before such partition be made, that they may be present, (if they see meet,) at the time of making the same. to be made, in on complaint. Mode of mak❤ justing claims. SEC. 8. Be it further enacted, That if any partner shall New partition have a larger share set off than is such partner's true and certain cases, real interest, or if any share set off should be more than equal in value to the proportion it was set off for, then and in every such case upon complaint to the Court which caused such partition to be made, within three years of the making thereof, by any aggrieved partner or partners, who at the time of making such partition were out of the State, and not notified thereof as aforesaid seasonably to be present at the same, the said Court shall cause partition thereof to be made anew. And in such new partition so much and no more shall be taken off from any share as such shall be adjudged more ing it and adthan the proportion of the whole it was designed for, estimating such lands or real estate as in the state they were in when first divided; and in case any improvements shall be made on the part that may by such new partition be taken off as aforesaid, the partner who made such improvements shall have reasonable satisfaction made him by the partner or partners to whose share the same shall be added, by the estimation of the freeholders employed in making such new partition, or the major part of them. And the Justices of the same Court who ordered partition, are also empowered to issue execution for such satisfaction, and for costs in such new partition, the same being first taxed and allowed in the said Court. compel peti their share of SEC. 9. Be it further enacted, That when partition shall Courts may be made as aforesaid, if any one or more of the interested tiones to pay parties applying, shall neglect or refuse to pay their just costs. proportion of the charges, which may attend such division, it shall and may be lawful for the said Court who ordered the partition, to issue an execution against the delinquent or delinquents interested, and applying as aforesaid: Provided, an account of such charge be first laid before the said Court. who ordered the partition, and the just proportions of the persons interested, settled and allowed, they having been duly notified to be present at such settlement and allowance. And when any messuage, tract of land, or other real estate Special assign shall be of greater value than either party's purpart or share to one, in cer in the estate to be divided, and cannot at the same time be subdivided, and part thereof assigned to one, and part to another, without great inconvenience, the same may be settled or assigned to one of the parties, such party to whom the same shall be so assigned, paying such sum or sums of money to such party or parties, as by means thereof have less than their share of the real estate as the cammittee appointed to make partition, shall award. [Approved February 8, 1821,] ment may be tain cases. Persons who CHAPTER XXXVIII. An Act respecting Wills and Testaments, and regulating the Descent of SEC. 1. BE it enacted by the Senate and House of Repremay dispose of sentatives, in Legislature assembled, That every person of the sonal estate by age of twenty-one years, and of sane mind, lawfully seiz real and per will. Wills to be in writing and signed and at tested, &c. by, three witnesses. revoked. ed of any lands, tenements, or hereditaments, within this State, in his or her own right in fee simple, or for the life or lives of any other person or persons, and every person as aforesaid, being the owner of any personal estate, may give, dispose of, and devise said real and personal estate by his or her last will and testament in writing, to and among his or her children or others, as he or she may see fit. SEC. 2. Be it further enacted, That all wills of any lands, tenements or personal estate shall be in writing and signed by the party so devising or bequeathing the same, or by some person in his presence, and by his express direction, and shall be attested and subscribed in the presence of the testator, by three credible witnesses, or the same shall be utterly void. And no will in writing, of lands, tenements, Wills, &e. how hereditaments or personal estate, nor any clause thereof, shall be revoked, except by a subsequent will or codicil in writing, or other writing, declaring the same, or by burning, cancelling, tearing, or obliterating the same by the testator, or in his presence and by his consent and direction; but all wills of lands, tenements, or personal estate, shall remain and continue in full force until the same be burnt, cancelled, torn or obliterated by the testator, or by his direction, in manner aforesaid, or unless the same be altered by some subsequent will or codicil, or other writing of the testator, signed in the presence of three witnesses, declaring such alteration. Devises for life and afterwards Construed. SEC. 3. Be it further enacted, That whenever any person in fee tail, how shall hereafter, in and by his last will and testament, devise any lands, tenements or hereditaments, to any person for and during the term of such person's natural life, and after his death to his children or heirs or right heirs in fee, such devise shall be taken and construed to vest an estate for life only in such devisee, and a remainder in fee simple in such children, heirs or right heirs, any law, usage or custom to the contrary notwithstanding. Soldiers. Marin dispose of per SEC. 4. Be it further enacted, That notwithstanding this es, &c. may Act, any soldier being in actual military service, or any marsonal estate, iner, or seaman being at sea, may dispose of his moveables, without formal wages and other personal estate, as he might have done be fore the making of this Act. will. Nuncupative wills, how SEC. 5. Be it further enacted, That no nuncupative will shall be good, where the estate thereby bequeathed shall exproved in cer- ceed the value of one hundred dollars, that is not proved by the oath of three witnesses, who were present at the making tain cases. thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, to bear witness that such was his will, or to that effect, nor unless such nuncupative will were made in the time of the last sickness of the deceased, and in the house of his or her habitation or dwelling, or where he or she had been resident for the space of ten days or more, next before the making of such will; except where such person was unexpectedly taken sick, being from home, and died before he or she returned to the place of his or her habitation. fourteen days testator, &e. SEC. 6. Be it further enacted, That no letters testamenta--not till after ry or probate of any nuncupative will shall pass the seal of from death of any Court of Probate, till fourteen days after the decease of the testator be fully expired, nor shall any nuncupative will be at any time approved and allowed, unless due notice shall have been given to all persons interested. months from &c. SEC. 7. Be it further enacted, That after six months shall -nor after six have passed, after speaking any pretended testamentary making, unless, words, no testimony shall be received to prove the same as a nuncupative will, unless the said words or the substance. ⚫ thereof, were reduced to writing within six days after the same testamentary words were spoken. witnesses of be competent SEC. 8. Be it further enacted, That if any person hath Legacies to attested, or shall attest the execution of any will or codicil, wills to be void, to whom any beneficial devise, legacy, estate, interest, gift or and legates to appointment of, or affecting any real or personal estate, (oth- witnesses. er than and except charges on lands, tenements or hereditaments, for the payment of any debt or debts,) shall be thereby given or made, such devise, legacy, estate, interest, gift or appointment, shall so far only as concerns such person attesting the execution of such will or codicil, or any person claiming under him, be utterly void, and such person shall be admitted as a witness to the execution of such will or codicil, such devise, legacy, estate, interest, gift or appointment notwithstanding. competent wite. SEC. 9. Be it further enacted, That in case by any will or Creditors. in codicil already made or hereafter to be made, any lands, certain cases, tenements or hereditaments, are or shall be charged with any nesses to execu. debt or debts, and any creditor whose debt is so charged, hath attested or shall attest the execution of such will or codicil, every such creditor notwithstanding such charge shall be admitted as a witness to the execution of such will or codicil. may be compe tent witnesses to wills, &e. SEC. 10. Be it further enacted, That if any person hath Legatees in eer. attested or shell attest the execution of any will or codicil, to whom any legacy or bequest is or shall be thereby given, and such person before he or she shall give his or her testimony concerning the execution of any such will or codicil, shall have been paid, or have accepted or released, or shall refuse to accept such legacy or bequest, upon tender thereof, Legatees dying before testator, ses. such person shall be admitted as a witness to the execution of such will or codicil, notwithstanding such legacy or bequest; Provided always, That the credit of such witnesses as aforesaid, shall be subject to the consideration of the Court or Jury before whom such witness or witnesses may be examined, or his or her testimony or attestation made use of in like manner, to all intents and purposes as the credit of other witnesses in all other causes ought to be considered of and determined. SEC. 11. Be it further enacted, That in case any legatee as to be consider aforesaid, who hath attested the execution of any will or ed legal witnes- codicil already made, or shall attest the execution of any will or codicil which shall hereafter be made, shall have died in the life time of the testator or before he or she shall have received or released the legacy or bequest so given him or her as aforesaid, and before he or she shall have refused to receive such legacy or bequest, on tender made thereof, such legatee shall be deemed a legal witness to the execution of such will or codicil notwithstanding such legacy or bequest. No legatee, made hereby a ness, shall af terwards re fit from such or otherwise. SEC. 12. Be it further enacted, That no person to whom competent wit any beneficial estate, interest, gift or appointment shall be given or made, which is hereby enacted to be null and void ceive any bene- as aforesaid ; or who shall have refused to receive any such vill by legacy legacy or bequest, on tender made as aforesaid, and who shall have been examined as a witness concerning the execu tion of such will or codicil, shall, after he or she shall have been so examined, demand or receive any profit or benefit of or from any such estate, interest, gift or appointment, so given or made to him or her in and by any such will or codicil, or, demand, receive or accept from any person or persons whatsoever any such legacy or bequest or any satisfaction or compensation for the same in any manner whatever. SEC. 13. Be it further enacted, That when any testator in and by his last will and testament, hath given or shall give any chattels or real estate to any person or persons, and the same shall be taken in execution for the payment of the testator's debts, or shall be sold therefor as the law provides, in such case, all the other legatees, devisees and heirs, shall refund their average or proportional part of such loss to such person or persons from whom the bequest shall be so taken away, and he or they shall and may maintain a suit or action at law to compel such contribution. Legatee having his part taken on execution for testator's debts to be re funded by other devisees, &c. Posthumous children provided for. SEC. 14. Be it further enacted, That when any child shall happen to be born after the death of the father, without having any provision made in his will, every such posthumous child shall have right and interest in the estate of his or her father, in like manner as if the father had died intestate, and the same shall be assigned to him or her accordingly; and in every such case the Judge of Probate shall issue his warrant, as in case of intestate estates, to assign to such posthu not named in their parents cases of intes mous child, a share in his or her father's estate equal to what he would have inherited, if his or her father had died intestate; and the same shall be taken in proportion from the devisees and legatees, who own the estate by virtue of such will. SEC. 15. Be it further enacted, 'That any child or children, Children, &c. or their legal representatives, in case of their death, not hav- the will of ing a legacy given him, her or them, in the will of their father to inherit as in or mother, shall have a proportion of the estate of their parents racy-provided, assigned unto him, her or them, as though such parent had &c. died intestate: Provided, such child, children or grand children have not had an equal proportion of the deceased's estate bestowed on him, her or them, in the deceased's life time. And when any child, grand child or other relation, having a devise of real or personal estate, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real or personal, in the same way and manner, such devisee would have done, in case he had survived the testator, any law, usage or custom to the contrary notwithstanding. Also the widow in all cases may wave the provision made for her in the will of her deceased hus- in husband's band, and claim her dower and have the same assigned her in her dower. the same manner as though her husband had died intestate. Widow may wave provision will and claim tributed as in tates how to distributed. SEC. 16. Be it further enacted, That all such estate, real or Estate not depersonal, that is not devised or bequeathed in the last will and vised to be dis testament of any person, hereafter to be proved, shall be dis- testate. tributed in the same manner as if it were an intestate estate. SEC. 17. Be it further enacted, That when any person shall Intestate esdie seized of any lands, tenements, or hereditaments, or any descend and be right thereto, or entitled to any interest therein, in fee simple, or for the life of another, not having lawfully devised the same, the same shall descend in equal shares to his children, and to the lawful issue of any deceased child by right of representation; and when the intestate shall leave no issue, the same shall descend to his father; and when there shall be no issue nor father, the same shall descend in equal shares to the intestate's mother, if any, and to his brothers and sisters, and the children of any deceased brother or sister by right of representation; and if the intestate leave no issue, father, brother or sister, then the same shall descend to his mother, if to kindred, and any, but if there be no mother, then to his next of kin, in equal degree; the collateral kindred claiming through the nearest ancestor, to be preferred to the collateral kindred claiming through a common ancestor more remote; and the Rules in regard degrees of kindred, in all cases to be computed according to mede of com the rules of the civil law; and when there shall be no kindred puting degrees. the same shall escheat to the State, saving always to the intestate's husband his tenancy by the courtesy; and to his widow, her dower at the common law, unless she be lawfully barred of the same: Provided however, That when any child Proviso as to shall die under age, not having been married, his share of the under age, &c. children dving |