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CHAPTER XXXI.

Of Wills and Testaments.

§ 1. ALL persons of full age and sound mind, except married women, may give and bequeath real and personal estate by a last will and testament. In many of the states, perhaps most of them, personal estate may be willed by persons at an earlier age. In Ohio, Illinois, and Mississippi, females at eighteen may make a will of real and personal estate. In Connecticut, married women may dispose of real and personal estate by will, as any other person; and infants of either sex may bequeath personal estate at seventeen. Ohio, and perhaps some other states, personal estate may be willed verbally, if the will be reduced to writing within ten days after speaking the testamentary words, and subscribed by two disinterested witnesses.

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§ 2. A will devising real estate must be subscribed by at least two attending witnesses, in whose presence the testator must subscribe the will, or acknowledge that he subscribed it, and declare it to be his last will and testament. In the six New England states, New Jersey, and several others, three subscribing witnesses are necessary. In the state of Vermont, wills must be sealed. If the testator is unable to sign his will, another person may write the testator's name by his direction; but he should sign his own name as witness to the will. A will thus made is valid, unless revoked or altered by a later will or writing, executed in the same

manner.

§ 3. After the death of a testator who has bequeathed any real or personal estate, any executor, or any person interested in the estate, may have the will brought before the court for probate, which means proof. The court causes the witnesses to the will, and such others as any person interested may desire, to come before the court to be examined. An executor is a person named in the will of a testator, or otherwise appointed, to carry the will into effect.

§ 4. When a will has been duly proved and allowed, the

court issues letters testamentary to the executor. Letters testamentary give to an executor authority to carry a will into effect, and to settle the estate of the deceased. If the person named in the will refuses to act, or is not lawfully qualified, the court appoints a person, who, in that case, is called administrator; and the court issues letters of administration with the will annexed. It is the duty of an executor to follow the directions of the will, so far as it goes; and for the rest of his duties he must be governed by the law concerning administrators.

§ 5. Letters of administration are also issued in case of a person dying intestate. They give to the persons appointed to settle the estate of the intestate, the requisite authority to do so. They are issued, first, to the widow or next of kin, or both, as the court may think fit. If such person or persons are incompetent or unsuitable, or if they refuse to serve, the letters of administration are granted to such other person as the law designates. The law prescribes particularly the manner in which the property of deceased persons shall be disposed of, and their debts paid.

EXERCISES.

§ 1. Who are capable of devising real and personal estate? Does the same rule apply to willing personal estate?

§ 2. Describe the several requisites in executing a will. Is

that the manner in this state?

§ 3. On whose application, and by what court, are wills proved? What is an executor?

§ 4. Define the terms, letters testamentary, administrator, and letters of administration.

§ 5. To whom, first in order, are letters of administration issued?

CHAPTER XXXII.

Of the Proof and Recording of Deeds, Mortgages and Leases.

§ 1. EVERY person capable of holding real property, may also dispose of and convey his right to such property to another person. To convey here means to transfer, or pass over to others, the right or ownership of property, so that they shall have the same interest in it as the person conveying it had before he conveyed it. Hence, the writing by which this right is transferred, is called a conveyance; but more frequently the instrument by which a title to land is conveyed, is called deed.

§ 2. A purchaser of land could not hold it securely without a deed; because a person's deed is the proper evidence of his being the true owner. If a person should buy a farm without taking a deed of the seller, the seller might dispose of it to a second purchaser; and if he should give him a deed, such second purchaser, having a deed to show that he had bought the farm, might dispossess the first purchaser.

§ 3. Whenever, therefore, any real estate is to pass from one to another, the seller gives the buyer a deed. The deed mentions the names of the parties, the sum paid, the place where the land is situated, its boundaries, and the number of acres it contains. And as evidence of the sale, the seller affixes his name and seal to the instrument. This is generally done in the presence of one or more persons, who subscribe their names as witnesses; so that in case of dispute, the purchaser may know by whom to prove that the deed was executed by the person whose name it bears.

§ 4. But when a deed has been thus executed, the purchaser is not yet safe, unless he has had it recorded in the office of the recorder of the county in which the land lies; or in the office of the town clerk, in states wherein conveyances are required to be there recorded. If it should be conveyed by the seller to a second purchaser who should get his deed recorded first, such purchaser would hold the land.

§ 5. In most of the states, however, a reasonable time is allowed a purchaser to get his deed on record, before he loses his right of possession by the earlier recording of another's deed. In some states this time fixed by law, varying from fifteen days to two years. But a deed, though not recorded at all, is good against the seller or grantor; and the dispossessed purchaser has a lawful claim against him for the value of the land.

§ 6. Before a conveyance is recorded, the person executing it must acknowledge, before a proper officer, that he executed the conveyance; and the officer must certify in writing on the back or margin of the instrument, that the person did so acknowledge. In every state, either some or all of the following officers may take acknowledgments: judges of courts and justices of the peace; commissioners of deeds, appointed for that purpose; notaries public; mayors of cities and aldermen. Every deed duly acknowledged and delivered to the proper recording officers to be recorded, is, with the acknowledgment, copied at length, word for word, in a book provided for that purpose.

§ 7. Lands are also conveyed by mortgage. A mortgage is a writing which conveys to another person a right to property as security for the payment of a debt, and is to have no force or effect when the debt is paid. A mortgage conveys land in the same manner as a deed; but a condition is added, providing, that if the debt for which the land is pledged shall be paid by a certain day, the instrument shall no longer have effect.

§ 8. When land is sold, and any part of the purchase money is to be paid at a future day, the seller usually conveys the land by deed to the purchaser; and the purchaser executes a mortgage to the seller, pledging the land as security for the payment of the money remaining unpaid. A mortgage also contains a condition, that if the money shall not be paid according to the agreement, the mortgagee, or person holding the mortgage, may sell the land to raise the money due; but if he sells it for more than that amount, the overplus must be paid to the mortgager.

§ 9. A wife must join with her husband in conveying land, by signing the deed with him; otherwise, if the husband

should die, his widow would have a right to one-third part of the estate during her life. This portion of a widow thus retained, is called dower. It is common, therefore, for the wife also to sign the deed; and she must also acknowledge, before the officer taking the acknowledgment, and apart from her husband, that she signed the deed freely, and without compulsion of her husband. In some states, the acknowledgment of the wife out of the presence of her husband is not required.

§ 10. There is another kind of conveyance, called lease. To lease means to let, but generally to let real estate to another for rent or reward. The word demise is often used instead of lease. The landlord, or person leasing the estate, is called lessor; and the tenant, or person to whom the land is leased, is called lessee. Leases for a term of years, that is, for a term longer than one year, are, in many states, required to be sealed, proved and recorded, as deeds and mortgages.

EXERCISES.

§ 1. By whom may lands be conveyed? Define convey

ance.

§ 2. Why is a deed of conveyance necessary?

§ 3. Describe the nature of a deed.

4. Where are conveyances recorded in this state? Can you give any reason why conveyances should be recorded? § 5. How soon must a deed be recorded in this state to exclude a second purchaser? What would be the effect of a person's not having a deed recorded at all?

6. How and by whom are conveyances acknowledged? 7. What is the nature of a mortgage?

8. How is the sale of land on mortgage regulated? § 9. What is the effect of a wife's not signing a deed with her husband? What is dower?

§ 10. Define the terms lease, demise, lessor, lessee. What lease must be recorded?

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