Executors administrators

same regulations, as any non-resident may be permitted to sue or be sued.

Sec. 47. That every executor or administrator who may have and given bond in this State, agreeably to this act, shall be, and is hereby authorized, in all cases of an appeal from one court to another, by him made, to prosecute the same without filing any bond to prosecute the said appeal to effect, and abide the judg

may appeal with out bond

Acts repealed

ment thereon to be had.

Sec. 48. That the act, entitled "An act defining the duties of executors and administrators," passed the eleventh day of February, eighteen hundred and twenty-four; and the act, entitled "An act supplementary to the act, entitled An act defining the duties of executors and administrators," passed February the seventh, eighteen hundred and twenty-five; and an act, entitled "An act explanatory of an act, entitled 'An act defining the duties of executors and administrators," passed January sixteenth, eighteen hundred and twenty-seven; and an act, entitled "An art to amend the 'Act defining the duties of executors and administrators." passed February eleventh, eighteen hundred and twenty-eight; and an act, entitled "An act further to amend the act, entitled 'An act defining the duties of executors and administrators," passed February tenth, eighteen hundred and twenty-nine; and all other acts and parts of acts coming within the purview of this act; be, and the same are Proviso, saving hereby repealed: Provided. That all rights which have accrued, and suits pend. and all suits and proceedings now pending, under the provisions of the acts bereby repealed, shall be determined and conducted agreeably to the provisions of said acts; and all judg ments which heretofore have been, or may hereafter be, rendered on such suits, shall be carried into execution under the provisions of said acts.

rights acquired

ing

This act to take effect and be in force from and after the first day of June next.

JAMES M. BELL,

Speaker of the House of Representatives.

SAMUEL R. MILLFR.

March 12, 1831.

Speaker of the Senate.

Every descrip

AN ACT relating to Wills,

Sec. 1. Be it enacted by the General Assembly of the State of Ohio, That any person having an estate in any lands. tenements tion of property or hereditaments. or any annuity or rent charged upon, or issumay be devised ing out of the same, or any goods or chattels, rights, credits and choses in action, or in possession, and property of every description whatever; may give or devise the same, to any person, by last will and testament, by him or her lawfully executed.

Wills, how exc

Sec. 2. That every such last will and testament shall be in writing, and signed by the party making the same; or by some cuted other person in his or her presence, and by his or her express direction: and shall be attested and subscribed in the presence of such party, by two or more credible witnesses, who saw the testator or testatrix subscribe, or heard him or her acknowledge the same.

Sec. 3. That no last will and testament, made by any infant, who cannot idiot, or person of insane memory, shall be valid in law.

make a will

Sec. 4. That the rights of creditors shall not be impaired by Rights of crediany last will and testament; nor shall the right of dower of the tors, and right of widow of any testator be prejudiced thereby, unless any legacy judiced by will or devise to such widow, in the will contained, shall be express

dower, not pre.

ly specified to be in lieu of dower: and in case of a devise, in Election of vid lieu of dower, if the widow shall, within six months after pro- ow bate of the will, make known to the court of common pleas for the proper county, her election to relinquish her dower and claim under the will; then her election so made as aforesaid, shall be entered on the minutes of the court, and her right of dower in the estate of the testator shall be thereby barred: and if any widow fail to make her election as aforesaid, she shall retain her dower, and take nothing by the will.

How will may

Sec. 5. That any last will and testament, or any clause thereof, shall be revoked by the testator or testatrix destroying, can be revoked celling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or instrument made as aforesaid; or when the testator or testatrix had no children at the time of executing such will, but shall afterwards have a child, and in either case, such last will or codicil shall be void.

ume of making

inherit as if no

been

Sec. 6. That when a testator or testatrix, at the time of ex- Child reported to ecuting his or her last will as aforesaid, shall have a child ab- he dead at the sent and reported to be dead; or shall have a child or children will, or born af born, and shall afterwards have a child who is not provided for terwards, shall in such will; the child who is absent and reported to be dead at will had the time of executing such will, or the child born after execu- made ting such will, shall succeed to the same share of the testator's or testatrix's estate, as he or she would have been entitled to, if such testator or testatrix had died intestate; towards raising which portion, the devisees and legatees shall contribute proportionably out of the part devised or bequeathed to them by such last will: Provided. That any such child, who shall have received any share or portion of the testator's or testatrix's es- vancement tate by way of advancement, shall have deducted therefrom, the value of such share or portion at the time of such advancement, before he or she shall be entitled to any portion of such

estate, as in this section is above provided.

Proviso, as to ad

Sec. 7. That where any personal property, or real estate, Probate of will shall be bequeathed or devised by last will and testament as

aforesaid, the executors to such will, or any person interested

therein, may cause the said will to be brought before the court of common pleas, of the county in which such property or estate may be; and the said court shall cause the witnesses to such will to be ex mined in open court: and if it shall appear to the court. when such will is offered for probate, that any witness to such will is dead, or gone to parts unknown, then such proof shall be taken in open court, of the hand writing of the testator or testatrix, or of such witness so dead, or gone to parts unknown, or of such other circumstances as would be proper to prove such will on a trial at law: and such court may issue a commission with the will annexed, directed to any suitable person, to take the deposition of any absent witness; and all such depositions, duly certified and returned, shall be as valid as if taken in open court; and the said court shall cause all such examinations and proofs to be reduced to writing: and if it shall thereupon appear that such will was duly executed, and that the testator or testatrix, at the time of executing the same, was of full a age, and of sound mind and memory, and not under any resWill and proof'raint, the court shall order the clerk to record such will, toto be recorded gether with the proof so taken, in a book to be kept by the clerk for that purpose.

saine effect as original

Sec. 8. That every copy of such will, which shall be proved Certified copy of in manner aforesaid, and have a certificate thereof indorsed upon will to have it, with the seal of the said court thereunto annexed, and also a transcript of the record of the probate of such will, certified by the clerk, and sealed with the seal of the court, shall be as effectual in all cases, as the original will would be if produced and proven.

Sec. 9. That said court shall cause all such witnesses, as any Person interest person interested therein may desire, to come before such court ed in will may and testify, touching the premises: and any person having cusexamined tody or power of any such will, may be compelled to produce the same before the said court, for the purpose aforesaid.

have witnesses

to the wil

Sec. 10. That if any person shall subscribe his or her name Effect of a de as a witness to a will, wherein any bequest or devise is given to vise to a witness him or her, if the will cannot otherwise be proved, such bequest or devise shall be void, and such witness shall be competent to give testimony of the execution of such will, in like manner as if no such bequest or devise had been made; but if such witness would have been entitled to any share of the testator's estate, in case such will was not established, so much of said share shall be saved to him or her, as shall not exceed the bequest or devise bequeathed to him or her.

Verbal will, when valid

Sec. 11. That a verbal will shall be valid in respect to personal estate, if it be made in the last sickness of the deceased, and [it] be proved by two credible disinterested witnesses, that the testator or testatrix, was of sound mind and memory, ai d that he or she did, at the same time, call on some person present to bear testimony that such was his or her will.

Sec. 12. That after six months have elapsed, from the time

of speaking the pretended testamentary words, no testimony verbal will must shall be received to prove a verbal will; nor shall such will be be proven in six valid unless it be committed to writing, and subscribed by the months, and rewitnesses, within ten days after making the same.

duced to writing in ten days

When lands dè-

in one, and re

Sec. 13. That if the real estate, so devised as aforesaid, be in several counties, then such will shall be proved in manner vised lie in seveaforesaid, in one of such counties, and a certificate of such pro- ral counties, will bate shall be indorsed upon it, with the seal of the court there shall be proven unto affixed; which will, with such certificate, shall be admitted corded in each to record in every county in which such lands are situated, and Ball have the same validity therein, as if probate had been had thereof in each of such counties.

States, may be and

Sec. 14. That authenticated copies of wills, proved accord- Copies of wills ing to the laws of any State or Territory of the United States, proven in other relative to any property within this State, may be admitted to recorded, record by the court aforesaid, in the county where such pro shall be good in perty shall be; and such authenticated copies shall be good and valid in law, in like manner as wills made in this State are declared to be.

this State

ing wills, how

Sec. 15. That the expense of proving and recording said Expense of pro wills, shall be paid by the person applying to have the same bate and records done; and the witnesses and officers shall have the like fees for paid their attendance and services, on proving a will as aforesaid, as for the like attendance and services in other cases.

Sec. 16. That if the executor named in any will should die, when adminis refuse to act, or if no executor shall be named therein, the tration, with the will annexed, court may receive the probate of such will, or admit to record may be granted a copy thereof, authenticated as in this act is directed, and grant le ters of administration, with the will annexed, to the person to whom administration would have been granted, if such testator had died intestate.

sold by surviving

Sec. 17. That where any lands, tenements, or hereditame: ts Lands devised to have been, or shall be given or devised, by any last will and tes- be sold, may be tament executed as aforesaid, to the executors therein named, executor or any of them, to be sold or conveyed; or where such lands, tenements, or hereditaments, shall be thereby ordered to be sold or conveyed by such executors, or any of them, and part of the executors so named, die, refuse, or neglect to take upon them the execution of the said will; then all sales and conveyances of the said lands, tenements, or hereditaments, by the executor or executors, who take upon himself or themselves the execution of the will, shall be equally valid as if the residue of the executors had joined in the sale and conveyance: but if none of the executors named in such will, take upon themselves the execu- or by administra tion thereof; or if all such executors so taking upon themselves for with the wil the execution thereof, stall die before the sale or conveyance of such lands, tenements, or hereditaments; such sale or conveyance shall be made by the person or persons to whom administration, with the will annexed, may be granted by the

court.

annexed

Executor &c, to

take an oath

Form of the oath

Will to be record

Sec. 18. That before granting a certificate of probate of any will, the said court shall administer to the executor, or the administrator, with the will annexed, the following oath or aflir mation, to wit: "You do swear (or affirm), that this writing contains, as far as you know or believe. the true last will and testament of A. B.; and that you will well and truly perform the same, by paying first the debts, and then the legacies contained in said will, as far as his goods, chattels and credits will extend, and the law charges you: and that you will make a true inventory of all the said goods, chattels and credits; as also a just account, when thereunto required.

Sec. 19. That all original wills shall be recorded and filed ed and filed in in the clerk's office of the court in which they are respectively proven.

clerk's office

Wills how con tested

by jury, &c.

Sec. 20. That if any person interested shall, within two years after probate had, appear, and by bill in chancery, contest the validity of the will, an issue shall be made up, whether the wriIssue to be tried thig produced be the last will of the testator or testatrix, or not; which shall be tried by a jury, whose verdict shall be final between the parties, saving to the court the power of granting a new trial, as in other cases: but if no person appear in that time, the probate shall be forever binding; saving also to infants, married women, and persons absent from the State, or of insane mind, or in captivity, the like period after the removing of their respective disabilities.

Sec. 21. That in all such trials by jury, the certificate of the Certificate of pro oath of the witness at the time of the first probate, shall be admitted as evidence in case of the absence, death, or disability of any such witness, at the time of such trial.

bate, when evi dence on trial

Appeals allowed

Executor, &c.

Sec. 22. That appeals may be had from the decision of the court of common pleas, to the supreme court, when any will, or other matter relating thereto, shall have been contested.

Sec. 23. That in case of a deficiency of personal assets, the may sell real es court shall order the executor, or administrator, with the will tate by order of annexed, of any last will and testament, to sell the whole or a part of the real estate of the testator or testatrix, in the same manner, and under the same regulations, as is, or shall be, by law provided for the sale of real estate of intestates.

court

Testamentary

appointed

Sec. 24. That when any person hath any child under the age guardian may be of twenty-one years, and not married at the time of his death, it shall be lawful to, and for, the father of such child, whether born at the time of the death of the father or not, by last will and testament duly executed as aforesaid, to dispose of the custody and tuition of such child, for and during such time as he or she shall respectively remain under the age of twenty-one years, or any less time, to any person or persons; and that the possession or custody of such child, shall be good and effectual against every person claiming the custody or tuition of such child: and that such person or persons, to whom the custody of such child be so disposed or devised as aforesaid, may maintain