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any preference created therein (other than for the wages or salaries of employees under chapter three hundred and twenty-eight of the laws of eighteen hundred and eighty-four, and chapter two hundred and eighty-three of the laws of eighteen hundred and eighty-six) shall not be valid except to the amount of one-third in value of the assigned estate left after deducting such wages or salaries, and the costs and expenses of executing such trust; and should said one-third of the assets of the assignor or assignors be insufficient to pay in full the preferred claims to which, under the provisions of this section, the same are applicable, then said assets shall be applied to the payment of the same pro rata to the amount of each said preferred claims. [Added by L. 1887, ch. 503.]

105 N. Y., 256.

L. 1885, Chap. 380-An act to confer additional powers upon the supreme court of the state of New York and the justices thereof, Powers, etc., of county judges under general assignment act conferred on justices of the supreme court, etc. SECTION 1. All powers, rights and duties conferred upon county courts and county judges by chapter four hundred and sixty-six of the laws of eighteen hundred and seventy-seven, entitled "An act in relation to assignments of the estates of debtors for the benefit of creditors," and by acts amendatory thereof and additional or supplemental thereto, are hereby also conferred upon and shall be exercised by the supreme court and the justices of the supreme court of the state of New York, concurrently with county courts and county judges. All applications under said acts made in the supreme court shall be made to the court, or a justice thereof, within the judicial district where the assignment is recorded, and all proceedings and hearings under said acts had in the supreme court upon the return of a citation shall be had at a special term of said court held in the county where the judgment debtor resided at the time of the assignment, or in case of an assignment by copartners, in the county where the principal place of business of such co-partners was at the time of such assignment. 40 Hun, 66.

TITLE II.

Of the Custody and Disposition of the Estates of Idiots, Lunatics, Persons of

unsound Mind, and Drunkards.

TITLE 2.

[51-55]

[The foregoing title was expressly repealed by L. 1880, ch. 245, which was passed May 10, 1880, to take effect September 1, 1880, and contained a clause declaring that the repeal of the portions of the Revised Statutes therein specified effected, also, the repeal of all statutes, remaining unrepealed on August 31, 1880, which expressly amended such portions of the Revised Statutes, by adding to or otherwise altering the text thereof. On May 6, 1880, was passed the supplement to the Code of Civil Procedure, chapter 178 of that year (the nine chapters), to take effect on September 1, 1880, and which contained substitutes for the original provisions of the foregoing title of the Revised Statutes. Finally on May 26, 1880, an act was passed (chap. 423), amending section 22 of that title, which last-named act, as amended in 1885, is accordingly here given.]

L. 1880, Chap, 423-An act to amend chapter five, title two, part two of the Revised Statutes of the state of New York.

Amending the Revised Statutes. SECTION 1. Section twenty-two of chapter five, title two, part two of the Revised Statutes, is hereby amended so as to read as follows:

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, § 2.]

ART. 1.

CHAPTER VI.

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

TITLE I.-OF WILLS AND TESTAMENTS OF REAL AND PERSONAL PROP-
ERTY, AND THE PROOF OF THEM.

TITLE II.-OF GRANTING LETTERS TESTAMENTARY AND OF ADMINISTRA-
TITLE III.-OF THE DUTIES OF EXECUTORS AND ADMINISTRATORS IN

TION.

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.]

[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.,
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.]

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;
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

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.

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, 226; id., 311; 3 id., 209, 241, 393, 461, 481; 2 Bradf., 42, 133, 188, 244,
261, 295, 360, 385, 449; I 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.]

estate.

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.

[blocks in formation]

wills, when

8 N. Y., 199; 12 Barb., 155; 4 Bradf., 154.

[61-63]

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 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.

to be executed.

§ 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;
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; i 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, 434, 563; 44 Hun, 571; 45 Hun, 1; 103 N. Y., 167.

[1 R. L., 364, § 2.]

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