131. Proceedings to sell real estate, how conducted. Upon the return of the summons the proceeding shall be as is directed in other like cases. 132. Order of distribution. The surplus of the estate, in case of intestacy, shall be distributed in the following manner, except as hereinafter provided: 1. If there are not more than two children, one-third part to the widow of the intestate, and all the residue by equal portions to and among the children of the intestate and such persons as legally represent such children as may then be dead. 2. If there are more than two children, then the widow shall share equally with all the children and be entitled to a child's part. 3. If there be no child nor legal representative of a deceased child, then one-half the estate shall be allotted to the widow, and the residue be distributed equally to every of the next of kin of the intestate, who are in equal degree, and to those who legally represent them. 4. If there be no widow, the estate shall be distributed, by equal portions, among all the children, and such persons as legally represent such children as may be dead. 5. If there be neither widow nor children, nor any legal representative of the children, the estate shall be distributed equally to every of the next of kin of the intestate, who are in equal degree, and those who legally represent them. 6. If, after the death of the father and in the lifetime of the mother, any of his children shall die intestate, without wife or children, every brother or sister, and the representatives of them, shall have an equal share with the mother of the deceased child. 7. If there be no child nor legal representative of a deceased child nor any of the next of kin of the intestate, then the widow, if there be one, shall be entitled to all the personal estate of such intestate. Code, s. 1478; 1893. c. 82; 1868-9, c. 113, s. 53. Note. For distribution of recovery for wrongful death, see s. 59. 133. Advancements accounted for. Children who shall have any estate by the settlement of the intestate, or shall be advanced by him in his lifetime, shall account with each other for the same in the distribution of the estate in the manner as provided by the second rule in the chapter entitled Descents, and shall also account for the same to the widow of the intestate in ascertaining her child's part of the estate. Code, s. 1483; 1868-9, c. 113, s. 54. 134. Children advanced to render schedule. Where any parent shall die intestate, who had in his or her lifetime given to, or put in the actual possession of, any of his or her children, any personal property of what nature or kind soever, such child shall cause to be given to the administrator or collector of the estate an inventory, on oath, setting forth therein the particulars by him or her received of the intestate in his or her lifetime. Code, s. 1484; 1868-9, c. 113, s. 55. 135. Children refusing to account for advances not to share. In case any child who had, in the lifetime of the intestate, received a part of said estate, shall refuse to give such inventory, he shall be considered to have had and received his full share of the deceased's estate, and shall not be entitled to receive any further part or share. Code, s. 1485; 1868-9, c. 113, s. 56. 136. Illegitimate children next of kin to mother. Every illegitimate child of the mother dying intestate, or the issue of such illegitimate child deceased, shall be considered among her next of kin, and as such shall be entitled to a share of her personal estate as prescribed in this chapter. Code, s. 1486; 1868-9, c. 113, s. 57. 137. Illegitimate children next of kin to each other. Illegitimate children, born of the same mother, shall be considered legitimate as between themselves and their representatives, and their personal estate shall be distributed in the same manner as if they had been born in lawful wedlock. And in case of the death of any such child or his issue, without leaving issue, his estate shall be distributed among his mother and all such persons as would be his next of kin if all such children had been born in lawful wedlock. Code, s. 1487; 1868-9, c. 113, s. 58. 138. Share in realty, in what allotted. The share of an afterborn child in real estate shall be allotted to him out of any lands not devised, if there be enough for that purpose; and if there be none undevised, or not enough, then the whole share, or the deficiency, as the case may be, shall be made up of the lands devised; and so much thereof shall be taken from the several devisees accord ing to their respective values, as near as may be convenient, as will make the proper share of such child. Code, s. 1536; 1868-9, c. 113, s. 108. 139. Share in personalty, in what allotted. The share of an after-born child in the personal estate shall be paid and delivered to him out of any such estate not bequeathed, if there be enough for that purpose; and if there be none undisposed of, or not enough, then the whole share, or the deficiency, as the case may be, shall be made up from the estate bequeathed; and so much shall be taken from the several legacies, according to their respective values, as will make the proper share of such child. Code, s. 1537; 1868-9, c. 113, s. 109. 140. Share in personalty, when allotted in proceeds of realty. If, after satisfaction of the child's share of real estate out of undevised lands, there be a surplus of such lands, and there be no personal estate undisposed of, or not enough to make up his share of such estate, then the surplus of undevised land, or as much as may be necessary, shall be sold and the proceeds applied to making up his share of personal estate. And if, after satisfaction of the child's share of personal estate out of property undisposed of by the will, there be a surplus of such property, then the surplus thereof shall be applied, as far as it will go, in exoneration of land, both devised and descended; and the same shall be set apart and secured as real estate to such child, if an infant non compos or feme covert. Code, s. 1538; 1868-9, c. 113, s. 110. 141. Decree of contribution for share in realty, effect of. Upon the allotment to such child of any real estate in the manner aforesaid, he shall thenceforth be seized thereof in fee-simple; and the court shall give judgment severally, in favor of such of the devisees and legatees, of whose lands and legacies more has been taken away than in proportion to the respective values of said lands and legacies, against such of said devisees and legatees, of whose lands and legacies a just proportion has not been taken away, for such sums as will make the contribution on the part of each and every of them equitable, and in the ratio of the values of the several devises and legacies. Code, s. 1539; 1868-9, c. 113, s. 111. 142. When deemed legatee or devisee. An after-born child after such decrees shall be considered and deemed in law a legatee. and devisee as to his portion, shall be styled as such in all legal proceedings, and shall be liable to all the obligations and duties by law imposed on such: Provided, that all judgments or decrees bona fide obtained against the devisees and legatees previously to the preferring of any petition, and which were binding upon or ought to operate upon the lands and chattels devised or bequeathed, shall be carried into execution and effect notwithstanding, and the petitioner shall take his portion completely subject thereto: Provided further, that any suit instituted against the devisees and legatees previously to such petition shall not be abated or abatable thereby nor by the decree thereon, but shall go on as instituted, and the judgment and decree, unless obtained by collusion, be carried into execution; but on the filing of the petition, during the pendency of such suit, the petitioner, by guardian, if an infant, may become a defendant in the suit. Code, s. 1540; 1868-9, c. 113, s. 112. 143. If no petition filed, how estate settled. In case no petition shall be filed within two years, as herein prescribed, the executor or administrator with the will annexed, before he shall pay or deliver the legacies in the will given, or before paying to the next of kin of the testator any residue undisposed of by the will, shall call upon the legatees, devisees, heirs and next of kin, and the said after-born child, by petition in the superior court, to litigate their respective claims, and shall pray the court to ascertain the share to which said child shall be entitled, and to apportion the shares and sums to which the legatees, devisees, heirs or next of kin shall severally contribute toward the share to be allotted to said child, and the court shall adjudge and decree accordingly. Code, s. 1541; 1868-9, c. 113, s. 113. XX. SETTLEMENT. 144. Legacies and distributive shares; how recovered. Legacies and distributive shares may be recovered from an executor, administrator or collector by petition preferred in the superior court, at any time after the lapse of two years from his qualification, unless the executor, administrator or collector shall sooner file his final account for settlement. The suit shall be commenced and the proceedings therein conducted as prescribed in other cases of special proceedings. Code, s. 1510; 1868-9, c. 113, s. 83. 145. Distributive shares paid to clerk, when. It shall be competent for any executor, administrator or collector, at any time after twelve months from the date of letters testamentary or of administration, to pay into the office of clerk of the superior court. of the county where such letters were granted, any moneys belong ing to the legatees or distributees of the estate of his testator or intestate, and such payment shall have the effect to discharge such executor, administrator or collector and his sureties on his official bond to the extent of the amount so paid. Code, s. 1543; 1881, c. 305, s. 1. 146. Clerk to give receipt under seal. It shall be the duty of the clerk, in the cases provided for in the preceding section, to receive such money from any executor, administrator or collector, and to execute a receipt for the same under the seal of his office. Code, s. 1544; 1881, c. 305, s. 3. 147. Must be made at end of two years. No executor, administrator or collector, after two years from his qualification, shall hold or retain in his hands more of the deceased's estate than amounts to his necessary charges and disbursements and such debts as he shall legally pay; but all such estate so remaining shall, immediately after the expiration of two years, be divided and be delivered and paid to the person to whom the same may be due by law or the will of the deceased. Code, s. 1488; 1868-9, c. 113, s. 59. 148. What may be retained. If, on a final accounting before the judge or clerk, it appears that any claim exists against the estate which is not due, or on which suit is pending, the judge or clerk shall allow a sum sufficient to satisfy such claim, or the proportion to which it may be entitled, to be retained in the hands of the executor, administrator or collector, for the purpose of being applied to the payment when due or when recovered, with the expense of contesting the same. The order allowing such sum to be retained must specify the amount and nature of the claim. Code, s. 1489; 1868-9, c. 113, s. 60. 149. Commissions allowed; proviso. The clerks of the superior court are authorized and directed to allow commissions to executors, administrators and collectors on filing their final accounts for settlement, not exceeding five per cent. upon the amount of receipts and expenditures, which shall appear to be fairly made in the course of administration; and such allowance may be retained out of the assets against creditors and all other persons claiming an interest in the estate. And the clerk, in making such allowance, shall consider the trouble and time expended in the management of the business: Provided, that in sales of land for payment of debts, commissions shall not be allowed on any larger amount of the proceeds than the sum actually applied in payment of debts: Provided further, that nothing in this section contained shall prevent any exec |