21. A Bill concerning Wills; the Distribution of Intestate’s Estates; and the Duty of Executors and Administrators
Be it enacted by the General Assembly that every person aged twenty one years or upwards, being of sound mind, and not a married woman, shall have power at his will and pleasure, by last will and testament, in writing, to devise all the estate, right, title, and interest, in possession, reversion, or remainder, which he hath, or at the time of his death shall have, of, in, or to lands, tenements, or hereditaments, or annuities, or rents charged upon or issuing out of them; so as such last will and testament be signed by the testator, or by some other person in his presence, and by his direction, and moreover, if not wholly written by himself, be attested by two or more credible witnesses subscribing their names in his presence.
Saving to the widows of testators their dower in such lands, tenements, rents, or annuities, according to the laws, which shall not be prejudiced by any devise thereof.
No devise so made, or any clause thereof, shall be revocable but by the testator’s destroying, cancelling, or obliterating the same, or causing it to be done in his presence, or by a subsequent will, codicil, or declaration in writing, made as aforesaid. But every last will and testament, made when the testator had no child living, wherein any child he might have is not provided for or mentioned, if, at the time of his death he leave a child, or leave his wife enseint of a child which shall be born, shall have no effect during the life of such after born child, and shall be void unless the child die without having been married, or before he or she shall have attained the age of twenty one years. When a testator shall leave children born, and his wife enseint, the posthumous child, if it be unprovided for by settlement, and be neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father’s estate as such child would have been intitled to, if the father had died intestate; towards raising which portion, the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.
No person under the age of eighteen years shall be capable of disposing of his chattels by will.
No nuncupative will, shall be established unless it be made in the time of the last sickness of the deceased, at his habitation, or where he hath resided for ten days next preceeding, except where the deceased is taken sick from home, and dies before he returns to such habitation; nor where the value exceeds ten pounds unless it be proved by two witnesses that the testator called on some person present to take notice or bear testimony that such is his will, or words of the like import.
After six months have elapsed from the time of speaking the pretended testamentary words, no testimony shall be received to prove a nuncupative will, unless the testimony, or the substance thereof, shall have been committed to writing within six days after making the will.
No will in writing, or any devise therein of chattels, shall be revoked by a subsequent will, codicil, or declaration, unless the same be in writing.
Any soldier in actual military service, or any mariner or seaman being at sea, may dispose of his chattels as he might heretofore have done.
If any person shall subscribe his name as a witness to a will wherein any bequest is given to him, if the will may be not otherwise proved, the bequest shall be void, and such witness shall be allowed and compellable to appear and give testimony on the residue of the will in like manner as if no such bequest had been made. But if such witness would be entitled to any share of the testator’s estate, in case the will were not established, so much of his said share shall be saved to him as shall not exceed the value of the legacy bequeathed him.
The several county courts shall have power to hear and determine all causes, matters, suits and controversies, testamentary, arising within their respective jurisdictions, and to examine and take the proof of wills, and grant certificates thereof according to the methods and rules following, that is to say: If any testator shall have a mansion house or known place of residence, his will shall be proved in the court of the county wherein such mansion house or place of residence is: If he hath no such place of residence, and lands be devised in the will, it shall be proved in the court of the county wherein the lands lie, or in one of them, where there shall be lands in several counties: And if he hath no such known place of residence, and there be no lands devised, then the will may be proved either in the county where the testator shall die, or that wherein his estate, or the greater part thereof shall be, or such will may in any case be proved in the General Court.
When any will shall be exhibited to be proved, the court having jurisdiction as aforesaid, may proceed immediately to receive the proof thereof, and grant a certificate of such probat: If however any person interested shall within seven years afterwards appear, and by his bill in Chancery contest the validity of the will, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury, whose verdict shall be final between the parties; saving to the court a power of granting a new trial for good cause, as in other trials; but no such party appearing within that time, the probat shall be forever binding.
In all such trials by jury, the certificate of the oath of the witnesses, at the time of the first probat, shall be admitted as evidence, to have such weight as the jury shall think it deserves.
No nuncupative will shall be proved within fourteen days after the death of the testator, nor until his widow, if any, and next of kin have been summoned to contest the same if they please.
If the General Court or any county court, having jurisdiction as aforesaid, shall be informed that any person hath the will of a testator in his custody, such court may summon such person, and by a proper process compel him to produce the same.
If the executors named in any will shall all refuse the executorship, or being required to give security, as herein after-mentioned, shall refuse, or fail to give the same, which shall amount to a refusal of the executorship, in either case, the court having jurisdiction as aforesaid, may receive the proof of the will and grant a certificate for obtaining letters of administration with the same annexed, to the person to whom administration would have been granted if there had been no will of the deceased.
Before granting a certificate of the probat of any will, the Executor or administrator with the will annexed, as the case shall be, shall in open court take the following oath, to wit: “You shall swear that this writing contains the true last will of the within named as far as you know or believe; and that you will well and truly perform the same, by paying first his debts, and then the legacies contained in the said will, as far as his goods, chattels and credits will extend and the law charge you; and that you will make a true and perfect inventory of all the said goods, chattels and credits, as also a just account when thereto required.” And shall also give bond in such penalty as will be equal to the full value of the estate at the least, and with such security as shall be approved of by the court, with the following condition, to wit: “The condition of this obligation is, that if the said executor of the last will and testament [or administrator, with the will annexed, of all the goods, chattels and credits]1 of deceased, do make a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowlege of the said or into the hands or possession of any other person or persons for , and the same so made do exhibit into the court at such time as shall be thereto required by the said court; and the same goods, chattels and credits do well and truly administer according to law; and make a just and true account of actings and doings therein, when thereunto required by the said court; and further do well and truly pay and deliver all the legacies contained and specified in the said will, as far as the said goods, chattels and credits will extend according to the value thereof, and as the law shall charge ; then this obligation to be void, or else to remain in full force.”
Which bond shall be payable to the Judges or Justices sitting in court and their successors, and shall not become void upon the first recovery, but may be put in suit and prosecuted from time to time, by, and at the costs of any party injured, by a breach thereof, until the whole penalty be recovered thereupon.
But where any testator shall leave visible estate, more than sufficient to pay all his debts, and by will shall direct that his executors shall not be obliged to give security, in that case no security shall be required, unless the court shall see cause from their own knowledge or the suggestions of creditors or legatees, to suspect the executors of fraud, or that the testator’s personal estate will not be sufficient to discharge all his debts, and shall require security, when the same shall be given, before a certificate shall be granted, notwithstanding any directions to the contrary in the testator’s will.
The power of executors over their testator’s estates before probat of the will, is not hereby restrained, but shall continue as heretofore.
During any contest about a will, or in the absence of executors, or whenever the court, from any other cause, shall judge it convenient, they may appoint any person or persons to collect and preserve the estate of any decedent, until a probat of his will, or administration of his estate, be granted, taking bond and security for collecting the estate, making an inventory thereof, and safe keeping and delivering up the same, when required, to the executors or administrators.
When any widow shall not be satisfied with the provision made for her by the will of her husband, she may within one year from the time of his death, before the General Court or court of the county, having jurisdiction of the probat of his will as aforesaid, or by deed, executed in the presence of two or more credible witnesses, declare that she will not take or accept the provision made for her by such will, or any part thereof, and renounce all benefit which she might claim by the same will; and thereupon such widow shall be intitled to one third part of the slaves whereof her husband died possessed, which she shall hold during her life, and at her death they and their increase shall go to such person or persons to whom they would have passed and gone if such declaration had not been made; and she shall moreover be entitled to such share of his other personal estate as if he had died intestate, to hold to her as her absolute property; but every widow not making a declaration within the time aforesaid, shall have no more of her husband’s slaves or personal estate than is given her by his will.2
All original wills shall be recorded and shall also remain in the clerk’s office of the court wherein they are respectively proved, except during such time as they may be in any superior court, having been removed thither for inspection by certiorari, or otherwise, after which they shall be returned to the said office.
When any person shall die intestate as to his goods and chattels or any part thereof, after funerals, debts and just expences paid, if there be no child, one moiety, or, if there be a child or children, one third of the surplus shall go to the wife, but she shall have no more than the use for her life of such slaves as shall be in her share, and the residue of the surplus, and after the wife’s death, the slaves in her share, or if there be no wife, then the whole of such surplus shall be distributed in the same proportions, and to the same persons as lands are directed to descend in and by an act of General Assembly, intitled, “An act directing the course of descents.” Nothing in this act contained shall be understood so as to compel the husband to make distribution of the personal estate of his wife dying intestate. Where any children of the intestate, or their issue, shall have received from the intestate, in his life time, any personal estate by way of advancement, and shall chuse to come into the distribution with the other persons intitled, such advancement shall be brought into hotchpot with the distributable surplus.3
The General Court and the several county courts respectively, shall have the like jurisdiction to hear and determine the right of administration of the estates of persons dying intestate, as is herein beforementioned as to the proof of wills, in respect to the intestate’s place of residence, or death, or where the estate shall lie, and shall grant certificates, for obtaining such administration, to the representatives who apply for the same, preferring, first the husband or wife, and then such others as are next intitled to distribution, or one or more of them as the court shall judge will best manage and improve the estate.
If no such person applies for administration within thirty days from the death of an intestate, the court may grant administration to any creditor or creditors who apply for the same, or to any other person the court shall in their discretion think fit: But if any will shall afterwards be produced and proved by executors, or the wife or other distributee, who shall not have before refused, shall apply for the administration, the same shall be granted, in like manner as if the former had not been obtained.
Before granting a certificate for the administration of any estate, the person or persons to whom the same is granted, shall in open court take the following oath, to wit: “You shall swear that deceased, died without any will, as far as you know or believe, and that you will well and truly administer all and singular the goods, chattels and credits of the said deceased, and pay his debts as far as his goods, chattels and credits will extend and the law require you; and that you will make a true and perfect inventory of all the said goods, chattels and credits, as also a just account when thereunto required. So help you God.” And shall also give bond in a penalty at least equal to the value of the estate, and with such security as shall be approved of by the court, with the following condition, to wit: “The condition of this obligation is, that if the said administrator of the goods, chattels and credits of deceased, do make a true and perfect inventory of all and singular, the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowledge of the said or into the hands or possession of any other person or persons for ; and the same so made, do exhibit into the court when he shall be thereto required by the said court; and such goods, chattels and credits do well and truly administer according to law; and further do make a just and true account of his actings and doings therein, when thereto required by the said court: And all the rest of the said goods, chattels and credits which shall be found remaining upon the account of the said administrator, the same being first examined and allowed by the Justices of the said court, for the time being, shall deliver and pay unto such persons respectively, as are intitled to the same by law. And if it shall hereafter appear that any last will and testament was made by the deceased, and the same be proved in court, and the executor obtain a certificate of the probat thereof, and the said do in such case, being required, render and deliver up his letters of administration, then this obligation to be void, or else to remain in full force,” which bond shall be payable to the sitting Justices and their successors, and may be put in suit and prosecuted, in like manner as is before directed in the case of bonds to be given by executors or administrators with the will annexed.
But no security for an executor or administrator shall be chargable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading or false pleading of such executors or administrator.
If any court shall grant a certificate for obtaining administration of the estate of any person deceased, without taking good security for the same, as aforesaid, to be judged of according to the apparent circumstances of the security when taken, and not from subsequent accidents or discoveries thereof, the Justices of such court then sitting, shall be answerable to the person or persons injured, for all loss or damage occasioned by the not requiring any, or by the taking insufficient security, recoverable, with costs, by action on the case, in any court of record.
When securities for executors or administrators conceive themselves in danger of suffering thereby, and petition the court for relief, the court shall summon the executor or administrator, and make such order or decree thereupon to relieve and secure the petitioners, by counter security, or otherwise, as to them shall seem just and equitable.
All certificates of probat, or of administration, attested by the clerk, shall enable the executor or administrator to act, and may be produced or given in evidence in any court within this commonwealth, and be as effectual as a probat or letters of administration made out in due form; nevertheless the clerks of the courts shall, when required by any executor or administrator, make out such probat or letters, in due form, in the name of the first Justice of the court, which probat or letters shall be signed by such Justice, and sealed with the county seal, if the will be proved in a county court, or with the seal of the commonwealth if proved in the General Court.
The clerk of every county court shall half yearly, in the months of April and October, return to the clerk of the General Court, a list of all certificates granted in his court for probats and administrations, within the preceeding half year, in this form [date of certificate]1 [name of testator or intestate]1 [names of securities]1 [penalty of bond]1 which lists, together with such certificates as are granted in the General Court, shall be entered by the clerk of the General Court, alphabetically, in books for that purpose.
Every court granting a certificate for a probat or administration shall nominate three or more appraisers in every county, where any of the personal estate of the decedent shall be, who being sworn, before a Justice of Peace for that purpose, shall truly and justly, to the best of their judgment, view and appraise all the personal estate to them produced; and shall return such appraisement under their hands to the court ordering the same; which appraisement, if signed by the executor or administrator, may be considered as an inventory of such part of the estate as had theretofore come to his hands.
Inventories and appraisements may be given in evidence in any suit, by or against the executor or administrator, but shall not be conclusive for or against him if other testimony be given that the estate was really worth, or was bona fide, sold for more or less than the appraisement.
Each appraiser shall be intitled to thirty pounds of tobacco, per day, for his attendance, to be paid by the executor or administrator and charged to the estate.
Executors and administrators, whether it be necessary for payment of debts, or not, shall as soon as convenient, after they are qualified, sell at public sale all such goods of their testator or intestate, specific legacies excepted, or are liable to perish, be consumed, or rendered worse by keeping, giving such credit as they shall judge best and the circumstances of the estate will admit of, taking bond and good security of the purchasers, and shall account for such goods according to the sales. If more be sold than will pay the debts and expences, the executor or administrator may assign the bonds for the surplus to those intitled to the estate, and be discharged as to so much.
If such perishable goods be not sufficient for paying the debts and expences, the executor or administrator shall proceed in the next place to sell the other personal estate, disposing of the slaves last, until the debts and expences be all paid, having regard to the privilege of specific legacies.
Nevertheless if the testator direct his estate not to be appraised it shall be sufficient to return an inventory thereof only, and if he direct his estate not to be sold, the same shall be preserved in specie, unless a sale be necessary for the payment of debts.
The dead victuals and liquors which at the death of any testator or intestate shall have been laid in for consumption in his family, shall not be sold by the executor or administrator, but shall remain for the use of such family without account thereof to be made: If however, before its final consumption, any child shall leave the family, such child shall have a right to carry with him an equal share of what shall then be on hand. Any live stock which may be necessary for the food of the family may also be killed for that use, at any time before the sale, division, or distribution of the estate.
The sale and conveyance of land devised to be sold, shall be made by the executors or such of them as shall undertake the execution of the will, if no other person be thereby appointed for that purpose, or if the person so appointed shall refuse to perform the trust, or die before he shall have completed it.
If any person shall die after the first day of March, the servants and slaves of which he was possessed, whether held for life or for other interest, and which were employed in making a crop, shall be continued on the plantations in the occupation of the decedent until the last day of December following, and then delivered to those who shall have a right to demand the same; and their crops shall be assets in the hands of the executors or administrators, subject to debts, legacies and distribution, the levies and taxes, their tools, the expence of feeding them and their families to that time, and delivering them well clothed, being first deducted: And if such servants or slaves be held by the testator or intestate for his life only, in that case the executor or administrator shall be obliged to deliver to those who are intitled in remainder or reversion, three barrels of Indian corn for every such servant or slave, old and young, to be allowed in their accounts of administration. If a testator or intestate shall die after the first day of March, all the emblements of his lands, which shall be severed before the said thirty first day of December following, shall in like manner be assets in the hands of his executor or administrator; but all such emblements growing on the lands on that day, or at the time of the death of the testator or intestate, if that event happen after the thirty first day of December and before the first day of March, shall pass with the land to the heir, devisee, reversioner or remainder man.
If there be tenant for life of lands or slaves let or hired to another, at the death of such tenant for life, if that event happen after the first day of March, the lessee, or person hiring shall hold the lands and slaves until the last day of December following, paying rent or hire to that time, and in the case of slaves delivering them well clothed.
The rent of land or hire of slaves shall be apportioned between the executor or administrator of him who having a freehold, or other uncertain estate in the land, and the use for life or for other uncertain term in the slaves, shall die before the rent or hire become due, and him who shall succeed to the land, and slaves, as heir, devisee, or person in reversion or remainder, unless, in the case of a devisee, the contrary be directed by the testator.
The appointment of a debtor executor shall in no case be deemed an extinguishment of the debt unless it be so directed in the will.
No distribution shall be made of an intestate’s estate until nine months after his death, nor shall an administrator be compelled to make distribution at any time, until bond and security be given by the person intitled to distribution, to refund due proportions of any debts or demands which may afterwards appear against the intestate, and the costs attending the recovery of such debts.
Executors and administrators shall be allowed in their accounts all reasonable charges and disbursements which they shall lay out and expend in the funeral of the deceased and other their administration; and in extraordinary cases may be allowed such recompence for their personal trouble, as the court, on passing their accounts, shall judge reasonable.
The executors or administrators of a guardian, of a committee, or of any other person who shall have been chargeable with, or accountable for the estate of a ward, an ideot, or a lunatic, or the estate of a dead person committed to their testator or intestate by a court of record, shall pay so much as shall be due from their testator or intestate to the ward, ideot, or lunatic, or to the legatees or persons intitled to distribution, before any proper debt of their testator or intestate.
Where any person shall die seized of lands held for life of another, such person may by his or her last will and testament, in writing, made and proved as is herein before directed, for the devise of lands, devise of his interest in such lands, which shall, if necessary, be assets in the hands of such devisee. And if no such devise be made, such lands for the residue of the term, shall be assets in the hands of the heir, if it shall come to him by reason of a special occupancy, in the same manner as lands descending in fee simple, and if there shall be no special occupant, it shall go to the executors or administrators of the person so dying seized, and be assets in their hands, subject to debts, legacies and distribution.
Executors or administrators may sue or be sued upon all judgments, bonds or other specialties, bills, notes or other writings of their testators or intestates, whether the executors or administrators be or be not named in such instruments, and also upon all their personal contracts.
Actions of trespass may be maintained by or against executors or administrators for any goods taken and carried away in the lifetime of the testator or intestate; and the damages recovered shall be in the one case for the benefit of the estate, and in the other out of the assets.
Executors of executors shall do and perform all things in the execution of the will of the first testator, which shall remain undone at the death of the first executor; and shall and may sue or be sued in all things respecting the estate, in the same manner as such first executor could or might have sued or been sued.
If all the executors named in any last will shall refuse to undertake the executorship, or being required to give security, shall refuse to give, or be unable to procure the same, and no person will apply for administration with the will annexed: Or if no person will apply for administration of the goods and chattels of any intestate, it shall be lawful for the General Court, or county court having jurisdiction of such probat or administration as herein before mentioned, after the expiration of three months from the death of the testator or intestate, to order the sheriff of the county to take the estate into his possession and make sale of so much thereof, by public auction, as the payment of debts shall make necessary, or as shall be perishable, or be directed by will to be sold: And all sales and conveyances, bona fide, made by the sheriff, or his deputies, in consequence of such order, shall be as effectual to the purchasers, as if they had been made by the testator or intestate in his lifetime. The estate shall be sold upon such credit as the court shall direct, and upon public notice previously given, the purchasers giving bond and good security for payment according to the limited time of credit. The sheriff may sue, if necessary, for the recovery of debts, or of goods and chattels, and shall make a true and perfect inventory of the whole estate, and an account of sales, and shall return the same, together with the bonds, to the court by whom he was ordered to sell without delay, who shall first direct the payment of such debts as shall be proved before them, and proportion the assets amongst the creditors without regard to the dignity of debts, where there shall not be sufficient to pay the whole; and then order the surplus, if any, to the legatees or next of kin to the decedent, according to the directions of the will or of this act. Whereupon the sheriff, or deputy, shall assign the bonds and deliver the estate remaining unsold to the creditors, or others, according to such order, retaining nevertheless his commissions, which shall be the same upon the estate by him sold, as is allowed for goods taken in execution; and where the whole estate is not sold, he shall moreover be allowed his reasonable expences and disbursements in the care of the part unsold.
All sales and conveyances of lands heretofore bona fide made by a sheriff, under an order of court, where the lands had been devised to be sold, and the executors had refused to act, are hereby confirmed and made effectual against all persons claiming under the testator.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 16–20. Text of Act as adopted in 1785 is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 140–54.
This Bill, which restates and alters the law of wills and estates as enacted in 1711 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends iv, 12–25) and 1748 (same, v, 444–8, 454–67), was presented 31 Oct. 1785 by Madison and was passed by the House on 24 Nov. The Senate accepted it with several amendments, some of which the House agreed to, others amended, and still others rejected; the Senate insisted on some of its amendments but the House was adamant, whereupon the Senate yielded on 8 Dec. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 48, 53, 73, 75, 76, 133). The Act as adopted was substantially the same as that proposed by the Committee of Revisors. One exception is noted below; others were: (1) wherever in the Bill reference is made to county courts and their jurisdiction over wills, administration of estates, &c., the Act reads “county, city, or corporation courts” or some equivalent phraseology; (2) the Act includes a final clause putting it in force 1 Jan. 1787.
1. Brackets in text.
2. Following this point the Act includes two sections not in the Bill as proposed: the first provides that if any widow possessed of slaves as of the dower of her husband should remove such slaves from the state without the consent of the person holding a reversionary interest in the estate, she would forfeit not only the slaves but also “all other the dower which she holds of the endowment of her husband’s estate,” both being forfeited to the one having a reversionary interest; and the second provides that if a widow married to a husband who should remove or permit the removal of such slaves from the state, the reversioner could take possession of the estate held by the husband in right of his wife’s dower.
3. This point was agreed upon by the Committee of Revisors at its meeting in Fredericksburg (see Document i in this series, above).