XIII. And be it further enafled by the authority aforefaid, That it fhall and may be lawful to and for all and every perfon and perfons, by his or their teflament or laft will in writing, to give, bequeath or difpofe of all his, her or their goods, chattels and perfonal eftate, in the fame manner as he, fhe or they lawfully might do before the pafling of this act.

queath their crops.

XIV. And be it further enacted by the authority aforesaid, Widows may be. That it fhall and may be lawful for widows to bequeath the crop of their ground, as well of their dowers as of their other lands and tenements.

proved.

XV. And be it further enacted by the authority aforesaid, Nuncupative wills That no nuncupative will heretofore made, or hereafter to how to be made and be made, fhall be good, where the eftate thereby bequeathed fhall exceed the value of thirty pounds, lawful money of this flate; unlefs the fame be proved by the oaths of three witneffes at the leaft, who were prefent at the making thereof; nor unless it be proved that the teflator, at the time of pronouncing the fame, did bid the perfons prefent, or fome of them, bear witness that fuch was his or her will, or words to that effect; nor unless fuch nuncupative will was made in the time of the laft fickness of the deceased, and in the house of his or her habitation or dwelling, or where he or fhe hath been refident for the space of ten days or more, next before the making of fuch will; except where fuch perfon was iurprifed or taken fick, being from his or her own home, and died before he or fhe returned to the place of his or her dwelling.

XVI. And be it further enacted by the authority aforefaid, That after fix months paffed, after the speaking of the pretended teftamentary words, no teftimony fhall be received to prove any nuncupative will, except the faid teftimony, or the fubftance thereof, were committed to writing, within fix days after the making of the faid will.

XVII. And be it further enacted by the authority aforefaid, That no letters teftamentary, or probate of any nuncupative will, fhall pats the feal of any court until fourteen days at the leaft after the deceafe of the teftator fhall be fully expired; nor fhall any nuncupative will be at any time received to be proved, unless process hath firft iffued to call in the widow, or next of kindred to the deceased, to the end they may conteft the fame if they pleafe.

XVIII. And be it further enacted by the authority of relaid, That no will or teftament in writing, concerning any goods or chattels, or perfonal eftate, fhall be repealed, nor hall any claufe, devife or bequeft therein, be revoked, altered or changed, by any words, or will by word of mouth only, except the fame be in the life time of the teftator, committed to writing, and after the writing thereof, read unto the teftator, and allowed and approved of by him or her, and proved fo to be done by three witneffes at the leaft.

XIX. And be it further enacted by the authority aforefaid, Who fhall be good That all fuch witneffes as are and ought to be allowed to witnefles to prove be good witnefies upon trials at law, by the laws and cuf toms of this ftate, fhall be deemed good witneffes to prove any nuncupative will, or any thing relating thereunto.

• nuncupative wills.

XX. And be it further enacted by the authority aforefaid, That this act fhall extend as well to wills and teftaments made within fixty years last past, except where it is other wife herein before provided, as to wills and teftaments hereafter to be made,

A foldier or mariner may difpofe of his

fore this act.

XXI. Provided always, and be it further enacted by the perional citate as be- authority afore id, That notwithstanding this act, any foldier being in actual military fervice, or any mariner or fea man, being at fea, may difpofe of his moveables, wages and perfonal eflate, as he or they might have done before the making of this act.

СНА Р. XLVIII.

da ACT for preventing and avoiding Alienations by Tenants for Life, ana Recoveries by Collufion. Paffed 3d March, 1787. 1. DE it enacted by the people of the flue of New-York, reprefented in jenate and affembly, and it is hereby enacted by the authority of the fame, That if any woman who hath had, now hath, or hereafter shall have, any ef tate in dower, or for term of life, jointly with her husband, or only to herself, or to her ule, in any lands, tenements or hereditaments, of the inheritance or purchase of her husband, or given to the faid husband and his wife for term of life, by any of the anceflors of the faid husband, or by any other perfon, feifed to the use of the faid husband or of his ancestors, and being fole, or with any other after-taken husband,hath discontinued,aliened, releafed or confirmed, or hercatter fhall difcontinue,alien, releafe or confirm, with warranty or without warranty, or hath fuffered, or fhall fuffer any recovery by covin against her, them or any of them, or any other feifed to their ufe, or to the ufe of either of them as aforefaid; that ali fuch recoveries, difcontinuances, alienations, releafes, confirmations and warranties, fo had and made, and henceforth to be had and made, fhall be utterly void and of none effect. And that it shall be lawful to every perfon and perfons, to whom the intereft, title or inheritance, after the deceafe of fuch woman, of the faid lands, tenements and hereditaments, fo being discontinued, aliened or fuffered to be recovered as aforefaid, do or fhall appertain, to enter into all and every of the faid premifes, and peaceably to poffels and enjoy the fame, in fuch manner and form as he, the or they fhould have done, if no fuch difcontinuance, alienation, warranty or recovery had been had or made. And further, That if any fuch woman, with any fuch after-taken husband, or any other feiled, or who fhall be feited to their or either of their ufe, of fuch eftate as aforefaid, fhall, during the coverture between them, make or caufe to be made, or fuffer any fuch difcontinuance, alienation, warranty or recovery, in form aforefaid, that then it shall be lawful to the perfon or perfons, to whom the faid lands, tenements, or hereditaments fhould or ought to belong, after the decease of the faid woman, immediately after the faid difcontinuance, alienation, warranty or recovery, to enter into the fame lands, tenements and hereditaments, and them to pofle's and enjoy during the life of the faid husband, according to fuch title and intereft as they fhould have had in the fame, if the fame woman had been dead, and no difcontinuance, warranty nor recovery had: But that the faid woman, in fuch cafe, after the deceafe of the faid husband, if the furvive him, may re-enter into the fame lands, tenements and hereditaments, and enjoy the fame according to her firit eftate in the fame. But if the faid woman, at the time of fuch difcontinuance, alienation, recovery or warranty, in form aforefaid, to be had, made or fuffered, of any of the premifes, be fole, that then fle fhall be barred and excluded of her title and intereft in the fame from thenceforth; and the perfon or perfons to whomthe title, intereft and pofief

fion of the fame should belong, after the decease of the said woman, shall immediately after the faid discontinuance, alienation, warranty or recovery, enter into the fame lands, tenements and other hereditaments, and poffels and enjoy the fame according to his, her or their title in the fame. Provided always, That this act shall not extend to any fuch recovery or discontinuance had or to be had, with the heirs next inheritable to the faid woman, or where he or they, that next after the death of the fame woman, should have eftate of inheritance in the fame lands, tenements or hereditaments, be affenting or agreeable to the faid recovery, where the fame affent or agreement is of record or enrolled. And provided alfo, That it fhall be lawful to every fuch woman, being fole or married, after the death of her firit husband, to give, fell or make difcontinuance of any fuch lands, tenements or hereditaments, for term of her life only, after the course and use of the common law.

ance by a husband on

or her heirs.

H. And be it further enacted by the authority aforefaid, No fine or convey- That no fine, feoffinent, or other act or acts, made, fuffered ly, of the lands of his or done, or hereafter to be made, fuffered or done by the wife, te prejudice Ler husband only, of any lands, tenements or hereditaments, being the inheritance or freehold of his wife, during the coverture between them, fhall in any wife be, or make any difcontinuance thereof, or be prejudicial or hurtful to the faid wife, or to her heirs, or to fuch as fhall have right, title or intereft to the fame, by the death of fuch wife : But that the fame wife, or her heirs, and fuch other to whom fuch right fhall appertain, after her deccafe fhall and may then lawfully enter into all fuch lands, tenements, and hereditaments, and hold and enjoy the fame, according to their rights and titles therein, asif no fuch fine, foeffment or other act, had been done or fuffered.

How a woman may

recover her lands loft

by default of her hul band, by a cui in vita.

III. And whereas, when a man doth lofe by default the land which was the right of his wife, it is very hard that the wife, after the death of her husband, fhould have none other recovery but by writ of right: For remedy whereof, Be it further enacted by the authority aforefaid, That a woman, after the death of her husband, fhall recover by a writ of entry, whereto fhe could not difagree during his life, which fhall be pleaded in the following form: If the tenant do except against the demand of the wife, that he entered by judgment, and it be found that his entry was by default, whereto the tenant of neceffity mult make answer, if it be demanded of him, then he shall be compelled to make further anfwer, and to fhew his right according to the form of the writ that he purchased before against the husband and the wife; and if he can verify that he hath or had right in the land demanded, the woman fhall gain nothing by her writ; which thing, if he cannot fhew, the woman fhall recover the land in demand.

IV. And be it further enailed by the authority aforesaid, That when any hufband and wife fhall be impleaded, if the hufband abfent himself, and will not defend his wife's right, or against his wife's confent will render the land, if the wife do come before judgment, ready to answer the demandant, and to defend her right, the wife fhall be admitted without her husband.

V. And be it further enacted by the authority aforefaid, That if any tenant in dower, tenant by the courtesy, or other tenant for term of life or lives, is or fhall be impleaded, and he, he or they to whom the reverfion or remainder doth or fhall appertain, fhall come into court, and pray to be received to defend his, her or their right, at the day that the tenant pleadeth to the action, Eee

or before, and before judgment, he, fhe or they fhall be received to defend his, her or their right, and to plead in chief to the action. And that days of grace fhall be given by the difcretion of the court, between the demandang and him, her or them, who is, are or fhall be received in such case, without giving the common days in pleas of land, unless the demandant will confent, to the intent that the demandant be not too much delayed, because he must plead with two adverfaries. Provided always, That he, fhe and they, who fhall come in by a collateral title, and defire to be received as aforefaid, as well where the receipt is counterpleaded, as where it is granted, fhall, before he, fhe or they be received, find fufficient furety, as the court fhall award, to fatisfy the demandant of the iffues of the tenements demanded, from the day that he, fhe or they fhall be received, until the time that final judgment be gi ven, if judgment pafs for the demandant against him, her or them, in reverfr on or remainder aforefaid. And if the demandant recover his demand, he fhall alfo recover his damages and cofts of fuit against fuch tenant by receipt: But if fuch tenant can prove his or her right to as good as he or she affirmed, at fuch time as he or he was received, then he or she fhall go quit, and recover his or her cofts against the demandant.

dower, by the courte

by writ of entry.

VI. And be it further enacted by the authority aforesaid, Where tenant in That if any tenant in dower, tenant by the courtefy, or fy or for life, lofes by other tenant for term of life or lives, who hath been, now default, the heirs, revertoner or remain is, or fhall be impleaded, hath made, or fhall make default, der man, may recover or hath given, or fhall give up the tenements demanded, and judgment hath been or fhall be given upon fuch default or furrender, then the heirs, or he, fhe or they to whom the reverfion or remainder doth or fhall appertain, after the death of fuch tenants, fhall have their recovery by a writ of entry, in which the like procefs fhall be obferved, as in cafes where the husband lofeth his wife's land by default; and fo in the cafes aforefaid, two actions do concur, one between the demandant and tenant, and another between the tenant fhewing his or her right, and the demandant.

36.

Attaints abolished,

VII. And be it further enalled by the authority aforefuid, That if any tenant for term of life, tenant in dower or tenant by the courtefy, be im pleaded and plead to an inqueft, and lofe by the oath of twelve men, or by default, or in other manner, that the perfon or perfons to whom the reverfion or remainder of the tenements fo loft doth or fhall appertain, at the time of fuch judgment given, his, her or their heirs or fucceffors, fhall have an action by writ of attaint, to attaint the fame oath, if he, the 11th feff. ch. 46. fec. or they, will affign the fame oath to be falfe; and alfo by writ of error, if error be found in the record of fuch judgment, as well in the life time of fuch tenants who have loft or fhall lofe, as after their death. And if fuch judgment be reverfed, or fuch oath be found falfe, that the tenant who loft by the firft judgment, if he or she be in life, shall be restored to his or her poffeffion of the tenements fo loft, with the iffues in the mean time; and the party purfuing to the arrearages of rent, if any be due, for the fame tenement. And if fuch tenant be dead, at the time of the judgment given upon fuch writs of attaint, or of error, that reftitution be made to the party purfuing, with the iffues, after the death of the faid tenant, together with the arrearages of rent, if any to him or her were due, in the life time of the faid tenant. Provided always, That although the tenant who fo loft by the firft judgment, be in life, if the party purfuing will alledge, that the fame tenant was of covin, and of aflent of the demandant who recover

ed, that fuch tenement fhould be loft, that refiitution of the fame tenements hall be made to the fame party pursuing, with the iffues and arrearages as aforefaid. But in fuch cafe fuch tenant fhall have his or her action by writ of fcire facias, out of the fame judgment fo reverfed or given, on fuch writ of attaint, or writ of error, if he or she will traverfe the covin and affent aforefaid, and not otherwife.

by the courte fy or

the iffue of the inheri

VIII. And be it further enafied by the authority aforefaid, Alienation by tenant That if any man hath aliened, or fhall alien any tenement hufband, not to bar which he held, or doth or fhall hold by the courtefy, his tance of their mother. children fhall not be barred by the deed of their father, to demand and recover of the feifin of their mother, although the deed of their father doth or fhall mention that he and his heirs be bound to warranty. Nor fhall the iflue of any fuch children be barred in fuch cafe, by any fuch deed. And likewife, and in like manner the heirs of the wife fhall not be barred of their action, after the death of their father and mother, by the deed of their father, if they demand by action the inheritance of their mother, which their father did alien in the life-time of their mother. IX. And be it further enacted by the authority afore aid, No fuit by a wo That the fuit of the woman, or her heirs, after the death of man or her heirs, for lands aliened by her her husband, for lands or tenements aliened by the husband, bufhand, to be delay- fhall not be delayed by the non-age of the heir or heirs who ought to warrant: But let the purchafer, who ought not to have been ignorant that he or she bought the right of another, tarry until the full age of his or her warrantor, to have his or her warranty.

ed by non-age.

Recoveries by agree

tenants by courtesy,

fioner or remainder

X. And whereas divers perfons being feifed of lands, tenements and hereditaments, as tenants by the courtesy, or otherwife, only for term of life or lives, or of eftates determinable upon life or lives, have permitted or fuffered other perfons, by agreement or covin between them had, to recover the fame lands, tenements and hereditaments, against the fame particular tenants; or have permitted or fuffered themfelves to be vouched by other perfons, by agreement or covin between them had, in recoveries fuffered of the fame lands, tenements and other hereditaments, to the prejudice of those to whom the reverfion or remainder thereof appertained, or ought to appertain; For remedy whereof, Be it further enacted by the authority aforefaid, That all fuch recoveries heretofore had or profecuted, or hereafter ment or covin,against to be had or profecuted, by agreement of the parties, or by or for term of life, Covin as aforefaid, against any fuch particular tenant, of any void as to the rever lands, tenements or hereditaments, whereof the fame particular tenant was, is or fhall be feifed, of any fuch particular eftate as aforefaid, or against any other, with voucher over of any fuch particular tenant, or of any having, or that had right or title to any fuch particular eftate or tenancy as aforefaid, fhall from henceforth, as against fuch perfon or perfons to whom any reverfion or remainder thereof, by force of any conveyance or devife, before that time had or made, did, fhall, ought or lawfully may appertain, and against their heirs and fucceffors, be clearly and utterly void, and of none effect. Provided always," That nothing herein contained fhall extend, or be prejudicial to any perfon or perfons who hath or have, or hereafter fhall, by good title, recover any lands, tenements or hereditaments, without fraud or covin, by reafon of any former right or title; but that all and every fuch recovery and recoveries, fo had or profecuted, or to be had or profecuted, upon former rights or titles, fhall ftand and be in like force, ftrength and effect, as if this act had not

man.