Title 84. Wills and Succession
§841. Legacies classed.
Legacies are distinguished and designated, according to their nature, as follows:
1. A legacy of a particular thing, specified and distinguished from all others of the same kind belonging to the testator is specific; if such legacy fails, resort cannot be had to the other property of the testator.
2. A legacy is demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid; if such fund or property fails in whole or in part, resort may be had to the general assets as in case of a general legacy.
3. An annuity is a bequest of certain specified sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy.
4. A residuary legacy embraces only that which remains after all the bequests of the will are discharged.
5. All other legacies are general legacies. R.L. 1910, Sec. 8317.
R.L.1910, § 8317.
§842. All property of interstate subject to debts.
When a person dies intestate, all his property, real and personal, without any distinction between them, is chargeable with the payment of his debts, except as otherwise provided in this code and under civil procedure. R.L. 1910, Sec. 8318.
R.L.1910, § 8336.
§843. Order of resort to property for payment of debts, administration expenses and allowances.
The property of a testator, except as otherwise especially provided in this code and in the chapter on civil procedure must be resorted to for the payment of debts in the following order:
1. The property which is expressly appropriated by the will for the payment of the debts.
2. Property not disposed of by the will.
3. Property which is devised or bequeathed to a residuary legatee.
4. Property which is not specifically devised or bequeathed, and,
5. All other property ratably. Before any debts are paid, the expenses of the administration and the allowance to the family must be paid or provided for.
R.L.1910, § 8319.
§844. Order of resort to property for payment of legacies.
The property of a testator, except as otherwise specially provided in this code and under civil procedure, must be resorted to for the payment of legacies in the following order:
1. The property which is expressly appropriated by the will for the payment of the legacies.
2. Property not disposed of by the will.
3. Property which is devised or bequeathed to a residuary legatee.
4. Property which is specifically devised or bequeathed.
R.L.1910, § 8320.
§845. Preferred legacies.
Legacies to husband, widow or kindred of any class, are chargeable only after legacies to persons not related to the testator.
R.L.1910, § 8321.
§846. Abatement takes effect how.
Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will.
R.L.1910, § 8322.
§847. Title and possession Representative may sell property devised.
In a specific devise or legacy, the title passes by the will, but possession can only be obtained from the personal representative; and he may be authorized by the district court to sell the property devised or bequeathed, in the cases herein provided.
R.L.1910, § 8323.
§848. Claim under heir against devisee Probate proceedings.
The rights of a purchaser or encumbrancer of real property in good faith, and for value, derived from any person claiming the same by succession, are not impaired by any devise made by the decedent from whom succession is claimed, unless the instrument containing such devise has been duly admitted to probate by a court of this state having jurisdiction to administer upon the estate of the decedent within two (2) years after the death of the decedent, or unless within one (1) year after the death of the decedent a petition to admit said will to probate has been duly filed in the court of this state having jurisdiction to admit said will to probate and the proceedings have been pursued by the petitioner with diligence.
R.L.1910, § 8324; Laws 1967, c. 233, § 1, emerg. eff. May 4, 1967.
§849. Succession to limited legacies Inventory of property.
Where specific legacies are for life only, the first legatees must sign and deliver to the second legatee, or, if there is none, to the personal representative, an inventory of the property, expressing that the same is in his custody for life only, and that, on his decease, it is to be delivered and to remain to the use and for the benefit of the second legatee, or to the personal representative as the case may be.
R.L.1910, § 8325.
§8410. Bequest of interest or income begins at death.
In case of a bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death. R.L.1910, Sec. 8326.
R.L.1910, § 8326.
§8411. Satisfaction of legacy before death.
A legacy, or a gift in contemplation, fear or peril of death, may be satisfied before death.
R.L.1910, § 8327.
§8412. Legacies due, when Annuities.
Legacies are due and deliverable at the expiration of one (1) year after the testator's decease. Annuities commence at the testator's decease.
§8413. Interest on legacies.
Legacies bear interest from the time when they are due and payable, except that legacies for maintenance, or to the testator's widow, bear interest from the testator's decease. R.L. 1910, Sec. 8329.
R.L.1910, § 8329.
§8414. Intention of testator controls.
The four preceding sections are in all cases to be controlled by a testator's express intention. R.L. 1910, Sec. 8330.
R.L.1910, § 8330.
§8415. Testator's intention as to executor.
Where it appears by the terms of a will that it was the intention of the testator to commit the execution thereof and the administration of his estate to any person as executor, such person although not named executor, is entitled to letters testamentary in like manner as if he had been named executor. R.L. 1910, Sec. 8331.
R.L.1910, § 8331.
§8416. Executor may not appoint executor.
An authority to an executor to appoint an executor, is void. R.L. 1910, Sec. 8332.
R.L.1910, § 8332. R.L.1910, § 8332.
§8417. Executor's power begins, when Payment of funeral charges, etc.
No person has any power, as an executor, until he qualifies, except that, before letters have been issued, he may pay funeral charges and take necessary measures for the preservation of the estate. R.L. 1910, Sec. 8333.
R.L.1910, § 8333.
§8418. Power of executor of executor.
No executor of an executor, as such, has any power over the estate of the first testator. R.L. 1910, Sec. 8334.
R.L.1910, § 8410.
§8419. Will includes codicils.
The term "will," as used in this chapter, includes all codicils as well as wills. R.L. 1910, Sec. 8335.
R.L.1910, § 8335.
§8420. Law governing validity and interpretation of wills.
Except as otherwise provided, the validity and interpretation of wills is governed, when relating to real property within this state, by the law of this state; when relating to personal property, by the law of the testator's domicile.
R.L.1910, § 8336.
§8421. Liability of beneficiaries.
Those to whom property is given by will are liable for the obligations of the testator in the cases and to the extent prescribed by the chapter on civil procedure, or the statutes in such case made and provided. R.L. 1910, Sec. 8337.
R.L.1910, § 8337.
§8422. Disclaimer of interests passing by will, intestate succession, etc. Definitions
As used in this act, unless otherwise clearly required by the context:
1. "Beneficiary" means and includes any person entitled, but for his disclaimer, to take an interest, by intestate succession; by devise; by legacy or bequest; by succession of a disclaimed interest by will, intestate succession or through the exercise or nonexercise of a testamentary power of appointment; by virtue of a renunciation and election to take against a will; as beneficiary of a testamentary trust; pursuant to the exercise or nonexercise of a testamentary power of appointment; as donee of a power of appointment created by testamentary instrument; or otherwise under a testamentary instrument;
2. "Interest" means and includes the whole of any property, real or personal, legal or equitable, or any fractional part, share or particular portion or specific assets thereof or any estate in any such property or power to appoint, consume, apply or expend property or any other right, power, privilege or immunity relating thereto; and
3. "Disclaimer" means a written instrument which declines, refuses, releases, renounces or disclaims an interest which would otherwise be succeeded to by a beneficiary, which instrument defines the nature and extent of the interest disclaimed thereby and which must be signed, witnessed and acknowledged by the disclaimant in the manner provided for deeds of real estate. Laws 1973, c. 158, Sec. 1.
Laws 1973, c. 158, § 1.
§8423. Right to file disclaimer Minor incompetent or deceased beneficiaries.
A beneficiary may disclaim any interest in whole or in part, or with reference to specific parts, shares or assets thereof, by filing a disclaimer in the manner hereinafter provided. A guardian, executor, administrator or other personal representative of the estate of a minor, incompetent or deceased beneficiary, if he deems it in the best interests of those interested in the estate of such beneficiary and of those who take the beneficiary's interest by virtue of the disclaimer and not detrimental to the best interests of the beneficiary, with or without an order of the probate court, may execute and file a disclaimer on behalf of the beneficiary within the time and in the manner in which the beneficiary himself could disclaim if he were living, of legal age and competent. A beneficiary likewise may execute and file a disclaimer by agent or attorney so empowered.
Laws 1973, c. 158, § 2.
§8424. Time for filing disclaimer
Such disclaimer shall be filed at any time after the creation of the interest, but in all events within nine (9) months after the death of the person by whom the interest was created or from whom it would have been received, or, if the disclaimant is not finally ascertained as a beneficiary or his interest has not become indefeasibly fixed both in quality and quantity as of the death of such person, then such disclaimer shall be filed not later than nine (9) months after the event which would cause him so to become finally ascertained and his interest to become indefeasibly fixed both in quality and quantity.
Laws 1973, c. 158, § 3; Laws 1979, c. 25, § 2.
§8425. Place of filing disclaimer Delivery of copies Interest in real estate.
Such disclaimer shall be effective upon being filed in the district court in which the estate of the person by whom the interest was created or from whom it would have been received is, or has been, administered or, if no probate administration has been commenced, then in the district court of any county provided in Oklahoma Statutes as the place for probate administration of the estate of such person. A copy of the disclaimer shall be delivered or mailed to the representative, trustee or other person having legal title to, or possession of, the property in which the interest disclaimed exists, and no such representative, trustee or person shall be liable for any otherwise proper distribution or other disposition made without actual notice of the disclaimer. If an interest in or relating to real estate is disclaimed the original of the disclaimer, or a copy of the disclaimer certified as true and complete by the clerk of the district court wherein the same has been filed, shall be filed in the office of the county clerk in the county or counties where the real estate is situated and shall constitute notice to all persons only from and after the time of such filing.
Laws 1973, c. 158, § 4.
§8426. Disposition of interest disclaimed.
Unless the person by whom the interest was created or from whom it would have been received has otherwise provided by will or other appropriate instrument with reference to the possibility of a disclaimer by the beneficiary, the interest disclaimed shall descend, be distributed or otherwise be disposed of in the same manner as if the disclaimant had died immediately preceding the death or other event which causes him to become finally ascertained as a beneficiary and his interest to become indefeasibly fixed both in quality and quantity, and, in any case, the disclaimer shall relate for all purposes to such date, whether filed before or after such death or other event. However, one disclaiming an interest in a nonresiduary gift, devise or bequest shall not be excluded, unless his disclaimer so provides, from sharing in a gift, devise or bequest of the residue even though, through lapse, such residue includes the assets disclaimed. An interest of any nature in or to the estate of an intestate may be declined, refused or disclaimed as herein provided without ever vesting in the disclaimant.
Laws 1973, c. 158, § 5.
§8427. Uniform Fraudulent Conveyance Act not abrogated Bar on right to disclaim in certain cases.
Nothing included in this act shall be deemed to amend, repeal or abrogate in any manner Title 24 O.S. 1971, Sections 101 through 111, inclusive. Any voluntary assignment or transfer of, or contract to assign or transfer, an interest in real or personal property, or written waiver of the right to disclaim the succession to an interest in real or personal property, by any beneficiary, or any sale or other disposition of an interest in real or personal property pursuant to judicial process, made before he has filed a disclaimer, as herein provided, bars the right otherwise hereby conferred on such beneficiary to disclaim as to such interest.
Laws 1973, c. 158, § 6.
§8428. Spendthrift provisions Binding effect of disclaimer Spouse of disclaimant.
The right to disclaim granted by this act shall exist irrespective of any limitation imposed on the interest of the disclaimant in the nature of an express or implied spendthrift provision or similar restriction. A disclaimer, when filed as provided in this act, or a written waiver of the right to disclaim, shall be binding upon the disclaimant or beneficiary so waiving and all parties thereafter claiming by, through or under him, except that a beneficiary so waiving may thereafter transfer, assign or release his interest if such is not prohibited by an express or implied spendthrift provision. If an interest in real estate is disclaimed and the disclaimer is duly filed in accordance with the provisions of Section 4 of this act, the spouse of the disclaimant, if such spouse has consented to the disclaimer in writing, shall thereupon be automatically debarred from any claim, right or interest in such real estate to which such spouse, except for such disclaimer, would have been entitled.
Laws 1973, c. 158, § 7.
§8429. Other rights not abridged.
This act shall not abridge the right of any person, apart from this act, under any existing or future statute or rule of law, to disclaim any interest or to assign, convey, release, renounce or otherwise dispose of any interest.
Laws 1973, c. 158, § 8.
§8430. Interest not fixed or finally ascertained Right to disclaim.
Any interest which exists on the effective date of this act but which has not then become indefeasibly fixed both in quality and quantity, or the taker of which has not then become finally ascertained, may be thereafter disclaimed in the manner provided herein.
Laws 1973, c. 158, § 9.
§8441. Persons who may make a will - Persons subject to guardianship or conservatorship.
A. Every person over the age of eighteen (18) years of sound mind may, by last will, dispose of all his estate, real and personal, and such estate not disposed of by will is succeeded to as provided in this title, being chargeable in both cases with the payment of all the decedent's debts, as provided in Title 12 of the Oklahoma Statutes.
B. The appointment of a guardian or a conservator does not prohibit a person from disposing of his estate, real and personal, by will; provided, that when any person subject to a guardianship or conservatorship shall dispose of such estate by will, such will must be subscribed and acknowledged in the presence of a judge of the district court. The judge before whom the will is subscribed and acknowledged shall attest to the execution of the will but shall have neither the duty nor the authority to approve or disapprove the contents of the will. Subscribing and acknowledging such will before a judge shall not render such will valid if it would otherwise be invalid.
R.L. 1910, § 8338; Laws 1982, c. 131, § 1, operative Oct. 1, 1982; Laws 1992, c. 395, § 13, eff. Sept. 1, 1992.
§8442. Right of married woman.
A married woman may dispose of all her separate estate by will, without the consent of her husband, and may alter or revoke the will in like manner as if she were single. Her will must be executed and proved in like manner as other wills.
R.L.1910, § 8339.
§8443. Duress, menace, fraud, or undue influence Revocation.
A will or part of a will procured to be made by duress, menace, fraud or undue influence, may be denied probate; and a revocation procured by the same means, may be declared void.
R.L.1910, § 8340.
§8444. Property which may be disposed of Election by surviving spouse Homestead.
A. Every estate in property may be disposed of by will; provided however, that a will shall be subservient to any antenuptial marriage contract in writing; but no spouse shall bequeath or devise away from the other so much of the estate of the testator that the other spouse would receive less in value than would be obtained through succession by law; provided, however, that of the property not acquired by joint industry during coverture the testator be not required to devise or bequeath more than onehalf (1/2) thereof in value to the surviving spouse; provided further, that no person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other. This subsection shall not apply to the estate of a decedent who dies on or after July 1, 1985.
B. This subsection shall apply to the estate of a decedent who dies on or after July 1, 1985.
1. Every estate in property may be disposed of by will except that a will shall be subservient to any antenuptial marriage contract in writing. In addition, no spouse shall bequeath or devise away from the other so much of the estate of the testator that the other spouse would receive less in value than an undivided onehalf (1/2) interest in the property acquired by the joint industry of the husband and wife during coverture. No person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other.
2. The spouse of a decedent has a right of election to take the onehalf (1/2) interest in the property as provided in paragraph 1 of this subsection in lieu of all devises, legacies and bequests for the benefit of the spouse contained in the last will and testament of the decedent.
3. If the surviving spouse desires to make the election provided in paragraph 2 of this subsection to take the property specified therein in lieu of all devises, legacies and bequests for the benefit of the surviving spouse contained in the last will and testament of a decedent, then the surviving spouse shall make such election affirmatively in writing, which writing shall be filed in the district court in which the estate of the decedent is being administered on or before the final date for hearing of the petition for final distribution of the estate. The court clerk shall immediately mail a copy of such election to the personal representative of the estate and to all attorneys of record of the estate. Such written election of the surviving spouse shall be in the form of a writing separate from all other pleadings and documents filed in the district court in which the estate is being administered. Failure of the surviving spouse to substantially comply with the provisions of this subsection shall render the attempted election by the surviving spouse void and of no force or effect; provided that such failure shall not prohibit the surviving spouse from making a subsequent election within the allotted time period, which substantially complies with this subsection.
4. The right of election of the surviving spouse provided for in paragraph 2 of this subsection is personal to the surviving spouse and may be exercised only during the lifetime of the surviving spouse. However, if there has been a guardian or conservator duly appointed by a court of competent jurisdiction, and such court has judicially determined the surviving spouse to be incompetent, then such guardian or conservator may make the election on behalf of the surviving spouse, but only if the same is approved by the court having jurisdiction over such guardian or conservator. Further, a certified copy of the document or documents evidencing the appointment of such guardian or conservator for the surviving spouse, and a certified copy of the order of the applicable court approving such guardian's or conservator's making such election on behalf of the surviving spouse, shall be attached to the election, which shall also be in substantial compliance with the provisions of paragraph 3 of this subsection, or such election shall be void and of no force or effect. The guardian or conservator may be appointed in any state, and may have been appointed at any time prior to the expiration of the time permitted for the election to be made as provided in paragraph 3 of this subsection.
Amended by Laws 1984, c. 233, § 2, eff. July 1, 1985.
§8445. Persons who may take under will Exception as to corporation.
A testamentary disposition may be made to any person capable by law of taking the property so disposed of, except that no corporation can take under a will, unless expressly authorized by its charter or by statute so to take.
R.L.1910, § 8342.
§8446. Nuncupative wills Requisites.
To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed:
1. The estate bequeathed must not exceed in value the sum of One Thousand Dollars ($1,000.00).
2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator at the time to bear witness that such was his will, or to that effect.
3. The decedent must at the time, have been in actual military service in the field, or doing duty on shipboard at sea, and in either case in actual contemplation, fear or peril of death, or the decedent must have been at the time in expectation of immediate death from an injury received the same day.
R.L.1910, § 8343.
§8451. Nuncupative will need not be in writing.
A nuncupative will is not required to be in writing, nor to be declared or attested with any formalities.
R.L.1910, § 8344.
§8452. Mutual will Revocation
A conjoint or mutual will is valid, but it may be revoked by any of the testators in like manner with any other will.R.L.1910, § 8345.
§8453. Probate of conditional will.
A will, the validity of which is made by its own terms conditional, may be denied probate, according to the event, with reference to the condition.
R.L.1910, § 8346.
§8454. Holographic wills Requisites.
A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this State, and need not be witnessed.
R.L.1910, § 8347.
§84-55. Formal requisites in execution - Self-proved wills.
Every will, other than a nuncupative will, must be in writing; and every will, other than a holographic will and a nuncupative will, must be executed and attested as follows:
1. It must be subscribed at the end thereof by the testator himself, or some person, in his presence and by his direction, must subscribe his name thereto.
2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority.
3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will.
4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will at the testator's request and in his presence.
5. Every will, other than a holographic and a nuncupative will, and every codicil to such will or to a holographic will may, at the time of execution or at any subsequent date during the lifetimes of the testator and the witnesses, be made selfproved, and the testimony of the witnesses in the probate thereof may be made unnecessary by:
a. the acknowledgment thereof by the testator and the affidavits of the attesting witnesses, each made before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths under the laws of this state, such acknowledgments and affidavits being evidenced by the certificate, with official seal affixed, of such officer attached or annexed to such testamentary instrument in form and contents substantially as follows:
THE STATE OF OKLAHOMA
COUNTY OF ___________
Before me, the undersigned authority, on this day personally appeared __________, __________, and __________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me first duly sworn, said _________, testator, declared to me and to the said witnesses in my presence that said instrument is his last will and testament or a codicil to his last will and testament, and that he had willingly made and executed it as his free and voluntary act and deed for the purposes therein expressed; and the said witnesses, each on his oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his last will and testament or codicil to his last will and testament, and that he executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of the said testator and at his request and that said testator was at that time eighteen (18) years of age or over and was of sound mind.
___________________
Testator
Witness (signature)
____________________________
Name and Residence (printed)
___________________
Witness (signature)
____________________________
Name and Residence (printed)
Subscribed and acknowledged before me by the said __________, testator, and subscribed and sworn before me by the said __________, and __________ witnesses, this _____ day of ________, A.D., _______.
(SEAL) (SIGNED)____________________
____________________
(OFFICIAL CAPACITY
OF OFFICER); or
b. the written declaration of the testator and the written declarations of the attesting witnesses made in substantially the following form:
We the undersigned are the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and we do hereby declare that said __________, testator, declared to said witnesses that said instrument is his last will and testament or a codicil to his last will and testament, and that he willingly made and executed it as his free and voluntary act and deed for the purposes therein expressed; and said witnesses further declare that the said testator declared to them that said instrument is his last will and testament or codicil to his last will and testament, and that he executed same as such and wanted each of us to sign it as a witness; and that we did sign the same as witnesses in the presence of the said testator and at his request and that said testator was at that time eighteen (18) years of age or over and was of sound mind, all of which we declare and sign under penalty of perjury this ________ day of ________.
___________________
Testator
___________________
Witness (signature)
____________________________
Name and Residence (printed)
___________________
Witness (signature)
____________________________
Name and Residence (printed)
6. Any person falsely executing a written declaration as a witness or misrepresenting his or her identity with the intent to defraud another person pursuant to subparagraph b of paragraph 5 of this subsection shall, upon conviction, be deemed guilty of the felony of perjury and shall be subject to the penalties prescribed by law.
7. A self-proved testamentary instrument shall be admitted to probate without the testimony of any subscribing witness, unless contested, but otherwise it shall be treated no differently than a will or codicil not self-proved. Furthermore, a self-proved testamentary instrument may be revoked or amended by a codicil in exactly the same fashion as a will or codicil not self-proved and such a testamentary instrument may be contested as a will not self-proved.
R.L. 1910, § 8348. Amended by Laws 1961, p. 636, § 1; Laws 1965, c. 11, § 1, emerg. eff. Feb. 10, 1965; Laws 1976, c. 46, § 1; Laws 1977, c. 58, § 1; Laws 1996, c. 107, § 1, eff. Nov. 1, 1996; Laws 1997, c. 133, § 597, eff. July 1, 1998.
§8456. Method of witnessing a will.
A witness to a written will must write, with his name, his place of residence; and a person who subscribed the testator's name, by his direction, must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will.
R.L.1910, § 8349.
§8457. Codicil, effect of.
The execution of a codicil referring to a previous will has the effect to republish the will as modified by the codicil.
R.L.1910, § 8350.
§8471. Law of place governs execution or revocation.
A will, or a revocation thereof, made out of this state by a person not having his domicile in this state; is as valid when executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, as if it were made in this state, and according to the provisions of this article.
R.L.1910, § 8351.
§8472. Law must be followed in execution or revocation.
No will or revocation is valid unless executed either according to the provisions of this article, or according to the law of the place in which it was made, or in which the testator was at the time domiciled.
R.L.1910, § 8352.
§8473. Change of domicile does not affect will.
Whenever a will or a revocation thereof is duly executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, the same is regulated as to the validity of its execution, by the law of such place, notwithstanding that the testator subsequently changed his domicile to a place, by the law of which such will would be void.
R.L.1910, § 8353.
§8481. Wills deposited with judge of the district court.
Every judge of the district court must deposit in his office any will delivered to him for that purpose, and give a written receipt to the depositor; and must enclose such will in a sealed wrapper, so that it cannot be read, and endorse thereon the name of the testator, his residence, and the date of the deposit; and such wrapper must not be opened until its delivery under the provisions of the next section.
R.L.1910, § 8354.
§8482. Delivery of deposited will.
A will deposited under the provisions of the last section must be delivered only:
1. To the testator in person.
2. Upon his written order, duly proved by the oath of a subscribing witness.
3. After his death, to the person, if any, name in the endorsement on the wrapper of the will; or,
4. If there is no such endorsement, and if the will was not deposited with the judge of the district court having jurisdiction of its probate, then to the judge of the district court who has jurisdiction.
R.L.1910, § 8355.
§8483. Duty of judge having will on deposit after testator's death.
The judge of the district court with whom a will is deposited, or to whom it is delivered, must, after the death of the testator, publicly open and examine the will and file in his office, there to remain until duly proved, or to deliver it to the judge of the district court having jurisdiction of its probate.
R.L.1910, § 8356.
§8491. Proof of lost or destroyed will
A lost or destroyed will of real or personal property, or both, may be established in the cases provided by law.
R.L.1910, § 8357.
§84101. Revocation of wills.
Except in the cases in this article mentioned no written will, nor any part thereof, can be revoked or altered otherwise than:
1. By a written will or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or,
2. By being burnt, torn, canceled, obliterated or destroyed, with intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction. R.L.1910, Sec. 8358.
§84102. Proof of destruction.
When a will is canceled or destroyed by any other person than the testator, the direction of the testator, and the fact of such injury or destruction, must be proved by two witnesses. R.L. 1910, Sec. 8359.
R.L.1910, § 8359.
§84103. Effect of alteration or partial erasure
A revocation by obliteration on the face of the will may be partial or total, and is complete if the material part is so obliterated as to show an intention to revoke; but where, in order to effect a new disposition the testator attempts to revoke a provision of the will by altering or obliterating it on the face thereof, such revocation is not valid unless the new disposition is legally effected. R.L. 1910, Sec. 8360.
R.L.1910, § 8361.
§84104. Revocation of duplicate will.
The revocation of a will, executed in duplicate, may be made by revoking one of the duplicates. R.L. 1910, Sec. 8361.
§84105. Revocation by subsequent will.
A prior will is not revoked by a subsequent will, unless the latter contains an express revocation, or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will. R.L. 1910, Sec. 8362.
R.L.1910, § 8362.
§84106. Revocation of subsequent will.
If, after making a will, the testator duly makes and executes a subsequent will, the destruction, canceling or revocation of the latter does not revive the former, unless it appears by the terms of such revocation that it was his intention to renew the former will, or unless after such destruction, canceling or revocation, he republishes the prior will. R.L. 1910, Sec. 8363.
R.L.1910, § 8363.
§84109. Effect of sale of devised property.
An agreement made by a testator, for the sale or transfer of property disposed of by will previously made, does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator's agreement, for a specific performance or otherwise, against the devisees or legatees, as might be had against the testator's successors, if the same had passed by succession. R.L. 1910, Sec. 8366.
R.L.1910, § 8366.
§84110. Encumbrance not a revocation.
A charge or encumbrance upon any estate, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed, but the devise and legacies therein contained must pass subject to such charge or encumbrance.
R.L.1910, § 8367.
§84111. Partial disposal not a revocation.
A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession. R.L. 1910, Sec. 8368.
R.L.1910, § 8368.
§84112. When intent to revoke expressed.
If the instrument by which an alteration is made in the testator's interest in a thing previously disposed of by his will, expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency, by reason of which they do not take effect. R.L. 1910, Sec. 8369.
R.L.1910, § 8369.
§84113. Codicils revoked with will.
The revocation of a will revokes all its codicils. R.L. 1910, Sec. 8370.
R.L.1910, § 8370.
§84114. Divorce or annulment as revoking will.
A. If, after making a will, the testator is divorced, all provisions in such will in favor of the testator's spouse so divorced are thereby revoked. Annulment of the testator's marriage shall have the same effect as a divorce. In the event of either divorce or annulment, the testator's former spouse shall be treated for all purposes under the will as having predeceased the testator. Provided, however, this section shall not apply if the decree of divorce or of annulment is vacated or if the testator remarries his former spouse, or following said divorce or annulment, executes a new will or codicil which is not revoked or held invalid.
B. This section shall apply to any will of a decedent dying on or after November 1, 1987.
Amended by Laws 1987, c. 201, § 1, eff. Nov. 1, 1987.
§84131. Afterborn children not provided for in will.
Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion of the testator's real and personal property that he would have succeeded to if the testator had died intestate. R.L. 1910, Sec. 8371.
R.L.1910, § 8371.
§84132. Provision for children unintentionally omitted.
When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section. R.L. 1910, Sec. 8372.
§84133. How provision made as to child born after or omitted from will.
When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in a will as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the devisees, or legatees, in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest or other provision in the will, would thereby be defeated; in such case such specific devise, legacy or provision may be exempted from such apportionment, and a different apportionment, consistent with the intention of the testator, may be adopted.
R.L.1910, § 8373.
§84134. Advancements cover rights.
If such children, or their descendants, so unprovided for, had an equal proportion of the testator's estate bestowed on them in the testator's lifetime, by way of advancement, they take nothing in virtue of the provisions of the three preceding sections. R.L. 1910, Sec. 8374.
R.L.1910, § 8374.
§84141. Devise of land gives all estator's estate.
Every devise of land in any will conveys all the estate of the devisor therein, which he could lawfully devise, unless it clearly appears by the will that he intended to convey a less estate. R.L. 1910, Sec. 8375.
R.L.1910, § 8375.
§84142. Death of devisee or legatee before testator Rights of descendants.
When any estate is devised or bequeathed to any child or other relation of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will, in the same manner as the devisee or legatee would have done had he survived the testator. R.L. 1910, Sec. 8376; Laws 1945, p. 414, Sec. 1.
R.L.1910, § 8376; Laws 1945, p. 414, § 1.
§84143. Gift to witness void Exception.
All beneficial devises, legacies or gifts whatever, made or given in any will to a subscribing witness thereto, are void unless there are two other competent subscribing witnesses to the same; but a mere charge on the estate of the testator for the payment of debts does not prevent his creditors from being competent witnesses to the will. R.L. 1910, Sec. 8377.
§84144. Witness entitled without will.
If a witness to whom any beneficial devise, legacy or gift, void by the preceding section, is made, would have been entitled to any share of the estate of the testator, in case the will should not be established, he succeeds to so much of the share as would be distributed to him, not exceeding the devise or bequest made to him in the will, and he may recover the same of the other devisees or legatees name in the will, in proportion to and out of the parts devised or bequeathed to them. R.L. 1910, Sec. 8378.
R.L.1910, § 8378.
§84145. Subsequent incompetency of witnesses immaterial.
If the subscribing witnesses to a will are competent at the time of attesting its execution, their subsequent incompetency, from whatever cause it may arise, does not prevent the probate and allowance of the will, if it is otherwise satisfactorily proved. R.L. 1910, Sec. 8379.
R.L.1910, § 8379.
§84146. Property acquired after will.
Any estate, right or interest in lands acquired by the testator after the making of his will, passes thereby and in like manner as if title thereto was vested in him at the time of making the will, unless the contrary manifestly appears by the will to have been the intention of the testator. Every will made in express terms, devising, or in any other terms denoting the intent of the testator to devise all the real estate of such testator, passes all the real estate which such testator was entitled to devise at the time of his decease. R.L. 1910, Sec. 8380.
R.L.1910, § 8380.
§84151. Intention of testator governs.
A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible. R.L. 1910, Sec. 8381.
§84152. Ascertaining intention.
In case of uncertainty, arising upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained form the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations. R.L. 1910, Sec. 8382.
R.L.1910, § 8382.
§84153. Rules of this article govern interpretation.
In interpreting a will, subject to the laws of this atate, the rules prescribed by the following sections of this article are to be observed, unless an intention to the contrary clearly appears.
R.L.1910, § 8383.
§84154. Several instruments construed as one.
Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument. R.L. 1910, Sec. 8384.
R.L.1910, § 8384.
§84155. Irreconcilable parts.
All the parts of a will are to be construed in relation to each other, and so as to form one consistent whole, if possible but where several parts are absolutely irreconcilable, the latter as to position must prevail. R.L. 1910, Sec. 8385.
R.L.1910, § 8385.
§84156. Plain devise not affected by other parts of will.
A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will. R.L. 1910, Sec. 8386.
R.L.1910, § 8386.
§84157. Ambiguities.
Where the meaning of any part of a will is ambiguous or doubtful it may be explained by any reference thereto, or recital thereof, in another part of the will. R.L. 1910, Sec. 8387.
R.L.1910, § 8387.
§84158. Words taken in ordinary sense.
The words of a will are to be taken in their ordinary and grammatical sense unless a clear intention to use them in another sense can be collected, and that other can be ascertained. R.L. 1910, Sec. 8388.
R.L.1910, § 8388.
§84159. Words to be given effect if possible.
The words of a will are to receive an interpretation which will give to every expression some effect rather than one which shall render any of the expressions inoperative. R.L. 1910, Sec. 8389.
R.L.1910, § 8389. x
§84160. Interpretation against total intestacy.
Of two modes of interpreti