4. 
1886, 345, § 6. 
1897, 605. 
1900, 374, § 3. 
[1 Op. A. G. 
438.] 



Penalties. 
1865, 28, § 2. 
G. S. 122, § 11. 
P. S. IBO, § 11. 
1886, 345, § 8. 
4 Gray, 569. 



Attending 
officers. 
1886, 345, § 10. 



Section 18. The fees of clerks of all courts under the provi- 1 

sions of the four preceding sections shall be as follows : for receiv- 2 

ing the primary declaration or ap})lication for the natm'alization of 3 

an alien, one dollar; for the final declaration or application for the 4 

naturalization of an alien, two dollars ; for making out the papers 5 

for either of said declarations, one dollar. AW fees in natm'alization (> 

cases shall be accounted for and paid over by said clerks to the 7 

treasm'ers of their respective counties, who shall pay them to the 8 

treasurers of county law libraries, the same to be in addition to 9 

the sums which such associations arc otherwise entitled to receive 10 

by law. No primary or final certificate shall issue until the fees 11 

provided for in this section are first paid. 12 

Section 19. A clerk or other person who records or files such 1 

application or declaration or issues a certificate in violation of the 2 

provisions of sections sixteen or seventeen shall be punished by a 3 

fine of twenty-five dollars. 4 

Section 20. The justice of a police, district or municipal court, 1 

when sitting for natm'alization, may designate not more than two 2 

constables of the city or town, or deputy sheriifs of the county 3 

within which the coiu't is held, to attend the com't. Their fees shall 4 

be the same as are provided for attending the superior coiu't, and 5 

shall be approved and paid by the county like expenses in crmiinal 6 

cases. 7 



TITLE II. 

OF ACTIONS AND PROCEEDINGS THEREIN. 

Chapter 167. — Of the Commencement of Actions and the Service of Process. 

Chapter 168. — Of Arrest on Civil Pi-ocess. 

Chapter 169.— Of Bail. 

Chapter 170. — Of Proceedings against Absent Defendants and upon Insuffi- 
cient Service. 

Chapter 171. — Of the Survival of Actions and of the Death and Disabilities 
of Parties. 

Chapter 172. — Of Actions by and against Executors and Administrators. 

Chapter 173. — Of Pleading and Practice. 

Chapter 174. — -Of Set-off and Tender. 

Chapter 175. — Of Witnesses and Evidence. 

Chapter 176. — Of Juries. 

Chapter 177. — Of Judgment and Execution. 

Chapter 178. — Of the Levy of Executions on Land. 



CHAPTER 167. 

OF THE COMMENCEMENT OF ACTIONS AND THE SERVICE OF PROCESS. 

Sections 1-14. — Venue of Actions. 

Sections 15-25. — Forms, Issuing and Return of Writs. 

Sections 26-37. — Service of Writs. 

Sections 38-57. — Attachment of Property — General Provisions. 

Sections 58-65. — Attachment of Real Estate and Leasehold Estates. 

Sections 66-68. — Attachment of Corporate Shares. 

Sections 69-78. — Attachment of Encumbered Personalty. 

Sections 79-81. — Supplementary Process. 

Sections 82-96. — Sale of Personal Property Attached. 

Sections 97-100. — Attachment of Share of Joint Owner of Personalty. 

Sections 101-109. — Fraudulent Attachments. 

Section 110. — Reduction or Discharge of Attachment. 

Sections 111-127. — Dissolution of Attachment. 

Section 128. — Execution of Bonds. 

VENUE OF ACTIONS. 

1 Section 1. A transitory action shall, except as otherwise pro- venue of 

2 vided, if any one of the parties thereto lives in the commonwealth, aSious""^^ 

3 be brought in the county in which one of them lives or has his luJlso! E.^' 

4 usual jjlaee of business. " If brought in any other county, unless R't'.'lw.lfu, 

5 transferred under the provisions of section fourteen, the writ shall YI^h.-.^h. 

6 abate and the defendant shall l)e allowed double costs. If neither i|< i£' 

[U9.i] 



1 

1 

ISTll, 134. 



14:90 COJDIENCEMEXT OF ACTIONS, SERVICE OF PROCESS. [ChaP. 167. 

G. s. 123, § 1. part}' lives in the commonwealth, the action may be brought in any 7 

I*. S, 161, § 1- "i * o 

eUray, 12J. COUnty. ISGray, ,tO. 4 AUcu, IT, 3C5. 14 Allen, 94. 152 Mass. 26S. 156 Mass. 5*2. O 

tainsftorV Section 2. A transitorv action in a jiolice, di-strict or municipal 1 

aitions in coiirt shall be broujjht in the count>' in which one of the defendants 2 

interior courts. ,,. it ,.,.'' 

R. s. K7, § 35. lives or has his usual place ot business, or, ii commenced bv the trus- 6 

186«,"47. ' " tee process, in the county in which all the persons named in the writ 4 

})<7'4l -iTi, § 8. as trustees live or have theirusual jjlaces of business, and. in cither 5 

IS,.,, i*.§-'- case, in a court within whose judicial district one of the parties lives tj 

or has his usual place of business ; or, if no one of the parties lives 7 

i.' w^^'lif eo- *^^' ^^^ ^ usual place of business within a judicial district, then in 8 

Ho, §3.' ' ' any such com't in said couutv. An action of summarv process under 9 

iswl sasi § iV the provisions of chapter one hundred and eiijhty-one shall, if the 10 

iKiMass. 440. land in controversy is situated within a judicial district, be brought 11 

iTo MasI; 67o'. i^ tlie court for that district; otherwise, it may be brought in any 12 

such court in the county in which the land is .situated, ^aid courts 13 

shall have jurisdiction of a transitory action against a defendant 14 

who is not an inhabitant of this commonwealth if jiersonal service 15 

or an eflectual attachment of property is made \\'ithin the common- 16 

wealth: and such action may be brought in any of said courts in 17 

the county in which the service or attachment was made. 18 

i7f ?epi'evi'n.° SECTION 3. An actioD of replevin shall be brought in the county 1 

U^i' 'f,'J f'oc in which the goods or beasts are detained, g. s. 143, § 11. p. s. is4, § 11. 2 

i7v°tb"TOm-^ Section 4. A civil action in which the commonwealth is plain- 1 

moiiweaitii. tift* or lu wMch uioncv due to the commonwealth is sought to be 2 

p. s. 161, § 4. recovered may be brought in the county in which the defendant 3 

lives or has his usual place of business, or in the county of Sutiblk. 4 

IT^d^aKaiust ''"'^ SECTION 5. A local or transitory action b}' a county shall be 1 

'm°u»' brought in the county in wliich the defendant lives or in a i-ounty 2 

R. s. 'jo,§§ i!i, adjoining the plaintift" county. If the defendant lives in the plaintiff 3 

G.'s.i23,§§3,4. county, it shall he brought in an adjoining county. Such action 4 

p. s. 161, §§5,6. a^g^jjjgj g^ countv shall, at the election of the plaintiff, be brought 5 

in the county in which he lives, in the defendant count}' or in an 6 

adjoining count}'. 7 

■afnTt'to'wns SECTION 6. An action against a cltv, towu or pcrson to Tccover 1 



against towns. 



■i 



et<:. fortufect- for injiu-v OT damage received by reason of a defect, want of rei)air 

ive highways, ,. ■ '. ,,, . ^ . , . . • i . i j_ o 

eu-. or 01 an msuincient railinu; in or upon a highwaA', town way, cause- 6 

p. s.ici, §7. way or bridge shall be brought in the county in which said cit}' or 4 

town is situated or said person resides ; but such action against 5 

the city of Boston may be brought in the county of ^Middlesex, in 6 

the county of Xoifolk or in the county in which the plaintiff resides, 7 

and such action against the town of Nantucket or against any town 8 

in the countv of Dukes Count}' may be brought in the countv of 9 

Bristol. ^ ' 10 

rv^an"!! against SECTION 7. TiTinsitory actions, except those mentioned in the 1 

r'3'"k!'*«T-^' preceding section, to which a corporation, other than a county or 2 

1836,' 4, § '12. ' the city of Boston, is a partv mav l)e brouijht as follows: 3 

P.' s: im. § s! First, If both parties are cities, towns or parishes, in the 4 

ecusiKsli. county in which either party is situated. 5 



Chap. 167.] cojijiencement of actions, sekvice of process. 1491 

(} Second, If both parties are corporations, other than a city, town luoray, ii6. 

7 or parish, in any county in which either corporation has an estab- is* jiass.'yi. 

8 lislied or usual place of business, or in which it held its last annual 

9 nicetine, or usually holds its nieetiiisjcs. 

10 Third, If one party is a corporation named in the two preceding 

11 clauses, and the adverse party is a natural person, in any county 

12 in wliich, b_y the provisions of said clauses, the corporation uiiglit 

13 sue or be sued, or in the county in which the natiu'al person lives or 

14 has a usual place of business. 



1 Section 8. An action by or against the city of Boston, except J.™^fj°/ 

2 actions mentioned in section six and ai'tions by the collector of said |i;'«?ns by and 

3 cit}' under the provisions of sections thirty-two and thirty-thi'ee of Boston. ' 

4 chapter thirteen, may be brought in the county of Suilblk, Essex, His; m;i\. 

5 Middlesex or Norfolk, or in the county in Avhich the plaintili" lives. K^s."i, §§120, 

1836, 4, §13. G.S. 1», §6. 1878,225. P. S. 161, § 9. l-l- 

1 Section 9. The defendant or tenant in an action brought in — reniovai 

2 the county of Suflblk by the city of Boston or by its collector majs of's'itfoik!'"'' 

3 if the action is brought in the supreme judicial court or the supe- R.^'.lio,|§'i22, 

4 rior court, within thu'ty days after the day for appearance, or if the J'^;., 4 513 

5 action is commenced in a police, district or municipal court and ij|':^M,"A 

6 taken to the superior court on appeal, witiain tlurty days alter is85, 384, §14. 

7 tlie entry of the appeal, file a motion in wTiting for the removal 

8 of the action to the county of P^ssex, Middlesex or Norfolk, and 

9 the court shall thereujion order it to be removed to tlie same court 

10 in such one of said counties as the attorney of the city of Boston 

11 elects. 

1 Section 10. A transitory action by or against an executor or —by and 

2 administrator may be brought in an^- county in which it might have 'iSri^eu^.^^''^' 

3 been lirought by or against the testator or intestate at the time of p.*^!'. itiif §'2. 

4 his decease. 

1 Section 11. If a tract of land lies in two or more counties, an Actions reia. 

2 action relative to it, to which neither a county, the city of Boston in different 

3 nor any corporation named in section seven is a party, may be isM^sr*'''*' 

4 brouglit in any of said counties, and the declaration shall be so p-LJeiJI 

5 drawn as to include the whole tract. 102 Mass. 461. 

1 Section 12. If the supreme judicial court or the superior court 9^ange of 

2 finds tliat a party to an action or proceeding pending therein cannot, I887, 347. 

3 by reason of local prejudice or other cause, have an impartial trial 

4 in the county in which the action or proceeding was commenced, 

5 it may, upon the application of eitlier party, order it to be re- 

6 moved for trial to another county. Upon the entry of such order, 

7 the clerk of the court in which the action or proceeding is pending 

8 shall forthmth transmit all the papers in the case, and a certified 

9 copy of said order to the clerk of the court for the count}^ to which 

10 it lias been ordered to be removed. The clerk who receives such 

11 papers and order shall forthwith enter them on his docket, and 

12 the case shall thereupon proceed as if it had been originally com- 

13 menced in the county to which it has been removed. 



1498 



COMJEENCEMENT OF ACTIONS, SERVICE OF PROCESS. [ChaP. 167. 



Venue for 
recovery of 
lurleituVee. 
K. S. mi, § 17. 
(i. S. 123, § 8. 
P. S. 161, § 11. 



Section l.S. A civil action for the recovery of a forfeiture, ex- 1 

cept an action in wliich the commonwealth is plaintiti", or in which 2 

money is sought to be recovered for the commonwealth, shall be 3 

brought in the county in which the offence was committed, unless 4 

the statute imposing the forfeiture otherwise provides. 5 



Erroneous 
venue. 

1851, 23.S, § 117. 

1852, 312, § 80. 
G. S. 12<J, § 70. 
1880, 251. 

P. S. 161, §12; 
167, § 73. 
130 M.188. 33.^. 
133 M;iB8. 466. 
152 Mass. 268. 



Section 14. If a local action which is commenced in the supreme 1 

judicial court or the superior court has been brought in an erroneous 2 

venue, the court may, if the error is discovered at the trial, of its own 3 

motion order a nonsuit, unless good cause is shown why the trial 4 

should be allowed to proceed ; or, if the error is discovered at a,ny 5 

stage of the proceedings of an action, local or transitoiy, the court 6 

may, upon motion of either part}^ order the action, with all papers 7 

relating thereto, to be transferred to the proper county upon terms 8 

to the defendant ; and it shall thereupon be entered and prose- It 

cuted in the same court for that county as if it had been originally 10 

commenced therein, and all prior proceedings otherwise regularly 11 

taken shall thereafter be valid. 12 



Civil actions, 
liow eom- 
iiieneed. 
Const., pt. 2, 
c. 6, art. 5. 
1784, 28. 
17!)4. 65, § 1. 
R. .S. 90, «? 1, ; 
7-U; 10!i, §§2, : 
G. S. 123, §§ 'J, 
10, 13-15; 142, 
|§ 2, 3. 

P. s. 1.5.5, § 17; 
161, §§ 13, 14, 
17-19 ; 183, § 2. 
3 Mass. 193. 



FORMS, ISSUING AND RETURN OF WRITS. 

Section 15. Actions at law, unless founded on scire facias or 1 

other special wTits, or unless otherwise authorized by statute or by 2 

established practice, shall be commenced by original writs. kSuch 3 

writs shall be signed, sealed and bear teste as required by the con- 4 

stitution, and shall be framed either to summon the defendant, with r> 

or without an order to attach his goods or estate, or to attach his tJ 

goods or e.state and, for want thereof, to take his body ; or, in an 7 

action commenced by the trustee process, to attach his goods or 8 

estate in Ms own hands and also in the liands of the trustee. Orig- 9 

inal writs shall be in the form heretofore established by law and by 10 

the usage and practice of the courts. If changes in their form arc 11 

necessary in or