TITLE XV. TITLE XV. CHAPTER 67. CHAPTER 67. OF TITLE TO REAL PROPERTY BY DESCENT. SECTION 1. When any person shall die seized of any lands, tenements or hereditaments, or of any right thereto, or entitled to any interest therein, in fee simple, or for the life of another, not having lawfully devised the same, they shall descend subject to his debts, in manner following: 1. In equal shares to his children, and to the issue of any deceased child by right of representation; and if there be no child of the intestate living at his death, his estate shall descend to all his other lineal descendants; and if all the said descendants are in the same degree of kindred to the intestate, they shall share the estate equally; otherwise they shall take according to the right of representation: 2. If he shall leave no issue, his estate shall descend to his widow during her natural life time, and after her decease, to his father; and if he shall leave no issue or widow, his estate shall descend to his father: 3. If he shall leave no issue, nor widow, nor father, his estate shall descend in equal shares to his brothers and sisters, and to the children of any deceased brother or sister, by right of representation; provided that if he shall leave a mother also, she shall take an equal share with his brothers and sisters: 4. If the intestate shall leave no issue, nor widow nor father, and no brother nor sister, living at his death, his estate shall descend to his mother, to the exclusion of the issue, if any, of deceased brothers or sisters: 5. If the intestate shall leave no issue, nor widow, and no father, mother, brother nor sister, his estate shall descend to his next of kin in equal degree; excepting, that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor more remote: provided however, 6. If any person shall die leaving several children, or leaving one child, and the issue of one or more other children, and any such surviving child shall die under age, and not having been married, all the estate that came to the deceased child by inheritance from such deceased parent, shall descend in equal shares to the other children of the same parent, and to the issue of any such other children who shall have died, by right of representation: How land, &c., to descend. 7. If at the death of such child who shall die under age, and not having been married, all the other children of his said parent shall 12 Mass., 490. a'so be dead, and any of them shall have left issue, the estate that came to said child by inheritance from his said parent, shall descend to all the issue of other children of the same parent, and if all the said issue are in the same degree of kindred to said child, they shall share TITLE XV. CHAPTER 67. the said estate equally; otherwise they shall take according to the right of representation: 8. If the intestate shall leave a widow, and no kindred, his estate shall descend to such widow: 9. If the intestate shall leave no widow nor kindred, his estate shall escheat to the people of this state, for the use of the primary school fund. SEC. 2. Every illegitimate child shall be considered as an heir of Illegitimate chil. his mother and shall inherit her estate, in like manner as if born in lawful wedlock; but shall not be allowed to claim as representing his mother, any part of the estate of any of her kindred, either lineal or collateral. dren to inherit from mother. Estate of illegiti mate child, to whom to descend. 4 Pick., 93. When child to gitimate. SEC. 3. If any illegitimate child shall die intestate, without lawful issue, his estate shall descend to his mother; if she be dead, it shall descend to the relatives of the intestate on the part of the mother, as if the intestate had been legitimate. SEC. 4. When, after the birth of an illegitimate child, his parents be considered le- shall intermarry, and his father shall, after the marriage, acknowledge him as his child, such child shall be considered as legitimate to all intents and purposes. Computation of degrees of kindred. Half blood. 1 Paige, 562. Effect of advancement. 1 Pick., 161. When heir advanced to be ex tribution. SEC. 5. The degrees of kindred shall be computed according to the rules of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his ancestors, in which case, all those who are not of the blood of such ancestor, shall be excluded from such inheritance. SEC. 6. Any estate, real or personal, that may have been given by the intestate in his life time, as an advancement to any child or other lineal descendant, shall be considered as a part of the estate of the intestate, so far as it regards the division and distribution thereof among his issue, and shall be taken by such child or other descendant towards his share of the estate of the intestate. SEC. 7. If the amount of such advancement shall exceed the cluded from dis- share of the heir so advanced, he shall be excluded from any further portion, in the division and distribution of the estate, but he shall not be required to refund any part of such advancement, and if the amount so received shall be less than his share, he shall be entitled to as much more as will give him his full share of the estate of the deceased. Advancement, SEC. S. If such advancement be made in real estate, the value how estimated. thereof shall, for the purposes mentioned in the preceding section, be considered a part of the real estate to be 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 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. 16 Mass., 200. When gifts, &c., SEC. 9. All gifts and grants shall be deemed to have been made in to be deemed ad advancement, if they are expressed in the gift or grant to be so made or if charged in writing by the intestate as an advancement, or acknowled in writing as such by the child or other descendant. vancement. 4 Pick., 21. 5 do 527. Value of ad vancement, how ascertained. SEC. 10. If the value of the estate so advanced, shall be expressed in the conveyance, or in the charge thereof made 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. TITLE XV. CHAPTER 67. In case of death lowed by repre SEC. 11. If any child, or other lineal descendant so advanced, shall die before the intestate, leaving issue, the advancement shall be taken of heir advanced, into consideration, in the division and distribution of the estate, and amount to be althe amount thereof shall be allowed accordingly by the representa- sentatives. tives of the heir so advanced, in like manner as if the advancement had been made directly to them. Construction of SEC. 12. Nothing in this chapter shall affect the title of a husband as tenant by the curtesy, nor that of a widow as tenant in dower, this chapter. nor shall the same affect any limitation of an estate by deed or will. Inheritance, &c., SEC. 13. Inheritance or succession, "by right of representation," by right of rep takes place when the descendants of any deceased heir take the resentation. 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 XVI. CHAPTER 68. TITLE XVI. Who may devise lands, &c. devise. CHAPTER 68. OF WILLS OF REAL AND PERSONAL ESTATE. SECTION 1. Every person of full age and sound mind, 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 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. SEC. 2. Every devise of land in any will hereafter made, shall Construction of be construed to convey all the intestate 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. Estate in lands 6 Mass., 129. Who may be estate. SEC. 3. Any estate, right or interest in lands, acquired by the testator after the making of his will, shall pass thereby in like manner as if possessed at the time of making the will, if such shall manifestly appear by the will have been the intention of the testator. SEC. 4. Every person of full age and sound mind, may, by his last queath personal will and testament, in writing, bequeath and dispose of all his personal estate remaining at his decease, and all his rights thereto, and interest therein, and all such estate, not disposed of by the will shall be administered as intestate estate. 1 Pick., 239. SEC. 5. No will made within this state, except such 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 testa tor, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more compent 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. 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 witnessess; nor prevent any soldier, being in actual CHAPTER 68. military service, nor any mariner, being on shipboard, from disposing TITLE XVI. of his wages and other personal estate by a nuncupative will, as he might heretofore have done. 2 Greenl., 298. When legacy, bing witness SEC. 7. All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly &c., to subscri void, unless there be two other competent subscribing witnesses to the void. 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. SEC. 8. But if such witness to whom any beneficial devise may when share of have been made or given, would have been entitled to any share of estate to be saved to subscribing the estate of the testator, in case the will was not established, then so witness. 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. SEC. 9. No will nor any part thereof shall be revoked, unless by Revocation of burning, tearing, canceling or obliterating the same, with the intention wills. 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 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 4 Greenl., 341. section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator. SEC. 10. Any will in writing, being enclosed in a sealed wrapper, when will may and having endorsed thereon the name of the testator and his place be deposited with of residence, and the day when, and the person by whom it is deliv- judge of probate. ered, 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 lived (lives;) and the judge of probate shall receive and safely keep such will and give a certificate of the deposite thereof. SEC. 11. Such will shall, during the life time of the 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. How such will kept and dispos ed of. will. SEC. 12. The judge of probate shall give notice of such will being Judge of probate in his possession, to the executor therein appointed, if there be one, to give notice of otherwise to the persons interested in the provisions of the will; or if his possession of 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. SEC. 13. Every person other than the judge of probate, having the custody of any will, shall, within thirty days after he has knowledge of the death of the testator, deliver the same into the probate court which has jurisdiction of the case, or to the person named in the will as executor. Others having custody of will, to deliver same in 30 days. present will to SEC. 14. Every person named as executor in any will, shall, within within what thirty days after the death of the testator, or within thirty days after time executor to he has knowledge that he is named executor, if he obtains such knowl- probate court, edge after the death of the testator, present such will to the probate |