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and clauses, heretofore made, for or, concerning any matter or thing within the purview of this act, shall be and are hereby repealed.

Commence

XV. And be it further enacted, by the authority ament of this foresaid, That this act shall commence, and be in force, from and immediately after the tenth day of June, which shall be in the year of our lord one thousand seven hundred and fifty one.

act.

[From edit: An Act directing the manner of granting probats of 1752.] Wills, and Administration of Intestates Estates.

CHAP. V.

County courts may

B

E it enacted, by the Lieutenant-Governor, Council, and Burgesses, of this present General take proof of Assembly, and it is hereby enacted by the authority of wills, and the same, That the county courts of this dominion, and grant admin- every of them, within their respective counties, have

istrations.

and shall have jurisdiction and authority to hear and determine all causes, matters, suits, and controversies testamentary, which shall be brought before them, and to examine and take the proof of wills, and to hear and determine the right of administration of the estates of persons dying intestate, and to grant certificates thereof, to the governor or commander in chief of this dominion, for the time being, or to his deputy, or deputies appointed for that purpose, being a member, or members of the said courts respectively, for obtaining thereupon a probat, or administration with the will annexed, or a commission of administration, as the case shall require, according to the methods and rules herein after direcprobats of ted: That is to say, if any person having a mansion house, or other place of known residence and abode, within this dominion, shall depart this life, and dispose of his or her estate, or any part thereof, by will, such will shall be proved in the court of that county where such mansion house, or place of residence shall be; and if any person having no mansion house, or place of residence, within this colony, shall devise lands therein, by will, in writing, such will shall be proved in the court of that county wherein such lands shall lie, and

Rules of

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if such lands lie in several counties, and the testator dies in any one of them his will shall be proved in that county where he died; and if he dies in some other county, then in the court of one of the counties wherein such devised lands shall lie, and not in any other connty; and every such will so proved, as aforesaid, shall be as effectual for the disposing of lands, or any other estate, as if the same had been proved in every county where any of the lands or estate shall be.

administra

II. And where any person shall depart this life, Where exehaving first made a will, and therein appointed his ex- cutors refuse ecutor or executors, and they shall all of them refuse tion with the the executorship, in such case, the same court wherein will annexed the will should have been proved, if the executors had shall be com accepted the trust, shall have power and authority to mitted. hear and determine the right of administration, and to grant certificate for obtaining letters of administration with the will annexed.

III. When any will shall be exhibited to be proved When will's in the General Court, or in any county court, such may be proved in court. court may immediately proceed to receive the proof thereof, and to appoint appraisers to value the slaves and personal estate of the testator.

the will.

IV. But where by any will the lands of the testator, where the or any part thereof, shall be devised away from the heir at law heir or heirs at law, such proof, as to him, her or them, may contest shall not be binding, but the court shall cause such heir or heirs to be summoned, to appear at the next court, and to contest the validity of such will, if he, she, or they think fit; and if there be several heirs, in equal degree to the testator, every such heir shall be so summoned; and if no heir be known to the court, Rules in case or to the executors, who shall declare the same upon of several oath, before such court, then proclamation of such heirs. Or, where no will, being exhibited and proved, shall be made by the heir is sheriff at the court house, on two successive court da ys, known. and he shall also publish notice thereof, in writing, affixed at the door of every church in his county, and all persons concerned in interest, who at the time of proving any will, shall be under the age of one and twenty years, feme covert, non compos mentis, impri soned, or out of this colony, shall have liberty to com a will, withtest the proof thereof, within ten years after their se in 10 years veral disabilities and incapacities removed, and not af-ities remov terwards.

Infants, &c.. may contest

after disabil

ed.

Rules in case

tration.

V. And if any person having a mansion house, or of adminis. other known place of residence, within this dominion, shall die intestate, the court of that county wherein suc' a mansion house, or place of residence is, shall hear and determine the right of administration of the est: ate of such intestate, and grant certificate thereof in manner aforesaid.

VI. Where the intestate had no mansion house, or kn own place of abode in this colony, certificate for obtaining administration shall be granted by the court of the county wherein he died: If an executor or admi nistrator dies intestate, not having fully administered the estate of his testator or intestate, the same co art by whom certificate for probat, or administration was granted to such executor, or administrator, shall determine the right of administration of the est ate not administred, and grant certificate thereof. VII. And be it further enacted, by the authority lands, or ten- af resaid, That all devises and bequests of any lands, or tenements, shall be in writing, and signed by the party devising the same, or by some other person in How to be his presence, and by his express direction, and shall be

Devise of

ements must be in writing.

attested.

at tested, and subscribed in the presence of the said de-
vi sor, by two or more credible witnesses, or shall be
wholly writ by the said devisors own hand, or else
they shall be void and of no effect.

Such devises

revoked in

VIII And that no devise, in writing, of lands, teneshall remain ments, or hereditaments, or any clause thereof, shall at any time afterwards be revocable, otherwise than writing, or by some other will, or codicil, in writing, or other cancelled by writing declaring the same, or by burning, cancelling, the devisor. tearing, or obliterating the same, by the testator himself, or in his presence, and by his directions and cons ent: But all devises and bequests of lands, or tene

nents, shall remain and continue in force, until the same be burnt, cancelled, torn, or obliterated, by the 1 estator himself, or by his directions in manner aforesaid, or unless the same be altered by some other will, or codicil in writing, or other writing of the devisor, signed in the presence of two or more witnesses, declaring the same; any law, or usage, to the contrary, notwithstanding.

IX. And for prevention of fraudulent practices, by setting up nuncupative wills, Be it further enacted, by the authority aforesaid, That no nuncupative will shaft

Rules con

cerning nuncupative

'wills.

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be good, where the estate thereby bequeathed, shall exceed the value of ten pounds current money, that is not proved by the oaths of two or more witnesses, present at the making thereof; nor unless it be proved that the testator, at the time of pronouncing the same did bid the persons present, or some of them, bear witness, that such was his will, or to that effect; nor unless such nuncupative will were made in the time of the last sickness of the deceased, and in the house of his or her habitation or dwelling, or where he, or she hath been resident for the space of ten days, or more, next before the making of such will; except where such person was surprised or taken sick, being from his or her own home, and died before he or she returned to the place of his dwelling.

X. And be it further enacted, by the authority afore- Where they said, That after six months passed, after the speak shall not be ing of the pretended testamentary words, no testimony of force. shall be received to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing, within six days after the making such will.

XI. And that no certificate for granting probat of Nor any pro any nuncupative will, or for administration of the es bat, or admitate, by such will given or bequeathed, shall be nistration, granted by any court, 'til fourteen days, at the least, after thereon. granted the decease of the testator, shall be expired; nor shall The widow, any nuncupative will at any time be admitted to be or next of proved, unless summons have first issued, to call in the kin, shall be widow, or next of kindred to the deceased, to the end moned. that they may contest the same if they please.

first sum

sonal estate

XII. And be it further enacted, by the authority a- Written leforesaid, That no will in writing, concerning any gacies of per goods, chattels, or personal estate, shall be repealed, not revocanor shall any clause, devise, or bequest therein, be al- ble, except tered or changed, by any words, or will, by word of in writing. mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof, read unto the testator, and allowed by him, and proved to be so done by two or more witnesses.

XIII. Provided always, That any soldier being in Soldiers, or actual military service, or any mariner, or seaman mariners, er being at sea, may dispose of his moveables, wages, and cepted. personal estate, as he or they might have done before the making of this act.

K S-Vol. 5.

Rules in

XIV. And be it further enacted, by the authority agranting ad- foresaid, That administration of the estate of every person dying intestate, and administration with the will annexed of the estate of every testator, whose executor, or executors, shall refuse to prove and execute his will, shall be granted in manner following: That is to say, first, to the husband or wife of the deceased, and if none such, or if they refuse, then secondly, to the child or children, or their legal representatives, and if none such appear or claim, then thirdly, to the father or mother, or if none such, then fourthly, to the brothers and sisters, and if none such, then to the next of kindred to the deceased person; and if no will shall be exhibited, or administration sued forth, before or at the next court held after expiration of thirty days from any person's death, the court may grant administration to any creditor or creditors of the deceased, suing for the same, or to any other person the court in their discretion shall think fit.

Where creditors may be admitted.

Method to prevent

bezzlement.

XV. Provided always, That where it shall appear to the court, either of their own knowledge, or upon. waste, or im- application to them made by creditors, or legatees, that any estate is likely to be wasted, or imbezzled, such court may, and are hereby authorised and required, to proceed immediately to grant certificate for obtaining administration thereof.

administra

Wills may be XVI. Provided also, That if any will shall be afproved after terwards exhibited to be proved, or any of the deceastion granted. ed person's kindred, not having before refused, shall appear and pray certificate for obtaining probat or administration, the same shall be granted in like manner, as if no former administration had been granted or obtained; nor shall any thing herein before mentiCourt may oned be construed, to disable any court from summoncompel any person to ing any person, or persons whatsoever, having the will produce the of a person deceased, in his, her, or their custody, or will of a per- possession, to exhibit the same to the court, in order to a legal probation thereof; but the court may compel such person or persons, by summons, or other lawful process as they shall think fit, to produce such will, that the just and legal proceedings may be had Executors & thereupon.

son deceas

ed.

adm.nistra

tors shall be sworn.

XVII. And be it further enacted, by the authority aforesaid, That before granting certificate for probat

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