ous to the legatees or devisees claiming under such lost or destroyed will.

No will of any testator who shall die hereafter, shall be allowed to be proved as a lost or destroyed will, unless the same shall be shown to have been fraudulently destroyed, in the life time of the testator, or be proved to have been in existence at the time of the death of the testator, nor unless its provisions shall be clearly and distinctly proved, by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness.

The provisions of this title, in relation to the proof and probate of wills hereafter to be had, and the jurisdiction of the surrogate, and his proceedings thereon, shall apply as well to wills made previously, as to those made subsequent to this time.

The provisions stated in relation to the revocation of wills, shall apply to all wills made by any testator, who shall be living, at the expiration of one year, from the first of January, eighteen hundred and thirty.

The duties of executors, under the new law, are extended, and their rights amply protected.

I have divided their duties in the same order as the duties of the surrogate are arranged under the first part of this treatise-and

1st. As it relates to the proof of Wills :—

When any real estate shall be devised by will, any executor or devisee named therein, and any person interested in such estate, may have such will proved, before the surrogate of the county, to whom the probate of the will of the testator would belong.

The person intending to apply for the proof of such will shall give notice of his intention to the heirs of the testator, as follows:

1. To such heirs as reside in the county where such proof is intended to be taken, by serving such notice personally, at least fifteen days previous to such application.

2. To such heirs as do not reside in the county, but reside in the state, by serving the same personally, twenty days previously.

3. To such heirs as cannot be found in the state, and to such as do not reside therein, by serving such notice personally, twenty days previously, or by publishing it once in each week, for six weeks, in the state paper.

If any of such heirs shall be minors, and have guardians, service of such notice shall be made upon such guardians, in the same manner, as prescribed in the last preceding section. If they shall have no guardians, the surrogate shall appoint guardians, to take care of there interests in the premises.

Witnesses may be summoned by subpoenas, to be issued by the surrogate, at any time before the day specified, in such notice, and may be served as in cases of personal actions; and a clause may be added to any such subpoena, commanding any person having the custody of, or power over, any such will, to produce the same before the said surrogate, for the purpose of being proved.

Disobedience to any such subpoena shall be proceeded against and punished, as in other cases of proceedings before surrogates. If any person be committed for not producing any will, he may be discharged, on producing the same to the surrogate who committed him, by an order for that pur

pose.

The record of the proofs and examinations taken pursuant to the provisions, as herein above stated, and the exemplifications of such record, by the surrogate in whose custody it may be, shall be received as evidence upon any trial or controversy concerning the same will, after it shall have been proved in such trial or controversy, that the lands in question therein, have been uninterruptedly held under such will, for the space of twenty years, before the commencment of the suit, in which such trial or controversy shall be had; and shall be of the same force and effect as if taken in open court, upon such trial or in such controversy.

The exemplification of the record of any last will and

testament, proved before the judge of the former court of probates, and recorded in his office, before the first day of January, one thousand seven hundred and eighty-five, certified under the seal of the officer in whose custody such record shall be, shall be received in evidence in all cases, after it shall have been made to appear, that diligent and fruitless search has been made for the original will.

2nd. and 3rd. The duty of Executors and Administrators, in obtaining Letters Testamentary, and Letters of Adminis

tration.

The executor, and person applying for letters of administration, commences his proceedings before the surrogate by petition. His next duty will be to serve, or cause to be serv→ ed, all citations issued by the surrogate, according to law, and make, or cause to be made, affidavit, or other proof of the due service of such citations. The executor is also bound to appear and defend the will of his testator, against all the allegations of all persons, desirous of contesting its validity.

It is sufficient here to make this brief statement, inasmuch as the particular method for executors and administrators to procure their authority, has been in this treatise necessarily blended with the duties of the surrogate-vide pa. 14 to 30

ante.

4th. Of the duties of Executors and Administrators, in returning Inventories and settling their Accounts.

After the executor or administrator is sworn, his first duty is to apply, in writing, to the surrogate for the appointment of appraisers.

The executors and administrators of any testator or intestate, within a reasonable time after qualifying, and after giving the notice in the next section required, with the aid of appraisers so appointed by the surrogate, shall make a true and perfect inventory of all the goods, chattels and credits, of such testator or intestate, and where the same shall be in different

and distant places, two or more such inventories, as may be

necessary.

A notice of such appraisement shall be served, five days previous thereto, on the legatees and next of kin, residing in the county where such property shall be; and it shall also be posted in three of the most public places of the town. In every such notice, the time and place at which such appraisement will be made, shall be specified.

Before proceeding to the execution of their duty, the appraisers shall take and subscribe an oath, to be inserted in the inventory made by them, before any officer authorised to administer oaths, that they will truly, honestly and impartially appraise the personally property, which shall be exhibited to them, according to the best of their knowledge and ability.

The appraisers shall, in the presence of such of the next of kin, legatees, or creditors of the testator or intestate as shall attend, proceed to estimate and appraise the property which shall be exhibited to them; and shall set down each article separately, with the value thereof in dollars and cents, distinctly, in figures, opposite to the articles respectively.

The following property shall be deemed assets, and shall go to the executors or administrators, to be applied and distributed as part of the personal estate of their testator or intestate, and shall be included in the inventory thereof:

1. Leases for years; lands held by the decease from year to year; and estates held by him for the life of another per

son.

2. The interest which may remain in the deceased at the time of his death, in a term for years, after the expiration of any estate for years therein, granted by him or any other

person.

3. The interest in lands devised to an executor for a term of years, for the payment of debts.

4. Things annexed to the freehold, or to any building, for the purpose of trade or manufacture, and not fixed into the wall of a house, so as to be essential to its support.

5. The crops growing on the land of the deceased, at the time of his death.

6. Every kind of produce raised annually by labor and cultivation, excepting grass growing and fruit not gathered. 7. Rent reserved to the deceased, which had accrued at the time of his death.

8. Debts secured by mortgages, bonds, notes or bills; accounts, money and bank bills, or other circulating medium, things in action, and stock in any company, whether incorporated or not.

9. Goods, wares, merchandize, utensils, furniture, cattle, provisions, and every other species of personal property and effects, not hereinafter excepted.

Things annexed to the freehold, or to any building, shall not go to the executor, but shall descend with the freehold to the heirs or devisees, except such fixtures, as are mentioned in the fourth subdivision of the last section.

The right of an heir to any property not enumerated in the preceding sixth section, which by the common law would descend to him, shall not be impaired by the general terms of that section.

Where a man, having a family, shall die, leaving a widow, or a minor child or children, the following articles shall not be deemed assets, but shall be included and stated in the inventory of the estate, without being appraised:

1. All spinning wheels, weaving looms, and stoves, put up, or kept, for use by his family.

2. The family bible, family pictures, and school books used by or in the family of such deceased person; and books, not exceeding in value fifty dollars, which were kept and used as part of the family library, before the decease of such person.

3. All sheep, to the number of ten, with their fleeces, and the yarn and cloth manufactured from the same; one cow; two swine, and the pork of such swine.

4. All necessary wearing apparel, beds, bedsteads, and bedding; necessary cooking utensils; the clothing of the