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V. CAVEAT.

3135. When and how filed. At the time of application for the probate of any will, or at any time thereafter, as prescribed by law, any person entitled under such will or interested in the estate may appear in person or by attorney before the clerk of the superior court, and enter a caveat to the probate of such will.

Code, s. 2158; C. C. P., s. 446.

3136. Cause transferred to trial docket, when. Upon any caveator giving bond, with sufficient surety to be approved by the clerk, in the sum of two hundred dollars, payable to the propounder of the will, conditioned to pay all costs which may be adjudged against such caveator in the superior court, by reason of his failure to prosecute his suit with effect, or deposit the money or give a mortgage in lieu of such bond, or shall file affidavits and satisfy the said clerk of his inability to give such bonds or secure such costs, the clerk shall transfer the cause to the superior court for trial; and he shall also forthwith issue a citation to all devisees, legatees or other parties in interest within the state, and cause publication to be made, for six weeks, in some newspaper printed in the state, for nonresidents to appear at the term of the superior court, to which the proceeding is transferred, and to make themselves proper parties to the said proceeding, if they choose. At the term of said court to which such proceeding is transferred, or as soon thereafter as motion to that effect shall be made by the propounder, and before trial, the judge shall require any of the persons so cited, either those who make themselves parties with the caveators, or whose interest appear to him antagonistic to that of the propounders of the will, and who shall appear to him to be able so to do, to file such bond within such time as he shall direct and before trial, and on failure to file said bond the judge shall dismiss the proceeding.

Code, s. 2159; 1899, c. 13; 1901, c. 748; C. C. P., s. 447.

3137. Filing of, suspends proceedings under will. Where a caveat is entered and bond given, the clerk of the superior court shall forthwith issue an order to any personal representative, having the estate in charge, to suspend all further proceedings in relation to the estate, except the preservation of the property and the collection of debts, until a decision of the issue is had.

Code, s. 2160; C. C. P., s. 448.

VI. CONSTRUCTION.

3138. Devise presumed a fee simple. When real estate shall be devised to any person, the same shall be held and construed to be

a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity.

Code, s. 2180; R. C., c. 119, s. 26; 1784, c. 204, s. 12.

3139. Valid only after probate; conclusiveness of probate. No will shall be effectual to pass real or personal estate, unless it shall have been duly proved and allowed in the probate court of the proper county, and a duly certified copy thereof shall be recorded in the office of the superior court clerk of the county wherein the land is situate, and the probate of a will devising real estate shall be conclusive as to the execution thereof, against the heirs and devisees of the testator, whenever the probate thereof, under the like circumstances, would be conclusive against the next of kin and legatees of the testator.

Code, s. 2174; R. C., c. 119, s. 20; 1784, c. 225, s. 6.

3140. What property passes by will. Any testator, by his will duly executed, may devise, bequeath, or dispose of all real and personal estate, which he shall be entitled to at the time of his death, and which, if not so devised, bequeathed, or disposed of, would descend or devolve upon his heirs at law, or upon his executor or administrator; and the power hereby given shall extend to all contingent, executory, or other future interest in any real or personal estate, whether the testator may or may not be the person or one of the persons, in whom the same may become vested, or whether he may be entitled thereto under the instrument by which the same was created, or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, and other rights of entry; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to, at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will. Code, s. 2140; R. C., c. 119, s. 5; 1844, c. 88, s. 1.

3141. Speak as of death of testator. Every will shall be construed with reference to the real and personal estate comprised therein, to speak and take effect, as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.

Code, s. 2141; R. C., c. 119, s. 16; 1844, c. 88, s. 3.

3142. Lapsed and void devises pass under residuary clause. Unless a contrary intention shall appear by the will such real estate

or interest therein, as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will.

Code, s. 2142; R. C., c. 119, s. 7; 1844, c. 88, s. 4.

3143. General gift includes estate to which testator has power to appoint. A general devise of the real estate of the testator, or of his real estate in any place or in the occupation of any person mentioned in the will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper; and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property, described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will.

Code, s. 2143; R. C., c. 119, s. 8; 1844, c. 88, s. 5.

3144. Gifts to children dying, pass to issue. When any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person as shall be living at the death of the testator, such devise or bequest shall not lapse, but shall take effect and vest a title to such estate in the issue surviving, if there be any, in the same manner, proportions and estates as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.

Code, s. 2144; 1868-9, c. 113, s. 61.

3145. Void as to after-born child. Children born after the making of the parent's will, and whose parent shall die without making any provision for them, shall be entitled to such share and proportion of said parent's estate as if he or she had died intestate, and the rights of any such after-born child shall be a lien on every part of

the parent's estate, until his several share thereof is set apart in the manner prescribed in this chapter.

Code, s. 2145; 1868-9, c. 113, s. 62.

3146. Administrator c. t. a. must observe will. In all cases where letters of administration with the will annexed are granted, the will of the testator must be observed and performed by the administrator with the will annexed, both in respect to real and personal property, and an administrator with the will annexed has all the rights and powers, and is subject to the same duties as if he had been named executor in the will.

Code, s. 2168; C. C. P., s. 455.

NOTE. For matters relating to the administration of the estate, see chapter Administration.

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3147. Limitations, indictments for misdemeanor. All misdemeanors, except the offenses of perjury, forgery, malicious mischief, and other malicious misdemeanors, deceit, and the offense of being accessory after the fact, now made a misdemeanor, shall be presented or found by the grand jury within two years after the commission of the same and not afterwards: Provided, that in case any of the

said misdemeanors, hereby required to be prosecuted within two years, shall have been committed in a secret manner, the same may be prosecuted within two years after the discovery of the offender: Provided further, that if any indictment found within that time shall be defective, so that no judgment can be given thereon, another prosecution may be instituted for the same offense, within one year after the first shall have been abandoned by the state.

Code, s. 1177; R. C., c. 35, s. 8; 1826, c. 11.

3148. When criminal process issued and returned. All process, warrants and precepts, issued by any judge or justice of the peace, or clerk of any court, on any criminal prosecution, may issue at any time, and be made returnable to any day of the term of the court, to which such warrant, process, or precept is returnable. Code, s. 1178; R. C., c. 35, s. 9; 1777, c. 115, s. 15.

3149. Process, how endorsed. Every sheriff or other officer shall indorse on all process and subpoenas issuing in criminal cases, whether for the state or defendant, the day when such process and subpoenas came to hand, and also the day of their execution; and on failure of any sheriff or other officer to perform either of said duties he shall forfeit and pay the sum of ten dollars for every case of neglect, to be recovered for the use of the state, in the same manner as forfeitures are recovered against sheriffs by parties in civil suits for failure to make due return of process delivered to them.

Code, s. 1179; R. C., c. 35, s. 10; 1850-1, c. 57.

3150. Accused entitled to counsel. Every person, accused of any crime whatsoever, shall be entitled to counsel in all matters which may be necessary for his defense.

Code, s. 1182; R. C., c. 35, s. 13; 1777, c. 115, s. 85.

3151. Where persons may be imprisoned. No person shall be imprisoned by any judge, court, justice of the peace, or other peace officer except in the common jail of the county, unless otherwise provided by law: Provided, that whenever the sheriff of any county shall be imprisoned, he may be imprisoned in the jail of any adjoining county.

Code, s. 1174; R. C., c. 35, s. 6; 1797, c. 474, s. 3; 1879, c. 12.

3152. Who may direct post-mortem examination. In all cases of homicide, any officer prosecuting for the state may, at any time, direct a post-mortem examination of the deceased to be made by one or more physicians to be summoned for the purpose; and the physicians shall be paid a reasonable compensation for such examination,

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