place of presenting the same, shall be served personally on such widow, twenty days previous to its presentation.

Upon such application being made, either by a widow, or by any heir or owner, or by the guardian of such heir or owner, the surrogate may, upon hearing of the parties, order that admeasurement be made of such widow's dower of all the lands of her husband, or of such part thereof as shall have been specified in such application.

Such surrogate shall thereupon appoint three reputable and disinterested freeholders commissioners, for the purpose of making such admeasurement, by an order which shall specify the lands of which dower is to be admeasured, and the time at which the commissioners shall report..

The commissioners so appointed, before entering upon their duties, shall be sworn, before the surrogate who appointed them, or before some officer authorised to take affidavits, that they will faithfully, honestly and impartially discharge the duty, and execute the trust reposed in them by such appointment.

If the persons so appointed commissioners, or either of them, shall die, resign, or neglect or refuse to serve, others may be appointed in their places, by the surrogate who appointed the first commissioners, and shall take the same oath. The commissioners so appointed, shall execute their duties as follows:

1. They shall admeasure and lay off, as speedily as possible, the one third part of the lands embraced in the order for their appointment, as the dower of such widow, designating such part with posts, stones, or other permanent monuments.

2. In making such admeasurement, they shall take into view any permanent improvements made upon the lands embraced in the said order, by any heir, guardian or minor, or other owners, since the death of the husband of such widow, or since the alienation thereof by such husband; and if practicable, shall award such improvement within that part of the lands not allotted to such widow; and if not practicable so to award the same, they shall make a deduction from the lands,

allotted to such widow, proportionate to the benefit she will derive from such part of the said improvements, as shall be included in the portion assigned to her.

3. They shall make a full and ample report of their proceedings, with the quantity, courses and distances of the land admeasured and allotted by them to the widow, with a description of the posts, stones, and other permanent monuments thereof, and the items of their charges, to the court by which they were appointed, at the time specified in the order for their appointment.

4. They may employ a surveyor, with necessary assistants, to aid them in such admeasurement.

The surrogate appointing such commissioners, may, upon their application, or that of either party, enlarge the time for making their report; and may, by order, compel such report, or discharge the commissioners neglecting to make the same, and appoint others in their places.

Such report shall be filed, and entered at large in a book to be provided by the surrogate for that purpose.

The surrogate to whom such report shall be made, may, at the time appointed for receiving the same, or at such other time to which the hearing shall have been adjourned, on good cause shown, set aside the said report, and appoint, as often as may be necessary, new commissioners, who shall proceed in the manner herein before directed; and if not set aside, the surrogate shall, by order, confirm the said report and admeas

urement.

The admeasurement so made and confirmed, shall, at the expiration of thirty days from the date of such confirmation, unless appealed from, be binding and conclusive, as to the location and extent of the said widow's right of dower, on the parties who applied for the same, and on all parties to whom notice shall have been given, as herein before directed. But no person shall be precluded thereby from controverting the right and title of such widow to the dower so admeasured.

The widow to whom dower shall be admeasured, at the expiration of thirty days from the date of said confirmation, un

less the same be appealed from, may bring and maintain an action of ejectment, to recover the possession of the lands so admeasured to her for her dower (in which her right to such dower may be controverted), and upon recovery, may hold the same during her natural life, subject to the payment of all taxes and charges accruing thereon, subsequent to her taking possession.

Where the commissioners have been appointed by a surrogate, the widow, and any heir or owner of lands affected by the proceedings, or the guardian of such heir or owner, may, within thirty days after the order of confirmation of the report of the commissioners by such surrogate, appeal from such order, to the supreme court, in the manner hereinafter directed.

Such appeal shall be filed with the surrogate granting such order; but shall not be effectual or valid for any purpose, until a bond to the adverse party shall be executed by the appellant, and filed with such surrogate, with security to be approved by the surrogate by whom such order was made, and to be evidenced by an endorsement on such bond, in the penal sum of one hundred dollars, conditioned for the diligent prosecution of such appeal, and for the payment of all costs that may be adjudged by the supreme court against such appellant; and no other notice or proceedings shall be necessary to perfect such appeal.

It shall be the duty of the surrogate, with whom such appeal and bond shall be filed, on receiving the amount of his fees for the service, to transcribe the petition, affidavits, notitices, orders, reports, and all other proceedings on the said application, together with the said appeal, to certify them under his official seal, and to transmit the said copies to the supreme

court.

The supreme court shall proceed to hear and determine the the said appeal, and to review all the proceedings upon the said application, and shall do therein what shall be just.

In case of the reversal of the order of confirmation, the court shall cause the same to be certified to the surrogate, making such order, to the end that new commissioners may be

appointed, or a new admeasurement may be had, as the supreme court shall direct; or the said supreme court may proceed to appoint commissioners to make admeasurement.

In case of the affirmance of the order of confirmation of any surrogate, the supreme court may also, in its discretion, award costs to be paid by the appellant, and to be taxed as the said court shall direct; and the original order of confirmation, and the admeasurement confirmed thereby, shall be binding and conclusive, and authorise an action of ejectment, as herein before specified.

All costs and expenses arising on any proceedings on such application, shall be taxed by the surrogate before whom such proceedings shall be had; and when such application is made to the surrogate, and no appeal shall be made from the order of confirmation, the said costs and expenses shall be paid equally, the one half thereof by the widow, and the other half by the adverse party.

When an appeal is entered, then such costs shall be paid by the party applying for such admeasurement; and if the admeasurement be affirmed on such appeal, the supreme court, in awarding costs, shall require the party appealing to pay the one half of such costs and expenses before the surrogate, if he have not before paid the same.

The hearing of an appeal by the supreme court, shall be brought on by notice, and shall be conducted as other special motions; and notices of the hearing, and all other necessary notices in the said court, may be served on any party, not residing within this state, by leaving the same with the surrogate from whose order the appeal is made, for the use of such party. And the supreme court may, by rule, direct further returns from any surrogate, whenever the same shall be necessary, and may establish such rules to regulate the practice on. such appeals, as the said court may deem expedient.

PART II.

Of the powers and duties of Executors and Administrators.

Before proceeding to the peculiar subjects of this part, I deem it my duty to state who may make wills, and what a will is.

All persons, except idiots, persons of unsound mind, married women and infants, may devise their real estate, by a last will and testament, duly executed according to the provisions hereinafter stated.

Every estate and interest in real property descendible to heirs, may be so devised.

Such devise may be made to every person capable by law of holding real estate; but no devise to a corporation shall be valid, unless such corporation be expressly authorised by its charter, or by statute, to take by devise.

Every devise of any interest in real property, to a person who, at the time of the death of the testator, shall be an alien, not anthorised by statute to hold real estate, shall be void.The interest so devised, shall descend to the heirs of the testator; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there be, competent to take such interest.

Every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death.

If by any will, any real estate be charged with any debt, and the creditor whose debt is so charged, shall attest the execution thereof, such creditor, notwithstanding such charge,