Devise of realty, how revoked. How will of chattels revoked. Wills, how admitted to probate. Wills, how contested. 7 Fla., 292. 2 Fla., 276. in writing, to devise and dispose of his or her lands, tenements and hereditaments, and of his or her estate, right, title and interest in the same, in possession, remainder or reversion, at the time of the execution of the said last will and testament: Provided, That every such last will and testament shall be signed by the testator, or by some other person in his or her presence, and by his or her express directions, and shall be attested and subscribed, in the presence of the said testator or testatrix, by three or more witnesses, or else it shall be utterly void and of none effect. (a) (1) SEC. 2. No such devise or disposition of lands, tenements or hereditaments, or any part or clause thereof, shall be revocable by any other will or codicil, unless the same be in writing, and made as aforesaid; but every such last will and testament, devise or disposition, may be revoked by any other writing signed by the testator or testatrix, declaring the same to be revoked, or operating as a revocation thereof by law, or by burning, cancelling, tearing or obliterating the same, by the testator or testatrix, or by his or her direction and consent, or by the act and operation of law. (a) SEC. 3. No will or writing concerning any goods or chattels shall be revoked, nor shall any clause, devise or bequest therein be altered and changed by any words, or will by words of mouth only, except the same be in the life of the testator or testatrix committed to writing, and after the writing thereof, read unto the testator and allowed by him, and be proved to be done by three disinterested and credible witnesses at least. (a) SEC. 4. Last wills and testaments, both of real and personal property, may be admitted to probate, upon the oath of any person appointed executor or executrix thereto, or where no executor or executrix is appointed, of any other credible person having no interest under the will, that he or she verily believes the writing exhibited as the last will and testament to be the true last will and testament of the deceased, which probate may be granted in term time, or vacation, by the several Judges of the County Courts. (a) SEC. 5. In case any will shall be offered for probate, and the same shall be contested, it shall be the duty of the Judge of the County Court to certify the fact and send up the original will to the Circuit Court of the same county, and an issue shall be made up in the Circuit Court under the direction of said court, and the validity of the will tried therein upon the principles of law in such cases; and the verdict of the jury and the judgment of the court upon the validity of said will shall be certified to the County Court, and the original will, if established, shall be sent back to the County Court to be re (a) Secs. 51, 52, 56 and 57, Act of Nov. 20, 1828. (1) 7 Fla., 292; 9 Fla., 451; 5 Fla., 51; 7 Fla., 301. For construction of wills, &c., see 5 Fla., 51, 542: 7 Fla., 301; 8 Fla., 226; 9 Fla., 105, 38, 427; 11 Fla., 73; 17 Fla., 304; 11 Fla., 62; 9 Fla., 490. corded, and upon the proceedings so certified to the County Court said court shall proceed to grant letters testamentary or of administration, and to do all other things necessary to be done to have the will carried into effect, or the estate properly administered as heretofore. (c) wills. revoked. SEC. 6. The probate of wills, so far as concerns any personal Effect of estate, shall be conclusive as to the validity of the will of probate of which it is the probate, and the probate of wills, so far as concerns real property, shall be prima facie evidence of the validity of wills of which it is probate, in any suit or controversy in relation to or concerning the property thereby devised or bequeathed; and it shall and may be lawful for any and every person or persons interested, to make application to the court Probate, how in which the probate of any will may have been granted, for a revocation of such probate, by petition to the said court, which petition shall set forth the ground upon which revocation is demanded; and a copy thereof, together with a citation to appear and answer the same, shall be served upon the executor or executrix, or administrator or administratrix, with the will annexed, at least ten days before the time to which such citation may be returnable, and the party cited to answer the said petition shall file his or her answer to the same on or before the expiration of said ten days; and the said court shall, upon the petition and answer of the said parties, and the proof adduced by them, which shall, in all cases, be taken down in writing in open court, confirm or revoke the said probate according to the law and justice of the case at the time the citation shall be returnable, unless good cause be shown for a continuance. (d) SEC. 7. Nothing in this law shall be construed to affect the Exception as rights already vested by the pre-existing Spanish laws in this to feme covert. State, in married women, in regard to their power of devising or bequeathing their separate property. (e) SEC. 8. Probate of wills duly obtained and granted by any Foreign court in any of the States, Territories or Districts in the Uni- probate. ted States, or in any foreign country, which relates to property in this State, shall be admitted to record in the aforesaid County Courts, and shall, when so recorded, have the same force and effect, as to the disposition of the property thereby devised or bequeathed, as wills executed in this State: Provided, The said wills, made out of this State, shall have conformed to the laws thereof in the form and manner of their execution. (ƒ) probate. SEC. 9. No will shall be admitted to probate upon the oath what wills not of any person appointed executor or executrix thereto, when admitted to it shall appear by said will or otherwise that said person so appointed is interested in the estate therein bequeathed, or any part thereof. (g) (e) Chap. 524, Act of Jan. 8, 1853. (d) Sec. 58, Act of Nov. 20, 1828, as amended by Sec. 17, Chap. 1627, Act of Aug. 4, 1868. (e) Sec. 60, Act of Nov. 20, 1828. Requisites of Luncupative wills. 9 Fla., 451. No testimony six months. SEC. 10. No nuncupative will shall be good that is not proved by the oaths of three witnesses at least that were present at the making thereof, nor unless proved by the said witnesses that the testator or testatrix, at the time of pronouncing the same, did desire the persons present, or some of them, to bear witness that such was his or her will, or to that effect, nor unless such nuncupative will was made in the time of the last sickness of the deceased. (h) SEC. 11. After six months passed after the speaking of said received after testamentary words, no testimony shall be received to prove any nuncupative will, unless the said testimony, or the substance thereof, were reduced to writing within six days from the making of said will, and were sworn to before some judicial officer of this State within the said six days. Letters not to be granted till after sixty days' notice. Wills, where and recorded. (h) SEC. 12. No letters testamentary or probate of any nuncupative will shall be granted until sixty days at least from the death of the testator or testatrix, nor shall any nuncupative will be received to be proved until citation hath issued and have been published and served upon the widow or next of kin of the deceased, at least sixty days from the time appointed for proving such will, calling in said widow or next of kin, in order that they may contest the same if they think fit. (h) SEC. 13. All wills of which probate shall be granted as aforeto be deposited said shall be deposited in the office of the Judge of Probate, and by him fairly and correctly recorded in a book kept for that purpose, together with the letters testamentary or of administration granted thereon, and all letters of administration on the goods, chattels, rights and credits of persons dying intestate shall also be recorded in the office of the said Judge, and, on payment of his fees, he shall give certified copies thereof under seal of the court, which certified copies shall be received in evidence in all the courts of record in this State, and have the same effect as the originals might or could have in law or equity; and if any Judge shall deliver such letters testamentary or of administration without recording the same, he shall forfeit to the party injured double the damages which he may have sustained for default of such record being duly made. (i) Certified copies evidence. Certified copies of wills and foreign probates. SEC. 14. Copies of all wills and letters testamentary and of administration, heretofore recorded in any public office of record in the State, when duly certified by the keeper of said records, shall be received in evidence in all the courts of record in this State; and the probate of wills granted in any of the United States or Territories thereof, or in any foreign state, duly authenticated and certified according to the laws of the State or Territory, or of the laws of the foreign country or state where such probate may have been granted, shall likewise be received in evidence in all the courts of record in this State. (i) (h) Secs. 53, 54 and 55, Act of Nov. 20, (i) Secs. 11 and 12, Act of Nov. 20, 1828. CHAPTER 201. WITNESSES IN CIVIL CASES. 1. Subpoena for witnesses, when time to time until cause disposed and how issued; what to contain. 2. Witnesses may be attached for non-attendance; may be fined; action for damages may be had against. of. 4. How witnesses are to obtain compensation for services; provisos, &c. 5. Pay of witnesses. issue. 3. Witnesses must attend from SECTION 1. When the attendance of any person shall be re- Subpoena, quired as a witnesss in any court, in any cause pending there- when to in, it shall be the duty of the clerk of the said court, respectively, on application, to issue writs of subpoena, directed to the persons whose attendance shall be required, when such persons reside within the county in which such cause may be depending; which writ of subpoena shall contain the names of the parties in the cause, and state at whose instance it is issued, and shall be served on such witness at least three days before the court to which it shall be returnable; which writ shall be served by the sheriff or other officer, as the case may be. (a) tendance. SEC. 2. When it shall appear in manner aforesaid that a wit- Attachment ness in any cause has been duly summoned and such witness for non-atshall fail to appear, it shall be the duty of the court, on motion, to order an attachment against such defaulting witness, returnable at such time as the court may direct; and upon the return of such attachment the said court may fine such witness in any sum not exceeding one hundred dollars, unless he or she shall make a sufficient excuse for such non-attendance, to be adjudged of by the court; and the said witness shall also be subject to the action of the person at whose suit he or she Action for damages. shall have been summoned for any damage which he, she or they may have sustained by reason of such non-attendance. (a) term to term SEC. 3. When a subpoena shall have been served on any wit- Witness to ness to appear before any court in conformity with the laws of attend from this State, it shall be the duty of said witness to attend from until cause term to term until the cause in which such witness has been disposed of. summoned is tried or otherwise disposed of, unless he or she shall be sooner discharged from further service. (b) SEC. 4. On the last day of the attendance of any witness in Compensation each term, it shall be lawful for such witness to exhibit his ac- for attendance. count on oath against the person or persons at whose instance he or she may have been summoned, and the clerk of the court (a) Secs. 38 and 39, Act of Nov. 23, (b) Chap. 622, Act of Jan. 13, 1855. 2 Fla., 58. 6 Fla., 52-730. Pay of witnesses. shall examine and sign the same and administer the said oath, and such account so signed shall have the force and effect of an execution, and may be levied upon the goods and chattels of the party in like manner as in cases of other executions: Provided, nevertheless, That such witness shall have the right, at his option, to defer making out his account until the suit in which he shall be summoned, as aforesaid, is determined, and have the same taxed in the bill of costs: And provided, also, That where any witness shall charge and levy more than is really due, such witness shall forfeit and pay to the party injured four times the amount so unjustly claimed. (c) SEC. 5. The pay of witnesses shall be, for each day's attendance in Circuit Court, one dollar and twenty-five cents, and ten cents per mile for actual distance traveled to and from the courthouse; in trials before courts of Justices of the Peace fifty cents per day, and the same mileage as is allowed in cases of the Circuit Court.* (d) Subpoenas to CHAPTER 202. WITNESSES IN CRIMINAL CASES. 1. Subpoenas to run throughout have to attend court beyond their the State. 2. Witnesses summoned must remain until discharged by the court. 3. Only ore per diem and mileage allowed; witnesses to attend each court until discharged. 4. Mileage of witnesses who respective counties. 5. Conviction of perjury forever to disqualify a witness. 6. Conviction without the State goes to affect witness' credibility. 7. Conviction that shall render witness incompetent. SECTION 1. All subpoenas for witnesses in criminal cases in run throughout behalf of the State and defendant, shall run throughout the State, and be directed to all and singular the sheriffs of the State of Florida. (a) the State. Witnesses shall remain in at tendance upon court or grand SEC. 2. Witnesses summoned before a grand jury or in a criminal case pending in court shall remain in attendance unless they are discharged by order of the court, and if they depart from the court without leave they shall be considered in contempt and liable to be attached for the same as in other cases of contempt. (b) SEC. 3. No witness subpoenaed in two or more criminal cases (c) Sec. 41, Act of Nov. 23, 1828. (d) Sec. 5, Chap. 3106, Act of March 7, 1879. (a) Sec. 2, Chap. 871, Act of Jan. 14, 1859. (b) Sec. 2, Chap. 2094, Act of March 2, 1877. [*The pay of witnesses is the same in criminal cases.] |