MASSACHUSETTS STATUTES (source: CHAPTER 204. GENERAL PROVISIONS RELATIVE TO SALES, MORTGAGES, RELEASES, COMPROMISES, ETC.

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1 MASSACHUSETTS STATUTES (source: CHAPTER 204. GENERAL PROVISIONS RELATIVE TO SALES, MORTGAGES, RELEASES, COMPROMISES, ETC., BY EXECUTORS, ETC. GENERAL PROVISIONS. Chapter 204, Section 1. Specific performance of decedent's land contracts. Chapter 204, Section 2. Consent of a deceased person; power of court to decree conveyance. Chapter 204, Section 3. Foreign fiduciaries; license to receive and dispose of personalty. Chapter 204, Section 3A. Power of Massachusetts fiduciary to transfer personal property to foreign fiduciaries; petition; proceedings; decree; exoneration of Massachusetts fiduciary. Chapter 204, Section 4. Vested or contingent interests; power of fiduciaries to release. Chapter 204, Section 5. Cemetery lots; sale or release. Chapter 204, Section 6. Mortgage given under license of court; contents. Chapter 204, Section 7. Venue; petitions for sales by foreign fiduciaries. Chapter 204, Section 8. License to sell; duration. Chapter 204, Section 9. Proceeds of sales; surplus; disposition. Chapter 204, Section 10. Granting license; objections; costs. Chapter 204, Section 11. Persons licensed to sell realty; examination. Chapter 204, Section 12. Church, etc., property; sale or transfer. COMPROMISES, ETC. Chapter 204, Section 13. Adjustment or compromise; authorization by court. Chapter 204, Section 14. Controversies; power of court to authorize compromise by fiduciaries. Chapter 204, Section 15. Compromise of wills. Chapter 204, Section 16. Contingent interests; protection. Chapter 204, Section 17. Effect of compromise. Chapter 204, Section 18. Wards; representation by guardians. IRREGULAR AND INVALID SALES, ETC., BY EXECUTORS, ETC. Chapter 204, Section 19. Irregularities of proceeding; effect. Chapter 204, Section 20. Irregularities of proceedings; claim of paramount title. Chapter 204, Section 21. Debts; adjudication; finality. Chapter 204, Section 22. Realty sold by fiduciaries; limitation of action or entry. Chapter 204, Section 23. Void acts of fiduciaries; confirmation or setting aside. Chapter 204, Section 24. Doubtful acts of fiduciaries. Chapter 204, Section 25. Irregularly appointed fiduciary; liability to account. Chapter 204, Section 26. Notice of appointment or sale; failure of proof; remedy. Chapter 204, Section 27. Release; powers. Chapter 204, Section 28. Method of release. Chapter 204, Section 29. Effect and scope of release. Chapter 204, Section 30. Exercise of power by several persons; release by one; effect. Chapter 204, Section 31. Word "release" defined. Chapter 204, Section 32. Restraint of alienation or anticipation provisions; effect on release. Chapter 204, Section 33. Construction. Chapter 204, Section 34. Repealed, 1975, 573, Sec. 3. Chapter 204, Section 35. Release or disclaimer; construction. Chapter 204, Section 36. Severability. Chapter 204, Section 37. Resignation of guardian on behalf of ward.

2 Chapter 204: Section 1. Specific performance of decedent s land contracts Section 1. If a person who has entered into a written agreement for the conveyance of real estate or holds real estate which by operation of law is subject to be conveyed to others, dies or is put under guardianship or conservatorship or disappears or absconds with the result that a receiver of his property is appointed under chapter two hundred, without having made such conveyance, the probate court shall have jurisdiction in equity concurrent with the supreme judicial and superior courts to enforce specific performance of such agreement or obligation to convey; and, upon a petition therefor by any person interested in the conveyance, shall, after notice, if upon hearing it appears that the deceased, were he living, or the ward, were he not under guardianship or conservatorship, or the absentee, had he not disappeared or absconded as aforesaid, would be required to make the conveyance, order the executor or administrator, or the guardian, conservator or receiver to make the same, which conveyance shall have like force and effect as if made by the person who agreed or was liable to convey. Such concurrent jurisdiction shall also extend to the specific enforcement of reconveyance by persons alleged to be improperly holding or retaining property belonging to the estate of a deceased person, or to a person under guardianship or conservatorship, or to a person of whose property a receiver has been appointed under said chapter two hundred, and to the cancellation of deeds, releases or other conveyances or acquittances executed by a person since deceased or by a person since placed under guardianship or conservatorship or of whose property a receiver has been appointed as aforesaid, on petition of the executor, administrator, guardian, conservator or receiver, as the case may be. Chapter 204: Section 2. Consent of a deceased person; power of court to decree conveyance Section 2. If, under a will, the sale of real estate by a trustee, executor or administrator with the will annexed is dependent upon the consent of a person who has deceased, the probate court having jurisdiction of the settlement of the estate may, in its discretion, and if all parties interested assent, authorize the sale and conveyance of such real estate in like manner as if no such consent had been required. Chapter 204: Section 3. Foreign fiduciaries; license to receive and dispose of personalty Section 3. An executor, administrator, guardian, conservator or trustee duly appointed in another state or in a foreign country and duly qualified and acting, who may be entitled to any personal property, situated in the commonwealth, may file an authenticated copy of his appointment in the probate court for any county where there is real estate of his trust, or, if there is no such real estate, in any county where there is personal property of his trust, and may upon petition to said court, after such notice to creditors and all persons interested as the court may order, be licensed to receive or to sell by public or private sale, upon such terms and to such person or persons as he shall think fit, or otherwise to dispose of, and to transfer and convey, shares in a corporation or other personal property, if the court finds that there is no executor, administrator, guardian, conservator or trustee appointed in the commonwealth who is authorized so to receive and dispose of such shares or estate, and that such foreign executor, administrator, guardian, conservator or trustee will be liable, upon and after such receipt or sale, to account for such shares or estate, or for the proceeds thereof, in the state or country where appointed; and that no person resident in this commonwealth and interested as a creditor or otherwise objects to the granting of such license or appears prejudiced thereby; but no such petition shall be filed by a foreign executor or administrator until the expiration of three months after the death of his testator or intestate. The commissioner of revenue shall be made a party to any petition by a foreign executor, administrator or trustee under this section, and shall be given fourteen days notice of the same. Chapter 204: Section 3A. Power of Massachusetts fiduciary to transfer personal property to foreign fiduciaries; petition; proceedings; decree; exoneration of Massachusetts fiduciary

3 Section 3A. An executor, administrator, guardian, conservator or trustee who has in his hands personal property to which an executor, administrator, guardian, conservator or trustee duly appointed in another state or in a foreign country and duly qualified and acting is entitled may pay over and transfer the whole or any part of such personal property to such foreign fiduciary upon such terms and in such manner as the probate court by which such Massachusetts fiduciary was appointed, or, if not appointed by the probate court, as the probate court for any county where there is property to which such foreign fiduciary is entitled, may decree upon petition filed therefor. Proceedings upon such petition shall be governed by the provisions of section three. No such petition for a decree ordering distribution to a foreign executor or administrator shall be filed until the expiration of three months after the death of his testator or intestate. Payment or transfer by a Massachusetts fiduciary in accordance with a decree under this section or section three shall forever exonerate such fiduciary unless the decree is impeached for fraud or manifest error. Chapter 204: Section 4. Vested or contingent interests; power of fiduciaries to release Section 4. An executor, administrator, guardian, conservator or trustee may, after the notice required upon a petition by him for a license to sell real estate, be authorized by the probate court to release and discharge, upon such terms and conditions as may appear to be proper, a vested, contingent or possible right or interest, if such release or discharge appears to be for the benefit of the person or estate which he represents. Chapter 204: Section 5. Cemetery lots; sale or release Section 5. An executor, administrator, guardian, conservator or trustee may be authorized by the probate court, after notice to all persons interested, to sell and convey or release upon such terms and in such manner as the court may order, lots in cemeteries belonging to the person or estate by him represented. Chapter 204: Section 6. Mortgage given under license of court; contents Section 6. A mortgage given by an executor, administrator, guardian, conservator or trustee under license of court may contain a power of sale, and every such mortgage shall state that it is made under license of court and the date of such license. Chapter 204: Section 7. Petitions for sales by foreign fiduciaries; venue Section 7. All proceedings in probate courts relative to sales by a foreign executor, administrator, guardian, conservator or trustee shall be in the county where an authenticated copy of his appointment is first filed. Chapter 204: Section 8. License to sell; duration Section 8. No license to sell by an executor, administrator, guardian, conservator or trustee shall be in force for more than one year after the granting thereof, except as provided in section eighteen of chapter two hundred and two. Chapter 204: Section 9. Proceeds of sales; surplus; disposition Section 9. In every sale of the real estate of a deceased person or a ward by an executor, administrator, guardian or conservator, the surplus of the proceeds remaining on the final settlement of the accounts shall be considered as real estate, and shall be disposed of to the same persons and in the same proportions to whom and in which the real estate if not sold would have descended or have been disposed of by law.

4 Chapter 204: Section 10. Grant of license; objections; costs Section 10. If a person appears and objects to the granting of a license to sell real estate and the court finds that either the petition or the objection thereto is unreasonable, it may award costs to the prevailing party. Chapter 204: Section 11. Persons licensed to sell realty; examination Section 11. A person authorized to sell land under license of court shall be required, upon petition to the probate court by an heir, creditor, ward or other person interested in the estate, to answer on oath as to all matters relative to his exercise and fulfilment of said license as fully as he is liable to account and be examined relative to personal property. If, in relation to the exercise of such license or to a sale under it, there is any neglect or misconduct in the proceedings of such person by which a person interested in the estate suffers damage, such interested person may recover compensation therefor on the probate bond or otherwise as the case may require. Chapter 204: Section 12. Church, etc., property; sale or transfer Section 12. The supreme judicial court, upon petition of a party interested and after notice, may order the sale or transfer of any real or personal property held for churches, cemeteries or other like trusts and the investment or disposition of the proceeds, and may make orders and decrees necessary to secure the rights of owners of, or of other persons claiming an interest in, pews or in tombs or lots in cemeteries. Chapter 204: Section 13. Court authorization Section 13. The probate court may authorize an executor, administrator, guardian, conservator, receiver, commissioner or other fiduciary officer appointed by it, or a trustee, to adjust by arbitration or compromise any demand in favor of or against the estate by him represented. Chapter 204: Section 14. Controversies; arbitration or compromise by fiduciaries Section 14. The supreme judicial court or the probate court may authorize an executor, administrator, guardian, conservator, receiver, commissioner or other fiduciary officer appointed by the probate court, or a trustee, to adjust by arbitration or compromise any controversy or question as to the administration or distribution of the estate in his possession, or as to his accounting therefor, or as to any matter relating to said estate, or as to the construction of a will or trust created by a written instrument, or as to his power and authority thereunder, or as to any controversy growing out of said will or instrument that may arise between him and any other person or the guardian or conservator of any person interested under said will or instrument or in said estate, or between claimants or the guardians or conservators of claimants to said estate, to which arbitration or compromise, in the form of an agreement in writing, such executor, administrator, guardian, conservator, receiver, commissioner or other fiduciary officer or trustee, and all other persons in being and of full age and not under guardianship, and the guardian or conservator, if any, of all other persons who claim a vested interest in said estate, whose interests will, in the opinion of the court, be affected by the proposed arbitration or compromise, shall be parties. An award or compromise made in writing in such a case, if found by the court to be just and reasonable in its effects upon the interests of minors and persons under guardianship or conservatorship, and upon any future contingent interests in said estate, shall, when approved by the court, be valid and binding upon all such interests and upon the original parties to said agreement, and a decree shall be entered accordingly. If the court finds that any minor or person without legal capacity or under guardianship, or any future contingent interests, may be affected, it may appoint some person or persons to represent such minor or person without legal capacity or under guardianship, or future contingent interests in such controversy, question, administration or account upon such conditions as to costs as it may order.

5 Chapter 204: Section 15. Compromise of wills Section 15. The supreme judicial court or the probate court may authorize the persons named as executors in an instrument purporting to be the last will of a person deceased, or the petitioners for administration with such will annexed, to adjust by arbitration or compromise any controversy between the persons who claim as devisees or legatees under such will and the persons entitled to the estate of the deceased under the laws regulating the descent and distribution of intestate estates, to which arbitration or compromise the persons named as executors, or the petitioners for administration with the will annexed, as the case may be, those claiming as devisees or legatees whose interests will in the opinion of the court be affected by the proposed arbitration or compromise, and those claiming the estate as intestate, shall be parties. Chapter 204: Section 16. Contingent interests; protection Section 16. If the court finds that any future contingent interests which would arise under said will if admitted to probate would be affected by the arbitration or compromise, it shall appoint some person to represent such interests in such controversy, and the court shall have like power as to any bequests made in the will for charitable purposes, if no trustees have been appointed in such will; in both cases with such conditions as to costs as the court orders. Chapter 204: Section 17. Effect of compromise Section 17. An award or compromise made in writing in any such case, if found by the court to be just and reasonable in relation to the parties in being and in its effect upon any future contingent interests that might arise under such will and upon any bequests to charities made in the same, shall be valid and binding upon such interests and upon such bequests, as well as upon the interests of all persons in being, but it shall not impair the claims of creditors. Chapter 204: Section 18. Wards; representation by guardians Section 18. If a minor or a person under guardianship or conservatorship is a necessary party to an arbitration or compromise under section fifteen, he shall be represented in the proceedings by his guardian or conservator, or by a guardian ad litem appointed by the court, who shall in the name and in behalf of the party he represents, make and receive all proper conveyances and payments necessary to carry into effect any award or compromise sanctioned by the court. Chapter 204: Section 19. Irregularities in proceedings; effect Section 19. No sale of real estate under license of court, and no title thereunder, shall be avoided for the reason that the deed was not delivered within one year after the license, or on account of any irregularity in the proceedings, if it appears First, That the license was granted by a court of competent jurisdiction; Second, That the person licensed gave a bond approved by the court or judge granting such license, if a bond was required; Third, That the notice of the time and place of sale was given according to the order of the court; and Fourth, That the property was sold by public auction in accordance with the notice, and is held by one who purchased it in good faith. Chapter 204: Section 20. Adverse claims to title Section 20. If the validity of a sale is drawn in question by a person claiming adversely to the title of the deceased or of the ward, or under a title not derived from or through the deceased or the ward, the sale shall not be void by reason of any irregularity in the proceedings, if the executor, administrator,

6 guardian, conservator or trustee was licensed to make the sale by a court of competent jurisdiction and executed and acknowledged in legal form a deed of the property. Chapter 204: Section 21. Debts; adjudication; finality Section 21. If a license is granted by a probate court for a sale or mortgage of real estate to pay the debts and charges of a deceased person or of a person under guardianship or conservatorship, the adjudication of said court as to the existence of such debts and charges shall be final so far as the same may affect any title acquired by virtue of such license, but shall not affect the right of the executor, administrator, guardian or conservator to contest the validity of such debts and charges. Chapter 204: Section 22. Realty sold by fiduciaries; limitation of action or entry Section 22. No action for the recovery of property sold by an executor or administrator under chapter two hundred and two shall be maintained by an heir or other person claiming under the deceased unless commenced within five years next after the sale; and no action for property sold by a guardian or conservator under said chapter shall be maintained by the ward or by any person claiming under him unless commenced within five years next after the termination of the guardianship or conservatorship; but persons out of the commonwealth and minors and others under legal disability to sue when their right of action first accrues may commence such action at any time within five years after the removal of the disability or after their return to the commonwealth. No entry, unless by judgment of law, shall be made upon land so sold, with a view to avoid the sale, unless within the times of limitation before prescribed for the commencement of an action. Chapter 204: Section 23. Void acts of fiduciaries; confirmation or setting aside Section 23. If an act or proceeding of a person acting as executor, administrator, guardian, conservator, trustee, receiver, commissioner or in any other fiduciary capacity under an appointment or license of a probate court is void or voidable by reason of an irregularity or of want of jurisdiction or authority in the court which made the appointment or granted the license, any person interested in or affected by such act or proceeding may have the matter heard and determined by the supreme judicial court in equity, which may confirm or set aside, in whole or in part, the act or proceeding. Chapter 204: Section 24. Doubtful acts or proceedings of fiduciaries or court; ratification Section 24. If the authority or validity of an act or proceeding of the probate court or of a person acting as executor, administrator, guardian, conservator, receiver, commissioner or other fiduciary officer appointed by the probate court, or trustee is drawn in question by reason of an alleged irregularity, defective notice or want of authority, any party interested in or affected by such act or proceeding may apply to the probate court having jurisdiction of the subject matter relative to which the act or proceeding has been had, and the court, after notice to all parties interested, and to the persons who may be the parents of such parties not in being, with power to appoint a guardian or next friend to represent the interests of any person unborn or unascertained, may hear and determine the matter and confirm the act or proceeding, in whole or in part, and may authorize and empower the executor, administrator, guardian, conservator, receiver, commissioner or other fiduciary officer appointed by the probate court, or trustee, or any successor or other person who may be legally appointed to act in the same capacity, to ratify and confirm such act or proceeding and to execute and deliver such deeds, releases, conveyances and other instruments as may be found necessary therefor; but no act or proceeding shall be ratified or confirmed which the court might not have passed or authorized in the first instance upon due proceedings. Chapter 204: Section 25. Irregularly appointed fiduciary; liability to account

7 Section 25. An executor, administrator, guardian, conservator, trustee, receiver, commissioner or other fiduciary officer appointed by the probate court whose appointment is invalid by reason of an irregularity or of want of jurisdiction or authority in the court which made it, shall account for all money, property or assets coming to his hands in said capacity as if the appointment had been regular and valid; and any bond given in pursuance of such appointment shall be valid and binding on the principals and sureties; and payments to or by a person so appointed, if in other respects properly made, may with the approval of the probate court be ratified and confirmed by the executor, administrator, guardian, conservator or trustee who is afterward legally appointed. Chapter 204: Section 26. Notice of sale; failure of proof; remedy Section 26. If an executor, administrator, guardian, conservator, trustee, receiver, commissioner or other fiduciary officer appointed by the probate court, or a person employed by him to give notice of sale of real estate, has failed to file an affidavit of such notice in the probate court and such affidavit cannot be obtained, the court may, upon petition of any person interested in real estate the title to which may be affected thereby, stating the particular failure complained of and averring that the affidavit cannot be obtained, order notice by publication to creditors of, and others interested in, the estate in the settlement of which the failure complained of occurred. If, upon return of such notice and after hearing, the court is satisfied that such notice was in fact given, it may make a decree to that effect. Chapter 204: Section 27. Release; powers Section 27. A power of appointment, whether or not coupled with an interest, and whether or not existing at the time this section takes effect, and whether the power is held by the donee in an individual or in a fiduciary capacity, may be released, wholly or partially, by the donee thereof, unless otherwise expressly provided in the instrument creating the power. As used in sections twenty-seven to thirty-five, inclusive, the term power of appointment includes all powers which are in substance and effect powers of appointment regardless of the language used in creating them and whether they are: (a) general, special, or otherwise; (b) in gross, appendant, simply collateral, in trust, or otherwise; (c) exercisable by will, deed, deed or will, or instrument amending a trust, or otherwise; (d) exercisable presently or in the future. Chapter 204: Section 28. Method of release Section 28. A power releasable according to section twenty-seven, or under common law, may be released, wholly or partially, by the delivery of a written release executed by the donee of the power for consideration or under seal to any person who could be adversely affected by the exercise of the power, or to any person who alone or with another or others holds in trust property subject to the power, or, in the case of a power created by will, by the filing of such release in the registry of probate in the county in which such will was proved or allowed. No release of a power of appointment shall be valid as to land in the commonwealth subject to such power, except as against the releasor and persons having actual notice of the release, unless (a) in case of a power created by will or other written instrument, the release is acknowledged in the manner required in the case of deeds of land to entitle them to be recorded and is recorded in the registry of deeds for the county or district in which the land lies or, in the case of registered land, is filed and registered in the office of the assistant recorder for the registry district where the land lies or (b) in case of a power created by will, the release is filed in the registry of probate in the county in which such will was proved or allowed. Chapter 204: Section 29. Effect and scope of release Section 29. A release executed by the donee of a power releasable according to section twenty-seven, or under common law, and delivered or filed in accordance with the first sentence of section twenty-

8 eight, shall, subject to the second sentence of section twenty-eight, be effective to release the power to the extent in such release provided, whether it in substance provides for the release of all right of the donee to exercise the power, or for the release of all right of the donee to exercise the power otherwise than in respect of a part, therein defined, of the property subject to the power, or for the release of all right of the donee to exercise the power otherwise than to or for the benefit of, in trust for, or in favor of a person or persons or class or classes of persons, therein specified, or an object or objects or class or classes of objects, therein defined. Chapter 204: Section 30. Exercise of power by several persons; release by one; effect Section 30. If a power of appointment releasable according to section twenty-seven, or under common law, is or may be exercisable by two or more persons in conjunction with one another or successively, a release of the power, in whole or in part, executed, and delivered or filed, in accordance with the first sentence of section twenty-eight, by any one of the donees of the power, shall, subject to the second sentence of section twenty-eight, be effective to release, to the extent therein provided, all right of such person to exercise or to participate in the exercise of the power, but, unless the instrument creating the power otherwise provides, shall not prevent or limit the exercise or participation in the exercise thereof by the other donee or donees thereof. Chapter 204: Section 31. Release; definition Section 31. The word release, as used in sections twenty-eight to thirty, inclusive, shall include (1) an instrument wherein the person who executes it in substance states that he wholly releases, or agrees in no respect to exercise or participate in the exercise of, a power of appointment, and (2) an instrument wherein the person who executes it in substance states that he releases all right to exercise or participate in the exercise of a power of appointment otherwise than within limits therein defined or agrees not to exercise or participate in the exercise of a power of appointment otherwise than within limits therein defined. Chapter 204: Section 32. Restraint of alienation or anticipation provisions Section 32. Release of a power of appointment otherwise releasable shall not be prevented merely by provisions in restraint of alienation or anticipation contained in the instrument creating the power. Chapter 204: Section 33. Construction Section 33. Sections twenty-seven to thirty-two, inclusive, shall so far as possible be deemed to be declaratory of the common law of this commonwealth. Said sections shall be liberally construed so as to effectuate the intent that all powers of appointment whatsoever shall be releasable unless otherwise expressly provided in the instrument creating the power. Chapter 204: Section 34. Repealed, 1975, 573, Sec. 3 Chapter 204: Section 35. Release or disclaimer; construction Section 35. Nothing in sections twenty-seven to thirty-four, inclusive, shall prevent the release in any lawful manner of any releasable power of appointment or the disclaimer in any lawful manner of any power of appointment. Chapter 204: Section 36. Severability Section 36. If any of the provisions in sections twenty-seven to thirty-five, inclusive, shall be held invalid or unconstitutional in relation to any of the applications thereof, such invalidity or unconstitutionality shall not affect other applications thereof, or other provisions in said sections; and to these ends the provisions in said sections are declared to be severable.

9 Chapter 204: Section 37. Resignation of guardian on behalf of ward Section 37. If an executor, administrator, guardian, conservator, trustee, receiver, commissioner, or other fiduciary officer, appointed by any court is the ward of a guardian, conservator or committee, or other like officer, appointed by any court in this commonwealth, or by any court at the place of his domicile, to have charge of his property or his person, such guardian, conservator or committee, or other like officer, may, on behalf of the ward, resign the trust or other office held by the ward if the court which appointed the ward finds it proper to allow such resignation, and the court may accept such resignation without notice to the ward. In the case of a fiduciary under a written instrument who was not appointed by a court, his guardian, conservator or committee, if one has been appointed, may, on behalf of the ward, resign with the approval in writing of the persons authorized by the instrument to appoint a new trustee in case of a vacancy if the instrument contains such a provision, and, if not, then with the approval of a court having jurisdiction to appoint a new trustee in case of vacancy.