TITLE 1. the wit dead, &c. that all the subscribing witnesses to any such will, are dead, nesses are insane, or reside out of the state, the surrogate shall take and receive such proof of the hand-writing of the testator, and of either or all the subscribing witnesses to the will, and of such other facts and circumstances, as would be proper to prove such will, on a trial at law. Ib. Proofs, &c., how 1 R. L., 365, § 6 to 9. S17. The proofs and examinations taken under the last disposed of. preceding section, shall be signed, certified and recorded by the surrogate as herein before provided, and the will shall be deposited with him. Ib. Effect of 18. The record of the proofs and examinations taken pursuch proofs. suant to the provisions of the two last preceding sections, and the exemplifications of such record, by the surrogate in whose custody it may be, shall be received as evidence upon any trial or controversy concerning the same will, after it shall have been proved in such trial or controversy, that the lands in question therein, have been uninterruptedly held under such will, for the space of twenty years, before the commencement of the suit, in which such trial or controversy shall be had; and shall be of the same force and effect, as if taken in open court, upon such trial or in such controversy. fees. Witnesses' $ 19. The witnesses shall have the like fees for their attendance, on proving a will, as are allowed for similar services in personal actions, to be paid by the person applying to have such will proved. Records of certain wills, fore 1785. 1 R. L., 366, § 10. S20. The exemplification of the record of any last will and testament, proved before the judge of the former court proved be of probates, and recorded in his office, before the first day of January, one thousand seven hundred and eighty-five, certified under the seal of the officer in whose custody such record shall be, shall be received in evidence in all cases, after it shall have been made to appear, that diligent and fruitless search has been made for the original will. 1 R. L., 368, § 21. See Laws of 1837, ch. 460; 1853, ch. 238; 1857, ch. 173. ARTICLE SECOND. OF WILLS OF PERSONAL PROPERTY, AND THE PROBATE OF THEM. SEC. 21. Males of 18, and females of 16, may make wills. 22. Unwritten wills void, unless made by soldier in service, or mariner at sea. 23. Surrogates when to have exclusive power of proving wills. 24 to 27. (Repealed.) 28. Surrogate first proving will, to have exclusive jurisdiction. 29. Probate to be conclusive as to personal property. 30. Next of kin may contest will or probate. 31. Allegations to be filed in such case. 32. Citation to executors and legatees thereupon. 33. Proceedings of executor suspended by citation. 34. When surrogate to hear proofs; guardians to be appointed. SEC. 35. Surrogate to decide; appeals from such decisions. 36. Depositions on first proof, when evidence. 37. Revocation of probate to be entered on records, and notice given. 38. Powers of executor, &c., to cease after such notice. 39. Surrogate's fees and expenses, by whom to be paid. ART. 2 [60] make wills estate. S21. Every male person of the age of eighteen years, or Who may upwards, and every female not being a married woman, of of personal the age of sixteen years, or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing. 1 R. L., 367, § 16; 12 N. Y., 420; 21 B., 107; 16 B., 262; 1 B. Ch., 13, wills when $22. No nuncupative or unwritten will, bequeathing per- Unwritten sonal estate, shall be valid, unless made by a soldier while in allowed. actual military service, or by a mariner, while at sea. 1 R. L., 367, § 14. Secs. 23, 24, 25, 26, 27 repealed by Laws of 1837, ch. jurisdiction gate prov $28. When any will of personal property shall have been [61] proved before any surrogate having jurisdiction, the jurisdic- Exclusive tion over the executors, and the power of granting letters of surro testamentary and of administration with the will annexed, ing will. with all powers incidental thereto, shall be exercised exclusively by the surrogate who first took the proof of such will; and no other surrogate shall have power to grant letters of administration upon the estate of such testator. when evi $29. The probate of any will of personal property, taken Probate by a surrogate having jurisdiction, shall be conclusive evi- dence. dence of the validity of such will, until such probate be reversed on appeal, or revoked by the surrogate, as herein directed, or the will be declared void by a competent tribunal. 6 N. Y., 198; 18 B., 578; 3 B., 414. may contest will. $ 30. Notwithstanding a will of personal property may Next of kin have been admitted to probate, any of the next of kin to the probate or testator, may, at any time within one year after such probate, contest the same, or the validity of such will, in the manner herein provided. ings. $31. For that purpose, such relative shall file in the office Proceedof the surrogate by whom the will was proved, his allegations Allegations in writing, against the validity of such will, or against the competency of the proof thereof. 1 Pai., 347. to be filed. to execu [62] $ 32. Upon the filing of such allegations, the surrogate Ib. Citation shall issue a citation to the executors, who shall have taken tors and upon them the execution of such will, or to the administra- legatees. tors with such will annexed, and to all the legatees named in such will, residing in this state, or to their guardians, if any of them be minors, or their personal representatives, if any of them be dead, requiring them to appear before him on some day to be therein specified, not less than thirty and not more than sixty days from the date thereof, at his office, to show cause why the probate of such will should not be revoked. TITLE 1. Effect of citation. Proceed ings before surrogate. Surrogate to decide; appeals from such decisions. Former depositions $33. After the service of the citation, such executor or administrator shall suspend all proceedings in relation to the estate of the testator, except the collection and recovery of monies and the payment of debts, until a decision shall be had on such allegations. S 34. At the time appointed for showing cause, and at such other times thereafter as the surrogate may appoint, upon due. proof being made of the personal service of such citation, upon every person named therein, at least fourteen days before the time appointed for showing cause, the surrogate shall proceed to hear the proofs of the parties. If any legatees named in the will so contested, shall be minors, and have no guardians, he shall appoint guardians to take care of their interests in the controversy. $35. If, upon hearing the proofs of the parties, the surrogate shall decide that such will is for any reason invalid, or that it is not sufficiently proved to have been the last will and testament of the testator, he shall annul and revoke the probate thereof; if otherwise, he shall confirm such probate. Appeals from such decisions may be made in the manner, within the time, and with the effect, prescribed by law. 15 B., 656; 10 Pai., 99. S36. Upon any such hearing before the surrogate, the when evi- depositions of witnesses taken on the first proof of the will, who may be dead, insane, or out of the state, may be received in evidence. dence. Revocation to be en $37. Whenever any surrogate shall annul and revoke the tered, no probate of any will of personal property, as herein provided, tice thereof. he shall enter such revocation in his records, and attest the same; and shall cause notice thereof to be immediately served on the executors therein named, or upon the administrators with such will annexed, and to be published for three weeks in a newspaper printed in his county, if there be one, the expense of which publication shall be taxed as a part of the costs of the proceedings. Effect of notice. $38. Upon such notice being served upon such executor or administrator, his powers and authority shall cease, and he shall account to the representatives of the deceased person, whose alleged will was contested, for all monies and effects Prior acts. received; but such executor or administrator shall not be liable for any act done in good faith, previous to the service of the citation, nor for any act so done in the collection of monies, or the payment of debts, after the service of the citation, and previous to the service of the notice of revocation. $39. The surrogate's fees and expenses shall be paid by the party contesting the validity of the will, or the probate thereof, in case such will or probate be confirmed; and in case such probate be revoked, the party who shall have resisted such revocation, may be required, by the surrogate, to pay the costs and expenses of the proceedings, either personally, or out of the property of the deceased. In all cases, such payment may be enforced by process of attachment. See Laws of 1837, ch. 460, § 19. ARTICLE THIRD. GENERAL PROVISIONS APPLICABLE TO WILLS OF REAL AND PERSONAL SEC. 40. Wills, how to be executed. 41. Witnesses to state their places of residence. 42. Wills, how to be revoked or cancelled. 43. Marriage and birth of issue, when a revocation. 44. Will revoked by marriage. 45. Bond, &c., to convey, not a revocation. 46. Charge or incumbrance not a revocation. 47 & 48. Conveyance altering estate devised, when 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 dying before testator, devise not to lapse. 53. When the cancelling of a second will is not to revive first will. 54. Will proved and recorded, to be returned. 55. After proof of will, devisee, &c., may appeal. 56. Party appealing to execute a bond. 57. Circuit judge may reverse decision, or direct issue. 58. Issue how to be made up and tried; new trial thereon. 59 & 60. Effect of the determination upon such issue. 61 & 62. Costs by whom to be paid. 63. Proof by non-resident witnesses. 64. Proceedings thereon. 65. Proofs to be recorded. 66. Record when evidence. 67. Provisions extended to wills of personal. 68. Proof of foreign wills. .69. Wills by persons not citizens. 63. Chancery may take proof of wills lost or destroyed. 64. Decree establishing such will, to be recorded. 65. Court pending suit concerning last will, may restrain administrators, &c. 66. Extent of three last sections. 67. Proof required in respect to lost wills. 68. Provisions to apply to former as well as future wills. 69b. 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, or both, shall be executed and attested in the following manner: 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: ART. 3. Wills how cuted. to be exe TITLE 1. [64] Witnesses to state 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. 1 R. L., 364; 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 B., 557; 22 B., 670; 20 B., 243; 19 B., 448; 15 B., 305; 13 B., 24; 11 B., 126; 10 B., 609; 3 B., 327; 2 B., 203, 393; 1 B., 530; 3 B. Ch., 163; 1 D., 36; 26 W., 331; 4 W., 168; 10 Pai., 91; 8 Pai., 448; 1 S. Ch., 235; 4 S. S. C., 10; 3 S. S. C., 82; 3 Brad., 35, 322, 227, 385; 2 Brad., 163; 1 Brad., 352. S 41. The witnesses to any will, shall write opposite to their names their respective places of residence; and every person their places 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 with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will 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. of residence, &c. Written wills how to be revoked or cancelled. Will when $42. No will in writing except in the cases herein after 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. 1 R. L., 365, § 3; 16 N. Y., 9; 11 N. Y., 157; 26 B., 74; 10 B., 21; 9 B., 534; 4 B., 31; 4 Ab., 320; 1 S. Ch., 334; 3 Du., 477; 4 Brad., 334; 3 Brad., 35, 92; 2 Brad., 210, 281; 1 Brad., 114, 436, 476. S 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 and birth of of such marriage, born either in his life-time or after his death, marriage issue. Will of un and the wife or the issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned 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. 16 N. Y., 9; 1 D., 27; 7 Pai., 97. S44. A will executed by an unmarried woman, shall be married wo- deemed revoked by her subsequent marriage. man. Bond, &c. to convey property 4 J. C. R., 507. $45. A bond, agreement, or covenant, made for a valuable consideration, by a testator, to convey any property devised devised, not or bequeathed in any will previously made, shall not be deemed |