Liability for neglect of duties in certain cases.

having custody of

of the trust, or make known in writing to such Court his refusal to accept it.

(2839.) SEC. 15. Every person who shall neglect to perform any of the duties required in the two last preceding sections, without reasonable cause, shall be liable to each and every person interested in such will, in the sum of ten dollars damages for each and every month he shall so neglect, after the thirty days above mentioned, to be recovered in an action on the case, with costs.

When person (2840.) SEC. 16. If any person, having the custody of any will may be com- will, after the death of the testator, shall, without reasonable Ject to deliver cause, neglect to deliver the same to the Probate Court hav

mitted for neg

same to Probate

Court.

4 Mass., 137. 4 Pick., 23.

Greenl., 274. ing jurisdiction of it, after he shall have been duly notified by such Court for that purpose, he may be committed to the jail of the county, by warrant issued by such Court, and there be kept in close confinement until he shall deliver the will as above directed.

Notice of time

and place of proving Will.

When Probate may be granted

ene witness.

(2841.) SEC. 17. When any will shall have been delivered into or deposited in any Probate Court having jurisdiction of the same, such Court shall appoint a time and place for proving it, when all concerned may appear and contest the probate of the will, and shall cause public notice thereof to be given by personal service on all persons interested, or by publication under an order of such Court, in such newspaper printed in this State as the Judge shall direct, three weeks successively, previous to the time appointed; and no will shall be proved until notice shall be given as herein provided.

(2842.) SEC. 18. If no person shall appear to contest the a testimony of probate of a will at the time appointed for that purpose, the Court may, in its discretion, grant probate thereof, on the testimony of one of the subscribing witnesses only, if such witness shall testify that such will was executed in all the particulars as required in this chapter, and that the testator was of a sound mind at the time of the execution thereof.

When other wit

nesses may be

(2843.) SEC. 19. If none of the subscribing witnesses shall ditted to prove reside in this State, at the time appointed for proving the will, the Court may, in its discretion, admit the testimony of other witnesses to prove the sanity of the testator and the execution. of the will; and, as evidence of the execution of the will, may admit proof of the handwriting of the testator and of the subscribing witnesses.

(2844.) SEC. 20. No will shall be effectual to pass either real

and allowance of

Court.

or personal estate, unless it shall have been duly proved and Effect of proof allowed in the Probate Court as provided in this chapter, or will in Probate on appeal, in the Circuit Court or Supreme Court; and the probate of a will of real or personal estate, as above mentioned, shall be conclusive as to its due execution.

allowed in other

(2845.) SEC. 21. All wills which shall have been duly proved Wills proved ant and allowed in any other of the United States, or in any for- States, etc. eign country or State, according to the laws of such State or country, may be allowed, filed and recorded in the Probate 4 Greenl., 134, Court of any county in which the testator shall have real

and personal estate on which such will may operate, in the manner mentioned in the following sections.

Will and Probate

to be given.

(2846.) SEC. 22. When a copy of such will, and the probate When copy of thereof, duly authenticated, shall be produced by the execu- produced, notice tor or other person interested in such will, to the Probate Court, such Court shall appoint a time and place of hearing, and notice shall be given in the same manner as in the case of an original will presented for probate.

copy to be filed

(2847.) SEC. 23. If, on hearing the case, it shall appear to r will allowed, the Court that the instrument ought to be allowed in this State, and recorded. as the last will and testament of the deceased, the copy shall be filed and recorded, and the will shall have the same force and effect as if it had been originally proved and allowed in the same Court.

mentary, etc., on

(2848.) SEC. 24. When any will shall be allowed, as men- Letters testationed in the preceding section, the Probate Court shall grant such Will. letters testamentary, or letters of administration, with the will annexed; and such letters testamentary or letters of administration shall extend to all the estate of the testator in this State; and such estate, after payment of his just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue shall be disposed of as is provided by law in cases of estates in this State, belonging to persons who are inhabitants of any other State or country.

dren born after

(2849.) SEC. 25. When any child shall be born after the Provision for chil making of his father's will, and no provision shall be made making of Will therein for him, such child shall have the same share in the estate of the testator as if he had died intestato; and tho share of such child shall be assigned to him as provided by law in case of intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.

or child omitted

When provision (2850.) SEC. 26. When any testator shall omit to provide in by mistake, etc. his will for any of his children, or for the issue of any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child, or the issue of such child, shall have the same share in the estate of the testator as if he had died intestate, to be assigned as provided in the preceding section.

From what estate provision to be taken.

When the issue of deceased legatee, etc, to take

estate.

Estate of Testator liable for pay

etc.; allowance

of Widow, etc.

(2851.) SEC. 27. When any share of the estate of a testator shall be assigned to a child born after the making of a will, or to a child, or the issue of a child omitted in the will, as hereinbefore mentioned, the same shall first be taken from the estate not disposed of by the will, if any; if that shall not be suffi cient, so much as shall be necessary shall be taken from all the devisees or legatees, in proportion to the value of the estate they may respectively receive under the will, unless the obvious intention of the testator, in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in which case, such specific devise, legacy or provision may be exempted from such apportionment, and a different apportionment may be adopted, in the discretion of the Probate Court.

(2852.) SEC. 28. When a devise or legacy shall be made to any child or other relation of the testator, and the devisce or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will, in the same manner as the devisee or legatee would have done, if he had survived the testator; unless a different disposition shall be made or directed by the will.

(2853.) SEC. 29. All the estate of the testator, real and perment of debts sonal, shall be liable to be disposed of for the payment of his for maintenance debts, and the expenses of administering his estate, and the Probate Court may make such reasonable allowance as may be judged necessary for the expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them.

ated by Will to

payment of debts, etc.

Estate appropri- (2854.) SEC. 30. If the Testator shall make provision by his be applied to will, or designate the estate to be appropriated for the payment of his debts, the expenses of administration, or family expenses, they shall be paid according to the provisions of the

will, and out of the estate thus appropriated, or so far as the same may be sufficient.

insufficient, etc.

(2855.) SEC. 31. If the provision made by the will, or the When provision estate appropriated, shall not be sufficient to pay the debts, expenses of administration, and family expenses, such part of the estate, real or personal, as shall not have been disposed of by the will, if any, shall be appropriated according to the provisions of the law for that purpose.

Will, liable to

debts, etc.; when certain devises,

(2856.) SEC. 32. The estate, real or personal, given by will Estate given by to any devisees, or legatees, shall be held liable to the payment payment of of the debts, expenses of administration, and family expenses, etc to be exin proportion to the amount of the several devises or legacies, empted. except that specific devises and legacies, and the persons to whom they shall be made, may be exempted, if it shall appear to the Court necessary, in order to carry into effect the intention of the testator, if there shall be other sufficient estate.

Will, and liable

debts, may be retained by Execu

until assigu

"Legatee to hold

(2857.) SEC. 33. When the estate given by any will shall Estates given by be liable for the payment of debts and expenses, as mentioned for payment of in the preceding section, or is liable to be taken to make up to the share of a child born after the execution of the will, or of ed. a child, or of the issue of a child not provided for in the will as hereinbefore provided, the executor shall have a right to retain possession of the same, until such liability shall be settled by order of the Probate Court, and until the devises and legacies so liable shall be accordingly assigned by order of such Court; and when the same can properly be done, any devisee, or legatee, may make his claim to such Court, to have such liability settled, and his devise or legacy assigned to him. (2858.) SEC. 34. All the devisees and legatees, who shall, When Devisee or with the consent of the executor or otherwise, have possession subject to liabile of the estate given to them by will before such liability shall etc. be settled by the Probate Court, shall hold the same subject to the several liabilities mentioned in the preceding section, and shall be held to contribute according to their respective liabilities to the executor, or to any devisee or legatee from whom the estate levised to him may have been taken for the payment of debts or expenses, or to make up the share of a child born after the making of the will, or of a child or the issue of a child omitted in the will; and the persons who may, as heirs, have received the estate not disposed of by the will as provided in this chapter, shall be liable to contribute, in like manner as the devisees or legatees.

ty to contribute,

When liable for loss in case of in

son liable to contribute.

(2859.) SEC. 35. If any of the persons liable to contribute, solvency of 1er according to the provisions of the preceding section, shall be insolvent and unable to pay his share, the others shall be severally liable for the loss occasioned by such insolvency, in proportion to, and to the extent of, the estate they may have received; and if any of the persons so liable to contribute, shall die before having paid his share, the claim shall be valid against his estate, in the same manner as if it had been his proper debt.

Settlement of liabilities by decree of Probate Court.

Wills and copies, how made evidence.

Attested copy to

be recorded in

(2860.) SEC. 36. The Probate Court may, by decree for that purpose, settle the amount of the several liabilities, as provided in the preceding sections, and decree how much, and in what manner, each person shall contribute, and may issue execution as circumstances may require; and the claimant may also have a remedy, in any proper action or complaint in law or equity.

(2861.) SEC. 37. Every will, when proved as provided in this chapter, shall have a certificate of such proof endorsed thereon or annexed thereto, signed by the Judge of Probate, and attested by his seal, and every will so certified, and the record thereof, or a transcript of such record certified by the Judge of Probate and attested by his seal, may be read in evidence in all Courts within this State, without further proof.

(2862.) SEC. 38. An attested copy of every will devising registry of deeds. lands or any interest in lands, and of the probate thereof, shall be recorded in the Registry of Deeds of the county in which the lands thereby devised are situated.

Construction of

the term "executor."

(2863.) SEC. 39. The word "executor," in this and the subsequent chapters, shall be construed to include an Administrator with the will annexed.