Will and tea. timony to be filed and recorded.

and that the testator at the time of the execution was of sound and disposing mind, and not under restraint, undue influence or fraudulent misrepresentation, a certificate of the proof and the facts found, signed by the probate judge and attested by the seal of the court, shall be attached to the will. (a.)

[Form No. 20, Appendix.]

In case of great physical infirmities, something more than mere formal proof should be required. Additional evidence to show that the mind accompanied the will, and that its provisions were understood, is necessary. This may be supplied by subscribing witnesses or aliunde. Weir v. Fitzgerald, 2 Brad. 42.

Defects of the senses do not incapacitate; but, it appearing that the testator being of advanced age, and his hearing and sight impaired, the circumstances attending the execution of the will should be carefully scrutinized for any traces of imposition or artifice. Ibid.

And see Mowry v. Silbur, 2 Brad. 133; McSorley v. McSorley, 2 Brad. 188; and McGuire v. Kerr, 2 Brad. 244; also, Burger v. Hill, noted at the end of this chapter. It seems to be the rssult of the cases, that the influence to vitiate an act must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment, it must not be the mere desire of gratifying the wishes of another, for that would be very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion, by importunity which could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear. Where persuasion is used to a testator on his death bed, when even a word distracts him, it may amount to force and inspiring fear. 1 Jarman on Wills, p. 39.

With regard to what deceit shall annul a testament on the ground of fraud, as in the case of a will made under fear, it is left to the judgment of the tribunal trying the case, comparing the deceit with the capacity or understanding of the person deceived, to discern whether it be such as may overthrow the testament or not. Ibid, p. 40 see, also, cases there cited.

There is nothing unlawful in suggestion, provided it be not carried to the degree of importunity, and the testator be in the full possession of his faculties. Tunison v. Tunison, 4 Brad. 138.

As to undue influence dependent on religious feelings, see Norton v. Kelly, 2 Eden, 286; Huguenin v. Basely, 14 Vesey, 273; Weir's Will, 9 Dana, 440.

A will made in a lucid interval may be valid; but the facts establishing intelligent action must be shown. The nature and character of the instrument, and of its dispositions, have great influence in determining the mind of the court as to the capacity of the decedent at the time. Gambault v. Public Administrator, 4 Brad. 226.

§ 25. The will and the certificate of the proof thereof, together with the testimony which has been taken, shall be filed by the clerk, and recorded by him in a book to be provided for the purpose.

(a) Amended April 23d, 1855; amended portion in italics. Laws 1855, p. 132.

Amendment to Sec. 27.-Passed March 6th, 1863.

[Took effect immediately.]

§ 27. All wills which shall have been duly proved and allowed in any State, Territory, or District of the United States, or in any foreign country or State, may be allowed and recorded in the Probate Court of any county in which the ided it has been executed in conformity

Amendment to Sec. 28.-Passed April 4th, 1864.

[Took effect on passage.]

$28. When a copy of the will and the probate thereof, duly authenticated, shall be produced by the Executor, or by any person to whom letters of administration, with the will annexed, might be granted, with a petition for letters, the same shall be filed in Court, and the Court or Judge shall appoint a time of learing, and notice shall be given in the same manner as in the case of an original will for probate.

Amendment to Sec. 29.—Passed April 4th, 1864.

[Took effect on passage.]

§ 29. If, on the hearing, it shall appear to the Court that the instrument ought to be allowed as the will of the deceased, the authenticated copy shall be admitted to probate and recorded the same as in case of other wills, and the will shall have the same force and effect as if it had been originally proved and allowed in the same Court. It shall be sufficient if it shall appear from the copies referred to in the preceding section that the will was executed in conformity with the laws of this State, and was proved and allowed in conformity with the laws of the State, Territory, district, foreign country or State, where the same was proved and allowed, and that the same was proved and allowed in conformity with the laws last referred to; the copy of the order, decree, judgment, or certificate of the Court or officer having jurisdiction of the subject matter, duly authenticated, showing that the will has been proved and allowed, shall be prima facie evidence, and also prima facie evidence of the death of the testator; but nothing herein shall be so construed as to exclude any other legal evidence.

evidence.

§ 26. The record of the will, and the exemplification by the clerk Record to be in whose custody it may be, shall be received in evidence and be as effectual in all cases as the original would be if proved.

in other State,

lowed in this

§ 27. All wills which shall have been duly proved and allowed Wills proved in any other of the United States or in any foreign country or etc.. when al State, may be allowed and recorded in the probate court of any State. county in which the testator shall have left any estate, provided it has been executed in conformity with the laws of this State.

Proceedings production of foreign

§ 28. When a copy of the will and the probate thereof, duly authenticated, shall be produced by the executor, or by any other upon person interested in the will, with a petition for letters, the same will. shall be filed in court, and the court, or judge, shall appoint a time of hearing, and notice shall be given in the same manner as in the case of an original will for probate. (a.)

See Sec. 13, ante.

[Forms Nos. 30, 32, Appendix.]

Effect of will

§ 29. If on the hearing it shall appear to the court that the instrument ought to be allowed as the will of the deceased, the if allowed. authenticated copy shall be admitted to probate and recorded the same as in case of other wills, and the will shall have the same force and effect as if it had been originally proved and allowed in the same court. (a.)

See Sec. 25, ante.

[Form No. 73, Appendix.]

The probate, contested with

§ 30. When a will has been admitted to probate, any person interested may, at any time within one year after such probate, etc., may be contest the same, or the validity of the will. For that purpose, in one year. he shall file in the court before which the will was proved, a peti- Allegations tion in writing containing his allegations against the validity of the against will, will, or against the sufficiency of the proof, and praying that the probate may be revoked.

[Form No. 31, Appendix.]

See ante Sec. 18 and cases cited, and Sec. 67, post.

After the admission of a will of personal property to probate, allegations against the validity of the will and its probate having been filed within the year, it is not sufficient

(a) Amended 1861; amended portion in italics.

etc., to be filed.

for the executors on the citation to show cause, etc., why the probate of the will should not be revoked, to present the probate of the will as prima facie evidence of its validity. If the allegations are sufficiently broad, the will must be proved de novo. Though the probate is generally conclusive as to the validity of the will, it is of no force in a proceeding instituted directly to impeach the probate itself. Collier v. Executors of Idley, 1 Brad. 94. And see Weir v. Fitzgerald, noted at the end of this chapter.

§ 31. Upon the filing of the petition, a citation shall be issued Citations to to the executors who have taken upon them the execution of the parties interest-will, or to the administrators, with the will annexed, and to all the

be issued to

ed.

legatees named in the will, residing in the State, or to their guardians, if any of them are minors, or their personal representatives, if any of them are dead, requiring them to appear before the court on some day of a regular term therein specified, to show cause why the probate of the will should not be revoked.

[See Forms Nos. 56, 57, 60, 61, Appendix.]

§32. At the time appointed for showing cause, or at any time The hearing to which the hearing shall be continued, personal service of the citations having been made upon any person named therein, the The court to court shall proceed to hear the proofs of the parties. If any appoint attor devisees or legatees named in the will shall be minors and have no devisees, etc. guardians, the court shall appoint some attorney to represent them.

ney for minor

revoked.

[See Forms Nos. 16, 17, 56, Appendix.]

§ 33. If, upon hearing of the proof of the parties, the court Probate, when shall decide that the will is for any reason invalid, or that it is not sufficiently proved to have been the last will of the testator, the probate shall be annulled and revoked.

Liability of executor, etc., for acts previous to revo

[Form No. 34, Appendix.]

§ 34. Upon the revocation being made, the powers of the executor or administrator with the will annexed shall cease; but such cation. executor or administrator shall not be liable for any act done in good faith previous to the revocation.

Fees and expenses, by whom paid.

§ 35. The fees and expenses shall be paid by the party contesting the validity of the will, or the probate, if the will, or probate, be confirmed. If the probate be revoked, the party who shall have resisted the revocation shall pay the costs and expenses of the pro