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Lunatics, contracts of. § 22. The supreme court shall have authority to decree and compel the specific performance of any bargain, contract or agreement which may have been made by any lunatic or other person specified in the first section of this title, while such lunatic or other person was capable to contract; and of any contract in relation to lands made by the ancestor of such person from whom such person inherits or takes as devisee or otherwise ; and to direct the committee of such person to do and execute all necessary conveyances and acts for that purpose ; and in case the person entitled to such conveyance is the committee of such person specified in section one of this title, the said court may, upon the petition of said committee, appoint some suitable and proper person to execute the said conveyance in the name of such lunatic or other person specified in section one of this title, upon payment by the vendee of any sum remaining due to such person upon said contract, or upon the fulfilment of the contract on the part of the party who contracted with the person represented by said committee. [Thus amended by L. 1885, ch. 267, S 2.]

ART. 1.

CHAPTER VI.

(56)

OF WILLS AND TESTAMENTS; OF THE DISTRIBUTION
OF THE ESTATES OF INTESTATES; AND OF THE
RIGHTS, POWERS, AND DUTIES OF EXECUTORS AND
ADMINISTRATORS.

TITLE 1.-OF WILLS AND TESTAMENTS OF REAL AND PERSONAL PROP

ERTY, AND THE PROOF OF THEM.
TITLE II.-OF GRANTING LETTERS TESTAMENTARY AND OF ADMINISTRA-

TION.
TITLE III.-OF THE DUTIES OF EXECUTORS AND ADMINISTRATORS IN

TAKING AND RETURNING INVENTORIES, IN THE PAYMENT
OF DEBTS AND LEGACIES, IN ACCOUNTING, AND IN MAKING

DISTRIBUTION TO NEXT OF KIN.
TITLE IV.-OF THE POWERS AND DUTIES OF EXECUTORS AND ADMINIS

TRATORS, IN RELATION TO THE SALE AND DISPOSITION OF

THE REAL ESTATE OF THEIR TESTATOR OR INTESTATE.
TITLE V.-OF THE RIGHTS AND LIABILITIES OF EXECUTORS AND ADMIN-

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.
4. Devises to certain aliens void ; who to take the interest devised to them.
5. Wills of real estate, when to pass all testator's estate.

6–20. [Repealed.] SECTION 1. All persons, except idiots, persons of unsound mind who may and infants, may devise their real estate, by a last will and testa- devise,

(87) ment, 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 Barh., 256, 276; 16 Barb.,
292 ; 10 Barb., 604; 4 Barb , 28; 3 Denio, 41;

26 Wend., 297; 1 Paige, 171; 3 Duer, 95. (1 R. L., 364, $$ 1 and 5.] § 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;

40 Barb., 621; 36 Barb., 553; 46 N. Y., 163, [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

601; 9

TITLE 1. unless such corporation be expressly authorised by its charter, or by statute, to take by devise.

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 N. 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 Hun, 651.

[The same.] Devises to

$ 4. Every devise of any interest in real property, to a person aliens. 12 N. Y.,

who, at the time of the death of the testator, shall be an alien, not 379; 5 N.

authorized by statute to hold real estate, shall be void. The interest Y., 239; 32 Barb., 266; so devised, shall descend to the heirs of the testator; if there be no

such heirs competent to take, it shall pass under his will to the Barb., 50; 6 Johns. Ch. residuary devisees therein named, if any there be, competent to take Abb., N. s., such interest. 472 ; 88 N. Y., 357. Wills of

$ 5. Every will that shall be made by a testator, in express terms, how con

of all his real estate, or in any other terms denoting his intent to strued.

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; I

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.]

real estate

L. 1879, Chap. 316-An act to amend chapter two hundred and thirty

eight 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.]

ARTICLE SECOND
OF WILLS OF PERSONAL PROPERTY, AND THE PROBATE OF THEM.
SEO. 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.]

(58-60]

§ 21. Every male person of the age of eighteen years or upwards, ART. 8. 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.,

107, 172; 4 id., 138, 2:26; id., 311; 3 id., 209, 241, 393, 461, 481; 2 Bradf., 62, 133, 188, 244,
261, 295, 360, 385, 419; 1 do., 114, 221, 360, 378, 458; 12 N. Y., 415; 1 Redf., 136; 5 Redf.,

93, 220, 628; 36 Hun, 549; 37 Hun, 254. [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.

8 N. Y., 199;

12 Barb., (1 R. L., 367, § 14.]

155; 4 Sections 23-27 were repealed by L. 1837, ch. 460.)

Bradf., 154. (Sections 28–39 were repealed by L. 1880, ch. 245.]

(61-63]

to be exe.

ARTICLE THIRD.
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 revo-

cation.
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.

40. Every last will and testament of real or personal property, Wills, how or both, shall be executed and attested in the following manner:

cuted. 1. 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; 18 Barb., 24;

11 Barb. 126; 10 Barb., 609 3 Barb., 327; 2 Barb., 203, 393; 1 Barb., 630; 3 Barb. Ch., 163; 1 Denio, 36; 26 Wend., 331; 4 Wend., 168; 10 Paige, 91; 8 Paige, 448; 1 Sandf. Ch., 235; 4 Sandr. s. C., 10; 3 Sandf. S. C., 82; 3 Bradt.,

35, 227, 322, 385; 2 Bradf., 163; 1 Bradf., 352; 38 Barb., 151; 37 Barb., 340;' 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 Y. Y., '634; 15 Hun, 100; 16 Hun, 97; 3 Redt., 74; id , 181; id., 327; id., 34; 19 'Hun, 55; 21 Aun, 533; 22 'Hun, 84; 5 Redt., 20, 271, 316, 376, 431, 544, 561, 624; í Dem., 256, 436, 496; 2 Dem., 309, 471, 498, 505; 3 Dem., 48, 98, 101, 427, 469, 462, 494; 4 Dem., 14, 16, 125, 279; 23 W. D., 248; 27 Hun, 130; 28 Hun, 473; 35 Hun, 447; 37 Hun, 15; 88 N. Y., 377; 91 Ñ. Y., 261, 616; 94 N. Y., 535; 95 N. Y., 194; 98 N. Y., 267, 427; 5

Dem., 19, 68; 42 Hun, 434, 563; 44 Hun, 571; 45 Hun, 1; 103 N. Y., 167. 11 R. L., 364, § 2.]

TITLE 1.

to state

&c.

Written

to be revoked or

2

§ 41. The witnesses in any will, shall write opposite to their names (64) their respective places of residence; and every person who shall sign Witnesses

the testator's name to any will by his direction, shall write his own their places of

name as a witness to the will. Whoever shall neglect to comply residence, with either of these provisions, shall forfeit fifty dollars, to be re

covered 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.

$ 42. No will in writing, except in the cases hereinafter mentioned, wills, how

nor any part thereof, shall be revoked, or altered, otherwise than by cancelled. some other will in writing, or some other writing of the testator, de

claring 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 , 3 Bradf., 35, 92 Bradf., 210, 281 ; 1 Bradf., 114, 436, 476 ; 35 N. Y., 654 ; 34 N. Y., 201 ; 45 Barb., 438 ; 1 Redi., 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 Dom., 481 ; 2 Dem., 160, 309; 3 Dem., 93, 385; 4 Dem., 119; 37 Hun, 225

246; 40 Hun, 387; 88 N. Y., 371 ; 43 Hun, 80.

[1 R. L., 365, $ 3.] Will, when $ 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 and birth

such marriage, born either in his life-time or after his death, and the of issue. 16 N. Y,9; wife or the issue of such marriage shall be living at the death of the 7 Paige, 31; testator, such will shall be deemed revoked, unless provision shall TO; have been made for such issue by some settlement, or unless such 557 ; 51 Barb., 259;

issue shall be provided for in the will, or in such way mentioned 13 H., n,859; 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. Will of un- § 44. A will executed by an unmarried woman, shall be deemed married 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. Bond, &c., § 45. A bond, agreement, or covenant, made for a valuable conto convey sideration, by a testator, to convey any property devised or benorised. o. 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 ; 16 N. Y.,9; 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 3 T. & C.,

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. Charge or

§ 46. A charge, or incumbrance, upon any real or personal estate, brance not

for the purpose of securing the payment of money, or the perform

ance of any covenant, shall not be deemed a revocation of any will [68] relating to the same estate, previously executed; but the devises and

610.

woman.

317.

incum.

a revoca. tion.

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