PUBLIC STATUTES OF MASSACHUSETTS. 1882.

CHAPTER 127.

OF WILLS.

MAKING AND REVOCATION.

SECTION 1. Every person of full age and sound mind may by his last will in writing, signed by him 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, dispose of his estate, real and personal, excepting an estate tail, and excepting also as is provided in chapters one hundred and twenty-three and one hundred and twenty-four and in section six of chapter one hundred and forty-seven. [NOTE. C. 147, § 6, was repealed by Acts 1899, c. 479, § 13.]

SECT. 2. If a witness to a will is competent at the time of his attestation, his subsequent incompetency shall not prevent the probate and allowance of such will, nor shall a mere charge on the lands of the testator for the payment of his debts prevent his creditors from being competent witnesses to his will.

SECT. 3. A beneficial devise or legacy made in a will to a person who is a subscribing witness thereto, or to the husband or wife of such a person, shall be void unless there are three other competent subscribing witnesses to such will.

SECT. 4. A will made and executed in conformity with the law existing at the time of its execution shall be equally effectual as if made pursuant to the provisions of this chapter.

SECT. 5. A will made out of the commonwealth, and which is valid according to the laws of the state or country where it was made, may be proved and allowed in this commonwealth, and shall thereupon have the same effect that it would have had if executed according to the laws of this commonwealth.

SECT. 6. A soldier in actual military service or a mariner at sea may dispose of his personal estate by a nuncupative will.

SECT. 7. No will, except such as is mentioned in this chapter, shall be effectual to pass any estate, real or personal, or to change or in any way affect the same; and no will shall take effect until it has been duly proved and allowed in the probate court. Such probate shall be conclusive as to the due execution of a will.

[NOTE. See Acts of 1889, c. 435, as follows:
:-

A decree allowing a will or adjudicating the intestacy of the estate of a deceased person in any court in this Commonwealth having jurisdiction thereof shall, after two years from the rendition of such decree, or, if proceedings for a reversal thereof are had, after two years from the establishment of such decree, be final and conclusive in favor of purchasers for value, in good faith, without notice of any adverse claim, of any property, real or personal, from devisees, legatees, heirs, executors, administrators or guardians, and in favor of executors, administrators, trustees and guardians, who have settled their accounts in due form, and have in good faith disposed of the assets of the estate in accordance with law, and also in favor of persons who have in good faith made payments to executors, administrators, trustees or guardians. It is, however, provided that devisees, legatees, heirs and distributees shall, in case of a subsequent decree reversing or qualifying the decree so originally rendered, be liable to a subsequent executor, administrator or other person found entitled thereto, for any proceeds or assets of the estate received by them under the former decree, and in such case proceeds of real estate shall be treated as real estate. It is provided further that nothing contained in this act shall be construed to make an adjudication of the fact of death conclusive to an extent to which it would not be conclusive by existing law.]

SECTION 8. No will shall be revoked unless by the burning, tearing, cancelling, or obliterating of the same, with the intention of revoking it, by the testator himself or by some person in his presence and by his direction; or by some other writing signed, attested, and subscribed in the same manner that is required in the case of 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.

[NOTE. Amended by Acts of 1892, c. 118:

SECTION 1. The marriage of any person shall act as a revocation of any will made by such person previous to such marriage, unless it shall appear from the will itself that the will was made in contemplation of such marriage, or unless and except so far as the will is made in exercise of a power of appointment and the estate thereby appointed would not, in default of appointment, pass to the persons that would have been entitled to the same if it had been the testator's own estate and he or she had died without disposing of it by will.]

CUSTODY OF WILLS, AND THEIR PRODUCTION IN COUrt.

SECT. 9. A will may be deposited by the testator, or by any person for him, in the registry of probate in the county where the testator lives, to be safely kept until delivered or disposed of as here

inafter provided; and the register, upon being paid the fee of one dollar therefor, shall receive and keep such will, and give a certificate of the deposit thereof.

SECT. 10. Every will intended to be deposited as aforesaid shall be enclosed in a sealed wrapper, with an indorsement thereon of the name and place of residence of the testator, and of the day when and the person by whom it is deposited, and the wrapper may also have indorsed upon it the name of a person to whom the will is to be delivered after the death of the testator. A will, when so deposited, shall not be opened until it is delivered to a person entitled to receive it, or until it is otherwise disposed of as hereinafter provided.

SECT. II. During the lifetime of the testator such will shall be delivered only to the testator himself or in accordance with his 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, if such person demands it.

SECT. 12. If the will is not called for by the person, if any, named in the indorsement, it shall be publicly opened at the first probate court held after notice of the testator's death, and shall be retained in the registry until it is so opened; 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 by them presented for probate in such other court.

SECT. 13. Every person who has the custody of a will, other than a register of probate, shall, within thirty days after notice of the death of the testator, deliver such will into the probate court which has jurisdiction of the case, or to the executors named in the will, who shall themselves deliver it into such court within said time; and if any executor or other person neglects without reasonable cause so to deliver a will, after being duly cited for that purpose by such court, he may be committed to jail by warrant of the court, there to be kept in close custody until he delivers it as above; and he shall be further liable to any party aggrieved for the damage sustained by him by reason of such neglect.

[NOTE. See the Land Registration Act, c. 562, Acts of 1898, Sect. 92.]

SECT. 14. Upon complaint under oath made to a probate court by a person claiming to be interested in the estate of a person deceased against any one suspected of retaining, concealing, or con

spiring with others to retain or conceal, a will or testamentary instrument of the deceased, the court may cite the suspected person to appear before it and to be examined on oath upon the matter of the complaint. Upon such examination all interrogatories and answers shall be in writing signed by the party examined, and shall be filed in the court. If the person cited refuses to appear and submit to examination or to answer such interrogatories as are lawfully propounded to him, or to obey any lawful order of the court, he may be committed to jail by warrant of the court, there to remain in close custody until he submits to its order. On such complaint the court may in its discretion award costs to be paid by either party, and may issue execution therefor.

ALLOWANCE OF FOREIGN WILLS.

SECT. 15. Any person interested in a will proved and allowed in any other of the United States or in a foreign country according to the laws of such state or country, or in a will which, according to the laws of the state or country where it was made, is valid without probate, may produce to the probate court in any county in which there is any estate, real or personal, on which such will may operate, a copy of such will and of the probate thereof, duly authenticated, or, if such will is valid without probate as aforesaid, a copy of the will or of the official record thereof duly authenticated by the proper officer having custody of such will or record in such state or country; and the court shall thereupon assign a time and place for a hearing, and shall cause notice thereof to be given to all persons interested by publication in some newspaper three weeks successively, the first publication to be thirty days at least before the time assigned for the hearing.

SECT. 16. If at such hearing it appears from the copies before the court, and from such additional proof as to the authenticity and execution of the will as may be presented, that the instrument ought to be allowed in this commonwealth as the last will of the deceased, the court shall order the copy to be filed and recorded, and the will shall then have the same force and effect as if it had been originally proved and allowed in the probate court in the usual manner; but nothing in this section shall give effect to a will made in this commonwealth by an inhabitant but not executed according to the law thereof.

SECT. 17.

After allowing a will pursuant to the two preceding

sections, the probate court shall grant letters testamentary on such will or letters of administration with the will annexed, and shall proceed in the settlement of the estate that may be found in this commonwealth in the manner provided with respect to such estates in chapter one hundred and thirty-eight.

RIGHTS OF WIDOW.

SECT. 18. A widow may, at any time within six months after the probate of the will of her deceased husband, .file in the registry of probate a writing signed by her, waiving any provisions the husband may have made for her in his will, or claiming such portion of his estate as she would have been entitled to if he had died intestate, and she shall thereupon be entitled to the same portion of his estate, real and personal, that she would have been entitled to if he had died intestate, except that, if she would thus become entitled to his personal estate to an amount exceeding ten thousand dollars, she shall receive, in addition to that amount, only the income during her life of the excess of her share of such estate above that amount. When, after probate of such will, legal proceedings are instituted wherein its validity or effect is drawn in question, the probate court may within said six months, on petition of the widow and after such notice as it may order, extend the time for filing the aforesaid claim and waiver till the expiration of six months from the termination of such legal proceedings.

[NOTE. Repealed by Acts of 1899, c. 479, which see below.]

SECT. 19. The probate court may, upon application of any person interested, appoint one or more trustees to hold during the life of the widow any personal estate to the income of which she may be entitled under the preceding section; and a trustee so appointed shall be subject to the provisions, so far as applicable, of chapter one hundred and forty-one.

[NOTE. Repealed by Acts of 1899, c. 479, which see below.] SECT. 20. A widow shall not be entitled to her dower in addition to the provisions of her deceased husband's will, unless such plainly appears by the will to have been the intention of the testator.

PROVISIONS FOR SPECIAL CASES.

SECT. 21. When a testator omits to provide in his will for any of his children or for the issue of a deceased child, they shall take the same share of his estate that they would have been entitled to if he had died intestate, unless they have been provided for by the testa