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ministrator with the will annexed, though not a resident of this state, upon filing a duly authenticated copy of his appointment, and of the bond given by him in the state or county in which it was originally proved: provided, that the judge of probate, before issuing such letters, may, in his discretion, require him to give bonds as in other cases. (As amended 1870, c. 64, § 1.)

$22. Share of child born after will is made. When any child is born after the making of his parent's will, and no provision is made therein for him, such child shall have the same share in the estate of the testator as if he had died intestate; and the share of such child shall be assigned to him as provided by law in case of intestate estates, unless it is apparent from the will that it was the intention of the testator that no provision should be made for such child.

14. M. 18.

§ 23. Provision for child in case of omission by accident. When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, and it appears that such omission was not intentional, but was made by mistake or accident, such child, or the issue of such child, shall have the same share in the estate of the testator as if he had died intestate, to be assigned as provided in the preceding section.

3 M. 140 (209).

$24. From what estate provision to be taken. When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in the will, as herein before mentioned, the same shall first be taken from the estate not disposed of by the will, if any; if that shall not be sufficient, so much as is necessary shall be taken from all the devisees or legatees, in proportion to the value of the estate they may respectively receive under the will, unless the obvious intention of the testator, in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in which case, such specific devise, legacy or provision may be exempted from such apportionment, and a different apportionment may be adopted, in the discretion of the probate court.

$25. Issue of deceased legatee shall take estate, when. When a devise or legacy is made to any child or other relation of the testator, and the devisee or legatee dies before the testator, leaving issue who survives the testator, such issue shall take the estate so given by the will, in the same manner as the devisee or legatee would have done if he had survived the testator, unless a different disposition is made or directed by the will.

§ 26. Estate of testator liable for debts, etc.-allowance to widow, etc. All the estate of the testator, real and personal, is liable to be disposed of for the payment of his debts and the expenses of administering his estate; and the probate court may make such reasonable allowance as may be judged necessary for the expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate are assigned to them.

$27. Payment of debts, etc.-provisions of will to be followed. When the testator makes provision by his will, or designates the estate to be appropriated, for the payment of his debts, the expenses of administration, or family expenses, they shall be paid according to the provisions of the will, and out of the estate thus appropriated.

§ 28. Same-where such provision is insufficient. If the provision made by the will, or the estate appropriated is not sufficient to pay the debts, expenses of administration, and family expenses, such part of the estate, real and personal, as is not disposed of by the will, if any, shall be appropriated according to the provisions of the law for that purpose.

§ 29. Estate devised, how liable for the payment of debts. The estate, real and personal, given by will to any devisees or legatees, is liable for the payment of the debts, expenses of administration, and family expenses, in proportion to the amount

of the several devises or legacies, except that specific devises and legacies, and the persons to whom they are made, may be exempted, if it appears to the court necessary in order to carry into effect the intention of the testator, and if there is other sufficient estate.

§ 30. Estate liable for payment of debts, etc., may be retained by executor. When the estate given by any will is liable for the payment of debts and expenses, as mentioned in the preceding section, or is liable to be taken to make up the share of a child born after the execution of the will, or of a child, or of the issue of a child, not provided for in the will, as herein before provided, the executor has a right to retain possession of the same until such liability is settled by order of the probate court, and until the devises and legacies so liable are accordingly assigned by order of such court; and when the same can properly be done, any devisee or legatee may make his claim to such court to have such liability settled, and his devise or legacy assigned to him.

§ 31. Liability of legatee and devisee to contribution. All the devisees and legatees who, with the consent of the executor, or otherwise, have possession of the estate given to them by will, before such liability is settled by the probate court, shall hold the same subject to the several liabilities mentioned in the preceding section, and be held to contribute according to their respective liabilities to the executor, or to any devisee or legatee from whom the estate devised to him has been taken, for the payment of debts or expenses, or to make up the share of a child born after the making of the will, or of a child, or the issue of a child, omitted in the will; and the persons who, as heirs, have received the estate not disposed of by the will, as provided in this chapter, are liable to contribute in like manner as the devisees or legatees.

§ 32. Same-where any persons liable are insolvent. If any of the persons liable to contribute, according to the provisions of the preceding section, is insolvent, and unable to pay his share, the others shall be severally liable for the loss occasioned by such insolvency, in proportion and to the extent of the estate they may have received; and if any of the persons so liable to contribute dies before having paid his share, the claim shall be valid against his estate in the same manner as if it was his proper debt.

$33. Same-Probate court to fix and apportion liability. The probate court may, by decree for that purpose, settle the amount of the several liabilities, as provided in the preceding sections, and decree how much and in what manner each person shall contribute, and may issue execution as circumstances may require; and the claimant may also have a remedy by action.

§ 34. Certificate of proof of will evidence. Every will, when proved as provided in this chapter, shall have a certificate of such proof indorsed thereon or annexed thereto, signed by the judge of probate, and attested by his seal; and every will so certified, and the record thereof, or a transcript of such record, certified by the judge of probate and attested by his seal, may be read in evidence in all courts within this state, without further proof.

$ 35. Record of attested copy of will of lands. An attested copy of every will devising lands or any interest in lands, and of the probate thereof, shall be recorded in the registry of deeds of the county in which the lands lie.

$36. Term "executor" defined. The word "executor," in this and subsequent chapters, shall be construed to include an administrator with the will annexed.

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CHAPTER XLVIIL

ESTATES IN DOWER AND BY THE CURTESY.

(Repealed by 1875, c. 40, § 5, saving all vested rights. See ante, c. 46, § 8.)

CHAPTER 48 (with a note at end of c. 123, title 1).

§ 1. (SEC. 13.) Dower, how barred by deed. A married woman may bar her right of dower in any estate conveyed by her husband, or by his guardians, if he is a minor or an insane person, by joining in the deed of conveyance, and acknowledging the same, or by a subsequent deed, which may be executed either by joining with her husband therein, or by herself alone, to be acknowledged as in other cases; and in cases when conveyance of real estate have been made by the husband of lands to which he had title, and the separate deed of the wife has heretofore been made to the grantee of the husband for a valuable consideration paid to her, such separate conveyance of the wife shall be as effectual to bar the dower in such premises as though she had joined in the deed executed by the husband. (G. S., c. 48, § 13, as amended by 1874, c. 64, § 1, and 1878, c. 33, § 1.)

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§ 1. Probate court in each county. There is established, in each organized county in this state, a probate court, which shall have and use a seal.

§2. Jurisdiction of probate court. The several probate courts have exclusive jurisdiction, in the first instance, in their respective counties, to take proof of wills, and to direct the administration of the estates of deceased persons

First. When the deceased, at or immediately before his death, was an inhabitant of the county, in whatever place he dies;

Second.-When the deceased, not being an inhabitant of this state, dies in the county, leaving assets therein;

Third.-When the deceased, not being an inhabitant of this state, dies out of this state, leaving assets in the county;

Fourth.-When the deceased, not being a resident of this state, dies out of this state, not having assets herein, but when assets thereafter come into the county;

Fifth-When real property of the deceased is situated in the county, and no other probate court has gained jurisdiction under either of the preceding subdivisions of this section. (As amended 1868, c. 94, § 1.)

23 M. 84.

§3. Further jurisdiction of probate court. The probate court has jurisdiction alsoFirst. To take proof of a will relating to real property situated in the county, when the testator dies out of this state, not being an inhabitant thereof, and not leaving assets therein;

Second. To grant and revoke letters testamentary and of administration; Third. To direct and control the conduct, and settle the accounts of executors and administrators;

Fourth. To enforce the payment of debts and legacies, and the distribution of the estates of intestates;

Fifth. To order the sale, and dispose of the real property of deceased persons; Sixth. To appoint and remove guardians, to direct and control their conduct, and to settle their accounts;

Seventh. To take the care and custody of the person and estate of an insane person or spendthrift, residing in the county;

Eighth. To direct the admeasurement of dower;

Ninth. To exercise the powers and duties conferred upon it by law.

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§ 4. Jurisdiction exclusive, except, etc. The jurisdiction acquired by any probate court over a matter or proceeding is exclusive of that of any other probate court, except when otherwise provided by law; and when a guardian is appointed, or any other proceeding is commenced, in the probate court of a particular county, all further proceedings in respect to the same shall be continued in that court. § 5. When judge is an executor, etc., or interested, judge of adjoining county to act. The probate court of each county shall be held by the judge of probate. But if the judge is an executor, administrater or guardian in respect to an estate or person which would otherwise come within his jurisdiction, or is interested in said estate, or in any property claimed thereby, or is of kin to said person or any one interested in such estate in which any of said persons or parties, or in case the judge of probate is a material or necessary witness, either for the probate of any will, or other facts necessary or proper to be proved in such probate court, then, and in either of the cases herein provided, the said judge of probate shall have the right, and it shall be his duty, to notify and require the judge of probate of an adjoining county to act for and in the place of the judge of probate so disqualified, in all matters herein mentioned; and it shall be the duty of such judge of probate of an adjoining county to hear, try and determine such matters, in the same manner and like effect as the judge of probate of said court might have done, had he not been so disqualified. (As amended 1872, c. 63, § 1.)

§ 6. Duties of judge to keep office, hold court, etc. The judge of probate shall keep his office open at reasonable hours, suitable and convenient for the transaction of business, and for the deposit and safe-keeping of the public books and papers under his charge. He shall keep his office at the county seat, and on the first Monday of each month hold a probate court therein, or at such other place in the county as he may appoint. He shall also provide suitable cases for the books and papers of his office, the expense of which is a county charge; they belong to the county, and shall be delivered by the judge of probate to his successor in office, who has power to complete all unfinished business.

PROCEEDINGS IN PROBATE COURT.

§ 7. Proceedings in probate courts-powers of judge, how exercised-depositions. There are no pleadings in probate courts, but the proceedings shall conform to the statute, and may be instituted upon the application of a party, verbal or written, which, when verbal, shall be entered in the minutes of the court, and when written, shall be filed. The judge of probate has the same power to examine witnesses and parties on oath, to compel their attendance, to preserve order during any proceedings before him, and punish contempts, as a district judge possesses under the provisions of law. He may exercise his powers, except when otherwise provided by law, by means of

First.-A citation to a party.

Second.-An affidavit, deposition, examination, or statement under oath of a party or witness, or other legal and competent evidence.

Third.-A subpoena or attachment.

Fourth.-Orders, judgments and decrees.

Fifth.-An execution, warrant, or other process to enforce them. The deposition of any witness without this state may be taken under a commission issued to any competent person in any state or county, by the probate court in which the evidence is wanted, whether said evidence be in respect of matters pending before the court, or before commissioners appointed by the court in the settlement of estates. The party desiring said deposition shall apply to the probate court by petition for said commission, and if by said petition it appears that the testimony of any witness not residing in this state is material respecting any matter pending before said probate court or commission, the probate court may, in its discretion, order said commission to issue upon written interrogations, copies of which shall be served on any adverse party who has appeared in the matter, or his attorney, and upon cross-interrogations to be filed by said adverse party. And such interrogatories and crossinterrogatories may be settled before the judge of probate, upon notice, as in the district court, and the notices to be given and time for filing interrogatories and cross-interrogatories, the form of the commission, and the manner of executing and returning the same, shall conform substantially, and as near as may be, to the practice adopted in the district courts relative to the taking of depositions of witnesses without this state; or such deposition may be taken upon stipulations in writing as in the district court. And depositions taken as provided in this section may be used in all matters between the parties thereto, pending before such probate court or commissioners appointed by it in the settlement of estates. (As amended 1870, c. 62, § 1)

22 M. 393.

$8. Books of record to be kept by judge their contents. He shall keep

First-A register, in which shall be entered a memorandum of all official business transacted by him or in his office, appertaining to the estate of each deceased person, under the name of such person; that pertaining to the general guardian of an infant, under the name of such infant; that pertaining to an insane person, or spendthrift, under his name.

Second-A record of wills, in which shall be recorded all wills proved before him, with the certificate of the probate thereof; and of all wills proved elsewhere upon which letters of administration are issued by him.

Third-A record of letters testamentary and of administration and guardianship, in which shall be recorded all letters testamentary and of administration and guardianship issued by him.

Fourth-A record of orders, in which shall be recorded all orders made by him in the discharge of his duties, a summary balance sheet of the accounts of administrators, executors and guardians allowed by him, the reports of admeasurers of dowers, and the reports of commissioners on the distribution of estates; also a memorandum of executions issued, and a note of satisfaction when satisfied. (As amended 1870, c. 66, § 1.)

§ 9. (SEC. 10.) Each book to have index. Each of such books shall have an index, referring to the entries in alphabetical order, under the name of the person to whose estate or business they relate, and indicating the page of the book where the entry is made.

§ 10. (SEC. 11.) Judge not to act as attorney, when. A judge of probate cannot be counsel or attorney in any civil action for or against any executor, administrator, guardian. or minor trustee, or other person over whom or whose accounts he would by law have jurisdiction, whether such action relates to the business of the estate or not.

§ 11. (SEC. 12.) Costs, payable out of estate, etc. Costs, to the extent of the fees and disbursements paid or incurred, may be awarded in favor of one party against another, to be paid out of the estate or fund in any proceeding contested adversely before the judge of probate.

§ 12. (SEC. 13.) Orders, how enforced-process, how issued. Orders for the payment of

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