TITLE 7. To what court widow to apply. Service of petition and notice. How made. TITLE VII. OF PROCEEDINGS FOR THE ADMEASUREMENT OF DOWER. SEC. 1. When and to whom widow may apply for assignment of dower. 2. Petition aud notice, when and on whom to be served. 4. Guardians to be appointed for infant heirs and owners. 9. Powers of court on application to order admeasurement. 12. Vacancies in commissioners how supplied, &c. 13. Duties to be executed by commissioners. 14. Enlarging time for report; compelling report, &c. 15. Report to be filed and entered at large. 16. Report may be set aside; or confirmed. 17. Effect of admeasurement upon being confirmed. 18. Widow may maintain ejectment; subject to taxes, &c. 19. Appeals from common pleas and surrogate, when to be made. 20. Appeal how made; bond to be given. 21. Papers to be certified to supreme court. 22. Proceedings of supreme court on the appeal. 23. Upon reversal of admeasurment, further proceedings. 24. Upon affirmance, costs how taxed; effect of affirmance. 26. How paid in case of appeal. 27. Practice in hearing appeals; notices, &c. $1. Any widow who shall not have had her dower assigned to her, within forty days after the decease of her husband, may apply, by petition for the admeasurement of her dower, to the supreme court; or to the court of common pleas of the county in which the lands subject to dower lie; or to the surrogate of the same county; specifying therein the lands to which she claims dower. 44 S2. A copy of such petition, with notice of the time and place when it will be presented, shall be served, at least twenty days previous to its presentation, upon the heirs of her husband; or if they are not the owners of the lands subject to dower, then upon the owners of such lands claiming a freehold estate therein; or their guardians, when any such heirs or owners are minors. $3. Such notice may be served personally, on any party of full age; or upon the guardians of minors; or by leaving the same with any person of proper age, at the last residence of such party or guardian, in case of his temporary absence; and if any such heir or owner be a resident out of this state, the service of such notice may be upon the tenant in actual occupation of the lands, or if there be no tenant, by publishing the same for three weeks successively, in some newspaper printed in the county where such lands are situated. Guardian for S 4. Where such heirs or owners are minors, and have no guardian, the court or surrogate, on application of the widow, shall appoint infant heirs, &c. (44) 1 R. L. p. 62, § 12. some discreet and substantial freeholder a guardian of such infants, for TITLE 7. the sole purpose of appearing for and taking care of, the interest of such infants in the proceedings. served on $ 5. Notice of the application for the admeasurement of dower, and Notices to be all notices in the subsequent proceedings, shall be served on such guar- them. dian, whether the infant reside within this state or not. may require $6. After the expiration of forty days from the death of any hus- Heirs, &c. band, his heirs, or any of them, or the owners of any land subject to widow to ap dower, claiming a freehold estate therein, or the guardian of any such ply. heirs or owners, may, by notice in writing require the widow of such husband to make demand of her dower, within ninety days after the service of such notice, of the lands of her deceased husband, or of such part thereof as shall be specified in such notice.45 &c. to apply. $7. If such widow shall not make her demand of dower, within When heirs, the time specified in such notice, by commencing a suit, or by an application for admeasurement, as herein prescribed; or if such widow shall not make such demand within one year after her husband's death, although no notice to that effect shall have been given; the heirs of the husband of such widow, or any of them, or the owners of any lands subject to dower, claiming a freehold interest therein, or the guardian of any such heirs or owners, may apply, by petition, to the supreme court, or to the court of common pleas of the county where such lands are situated, or to the surrogate of the same county, for the admeasurement of the said widow's dower of the lands of her husband, or of such part thereof as shall be specified in the said petition.46 tions, &c $8. A copy of such petition, with notice of the time and place of Serving petipresenting the same, shall be served personally on such widow, twenty days previous to its presentation. der admcasurement. $9. Upon such application being made, either by a widow, or by court to or any heir or owner, or by the guardian of such heir or owner, the supreme court, or the court of common pleas, or the surrogate to whom the same shall be made, may upon hearing of the parties, order that admeasurement be made of such widow's dower of all the lands of her husband, or of such part thereof as shall have been specified in such application. 46 ers, &c. $10. Such court or surrogate shall thereupon appoint three re- Commission putable and disinterested freeholders, commissioners, for the purpose of making such admeasurement, by an order which shall specify the lands of which dower is to be admeasured, and the time at which the commissioners shall report.46 $ 11. The commissioners so appointed, before entering upon their Their oath. duties, shall be sworn, before the surrogate who appointed them, or before some officer authorised to take affidavits, that they will faithfully, TITLE 7. honestly and impartially discharge the duty and execute the trust reposed in them by such appointment.47 Vacancies, &c. Their duties. To lay off dower. Deductions for improvements. To report proceedings. To employ surveyors, &c. Enlarging time for report, &c. To be filed and entered. eport may be set aside; $12. If the persons so appointed commissioners, or either of them, shall die, resign, or neglect or refuse to serve, others may be appointed in their places, by the court or surrogate who appointed the first commissioners, and shall take the same oath. S13. The commissioners so appointed, shall execute their duties as follows: 1. They shall admeasure and lay off, as speedily as possible, the onethird part of the lands embraced in the order for their appointment, as the dower of such widow, designating such part with posts, stones or other permanent monuments: 2. In making such admeasurement, they shall take into view any permanent improvements made upon the lands embraced in the said order, by any heir, guardian of minors, or other owners, since the death of the husband of such widow, or since the alienation thereof by such husband; and if practicable, shall award such improvements within that part of the lands not allotted to such widow; and if not practicable so to award the same, they shall make a deduction from the lands allotted to such widow, proportionate to the benefit she will derive from such part of the said improvements, as shall be included in the portion assigned to her: 3. They shall make a full and ample report of their proceedings, with the quantity, courses and distances of the land admeasured and allotted by them to the widow, with a description of the posts, stones and other permanent monuments thereof, and the items of their charges, to the court by which they were appointed, at the time specified in the order for their appointment: 4. They may employ a surveyor, with necessary assistants, to aid them in such admeasurement.48 $14. The court or surrogate appointing such commissioners, may, upon their application, or that of either party, enlarge the time for making their report; and may, by order, compel such report, or discharge the commissioners neglecting to make the same, and appoint others in their places. S 15. Such report shall be filed and entered at large in the minutes of the court to which the same shall be made, or in a book to be provided by the surrogate for that purpose, when made to him.19 $ 16. The court or surrogate, to whom such report shall be made, or confirmed. may, at the time appointed for receiving the same, or at such other time to which the hearing shall have been adjourned, on good cause shown, set aside the said report, and appoint, as often as may be necessary, new commissioners, who shall proceed in the manner herein (47) 1 R. L. p. 60, § 3. (48) Ib. § 3, 5 & 6. (49) Ib. § 6. before directed and if not set aside, the said court or surrogate shall, TITLE 7. by order, confirm the said report and admeasurement. measure $17. The admeasurement so made and confirmed, shall, at the Effect of adexpiration of thirty days from the date of such confirmation, unless ap-ment. pealed from, be binding and conclusive, as to the location and extent of the said widow's right of dower, on the parties who applied for the same, and on all parties to whom notice shall have been given, as herein before directed. But no person shall be precluded thereby from controverting the right and title of such widow to the dower so admeasured.50 bring eject $ 18. The widow to whom dower shall be admeasured, at the ex- Widow may piration of thirty days from the date of the said confirmation, unless ment. the same be appealed from, may bring and maintain an action of ejectment to recover the possession of the lands so admeasured to her for her dower (in which her right to such dower may be controverted) and upon recovery, may hold the same during her natural life, subject to the payment of all taxes and charges accruing thereon subsequent to her taking possession. 51 common $ 19. Where the commissioners have been appointed by a court Appeals from of common pleas, or by a surrogate; the widow, and any heir or pleas, &c. owner of lands affected by the proceeding, or the guardian of such heir or owner, may, within thirty days after the order of confirmation of the report of the commissioners by such court or surrogate, appeal from such order, to the supreme court, in the manner herein after directed. 52 How made; given. $20. Such appeal shall be filed with the surrogate or with the clerk of the court granting such order; but shall not be effectual or valid bond to be for any purpose, until a bond to the adverse party shall be executed by the appellant, and filed with such surrogate or clerk, with security to be approved by the surrogate or a judge of the court by which such order was made, and to be evidenced by an endorsement on such bond, in the penal sum of one hundred dollars, conditioned for the diligent prosecution of such appeal, and for the payment of all costs that may be adjudged by the supreme court against such appellant; and no other notice or proceeding shall be necessary to perfect such appeal. $21. It shall be the duty of the surrogate, or the clerk of the court Papers to be with whom such appeal and bond shall be filed, on receiving the certified, &c. amount of his fees for the service, to transcribe the petition, affidavits, notices, orders, reports, and all other proceedings on the said application, together with the said appeal, to certify them under his official seal, and to transmit the said copies to the supreme court. $22. The supreme court shall proceed to hear and determine the said appeal, and to review all the proceedings upon the said application, and shall do therein what shall be just.52 (50) 1 R. L. p. 61, § 7. (51) Ib. § 7 & 8. (52) Ib. § 10. Proceedings on appeal. TITLE 8. [b. on rever. sal of ad measurement. Ib. on affirm ance. Costs of proceedings. In case of appeal. Practice in $23. In case of the reversal of the order of confirmation, the court shall cause the same to be certified to the surrogate or court of common pleas, making such order, to the end that new commissioners may be appointed, or a new admeasurement may be had, as the supreme court shall direct; or the said supreme court may proceed to appoint commissioners to make admeasurement, in the same manner as upon an original application to such court, and the like proceedings shall be had thereon. S24. In case of the affirmance of the order of confirmation of any surrogate or court of common pleas, the supreme court may also in its discretion, award costs to be paid by the appellant, and to be taxed as the said court shall direct; and the original order of confirmation, and the admeasurement confirmed thereby, shall be binding and conclusive, and authorise an action of ejectment, as herein before spe cified. $25. All costs and expenses arising on any proceedings on such application, shall be taxed by the surrogate or a judge of the court in which such proceedings shall be had; and when such application is made in the supreme court, and also when made to a surrogate, or court of common pleas, and no appeal shall be made from the order of confirmation, the said costs and expenses shall be paid equally, the one-half thereof by the widow, and the other half by the adverse party. $ 26. When an appeal is entered, then such costs shall be paid by the party applying for such admeasurement; and if the admeasurement be affirmed on such appeal, the supreme court in awarding costs, shall require the party appealing, to pay the one-half of such costs and expenses before the surrogate or court of common pleas, if he have not before paid the same. $27. The hearing of an appeal by the supreme court, shall be pealing ap brought on by notice, and shall be conducted as other special motions; and notices of the hearing, and all other necessary notices in the said court, may be served on any party, not residing within this state, by leaving the same with the surrogate or the clerk of the court from whose order the appeal is made, for the use of such party. And the supreme court may, by rule, direct further returns from any surrogate or court of common pleas, whenever the same shall be necessary, and may establish such rules to regulate the practice on such appeals, as the said court may deem expedient. TITLE VIII. OF PROCEEDINGS FOR THE COLLECTION OF DEMANDS AGAINST SHIPS SEC. 1. Debts enumerated which are liens on vessels. 2. When lien to cease in different cases. 3. Who may apply for warrant, and to what officers. |