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to descend.

child of the intestate living at his death, his estate shall How Lands, etc., 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 lifetime, 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;

7. If at the death of such child who shall die under age, and 12 Mass., 490. not having been married, all the other children of his said parent shall also 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 the said estate equally; otherwise they shall take according to the right of representation;

Megitimate children to inherit from mother.

Estate of illegiti

mate child, to

4 Pick., 93.

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.

(2813.) SEC. 2. Every illegitimate child shall be considered as an heir of 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.

(2814.) SEC. 3. If any illegitimate child shall die intestate, whom to descend. 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.

When child to be considered legiti

mate.

Cass Code, 112.

Computation of degrees of kin

(2815.) SEC. 4. When, after the birth of an illegitimate child, his parents 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.

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(2816.) SEC. 5. The degrees of kindred shall be computed dred; Half blood. 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.

1 Paige, 562.

Effect of advancement.

1 Pick.,

161.

When heir ad

vanced to be ex

tribution.

(2817.) SEC. 6. Any estate, real or personal, that may have been given by the intestate in his lifetime, 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.

(2818.) SEC. 7. If the amount of such advancement shall cluded from dis- exceed the 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.

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(2819.) SEC. 8. If such advancement be made in real estate, the value thereof shall, for the purposes mentioned in the preceding section, be considered a part of the real estate to be

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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.

In case of death

of heir advanced,

amount to be al

lowed by repre

(2822.) SEC. 11. If any child, or other lineal descendant so advanced, shall die before the intestate, leaving issue, the 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.

(2523.) SEC. 12. Nothing in this chapter shall affect the title Construction 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

(2524.) SEC. 13. Inheritance or succession, "by right of Inheritance, etc., representation," takes place when the descendants of any resentation. 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.

SECTION

2825. Who may Devise Lands, etc.

2826. Construction of Devise.

2827. Estate in Lands acquired after making Will.

2828. Who may bequeath Personal Estate. 2829. How Wills to be executed.

2830. Nuncupative Wills.

2831. When Legacy, etc., to subscribing Witness void.

2832. When Share of Estate to be saved to subscribing Witness.

2833. Revocation of Wills.

2834. When Wills may be deposited with Judge of Probate.

2835. How such Will kept and disposed of. 2836. Judge of Probate to give notice of his possession of Will.

2837. Others having custody of Will to deliver same in thirty days.

2838. Within what time Executor to present Will to Probate Court.

2839. Liability for neglect of duties in certain

cases.

2840. When person having custody of Will may be committed for neglect to deliver same to Probate Court.

2841. Notice of time and place of proving Will. 2842. When Probate may be granted on testimony of one Witness.

2843. When other Witnesses may be admitted to prove Will.

SECTION

2844. Effect of proof and allowance of Will in Probate Court.

2845. Wills proved and allowed in other States,

etc.

2846. When copy of Will and Probate produced,

notice to be given.

2847. If Will allowed, copy to be filed and recorded.

2848. Letters Testamentary, etc., on such Will.

2849. Provision for Children born after making of Will.

2850. When Provision for Child omitted by mistake, etc.

2851. From what Estate Provision to be taken. 2852. When the Issue of deceased Legates to take Estate.

2853. Estate of Testator liable for payment of debts, etc.; allowance for maintenance of widow, etc.

2854. Estate appropriated by Will to be applied to payment of debts, etc. 2855. When provision insufficient, etc. 2856. Estate given by Will liable to payment of debts, etc., when certain devises, etc., to be exempted. 2957. Estates given by Will liable for payment of debts, may be retained by Executor until assigned.

2858. When Devisee or Legatee to hold subject to liability to contribute, etc.

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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

(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 Pick., 112. making the will, if such shall manifestly appear by the will to have been the intention of the testator.

6 Mass., 129.
1 Cushing, 366.

4 Scammon, 67.

queath personal

(2828.) SEC. 4. Every person of full age and sound mind, who may be. may, 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.

(4) 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.

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