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TITLE 1. the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them.
Devise in certain cases,
$52. Whenever any estate, real or personal, shall be devised or not to lapse. bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the life-time of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate.
Cancelling of $53. If, after the making of any will, the testator shall duly make not to revive and execute a second will, the destruction, cancelling or revocation of first, except, such second will, shall not revive the first will, unless it appear by the terms of such revocation, that it was his intention to revive and give effect to his first will; or unless after such destruction, cancelling or revocation, he shall duly republish his first will.
Wills, when to be returned, and to whom.
$54. All wills, whenever proved according to law, except such as are required to be deposited, shall, after being recorded, be returned upon demand, to the person who delivered the same; or in case of his death, insanity, or removal from the state, to any devisee named in such will, or to the heirs or assigns of such devisee; or if the same relate to personal estate only, to any acting executor of such will, or administrator with the will annexed, or to a legatee named therein.
S55. After any will of real or personal estate, or of both, shall surrogate to have been proved before a surrogate, any devisee or legatee named
therein, or any heir or next of kin to the testator, may, within three months thereafter, appeal to the circuit judge of the circuit, from the decision of the surrogate, either admitting such will to record, or probate, or refusing the same: and upon such appeal being filed with the surrogate, it shall stay the recording or the probate of such will, until it be determined.
S56. The party filing such appeal, shall, at the same time, exebond in the penalty of one hundred dollars, to the people of this state, with such sureties as the surrogate shall approve, conditioned for the diligent prosecution of such appeal, and for the payment of such costs as shall be taxed against him, in the event of his failure to impeach the validity or execution of such will. No appeal shall be deemed valid, until such bond be filed.
Party appealing to exe
cute a bond. cute and file with the surrogate,
Power of circuit judge,
$57. If it appear to the circuit judge that the decision of the suron appeal. rogate was erroneous, he may, by order, reverse such decision ; if such reversal be founded upon a question of fact, shall direct a feigned issue to be made up, to try the questions arising upon the application to prove such will, and shall direct the same to be tried at
the next circuit court, to be held in the county where the surrogate's ART. 3. decision was made.
be made up
$58. Such issue shall be made up and tried in the same manner Issue, how to as issues awarded by the court of chancery; but a new trial of such and tried. issue may be granted by the supreme court, in the same manner as if it had been formed in a suit, originally commenced in such court.
$59. The final determination of such issue, shall be conclusive as Effect of the to the facts therein controverted, in respect to wills of personal estate tion had upon only, upon the parties to the proceedings: if such determination be in favor of the validity of such will, either of real or personal estate,
or in favor of the sufficiency of the proof thereof, the surrogate, to whom such determination shall be certified, shall record such will, or admit the same to probate, as the case may be.
$60. If such determination be against the validity of such will, Ib. or against the competency of the proof thereof, the surrogate shall annul and revoke the record or probate thereof, if any shall have been made.
whom to be
$61. The costs and expenses of making up an issue, and of the Costs, by trial thereon, and all subsequent costs thereon, shall be paid by the paid, &c. party appealing, in case of his failure to impeach the validity or execution of the will. Such costs and expenses may be collected in a the bond herein directed to be given, which shall be prosecuted for that purpose whenever directed by the surrogate.
$62. If the appellant succeed in impeaching the validity or exe- ið. cution of the will, the party who shall have maintained such validity or execution, 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; and such payment may be enforced by process of atI tachment.
$63. Whenever any will of real or personal estate shall be lost Wills lost or or destroyed, by accident or design, the court of chancery shall have the same power to take proof of the execution and validity of such will, and to establish the same, as in the case of lost deeds.
$64. Upon such will being established by the decree of a compe- Ib. Decree tent court, such decree shall be recorded by the surrogate, before will to be rewhom the will might have been proved, if not lost or destroyed, and letters testamentary, or of administration, with the will annexed, shall be issued thereon by him, in the same manner as upon wills duly proved before him.
$65. If before, or during the pendency of, an application to prove Ib. Court a lost or destroyed will, letters of administration be granted on the administra estate of the testator, or letters testamentary of any previous will of tors, &c.
TITLE 2. the testator be granted, the court, to which such application shall be made, shall have authority to restrain the administrators or executors so appointed, from any acts or proceedings, which it may judge would be injurious to the legatees or devisees claiming under such lost or destroyed will.
Proof of lost
$67. No will of any testator who shall die after this Chapter shall We take effect as a law, shall be allowed to be proved as a lost or de
stroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator; or be shown to have been fraudulently destroyed, in the life time of the testator; nor unless its provisions shall be clearly and distinctly proved, by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness.
Application of certain
$68. The provisions of this Title, in relation to the proof and provisions. probate of wills hereafter to be had, and the jurisdiction of the sur
rogate, and his proceedings thereon, shall apply as well to wills made previous, as to those made subsequent, to the time, when this Chapter shall take effect.
Provisions as to revoca. tions.
$66. The three last sections shall extend to wills of real and personal property already executed.
Prior wills not affected.
"Will" to include codicils.
$69. The provisions of this Title, in relation to the revocation of wills, shall apply to all wills made by any testator, who shall be living, at the expiration of one year, from the time this Chapter shall take effect.
$70. The provisions of this Title shall not be construed to impair the validity of the execution of any will made before this Chapter shall take effect, or to affect the construction of any such will.
$71. The term "will," as used in this Chapter, shall include all codicils, as well as wills. 16
OF GRANTING letters tesTAMENTARY AND OF ADMINISTRATION.
ART. 1.-Of granting letters testamentary.
ART. 2.—Of granting letters of administration with the will annexed, and in cases of
ART. 3.-General provisions relating to letters testamentary and of administration; miscellaneous provisions respecting the duties of surrogates, and the recording of wills and letters.
Of granting Letters Testamentary.
SEC. 1. Will of personal estate being proved, surrogate to issue letters to executors.
(16) 1 R. L. 368, § 20.
SEC. 3. Who incompetent to serve as executors; proceedings if all be incompetent, &c.
8. Executor may renounce by instrument in writing; how to be executed, &c.
II. Surrogate may allow further time to appear and qualify.
12. When such person deemed to have renounced; order to be entered thereupon. 13. Before letters issue, executor to take an oath or affirmation.
14. When letters to be granted with the will annexed, and to whom.
15. Executors named in will, but not in letters, superseded till they qualify.
16. Before letters, executor not to interfere, except to pay funeral charges, &c.
17. Executor of executor not to administer on estate of first testator, &c.
18. If after letters granted, complaint be made against executor, surrogate to inquire. 19. Citation to person complained of, how to be served.
20. Proceedings upon citation, when executor may be required to give bond.
21. Executor when to be superseded; new letters when to be granted.
22. Where letters with the will annexed are granted, will to be observed, &c.
$1. When any will of personal estate shall have been duly ad- When letters mitted to probate, the surrogate who took such proof, shall issue to be issued. letters testamentary thereon, to the persons named therein as executors, who are competent by law, to serve as such, and who shall appear and qualify.17
$2. No letters testamentary shall be granted, until the expiration [b. 30 days of thirty days after the will shall have been proved, during which ag objectime any relative or creditor of the deceased, or any other person interested in his estate, may file objections with the surrogate, to the granting of letters testamentary, to any one or more of the persons, named in such will as executors.
2. Under the age of twenty-one years:
3. An alien who has not taken the preliminary measures to entitle him to naturalization:
$3. No person shall be deemed competent to serve as an execu- Persons intor, who, at the time the will is proved, shall be,
serve as ex
1. Incapable in law of making a contract, (except married wo- ecutors. men :)
4. Who shall have been convicted of an infamous crime:
5. Who upon proof shall be adjudged incompetent by the surrogate to execute the duties of such trust, by reason of drunkenness, improvidence, or want of understanding.
If any such person be named as the sole executor in any will, or if all the persons named therein as executors, be incompetent, letters of administration, with the will annexed shall be issued, as hereinafter provided, in the case of all the executors renouncing.
$ 4. No married woman shall be entitled to letters testamentary, Married wo unless her husband consent thereto, by a writing to be filed with the entitled to
(17) 1 R. L. 445, § 3.
TITLE 2. surrogate; and by giving such consent he shall be deemed responsible for her acts jointly with her.
$5. If the disability of a person under age, or being an alien, or a when to be married woman, named as executor in any will, shall be removed, before the execution of such will is completed, such person shall be entitled on application, to supplementary letters testamentary, to be issued in the same manner as the original letters, and shall thereupon be authorised to join, in the execution of such will, with the persons previously appointed.
Non-resident executor to give bond.
Executor may renounce.
$6. If objections be made by any creditor of the testator, or any legatee, relative, or other person interested in his estate against granting letters testamentary, to one or more of the persons named in the will as executors, the surrogate shall inquire into such objections; and if it appear that the circumstances of any person named as such executor, are such, that in the opinion of the surrogate they would not afford adequate security to the creditors, legatees and relatives of the deceased, for the due administration of the estate, he may refuse letters testamentary to any such person, until he shall give the like bond as is required by law, of administrators in cases of intestacy.
S7. If any person applying for letters testamentary, shall be a non-resident of the state, such letters shall not be granted until the applicant shall give the like bond.
$8. Any person named as executor in a will, may renounce such appointment, by an instrument in writing under his hand, attested by two witnesses, and on the same being proved to the satisfaction of the surrogate, who took proof of the will, it shall be filed and recorded by him. 18
Summons to person named
9. If any person named as executor, shall not appear to qualify, as executor, and take upon himself the execution of a will, within thirty days after
the same was proved, and shall not have renounced, the surrogate shall, on application of any other executor, or of the widow, or any of the next of kin, or any legatee, or creditor of the testator, issue a summons directed to such executor, requiring him to appear and qualify, within a certain time therein to be limited, or that, in default thereof, he will be deemed to have renounced the said appointment.
$10. If the person to whom such summons is directed, reside within this state, it shall be served personally on him, at least fourteen days before the time limited therein for him to appear. And if he reside, or be, out of the state, or his residence be unknown, such summons may be served by publishing it in the state paper, for at least six weeks before the time therein specified for such person to appear.
(18) 1 R. L. 449, § 16.