CHAPTER 656

An Act to revise, rearrange, amend and recodify the general laws of
Virginia relating to wills and decedents’ estates; to that end to repeal
Title 64 of the Code of Virginia, which title includes Chapters 1 to ?
and §§ 64-1 to 64-176, inclusive, of the Code of Virginia, as amended,
which title relates to wills and decedents’ estates; to amend the Code
of Virginia by adding thereto in lieu of the foregoing title, chapters
and sections of the Code repealed by this act a new title numbered
64.1, which title includes new chapters numbered 1 to 7, both inclusive,
and new sections numbered 64.1-1 to 64.1-187, both inclusive, relating
to wills and decedents’ estates; and to prescribe when such revision
and recodification shall become effective.

[H 155]

Approved April 5, 1968

Be it enacted by the General Assembly of Virginia:

1. That Title 64 of the Code of Virginia, which title includes Chapters
1 to 7 and 8§ 64-1 to 64-176, inclusive, of the Code of Virginia, as amended,
is repealed.

2. That the Code of Virginia be amended by adding thereto, in lieu of
the title, chapters and sections of the Code of Virginia herein repealed,
a new title numbered 64.1, new chapters numbered Y to 7, inclusive, and
new sections numbered 64, 1-1 to 64.1-187, inclusive, which new title,
chapters and sections are as follows:

CHAPTER 1.
DESCENT AND DISTRIBUTION.

§ 64.1-1. Course of descents generally——When any person having
title to any real estate of inheritance shall die intestate as to such estate, it
Shall descend and pass in parcenary to such of his kindred, male and
female, in the following course:

First. To his children and their descendants.
Second. If there be no child, nor the descendant of any child, then
the whole shall go to the surviving consort of the intestate.

Third. If there be none such, then to his or her father and mother or
the survivor.

Fourth. If there be none such, then to his or her brothers and sisters,
and their descendants.

Fifth. If there be none such, then one moiety shall go to the paternal,
the other to the maternal kindred, of the intestate, in the following course:

Sixth. First to the grandfather and grandmother or the survivor.

Seventh. If there be none, then to the uncles and aunts, and their
descendants.

Eighth. If there be none such, then to the great grandfathers or
great grandfather, and great grandmothers or great grandmother.

Ninth. If there be none, then to the brothers and sisters of the grand-
fathers and grandmothers, and their descendants.

Tenth. And so on, in other cases, without end, passing to the nearest
lineal ancestors, and the descendants of such ancestors.

Eleventh. If there be no paternal kindred the whole shall go to the
maternal kindred; and if there be no maternal kindred, the whole shall go
to the paternal kindred. If there be neither maternal nor paternal kindred,
the whole shall go to the kindred of the husband or wife, in the like course
as if such husband or wife had died entitled to the estate.

§ 64.1-2. How collaterals of half blood mherit.—Collaterals of the
half blood shall inherit only half so much as those of the whole blood; but
if all the collaterals be of the half blood, the ascending kindred, if any, shall
have double portions.

§ 64.1-3. When parties take per capita and when per stirpes.—
Whenever those entitled to partition are all in the same degree of kindred
to the intestate, they shall take per capita or by persons; and when, a
part of them being dead and a part living, the issue of those dead have
right to partition, such issue shall take per stirpes or by stocks, that is to
say, the shares of their deceased parents.

§ 64.1-4. When alienage of ancestor not to bar.—In making title by
descent, it shall be no bar to a party that any ancestor, whether living or
dead, through whom he derives his descent from the intestate, is or has

een an alien.

§ 64.1-5. When illegitimate children take.—Tllegitimate children shall
be capable of inheriting and transmitting inheritance on the part of their
mothers as if lawfully begotten.

§ 64.1-6. When marriage legitimates children.—If a man, having
had a child or children by a woman, shall afterwards intermarry with her,
such child or children, or their descendants, if recognized by him as his own
child or children before or after marriage, shall be deemed legitimate.

_ § 64.1-7. Issue legitimate though marriage null.—The issue of mar-
rlages deemed null in law, or dissolved by a court, shall nevertheless be
legitimate.

§ 64.1-8. How posthumous children take.—Any person en ventre sa
mere, who may be born in ten months after the death of the intestate, shall
be capable of taking by inheritance in the same manner as if he were in
being at the time of such death.

__ § 64.1-9. Descents from infants in certain cases.—If an infant die
without an heir in the first three classes of descendants under § 64.1-1,
having title to real estate derived by gift, devise or descent from one of
his parents, the whole of it shall descend and pass to his kindred on the
side of that parent from whom it was derived if any such kindred be
living at the death of the infant. If there be none such, then it shall
descend and pass to his kindred on the side of the other parent.
§ 64.1-10. Right of entry not affected by descent cast.—The right of
entry on or action for land shall not be tolled or defeated by descent cast.

8 64.1-11. Distribution of personal estate——When any person shall
die intestate as to his personal estate or any part thereof, the surplus
(subject to the provisions of Title 34) after payment of funeral] expenses,
charges of administration and debts, shall pass and be distributed to and
among the same persons, and in the same proportions, to whom and in
which real estate is directed to descend, except as follows:

(1) Infants.—The personal estate of an infant shall be distributed
as if he were an adult.

(2) Married persons.—If the intestate was married, the surviving
husband or wife shall be entitled to one-third of such surplus, if the
intestate left surviving children or their descendants (a) of the marriage
which was dissolved by the death of the intestate, (b) of a former mar-
riage, (c) by legal adoption, or (d) though such children were illegitimate,
if the intestate was a wife; but if no such children or their descendants
survive, the surviving husband or wife shall be entitled to the whole of
such surplus.

§ 64.1-12. Right of State, if no other distributee——To the Common-
wealth shall accrue all the personal estate of every decedent, of which there
is no other distributee.

§ 64.1-13. When and how benefits of will may be renounced.—
Whether or not any provision for a husband or wife is made in the consort’s
will, the survivor may, within one year from the time of the admission of
the will to probate, renounce the will. The renunciation shall be made either
In person before the court in which the will is recorded, or by writing re-
corded in the court, or the clerk’s office thereof, upon such acknowledgment
or proof as would authorize a writing to be admitted to record under
Chapter 6 of Title 55.

§ 64.1-14. Extension of time until after determination of suit for
construction of will.—If the will is of doubtful import as to the amount or
value of the property the husband or wife of the testator is to receive
thereunder and a suit in equity is pending wherein it will be construed in
that respect, the court in which the suit is pending shall, within the year,
on the application of the surviving husband or wife, enter an order extend-
ing the time within which the survivor is to make renunciation for such
additional period beyond the year as will allow the survivor reasonable
time, not exceeding six months, for making the renunciation after a final
order has been entered in the suit construing the will in such respect,
either by a trial court or any appellate court to which it is appealed.

8 64.1-15. Institution of such suit after expiration of year.—The
survivor shall have the right, within six months after the expiration of
the year, whether heretofore or hereafter, to institute and maintain a suit
for the proper construction of the will. and in the suit, upon application of
the surviving consort, the court shall, by an order entered therein, provide
that the surviving consort shall be allowed not exceeding one month for
renunciation after final decree has been entered in the suit construing the
will.

§ 64.1-16. Rights upon renunciation or when no provision made by
will.—If renunciation be made, the surviving consort shall, if the decedent
left surviving any direct descendants or a legally adopted child, or descen-
dants of any deceased adopted child, have one-third of the surplus of the
decedent’s personal estate mentioned in § 64.1-11; or if no direct descend-
ants or adopted child of the testator, or descendants of a deceased adopted
child, survive, the surviving consort shall have one-half of such surplus;
otherwise the surviving consort shall have no more of the surplus than is
given him or her by the will.
§ 64.1-17. In division of estate of intestate, advancements to be
brought into hotchpot.—When any descendant of a person dying intestate
as to his estate, or any part thereof, shall have received from such intes-
tate in his lifetime, or under his will, any estate, real or personal, by way
of advancement, and he, or any descendant of his, shall come into the
partition and distribution of the estate with the other parceners and
distributees, such advancement shall be brought into hotchpot with the
whole estate, real and personal, descended or distributable, and thereupon
such party shall be entitled to his proper portion of the estate, real and
personal.

§ 64.1-18. When homicide to bar acquisition of estate or proceeds of
life insurance policy.—No person shall acquire by descent or distribution
or by will any interest in the estate of another, nor receive any payment
under any policy of life insurance upon the life of another, for whose
death such person has been convicted of murder. In such event should
any life insurance be payable, then it shall be paid as if such person pre-
deceased the insured to such other person as may be named in the policy,
or, if no such other person is named, then to the estate of the insured.
Any insurer making payment according to the terms of its policy or con-
tract shall not be subjected to additional liability by the terms of this
section if such payment is made without notice of circumstances bringing
it within the provisions of this section.

CHAPTER 2.

CURTESY, DOWER AND JOINTURE.

§ 64.1-19. Dower or curtesy of a surviving spouse.—A surviving
spouse shall be entitled to a dower or curtesy interest of one-third of all the
real estate whereof the deceased spouse or any other to his use was at any
time seized during coverture of an estate of inheritance, unless such right
shall have been lawfully barred or relinquished.

§ 64.1-20. Certain facts not to bar curtesy.—The fact that the hus-
band conveyed, or caused to be conveyed, the real estate to the wife, or to
her use, shall not bar his curtesy therein, nor shall it be a requisite to
curtesy that the wife shall have had a child born alive during the cover-
ture; and when a wife, or any other to her use, shall have been entitled
to a right of entry or action in any land, and her surviving husband
would be entitled to curtesy in the same if the wife or such other had re-
covered possession thereof, he shall be entitled to such curtesy, although
there shall have been no such recovery of possession.

§ 64.1-21. When no curtesy in separate estate—A surviving husband
shall not be entitled to curtesy in the equitable separate estate of the de-
ceased wife if such right thereto has been expressly excluded by the instru-
ment creating the same.

§ 64.1-22. When devise or bequest shall bar curtesy; right of hus-
band to renounce such provisions.—If any estate, real or personal, intended
to be in lieu of curtesy, shall be conveyed, devised or bequeathed for the
curtesy of the husband, such devise bequest or conveyance shall bar his
curtesy of the real estate, or the residue thereof, and every such devise or
bequest by will shall be intended in lieu of curtesy unless the contrary
intention plainly appear in such will or in some other writing signed by the
party making the provision. But the husband may renounce such provision
in the manner and form prescribed in §§ 64.1-13 to 64.1-15 upon which
renunciation the husband shall be entitled to curtesy in the estate of his
wife, as is provided in § 64.1-19.

§ 64.1-23. Curtesy or dower barred by desertion.—If a husband or
wife wilfully desert or abandon his or her consort and such desertion or
abandonment continues until the death of the consort, the party who de-
serted the deceased consort shall be barred of all interest in the estate of
the other as a tenant by dower, tenant by the curtesy, distributee or

§ 64.1-24. Assignment of curtesy.—A court of equity, on a bill filed by
a surviving husband, his guardian or committee, shall have jurisdiction to
assign curtesy in any case when any of the parties interested are under
disability or for any other reason no agreement between them can be made
or reached. Curtesy may also be assigned or recovered in the same manner
and by similar proceedings provided for the assignment or recovery of
dower by §§ 64.1-34, 64.1-35, 64.1-36, 64.1-37, and 64.1-38, provided that
§§ 64.1-37 and 64.1-38, as applied to this section, shall be subject to this
qualification, that on the application of a person claiming under an aliena-
tion made under decree of court, or by the wife in her lifetime, a court of
equity may grant such applicant relief from such recovery on terms of his
paying to the husband during life lawful interest from the commencement
of his suit on the value, at the time of the wife’s death, of such propor-
tional part of the real estate so aliened as the husband would be entitled
to have for his life, as tenant by the curtesy, deducting the value of such
permanent improvements then existing on such real estate as may have
been made after the alienation by the alienee or his assigns.

§ 64.1-25. How, when it cannot be laid off in kind.—In a suit in
equity brought by a surviving husband or any other person to have cur-
tesy assigned, if it shall appear to the satisfaction of the court, from the
report of commissioners, or otherwise, that curtesy cannot be laid off in
kind, the court may make a decree requiring the heirs at law, devisees
or creditors of the deceased wife, who may be entitled to the real estate
subject to such curtesy, or their assigns, to pay to the husband during his
life and in such instalments and on such terms as the court may deem
proper, what may be ascertained, by proper inquiry, to be the fair net
annual value of such proportional part of such real estate as he would be
entitled to have for his life, as tenant by the curtesy, such net annual
value to constitute a lien on all of such real estate, which may be enforced,
in case of default, in the same suit, or in an independent suit brought for
the purpose; provided that the court may, from time to time, upon the
application of any interested party, of which all other parties in interest
shall be given reasonable notice, change and adjust such fair net annual
value to conform to the true conditions as of the time of the application;
provided, further, that the person so required to pay such net annual value
may, at his further election, turn over and deliver the possession of such
real estate in its entirety to a receiver, to be appointed by the court, who
shall rent out the same and from the rentals received by him pay, first the
taxes, reasonable insurance premiums and repairs on the property, and
the balance to such person and to such surviving husband, in the propor-
tion in which such person and such surviving husband are interested in
such real estate.

§ 64.1-26. Right of dower, when husband had right of entry or
action.—When a husband, or any other to his use, shall have been entitled
to a right of entry or action in any land, and his widow would be entitled to
dower out of the same, if the husband or such other had recovered posses-
sion thereof, she shall be entitled to such dower, although there shall have
been no such recovery of possession.

§ 64.1-27. Widow, or infant heirs, not affected by judgment by de-
fault or collusion.—No widow shall be precluded from her dower by reason
of the real estate whereof she claims dower having been recovered from
her husband by a judgment rendered by default or collusion, if she would
have been entitled to dower therein had there been no such judgment;
nor shall any heir who was under the age of twenty-one years at the time
dower was assigned to the widow out of the lands of his ancestor by his
guardian, or by judgment by default or collusion against such guardian,
be precluded from recovering the seisin of his ancestor from such widow,
unless she show herself entitled to such dower.

64.1-28. Surviving consort entitled to dower or _ curtesy in
surplus after lien satisfied—When land owned by a spouse is sold in the life-
time of such spouse to satisfy a lien or encumbrance thereon, created by
deed im which the other spouse has united, or otherwise paramount to
such other spouse, there shall be no right of curtesy or dower in such land.
But if a surplus of the proceeds of sale remain after satisfying the lien or
encumbrance the other spouse shall be entitled to a dower or curtesy interest
insuch surplus.

§ 64.1-29. Jointure in bar of dower; effect of conveyance or devise.—
If any estate, real or personal, intended to be in lieu of dower, shall be
conveyed or devised for the jointure of the wife, to take effect in profit or
possession immediately upon the death of her husband and continue during
her life at least, such conveyance or devise shall bar her dower of the
real estate, or the residue thereof, and every such provision, by deed or
will, shall be taken to be intended in lieu of dower unless the contrary
intention plainly appear in such deed or will or in some other writing
signed by the party making the provision.

64.1-30. Election of widow to waive jointure and demand dower.—

But if such conveyance or devise were before the marriage, without the
assent in writing or during the infancy of the female, or if it were after
marriage, in either case, the widow may, at her election, waive such join-
ture and demand her dower. Such election shall be made within one year
after the death of the husband or within one year after the admission of
his will to probate when the provision is by will and shall be made in any
court of record in the county or corporation in which the husband resided
at the time of his death, or in the clerk’s office of which the instrument
creating the jointure is recorded, or by a writing recorded in such court,
or in the clerk’s office thereof, upon such acknowledgment or proof as would
authorize a writing to be admitted to record under Chapter 6 of Title 55;
and when she shall elect and receive her dower, the estate so conveyed or
devised to her shall cease and determine.

§ 64.1-31. Extension of time until after determination of suit for
construction of instrument.—If any such conveyance or will is of doubtful
import as to the amount or value of the property the widow is to receive
thereby or thereunder and a suit in equity is pending wherein the con-
veyance or will will be construed in such respect, the court in which the
suit is pending shall, within such year, on the application of the widow if
she so desires, enter an order extending the time within which she is to
make election for such additional period beyond such year as will allow
the widow a reasonable time, not exceeding six months, for making such
election after a final order shall have been entered in the suit construing
such conveyance or will in such respect, either by a trial court or any ap-
pellate court to which it may be appealed. The widow may, within such
year, herself institute and maintain any such suit for the proper construc-
tion of the conveyance or will in such respect.

§ 64.1-32. Dower when widow deprived of jointure.—If a widow be
lawfully deprived of her jointure, or any part thereof, she shall be en-
dowed of so much of the real estate whereof, but for such jointure, she
would have been dowable, as is equal in value to that of which she was
deprived.

§ 64.1-33. What a surviving spouse entitled to until dower or cur-
tesy is assigned.—Until dower or curtesy is assigned, the surviving spouse
may hold, occupy and enjoy the mansion house and curtilage without
charge for rent, repairs, taxes or insurance, and, in the meantime, such
surviving spouse shall be entitled to demand of the heirs, devisees, or
alienees, one-third part of the issues and profits of the other real estate
which descended or was devised or passed to them of which such spouse has
a dower or curtesy interest after deducting the cost of necessary repairs,
taxes and insurance. If such surviving spouse be deprived of the mansion
house and curtilage, he or she may on complaint of unlawful entry or
detainer, recover the possession thereof, with damages for the time the
surviving spouse was so deprived; but nothing in this section shall be con-
strued to impair the lien or delay the enforcement thereof of any State,
City or County for the taxes assessed upon the property.

§ 64.1-34. How dower may be assigned.—Dower may be assigned as
at common law; or upon the motion of the widow, heirs, devisees or
alienees, or any of them, the court in which or in the clerk’s office of
which the will of the husband is admitted to record or administration of
his estate is granted or the conveyance of the alienee is recorded may
appoint commissioners by whom the dower may be assigned and the as-
signment, when confirmed by the court, shall have the same effect as if
made by the heir at common law; but nothing herein contained shall be
construed to take away or affect the jurisdiction which courts of chancery
now exercise on the subject of dower.

§ 64.1-35. How, when it cannot be laid off in kind.—In a suit in
equity brought by a widow or any other person, for the purpose of having
dower assigned, if it shall appear to the satisfaction of the court, from
the report of commissioners, or otherwise, that dower cannot be laid off in
kind, the court may make a decree requiring the heirs at law, devisees or
creditors of the deceased husband, who may be entitled to the real estate
subject to such dower, or their assigns, to pay to the widow during her
life and on such terms and in such instalments as the court may deem
proper, what may be ascertained, by proper inquiry, to be the fair net
annual value of such proportional part of the real estate as she would be
entitled to have for her life, as tenant in dower, such net annual value to
constitute a lien on all of the real estate, enforceable in case of default in
payment, in the same suit, or in an independent suit brought for the pur-
pose; provided that the court may, from time to time, upon the application
of any interested party, of which all other parties in interest shall be
given reasonable notice, change and adjust such fair net annual value to
conform to the true conditions as of the time of the application; pro-
vided, further, that the person so required to pay such net annual value,
may, at his further election, turn over and deliver the possession of such
real estate in its entirety to a receiver to be appointed by the court, who
shall rent out the same and from the rentals received by him pay, first,
the taxes, reasonable insurance premiums and repairs on property, and the
balance to such person, and to such widow in the proportion in which such
person and such widow are interested in such real estate.

§ 64.1-36. When dower may be commuted and paid.—In lieu of
having her dower assigned, a widow having a vested right of dower in real
property, may, where it appears that her dower cannot be conveniently
laid off and assigned in kind, petition the court to commute the same. In
such event the court may, in its discretion, either require the heirs at law
to pay to such widow a gross sum in lieu of dower, determined as pro-
vided in Article 2 (§ 55-269 et seq.) of Chapter 15 of Title 55 of this Code;
or may, if such heirs fail or refuse to make such payment, have such real
property sold. From the proceeds of such sale there shall be paid, first, the
gross sum equivalent of the widow’s dower interest; the remainder of
such proceeds shall be paid to the heirs at law, pro rata, according to their
interest in such real property.

§ 64.1-37. How recovered with damages.—A widow having a right of
dower in any real estate may recover such dower and damages for its
being withheld by such remedy at law as would lie on behalf of a tenant
for life having a right of entry, or by a bill in equity, when the case is
such that a bill would now lie for such dower.

§ 64.1-38. Amount of recovery in kind; damages for withholding.—
Whether the proceedings of the widow be against one claiming under an
alienation made under a decree of court, or by the husband, in his lifetime,
or against his heirs or devisees, or their assigns, a recovery of dower in
such real estate in kind shall be of a third of the estate, as it is when
the recovery is had. Against such heirs or devisees, or their assigns, the
damages shall be for such time after the husband’s death as they have
withheld the dower, not exceeding five years before the suit is commenced.
Against one claiming under such alienation made under decree, or by the
husband, in his lifetime, the damages shall be from the commencement
of the suit against such claimant. In either case, they shall be to the time
of the recovery. And if, after suit is brought, the widow or the tenant die
before such recovery of damages, the same may be recovered by her per-
sonal representative or against his.

§ 64.1-39. Relief of alienees——The two preceding sections are sub-
ject to this qualification, that on the application of one claiming under an
alienation made under decree of court, or by the husband, in his lifetime,
a court of equity may grant him relief from such recovery on the terms
of his paying to the widow, during her life, lawful interest from the com-
mencement of her suit on one-third of the value, at the husband’s death,
of the real estate so aliened, deducting the value of such permanent im-
provements then existing as may have been made after the alienation by
the alienee or his assigns.

§ 64.1-40. Right of dowress in crops growing at her death.—Crops
growing on the dower or curtesy land of a surviving spouse at the time of
death may be bequeathed, and shall go to the personal representative, in like
manner as crops growing on any other land held for life.

§ 64.1-41. Curtesy and dower of trust estate-—When a person, to
whose use or in trust for whose benefit another is seized of real estate has
such inheritance in the use or trust as, if it were a legal right, would en-
title such person’s husband or wife to curtesy or dower thereof, such
husband or wife shall have curtesy or dower of such estate.

§ 64.1-42. Subjecting curtesy and dower to satisfaction of lien.—
The curtesy interest of a surviving husband, or the dower interest of a
widow, in real estate of which the deceased spouse died seized, may he
subjected to sale for the satisfaction of any valid lien thereon, by suit in
equity brought by any lien creditor.

§ 64.1-43. Creditor may have curtesy or dower assigned.—In the
event such curtesy or dower interest shall be an estate for the life of the
surviving husband, or widow, as the case may be, in less than the whole
of such rea] estate, the complainant shall be entitled to have the curtesy,
or dower, laid off in kind, by commissioners appointed for the purpose,
and an estate for the life of the husband, or wife, as the case may be, in
the part so laid off, subjected to sale.

§ 64.1-44, Procedure when it cannot be assigned in kind.—If it shall
appear to the satisfaction of the court, from the report of commissioners,
or otherwise, that such curtesy or dower, as the case may be, cannot be
laid off in kind, the same may be subjected for the aforesaid purpose by
the court making a decree requiring the heirs at law, or devisees, of the
deceased spouse, who may be entitled to the real estate subject to such
curtesy or dower, to pay to a receiver to be appointed for the purpose,
after he shall have executed such bond as the court may require, in such
instalments and upon such terms as the court may deem proper, what may
be ascertained, by proper inquiry, to be the fair net annual value of such
proportional part of the real estate as the husband or wife, as the case may
be, would be entitled to have for his or her life as tenant by the curtesy or
in dower, for such a period of time, within the life of the husband or wife,
as may be necessary to discharge in the order of priority the liens which
may be established in the cause against such curtesy or dower interest.
The person so required to pay such net annual value may, at his election,
pay in a lump sum, which shall be applied to liens established in the order
of their priority, the commuted value of an annuity equal to the ascertained
fair net annual value of such curtesy or dower interest for the life of the
surviving husband or wife, as the case may be. In such event, if such
commuted value be more than sufficient to discharge the liens established
as aforesaid, the surplus shall be paid to the husband or wife, as the
case may be. Or the person so required to pay such net annual value may,
at his further election, turn over and deliver the possession of such real
estate in its entirety to the receiver who shall rent out the same and from
the rentals received by him pay, first the taxes, reasonable insurance pre-
miums and repairs on the property, and the balance to such person,
and to the lienors in the proportion in which such person and such sur-
viving husband or widow are interested in such real estate.

CHAPTER 8.

WILLS.
Article 1.
Requisites and Execution.

§ 64.1-45. Construction of word “will”.—Except when it would be
inconsistent with the manifest intent of the legislature, the word “will”
shall extend to a testament, and to a codicil, and to an appointment by will,
or by writing in the nature of a will, in exercise of a power; and also to any
other testamentary disposition.

§ 64.1-46. Who may make a will; what estate may be disposed of.—
Every person not prohibited by the following section may, by will, dispose
of any estate to which he shall be entitled, at his death, and which, if not
so disposed of, would devolve upon his heirs, personal representative or
next of kin. The power hereby given shall extend to any estate, right or
interest to which the testator may be entitled at his death, notwithstanding
he may become so entitled subsequently to the execution of the will.

§ 64.1-47. Who may not make a will; exception——No person of un-
sound mind or under the age of twenty-one years shall be capable of
making a will, except that minors eighteen years of age or upwards may,
by will, dispose of personal estate.

§ 64.1-48. Advertisements to draw wills prohibited.—No person, firm
or corporation shall advertise in any newspaper any offer, direct or in-
direct, to draw any will or have any will drawn.

Any violation of this section shall constitute a misdemeanor and be
punished by a fine not exceeding five hundred dollars.

§ 64.1-49. Will must be in writing, etc.; mode of execution; wit-
nesses, and proof of handwriting.—No will shall be valid unless it be in
writing and signed by the testator, or by some other person in his presence
and by his direction, in such manner as to make it manifest that the name
is intended as a signature; and moreover, unless it be wholly in the hand-
writing of the testator, the signature shall be made or the will acknowl-
edged by him in the presence of at least two competent witnesses, present
at the same time; and such witnesses shall subscribe the will in the
presence of the testator, but no form of attestation shall be necessary.
If the will be wholly in the handwriting of the testator that fact shall be
proved by at least two disinterested witnesses.

64.1-50. When execution of appointment by will valid.—No ap-
pointment made by will, in exercise of any power, shall be valid unless the
same be so executed that it would be valid for the disposition of the prop-
erty to which the power applies, if it belonged to the testator; and every
will so executed shall be a valid execution of a power of appointment by
will, notwithstanding the instrument creating the power expressly require
that a will made in execution of such power shall be executed with some
additional or other form of execution or solemnity.

§ 64.1-51. Interested persons as competent witnesses.—No person
shall be incompetent to testify for or against the will solely by reason of any
interest in the will or the estate of the testator.

: 64.1-52. Reserved. ;

64.1-53. Will of personal estate of soldiers, etc., and nonresidents.
—Notwithstanding the provisions of §§ 64.1-49 and 64.1-50, a soldier
being in actual military service, or a mariner or seaman being at sea,
may dispose of his personal estate as he might heretofore have done; and
the will of a person domiciled out of this State at the time of his death shall
be valid as to personal property in this State, if it be executed according
to the law of the State or country in which he was so domiciled.

§ 64.1-54. Presumption of formal execution of wills made by persons
in military service.—A testamentary paper executed before or after Octo-
ber first, nineteen hundred forty by a person in the military service
of the United States as defined by the Soldiers’ and Sailors’ Relief Act of
nineteen hundred forty, while in such service, purporting on its face to
be witnessed as required by § 64.1-49, upon proof of the signature of the
testator by any two disinterested witnesses, shall be presumed, in the ab-
sence of evidence to the contrary, to have been executed in accordance with
the requirements of that section and shall be admitted to probate in like
manner and with like effect as if the formalities of execution were duly
and regularly proved.

64.1-55. Validation of holographic wills.—The probate of all holo-
graphic wills admitted to probate in this State prior to March twentieth,
nineteen hundred twenty-two, the handwriting of which was proved
by one witness instead of two is validated and made as binding and ef-
fectual as if such wills had been proved according to § 5229 of the Code
of 1919.

§ 64.1-56. Wills of living persons lodged for safekeeping with
clerks of certain courts.—Any person or his attorney for him may, during
his lifetime, lodge for safekeeping with the clerk of a court having pro-
bate jurisdiction in the county or city of his residence any will executed
by such person; and the clerk shall thereupon receive such will and give
the person lodging it a receipt therefor. The clerk shall then place the
will in an envelope and seal it securely, numbering the envelope and en-
dorsing thereon the name of the testator and the date on which it is so
lodged, and shall index the same alphabetically in a permanent index kept
for the purpose, showing therein the number and date such will is so de-
posited. The fee for such lodging, indexing and preserving shall be two
dollars, which shall be paid to the clerk when the will is received.

Any attorney at law may, upon holding a will lodged with him for
safekeeping by a client for seven years or more, and having no knowledge
of whether the said client is alive or dead after such time, lodge such
will with the clerk as provided in the preceding paragraph for which the
clerk shall be paid two dollars for such lodging, indexing and preserving.

The clerk shall carefully preserve the envelope containing the will un-
opened until it is returned to the testator or his nominee in his lifetime
upon his request in writing therefor or until the death of the testator.
Should such will be returned in the testator’s lifetime as hereinbefore pro-
vided and later returned to the clerk it shall be considered as a separate
lodging under the provisions of this section.

_ Upon notice of the testator’s death, the clerk shall open the will and
deliver the same to any person entitled to offer it for probate.
Provided, the provisions of this section shall be applicable only to the
clerk’s office of a court wherein theretofore has been entered, by the judge
or judges of such court, an order authorizing the use of its clerk’s office for
such purpose.

§ 64.1-57. Incorporation by reference of certain powers of fidu-
ciaries into will or trust instrument.—(1) The following powers, in addi-
tion to all other powers granted by law, may be incorporated in whole or
in part in any will or trust instrument by reference to this section:

(a) To keep and retain any or all investments and property, real,
personal or mixed, including stock in the fiduciary institution, if the same
be a corporation, as they may be at the time they come into the custody
of said fiduciary, regardless of the character of same or whether they
are such as then would be authorized by law for investment by fiduciaries
or whether a disproportionately large part of the trust estate remains
invested in one or more types of property, for such time as the fiduciary
shall deem best, and to dispose of such property by sale, exchange, or
otherwise as and when such fiduciary shall deem advisable.

(b) ‘To sell, assign, exchange, transfer and convey or otherwise dis-
pose of, any or all of the investments and property, either real, personal
or mixed, which may be included in, or may at any time become part of
the trust estate upon such terms and conditions as the fiduciary in his
absolute discretion, may deem advisable, at either public or private sale,
either for cash or deferred payments or other consideration, as such
fiduciary may determine; and for the purpose of selling, assigning, ex-
changing, transferring or conveying the same, to make, execute, acknowl-
edge and deliver any and all instruments of conveyance, deeds of trust, or
assignments in such form and with warranties and covenants as such
fiduciary may deem expedient and proper; and in the event of any sale,
conveyance, exchange, or other disposition of any of the trust estate, the
purchaser shall not be obligated in any way to see to the application of
the purchase money or other consideration passing in connection therewith.

(c) To invest and reinvest all of the funds of the estate as said
fiduciary, in his sole discretion, may deem best, including investment in
stocks, common and preferred, and common trust funds, without being
restricted to those investments expressly approved by statute for invest-
ment by fiduciaries; and to change investments from realty to personality,
and vice versa.

(d) To lease any or all of the real estate, which may be included in
or at any time become a part of the trust estate, upon such terms and
conditions as said fiduciary, in his sole judgment and discretion, may deem
advisable, and any lease or leases made by such fiduciary may extend be-
yond the term of the trust and for the purpose of leasing said real estate,
to make, execute, acknowledge and deliver any and all instruments, in such
form and with such covenants and warranties as such fiduciary may deem
expedient and proper.

(e) To vote any stocks, bonds, or other securities held by such
fiduciary at any meeting of stockholders, bondholders, or other security
holders, and to delegate the power to so vote to attorneys in fact or
proxies under power of attorney, restricted or unrestricted.

(f) To borrow money for such periods of time and upon such terms
and conditions as to rates, maturities, renewals and security as to such
fiduciary shall seem advisable, including the power to borrow from the
fiduciary, if the fiduciary be a bank, for the purpose of paying debts, taxes
or other charges against the trust estate or any part thereof, and to
mortgage or pledge such portion of the trust estate as may be required
0 secure such loan or loans; and as maker or endorser to renew existing
oans.

(g) To compromise, adjust, arbitrate, sue on or defend, abandon, or
otherwise deal with and settle claims, in favor of or against the trus
estate as the fiduciary shall deem best, and his decision shall be conclusive

(h) To make distributions in cash or in kind or partly in each ai
valuations to be determined by the fiduciary, whose decision as to value:
shall be conclusive.

(1) Repealed.

(j) To repair, alter, improve, renovate, reconstruct and demolist
any of the buildings on the real estate held by such fiduciary and tc
construct such buildings and improvements thereon as such fiduciary may
in his discretion, deem advisable.

(k) To employ and compensate, out of the principal or the income o1
both as to the fiduciary shall seem proper, agents, accountants, brokers
attorneys in fact, attorneys at law, tax specialists, realtors, and other as-
sistants and advisors deemed by the fiduciary needful for the proper ad-
ministration of the trust, and to do so without liability for any neglect,
omission, misconduct, or default of any such agent or professional repre-
sentative provided he was selected and retained with reasonable care.

(1) To rely upon any affidavit, certificate, letter, notice, telegram,
or other paper or upon any telephone conversation believed by such fidu-
ciary to be genuine and upon any other evidence believed by such fiduciary
to be sufficient, and to be protected and saved harmless in all payments
or distributions required to be made hereunder if made in good faith
and without actual notice or knowledge of the changed condition or status
of any person receiving payments or other distributions upon a condition.

(m) To retain any interest held by such fiduciary in any business,
whether as a stockholder or security holder of a corporation, a partner, a
sole proprietor, or otherwise, for any length of time, without limita-
tions, solely at the risk of the trust estate and without liability on the part
of the fiduciary for any losses resulting therefrom; to participate in the
conduct of such business and take or delegate to others discretionary
power to take any action with respect to its management and affairs which
an individual could take as the owner of such business, including the vot-
ing of stock, and the determination of any or all questions of policy; to

participate in any incorporation, reorganization, merger, consolidation, re-
capitalization or liquidation thereof: to invest additional capital in, sub-
scribe to additional stock or securities of, and loan money or credit with
or without security to. such business out of the trust property ; to elect or
employ as directors, officers, employees or agents of such business, and com-
pensate, any persons, including the fiduciary or a director, officer, or agent
of the fiduciary: to accept as correct financial or other statements rendered
by the business from time to time as to his conditions and operations except
when having actual notice to the contrary: to regard the business as an
entity separate from the trust estate with no duty to account to any court
as to his operations; to deal with and act for the business in any capacity,
including any banking or trust capacity and the loaning of money out of
the fiduciary’s own funds, and to be compensated therefor; and to sell or
liquidate such interest or any part thereof at any time. If any business
shall be unincorporated, contractual and tort liabilities arising out of such
business shall be satisfied, first, out of the business, and second, out of the
trust estate; but it is intended that in no event shall there be a liability of
the fiduciary, and if the fiduciary shall be held liable, such fiduciary shall
be entitled to indemnification from the business and the trust estate in
the order named. Such fiduciary shall be entitled to such additional com-
pensation as is commensurate with the time, effort, and responsibility
involved in his performance of services with respect to such business. Such
compensation for services rendered to the business may be paid by such
fiduciary from the business or from other assets or from both as the fidu-
ciary, in his discretion, may determine to be advisable: the amount of
such additional compensation, however, to be subject to the final approval
of the court.

(n) To do all other acts and things not inconsistent with the pro-
visions of the will or trust in which these powers are incorporated which
such fiduciary may deem necessary or desirable for the proper manage-
ment of the trusts herein created, in the same manner and to the same
extent as an individual might or could do with respect to his own property.

(o) To hold property in his name or in the name of nominees.

(p) During the minority or the disability of any beneficiary, the
fiduciary may, in his sole discretion, distribute income and principal to
such beneficiary in any one of the following ways: (1) Directly to said
beneficiary; (2) to a relative, friend, guardian, or committee, to be ex-
pended by such person for the education, maintenance, support or benefit
of said beneficiary; or (3) by himself expending the same for the educa-
tion, maintenance, support or benefit of said beneficiary.

(q) To continue and carry on any farming operation transferred
to him and to operate such farms and any other farm which may be ac-
quired and, in so doing, by way of illustration and not in limitation of his
powers, to operate the farm with hired labor, tenants or sharecroppers; to
hire a farm manager or a professional farm management service to super-
vise the farming operations; to lease or rent the farm for cash or for a
share of the crops; to purchase or otherwise acquire farm machinery and
equipment and livestock; to construct, repair and improve farm buildings
of all sorts needed, in its judgment, for the operation of the farm; to make
loans or advances or to obtain such from any source, including the fiduciary
at the prevailing rate or rates of interest for farm purposes such as for
production, harvesting, or marketing, or for the construction, repair, or
improvement of farm buildings or for the purchase of farm machinery or
equipment or livestock; to employ approved soil conservation practices in
order to conserve, improve and maintain the fertility and productivity of
the soil: to protect, manage and improve the timber and forest on the
farm and sell the timber and forest products when it is to the best interest
of the estate or trust; to ditch and drain damp or wet fields and areas of
the farm when and where needed; to engage in livestock production, if
it is deemed advisable, and to construct such fences and buildings and plant
such pastures and crops as may be necessary to carry on such a livestock
program; to execute contracts, notes and chattel mortgages relating to
agriculture with the Commodity Credit Corporation, the United States
Secretary of Agriculture or any other officer or agency of the federal or
State governments, to enter into acreage reduction agreements, to make
soil conservation commitments, and to do all acts necessary to cooperate
with any governmental agricultural program; and in general, to employ
the methods of carrying on the farming operation that are in common use
by other landowners in the community in which the farm is located, inas-
much as the duties the fiduciary is requested to assume with respect to
farming operations may considerably enlarge and increase his usual re-
sponsibility and work as fiduciary, it is agreed that the fiduciary shall be
entitled to such additional reasonable compensation as is commensurate
with the time, effort and responsibility involved in his performance of
such services.

(2) As used in the section, the term “fiduciary” shall mean and in-
elude one or more individuals or corporations having trust powers and the
use of the male gender shall include the female; and any substitute, added
or successor fiduciary shall have all of the powers hereby provided for the
fiduciary named in the will or trust instrument.
§ 64.1-58. Revocation of wills generally.—No will or codicil, or any
part thereof, shall be revoked, unless by a subsequent will or codicil, or
by some writing declaring an intention to revoke the same, executed in
the manner in which a will is required to be executed, or by the testator,
or some person in his presence and by his direction, cutting, tearing,
burning, obliterating, canceling or destroying the same, or the signature
thereto, with the intent to revoke. The subsequent marriage of the testator
or birth of a child to the testator, or both, shall not operate to revoke a will
previously executed by the testator.

64.1-59. Partial revocation by divorce.—If, after making a will,
the testator is divorced a vinculo matrimonii, all provisions in the will in
favor of the testator’s divorced spouse are thereby revoked. .

§ 64.1-60. Revival of wills after revocation.—No will or codicil, or
any part thereof, which shall be in any manner revoked, shall, after being
revoked, be revived otherwise than by the re-execution thereof, or by a
codicil executed in the manner hereinbefore required, and then only to the
extent to which an intention to revive the same is shown.

64.1-61. Effect of subsequent conveyance on will.—No conveyance
or other act, subsequent to the execution of a will, shall, unless it be an act
by which the will is revoked as aforesaid, prevent its operation with respect
to such interest in the estate comprised in the will as the testator may have
power to dispose of by will at the time of his death.

Article 3.

Construction and Effect.

§ 64.1-62. Will to be construed as if made just before testator’s
death.—A will shall be construed, with reference to the real and personal
estate comprised in it, 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.

§ 64.1-63. When advancement deemed satisfaction of devise or be-
quest.—A provision for or advancement to any person shall be deemed a
satisfaction in whole or in part of a devise or bequest to such person, con-
tained in a will executed prior to such provision or advancement if it shall
appear from parol or other evidence to have been so intended.

§ 64.1-64. When issue of devisee or legatee to take estate —If a
devisee or legatee die before the testator, leaving issue who survive the
testator, such issue shall take the estate devised or bequeathed, as the
devisee or legatee would have done if he had survived the testator, unless a
different disposition thereof be made or required by the will. This rule
shall also apply to a devise or bequest to several jointly, one or more of
whom die in the lifetime of the testator.

§ 64.1-65. How devises that fail, etc., to pass.—Unless a contrary
intention shall appear by the will, such real estate or interest therein as
shall be comprised in any devise in such will, which shall fail or be void or
otherwise incapable of taking effect, shall be included in the residuary
devise, if any, contained in such will.

§ 64.1-66. Devises in general terms; how construed.—A devise of
the testator which would describe a leasehold estate, if the testator had no
freehold estate which could be described by it, shall be construed to include
such leasehold estate unless a contrary intention appear by the will.

§ 64.1-67. Devise or bequest as execution of power to appoint.—A
devise or bequest shall extend to any real or personal estate, as the case
may be, which the testator has power to appoint as he may think proper
and to which it would apply if the estate were his own property, and shall
operate as an execution of such power, unless a contrary intention shall
appear by the will.

§ 64.1-68. Interest on pecuniary legacies.—Unless a contrary in-
tent is expressed in or to be implied from a will, interest on pecuniary
legacies shall begin to run at the expiration of one year after the date of
the death of the testator.

For the purposes of this section, a marital formula pecuniary bequest
either outright to the testator’s spouse or in trust for the benefit of such
spouse, designed in either case to qualify for the benefit of the marital
deduction allowed by the Federal Internal Revenue Code, shall not be con-
sidered a pecuniary legacy entitled to interest at the expiration of one year
after the death of the testator but, instead, shall share ratably with the
residue of the estate in the income earned by the estate during the period
of administration, unless a contrary intent is expressed in the will.

§ 64.1-69. When direction to purchase annuity binding on legatee.—
If a person direct in his will the purchase of an annuity sufficient to provide
a minimum income of ten dollars per month, the person or persons to whom
the income therefrom shall be paid, shall not have the right to take the
sum directed to be used for such purpose in lieu of such annuity, except
to the extent that the will expressly provides for such right or except to the
extent that the will expressly provides that an assignable annuity be
purchased.

§ 64.1-70. Provision for pretermitted children when no child living
when will made.—If any person die leaving a child, or his wife with child,
which shall be born alive, and leaving a will made when such person had
no child living, wherein any child he might have is not provided for or
mentioned, such child, or any descendant of his, shall succeed to such por-
tion of the testator’s estate as he would have been entitled to if the testator
had died intestate; towards raising which portion the devisees and lega-
tees shall, out of what is devised and bequeathed to them, contribute
ratably, either in kind or in money, as a court of equity, in the particular
case, may deem most proper. But if any such child, or descendant, die
under the age of twenty-one years, unmarried, and without issue, his por-
tion of the estate, or so much thereof as may remain unexpended in his
support and education, shall revert to the person or persons to whom it
was given by the will.

§ 64.1-71. Provision when child living when will made.—If a will
be made when a testator has a child living, and that child is provided for
in the will, and a child be born afterwards, such afterborn child if not
provided for by any settlement and neither provided for nor expressly
excluded by the will, but only pretermitted, shall succeed to the lesser of
( a) such portion of the testator’s estate as he would have been entitled to
if the testator had died intestate or (b) the equivalent in amount to any
bequests and devises to any child named in the will, and if there be bequests
or devises to more than one child, then to the larger or largest of such total
bequests and devises towards raising which portion the devisees and legatees
shall, out of what is devised and bequeathed to them, contribute either in
kind or in money, as a court of equity may deem proper. But if such after-
born child die under the age of twenty-one years, unmarried and without
issue, his portion of the estate, or so much thereof as may remain un-
2xpended shall revert to the person to whom it was given by the will.

§ 64.1-72. When re-executed wills deemed to be made.—Every will
e-executed or republished, or revived by any codicil, shall, for the pur-
»0Ses Of this chapter, be deemed to have been made at the time at which
she same shall be so re-executed, republished or revived.
| § 64.1-73. Devise or bequest to trustee of an established trust.—
(a) A devise or bequest (including the exercise of a power of appointment)
may be made by a will duly executed pursuant to the provisions of this
chapter to the trustee or trustees of an inter vivos trust or testamentary
trust established by the testator or by the testator and some other person
or persons or by some other person or persons:

(1) If in the case of an inter vivos trust, such trust is identified in
the testator’s will and its terms are set forth in a written instrument
(other than a will) executed before or concurrently with the execution of
the testator’s will;

(2) If in the case of a testamentary trust, such trust is identified in
the testator’s will and its terms are set forth in the valid last will of a
person who has predeceased the testator and whose will was executed
before or concurrently with the execution of the testator’s will; and,

(3) Further provided that in either event, at the testator’s death at
least one trustee of such trust is an individual resident of this State or is a
corporation or association authorized to do a trust business in this State
and provided further that a corporation or association not authorized to
do a trust business in this State is not at the testator’s death a trustee of
such trust.

(b) Such inter vivos trust may be an unfunded insurance trust with
the trustee or trustees being the beneficiary or beneficiaries under the
insurance contract or contracts and with the testator or some other person
having the right to change the beneficiary and/or having any or all other
rights of ownership in such contract or contracts. For the purposes of this
section :

(1) An unfunded insurance trust shall be deemed established upon
execution of the instrument creating such trust (regardless of the exist-
ence, size or character of the corpus of the trust); and

(2) Such unfunded insurance trust may contain provisions whereby
the amount of corpus to be allocated to any particular portion of the trust
will be determined, measured or affected by the “adjusted gross estate” of
the settlor or testator for federal estate tax purposes, or by the amount of
the “marital deduction allowable” to the settlor’s or testator’s estate for
federal estate tax purposes and such trust shall not be deemed testamen-
tary by reason thereof.

(c) Such devise or bequest shall not be invalid because the trust is
amendable or revocable or both by the settlor or any other person or per-
sons, either prior or subsequent to the testator’s death, or because the
trust instrument or any amendment thereto was not executed in the man-
ner required for wills or because the trust was amended after the execution
of the will or after the death of the testator.

(d) Unless the testator’s will provides otherwise, the property so
devised or bequeathed:

(1) Shall not be deemed held under a testamentary trust of the
testator, but shall become a part of the corpus of the trust to which it is
given or, if the will so specifies, it shall become a part of any one or more
particular portions of such corpus; and,

(2) Shall be administered and disposed of in accordance with ths
terms of the trust as they appear in writing at the testator’s death (in
cluding any amendments thereto made before the death of the testator ant
regardless of whether made before or after the execution of the testator’
will) ; or, if the testator expressly so specifies in his will, and only in suc!
event, as such terms are amended after the death of such testator.

(e) In the event that the settlor (or other persons having the righ
to do so) revokes or otherwise terminates the trust pursuant to a power s
to do reserved in the trust instrument, and such revocation or terminatic
Is effected at a date subsequent to the death of a testator who has devis«
or bequeathed property to such trust, the revocation or termination sh:
be ineffective as to property devised or bequeathed to such trust by a te
tator other than the settlor, unless the testator’s will expressly provides to
the contrary.

(f) The devise or bequest shall not be valid should the entire trust
not be operative for any reason at the testator’s death. If the devise or
bequest is to augment only one or more portions of the trust such devise or
bequest shall not be valid should the trust not be operative for any reason
as to such portion or portions at the testator’s death.

(g) This section shall apply to any devise or bequest made by a tes-
tator living on June twenty-ninth, nineteen hundred sixty-two, or
born thereafter, without regard to the date of the execution of the will or
of the trust instrument or any amendment thereto; provided, however,
that the provisions of this section shall not be construed as casting any
doubt upon the validity as heretofore existing of any devise or bequest
made by a testator who shall have died prior to June twenty-ninth, nine-
teen hundred sixty-two, or any devise or bequest which does not come
within the provisions of this section.

§ 64.1-74. Distribution of assets by fiduciaries in satisfaction of
pecuniary bequests or transfers in trust of pecuniary amount.—(a) Where
a will or trust agreement authorizes or directs the fiduciary to satisfy
wholly or partly in kind a pecuniary bequest or transfer in trust of a
pecuniary amount, unless the instrument shall otherwise expressly provide,
the assets selected by the fiduciary for that purpose shall be valued at their
respective values on the date or dates of their distribution.

(b) Whenever a fiduciary under the provisions of a will or other
governing instrument is required to satisfy a pecuniary bequest or trans-
fer in trust in favor of the testator’s or donor’s spouse and is authorized to
satisfy such bequest or transfer by selection and distribution of assets in
kind, and the will or other governing instrument further provides that
the assets to be so distributed shall or may be valued by some standard
other than their fair market value on the date of distribution, the fiduciary,
unless the will or other governing instrument otherwise specifically directs,
shall distribute assets, including cash, fairly representative of apprecia-
tion or depreciation in the value of all property available for distribution
in satisfaction of such pecuniary bequest or transfer. This section shall
not apply to prevent a fiduciary from carrying into effect the provisions of
the will or other governing instrument that the fiduciary, in order to imple-
ment such a bequest or transfer, must distribute assets, including cash,
having an aggregate fair market value at the date or dates of distribution
amounting to no less than the amount of the pecuniary bequest or transfer
as finally determined for federal estate tax purposes.

(c) Any fiduciary having discretionary powers under a will or other
governing instrument with respect to the selection of assets to be dis-
tributed in satisfaction of a pecuniary bequest or transfer in trust in favor
of the testator’s or donor’s spouse shall be authorized to enter into agree-
ments with the Commissioner of Internal Revenue of the United States of
America and other taxing authorities requiring the fiduciary to exercise
the fiduciary’s discretion so that cash and other properties distributed in
satisfaction of such bequest or transfer in trust will be fairly represen-
tative of the appreciation or depreciation in value of all property then
available for distribution in satisfaction of such bequest or transfer in
trust, and any such agreement heretofore entered into after April one,
nineteen hundred sixty-four, is hereby validated. Any such fiduciary shall
be authorized to enter into any other agreement not in conflict with the
express terms of the will or other governing instrument that may be neces-
sary or advisable in order to secure for federal estate tax purposes the
appropriate marital deduction available under the internal revenue laws of
the United States of America, and to do and perform all acts incident to
such purpose.
§ 64.1-75. Jurisdiction of probate of wills.——The circuit and cor-
poration courts of the Commonwealth, and the clerks of such courts, and
the duly qualified deputies of such clerks, and the clerks of all other courts
having jurisdiction of the probate of wills, shall have such jurisdiction
according to the following rules: In the county or corporation wherein
the decedent has a mansion house or known place of residence; if he has
no such house or known place of residence, then in a county or corporation
wherein any real estate lies that is devised or owned by the decedent; and
if there be no such real estate, then in the county or corporation wherein
he dies or a county or corporation wherein he has estate; provided, how-
ever, that in the city of Richmond the Chancery Court and the Hustings
Court, Part Two, of such city, and the clerks of such courts and their duly
qualified deputies shall have such jurisdiction which shall be exercised
within their respective territorial jurisdictions as defined by law and in
the manner heretofore provided by law.

§ 64.1-76. Residence of patient in nursing home, convalescent
home, etc.—Where any person has because of advanced age or impaired
health either voluntarily or involuntarily become a patient in a nursing
home, a convalescent home, or a similar institution, the place of legal resi-
dence of such person shall be presumed to be the same as it was before he
became such a patient; provided, however, that such presumption may be
rebutted by competent evidence.

§ 64.1-77. Clerks may probate wills, appoint appraisers or adminis-
trators, qualify executors, etc.—The clerk of any circuit or corporation
court, or the clerks of the Chancery Court or the Hustings Court, Part
Two, of the city of Richmond, or the clerk of any other court having juris-
diction of the probate of wills, other than the clerks of the circuit court
and the several corporation courts of the city of Richmond with the excep-
tion of the Chancery Court and the Hustings Court, Part Two, within
their respective territorial jurisdictions as defined by law, or any duly
qualified deputy of any such clerks, may appoint appraisers of estates of
decedents, admit wills to probate, appoint and qualify executors, adminis-
trators and curators of decedents, and require and take from them the
necessary bonds in the same manner and with like effect as the court
could do if in session. Such powers and duties may be exercised and dis-
charged as well during the sessions of the court as at other times.

Such clerk shall keep an order book, in which shall be entered all
orders made by him, or his deputy, respecting the subjects aforesaid.

All wills heretofore admitted to probate by any duly qualified deputy
clerk of any court of competent jurisdiction shall be deemed to have been
properly admitted to probate to the same extent as if the clerk had acted
in the proceeding.

§ 64.1-78. Appeal from order of clerk.—Any person interested may,
within six months after the entering of such an order, appeal therefrom
as a matter of right, without giving any bond, to the court whose clerk, or
deputy, has made the order. Upon application being made for such appeal,
the clerk or deputy shall enter forthwith in his order book an order allow-
ing such appeal, and docket the same as a preferred cause for trial at the
next term of the court. The court at any term shall hear and determine
the matter as though it had been presented to the court in the first in-
stance, and shall cause a copy of the order on the order book of the court
embracing its final action to be copied by the clerk, or deputy, into his
order book. At any time after such appeal is allowed the court, or the
judge thereof in vacation, may make any such order for the protection
of the parties interested or for the protection or preservation of any
property involved as might have been made had the matter been originally
presented to the court, or as may seem needful.

§ 64.1-79. Person offering will for probate may have persons
interested cited to appear.—A person offering, or intending to offer, to a
court having jurisdiction of the probate of wills or to the clerk of a cir-
cuit court having such jurisdiction. a will for probate, may obtain from
the clerk of such court process directed to the proper officer of any
county or corporation, requiring him to summon any person interested in
such probate to appear at the next term of such court, on a day named in
the summons, to show cause why the will should not be admitted to
probate.

§ 64.1-80. Circuit and corporation courts may do same.—A circuit
or corporation court or the Chancery Court or the Hustings Court, Part
Two, of the city of Richmond to which a will is offered for probate, or
into which the question of probate is removed by appeal or otherwise, may
cause all persons interested in the probate to be summoned to appear on a
certain day.

§ 64.1-81. Process against persons interested; guardian ad litem.—
Any person interested in such probate may be summoned, or proceeded
against, by order of publication; and to any person so interested a guardian
ad litem may be assigned, as in other cases.

§ 64.1-82. When court to hear motion.—When all the persons in-
terested in such probate shall be properly convened by such summons or
order of publication, or assignment of guardian, or shall otherwise appear
as parties, the court shall proceed to hear the motion for such probate.

§ 64.1-83. Court may require all testamentary papers to be pro-
duced; trial by jury; judgment.—In every such proceeding the court may
require all testamentary papers of the same decedent to be produced. If
any person interested ask it, it shall order a trial by a jury. to ascertain
whether any paper, or if there by more than one, which of the papers
produced, be the will of the decedent and if no such trial be asked shall
proceed without it to decide the question of probate. The court shall make
a final decree or order as to the probate.

§ 64.1-84. Effect of judgement.—In such a proceeding any such
decree or final order shall be a bar to a bill in equity to impeach or establish
such will, unless on such a ground as would give to a court of equity juris-
diction over other judgments at law.

§ 64.1-85. Motion for probate may be ex parte.—Any court having
jurisdiction of the probate of wills under § 64.1-75 may, however, without
summoning any party, proceed to probate and admit the will to record or
reject the same.

§ 64.1-86. How production of will compelled—Any court having jur-
isdiction of the probate of wills, on being informed that a person has in
his custody the will of a testator, may summon him and by proper process
compel him to produce the same.

§ 64.1-87. When deposition of witness may be taken and read on pro-
bate of will._—When any will, or authenticated copy thereof, is offered for
probate, and a witness attesting the same, or in event the will be wholly
in the handwriting of the testator, a witness to prove such handwriting,
resides out of this State, or though in this State is confined in another
county or corporation under legal process, or is unable from sickness, age
or any other cause to attend before the court or clerk where the same is
offered, the same may be proved by the deposition of the witness or wit-
nesses, which shall be taken and certified as depositions are taken in other
cases, except that no notice need be given of the time and place of taking
the same, unless it be in a case in which the probate is opposed by some
person who has made himself a party; and the proof so given shall have
the same effect as if it had been given before such court or clerk. For the
purpose of making such proof the party offering such will or copy shall
be permitted to withdraw temporarily the original thereof upon leaving an
attested copy with such court or clerk. Such deposition may be taken prior
to the time that the will is offered for probate, and the deposition filed at
the same time the will is offered, provided, that if probate is opposed by
some person who has made himself a party, such person shall have the right
to examine such witness.

§ 64.1-88. Bill to impeach or establish a will.—After a decree or order
under § 64.1-85 or under § 64.1-77, a person interested, who was not
a party to the proceeding, may proceed by bill in equity to impeach or
establish the will, on which bill a trial by jury shall be ordered to ascertain
whether any, and if any how much, of what was so offered for probate
be the will of the decedent. The court may also, if it deem proper, require
all testamentary papers of the same decedent to be produced and direct the
jury to ascertain whether any, or if there be more than one which, of the
papers produced, or how much of what was so produced, be the will of the
decedent.

§ 64.1-89. When bill must be filed and where.—If the decree or order
be made by the court in the exercise either of its original jurisdiction or an
appeal from the clerk, such bill shall be filed within one year from the date
of such order made by the court. If no appeal be taken from a decree or
order made by the clerk under § 64.1-77, the bill shall be filed within one
year from the date of such order or decree by the clerk. If no such bill be
filed within that time, the decree or order shall be forever binding. No
bill shall be filed under § 64.1-88 except in the court in which, or in the
clerk’s office of which, the will was admitted to probate.

§ 64.1-90. Saving in favor of infants, persons of unsound mind, and
nonresidents.—Sections 64.1-84, 64.1-88 and 64.1-89 are subject to this
proviso: That any person interested who has not otherwise been before
the court and who, at the time of the decree or order, is under the age of
twenty-one years or of unsound mind may file a bill in equity to impeach
or establish the will within one year after he becomes of age or is restored
to sanity, as the case may be, and any person interested who at that time
resides out of this State or shall have been proceeded against by order of
publication may, unless he actually appeared as a party or was personally
summoned, file such bill within two years after such decree or order.

§ 64.1-91. What may be admitted as evidence on trial by jury.—The
record of what is proved or deposed in court by witnesses on the motion
to admit a will to record and any depositions lawfully taken out of court,
on such motion, of witnesses who cannot be produced at a trial after-
wards before a jury may, on such trial, be admitted as evidence, to have
such weight as the jury shall think it deserves.

§ 64.1-92. Probate of copy of will proved without the State; to what
extent admitted to probate.——When a will relative to an estate within
this State has been proved without the same, an authenticated copy thereof
and the certificate of probate thereof may be offered for probate in this
State. When such copy is so offered, the court or the clerk thereof to
which it is offered shall presume, in the absence of evidence to the con-
trary, that the will was duly executed and admitted to probate as a
will of personalty in the State or country of the testator’s domicile and
shall admit such copy to probate as a will of personalty in this State. And
if it appear from such copy that the will was proved in the foreign court of
probate to have been so executed as to be a valid will of lands in this
State by the law thereof, such copy may be admitted to probate as a will
of real estate. The probate of any such copy of a will before any such
clerk shall have the same legal operation and effect as if such copy had
been admitted to probate by the court.
§ 64.1-93. Appointment of curator; when made; his duties.—Such
court or clerk as is mentioned in § 64.1-75, or any duly qualified deputy of
such clerk, may appoint a curator of the estate of a decedent during a
contest about his will, or during the infancy or in the absence of an
executor, or until administration of the estate be granted, taking from him
bond in a reasonable penalty. The curator shall take care that the estate
is not wasted before the qualification of an executor or administrator, or
before such estate shall lawfully come into possession of such executor or
administrator. He may demand, sue for, recover and receive all debts
due to the decedent, and all his other personal estate, and likewise may
lease or receive the rents and profits of any real estate whereof the
decedent or testator may have died seized or possessed. He shall pay
debts, so far as such payment may not affect the priority in the order of
payment prescribed by law, and may be sued in like manner as an executor
or administrator; and upon the qualification of an executor or administra-
tor shall account with him for and pay and deliver to him such estate
as he has in his hands or may be liable for.

Article 5.
Recordation and Effect Thereof.

§ 64.1-94. Wills to be recorded; recording copies; effect; indexing.—
Every will or authenticated copy admitted to probate by any court or
clerk of any circuit court shall be recorded by the clerk and remain
in the clerk’s office, except during such time as the same may be carried
to another court under a subpoena duces tecum. A duly certified copy of
such will or of any authenticated copy so admitted to record may be
recorded in any county or city wherein there is any estate, real or personal,
devised or bequeathed by such will.

The personal representative of the testator shall cause a duly certi-
fied copy of any will or of any authenticated copy so admitted to record
to be recorded in any county or city wherein there is any real estate
of which the testator died seized or which is devised by his will. On and
after July 1, 1964, such will shall be indexed in the General Indices of
Deeds in such clerk’s office in the name of the testator as grantor, except
In such clerk’s office wherein General Indices to Wills are kept.

Every will, or such a duly certified copy as is mentioned in this
section, when duly recorded shall have the effect of notice to all persons
of any devise or disposal by the will of real estate situated in a county
or city in which such will or copy is so recorded.

Every clerk on recording any will, or such a copy as is mentioned
in this section, shall index the same as required by law.

§ 64.1-95. Bona fide purchaser of real estate without notice of devise
protected.—The title of a bona fide purchaser without notice for valuable
consideration from the heir at law of a person who has died heretofore,
or who may die hereafter, having title to any real estate of inheritance
in this Commonwealth, shall not be affected by a devise of such real estate
made by the decedent, unless within one year after the testator’s death
the will devising the same or, if such will has been probated without this
State, an authenticated copy thereof and the certificate of probate shall
be filed for probate before the court or clerk having jurisdiction for
that purpose and shall afterwards be admitted to probate and recorded
in the proper court or clerk’s office as a will of real estate.

§ 64.1-96. Same; later will.—The title of a bona fide purchaser with-
out notice for valuable consideration from the devisee, or from the personal
representative with power to sell, encumber, lease or exchange, under the
will of a person who has died heretofore, or may die hereafter, having
tle to any real estate of inheritance in this Commonwealth, shall not
»e affected by any other devise of such real estate made by the testator
in another will, unless within one year after the testator’s death suct
other will or, if such other will has been probated without this State,
an authenticated copy thereof and the certificate of probate shall be filed
for probate before the court or clerk having jurisdiction for that purpose
and shall afterwards be admitted to probate and recorded in the proper
court or clerk’s office as a will of real estate.

CHAPTER 4.

UNIFORM SIMULTANEOUS DEATH ACT.

$ 64.1-97. No sufficient evidence of survivorship; disposition of
property of decedents.—When the title to property or the devolution
thereof depends upon priority of death and there is no sufficient evidence
that the persons have died otherwise than simultaneously, the property
of each person shall be disposed of as if he had survived, except as pro-
vided otherwise in this chapter.

§ 64.1-98. Beneficiaries of another person’s disposition of property.
—When two or more beneficiaries are designated to take successively by
reason of survivorship under another person’s disposition of property and
there is no sufficient evidence that these beneficiaries have died otherwise
than simultaneously the property thus disposed of shall be divided into as
many equal portions as there are successive beneficiaries and these portions
shall be distributed respectively to those who would have taken in the
event that each designated beneficiary had survived.

$ 64.1-99. Joint tenants or tenants by the entirety.—When there is
no sufficient evidence that two joint tenants or tenants by the entirety
have died otherwise than simultaneously the property so held shall be
distributed one-half as if one had survived and one-half as if the other
had survived. If there are more than two joint tenants and all of them
have so died the property thus distributed shall be in the proportion that
one bears to the whole number of joint tenants.

§ 64.1-100. Insurance policies.—When the insured and.the beneficiary
in a policy of life or accident insurance have died and there is no
sufficient evidence that they have died otherwise than simultaneously the
proceeds of the policy shall be distributed as if the insured had survived
the beneficiary.

§ 64.1-101. Chapter not retroactive.—This chapter shall not apply to
the distribution of the property of a person who died prior to June
twenty-seventh, nineteen hundred forty-two.

§ 64.1-102. Chapter does not apply if decedent provides otherwise.—
This chapter shall not apply in the case of wills, living trusts. deeds or
contracts of insurance wherein provision has been made for distribution
of property different from the distribution that would be made under
the provisions of this chapter.

§ 64.1-103. Uniformity of interpretation.—This chapter shall be sc
construed and interpreted as to effectuate its general purpose to make
uniform the law in those states which enact substantially identical laws

§ 64.1-104. Short title—This chapter may be cited as the Uniforr
Simultaneous Death Act.

CHAPTER 5.

PERSONS PRESUMED DEAD.

§ 64.1-105. Presumption of death from absence; in cause wherei
death comes in question.—If any person, who shall have resided in thi
State, either (1) go from and do not return to the State for seven year
successively and be not heard from or (2) disappear for seven years su
cessively and be not heard from, or (3) if any person not residing in th
State, but owning real property herein shall disappear for seven yea
successively from the place of his residence outside of this State and be n
heard from, any such person shall be presumed to be dead in any cause
wherein his death shall come in question, unless proof be made that he was
alive within that time. But before any final order or decree is entered
in any such cause, in favor of the alleged heirs, devisees or legatees of the
supposed decedent, or persons claiming by, through or under them, or any
of them, proceedings shall be had in conformity with §§ 64.1-107 to
64.1-112, provided that such person so presumed to be dead, his heirs at law,
devisees, next of kin and legatees, may be made parties defendant to pro-
ceedings in respect to property, real or personal, in which he may have
an undivided interest, by order of publication or other process as provided
by law, and such proceedings, whether in the nature of partition, eminent
domain or otherwise, shall not be stayed in respect to the division, sale
or other disposition of the entire property and the sections above mentioned
shall be applicable only to the portion of the property set apart or to the
share of the proceeds to which such person would be entitled.

§ 64.1-106. Distribution of fund when presumption of death not ap-
plicable.—If in any chancery cause wherein any estate or fund is to be
distributed the interest of any person therein depends upon his having
been alive at a particular time and it is not known and cannot be shown
by the exercise of reasonable diligence whether such person was alive at
that time and the case is one in which the legal presumption of death
from absence does not apply, the court may, if it sees no cause to the
contrary, enter its decree distributing the estate or fund among those who
would be entitled thereto if it were shown that such person above referred
to were dead at such particular time; provided, however, that a proper
refunding bond be given with condition to account for the estate or fund
to any person who may establish title thereto adverse to that of the dis-
tributees, or to the heirs, personal representatives or assigns of such
person.

No motion shall be made hereunder except after reasonable notice to
all parties upon whom service may be had; nothing in this section shall be
construed to affect in any way any requirement of law as to service or
publication of process.

§ 64.1-107. Probate or administration not to be granted by a clerk.—
Neither probate of a will of a person presumed to be dead on account of
absence from his last domicile in this State for seven years or more, nor
administration upon the estate of such person shall in any case be granted
by aclerk.

§ 64.1-108. Probate or administration before court; notice of applica-
tion.—Whenever a will of any person supposed to be dead on account of
absence for seven years or more from the place of his last domicile in
this State shall be offered for probate, or whenever letters of administra-
tion on the estate of any person so supposed to be dead shall be applied
for, the court having jurisdiction if such person were dead, if satisfied that
the will so offered for probate should be probated or that the applicant
would be entitled to letters of administration were the supposed de-
cedent in fact dead, shall cause to be advertised in a newspaper published
in the county or city once a week for four successive weeks the fact
of the offer or application, together with notice that on a certain day,
which shall be at least two weeks after the advertisement, the court or
judge will hear evidence concerning the alleged absence of the supposed
decedent and the circumstances and duration thereof.

§ 64.1-109. Application for order when probate or administration
unnecessary.—Whenever any person shall claim, either as widow or heir
at law or otherwise, any property of a person supposed to be dead on
account of absence for seven years or more from the place of his last
domicile and there shall be no will or no necessity for grant of letters of
administration, such person may apply to the court which would have
jurisdiction for probate or for granting letters of administration, or the
judge thereof in vacation, to have the fact of such descent established
and thereupon the court shall, if satisfied that the person so claiming
would be so entitled were the supposed decedent in fact dead, shall cause
notice of such application to be published as provided above in respect
to offer of a will for probate or application for letters of administration.

§ 64.1-110. Hearing application; evidence receivable; further pub-
lication.—At the hearing, which shall be either in term or vacation, the
court or judge shall hear such legal evidence as may then be offered for
the purpose of ascertaining whether or not the presumption of death is
made out and if satisfied that the legal presumption of death is made
out the court or judge shall so order. If the evidence show the length
of absence of supposed decedent to be more than seven years, but less
than twenty years, the court or judge shall forthwith cause notice of the
order to be inserted once a week for two successive weeks in a newspaper
published in the county or city and also, when practicable, in a news-
paper published at or near the place where the supposed decedent had
his residence when last heard from. Such notice shall require the sup-
posed decedent, if alive, or any person for him to produce to the court,
or the judge thereof in vacation, within twelve weeks from the date of its
last insertion satisfactory evidence of his continuance in life. If there
be not in the county or city a newspaper in which the publication required
by this and the two preceding sections may be had, the same may be
published in such newspaper having general circulation therein as the
court or judge shall order.

§ 64.1-111. Grant of probate, administration or order; effect.—If the
evidence at the hearing required by the preceding section show the length
of absence to be twenty years or more or if within the period of twelve
weeks after publication of the order on the hearing aforesaid evidence
satisfactory to the court or judge of the continuance in life of the sup-
posed decedent shall not be forthcoming, the court or judge shall proceed
to admit such will to probate or issue letters of administration to the
party entitled thereto or order that the claim of the widow or heirs at
law or other person be established, as the case may be, and such probate
and letters and such descent, until the order in respect thereto be revoked,
and all acts done in pursuance thereof and in reliance thereon, shall be as
valid as if the supposed decedent were really dead.

§ 64.1-112. Distribution of estate; refunding bond; investment.—
Before any distribution of the proceeds of the estate of such supposed
decedent shall be made and before sale of any real or personal property
passing in kind by persons claiming the same as heirs at law or devisees,
the persons entitled to receive such proceeds or such property in kind
shal] give a refunding bond with surety to be approved by the court or
judge, in such form as the court or judge shall direct, and with condition
that if the supposed decedent shall in fact be alive at that time, they will
respectively refund the amounts received by each on demand, with inter-
est thereon; but if the persons entitled to receive the same are unable
to give the security aforesaid, then the money shall be invested un-
der an order of the court or judge in such manner as the court or judge may
approve, which investment may be changed from time to time as the
court or judge may deem proper. The interest arising from such invest-
ment shall be paid annually to the persons appearing to be entitled thereto
and such investment shall continue until security is given, as aforesaid,
or the court or judge. on application, shall order it to be paid to the
persons appearing to be entitled to it. But if the evidence shows the
length of absence of the supposed decedent to be more than fifteen years,
the court or judge shall not require surety on such refunding bond.

§ 64.1-113. Revocation of probate, etc.; effect on previous acts;
title of purchasers, widow, etc.—The court, or judge thereof in vaca-
tion, after reasonable notice to the parties interested, may revoke such
letters or such order of probate or such order establishing descent of
property in kind at any time on due and satisfactory evidence that the
supposed decedent is in fact alive. After such revocation all powers of
the personal representative shall cease, but all receipts and disbursements
of assets and other acts previously done by him and the title of bona
fide purchasers to property under sales made by him or by the widow,
heir at law or devisee, if such widow, heir at law or devisee shall have
complied with § 64.1-112, shall remain as valid as if no revocation had
been made. The personal representative shall settle his account and all
assets remaining in his hands or in the hands of such widow, heir at
law or devisee and the proceeds thereof shall be transferred to the owner
thereof presumed to be dead or to his duly authorized agent or attorney.
Nothing in this section shall validate the title of any person to any
money or property received as widow, heir at law, devisee, next of kin
or legatee of such supposed decedent, but the same may be recovered
from them in like manner as if such administration had not been granted.

§ 64.1-114. Substitution of supposed decedent in pending actions;
reopening of judgments; effect of judgments.—After revocation of the
letters the person erroneously supposed to be dead may, on suggestion
filed of record of the proper fact, be substituted as plaintiff in all actions
brought by the administrator, whether prosecuted to judgment or other-
wise. He may, in all actions previously brought against his administrator,
be substituted as defendant, on proper suggestion filed by himself, or of
the plaintiff therein, but shall not be compelled to go to trial in less
than three months from the time of such suggestion filed. Judgments
recovered against the administrator before revocation as aforesaid of the
letters may be opened, on application by the supposed decedent made
within three months from the revocation and supported by affidavit, deny-
ing specifically, on the knowledge of the affiant, the cause of the action,
in whole or in part, or specifically alleging the existence of facts which
would be a valid defense; but, if within such period of three months,
such application shall not be made or, being made, the facts exhibited
shall be adjudged an insufficient defense, the judgment shall be con-
clusive to all intents, saving the defendant’s right to have it reviewed,
as in other cases, by certiorari, appeal or writ of error. After the
substitution of the supposed decedent as defendant in any judgment, as
aforesaid, it shall become a lien upon his real estate in the county or city
and shall so continue as other judgments, unless and until it shall be set
aside by the court below or reversed in the Supreme Court of Appeals.

§ 64.1-115. Costs, by whom payable.—The costs attending the is-
sue of such letters or their revocation shall be paid out of the estate of
the supposed decedent; and costs arising upon an application for letters
which shall not be granted shall be paid by the applicant.

CHAPTER 6.

PERSONAL REPRESENTATIVES
AND ADMINISTRATION OF ESTATES.

Article 1.
Appointment and Qualification.

§ 64.1-116. When and to whom administration, with the will
annexed, may be granted.—If there be no executor appointed by the will
or if all the executors therein named refuse the executorship or fail to give
bond when required, which shall amount to such refusal, or having quali-
fied die, resign or are removed from office, the court or clerk may grant
administration with the will annexed to the person who would have been
entitled to administration if there had been no will, upon his taking such
oath and giving such bond; provided that administration shall not be
granted to any person unless the court or clerk is satisfied that he is suitable
and competent to perform the duties of his office.

§ 641-117. Oath of executor or such administrator.—The oath of
an executor or of an administrator with the will annexed shall be that
the writing admitted to record contains the true last will of the deceased,
so far as he knows or believes, and that he will faithfully perform the
duties of his office to the best of his judgment. Such oath may be taken
on behalf of a corporation by its president, vice-president, secretary,
treasurer or trust officer. ;

§ 64.1-118. What clerk or court to appoint administrator of an
estate ; who to be preferred.—In the case of a person dying intestate the
jurisdiction to hear and determine the right of administration of his
estate shall be in the same court or before the same clerk who would
have jurisdiction as to the probate of his will, if there were a will.
Administration shall be granted to the distributees who apply therefor,
preferring first the husband or wife and then such of the others entitled
to distribution as the court or clerk shall see fit. But any of the distributees
may at any time waive his right to qualify in favor of any other person
to be designated by him. If no distributee apply for administration
within thirty days from the death of the intestate, the court or clerk
may grant administration to one or more of the creditors or to any
other person, provided that administration shall not be granted to any
person unless the court or clerk is satisfied that he is suitable and com-
petent to perform the duties of his office.

§ 64.1-119. Oath and bond of administrator; when grant to cease.—
Before any grant of administration, as of the estate of an intestate, the
person to whom it is granted shall, in the court or before the clerk
granting it, give bond and take an oath that the deceased has left no
will, so far as he knows, and that he will faithfully perform the duties
of his office to the best of his judgment. Such oath may be taken on behalf
of a corporation by its president, a vice-president, secretary, treasurer or
trust officer. If a will of the decedent be afterwards admitted to record,
or if, after administration is granted to a creditor or other person than
a distributee, any distributee who shall not have before refused shall
apply for administration, there may be a grant of probate or administra-
tion, after reasonable notice to such creditor or other person, in like
manner as if the former grant had not been made; and the former grant
shall thereupon cease.

§ 641-120. Penalty of bond of executor or administrator.—Every
bond of an executor or administrator shall be in a penalty equal, at the
least, to the full value of the personal estate of the deceased to be ad-
ministered; and when there is a will which authorizes the executor or
administrator to sell real estate, or receive the rents and profits thereof,
the bond shall be in a penalty equal, at the least, to the full value both
of the personal estate and of such real estate, or rents and profits, as the
case may be.

§ 64.1-121. When security not required.—Where the personal repre-
sentative of an estate is the sole distributee or sole beneficiary thereof,
the court or clerk shall not require security of him, nor shall security be
required of an executor when the will waives security of an executor
nominated therein, unless, in either case, upon the application of any person
who has a pecuniary interest. Upon its own motion the court may require
such fiduciary to provide security in an amount deemed sufficient. If at any
time any person with an interest, or a legatee, devisee or distributee of an
estate shall file with the court a motion in writing suggesting that surety
upon the bond should be required of a fiduciary for the protection of the
estate, a copy of such motion shall be served upon the fiduciary and the court
shall hear the matter and may require the fiduciary to furnish surety
upon his bond in the amount it deems necessary and, in addition, award
to the movant reasonable attorney’s fees and costs which shall be paid
out of the estate.

§ 64.1-122. Letters of administration in due form unnecessary; how
made out when required.—A copy of the order whereby certificate is
granted to any personal representative for obtaining probate or letters
of administration shall be as effectual as the probate or letters made out
in due form. Nevertheless the clerk of the court by which such order
is made shall, when required by any personal representative, make out
such probate or letters in due form. The same, when so made out, shall
be signed by the clerk, sealed with the seal of the court and certified
by the judge to be attested in due form.

Article 2.

Payments, Settlements or Administration without
Appointment of Representative

§ 64.1-123. Payment of certain small sums due persons upon whose
estates there has been no qualification.—When there is due a sum of not
exceeding one thousand dollars from the State, whether it be a State
income tax refund or a sum due on some other account, or when there
is due a sum of not exceeding one thousand dollars from the United
States as a pension or money allowed for burial expenses of soldiers, or
from any employer to a deceased employee, upon whose estate there has
been no qualification, the State, the United States or such employer, after
one hundred twenty days from the death of such person to whom
such money is due, may pay such sum to his or her surviving consort,
if any, and if none such, then to the distributees of the decedent under
the laws of this State whose receipt therefor shall be a full discharge
and acquittance to all persons whomsoever on account of such sum.

§ 64.1-124. Payment to consort or to court of small sum of de-
ceased inmate of State mental institution—When a person for whom
no committee or trustee has been appointed is committed to a mental
institution supported by the State and dies therein and there is in the
hands of the superintendent of such institution a sum not exceeding one
thousand dollars, the property of such deceased person, and there has
been no qualification upon the estate of such deceased person within one
hundred twenty days following the death of such person, then such super-
intendent may pay such sum to the surviving consort, if any, and if none,
then to the next of kin of the decedent whose receipt therefor shall be a
full discharge and acquittance to the superintendent on account of such
sums, and if none such then to the court having jurisdiction over the
appointment of the personal representative of the decedent who may
distribute the same in accordance with § 8-750.

§ 64.1-125. Distribution of certain welfare funds due decedents
upon whose estates there has been no qualification.—Where any person,
adult or infant, entitled to payments under Chapters 5 (§§ 63-100 et seq.),
6 (§§ 638-115 et. seq.), 7 (§§ 63-141 et. seq.), 8 (§§ 63-162 et. seq.) and
9 (§§ 63-205 et seq.) of Title 63, dies and there has been no qualification
upon the estate of such deceased person within one hundred twenty days
following his death, the agency may disburse the funds directly to such
person or persons as it might in its own discretion determine to be en-
titled thereto. Such agency shall be authorized to stop payment on any
check issued but not cashed at the time of the decedent’s death and
disburse said funds as hereinbefore provided. Receipts of such person or
persons receiving said funds shall be a full and complete discharge and
acquittance of said agency.
§ 64.1-126. Family may use such dead victuals and livestock as are
necessary.—The dead victuals, or as much thereof as may be necessary,
which, at the death of any person, shall have been laid in for consumption
in his family, shall remain for the use of such family, if the same be
desired by any member of it, without account thereof being made. Any
livestock necessary for the food of the family may be killed for that use
before the sale or distribution of the estate and the same shall not he
taken into account by the administrator or executor of the estate.

§ 64.1-127. What articles vest absolutely in widow, minor children,
and unmarried daughters.—Upon the death of a householder leaving a
widow, minor children or daughters who have never married, there shall
be vested in them, or such of them as shall then constitute members of
the household, absolutely and exempt from sale for funeral expenses, debts
of the decedent or charges of administration of his estate, such of his
property as would, if he were alive and a householder, be exempted under
§ 34-26 from levy or distress for his debts, and also, if he be at the time
of his death actually engaged in the business of agriculture, such of his
property as would, were he alive and a householder, be exempt under
§ 34-27 from levy or distress for his debts.

§ 64.1-128. Transfer of evidences of indebtedness, securities and
corporate stock held in decedents’ estates.—When any executors or ad-
ministrators appointed under this title shall have qualified thereunder and
given bond as required in § 64.1-120, shall have completed the distribution
of the estate with the exception of transferring any evidences of indebted-
ness, securities or stock in any corporation constituting a portion of such
estate, such executors or administrators or the survivors thereof may file
with the clerk of the court, in which such executors or administrators
qualified, a petition under oath, describing any such evidences of indebted-
ness, securities and stock, reciting that all debts of the decedent have
been paid and that a final accounting has been filed and approved, and,
upon receipt of such petition, the clerk of the said court shall issue a
certificate certifying that the powers of such executors or administrators
continue in full force and effect.

§ 64.1-129. Transfer of securities of nonresident decedents.—The
stocks. bonds or certificates of debt of this State, and of any corporation
created by it and of any national bank or other corporations created by or
pursuant to authority of an act of Congress of the United States having
its principal office in this State, standing in the name of a decedent
domiciled at the time of his death out of this State and who is not known
by the officer or agent charged with the duty of transferring such stocks,
bonds or certificates to have a personal representative qualified as such
within this State, may be transferred by the executor or administrator
of such decedent qualified according to the laws of the domicile.

§ 64.1-130. Money and personal property belonging to nonresident
decedents.—When any person, at the time of his death domiciled outside of
this State, shall own stocks, bonds or other securities or money located in
this State or shall be entitled to any debts or choses in action in this State,
such stocks, bonds, other securities, money, debts and other choses in action
shall, for ninety days from the death of such decedent, be retained in the
possession of the person, firm or corporation holding or owing the same,
after which period of time such portion thereof as to which the person, firm
or corporation shall not have received legal notice of any lien or encum-
brance, shall be paid over or delivered on demand to an executor or an
administrator or other personal representative, duly qualified according to
the laws of the decedent’s domicile; provided, however, that the value of
such stocks, bonds, other securities, money, debts and other choses in action
in this State, to the knowledge of the person holding or owing the same, is
less than one thousand dollars. When the value of such stocks, bonds, other
securities, money, debts and other choses in action is one thousand dotlars
or more, such payment or delivery of such stocks, bonds, other securities,
money, debts and other choses in action may be made upon the expiration
of such ninety-day period after the transferor shall have given public
notice of his intention to make such transfer by publication thereof once a
week for four successive weeks in a newspaper of general circulation in the
city, town or county wherein the transferor resides or has its principal
place of business, and after the lapse of thirty days from the completion
of such publication, and provided, in either case, that at the time of such
payment or delivery, the transferor has no actual notice of the appointment,
within this State, of a personal representative for such decedent.

This section shall be construed as providing, as to the payment of
money and the delivery of personal property belonging to nonresident
decedents or their estates, optional methods of procedure in addition to
those otherwise permitted or provided by law, and shall not as to such
matters add any limitations or restrictions to existing law.

§ 64.1-131. When estate committed to sheriff or sergeant; when
court may allow another to qualify.—If at any time two months elapse
without there being an executor or administrator of the estate of a dece-
dent, except during a contest about the decedent’s will or during the in-
fancy or absence of the executor, the court, or the clerk thereof, in which
or by whose clerk the will was admitted to record or which has jurisdiction
to grant administration on the decedent’s estate shall, on the motion of any
person, order the sheriff of the county or the sergeant of the city to take
into his possession the estate of such decedent and administer the same.
Thereupon such sheriff or sergeant, without taking any other oath of
office or giving any other bond or security than he may have before taken
or given, shall be the administrator, or administrator de bonis non, of the
decedent, with his will annexed, if there be a will, and shall be thence-
forward entitled to all the rights and bound to perform all the duties of
such administrator. The court may, however, at any time afterwards, on
reasonable notice to such sheriff or sergeant, revoke such order made by it
or its clerk and the court may in a proper case after reasonable notice to the
parties in interest permit the sheriff or sergeant to resign and allow any
other person to qualify as executor or administrator. When an estate is
committed to the sheriff or sergeant on the motion of a creditor or other
person, the State tax due for such administration shall be paid by the party
upon whose motion the estate was committed and the same shall be repaid
to him by the sheriff or sergeant out of the first funds received by him for
such estate.

§ 64.1-132. Disposition by sheriff or sergeant of property when no
person entitled thereto.—If any sheriff or sergeant shall lawfully come into
possession of any money or other personal property of any such deceased
person whose death shall have occurred after October first, nineteen hun-
dred forty-six, and no person entitled by law to such money or property
is known or can by reasonable diligence be ascertained, such property shall
within two years thereafter be sold by such sheriff or sergeant at public
auction after posting notices in three or more public places in his county
or city for ten days, or in his discretion after advertisement for ten days by
one insertion in a newspaper published or having general circulation in
such county or city, and the proceeds thereof together with any such money,
after the payment of all necessary expenses, shall be paid by such sheriff
or sergeant into the State treasury to the credit of the Literary Fund.

Article 3.
Appraisement, List of Heirs and Affidavit of Real Estate.

§ 64.1-133. Appraisement of estate of decedent.—Every court or
clerk by whose order any person is authorized to act as a personal represent-
ative shall, if requested by the personal representative or if the court or
clerk deem it proper appoint three or more disinterested and competent
appraisers who after taking an oath for the purpose shall appraise all
property, both real and personal, which is under the supervision and con-
trol of the personal representative, and such other property as the personal
representative may request. If appraisers are appointed, the personal rep-
resentative shall request appraisement of all the property of the estate of
which he has knowledge. The appraisers shall receive reasonable com-
pensation for their services, the amount thereof to be subject to the
approval of the commissioner of accounts. The inventory and appraise-
ment shall be signed by them and returned to the commissioner of accounts
of such court, who shall inspect the same, see that it is in proper form and,
within ten days after it is received and approved by him, deliver it to the
clerk of such court, who shall record the same with the certificate of
approval. The date of return of an appraisement shall be entered by the
commissioner in his record book. Every such appraisement shall be prima
facie evidence of the value of the estate embraced therein for all purposes
and that it came to the hands of the personal representative.

§ 64.1-134. List of heirs——Every personal representative of a de-
cedent, whether such decedent died testate or intestate, shall, at the time of
his qualification, furnish the court or clerk before which or before whom he
qualifies and the clerk of court of any city or county wherein deeds are
recorded. in which the decedent died seized of any real estate, a list con-
taining his name, with his post office and street address, if any, and:

(1) The names and, as far as possible, the ages and addresses of the
heirs of his decedent, if intestate; or, if his decedent died testate, the names,
ages and addresses of those persons who would have been the decedent’s
heirs had he died intestate; and

(2) The degree of kinship of each to the decedent, accompanied by
affidavit that he has made diligent inquiry as to such names, ages and
addresses and that he believes such list to be true and correct.

The clerk shall record such list in the will book and index in the name
of the decedent as grantor and the heirs as grantees. Such list so made and
recorded shall be prima facie evidence of the facts therein stated. The cost
of recording such list shall be deemed a part of the cost of administration
and be paid out of the estate of the decedent. Such personal representative
shall not receive any compensation for his services until such list is filed
and recorded, unless he files an affidavit before the commissioner of
accounts that the heirs are unknown to him and that after diligent inquiry
he isl been unable to ascertain their names, ages or addresses, as the case
may be.

§$ 64.1-135. Affidavit relating to real estate of intestate decedent.
—Upon the death intestate of a person owning real estate, any person
having an interest therein, including a personal representative if a quali-
fication be had, may execute an affidavit, on a form provided by the clerk
of the court, setting forth briefly (1) the real estate owned by the decedent
at the time of his death situated within the city or county where such
affidavit is to be recorded; (2) the intestacy and (8) the names and last
known addresses of the heirs at law. The clerk of the court of the county or
city in which deeds are admitted to record and in which such real estate or
any part thereof is located, shall, upon the payment of the fees provided by
law, record and index the same as wills are recorded and indexed.

The clerk of the court of the county or city where such affidavit is
recorded shall transmit an abstract of said affidavit to the commissioner of
the revenue of said county or city as in the case of deeds conveying real
estate. Upon receipt thereof by said commissioner, such real estate may be
transferred upon the land books and assessed in accordance therewith.
§ 64.1-136. Powers of executor before qualification.—No person ap-
pointed by a will executor thereof shall have the powers of executor until
he qualifies as such by taking an oath and giving bond in the court in which
or before the clerk by whom the will or an authenticated copy thereof is
admitted to record, except that he may provide for the burial of the testator,
pay reasonable funeral expenses and preserve the estate from waste.

64.1-137. Death of sole executor; his executor has no authority.—
The executor of an executor shall have no authority as such to administer
the estate of the first testator, but, on the death, resignation or removal of
the sole surviving executor of any last will, administration of the estate of
the first testator, not already administered, may be granted, with the will
annexed, to such person as the court shall think fit to appoint.

§ 64.1-138. Effect of marriage of female personal representative.—
When an unmarried woman who is a personal representative, either alone or
jointly with another, shall marry, her husband shall not be a personal
representative in her right and the marriage shall not operate as an
extinguishment of her authority.

§ 64.1-139. Duty of every personal representative.—Every personal
representative shall administer, well and truly, the whole personal estate
of his decedent.

§ 64.1-140. Duty of fiduciaries as to joint bank accounts.—Personal
representatives, or other fiduciaries charged with the administration of
the estate of a decedent shall be under no obligation unless requested in
writing by someone in interest to assert a claim on behalf of their decedent’s
estate to any funds which may, at the time of his death, be on deposit in
any bank, trust company, or other depository, in the name of said decedent
and one or more other persons when the terms of the contract of deposit,
or the laws of the state in which such funds are deposited, permit such
bank, trust company or other depository to pay (1) to either of such
persons, whether the other, or others, be living or not, or (2) to a named
survivor or survivors.

The personal representative, or his attorney, shall acknowledge receipt
of such request in writing within ten days of receipt of such notice, and if
the personal representative be the same person as the surviving cotenant
of such funds, said personal representative shall segregate such funds,
and place same in an interest bearing account, awaiting an appropriate
decree concerning the ultimate disposition of same, and said personal
representative-cotenant shall not use such funds for his own personal
account.

If the personal representative-cotenant, accedes to the request that
such funds be treated as estate funds, said personal representative may
distribute same in accordance with the terms of the will without any decree
of court referred to above.

§ 64.1-141. Duties of fiduciaries with respect to certain obliga-
tions of the United States.—Personal representatives and other fiduciaries
shall be under no obligation unless requested in writing by some one in
interest to assert claim to or seek to recover the whole or any part of
funds arising from the redemption or payment of bonds of the United
States of America, which are paid or payable to others under applicable
laws of the United States or rules and regulations of the Treasury Depart-
ment of the United States made pursuant thereto.

§ 64.1-142. Exercise of discretionary powers by surviving executors
or administrators with the will annexed.—When discretionary powers are
conferred upon the executors of any will heretofore or hereafter executed
and some but not all of such executors die, resign or become incapable
of acting, the executors or executor remaining shall thereafter exercise
the discretionary powers given in such will, unless it be expressly pro-
vided in such will that the discretionary powers cannot be exercised by
any number less than all of the original executors named.

When discretionary powers are conferred upon the executors of any
will heretofore or hereafter executed and all of the executors named in
such will die, resign or become incapable of acting, or when there is only
one executor named and such sole executor dies, resigns or becomes in-
capable of acting, then in such event the administrators with the will annex-
ed or administrator with the will annexed appointed by the court shall
exercise the discretionary powers vested in the original executors or exec-
utor, unless the discretionary powers in such will are by express language
limited or restricted to the executors or executor named therein.

§ 64.1-143. When personal representative may renew note, etc., of
decedent.—In all cases when a decedent is the maker or one of the mak-
ers, a surety or one of the sureties or an endorser or one of the endorsers
of any note or other obligation for the payment of money, which is due
or past due at the death of the decedent, or shall thereafter become due
prior to the settlement of the estate of the decedent, the decedent’s per-
sonal representative may execute as such personal representative a new
note, bond or other obligation for the payment of money, in the same
capacity as the decedent was obligated, for the same amount or less but
not greater than the sum due, principal and interest, on the original
obligation, which shall be in lieu of the original obligation of the decedent,
whether made payable to the original holder or another. And such rep-
resentative may renew such note, bond or other obligation for the pay-
ment of money from time to time, and such note, bond or other obligation
so executed by the personal representative shall be binding upon the
estate of decedent to the same extent and in the same manner and with
the same effect that the original note, bond or other obligation so executed
by the decedent was binding upon his estate; provided, that the time for
final payment of the note, bond or other obligation for the payment of
money, or any renewal thereof by the personal representative shall not
extend beyond a period of two years from the qualification of the original
personal representative as such upon the estate of the decedent, except
upon the order of a court of competent jurisdiction.

The execution of any note, bond or other obligation for the payment
of money by the personal representative mentioned in the first para-
graph of this section shall not be held or construed to be binding upon
the personal representative personally.

§ 64.1-144. Suits upon judgment and contracts of decedent.—A
personal representative may sue or be sued upon any judgment for or
against or any contract of or with his decedent.

64.1-145. For goods carried away, waste, or damage to estate of
or by decedent.—An action at law for money damages may be maintained
by or against a personal representative for the taking or carrying away
of any goods or for the waste or destruction of, or damage to, any estate
of or by his decedent.

Article 5.

Power with Respect to Real Estate.

§ 64.1-146. Representatives to sell real estate devised to be sold, and
receive certain rents.—Real estate devised to be sold shall, if no person
other than the executors be appointed for the purpose, be sold and con-
veyed and rents and profits of any real estate which executors are au-
thorized by the will to receive shall be received by the executors who
qualify, or the survivor of them. If none qualify, or those qualifying die,
resign or are removed before the trust is executed or completed, the
administrator with the will annexed shall sell or convey the lands so
devised to be sold and receive the proceeds of sale, or the rents and
profits aforesaid, as an executor might have done.

§ 64.1-147. Administrator with will annexed may sell real estate.—
When any will heretofore or hereafter executed gives to the executor or
executors named therein power to sell the testator’s real estate and
such executor or executors die, resign or become incapable of acting and
an administrator or administrators with the will annexed are appointed,
such administrator or administrators with the will annexed may sell such
real estate unless it is expressly provided to the contrary in such will.

§ 64.1-148. Representative may execute deed pursuant to written
contract of deceased.—When any deceased person shall have executed and
delivered a bona fide written contract of sale, purchase option, or other
agreement binding such deceased person, his heirs, personal representa-
tives, or assigns, to convey any real property or interest therein, his
personal representatives may, upon full compliance by the purchaser with
the terms and conditions of such contract, option or agreement execute a
deed and do all things necessary to effect the transfer of title to such real
property or interest therein to the purchaser and such transfer shall be as
effective as if it had been made by the deceased obligor. The contract option
or agreement shall be attached to any deed executed by a personal repre-
sentative pursuant to this section and such contract, option or agreement
shall be spread upon the records. Any personal representative, duly qualified
in any other state, or in the District of Columbia, upon making oath that
the decedent owed no debts in this State and posting bond upon such terms
and in such amount as may be fixed by the clerk, but not less than the value
of the decedent’s interest to be conveyed, may convey under the provisions
of this section without ancillary administration.

§ 64.1-149. Validation of certain conveyances by foreign executor.—
Every conveyance of real estate within this State made prior to June
thirty, nineteen hundred sixty, by the executor of a will which, prior
to such sale, has been probated according to the laws of another state
shall, without the qualification of the executor in this State, be as valid
and effectual to pass the title of such real estate as if the executor named
in such will and making such conveyance had qualified in this State, in
every case in which the will under which the executor acted was duly
executed according to the laws of this State as a valid will and confers
upon the executor the power to convey the real estate so conveyed and
an authenticated copy of such will has been admitted to probate in this
State in the county or city in which the real estate or any part thereof
is situated.

§ 64.1-150. When similar conveyances in future valid.—Every such
conveyance of real estate within this State as is mentioned in the preced-
ing section made on or after June thirty, nineteen hundred sixty,
by such executor shall be likewise valid and effectual to pass the title
of such real estate if the conditions set forth in the preceding section
are complied with and in addition thereto an ancillary administrator upon
the estate of such decedent has been duly appointed and qualified who
shall sign and acknowledge the deed by which such real estate is con-
veyed.

§ 64.1-151. To pay over proceeds and rents to persons entitled.—
It shall be one of the duties of an executor or administrator, by virtue
of his office, and as such embraced by his official bond, faithfully to pay
the rents and profits or proceeds of sale of real estate which may lawfully
come to his hands, or to the hands of any person for him, to such persons
as are entitled thereto.
Article 6.
Assets and Debts.

§ 64.1-152. Debtor’s appointment.—The appointment of a debtor as
executor shall not extinguish the debt.

§ 64.1-153. What estate not to be sold.—Unless it be necessary for
the payment of funeral expenses, charges of administration or debts, the
aia ea representative shall not sell estate which the will directs not to
be sold.

§ 64.1-154. What goods personal representative to sell; when and
how.—Of the goods not mentioned in the preceding section (§ 64.1-153),
the personal representative shall, subject to the provisions of Title 34,
sell, @sS soon as convenient, at public auction or private sale, such as are
likely to be impaired in value by keeping, giving a reasonable credit
except for small sums, and taking bond with good security.

64.1-155. When to sell the other goods.—If the goods so sold be
not sufficient to pay the funeral expenses, charges of administration, debts
and legacies, the personal representative shall sell at public auction or
private sale so much of the other goods and chattels as may be neces
to pay the same, having regard to the privilege of specific legacies and
tothe provisions of Title 34.

§ 64.1-156. Estate for another’s life, assets —Any estate for the
life of another shall go to the personal representative of the party en-
titled to the estate and be assets in his hands, and be applied and dis-
tributed as the personal estate of such party.

§ 64.1-157. Order in which debts of decedents to be paid—When the
assets of the decedent in the hands of his personal representative, after
the payment of funeral expenses, not to exceed three hundred dollars,
and charges of administration, are not sufficient for the satisfaction of
all dermands against him, they shall be applied:

First. To debts due the United States;

Second. To claims of physicians, not exceeding seventy-five dollars,
for services rendered during the last illness of the decedent; and accounts
of druggists, not exceeding the same amount, for articles furnished during
the same period; and claims of professional nurses or any other person
rendering service as a nurse to the decedent at his request or the request
of some member of his immediate family, not exceeding the same amount,
for services rendered during the same period; and accounts of hospitals
and sanitariums, not exceeding two hundred dollars, for articles furnished
and services rendered during the same period;

Third. To debts due this State;

Fourth. To taxes and levies assessed upon the decedent previous
to his death and the lien for such taxes shall not be considered as giving
pEOry over the amounts provided in paragraphs first, second and third
hereof ;

Fifth. To debts due as trustees for persons under disabilities, as
receiver or commissioner under decree of court of this State, as personal
representative, guardian or committee, when the qualification was in this
State, and for moneys collected by anyone to the credit of another and
not paid over, regardless of whether or not a bond has been executed for
the faithful performance of the duties of the party so collecting such
funds;

Sixth. To all other demands, except those in the next class; and
Seventh. To voluntary obligations.

§ 64.1-158. Creditors to be paid in order of their classification;
class paid ratably; when representative not liable for paying debt of
inferior dignity.—No payment shall be made to creditors of any one class
until all those of the preceding class or classes shall be fully paid; and
when the assets are not sufficient to pay all the creditors of any one
class, the creditors of such class shall be paid ratably; but a personal
representative who, after twelve months from his qualification, pays a
debt of his decedent, shall not thereby be personally liable for any debt
or demand against the decedent of equal or superior dignity, whether it be
of record or not, unless before such payment he shall have notice of
such debt or demand.

§ 64.1-159. Lien acquired in lifetime of decedent not affected.—
Nothing contained in the two preceding sections shall affect any lien ac-
quired in the lifetime of the decedent.

Article 7.
Apportionment of Estate and Inheritance Taxes.

§ 64.1-160. Definitions—For the purposes of this article the term
“nersons interested in the estate” shall include all persons, firms and
corporations who may be entitled to receive or who have received any
property or interest which is required to be included in the gross estate of
the decedent or any benefit whatsoever with respect to any such property
or interest, whether under a will or intestacy or by reason of any transfer,
trust, estate, interest, right, power or relinquishment of power, taxable
under any estate tax law of the United States heretofore or hereafter
enacted or under § 58-162.

§ 64.1-161. Appointment required——Whenever it appears upon
any settlement of accounts or in any other appropriate action or proceeding
that an executor, administrator, curator, trustee or other person acting in
a fiduciary capacity has paid an estate tax levied or assessed under the
provisions of any estate tax law of the United States heretofore or hereafter
enacted or under § 58-162, upon or with respect to any property required
to be included in the gross estate of a decedent under the provisions of any
such law, the amount of the tax so paid shall be prorated among the
persons interested in the estate to whom such property is or may be trans-
ferred or to whom any benefit accrues. Such apportionment shall be made
in the proportion that the value of the property, interest or benefit of each
such person bears to the total value of the property, interests and benefits
received by all such persons interested in the estate, except that in making
such proration each such person shall have the benefit of any exemptions,
deductions and exclusions allowed by such law in respect of such person or
the property passing to him; and except that notwithstanding the pre-
ceding provisions of this sentence in cases where a trust is created, or other
provision made whereby any person is given an interest in income, or an
estate for years, or for life, or other temporary interest or estate in any
property or fund, the tax on such temporary interest or estate shall be
charged against and paid out of the corpus of such property or fund with-
out apportionment between temporary interests or estates and remainders
thereafter.

§ 64.1-162. Recovery by executor when part of estate not in his
hands.—In all cases in which any property required to be included in the
gross estate does not come into the possession of the executor, adminis-
trator or other fiduciary as such, he shall be entitled, and it shall be his
duty, to recover from whomsoever is in possession, or from the persons
interested in the estate, the proportionate amount of such tax payable by
the persons interested in the estate with which such persons interested in
the estate are chargeable under the provisions of this article.

§ 64.1-163. Transfers not required until tax ascertained or security
given.—No executor, administrator or other person acting in a fiduciary
capacity shall be required to transfer, pay over or distribute any fund or
property with respect to which a federal estate tax is imposed until the
amount of such tax or taxes due from the devisee, legatee, distributee or
other person to whom such property is transferred is paid to such fiduciary,
or, if the apportionment of tax has not been determined, adequate security
is furnished by the transferee for such payment.

§ 64.1-164. Application of article to State taxes.—This article shall
also apply to State taxes assessed and paid under the provision of § 58-162
which is to the effect that the minimum State tax upon the transfer at
death of the estates of resident decedents shall not be less than the federal

credit.

§ 64.1-165. Contrary provisions of will or other instrument to
govern.—But it is expressly provided that the foregoing provisions of this
article are subject to the following qualification, that none of such pro-
visions shall in any way impair the right or power of any person by will or
by written instrument executed inter vivos to make direction from the pay-
ment of such estate or inheritance taxes and to designate the fund or funds
or property out of which such payment shall be made; and in every such
case the provisions of the will or of such written instrument executed inter
vivos shall be given effect to the same extent as if this article had not been

enacted.
Article 8.
Liability of Representatives; Administrators de Bonis Non.

§ 64.1-166. Transfer of assets to administrator de bonis non; effect
thereof.—When the powers of a personal representative have ceased and
there be an administrator de bonis non of the decedent’s estate, it shall be
lawful, with the consent of the court in which or before whose clerk the
administrator de bonis non qualified, for the personal representative to pay
and deliver to such administrator de bonis non the assets of the decedent,
whether converted or not, for which such former personal representative is
responsible; but such consent shall not be given unless the administrator
de bonis non shall have given, or shall give, a bond sufficient to cover the
additional assets, so to be paid or delivered to him. The administrator de
bonis non shall administer the same as assets received in due course of
administration and his receipt therefor shall be a voucher in the settlement
of the accounts of the former personal representative and shall exempt
such personal representative from all liability for the assets so lawfully
paid over and delivered. But this section shall not be construed as exempt-
ing such former personal representative and his sureties from liability
for any breach of duty with respect to such assets committed by him
before they were so paid over and delivered by him as aforesaid; nor as
authorizing a suit by the administrator de bonis non against such per-
sonal representative or his estate to compel the payment and delivery to
him of such assets of the decedent as were converted by the representative.

§ 64.1-167. Suit against representative of executor in his own
wrong, or rightful executor, etc., for waste.—A suit may be maintained
against the personal representative of an executor in his own wrong or the
personal representative of a rightful executor or administrator by whom
any waste may have been committed.

§ 64.1-168. When administrator de bonis non may have scire facias.
—When a suit is pending or a judgment or decree has been rendered in this
State in favor of a personal representative upon a contract made or for a
cause of action which accrued in the lifetime of the decedent, the adminis-
trator de bonis non of such decedent may sue forth a scire facias to have
execution upon such judgment or decree or to revive and prosecute to
judgment or decree the suit so pending, if the personal representative who
brought it could have maintained the same.

§ 64.1-169. When suit may be brought on bond of personal repre-
sentative.—When an execution on a judgment or decree against a personal
representative is returned without being satisfied, there may be forthwith
brought and prosecuted an action against the obligors in any bond given by
such personal representative for the faithful discharge of his duties.
§ 64.1-170. When representative and sureties not chargeable beyond
assets; procedure in actions against them.—No personal representative or
any surety of his shall be chargeable beyond the assets of the decedent by
reason of any omission or mistake in pleading or false pleading of such
representative; and in the action allowed by the preceding section the
defendants may plead any pleas and offer any evidence which would be
admissible in an action against a personal representative suggesting a
devastavit.

Article 9.

Settlement of Accounts and Distribution. .

§ 64.1-171. Proceedings for receiving proof of debts by commission-
ers.—Any commissioner of accounts shall on motion of the personal repre-
sentative of a decedent, or any creditor, legatee or distributee of the dece-
dent, appoint a time and place for receiving proof of debts and demands
against the decedent or his estate and he shall publish notice thereof once
in some newspaper of general circulation in the county or city wherein the
fiduciary qualified, the publication of which shall be at least ten days before
the date set for the hearing; and at least ten days before the date fixed for
the hearing he shall also post a notice of the time and place at the front
door of the courthouse of the court of the county or city wherein the
fiduciary qualified.

§ 64.1-172. Report of debts when and how made.—The commis-
sioner may adjourn from time to time for receiving such proof and shall,
within sixty days from the time first appointed for receiving such proof or
the last adjournment of any hearing thereon, make out an account of all
such debts or demands as may appear to him to be sufficiently proved,
stating separately those of each class.

64.1-173. How claims filed before commissioners; time within
which statutes of limitation not to run.—Any person having any such debt
or demand and desiring to prove the same shall file his claim or a written
statement thereof before the commissioner, who shall endorse thereon the
date of the filing and sign the endorsement in his official character; and the
time that elapses between such filing and the termination of the proceed-
ings commenced under § 64.1-171 shall not be computed as a part of the
time within which, under any statute or rule of law, it may be necessary, in
order to prevent a bar of the claim, to bring any action or institute any
proceeding for the recovery or enforcement of such claim.

§ 64.1-174. When court to order payment of debts.—When a report
of the accounts of any personal representative and of the debts and demands
against the decedent’s estate shall be confirmed as provided in Chapter 2 of
Title 26, the court shall order to be applied to the payment of such debts
and demands so much of the estate in the hands of such representative, and
to such creditors, as shall appear proper, reserving, when it seems to the
court reasonable to do so to meet a claim of a surety for the decedent or any
other contingent claim against the estate, the proof of which has to be
deferred, or to meet any other claim not finally passed upon, such sum as it
may deem sufficient to pay it or a proportion thereof equal to what is
ordered to be paid to other creditors of the same class should the payment
of it or such proportion afterwards appear proper.

§ 64.1-175. How sum reserved on contingent claim to be paid.—
Upon any such claim being allowed subsequent to any dividend, there shall
be ordered to be paid out of the estate remaining in the hands of the
representative or under the control of the court, without regarding any
debt of superior dignity for which there may have been no such reservation,
the amount of such claim, or a proportion thereof equal to what shall have
been paid to other creditors of the same class, if there be enough remaining
a pay a same, or such proportion; but the former dividend shall not be
§ 64.1-176. How assets applied at subsequent dividends.—When at
the time of any dividend the whole assets are not distributed or when
further assets afterwards come to the hand of the personal representa-
tive, if, after paying such proportion as is mentioned in the two preceding
sections on any claim allowed subsequent to such dividend, there remain
a@ surplus, it shall be divided among all the creditors who shall have
proved debts and demands against the decedent’s estate, in the order and
proportions in which they may be entitled.

$ 64.1-177. When distribution may be required; refunding bond.—
A personal representative shall not be compelled to pay any legacy given
by the will or make distribution of the estate of his decedent until after
six months from the date of the order conferring authority on the first
executor or administrator of such decedent and, except when it is other-
wise specifically provided, he shall not then be compelled to make such
payment or distribution until the legatee or distributee shall give him a
bond, executed by himself or some other person, with sufficient surety,
with condition to refund a due proportion of any debts or demands which
may afterwards appear against the decedent and of the costs attending
their recovery. Such bond shall be filed and recorded in the clerk’s office
of the court which may have decreed such payment or distribution or in
which the accounts of such representative may be recorded.

§ 64.1-178. When fiduciaries are protected by refunding bonds.—
If any personal representative pay any legacy given by the will or dis-
tribute any of the estate of his decedent and there be filed in the proper
clerk’s office a proper refunding bond for what is so paid or distributed,
with security therein sufficient at the time of taking it, such personal
representative shall not, on account of what is so paid or distributed, be
personally liable for any debt or demand against the decedent, whether
it be of record or not, unless, within six months from his qualification or
before such payment or distribution, he shall have had notice of such
debt or demand; but if any creditor of the decedent thereafter estab-
lish his debt or demand by judgment or decree therefor or by its being
allowed in a commissioner’s report which is confirmed, a suit may be
maintained on such refunding bond, in the name of the obligee, or his
personal representative, for the benefit of such creditor, and a recovery
shall be had thereon to the same extent that would have been had if such
obligee or his personal representative had satisfied such debt or demand.

§ 64.1-179. Order to creditors to show cause against distribution of
estate to legatees or distributees; their liability to refund.—When a report
of the accounts of any personal representative and of the debts and
demands against his decedent’s estate has been filed in the office of a
clerk of a court, whether under §§ 64.1-171 and 64.1-172 or in a suit in
chancery, the court or the judge in vacation, after six months from the
qualification of the personal representative, may, on motion of the personal
representative or on motion of a legatee or distributee of his decedent, make
an order for the creditors and all other persons interested in the estate
of the decedent to show cause on some day to be named in the order
against the payment and delivery of the estate of the decedent to his
legatees or distributees. A copy of the order shall be published once a
week for two successive weeks, in one or more newspapers, as the court
directs. On or after the day named in the order the court in term, or
the judge in vacation, may order the payment and delivery to the legatees
or distributees of the whole or a part of the money and other estate
not before distributed, with or without a refunding bond, as it prescribes;
but every legatee or distributee to whom any such payment or delivery is
made, and his representatives, may, in a suit brought against him within
five years afterward, be adjudged to refund a due proportion of any claims
enforceable against the decedent or his estate and the costs attending
their recovery.

Any such personal representative who has in good faith complied
with the provisions of this section and has, in compliance with the order
of the court, paid and delivered the money or other estate in his hands
to whomsoever the court has adjudged entitled thereto shall be fully
protected against the demands of creditors and all other persons. ,

§ 64.1-180. Form for notice to show cause under § 64.1-179.—Any
notice to show cause published or posted in pursuance of the requirements
of § 64.1-179 may be substantially in the form following:

Virginia: In the wu... ccssscccecesseseees Court Of .u.c.......cscesscsssccesesecseeees
the ........ day of ........
Re? .....cceeseeeeee , deceased.
SHOW CAUSE ORDER
It appearing that a report of the accounts of ................. , Personal
Representative of the estate of ................ , deceased, and of the debts and

demands against (his) (her) estate has been filed in the Clerk’s Office,
and that six months have elapsed since the qualification, on motion
) , (a distributee;) (a legatee;) (the personal representative ;)
IT IS ORDERED that the creditors of, and all others interested in, the
estate do show cause, if any they can, on the ........ day of ........ (before this
Court at its courtroom,) (before the Judge of this Court in vacation
at ........ ») against the payment and delivery of the Estate of ................ ,
deceased, to (the distributees) (the legatees) (without requiring refund-
ing bonds,) (with or without refunding bonds as the Court prescribes).
Copy—tTeste:

CHAPTER 7.

LIABILITY OF REAL ESTATE TO DEBTS.

§ 64.1-181. Real estate of decedent assets for payment of debts.—
All real estate of any person who may hereafter die, as to which he may
die intestate, or which, though he die testate, shall not by his will be
charged with or devised subject to the payment of his debts, or which
may remain after satisfying the debts with which it may be so charged
or subject to which it may be so devised, shall be assets for the payment
of the decedent’s debts and all lawful demands against his estate, in
the order in which the personal estate of a decedent is directed to be
applied.

§ 64.1-182. How much assets administered.—Such assets, so far as
they may be in the hands of the personal representative of the decedent,
may be administered by the court in the office whereof there is or may be
filed, under Chapter 2 of Title 26, a report of the accounts of such rep-
resentative, and of the debts and demands against the decedent’s estate,
or they may, in any case, be administered by a court of equity.

§ 64.1-183. When heir or devisee liable for value of real estate;
when purchasers not liable; when premature conveyances to become
valid. Any heir or devisee who shall sell and convey any real estate,
which by this chapter is made assets, shall be liable to those entitled
to be paid out of the assets, for the value thereof, with interest; in such
case, the estate conveyed shall not be liable if the conveyance was bona
fide, and at the time of such conveyance no suit shall have been com-
menced for the administration of the assets nor any reports have been
filed as aforesaid of the debts and demands of those entitled. But no
alienation of such estate, made by an heir or devisee, within one year
after the death of the testator or intestate, shall be valid against creditors
of such testator or intestate, although no such suit shall have been com-
menced or report of debts and demands filed within such year, except
as provided in § 641-184. Any conveyance heretofore or hereafter made
within one year after the death of a decedent shall, after the expiration
of said year, be valid to all intents and purposes as if made after the
expiration of said year, if at the expiration of said year no such guit
shall have been commenced.

§ 641-184. When sale within year valid against creditors; pro-
ceeds paid to special commissioner.—Any alienation of such estate made
within one year after the death of the testator or intestate shall be valid
against creditors of such testator or intestate, if such estate be sold and
conveyed under and pursuant to decrees of a court of competent jurisdic-
tion in a proper suit for partition, sale of lands of persons under dis-
ability, or other judicial sale, and the net proceeds of sale thereof be paid
to a special commissioner appointed by the court for the purpose.

The net proceeds of sale shall be the purchase price for such estate
including money, deferred purchase money obligations, and other secur-
ities, remaining after the payment of the expenses of sale ordinarily paid
by the vendor in sales of such estates and the discharge of such indebted-
ness and encumbrances for which, by law, such estate is primarily liable.

The net proceeds so paid shall be held by the special commissioner
appointed by the court for the purpose, in lieu and in place of such
estate subject to the claims of creditors of the testator or intestate in the
same manner and to like extent in every respect as such estate would have
been if not sold, for a period ending no sooner than one year after the
death of the testator or intestate, at which time, if no claim shall have
been made or asserted against the net proceeds, they shall be distributed
by the special commissioner to those entitled thereto in proportion to
the interest of each in such estate; provided that as to any sale made in
conformity with the provisions of this section a purchaser of any land
so sold shall not be required to see to the application of the purchase
money.

The special commissioner who receives and holds such net proceeds
shall give such bond as may be required by the court appointing him.

§ 64.1-185. Heir or devisee liable in equity only; judgment against
representative as evidence.—An heir or devisee may be sued in equity by
any creditor to whom a claim is due for which the estate descended or
devised is liable, or for which the heir or devisee is liable in respect to
such estate; and he shall not be liable to an action at law for any matter
for which there may be redress by such suit in equity. And any judg-
ment or decree for such claim hereafter rendered against the personal
representative of the decedent shall be prima facie evidence of the claim
against the heir or devisee in such suit in equity.

§ 64.1-186. When suit in equity not to be brought to enforce claim
of less than twenty dollars.—No suit in equity shall be brought for the
recovery or enforcement of any such claim the principal whereof does not
exceed twenty dollars, unless the person liable or whose estate is liable,
being a resident of this State, shall have been notified, at least thirty days
before the suit was brought, that such suit would be brought, if the
amount of the claim was not paid within such time.

§ 64.1-187. Lien acquired in lifetime of decedent not affected.—
This chapter shall not affect any lien, by judgment or otherwise, acquired
in the lifetime of the decedent.

3. All acts and parts of acts, all sections of the Code of Virginia, and all
provisions of municipal charters inconsistent with the provisions of this
act are, except as otherwise provided, repealed to the extent of such
inconsistency.

4. The repeal of Title 64 effective as of October 1, 1968, shall not affect
any act or offense done or committed, or any penalty or forfeiture incurred,
or any right established, accrued or accruing on or before such date, or any
prosecution, suit or action pending on that date. Except as in this act
otherwise provided, neither the repeal of Title 64 of the Code of Virginia
nor the enactment of Title 64.1 shall apply to offenses committed prior to
October 1, 1968, and prosecutions: for such offenses shall be governed by
the prior law, which is continued in effect for that purpose. For the pur-
poses of this act, an offense was committed prior to October 1, 1968, if any
of the essential elements of the offense occurred prior thereto.
Whenever in Title 64.1 any of the conditions, requirements, provisions
or contents of any section, article or chapter of Title 64 as such title existed
prior to October 1, 1968, are transferred in the same or in modified form
to a new section, article or chapter of Title 64.1, and whenever any such
former section, article or chapter of Title 64 is given a new number in Title
64.1, all references to any such former section, article or chapter of Title 64
appearing elsewhere in the Code of Virginia than in Title 64.1 shall be
construed to apply to the new or renumbered section, article or chapter
containing such conditions, requirements, provisions or contents or portions
ereo
6. It is the intention of the General Assembly that this act shall be
liberally construed to effect the purposes set out herein, and if any clause,
sentence, paragraph or section of this act shall ever be declared unconsti-
tutional, it shall be deemed severable, and the remainder of this act shall
continue in full force and effect.

7. This act shall become effective on October 1, 1968.