TIT. 177. not revocable but in writing. 4. And moreover, no devise in writing of lands, tenements or hereditaments, nor any clause thereof, shall at any time be revocable, otherwise than by some other will or codicil in writ- A. D. 1672. ing, or other writing declaring the same, or by burning, can- St.29 Ch.2.c.3. celling, tearing or obliterating the same by the testator him- P. L. 83. self, or in his presence and by his directions and consent; but A will of lands all devises and bequests of lands and tenements shall remain and continue in force, until the same be burnt, cancelled, torn or obliterated by the testator or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same; any former law or usage to the contrary notwithstanding. assets, &c. 5. And for the amendment of the law in the particulars fol- Estates for the lowing; Be it enacted, That any estate pur auter vie, shall be life of another devisable by a will in writing, signed by the party so devising may be devisthe same, or by some other person in his presence, and by his ed and shall be express directions, attested and subscribed in the presence of the devisor by three or more witnesses; and if no such devise thereof be made, the same shall be chargeable in the hands of their heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple; and in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands. 6. And for prevention of fraudulent practices in setting up P. L. 84. nuncupative wills, which have been the occasion of much per jury; Be it enacted, That no nuncupative will shall be good, Nuncupative where the estate thereby bequeathed shall exceed the value of or verbal will: thirty pounds, that is not proved by the oaths of three witnesses (at the least) that were present at the making thereof;* nor unless it be proved that the testator at the time of pronouncing the same, did bid the persons present, or some of them, bear witness, that such was his will, or to that effect; nor Requisites unless such nuncupative will were made in the time of the last sickness of the deceased, and in the house of his or her habitation or dwelling, or where he or she hath been resident for the space of ten days or more next before the making of such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling. 7. And be it further enacted, That after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony, the substance thereof, were commmitted to writing within six days after the making of the said will. 8. And no letters testamentary or probate of any nuncupa- Proof of tive will shall pass the seal of any court, till fourteen days at the least after the decease of the testator be fully expired; nor shall any nuncupative will be at any time received to be * St. 32 Hen, 8. c. 1. mentioned in the preceding part of this act. TIT. 177. A. D. 1672. St. 29 Ch. 2. c. 3. P. L. 84. No will of personal estate to be repealed by pa rol, except, &c. Proviso. A. D. 1705. P. L. 95. What wit nesses may proved, unless process have first issued to call in the widow, or next of kindred to the deceased, to the end they may contest the same, if they please. 9. And no will in writing concerning any goods or chattels, or personal estate, shall be repealed, nor shall any clause, devise or bequest therein, be altered or changed by any words, or will by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least. 10. Provided always, That notwithstanding this act, any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his moveables, wages and personal estate, as he or they might have done before the making of this act. 11. And whereas, by an act of parliament, made in the St. 4 An. c. 16. twenty-ninth year of king Charles the second, entitled, An act for the prevention of frauds and perjuries, it is enacted, That no nuncupative will shall be good, where the estate prove a nun- thereby bequeathed shall exceed the value of thirty pounds, cupative will. that is not proved by the oaths of three witnesses, at the least, that were present at the making thereof :* It is hereby declared, That all such witnesses as are and ought to be allowed to be good witnesses upon trials at law, by the laws and customs of this realm, shall be deemed good witnesses to prove any nuncupative will, or any thing relating there unto. 12. Whereas there are many estates in this province held under wills and testaments; and to the intent that the titles may not be questioned where such wills and testaments have been duly executed, and for the prevention of any vexation or contentious suits which may be brought or commenced hereafter; Be it enacted, That all former wills and testaments heretofore made, for, of, or concerning any lands, tenements or hereditaments, shall and are hereby declared, to all intents and purposes whatsoever, to be good, valid and effectual in law, according to the true tenor and purport of the same, as fully and effectually as if the statute of the thirty-second of Henry the eighth, chapter first, and the statute of the thirtyfourth of Henry the eighth, chapter fifth,t of Great Britain, was or were of force in this province at the time of the making of the said wills and testaments, any law, custom or usage to the contrary notwithstanding. Provided, That nothing herein before contained shall extend or be construed to make the statute of Westminster the second, chapter the first, thirteenth of Edward the first, entitled, in gifts in tail the donor's will shall be observed the form of a formedon commonly called, the statutes of entails, or any part thereof, of force in this province, Vid. ante, 29 Ch. 2. c. 3. a See A. A. 1734, P. L. 139, &c.; statutes of H. 8. ; and Statute of Frauds, to the same purpose. TIT. 177. or to make estates, which were or are fee simple, conditional at the common law, estates in tail in this province: Provided also, That nothing in this act shall be construed to confirm or A. A. 1734. make good any wills heretofore made in this province since a P. L. 138-9. statute made in Great Britain, the twenty-ninth of Car. second, entitled, An act for preventing of frauds and perjuries,* has been made of force here, if such wills are not agreeable to the said statute. 13. And from and after the ratification of this act, all and singular, every person and persons having any estate or interest in fee simple, or any such estate in coparcenary, jointtenancy or tenancy in common of and in any lands, tenements, rents, services or other hereditaments in possession, reversion or remainder, shall and may have full power, free liberty and authority to give, dispose, will or devise to any person or per- Power of de sons (except bodies politic or corporate) by his last will and vising accortestament in writing, and duly executed according to an act ding to 29 Ch. made in the twenty-ninth year of Car. second, for preventing 2. c. 3. of frauds and perjuries as much as in him of right belongs, is or shall be, all his said lands, tenements, rents, services or other hereditaments, remainders or reversions or any of them, at his and their own free will and pleasure, any law, statute or usage to the contrary notwithstanding. [See 34 & 35 H. 8. c. 5. to the same effect.] 4 wills. 14. And for the effectual proving nuncupative or verbal Witnesses to wills, It is hereby enacted, That all witnesses which are good prove verbal witnesses at trials at common law, shall be good witnesses to prove a nuncupative or verbal will made of goods and chattels, agreeable to the afore mentioned statute for preventing of frauds and perjuries. [See Title 179, Women, § 17, 18women; parsons; insane persons-A. A. 1734.] 15. Any person having right or title to any lands, tene- A. A. 1789. ments or hereditaments whatsoever, (feme coverts, persons of P. L. 491. unsound mind, and infants excepted) may dispose thereof by vise real esWho may dewill in writing, to be signed by the person devising the same, tate, and how. or some other person in his presence, and by his express direction, and attested and subscribed by three credible witnesses, in the presence of the said devisor.t 16. No devise in writing of any lands, tenements or hereditaments, or any clause thereof, shall be revocable but by some other will or codicil in writing, or other writing, declaring the same, attested and subscribed by three witnesses as aforesaid, or by destroying or obliterating the same by the testator himself, or some other person in his presence, and by his direction and consent. How such de vises may be revoked 17. No nuncupative will shall be good where the estate Verbal wills, thereby bequeathed shall exceed the value of ten pounds ster- how to be ling, that is not proved by the oaths of three witnesses at the proved, &c. least, who were present at the making thereof, and bid by the *St. 29 Ch. 2. c. 3. †See A. A. 1734, P. L. 139. &c.; statutes of H. S.; and Statute of Frauds, to the same purpose. TIT.177. testator to bear witness that such was his will, or words to that effect; nor unless such will was made in the last sickness of the deceased, in the house or place where he or she shall die. A. A. 1789. 18. No testimony shall be admitted to prove any nuncupasuch proof. tive will, if six months shall have elapsed after speaking the pretended testamentary words, except such testimony or the substitute thereof, were committed to writing within six days after the making of the said will; and then twelve months shall be allowed, and no more, for the probate of such will; but the same shall not at any time be received to be proved, unless process shall have first issued to call in the widow, or next of kindred to the deceased, to the end they may contest the same if they please. Testaments of personal estate, how they may be repealed. Wills of both real and personal estate may be good as to part. Posthumous child not provided for to have an equal share, &c. A legaty give en to a child who shall die in the life time of the testator, leaving issue, how it shall go. Where the testator shall marry, after making his will, leaving issue, it shall be a revocation. 19. No will in writing concerning any goods or chattels shall be repealed, nor any clause, devise or bequest therein be altered or changed by any words or will by word of mouth only, except the same be in the life time of the testator committed to writing, and afterwards read to and allowed by him, and proved to be so done by three witnesses at the least. Provided, That any soldier in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate in like manner as before the making of this act. 20. If any will in writing shall contain devises of real estate, and also legacies of goods and chattels, and such will cannot be proved so as to pass the real estate, the same shall not for that cause be void as to the bequests of the goods and chattels. 21. If no provision shall be made by the will of the testa tor for any child or children that may be born after his death, such child or children shall be entitled to an equal share of all real and personal estate given to the other child or children, who shall contribute to make up such share or shares according to their respective interests or portions, deriving to them under such will. [See A. A. 1808.] 22. If any child should die in the life time of the father or mother, leaving issue, any legacy given in the last will of such father or mother shall go to such issue, unless such deceased child was equally portioned with the other children by the father or mother when living. 23. If any person making a will shall afterwards marry and die, leaving issue, it shall be deemed and taken to be a revocation of such will to all intents and purposes whatso ever. 24. When any person shall make a will in writing, without appointing any executor or executors therein, or such executor or executors shall refuse to qualify, the court where Where no ex- such will shall be proved, shall grant letters of administration ecutor is ap- with the will annexed, to such person or persons as would pointed,or ex- have been entitled thereto, if the deceased had died intestate; ecutors shall and if any person shall die intestate, the court of the county, letters of ad- or the ordinary of the district where there are no county ministration courts, where the will of such person, had he or she left one, shall be grant refuse, &c. &c. Would have been proved, shall grant letters of administration to them who shall he entitled thereto. TIT. 177. ministration. 25. If the testator shall have a mansion house or known In cases of inplace of residence, his or her will shall be proved in the court testacy, who of the county, or before the ordinary of the district, in case shall grant adthere are no county courts, where such house is, or place of Where wills residence was; but if the testator had no such place of resi- shall be prodence, and lands are devised in the will, it shall be proved in ed. the court of the county, or before the ordinary, as the case may be, where the lands lie, or in one of them, where there are lands in several counties; and if the testator had no such place of residence, and there are no lands devised, then the will shall be proved either in the county where such testator died, or where the whole or greatest part of his or her estate shall be. 26. And be it further enacted, That so much of the act, en- A. A. 1808 titled, "An act for the abolition of the rights of primogeniture, and for giving an equitable distribution of the real estate of intestates, and for other purposes therein mentioned," passed the nineteenth day of February, in the year of our Lord one thousand seven hundred and ninety-one, as enacts, That no personal estate which shall be acquired by any person after the making of his or her will, shall pass thereby, unless the said will be republished,"* be, and is hereby repeal a will, shall ed; and that such person shall not be considered as having pass by it. died intestate as to such personal property. [See Title 20, Bastards-Bastardy.] Personal es tate acquired after making TITLE 178. Witnesses. TIT. 178. St. 1 An. St.2. c. 9. P. L. 92. 1. AND be it enacted, That from and after the said twelfth day of February one thousand seven hundred and two, all and every person and persons, who shall be produced or appear A. D. 1702. as a witness or witnesses on the behalf of the prisoner, upon any trial for treason or felony, before he or she be admitted to depose, or give any manner of evidence, shall first take an To be sworn oath to depose the truth, the whole truth, and nothing but the truth, in such manner as the witnesses for the queen are by law obliged to do; and if convicted of any wilful perjury in such evidence, shall suffer all the punishments, penalties, forfeitures and disabilities, which by any of the laws and statutes of this realm are and may be inflicted upon persons convicted of wilful perjury. * See A. A. Feb. 1791. The words of the act are, "no lands or personal estate," &c. The regulation stands in force as to the real estate [See Title 101, Intestates' Estates.] } |