whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved. SEC. 128. [Nuncupative will.]-No nuncupative will shall be good, when the estate thereby bequeathed shall exceed the value of one hundred and fifty dollars, that is not proved by the oath of three witnesses, at least, that were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, to bear witness that such was his will, or to that effect; nor unless such nuncupative will was made at the time of the last sickness of the deceased, and in the place of his or her habitation or dwelling, or where he or she had been resident for the space of ten days or more next before the making of such will, except when such person was unexpectedly taken sick, being from home, and died before he or she returned to the place of his or her habitation. SEC. 129. [Same.]-After six months shall have passed after speaking any testamentary words, no testimony shall be received to prove the same as a nuncupative will, unless the said words, or the substance thereof, were reduced to writing within six days after the same testamentary words were spoken, nor shall letters testamentary or probate of any nuncupative will pass the seal of any probate court until fourteen days, at least, after the decease of the testator be fully expired; nor shall any nuncupative will be at any time approved and allowed unless process shall first have been issued to call in the widow and other person or persons principally interested, if resident within the state, to the end that they may contest the same if they please. Nothing herein contained shall prevent any soldier, being in actual service, nor any marine, being on shipboard, from disposing of his wages, and other personal estate, by nuncupative will. SEC. 130. [When devise to witness void.]-All beneficial devises, legacies and gifts whatsoever, made or given in any will, to a subscribing witness thereto, shall be wholly void, unless there be two other competent subscribing witnesses to the same; but a new charge on the lands of the devisor for the payment of debts shall not. prevent his creditors from being competent witnesses to his will. SEC. 131. [When devise to witness saved.]-But if such witness, to whom any beneficial devise may have been made or given, would have been entitled to any share of the estate of the testator, in case the will was not established, then so much of the share that would have descended or been distributed to such witness, as will not exceed the devise or bequest made to him in the will, shall be saved to him, and he may recover the same of the devisees or legatees named in the will, in proportion to and out of the parts devised or bequeathed to them. SEC. 132. [Revoking will.]-No will, nor any part thereof, shall be revoked, unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as prescribed in this chapter; or by some other writing signed, attested, and subscribed in the manner provided in this chapter. for the execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator. SEC. 133. [Deposit of will.]—Any will, in writing, being enclosed in a sealed wrapper, and having endorsed thereon the name of the testator and his place of residence, and the day when and the person by whom it is delivered, may be deposited by the person making the same, or by any person for him, with the probate judge in the county where the testator lives, and the probate judge shall receive and safely keep such will, and give a certificate of the deposit thereof. SEC. 134. [Delivery and opening of will.]-Such will shall, during the lifetime of the testator, be delivered only to himself, or to some person authorized by him, by an order in writing, duly proved by the oath of a subscribing witness; and after the death of the testator, and at the first probate court after the notice thereof, it shall be publicly opened by the judge of probate, and be retained by him. SEC. 135. [Notice.]-The judge of probate shall give notice of such will being in his possession to the executor therein appointed, if there be one; otherwise, to the persons interested in the provisions of the same, to be presented for probate in such court. SEC. 136. [Other custodians of will.]-Every person other than the judge of probate, having the custody of any will, shall, within thirty days after he has a knowledge of the death of the testator, deliver the same into the probate court which has jurisdiction of the case, or to the person named in the will as executor. SEC. 137. [Executor.]-Every person named as executor in any will shall, within thirty days after the death of the testator, or within thirty days after he has a knowledge that he is named executor, if he obtains such knowledge after the death of the testator, present such will to the probate court, which has jurisdiction of the case, unless the will shall have been otherwise deposited with the judge of probate, and shall, within the period above mentioned, signify to the court his acceptance of the trust, or make known in writing to such court his refusal to accept it. SEC. 138. [Penalty.]-Every person who shall neglect to perform any of the duties required in the last two preceding sections, without reasonable cause, shall be guilty of a misdemeanor, and shall be liable to each and every person interested in such will, for the damages which each person may sustain thereby. SEC. 139. [Punishment.]—If any person having the custody of any will after the death of the testator shall, without reasonable cause, neglect to deliver the same to the probate court having jurisdiction of it, after he shall have been duly notified by such court for that purpose, he may be committed to the jail of the county by warrant issued by such court, and there be kept in close confinement until he shall deliver the will as above directed. SEC. 140. [Probate of will-Notice.]-When any will shall have been delivered into or deposited in any probate court having jurisdiction of the same, such court shall appoint a time and place for proving it, when all concerned may appear and contest the probate of the will, and shall cause public notice thereof to be given by personal service on all persons interested, or by publication under an order of such court, in such newspaper printed in this state as the judge shall direct, three weeks successively, previous to the time appointed, and no will shall be proved until notice shall be given as herein provided. SEC. 141. [Same.]-If no person shall appear to contest the probate of a will at the time appointed for that purpose, the court may, in its discretion, grant probate thereof on the testimony of one of the subscribing witnesses only, if such a witness shall testify that such will was executed in all the particulars as required in this chapter, and that the testator was of a sound mind at the time of the execution thereof. SEC, 142. [Testimony.]—If none of the subscribing witnesses shall reside in this state at the time appointed for proving the will, the court may, in its discretion, admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will, and, as evidence of the execution of the will, may admit proof of the handwriting of the testator, and of the subscribing witnesses. SEC. 143. [Will not effectual, when.]-No will shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed in the. probate court, as provided in this chapter, or on appeal in the district court; and the probate of the will of real or personal estate as above mentioned shall be conclusive as to its due execution. SEC. 144. [Foreign wills.]-All wills which shall have been duly proved and allowed in any of the United States. or in any foreign country or state, according to the laws of such state or country, may be allowed, filed, and recorded in the probate SEC. 140. Publication once a week for three successive weeks sufficient. 26 Neb., 68.. 13 ld., 150. court of any county in which the testator shall have real and personal estate on which such will may operate, in the manner mentioned in the following sections. SEC. 145. [Proceedings on probate of foreign will.]—When a copy of such will, and the probate thereof, duly authenticated, shall be produced by the executor or other person interested in such will, to the probate court, such urt shall арpoint a time and place of hearing, and notice shall be given in the same manner as in case of an original will presented for probate. SEC. 146. [Same.]-If, on hearing the case, it shall appear to the court that the instrument ought to be allowed in this state as the last will and testament of the deceased, the copy shall be filed and recorded, and the will shall have the same force and effect as if it had originally been proved and allowed in the same court; Provided, That all decrees heretofore made in this state allowing wills and admitting the same to probate, under the provisions of this and the two preceding sections, without the previous filing of the copy of the probate mentioned in section one hundred and forty-five, (145) of this chapter, shall be as legal and valid and shall have the same force and effect as if such copy had been duly filed prior to the making of such decree and the allowing of such will. [Amended 1885, chap. 48.] SEC. 147. [Same.]—When any will shall be allowed as mentioned in the preceding section, the probate court shall grant letters testamentary or letters of adminis tration with the will annexed, and such letters testamentary or letters of administration shall extend to all the estate of the testator in this state; and such estate, after payment of his just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it, and the residue shall be disposed of as is provided by law in cases of estates in this state, belonging to persons who are inhabitants of any other territory, state, or country. SEC. 148. [Posthumous child.]-When any child shall be born after the making of his parent's will, and no provision shall be made therein for him, such child shall have the same share in the estate of the testator as if he had died intestate, and the share of such child shall be assigned to him as provided by law in cases of intestate estate, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child. SEC. 149. [Omissions in will.]-When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child or the issue of such child shall have the same share in the estate of the tes tator as if he had died intestate, to be assigned as provided in the preceding section. SEC. 150. [Estate assigned to children.]-When any share of the estate of the testator shall be assigned to a child born after the making of a will, or to a child or the issue of a child omitted in the will, as herein before mentioned, the same shall first be taken from the estate not disposed of by the will, if any; if that shall not be sufficient, so much as shall be necessary shall be taken from all the devisees or legatees, in proportion to the value of the estate they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest or other provision in the will would thereby be defeated, in which case such specific devise, legacy, or provision may be exempted from such apportionment, and a different apportionment may be adopted in the discretion of the probate court. SEC. 151. [Death of devisee.]—When a devise or any legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, having issue who shall survive the testator, such issue shall take the estate so given by the will in the same manner as the devisee or legatee would have done if he had survived the testator, unless a different disposition shall be made or directed by the will. SEC. 152. [Liability of estate.]-All the estate of the testator, real and personal, shall be liable to be disposed of for the payment of his debts and the expenses of administering his estate, and the probate court may make such reasonable allowance as may be judged necessary for the expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them. SEC. 153. [Payment of debts.]-If the testator shall make provision by his will, or designate the estate to be appropriated for the payment of his debts, the expenses of administration, or family expenses, they shall be paid according to the provisions of the will, and out of the estate thus appropriated, or so far as the same may be sufficient. SEC. 154. [Same.]—If the provisions made by the will, or the estate appropriated shall not be sufficient to pay the debts, expenses of administration, and family expenses, such part of the estate, real or personal, as shall not have been disposed of by the will, if any, shall be appropriated according to the provisions of the law for that purpose. SEC. 155. [Specific devises.]-The estate, real or personal, given by will to any devisees or legatees, shall be held liable to the payment of the debts, expenses of administration, and family expenses, in proportion to the amount of tl. several devises or legacies, except that specific devises and legacies, and the persons to whom they shall be made, may be exempted, if it shall appear to the court necessary in order to carry into effect the intention of the testator, if there shall be other sufficient estate. SEC. 156. [Liabilities settled.]—When the estate given by any will shall be liable for the payment of debts and expenses, as mentioned in the preceding section, or is liable to be taken to make up the share of a child born after the execution of the will, or of a child or of the issue of a child not provided for in the will, as hereinbefore provided, the executor shall have a right to retain possession of the same until such liability shall be settled by order of the probate court, and until the devises and legacies so liable shall be accordingly assigned by order of such court; and when the same can properly be done, any devisee or legatee may make his claim to such court to have such liability settled, and his devise or legacy assigned to him. SEC. 157. [Liability of estate of devisee.]-All the devisees and legatees who shall, with the consent of the executor, or otherwise, have possession of the estate given to them by will, before such liability shall be settled by the probate court, shall hold the same, subject to the several liabilities mentioned in the preceding section, and shall be held to contribute, according to their respective liabilities, to the executor or to any devisee or legatee from whom the estate devised to him may have been taken, for the payment of debts or expenses, or to make up the share of a child born after the making of the will, or of a child or the issue of a child omitted in the will; and the persons who may, as heirs, have received the estate not disposed of by the will as provided in this subdivision, shall be liable to contribute in like manner as the devisees or legatees. SEC. 158. [Insolvency of devisee.]—If any of the persons liable to contribute, according to the provisions of the preceding section, shall be insolvent, and unable to pay his share, the others shall be severally liable for the loss occasioned by such insolvency, in proportion to and to the extent of the estate they may have received; and if any of the persons so liable to contribute shall die before having paid his share, the claim shall be valid against his estate, in the same manner as if it had been his proper debt. SEC. 159. [Authority of court.]-The probate court may, by decree for that purpose, settle the amount of the several liabilities as provided in the preceding sections, and decree how much, and in what manner, each person shall contribute, and may issue execution as circumstances may require, and the claimant may also have a remedy in any proper action or complaint in law or equity. SEC. 160. [Certificate.]—Every will, when proved as provided in this subdi SEC. 160. Cited 13 Neb., 150. Certificate not essential to the validity of the probate of a will. 21 Neb., 509 Cited 34 Id., 253. whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved. SEC. 128. [Nuncupative will.]-No nuncupative will shall be good, when the estate thereby bequeathed shall exceed the value of one hundred and fifty dollars, that is not proved by the oath of three witnesses, at least, that were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, to bear witness that such was his will, or to that effect; nor unless such nuncupative will was made at the time of the last sickness of the deceased, and in the place of his or her habitation or dwelling, or where he or she had been resident for the space of ten days or more next before the making of such will, except when such person was unexpectedly taken sick, being from home, and died before he or she returned to the place of his or her habitation. SEC. 129. [Same.]-After six months shall have passed after speaking any testamentary words, no testimony shall be received to prove the same as a nuncupative will, unless the said words, or the substance thereof, were reduced to writing within six days after the same testamentary words were spoken, nor shall letters testamentary or probate of any nuncupative will pass the seal of any probate court until fourteen days, at least, after the decease of the testator be fully expired; nor shall any nuncupative will be at any time approved and allowed unless process shall first have been issued to call in the widow and other person or persons principally interested, if resident within the state, to the end that they may contest the same if they please. Nothing herein contained shall prevent any soldier, being in actual service, nor any marine, being on shipboard, from disposing of his wages, and other personal estate, by nuncupative will. SEC. 130. [When devise to witness void.]-All beneficial devises, legacies and gifts whatsoever, made or given in any will, to a subscribing witness thereto, shall be wholly void, unless there be two other competent subscribing witnesses to the same; but a new charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to his will. SEC. 131. [When devise to witness saved.]—But if such witness, to whom any beneficial devise may have been made or given, would have been entitled to any share of the estate of the testator, in case the will was not established, then so much of the share that would have descended or been distributed to such witness, as will not exceed the devise or bequest made to him in the will, shall be saved to him, and he may recover the same of the devisees or legatees named in the will, in proportion to and out of the parts devised or bequeathed to them. SEC. 132. [Revoking will.]—No will, nor any part thereof, shall be revoked, unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as prescribed in this chapter; or by some other writing signed, attested, and subscribed in the manner provided in this chapter, for the execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator. SEC. 133. [Deposit of will.]-Any will, in writing, being enclosed in a sealed wrapper, and having endorsed thereon the name of the testator and his place of res idence, and the day when and the person by whom it is delivered, may be deposited by the person making the same, or by any person for him, with the probate judge in the county where the testator lives, and the probate judge shall receive and safely keep such will, and give a certificate of the deposit thereof. SEC. 134. [Delivery and opening of will.]-Such will shall, during the lifetime of the testator, be delivered only to himself, or to some person authorized by him, by an order in writing, duly proved by the oath of a subscribing witness; and after the death of the testator, and at the first probate court after the notice thereof, it shall be publicly opened by the judge of probate, and be retained by him. |