AN ACT in regard to wills. [Approved March 20, 1872. In force July 1, 1872. L.

1871-2, p. 775-J

1. Who may devise property. SEC. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That every male person of the age of twenty-one years, and every female of the age of eighteen years, being of sound mind and memory, shall have power to devise all the estate, right, title and interest, in possession, reversion or remainder, which he or she hath, or at the time of his or her death shall have, of, in and to any lands, tenements, hereditaments, annuities or rents charged upon or issuing out of them, or goods and chattels, and personal estate of every description whatsoever, by will or tes

tament.

[R S. 1845, P. 536, § 1; Emmert v. Hays, 89 Ill. 11; Carpenter v. Calvert, 83 III. 62: Cagney v. O'Brien, 83 Ill. 72; In re Tuller, 79 Ill. 99 Lyon v. Kain, 36 III. 363; Harvey v. Thornton, 14 Ill. 217; Chicago v. Major, 18 Ill. 357; Rawson v. Rawson, 52 Ill. 62; Pool y. Blakie, 53 Ill. 495: Peters v. Spillman, 18 Ill. 370; Willis v. Watson, 4 Scam 67; Rhoads v. Rhoads, 43 Ill 240; Waldo v. Cummings, 45 Ill. 421; Heuser v. Harris, 42 Ill. 426; Gilman v. Hamilton, 16 Ill. 225; Kurtz v. Hibner, 55 Ill. 514; Duryea v. Duryea, 85 Ill. 41.

2. Will to be in writing and signed-witness—probate. 2. All wills, testaments and codicils, by which any lands, tenements, hereditaments, annuities, rents or goods and chattels are devised, shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom, declaring on oath or affirmation, before the county court of the proper county, that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, or acknowledge the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of

the execution of said will, testament or codicil, to admit the same to record: Provided, that no proof of fraud, compulsion or other improper conduct be exhibited, which, in the opinion of said county court, shall be deemed sufficient to invalidate or destroy the same; and every will, testament or codicil, when thus proven to the satisfaction of the court, shall, together with the probate thereof, be recorded by the clerk of said court, in a book to be provided by him for that purpose, and shall be good and available in law for the granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods and chattels therein and thereby devised, granted and bequeathed.

[R. S. 1845, P. 536, § 2; Harrington v. Stees, 82 Ill. 50; Crowley v. Crowley 80 Ill. 469; Doran v. Mullen, 78 Ill. 342; Yoe v. McCord, 74 Ill. 33; Amore v. Weishaar, 74 Ill. 109; Halloway v. Galloway, 51 Il. 159; Flian v. Owen, 58 Ill. 112; Dickie v. Carter, 42 Ill. 376; Brownfield v. Brownfield, 43 Ill. 148; Allison v. Allison, 46 Ill. 62; Gilbert v. Knox, 52 N. Y. 125; Walker v. Walker, 2 Scam. 291; Andrews v. Black, 43 Ill. 256 Duncan v. Duncan, 23 Ill. 364; Wild v. Sweeney, 84 Ill. 213; Duryea v. Duryea, 85 Ill. 41.

3. Witness to appear for probate-penalty. § 3. It shall be the duty of each and every witness to any will, testament or codicil, made and executed in this State, as aforesaid, to be and appear before the county court on the regular day for the probate of such will, testament or codicil, to testify of and concerning the execution and validity of the same; and the said court shall have power and authority [*1102] to attach and punish by fine and imprisonment, or either, any witness who shall, without a reasonable excuse, fail to appear when duly summoned for the purpose aforesaid: Provided, the said punishment by imprisonment shall in no case exceed the space of twenty days; nor shall a greater fine be assessed, for any such default, than the sum of $50.

[R. S. 1845, P. 537, § 3. Wild v. Sweeney, 84 Ill. 213.

4. Non-resident witness – dedimus potestatem. § 4. When any will, testament or codicil shall be produced to the county or probate courts for probate of the same, and any witness attesting such will, testament or codicil shall reside without the limits of this State, or the county in which such will, testament or codicil is produced for probate, or shall be unable to attend said court, it shall be lawful for such county or probate court, upon the application of any person asking for probate thereof, and upon such notice to persons interested as such county or probate court may, by special order, direct to issue a dedimus potestatem or commission under the seal of the court annexed to such will, testament or codicil, together with such interrogatories in chief and cross interrogatories as may be filed in said court, or as said court may direct to be propounded to such witness or witnesses, touching the execution of such will, testament or codicil, which commission shall be directed to any judge, master in chancery, notary public, justice of the peace, mayor or other chief magistrate of a city, United States consul or vice-consul, consular agent or seretary of lega tion, authorizing and requiring him to cause such witness or witnesses to come before him at such time and place as he may designate and appoint, and faithfully to take his, her or their depositions on oath or affirmation, upon all such interrogatories as may be inclosed with or attached to such commission, and none other, and certify the same when thus taken, together with the said commission and interrogatories, into the court out of which such commission issued, with the least possible delay. When so taken and returned into the court such deposition or depositions shall have the same operation, fo ce and effect, and such will, testament or codicil shall be admitted to probate in like manner, as if such oath or affirmation had been made in the court from whence such commission issued. Whenever a commission shall issue to any officer, above

mentioned, not by name but simply by his official title, then the seal of his office, attached to his certificate, shall be sufficient evidence of his identity and official character. [As amended by act approved May 27, 1881. In force July 1, 1881. L. 1881, p. 158. Reynolds v. Adams, 90 Ill. 142.

5. County judge witness. § 5. In all cases where a county judge, or such other person as may be authorized by law to grant probate of wills and testaments, may and shall have become a witness to any will or testament which is required by law to be proved before him as such county judge or person authorized to grant probate, as aforesaid, and the testimony of such witness is necessary to the proof of the same, then, and in such case, it shall be his duty to go before the circuit court of the county in which such will is to be admitted to record, and make proof of the execution of the same, in the same manner that probate of wills is required to be made in other cases. And it shall be the duty of the clerk of the circuit court aforesaid, forthwith to certify such will proven as aforesaid, to the county court of the county; and said will shall, thereupon, have the same force and effect that it would have had if it had been proven by one credible witness before the county court; and if there are other witnesses to said will, the county court shall take their evidence in support of said will, as in other cases. [R. S, 1845, p. 537, § 5.

6. Proof of handwriting of deceased witness. § 6. In all cases where any one or more of the witnesses to any will, testament or codicil, as aforesaid, shall die or remove to parts unknown to the parties concerned, so that his or her testimony cannot be procured, it shall be lawful for the county court, or other court having jurisdiction of the subject matter, to admit proof of the handwriting of any such deceased or absent witness, as aforesaid, and such other secondary evidence as is admissible in courts of justice to establish written contracts generally, in similar cases; and may thereupon proceed to record the same, as though such will, testament or codicil had been proved by such subscribing witness or witnesses, in his, her or their proper persons.

[R. S. 1845, P. 538, § 7. Ferguson v. Hunter, 2 Gilm. 663; Tarver v. Tarver, 9 Peters,

174.

7. Will contested. §7. When any will, testament or codicil shall be exhibited in the county court for probate thereof, as aforesaid, it shall be the duty of the court to receive probate of the same without delay, and to grant letters testamentary thereon to the person or persons entitled; and to do all other needful acts to enable the parties concerned to make settlement of the estate at as early a day as shall be consistent with the rights of the respective persons interested therein; [*1103] Provided, however, that if any person interested shall, within three years after the probate of any such will, testament or codicil, in the county court as aforesaid, appear, and by his or her bill in chancery, contest the validity of the same, an issue at law shall be made up, whether the writing produced be the will of the testator or testatrix or not: which shall be tried by a jury in the circuit court of the county wherein such will, testament or codicil shall have been proven and recorded as aforesaid, according to the practice in courts of chancery in similar cases; but if no such person shall appear within the time aforesaid, the probate as aforesaid shall be forever binding and conclusive on all the parties

concerned, saving to infants, femes covert, persons absent from the State, or non compos mentis, the like period after the removal of their respective disabilities. And in all such trials by jury, as aforesaid, the certificate of the oath of the witnesses at the time of the first probate, shall be admitted as evidence, and to have such weight as the jury shall think it may deserve.

[R. S. 1845, P. 537, § 6; Wolf v. Bollinger, 62 III. 368; Strubher v. Belsey, 79 Ill. 307; Meeker v. Meeker, 75 Ill. 260; Pingree v. Jones, 80 Ill. 177; Trish v. Newell, 62 Ill. 197; Yoe v. McCord, 74 I. 33; Carpenter v. Calvert, 83 Ill. 62; Rutherford v. Morris, 77 Ill. 398; Allmon v. Pigg, 82 Ill. 149; Milk v. Moore, 39 III. 588; Rigg v. Wilton, 13 Ill. 15; Potter v. Potter, 41 Ill. 84; Holloway v. Galloway, 51 Ill. 159. Blattner v. Weis, 19 Ill. 246; Brownfield v. Brownfield, 43 Ill. 147; Dickie v. Carter, 42 Ill. 377; Roe v. Taylor, 45 Ill. 485; Snow v. Benton, 28 Ill. 306; Emery v. Hoyt, 46 Ill. 253; Woodside v. Woodside, 21 Ill. 207; Wild v. Sweeney, 84 Ill. 214.

8. Devise, etc., to witness void. § 8. If any beneficial devise, legacy or interest shall be made or given, in any will, testament or codicil, to any person subscribing such will, testament or codicil, as a witness to the execution thereof, such devise, legacy or interest shall, as to such subscribing witness, and all persons claiming under him, be null and void, unless such will, testament or codicil be otherwise duly attested by a sufficient number of witnesses exclusive of such person, according to this act; and he or she shall be compellable to appear and give testimony on the residue of such will, testament or codicil, in like manner as if no such devise or bequest had been made. But if such witness would have been entitled to any share of the testator's estate, in case the will, testament or codicil was not established, then so much of such share shall be saved to such witness as shall not exceed the value of the said devise or bequest made to him or her as aforesaid. 1845, P. 539, § II.

[R. S.

9. Wills proven without the State, effect of. § 9. All wills, testaments and codicils, or authenticated copies thereof, proven according to the laws of any of the United States, or the territories thereof, or of any country out of the limits of the United States, and touching or concerning estates within this State, accompanied with a certificate of the proper officer or officers that said will, testament, codicil or copy thereof was duly executed and proved, agreeably to the laws and usages of that State or country in which the same was executed, shall be recorded as aforesaid, and shall be good and available in law, in like manner as wills made and executed in this State.

[R. S. 1845, P. 538, § 8; Richards v. Miller, 62 Ill. 418; Shephard v. Carriel, 19 Ill. 312; Poole v. Fleeger, in Peters, 211; McCormick v. Sullivant, 10 Wheat. 192.

10. Foreign wills admitted to probate. 10. All wills, testaments and codicils, which heretofore have been, or shall hereafter be made, exccuted and published out of this State, may be admitted to probate in any county in this State in which the testator may have been seized of lands, or other real estate, at the time of his death, in the same manner, and upon like proof as if the same had been made, executed and published in this State, whether such will, testament or codicil, has first been probated in the State, territory or country in which it was made and declared or not. And all original wills, or copies thereof, duly certified according to law, or exemplifications from the records in pursuance

of the law of congress in relation to records in foreign States, may be recorded as aforesaid, and shall be good and available in law, the same as wills proved in such county court.

[L. 1855, P. 44, § 1. Newman v. Willetts, 52 Ill. 99.

11. Place of probate. 11. If any testator or testatrix shall have a mansion house or known place of residence, his or her will shall be proved in the court of the county wherein such mansion house or place of residence shall be. If he or she has no place of residence, and lands be devised in his or her will, it shall be proved in the court of the county wherein the lands lie, or in one of them, where there shall be land in several different counties; and if he or she have no such known place of residence, and there be no lands devised in such will, the same may be proved either in the county where the testator or testatrix shall have died, or that wherein his or her estate, or the greater part thereof, shall lie.

[R. S. 1845, P. 540, 8 17. Wild v. Sweeney, 84 Ill. 214.

12. Custodian of will to deliver-penalty. § 12. Any person or persons who may have in his or her possession any [*1104] last will or testament of another, for safe keeping or otherwise, shall, immediately upon the death of the testator or testatrix, deliver up said will to the county court of the proper county; and upon a failure or refusal so to do, the county court may issue attachment, and compel the production of the same; and the person or persons thus withholding any such will, testament or codicil, as aforesaid, shall forfeit and pay $20 per month, from the time the same shall be thus wrongfully withheld, to be recovered by action of debt for the use of the estate, by any person who will sue for the same, in any court having jurisdiction thereof; and if any person to whom a will, testament or codicil hath been or shall be delivered by the party making it, for safe custody as aforesaid, shall alter or destroy the same without the direction of the said party, or shall willfully secrete it for the space of six months after the death of the testator or testatrix shall be known to him or her, the person so offending shall, on conviction thereof, be sentenced to such punishment as is or shall be inflicted by law, in cases of larceny. [R. S. 1845, p. 540, § 18.

13. Evidence in case of appeal. § 13. When the probate of any will and testament shall have been refused by any county court, and an appeal shall have been taken from the order or decision of such court refusing to admit such will to probate, into the circuit court of the proper county, as provided by law, it shall be lawful for the party seeking probate of such will, to support the same, on hearing in such circuit court, by any evidence competent to establish a will in chancery; and in case probate of such will shall be allowed on such appeal, it shall be admitted to probate, liable, however, to be subsequently contested, as provided in the case of wills admitted to probate in the first instance.

[L. 1845, P. 596, § 1; Crowley v. Crowley, 80 Ill. 471; Yoe v. McCord, 74 II. 33 Andrews v. Black, 43 Ill. 256; Walker v. Walker, 2 Scam. 294; Weld v. Sweeney, 85 111. 52.