USA > Vermont > Vermont state papers; being a collection of records and documents, connected with the assumption and establishment of government by the people of Vermont; together with the first constitution, and the laws from the year 1779 to 1786, etc > Part 40
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AN ACT for the punishing of trespasses in divers cases, and directing proceedings therein.
Be it enacted, &c. that no person or persons shall cut, fell, or destroy, or carry away any tree or trees, timber, stone, or under wood whatsoever, · standing, lying, or growing, on the land of any other person or persons within this State, without leave of the owner or owners of such lands, on pain that every person so cutting, felling and destroying, or carrying away the same, shall, for every such trespass, forfeit and pay to the party or parties injured or trespassed upon, the sum of ten shillings for every tree of one foot over, and for all trees of a greater dimension three times the value thereof, besides ten shillings as aforesaid, and five shillings for every tree or pole under that dimension ; which several penalties, for- feitures, and damages, shall and may be recovered by action, bill, plaint, or information, upon conviction of the trespasser or trespassers.
Provided always, that no person that is not a resident of the town where the trespass is done, shall be enabled, by virtue of this act, to pros- ecute another for trespass done on his unimproved lands, by cutting tim- ber for any public use
Always provided, that the proprietors of common or undivided lands in the respective towns, may grant liberty for the cutting or felling any tree or trees, or carrying away timber, wood, or under wood, growing or lying on their comnon or undivided lands, under such regulations and restrictions as they, or the major part of them, shall agree in their legal meeting ; and if they shall see cause, may appoint and impower their agents or attornies in their place or stead, to prosecute any person or per- sons that shall trespass on their undivided lands, contrary to this act.
And the like power is hereby also given to the inhabitants of the sev- eral towns in their respective town meetings, with respect to the timber, wood, or under wood, growing or, lying on lands within their township, sequestered for public uses.
Provided also, and it is hereby enacted, that when the court, assistant. or justice, before whom any trial upon this act shall be had, shall be well satisfied that the defendant was guilty through mistake, and that he really believed the timber, stone, or trees, complained of, was, when growing, on his own or some other person's land where he had a right to cut, &c. That, in such case, the defendant shall be sentenced to pay to the plaintiff only the jost value of the timber felled, taken away, or destroyed, and cost of trial, and no morc.
Be it further enacted, that if any person or persons shall unlawfully throw down, or leave open, any bars, gates, or fence or fences, belonging to, or inclosing any common field, or any lands held in propriety, or com- mon, or belonging to any particular person or persons, within this State, shall, for every such trespass, upon conviction thereof, forfeit and pay to the parties injured thereby, double damages, and also a sum not exceed- ing twenty-five shillings, according to the nature and aggravation of the trespiss, to be recovered in manner as aforesaid.
Be it further enacted, that every person or persons that shall set fire on any land in this State, that shall run into any common and undivided
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lands, or towns, commons, or lands belonging to any particular person or persons ; such person or persons setting such fire, or that shall be aiding and assisting therein, shall pay and satisfy to the owner or owners of the lands, all damages that shall be done by such fire, except he make it ap- pear that the damage happened by inevitable accident.
That if any person or persons, having their faces blacked, painted, or any ways disguised, shall, either by day or by night, commit any of the trespasses aforesaid ; or shall beat or abuse any of the subjects of this or any other of the American States, and be thereof convicted by due course of law; such person or persons, so trespassing, shall, over and above the penalties and damages aforesaid, be publicly whipped, not ex- ceeding ten stripes, as the nature of the trespass may require.
That if any horse, or other beast, shall trespass in any corn field, or other iuclosure, being fenced in such sort as secures against cows, oxen, calves, and sach like cattle, the party or parties trespassed upon, shall procure two able men, of good report and credit, to view and adjudge the harms done, which the owner or owners of the beast or beasts shall satisfy, where known, upon reasonable demand, whether the beasts shall be impounded or not : but if the owner or owners be known, or near residing, as in the same town, or the like, notice thereof shall be given to him or them, or left at the place of his or their usual abode, before an estimation be made thereof, to the end he or they, or some other person appointed by him or them, may be present when the judgment is made; the like notice also, shall be left for him or them, of the damage charged upon them, that if he or they shall not approve thereof, he or they may repair to the select-men, or some of them, who shall, in such case, nomi- nate and appoint two able and indifferent men, to review and adjudge the said harms ; which being forthwith discharged and paid, together with the charge of notice, former and latter view, and determination of dam- ages, the first judgment to be void.
Provided always, that when damage is done to any person or persons, if it appear to be done or happen by the mere default of him or them to whom the damage is done, it shall be judged no trespass, and no dam- age shall be given.
AN ACT for the settlement of testate and intestate estates.
Be it enacted, &c. that the executor, or executors, named by the testator of any last will or testament, or such other person or persons to whom the administration of the estate of persons deceased shall be committed, · calling, or taking to him or them, two or more, to whom the deceased person was indebted, or made a league, and upon theirrefusal, or absence, two other honest persons, being next of kin to the person so dying; or (on their default or absence) two or more honest neighbors, friends to the deceased,-and in their presence, and by their discretion, being under oath, shall make, or cause to be made, a true and perfect inventory of all the estate of the person deceased, as well moveable as not moveable.
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whatsoever, and the same shall cause to be indented; whereof the one part, by the said executor, or executors, administrator, or administrators, upon his or their oath, or oaths, to be taken before the court which hath power to take probate of wills and testaments, granting administration, and the like, and shall be, by him or them, delivered to the said court of probate, and the other part to be and remain with the said executor, ex- rcutors, administrator, or administrators. That if any executor or execu- tors of the will of any person deceased, knowing of his or their being so named and appointed, shall not, within the space of thirty days next after the decease of the testator, cause such will to be proved, and recorded in the register's office of that district where the deceased person last dwelt ; or present the said will, and declare his or their refusal of the executor- ship ; every executor so neglecting of his or her trust and duty, in that behalf, (without just excuse made and accepted for such delay ) shall for- feit the sum of five pounds per month, from and after the expiration of the thirty days, until he or they shall cause probate of such will to be made, or present the same as aforesaid.
And upon any such refusal of the executor or executors, the court of probate shall commit administration of the estate of the deceased, with the will, unto the widow, or next of kin to the deceased ; and upon their refusal, to one or more of the principal creditors, as the court shall think fit.
And if the executor or executors of any last will and testament, brought for probate in any of the courts of probates in this State, shall not, within the space of two months next after the probate of such last will and tes- tament, cause such inventory to be made, as aforesaid, and the same to be exhibited in the register's office of the same court of probate where the said will was accepted and recorded ; every executor, so neglecting his or her trust, in that case (without just excuse made to the judge of said court, and accepted for such delay ) shall forfeit the sum of five pounds per month, from and after the said two months are expired, until he or they shall inventory the said estate, and exhibit the said inventory as aforesaid.
Every such forfeiture, as well for not causing the will to be proved, &c. as for not exhibiting an inventory, as aforesaid, shall be and belong, one moiety thereof to the town treasury of that town where the deceased last dwelt, for the use of said town; and the other moiety to him or them who shall inform or sue for the same, and prosecute to full effect-to be recovered by action or information, in the county where the testator last dwelt.
And if any person or persons shall alienate, or embezzle, any of the goods or chattels of any person deceased, before he or they have taken out . letters of administration, and exhibited a true inventory of all the known estate of the said deceased ; all and every such person or persons so acting, shall stand chargeable, and be liable to the actions of the credi- tors, and other persons grieved, as being executors in their own wrong.
And the court of probates shall cause a citation to be made out to the widow, or next of kin; and upon their neglect of appearance, or refusal, may cominit administration of any such estate, to some one or more of
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the chief creditors. if accepted by him or them; or others, as the said court shall think tit, upon their refusal.
And for preventing fraud in concealing any part of the estate of any person deceased,
.Be it further enacted, that if any person or persons in this State, shall have in his or their custody or possession, any goods or chattels belong- ing to the estate of any deceased person ; or any bills, bonds, accounts, or such other things as may tend to disclose such estate; and upon de- mand of the same, made by the executor or administrator of such estate, shall refuse to make delivery, or give a satisfying account thereof to the said executor or administrator ; it shall be in the power of the next assis- tant, or justice of the peace, upon complaint thereof, made to him by the said executor or administrator, to issue a warrant to some fit person, to apprehend such offender, and to bring him or her before such assistant or justice of the peace, who may bind such person, with sufficient sureties, to appear before the next court of probates ; and the said court shall be, and is hereby impowered to examine such offender or offenders, under his or their oaths, upon such interrogatories, touching such goods, chattels, bills, bonds, accounts, and other things, tending to disclose the estate aforesaid, as the said court shall think meet. And that if, therein, the offender or offenders shall refuse to be examined upon oath, or to answer fully to every interrogatory to such person or persons, to be administered or put by the said court of probate, it shall be lawful for the said court to commit every such offender to the common goal, there to remain until such person shall better conforni.
Be it enacted, that if any of the creditors or legatees of the deceased, are aggrieved by the appraisement of the estate made by the administra- tor, or the persons by him appointed, they may have relief by applica- tion to the court of probates that granted administration ; which court is hereby impowered and required to appoint twelve good and lawful men of the neighborhood, and to swear them to make a new appraisement of such estate, at the true value and worth thereof, in common estimation, according to the best of their skill ; and the administrator shall be ac- countable for such estate, according to the appraisement thereof made by the said twelve men ; and if he make payment of debts or legacies therewith, or any part thereof, the creditors or legatees shall have such estate at the value stated by such appraisers.
Provided, said application be made to such court within three months after the inventory of such estate be exhibited in to the registry of the said court, and not after.
Be it further enacted, that when, and so often as it shall happen, that any person dies intestate, administration of such intestates shall be grant- ed to the widow, or next of kin to the intestate, or both, as the court of probate shall judge fit ; and on granting administration upon the estates of intestates, or others whomsoever, the court of probate granting such administration, shall take sufficient bond, with sureties, of such person or persons to whom administration is granted as aforesaid, for a faithful
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discharge of that work : which bond shall be conditioned according to the form hereafter in this act directed.
And the court of probates may and shall proceed to call such adminis- trator or administrators to account for, and touching, the estate of such deceased person, whether intestate or other.
And whereas the lands and real estates of persons dying intestate, in this State, by ancient and immemorial custom, and common consent of the people, have descended to and among the children, or next of kin of such intestate, as heirs of such intestate; and the same, by or- der of the courts of probates, have generally been divided to and among such heirs, in common with the chattels, or moveable estate; and the estates, real and personal, of persons dying intestate, have, ever since the first settlement of this country, been divided among, and settled upon the heirs of such intestates.
And whereas, according to the ancient practice, it is necessary that the real as well as the personal estate be divided by the same court, in order to make a just division of the whole estate ; which, by two dif- ferent courts, proceeding in different methods, and by different rules, cannot be effected.
And whereas, in the courts of common pleas, in the usual manner of proceeding, no such division can be made; but in order thereto, it is necessary that the proceedings therein be in a more summary way.
And whereas, for the more certain, speedy, and just settlement of such estates, according to the said ancient law and custom, it is expe- dient that some general rules of division, and methods of proceeding, should be established by act of this Assembly :- Therefore,
Be it further enacted, that the courts of probates, (debts, funeral, and other just expenses of all sorts, being by said court first allowed) shall, and are hereby fully impowered, to order and make a just division and distribution of the surplussage, or remaining goods and estate of any such intestate, as well real as personal, in manner following, that is to say,- one third part of the personal estate to the wife of the intestate (if any be) forever, besides her dower, or thirds, in the houses and lands during life, where such wife shall not be otherwise endowed before marriage; and all the residue and remainder of the real and personal estate, by equal portions, to and among the children, and such as shall legally rep- resent them, (if any of them be dead) other than such children who shall have any estate by settlement of the intestate in his life time, equal to the other shares ; children advanced by settlement or portions not equal to the other shares, to have so much of the surphissage as shall make the estates of all to be equal; and the same shall be so divided, as that the male heirs shall have their parts in the real estate, so far as the estate will allow ; and where there are no sons, the daughters shall inherit as co- parceners.
And the division of the estate shall be made by three sufficient fre. . holders, upon oath, or any two of them, to be appointed by the said court of probate, unless all the parties interested in any estate, being legalla
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capable to act, shall mutually agree upon a division among themselves, and present the same in writing, under their hands and seals; in which case, such agreement shall be accepted and allowed for a settlement of such estate, and be accounted valid in law, being acknowledged by the parties subscribing, before the said court of probates, and put upon record.
Provided nevertheless, that when any estate in houses and lands can- not be divided among the children, without prejudice to, or spoiling of the whole, being so represented and made to appear unto the said court of probates, the said court may order the whole to the eldest son, if he accept it, or to any other of the sons successively, (upon his refusal)-hc to whom it shall be ordered, paying to the other children of the deceased, their equal and proportionable parts or shares of the true value of such houses and lands, upon a just appraisement thereof, to be made by three sufficient frecholders, upon oath, to be appointed and sworn as aforesaid ; or giving good security to pay the same, in some convenient time, as the said court of probate shall limit, making reasonable allowance in the in- terest, not exceeding six per centum per annum.
And if any of the children happen to die before he or she come of age, or be married ; the portion of such child, deceased, shall be equally di- vided among the surviviors.
And in case there be no children, nor any legal representatives of them, then one moiety of the personal estate shall be allotted to the wife of the intestate forever, and one third of the real estate for term of life: the residue, both of the real and personal estate, equally to every of the next of kin of the intestate, in squal degree, and those who legally rep- resent them :- no representatives to be admitted among collateral, after brothers and sisters children.
And if there be no wife, all shall be divided and distributed among the children ;-
And if there be no child, to the next of kin to the intestate, in equal degree, and their legal representatives as aforesaid.
And every one, to whom any share or part shall be allotted, shall give bond, with sureties, before the said court of probates, (if debts afterwards be made to appear) to refund, and pay back to the administrator, his or her rates, or part thereof, and of the administrator's charges.
And the widow's thirds, or dower, in the real estate, at the expiration of her term, to be also divided as aforesaid, if the same then remain un- divided.
Always provided, and it is hereby enacted, that if any person be ag- grieved at any order, sentence, or decree, of any court of probates, made for the settlement and distribution of any intestate estate, or at any other order, sentence, decree, or denial, that shall, at any time, be made and given by the said court of probates, referring to the approbation and al- lowance of any will, grant of administration, or other matters; such per- son may appeal therefrom, to the superior court, provided they give secu- rity, and enter and prosecute such appeals, within the times limited for that purpose, as is provided and directed in the law regulating such ap. peals.
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Be it further enacted, that every conrt of probate shall, upon grant- ing administration upon the estate of any deceased person, take bond, with sufficient surety or sureties, to the judge of said court, and his suc- cessors in that office, with this condition, viz :-
The condition of this obligation is such, that if the above bounden A. B. administrator of all and singular the goods, chattels, credits, and estate of C. D. deceased, do make, or cause to be made, a true and perfect in- ventory of all and singular the goods, chattels, credits, and estate of the said deceased, which have, or shall, come to the hands, possession, or knowledge of the said A. B. or into the hands or possession of any person or persons for him ; and the same so made, do exhibit, or canse to be ex- hibited, into the registry of the said court of probates, in the district of - at or before the - day of - --- next ensuing ; and the same goods, chattels, credits, and estate, and all other the goods, chatteis, cred- its, and estate of the said deceased, at the time of his death, which, at any time after, shall come into the hands or possession of the said A. B. or into the hands or possession of any other person or persons for him,- do well and truly administer according to law-and further, do make, or cause to be made, a true and just account of his said administration, at or before the - day of - and all the rest, and residue of the said goods, chattels, credits, and estate, which shall be found remaining upon the said administrator's account, the same being first examined and allowed by the said court of probates, shall deliver, and pay unto such person or persons respectively, as the said court of probates, by their de- cree, or sentence, pursuant to the true intent and meaning of the law, shall limit and appoint : and if it shall hereafter appear that any last will and testament was made by the said deceased, and the executor, or executors, therein named, do exhibit the same into the said court, making request to have it allowed and approved accordingly :- if the said A. B. being thereunto required, do render and deliver the said letters of administra- tion (approbation of such testament being first had and made) in the said court,-then this obligation to be void, and of none effect ; or else to re- main in full force and virtue.
And be it further enacted, that all sales and alienations of houses and lands (belonging to the estate left by any deceased person ) made by the administrator or administrators of such estate, shall be void and of none effect ; unless such sales and alienations shall be made by the allowance and order of the General Assembly of this State, or by the judge find- ing the estate insolvent.
And all such houses and buildings as appertain to the estate of any person deceased, shall be kept and maintained in tenantable repair, by the revenue of the lands belonging to such estate ; and shall, in such repair, be delivered to the heirs, or legatees, at the time of the division or distri- bution thereof-extraordinary casualties excepted.
Be it further enacted, that whensoever the estate of any person de- ceased, shall be insufficient to pay the just debts charged upon the same, such estate shall be disposed of by the administrator, in the best way and manner, as the judge shall order ; and the produce thereof divided
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and distributed to the creditors, in proportion to the sins respective- ly owing to them, so far as the estate will extend ; saving the debrs due to this State, and for the last sickness, and necessary funeral charges of' of the deceased, are to be first paid.
And the executor, or administrator, appointed to administer on such insolvent estate, before payment be made to any person, (except as be- fore excepted) shall represent the condition and circumstances thereof to the judge of probate, who shall nominate and appoint two or more fit and indifferent persons, commissioners, who shall be sworn to a true and faithful performance of their trust ; who shall then proceed to ap- point times and places to sit and examine the claims on such estate, and publish the same, by setting up or posting notifications thereof, in some public place in the town where such deceased person last resided, and also in the two next county towns. And the said judge shall al- low two, six, twelve, or eighteen months (as the circumstances of the estate may require) for the creditors to bring in their claims, and prove their debts : at the end of which limited time, such commis- sioners shall make their report, and present a list of the claims unto the said judge, who shall order them a meet recompense for their trouble, out of such estate.
And the debts due to this state, and for the last sickness, necessary mineral charges, and cost of settlement, being subdueted, the judge shall also order the remainder to be divided to the other creditors that shall have made out and evidenced their claims, as aforesaid, in due proportion as aforesaid ; saving to the widow (if any be) such house- hold goods as in this act hereafter are allowed her, and her dower during life ; which shall also be sold by the administrator immediately, with the incunbrance of the widow having the use thereof during her life.
Provided always, that notwithstanding the report of any such com- missioners, or allowances thereof made by the court of probate, it shall and may be lawful to and for the executors or administrators aforesaid, to contest the proof of any debt, at the common law. And no pro- cess in law (except for debts due to this state, and for sickness, and funeral charges) shall be admitted or allowed against the executors or administrators of any insolvent estate, so long as the same shall be de- pending, as aforesaid.
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