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When a widow elects to take

of the estate which shall pass by the will; Provided, that if such child, supposed to be dead at the time of the execution of the will, shall have a child or children, provision for whom is made by the testator, the other legatees and devisees shall not be required to contribute, but such child, supposed to have been dead, shall take the provision made for his child or children, by the testator, or such part thereof as the circumstances of the case, in the opinion of the court of proper jurisdiction, may

think just and equitable. Same subject.

SEC. 42. In settling the extent of the claim of any child, as provided for in the preceding section, any portion of the estate of the testator received by a party interested, by way of advancement, shall be deemed a portion of the estate, and

charged to the party who has received the same. Rights of wid. Sec. 43. If any provision be made for a widow, in the will ows, as to wills, of her husband, she shall, within one year 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 appears by the will, to have been the intention of the testator that she should have such provision in addition to her dower.

Sec. 44. The election of the widow to take under the will, under the will. shall be made by her in person, in the Probate Court of the

proper county, except as hereinafter provided; and on the application by her to take under the will

, it shall be the duty of the Court to explain to her the provisions of the will, her rights under it, and by law, in the event of her refusal to take under the will. The election of the widow to take under the will shall be entered upon the minutes of the Court, and if the widow shall 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 under the will, she shall be barred of her dower and take under the will alone; Provided, that said election by the widow to take under the will, shall not bar her of the right to remain in the mansion of her husband, and receive one year's allowance for the support of herself and children, as now provided by law, unless the will shall expressly otherwise direct.

Sec. 45. If the widow of the testator shall be unable to

appear in court, by reason of ill health, or is not a resident of bility or non

Commission may be issued in case of ina.

the county in which said election is required to be made, it shall be the duty of the Probate Court, on an application made in her behalf, to issue a commission, with a copy of the will annexed, directed to any suitable person, to take the election of said widow, to accept the provisions of said will in lieu of the provision made for her by law; and it shall be the duty of the court in said commission, to direct such person to explain to said widow her rights under the will, and by law.

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Sec. 46. If the widow of any testator shall be unable to Insane or imbe

cile widows. make an election by reason of insanity or imbecility of mind, it shall be the duty of the Probate Court, so soon as the facts shall come to the knowledge of the court, at any time within one year after the death of the testator, to appoint some suitable person to ascertain the value of the provision made by the testator for her in his will, in lieu of the provisions made by law, and the value of her rights by law in the estate of her husband; and if the court shall be satisfied, on the coming in of the report of the person appointed to make such investigation, that the provision made by the testator for his widow, as aforesaid, in his will, is more valuable and better for her than the provision by law, said court shall enter upon its minute book, an election for said insane or imbecile widow, that she, by virtue of the proceeding herein provided for by the court, elects to take under the will of her husband, which election, when so made, shall have the same force and effect as provided in section forty-four.

SEC. 47. That the several Courts of Probate within this When a will is State, shall have full power and authority to admit to pro-destroyed. bate, any last will and testament which such court may be satisfied was duly executed according to the provisions of the act upon that subject, in force at the time of the execution of such last will and testament, and not revoked at the death of the testator, where such original will has been lost, spoliated, or destroyed, subsequently to the death of such testator, and cannot be produced in court in as full, ample, and complete a manner, as such courts now admit to probate last wills and testaments, the originals of which are actually produced in court for probate. Sec. 48.

In all cases where application shall be hereafter Same subject. made to the probate court, to admit to probate a will duly executed as aforesaid, and which has been lost, spoliated, or destroyed, as aforesaid, it shall be the duty of the party seeking to prove the same, to give a written notice to all persons whose interest it may be to resist the probate, and who reside in the county where the testator resided at the time of his death, or to their agent or attorney, five days before the day on which such proof is to be made, or to give notice, by publication in a newspaper printed in the county, thirty days before the day set for hearing such proof.

Sec. 49. In all such cases, the said court shall cause the Same subject. witnesses to such will so executed and lost, spoliated or destroyed, and not revoked, and such other witnesses as any person interested in having such will admitted to probate, may desire, to come before such court, and said witnesses shall be examined by said probate judge, and their testimony reduced to writing, and filed by him in his court; Provided, that in all cases where it may be necessary so to do, in conse

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quence of witnesses residing out of the jurisdiction of said court, or who reside within such jurisdiction and who are infirm or unable to attend court, the court may order the testimony of such witnesses to be taken and reduced to writing by some competent person, which testimony shall also be filed in such probate court.

Sec. 50. If the court, upon such proof, shall be satisfied that such last will and testament was duly executed in the mode provided by the law in force at the time of its execution, that the contents thereof are substantially proven, and that the same was unrevoked at the death of the testator, and has been lost, spoliated or destroyed, subsequently to the death of such testator, such court shall find and establish the contents of such will, as near as the same can be ascertained, and cause the same, and the testimony taken in the case, to be

recorded in said court. ame subject. Sec. 51. The contents of any such last will and testament

so found, established, and admitted to probate, as aforesaid, shall be as effectual to pass real and personal estate, and for all other purposes, as if the original will had been admitted to probate and record, according to the provisions of this act; and such wills shall, in all respects, be governed by the laws in force relating to other wills, not only as relates to the contest of the same, but in all other matters.

Sec. 52. The title of any bona fide purchaser, without nowledge of a knowledge of a will, to any land situated in this state, de

rived from the heir or heirs of any person not a resident of this State at the time of his or her death, shall not be defeated by the production of the will of such decedent, unless such will shall be offered for record in this State, within four years from the final probate and establishment of such will, in the State or territory in which it may have been admitted to probate; Provided, that the rights of infants, married women, or persons of insane mind and memory, shall not be concluded by any delay or failure to record such will in this State, until two years after their respective disabilities are removed; Provided, further, that no proceeding shall be had in this State, to contest a will executed and proved according to the law of any State or territory of the United States, or of any foreign country, relative to property in this State; but if the said will shall be set aside in the State, territory or country in which it is executed and proved, the same shall be held of no validity in this State, as to all persons claiming under said will, with notice of the same being set aside as aforesaid; and as to all other persons, from the time that an authenticated copy of the final order or decree setting the same aside, is filed in the office of the Probate Judge of the county in which

said will is recorded. Life bequests. Sec. 53. When lands, tenements, or hereditaments are




given by will, to any person for his life, and after his death to his heirs in fee, or by words to that effect, the conveyance shall be construed to vest an estate for life only, in such first taker, and a remainder in fee simple in his heirs.

Sec. 54. Any estate, right or interest, in lands or personal Property estate, or other property acquired by the testator after the to making making of his will, shall pass thereby, in like manner, as if held or passed [possessed) at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.

Sec. 55. Every devise of lands, tenements, or heredita. Constructic ments, in any will hereafter made, shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.

Sec. 56. When a devise of real or personal estate is made Whenea de to any child or other relative of the testator, if such child or sue, other relative shall die, leaving issue surviving the testator, such issue shall take the estate devised, in the same manner as the devisee would have done if he had survived the testa. tor, unless a different disposition shall be made or required by the will.

Sec. 57. When any part of the real estate of a testator Undevised shall descend to his heirs, by reason of its not being devised applied in or disposed of by his will, and his personal estate shall be in-dent of sufficient for the payment of his debts, the undevised real estate shall be first chargeable with the debts, in exoneration, as far as it will

go, of the real estate that is devised, unless it shall appear from the will, that a different arrangement of his assets, for the payment of his debts, was made by the testator; in which case they shall be applied for that purpose in consormity with the provisions of the will.

Sec. 58. When any estate, real or personal, that is de. Derisees to vised, shall be taken from the devisee for the payment of the tionatest debts of the testator, all the other devisees and legatees shall debts, fc. contribute their respective proportions of the loss to the person from whom the estate is taken, so as to make the loss fall equally on all the devisees and legatees, according to the value of the property received by each of them, excepting all as provided in the following section.

Sec. 59. If, in such case, the testator shall, by making a Except ins specific devise or bequest, have virtually exempted any devi- vise or beq see or legatee from his liability to contribute, with the others, for the payment of the debts, or if he shall, by any other provision in the will, have prescribed or required any appropriation of his estate, for the payment of his debts, different from that prescribed in the preceding section, the estate shall be appropriated and applied in conformity with the provisions of the will.




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Sec. 60. Nothing contained in the two preceding sections, he debts.“ shall impair, or in any way affect, the liability of the whole es

tate of ihe testator, for the payment of his debts; but the pro- . visions of these sections shall apply only to the marshaling of the assets as between those who hold or claim under the will.

Sec. 61. When any part of the estate of the testator defc. scends to a child born after the execution of the will, or to a

child absent and reported to be dead, (under the forty-first section of this act.) or to a witness to a will who is a devisee or a legatee, (under the eleventh section of this act,) such estate (and the advancement made to such child or witness,) shall, for all the purposes mentioned in the three preceding sections, be considered as if it had been devised to such child or witness; and he shall accordingly be bound to contribute with the devi. sees and legatees, as before provided, and shall be entitled to claim contribution from them accordingly.

Sec. 62. When any of the persons who are liable to conother devi: tribute towards the discharge of such debt, according to the

provisions contained in the four preceding sections, shall be insolvent or unable to pay his just proportion thereof, the others shall be severally liable to each other, for the loss occasioned by such insolvency, each one in proportion to the value of the property received by him, from the estate of the deceased; and if any one of the persons so liable shall die, without hav. ing paid his proportion of such debt, his executors and administrators shall be liable therefor, in like manner as if it had been his proper debt, to the extent to which he should have been liable if living

Sec. 63. All cases arising under this act, in which devisees s required, or legatees may be required to contribute to make up the share be tried,

of any child born after the execution of the will, or of a child absent and reported to be dead, or of a witness to the will, or in which contribution is to be made among devisees, lega. tees and heirs, or any of them, may be heard and determined by bill, filed upon the chancery side of the court of common pleas, allowing an appeal to the district court, as in other

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Sec. 64. Nothing in the foregoing sections contained, shall shall be prevent the court, when a sale of lands aliened or unaliened

by a devisee or heir, is ordered for the payment of the debts of the estate, to make such order and decree for the sale of any portion of the aliened or unaliened land, as may be equitable between the several parties, and also to make such order of contribution, and such further order and decree as will fully settle and adjust the various rights and liabilities of the parties, which arise by reason of the alienation, or the order of sale, or otherwise.

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