VIII. And be
it enacted, That in case the parties entitled to the intestate's
estate cannot agree upon the division thereof, or in case any person entitled
to any
part be a minor, an application may be made to the court of the county
where
the estate lies, and the court shall appoint and issue a commission to
five discreet
sensible men, who before they act shall take an oath, to be annexed to
the commission,
well and truly, and without favour, partiality or prejudice, to adjudge
and determine whether the estate will admit of being divided without injury
and
loss to all the parties entitled, and to ascertain the value of such estate
in current
money, and if the estate can, in the opinion and judgment of the commissioners,
or a majority of them, be divided without loss and injury to all the parties
entitled,
that they will then divide and make partition of the same fairly and equally
in value between all the parties interested, according to their several
just proportions;
and if the said commissioners, or a majority of them, shall determine
that the estate cannot be divided without loss to all the parties, then
they shall
make return to the county court of their judgment, and the reasons upon
which
the same is formed, and the real value of the estate in current money,
and if the
judgment of the commissioners shall be confirmed by the county court, then
the
eldest son, child or person entitled, if of age, shall have the election
to take the
whole estate, and pay to the others their just proportions of the value
in money;
and if the eldest child or person entitled refuses to take the estate,
and pay to the
others money for their proportions, then the next eldest child or person
entitled,
being of age, shall have the same election, and so on to the youngest child
or
person entitled; and if all refuse, then the estate shall be sold under
the direction
of the said commissioners, or a majority of them, for money or upon credit,
as
they, with a majority of the persons interested, who are of age, and the
guardians
of such as may be minors, shall determine to be most advantageous to all
concerned,
and the purchase money shall be justly divided among the several persons
interested
according to their respective titles to the estate; but if all the parties
entitled
shall be minors at the death of the intestate, the estate shall not be
sold
until the eldest arrives to age, and the profits of the estate shall be
equally divided
in the mean time; and if the commissioners, or a majority of them, shall
determine, that the land or estate can be divided without loss and injury
to all
the parties, they shall cause the lands to be surveyed and laid out by
the county
surveyor, or such other person as they may think qualified, for the several
parties,
in case the estate consists of lands; and the commissioners appointed as
aforesaid,
or a majority of them, shall allot to the several parties their respective
shares of
the said land; and in case the estate shall consist of houses, the commissioners
shall make allotment and partition between the parties; and the commissioners
appointed, after having made partition or allotment in manner aforesaid,
shall
return their proceedings to the next county court to happen thereafter,
which
shall be ratified or rejected as justice shall dictate, and if ratified,
and no appeal
by either party, the partition made as aforesaid shall be recorded and
remain,
and be binding; and if rejected, a new partition shall be made and returned
as
aforesaid, and either party may appeal to the chancellor from the judgment
of
the county court; and if the intestate has died possessed of more tracts
of land
than one, then the decision shall be made so as not to split the several
tracts of
lands, if it can be done consistently with equality, and if it cannot be
exactly done
by this mode, then so much of the larger or more valuable tracts of land
shall
be taken and added to the less valuable as will make the portion equal
in value;
and if lands or other estate lie in different counties, then an application
may be
made to the chancellor, who shall appoint commissioners to make the whole
examination
and division, or commissioners for each county where the lands or
other estate lie, as to him may seem most convenient; and the commissioners
by
him appointed shall proceed in the same manner as directed for commissioners
appointed by the county courts, and shall make returns to the chancellor
for his
confirmation or rejection, and similar proceedings shall be had in the
chancery
court upon a commission issued from that court, as are before directed
upon commission
issued from the county court, and in case of commission issued from the |
Where the
parties cannot
agree, application
may be
made to the
court, &c. |
