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he did execute the will in question, they may subscribe the same, and their subscription will be held to be a sufficient attestation. But the witnesses must be competent. They must be of sufficient age to understand, and of legal ability to testify on the probate thereof. They should be persons of discretion, not interested in any legacy or bequest contained in the will, and who, from infamy of character or other cause, are not incompetent as witnesses in a court of jus

tice.

The testator may appoint his executors by will or codicil, or he may omit to do so at his pleasure. The validity of a will in no wise depends upon their appointment therein, as the courts having jurisdiction are invested with power to appoint administrators to execute it.

The power of the testator to devise or bequeath his property to whomsoever he pleases, is qualified only by the right of his wife, if the testator be a married man and leave a wife him surviving, to elect within six months from the probate whether she will claim her dower in his lands, or abide by the will. "If any provision be made for a widow in the will of her husband, she shall within six months after probate of the will, make her election whether she will take such provision or be endowed of his lands; but she shall not be entitled to both, unless it plainly appear by the will to have been the intention of the testator that she should have such provision in addition to her dower." [Stat. Wills, Sec. 45.] The intention should be declared in the instrument, if such were the purpose of the testator; yet if it can be clearly ascertained, without any express declaration to that effect, the courts will accord to the widow both the legacy and dower. The Statute also provides how that election shall be made. "The election of the widow to take under the will, shall be made known to the Court of Common Pleas of the proper county, which shall be entered upon the minutes of the court, and if the widow fail to make such election, she shall

retain her dower, and such share of the personal estate of her husband as she would be entitled to by law in case her husband had died intestate. If she elect to take of the will she shall be debarred of her dower, and take under the will alone." [Id., Sec. 45.]

Posthumous children cannot be cut off by neglect of the parent, where he or she have no children born at the time of the execution of a will. In such case, if no provision be made in the will for the after born child, and no settlement have been made for it, the will shall be deemed revoked, unless such mention of the child shall be made in the will as to show an intention not to provide for it; and no other evidence to rebut the presumption of such revocation can be received. [Act passed March 23, 1840.]

It is usual for the testator to seal his will after its execution, in an envelop, and to deposit the same with the executor or some other person; and it is provided that if wills are sealed, the seal shall not be broken by the executor or other person, until produced in court for probate.

No will is effectual to pass real or personal estate until admitted to probate.*

* Wills fail to pass real property unless executed according to the laws of the State where the property devised is situated. [9 Wheaton's Reports, 566.]

Whether a will be properly executed or not, must be decided by the courts in reference to the laws in force at the time of its execution, without reference to the testator's death. [5 Watts, 399.]

Under the Statutes of 1810, a femme covert was authorized to devise real estate held in her own right. [5 Ham., 65.]

It is a valid republication of a will for the testator to declare in the presence of witnesses that the paper contains his last will and testament, provided the fact be endorsed on the will and subscribed by the witnesses, though such endorsement be not subscribed by the testator. [7 Ham., Part 2: 39.]

Where a testator at the time of making his will was in the possession of lands under a verbal agreement, for the purchase, but afterwards, and before his decease obtained a deed of the same, it was held that the lands so deeded, passed to the devisee under his will. [4 Ham., 115.]

XXI. THE PROBATE AND RECORDING OF WILLS IN OHIO.

Wills are required to be proved and recorded. In Ohio, the Courts of Common Pleas in the several counties have the powers of a Court of Probate. They have power to compel the production of wills and the attendance of witnesses before them. Upon application, the Court of Common Pleas of the proper county is, by an act passed May 23, 1840, required to "cause the witnesses of such will, and such other witnesses as any person interested therein (that is the will) may desire, to come before such court; and said witnesses shall be examined in open court, and their testimony reduced to writing and filed: provided, that in all cases any witnesses other than the subscribing witnesses to the will, are introduced, the court may order their testimony to be taken and reduced to writing by a Master Commissioner of the court; which testimony shall be filed with said will." [Id., Sec. 13.]

"If it shall appear to the court, when the will is offered for probate, that any witness is gone to parts unknown; or, if the witnesses to a will were competent at the time of attesting its execution, and afterwards became incompetent by reason of interest, infamy, or other cause, the will may be admitted to probate and allowed upon such proof as would be satisfactory; and in like manner as if such absent or incompetent witnesses were dead." [Id., Sec. 14.] Witnesses who are absent from the State may be examined under a commission which may be issued by the court to one or more persons of the State or place where the absent witness shall reside, and the testimony thus taken is as valid as if taken in open court. [Id., Sec. 15.]

"If it shall appear that such will was duly attested and executed, and that the testator at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint, the court shall admit the will to probate." [Id., Sec. 16.]

It has been decided that an application to admit a will to probate, though rejected, extinguishes no right and binds no body; but when admitted to probate, it binds every body. [Chapman's Will, 6 Ohio Reports, 148. Hunter's Will, Id., 499.]

Appeals lie to the Supreme Court from an order admitting a will to probate, but if the Court of Common Pleas adjudge the testimony insufficient and refuse the probate, no appeal lies.

When admitted, wills are required to be filed and recorded in the office of the Clerk of the Court, together with the testimony; and an exemplified copy with the order of probate, under seal of the court, is legal evidence of such probate.

The statute renders the probate so far conclusive, that if no person interested shall, within two years after probate had, appear and contest the validity of the will, the probate is "forever binding," saving, however, to infants, married women, and persons absent from the State, or of insane mind, or in captivity, the period of two years after the disability is removed is allowed for appearance and contestation. [Act 1840, Sec. 21.]

The mode provided for contesting a will, is by bill in chancery, which may be filed within said two years by any person interested in the will or estate of the deceased; and upon the proper issue framed, the capacity of the testator in mind, memory, &c., may be tried by a jury.

Thus far, domestic wills have alone been treated of. Foreign wills, or wills executed, proved, and allowed, in any other of the United States, or territory thereof, according to the laws of such State or territory, are admitted to record in Ohio, in the manner and for the purposes following: "A copy of the will and probate thereof, duly authenticated, shall be produced by the executor, or by any person interested therein, to the Court of Common Pleas of the county in which there is any estate upon which the will may operate; whereupon the court shall continue the motion to the next term, and notice of the application shall be given to all persons interested,

in some public newspaper printed or in general circulation in the county where such motion is made, at least three weeks successively; the first publication to be forty days, at least, before the said time for the final hearing of said motion. If, on hearing, it shall appear to the court that the instrument ought to be allowed in this State, the court shall order the copy to be filed and recorded; and the will and the probate and record thereof shall then have the same force and effect, as if the will had been originally proved and allowed in the same court, in the usual manner; provided, however, that nothing herein contained shall be construed to give any operation or effect to the will of an alien, different from what it would have had if originally proved and allowed in this State. After allowing and admitting to record a will, so executed, the court may grant letters testamentary thereon, or letters of administration with the will annexed, and shall proceed in the settlement of the estate that may be found in this State; and the executor taking out letters, or the administrator with the will annexed, shall have the same power to sell and convey the real and personal estate by virtue of the will, or the law, as other executors or administrators with the wi!l annexed shall or may have by law." [Id., Sec. 29, 30, 31, 32.1

There is another provision in this act which is worthy of especial notice. It is that "no lands, tenements, or hereditaments shall pass to any devisee in a will, who shall know the existence thereof and have the same in his power to control for the term of three years; unless, within that time, he shall cause the same to be offered for or admitted to probate."

The evils growing out of a neglect to produce a will within three years are manifold; hence the above enactment, together with another, which declares that in cases of such neglect, "the estate devised to such devisee shall descend to the heirs of the testator."

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