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ty, by an order under the hand and seal of the surrogate, there to re- ART. 2. main until he shall produce such will.12

how proved;


$ 26. Written wills of personal estate offered for probate, shall be written wills proved by one or more of the subscribing witnesses, or if they be dead, duty of surinsane, or out of the state, then by proof of the hand writing of the testator and of the subscribing witnesses; and in all cases the oath of the person who received the same of the testator, if he can be produced, together with the oath of the person presenting the same for probate, stating the circumstances of the execution, the delivery and the possession thereof, shall be required. The surrogate shall enquire particularly into the facts and circumstances, and shall be satisfied of the genuineness and validity of such will, before admitting the same to probate, or granting letters testamentary or of administration there


$27. Every surrogate shall endorse on every will proved before Certificate of him, a certificate that the same has been admitted to probate by him, stating therein the day when such probate was granted.



$28. When any will of personal property shall have been proved Exclusive before any surrogate having jurisdiction, the jurisdiction over the ex- of surrogate ecutors, and the power of granting letters testamentary and of admi-proving will, nistration with the will annexed, with all powers incidental thereto, shall be exercised exclusively by the surrogate who first took the proof of such will; and no other surrogate shall have power to grant letters of administration upon the estate of such testator.

when evi

$29. The probate of any will of personal property, taken by a Probate surrogate having jurisdiction, shall be conclusive evidence of the vali- dence. dity of such will, until such probate be reversed on appeal, or revoked by the surrogate, as herein directed, or the will be declared void by a competent tribunal.

may contest

$30. Notwithstanding a will of personal property may have been Next of kin admitted to probate, any of the next of kin to the testator, may, at probate or any time within one year after such probate, contest the same, or the validity of such will, in the manner herein provided.


$31. For that purpose, such relative shall file in the office of the Proceedings. surrogate by whom the will was proved, his allegations in writing, to be filed. against the validity of such will, or against the competency of the proof thereof.

to executors

$32. Upon the filing of such allegations, the surrogate shall issue Ib. Citation a citation to the executors, who shall have taken upon them the exe- and legatees cution of such will, or to the administrators with such will annexed, and to all the legatees named in such will, residing in this state, or to

(12) 1 R. L. 449, § 14.


Effect of citation.

Proceedings before surrogate.

Surrogate to decide; appeals from such decisions.

their guardians, if any of them be minors, or their personal representatives, if any of them be dead, requiring them to appear before him on some day to be therein specified, not less than thirty and not more than sixty days from the date thereof, at his office, to show cause why the probate of such will should not be revoked.

Effect of notice.

$33. After the service of the citation, such executor or administrator shall suspend all proceedings in relation to the estate of the testator, except the collection and recovery of monies and the payment of debts, until a decision shall be had on such allegations.

Prior acts.

$34. At the time appointed for showing cause, and at such other times thereafter as the surrogate may appoint, upon due proof being made of the personal service of such citation, upon every person named therein, at least fourteen days before the time appointed for showing cause, the surrogate shall proceed to hear the proofs of the parties. If any legatees named in the will so contested, shall be minors, and have no guardians, he shall appoint guardians to take care of their interests in the controversy.

Former depo- $36. Upon any such hearing before the surrogate, the depositions of witnesses taken on the first proof of the will, who may be dead, insane, or out of the state, may be received in evidence.

sitions when evidence.

$35. If, upon hearing the proofs of the parties, the surrogate shall decide that such will is for any reason invalid, or that it is not sufficiently proved to have been the last will and testament of the testator, he shall annul and revoke the probate thereof; if otherwise, he shall confirm such probate. Appeals from such decisions may be made in the manner, within the time, and with the effect, prescribed by law.

Revocation to be entered,

$37. Whenever any surrogate shall annul and revoke the probate notice there' of any will of personal property, as herein provided, he shall enter


such revocation in his records, and attest the same; and shall cause notice thereof to be immediately served on the executors therein named, or upon the administrators with such will annexed, and to be published for three weeks in a newspaper printed in his county, if there be one, the expense of which publication shall be taxed as a part of the costs of the proceedings.

$38. Upon such notice being served upon such executor or administrator, his powers and authority shall cease, and he shall account to the representatives of the deceased person, whose alleged will was contested, for all monies and effects received; but such executor or administrator shall not be liable for any act done in good faith, previous to the service of the citation, nor for any act so done in the collection of monies, or the payment of debts, after the service of the citation, and previous to the service of the notice of revocation.


$39. The surrogate's fees and expenses shall be paid by the party ART. 3. contesting the validity of the will, or the probate thereof, in case such Expenses by will or probate be confirmed; and in case such probate be revoked, whom paid, the party who shall have resisted such revocation, may be required, by the surrogate, to pay the costs and expenses of the proceedings, either personally, or out of the property of the deceased. In all cases, such payment may be enforced by process of attachment.


General Provisions applicable to Wills of Real and Personal


c. 40. Wills of real or personal property, or both, how to be executed.

41. Witnesses to state their places of residence, &c.: penalty: effect of omission.

42 Written wills how to be revoked or cancelled.

43. Marriage and birth of issue, when to be a revocation of a prior will.

44. Will of unmarried woman revoked by subsequent marriage.

45. Bond, &c. to convey property devised, not a revocation, &c.

46. Charge or incumbrance not a revocation; property to pass subject thereto.

4 & 48. Conveyance, &c. altering estate devised, when to be deemed a revocation.

49. After-born child, if unprovided for, to have portion of estate.

50. Devisee or legatee may witness will, but devise to him void.

51. When share of the estate to be saved to such witness.

52. Legatee, &c. dying before testator, devise, in certain cases, not to lapse.

53. When the cancelling of a second will is not to revive first will.

54. Will proved and recorded, when to be returned, and to whom.

55. After proof of will before surrogate, devisee, &c. may appeal to circuit judge.

56. Party appealing to execute a bond; condition thereof.

57. Circuit judge may reverse decision, or direct feigned issue.

58. Issue how to be made up and tried; new trial thereon.

59 & 60. Effect of the determination had upon such issue; proceedings thereon.

61 & 62. Costs by whom to be paid, and how collected.

63. Court of chancery may take proof of wills lost or destroyed,

64. Decree establishing any such will, to be recorded, &c.

65. Court pending suit concerning last will, may restrain administrators, &c. 66. Extent of three last sections.

67. Proof required in respect to lost wills in future cases.

68. Certain provisions to apply to former as well as future wills.

69. Provisions as to revocations, to what wills to apply.

70. Execution or construction of prior wills not affected by this Title.

71. Term "will" to include codicils.

$40. Every last will and testament of real or personal property, Wills how to er both, shall be executed and attested in the following manner :

be executed.

1. It shall be subscribed by the testator at the end of the will:

2. Such subscription shall be made by the testator, in the presence. of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses:

3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament :

4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.1


(13) 1 R. L. 364, § 2.

Witnesses LG state their places of re

TITLE 1. $41. The witnesses to any will, shall write opposite to their names their respective places of residence; and every person who shall sign the testator's name to any will by his direction, shall write sidence, &c. his own name as a witness to the will. Whoever shall neglect to

comply with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will sue for the same. Such omission shall not affect the validity of any will; nor shall any person liable to the penalty aforesaid, be excused or incapacitated on that account, from testifying respecting the execution of such will.

Written wilis how to be

$42. No will in writing except in the cases herein after mentionrevoked or ed, nor any part thereof, shall be revoked, or altered, otherwise than


by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses. 14

Will when revoked by

$43. If after the making of any will, disposing of the whole estate marriage and of the testator, such testator shall marry, and have issue of such marbirth of issue. riage, born either in his life-time or after his death, and the wife or

Will of unmarried wo


the issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein, as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation, shall be received.

$ 44. A will executed by an unmarried woman, shall be deemed revoked by her subsequent marriage.

Bond, &c. to

$45. A bond, agreement, or covenant, made for a valuable consiperty devised, deration, by a testator, to convey any property devised or bequeathed

not a revocation, &c.

in any will previously made, shall not be deemed a revocation of such previous devise or bequest, either at law or in equity; but such property shall pass by the devise or bequest, subject to the same remedies on such bond, agreement, or covenant, for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.

$ 46. A charge or incumbrance upon any real or personal estate, not a revoca- for the purpose of securing the payment of money, or the performance

Charge or incumbrance


(14) 1 R. L. 365, § 3.

of any covenant, shall not be deemed a revocation of any will relating ART. 3. to the same estate, previously executed; but the devises and legacies therein contained, shall pass and take effect, subject to such charge or incumbrance.

&c. when to


$47. A conveyance, settlement, deed, or other act of a testator, Conveyance, by which his estate or interest in property, previously devised or be- be deemed a queathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property; but such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless in the instrument by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or bequest.

$48. But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen.


to have por

$49. Whenever a testator shall have a child born after the mak- After-born ing of his will, either in his life-time or after his death, and shall die, provided for, leaving such child, so after born, unprovided for by any settlement, tion of estate and neither provided for, nor in any way mentioned in his will, every such child shall succeed to the same portion of the father's real and personal estate, as would have descended or been distributed to such child, if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to, and out of the parts devised and bequeathed to them, by such will.

legatee may

but devise to

350. If any person shall be a subscribing witness to the execu- Devisee or tion of any will, wherein any beneficial devise, legacy, interest or witness will, appointment of any real or personal estate, shall be made to such wit- him void. ness, and such will cannot be proved without the testimony of such witness, the said devise, legacy, interest, or appointment, shall be void, so far only as concerns such witness, or any claiming under him; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made. 15

of the estate

$51. But if such witness would have been entitled to any share when share of the testator's estate, in case the will was not established, then so be saved to much of the share that would have descended, or have been distribut- such witnes ed to such witness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will, and he shall recover

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