Page images

his estate a testator shall

with her hus.

XI. And be it further enacted, by the authority afore- What part of said, That when any person dies testate, and leaves one or two children, and no more, he shall not have power leave his to dispose of more than two third parts of his estate, by wife. will, to any other person or persons than his wife, and one third part thereof, at least, shall be given to her; and if he leaves more than two children, his wife shall not have less than a child's part, according to the number of children; but if he leaves no child, then the wife shall have at least an equal moiety of his estate: And when any widow shall not be satisfied with the provision made for her by her husband's will, it shall be Her remedy lawful for such widow, within nine months after her where she is husband's death, before the court where such will shall dissatisfied be proved, or by deed executed in the presence of two baud's will. or more witnesses, to declare, that she will not accept, receive, or take the legacy, or legacies to her given, or bequeathed, or any part thereof, and will renounce all benefit and advantage which she might claim by such last will; and after such declaration, to demand and recover the third part of all the slaves whereof her husband died possessed, which she shall enjoy during her natural life, and after her death, or other determination of that estate, the said slaves shall go to the person or persons in whom the property thereof would have vested, in case the same had not been demanded; and moreover, such widow shall have such share of the other personal estate of her husband, as by this act is directed: But if such declaration be not made within the time before limited, she shall be for ever barred, to claim any other part of her husband's estate, than is or shall be given, or bequeathed to her, by his last will.

XII. Provided always, That if such widow dies be- Limitation fore distribution of her husband's estate shall be made, of a widows according to this act, in that case her executors or ad- right. ministrators, may demand and recover so much as shall be given her by will, and no more; and where the widow of any person dying intestate shall depart this life before administration of her husbands estate shall be granted, the right of such widow to such estate, or any part thereof, shall be determined, and her executors or administrators, shall not have any action for reco very thereof.

shall be made.

When & how XIII. And to the end due regard may be had to distribution creditors, Be it further enacted, by the authority afore said, That no distribution of the goods of any intestate shall be made before the expiration of nine months after his or her death; and that every person claiming any share or part therein, shall give bond with suffcient sureties, in the court where such distribution shall be made, that if any just debt, or debts, owing by the intestate, shall thereafter appear, be sued for, or recovered, he or she will refund, and pay back to the administrator, his or her proportionable part of such debt and debts, and of all costs and charges occa sioned thereby, that the administrator may be enabled to pay and satisfy the same.


lands and tenements.

XIV. And be it further enacted, by the authority adower in foresaid, That the widow of every person dying intestate, shall be endowed of one full and equal third part of all her husbands lands, tenements, and other real estate, in manner as is directed and prescribed by the laws and constitutions of the kingdom of England; and till such dower shall be assigned, it shall be lawful for her to remain and continue in the mansion house, and the messuage or plantation thereto belonging, without being chargeable to pay the heir any rent for the

Jointures ex- same. cepted.

XV. Provided always, That where any widow shall have such a jointure settled on her in the life time of her husband, as by law doth barr her of her dower, she shall not hold possession of any houses or messuages of such husband, other than what shall be so setRepealing tled on her. clause.

XVI. And be it further enacted, by the authority aforesaid, That all and every other act and acts, clause and clauses, heretofore made, for or concerning any matter or thing within the purview of this act, shall Commence- be, and are hereby repealed.

ment of this


XVII. And be it further enacted, by the authority aforesaid, That this act shall commence, and be in force, from and immediately after the tenth day of June, which shall be in the year of our Lord, one thousand seven hundred and fifty one.


An Act for the better management and security of Or- [From edit. phans, and their estates.




of the custo.


E it enacted, by the Lieutenant-Governor, Coun- Fathers may cil, and Burgesses, of this present General As- by deed, or sembly, and it is hereby enacted, by the authority of will, dispose the same, That where any person hath, or shall have, dy and tuiany child or children, under the age of twenty one tion of their years, and not married, at the time of his death, it unmarried shall and may be lawful to and for the father of such infant chilchild or children, whether born at the time of the decease of the father, or then an infant or infants in the womb, or whether such father be within the age of one and twenty years, or of full age, by his deed executed in his life time, or by his last will and testament in writing, in the presence of two or more credible witnesses, in such manner and from time to time as he shall think fit, to dispose of the custody and tuition of such child or children, for and during such time as he, she, or they shall remain under the age of one and twenty years, or for any lesser time, to any person or persons, in possession or remainder, other than popish recusants; and every such disposition heretofore made, or hereafter to be made, shall be good and effectual against all and every person and persons claiming the custody and tuition of such child or children, as guardian in soccage, or otherwise; and the person or persons to whom such custody and tuition hath been or shall be so disposed, or devised, shall and may maintain an action of ravishment of ward, or trespass, against any person or persons who shall wrongfully take away or detain such child or children, for the recovery of such child or children and shall and may recover damages for the same, in the said action, for the use and benefit of such child or children.

II. And that every person and persons to whom such Such guardi. custody and tuition hath been, or shall be so disposed, an shall have or devised, as aforesaid, shall and may take into his or custody of their custody, to the use of such child or children, the the infants profits of all lands, tenements, and hereditaments, and also the slaves, goods, chattels, and personal estate of such child or children, till their respective age of one 13-Vol. 5.


But may not

power of court.

and twenty years, or any lesser time according to such disposition aforesaid, and may bring such action or actions, in relation thereunto, as by law a guardian in common soccage might do.

Ill. Provided always, That nothing herein before discharge an contained, shall extend to discharge any apprentice apprentice; nor abridge from his apprenticeship: Nor to take away the pow er of the general court, or county court, upon com plaint to them made, of such guardian abusing the trust reposed in him, by misusing the child or children under his tuition, or neglecting the care of their education suitable to their estate, or wasting, converting to his own use, or otherways mismanaging such estate, to make and establish, from time to time, such rules, orders and decrees for securing the estate, and for the better education and usage of such orphaus, as they in their discretion shall judge meet and necessary.


and County

IV. And be it further enacted, by the authority a of the Gene-foresaid, That the general court, and the several county ral Court, courts of this dominion, within their respective jurisCourts con- dictions, have, and shall have full power and authority, cerning or from time to time, to take cognizance of all matters phans, and concerning orphans and their estates, and to appoint guardians. guardians in such cases, where to then it shall appear necessary, and shall take good security of all guardians by them appointed, for the estates of the orphans to Court shall them respectively committed; and if any county court take security shall commit an orphans estate, to the charge or guarof guardians dianship of any person or persons, without taking good by them ap- and sufficient security for the same, in such case, the pointed. justices appointing such guardian or committing such

County court

estate, and every of them, shall be liable for all loss failing so to and damage sustained by the orphan, for want of such do, the justi- security; to be recovered with costs, by action at the ces liable for common law, in any court of record, at the suit of the damages. party grieved.

Where not


Dutyof guardians appointed by

the court.

V. Provided always, That where the securities were good at the time of their being so accepted and taken, but afterwards become insolvent, in such case the justices shall not be liable.

VI. And be it further enacted, by the authority aforesaid, That wherever a guardian shall be appointed to any orphan, by the general court, or by any county court, such guardian shall, at the next court after his appointment, exhibit his account upon oath of all the

entred by

estate of such orphan, which he shall have received into his hands; and every guardian heretofore, or hereafter to be by such court appointed, shall, once every year, exhibit his account and state of the profits and other incomes of the estate of such orphan, upon his oath: And such accounts so to be exhibited, shall Their ac be entred by the clerk in a book to be provided and counts to be kept for that purpose only: And when the said courts the clerk. shall respectively know, or be informed, that any guar- Power of dian or guardians, by them respectively appointed, do courts relatwaste or convert the money or estate of any orphan dians breach ing to guarto his or their own use, or do in any manner misman- of trust. age the same, or do not take due care of the educating or becoming insolvent. and maintaining any orphan, according to his degree and circumstances; or where such guardian or his securities are likely to become insolvent, such court shall have power, from time to time, to make and establish such orders and rules, for the better ordering, managing, and securing such estate, and for the better educating and maintaining such orphans, or to appoint another guardian, as they in their discretion shall think most fit and expedient.


To be exam

ination bythe

Process a

VII. And that every person heretofore appointed, or hereafter to be appointed guardian to any orphan, by shall render any county court, shall,jat the court held for that coun- annual ac"ty in the month of August, in every year, or if no counts. court be then held, at the next succeeding court held for that county, exhibit such account as aforesaid: And the justices of every county court shall yearly, at the same court, examine into all accounts of guardi- justices. ans so to be exhibited to them, and shall direct process to issue returnable to their next court, against all gainst guar dian failing. guardians who shall then fail to appear and render such account, whether such guardian be resident in the same or in any other county; and shall then also enquire into the abuses and mismanagements of guardians, and whether they or their securities are likely to become insolvent, and thereupon to proceed according to the power in this act before given them; and the Penalty on justices of every county court who shall fail or neglect justices fail. to do their duty herein, shall forfeit and pay the sum of five thousand pounds of tobacco, one half to our sovereign lord the king, his heirs and successors, to and for the use of the county, and the other half to


« PreviousContinue »