[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 Barb., 50; 7 Paige, 100; eN Y., 9; 23 Hun, 152. § 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 actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless in the instrument 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 43; 16 N. contingency, and such condition be not performed, or such contin- Hun, 292. gency do not happen. 26 Barb., Barb., 572; Y., 9; 2 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 distributed to such child, if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, 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., 248; 5 Paige, 590; 408; 61 40 N. Y., Barb., 296; 202; 3 Hun, 128, 756,758, 611; 17 J. & S., 508; 24 Hun, 210; 89 N. Y., 555. 50. If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate, shall be made to such witness, and such will cannot be proved without the testimony of 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.] Devisee or may wit. es will, to him legatee but devise void. share of the such wit [66] 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 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 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- 1139; Devise in certain lapse. 195; 19 Bradf., TITLE 2. 314; 30 N. Y., 393; 6 Lans., 54; 5 T. & C., Cancelling of second except, &c. queathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate. 453; 4 Hun, 725; 12 Abb. N. C., 344; 2 Dem., 48, 51. § 53. If, after the making of any will, the testator shall duly make will, not to and execute a second will, the destruction, cancelling or revocation revive first, of such second will, shall not revive the first will, unless it appear by 26 Barb. 76. the terms of such revocation, that it was his intention to revive and [67, 68] give effect to his first will; or unless after such destruction, cancelling, or revocation, he shall duly republish his first will. Provisions as to revocations. [Sections 54-68, including seven supplementary sections (63-69), inserted by L. 1830, ch. 320, were repealed by L. 1880, ch. 245.] § 69. The provisions of this title, in relation to the revocation of 5N.Y., 312; wills, shall apply to all wills made by any testator, who shall be liv8 Paige, 446; 3 ing, at the expiration of one year, from the time this chapter shall take effect. Dem., 54; 36 Hun, 124. Prior wills not affected. 5N.Y, 312; § 70. The provisions of this title shall not be construed to impair the validity of the execution of any will made before this chapter shall take effect, or to affect the construction of any such will. 139; 11 Barb., 332; 41 Barb., 992. § 71. The term "will," as used in this chapter, shall include all 6 N.Y., 120; codicils, as well as wills. 5 N.Y., 128; 3 Sandf. S. C., 82; 3 Bradf., 48; 1 Bradf., 252, 291; 41 Barb., 392; 4 Dem., 119. [1 R. L., 368, § 20.] L. 1860, Chap. 360 – An act relating to wills. Persons having relatives may not devise property by will, to benevolent or other societies beyond one-half. SECTION 1. No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts (and such devise or bequest shall be valid to the extent of one-half, and no more). 43 N. Y., 440; 34 N. Y., 616; 3 Lans., 355; 2 Abb. Ct. App. Dec., 321; 4 Abb., N. S., 421; 27 Barb., 304; 1 Tucker, 235; 59 N. Y., 434; 4 Abb. Ñ. C., 317; 3 Redf., 235; 7 Abb. N. C., 53; 19 N. Y., 327; 8 Abb. N. C, 118; 2 Abb. Ct. App. Dec., 316; 4 Dem., 473; 16 Abb. N. C., 263, note; 29 Hun, 225; 33 Hun, 411; 44 Hun, 425; 92 N. Y., 433, aff'g 27 Hun, 380; 95 N. Y., 166; 105 N. Y., 185; 5 Dem., 288. Repeal. § 2. All laws and parts of laws inconsistent with this act are hereby repealed. TITLE II. Of Granting Letters testamentary and of Administration. ART. 1.-Of granting letters testamentary. ART. 2.-Of granting letters of administration with the will annexed, and in cases of intestacy. ART. 3.-General provisions relating to letters testamentary and of administration; miscellaneous provisions respecting the duties of surrogates, and the recording of wills and letters. SEC. 1 & 2. [Repealed.] [69] ARTICLE FIRST. OF GRANTING LETTERS TESTAMENTARY. 3. Who incompetent to serve as executors ; proceedings if all be incompetent, etc. SEC. 4. Married women entitled to letters, if husband consent; effect of such consent. 5. After disability of minor, alien, etc., removed, supplementary letters to be issued. 6-14. [Repealed.] 15. Executors named in will, but not in letters, superseded till they qualify. 16. Before letters, executor not to interfere, except to pay funeral charges, etc. 17-21. [Repealed.] 22. Where letters with the will annexed are granted, will to be observed, etc. [Section 1 was repealed by L. 1880, ch. 245.] [Section 2 was repealed by L. 1837, ch. 460.] ART. 1. competent executors. the will issue. § 3. No person shall be deemed competent to serve as an executor Persons inwho, at the time the will is proved, shall be: First, Incapable in law to serve as of making a contract (except married women). Second, Under the entor age of twenty-one years. Third, An alien not being an inhabitant ters with of this state. Fourth, Who shall have been convicted of an infa- annexed to mous crime. Fifth, Who, upon proof, shall be adjudged by the surrogate to be incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding. If any such person be named as the sole executor in any will, or if all the persons named therein as executors be incompetent, letters of administration (with the will annexed) shall be issued, as hereinafter provided in the case of all the executors renouncing. [Thus amended by L. 1873, ch. 79.] 50 N. Y., 301; 14 N. Y., 449; 60 Barb., 59; 43 Barb., 418; 1 Tucker, 16, 94; 14 N. Y., 449; when enletters. women, titled to § 4. No married woman shall be entitled to letters testamentary, Married unless her husband consent thereto, by a writing to be filed with the surrogate; and by giving such consent he shall be deemed responsible for her acts jointly with her. [See L. 1867, ch. 782, § 2, post.] [70] 8 Paige, 39; 39 Barb., 485. letters, issued. § 5. If the disability of a person under age, or being an alien, or Supplea married woman, named as executor in any will, shall be removed, mentary before the execution of such will is completed, such person shall be when to be entitled on application, to supplementary letters testamentary, to be issued in the same manner as the original letters, and shall thereupon be authorized to join, in the execution of such will, with the persons previously appointed. 9 Barb., Barb., 242; 446; 4 T. & C., 101. [71] not named [Sections 6-14 were repealed by L. 1880, ch. 245.] § 15. Every person named in a will as executor, and not named Executors as such in the letters testamentary, or in letters of administration in letters with the will annexed, shall be deemed to be superseded thereby, and shall have no power or authority whatever, as such executor, Y., 455; 14 until he shall appear and qualify. Tucker, not to act. 112; 19 N. Barb., 379; 3 Barb.Ch., 74; 3 Paige, 420; 7 How. Pr. R., 182; 1 How. Pr. R., 207; 27 How. Pr. R., 502; 2 Robt., 608; 1 Redf., 281; 5 T. & C., 101; 88 N. Y., 309. § 16. No executor named in a will, shall, before letters testamentary are granted, have any power to dispose of any part of the estate of the testator, except to pay funeral charges, nor to interfere with such estate in any manner, further than is necessary for its preservation. Power of before let21 Barb., 316; 16 executor ters. Wend., 579; Hill, 444; 4 Denio, 82; 5 T. & C., 101; 1 Tucker, 112; 22 Hun, 405; 5 Redf., 181; 17 162; 18 J. & S., 231; 28 Hun, 279; 31 Hun, 235; 32 [Sections 17-21 were repealed by L. 1880, ch. 245.] § 22. In all cases where letters of administration with the will an- Adminisnexed, shall be granted, the will of the deceased shall be observed tration with the TITLE 2 and performed; and the administrators with such will, shall have the rights and powers, and be subject to the same duties, as if they had been named executors in such will. will annexed. 23 N. Y., 303; 13 N. Y., 587; 27 Y., 45; 27 N.Y., 539. Barb., 292; 14 Barb., 652; 25 Wend., 234; 21 Wend., 433; 4 Sandf. S. C., 401; 32 N. [73] [74] Administration in case of intestacy. 1 Redf., 255, 257, 281; 11 Abb., N.S., 17; 1 ARTICLE SECOND. OF GRANTING LETTERS OF ADMINISTRATION WITH THE Will AnneXED, AND IN CASES SEC. 23-26. [Repealed.] 27. Who entitled to letters of administration and in what order. 28. Order of preference where there are several persons in same degree. 29. Administration on estate of married woman, to be granted to husband, etc. 30 & 31. [Repealed.] 32. Certain persons declared incapable of receiving letters of administration. 33. If minor be entitled, letters to be granted to his guardian. 34. When person not entitled may be joined in letters. 35-43. [Repealed.] [Sections 23-26 were repealed by L. 1880, ch. 245.] § 27. Administration in case of intestacy shall be granted to the relatives of the deceased, who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order: First to his widow; second, to his children; third, to the father; fourth, to the mother; fifth to the brothers; sixth to the sisters; seventh to the grandchildren; eighth, to any other next of kin who would be entitled to share in the distribution of the estate. If any of the persons so entitled be minors, administration shall be granted to their guardians. If none of the said relatives or guardians will accept the same, then to the creditors of the Bradf, 64, deceased, and the creditor first applying, if otherwise competent, shall be entitled to a preference. If no creditor apply, then to any other person or persons legally competent; but in the city of New York, the public administrator shall have preference, after the next of kin, over creditors and all other persons; and in other counties of this state, the county treasurer shall have preference, next after creditors, over all other persons; and in case of a married woman dying intestate, her husband shall be entitled to administration in preference to any other person, as hereinafter provided. [Thus 100, 125, 200, Barb., 67 24 N. Y., 418; 56 Barb., 634; Pr. R., 310; 12 Abb. N. 4 Dem., 250, 491; 42 Hun, 471; 44 Hun, 68; amended by L. 1867, ch. 782.] 107 N. Y., 266. Order of preference degree. 15 Barb., 302; 1 [1 R. L., 314, § 17; 445, § 3.] § 28. When there shall be several persons of the same degree of where seve kindred to the intestate, entitled to administration, they shall be preral in same ferred in the following order: First, males to females; second, relatives of the whole blood to those of the half blood; third, unmarBarb Ch., ried women to such as are married; and when there are several persons equally entitled to administration, the surrogate may, in his discretion, grant letters, to one or more of such persons. [75] 46: 56 Barb., 634; 11 Abb., N. S., 17; Administration on estate of married 15 W. D. 20; 25 Hun, 579; 89 N Y., 40. § 29. A husband, as such, if otherwise competent according to law, shall be solely entitled to administration on the estate of his woman, to wife, and shall give bond as other persons, but shall be liable as to husband, administrator, for the debts of his wife, only to the extent of the 207; 1 N. assets received by him. If he shall not take out letters of adminis be granted &c. 12 N.Y. |