Pages 118-137
|  Pages 166-191
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| Pages 118-137
| Pages 166-191
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| CHAP. LX. An act directing the course of descents. |
From Rev. Bills of 1779, ch. XX. |
| I. Be it enacted by the General Assembly, That henceforth when any person having title to any real estate of inheritance, shall die intestate as to such estate, it shall descend and pass in parency [parcenary] to his kindred male and female in the following course, that is to say: | Descents, course of. |
| II. To his children or their descendants, if any there be: | |
| III. If there be no children nor their descendants, then to his father. | |
| IV. If there be no father, then to his mother, brothers and sisters; and their descendants, or such of them as there be: | |
| V. If there be no mother, nor brother, nor sister, nor their descendants, then the inheritance shall be divided into two moieties, one of which shall go to the paternal, and the other to the maternal kindred, in the following course, that is to say: | |
| VI. First to the grandfather: | |
| VII. If there be no grandfather, then to the grandmother, uncles and aunts on the same side, and their descendants, or such of them as there be: | |
| VIII. If there be no grandmother, uncle nor aunt, nor their descendants, then to the great grandfathers, or great grandfather if there be but one. | |
| IX. If there be no great grandfather, then to the great grandmothers, or great grand mother if there be but one, and the brothers and sisters of the grandfathers and grandmothers, and their descendants, or such of them as there be: | |
| X. And so on in other cases without end; passing to the nearest lineal male ancestors, and for the want of them to the lineal female ancestors in the same degree, and the descendants of such male and female lineal ancestors, or to such of them as there be. | |
| XI. But no right in the inheritance shall accrue to any person whatever, other than to children of the intestate, unless they be in being and capable in law to take as heirs at the time of the intestates death. | Non can inherit, except children, unless in being at intestate's death. |
| XII. And where for want of issue of the intestate, and of father, mother, brothers and sisters, and their descendants, the inheritance is before directed to go by moieties to the paternal and maternal kindred, if there should be no such kindred on the one part, the whole shall go to the other part: And if there be no kindred either on the one part or the other, the whole shall go to the wife or husband of the intestate. And if the wife or husband be dead, it shall go to her or his kindred, in like course as if such wife or husband had survived the intestate and then died, entitled to the estate. | If no paternal kindred, the whole to the maternal; if no
maternal, the whole to paternal. If none of either, to husband or wife. If wife or husband dead. |
| XIII. And in the cases before mentioned where the inheritance is directed to pass to the ascending and collateral kindred of the intestate, of part of such collaterals be of the whole blood to the intestate, and other part of the half blood only, those of the half blood shall inherit only half so much as those of the whole blood: But if all be of the half blood, they shall have whole portions, only giving to the ascendants (if there be any) double portions. | Whole & half blood, how to take. |
| XIV. And where the children of the intestate, or his mother, brothers, and sisters, or his grandmother, uncles, and aunts, or any of his female lineal ancestors living, with the children of his deceased lineal ancestors male and female in the same degree come into the partition, they shall take per capita, that is to say by persons; and where a part of them being dead, and a part living, the issue of those dead have right to partition, such issue shall take per stirpes, or by stocks, that is to say, the share of their deceased parent. | Per capita. Per stirpes. |
| XV. And where any of the children of the intestate, or their issue, shall have received from the intestate in his life-time any real estate by way of advancement, and shall chooose to come into partition with the other parceners, such advancement shall be brought into hotchpot with the estate descended. | Advancements. |
| XVI. In making title by descent it shall be no bar to a demandant that any ancestor through whom he derives his descent from the intestate, is or hath been an alien. Bastards also shall be capable of inheriting or transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother. | Aliens, defcent through Bastards, through mothers. |
| XVII. Where a man having by a woman one or more children, shall afterwards intermarry with such | Bastards legitimated. |
| woman, such child or children, if recognized by him, shall be thereby legitimated. The issue also in marriages deemed null in law shall nevertheless be legitimate. | |||
| XVIII. This act shall commence and be in force from and after the first day of January, one thousand seven hundred and eighty-seven. | Commencement of act. | ||
 CHAP. LXI. | |||
|
From Re.v Bills of 1779, ch. XXI. | ||
| I. BE it enacted by the General Assembly, That every person aged twenty-one years or upwards, being of sound mind, and not a married woman, shall have power, at his will and pleasure, by last will and testament in writing, to devise all the estate, right, title, and interest, in possession, reversion, or remainder, which he hath, or at the time of his death shall have, on, in, or to lands, tenements, or hereditaments, or annuities, or rents charged upon issuing out of them; so as such last will and testament be signed by the testator, or by some other person in his presence, and by his direction; and moreover, if not wholly written by himself, be attested by two or more credible witnesses subscribing their names in his presence. | Wills of lands. In writing. How attested. | ||
| II. Saving to the widows of testators, their dower in such lands, tenements, rents, or annuities, according to the laws, which shall not be prejudiced by any devise thereof. | Saving dower of widows. | ||
| III. No devise so made, or any clause thereof, shall be revocable, but by the testator's destroying, cancelling, or obliterating the same, or causing it to be done in his presence, or by a subsequent will, codicil, or declaration in writing, made as aforesaid. But every last will and testament, made when the testator had no | Revocation of such wills. Wills made when testator had no child. |
| child living, wherein any child he might have is not provided for, or mentioned, if at the time of his death he leave a child, or leave his wife enseint of a child, which shall be born, shall have no effect during the life of such after born child, and shall be void unless the child die without having been married, or before he or she shall have attained the age of twenty-one years. When a testator shall leave children born, and his wife enseint, the posthumous child or children, if neither be unprovided for by settlement, and be neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father's estate, as such child would have been entitled to, if the father had died intestate; towards raising which portion, the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament. | Posthumous children pretermitted. |
| IV. No person under the age of eighteen years shall be capable of disposing of his chattels by will. | Disposition of chattels, by will. |
| V. No nuncupative will, shall be established unless it be made in the time of the last sickness of the deceased, at his habitation, or where he hath resided for ten days next preceding, except where the deceased is taken sick from home and dies before he returns to such habitation; nor where the value exceeds ten pounds, unless it be proved by two witnesses that the testator called on some person present to take notice or bear testimony that such is his will, or words of the like import. | Nuncupative wills. |
| VI. After six months have elapsed from the time of speaking the pretended testamentary words, no testimony shall be received to prove a nuncupative will, unless the testimony, or the substance thereof, shall have been committed to writing within six days after making the will. | When not of force. |
| VII. No will in writing or any devise therein of chattels, shall be revoked by a subsequent will, codicil, or declaration, unless the same be in writing. | Revocation of wills of chattels. |
| VIII. Any soldier in actual military service, or any mariner or seaman being at sea, may dispose of his chattels as he might heretofore have done. | Wills by soldiers and sailors. |
| IX. If any person shall subscribe his name, as a witness to a will wherein any bequest is given to him, if the will may be not otherwise proved, the bequest shall be void, and such witness shall be allowed and compellable | Witness, a legatee. |
| to appear and give testimony on the residue of the will, in like manner as if no such bequest had been made. But if such witness would be entitled to any share of the testator's estate in case the will were not established, so much of his said shares shall be saved to him as shall not exceed the value of the legacy bequeathed him. | |
| X. The several county, city, or corporation courts, shall have power to hear and determine all causes, matters, suits, and controversies, testamentary, arising within their respective jurisdictions, and to examine and take the proof of wills, and grant certificates thereof according to the methods and rules following, that is to say: If any testator shall have a mansion house or known place of residence, his will shall be proved in the court of the county, city, or corporation wherein such mansion-house or place of residence is: If he hath no such place of residence, and lands be devised in the will, it shall be proved in the court of the county, city, or corporation wherein the lands lie, or in one of them where there shall be lands in several counties: And if he hath no such known place of residence, and there be no lands devised, then the will may be proved either in the court of the county, city, or corporation where the testator shall die, or that wherein his estate, or the greater part thereof, shall be, or such will may in any case be proved in the general court. | Jurisdiction of courts, as to probats. |
| XI. When any will shall be exhibited to be proved, the court having jurisdiction as aforesaid, may proceed immediately to receive the proof thereof, and grant a certificate of such probat: If however, any person interested, shall within seven years afterwards appear, and by his bill in chancery contest the validity of the will, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury, whose verdict shall be final between the parties; saving to the court a power of granting a new trial for good cause, as in other trials; but no such party appearing within that time, the probat shall be forever binding. | When probat may be received. Validity of will, how contested. |
| XII. In all such trials by jury, the certificate of the oath of the witnesses, at the time of the first probat, shall be admitted as evidence, to have such weight as the jury shall think it deserves. | Evidence, on trial of issue. |
| XIII. No nuncupative will shall be proved within fourteen days after the death of the testator, nor until his widow (if any) and next of kin shall have been summoned to contest the same if they please. | Nuncupative wills, when proved. |
| XIV. If the general court, or any county, city, or corporation court, having jurisdiction as aforesaid, shall be informed that any person hath the will of a testator in his custody, such court may summon such person, and by a proper process compel him to produce the same. | Production of wills, how compelled. |
| XV. If the executors named in any will shall all refuse the executorship, or being required to give security, as herein after-mentioned, shall refuse, or fail to give the same, which shall amount to a refusal, of the executorship, in either case, the court having jurisdiction as aforesaid, may receive the proof of the will, and grant a certificate for obtaining letters of administration with the same annexed, to the person to whom administration would have been granted if there had been no will of the deceased. | Administration with the will annexed, when. |
| XVI. Before granting a certificate of the probat of any will, the executor or administrator with the will annexed, as the case shall be, shall in open court take the following oath, to wit: "You shall swear that this writing contains the true last will of the within named , as far as you know or believe; and that you will well and truly perform the same, by paying first his debts, and then the legacies contained in the said will, as far as his goods, chattels, and credits will extend and the law charge you; and that you will make a true and perfect inventory of all the said goods, chattels, and credits, as also a just account when thereto required." And shall also give bond in such penalty as will be equal to the full value of the estate at the least, and with such security as shall be approved of by the court, with the following condition, to wit: −− "The condition of this obligation is, that if the said , executor of the last will and testament (or administrator with the will annexed, of all the goods, chattels, and credits) of , deceased, do make a true and perfect inventory of all and singular the goods, chattels, and credits of the said deceased, which have or shall come to the lands, possession, or knowledge of , the said , or into the hands or possession of | Oath of executor or administrator, with the will
annexed. Bond. |
| any other person or persons for , and the same so made, do exhibit into the court , at such time as shall be thereto required by the said court; and the same goods, chattels, and credits, do well and truly administer according to law; and make a just and true account of actings and doings therein, when thereunto required by the said court; and further, do well and truly pay and deliver all the legacies contained and specified in the said will, as far as the said goods, chattels, and credits will extend, according to the value thereof, and as the law shall charge ; then this obligation to be void, or else to remain in full force." | |
| XVII. Which bond shall be payable to the judges or justices sitting in court, and their successors, and shall not become void upon the first recovery, but may be put in suit and prosecuted from time to time, by, and at the costs of any party injured, by a breach thereof, until the whole penalty be recovered thereupon. | To whom bond payable, and how prosecuted. |
| XVIII. But where any testator shall leave visible estate, more than sufficient to pay all his debts, and by will shall direct that his executors shall not be obliged to give security, in that case no security shall be required, unless the court shall see cause from their own knowledge, or the suggestions of creditors or legatees to suspect the executors of fraud, or that the testator's personal estate will not be sufficient to discharge all his debts, and shall require security, when the same shall be given, before a certificate shall be granted, notwithstanding any directions to the contrary in the testator's will. | When no security required. |
| XIX. The power of executors over their testator's estates before probat of the will, is not hereby restrained, but shall continue as heretofore. | Power of executors before probat. |
| XX. During any contest about a will, or in the absence of executors, or whenever the court, from any other cause, shall judge it convenient, they may appoint any person or persons to collect and preserve the estate of any decendent, until a probat of his will, or administration of his estate, be granted, taking bond and security for collecting the estate, making an inventory thereof, and safe keeping and delivering up | Curator appointed, during contest about a will. |
| the same, when required, to the executors or administrators. | |
| XXI. When any widow shall not be satisfied with the provision made for her by the will of her husband, she may within one year from the time of his death, before the general court, or court having jurisdiction of the probat of his will as aforesaid, or by deed, executed in the presence of two or more credible witnesses, declare that she will not take, or accept the provision made for her, by such will, or any part thereof, and renounce all benefit which she might claim by the same will, and thereupon such widow shall be entitled to one-third part of the slaves whereof her husband died possessed, which she shall hold during her life, and at her death they and their increase shall go to such person or persons to whom they would have passed and gone if such declaration had not been made; and she shall moreover be entitled to such share of his other personal estate as if he had died intestate, to hold to her as her absolute property; but every widow, not making a declaration within the time aforesaid, shall have no more of her husband's slaves and personal estate, than is given her by his will. | Widow dissatisfied with will, when and how she may renounce. |
| XXII. And that if any widow possessed of a slave or slaves as of the dower of her husband, shall remove, or voluntarily permit to be removed out of this commonwealth, such slave or slaves, or any of their increase, without the consent of him or her in reversion, such widow shall forfeit all and every such slave or slaves, and all other the dower which she holds of the endowment of her husband's estate, unto the person or persons that shall have the revision thereof; any law, custom, or usage to the contrary, notwithstanding. | Widow removing dower slaves. |
| XXIII. And if any widow possessed as aforesaid, shall be married to a husband who shall remove, or voluntarily permit to be removed of this commonwealth, any such slave or slaves, or any of their increase, without the consent of him or her in reversion; in such case it shall be lawful for him or her in reversion to enter into, possess, and enjoy all the estate which such husband holdeth in right of his wife's dower for and during the life of the said husband. | Husband of widow removing dower slaves. |
| XXIV. All original wills shall be recorded, and shall also remain in the clerk's office of the court wherein they are respectively proved, except during | Wills to be recorded, and remain in clerk's office. |
| such time as they may be in any superior court, having been removed thither for inspection by certiorari, or otherwise, after which they shall be returned to the said office. | |
| XXV. When any person shall die intestate as to his goods and chattels or any part thereof, after funeral, debts, and just expences paid, if there by no child, one moiety, or if there be a child or children, one-third of the surplus shall go to the wife, but she shall have no more than the use for her life of such slaves as shall be in her share, and the residue of the surplus, and after the wife's death, the slaves in her share, or if there be no wife, then the whole of such surplus shall be distributed in the same proportions, and to the same persons, as lands are directed to descend in, and by an act of general assembly, intituled "An act directing the course of descents." Nothing in this act contained, shall be understood so as to compel the husband to make distribution of the personal estate of his wife dying intestate. Where any children of the intestate, or their issue, shall have received from the intestate in in his life-time, any personal estate by way of advancement, and shall choose to come into the distribution with the other persons entitled, such advancement shall be brought into hotchpot with the distributable surplus. | Intestate's estates, how distributed. Widow's dower therein, Husband not bound to distribute estate of his wife, dying intestate. Hotchpot. |
| XXVI. The general court, and the several courts, respectively, shall have the like jurisdiction to hear and determine the right of administration of the estates of persons dying intestate, as is herein before mentioned, as to the proof of wills, in respect to the intestate's place of residence, or death, or where the estate shall lie, and shall grant certificates for obtaining such administration to the representatives who apply for the same, prefering first the husband or wife, and then such others as are next entitled to distribution, or one or more of them, as the court shall judge will best manage and improve the estate. | Jurisdiction in granting administration. Who to be prefered. |
| XXVII. If no such person applies for administration within thirty days from the death of an intestate, the court may grant administration to any creditor or creditors who apply for the same, or to any other person the court shall in their discretion think fit: But if any will shall afterwards be produced, and proved by executors, or the wife or other distributee, who shall | When administration granted to creditor. Creditor may be superseded, by grant to others, or proof will. |
| not have before refused, shall apply for the administration, the same shall be granted, in like manner as if the former had not been obtained. | |
| XXVIII. Before granting a certificate for the administration of any estate, the person or persons to whom the same is granted, shall in open court take the following oath, to wit: "You shall swear that deceased, died without any will, as far as you know or believe; and that you will well and truly administer all and singular the goods, chattels, and credits of the said deceased, and pay his debts as far as his goods, chattels, and credits will extend, and the law require you; and that you will make a true and perfect inventory of all the said goods, chattels, and credits, as also a just account when thereunto required. So help you God." | Oath of administrator. |
| XXIX. And shall also give bond, in a penalty at least equal to the value of the estate, and with such security as shall be approved by the court; with the following condition, to wit: "The condition of this obligation is, that if the said , administrator of the goods, chattels, and credits of , deceased, do made a true and perfect inventory of all and singular the goods, chattels, and credits of the said deceased, which have or shall come to the hands, possession, or knowledge of , the said , or in the hands or possession of any other person or persons, for ; and the same so made do exhibit into the court, , when he shall thereto required by the said court; and such goods, chattels, and credits, do well and truly administer according to law; and further, do make a just and true account of his acting and doings therein, when thereto required by the said court: And all the rest of the said goods, chattels, and credits, which shall be found remaining upon the account of the said administrator, the same being first examined and allowed by the justices of the said court for the time being, shall deliver and pay unto such persons respectively as are entitled to the same by law; and if it shall hereafter appear that any last will and testament was made by the deceased, and the same be proved in court, and the executor obtain a certificate of the probat thereof, and the said do in such case, being required, render and deliver up his letters of administration, then this obligation | Bond. |
| to be void, else to remain in full force;" which bond shall be payable to the sitting justices and their successors, and may be put in suit and prosecuted in like manner, as is before directed in the case of bonds to be given by executors or administrators, with the will annexed. | |
| XXX. But no security for any executor or administrator shall be chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading or false pleading of such executors or administrators. | Securities not liable beyond the assets, for defect of pleading. |
| XXXI. If any court shall grant a certificate for obtaining administration of the estate of any person deceased without taking good security for them, as aforesaid, to be judged of according to the apparent circumstances of the security when taken, and not from subsequent accidents or discoveries thereof, the justices of such court then sitting shall be answerable to the person or persons injured, for all loss or damage occasioned by the not requiring any, or by the taking insufficient security, recoverable with costs, by action on the case, in any court of record. | Court liable, if insufficient security taken. |
| XXXII. When securities for executors or administrators conceive themselves in danger of suffering thereby, and petition the court for relief, the court shall summon the executor or administrator, and make such order or decree thereupon, to relieve and secure the petitioners, by counter security, or otherwise, as to them shall seem just and equitable. | How securities relieved. |
| XXXIII. All certificates of probat or of administration, attested by the clerk, shall enable the executor or administrator to act, and may be produced or given in evidence in any court within this commonwealth, and be as effectual as any probat or letters of administration made out in due form; nevertheless the clerks of the courts shall, when required by an executor or administrator, make out such probat or letters, in due form, in the name of the first justice of the court, which probat or letters shall be signed by such justice, and sealed with the county, city, or corporation seal, if the will be proved in a county, city, or corporation court, or with the seal of the commonwealth, if proved in the general court. | Certificates of administration effectual. Letters of administration in due form. |
| XXXIV. The clerk of every county, city, or corporation court, shall half yearly, in the months of April | Lists of administrations to be returned |
| and October, return to the clerk of the general court, a list of all certificates granted in his court for probats and administrations within the preceding half year, in this form [date of certificate] [name of testator or intestate] [names of securities] [penalty of bond] which lists, together with such certificates as are granted in the general court, alphabetically, in books for that purpose. | to clerk of general court. |
| XXXV. Every court granting a certificate for a probat or administration, shall nominate three or more appraisers in every county, city, or corporation, where any of the personal estate of the decedent shall be, who being sworn before a justice of the peace, for that purpose, shall truly, and justly, to the best of their judgment, view and appraise all the personal estate, to them produced; and shall return such appraisement under their hands to the court ordering the same; which appraisement, if signed by the executor or administrator, may be considered as an inventory of such part of the estate as had therefore come to his hands. | Appraisers. |
| XXXVI. Inventories and appraisements may be given in evidence in any suit, by or against the executor or administrator, but shall not be conclusive for or against him if other testimony be given that the estate was really worth, or was, bona fide, sold for more or less than the appraisement. | Inventories and appraisements, how far evidence. |
| XXXVII. Each appraiser shall be entitled to thirty pounds of tobacco, per day, for his attendance, to be paid by the executor or administrator, and charged to the estate. | Appraiser allowance. |
| XXXVIII. Executors and administrators, whether it be necessary for payment of debts, or not, shall as soon as convenient, after they are qualified, sell at public sale, all such goods of their testator, or intestate, specific legacies excepted, as are liable to perish, be consumed, or rendered worse by keeping, giving such credit as they shall judge best, and the circumstances of the estate will admit of, taking bond and good security of the purchasers, and shall account for such goods according to the sales. If more be sold than will pay the debts and expences, the executor or administrator may assign the bonds for the surplus, to those entitled to the estate, and be discharged as to so much. | Sale of perishable goods |
| XXXIX. If such perishing goods be not sufficient for paying the debts and expences, the executor or administrator shall proceed in the next place to sell the other personal estate, disposing of the slaves last, until the debts and expences be all paid, having regard to the privilege of specific legacies. | Sale of other personal estate; slaves last. |
| XL. Nevertheless, if the testator direct his estate not to be appraised, it shall be sufficient to return an inventory thereof only; and if he direct his estate not to be sold, the same shall be preserved in specie, unless a sale be necessary for the payment of debts. | When no appraisement necessary. |
| XLI. The dead victuals and liquors, which at the death of any testator or intestate shall have been laid in for consumption in his family, shall not be sold by the executor or administrator, but shall remain for the use of such family without account thereof to be made: If, however, before its final consumption, any child shall leave the family, such child shall have a right to carry with him an equal share of what shall then be on hand. Any live stock which may be necessary for the food of the family, may also be killed for that use, at any time before the sale, division, or distribution of the estate. | Dead victuals and liquors, for use of family. |
| XLII. The sale and conveyance of lands devised to be sold, shall be made by the executors, or such of them as shall undertake the execution of the will, if no other person be thereby appointed for that purpose, or if the person so appointed shall refuse to perform the trust, or die before he shall have completed it. | Sale of lands devised to be sold, how made. |
| XLIII. If any person shall die after the first day of March, the servants and slaves of which he as possessed, whether held for life or for other interest and which were employed in making a crop, shall be continued on the plantations in the occupation of the decedent, until the last day of December following, and then delivered to those who shall have a right to demand the same; and their crops shall be assets in the hands of the executors and administrators, subject to debts, legacies, and distribution; the levies and taxes, their tools, the expence of feeding them and their families to that time, and delivering them well clothed, being first deducted. And if such servants or slaves be held by the testator or intestate for his life only, in that case the executor or administrator shall be obliged to deliver to those who are entitled in remainder or reversion, three | Rules as to servants, slaves and crops. |
| barrels of Indian corn for every such servant or slave, old and young, to be allowed in their accounts of administration. | |
| XLIV. If a testator or intestate shall die after the first day of March, all the emblements of his lands, which shall be severed before the said thirty-first day of December following, shall, in like manner be assets in the hands of the executor or administrator; but all such emblements growing on the lands on that day, or at the time of the death of the testator or intestate, if that event happen after the thirty-first day of December, and before the first day of March, shall pass with the land to the heir, devisee, reversioner, or remainder man. | Emblements. |
| XLV. If there be tenant for life of lands or slaves let or hired to another, at the death of such tenant for life, if that event happen after the first day of March, the lessee, or person hiring, shall hold the lands and slaves until the last day of December following, paying rent or hire to that time, and in the case of slaves, delivering them well clothed: | Tenant for life dying. |
| XLVI. The rent of land or hire of slaves shall be apportioned between the executor or administrator of him who having a freehold, or other uncertain estate in the land, and the use for life, or for other uncertain term in the slaves, shall die before the rent or hire become due, and him who shall succeed to the land and slaves, as heir, devisee, or person in reversion or remainder, unless in the case of a devisee, the contrary be directed by the testator. | Rent & hire apportioned. |
| LXVII. The appointment of a debtor executor shall in no case be deemed an extinguishment of the debt, unless it be so directed in the will. | Debtor appointed executor. |
| XLVIII. No distribution shall be made of an intestate's state [estate] until nine months after his death, nor shall and administrator be compelled to make distribution at any time, until bond and security be given by the person entitled to distribution, to refund due proportions of any debts or demands, which may afterwards appear against the intestate, and the costs attending the recovery of such debts. | Distribution of intestates, when made. Bond to refund. |
| LXIX. Executors and administrators shall be allowed in their accounts all reasonable charges and disbursements which they shall lay out and expend in the | Allowances to executors and administrators. |
| funeral of the deceased, and other their administration, and in extraordinary cases may be allowed such recompence for their personal trouble, as the court on passing their accounts shall judge reasonable. | |
| L. The executors or administrators of a guardian of a committee, or of any other person, who shall have been chargeable with, or accountable for the estate of a ward, an ideot, or a lunatic, or the estate of a dead person, committed to their testator or intestate by a court of record, shall pay so much as shall be due from their testator or intestate, to the ward, ideot, or lunatic, or to the legatees or persons entitled to distribution, before any proper debt to their testator or intestate. | Debts of first dignity, guardian to ward. |
| LI. Where any persons shall die seized of lands held for life of another, such person may, by his or her last will and testament, in writing, made and proved as is herein before directed, for the devise of lands, devise all his interest in such lands, which shall, if necessary, be assets in the hands of such devisee. And if no such devise be made, such lands for the residue of the term, shall be assets in the hands of the heir, if it shall come to him by reason of a special occupancy, in the same manner as lands descending in fee simple; and if there shall be no special occupant, it shall go to the executors or administrators of the person so dying seized, and be assets in their hands, subject to debts, legacies, and distribution. | Power of tenant to devise. |
| LII. Executors or administrators may sue or be sued upon all judgments, bonds, or other specialties, bills, notes, or other writings of their testators or intestates, whether the executors or administrators be, or be not named in such instruments, and also upon all their personal contracts. | Suits against executors or administrators. |
| LIII. Actions of trespass may be maintained by or against executors or administrators, for any goods taken and carried away in the life-time of the testator or intestate; and the damages recovered shall be in the one case for the benefit of the estate, and in the other out of the assets. | Tresspass. |
| LIV. Executors of executors shall do and perform all things in the execution of the will of the first testator, which shall remain done at the death of the first executor; and shall and may sue or be sued in all things respecting the estate, in the same manner as such first executor could or might have sued or been sued. | Executors of executors; |
| LV. If all the executors named in any last will, shall refuse to undertake the executorship, or being required to give security, shall refuse to give, or be unable to procure the same, and no person will apply for administration with the will annexed: Or if no person will apply for administration of the goods and chattels of any intestate, it shall be lawful for the general court, or other court having jurisdiction of such probat or administration as herein before mentioned, after the expiration of three months from the death of the testator or intestate, to order the sheriff of the county, city, or corporation, to take the estate into his possession, and make sale of so much thereof by public auction, as the payment of debts shall make necessary, or as shall be perishable, or be directed by will to be sold: And all sales and conveyances, bona fide made by the sheriff or his deputies, in consequence of such order, shall be as effectual to the purchasers, as if they had been made by the testator or intestate in his life time. The estate shall be sold upon such credit, as the court shall direct, and upon public notice previously given, the purchasers giving bond and good security for payment according to the limited time of credit. The sheriff may sue, if necessary, for the recover of debts, or of goods and chattels, and shall make a true and perfect inventory of the whole estate, and an account of sales, and shall return the same, together with the bonds, to the court by whom he was ordered to sell, without delay, who shall first direct the payment of such debts as shall be proved before them, and proportion the assets amongst the creditors, without regard to the dignity of debts, where there shall not be sufficient to pay the whole; and then order the surplus, if any, to the legatees or next of kin to the decedent, according to the directions of the will, or of this act. Whereupon the sheriff, or deputy, shall assign the bonds, and deliver the estate remaining unsold, to the creditors, or others, according to such order, retaining nevertheless his commissions, which shall be the same upon the estate by him sold, as is allowed for goods taken in execution: and where the whole estate is not sold, he shall moreover be allowed his resonable expences and disbursements in the care of the part unsold. | Estate committed to sheriff, when, his power & duty. |
| LVI. All sales and conveyances of lands heretofore bona fide made by a sheriff, under an order of court, | Sales by sheriffs confirmed |
| where the lands had been devised to be sold, and the executor had refused to act, are hereby confirmed and made effectual against all persons claiming under the testator. | |
| LVII. This act shall commence and be in force from and after the first day of January, one thousand seven hundred and eighty-seven. | |
| CHAP. LXII.* An act for regulating conveyances. |
From Rev. Bills of 1779. ch. XXII. |
| I. BE it enacted by the General Assembly, That no estate of inheritance, or freehold, or for a term of more than five years in lands or tenements, shall be conveyed from one to another unless the conveyance be declared by writing, sealed and delivered; nor shall such conveyance be good against a purchaser, for valuable consideration, not having notice thereof, or any creditor, unless the same writing be acknowledged by the party or parties who shall have sealed and delivered it, or be proved by three witnesses to be his, her, or their act, before the general court of that county, city, or corporation, in which the land conveyed, or some part thereof, lieth, or in the manner herein after directed, within eight months after the time of sealing and delivering, and be lodged with the clerk of such court, to be there recorded. No covenant or agreement made in consideration of marriage shall be good against a purchaser, for valuable consideration, not having notice thereof, or any creditor, unless the same covenant or agreement be acknowledged by the party bound thereby, or be proved by three witnesses to be his, her, or their act; if land be charged before the general court, or the court of that county in which the land or part thereof lieth, or if personal estate only be settled, or covenanted, or agreed to be paid or settled, before the court of that county in which such | Conveyances of lands, to be by deed. When and where recorded. Marriage contracts. |
| |
| * Erroniously numbered XLII in the original. |
| party shall dwell, or in the manner hereinafter directed, within eight months after the covenant or agreement made and be lodged with the clerk of such court, to be there recorded. If the party who shall sign and seal any such writing reside not in Virginia, the acknowledgment by such party, or the proof by the number of witnesses requisite, of the sealing and delivering of the writing, before any court of law, or the mayor, or other chief magistrate of any city, town or corporation of the county in which the party shall sell, certified by such court, or mayor, or chief magistrate, in the manner such acts are usually authenticated by them, and offered tot he proper court to be recorded, within eighteen months after the sealing and delivering, shall be as effectual as if it had been in the last mentioned court. When husband and wife shall have sealed and delivered a writing, purporting to be a conveyance of any estate or interest, if she appear in court, and being examined privily, and apart from her husband, by one of the judges thereof, shall declare to him that she did freely and willingly seal and deliver the said writing, to be then shewn and explained to her, and wishes not to retract it, and shall, before the said court, acknowledge the said writing, again shewn to her, to be her act, or if before two justices of the peace of that county in which she dwelleth, if here dwelling be in the United states of America, who may be empowered by commission to be issued by the clerk of the court wherein the writing ought to be recorded, to examine her privily, and take her acknowledgment, the wife being examined privily and apart from her husband, by those commissioners, shall declare that she willingly signed and sealed the said writing, to be then shewn and explained to her, by them, and consenteth that it may be recorded; and the said commissioners shall return with the commission, and thereunto annexed, a certificate, under their hands and seals, of such privy examination by them, and of such declaration made, and consent yielded by her, in either case the said writing acknowledged also by the husband, or proved by witnesses to be his act, and recorded, together with such her privy examination and acknowledgment before the court, or together with such commission and certificate, shall not only be sufficient to convey or release any right of dower thereby intended to be conveyed or released, but be as effectual | Proof of deeds out of the state, how and when to be recorded. Wife's relinquishment of dower, how taken in the state. |
| for every other purpose as if she were an unmarried woman. If the dwelling of the wife be not in the United States of America, the commission to examine her privily and take her acknowledgment, shall be directed to any two judges or justices of any court of law, or to the mayor, or other chief magistrate of any city, town, or corporation of the county in which the wife shall dwell, and may be executed by them in the same manner as a commission directed to two justices in the United States of America; and the certificate of the judges or justices of such court, or the certificate of such mayor or chief magistrate, authenticated in the form, and with the solemnity by them used in other acts, shall be as effectual as the like certificate of the justices in the United States of America. The clerk of every court shall record all writing acknowledged, or proved before such court, or certified to have been acknowledge or proved, in manner before prescribed, together with the commissions for privily examining and taking the acknowledgments of married women, and all endorsement son such writings, and plots, schedules, and other papers thereto annexed, by entering them, word for word, in well bound books, to be carefully preserved, and afterwards re-deliver them to the parties entitled to them; and shall moreover make a docket of all such writings, containing the dates thereof, and of the acknowledgments and probats, the names, sur-names, and additions of the parties thereto, in alphabetical order, and the quantities and situations of land, numbers and names of slaves, and decriptions of personal estate conveyed thereby; and the clerk of every county court shall transmit such docket made by him to the clerk of the general court, in every April and October term, to be recorded by him. Every estate in lands or slaves, which on the seventh day of October, in the year of our Lord one thousand seven hundred and seventy-six, was an estate in fee tail, shall be deemed from that time to have been, and from thence forward to continue, and estate in fee simple; and every estate in lands, which since hath been limited, or hereafter shall be limited, so that as the law aforetime was, such estate would have been an estate tail, shall also be deemed to have been and to continue an estate in fee simple: And all estates, which before the said seventh | Relinquishment of dower how taken out of the state. Deeds of relinquishment of dower to be recorded. Originals to be re-delivered to parties. Memorials to be transmitted to clerk of general court. Fee tail converted into simple. Discharged of conditions. |
| tenements, or hereditaments, hath or shall have such inheritance in the use or trust as that if it had been a legal right, the husband or wife of such person would thereof have been entitled to curtsey or dower, such husband or wife shall have and hold, and may by the remedy proper in similar cases, recover curtsey or dower of such lands, tenement s, or hereditaments. −− Grants of rents, or of reversions, or remainders, shall be good and effectual without attornments of the tenants, but no tenant who, before notice of the grant, shall have paid the rent to the grantor, shall suffer any damage thereby. The attornment of a tenant to any stranger, shall be void, unless it be with consent of the land-lord of such tenant, or pursuant to, or in consequence of the judgment of a court of law, or the order or decree of a court of equity. | Dower, curtsey. Attornment. |
| II. This act shall commence and be in force from and after the first day of January, one thousand seven hundred and eighty-seven. | Commencement of act. |
| CHAP. LXIII. An act concerning escheators. |
From Rev. Bills of 1779, ch. XXIV. |
| I. Be it enacted by the General Assembly, That there shall be one escheator commissioned in every county, by the governor, on recommendation from the court of the same county, who shall execute his office in proper person, and not by deputy, and shall, before the court of the county, be bound in the penalty of one thousand pounds, with security, to be approved by the same court, duly to perform the duties of the said office. | Escheators, how appointed. Bond and security. Not act by deputy. |
| II. The said escheator shall sit in convenient and open places, and shall take his inquests of fit persons, who shall be returned and empannelled by the sheriff of the county, and shall suffer every person to give evidence openly in their presence, to such inquests; and the said inquisition so taken, shall be, by indentures to be made between the said escheator and them of the inquest, whereof the counter-part, sealed by the escheator, shall remain in the possession of the first person | Inquests, how to be taken. |
| that shall be sworn in the said jury, and by him shall be returned to the court of the same county, there to be recorded; and the other part, sealed by the jurors, shall by the escheator, be sent into the general court, within one month after the inquest taken. And if it be found for the commonwealth, and there shall be any man that will make claim to the lands, he shall be heard without delay, on a traverse to the office, monstrans de droit, or petition of right; and the said lands or tenements shall be committed to him, if he shew good evidence of his right and title to hold, until the right shall be found and discussed for the commonwealth, or for the party finding sufficient surety to prosecute his suit with effect, and to render and pay to the commonwealth the yearly value of the lands, if the right be discussed for the commonwealth. | Traverse, monstrans de droit. |
| III. No lands or tenements seized into the hands of this commonwealth upon such inquest taken before escheators, shall be in any wise granted, nor to farm let, to any, if it be not to him or them which claim, as is aforesaid, till the same inquests and verdicts be fully returned in to the general court, not within six months after the same return, but shall entirely and continually remain in the hands of the escheators, who shall answer to the commonwealth the issues and profits yearly coming of the said lands and tenements, without doing waste or destruction. | Lands, found for commonwealth, how long to remain in hands of escheator. |
| IV. If no person within the six months before mentioned make claim to the lands or tenements so seized, or claim being so made, if it be found and discussed for the commonwealth, the clerk of the general court shall, within one month thereafter, certify to the escheator of the county wherein the lands lie, that no claim hath been made, or that being made, it hath been discussed for the commonwealth, which escheator shall thereupon proceed to make sale of the lands, for the benefit of the commonwealth, to him who will give the most, after one month's public notice of the time and place of doing the same, and shall certify the purchaser and price to the register of the land-office, who, on receiving a certificate that such price hath been paid into the treasury, shall have a grant executed to the purchaser, in such manner as by law directed in the case of unappropriated lands. | When and how sold. |
| V. Where any person holds lands or tenements for a term of years, or hath any rent, common, office, fee, or other profit apprender of any estate of freehold, or for years or otherwise, out of such land or tenements, which shall not be found in such office or inquisition, such person shall hold and enjoy his lease, interest, rent, common, office, fee, and profit apprender, in manner as if no such office or inquisition had been found, or as if such lease, interest, rent, common, office, or profit apprender had been found in such inquisition. Also, if one person or more be found heir by office or inquisition in one county, and another person be found heir to the same person in another county, or if any person be untruly found lunatic, ideot, or dead, or where it shall be untruly found that any person attainted of treason or felony, is seized of any lands, tenements, or hereditaments, at the time of such treason or felony committed, or at any time after, whereunto any other person hath any just title or interest of any estate of freehold, the person grieved by such office or inquisition may have his travers or monstrans de droit to the same, without being driven to any petition of right, and proceed to trial therein, and have like remedy and restitution upon his title, found or judged for him therein, as in other cases of traverse upon untrue inquisition found. | Saving rights of others. Inquests, untruly found remedy. |
| VI. This act shall commence and be in force from and after the first day of January, one thousand seven hundred and eighty-seven. | Commencement of act. |
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| CHAP. LXIV. An act to prevent frauds and perjuries. |
From Rev. Bills of 1779, ch. XXV. |
| I. BE it enacted by the General Assembly, That no action shall be brought whereby to charge any executor or administrator upon any special promise to answer any debt or damages out of his own estate, or | Certain contracts not binding uuless in writing. |
| whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or the making any lease thereof for a longer term than one year, or upon any agreement which is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized. | |
| II. Every gift, grant, or conveyance of lands, tenements, hereditaments, goods or chattels, or of any rent, common or profit out of the same, by writing or otherwise, and every bond, suit, judgment or execution, had or made, and contrived of malice, fraud, covin, collusion or guile, to the intent or purpose to delay, hinder, or defraud creditors of their just and lawful actions, suits, debts, accounts, damages, penalties, or forfeitures, or to defraud or deceive those who shall purchase the same lands, tenements, or hereditaments, or any rent, profit, or commodity out of them, shall be from henceforth deemed and taken (only as against the person or persons, his, her, or their heirs, successors, executors, administrators or assigns, and every of them, whose debts, suits, demands, estates interests, by such guileful and covinous devices and practices, as is aforesaid, shall or might be in any wise disturbed, hindered, delayed or defrauded) to be clearly and utterly void, any pretence, colour, feigned consideration, expressing of use, or any other matter or thing, to the contrary notwithstanding. And moreover, if a conveyance be of goods and chattels and be not on consideration deemed valuable in law, it shall be taken to be fraudulent within this act, unless the same be by will duly proved and recorded, or by deed in writing acknowledged or proved, if the same deed include lands also, in such manner as conveyances of land are by law directed to be acknowledged or proved, or if it be of goods and chattels only, then acknowledged or proved by two witnesses in the general court, or court of the county wherein one of the parties live, within eight | Conveyances to defraud creditors void. What conveyances deemed fraudulent |
| months after the execution thereof, or unless possession shall really and bona fide remain with the donee. And in like manner where any loan of goods and chattels shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained by the space of five years without demand made, and pursued by due process at law on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use or property, by way of condition, reversion, remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another as aforesaid, the same shall be taken as to the creditors and purchasers of the persons aforesaid, so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession, unless such loan, reservation, or limitation of use or property, were declared by will or by deed, in writing proved, and recorded as aforesaid. | Loans when fraudulent. |
| III. This act shall not extend to any estate or interest in any lands, goods, chattels, or any rents, common or profit out of the same, which shall be upon good consideraton, and bona fide, lawfully conveyed or assured to any person or persons, bodies politic or corporate. | Not to extend to bona fide conveyances. |
| IV. This act shall commence and be in force from and after the first day of January, one thousand seven hundred and eighty-seven. | Commencement of act. |
| CHAP. LXV. An act concerning the dower and jointures of widows. |
From Rev. Bills of 1779. ch. XXVII. |
| I. BE it enacted by the General Assembly, That a widow after the death of her husband shall tarry in the mansion house of her husband and the plantation thereto belonging, rent free, until her dower shall be assigned her. And if she be thereof in the mean time deforced, she shall have a vicontiel writ, in the nature of | Widow may remain in mansion house till dower assigned. |
| writ, de quarentina habenda, directed to the sheriff, whereupon such proceedings and speed shall be used as hath or might have been used on the said writ of quarentine. | Remedy, if deforced. |
| II. Whosever shall deforce widows of their dowers of the lands whereof their husdands died seized, or of such mansion house or plantation, if the same widows shall after recover by plea; they that be convicted of such wrongful deforcement, shall yield damages to the same widows, that is to say, the value of the whole dower to them belonging, from the time of the death of their husbands unto the day that the said widows by judgment have recovered seizin of their dower. In a writ of dower called unde nihil habet, the writ shall not abate by the exception of the tenant, because the demandant hath received her dower of another man before her wri purchased, unless he can shew that the dower so received was in satisfaction of her right of dower in the lands whereof she demands dower. | Damages for deforcing widows of dower, What exception shall not abate the writ. |
| III. In case where the husband being impleaded for land by default, the woman after his death demanding her dower, shall be heard, and if it be alledged against her, that her husband lost the land whereof the dower is demanded by judgment, whereby she ought not to have dower, and then it be inquired by what judgment, and it be found that it was by default, whereupon the tenant must anser, then it behoveth the tenant to answer further, and to shew that he had right and hath in the aforesaid land, according to the form of the writ that the tenant before purchased against the husband. And if he can shew that the husband of such wife had no right in the lands, nor any other but he that holdeth them, the tenant shall go quit, and the wife shall recover nothing of her dower, which thing if he cannot shew, the wife shall recover her dower. | Judgment by default against husband, no bar to widow. |
| IV. And where sometime it chanceth that a woman not having a right to demand dower, the heir being within age doth purchase a writ of dower against a guardian, and the guardian endoweth the woman by favour, or maketh default, or by collusion defendeth the plea so faintly, whereby the woman is awarded her dower in prejudice of the heir, it is provided, that the heir when he cometh to full age, shall have an action to demand the seizin of his ancestor against such a woman, lie as he should have against any other deforcer. | Remedy, where the widow is endowed to the prejudice of the heir within age. |
| Yet so that the woman shall have her exception saved against the demandant, to shew that she had right to her dower, which if she can shew, she shall go quit, and retain her dower, and if not, the heir shall recover his demand. In like manner the woman shall be aided, if the heir or any other do implead her for her dower, if she lose her dower by default, in which case the default shall not be so prejudicial to her, but that she shall recover her dower if she had right thereto; and she shall have this writ, "Command A. that justly, &c. he render to B. who was the wife of F. so much land, with the appurtenances, in C. which she claims to be her reasonable dower, or of her reasonable dower, and that the aforesaid A. deforceth her, &c." And to this writ the tenant shall have his exception, to shew that she had no right to be endowed, which if he can verify, he shall go quit, if not, the woman shall recover the land whereof she was endowed before. Also, widows may bequeath the crop of their ground, as well of their dowers as of other their lands and tenements. | Judgment by default against the widow, no bar. Writ of dower. What tenant may plead. Widow may bequeath crops. |
| V. But if a wife willingly leave her husband, and go away and continue with her adulterer, she shall be barred forever of action to demand her dower, that she ought to have of her husband's lands, if she be convict thereupon, except that her husband willingly, and without coercion, reconcile her, and suffer her to dwell with him, in which case she shall be restored to her action. | Forfeiture of dower. |
| IV. Also, if any estate be conveyed by deed or will, either expressly or by averment, for the jointure of the wife, in lieu of her dower, to take effect in her own possession, immediately on the death of her husband, and to contiue during her life at the least, determinable by such acts only as would forfeit her dower at the common law, such conveyance shall bar her dower of the residue of the lands, tenements, or hereditaments, which at any time were her said husband's. but if the said conveyance were before the marriage, and during the infancy of the feme, or if it were made after marriage, in either case the widow may at her election wave such jointure, and demand her dower. | Jointure, in lieu of dower |
| VII. When any conveyance intended to be in lieu of dower shall through any defect fail to be a legal bar thereto, and the widow availing herself of such defect, shall demand her dower, the estate and interest conveyed | Defective conveyances in lieu of dower, effect of. |
| to such widow, with intention to bar her dower, shall thereupon cease and determine. | |
| VIII. If a widow be lawfully expulsed, or evicted from her jointure, or any part thereof, without any fraud or covin, by lawful entry or action, she shall be endowed of as much of the residue of her husband's lands, tenements, or hereditaments, whereof she was before dowable, as the same lands, tenements, or hereditaments, so evicted and expulsed, shall amount or extend to. | Widow evicted of jointure how recompensed. |
| IX. This act shall commence and be in force from and after the first day of January, one thousand seven hundred and eighty-seven. | Commencement of act. |
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| CHAP. LXVI. An act for the preservation of the estates of ideots and lunatics. |
From Rev. Bills of 1779. ch. XXVIII. |
| I. BE it enacted by the General Assembly, That the lands, tenements, and chattels, of ideots and lunatics, shall be safely kept without waste and destruction, and they and their household shall live, and be maintained competently with the profits of the same, and the residue, besides their sustentation, shall be kept for their use, to be delivered unto them when they come to right mind: And if they die in such estate, their lands shall be rendered to the right heirs, and their chattels distributed. | Estates of ideots and lunatics, how preserved. |
| II. This act shall commence and be in force from and after the first day of January, one thousand seven hundred and eighty seven. | Commencement of act. |
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