may witness

$26. In case by any will or codicil already made or hereafter to Creditor be made, any lands, tenements or hereditaments are, or shall be will charged with any debt or debts, or any creditor whose debt is so charged, hath attested or shall attest the execution of such will or codicil, every such creditor, notwithstanding such charge, shall be admitted as a witness to the execution of such will or codicil.

ness in cer

$27. If any person hath attested or shall attest the execution of Legatee, witany will or codicil, to whom any legacy or bequest is or shall be tain cases. thereby given, and such person, before he or she shall give his or her testimony concerning the execution of any such will or codicil shall have been paid, or have accepted or released, or shall refuse to accept such legacy or bequest upon tender thereof, such person shall be admitted as a witness to the execution of such will or codicil, notwithstanding such legacy or bequest: Provided always, That the credit of such witnesses as aforesaid, shall be subject to the consideration of the court or jury before whom such witness or witnesses may be examined, or his or her testimony or attestation made use of in like manner, to all intents and purposes, as the credit of other witnesses in all other causes, ought to be considered of and determined.

death of le

witness.

$28. In case any legatee, as aforesaid, who hath attested the exe- In case of cution of any will or codicil already made, or shall attest the execu- gatee who is tion of any will or codicil, which shall hereafter be made, shall have died in the life time of the testator, or before he or she shall have received or released the legacy or bequest on tender made thereof, such legatee shall be deemed a legal witness to the execution of such will or codicil within the intent of this act, notwithstanding such legacy or bequest.

$29. No person to whom any beneficial interest, estate, gift or appointment shall be given or made, which is declared null and void by this act, or who shall have refused to receive any such legacy or bequest on tender made, and who shall have been examined as a witness concerning the execution of such will or codicil, shall, after he or she shall have been so examined, demand or receive any profit or benefit of or from any such estate, interest, gift or appointment so given or made to him or her, in and by any such will or codicil; or demand, receive or accept from any person or persons whatsoever, any such legacy or bequest, or any compensation or satisfaction for the same, in any manner whatever.

Legatee not will in cer

to take by

tain cases.

ing copy of

&c.

$30. When the copy of any will which has been proved and al- Effect of fillowed in any probate court in any of the United States, or in any fo- will in proreign state or kingdom, shall be directed to be filed and recorded in bate court. any probate court in this territory, pursuant to this act, the filing and recording thereof shall be of the same force and effect as the filing and recording of an original will, proved and allowed in the same court of probate; and the said judge may thereupon proceed to take bonds of the executor, or grant administration of the said testator's estate lying in this territory, with the will annexed, and settle said estate in the same way and manner as by law he may or can upon the estates of testators, whose wills have been duly proved before him. S31. When any testator, in and by his last will and testament, When share hath given, or shall give, any chattels or real estate to any person or ken to pay persons, and the same shall be taken in an execution for the pay- debts, &c. ment of the testator's debts, or shall be sold therefor, as the law pro

of legatee ta

testator's

Widow may

vision and

vides in such case, all the other legatees, devisees and heirs, shall refund their average or proportionable part of such loss to such person or persons from whom the bequest shall be so taken away, and he or they shall and may maintain a suit or action at law to compel such contribution.

$32. The widow, in all cases, may waive the provision made for Vive Pro her in the will of her deceased husband, (when she shall not have claim dower. been endowed before marriage,) and claim her dower, and have the same assigned her in the same manner as though her husband had died intestate, in which case she shall receive no benefit from such provision, unless it shall appear by the will plainly the testator's intention to be in addition to her dower.

When real estate

chargeable

$33. The real estate of the testator or intestate shall stand chargeable with all the debts of the deceased over and above what with debts. the personal estate shall be sufficient to pay and if, after distribution, partition, or assignment of dower, any debts appear, every one to whom any portion has been allotted, shall refund in equitable proportion.

Minor children to have

tate in certain cases.

$34. Any child or children, being minors at the time of the testashare of es tor's decease, or their legal representatives, in case of their death, not having a legacy given him, her or them in the will of their father or mother, shall have a proportion of the estate of their parents assigned unto him, her or them, as though such parent had died intestate: Provided, such child, children or grand-children have not had an equal proportion of the deceased's estate bestowed on him, her or them, in the deceased's lifetime.

When lineal

to take an

$35. When any child, grand-child, or other relation, having a dedescendants vise of real or personal estate, and such devisee shall die before the cestors de- testator, leaving lineal descendants, such descendants shall take the estates, real or personal, in the same way and manner such devisee would have done in case he had survived the testator, any law, usage or custom to the contrary notwithstanding.

vise.

Estate not

devised, how

$36. All such estate, real or personal, that is not devised or bedistributed. queathed in the last will and testament of any person, hereafter to be proved, shall be distributed in the same manner as if it were an intestate estate, and the executor or administrator shall administer on it as such.

Tenant by courtesy.

Estates not devised, how

tributed

$37. When a man and his wife shall be seised of lands, tenements or hereditaments in her right and fee, and issue shall be born alive of her body, that may inherit, or might have inherited the same. and such wife shall die, the husband shall have and hold such estate during his natural life, as tenant by the courtesy.

$38. When any person shall die seised of lands, tenements or to descend hereditaments not by him devised, the same shall descend in equal and be dis- shares to and among his children and such as legally represent them, (if any of them be dead) and in every case where children shall inherit by representation, it shall be in equal shares; and where there are no children of the intestate, the inheritance shall descend equally to the next of kin in equal degree, and those who represent them. computing by the rules of the civil law. No person to be considered a legal representative of collaterals beyond the degree of brother's and sister's children; and for want of heirs the estate shall accrue to the territory.

devised, how

$39. When any of the children of the intestate die before his ar- Estates not rival at the age of twenty-one years, and unmarried, such deceased to descend child's share shall descend equally among the surviving brothers and and be dis sisters, and such as legally represent them; but if such deceased child die after having arrived at the age of twenty-one years, unmarried and intestate, in the lifetime of the mother, every brother and sister shall inherit equally with the mother. Persons born of parents not united in matrimony according to law, shall inherit on the part of the mother, and on the part of the father, if the parents afterwards intermarry. $40. Whenever any child shall happen to be born after the death Posthumous of the father without having any provision made in his will, every rit. such posthumous child shall have right and interest in the estate of his or her father in like manner as if the father had died intestate, and the same shall be assigned to him or her accordingly; and in =every such case, the judge of probate shall issue his warrant as in case of intestate estates, to assign to such posthumous child a share in [ his or her father's estate equal to what he would have inherited if his or her father had died intestate, and the same shall be taken in proportion from the devisees and legatees who own the estate by virtue of such will.

Sale of mortgaged premises by advertisement.

child to inhe

power of

foreclosed.

$41. All mortgages executed by any person, accompanied by, or Mortgages containing a power of sale, may be foreclosed by advertisement in the containing manner prescribed by this act: Provided, That some default in the sale, how condition of such mortgage shall have occurred, by which the power of sale became operative: And provided further, That no suit shall have been commenced for the recovery of the money, or any part thereof, secured by such mortgage, or if commenced shall have been discontinued, or the execution returned unsatisfied, in whole or in part.

$42. Whenever any person shall be desirous of foreclosing by ad- Ib. vertisement, any mortgage, notice shall be given, in which shall be stated the names of the mortgagor and mortgagee, the date of the mortgage, and when recorded, the amount claimed to be due thereon at the date of said notice, and a description of the premises, as contained in the mortgage.

given.

$43. Such notice shall be published for twelve successive weeks Notice of in a newspaper published in the county in which the premises or sale, how some part thereof are situated, and if there be no such paper in the county, then in a newspaper printed at the seat of government, and by fixing a copy thereof on the outward door of the court-house, if there be one in the county; but such sale may be postponed from time to time by giving notice in like manner of such postponement. $44. The sale shall be at public auction, in the day time, in the sale to be at county where the mortgaged premises, or some part thereof are situa- auction, &c. ted, by the person appointed for the purpose in such mortgage deed, or the sheriff, under sheriff, or any deputy sheriff, of the proper county; and if the premises consist of different lots, farms or tracts of land, they may be sold separately and entire, but no more of them shall be sold than shall be necessary to satisfy the amount due on such mortgage, with interest and costs of such sale, allowed by law.

Officer mak ing sale to

cate, &c.

$45. Whenever any lands and tenements shall be sold by virtue give certifi. of a power of sale contained in any mortgage, it shall be the duty of the officer or other person making the sale, to give to the purchaser or purchasers, a certificate in writing under seal, setting forth a description of the premises sold, the sum paid therefor, and the time What to con when the purchaser or purchasers will be entitled to a deed for the where filed. same, unless they shall be redeemed as provided in this act; and such officer shall, within ten days from the time of sale, file in the office where the mortgage is recorded, a duplicate of such certificate, signed by him, and such duplicate certificate, or a copy certified by the register, shall be taken, and deemed evidence of the facts therein contained.

tain, and

How mortgagor may

redeem.

To retain possession until, &c.

Premises
Hot redeem-

give deed.

$46. It shall be lawful for the mortgagor, his heirs, executors, administrators or assigns, whose lands or tenements shall be sold in conformity to the provisions of this act, within two years from and after such sale, to redeem such lands or tenements by paying to the purchaser or purchasers, his or their executors, administrators or assigns, or to the proper sheriff, under sheriff or deputy sheriff, the sum of money which may have been paid by such purchaser or purchasers, together with interest on such purchase money, at the rate of ten per centum per annum, from the time of such sale; and such payment being made as aforesaid, the said sale and the certificate granted thereon as aforesaid, shall be null and void, any thing in this act to the contrary notwithstanding: and the bail of the said sheriff shall be responsible for the faithful payment to the purchaser aforesaid, of all moneys received by him or any of his deputies, aforesaid: Provided, That in every case the mortgagor may retain full possession in trust for the mortgagee, or purchaser of all premises mortgaged by him, until the title shall absolutely vest in the purchaser of such mortgaged premises, according to the provisions of this act.

$47. If such mortgaged premises, so sold as aforesaid, shall not ed, sheriff to be redeemed as aforesaid, it shall be the duty of the officer or other person who shall have sold the same, or his executors or administrators, or some person appointed by the district court for that purpose, to complete such sale, by executing a deed of the premises so sold, to the purchaser or purchasers.

Notice of sale, how proved.

Affidavit, be

$48. In every case where the sale of mortgaged premises, in virtue of a special power for that purpose, contained in the mortgage, shall hereafter take place, an affidavit stating the publishing of the advertisement of sale in a newspaper, made by the printer of the newspaper, or other competent person; and also an affidavit, stating the fixing up a copy of the advertisement upon the outward door of the court house, and made by the person who fixed the same upon said door; and also an affidavit stating the circumstances respecting the sale of the mortgaged premies, and made by the person who acted as auctioneer at the sale, and certified and recorded, or the record of either of the said affidavits, shall be received in every court of law or equity in this territory, prima facie evidence of the facts in such affidavit set forth.

$49. The person making either of the said affidavits, shall make for whom the same before a person authorized to take acknowledgments of deeds in the county in which the mortgaged premises shall be; and

inade, &c.

such officer is hereby required to take the same affidavit and to subscribe his name to a certificate underneath the same, purporting that the person making the affidavit had appeared before him and made oath or affirmation to the same.

record affi

$50. In case application shall be made to the register of deeds of Register to any county where the mortgaged premises shall be, to record either davit. of the said affidavits, certified and subscribed as aforesaid, then, and in such case, the said register is hereby required to record in his book of mortgages, the said affidavit at full length, together with the certificate annexed to the same.

Record cf

pass title,&c

$51. A record of the affidavit aforesaid, and of the deed executed on the sale of the premises, shall be sufficient to pass the title thereto, and affidavit to the said conveyance shall be an entire bar of all claim or equity of redemption of the mortgagor, his heirs and representatives, and of all persons claiming under him or them, by virtue of any title subsequent to such mortgage; but no title accruing prior to the execution of such mortgage, shall be affected thereby.

may re

$52. Any person to whom a subsequent mortgage may have Subsequent been executed, shall be entitled to the same privilege tion mortgagee of the mortgaged premises, that the mortgagor might have had, or of deam. satisfying the prior mortgage, and shall by such satisfaction acquire all the benefits to which such prior mortgage was or might have been entitled.

sale how dir

$53. If on the sale of the mortgaged premises there are other Surplus on sums due on the same mortgage, or other subsequent mortgages, the posed of. surplus arising on such sale shall be retained by the officer or other person conducting such sale, for the satisfaction of such subsequent mortgage money; and if no default shall have happened in the payment of the money secured by such mortgage; or if the same shall have become due, and shall have remained in the hands of such officer uncalled for, for the space of two months after such sale, in either case the same shall be invested by such officer or other person at legal interest, to satisfy any such amount as may thereafter fall due, or to be paid over whenever the same shall be demanded by such mortgagee; but no interest shall be allowed on any mortgage money after the same shall fall due as aforesaid: Provided, Sufficient moneys are in the hands of the officer or other person to satisfy the

same.

may pur

$ 54. The mortagee may be a purchaser at any mortgage sale Mortgage made in virtue of a power of sale contained in the mortgage, and chase at his title shall not, on that account, be impeached or defeated, either sale. at law or equity: Provided, The sale was in every other respect conducted in good faith, and the affidavit of the publication and affixing notice of sale, and of the circumstances of such sale shall be evidence of the sale, and of the foreclosure of the equity of redemption, as specified in the forty-eighth section, without any conveyance or certificate from the officer, in the same manner and with like effect as if such conveyance had been made.

Of the partition of lands.

$55. Where any lands, tenements or hereditaments shall be held Petition for partition of in joint tenancy, tenancy in common, or coparcenary, it shall be lands, made lawful for one or more of the parties interested therein, to present a court.

to district