to prevent any creditor from receiving his whole debt, or to diminish his dividend. (Sec. 41 of R. S.)

SECT. 43. In all cases, where a deceased person shall, in his lifetime, have held lands in trust for any other person, or where lands shall have been set off on execution to such deceased person, or to his executor or administrator, on any debt in the name of such deceased person, but being the proper debt of some other person, and not belonging in any wise to the estate of the deceased person, the probate court may, after notice given, as required in the preceding section, grant license to the executor or administrator to deed such lands to the person, for whose use and benefit they may be holden; and the probate court may decree the execution of any such trust, whether created by deed or by law. (Sec. 42 of R. S.)

SECT. 44. Any surety for any executor, administrator, trustee or agent, conceiving himself in danger of suffering thereby; or any heir, legatee or creditor to any estate, or any person interested in any trust estate, conceiving the bond given to the probate court, by any executor, administrator, trustee or agent, to be insufficient to secure the just rights of all concerned, may respectively at any time petition the probate court, in which such bonds are on file, for relief; and such court shall issue a citation to the petitionee, to appear and show cause against such petition, and if no sufficient cause be shown, shall make such order and decree thereon, to secure the petitioner, as said court shall judge just and equitable. (No. 21 of 1842.)

CHAPTER 48.

WILLS.

COMPILED FROM

Chap. 45 of the Revised Statutes, pp. 253-259.

10. Witnesses being competent at the time of 20. No will effectual until proved-probate to

attesting, will be allowed.

11. Legacy, &c. to witness, void.

12. Estate being charged with payment of debts, not to exclude creditors as witnesses.

be conclusive.

21. Wills proved in other states, how allowed. 22. Proceedings in such case.

23. If approved, will to be filed and recorded.

debts, &c.

24. Proceedings on such will, and its effect.

25. Provision for child born after execution of 33. Same subject.

will.

26. Provision for child omitted in will.

34. When estate, is so liable, executor may retain it until, &c.

27. From what estate such provision to be taken. 35. Persons having estate so liable, to hold the

30. From what estate debts and expenses to be 37. Probate court may settle amount of liabili
paid.
ties-remedy in law or equity.
38. Copies of wills to be recorded.

31. Same subject.
32. In what proportion legacies, &c. liable for 39. Construction of the word, "executor."

SECTION 1. Every person, of full age and of sound mind, being seized of any lands, tenements or hereditaments, or any interest therein in law or equity, or being entitled to any right or interest in any such lands, tenements or hereditaments, of which any other person shall be seized, in the right of the devisor at the time of his death, may devise and dispose of the same to any other person by his last will and testament.*

SECT. 2. Any estate, right or interest in lands, which the testator may acquire, after making his will, shall pass thereby in the same manner as if the testator had possessed it at the time of making the will, if it shall appear, by a proper construction, that such was his intention.

SECT. 3. Every devise of any land, hereafter made in any will, shall be construed to convey all the estate which the devisor could lawfully devise in such lands, unless it shall clearly appear by the will that he intended to convey a less estate.

SECT. 4. Every person, of full age and sound mind, may, by his last will and testament, bequeath and dispose of all his personal estate, remaining at the time of his decease, and all his right and interest therein.

SECT. 5. All real and personal estate, not disposed of by the will of any testator, shall descend and be administered in the same manner as the estate of an intestate, and the executor, or administrator with the will annexed, shall administer the same accordingly. SECT. 6. No will, except such nuncupative wills as are hereinafter mentioned, shall be effectual to pass any estate, 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 other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses, in the presence of the testator and of each other.

SECT. 7. No will shall be revoked, unless by the implication of law, or by some will, codicil or other writing, executed in the manner provided in the preceding section for the execution of the will to be revoked, or by burning, cancelling or obliterating, with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction.

SECT. 8. No nuncupative will shall be valid to pass personal

* Sections 1 to 32 being identical with the corresponding sections of chap. 45 of the Revised Statutes, the designation at the end of each is omitted.

estate, when the estate thereby bequeathed shall exceed the value of two hundred dollars, or to revoke any will in writing; and no such nuncupative will shall be proved and allowed, unless a memorandum thereof be made in writing, by a person who was present at the time of making it, within six days from the making of it, nor unless it shall be presented for probate within six months from the death of the testator.

SECT. 9. Nothing in this chapter shall be construed to prevent any soldier, in actual military service, or any mariner or seaman, being at sea, from disposing of his wages or other personal estate, as he might heretofore have done.

SECT. 10. If the witnesses, attesting the execution of any will, are competent at the time of attesting, their becoming subsequently incompetent, from any cause, shall not prevent the probate and allowance of such will, if it be otherwise satisfactorily proved.

SECT. 11. If any person, other than an heir at law, shall attest the execution of any will or codicil, to whom any beneficial devise, legacy or interest, of or affecting any real or personal estate, shall by such will or codicil be given, such devise, legacy or interest shall, so far only as concerns such person, or any person claiming under him, be void; unless there be three other competent witnesses to such will; and the person whose devise, legacy or interest shall be made void, as above mentioned, shall be admitted as a witness, in the same manner as if such devise, legacy or interest had not been made or given.

SECT. 12. But a mere charge on the real or personal estate of the testator, for the payment of debts, shall not prevent his creditors from being competent witnesses.

SECT. 13. Every person, having the custody of any will, shall, within thirty days after he has knowledge of the death of the testator, deliver the same into the probate court, which has jurisdiction of the case, or to the person named in the will as executor.

SECT. 14. Every person, named as executor in any will, shall, within thirty days after the death of the testator, or 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 returned to such court; and shall, within the period above mentioned, signify to the court his acceptance of the trust, or make known in writing his refusal to accept it.

SECT. 15. Every person, who shall neglect any of the duties required in the two preceding sections, unless he shall give an excuse satisfactory to the probate court, shall forfeit the sum of ten dollars for each month he shall so neglect, after the thirty days above mentioned, to be recovered by action of debt, by any person having an interest in such will, with cost.

SECT. 16. If any person, having the custody of any will, after the death of the testator, shall, without reasonable 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.

SECT. 17. When any will shall be delivered into any probate court, having jurisdiction of the same, the 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 publication, under an order of such court, in such newspaper, printed in this state, as the court shall direct, three weeks successively, previous to the time appointed; and no will shall be proved until such notice shall have been given.

SECT. 18. If no person shall appear to contest the 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 the will was executed in all the particulars as required in this chapter.

SECT. 19. If none of the subscribing witnesses shall reside in this state, at the time of the death of the testator, 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, although the subscribing witnesses may be living; and, as evidence of the execution of the will, may admit proof of the handwriting of the testator and of the subscribing witnesses, in cases where the names of the witnesses are subscribed to a certificate, stating that the will was executed, in all particulars, as required in this chapter.

SECT. 20. No will shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed, in the probate court, as provided in this chapter, or by appeal, in the county 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.

SECT. 21. All wills, which shall have been duly proved and allowed in any other of the United States, or in any foreign state or country, according to the laws of such state or country, may be allowed, filed and recorded in the probate court of any district, in which the testator shall have real or personal estate, on which such will may operate, in the manner mentioned in the following sections. SECT. 22. When a copy of such will, and the probate thereof, duly authenticated, shall be produced by the executor 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 is required in the case of an original will presented for probate.

SECT. 23. If, on hearing the case, it shall appear to the court, that the instrument ought to be allowed in this state, 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.

SECT. 24. When any will shall be allowed, as mentioned in the preceding section, the probate court shall grant letters testamentary, or letters of administration with the will annexed; and such letters testamentary or of administration shall extend to all the estate of the testator in this state; and such estate, after the 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 estate in this state, belonging to persons who are inhabitants of any other state or country.

SECT. 25. When any child shall be born, after the making of his father's will, and no provision shall therein be made 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.

SECT. 26. When any testator shall omit to provide in 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.

SECT. 27. When any share of a testator's estate shall be assigned to a child born after the making of a will, as mentioned in the twenty-fifth section, or to a child or the issue of a child omitted in the will, as mentioned in the twenty-sixth section, 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.

SECT. 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 required by the will.

SECT. 29. All the estate of the testator, real and personal, shall be 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 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.

SECT. 30. If the testator shall make provision by his 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 will, and out of the estate thus appropriated.