Page images
PDF
EPUB

or testament, in the same manner as other persons. [R. S., 536, Sec. 1.]

The statute also declares that all wills, testaments and codicils, by which any land, tenements, hereditaments, annuities, rents, or goods and chattels, are devised, shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, or by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses. (Id., Sec. 2.

Wills are required to be legible, perspicuous, and consistent, and must not contain provisions that are impossible of execution, or which contravene the general policy of the law. Hence, if trusts be created, or the power of alienation be suspended for any limited period, extreme care is requisite on the part of the draftsman, that such trust or suspension is authorized by the statutes of the State.

Wills must be certain in their provisions, and evince the purpose and intent of the testator, to devise his property to the beneficiaries named therein. They will be construed according to the design of the testator in their execution; yet that design must appear from the written manifesto of his pleasure. The statute regulations concerning their execution are inflexible, and must be exactly complied with.

They must be signed. They must not only be reduced to writing, but must be signed “by the testator or testatrix, or by some person in his or her presence, and by his or her direction.” [Id., 536, Sec. 2.] The name of the testator, at length, should be subscribed thereto; yet, if he be unable to write, any mark which he has adopted as his sign manual will suffice for a signature, if accompanied with the declaration that the same is his mark. If another write his name by his direction, the same must be done in his presence, or otherwise, such signature is invalid.

They must be attested. Two witnesses, at least, are required to be present at the execution of a will by the testator,

and to attest the same by subscribing their own proper names thereto at the same time. And not only must there be at least two in number, but both of them are required to be "credible witnesses," and who are not incompetent from infamy, interest, or any other cause, to be sworn and examined upon the probate of such will, as to the capacity of the testator, and the circumstances and manner of its execution. Legatees, although competent to attest a will, lose their legacies under it, over and above what they would otherwise have inherited, if there be not two other credible witnesses to the execution thereof, who have no interest in the same. (Id., Sec. 11.]

Wills may or may not contain a provision for the appointment of executors thereof. If they contain no appointment, the court which admits them to probate has the power to supply the omission, by appointing an administrator, with the will annexed.

T'he statutes provide, that in no case “where any testator or testatrix shall by his or her will, appoint his or her debtor to be his or her executor or executrix, shall such appointment operate as a release or extinguishment of any debt due from such executor or executrix, to such testator or testatrix; unless the testator or testatrix shall in such will expressly declare his or her intention to devise, or release such debt; nor even in that case, unless the estate of such testator or testatrix is sufficient to discharge the whole of his or her just debts, over and above the debt due from such executor or executrix.” [Id., Sec. 12.]

"If after making a last will and testament, a child or children shall be born to any testator or testatrix, and no provision be made in such will for such child or children, the will shall not on that account be revoked; but unless it shall appear by such will that it was the intention of the testator or testatrix to disinherit such child or children, the devises and legacies by such will granted and given shall be

abated in equal proportions to raise a portion for such child or children, equal to that which such child or children would have been entitled to receive out of the estate of such testator or testatrix, if he or she had died intestate." [Id., Sec. 13.]

“ Whenever a devisee or legatee, in any last will and testament, being a child or grand child of the testator or testatrix, shall die before such testator or testatrix, and no provision shall be made for such contingency, the issue, if any there be, of such devisee or legatee shall take the estate devised or bequeathed, as the devisee or legatee would have done had he or she survived the testator or testatrix; and if there be no such issue at the time of the death of such tes. tator or testatrix, the estate disposed of by such devise or legacy shall be considered and treated in all respects as intestate estate." [Id., Sec. 14.)

All codicils are required to be executed in the same manner as wills; and “no will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing, or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or codicil, in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witvesses, and by them attested in his or her presence; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as aforesaid, in due form of law." [Id., Sec. 15.]

It is provided that every devise of land or any estate therein by a married man shall bar his surviving widow's right of dower therein, unless otherwise expressed in the will; but she may elect whether she will take such devise or bequiest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands. And she will be deemed to have elected to take such jointure or devise, unless within one year after the authentication or probate of the will she shall deliver or transmit to the Court

of Probate of the proper county, a written renunciation. [Id., 199, Sec. 11.]

XI. THE PROBATE AND RECORDING OF WILLS IN ILLINOIS.

By Statute there shall be and remain in each county of this State, a Court of Probate, to be composed of one officer, styled a Probate Justice of the Peace. [R. S., 426, Sec. 1.]

Probate Justices are elected biennially at "annual elections," and are invested with ample powers for determining the competency of testators, for the examination of witnesses concerning wills, admitting them to probate, record, &c., and of issuing letters testamentary therein, or of administration with the wills annexed. [Id., Sec. 6.]

Such courts are required to set in their respective counties on the first Monday in every month, and at such other times as extraordinary circumstances may require, and to continue open until all the business depending before them shall be disposed of. They are required to have a seal under which to issue all necessary process; and to keep books in which to record their proceedings at length. [Id., Sec. 8.)

“When any will, testament or codicil shall be exhibited in the Court of Probate, for probate thereof, it shall be the duty of the court to receive the probate of the same without delay, and to grant letters testamentary thereon, to the person or persons entitled ; and to do all other needful acts to enable the parties concerned to make settlement of the estate at as early a day as shall be consistent with the rights of the respective persons interested therein : provided, however, that if any person interested, shall within five years after the probate of any such will, testament or codicil, in the Court of Probate as aforesaid, appear, and by his or her bill in chancery, contest the validity of the same, an issue at law shall be made up, whether the writing produced, be the will of the testator or testatrix, or not; which shall be tried by a jury in the Circuit Court of the county wherein sạch will, testa

ment or codicil shall have been proved and recorded as aforesaid, according to the practice in Courts of Chancery in similar cases; but if no such person shall appear within the time aforesaid, the probate as aforesaid, shall be forever binding and conclusive on all the parties concerned, saving to infants, femmes covert, persons non compos mentis, or absent from the State, the like period after the removal of their respective disabilities. And in all such trials by jury as aforesaid, the certificate of the oath of the witnesses at the time of the first probate, shall be admitted as evidence, and to have such weight as the jury shall think it may deserve.” (R. S., 537, Sec. 6.]

On the probate of any will at least two credible attesting witnesses are required to be sworn and examined; and before the same can be admitted to record, such witnesses must have declared on oath or affirmation, that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, and heard him or her acknowledge the same to be his or her act and deed; and they believed the testator or testatrix to be of sound mind and memory, at the time of signing or acknowledging the same. [Id., Sec. 2.]

" It shall be the duty of each and every witness to any will, testament or codicil made and executed in this State as aforesaid, to be and appear before the Court of Probate, on the regular day for probate of such will, testament or codicil, to testify of and concerning the execution and validity of the same; and the said Court of Probate shall have power and authority to attach and punish, by fine and imprisonment, or either, any witness who shall, without a reasonable excuse, fail to appear when duly summoned for the purpose aforesaid ; provided the said punishment by imprisonment shall in no case exceed the space of twenty days; nor shall a greater fine be assessed for any such default, than the sum of fifty dollars.” [Id., Sec. 3.)

“When any will, testament or codicil shall be produced to

« ՆախորդըՇարունակել »