TITLE 2 person, the application which may have been made of any personal estate, and an account of the debts and demands existing against such estate.99 Proceedings Reference to master or clerk. $ 12. On the presenting of such petition, it shall be referred to a thereon. master in chancery, or to the clerk of the court, to enquire into and report upon the matters therein contained; whose duty it shall be to examine into the truth of the representations made, to hear all parties interested in such real estate, and to report thereon with all convenient speed. Ib. Order to be made on report. $ 13. If, upon the coming in of the report, and an examination of coming in of the matter, it shall appear to the court, that the personal estate of the idiot, or other person above specified, is not sufficient for the payment of his debts, and that the same has been applied to that purpose, as far as the circumstances of the case rendered proper, an order shall be entered, directing the mortgage, leasing, or sale of the whole, or such part, of the said real estate, as may be necessary to discharge the said debts, 100 Additional $ 14. The court may require any additional security to be given security may by any such committee, for the faithful application and accounting for the proceeds of such mortgage, lease or sale; and may require an account thereof to be rendered, from time to time. Payment of debts. Like application for sup &c. or family. $15. In the application of any monies raised by any such mortgage, lease or sale, the committee shall pay all debts in an equal proportion, without giving any preference to such as are founded on sealed instruments. $ 16. When the personal property, and the rents, profits and inport of idiot, come of the real estate of any such idiot, lunatic, or other person my of his above specified, shall be insufficient for his maintenance, or that of his family, or for the education of his children, a similar application may be made by the committee to the chancellor, or to the court having jurisdiction, for authority to mortgage or sell the whole, or so much of the real estate, as shall be necessary for that purpose; upon which, the same reference and proceedings shall be had, and a like order shall be entered, as herein before directed. 100 Ib. Court to give direction as to proceeds. Sales under direction of court; conveyances. $ 17. In the case last mentioned, the court shall direct the manner in which the proceeds of such sale shall be secured, and the income or produce thereof appropriated.100 $18. The court shall give such orders respecting the time and manner of any sale herein authorised, as shall be deemed proper; and no conveyancee in pursuance of any such sale shall be executed, until the sale shall have been reported on the oath of the committee, and confirmed by the court directing the same. 100 (99) 1 R. L. 147, § 3. (100) Ib. § 3. committee when party is &c. $ 19. Whenever any such idiot, lunatic, or other person above TITLE 2. specified, shall be seized or possessed of any real estate by way of Petition by mortgage, or as a trustee for others in any manner, his committee may order to apply to the court of chancery, for authority to convey and assure convey, &c. such real estate to any other person or persons entitled to such con- mortgagee, veyance or assurance, in such manner as the said court shall direct; upon which, a reference, and the like proceedings shall be had, as in the case of an application to sell real estate as aforesaid; and the court, upon hearing all the parties interested, may order such conveyance or assurance to be made.101 by party en $20. On the application of any person entitled to such convey- Like petition ance or assurance, by bill or petition, the committee may be compelled titled to conby the court of chancery, on a hearing of all parties interested, to execute such conveyance or assurance. 101 veyance. veyances, under this $21. Every conveyance, mortgage, lease and assurance, made un- Effect of conder the order of the court of chancery, or of any court, pursuant to &c. executed the provisions of this Title, shall be as valid and effectual, as if the Title. same had been executed by such idiot, lunatic, or other person above specified, when of sound memory and understanding. 101 formance creed. $22. The court of chancery shall have authority to decree and Specific percompel the specific performance of any bargain, contract or agree- may be dement, which may have been made by any lunatic or other person, specified in the first section of this Title, while such lunatic or other person, was capable to contract; and to direct the committee of such person, to do and execute all necessary conveyances and acts for that purpose. 102 " of leases, &c. Title. $23. The real estate of any idiot, lunatic, person of unsound mind, Limitation of or person incapable of conducting his affairs in consequence of habitual under this drunkenness, shall not be leased for more than five years, or mortgaged, or aliened or disposed of, otherwise than is herein directed. 103 $ 24. In case any lunatic, or other such person, shall be restored Estate when to his right mind, and become capable of conducting his affairs, his stored. real and personal estate shall be restored to him.108 to be re disposed of party. $25. In case of the death of any idiot, lunatic, person of unsound Estate how mind, or person incapable of conducting his affairs, during such state on death of of incapacity, the power of any trustees appointed under this Title shall cease, and his real estate shall descend to his heirs, and his personal estate be distributed among his next of kin, in the same manner as if he had been of sound mind and memory. 103 (101) Laws of 1817, p. 23, § 1. (102) 1 R. L. 148, § 5. (103) Ib. § 6. TITLE 1. CHAP. VI. Of Wills and Testaments; of the Distribution of the Estates of Intestates; and of the Rights, Powers, and Duties of Executors and Administrators. TITLE 1. Of wills and testaments of real and personal property, and the TITLE 2.-Of granting letters testamentary and of administration. TITLE 5. Of the rights and liabilities of executors and administrators. Who may devise. TITLE I. OF WILLS AND TESTAMENTS OF REAL AND PERSONAL PROPERTY, ART. 1. Of wills of real property, and the proof of them. ART. 2. Of wills of personal property, and the probate of them. ART. 3.-General provisions applicable to wills of real and personal property.. ARTICLE FIRST. Of Wills of Real Property, and the Proof of them. SEC. 1. All persons except idiots, &c. may devise real estate. 2. Every interest in real property descendable to heirs, may be devised. 3. To whom devises may be made; devises to corporations when valid. 4. Devises to certain aliens void; who to take the interest devised to them. 5. Wills of real estate, when to pass all testator's estate. 6. Creditor competent witness to prove will. 7. Executor, &c. may have will proved before surrogate. 8. Notice of intention to prove will to be given to heirs, and for what time. 9. If heirs be minors, notice to be served on their guardians. 10. Subpœnas for witnesses; clause may be added requiring production of papers. 11. Proceedings for disobedience to subpœna, or not producing will. 12. Upon proof of service of notice, surrogate to take proof of will, and how. 14. When will and proofs to be recorded; record to be signed and certified. 16. If all the witnesses are dead, &c. surrogate may take other proof. 17. Proofs, &c. under last section, how to be disposed of. 18. Such proofs when to be received in evidence, and their effect. 19. Witnesses' fees same as in personal action; by whom to be paid. 20. Records of certain wills, proved before 1785, when received in evidence. SECTION 1. All persons, except idiots, persons of unsound mind, married women, and infants, may devise their real estate, by a last will and testament, duly executed according to the provisions of this ART. 1. Title.1 $2. Every estate and interest in real property descendible to heirs, may be so devised.1 What may be devised. ake by de $3. Such devise may be made to every person capable by law of Who may holding real estate; but no devise to a corporation shall be valid, un- vise. less such corporation be expressly authorised by its charter, or by statute, to take by devise.1 aliens. 34. Every devise of any interest in real property, to a person Devises to who, at the time of the death of the testator, shall be an alien, not authorised by statute to hold real estate, shall be void. The interest so devised, shall descend to the heirs of the testator; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there be, competent to take such interest. estate how 35. Every will that shall be made by a testator, in express terms, Wills of real of all his real estate, or in any other terms denoting his intent to de- construed. vise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death. competent 36. If by any will, any real estate be charged with any debt, and Creditor the creditor whose debt is so charged, shall attest the execution there- witness. of, such creditor, notwithstanding such charge, shall be admitted as a competent witness, to prove the execution of such will.2 &c. may before surro $7. When any real estate shall be devised by will, any executor Executor, or devisee named therein, and any person interested in such estate, prove will may have such will proved, before the surrogate of the county, to gate." whom the probate of the will of the testator would belong, in respect to personal property, under the second Article of this Title. $8. The person intending to apply for the proof of such will, shall Notice of in, give notice of his intention to the heirs of the testator, as follows: 1. To such heirs as reside in the county where such proof is intended to be taken, by serving such notice personally, at least fifteen days previous to such application: 2. To such heirs as do not reside in the county, but reside in the state, by serving the same personally, twenty days previously : 3. To such heirs as cannot be found in the state, and to such as do not reside therein, by serving such notice personally, twenty days previously, or by publishing it once in each week, for six weeks, in the state paper.3 tention to prove wills, &c. $9. If any of such heirs shall be minors, and have guardians, ser- If boirs mi vice of such notice shall be made upon such guardians, in the same how served. VOL. II: (1) 1 R. L. 364, § 1 & 5. (2) Ib. 367, § 13. (3) Ib. 365, § 6 to 9. nors, notice TITLE 1. manner, as prescribed in the last preceding section. If they shall have no guardians, the surrogate shall appoint guardians, to take care of their interests in the premises.1 Subpæna for witnesses, &c. Disobedience $10. Witnesses may be summoned by subpoenas, to be issued by the surrogate, at any time before the day specified in such notice, which may be served as in cases of personal actions: and a clause may be added to any such subpoena, commanding any person having the custody of, or power over, any such will, to produce the same before the said surrogate, for the purpose of being proved.1 $ 11. Disobedience to any such subpoena shall be proceeded against of subpoena. and punished, as in other cases of proceedings before surrogates. If any person be committed for not producing any will, he may be discharged, on producing the same to the surrogate who committed him, by an order for that purpose.* Surrogate when and proofs. $ 12. Upon proof being made of the due service of the notice of how to take such application, the surrogate shall cause the witnesses to be examined before him. All such proofs and examinations shall be reduced to writing. All the witnesses to such will who are living in this state, and of sound mind, shall be produced and examined: and the death, absence, or insanity of any of them, shall be satisfactorily shown to the surrogate taking such proof.* Proof of hand writing, &c. Will when to be recorded. Will and re to be evidence. S 13. When any one or more of the subscribing witnesses to such will shall be examined, and the other witnesses are dead, or reside out of the state, or are insane, then such proof shall be taken of the hand-writing of the testator, and of the witness or witnesses so dead, absent, or insane, and of such other circumstances, as would be sufficient to prove such will, on a trial at law.* S14. If it shall appear upon the proof taken, that such will was duly executed; that the testator, at the time of executing the same, was in all respects competent to devise real estate, and not under restraint, the said will and the proofs and examinations so taken, shall be recorded in a book to be provided by the surrogate, and the record thereof shall be signed and certified by him." S 15. Every will so proved, shall have a certificate of such proof cord thereof, endorsed thereon, signed by the surrogate and attested by his seal of office, and may be read in evidence without further proof thereof. The record of such will, made as aforesaid, and the exemplification of such record, by the surrogate in whose custody the same may be, shall be received in evidence, and shall be as effectual in all cases, as the original will would be, if produced and proved, and may, in like manner, be repelled by contrary proof.4 (4) 1R. L. 365, § 6 to 9. |