Petition by committee when party is &c. $ 19. Whenever any such idiot, lunatic, or other person above TITLE 2. specified, shall be seized or possessed of any real estate by way of mortgage, or as a trustee for others in any manner, his committee may for order to apply to the court of chancery, for authority to convey and assure convey, &c. such real estate to any other person or persons entitled to such con- mortgagee, veyance or assurance, in such manner as the said court shall direct; upon which, a reference, and the like proceedings shall be had, as in the case of an application to sell real estate as aforesaid; and the court, upon hearing all the parties interested, may order such conveyance or assurance to be made.101 by party en. $ 20. On the application of any person entitled to such convey- Like petition ance or assurance, by bill or petition, the committee may be compelled titled to conby the court of chancery, on a hearing of all parties interested, to execute such conveyance or assurance. 101 veyance. veyances, under this $21. Every conveyance, mortgage, lease and assurance, made un- Effect of comder the order of the court of chancery, or of any court, pursuant to executed the provisions of this Title, shall be as valid and effectual, as if the Title. same had been executed by such idiot, lunatic, or other person above specified, when of sound memory and understanding. 101 formance creed. $ 22. The court of chancery shall have authority to decree and Specific percompel the specific performance of any bargain, contract or agree- may be dement, which may have been made by any lunatic or other person, specified in the first section of this Title, while such lunatic or other person, was capable to contract; and to direct the committee of such person, to do and execute all necessary conveyances and acts for that purpose. 102 Limitation of of leases, &c. Title. $23. The real estate of any idiot, lunatic, person of unsound mind, or person incapable of conducting his affairs in consequence of habitual under this drunkenness, shall not be leased for more than five years, or mortgaged, or aliened or disposed of, otherwise than is herein directed. 10 to be re $24. In case any lunatic, or other such person, shall be restored Estate when to his right mind, and become capable of conducting his affairs, his stored. real and personal estate shall be restored to him.10% disposed of party. $ 25. In case of the death of any idiot, lunatic, person of unsound Estate how mind, or person incapable of conducting his affairs, during such state on death of of incapacity, the power of any trustees appointed under this Title shall cease, and his real estate shall descend to his heirs, and his personal estate be distributed among his next of kin, in the same manner as if he had been of sound mind and memory. 103 (101) Laws of 1817, p. 23, § 1. (102) 1 R. L. 148, § 5. (103) Ib. § 6. TITLE 1. CHAP. VI. Of Wills and Testaments; of the Distribution of the Estates of Intestates; and of the Rights, Powers, and Duties of Executors and Administrators. TITLE 1.-Of wills and testaments of real and personal property, and the TITLE 2. Of granting letters testamentary and of administration. TITLE 5. Of the rights and liabilities of executors and administrators. Who may dovise. TITLE I. OF WILLS AND TESTAMENTS OF REAL AND PERSONAL PROPERTY, ART. 1. Of wills of real property, and the proof of them. ART. 2. Of wills of personal property, and the probate of them. ART. 3.-General provisions applicable to wills of real and personal property. ARTICLE FIRST. Of Wills of Real Property, and the Proof of them. SEC. 1. All persons except idiots, &c. may devise real estate. 2. Every interest in real property descendable to heirs, may be devised. 3. To whom devises may be made; devises to corporations when valid. 4. Devises to certain aliens void; who to take the interest devised to them 5. Wills of real estate, when to pass all testator's estate. 6. Creditor competent witness to prove will. 7. Executor, &c. may have will proved before surrogate. 8. Notice of intention to prove will to be given to heirs, and for what time. 9. If heirs be minors, notice to be served on their guardians. 10. Subpœnas for witnesses; clause may be added requiring production of papers. 11. Proceedings for disobedience to subpœna, or not producing will. 12. Upon proof of service of notice, surrogate to take proof of will, and how. 13. When proof to be taken of the hand-writing of testator, &c. 14. When will and proofs to be recorded; record to be signed and certified. 15. Will to be certified and may be read in evidence; record, &c. evidence. 16. If all the witnesses are dead, &c. surrogate may take other proof. 17. Proofs, &c. under last section, how to be disposed of. 18. Such proofs when to be received in evidence, and their effect. 19. Witnesses' fees same as in personal action; by whom to be paid. 20. Records of certain wills, proved before 1785, when received in evidence. SECTION 1. All persons, except idiots, persons of unsound mind, married women, and infants, may devise their real estate, by a last will and testament, duly executed according to the provisions of this ART. 1. Title.1 S2. Every estate and interest in real property descendible to heirs, may be so devised.1 What may be devised. jake by de §3. Such devise may be made to every person capable by law of Who may holding real estate; but no devise to a corporation shall be valid, un- vise. less such corporation be expressly authorised by its charter, or by statute, to take by devise.1 aliens. $ 4. Every devise of any interest in real property, to a person Devises to who, at the time of the death of the testator, shall be an alien, not authorised by statute to hold real estate, shall be void. The interest so devised, shall descend to the heirs of the testator; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there be, competent to take such interest. estate how S5. Every will that shall be made by a testator, in express terms, Wills of real of all his real estate, or in any other terms denoting his intent to de- construed. vise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death. competent $6. If by any will, any real estate be charged with any debt, and Creditor the creditor whose debt is so charged, shall attest the execution there- witness: of, such creditor, notwithstanding such charge, shall be admitted as a competent witness, to prove the execution of such will.2 &c. may before surro S7. When any real estate shall be devised by will, any executor Executor, or devisee named therein, and any person interested in such estate, prove will may have such will proved, before the surrogate of the county, to gate. whom the probate of the will of the testator would belong, in respect to personal property, under the second Article of this Title.3 $ 8. The person intending to apply for the proof of such will, shall Notice of ingive notice of his intention to the heirs of the testator, as follows: 1. To such heirs as reside in the county where such proof is intended to be taken, by serving such notice personally, at least fifteen days previous to such application: 2. To such heirs as do not reside in the county, but reside in the state, by serving the same personally, twenty days previously: 3. To such heirs as cannot be found in the state, and to such as do not reside therein, by serving such notice personally, twenty days previously, or by publishing it once in each week, for six weeks, in the state paper.3 tention to prove wills; &c. $9. If any of such heirs shall be minors, and have guardians, ser- If heirs mj• vice of such notice shall be made upon such guardians, in the same howeve (1) 1 R. L. 364, § 1 & 5. (2) Ib. 367, § 13. (3) Ib. 365, § 6 to 9. VOL. II. 8 nors, notice TITLE 1. manner, as prescribed in the last preceding section. If they shall have no guardians, the surrogate shall appoint guardians, to take care of their interests in the premises.* Subpæna for witnesses, &c. Disobedience $10. Witnesses may be summoned by subpoenas, to be issued by the surrogate, at any time before the day specified in such notice, which may be served as in cases of personal actions and a clause may be added to any such subpoena, commanding any person having the custody of, or power over, any such will, to produce the same before the said surrogate, for the purpose of being proved.1 $ 11. Disobedience to any such subpoena shall be proceeded against of subpona. and punished, as in other cases of proceedings before surrogates. If any person be committed for not producing any will, he may be discharged, on producing the same to the surrogate who committed him, by an order for that purpose. Surrogate when and proofs. 12. Upon proof being made of the due service of the notice of how to take such application, the surrogate shall cause the witnesses to be examined before him. All such proofs and examinations shall be reduced to writing. All the witnesses to such will who are living in this state, and of sound mind, shall be produced and examined: and the death, absence, or insanity of any of them, shall be satisfactorily shown to the surrogate taking such proof.4 Proof of hand S 13. When any one or more of the subscribing witnesses to such writing, &c. will shall be examined, and the other witnesses are dead, or reside out of the state, or are insane, then such proof shall be taken of the hand-writing of the testator, and of the witness or witnesses so dead, absent, or insane, and of such other circumstances, as would be sufficient to prove such will, on a trial at law.1 Will when to be recorded. Will and re to be evidence. S 14. If it shall appear upon the proof taken, that such will was duly executed; that the testator, at the time of executing the same, was in all respects competent to devise real estate, and not under restraint, the said will and the proofs and examinations so taken, shall be recorded in a book to be provided by the surrogate, and the record thereof shall be signed and certified by him.1 $ 15. Every will so proved, shall have a certificate of such proof cord thereof, endorsed thereon, signed by the surrogate and attested by his seal of office, and may be read in evidence without further proof thereof. The record of such will, made as aforesaid, and the exemplification of such record, by the surrogate in whose custody the same may be, shall be received in evidence, and shall be as effectual in all cases, as the original will would be, if produced and proved, and may, in like manner, be repelled by contrary proof.4 (4) 1R. L. 365, § 6 to 9. are dead, &c. $ 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 if 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 &c. how dis $ 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 b. 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.5 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. $ 20. 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. 28. Surrogate first proving will, to have exclusive jurisdiction. 29. 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) 1R. L. 365, § 6 to 9. (6) Ib. 366, § 10. (7) Ib. 368, § 21. AIN |