1792. How wills may be proved by witneffes refiding out of the common. wealth. Copies of wills proved recorded in the courts The validity thereof may be contested as the originals might have been. The executors named bat. And administration 162 IN THE SEVENTEENTH YEAR OF THE COMMONWEALTH. femes covert, and perfons abfent from the state, or non compos mentis, the like pe-` riod after the removal of their respective disabilities. a XII. IN all fuch trials by Jury, the certificate of the oath of the witneffes at the time of the first probat, fhall be admitted as evidence, to have fuch weight as the Jury fhall think it deferves. b XIII. IT thall be lawful for any Court when any will shall be produced to them for probat, and any witness attesting the same shall refide out of the Commonwealth, to iffue a commiffion or commiffions annexed to fuch will, and di-' rected to the prefiding Judge of any Court of Law, or to any Notary Public, Mayor, or other Chief Magiftrate of any City, Town, Corporation, or Coun ty, where fuch witnefs may be found, authorising the taking and certifying his atteftation. If the perfon to whom any fuch commiffion fhall be directed, shall certify in the manner fuch acts are usually authenticated by him, that the witnefs perfonally appeared before him and made oath, or folemn affirmation (as, the cafe may require) that the Teftator figned and published the writing annexed to fuch commiffion as his laft will and teftament, or that fome other perfon figned it by his direction, that he was of difpofing mind and memory, and that he fubfcribed his name thereto in the prefence of the Teftator, and at his request, fuch oath or affirmation fhall have the fame operation, and the will be recorded in like manner, as if such oath or affirmation had been made in the Court from whence fuch commiffion issued. c XIV. AUTHENTICATED copies of wills proved according to the Laws of any of the United States, or of Countries without the limits of the fame, and relative to any eftate within this Commonwealth, may be offered for probat in the General Court; or where the efiate fo devifed fhall lie altogether in any one County or Diftrict, the Court of fuch County or District refpectively may admit to record any fuch authenticated copies, but the bond and oath of the executor or adminiftrator, with the will annexed, fhall be changed from the bond and oath required by Law in other cafes, in fuch manner as to the laid Court fhall feem neceffary, and the proof to be made by the witneffes fhall be conformed to the nature of the cafe. But fuch will fhall be liable to be contested and controverted in the fame manner as the original might have been. XV. ALL perfons named as executors in any fuch will, fhall, after the copy therein entitled to pro- thereof has been admitted to record as above directed, be entitled to a probat of the faid will, in the fame manner as if the original will had been proved in fuch Court. And where there fhall be no exccutors named in the faid will, or the executors therein named, shal all of them refuse the executorship, the Court fhall have the fame power and authority to hear and determine the right of administration, and to grant a certificate for obtaining letters of administration, with the will annexed, as if the original will had been proved in Court. e granted where there are none, or they refufe to qualify. When nuncupative wills Any perfon poffeffed of another's will may be compelled to produce it. Where executors refufe, administration with the will annexed fhall be ranted. Executors and admini itrators fhall be worn. Oath of an executor of XVI. NO nuncupative will shall be proved within fourteen days after the death of the Teftator, nor until his widow (if any) and next of kin, have been fummoned to conteft the fame, if they please. ƒ XVII. IF the General Court, or any District, County, or Corporation Court, having jurifdiction as aforefaid, fhall be informed that any perfon hath the will of a leftator in his cuftody, fuch Court may fummon such person, and by a proper procefs, compel him to produce the fame. f XVIII. IF the executors named in any will fhall all refufe the executorship, or being required to give fecurity as herein after mentioned, shall refuse or fail to give the fame, which fall amount to a refufal of the executor hip, in either cafe, the Court having jurifdiction as aforefaid, may receive the proof of the.. will, and grant a certificate for obtaining letters of adminiftration with the fame annexed, to the perfon to whom adminiftration would have been granted, if there had been no will of the deceased. ƒ XIX. BEFORE granting a certificate of the probat of any will, the execu. tor or administrator, with the will annexed (as the cafe may be) fhall in open Court take the following oath, to wit: YOU ball fwear that this writing contains the true laft will of the within named , as far as you know or believe; and that you will well and adminiftrator with the truly pe form the fame by paying first his debts, and then the legacies contained in the faid will, as far as his goods, chattels and credits will extend, and the Law will annexed. 22 Geo. 21, ch. 3, fec. 4. (b) 1795, cb 61, (e) 1757, ch. 21, (a) 185, ch. 61, fec. 11. 1. Of the Court of Fastings for each Cooperation c. 207.5.02. of the provision of this section mandatory, it seems sex scratic to interpret !i! as that the claim of the residuary begater to the Administration should prevail. 2 Fuc's Black: 505. What a refusal, and it, effect, &c Comy n'. It. Administration. 8.020. In a suit on the Bond, the Declaration should show that the 23. The provisions of the action ought not to ought not to the consérie IN THE SEVENTEENTH YEAR OF THE COMMONWEALTH. 163 charge you; and that you will make a true and perfect inventory of all the faid goo is, chattels and credits, as alfo a just account when thereto required. And shall alfo give bond, in fuch penalty, as will be equal to the full value of the eftate at the least, and with fuch fecurity as fhall be approved of by the Court, with the following condition, to wit: THE condition of this obligation is, that if the faid executor of Bond. the laft will and teftament, (or adminiftrator with the will annexed, of allibe goods, chattels and credits) of , deceased, do make a true and perfect inven ory of all and fingular, the goods, chattels and credits of the faid de-. coafed, which have, or hall come to the bands, poffeffion, or knowledge of the faid Court of fon or perfons for or into the bands or poffeffion of other pere Jhall be thereto. required by the Jaid Court, and the fame goods chattels, and credits, do well and truv adminifter according to Lar and make a juft and true account of alings and doings therein, when the eunto required by the faid Court; and further, void m elfe to remain in full force. (a) 1792. XX. WHICH bond shall be payable to the Judges or Juftices fitting in The whole penalty e Court, and their fucceffors, and shall not become void upon the first recovery, coverable therçon. but may be put in fuit and profecuted from time to time, by and at the costs of any party injured by a breach thereof, until the whole penalty be recovered thereupon. a XXI. BUT where any Teftator fhall leave vifible eftate, more than fuffici- When executors fhall ent to pay all his debts, and by will shall direct that his executors shall not be not be obliged to give obliged to give fecurity, in that cafe no fecurity shall be required, unless the fecurity. Court shall fee caufe from their own knowledge, or the fuggeftions of creditors or legatees, to fufpect the executors of fraud, or that the Teftator's personal ef tate will not be fufficient to difcharge all his debts, and shall require fecurity, when the fame shall be given, before a certificate shall be granted, notwithftanding any directions to the contrary in the Teftator's will. a XXII. THE power of executors over their Teftator's eftates before probat of the will, is not hereby reftrained, but shall continue as heretofore, a XXIII. DURING any conteft about a will, or during the infancy, or in the abfence of an executor, or until a will which may have once exifted, but is dekroyed, shall be eftablished, or whenever the Court from any other caufe shall judge it convenient, they may appoint any perfon or perfons to collect and preferve the estate of any decedent, until a probat of his will, or durante minore atate, or until administration of his eftate be granted, taking bond and fecurity for collecting the eftate, making an inventory thereof, and fafe keeping and delivering up the fame when required, to the executors or adminiftrators. a XXIV. THE bond and oath of the adminiftrator or appointee in fuch cafes, fhall be changed from the bond and oath of an adminiftrator in ordinary cafes, in fuch manner as to the faid Courts, or any of them, fhall feem neceffary. a XXV. WHEN any widow fhall not be fatisfied with the provifion made for her by the will of her hufbind, the may within one year from the time of his death, before the General Court, or Court having jurifdiction of the probat of his will as aforefaid, or by deed executed in the presence of two or more credible witneffes, declare that the will not take or accept the provifion made for her by fuch will, or any part thereof, and renounce all benefit which the might claim by the fame will; and thereupon fuch widow fhall be entitled to one third part of the flaves whereof her husband died poffeffe, which the fhall hold during her life, and at her death they and their increafe, fhall go to fuch perfon or perfons, to whom they would have paffed and gone, if fuch declaration had not been made; and the fhall moreover be entitled to fuch fhare of his other perfonal eftate, as if he had died inteftate, to hold to her as her abfolute property; but every widow not making a declaration within the time aforefaid, hall have no more of her husband's flaves and perfonal estate, than is given her by his will. a XXVI. ALL original wills fhall be recorded, and shall alfo remain in the Clerk's office of the Court wherein they are refpectively proved, except during fuch time as they may be in any Superior Court, naving been removed thither for infpection by certiorari, or otherwife, after which they fhall be returned to the faid Office, a (a) 1785, ch. 61, see, 16, 17, 18, 19, 20, 21, 24. Their power before prag bat. In what cafes the court fhall appoint a perfon to collect and preferve a decedent's estate. Widow not fatisfied with the provifion made for her by her husband's will, may renounce her dower of the flaves and legacy and demand her her proportion of the perfonal estate. Original wills to be reg corded and remain in the clerk's office, 2 Wills may be proved XXVII. WHEN any perfon fhall die inteftate as to his goods and chattels, or any part thereof, after funeral debts and juft expenfes paid, if there be no child, one moiety, or, if there be a child or children, one third of the furplus fhall go to the wife, but the fhall have no more than the ufe for her life of fuch flaves as shall be in her share, and the refidue of the furplus, and after the wife's death, the flaves in her share, or, if there be no wife, then the whole of such fur. plus thall be diftributed in the fame proportions, and to the fame perfons, as lands are directed to defcend in and by an Act of the General Affembly, intituled, “An A&t to reduce into one, the feveral Acts directing the course of defcents." Nothing in this Act contained, shall be understood fo as to compel the husband to make diftribution of the perfonal eftate of his wife dying inteftate Where any children of the inteftate, or their iffue, fhall have received from the inteftate in his lifetime, any personal estate by way of advancement, and shall choose to come into the diftribution with the other perfons entitled, fuch advancement shall be brought into hotchpot with the diftributable furplus. a XXVIII. THE General Court, and the feveral Courts refpectively, shall have the like jurifdiction to hear and determine the right of administration of the estates of perfons dying inteflate, as is herein before mentioned, as to the proof of wills, in refpect to the inteftate's place of refidence, or death, or where the eftate shall lie, and shall grant certificates for obtaining fuch adminiftration, to the reprefentatives who apply for the fame; preferring firft the hufband or wife, and then fuch others as are next entitled to diftribution, or one, or more of them, as the Court shall judge will beft manage and improve the eftate, a XXIX. IF no fuch perfon applies for adminiftration within thirty days from the death of an inteftate, or at the next fucceeding Court after the expiration thereof, the Court may grant administration to any creditor or creditors who apply for the fame, or to any other perfon the Court shall, in their discretion, think fit. a XXX. BUT if any will shall afterwards be produced, and proved by Executors, or the wife, or other diftributee, who shall not have before refused, shall Diftributee may obtain apply for the adminiftration, the fame shall be granted, in like manner as if after adminiftration granted. administration although it may have been previsufly granted to a crediters other perfon. Administrators' oath. Bond. the former had not been obtained. a XXXI. BEFORE granting a certificate for the administration of any eftate, the perfon or perfons to whom the fame is granted, shall, in open Court, take the following oath, to wit: YOU ball fwear ibat deceased, died without any will, as far as you know or believe, and tha' you will well and truly adminifte all and fingular ibe good., chattel, and credits of the faid deceased, and pay his debts, as far as his goods, chattel, and credits will extend and the Law require you; and that you make a true and perfect Inventory of all the faid goods, chat ets, and credits, as alfo a just account when thereun o required. So help you GOD.(a) XXXII. AND shall alfo give bond, in a penalty at leaft equal to the value of the eftate, and with fuch fecurity as shall be approved by the Court, with the following condition, to wit: THE condition of this obliga ion is, That if the faid admi , deceased, do make a true and perfed inventory of all and fingular the goods, chattels, and cre the faid Court, or in the bands or › and the fame fo when he shall be thereto required by the faid Court i and fuch goods, chattels, and credits, do well and truly auminifter, according to Law; and further do make a juft and true account of bis actings and doings therein, when thereto required by the faid Court; and all the rest of the faid goods, chattels and credits, wh ch ball be found remaining upon the account of the faid adminiftrator the fame being first examined and allowed by the Juflices of the faid Court for the time being foull deliver and pay unto fuch perfons, respectively, as are entitled to the jame by Law; and if it fall bereafter appear, that any laft will and teftament was made by the deceased, and the fame be proved in Lourt, and the executor obtain a certificate of the probat thereof, and the faid do, in fuch cafe, being required, render and deliver up his letters of administration, then this obligation to be void, elje to remain in full force. Which bond fhall be payable to the fitting Juftices, and their fucceffors, and may (a) 1,85, ch. 61, fec. 25, 26, 27, 28. |