118. Claimants to give ten days' notice of presentation of claims; judgments, and notes of hand, how proved. 119. In what cases oath of claimants allowed; court 120. Debts, when allowed, in what order paid. 122. Court to list and class demands; claim paid be- 124. On each settlement, court to ascertain amount of 125. When personal estate is insufficient, abstract of sidered a breach. 127. Legacies, when may be paid. 128. Heir, to be charged with money received by him. 129. Distributees to give bond to refund, if debts subsequently appear against estate. SECTION 132. Actions of trover, detinue and replevin may sur- 133. Executor or administrator of deceased mortgagee, on receiving payment, may discharge mort gage. 134. Executors or guardians, may mortgage estate; for what time. 135. Lands not to be mortgaged, until permission of probate court is had; avails, how applied; bond to be given. 136. Compensation of executors and administrators. 137. Suit on bond, may be brought against them for breach thereof. 138. Appeals allowed to circuit and supreme courts. 139. Power of probate court to enforce its orders, &c.; may attach, fine and imprison. 140. Duty of sheriff to attend court when required, execute writs, keep order; fees, how allowed and taxed. 141. Executors and administrators, heretofore appointed, to be bound by provisions of this chapter. SECTION 1. Every person aged twenty-one years, if a male, or eighteen years, if a female, or upwards, and not married, being of sound mind and memory, shall have power to devise all the estate, right, title and interest, in possession, reversion or remainder, which he or she hath, or at the time of his or her death shall have, of, in and to any lands, tenements, hereditaments, annuities or rents, charged upon or issuing out of them; or goods and chattels, and personal estate of every description whatsoever, by will or testament: All persons of the age of seventeen years, and of sound mind and memory, married women excepted, shall have power to dispose of their personal estate, by will or testament: and married women shall have power to dispose of their separate estate, both real and personal, by will or testament, in the same manner as other persons. SEC. 2. All wills, testaments and codicils, by which any lands, tenements, hereditaments, annuities, rents or goods and chattels are devised, shall be reduced to writing, and signed by the testator or testatrix; or by some person in his or her presence, and by his or her direction; and attested in the presence of the testator or testatrix, by two or more credible witnesses; two of whom declaring on oath or affirmation, before the court of probate for the proper county, that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence; or acknowledged the same to be his or her act and deed; and that they believed the testator or testatrix to be of sound mind and memory, at the time of signing or acknowledging the same, shall be sufficient proof of the execution of said will, testament or codicil, to admit the same to record: Provided, That no proof of fraud, compulsion or other improper conduct be exhibited, which in the opinion of the court of probate, shall be deemed sufficient to invalidate or destroy the same; and every will, testament or codicil, when thus proven to the satisfaction of the court of probate, shall be recorded by the justice thereof, in a book to be provided by him for that purpose, and shall be good and available in law for the granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods and chattels therein and thereby given, granted and bequeathed. SEC. 3. It shall be the duty of each and every witness to any will, testament or codicil, made and executed in this State as aforesaid, to be and appear before the court of probate on the regular day for the probate of such will, testament or codicil, to testify of and concerning the execution and validity of the same; and the said court of probate shall have power and authority to attach and punish, by fine and imprisonment, or either, any witness who shall, without a reasonable excuse, fail to appear when duly summoned for the purpose aforesaid: Provided, The said punishment by imprisonment shall in no case exceed the space of twenty days; nor shall a greater fine be assessed for any such default, than the sum of fifty dollars. SEC. 4. When any will, testament or codicil shall be produced to the court of probate, for probate of the same, and any witness attesting such will, testament or codicil, shall reside without the limits of this State, it shall be lawful for the probate justice to issue a dedimus potestatem, or commission, annexed to such will, testament or codicil, directed to some judge, justice of the peace, mayor or other chief magistrate of the city, town, corporation or county where such witness may be found, authorizing the taking and certifying of his or her attestation in due form of law. And if the person to whom any such commission shall be directed, shall certify, in the manner that such acts are usually authenticated, that the witness personally appeared before him, and made oath or affirmation that the testator or testatrix signed and published the writing annexed to such commission, as his or her last will and testament; or that some other person signed it by his or her direction; that he or she was of sound mind and memory; and that he or she subscribed his or her name as a witness thereto, in the presence of the testator or testatrix, and at his or her request; such oath or affirmation shall have the same operation, and the will shall be admitted to probate in like manner, as if such oath or affirmation had been made in the court of probate from whence such commission issued. SEC. 5. In all cases, wherein a probate justice of the peace, or such other person as may be authorized by law to grant probate of wills and testaments, may and shall have become a witness to any will or testament which is required by law to be proved before him as such probate justice of the peace, or person authorized to grant probate as aforesaid, and the testimony of such witness is necessary to the proof of the same, then, and in such case, it shall be his duty to go before the circuit court of the county in which such will is to be admitted to record, and make proof of the execution of the same, in the same manner that probate of wills is required to be made in other cases. And it shall be the duty of the clerk of the circuit court aforesaid, forthwith to certify such will, proven as aforesaid, to the probate court of the county; and said will shall, thereupon, have the same force and effect that it would have had if it had been proven by one credible witness before the court of probate; and if there are other witnesses to said will, the court of probate shall take their evidence in support of said will, as in other cases. SEC. 6. When any will, testament or codicil shall be exhibited in the court of probate, for probate thereof as aforesaid, it shall be the duty of the court to receive probate of the same without delay, and to grant letters testamentary thereon to the person or persons entitled; and to do all other needful acts, to enable the parties concerned to make settlement of the estate at as early a day as shall be consistent with the rights of the respective persons interested therein: Provided, however, That if any person interested shall, within five years after the probate of any such will, testament or codicil in the court of probate as aforesaid, appear, and, by his or her bill in chancery, contest the validity of the same, an issue at law shall be made up, whether the writing produced, be the will of the testator or testatrix or not; which shall be tried by a jury in the circuit court of the county wherein such will, testament or codicil shall have been proven and recorded as aforesaid, according to the practice in courts of chancery in similar cases; but if no such person shall appear within the time aforesaid, the probate as aforesaid, shall be forever binding and conclusive on all the parties concerned, saving to infants, femes covert, persons absent from the State or non compos mentis, the like period after the removal of their respective disabilities. And in all such trials by jury as aforesaid, the certificate of the oath of the witnesses at the time of the first probate, shall be admitted as evidence, and to have such weight as the jury shall think may deserve. it SEC. 7. In all cases where any one or more of the witnesses to any will, testament or codicil as aforesaid, shall die or remove to some distant country, unknown to the parties concerned, so that his or her testimony can not be procured, it shall be lawful for the probate justice, or other court having jurisdiction of the subject matter, to admit proof of the hand writing of any such deceased or absent witness as aforesaid, and such other secondary evidence as is admissible in courts of justice to establish written contracts generally, in similar cases; and may thereupon proceed to record the same, as though such will, testament or codicil had been proved by such subscribing witness or witnesses, in his, her or their proper persons. SEC. 8. All wills, testaments and codicils, or authenticated copies thereof, proven according to the laws of any of the United States, or the territories thereof, or of any country out of the limits of the United States, and touching or concerning estates within this State, accompanied with a certificate of the proper officer or officers, that said will, testament, codicil or copy thereof, was duly executed and proved, agreeably to the laws and usages of that State or country in which the same was executed, shall be recorded as aforesaid, and shall be good and available in law, in like manner as wills made and executed in this State. SEC. 9. A nuncupative will shall be good and available in law for the conveyance of personal property thereby bequeathed, if committed to writing within twenty days, and proven before the court of probate, by two or more credible, disinterested witnesses, who were present at the speaking and publishing thereof, who shall declare on oath or affirmation, that they were present and heard the testator pronounce the said words, and that they believed him to be of sound mind and memory; and that he or she did at the same time, desire the persons present, or some of them, to bear witness that such was his or her will, or words to that effect; and that such will was made in the time of the last sickness of the testator or testatrix; and it being also proven by two disinterested witnesses, other than those hereinbefore mentioned, that the said will was committed to writing within ten days after the death of the testator or testatrix; and no proof of fraud, compulsion or other improper conduct be exhibited, which, in the opinion of said court, shall be sufficient to invalidate or destroy the same; and all such wills, when proven and authenticated as aforesaid, shall be recorded by the probate justice in like manner as other wills are directed to be recorded by this chapter: Provided, That no letters testamentary shall be granted on such will, until the expiration of sixty days after the death of the testator or testatrix. SEC. 10. In all cases where a nuncupative will shall be proved and recorded as aforesaid, the court of probate shall issue a citation to the heirs and legal representatives of the testator or testatrix, if they reside in the county; if not, then said court shall cause an advertisement to be inserted in some one of the newspapers printed in this State, notifying the said heirs and legal representatives of the testator or testatrix, at what time and place letters testamentary will be granted upon such will, requiring them and each of them to appear and show cause, if any they have, why such letters testamentary should not be granted; and if no sufficient cause be shown, letters shall be granted thereon as in other cases. SEC. 11. If any beneficial devise, legacy or interest shall be made or given, in any will, testament or codicil, to any person subscribing such will, testament or codicil, as a witness to the execution thereof, such devise, legacy or interest shall, as to such subscribing witness, and all persons claiming under him, be null and void, unless such will, testament or codicil be otherwise duly attested by a sufficient number of witnesses exclusive of such person, according to this chapter; and he or she shall be compellable to appear and give testimony on the residue of such will, testament or codicil, in like manner as if no such devise or bequest had been made. But if such witness would have been entitled to any share of the testator's estate, in case the will, testament or codicil was not established, then so much of such share shall be saved to such witness, as shall not exceed the value of the said devise or bequest made to him or her as aforesaid. SEC. 12. In no case hereafter, within this State, where any testator or testatrix shall, by his or her will, appoint his or her debtor to be his or her executor or executrix, shall such appointment operate as a release or extinguishment of any debt due from such executor or executrix, to such testator or testatrix; unless the testator or testatrix shall, in such will, expressly declare his or her intention to devise, bequeath or release such debt; nor even in that case, unless the estate of such testator or testatrix is sufficient to discharge the whole of his or her just debts, over and above the debt due from such executor or executrix. SEC. 13. If, after making a last will and testament, a child or children shall be born to any testator or testatrix, and no provision be made in such will for such child or children, the will shall not, on that account, be revoked; but unless it shall appear by such will, that it was the intention of the testator or testatrix, to disinherit such child or children, the devises and legacies by such will granted and given, shall be abated in equal proportions, to raise a portion for such child or children, equal to that which such child or children would have been entitled to receive out of the estate of such testator or testatrix, if he or she had died intestate. SEC. 14. Whenever a devisee or legatee, in any last will and testament, being a child or grandchild of the testator or testatrix, shail die before such testator or testatrix, and no provision shall be made for such contingency, the issue, if any there be, of such devisee or legatee, shall take the estate devised or bequeathed, as the devisee or legatee would have done, had he or she survived the testator or testatrix; and if there be no such issue at the time of the death of such testator or testatrix, the estate disposed of by such devise or legacy, shall be considered and treated in all respects as intestate estate. SEC. 15. No will, testament or codicil shall be revoked, otherwise than by burning, cancelling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or codicil in writing, declaring the same, signed by the testator or testatrix, in the pre sence of two or more witnesses, and by them attested in his or her presence; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as aforesaid, in due form of law. SEC. 16. All original wills, after probate thereof, shall be recorded, and remain in the office of the probate justice of the proper county; and authenticated copies thereof, certified under the hand and seal of said probate justice, shall be admitted as evidence in any court of law or equity in this State. SEC. 17. If any testator or testatrix shall have a mansion house or known place of residence, his or her will shall be proved in the court of probate of the county wherein such mansion house or place of residence shall be. If he or she has no place of residence, and lands be devised in his or her will, it shall be proved in the court of probate of the county wherein the lands lie, or in one of them, where there shall be land in several different counties; and if he or she have no such known place of residence, and there be no lands devised in such will, the same may be proved either in the county where the testator or testatrix shall have died, or that wherein his or her estate, or the greater part thereof, shall lie. SEC. 18. Any person or persons who may have in his or her possession, any last will or testament of another for safe keeping or otherwise, shall, immediately upon the death of the testator or testatrix, deliver up the said will to the court of probate of the proper county; and upon a failure or refusal so to do, the court of probate may issue attachment, and compel the production of the same; and the person or persons thus withholding any such will, testament or codicil, as aforesaid, shall forfeit and pay twenty dollars per month, from the time the same shall be thus wrongfully withheld, to be recovered by action of debt for the use of the estate, by any person who will sue for the same, in any court having jurisdiction thereof; and if any person to whom a will, testament or codicil hath been, or shall be delivered by the party making it, for safe custody as aforesaid, shall alter or destroy the same without the direction of the said party, or shall wilfully secrete it for the space of six months after the death of the testator or testatrix shall be known to him or her, the person so offending shall, on conviction thereof, be sentenced to such punishment as is, or shall be inflicted by law, in cases of larceny. SEC. 19. All persons named as executors in any will, testament or codicil as aforesaid, shall, after the same shall be proved and admitted to record, as before directed, be entitled to letters testamentary thereon; and where there shall be no executors named in such will, testament or codicil, or the executor named therein shall die, refuse to act or be otherwise disqualified, letters of administration, with the will annexed, shall be granted to such person or persons as may be entitled thereto. In all which cases copies of such wills, testaments or codicils shall go out with the letters. SEC. 20. It shall be the duty of the executor or executors of the last will and testament of any person deceased, knowing of his, her or their being so named or appointed, within thirty days next after the decease of the testator or testatrix, to cause such will to be proved and recorded in the proper county as aforesaid; or to present said will and declare his or her refusal to accept of the executorship: and every such executor or executrix, so neglecting his trust and duty as aforesaid, without just excuse for such delay, to the satisfaction of the judge of probate, shall forfeit the sum of twenty dollars per month, from and after the expiration of the said term of thirty days, until he shall cause probate of said will to be made, or present the same as aforesaid; to be recovered by action of debt, for the use of the es |