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but if such will is generally known by the acquaintances of the deceased person, and his name subscribed thereto, and it shall be proved by at least three credible witnesses, that they verily believe such will and every part thereof is in the handwriting of the person whose will it appears to be, then, and in that case, such will is declared to be sufficient in law to give and convey a sufficient estate in lands. No will is effectual until proved and the probate thereof is made conclusive. (Rev. Code, ch. 119, SS 1, 20.)
It has been decided, that a paper-writing, having upon it an attestation clause, unwitnessed, will not prevent the same being established as a holograph. (Hill v. Bell, 1 Phillips' Law R. 122.)
In the state of South Carolina, a will of real estate is required to be signed by the testator, or by some other person in his presence, and by his express direction, and attested and subscribed by three credible witnesses, in the presence of the testator. (5 Stat. at Large, p. 106, $ 2.) The probate of a will is prima facie evidence of the validity of the same, but not conclusive. (Executors of Crossland v. Murdock, 4 McCord's R. 217.)
In Georgia, the statute in respect to the execution of a will of real estate is the same as in South Carolina; but the probate of the will is conclusive after the expiration of seven years from the date of the probate, except as to persons under disabilities. (Rev. Code of 1862, SS 2379, 2390.)
In the state of Florida, the statute of wills is substantially the same as in South Carolina and Georgia, and the probate of a will is made simply prima facie evidence of its due execution. (Thomp. Dig. tit. 3, ch. 1, SS 1, 3.)
In the state of Alabama, a will must be executed in the same manner as in Florida, except that only two witnesses to it are necessary. (Rev. Code of 1867, $ 1930.) A will duly proved may be read in evidence with the same effect as the original will if produced and proved in the same way as it appears to have been proved by the probate. (Rev. Code, $ 1948.)
In Mississippi, a will of real estate must be signed by the testator or testatrix, or by some other person in his or her presence, and by his or her express direction, and, if not wholly written and subscribed by the testator or testatrix, it must be attested by three credible witnesses. The probate of the will is made conclusive unless contested in the manuer specified by the statute, within
the time limited by such statute. (Rev. Code of 1857, ch. 60, $ 4, art. 34, 43.)
In Tennessee, a will of real estate is required to be signed by the testator, or by some other person in his presence and by his direction, and subscribed in his presence by two witnesses at least, neither of whom must be interested in the devise of the lands claimed; but a paper-writing, appearing to be the will of a deceased person, written by him, having his name subscribed to it, or inserted in some part of it, and found, after his death, among his valuable papers, or lodged in the hands of another for safe keeping, is declared to be good and valid, if the handwriting is generally known by his acquaintances, and it is proved, by at least three credible witnesses, that they verily believe the writing, and every part of it, to be his hand. (Code of 1858, tit. 3, ch. 1, art. 1, $ 2163.) And the probate of a will of real estate is received as prima facie evidence of the will. (Weatherhead v. Sewell, 9 Humph. R. 282.)
In the state of Kentucky, it is provided that no will shall be valid unless it is in writing, with the name of the testator subscribed thereto by himself, or by some other person in his presence and by his direction; and moreover, if not wholly written by the testator, the subscription must be made or the will acknowledged by him in the presence of at least two credible witnesses, who must subscribe the will with their names in the presence of the testator. (2 R. S. ch. 106, $ 5.)
It seems, that, by the laws of Kentucky, when the will is wholly in the handwriting of the testator, it is not necessary that the same be witnessed at all. If not wholly written by the testator, then it must be witnessed by two subscribing witnesses, and it has been held that the statute is complied with by the testator simply requesting the witnesses to attest the instrument, without any other action or request by the testator. (Tudor v. Tudor, 17 B. Mon. R. 389. Upchurch v. Upchurch, 16 ib. 112. And vide Montgomery v. Perkins, 2 Met. R. 448. Dougherty v. Dougherty, 4 ib. 25. Sechrist v. Edwards, Ib. 163.)
No will in Kentucky can be received in evidence until it has been allowed and admitted to record by a county court, and its probate before such court is made conclusive until the same has been superseded, reversed or annulled. (2 R. S. ch. 106, § 29.) The will must be admitted to probate in the county where the testator had his residence at the time of his death; and after it is once regularly admitted to probate, there is no way of getting rid of it except by an appeal to the circuit court of the county where the order is made. (Burns v. Edwards, 17 B. Mon. 640; McCall v. Vallandingham, 9 ib. 430. Hughey v. Sidwell's Heirs, 18 ib. 260.)
In Louisiana, the provisions of the present statute in respect to wills are condensed by Mr. Thornton, in his work on conveyancing, from which it will be found that wills in that state are nuncupative or open, mistic or olographic. The nuncupative is authentic, or by public act, or private. The authentic is received by a notary and three witnesses, resident in the parish, or five nonresidents of the parish. The private is executed not before the notary but with five witnesses in the parish, or seven out. In the country, three witnesses in the parish, or five resident out of it, suffice. It must be signed by the testator. If he declares he knows not how, or is unable, express mention of his declaration, as also the cause that hinders him from signing, must be made in the act. In either case, it must be read by the testator to the witnesses, or by one of the witnesses to the rest. The mistic will is written by the testator, or some other person by his order, and presented closed to a notary public and seven witnesses. He must then declare to the notary, in the presence of the witnesses, that the paper contains his will. The olographic will is wholly written, dated and signed by the testator. If it be sealed up, he ought to write on the cover: “This is my olographic will," and subscribe his name.
It requires no form, and may be made every where, even out of the state. (Thornton on Conv. 191, 192. And vide Louisiana Civ. Code, arts. 1567–1589.)
It has been held that a mistic will is defective if the testator neglects to state on the superscription of the envelope containing the
paper, that it was closed, sealed or presented to the notary by the testator. (Stafford v. Wilcox, 10 La. R. 319.) But a will duly adınitted to probate is held to be at least prima facie evidence of its validity, if the probate is not conclusive. (Donaldson v. Wailie, 1 La. R. 144.)
In the state of Arkansas the statute of wills is substantially the same as that of New York, with this addition, that when the entire body of the will, and the signature thereto, shall be written in the proper handwriting of the testator or testatrix, the same may be
established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of each testator or testatrix, notwithstanding there may be no attesting witnesses to such will; but no will without such subscribing witnesses can be pleaded in bar of a will subscribed in due form, as prescribed in the act. (Dig. of Ark. Laws, 1858, ch. 180, $ 4. And vide Rogers v. Diamond, 13 Ark. R. 474. Abraham v. Wilkins, 17 ib. 292.)
*The probate of a will is not conclusive, but the will may be contested in any court of law, after being admitted to probate. (Dig. Ark. Laws, ch. 180, $ 30.) Except that the probate will be conclusive at the expiration of five years after the will was proved, unless contested, with a provision in favor of persons laboring under disability. (Dig. Ark. Laws, ch. 180, $ 34.) . In the state of Texas the statute in respect to the execution of a will is the same in substance as that of Kentucky; and where the will is not wholly written by the testator, it must be attested by two or more credible witnesses, above the age of fourteen years, subscribing their names in his presence. (Paschal's Annotated Dig. art. 5361.) And in Texas the probate of the will is conclusive of its due execution, unless it is contested in the district court within four years after it is proved. (Paschal's Annotated Dig. art. 1262.) The probate of the will cannot be attacked collaterally. (Box v. Lawrence, 14 Tex. R. 555, 556.)
Such is an epitome of the essential provisions of the statutes of the several states in respect to the execution and probate of wills. From this resumé it will appear that in all cases the testator must be of sound and disposing mind, and certain other rules are applicable to wills in all of the states. It will also appear that in the states of Connecticut, Florida, Georgia, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, North Carolina, Rhode Island, South Carolina, Vermont and Wisconsin, three attesting witnesses are required to give validity to the will; while in Alabama, Arkansas, California, Colorado, Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Missouri, Nebraska, New York, Ohio, Oregon, Tennessee, Texas and Virginia, only two attesting witnesses are requisite. The laws of Louisiana are peculiar, and they may be changed by the proper authorities now revising the laws of that state. In Arkansas, Kentucky, Mississippi, North Carolina, Tennessee, Texas and Virginia, where the will is wholly written and signed by the testator, an exception is made in respect to requiring attesting witnesses to make it effectual and valid. In Vermont and New Hampshire a seal is required; while in Pennsylvania it is necessary to prove the will by at least two witnesses, but the statute does not make it necessary that they should have attested the same. And in respect to the effect of admitting a will to proof, in most of the states, the probate of the will is made conclusive evidence of the due execution of the same; and in several, and, perhaps, a majority, the will is not effectual for any purpose until it has been adınitted to probate; while in Maryland, New York, North Carolina, South Carolina, Tennessee, and some others, the English or common law doctrine prevails, or the probate of a will of realty is received as prima facie evidence only of the due execution of the will, and its validity may be contested in an action brought by the devisee of real estate to recover possession thereof.
THE EVIDENCE IN THE ACTION OF EJECTMENT PROOFS WHEN THE
PARTY CLAIMS THE LAND UNDER AN EXECUTION THE SAME WHEN THE CLAIM IS BY VIRTUE OF A SALE FOR TAXES - THE PROOFS WHEN THE CLAIMANT IS GUARDIAN -THE PROOFS WHEN THE CLAIMANTS ARE CHURCH OR PARISH OFFICERS -THE PROOFS WHEN THE PARTY CLAIMS UNDER THE ORDINARY CONVEYANCE.
The proceedings by writ of elegit, for the purpose of obtaining satisfaction of a judgment, are little known in this country, and perhaps are never resorted to at the present time in any of the United States — certainly in none except in Virginia and Delaware. The fieri facias is the uniform process to sell lands to make the money awarded by judgment in this country, and the elegit is generally abandoned. But in England the writ of elegit is quite common, and questions arising under such process occasionally arise at the present day.
When an ejectment is brought by a tenant by elegit, and the debtor is himself in possession of the land, the only evidence necessary is an examined copy of the judgment roll, containing the award of the elegit, and the return of the inquisition. But if the