held, that where the attestation clause recites that the will was executed and published by the testator, as his last will and testament, in the presence of the witnesses, specifying, that all the requisite formalities were complied with, and the same is read over in the presence and hearing of the testator and witnesses, and understood by him aud them, a request from the testator, that they will subscribe the same, as witnesses to his execution thereof, will, of itself, be a sufficient publication of the instrument, as his last will and testament. [8 Paige's R., 488."*] XIX. THE PROBATE AND RECORDING OF WILLS OF REAL ESTATE IN NEW-YORK. Surrogates, or if there be no such officer, then First Judges of counties, are invested with authority to take proof of the execution of wills, and to admit the same to probate and record; First, where the testator was at the time of his death * Wills are revoked by the birth of lawful issue afterward, unless some settlement shall have been made for such issue, in the will or otherwise. [2 R. S., 8, Sec. 43; 1 Wash., 140.] A will of an unmarried woman is revoked by her subsequent marriage. [Idem, 44.] Parol evidence of the revocation of a will is madmissible. [2 John, 31.] The slightest degree of cancelation, with intent to revoke, will operate as a revocation. [4 Cowan, 483.] The mere act of canceling a will is nothing, unless it be done animo revocandi. [7 John, 394.] The mental sanity of the testator is presumed, until the contrary appears. [5 John, 144.] Duress may be proved by parol, but not the testator's own declarations, as to that point. [2 John, 31] A devise to a witness or his wife, is void. [2 John, C. 314.] An obliteration of a will is not per se a revocation. [3 McCord, 282.] An agreement made by the testator to convey any property by him devised, does not work a revocation; but the same will pass to the legatee, subject to the condition imposed by the testator's contract. [2 R. S., 8, Sec 45.] An incumbrance, executed by the testator, upon premises devised, does not work a revocation. [Idem, 46.] A legal instrument, wholly inconsistent with a former devise, executed by a testa. tor, does operate as a revocation. [Idem, 47.] an inhabitant of the county of which the officer is Surrogate or Judge; Secondly, where the testator was a non-resident of the State, but shall have died in the said county, leaving assets therein; Thirdly, where the testator was a non-resident of the State, and shall have died out of the State, but hath left assets in the said county; Fourthly, where the testator was a nonresident, and shall have died out of this State, leaving assets that have come into the said county. An executor, heir, devisee, legatee, or other person interested in any will, may apply to the Surrogate or Judge for probate of the same, who has power to cause the will to be produced, in case it is not in the possession of the applicant. Application being thus made, it is the duty of the officer "to ascertain, if the will relate exclusively to real estate, the names and places of residence of the heirs of the testator, unless upon diligent inquiry the same cannot be ascertained; or if the will relate to both real and personal estate, the names and places of residence of the heirs, widow, and next of kin of the testator, unless upon diligent inquiry the same cannot be ascertained." [Sess. Laws 1837, Sec. 5.] And he shall also ascertain whether any and who of the persons mentioned in the preceding section, are minors, and the names and places of residence of their general guardians, if they have any; and if there be no general guardian within this State, the Surrogate shall, by an order to be entered, appoint a special guardian for such minor, to take care of his interest in the premises, and the written consent of every person so appointed special guardian, to serve as such, shall be filed with the Surrogate. The testamentary guardian named in the will to be proved, shall not for this purpose be deemed a general guardian. [Id., Sec. 6.] Thereupon it is the duty of the officer to issue citations, requiring the said widow, heirs, and next of kin, or such of them as the statute requires in the premises, to appear on a day therein mentioned, and attend the probate of the will. The statute requires the citation to be personally served on such of the persons to whom it is directed, as reside in the same county with the Surrogate, or an adjoining county, at least eight days before the day for proving the will; or by leaving a copy at the residence of such person with some individual of suitable age and discretion; and in like manner, upon persons residing in any other county in the State, at least fifteen days before the day of hearing; and also in like manner, upon persons residing without the State, not less than fifteen nor more than ninety days before the day of hearing, or by publishing a copy of the citation in the State paper for six weeks previous to the day appointed for taking the proof. [Sess. Laws 1837, Chap. 460, as amended in 1840.] On the day mentioned in said citations, or such further day as may be appointed, upon proof being made of the due service of the citation, the surrogate shall cause the witnesses to be examined before him. All such proofs and examinations shall be reduced to writing. Two at least of the witnesses to such will, if so many are living in this State, and of sound mind, and are not disabled from age, sickness, or infirmity, from attending, shall be produced and examined; and the death, absence, insanity, sickness, or other infirmity of any of them, shall be satisfactorily shown to the Surrogate taking such proof: and the Surrogate shall inquire particularly into the facts and circumstances, before establishing the same, or granting letters testamentary or of administration thereof. [Id., Sec. 10.] In case the proof of any will is contested, and any person having the right to contest the same shall, before probate made, file with the Surrogate a request in writing, that all the witnesses to such will shall be examined; then all the witnesses to such will, who are living in this State and of sound mind, and who are not disabled from age, sickness, or infirmity from attending, shall be produced and examined; and the death, absence, insanity, sickness or other infirmity of any of them, shall be satisfac torily shown. [Id., Sec. 11.] This may be done, although the will is not contested. The Surrogate is invested with power to issue subpoenas, and adjourn the proceedings at his discretion, until all requisite proof can be adduced by the parties interested in sustaining or defeating the will. After the witnesses to the will, and such others as shall have been produced, shall have been sworn and examined, and the Surrogate is judicially satisfied that the will was duly executed, that the testator, at the time of executing the same, was in all respects competent to devise real estate, and not under restraint, it is his duty to record the will, together with the proof and examinations taken in regard to proving the same, and to endorse upon the will a certificate, under his hand and seal of office, showing that such will has been admitted to probate.* XX. THE TITLE TO REAL ESTATE BY DESCENT. The statute [1 R. S., 742] provides that the real estate of every person who shall die without devising the same, shall descend in the following manner, namely: First, to his lineal descendants; Secondly, to his father; Thirdly, to his mother; and Fourthly, to his collateral relatives; subject, in all cases, to the rules and regulations hereinafter prescribed. If the intestate leave several descendants in the direct line of lineal descent, and all of equal degree of consanguinity to such intestate, the inheritance will descend to such persons in equal parts, *It is the duty of the Surrogate to proceed to the dwelling house of an aged, sick, or infirm witness, and there take his or her testimony. [Sess. Laws 1841, Chap. 129.] No will shall be deemed proved, until all the witnesses residing within this State shall have been examined. [Idem.] If all the witnesses be dead, absent, or incompetent to testify, the will cannot be recorded as a will of real estate. [Idem.] When one or more are examined, and the others are dead, insane, or absent, then such proof of the hand writing of the testator, and of other circumstances, as would -be required in a court, shall be received. [Sess. Laws 1840.] Where witnesses to a will all reside out of the State, a court of equity can issue a commission to the State where the witnesses reside, and thereby obtain their testi. mony. [1 Barbour.] however remote from the intestate the common degree of consanguinity may be. If any of the children of such intestate be living, and any be dead, the inheritance will descend to the children who are living, and to the descendants of such children as shall have died; so that each child who shall be living, shall inherit such share as would have descended to him, if all the children of the intestate who shall have died leaving issue, had been living; and so that the descendants of each child who shall be dead, shall inherit the share which their parent would have received if living. In case the intestate shall die without lawful descendants, and leaving a father, then the inheritance will go to such father, unless the inheritance came to the intestate on the part of his mother, and such mother be living; but if such mother be dead, the inheritance descending on her part goes to the father for life, and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives hereinafter provided; if there be no such brothers or sisters, or their descendants, living, such inheritance will descend to the father in fee. If the intestate shall die without descendants, and leaving no father, or leaving a father not entitled to take the inheri tance, and leaving a mother and a brother or sister, or the descendant of a brother or sister, then the inheritance will descend to the mother during her life, and the reversion to such brothers and sisters of the intestate as may be living, and the descendants of such as may be dead, according to the same law of inheritance. If the intestate in such case shall have no brother or sister, nor any descendants of any brother or sister, the inheritance shall descend to the mother in fee. If there be no father or mother capable of inheriting the estate, it will descend, in the cases hereinafter specified, to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance will descend to them in equal parts, |