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SEC. 136. Upon an agreement ir tion of such property, being made same shall be reported to the cour. ing the same; and if it be confirmed executed under the direction of the ove SEC. 137. All sales, leases, disposte good faith by the guardian, in pursuan firmed, shall be valid and effectual as i lawful age.

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SEC. 138. From the time of such app fant shall be considered as a ward of the such property, its proceeds and income; (make) orders for the application and d such property, and for the investment of such infant, so as to secure the same for la a return of such investment and disposition soon as may be, and shall require accom cally by any guardian or other person who disposition of the income of such proceeds

SEC. 139. No sale made as aforesaid, of fant, shall give to such infant any other in the proceeds of such sale, than he ha the said proceeds shall be deemed real the property sold.

SEC. 140. If the real estate of any subject to dower, and the person enti in witing to accept a gross sum in li

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[graphic]

per

to

purposes.

county shall have power ministration of the estate of e of their decease, inhabitd of all who shall die withch county to be administerid others in the cases preand all such other powers

aw.

Powers and jurisdiction of

judges or probate.

jurisdiction of all matters Ib. of such deceased persons, lianship.

in administering

e power to administer all Power of judge iness before the probate oaths. › administered to persons uch court.

TITLE XXI.

CHAPTER 90.

Release of right of dower to be

made before in

vestment.

Proceeding when circuit judge a party, or interested.

Appeal to supreme court.

How appeal perfected.

On entry of ap peal, &c. proceedings stayed.

Copy of bill, &c. to be made and

vestment of a reasonable sum, in such manner as that the interest thereof be made payable to the person entitled to such dower, during life, the court may direct the payment of such sum in gross, or the investment of such sum as shall be deemed reasonable, and shall be acceptable to the person entitled to such dower, in manner aforesaid; which sums so paid or invested, shall be taken out of the proceeds of the sale of the real estate of such infant.

SEC. 141. Before any such sum shall be paid, or such investment made, the court shall be satisfied that an effectual release of such right of dower has been executed.

Cases in which a Justice of the Supreme Court may exercise the Powers of a Court of Chancery out of his Judicial Circuit.

SEC. 142. Whenever the circuit judge shall be a party to a suit in a court of chancery in his judicial circuit, or related to any party to such suit, or in any way interested in the event thereof, or whenever he has been solicitor or counsel for either party in any such cause, the bill or petition shall be addressed to some other justice of the supreme court, who shall hold the court of chancery of the proper county for the trial and determination thereof, and shall have and exexercise all the powers of the proper circuit judge in relation to such causes; and appeals may be taken therein as in other cases. Of Appeals to the Supreme Court.

SEC. 143. Any complainant or defendant who may think himself aggrieved by the decree or final order of a circuit court in chancery, in any cause, may appeal therefrom to the supreme court.

SEC. 144. Such appeal shall be claimed and entered within forty days from the time of making of such decree or final order, and the appellant shall, within the said forty days, file with the register or clerk who entered such decree or order, a bond to the appellee, with sufficient sureties to be approved by the commissioner or a justice of the supreme court, and in such sum as the commissioner or such justice shall direct, conditioned to pay, satisfy or perform the decree or final order of the supreme court, and to pay all costs, in case the decree or order of the circuit court in chancery shall be affirmed.

SEC. 145. Upon the entering of such appeal and the filing of such bond, as directed in the preceding section, all further proceedings in the cause in the circuit court in chancery shall be stayed until otherwise ordered by the supreme court; but if the appeal shall not be entered, and such bond filed within the time above limited therefor, no appeal shall be allowed.

SEC. 146. When such appeal shall be perfected, it shall be the duty of the register, in thirty days thereafter, to make a copy of the transmitted by bill, other pleadings, papers and proceedings in the cause, and transmit the same to the clerk of the supreme court residing in the judicial circuit in which such county may be.

register.

Powers of su preme court on appeal.

SEC. 147. Upon any order or decree of the circuit court in chancery being brought by appeal to the supreme court, that court shall examine all errors that may be assigned or found in such order or decree, and shall hear and determine such appeal, and all matters concerning the same, and shall have power to reverse, affirm or alter such order or decree, and to make such other order or decree therein, as shall be just.

SEC. 148. When an appeal shall have been so heard and determin

TITLE XXI.

CHAPTER 91.

ed, all the proceedings, together with the decree or order of the supreme court therein, and all things concerning the same, shall be remitted to the circuit court in chancery for the proper county, where Proceedings to such further proceedings shall be thereupon had, as may be necessary to carry such decree or order into effect.

be remitted to court of chance

ry, &c.

tices,

for decree or or

SEC. 149. When such appeal from any order or decree of the cir- Circuit judge cuit court in chancery shall be heard before the supreme court, the my, and inform circuit judge by whom such order or decree was made shall be author- court of reasons ized to sit with the justices of the said supreme court, and inform der, &c. such court of the reasons for his decree or order, but shall have no voice in the final determination upon such appeal.

CHAPTER 91.

OF THE PROBATE COURTS.

SECTION 1. Every judge of probate shall hold a probate court in Judges of prohis county, at the times and places established by law, and may ad- bate to hold journ the same from time to time as occasion may require.

courts, and may adjourn the same

ceedings to be

SEC. 2. Every probate court shall be a court of record, and have a To be a court of seal; and each judge of probate shall keep a true and fair record of record, and proeach order, sentence and decree of the court, and of all wills proved recorded, &c. therein, with the probate thereof, of all letters testamentary and of administration, and of all other things proper to be recorded; and, on the legal fees being paid, shall give true copies of the files, records and proceedings of the court, certified by him under the seal of such

court.

dence.

SEC. 3. All copies so attested, shall be legal evidence in all the Effect of attested courts of law and equity in this state; and certificates of probate of copies, as eviadministration, or of guardianship, attested by the judge of probate 1842, p. 107. may be given in evidence, and have the same effect as any probate, letter of administration, or letter testamentary or of guardianship, made out in due form of law.

SEC. 4. The probate court shall be deemed open at all times for Court always the transaction of any ordinary business which may be necessary open for certain therein, when previous notice is not required to be given to the purposes. person interested.

judges or pro

SEC. 5. The judge of probate for each county shall have power to Powers and ju take the probate of wills, and to grant administration of the estate of risdiction of all persons deceased, who were at the time of their decease, inhabit- bate. ants of, or residents in the same county, and of all who shall die without the state, leaving any estate within such county to be administered; and to appoint guardians to minors and others in the cases prescribed by law, and shall have and exercise all such other powers and jurisdiction as are or may be conferred by law.

SEC. 6. The judge of probate shall have jurisdiction of all matters relating to the settlement of the estates of such deceased persons, and of such minors and others under guardianship.

Ib.

oaths.

SEC. 7. The judge of probate shall have power to administer all Power of judge oaths necessary in the transaction of business before the probate in administering court, and all oaths required by law to be administered to persons executing trusts under the appointment of such court.

TITLE XXI.

CHAPTER 91.

Process.

Orders, &c., how enforced.

Who shall serve process.

Commissioners

ny.

SEC. 8. The several judges of probate shall have power to issue all warrants and processes in conformity to the rules of law, which may be necessary to compel the attendance of witnesses residing in any part of this state, or to carry into effect any order, sentence or decree of the probate courts, or the powers granted them by law.

SEC. 9. If any person shall refuse or neglect to perform any order, sentence or decree of a probate court, such court may issue a warrant, directed to any sheriff, constable or other proper officer in this state, requiring him to apprehend and imprison such person in the common jail of the county, until he shall perform such order, sentence or decree, or be delivered by due course of law.

SEC. 10. All sheriffs, deputy sheriffs, coroners and constables shall serve and execute all legal warrants and processes to them directed by any judge of probate.

SEC. 11. When a witness whose testimony is necessary to be used to take testimo- before any court of probate, shall reside out of this state, or by reason of age or bodily infirmity, shall be unable to attend in person, the court may issue a commission to one or more competent persons to take the testimony of such witness; and depositions taken according to the provisions of law, for taking depositions to be used on the trial of civil causes, may be used on the trial of any question before the probate court, where such testimony may be proper.

Contempts, how punished.

When jurisdic. tion not to be contested.

When court first taking cogni. zance to retain jurisdiction.

Presumption in favor of orders, &c., after twenty years.

When circuit court commissioners to hold court.

Ib.

Ib.

SEC. 12. The judge of probate shall have power to keep order in his court, and to punish any contempt of his authority, in like manner as such contempt may be punished in the circuit court.

SEC. 13. The jurisdiction assumed in any case by a judge of probate, so far as it depends on the place of residence of any person, or the location of his estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the same record.

SEC. 14. When a case shall be originally within the jurisdiction of the probate court of two or more counties, the court which shall first take cognizance thereof by the commencement of proceedings, shall retain the same throughout.

SEC. 15. When the validity of any order or decree of a probate court shall be drawn in question in any other suit or proceeding, everything necessary to have been done or proved to render the order or decree valid, and which might have been proved by parol at the time. of making the order or decree, and was not required to be recorded, shall, after twenty years from such time, be presumed to have been done or proved, unless the contrary appears on the same record.

SEC. 16. If a judge of probate shall remove out of his county, or shall die, resign, or otherwise become incapacitated for executing the duties of his office, the circuit court commissioner for such county shall hold the court, have all the powers, and perform all the duties of judge of probate therein, until such incapacity shall be removed, or until another judge shall be elected and qualified.

SEC. 17. When a judge of probate, his wife or child, shall be an heir or legatee, or when such judge shall be an executor or administrator of a deceased person, he shall be deemed incapacitated for executing the duties of his office in relation to that estate; and the circuit court commissioner for the same county shall perform such duties. SEC. 18. When the judge, as creditor, or otherwise, shall be interested in any question to be decided by the court, he shall be deemed

CHAPTER 91.

to be incapacitated for acting in the decision of that question, and the TITLE XXI. circuit court commissioners for the same county, in such case, shall perform the duties of judge of probate.

employed as at

SEC. 19. No judge of probate shall be retained or employed as so- When judge of licitor, attorney or counsel in any suit or matter which may depend probate not to be on, or in any way relate to, any sentence or decree made or passed by torney, &c. him; nor shall he be solicitor, attorney or counsel, for [or] against any executor, administrator or guardian appointed within his jurisdiction, in any suit brought by or against the executor, administrator or guardian, as such, nor in any suit relating to the official conduct or duty of such party.

Clerk, &c., in probate office ser, &c., in certain cases.

When oath may

SEC. 20. No clerk or other person employed in the office of any probate court, shall be commissioner, appraiser, or divider of any es- not to be apprai tate, in any case that is within the jurisdiction of such court. SEC. 21. When any executor, administrator, guardian or trustee, who is required to make oath to any account, is unable, by reason of be administered sickness or otherwise, to attend personally in the probate court for by judge out of that purpose, the judge may either proceed himself to administer the justice of the oath to the accountant, out of court, or may by his order, authorize peace, &c. any justice of the peace or notary public to administer it; and a certificate of the oath with the account, and the vouchers therewith, and the order, if any, shall be returned into the office of the judge of probate, and be there filed and recorded.

court, or by a

Other oaths may

&c.

SEC. 22. All other oaths required to be taken, by executors, admin- be taken by istrators, guardians and trustees, commissioners, appraisers and di- judge or justice, viders of estates, or by any other persons, in relation to any proceeding in the probate court, may be administered either by the judge of probate, or by any justice of the peace, or notary public, and a certificate thereof, when taken out of the court, shall be returned into the probate court, and there be filed and recorded.

Certain warranta

SEC. 23. Any warrant or commission, for the appraisement of any may be reestate, for examining claims against estates, for partition of real es- voked. state, or for the assignment of dower, may be revoked by the judge of probate for sufficient cause, and the judge may thereupon issue a new commission, or proceed otherwise therein, as the circumstances of the case shall require.

deemed sufficient

SEC. 24. No bond required by law to be given to the judge of probate, Bonds when not to be filed in his office, shall be deemed sufficient, unless it shall have unless approved been examined and approved by the judge, and his approval thereof by judge, &c. endorsed thereon in writing, and signed by him.

SEC. 25. In all cases not otherwise provided for, any person aggrieved Appeals. by any order, sentence, decree or denial of a judge of probate, may appeal therefrom to the circuit court for the same county, by filing a notice thereof with the judge of probate within sixty days from the date of the act appealed from, with his reasons for such appeal, together with such bond as is required in the next section.

SEC. 26. The party appealing shall, at the time of filing notice Bond on appeal thereof, file with the judge of probate a bond to the adverse party, in 1842, p. 107. such penalty, with such surety or sureties as the judge of probate shall approve, conditioned for the diligent prosecution of such appeal, and the payment of all such damages and costs as shall be awarded against him, in case he shall fail to obtain a reversal of the decision so appealed from.

SEC. 27. The appellant shall give notice of such appeal to the ad- Notice of appeal

to adverse party.

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