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any such will or testament is burnt, torn, cancelled, or obliterated by any other person than the testator himself, the direction and consent of such testator, and the fact of such injury or destruction, shall be proved by at least two witnesses. If after the making of any will, the testator shall duly make out and execute a second will, the cancelling or revocation of such second will shall not revive the first will, unless it appear by the terms of such revocation, that it was his intention to revive and give effect to his first will; or unless after such cancelling, destruction, or revocation, he shall duly republish the previous will."* [Id., Sec. 30.]
XI. THE PROBATE AND RECORDING OF WILLS IN INDIANA.
In each organized county in Indiana there is a Probate Court consisting of one Judge elected by the people for the term of seven years, the Clerk of the Circuit who is ex-officio Clerk of Probates, and the Sheriff who is its executive officer. This Court has a seal, and has original and exclusive jurisdiction over all matters relating to the probate of last wills and testaments, granting of letters testamentary, of administration and of guardianship. [R. S., 655, Sec. 5.] “Upon the death of a testator, any executor, devisee or legatee named in his will, may have such will proved before the proper Probate Court, or before the Clerk of such court when the same is not in session.” (Id. 492, Sec. 34.) “Proof of last wills and testaments may be taken by the Probate Court or the Clerk of such court:
1. Where the testator at, or immediately previous to his death, was an inhabitant of such county, whether such testator died in such county or not.
* It was held that by the Statute of this State, a will devising real estate must be in writing, signed by the testator and attested by two witnesses, in the presence of the testator; and that it may in the same manner be revoked. [2, Black., 353.]
It is in contravention of well settled principles to admit a parol cancelation of a deed or will in writing. [Idem.]
Unsealed wills, codicils and revocations are valid in Indiana. [Id., 356.]
2. Where the testator, not being an inhabitant of this State, shall die in such county, leaving assets therein.
3. Where the testator not being an inhabitant of this State, shall die out of the State, not leaving assets in such county, but assets of such testator shall come into the county thereafter." [Id., Sec. 35.]
“Witnesses may be summoned by subpæna, to be issued by the Clerk of the Probate Court, to appear and testify respecting the execution, subscribing and attestation of such will;" [Id., Sec. 36.) and the person having custody of the will may be cited to produce it, or in default thereof, may be imprisoned for contempt of the process of the court.
It provided that “wills offered for probate shall be proved by one or more of the subscribing witnesses, or if they be dead, and or out of the State, or have become incompetent since attesting such will, then by the proof of the hand writing of the testator, or of at least two of the subscribing witnesses thereto; and the Probate Court, or Clerk thereof, taking such proof shall inquire particularly into the facts and circumstances of the execution, subscribing and attesting of such will, and shall be satisfied of the genuineness and validity thereof, before admitting the same to probate, or granting letters testamentary, or of administration with the will annexed, thereon.” [Id., Sec. 39.]
"If none of the subscribing witnesses to such will be produced, their insanity, death, subsequent incompetency, or absence from the State, shall be satisfactorily shown before proof of the handwriting of the testator or of any of the subscribing witnesses shall be received. [Id., Sec. 40.) “Whenever proof of any will is made by proving the handwriting of the testator, or of any of the subscribing witnesses thereto, such proof thereof shall be taken and received as would be proper to prove the same on a trial at law.” [Id., Sec. 40.]
“And if it shall appear upon the proof taken that the will was duly executed ; that the testator at the time of executing
the same was of full age to devise his property, and of sound mind and memory, and not under coercion and restraint, the said proofs and examinations are required to be written down by said Clerk, and subscribed by the witnesses examined, and attested under his hand and seal of office; and the will and said proofs and examination, with such attestation, to be recorded by said Clerk in a book provided and kept for that purpose, and certified to be a full and true record.” [Id., Sec. 43.] ]
Ample provision has been made for the contestation of wills by persons interested in defeating their probate, by the making of objections in writing, duly verified, alledging the grounds of the opposition to be made. Whenever objections are interposed, the hearing may be postponed to a subsequent term and to which the devisees, legatees, trustees, guardians, and all other beneficiaries of the will are required to be cited to appear. After due examination and trial, it is the duty of the Court to pass upon the validity of the will; from whose decision an appeal lies to the Circuit Court.
Foreign wills affecting property in Indiana are also provided for. Any will that shall have been proved or allowed, in any other of the United States, or in any foreign country according to the laws of such State or country, may be received and recorded in this State, provided the same shall be duly certified under the seal of the court or officer taking such proof; or an exemplified copy thereof, or the record thereof, together with the certificate of probate thereof, duly authenticated under seal, is produced to the Probate Court of the county in which there is any real or personal estate devised or bequeathed ; and if the court upon inspection be satisfied that said will was properly executed, according to the laws of this State, and proved according to the laws of the State in which it was executed, or according to the laws of Indiana, it is his duty to order the same to be recorded by the Clerk. This being done, the will becomes as effectual, as if executed within the State of Indiana. [R. S., 495, Sec. 46, 50.]
THE TITLE TO REAL ESTATE BY DESCENT IN IN
The title to real estate in the State of Indiana, by descent, is regulated by the following provisions of the State, viz:
“The real estate of every person dying intestate shall descend in the manner provided by, and subject to the rules and provisions of, this article.
1. When any intestate shall die, leaving children, and none of the children of such intestate shall have died, leaving descendants, such estate shall descend to the children of such intestate in being at the time of his death in equal proportions.
2. The law of descent as presented in the above first rule, shall apply in every case in which there are several descendants in the direct line of lineal descent, and all of equal degree of consanguinity to such intestate, whether children, grand children or great grand children, or more remote descendants of such intestate; so that the inheritance shall descend to such persons of equal degree of consanguinity to the intestate in equal parts, however remote from the intestate such equal and common consanguinity may be.
3. If any of the children of such intestate be living, and any be dead, the inheritance shall descend to the children of such intestate who are living, and to the descendants of such of his children as shall have died, so that such child of the intestate who shall be living, shall inherit the share which would have descended to him, if all the children of the intestate, who shall have died leaving descendants, had been living, and so that the descendants of each deceased child of the intestate shall inherit the share which their parents would have received if living.
4. The rule of descent, as prescribed in the above third rule, shall apply in all cases in which the descendants of the intestate entitled to share in the estate are of unequal degree of consanguinity to the intestate; so that those who are of
the nearest degree of consanguinity shall take the shares which would have descended to them had all the descendants in the same degree of consanguinity with themselves, who shall have died leaving issue, been living; and so that the issue of the descendants who shall have died, shall respectively take the shares which their parents, if living, would have received." (R. S., 433, Sec. 109.]
“In case the intestate shall die without children, or their descendants to take the inheritance, his estate shall go to his kindred in the direct ascending line of consanguinity, and to his collateral relations as specified in the following sections of this article, subject to the provisions made in favor of the widow of such intestate; the inheritance, in all such cases, being governed by the rules of descent hereinafter established in this article.” (Id., Sec. 110.]
“If the intestate shall die without children, or their descendants, and leaving a father and mother, or either of them, and brothers and sisters, or the descendants of any brother or sister, or leaving any of such relatives, the inheritance shall descend as follows:
1. If there be a father and mother, or either of them, and brothers and sisters, and the descendants of any brother or sister who shall have died, or the descendants of any or all such brothers or sisters, all the brothers and sisters being dead, one-half of the inheritance shall go to the father and mother, as joint tenants, or if either be dead, then to the one who shall be living; and the other half of such inheritance shall go to the said brothers and sisters, or to such as shall be living, and the descendants of such as shall be dead; and if all euch brothers and sisters be dead, then to their descendants.
2. If there be neither brothers nor sisters of the intestate, nor the descendants of any such brother or sister, and the father and mother of such intestate be living, the whole of the inheritance shall go to such father and mother, as joint