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and any person who shall have been proceeded against by publication may, unless he was personally summoned, or actually appeared as a party, so proceed within two years after such order. Sec. 37. The record of what is proved or deposed in cou
by witnesses, on the motion to admit a will to probate and record in the orphans' court, and any depositions lawfully taken out of court, on such motion, may, on such trial, if the witnesses cannot be produced, be admitted as evidence.
Sec. 38. The judge of the orphans' court shall, in all cases, examine, on oath, every executor, or other person, offering a will for probate, as to the manner in which the same came to his hand, and whether or not he knows of any other.
Sec. 39. Every will, or authenticated copy, so admitted to probate, shall be recorded by the register, and shall remain in his office, except during such time as the same shall be taken to another court under a subpoena duces tecum.
Sec. 40. The title of a purchaser, in good faith and for a valuable consideration, from the heirs at law of any person who shall have died owning real estate in this District, shall not he defeated or impaired by virtue of any devise made by such person of the real estate so purchased, unless the will containing the same shall have been duly proved, and recorded in the office of the register, within four years after the death of the testator; except:
1. When it shall appear that the will containing such devise shall have been concealed by the heirs of such testator; or,
2. When, at the time of the testator's death, the devisee shall have been within the age of twenty-one years or insane. In which several cases the limitation contained in this section shall not commence until such will shall have been delivered to the devisee or his representative, or to the executor, or orphans' court, or until such disability shall have been removed.
Sec. 41. The term will, as used in this chapter, shall include all codicils as well as wills.
Sec. 42. The provisions of this chapter in relation to the jurisdiction of the probate of wills, and the proceedings thereon, and effect of same, shall apply as well to wills already made as to those hercafter to be made ; but those provisions relating to the execution, revocation, and construction of wills, shall apply only to wills hereafter made, and to such wills as are already made by a testator who shall be alive at the expiration of one year from the time this chapter shall take effect. The validity and effect of other wills shall be determined by the laws in force immediately before this chapter takes effect, in the like manner as if those laws had not been repealed.
Title by administration, and of the settlement of the estates of
CHAPTER 53. Of letters testamentary.
OF LETTERS TESTAMENTARY.
1. Letters testamentary; when granted.
sumed to be eighteen years old.
letters testamentary unless husband
bonds for her. 9. Executor may renounce trust. 10. When deemed to have renounced, being
present at probate. 11. When deemed to have renounced, not
present, but in the District.
without the District at probate.
ify, letters may be granted as if he had
not been named. 14. Powers of executor before he qualifies. 15. Executor to qualify by giving bond and
taking oath, before letters testamentary
are granted. 16. Character of bond. 17. The condition of same. 18. Where recorded, and how sued upon. 19. Bond of executor, &c., when over eigh
teen years of age, binding. 20. Form of oath to be taken by executor. 21. Form of letters testamentary.
Section 1. When any will shall have been proved or authenticated, as herein before provided, letters testamentary may forth with be granted by the orphans' court to the executor named in the will, in accordance with the provisions of this chapter.
SEC. 2. Letters testamentary shall not be granted to a person named as executor who, at the time when administration ought to be granted, shall be under the age of eighteen years, or of unsound mind, incapable by law of making a contract, or shall stand convicted of any crime rendering him infamous, or shall not be a citizen of the United States.
Sec. 3. No question respecting the qualifications of an executor shall be determined unless he be summoned, if within the District, or, if without the same, notice be given him by advertisement or otherwise, as the court may direct.
Sec. 4. A transcript of the record of conviction shall be evidence to prove the party infamous.
Sec. 5. When any person named as executor is alleged not to be a citizen of the United States, his citizenship shall not be established otherwise than by a certificate, under the seal of the office or court where the party was naturalized, or by competent testimony that he is a natural born citizen of the United States.
Sec. 6. The unsoundness of mind of a party named as executor shall be conclusively established by the inquisition of a jury, on a writ issued by the circuit court, finding him an idiot, lunatic, or non compos mentis, and confirmed by the said court; and if such inquisition shall not have been had, at the time when letters ought to be granted, the circuit or orphans' court may, on the petition of any person interested, grant a writ de lunatico inquirendo; and the finding of the jury as above provided, on being returned to and confirmed by the court issuing the same, shall be conclusive against the party. A certificate from the clerk of the circuit court, under seal, stating the substance of the proceedings, shall be evidence in the orphans' court.
Sec. 7. Every person named in a will as executor shall be presumed to be eighteen years of age until the contrary is proved.
SEC. 8. No married woman shall be entitled to letters testamentary, unless her husband shall give bond, as is hereinafter required of executors, for the faithful performance of her duties.
Sec. 9. An executor may, by an attested writing to that effect filed in the orphans' court, renounce the trust : provided, however, that, notwithstanding such renunciation, or even failure to qualify as hereinafter provided, he may take out letters at any time before they are actually granted to another.
Ssc. 10. Any executor who shall have been present at the probate or authentication of a will, and who shall not, within thirty days thereafter, qualify, shall be taken to have renounced.
Sec. 11. Any executor not present at the probate or authentication of a will, but within this District, shall be summoned by the orphans' court. Such summons shall be returnable not less than twenty nor more than forty days from its date; and if returned “summoned," and the executor shall not appear and qualify within twenty days thereafter, or if two summonses shall be returned “non est," and the executor shall not, within twenty days after the return of the second summons, appear and qualify, he shall be taken to have renounced the trust, unless, on reasonable excuse made by him, or on his behalf, the court shall allow him a further time, not exceeding forty days, after such return or appearance, within which to qualify.
Sec. 12. Any executor who may be out of the District at the time the will is proved or authenticated, shall be allowed four months thereafter within which to qualify ; but if, within that period, he shall return to the District, he may, at the option of other parties, be proceeded against as if he had been in the District at the time of probate or authentication, and on failure to qualify, he shall be taken to have renounced.
Sec. 13. When more than one excutor is named in a will, and any of them shall renounce, or be found incompetent to act, as hereinbefore provided, letters testamentary may be granted to the rest as if none others had been mentioned in the will.
Sec. 14. No executor shall, before letters testamentary are granted to him, dispose of any part of his testator's property, or interfere therewith, further than may be necessary for its preservation ; but all acts done by an executor before obtaining letters shall, if he afterwards obtain them, be valid, and his bond shall be responsible therefor. In any action brought by him, a certificate of the register of wills of the grant of letters at any time before trial or final hearing shall be sufficient evidence of title to bring such action.
Sec. 15. Before letters testamentary are granted to an executor, he shall qualify by giving the bond and taking the oath herein required; provided that when the will directs that an executor shall not give security, the judge of the orphans' court shall not require it of him unless on the application of some person interested, or when from his own knowledge he thinks security should be required.
Sec. 16. Such bond shall be executed to the United States, with at least two sufficient sureties, to be approved by the orphans' court. In form it shall be joint and several, and the penalty thereof shall be double the value of the property of which the executor will have charge, which may be ascertained by the examination, on oath, by the judge, of the party applying, or any other person.
Sec. 17. The condition of such bond shall be, that the executor will faithfully execute the duties of his office according to law, and shall be in form following, or to the same effect :
“The condition of the above obligation is such, that if the above bounden
shall faithfully perform the duties of his office as executor of
deceased, according to law, then the above obligation shall be void ; otherwise, it is to remain in full force."
Sec. 18. Such bond shall be lodged and recorded in the register of wills' office; and any person may have on demand a copy of it, certified by the register under his hand and the seal of the orphans' court, upon which an action may be maintained in the name of the party interested.
Sec. 19. The bond of any executor above eighteen and under twenty-one years of age shall be binding as if he were of full age; as shall also the bond of any husband of like age given on letters granted to his wife.
Sec. 20. The oath to be taken by an executor shall be in the following form: “I,
do swear, that I will faithfully discharge the duties imposed on me by law as executor of
deceased, late of to the best of my knowledge: So help me God. Sec. 21. The following shall be the form of letters testamentary, to be granted under the seal of the orphans' court: