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The County Recorder, * biennially elected, commissioned by the Governor, and required to reside at the county seat, and to keep the books of record, is also required to give a receipt to the person bringing any deed or writing to be recorded, bearing date on the same day as the entry, and containing the abstract aforesaid, and for which entry and receipt he is entitled to no fees (R. S. 432, Sec. 7), but for the recording he is entitled to fifteen cents per hundred words, and twenty-five cents for a certificate, that the same has been recorded. (R. S. 248, Sec. 23.)
All conveyances. acknowledged or proven in the State before any Judge, Justice of the Supreme or Circuit Court, or before any Court or officer, having a seal, and attested by such seal, are entitled to record without further attestation. But when acknowledged or proven before a Justice of the Peace residing within the State, the certificate of the Clerk of the County Commissioners' Court of the proper county, under his seal of office, that the person taking such proof or acknowledgment was a Justice of the Peace at the time of taking the same, must be produced to the Recorder; and when acknowledged or proved out of the State, before an officer other than Commissioner of this State residing there, the certificate of acknowledgment or proof must be accompanied with a certificate of a Clerk of a Court of Record within the State, Territory, or District, where the acknowledging officer resides, under the hand of such clerk and the seal of his Court, setting forth that the deed or instrument is executed, acknowledged, or proved, in conformity with the laws of such State, Territory, or District.
The conveyance, certificate of acknowledgment or proof, and the certificate of authentication, go upon record together, and for recording the whole thereof the Recorder is entitled to be paid.
Satisfaction of mortgages may be entered upon record, by the mortgagees, in the Recorder's office, and the record will thereby be effectually cancelled. If not so done, the cancellation may be effected by the mortgagees signing and sealing, in the presence of an attesting witness, and acknowledging in form, satisfaction thereof in writing; which instrument, on being produced to the Recorder, is sufficient authority for him to discharge the record. (R. S. 110, Sec. 37.)
WILLS OF REAL ESTATE.
The Statutes of Minois provide, that every person aged twenty-one years, if a male, or eighteen years, if a female, or upwards, and not married, being of sound mind and memory, shall have power to devise all the estate, right, title, and interest, in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, and to any lands, tenements, hereditaments, annuities, or rents charged upon or issuing out of them, or goods and chattels, or personal estate of every description whatsoever, by will or testament; all persons of the age of seventeen years, and of sound mind and memory (married women excepted), have power to dispose of their personal estate, by will or testament; and married women have power to dispose of their separate estate, both real and personal, by will or testament, in the same manner as other persons. (R. S. 536, Sec. 1.)
* The Clerk of the Circuit Court is now Recorder of Deeds, and performs all the duties for merly required to be performed by the County Recorder, which office was abolished by act of the Legislature of 1849. (Laws of 1849, page 64, Sec. 12.)
Wills, testaments, and codicils, by which any lands, tenements, hereditaments, annuities, rents, or goods and chattels are devised, shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, or by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses. If the testator be unable to write, his mark affixed will suffice for a signature, if accompanied with the declaration, that the same is his mark; if another write his name by his direction, the same must be done in his presence, otherwise such signature will be invalid. (R. S., Sec. 2.)
Wills may or may not contain a provision for the appointment of executors thereof. If they contain no appointment, the Court which admits them to probate has the power to supply the omission, by appointing an administrator, with the will annexed.
In no case, where any testator or testatris shall, by his or her will, appoint his or her debtor to be his or her executor or executrix, shall such appointment operate as a release or extinguishment of any debt due from such executor or executrix to such testator or testatrix, unless the testator or testatrix shall, in such will, expressly declare his or her intention to devise or release such debt; nor even in that case, unless the estate of such testator or testatrix is sufficient to discharge the whole of his or her just debts, over and above the debt due from such executor or executrix. (R. S., Sec. 12.)
If, after making a last will and testament, a child or children shall be born to any testator or testatrix, and no provision be made in such will for such child or children, the will shall not, on that account, be revoked, but unless it shall appear by such will, that it was the intention of the testator or testatrix to disinherit such child or children, the devises and legacies by such will granted and given shall be abated in equal proportions, to raise a portion for such child or children, equal to that which such child or children would have been entitled to receive out of the estate of such testator or testatrix, if he or she had died intestate. (R. S., Sec. 13.)
Whenever a devisee or legatee in any last will and testament, being a child or grandchild of the testator or testatrix, shall die before such testator or testatrix, and no provision shall be made for such contingency, the issue of such devisee or legatee shall take the estate devised and bequeathed, and if there be no such issue at the time of the death of such testator or testatrix, the estate disposed of by such devise or legacy shall be considered and treated in all respects as intestate estate. (R. S., Sec. 14.)
Codicils must be executed in the same manner as wills, and no will, testament, or codicil, shall be revoked otherwise than by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence, by his direction or consent, or by some other will, testament, or codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence, and no words spoken shall revoke or annul any will, testament, or codicil in writing, executed as aforesaid, in due form of law. (R. S., Sec. 15.)
Every devise of land or any estate therein, by a married man, shall bar his surviving widow's right of dower therein, unless otherwise expressed in the will, but she may elect whether she will take such devise or bequest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands. And she will be deemed to have elected to such jointure or devise, unless within one year after the authentication or probate of the will, she shall deliver or transmit to the Court of Probate of the proper county, a written renunciation. (R. S. 199, Sec. 11.)
THE PROBATE AND RECORDING OF Wills.
When any will, testament, or codicil shall be exhibited in the Court of Probate* for probate thereof, it shall be the duty of the court to receive the probate of the same without delay, and to grant letters testamentary thereon to the person or persons entitled, and to do all other needful acts to enable the parties concerned to make settlement of the estate at as early a day as shall be consistent with the rights of the respective persons interested therein: provided, however, that if any person interested shall within five years after the probate of any such will, testament, or codicil, in the Court of Probate as aforesaid, appear, and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up, whether the writing produced be the will of the testator or testatrix or not; which shall be tried by a jury, in the Circuit Court of the county wherein such will, testament, or codicil shall have been proved and recorded as aforesaid, according to the practice in courts of
* The County Court is invested with all of the powers and jurisdiction formerly exercised by the Probate Court, which is now abolished. (Laws of Ill., p. 65, Sec. 13.)
The County Court was created by the same act by which the Probate Court was abolished and holds its sessions for the transaction of business at the Court-house, or usual place of holding courts in the several counties, on the first Monday of each month, except the months of December, March, June, and September, and on the third Mondays of said months, and continues open day by day, until all the business before it be disposed of.
chancery in similar cases; but if no such person shall appear within the time aforesaid, the probate as aforesaid shall be forever binding and conclusive on all the parties concerned, saving to infants, femmes covert, persons not compos mentis or absent from the State, the like period after the removal of their respective disabilities. And in all such trials by jury, as aforesaid, the certificate of the oaths of the witnesses at the time of the first probate shall be admitted as evidence, and to have such weight as the jury shall think it may deserve. (R. S., p. 537, Sec. 6.)
On the probate of any will at least two credible attesting witnesses are required to be sworn and examined, and before the same can be admitted to record such witnesses must have declared, on oath or affirmation, that they were present and saw the testator or testatrix sign said will, testament, or codicil in their presence, and heard him or her acknowledge the same to be his or her act and deed; and they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same. (R. S., p. 536, Sec. 2.)
It shall be the duty of each and every witness to any will, testament, or codicil, made and executed in this State as aforesaid, to be and appear before the Court of Probate on the regular day for probate of such will, testament, or codicil, to testify of and concerning the execution and validity of the same, and the said Court of Probate shall have power and authority to attach and punish by fine and imprisonment, or either, any witness who shall, without a reasonable excuse, fail to appear when duly summoned for the purpose aforesaid ; provided the said punishment by imprisonment shall in no case exceed the space of twenty days, nor shall a greater fine be assessed for any such default than the sum of fifty dollars.
When any will, testament, or codicil shall be produced to the Court of Probate for probate of the same, and any witness attesting such will, testament, or codicil shall reside without the limits of this State, it shall be lawful for the Probate Justice to issue a dedimus potestatem, or commission annexed to such will, testament, or codicil, directed to some judge, justice of the peace, mayor, or other chief magistrate of the city, town, or corporation, or county where such witness may be found, authorizing the taking and certifying of his or her attestation in due form of law. And if the person to whom any such commission shall be directed, shall certify in the manner that such acts are usually authenticated, that the witness personally appeared before him and made oath or affirmation that the testator or testatrix signed and published the writing annexed to such commission as his or her last will and testament; or, that some other person signed it by his or her direction, that he or she subscribed his or her name as a witness thereto in the presence of the testator or testatrix, and at his or her request; such oath or affirmation shall have the same operation, and the will shall be admitted to probate in like manner, as if such oath or affirmation had been made in the Court of Probate from whence such commission issued. (R. S., p. 537, Sec. 4.)
Any will, testament, and codicil, or authenticated copies thereof, proven according to the laws of any of the United States or Territories thereof, or of any country out of the limits of the United States, and touching or concerning estates within this State, accompanied with a certificate of the proper officer or officers that such will, testament, codicil, or copy thereof, was duly executed and proved agreeebly to the laws and usages of that State or country in which the same was executed, shall be recorded as aforesaid, and shall be good and available in law, in like manner as wills made and executed in this State. (R. S., p. 538, Sec. 8.)
Form of Attestation. Signed, sealed, published, and declared, by the said John Warren, as and for his last will and testament, in the presence of us, who, at the request of the said John Warren, and in his presence, and in the presence of each other, have hereunto subscribed our names, and respective places of residence, as witnesses.
TITLE TO REAL ESTATE BY INHERITANCE.
The Statutes provide that the estates, both real and personal, of resident or non-resident proprietors dying intestate, or whose estates or any part thereof shall be deemed and taken as intestate estate, and after all just debts and claims against such estates shall be paid as aforesaid, shall descend to and be distributed to his or her children and their descendants in equal parts: the descendants of a deceased child or grandchild taking the share of their deceased parent in equal parts among them; and when there shall be no children of the intestate, nor descendants of such children, and no widows, then to the parents, brothers and sisters of the deceased person and their descendants in equal parts among them, allowing to each of the parents, if living, a child's part, or to the survivor of them, if one be dead, a double portion; and if there be no parent living, then to the brothers and sisters of the intestate and their descendants. When there shall be a widow and no child or children, or descendants of a child or children of the intestate, then the one-half of the real estate and the whole of the personal estate shall go to such widow as her exclusive estate forever, subject to her absolute disposition and control, to be governed in all respects by the same rules and regulations as are or may be provided in case of estates of femme sole: if there be no children of the intestate, or descendants of such children, and no parents, brothers or sisters, or descendants of brothers and sisters, and no widow, then such estate