divided; and if it be in personal estate, it shall be considered as part of the personal estate; and if in either case, it shall exceed the share of real or of personal estate, respectively, that would have come to the heir so advanced, he shall not 16 Mass., 200. refund any part of it, but shall receive so much less out of the other part of the estate, as will make his whole share equal to those of the other heirs who are in the same degree with him.

to be deemed ad

4 Pick., 21.

(2820.) SEC. 9. All gifts and grants shall be deemed to have When gifts, etc., been made in advancement, if they are expressed in the gift vancement. or grant to be so made, or if charged in writing by the intes-5 do 527. tate as an advancement, or acknowledged in writing as such by the child or other descendant.

vancement, how

(2821.) SEC. 10. If the value of the estate so advanced shall Value of adbe expressed in the conveyance, or in the charge thereof made ascertained. by the intestate, or in the acknowledgment of the party receiving it, it shall be considered as of that value, in the division and distribution of the estate; otherwise, it shall be estimated according to its value when given, as nearly as the same can be ascertained.

of heir advanced,

lowed by repre

(2822.) SEC. 11. If any child, or other lineal descendant so In case of death advanced, shall die before the intestate, leaving issue, the amt to be al advancement shall be taken into consideration, in the division sentatives. and distribution of the estate, and the amount thereof shall be allowed accordingly by the representatives of the heir so advanced, in like manner as if the advancement had been. made directly to them.

this chapter.

(28237) SEC. 12. Nothing in this chapter shall affect the title contruction of of a husband as tenant by the curtesy, nor that of a widow as tenant in dower, nor shall the same affect any limitation of an estate by deed or will.

by right of rep

(2824.) SEC. 13. Inheritance or succession, "by right of hence, etc., representation," takes place when the descendants of any rentation. deceased heir take the same share or right in the estate of another person that their parent would have taken if living. Posthumous children are considered as living at the death of their parents.

TITLE XXIII.

CHAPTER XCII.

OF WILLS OF REAL AND PERSONAL ESTATE.

Lands, etc.

(2825.) SECTION 1. Every person of full age and sound mind, who may devise being seized in his own right of any lands, or of any right thereto, or entitled to any interest therein, descendible to his heirs, may devise and dispose of the same by his last will and testament in writing; and all such estate not disposed of by the will, shall descend as the estate of an intestate, being chargeable, in both cases, with the payment of all his debts; and any married woman may devise and dispose of any real or personal property held by her, or to which she is entitled in her own right, by her last will and testament in writing, and may alter or revoke the same in like manner that a person under no disability may do the same: Provided, That no See Chap. 109. such will, alteration or revocation shall be of any validity without the consent of the husband of such married woman, in writing, annexed to such will, alteration or revocation, and attested and subscribed, and to be proven and recorded in like manner as a last will and testament is required to be witnessed, proven and recorded.

devise.

(2826.) SEC. 2. Every devise of land in any will hereafter Construction of made, shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.

making will.

5 Pick., 112.

(2827.) SEC. 3. Any estate, right or interest in lands, Estate in Lands acquired by the testator after the making of his will, shall acquired after pass thereby in like manner as if possessed at the time of Mass., 129. making the will, if such shall manifestly appear by the will to 4 Scammon, 67. have been the intention of the testator.

1 Cushing, 366.

queath personal

(2828.) SEC. 4. Every person of full age and sound mind, who may bemay, by his last will and testament, in writing, bequeath and estate. dispose of all his personal estate remaining at his decease, and all his rights thereto, and interest therein, and all such estate, 1 Pick.,239.

(a) For prior Statutes relative to Wills, see Code of 1820, p. 20, and same Act in Revision of 1827, p. 93, and of 1833, p. 262; Revised Statutes of 1838, p. 270; Laws of 1839, p. 220, Sec. 14; Laws of 1840, p. 139.

How Wills to be executed.

1 Kernan, 320.

158.

not disposed of by the will, shall be administered as intestate estate.

(2829.) SEC. 5. No will made within this State, except such. 3 Larb R. nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his

16 Barbour, 198.

5 Mass., 229.

12 do 358.

14 do 421.

9 Pick., 350.

3 do 374.

4 Greenl., 20. presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved.

4 Seiden, 196. 2 Greenl., 298.

Nuncupative (2830.) SEC. 6. Nothing contained herein shall affect the validity of a nuncupative will, in which the value of the estate bequeathed shall not exceed three hundred dollars, provided the same shall be proved by two competent witnesses; nor prevent any soldier, being in actual military service, nor any mariner, being on shipboard, from disposing of his wages and other personal estate by nuncupative will, as he might heretofore have done.

When legacy,
etc.,
to subseri-

(2831.) SEC. 7. All beneficial devises, legacies and gifts bing withers void. whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void, unless there be two other competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts, shall not prevent his creditors from being competent witnesses to his will.

When share of

estate to be saved

Witness.

(2832.) SEC. 8. But if such witness to whom any beneficial webing devise may have been made or given, would have been entitled to any share of the estate of the testator, in case the will was not established, then so much of the share that would have descended or been distributed to such witness as will not exceed the devise or bequest made to him in the will, shall be saved to him, and he may recover the same of the devisees or legatees named in the will, in proportion to, and out of the parts devised or bequeathed to them.

Revocation of wills.

(2833.) SEC. 9. No will nor any part thereof shall be revoked, unless by burning, tearing, canceling or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as prescribed in this

4 Greenl., 341.

chapter; or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the 15 Mass., 115. execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the

testator.

be deposited with

(2834.) SEC. 10. Any will in writing, being enclosed in a when Will may sealed wrapper, and having endorsed thereon the name of the Judge of Probate. testator and his place of residence, and the day when, and the person by whom it is delivered, may be deposited by the person making the same, or by any person for him, with the Judge of Probate in the county where the testator lives, and the Judge of Probate shall receive and safely keep such will, and give a certificate of the deposit thereof.

kept and dispos

of

(2835.) SEC. 11. Such will shall, during the lifetime of the How such will testator, be delivered only to himself, or to some person authorized by him by an order in writing, duly proved by the oath of a subscribing witness; and after the death of the testator, and at the first Probate Court after notice thereof, it shall be publicly opened by the Judge of Probate, and be retained by him.

to give notice of

will.

(2836.) SEC. 12. The Judge of Probate shall give notice of Judge of Probate such will being in his possession, to the executor therein his possession of appointed, if there be one, otherwise to the persons interested in the provisions of the will; or if the jurisdiction of the case belongs to any other Court, such will shall be delivered to the executor, or to some other trusty person, interested in the provisions of the same, to be presented for probate in such other Court.

custody of will,

(2837.) SEC. 13. Every person other than the Judge of Pro- others having bate, having the custody of any will, shall, within thirty days to deliver same after he has knowledge of the death of the testator, deliver in thirty days. the same into the Probate Court which has jurisdiction of the case, or to the person named in the will as executor.

Executor to pre

bate Court.

(2838.) SEC. 14. Every person named as executor in any Within what tim will, shall, within thirty days after the death of the testator, sent will to Pro or within thirty days after he has knowledge that he is named executor, if he obtains such knowledge after the death of the testator, present such will to the Probate Court which has jurisdiction of the case, unless the will shall have been otherwise deposited with the Judge of Probate; and shall, within the period above mentioned, signify to the Court his acceptance