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special verdict, or to finding on any question submitted to them by the Court by a resort to the determination of chance, such inisconduct may be proved by the affidavit of any one of the jurors.
3. Accident or surprise, which ordinary prudence could not have guarded against.
4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.
5. Excessive damages, appearing to have been given under the influence of passion or prejudice.
6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.
7. Error in law occurring at the trial and excepted to by the party making the application.
The party intending to move for a new trial must, within ten days after the verdict, if the action were tried by a jury, or after notice of the decision of the Court or referee, if the action were tried without a jury, file with the Clerk and serve upon the adverse party a notice of his intention, designating the ground upon which the motion will be made.
ESTATES OF DECEASED PERSONS.
In what county wills must be approved and letters testimentary or of administration granted:
1. In the county of which the deceased was a resident at the time of his death, in whatever place he may have died.
2. In the county in which the deceased may have died, leaving estate therein, he not being a resident of the State.
3. In the county in which any part of the estate may be, the deceased having died out of the State and not resident therein at the time of his death.
4. In the county in which any part of the estate may be, the deceased not being a resident of the State, and not leaving estate in the county in which he died.
5. In all other cases, in the county where application for letters is first made.
Order of persons entitled to administer:
1. The surviving husband or wife, or some competent person whom he or she may request to have appointed.
2. The children.
7. The next of kin entitled to share in the distribution of the estate. . 8. The Public Administrator.
9. The creditors. 10. Any person legally competent.
Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the Court.
No person is competent or entitled to serve as administrator who is:
1st. Under the age of majority.
4th. Adjudged by the Court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity.
If the deceased was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate.
A married woman must not be appointed adıninistratrix.
Letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such person fail to appear and claim the issuing of letters to themselves.
The administrator must give bonds, with two or more sufficient sureties, to be approved by the Superior Judge, the penalty to be not less than twice the value of the personal property, and twice the probable value of the annual rents, profits and issues of the real property; additional bonds may be required when a sale of real estate is ordered.
When a person dies leaving a widow or minor children, the widow or minor children, until letters are granted and the inventory is returned, are entitled to remain in possession of the homestead, of the wearing apparel of the family, and of all the household furniture of the decedent, and are also entitled to a reasonable provision for their support, to be allowed by the Superior Court or a Judge thereof.
The Court may set apart for the use of the surviving husband or wife, or in case of his or her death, to the minor children of the decedent, all property exempt from execution, including the homestead selected, designated and recorded; provided, such homestead was selected from the common property, or from the separate property, of the persons selecting or joining in the selection of the same. If none has been selected, designated and recorded, or in case the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the Court must select, designate and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor children; or if there be no surviving husband or wife, then for the use of the minor children, out of the common property, or if there be no common property, then out of the real estate belonging to the decedent.
If the amount set apart be insufficient for the support of the widow and children, or either, the Superior Court or Judge must make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances, during the progress of the settlement of the estate ; which, in case of an insolvent estate, must not be longer than one year after granting of letters.
If on the return of the inventory of the estate of an intestate, it appears that the value of the whole estate does not exceed the sum of fifteen hundred dollars, and if there be a widow or minor children of deceased, the Court, or Judge thereof, shall, by order, require all persons interested to appear on a fixed day and show cause why the whole estate should not be assigned for the use of the family of deceased after the payment of the expenses of the last illness, funeral expenses, and expenses of administration.
If it appear that the value of the whole estate does not exceed the sum of three thousand dollars, there may be a summary administration of the estate, and an order of distribution at the end of six months after the issuing of letters.
Claims against the estate must be presented to the executor or administrator within the time specified in the notice to creditors, requesting them to present their claims; when the value of the estate exceeds ten thousand dollars, the time expressed in the notice must be ten months; when it does not exceed ten thousand dollars, four months.
All claims arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the Court, or a Judge thereof, that the claimant had no notice as provided in this chapter, by reason of being out of the State, it may be presented at any time before a decree of distribution is entered.
Every claim which is due, when presented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim be not due when presented, or be contingent, the particulars of such claim must be stated. When the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reason why it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the claim. If the estate be insolvent, no greater rate of interest shall be allowed upon any claim after the first publication of notice to creditors than is allowed on judgment obtained in the Superior Court.
Any Judge of a Superior Court may present a claim against the estate of a decedent for allowance to the executor or administrator thereof, and if the executor or administrator allows the claim, he must, in writing, designate some other Judge of the Superior Court of the same or an adjoining county, who, upon the presentation of such claim to him, is vested with power to allow or reject it, and the Judge presenting such claim, in case of its rejection by the executor or administrator, or by such Judge as shall have acted upon it, has the same right to sue in a proper Court for its recovery as other persons have when their claims against an estate are rejected.
When a claim, accompanied by the affidavit required in this chapter, is presented to the executor or administrator, he must indorse thereon his allowance or rejection, with the day and date thereof. If he allow the claim, it must be presented to a Judge of the Superior Court for his approval, who must in the same manner indorse upon it his allowance or rejection. If the executor or administrator, or the Judge, refuse or neglect to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect may, at the option of the claimant, be deemed equivalent to a rejection on the tenth day; and if the presentation be made by a Notary, the certificate of such Notary, under seal, shall be prima facie evidence of such presentation and the date thereof. If the claim be presented to the executor or administrator before the expiration of the time limited for the presentation of claims, the same is presented in time, though acted upon by the executor or administrator, and by the Judge after the expiration of such time. If the claim be payable in a particular kind of money or currency, it shall, if allowed, be payable only in such money or currency.