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SECTION 1. When a person dies seised of land, 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, (except as provided in chapter one hundred and four,) in manner following:

First. In equal shares to his children and the issue of any deceased child by right of representation; and if there is no child of the intestate living at his death, then to all his other lineal descendants; if all the 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:

Second. If he leaves no issue, then to his father:

Third. If he leaves no issue nor father, then in equal shares to his mother, brothers, and sisters, and to the children of any deceased brother or sister by right of representation:

Fourth. If he leaves no issue, nor father, and no brother nor sister, living at his death, then to his mother, to the exclusion of the issue, if any, of deceased brothers or sisters:

Fifth. If he leaves no issue, and no father, mother, brother, nor sister, then to his next of kin in equal degree; except 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 who is more remote: provided,

Sixth. If a person dies leaving several children, or leaving one child and the issue of one or more others, and any such surviving child dies 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 have died, by right of represen tation:

-Seventh. If at the death of such child who shall have died under age and not having been married, all the other children of his said parent are also dead, and any of them have left issue, the estate that came to such child by inheritance from his said parent shall descend to all the issue of the other children of the same parent; and if all the issue are in the same degree of kindred to the child, they shall share the estate equally; otherwise they shall take according to the right of representation:

Eighth. If the intestate leaves a widow and no kindred, his estate shall descend to his widow; and if the intestate is a married woman and leaves no kindred, her estate shall descend to her husband:

Ninth. If the intestate leaves no kindred, and no widow or husband, his or her estate shall escheat to the commonwealth.

SECT. 2. An illegitimate child shall be heir of his mother and any maternal ancestor, and the lawful issue of an illegitimate person shall represent such person and take by descent any estate which the parent would have taken if living.

SECT. 3. If an illegitimate child dies intestate, without lawful issue, his estate shall descend to his mother.

SECT. 4. An illegitimate child whose parents have intermarried and whose father has acknowledged him as his child, shall be considered legitimate.

SECT. 5. The degrees of kindred shall be computed according to the rules of the civil law; and the kindred of the half blood shall inherit equally with those of the whole blood in the same degree.

SECT. 6. Any estate, real or personal, given by the intestate in his lifetime as an advancement to any child or other lineal descendant, shall be considered as part of the intestate's estate, so far as it regards

the division and distribution thereof among his issue, and shall be taken to child or other by such child or other descendant towards his share of the intestate's R. S. 61, 55 6, 7. estate; but he shall not be required to refund any part thereof, although 1 Pick. 161. it exceeds his share.

descendant.

in real or per

thereof, &c.

See Ch. 136, § 66. SECT. 7. If such advancement is made in real estate, the value there- Advancement of shall be considered as part of the real estate to be divided; if it is in sonal estate to personal estate, it shall be considered as part of the personal estate; be taken as part and if in either case it exceeds the share of real or personal estate R. S. 61, § 8. 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.

in

SECT. 8. All gifts and grants shall be deemed to have been made 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 acknowledged in writing as such by the child or other descendant.

how proved. R. S. 61, § 9.

4

5

Pick. 21.
Pick. 527.

22 Pick. 508.
1 Gray, 587.
value of, how
ascertained.

SECT. 9. If the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the intestate, or in the R. S. 61, § 10. acknowledgment by 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.

ing advance

ment dies before

intestate.

R. S. 61, § 11.

SECT. 10. If a child or other lineal descendant so advanced dies Ifperson receivbefore the intestate, leaving issue, the advancement shall be taken into consideration in the division and distribution of the estate; and the amount thereof shall be allowed accordingly by the representatives of the heir so advanced, as so much received towards their share of the estate, in like manner as if the advancement had been made directly to them.

SECT. 11. Nothing contained in this chapter shall affect the title of a husband as tenant by the curtesy, nor that of a widow as tenant in dower, nor her right to any part of the real estate of her husband given to her by law in lieu of dower.

Estates by curtesy, in dower, R. S. 61, § 12.

&c.,not affected.

1854, 406, §§ 1, 2.

terms.

SECT. 12. Inheritance or succession, "by right of representation," Construction of takes place when the descendants of a deceased heir take the same share R. S. 61, § 13. 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 parent.

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Real estate may
be disposed of
by will, &c.
R. S. 62, § 1.
12 Mass. 488.
18 Pick. 115.
2 Gray, 524.
6 Gray, 24.
7 Gray, 71.

See Ch. 108, §9.

Personal estate

may be disposed

of by will, &c.
R. S. 62, § 5.
1 Pick. 239.
2 Gray, 524.
7 Gray, 71.
See Ch. 108, § 9.
Devise of land

to carry rights

of entry, &c.
R. S. 62, § 2.
10 Mass. 131.
15 Mass. 115.
12 Met. 503.

estate acquired after. R. S. 62, § 3. 6 Mass. 149.

5 Pick. 112.

7 Met. 146.

12 Met. 169, 262.
1 Cush. 107, 118.
3 Cush. 366.

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14.

15.

&c.

to whom to be delivered.

when to be opened by probate court.
16. Possessor of will to deliver it, &c., within
thirty days after testator's decease.

17. Proceedings against persons suspected of
concealing wills, &c.

18. Costs may be allowed and execution issued.
19. Will how proved when not objected to.
20. Mode of trial on appeal to S. J. C., in case,
&c.

21. Will proved out of state, how allowed here.
22. allowance of, &c.

23. Estate to be settled as in other cases.
24. Widow may waive provisions of husband's
will, and take as if he died intestate, &c.
25. Case of child, &c., not provided for.

SECTION

26. Case of posthumous child having no provision.

27. Devisees, &c., to contribute equally to share of posthumous child, &c.

28. Case of devisee dying before testator and leaving issue.

29. When estate devised is taken for debts, other devisees to contribute.

30. Unless different appropriation is made by

the will.

31. Whole estate liable for debts.
32. Child, &c., omitted in will, liable and enti-
tled to contribution as devisee.
33. Case of insolvency of devisce, &c.
34. Undevised real estate first liable for debts.
35. Proceedings in suits for contribution.
36. Devisees to contribute equally when dow
er, &c., is taken from one.

37. Such cases how decided.

38. No will effectual without probate. Probate conclusive.

SECTION 1. Every person of full age and of sound mind being seised in his own right of any lands, tenements, or hereditaments, or of any right thereto, or entitled to any interest therein, excepting an estate tail, 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 pay. ment of all his debts.

SECT. 2. Every person of full age and of sound mind, may, by his last will and testament in writing, bequeath and dispose of all his personal estate remaining at his decease, and all his right thereto and interest therein; and all such estate not disposed of by will shall be administered as intestate estate.

SECT. 3. When a person devises lands of which he is not then seised, but to or for which he has any right of entry, or when after making a devise the devisor is disseised or ousted of the devised premises, they shall nevertheless pass to the devisee in like manner as they would have descended to the heirs of the devisor if he had died intestate; and the devisee shall have the like remedy for the recovery thereof, either by entry or by action, as the heirs might have had.

SECT. 4. Any estate, right, or interest, in lands acquired by the tes tator after making his will, shall pass thereby in like manner as if possessed at the time of making the will, if such clearly and manifestly appears by the will to have been the intention of the testator.

SECT. 5. Every devise of land, in any will made after the last day of April in the year eighteen hundred and thirty-six, shall be construed to General devise, convey all the estate of the devisor therein which he could lawfully devise, unless it clearly appears by the will that the devisor intended to convey a less estate.

how construed.

R. S. 62, § 4.

1 Cush. 93.
4 Gray, 350.
Wills, how
made.

75 $45

11 allen 49

R. S. 62, § 6.
4 Greení. 220.
5 Mass. 229.
12 Mass. 358.
14 Mass. 421.
3 Pick. 374.

9 Pick. 350.
1 Met. 349.
10 Met. 54.

2 Cush. 433.
7 Gray, 42.

made under existing laws valid.

1838, 2.

made out of state.

SECT. 6. No wills, except such as are mentioned in the three following sections, shall be effectual to pass any estate, real or personal, nor to charge or in any way affect the same, unless it is in writing and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses. If the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from whatever cause it arises, shall not prevent the probate and allowance of the will, if it is otherwise satisfactorily proved.

SECT. 7. A will of real or personal estate made and executed in con formity with the law existing at the time of the execution thereof, shall be effectual to pass such estate.

SECT. 8. A will made out of this state, which might be proved and

allowed according to the laws of the state or country in which it was 1843, 92, §§ 1, 2. made, may be proved, allowed, and recorded, in this state, and shall 5 Cush. 245. 13 allen 38. thereupon have the same effect as if it had been executed according to the laws of this commonwealth.

SECT. 9. A soldier in actual military service, or a mariner at sea, may dispose of his wages and other personal estate by a nuncupative will, as he might heretofore have done.

Who may make
will.

a nuncupative
R. S. 62, § 7.
2 Greení. 298.

Devise, &c., to

ness to be void,

voked.

will, how re-
C. 62, 5-9.
Greenl. 341.
Gray, 163.

15 Mass. 115.

SECT. 10. All beneficial devises, legacies, and gifts, made or given in any will to a subscribing witness thereto, shall be wholly void unless attesting witthere are three other competent subscribing witnesses to the same; but unless, &c. a mere charge on the lands of the devisor for the payment of debts shall R. S. 62, § 8. not prevent his creditors from being competent witnesses to his will. SECT. 11. No will shall be revoked, unless by burning, tearing, cancelling, or obliterating, the same, with the intention of revoking it, by the testator himself, or by some person in his presence and by his direc- 4 tion; or by some other will, codicil, or writing, signed, attested, and 4 subscribed, in the manner provided for making a will; but nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator. SECT. 12. A will may be deposited by the person making the same, or by any person for him, in the registry of probate in the county where keeping, in rethe testator lives, to be safely kept until delivered or disposed of as gistry of prohereinafter provided; and the register, upon being paid the fee of one R. S. 62, § 10. dollar therefor, shall receive and keep such will and give a certificate of the deposit thereof.

may be depos

to be enclosed in sealed wrap

per, &c.

SECT. 13. Every will intended to be deposited as aforesaid, shall be enclosed in a sealed wrapper, shall have indorsed thereon the name of the testator, his place of residence, the day when, and the person R. §. 62, § 11. by whom, it was delivered; and may have indorsed thereon the name of any person to whom it is to be delivered after the death of the testator; and it shall not be opened nor read until delivered to a person entitled to receive the same, or otherwise disposed of as hereinafter provided.

to whom to be delivered.

SECT. 14. Such will shall, during the lifetime of the testator, be delivered only to himself, or to some person authorized by him by an R. S. 62, § 12. order in writing duly proved by the oath of a subscribing witness; and after his death, it shall be delivered to the person named in the indorsement on the wrapper of the will, if there is a person so named who shall demand it.

when to be

bate court.

SECT. 15. If no person demands the will in pursuance of such appointment, it shall be publicly opened at the first probate court held opened by proafter notice of the testator's death, and shall be retained in the registry R. S. 62, § 13. until it is there offered for probate; or if the jurisdiction of the case belongs to another court, it shall be delivered to the executors or other persons entitled to the custody thereof, to be presented for probate in such other court.

it, &c., within

testator's de

cease.

6 Greenl. 274.

SECT. 16. Every person, other than the register of the probate Possessor of court, having the custody of a will, shall, within thirty days after will to deliver notice of the death of the testator, deliver it into the probate court thirty days after which has jurisdiction of the case, or to the executors named in the will; and if, without reasonable cause, he neglects to do so after being R. S. 62, § 14. duly cited for that purpose by said court, he may be committed to the 4 Mass. 137. jail by warrant of the court, there to be kept in close custody until he 4 Pick. 33. delivers the will as above directed; and he shall be further liable to 15 mais 26 any party aggrieved for the damage sustained by such neglect. SECT. 17. Upon complaint under oath made to the probate court Proceedings by a person claiming to be interested in the estate of a person de- against persons ceased, against any one suspected of retaining, concealing, or con- concealing spiring with others to retain or conceal, any will or testamentary 1819, 146, § 1.

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mais 267

suspected of

wills, &c.

See Ch. 161, §§ 19, 20.

instrument of the deceased, the judge may cite the suspected person to appear before him and be examined on oath upon the matter of the complaint. If the person cited refuses to appear and submit to examination, or to answer such interrogatories as shall be lawfully propounded to him, or to obey any lawful order, the judge may commit him to the jail, there to remain in close custody until he submits to the See Ch. 161, § 20. order of the court. All such interrogatories and answers shall be in writing and signed by the party examined, and shall be filed in the probate court. But nothing in this section shall authorize the judge to require a person to criminate himself.

Costs.

1849, 146, §2.

Will, how
proved when

not objected to.
R. S. 62, § 15.
3 Mass. 236.

5 Pick. 510.

Mode of trial on

C., in case, &c.
R. S. 62, § 16.

SECT. 18. On such complaint the judge, in his discretion, may award costs to be paid by either party, and may issue execution therefor.

SECT. 19. When it appears to the probate court, by the consent in writing of the heirs at law, or other satisfactory evidence, that no person interested in the estate intends to object to the probate of a will, the court may grant probate thereof upon the testimony of one only of the subscribing witnesses.

SECT. 20. Upon an appeal from the probate of a will, if it appears appeal to S.J. from the reasons of appeal that the sanity of the testator or the attestation of the witnesses in his presence is in controversy, the supreme judicial court may for the determination thereof direct a real or feigned issue to be tried by a jury in the same court, at the expense of the appellant if the issue is found against him.

Will proved out

of state, how R. S. 62, §§ 17,

lowed here.

18.

SECT. 21. The executor or any person interested in a will proved al- and allowed in any other of the United States, or in a foreign country, according to the laws of such state or country, may produce a copy of the will and of the probate thereof, duly authenticated, to the probate court in any county in which there is any estate, real or personal, on which the will may operate; whereupon the court shall assign a time and place for hearing the case, and shall cause notice thereof to all persons interested to be given in some public newspaper three weeks successively, the first publication to be thirty days at least before the time assigned.

allowance of,

&c.

R. S. 62, § 19.

1843, 92.

1852, 29.

4 Greenl. 134.

16 Mass. 433. 4 Met. 252.

12 Met. 424.

cases.

R. S. 62, § 20.

SECT. 22. If it appears that the instrument ought to be allowed in this state as the last will and testament of the deceased, the court shall order the copy to be filed and recorded. The will shall then have the same force and effect as if it had been originally proved and allowed in the same court in the usual manner; but nothing in this section shall give effect to a will made in this state by an inhabitant thereof, not executed according to the laws of this commonwealth.

Estate to be set- SECT. 23. After allowing and recording a will pursuant to the two tled as in other preceding sections, the probate court shall grant letters testamentary thereon, or letters of administration with the will annexed, and shall proceed in the settlement of the estate that may be found in this state, in the manner provided in chapter one hundred and one with respect to the estates of persons who were inhabitants of another state or country.

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SECT. 24. When a man dies having lawfully disposed of his estate by will and leaving a widow, she may, at any time within six months after the probate of the will, file in the probate office in writing her waiver of the provisions made for her in the will; and shall in such case be entitled to such portion of his real and personal estate as she would have been entitled to if her husband had died intestate. If she makes no such waiver, she shall not be endowed of his lands, unless it plainly appears by the will to have been the intention of the testator that she should have such provisions in addition to her dower.

of

SECT. 25. When a testator omits to provide in his will for any his children, or for the issue of a deceased child, they shall take the

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