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Who may devise.
Of Wills and Testaments; of the Distribution of the Estates of Intestates; and of the Rights, Powers, and Duties of Executors and Administrators.
TITLE 1. Of wills and testaments of real and personal property, and the proof of them.
TITLE 2.-Of granting letters testamentary and of administration.
Of the rights and liabilities of executors and administrators.
OF WILLS AND TESTAMENTS OF REAL AND PERSONAL PROPERTY,
ART. 1. Of wills of real property, and the proof of them.
ART. 2. Of wills of personal property, and the probate of them.
ART. 3.-General provisions applicable to wills of real and personal property.
Of Wills of Real Property, and the Proof of them.
SEC. 1. All persons except idiots, &c. may devise real estate.
2. Every interest in real property descendable to heirs, may be devised.
6. Creditor competent witness to prove will.
7. Executor, &c. may have will proved before surrogate.
8. Notice of intention to prove will to be given to heirs, and for what time.
9. If heirs be minors, notice to be served on their guardians.
10. Subpoenas for witnesses; clause may be added requiring production of papers. 11. Proceedings for disobedience to subpœna, or not producing will.
12. Upon proof of service of notice, surrogate to take proof of will, and how.
14. When will and proofs to be recorded; record to be signed and certified.
17. Proofs, &c. under last section, how to be disposed of.
18. Such proofs when to be received in evidence, and their effect.
19. Witnesses' fees same as in personal action; by whom to be paid.
20. Records of certain wills, proved before 1785, when received in evidence.
SECTION 1. All persons, except idiots, persons of unsound mind, married women, and infants, may devise their real estate, by a last
will and testament, duly executed according to the provisions of this ART. 1. Title.1
§2. Every estate and interest in real property descendible to heirs, What may may be so devised.1
ke by de
§3. Such devise may be made to every person capable by law of Who may holding real estate; but no devise to a corporation shall be valid, un- vise. less such corporation be expressly authorised by its charter, or by statute, to take by devise.1
34. Every devise of any interest in real property, to a person Devises to who, at the time of the death of the testator, shall be an alien, not authorised by statute to hold real estate, shall be void. The interest so devised, shall descend to the heirs of the testator; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there be, competent to take such interest.
5. Every will that shall be made by a testator, in express terms, Wills of real of all his real estate, or in any other terms denoting his intent to de- construedvise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death.
36. If by any will, any real estate be charged with any debt, and Creditor the creditor whose debt is so charged, shall attest the execution there- witness of, such creditor, notwithstanding such charge, shall be admitted as a competent witness, to prove the execution of such will.2
$7. When any real estate shall be devised by will, any executor Executor, or devisee named therein, and any person interested in such estate, prove will may have such will proved, before the surrogate of the county, to whom the probate of the will of the testator would belong, in respect to personal property, under the second Article of this Title.
$8. The person intending to apply for the proof of such will, shall Notice of in. give notice of his intention to the heirs of the testator, as follows:
1. To such heirs as reside in the county where such proof is intended to be taken, by serving such notice personally, at least fifteen days previous to such application:
2. To such heirs as do not reside in the county, but reside in the state, by serving the same personally, twenty days previously:
3. To such heirs as cannot be found in the state, and to such as do not reside therein, by serving such notice personally, twenty days previously, or by publishing it once in each week, for six weeks, in the state paper.3
prove wills; &c.
$9. If any of such heirs shall be minors, and have guardians, ser- If heirs mivice of such notice shall be made upon such guardians, in the same how served.
(1) 1 R. L. 364, § 1 & 5. (2) Ib. 367, § 13. (3) Ib. 365, § 6 to 9. VOL. II. 8
TITLE 1. manner, as prescribed in the last preceding section. If they shall have no guardians, the surrogate shall appoint guardians, to take care of their interests in the premises.4
$10. Witnesses may be summoned by subpoenas, to be issued by the surrogate, at any time before the day specified in such notice, which may be served as in cases of personal actions: and a clause may be added to any such subpoena, commanding any person having the custody of, or power over, any such will, to produce the same before the said surrogate, for the purpose of being proved.
$ 11. Disobedience to any such subpoena shall be proceeded against of subpona. and punished, as in other cases of proceedings before surrogates. If
any person be committed for not producing any will, he may be discharged, on producing the same to the surrogate who committed him, by an order for that purpose.1
Surrogate when and
S 12. Upon proof being made of the due service of the notice of how to take such application, the surrogate shall cause the witnesses to be examined before him. All such proofs and examinations shall be reduced to writing. All the witnesses to such will who are living in this state, and of sound mind, shall be produced and examined: and the death, absence, or insanity of any of them, shall be satisfactorily shown to the surrogate taking such proof.4
Proof of hand writing, &c.
S13. When any one or more of the subscribing witnesses to such will shall be examined, and the other witnesses are dead, or reside out of the state, or are insane, then such proof shall be taken of the hand-writing of the testator, and of the witness or witnesses so dead, absent, or insane, and of such other circumstances, as would be sufficient to prove such will, on a trial at law.*
Will when to $ 14. If it shall appear upon the proof taken, that such will was duly executed; that the testator, at the time of executing the same, was in all respects competent to devise real estate, and not under restraint, the said will and the proofs and examinations so taken, shall be recorded in a book to be provided by the surrogate, and the record thereof shall be signed and certified by him.4
Will and re- S 15. Every will so proved, shall have a certificate of such proof
cord thereof, endorsed thereon, signed by the surrogate and attested by his seal of
to be evidence.
office, and may be read in evidence without further proof thereof. The record of such will, made as aforesaid, and the exemplification of such record, by the surrogate in whose custody the same may be, shall be received in evidence, and shall be as effectual in all cases, as the original will would be, if produced and proved, and may, in like manner, be repelled by contrary proof.4
(4) 1 R. L. 365, § 6 to 9.
$16. If it shall appear to the satisfaction of the surrogate, that all ART. 1 the subscribing witnesses to any such will, are dead, insane, or reside Proof fall out of the state, the surrogate shall take and receive such proof of the winesses the hand-writing of the testator, and of either or all the subscribing witnesses to the will, and of such other facts and circumstances, as would be proper to prove such will, on a trial at law.5
are dead, &c.
&c. how dis
$ 17. The proofs and examinations taken under the last preceding Ib. Proofs, section, shall be signed, certified and recorded by the surrogate as posed of herein before provided, and the will shall be deposited with him."
18. The record of the proofs and examinations taken pursuant . Effect of to the provisions of the two last preceding sections, and the exemplifications of such record, by the surrogate in whose custody it may be, shall be received as evidence upon any trial or controversy concerning the same will, after it shall have been proved in such trial or controversy, that the lands in question therein, have been uninterruptedly held under such will, for the space of twenty years, before the commencement of the suit, in which such trial or controversy shall be had; and shall be of the same force and effect, as if taken in open court, upon such trial or in such controversy."
19. The witnesses shall have the like fees for their attendance, Witnesses' on proving a will, as are allowed for similar services in personal actions, to be paid by the person applying to have such will proved.
$20. The exemplification of the record of any last will and tes- Records of tament, proved before the judge of the former court of probates, and proved before recorded in his office, before the first day of January, one thousand seven hundred and eighty-five, certified under the seal of the officer in whose custody such record shall be, shall be received in evidence in all cases, after it shall have been made to appear, that diligent and fruitless search has been made for the original will."
Of Wills of Personal Property, and the Probate of them.
SEC. 21. Males of 18, and unmarried females of 16, may make wills of personal estate.
28. Surrogate first proving will, to have exclusive jurisdiction.
29. Probate of will, to be conclusive as to personal property, until, &c.
32. Citation to executors and legatees, to be issued thereupon.
33. Proceedings of executor, &c. how far suspended by service of citation.
35. Surrogate to decide, and in what form; appeals from such decisions when made.
(5) 1 R. L. 365, § 6 to 9. (6) Ib. 366, § 10. (7) Ib. 368, § 21.
TITLE 1. SEC. 36. Depositions on first proof, when to be received in evidence. 37. Revocation of probate to be entered on surrogate's records, and notice to be given. 38. Powers of executor, &c. to cease after such notice; certain prior acts good. 39. Surrogate's fees and expenses, by whom to be paid, and how.
Who may make wills of
S21. Every male person of the age of eighteen years, or upwards, personal es- and every female not being a married woman, of the age of sixteen
Unwritten wills when allowed.
Power of surrogates in respect to probate.
years, or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing.
$22. No nuncupative or unwritten will, bequeathing personal estate, shall be valid, unless made by a soldier while in actual military service, or by a mariner, while at sea."
$ 23. The surrogate of each county shall have sole and exclusive power, within the county for which he may be appointed, to take the proof of last wills and testaments, so far as the same relate to personal property, of all deceased persons, in the following cases:
1. Where the testator at, or immediately previous to his death, was an inhabitant of the county of such surrogate, in whatever place such death may have happened:
2. Where the testator, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein :
3. Where the testator, not being an inhabitant of this state, shall die out of the state, leaving assets in the county of such surrogate:
4. Where a testator, not being an inhabitant of this state, shall die out of the state, not leaving assets therein, but assets of such testator shall thereafter come into the county of such surrogate. 10
Citation to widow and
$ 24. No will of personal estate, either written or unwritten, shall
next of kin, be admitted to proof, nor shall letters testamentary or of administra
tion thereon be granted, until the widow and next of kin shall have
been cited to appear and attend such probate. Such citation shall be personally served on them, if they be in the county, six days at least before the return thereof; and if not in the county, and whenever personal service is not made on the next of kin, by publishing the same at least two weeks, in such newspaper in the state, as the surrogate shall deem most likely to give notice to the relatives of the deceased.11
$ 25. On the application of any person interested, the surrogate compel pro- shall issue a citation under his seal of office, to any person having the
of will, &c.
custody or possession of any will, requiring him to produce the same, at such time and place as such surrogate shall deem reasonable, to the intent that such will may be duly proved. Any person who, without reasonable cause, shall neglect or refuse to produce any will, in obedience to such citation, shall be committed to the jail of the coun
(8) 1 R. L. 367, § 16. (9) Ib. § 14. (10) Ib. 445, § 3; Laws of 1823, p. 1 R. L. 446, § 6.
62, § 2. (11)