ART. 1. CHAPTER VI. OF WILLS AND TESTAMENTS; OF THE DISTRIBUTION TITLE I.-OF WILLS AND TESTAMENTS OF REAL AND PERSONAL PROP- TITLE II.-OF GRANTING LETTERS TESTAMENTARY AND OF ADMINISTRA- TION. TAKING AND RETURNING INVENTORIES, IN THE PAYMENT OF DEBTS AND LEGACIES, IN ACCOUNTING, AND IN MAKING TITLE IV.-OF THE POWERS AND DUTIES OF EXECUTORS AND ADMINIS THE REAL ESTATE OF THEIR TESTATOR OR INTESTATE. ISTRATORS. TITLE VI.-OF PUBLIC ADMINISTRATORS. TITLE I. Of Wills and Testaments of real and personal Property, and the Proof of them. ART. 1.-Of wills of real property, and the proof of them. ART. 2.-Of wills of personal property, and the probate of them. ART. 3.-General provisions applicable to wills of real and personal property. ARTICLE FIRST. OF WILLS OF REAL PROPERTY, AND THE PROOF OF THEM. SEC. 1. All persons except idiots, etc., may devise real estate. 2. Every interest in real property descendible to heirs, may be devised. 3. To whom devises may be made; devises to corporations, when valid. [56] devise. [57] SECTION 1. All persons, except idiots, persons of unsound mind who may and infants, may devise their real estate, by a last will and testament, duly executed according to the provisions of this title. [Thus amended by L. 1867, ch. 782.] 1 Redf., 136; 51 Barb., 202; 54 Barb., 286; 50 Barb., 671; 17 Barb., 256, 276; 16 Barb., [1 R. L., 364, §§ 1 and 5.] be devised. § 2. Every estate and interest in real property descendible to What may heirs, may be so devised. 17 Barb., 84; 15 Barb, 139; 2 Wend., 166, 517; 7 Cow., 243; 10 Paige, 147; 34 N. Y., 612; [The same.] §3. Such devise may be made to every person capable by law who may of holding real estate; but no devise to a corporation shall be valid, take by de TITLE 1. unless such corporation be expressly authorised by its charter, or by statute, to take by devise. Devises to aliens. 12 N. Y., 379; 5 N. Y., 239; 32 52 Barb., 309; 4 Abb. Ct. App. Dec., 231; 46 N. Y., 163; 34 N. Y., 584, 612; 58 N. Y., 676; 16 Abb., N. S., 128; 59 N. Y., 330; 79 Ń. Y., 327; 81 N. Y., 131; 23 N. Y., 377; 31 Barb., 562; 27 Barb., 408; 4 Paige, 422; 3 Sandf., 360; 52 N. Y., 332, 450, 530; 26 Hún, 651. [The same.] § 4. Every devise of any interest in real property, to a person who, at the time of the death of the testator, shall be an alien, not authorized by statute to hold real estate, shall be void. The interest Barb., 266; so devised, shall descend to the heirs of the testator; if there be no 16 Barb., 601; 9 such heirs competent to take, it shall pass under his will to the Johns. Ch. residuary devisees therein named, if any there be, competent to take such interest. Barb., 50; 6 R., 360; 12 Abb., N. S., 472; 88 N. Wills of real estate how construed. Y., 357. § 5. Every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death. 54 N. Y., 88; 45 N. Y., 257; 5 N. Y., 311; 18 Barb., 538; 17 Barb., 352; 11 Barb., 332; 1 Hill, 596; 20 Wend., 469; 13 Wend., 582; 10 Paige, 148; 1 Sandf. Ch., 334; 41 Barb., 52; 86 N. Y., 210. [So much of sections 6-20 as had not been previously repealed, was repealed by L. 1880, ch. 245.] L. 1879, Chap. 316-An act to amend chapter two hundred and thirtyeight of the laws of eighteen hundred and fifty-three, entitled "An act relative to disputed wills." Amendment. SECTION 1. Section one of chapter two hundred and thirty-eight of the laws of eighteen hundred and fifty-three, entitled "An act relative to disputed wills," is hereby amended so as to read as follows: Validity of wills, how determined. § 1. The validity of any actual or alleged devise or will of real estate may be determined by the supreme court in a proper action for that purpose, in which all persons interested, or who claim an interest in the question, may be made parties, and such action may be brought by any heir at law of the actual or alleged testator or testatrix, or by any devisee under any actual or alleged will; and thereupon after final judgment in such action any party may be enjoined from setting up or from impeaching such devise or will, as justice may require. The court may also, in its discretion, during the pendency of any such action, restrain the commencement or prosecution of any other action involving the trial of the same question. Such adjudication, however, shall not determine nor affect the validity of any such will as to any personal property; nor shall this act, or any proceeding taken by virtue thereof affect or interfere with any suit or proceeding in any court of this state relating to the probate of any will. Issues of fact in such actions may be tried by a jury or the court, as the nature of the case may require and the court shall direct. 40 Hun, 383; 41 Hun, 371. [L. 1853, ch. 238, was repealed by L. 1880, ch. 245, the first section of the former act being revised in Code Civ. Proc., § 1866, but the foregoing amendatory act of 1879 remains unrepealed. See L. 1880, ch. 245, § 3, subd. 9, and § 4.] [58-60] ARTICLE SECOND. OF WILLS OF PERSONAL PROPERTY, AND THE PROBATE OF THEM. SEC. 21. Males of 18, and unmarried females of 16, may make wills of personal estate. 22. Unwritten wills void, unless made by soldier in service, or mariner at sea. 23-39. [Repealed.] ART. 3. make wills 21. Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound Who may mind and memory, and no others, may give and bequeath his or her of personal personal estate, by will in writing. [Thus amended by L. 1867, ch. estate. 782.] 12 N. Y., 420; 21 Barb., 107; 16 Barb., 262; 1 Barb. Ch., 13, 272; 26 Wend., 297; 3 Bradf., [1 R. L., 367, § 16.] § 22. No nuncupative or unwritten will, bequeathing personal Unwritten estate, shall be valid, unless made by a soldier while in actual mili- allowed. tary service, or by a mariner, while at sea. GENERAL PROVISIONS APPLICABLE TO WILLS OF REAL AND PERSONAL PROPERTY. SEC. 40. Wills of real or personal property, or both, how to be executed. 41. Witnesses to state their places of residence, etc.; penalty; effect of omission. 42. Written wills, how to be revoked or cancelled. 43. Marriage and birth of issue, when to be a revocation of a prior will. 44. Will of unmarried women revoked by subsequent marriage. 45. Bond, etc., to convey property devised, not a revocation, etc. 46. Charge of incumbrance not a revocation; property to pass subject thereto. 47 & 48. Conveyance, etc., altering estate devised, when to be deemed a revocation. 49. After-born child, if unprovided for, to have portion of estate. 50. Devisee or legatee may witness will, but devise to him void. 51. When share of the estate to be saved to such witness. 52. Legatee, etc., dying before testator, devise in certain cases, not to lapse. 53. When the cancelling of a second will is not to revive first will. 54-68. [Repealed.] 69. Provisions as to revocations, to what wills to apply. 70. Execution or construction of prior wills not affected by this title. 71. Term "will" to include codicils. wills, when 8 N. Y., 199; 12 Barb., 155; 4 Bradf., 154. [61-63] § 40. Every last will and testament of real or personal property, Wills, how or both, shall be executed and attested in the following manner: I. It shall be subscribed by the testator at the end of the will. 2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses. 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament. 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator. 23 N. Y., 9; 22 N. Y., 376; 11 N. Y., 223; 9 N. Y., 371; 6 N. Y., 120; 4 N. Y., 146; 27 Barb., 557; 22 Barb., 670; 20 Barb., 243; 19 Barb., 448; 15 Barb., 305; 13 Barb., 24; 11 Barb., 126; 10 Barb., 609; 3 Barb, 327; 2 Barb., 203, 393; 1 Barb., 530; 3 Barb. Ch., 163; 1 Denio, 36; 26 Wend., 331; 4 Wend.. 168; 10 Paige, 91; 8 Paige, 448; 1 Sandf. Ch., 235; 4 Sandf. S. C., 10; 3 Sandf. S. C., 82; 3 Bradf., 35, 227, 322, 385; 2 Bradf., 163; Bradf., 352; 38 Barb., 151; 37 Barb., 310; 52 N. Y., 128, 517; 36 N. Y., 418, 487; 50 N. Y., 92; 1 Abb. Ct. App. Dec., 443; 62 Barb., 251, 391; 43 How. Pr. R., 476; 4 Abb. N. S, 41; 2 Lans., 41; 1 Tucker, 288, 300, 454; 1 Redf., 366; 15 Abb. N. S., 211; 6 Hun, 279; 66 Barb., 261; id., 317; 6 T. & C., 78; 67 N. Y., 409; 2 Redf, 77; id., 239; id., 369; id., 449; 62 N. Y., 634; 15 Hun, 100; 16 Hun, 97; 3 Redf, 74; id. 181; id., 327; id., 34; 19 Hun. 55; 21 Hun, 533; 22 Hun, 84; 5 Redf., 20, 271, 316, 376, 431, 544, 561, 624; 1 Dem., 256, 436, 496; 2 Dem, 309, 471, 498, 505; 3 Dem., 48, 98, 101, 427, 459, 462, 494; 4 Dem., 14, 56, 125, 279; 23 W. D, 248; 27 Hun, 130; 28 Hun, 473; 35 Hun, 447; 37 Hun, 15; 88 N. Y., 377; 91 N. Y., 261, 516; 94 N. Y., 535; 95 N. Y., 494; 98 N. Y., 267, 427; 5 Dem., 19, 68; 42 Hun, 431, 563; 44 Hun, 571; 45 Hun, 1; 103 N. Y., 167. [1 R. L., 364, § 2.] to be executed. [64] Witnesses to state their places of TITLE 1. § 41. The witnesses in any will, shall write opposite to their names their respective places of residence; and every person who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. Whoever shall neglect to comply residence, with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who shall sue for the same. Such omission shall not affect the validity of any will; nor shall any person liable to the penalty aforesaid, be excused or. incapacitated on that account, from testifying respecting the execution of such will. &c. Written wills, how to be re voked or cancelled. Will, when marriage and birth of issue. 1 Denio, 27; § 42. No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses. 16 N. Y., 9; 11 N. Y., 157; 26 Barb., 74; 10 Barb., 21; 9 Barb., 534; 4 Barb., 31; 4 Abb., 320; 1 Sandf. Ch., 334; 3 Duer, 477; 4 Bradf., 334; 8 Bradf., 35, 92; 2 Bradf., 210, 281; 1 Bradf., 114, 436, 476; 35 N. Y., 654; 34 N. Y., 201; 45 Barb., 438; 1 Redf., 110; 1 Tucker, 453; 15 Hun, 410; 2 Redf., 460; 14 Hun, 285; 56 How. Pr. R., 125; 16 Abb., N. S., 128; 1 T. & C., 437; 52 N. Y., 450; 5 Redf., 320, 376; 1 Dem., 484; 2 Dem., 160, 309; 3 Dem., 93, 385; 4 Dem., 119; 37 Hun, 225, 246; 40 Hun, 387; 88 N. Y., 377; 43 Hun, 80. [1 R. L., 365, § 3.] § 43. If, after the making of any will, disposing of the whole revoked by estate of the testator, such testator shall marry, and have issue of such marriage, born either in his life-time or after his death, and the 16 N. Y., 9; wife or the issue of such marriage shall be living at the death of the 7 Paige, 97; testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such 557; 51 issue shall be provided for in the will, or in such way mentioned 16 Hun,559; therein, as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation, shall be received. 6 T. & C., Barb., 259; 63 N. Y., 610. Will of unmarried woman. Bond, &c., property not a revo. 16 N. Y., 9; § 44. A will executed by an unmarried woman, shall be deemed revoked by her subsequent marriage. 16 N. Y., 9; 4 Johns. Ch. R., 507; 4 Hun, 215, 613; 6 T. & C., 512; 1 Tucker, 108; 40 N. Y., 408. § 45. A bond, agreement, or covenant, made for a valuable conto convey sideration, by a testator, to convey any property devised or bedevised, queathed in any will previously made, shall not be deemed a revocacation, &c. tion of such previous devise or bequest, either at law or in equity; 7 Paige, but such property shall pass by the devise or bequest, subject to Y., 357, 364; the same remedies on such bond, agreement, or covenant, for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them. 184; 27 N. 3 T. & C., 317. Charge or brance not § 46. A charge, or incumbrance, upon any real or personal estate, incum- for the purpose of securing the payment of money, or the performance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previously executed; but the devises and a revocation. [65] legacies therein contained, shall pass and take effect, subject to such charge or incumbrance. ART 3. 16 N. Y., 9; 26 Barb., 418. ance, &c., revocation. 572; 9 § 47. A conveyance, settlement, deed, or other act of a testator, Conveyby which his estate or interest in property, previously devised or when to be bequeathed by him, shall be altered, but not wholly divested shall not deemed a be deemed a revocation of the devise or bequest of such property; 16 Barb., but such devise or bequest shall pass to the devisee or legatee, the Barb., 50; 7 Paige, 100; actual estate or interest of the testator, which would otherwise de- 16 Y., 9 scend to his heirs, or pass to his next of kin; unless in the instru- 23 Iun, 152. ment by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or bequest. § 48. But if the provisions of the instrument by which such altera- Id. tion is made; are wholly inconsistent with the terms and nature of 418; 16 such previous devise or bequest, such instrument shall operate as a 2 Bradf revocation thereof, unless such provisions depend on a condition or 92 contingency, and such condition be not performed, or such contingency do not happen. 26 Barb., Barb., 572; 413; 16 N. Hun, 292. child, if un have por estate. § 49. Whenever a testator shall have a child born after the making After-born of a last will, either in the life-time or after the death of such testator, provided and shall die leaving such child, so after-born, unprovided for by any for, to settlement, and neither provided for, nor in any way mentioned in tion of such will, every such child shall succeed to the same portion of such 4 Hun, 755; parent's real and personal estate as would have descended or been 248;5 distributed to such child, if such parent had died intestate, and shall Paige, 590; be entitled to recover the same portion from the devisees and lega- 408; 61 tees, in proportion to and out of the parts devised and bequeathed 41 Barb., to them by such will. [Thus amended by L. 1869, ch. 22.] 2 Barb., 40 N. Y.. Barb., 296; 202; 3 Hun, 128, 756,758, 611; 17 J. & S., 508; 24 Hun, 210; 89 N. Y., 555. legatee but devise void. 50. If any person shall be a subscribing witness to the execution Devisee or of any will, wherein any beneficial devise, legacy, interest or ap- may witpointment of any real or personal estate, shall be made to such ness will, witness, and such will cannot be proved without the testimony of to him such witness, the said devise, legacy, interest or appointment, shall be void, so far only as concerns such witness, or any claiming under him; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made. 43 How., 476; 1 Tucker, 83; 13 N. Y., 93; 5 N. Y., 128; 20 Barb., 243; 3 Barb., 414; 1 [1 R. L., 367, § 12.] share of the such wit. § 51. But if such witness would have been entitled to any share of When the testator's estate, in case the will was not established, then so estate to be much of the share that would have descended, or have been dis- saved to tributed to such witness, shall be saved to him, as will not exceed the ness. value of the devise or bequest made to him in the will, and he shall [66] recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them. § 52. Whenever any estate, real or personal, shall be devised or Devise in bequeathed to a child or other descendant of the testator, and such cases not to legatee or devisee shall die during the lifetime of the testator, leav- 22 Barb, ing a child or other descendant who shall survive such testator, such Barb, 498; devise or legacy shall not lapse, but the property so devised or be-Hill, 139; certain lapse. 195; 19 Bradf., |