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ART. 3.

a revoca

a revocation of such previous devise or bequest, either at law or in equity; but such property shall pass by the devise or tion, &c. bequest, subject to 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.

16 N. Y., 9; 7 Pai., 184.

incum

a revocation

$ 46. A charge, or incumbrance, upon any real or personal Charge or estate, for the purpose of securing the payment of money, or brance not the performance of any covenant, shall not be deemed a revo- [65] cation of any will relating to the same estate, previously executed; but the devises and legacies therein contained, shall pass and take effect, subject to such charge or incumbrance.

16 N. Y., 9; 26 B., 418

ance, &c.

deemed a

$47. A conveyance, settlement, deed, or other act of a tes- Convey. tator, by which his estate or interest in property, previously when to be devised or bequeathed by him, shall be altered, but not wholly revocation. divested, shall not be deemed a revocation of the devise or bequest of such property; 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.

16 B., 572: 9 B., 50; 7 Pai., 100.

$48. But if the provisions of the instrument by which such . alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen.

26 B., 418; 16 B., 572; 2 Brad., 413.

$49. Whenever a testator shall have a child born after the making of his will, either in his life-time or after his death, and shall die, leaving such child, so after born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in his will, every such child shall succeed to the same portion of the father's real and personal estate, as would have descended or been distributed to such child, if the father 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 to them, by such will.

2 B., 248; 5 Pai., 590.

After born provided

child, if un

for, to have

portion of

estate.

Devisee or

witness

$50. If any person shall be a subscribing witness to the legatee may execution of any will, wherein any beneficial devise, legacy, will, but de interest or appointment of any real or personal estate, shall vise to him

veid.

II. - 9

TITLE 1.

When share

of the estate

to such wit

ness.

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.

1 R. L., 367, § 12; 13 N. Y., 93; 5 N. Y., 128; 20 B., 243; 3 B., 414;

4 J. R., 312.

$51. But if such witness would have been entitled to any to be saved share of the testator's estate in case the will was not established, then so much of the share that would have descended, or have been distributed to such witness, shall be saved to him, as will not exceed the 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.

[66]

Devise in certain

lapse.

$ 52. Whenever any estate, real or personal, shall be deCases not to Vised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed 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.

Cancelling of second

will not to revive first,

except, &c.

Wills, when to be re

to whom.

22 B., 195; 19 B., 498; 4 H., 139; 1 Brad., 314.

S 53. If, after the making of any will, the testator shall duly make and execute a second will, the destruction, cancelling or revocation of such second will, shall not revive the first will, unless it appear by the terms of such revocation, that it was his intention to revive and give effect to his first will; or unless after such destruction, cancelling, or revocation, he shall duly republish his first will.

26 B., 76.

$ 54. All wills, whenever proved according to law, except turned, and such as are required to be deposited, shall, after being recorded, be returned upon demand, to the person who delivered the same; or in case of his death, insanity, or removal from the state, to any devisee named in such will, or to the heirs or assigns of such devisee; or if the same relate to personal estate only, to any acting executor of such will, or administrator with the will annexed, or to a legatee named therein.

Appeal

from surro

gate to cir

cuit judge.

$55. After any will of real or personal estate, or of both, shall have been proved before a surrogate, any devisee or legatee named therein, or any heir or next of kin to the testator, may, within three months thereafter, appeal to the circuit judge of the circuit, from the decision of the surrogate, either admitting such will to record, or probate, or refusing the same and upon such appeal being filed with the surrogate,

it shall stay the recording or the probate of such will, until it be determined.

26 B., 417; 22 B., 83; 12 B., 325; 10 Pai., 100.

ART. 3.

pealing to

execute a

bond.

$56. The party filing such appeal, shall, at the same time, Party ap execute and file with the surrogate, a bond in the penalty of one hundred dollars, to the people of this state, with such sureties as the surrogate shall approve, conditioned for the diligent prosecution of such appeal, and for the payment of such costs as shall be taxed against him, in the event of his failure to obtain a reversal of the decision so appealed from. No appeal shall be deemed valid, until such bond be filed.

Laws of 1830, ch. 320, § 15; 7 Pai., 50.

circuit

$ 57. If it appear to the circuit judge that the decision of Power of the surrogate was erroneous, he may, by order, reverse such judge, on decision; and if such reversal be founded upon a question of appeal. fact, shall direct a feigned issue to be made up, to try the questions arising upon the application to prove such will, and shall direct the same to be tried at the next circuit court, to be held in the county where the surrogate's decision was made.

16 How. P. R., 301; 11 B., 661; 2 Brad., 325.

[67]

to be made

$58. Such issue shall be made up and tried in the same Issue how manner as issues awarded by the court of chancery; but a up and tried new trial of such issue may be granted by the supreme court, in the same manner as if it had been formed in a suit, originally commenced in such court.

determina

pon such

issue.

$59. The final determination of such issue, shall be con- Effect of the clusive as to the facts therein controverted, in respect to wills tion had of personal estate only, upon the parties to the proceedings: if such determination be in favor of the validity of such will, either of real or personal estate, or in favor of the sufficiency of the proof thereof, the surrogate, to whom such determination shall be certified, shall record such will, or admit the same to probate, as the case may be.

$60. If such determination be against the validity of such ь. will, or against the competency of the proof thereof, the surrogate shall annul and revoke the record or probate thereof, if any shall have been made.

whom to be

$61. The costs and expenses of making up an issue, and Costs, by of the trial thereon, and all subsequent costs thereon, shall be paid, &c. paid by the party appealing, in case of his failure to impeach the validity or execution of the will. Such costs and expenses may be collected in a suit upon the bond herein directed to be given, which shall be prosecuted for that purpose whenever directed by the surrogate.

22 B., 83.

S62. If the appellant succeed in impeaching the validity . or execution of the will, the party who shall have maintained such validity or execution, may be required, by the surrogate, to pay the costs and expenses of the proceedings, either per

TITLE 1.

Proof of

will by nonresident

sonally or out of the property of the deceased; and such payment may be enforced by process of attachment.

$ 63. A will duly executed according to the laws of this state, where the witnesses to the same reside without the witnesses. jurisdiction of this state; or a duly exemplified or authenticated copy thereof, when the original will is in the possession of a court or tribunal of justice in another country or state whence the same cannot be obtained, may be proved in the court of chancery, upon a commission to be issued for that purpose, on application to the chancellor.

Proceedings thereon.

Proofs to be recorded.

Proofs when evidence.

Extended

to wills of personal.

Proof of foreign wills of personal.

6 Pai., 184; 2 Pai., 214, 429.

Sections 63 to 69a were inserted by Laws of 1830, ch. 320, § 16.

$ 64. Such commission may be issued upon the petition or bill of any person interested in the establishment of the said will: and such notice shall be given to the parties interested to oppose the validity thereof as the chancellor shall direct; or such notice may be dispensed with, where from the circumstances of the case, it shall be deemed unnecessary.

$65. If the facts necessary to establish the validity of the said will shall appear on the proof so taken, the chancellor shall direct the said will or copy, and the proofs or examinations, to be recorded in the office of the register of that court.

$66. Every will or copy so proved shall have a certificate of such proof endorsed thereon, signed by the register, and attested by the seal of the court of chancery, and may then be read in evidence without further proof thereof; and every record so made, or an exemplification thereof, shall be received in evidence, and shall be as effectual, in all cases, as the original will would be if produced and proved, and may, in like manner, be repelled by contrary proof.

S 67. The provisions contained in the preceding four sections shall extend to wills of personal as well as of real property, and to wills already executed as well as to such as shall be hereafter executed: and where there shall be assets of the testator within this state, and due notice shall have been given to the parties interested to oppose the will, the chancellor may, by decree, establish the same as a will of personal estate; and in such case, shall transmit such decree to be recorded in the office of the surrogate having jurisdiction, with directions to such surrogate to issue letters testamentary or of administration with the will annexed thereon, in the same manner as upon wills duly proved before him.

$68. Wills of personal estate, duly executed, by persons residing out of this state, according to the laws of the state or country in which the same were made, may be proved under a commission to be issued by the chancellor: and when so proved, may be established and transmitted to the surrogate having jurisdiction, as provided in the last preceding section and where a will so executed shall have been duly admitted to probate, in such state or country, letters testamentary or of administration, with the will annexed, may

also be issued thereon, by the surrogate having jurisdiction, upon the production of a duly exemplified or authenticated copy of such will, under the seal of the court in which the same shall have been proved.

2 Brad., 105, 169; 1 Brad., 70.

ᎪᎡᎢ, 3,

wills by

citizers.

$69. But no will of personal estate, made out of this state, Foreign by a person not being a citizen of this state, shall be admitted persons not to probate under either of the preceding provisions, unless such will shall have been executed according to the laws of the state or country in which the same was made.

8 Pai, 525; 2 Brad., 169.

or destroy

$ 63. Whenever any will of real or personal estate shall be Wills lost lost or destroyed, by accident or design, the court of chancery ed. shall have the same power to take proof of the execution and validity of such will, and to establish the same, as in the case of lost deeds.

1 S. Ch., 235; 26 B., 253; 6 Pai., 184; 2 Brad., 281.

establish

be record

$646. Upon such will being established by the decree of a Ib. Decree competent court, such decree shall be recorded by the surro- ing will to gate, before whom the will might have been proved, if not lost ed, &c. or destroyed, and letters testamentary, or of administration, with the will annexed, shall be issued thereon by him, in the same manner as upon wills duly proved before him.

5 N. Y., 311.

may reministra

[68]

$ 65. If before, or during the pendency of, an application b. Court to prove a lost or destroyed will, letters of administration be strain adgranted on the estate of the testator, or letters testamentary tors, &c. of any previous will of the testator be granted, the court, to which such application shall be made, shall have authority to restrain the administrators or executors so appointed, from any acts or proceedings, which it may judge would be injurious to the legatees or devisees claiming under such lost or destroyed will.

2 Brad., 334.

S 66. The three last sections shall extend to wills of real Ib. and personal property already executed.

5 N. Y., 312.

$67. No will of any testator who shall die after this Chapter shall take effect as a law, shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator; or be shown to have been fraudulently destroyed, in the life time of the testator; nor unless its provisions shall be clearly and distinctly proved, by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness.

10 N. Y., 278; 10 W., 44; 2 Brad., 334.

Proof of

lost will,

in future

cases.

of certain

$68. The provisions of this Title, in relation to the proof Application and probate of wills hereafter to be had, and the jurisdiction provisions. of the surrogate, and his proceedings thereon, shall apply as

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