for. If any sick or infirm witness resides in the same county, it is the duty of the surrogate to proceed to the residence of the witness, and there take his examination. If such infirm witness resides in another county, the surrogate may order such witness to be examined by the surrogate of the county where the witness resides, and the evidence returned to his office. All the witnesses residing in the State must be examined.

7. When a part of the witnesses are dead, or have become incompetent, proof may be taken of the handwriting of the testator, or of such witnesses as are dead or incompetent. The surrogate makes a record of the evidence of the witnesses taken before him, which he signs and certifies. The evidence must be such as to satisfy the surrogate-1. That such will was duly executed; 2. That the testator, at the time of executing the same, was, in all respects, competent to make such will; 3. That he was not under any restraint. Every will so proved shall have a certificate of proof indorsed thereon, signed by the surrogate, and attested by his seal of office. The will is then recorded. The original will, or the record, or an exemplified copy of the record, may be read in evidence, without further proof. If all the witnesses are dead, or have become incompetent, the surrogate may take proof of the handwriting of the testator and the subscribing witnesses. The will must be deposited with him. If the lands are uninterruptedly held under such will for twenty years, such record may be read in evidence. The will, with the record of the proof thereof, should be recorded in

must be produced and examined? If any witness is absent? If any witness residing in the county is sick, or infirm, and unable to attend? If such infirm witness resides in another county in the State?

7. When a part of the witnesses are dead, or have become incompetent? What record does the surrogate make of the examination of the witnesses? Of what facts must the surrogate be satisfied by the evidence? If these facts are proved, what certificate is placed thereon? How attested? Is the will recorded? What may be read in evidence without further proof? If all the witnesses are dead, or have become incompetent, how is the will proved? Where must such will be deposited? If the lands are uninterruptedly held for twenty years under such

1

each county in which there is real estate affected by such will.

8. Where a will of personal property has been proved before the surrogate, he has the power to grant letters testamentary to the executors. The proof of a will, and the probate thereof, is conclusive, until such probate be reversed on appeal, or revoked by the surrogate, or declared void by a competent tribunal. Any of the next of kin may contest the probate, or validity of such will, at any time within one year. The party contesting the same must file, with the surrogate, his allegations, in writing, against the validity of the will, or the competency of the proof. The surrogate then issues citations to the executors and legatees, requiring them to appear before him, at a time specified, to show cause why the probate of such will should not be revoked. The executor must then suspend all action in relation to the estate, except the collection of moneys and payment of debts. At the time appointed for showing cause, the surrogate proceeds to hear the proof of the parties. If, upon such hearing, he shall decide that the will is invalid, or not sufficiently proved, he will annul and revoke the probate thereof. If otherwise, he will confirm the probate. An appeal may be taken from his decision. If the surrogate revokes the probate, he makes a record thereof, and gives immediate notice thereof to the executor. The powers of the executor cease on receiving such notice. He must account to the representatives of the deceased. He is not

will? Where is the will, with the record of the proof thereof, to be recorded, or a transcript thereof?

8. When a will of personal property has been proved before a surrogate, what letters does he grant? To whom? For what time is the proof of a will conclusive? Who may contest the probate or validity of such will? Within what time? What must the party contesting the will file with the surrogate? To whom will the surrogate then issue citations? What will he require them to do? What action must the executor suspend? At the time appointed for showing cause, what action does the surrogate take? If, upon such hearing, he shall decide that the will is invalid, or not sufficiently proved, what will he do? If otherwise? Can an appeal be taken from his decision? If the surrogate revokes the probate, to whom does he give notice? What effect is pro

liable for any act done in good faith, before service of the citations, or done in collection of moneys and payment of debts, previous to the notice of revocation. The party defeated on the appeal must pay the costs of contesting the will.

9. An appeal may be taken from the decision of the surrogate, in New York, to the general term of the Supreme Court within three months. If it appear to the Supreme Court that the decision of the surrogate was erroneous, the court will reverse such decision. When the witnesses to a will reside in another State, it may be proved upon a commission issued by the Supreme Court. If the facts, necessary to establish the validity of such will, shall appear on the proof so taken, the court will direct the examination and the will to be recorded in the office of the clerk of that court. Every will so proved has a certificate of such proof indorsed thereon, signed by the clerk, and attested by the seal of the court, and may then be read in evidence without further proof thereof. The decree of the court may be transmitted to the surrogate having jurisdiction, who may issue letters testamentary thereon. When a will has been lost, or destroyed by accident, the Supreme Court may take proof of the execution contents, and validity of such will, and establish the same, as in case of a lost deed. Upon such will being established by the decree of a competent court, such decree should be recorded by the surrogate

duced upon the power of the executor on receiving such notice? To whom must he account? For what acts is he not liable? Who is to pay the costs of contesting the will?

9. To what court may an appeal be taken in New York from the final decision of the surrogate? If it appear to the Supreme Court that the decision of the surrogate was erroneous? When the witnesses to a will reside in another State, how may it be proved? If the facts necessary to establish the validity of such will appear on the proof so taken, what will the court direct? What certificate is indorsed thereon? How atested? Can it be read in evidence? To whom may the decree of the court be transmitted? What may the surrogate issue thereon? When will has been lost or destroyed by accident, what court may take proof of the execution, contents, and validity of such will? How may the court establish the same? Upon such wills being established by the de

before whom the will might have been proved, if not lost or destroyed, and letters testamentary may be issued thereon. A lost will must be proved to be in existence at the time of the death of the testator, or to have been fraudulently destroyed in his lifetime. Its contents must be clearly and distinctly proved by at least two witnesses. A correct copy, or draft, is equivalent to one witness.

CHAPTER LXII.

LETTERS TESTAMENTARY.

1. WHEN a will has been admitted to probate, the surrogate issues letters testamentary to the executor named in the will. The widow, or a legatee, or any next of kin, or a creditor, may object to granting letters to the executor named in the will. They may make an affidavit, stating that they intend to file objections against granting letters testamentary to such executor, and that they are advised and believe that there are just and substantial objections to granting such letters. Upon filing such affidavit, the surrogate will stay the granting such letters. The objections must, within a reasonable time, be prepared and filed with the surrogate.

2. No person is competent to act as executor, who, at the time the will is proved, is-1. Incapable, in law, of making a contract (except married women); 2. Under

cree of a competent court, by whom is the decree recorded? Who issues letters testamentary thereon? When must a lost will be proved to be in existence? By how many witnesses must its contents be proved? To what is a copy, or draft, equivalent?

1. When a will has been admitted to probate, what does the surrogate issue? To whom? Who may object to granting letters testamentary to the executor named in the will? What must the person objecting state in an affidavit which he files with the surrogate? Upon filing such affidavit, what will the surrogate do? When must the objections be filed?

2. Who are incompetent to act as executors? If any such person be

the age of twenty-one years; 3. An alien, not being an inhabitant of the State; 4. Who shall have been convicted of an infamous crime; 5. Who, upon proof, shall be judged incompetent by the surrogate to execute the duties of such trust, by reason of drunkenness, improvidence, or want of understanding. If any such person be named in the will as executor, the surrogate will withhold letters testamentary from such person, and issue letters of administration, with the will annexed, to some other person. No married woman is entitled to letters testamentary, unless her husband consent thereto in writing, to be filed with the surrogate. By giving such consent, he becomes responsible for her acts, jointly with her.

3. If a creditor file objections to the responsibility of the executor named in the will, it is the duty of the surrogate to investigate such objections; and if it appear that the circumstances of such person would not afford adequate security for the due administration of the estate, the surrogate may refuse letters to such person until he give security. If the executor named in the will be a non-resident of the State, he is required to give security for the due execution of the will. Any person named in a will as executor may renounce such appointment. If the executor named in the will does not appear and take upon him the execution of the will within a reasonable time after probate, the surrogate may issue a summons, directed to such executor, requiring him to appear and qualify within a time limited in such summons; or, in default thereof, he will be deemed to have renounced the appointment. In case of sickness, or for other reasonable.

named in the will as executor, what action will the surrogate take? When only is a married woman entitled to letters testamentary? What is the effect of giving such consent?

3. If a creditor file objections to the responsibility of the executor named in the will, what is the duty of the surrogate? If the circumstances of such person do not afford adequate security to the due administration of the estate? If the executor named in the will be a nonresident of the State? Who may renounce the executorship? If the executor named in the will does not appear and qualify within a reason