are dead, &c. 3 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 of all out of the state, the surrogate shall take and receive such proof of the witnesses 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 Szc. how dis 3 17. The proofs and examinations taken under the last preceding 1b. 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.5 such proofs. 18. The record of the proofs and examinations taken pursuant ь. 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." fees. 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." certain wills 1785. 320. 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.” ARTICLE SECOND, Of Wills of Personal Property, and the Probate of them. 25. Citation to person to produce will for proof; obedience how enforced. 27. Surrogate to endorse certificate of probate, on will. Surrogate first proving will, to have exclusive jurisdiction. 2. Probate of will, to be conclusive as to personal property, until, &c. 31. Allegations in writing, to be filed in such case, with surrogate. 32 Citation to executors and legatees, to be issued thereupon. 33. Proceedings of executor, &c. how far suspended by service of citation. 34. When surrogate to hear proofs; guardians to be appointed for infant legatees. 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. Who may make wills of 37. Revocation of probate to be entered on surrogate's records, and notice to be given. $21. 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 years, or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing.8 tate. Unwritten wills when allowed. Power ol'surrogates in respect to probate. Citation to widow and how served. $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.9 $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 $24. No will of personal estate, either written or unwritten, shall next of kin, be admitted to proof, nor shall letters testamentary or of administration 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 Citation to duction of will, &c. $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 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. 62, § 2. (11) 1 R. L. 446, § 6 ty, by an order under the hand and seal of the surrogate, there to remain until he shall produce such will.12 ART. 2. how proved; rogate. $26. Written wills of personal estate offered for probate, shall be Wreten 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 on. probate. $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. jurisdiction proving will. $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 administration 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 330. 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 surrogate by whom the will was proved, his allegations in writing, against the validity of such will, or against the competency of the proof thereof. will. Proceedings. to executors 3 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 legaters 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. TITLE . 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 citation. Proceedings before surrogate. Surrogate to decide; appeals from such decisions. Former depo sitions when evidence. Revocation to be entered, of. $33. After the service of the citation, such executor or administrator shall suspend all proceedings in relation to the estate of the tes tator, except the collection and recovery of monies and the payment of debts, until a decision shall be had on such allegations. $ 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. $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. $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. $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. tace. Effect of no- $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 Prior acts. 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. ART. 3. Expenses by and bow. $39. The surrogate's fees and expenses shall be paid by the party contesting the validity of the will, or the probate thereof, in case such 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. ARTICLE THIRD. General Provisions applicable to Wills of Real and Personal SEC. 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. 47 & 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. be executed. $40. Every last will and testament of real or personal property, Wills how to or both, shall be executed and attested in the following manner : 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 presenceof 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.13 (13) 1 R. L. 364, § 2. |