How Wills to be executed. 1 Kernan, 320. 158. 16 Barbour, 198. 5 Mass., 229. 2 do 258. do 421. Pick., 350. do 374. not disposed of by the will, shall be administered as intestate estate. (2829.) SEC. 5. No will made within this State, except such 3 Barb. Ch. R. nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his Greenl., 220. presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise. satisfactorily proved. wills. 4 Selden, 196. 2 Greenl., 298. Nuncupative (2830.) SEC. 6. Nothing contained herein shall affect the validity of a nuncupative will, in which the value of the estate bequeathed shall not exceed three hundred dollars, provided the same shall be proved by two competent witnesses; nor prevent any soldier, being in actual military service, nor any mariner, being on shipboard, from disposing of his wages and other personal estate by nuncupative will, as he might heretofore have done. etc., to subscri When legacy (2831.) SEC. 7. All beneficial devises, legacies and gifts bing witness void. whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void, unless there be two other competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts, shall not prevent his creditors from being competent witnesses to his will. When share of estate to be saved to Witness. (2832.) SEC. 8. But if such witness to whom any beneficial subscribing devise may have been made or given, would have been entitled to any share of the estate of the testator, in case the will was not established, then so much of the share that would have descended or been distributed to such witness as will not exceed the devise or bequest made to him in the will, shall be saved to him, and he may recover the same of the devisees or legatees named in the will, in proportion to, and out of the parts devised or bequeathed to them. Revocation of wills. (2833.) SEC. 9. No will nor any part thereof shall be revoked, unless by burning, tearing, canceling or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as prescribed in this 4 Greenl., 341.. chapter; or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the 15 Mass., 115. execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator. be deposited with (2834.) SEC. 10. Any will in writing, being enclosed in a when Will may sealed wrapper, and having endorsed thereon the name of the Judge of Probate. testator and his place of residence, and the day when, and the person by whom it is delivered, may be deposited by the person making the same, or by any person for him, with the Judge of Probate in the county where the testator lives, and the Judge of Probate shall receive and safely keep such will, and give a certificate of the deposit thereof. kept and dispos (2835.) SEC. 11. Such will shall, during the lifetime of the How such will testator, be delivered only to himself,, or to some person ed of. authorized by him by an order in writing, duly proved by the oath of a subscribing witness; and after the death of the testator, and at the first Probate Court after notice thereof, it shall be publicly opened by the Judge of Probate, and be retained by him. to give notice of will, (2836.) SEC. 12. The Judge of Probate shall give notice of Judge of Probate such will being in his possession, to the executor therein his possession of appointed, if there be one, otherwise to the persons interested in the provisions of the will; or if the jurisdiction of the case belongs to any other Court, such will shall be delivered to the executor, or to some other trusty person, interested in the provisions of the same, to be presented for probate in such other Court. custody of will, (2837.) SEC. 13. Every person other than the Judge of Pro-others having bate, having the custody of any will, shall, within thirty days to deliver same after he has knowledge of the death of the testator, deliver in thirty days. the same into the Probate Court which has jurisdiction of the case, or to the person named in the will as executor. Executor to pre bate Court. (2838) SEC. 14. Every person named as executor in any Within what tim will, shall, within thirty days after the death of the testator, sent will to Proor within thirty days after he has knowledge that he is named executor, if he obtains such knowledge after the death of the testator, present such will to the Probate Court which has jurisdiction of the case, unless the will shall have been otherwise deposited with the Judge of Probate; and shall, within the period above mentioned, signify to the Court his acceptance Liability for neg Pect of duties in certain cases. having custody of mitted for negJect to deliver Court. Green., 274. of the trust, or make known in writing to such Court his refusal to accept it. (2839.) SEC. 15. Every person who shall neglect to perform any of the duties required in the two last preceding sections, without reasonable cause, shall be liable to each and every person interested in such will, in the sum of ten dollars damages for each and every month he shall so neglect, after the thirty days above mentioned, to be recovered in an action on the case, with costs. When person (2840.) SEC. 16. If any person, having the custody of any will may be com- will, after the death of the testator, shall, without reasonable Mame to Probate cause, neglect to deliver the same to the Probate Court having jurisdiction of it, after he shall have been duly notified by such Court for that purpose, he may be committed to the jail of the county, by warrant issued by such Court, and there be kept in close confinement until he shall deliver the will as above directed. 4 Mass., 137. ♦ Pick., 33. Notice of time and place of proving Will. When Probate may be granted one witness. (2841.) SEC. 17. When any will shall have been delivered. into or deposited in any Probate Court having jurisdiction of the same, such Court shall appoint a time and place for proving it, when all concerned may appear and contest the probate of the will, and shall cause public notice thereof to be given by personal service on all persons interested, or by publication under an order of such Court, in such newspaper printed in this State as the Judge shall direct, three weeks successively, previous to the time appointed; and no will shall be proved until notice shall be given as herein provided. (2842.) SEC. 18. If no person shall appear to contest the on testimony of probate of a will at the time appointed for that purpose, the Court may, in its discretion, grant probate thereof, on the testimony of one of the subscribing witnesses only, if such witness shall testify that such will was executed in all the particulars as required in this chapter, and that the testator was of a sound mind at the time of the execution thereof. When other witnesses may be Will. (2843.) SEC. 19. If none of the subscribing witnesses shall admitted to prove reside in this State, at the time appointed for proving the will, the Court may, in its discretion, admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will; and, as evidence of the execution of the will, may admit proof of the handwriting of the testator and of the subscribing witnesses. (2844.) SEC. 20. No will shall be effectual to pass either real and allowance of will in Probate or personal estate, unless it shall have been duly proved and feet of proof allowed in the Probate Court as provided in this chapter, or court. on appeal, in the Circuit Court or Supreme Court; and the probate of a will of real or personal estate, as above mentioned, shall be conclusive as to its due execution. allowed in other (2845.) Sec. 21. All wills which shall have been duly proved Wills proved and and allowed in any other of the United States, or in any for-States, etc. eign country or State, according to the laws of such State or country, may be allowed, filed and recorded in the Probate 4 Groenl., 154. Court of any county in which the testator shall have real and personal estate on which such will may operate, in the manner mentioned in the following sections. Will and Probate to be given. (2846.) SEC. 22. When a copy of such will, and the probate when cops of thereof, duly authenticated, shall be produced by the execu- produced, notice tor or other person interested in such will, to the Probate Court, such Court shall appoint a time and place of hearing, and notice shall be given in the same manner as in the case of an original will presented for probate. copy to be filed (2847.) SEc. 23. If, on hearing the case, it shall appear to ir will allowed, the Court that the instrument ought to be allowed in this State, and recorded. as the last will and testament of the deceased, the copy shall be filed and recorded, and the will shall have the same force and effect as if it had been originally proved and allowed in the same Court. mentary, etc., on (2848.) SEC. 24. When any will shall be allowed, as men-Letters testationed in the preceding section, the Probate Court shall grant such Will. letters testamentary, or letters of administration, with the will annexed; and such letters testamentary or letters of administration shall extend to all the estate of the testator in this State; and such estate, after payment of his just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue shall be disposed of as is provided by law in cases of estates in this State, belonging to persons who are inhabitants of any other State or country. dren born after (2 49.) SEc. 25. When any child shall be born after the provision for chilmaking of his father's will, and no provision shall be made making of Will 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 shall be apparent from the will that it was the intention of the testator that no provision should be made for such child. for child omitted When provision (2850.) SEC. 26. When any testator shall omit to provide in by mistake, etc. his will for any of his children, or for the issue of any deceased child, and it shall appear 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. From what estate provision to be taken. When the issue of deceased legatee, etc, to take estate. Estate of Testator liable for pay etc.; allowance of Widow, etc. (2851.) SEC. 27. When any share of the estate of a testator shall be 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 hereinbefore 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 shall be 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. (2852.) SEC. 28. When a devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive 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 shall be made or directed by the will. (2853.) SEC. 29. All the estate of the testator, real and perment of debts, sonal, shall be liable to be disposed of for the payment of his for maintenance 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 shall be assigned to them. ated by Will to paymentofdebts, Estate appropri- (2854.) SEC. 30. If the Testator shall make provision by his be applied to will, or designate 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 etc. |