shall be admitted as a competent witness, to prove the execution of such will.

No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnes

ses.

If after the making of any will, disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriage, born either in his life-time or after his death, and the wife or the issue of such marriage, shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein, as to show an intention not to make such provision; and no other evidence, to rebut the presumption of such revocation, shall be received.

A will executed by an unmarried woman, shall be deemed revoked by her subsequent marriage.

A bond, agreement, or covenant, made for a valuable consideration, by a testator, to convey any property devised or bequeathed in any will previously made, shall not be deemed a revocation of such previous devise or bequest, either at law, or in equity; but such property shall pass by the devise or bequest, subject to the same remedies on such bond, agreement, or covenant, for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.

A charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the performance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previously executed; but the devises and legacies therein contained, shall pass and take effect, subject to such charge or incumbrance.

A conveyance, settlement, deed, or other act of a testator, by which his estate or interest in property, previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property; but such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless in the instrument by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or bequest.

But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed or such contingency do not happen.

Whenever a testator shall have a child born after the making of his will, either in his life-time or after his death, and shall die, leaving such child, so after born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in his will, every such child shall succeed to the same portion of the father's real and personal estate, as would have decended or been distributed to such child, if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to, and out of the parts devised and bequeathed to them, by such will. If any person shall be a subscribing witness to the execu tion of any will, wherein any beneficial devise, legacy, interest, or appointment of any real or personal estate, shall be made to such witness, and such will cannot be proved without the testimony of such witness, the said devise, legacy, interest,

or appointment, shall be void, so far only as concerns such witness, or any claiming under him; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, 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 was not established, then so much of the share that would have descended or have been distributed to such witness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will, and he shall recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them.

Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the life-time of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator, and had died intestate.

If, after the making of any will, the testator shall duly make and execute a second will, the destruction, cancelling or revocation of such second will, shall not revive the first will, unless it appear by the terms of such revocation, that it was his intention to revive and give effect to his first will; or unless after such destruction, cancelling or revocation, he shall duly republish his first will.

All wills, whenever proved according to law, except such as are required to be deposited, shall, after being recorded, be returned upon demand, to the person who delivered the same; or in case of his death, insanity, or removal from the state, any devisee named in such will, or to the heirs or assigns of such devisee; or if the same relate to personal estate only, to any acting executor of such will, or administrator with the will annexed, or to a legatee named therein.

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After any will of real or personal estate, or of both, shall have been proved before a surrogate, any devisee or legatee named therein, or any heir or next of kin to the testator, may within three months thereafter, appeal to the circuit judge of the circuit, from the decision of the surrogate, either admitting such will to record, or probate, or refusing the same: and upon such appeal being filed with the surrogate, it shall stay the recording or the probate of such will until it be determined.

The party filing such appeal, shall, at the same time, execute and file with the surrogate a bond, in the penalty of one hundred dollars, to the people of this state, with such sureties as the surrogate shall approve, conditioned for the diligent prosecution of such appeal, and for the payment of such costs as shall be taxed against him, in the event of his failure to impeach the validity or execution of such will. No appeal shall be deemed valid, until such bond be filed.

If it appear to the circuit judge that the decision of the surrogate was erroneous, he may, by order, reverse such decision; and if such reversal be founded upon a question of fact, shall direct a feigned issue to be made up, to try the questions arising upon the application to prove such will, and shall direct the same to be tried at the next circuit court, to be held in the county where the surrogate's decision was made.

Such issue shall be made up and tried in the same manner as issues awarded by the court of chancery; but a new trial of such issue may be granted by the surpreme court, in the same manner as if it had been formed in a suit, originally commenced in such court.

The final determination of such issue, shall be conclusive as to the facts therein controverted, in respect to wills of personal estate only, upon the parties to the proceedings: if such determination be in favor of the validity of such will, either of real or personal estate, or in favor of the sufficiency of the proof thereof, the surrogate, to whom such determination shall be certified, shall record such will, or admit the same to probate, as the case may be.

If such determination be against the validity of such will, or against the competency of the proof thereof, the surrogate shall annul and revoke the record or probate thereof, if any shall have been made.

The costs and expenses of making up an issue, and of the trial thereon, and all subsequent costs thereon, shall be paid by the party appealing, in case of his failure to impeach the validity or execution of the will. Such costs and expenses may be collected in a suit upon the bond herein directed to be given, which shall be prosecuted for that purpose whenever directed by the surrogate.

If the appellant succeed in impeaching the validity or execution of the will, the party who shall have maintained such validity or execution, may be required, by the surrogate, to pay the costs and expenses of the proceedings, either personally or out of the property of the deceased; and such payment may be enforced by process of attachment.

Whenever any will of real or personal estate shall be lost or destroyed, by accident or design, the court of chancery and the several equity courts having jurisdiction, shall have the same power to take proof of the execution and validity of such will, and to establish the same, as in the case of lost deeds.

Upon such will being established by the decree of a competent court, such decree shall be recorded by the surrogate, before whom the will might have been proved, if not lost or destroyed, and letters testamentary, or of administration with the will annexed, shall be issued thereon by him, in the same manner as upon wills duly proved before him.

If before, or during the pendency of, an application to prove a lost or destroyed will, letters of administration be granted on the estate of the testator, or letters testamentary of any previous will of the testator be granted, the court, to which such application shall be made, shall have authority to restrain the administrators or executors so appointed, from any acts or proceedings, which it may judge would be injuri