commencement of the suit, with the like effect as if taken in open court.

Wills of PERSONAL PROPERTY may be made by male persons of the age of eighteen years or upwards, and by females of the age of sixteen years or upwards, who are not married. Nuncupative wills are abolished, except made by a soldier in actual service, or a mariner at sea.

The surrogate of each county shall have sole and exclusive power, within the county for which he may be appointed, to take the proof of last wills and testaments, so far as the same relate to personal property, of all deceased persons, in the following cases:

1. Where the testator at, or immediately previous to his death, was an inhabitant of the county of such surrogate, in whatever place such death may have happened.

2. Where the testator, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein.

3. Where the testator, not being an inhabitant of this state, shall die out of the state, leaving assets in the county of such surrogate.

4. Where a testator, not being an inhabitant of this state, shall die out of the state, not leaving assets therein, but assets of such testator shall thereafter come into the county of such surrogate.

No will of personal estate, either written or unwritten, shall be admitted to proof, nor shall letters testamentary or of administration thereon be granted, until the widow and next of kin shall have been cited to appear and attend such probate. Such citation shall be personally served on them, if they be in the county, six days at least before the return thereof; and if not in the county, and whenever personal service is not made on the next of kin, by publishing the same at least two weeks, in such newspaper in the state, as the surrogate shall deem most likely to give notice to the relations of the deceased,

On the application of any person interested, the surrogate

shall issue a citation under his seal of office, to any person having the custody or possession of any will, requiring him to produce the same, at such time and place as such surrogate shall deem reasonable, to the intent that such will may be duly proved. Any person who, without reasonable cause, shall neglect or refuse to produce any will, in obedience to such citation, shall be committed to the jail of the county, by an order under the hand and seal of the surrogate, there to remain until he shall produce such will.

Written wills of personal estate offered for probate, shall be proved by one or more of the subscribing witnesses, or if they be dead, insane, or out of the state, then by proof of the handwriting of the testator and of the subscribing witnesses; and in all cases the oath of the person who received the same of the testator, if he can be produced, together with the oath of the person presenting the same for probate, stating the circumstances of the execution, the delivery and the possession thereof, shall be required. The surrogate shall enquire particularly into the facts and circumstances, and shall be satisfied of the genuineness and validity of such will, before admitting the same to probate, or granting letters testamentary or of administration thereon.

Every surrogate shall indorse on every will proved before him, a certificate that the same has been admitted to probate by him, stating therein the day when such probate was granted.

When any will of personal property shall have been proved before any surrogate having jurisdiction, the jurisdiction over the executors, and the power of granting letters testamentary and of administration with the will annexed, with all powers incidental thereto, shall be exercised exclusively by the surrogate who first took the proof of such will; and no other surrogate shall have power to grant letters of administration upon the estate of such testator.

The probate of any will of personal property, taken by a surrogate having jurisdiction, shall be conclusive evidence of the validity of such will, until such probate be reversed on

appeal, or revoked by the surrogate, as herein stated, or the will be declared void by a competent tribunal.

Notwithstanding a will of personal property may have been admitted to probate, any of the next of kin to the testator, may, at any time within one year after such probate, contest the same, or the validity of such will.

For that purpose, such relative shall file in the office of the surrogate by whom the will was proved, his allegations in writing, against the validity of such will, or against the competency of the proof thereof.

Upon the filing of such allegations, the surrogate shall issue a citation to the executors, who shall have taken upon themselves the execution of such will, or to the administrators with such will annexed, and to all the legatees named in such will, residing in this state, or to their guardians, if any of them be minors, or their personal representatives, if any of them be dead, requiring them to appear before him on some day to be therein specified, not less than thirty and not more than sixty days from the date thereof, at his office, to shew cause why the probate of such will should not be revoked.

After the service of the citation, such executor or administrator shall suspend all proceedings in relation to the estate of the testator, except the collection and recovery of monies, and the payment of debts, until a decision shall be had on such allegations.

At the time appointed for showing cause, and at such other times thereafter as the surrogate may appoint, upon due proof being made of the personal service of such citation, upon every person named therein, at least fourteen days before the time appointed for showing cause, the surrogate shall proceed to hear the proofs of the parties. If any legatees named in the will so contested, shall be minors, and have no guardians, he shall appoint guardians to take care of their interests in the controversy.

If upon hearing the proofs of the parties, the surrogate shall decide that such will is for any reason invalid, or that it is not sufficiently proved to have been the last will and testament of

the testator, he shall annul and revoke the probate thereof; if otherwise, he shall confirm such probate. Appeals from such decisions may be made in the same manner, and within the same time, and with like effect, as in cases of granting letters of administration.

Upon any such hearing before the surrogate, the depositions of witnesses taken on the first proof of the will, who may be dead, insane, or out of the state, may be received in evidence.

Whenever any surrogate shall annul and revoke the probate of any will of personal property, he shall enter such revocation in his records, and attest the same; and shall cause notice thereof to be immediately served on the executors therein named, or upon the administrators with such will annexed, and to be published for three weeks in a newspaper printed in his county, if there be one, the expense of which publication shall be taxed as a part of the costs of the proceedings.

Upon such notice being served upon such executor or administrator, his powers and authority shall cease, and he shall account to the representatives of the deceased person, whose alleged will was contested, for all monies and effects received; but such executor or administrator shall not be liable for any act done in good faith, previous to the service of the citation, nor for any act so done in the collection of monies, or the payment of debts, after the service of the citation, and previous to the service of the notice of revocation.

The surrogate's fees and expenses shall be paid by the party contesting the validity of the will, or the probate thereof, in case such will or probate be confirmed; and in case such probate be revoked, the party who shall have resisted such revocation, may be required, by the surrogate, to pay the costs and the expenses of the proceedings, either personally or out of the property of the deceased. In all cases, such payment may be enforced by process of attachment.

3

2nd. The duties of the Surrogate in granting letters testamentary:

When any will of personal estate shall have been duly admitted to probate, the surrogate who took such proof, shall issue letters testamentary thereon, to the persons named therein as executors, who are competent by law, to serve as such, and who shall appear and qualify.

No letters testamentary shall be granted, until the expiration of thirty days after the will shall have been proved, during which time any relative or creditor of the deceased, or any other person interested in his estate, may file objections with the surrogate, to the granting of letters testamentary, to any one or more of the persons, named in such will as ex

ecutors.

No person shall be deemed competent to serve as an executor, who, at the time the will is proved, shall be,

1. Incapable in law of making a contract, (except married women):

2. Under the age of twenty-one years:

3. An alien who has not taken the preliminary measures to entitle him to naturalization:

4. Who shall have been convicted of an infamous crime: 5. Who upon proof shall be adjudged 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 as the sole executor in any will, or if all the persons named therein as executors, be incompetent, letters of administration, with the will annexed, shall be issued, as hereinafter is stated, in the case of all the executors renouncing.

No married woman shall be entitled to letters testamentary, unless her husband consent thereto in writing, to be filed with the surrogate; and by giving such consent he shall be deemed responsible for her acts jointly with her.

If the disability of a person under age, or being an alien, or a married woman, named as executor in any will, shall be removed, before the execution of such will is completed, such