produce the same for probate, after being duly cited for that purpose, he may be committed to the jail of the county, there to be kept in close custody until he shall produce the will, and he shall be further liable to the action of any party aggrieved, for the damages which may be sustained by such neglect or refusal. to a witness of a will. SEC. 11. If a devise or bequest is given to a person who In case of devise is a witness to the will, and the will cannot otherwise be proved than by the testimony of such witness, the devise or bequest shall be void, and the witness shall be competent to give testimony of the execution of the will, in like manner as if such devise or bequest had not been made; and if such witness would have been entitled to any share of the testator's estate, in case the will was not established, so much of such share as shall not exceed the bequest or devise to him, shall be saved to him; and the devisees and legatees shall contribute for that purpose in the mode directed in the forty-first section of this act. SEC. 12. The said court shall cause the witnesses to such Examination of will, and such other witnesses as any person interested in having the same admitted to probate, may desire, to come before such court; and said witnesses shall be examined in open court, and their testimony reduced to writing, and filed. witnesses. competent wit SEC. 13. If it shall appear to the court, when the will is Absent and inoffered for probate, that any witness thereto is gone to parts nesses. unknown; or if the witnesses to a will were competent, at the time of attesting its execution, and afterwards become incompetent, 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. how taken. SEC. 14. The court may issue a commission, with the will Depositions, annexed, directed to any suitable person or persons, to take the deposition of any witness to a will, who resides out of the jurisdiction of the court, or who resides within it, and is infirm and unable to attend court; and every deposition so taken, certified and returned, by any one or more of the persons named in such commission, shall be as valid as if taken in open court. probate. SEC. 15. If it shall appear that such will was duly attest- Admission to ed 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. ded. SEC. 16. Every will, when admitted to probate as above Filed and recormentioned, shall be filed in the office of the probate judge, and recorded, together with the testimony, by said judge or his clerk, in a book which shall be kept by him for that purpose. Certified copies of a will, to be dence. SEC. 17. A copy of such recorded will, with a copy of the effectual as evi- order of probate annexed thereto, certified by the said judge of probate, under seal of his court, shall be as effectual in all cases, as the original would be, if produced and established by proof. Records in each county where situate. SEC. 18. If real estate devised by will, is situate in any real estate is other county than that in which the will is proved, an authenticated copy of the will and order of probate, shall be admitted to record in the office of the probate judge of each county in which such real estate may be situate, upon the order of such probate judge, and shall have the same validity therein, as if probate had been had in such county. When will is not contested SEC. 19. If no person interested, shall, within two years for two years. after probate had, appear and contest the validity of the will, the probate shall be forever binding, saving, however, to infants, married women, and persons absent from the state, or of insane mind, or in captivity, the like period, after the respective disabilities are removed. How a will may be contested. How issue shall be made. Evidence of validity. Testimony of deceased witnesses, &c. Apeals to district court. SEC. 20. The mode of contesting a will, shall be by bill in chancery, which may be filed in the court of common pleas of the proper county, within said two years, by any person interested in the will or estate of the deceased. SEC. 21. In such suit in chancery, an issue shall be made up, whether the writing produced be the last will of the testator or not, which shall be tried by a jury, whose verdict shall be final between the parties, unless the court shall grant a new trial, or the cause be appealed to the district court. SEC. 22. The order of probate shall be prima facie evidence, on the trial of said issue, of the due attestation, execution and validity of said will. SEC. 23. A certified copy of the testimony of such of the witnesses examined upon the original probate, as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence upon such trial. SEC. 24. In all suits in the court of common pleas, in which any will may be contested, appeals may be had from the final decrees rendered therein, as in other suits in chancery, to the district court; and said district court shall, on the application of either party in the trial of such contested will, direct the issue that was tried in the court below, to be re-tried by a jury, in said district court, in the same manner as is provided by law, in such cases, in the court of common pleas. fants, insane, SEC. 25. The rights of infants, married women, or persons Rights of inabsent from the state, or of insane mind, or in captivity, shall &c. not be concluded by the verdict of the jury, or the decree of the court thereon, mentioned in the twenty-first and twentyfourth sections of this act; but such persons may, within two years after their respective disabilities are removed, and not thereafter, contest by bill in chancery, and in the manner provided in the five preceding sections of this act, the said verdict and decree. Copies of wills SEC. 26. Authenticated copies of wills, executed and pro- executed in ved according to the laws of any state or territory of the other states. United States, relative to any property in the State of Ohio, may be admitted to record in the probate court of any county in this state, where any part of such property may be situated; and such authenticated copies, so recorded, shall have the same validity in law, as wills made in this state, in conformity with the laws thereof, are declared to have; Provided, that where any such will, or authenticated copy, has been or shall hereaf ter be admitted to record, in the probate court of any county in this state, where any part of such property may be situated, a copy of such recorded will, with a copy of the order to record the same, annexed thereto, certified by the probate judge, under the seal of his court, may be filed and recorded in the office of the probate judge of any other county in this state, where any part of such property is situated, and shall be as effectual, in all cases, as the authenticated copy of said will would be, if proved and admitted to record by the court. SEC. 27. A will, executed, proved and allowed, in any coun- As to wills exetry other than the United States, and territories thereof, according to the laws of such foreign state or country, may be allowed and admitted to record in this state, in the manner and for the purpose mentioned in the following sections. cuted in foreign countries. duced to pro SEC. 28. A copy of the will and probate thereof, duly Copy to be proauthenticated, shall be produced by the executor, or by any bate judge, &c. person interested therein, to the probate judge of the county in which there is any estate upon which the will may operate, whereupon said probate judge shall continue the motion to admit such will to probate, for the term of two months; and notice of the filing of such 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 at least forty days before the time set for the final hearing of said motion. be filed, &c. SEC. 29. If, on hearing, it shall appear to the court that the If allowable, to 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, Court to grant letters testamentary, &c. Wills not admitted to pro 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. SEC. 30. After allowing and admitting to record a will, pursuant to the four preceding sections of this act, 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 or personal estate, by virtue of the will or the law, as other executors, or administrators with the will annexed, shall or may have by law. SEC. 31. No will shall be effectual to pass real or personal bate, void, as to estate, unless it shall have been duly admitted to probate or record, as provided in this act. real estate. titled to estate, probate. No devisee en- SEC. 32. No lands, tenements, or hereditaments, shall pass who neglects to to any devisee in a will, who shall know of the existence produce will for 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; and by such neglect, the estate devised to such devisee, shall descend to the heirs of the testator. Devise in a will, a subsequent a SEC. 33. A bond, agreement, or covenant, made for a valunot revoked by able consideration by a testator, to convey any property degreement, &c. vised or bequeathed in any will previously made, shall not be deemed a revocation of such previous devise or bequest, either at law or in equity; but such property shall pass by such devise or bequest, subject to the same remedies on such bond, agreement, or covenant, for a specific performance or otherwise, against the devisee or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them. A charge or incumbrance not revocation of a will. SEC. 34. A charge or incumbrance upon any real or perto be deemed a sonal estate, for the purpose of securing the payment of money, or the performance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previously executed; but the devises and legacies therein contained, shall pass and take effect, subject to such charge or incumbrance. When an estate by con SEC. 35. A conveyance, settlement, deed, or other act of or interest is al- the testator, by which his estate or interest in property preveyance, &c. viously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property, but such devises or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless in the instrument by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or request. rate as a revo SEC. 36. But if the provisions of the instrument by which when an alter. such alteration is made, are wholly inconsistent with the terms ation shall ope and nature of such previous devise or bequest, such instrument cation. shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen. SEC. 37. A will, executed by an unmarried woman, shall Will of an unnot be deemed revoked by her subsequent marriage. married wo. man. born after death of testator. SEC. 38. If the testator had no children at the time of exe- In case of child cuting his will, but shall afterwards have a child living, or born alive after his death, such will shall be deemed revoked, unless provisions shall have been made for such child by some settlement, or unless such child shall have been provided for in the will, or in such way mentioned therein, as to show an intention not to make such provision, and no other evidence, to rebut the presumption or revocation, shall be received. shall be revo SEC. 39. A will shall be revoked by the testator tearing, How a will canceling, obliterating, or destroying the same, (with the in- voked. tention of revoking it,) by the testator himself, or by some person in his presence, or by his direction; or by some other will or codicil, in writing, executed as prescribed by this act; or by some other writing, signed, attested and subscribed, in the manner provided by this act for the making of a will; but nothing herein contained shall prevent the revocation implied by law, from subsequent changes in the condition or circumstances of the testator. will, &c. In cases of chil supposed to be dead, &c. SEC. 40. If, after the making of any will, the testator shall Destruction of duly make and execute a second will, the destruction, cancel- a subsequent ing 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 destruction, canceling, or revocation, he shall duly republish his first will. SEC. 41. When a testator, at the time of executing his will, debent o shall have a child absent and reported to be dead, or, having a child at the time of executing the will, shall afterwards have a child who is not provided for in the will, the absent child, or the child born after the execution of the will, shall take the same share of the estate, both real and personal, that they would have been entitled to if the testator had died intestate; towards raising which portion, the devisees and legatees shall equally contribute, in proportion to the value of what they shall respectively receive under the will, unless, in consequence of a specific devise or bequest, or of some other provisions in the will; a different apportionment among the devisees and legatees shall be found necessary, in order to give effect to the intention of the testator, as to that part |