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and being lawfully seized of any lands, tenements or hereditaments, in his own right, in fee simple, fee tail, or for the life of any other person, or for any other term of time than his own life, shall have a right to give, devise and dispose of the same, by last will or testament, in writing, to and among his children, or others, as he shall think fit; and he may also devise any lands, tenements or hereditaments, acquired subsequently to the execution of his will, provided his intention to devise the same appears by the express terms of his will: provided, that no person seized in fee simple shall have a right to devise any estate in fee tail for a longer time than to the children of the first devisee; and a devise for life to any person and to the children or issue generally of such devisee, in fee simple, shall not vest a fee tail estate in the first devisee, but an estate for life only; and the remainder shall, on his decease, vest in his children or issue generally, agreeably to the direction in such will.
SEC. 2. All devises and bequests of any lands, tenements or hereditaments, shall be in writing, and signed by the party so devising the same, or by some person in his presence and by his express direction; and shall be attested and subscribed in the presence of the devisor, by three or more witnesses, or else shall be utterly void and of no effect.
SEC. 3. No devise or bequest in writing of any lands, tenements or hereditaments, or any clause thereof, shall be revocable otherwise than by a marriage of the testator subsequent to the date thereof, or by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same, by the testator himself, or in his presence and by his direction and consent; but all devises of lands and tenements shall remain and continue in full force until the same be burned, cancelled, torn or obliterated by the testator, or by his direction, in manner aforesaid; or unless the same be altered by some other will or codicil or other writing of the devisor, signed in the presence of three or more witnesses, declaring such alteration.
SEC. 4. Every person being upwards of eighteen years of age, and of sane mind, shall have a right to give and dispose of all his goods, chattels and other personal estate, of every kind, by last will and testament, in writing, in the same manner as he is authorized by this act, if upwards of twenty-one years of age, to dispose of real estate: provided, however, that no married woman shall make any last will and testament except of that or some portion of the personal estate secured to her by the act concerning the property of married women ·
and no will or testament of any goods or chattels or other personal estate shall be valid and effectual to convey the same, unless such will or testament shall be in writing, and signed and executed in the manner prescribed in this act for the execution of wills of real estate; nor shall any will of goods, chattels or other personal estate of any kind be revocable, in any other manner than is herein before prescribed for the revocation of wills or testaments of real estate: provided, nevertheless, that any soldier in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate by will, as he might heretofore have done; any thing in this act to the contrary notwithstanding.
SEC. 5. The widow of any testator in whose will provision is made for said widow in lieu of her dower, shall, in case of her non-acceptance of that provision, signify the same in writing to the court of probate, within one year from the probate of the will.
SEC. 6. When any child shall be born after the execution of his father's or mother's will, without having any provision made for him in such will, he shall have a right and interest in the estate of his father or mother, in like manner as if the father or mother had died intestate, and the same shall be assigned to him accordingly.
SEC. 7. All such estate, real or personal, as is not devised or bequeathed in the last will and testament of any person, hereafter to be proved, shall be distributed in the same manner as if it were an intestate estate.
SEC. 8. When any child, grandchild or other person having a devise or bequest of real or personal estate, shall die before the testator, leaving a lineal descendant, such descendant shall take the estate, real or personal, as devisee or legatee, in the same way and manner as such devisee would have done in case he had survived the testator.
SEC. 9. If any person hath attested or shall attest the execution of any will or codicil, to whom any beneficial devise, legacy, estate, gift, or appointment of, or affecting any real or personal estate, other than and except charges on lands, tenements, or hereditaments, for the payment of any debts, shall be thereby given or made, such devise, legacy, estate, interest, gift or appointment, shall, so far only as concerns such person attesting the execution of such will or codicil, or any person claiming under him, be utterly void; and such person shall be admitted as a witness to the execution of such will or codicil, such devise, legacy, estate, interest, gift or apportionment, notwithstanding.
SEC. 10. In case, by any will or codicil already made, or hereafter to be made, any lands, tenements or hereditaments are or shall be charged with any debt, and any creditor whose debt is so charged hath attested or shall attest the execution of such will or codicil, every such creditor, notwithstanding such charge, shall be admitted as a witness to the execution of such will or codicil.
SEC. 11. In case any devisee or legatee as aforesaid, who hath attested the execution of any will or codicil already made, or who shall attest the execution of any which shall hereafter be made, shall die in the life time of the testator, or before the probate of such will, such devisee or legatee shall be deemed to have been a legal witness to the execution of such will or codicil, within the intent of this act, notwithstanding such legacy or bequest.
SEC. 12. If any executor of the will of any person deceased, knowing of his being so named and appointed, shall not, within thirty days next after the decease of the testator, cause such will to be proved and recorded in the clerk of probate's office of the same town where the deceased person last dwelt, or present the said will, and in writing declare his refusal, every executor so neglecting his trust and duty in that behalf (without just excuse made and accepted by the court of probate for such delay,) shall forfeit the sum of ten dollars a month from and after the expiration of the said thirty days, until he shall cause probate of such will to be made, or present the same as aforesaid; every such forfeiture to be recovered by action of debt, in any court of competent jurisdiction in the same county; one moiety for him who shall sue for the same, and the other moiety for the use of the legatees named in the said will.
SEC. 13. Upon the neglect or refusal of the executor named in any will to present the same for probate, the court of probate shall commit administration of the estate of the deceased to one or more of the devisees or legatees, or in case of their refusal, to one or more of the principal creditors, or to such other person as they shall think fit, being an inhabitant of the state.
SEC. 14. If any person shall alienate or embezzle any of the goods, chattels or other personal estate of any deceased person, before he shall have taken out letters of administration, and exhibited a true inventory of all the known estate of the person deceased, every such person shall stand chargeable and be liable to the creditors and other persons aggrieved, as being an executor in his own wrong.
SEC. 15. Every executor named in a will hereafter to be proved, and taking upon him that trust by proving the same, shall give bond to the court of probate with sufficient surety or sureties, to return upon oath a true and perfect inventory of the testator's goods, chattels, rights and credits, unto the court of probate within three months, and to render an account of his proceedings thereon, in the same manner as administrators are by law obliged to be bounden; unless such executor is the residuary legatee, in which case bond may be given by him to pay the debts and legacies of the testator.
SEC. 16. In case such executor shall neglect or refuse for the space of twenty days to give bond as aforesaid, the court of probate may commit administration of the estate of such testator, with the will annexed, to some other person, in like manner as they may grant the same when the executor refuses the trust, or neglects or refuses to present the will for probate.
SEC. 17. When the executor is under the age of twentyone years at the time of proving the will, administration may be granted with the will annexed during the minority of such executor, to an inhabitant of this state as aforesaid; and when there are divers persons named executors in any will hereafter to be proved, none shall intermeddle and act as such but those who actually give bond as aforesaid.
SEC. 18. Any executor being a residuary legatee, may bring an action of account against his co-executor or executors of the estate of the testator, in his or their hands, and may also sue for and recover his proportionable part thereof; and any other residuary legatee shall have the like remedy against the executors; and any person having a legacy given in any last will, may sue for and recover the same at the common law.
SEC. 19. When any executor of any last will and testament shall reside without the limits of this state at the time of his taking upon him that trust, or shall afterwards remove out of this state and shall neglect or refuse, after due notice from the court of probate, to render his account and make a settlement of such estate with the creditors, legatees or heirs, or their legal representatives; or when any executor or administrator shall become insane, or otherwise incapable of, or evidently unsuitable to, discharge the trust reposed in him, the court of probate that proved the will or granted letters of administration are authorized and empowered, in such cases, to grant letters of administration with the will annexed, (or otherwise, as the case may require,) to such person within this
state as to the said court shall seem meet; and the administrator thus appointed shall have the same power and authority to administer the estate of the deceased not administered upon by such former executor or administrator, and be subjected to the same duties, in as full and ample a manner as if the executor or administrator so removed or residing without this state as aforesaid were actually dead.
SEC. 20. When any unmarried woman shall jointly with one or more persons be appointed executrix or administratrix and after such appointment shall marry, during the life of the other executor or administrator, such marriage shall not make the husband an executor or administrator in her right, but shall operate as an extinguishment or determination of such woman's power and authority; and the other executor or executors, administrator or administrators, may proceed in discharging the trust reposed in them in the same way and manner as if such woman were dead.
SEC. 21. When any unmarried woman, executrix or administratrix shall marry, such marriage shall not make her husband an executor or administrator in her right, but shall operate as an extinguishment of such woman's power; and the court of probate shall thereupon grant administration upon the unadministered part of the estate to such husband or to any other suitable person; who may prosecute or defend any suit which may have been commenced by or against the first executrix or administratrix, in the same manner and to the same purpose and effect as she might have prosecuted or defended the same if her trust had continued.
SEC. 22. If any testator shall appoint more than one executor of his will and some of them do not accept the trust, or having accepted thereof, shall die, those who shall undertake to execute the will, and the survivors of them, shall have the same power and authority as is given by such will to the whole of them, to every intent and purpose whatsoever.
SEC. 23. The administrator with the will annexed who shall be appointed by the court of probate, shall have the same power to sell and convey real estate as may be given by such will, or by law, to the executor or executors thereof.
SEC. 24. The appointment of a debtor an executor shall in no case be deemed an extinguishment of the debt, unless it be so directed in the will.
SEC. 25. In case of the decease of any person who, while living, and at the time of his decease, was the executor of the last will and testament of any person previously deceased, and whose estate had not been fully administered upon by such