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LECTURE NOTES 
 
 ON THE 
 
 NEW YORK LAW OF WILLS, 
 
 FOR USE IN CONNECTION WITH 
 
 CHAPLIN ON WILLS. 
 
 BY 
 
 STEWART CJIAPLIN, 
 
 OF THE NEW YORK BAR, AUTHOR OF " SUSPENSIOJJ OF THE POWER OF ALIEN- 
 ATION," AND OF "THE LAW OF WILI^," AND PROFESSOR IN THE 
 METROPOLIS LAW SCHOOL, NEW YORK CITY. 
 
 NEW YORK: 
 
 BAKER, VOORHIS & COMPANY. 
 
 1893. 
 
 52161 
 
COPYRIGHT, i8g3, 
 
 By STEWART CHAPLIN. 
 
 
 PRERS OF 
 
 EDWARD O. JENKINS' SON, 
 
 NEW YORK. 
 
LECTURE NOTES 
 
 ON THE 
 
 NEW YORK LAW OF WILLS. 
 
 DEFINITION OF WILL. 
 
 A will is one's solemn declaration, in legal form, and revocable 
 during his life, making a disposition of his property to take effect 
 at his death. 
 
 Text-Book, p. 468. 
 
 This definition includes the following four points, which are 
 necessary features in every will, namely : 
 
 1. It must be a solemn declaration. That is, it must represent 
 the testator's serious and intelligent intention. 
 
 Text-Book, 349 ei seq., 13-13. 
 
 2. It must be in legal form., as provided by the statutes con- 
 cerning wills. 
 
 Text-Book, 314-308 ; 383-397. 
 
 3. It must be such as to take effect only at testator's death. 
 Before that date it can have no effect for any purpose whatever, 
 and if it does, it is not a will. 
 
 Text-Book, 390-395. 
 
 4. It must be revocable by testator as long as he lives. 
 
 Text-Book, 309-376 ; 408-430. 
 
 FOEM OF THE WILL. 
 
 So long as testator follows the statutory requirements concern- 
 ing execution, he is not obliged to adopt any particular form. If 
 
 (3) 
 
4 FOEEIGN LANGUAGE. 
 
 a will is duly executed it will not be invalid merely because in 
 the form of a deed, an assignment, a letter, etc., nor because con- 
 tained in the same instrument with a power of attorney, a contract, 
 etc. But in drawing a will the usual and familiar form should, 
 of course, always be followed. 
 Text-Book, pp. 383-397. 
 
 Letter resembling, but not in fact, a will. 
 Re Richardson's Estate (Cal.), 29 Pac. Rep. 484. 
 
 Deed or Will — distinction. 
 
 Diefendorf v. Diefendorf, 132 N. Y. 100. 
 Also cases cited in Text-Book, p. 895. 
 
 Promissory note payable after death of maker, not a will. 
 
 Carnwright v. Gray, 127 N. T. 93. 
 Hegeman v. Moon, 131 N. Y. 463. 
 
 Yalid will in form of a letter. 
 Cowley V. Knapp, 43 N. J. L. 397. 
 
 See " A Will or not a Will," 
 
 in N. Y. Daily Law Journal, May 33, 1893, p. 494. 
 
 MATEKIAL8. 
 
 A will may be written on any materials, and with any mate- 
 rials, if they are appropriate for such use. But paper and ink 
 should always be used when possible. A slate, for instance, would 
 not generally be proper for such a use. For further discussion 
 see Text-Book, 382-3. 
 
 FOEEIGir LANGUAGE. 
 
 A valid will may be in any language, if understood by the 
 testator. On his death it can be translated and proved. 
 
 It is not necessary that testator should understand the languao-e 
 in which it is written. If the language correctly expresses what 
 he wishes, and it is explained to him, so that he understands its 
 provisions, though not the words in which they are expressed 
 this is sufficient. 
 
 Text-Book, 383 and 387. 
 
SUBSCRIPTION AT THE END. 
 
 EXECUTION OF WILLS. 
 
 The New York statute provides as follows: 
 
 " Every last ■Vrill 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 acknowl- 
 edged by him, to have been so made, to each of the attesting wit- 
 nesses : 
 
 " 3. The testator, at the time of making such subscription, or 
 at the time of acknowledging the same, shall declare the instru- 
 ment 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." 
 
 2 R. S. 63, § 40 ; 3 Birdseye's Edition, p. 3343. 
 
 I. — FIRST, SUBSCRIPTION AT THE END. 
 
 (a). Meaning of the word " siibsariledP 
 
 Text-Book, 315-326. 
 
 The proper course is for a testator to sign his full name. But 
 other metlaods are not illegal. Thus, he may make a mark. 
 
 bis 
 
 Thus, wills are sometimes signed as follows : John X Smith. 
 
 mark. 
 Compton V. Mitton, 13 N. J. L. 82 (85). 
 Jackson v. Jackson, 39 N. Y. 158. 
 
 "When a mark is used, it is proper, though not necessary, to 
 have some one write testator's full name about the mark, to iden- 
 tify and describe it. It is very important to notice that in these 
 cases the ma/rh itself^ and not the writing around it, is the sig- 
 nature. Therefore, if testator makes his mark, it will be valid 
 even though no name is written round it, or although the wrong 
 name is written by mistake. 
 
 Text-Book, pp. 215, 216, 238. 
 Jackson v. Jackson, 39 N. Y. 153. 
 
6 SUBSOBIPTION AT THE END. 
 
 So testator may sign by his initials only. 
 Text-Book, p. 315. 
 
 Or by his first name only. 
 Text-Book, p. 217. 
 
 For other methods of signing, 
 • Text-Book, pp. 315-323. 
 
 But whether testator writes his full name, or mark, or other 
 sign, he must intend the writing he makes to stand for and rep- 
 resent his signature. Otherwise he has not duly signed the will. 
 Text-Book, p. 216 e. 
 
 In New York the testator's subscription may be written for 
 him by another person, by his express direction. 
 
 Eobins v. Coryell, 37 Barb. 556. 
 
 3 R. S. 64, § 41, Birdseye's Ed., p. 3343. 
 
 But it would be unwise to adopt this method unless absolutely 
 necessary. 
 
 Merchant's Estate, 1 Tuck. 151. 
 
 The New York statute (2 E. S. 64, § 41, Birdseye's Ed., 
 p. 3343) provides that any person who shall sign the testator's 
 name to any will by his direction shall write his own nartle as a 
 witness to the will. If he neglects to comply with this require- 
 ment, he shall forfeit $50, but the omission shall not invalidate 
 the will, nor shall the penalty incapacitate or excuse such person 
 from testifying concerning the execution of the will. 
 
 If testator holds the pen, and makes such physical effort as he 
 can, and his hand is steadied and guided by some one else, in that 
 case the signature is made by testator, and not by the other person 
 
 for him. 
 
 Stevens v. Vancleve, 4 Wash. C. C. 263. 
 Fritz V. Turner, 46 N. J. Eq. 515. 
 Meehan v. Rourke, 3 Bradf. p. 393. 
 
 But in such a case it is wise to have the person who thus guides 
 testator's hand, sign also as a witness, so as to avoid any chance of 
 conflict with the statute last referred to. 
 
SUBSCRIPTION AT THE END. 7 
 
 (J). Position of testator's signature. 
 Text-Book, 239-233; 336. 
 
 The New York statute provides that the will shall be sub- 
 scribed by the testator "at the end of the will." 
 
 The purpose of this requirement is to make it very clear and 
 certain just what it is that testator signed. If any part of the 
 will follows the signature, the whole will is void because not sub- 
 scribed at its end. Thus, if part of the will is below testator's 
 signature (Sisters of Charity v. Kelly, 67 N. Y. 409, 415), or 
 is written on a subsequent page (Matter of O'J^eil, 91 N. Y. 516; 
 Matter of Conway, 124 N. Y. 455), the entire will is void. 
 
 Three further points are important. 
 
 1. If the final paragraphs are not properly part of the will, as, 
 
 for example, if testator should add on a brief history of his life, 
 
 or copy in the Apostles' Creed, and then subscribe his name, this 
 
 would be good. The addition of immaterial words before the 
 
 signature, does not prevent his signature from being at the end of 
 
 the will. 
 
 Younger v. Duffle, 94 N. Y. 585, where testator signed below the 
 attestation clause. 
 
 2. The fact that testator signs his name above or before certain 
 clauses will not render the will void if they are entirely outside 
 matters not intended as part of the will. Such a situation often 
 raises perplexing questions. 
 
 See Conboy v. Jennings, 1 T. & C. 633, given in TextBook, 280. 
 
 3. After a will has once been duly subscribed at the end, and 
 
 properly executed, a subsequent addition of further provisions 
 
 below the signature would be void, but would not render the 
 
 will void. 
 
 Matter of Jacobson, 6 Dem. 398, given in Text-Book, 229. 
 
 On the general question of what does and what does not con- 
 stitute the " end " of a will, read also 
 
 Brady v. McCrosson, 5 Redf. 431. 
 Tonnele v. Hall, 4 N. Y. 140. 
 
8 SIGNING IN THE PRESENCE OP WITNESSES. 
 
 And compare under tke English statute (given in Text-Book, 
 p. 471), 
 
 Goods of Greenwood, [1892], P. 7. 
 Goods of Birt, L. R. 3 P. D. 214. 
 
 II. SIGNING OE ACKNOWLEDGING IN THE PRESENCE OF 
 
 WITNESSES. 
 
 Text-Book, 236-241. 
 
 The second requirement of the New York statute is intended 
 to furnish the witnesses with definite information concerning tes- 
 tator's signature, so that they may intelligently attest his making 
 or acknowledgment of the same. It accordingly provides that he 
 must do one of two things, namely : 
 
 1. He must either make his subscription in the presence of 
 each of the attesting witnesses, or else 
 
 2. He must acknowledge to each of the attesting witnesses that 
 the subscription was made by him. 
 
 He is not required to do both of these things. He can do 
 either one or the other. 
 
 We will first consider the ease where he subscribes in the pres- 
 ence of each witness. 
 
 The only question here is, what is meant by the phrase " in the 
 presence" of the witness. This means that the witnesses must 
 see him sign. 
 
 Matter of Mackay, 110 N. Y. 611 (615), given in Text-Book, p. 
 
 339 (241). 
 But compare In re Look, 7 N. Y. Supp. 298 (aff'd 135 N. Y. 763). 
 
 If, instead of signing in the presence of the witnesses, the tes- 
 tator acknowledges the signature, in their presence, the following 
 points are to be noticed : 
 
 1. The witnesses must see the signature which testator acknowl- 
 edges. 
 
 Matter of Mackay, 110 N. Y. 611, given in Text-Book, 339. 
 
 But compare In re Look, 7 N. Y. Supp. 298 (afE'd 125 N. Y. 762). 
 
 2. Where testator has written his name, and shows the will and 
 signature to the witnesses, and declares it to be his will and asks 
 them to sign it, this is a sufiicient acknowledgment of the siona- 
 
DECLARATION OF THE WILL. 9 
 
 ture, and it is not essential for him to refer to it or acknowledge 
 it in so many words. 
 
 Baskin v. Baskin, 36 N. Y. 416, given In Text-Book, 237. 
 Matter of Phillips, 98 N. Y. 273. 
 
 3. The New York statute does not require both witnesses to 
 be present at the same time. Testator may sign in the present-e 
 of one witness and acknowledge the signature in the presence of 
 the other; or he may sign first, and afterwards acknowledge it to 
 each witness separately ; or he may sign in the presence of both, 
 or acknowledge in the presence of both. 
 
 Hoysradt v. Kingman, 23 N. Y. 373. 
 
 4. In either case each witness must either see Mm sign, or he 
 must see the completed signature. The reason is, that one of the 
 objects of having witnesses is to have them certify of their own 
 knowledge, that he did sign, or that he did acknowledge the par- 
 ticular signature. 
 
 In re Mackay's "Will, 110 N. Y. 611, given in Text-Book, 239. 
 But compare In re Look, 7 N. Y. Supp. 298 (afE'd 125 N. Y. 762). 
 
 III. DECLARATION OF THE WILL. 
 Text-Book, 241-364. 
 
 The meaning of the statutory requirement that testator shall 
 declare the will, is that he shall make known to the witnesses that 
 it is his will. 
 
 The word " Declaration " and the word " Publication " mean 
 the same thing. 
 
 Ludlow V. Ludlow, 36 N. J. Eq. 600. 
 
 It is not necessary that testator should make this request in the 
 words of the statute. Any words, or signs, or gestures which 
 clearly show to the witnesses that he adopts the instrument as his 
 will are sufficient. 
 
 Lane v. Lane, 95 N. Y. 494 (given In Text-Book, p. 244), and 
 
 cases there cited. 
 Tumure v. Turnure, 35 N. J. Eq. 440. 
 
 For example, if the draughtsman asks testator if the paper is 
 his will, and he says " yes," or nods ; or if the attorney states to 
 
10 BEQUEST TO WITNESSES. 
 
 the witnesses in testator's presence, that it is testator's will, and 
 testator hears and understands what he says, and shows his assent, 
 this is sufficient. 
 
 Matter of Voorhis, 135 N. Y. 765. 
 
 ComptOQ V. Mitton, 12 N. J. Eq. 597 (601); and other cases cited 
 in Text^Book, pp. 343-249. 
 
 But it must always be made perfectly clear that testator per- 
 sonally adopts, approves, and publishes the will. It is not enough 
 that the witnesses know that it is a will. They must know that 
 fact from the testator. 
 
 Lewis V. Lewis, 11 N. Y. 220'', given in Text-Book, p. 343. 
 Mundy v. Mundy, 15 N. J. Eq. 292 (294). 
 
 ANIMTJS TESTAUDI. 
 
 The meaning of this phrase is " the intent to mak^ a will." 
 This intent is absolutely essential. No one can make a will un- 
 unless he has the intent so to do. 
 
 Text-Book, p. 249, and cases there given, pp. 250-258. 
 
 It follows from this, also, that it is always necessary that tes- 
 tator should fully understand the provisions of tlie will. 
 
 When a will has been duly executed, the presumption is that 
 testator did understand its provisions. But !f-the evidence shows 
 that testator was blind, or unable to read, or there are other rea- 
 sonable grounds for doubting whether he did understand the will, 
 then the proponent must show that testator did understand it. 
 Otherwise it will not be admitted to probate. 
 
 For a full discussion of this subject read 
 
 Maxwell v. Hill, Text-Book, pp. 258-264; also Text-Book, pp. 
 349-358; also 37-34; and in general, 13-94. 
 
 IV. REQUEST TO WITNESSES. 
 Text-Book, 364-367. 
 By statute in New York it is necessary that the witnesses 
 should sign at testator's request. (See the Statute, given above, 
 p. 5.) 
 
 This request need not be made in so many words. What is 
 necessary is that testator must in some clear manner show that lie 
 
SIGKING BY WITNESSES. 11 
 
 wishes the witnesses to sign. This he may do by words, or signs, 
 
 or gestures, or by nodding approval of what some one says for 
 
 him, etc. 
 
 Coffin V. Coffin, 23 N. Y. 9; Text-Book, p. 865. 
 
 Lane v. Lane, 95 N. Y. 494. 
 
 Peck V. Cary, 27 N. Y. 9. 
 
 Gilbert v. Knox, 53 N. Y. 125. 
 
 Whitenack v. Stryker, 1 Gr. Ch. (N. J.) 9 (15). 
 
 V. SIGNING BY WITNESSES. 
 Text-Book, 367. 
 
 The New York statute requires that there shall be at least two 
 attesting witnesses, each of whom shall sign his name as a witness, 
 at the end of the will. (See the Statute, given above, p. 5.) 
 
 1. Meaning of " attesting." See Text-Book, p. 267. 
 
 2. Meaning of ^'^ sign his name.'''' Notice the difference in 
 form between this requirement, and the one relating to testator's 
 subscription. (" Sign his name "; " subscribed by the testator.") 
 
 In spite of this difference, it has been decided that a witness 
 may sign by making a mark. 
 
 Morris v. KnifCen, 37 Barb. 336. 
 Meehan v. Rourke, 3 Bradf. 385. 
 Jackson v. Van Dusen, 5 Johns. 144. 
 
 But one who writes testator's name for him, is by statute di- 
 rected to also write his own name, as a witness. 
 3 R. S. 64, § 41; Birdseye's Ed. 3343. 
 
 Notice the difference in this direction. Perhaps in this case 
 the witness would not be allowed to sign by mark. 
 See Meehan v. Rourke, 3 Bradf. 393. 
 
 As a witness may sign by mark, it would seem to make no dif- 
 ference what kind of a mark it is, if intended as a signature. 
 
 It has recently been decided by the Surrogate's Court that a 
 witness may have another person sign his name for him. 
 Matter of Strong, Text-Book, pp. 370-373. 
 
 3. ^^ At the end of the will." The witnesses generally sign at 
 the end of the attestation clause which follows testator's sig- 
 
12 SIGNING BY WITNESSES. 
 
 nature. This is the proper place. If there is no attestation 
 clause they should sign iiiimediatelj below or beside testators 
 signature. 
 
 If part of the will, written before execution, follows their sig- 
 natures, the whole will is void. 
 
 Matter of Case, 4 Dem. 134. 
 
 Matter of Hewitt, 91 N. Y. 261. 
 
 Cbmpare Hitchcock v. Thompson, 6 Hun 379 (which seems erro- 
 neous) with Hewitt v. Hewitt, 5 Redf . 371 (aiBE'd 91 N. Y. 361). 
 
 See also ante, p. 7, subd. 3. 
 
 4. Witnesses need not sign in the presence of the testator. 
 
 Such a provision was in the former statute, but was omitted in 
 
 1830, and is not now in force. 
 
 Lyon V. Smith, 11 Barb. 134. 
 Rudden v. McDonald, 1 Bradf. 353. 
 Neugent v. Neugent, 2 Redf. 376. 
 
 But the witnesses must sign on the same occasion when testa- 
 tor signs or acknowledges, and must sign with his knowledge and 
 at his request. (See cases last cited.) If he dies after signing 
 but before they sign, the will is void. 
 Vernon v. Spencer, 3 Bradf. 16. 
 
 5. The witnesses must sign last of all, after all the other require- 
 ments have been performed. The reason is, that the very pur- 
 pose of having attesting witnesses is, to have them certify thSt the 
 other requirements have heen performed. Therefore thev must 
 sign last of all. 
 
 Jackson v. Jackson, 39 N. Y. 153. 
 
 With this exception, the various required steps may be taken 
 in any order. Thus, testator may declare the instrument to be 
 his will, either before he signs it, or afterwards. 
 
 Errickson v. Fields, 30 N. J. Bq. 634, (636). 
 Leaycraft v. Simmons, 3 Bradf. 35. 
 Gamble v. Gamble, 39 Barb. 373. 
 
 6. Eesidence of witnesses. 
 
 The witnesses to any will, must write opposite to their names 
 their respective places of residence. 
 
 Failure to do so involves forfeit of $50, but does not affect 
 the validity of the will. 
 
 2 R. 8. 64, § 41 ; Birdaeye's Ed., p. 3343, § 9. 
 
FORM OF WILL. IB 
 
 ATTESTATION CLAUSE. 
 
 For the form, purpose, necessity, and value of the attestation 
 clause, read Text-Book, 281-291. 
 
 The " testimonium clause" or " witness clause," is the para- 
 graph usually placed at the end of the will just above testator's 
 signature, and beginning, " In testimony whereof, I hereunto set 
 my name," etc. Or sometimes it begins, " In witness whereof," etc. 
 
 The " attestation clause " comes later, and states the perform- 
 ance of the statutory requirements, and is signed by the witnesses. 
 
 FOEM OF WILL. 
 
 I, John Smith, of 100 Twelfth Ave., New York City, do 
 hereby make this my last will and testament. 
 
 I. I direct that all my just debts and funeral expenses be first 
 paid.' 
 
 II. I give all my property, real and personal, to my wife. 
 
 III. I appoint my son William the executor of this my last 
 will. 
 
 lY. I revoke all former wills made by me." 
 
 In testimony whereof, I hereunto subscribe my name, this first 
 
 day of October, 1892. 
 
 John Smith. [Seal.]' 
 
 On this 1st day of October, 
 1892, the foregoing instrument 
 was subscribed, sealed, published, 
 and declared by the above-named 
 testator as his last will and testa- 
 ment, in the presence of us who at 
 his request, and in his presence, 
 and in the presence of each other, 
 have hereunto signed our names 
 as attesting witnesses. 
 
 James K. Jones, 55 Avenue F, New York City. 
 Gael Steek, 3000 First Street, Baltimore, Md.* 
 
 ' This is not a necessary provision. They would have to be first paid anyway. 
 
 '' If the will ill fact disposes of all testator's property, this is not necessary. 
 The new will revokes previous ones automatically, so far as inconsistent. 
 Text- Book, p. 309. 
 
 ' A seal is not necessary. Matter of Diez, 50 N. Y., 88. 
 
 ■* Witnesses need not be residents of New York. Nor adults. See Text-Book, 
 293. 
 
14 TESTAMENTARY INCAPACITY. 
 
 TESTAMENTARY INCAPACITY. 
 
 Eead " Introduction " in Text-Book. 
 Also pp. 5-24, and cases pp. 25-34. 
 
 As a general rule, every one may make a will. There are a 
 few exceptions. 
 
 1. /w/awfo.— (Text-Book, pp. 5-11.) In order to make a will 
 of real property, testator must be twenty-one years old. In 
 order to make a will of personal property, a male must be 
 eighteen years old, and a female must be sixteen years old. Under 
 these ages, no one can make a will. 
 
 2. Aliens. — (Text- Book, p. 10.) All aliens can make wills of 
 personal property, and can bequeath it to any one they please. 
 
 Craig V. Leslie, 3 Wheat. 563. 
 Anstice v. Brown, 6 Pai. 4i8. 
 Text-Book, p. 10, note 3 ; L. 1890, ch. 279. 
 
 In regard to real property, the law on the subject depends on 
 a large number of statutes which could not be conveniently surama- 
 i-ized here. They may be found collected in Birdseye's Edition 
 of the Revised Statutes, pp. 2517-2525. In connection with 
 these, read 
 
 Wright V. Sadler, 30 N. Y. p. 384. 
 
 Hall V. Hall, 91 N. T. p. 135. 
 
 Stamm v. Bostwick, 112 N. Y. 48. 
 
 Wainwright v. Low, 132 N. Y. 313. 
 
 Maynard v. Maynard, 36 Hun, 327. 
 
 Goodrich v. Russell, 42 N. Y. 177. 
 
 Devises of land by any alien to citizens of New York are all 
 
 valid. 
 
 L. 1877, ch. Ill, § 1. 
 
 3. Criminals. — (Text-Book, pp. 10-12.) In New York, all 
 criminals (as to outlaws see below) can dispose of all their prop- 
 erty by will. 
 
 The reason why certain classes of criminals could not dispose of 
 their property by will, at the common law, was that upon convic- 
 tion all their property was forfeited to the crown, and therefore 
 there was nothing left for them to devise or bequeath. 
 
 In New York, the Penal Code, by § 710, provides that 
 " a conviction of a person for any crime does not work a forfeiture 
 
TE3TAMENTAKT INCAPACITY. 16 
 
 of any property, real or personal, or of any right or interest 
 therein. All forfeiture to the people of the State, in the nature 
 of deodands, or in a case of suicide, or where a person flees from 
 justice, are abolished." 
 
 The Code of Criminal Procedure, however, §§814-819, provides 
 that when a person has been convi'?ted of treason, and has escaped 
 and cannot be found, judgment of outlawry may, after certain 
 proceedings, be rendered, and the defendant shall thereupon for- 
 feit to the State during his life, but no longer, all his property, 
 real and personal. 
 
 These two statutes, when construed together, are to be deemed 
 to have been enacted on the same day (Jan. i, 1891). (See Penal 
 Code, § Y2Y, as amended, L. 1882, ch. 102 ; Code Crim. Proc, 
 § 963.) They are therefore to be construed together as establishing 
 a general rule with one exception. 
 
 It will therefore be seen that outlawry is the only case where 
 property is forfeited. In all other cases, therefore, in New York, 
 all criminals, although convicted and sentenced, can dispose of all 
 their property by will. Even in that one exception, it is forfeited 
 only for the life of the outlaw. An interesting question is there- 
 fore presented whether, in New York, even an outlaw does not 
 retain the right to dispose by will of his property, for a will does 
 not go into effect until the testator's death, and at the death of 
 the outlaw the forfeiture ceases. This question seems not to have 
 been raised here. On this point read ^ 
 
 Wallach v. Van Riswick, 93 U. S. SOg,.---'"^ 
 111. Cent. R.R. Co. v. Bosworth, 13SV. S. 92. 
 Compare Avery v. Everett, 110 N. Y.^317.__ 
 
 It is true that the Penal Code provides, in § 708, that " a person 
 sentenced to imprisonment for life is thereafter deemed civilly 
 dead." 
 
 But it has been decided that such a civil death does not divest 
 the convict of the title to his property, and he retains full right to 
 dispose of it by conveyance, or by a will, which takes effect only 
 upon his actual death. 
 
 Avery v. Everett, 110 N. Y. 317. 
 
 Read the whole opinion and notice in particular the reference to 
 his power to make a will, on p. 338. 
 
16 TESTAMENTAET INCAPACITY. 
 
 4. Married Women. — Married women in New York may now 
 devise and bequeath all tlieir property, real and personal, without 
 any restriction. 
 
 Hatfield v. Sneden, 54 N. Y. 280 (287). 
 Ransom v. Nichols. 22 N. Y. 110 (111). 
 Barnes v. Underwood, 47 N. Y. 357. 
 
 For the early law on the subject of a married woman's right to 
 make a will, see Text-Book, pp. Y-9. 
 
 Great changes, extending and completing the right of married 
 women to take, hold, and dispose of property, have been made by 
 a series of statutes, of which the following are for the present 
 purpose the most important : 
 
 L. 1843, ch. 200. 
 
 L. 1849, ch. 375. 
 
 L. 1860, ch. 90. 
 
 L. 1863, ch. 172. 
 
 L. 1887, ch. 537. 
 
 L. 1892, ch. 594, amending L. 1884, ch. 381, 
 
 See Birdseye's R. 8., pp. 1403-1407. 
 
 For a clear and valuable statement of the effect of marriage 
 upon a woman's property rights at common law, read the iirst part 
 of the opinion in Barnes v. Underwood, 47 N. Y. 351. 
 
 The present state of the law in New York is as follows: 
 
 A woman does not, by marriage, lose any of her rights or title 
 in property owned by her at the time of the marriage. And 
 thereafter she may acquire property by inheritance, gift, grant, 
 devise, or bequest, and may earn money for herself as pay for her 
 labor and services, or as profits in business, and all the property 
 acquired by her in any way becomes her sole and separate prop- 
 erty. 
 
 Notwithstanding the earlier statutes, her right to acquire prop- 
 erty /rowi her husband was in some respects restricted, or doubtful. 
 
 Even before the statutes above given, a wife could receive a 
 valid gift of personal property from her husband, valid except 
 as against subsequent cieditors. 
 
 Rawson v. Penn. R. Co,, 48 N. Y., p. 216. 
 Phillips V. Worcester, 36 N. T. 412. 
 Armitage v. Mace, 96 N. Y. 538. 
 
TESTAMENTARY INCAPACITY. 17 
 
 And in 1887 a statute was passed allowing her to take a good 
 legal title to land, by direct conveyance from her husband. 
 
 Dean v. M. E. B. Co., 119 N. Y. 540 (546-7). 
 L. 1887, ch. 537, Birdseyes R. S., p. 1407. 
 
 And in 1892 a further statute was passed (L. 1884, ch. 381, as 
 amended by L. 1892, ch. 594), completing her right to contract 
 freely, even with her husband. 
 
 All her property acquired in any way, and from any source, she 
 
 may now dispose of freely in any way, either during her life, or 
 
 by will. 
 
 See the foregoing statutes, and cases. 
 
 Her right to dispose of all her property, real and personal, by 
 will, is now so complete that she can even cut off the right of her 
 husband to curtesy, by conveying or devising her land to some 
 one else. But if she does not dispose of her property during her 
 life, or by will, the husband's interest in it is not changed by 
 these statutes. In such a case he is still entitled to curtesy in her 
 land, and to his former rights in her personal property. 
 
 Hatfield v. Sneden, 54 N. Y. 230 (287). 
 
 Ransom v. Nichols, 22 N. Y. 110 (111). 
 
 Barnes v. Underwood, 47 N. Y. 357. 
 
 2 R. S. 98, § 79, as amended ; Birdseye's Ed., 1135, § 193. 
 
 5. Persons non compos. — These form the most common and 
 most important class of exceptions to the right to make a will. 
 
 On this subject there are two important questions. 
 
 First Qvsstion. — Did the testator have mind enough f 
 
 The rule here is that the testator must be able to call before his 
 mind without assistance, 
 
 (I) All the persons to whom he would naturally give his prop- 
 erty, — such as his children, father and mother, brothers and 
 sisters, etc., (2) and also, in a genei-al way, the property he has to 
 dispose of, (3) and also the provisions of his will. 
 
 He must be able to carry these three things in his head, and if 
 he can do so, then he has mind enough. 
 
 See Delafleld v. P,arish, 25 N. Y., p. 29. 
 
 For example, if he is a real idiot, or if his mind is not sufficient 
 to do these things, or if his mind has so far departed, t'hrough old 
 
38 TESTAMENTARY INCAPACITY. 
 
 age, or sickness, or from any other cause, that he cannot do these 
 things, then he has not mind enough to make a will. 
 Text-Book, pp. 12, 13, 35-30, 34. 
 
 But if he has Tnind enough to do these things, then comes the 
 Second Question. — Was his mind sufficiently sound and healthy ? 
 The test of a sound mind (so far as wills are concerned) is this : 
 
 Insane Delusions. 
 
 If there is an insane delusion in his mind, which might influ- 
 ence him in making this will, then his mind is unsound, from the 
 point of view of testamentary capacity. 
 
 An insane delusion is a belief which exists only in testator's own 
 imagination, and which he cannot be reasoned out of. 
 
 Text-Book, pp. 16, 33, 38-54, 78. 
 
 If a man believes in some fact without any real reason, and 
 cannot be reasoned out of it by showing him clear evidence to the 
 contrary, and if we cannot conceive how any sane man, situated as 
 he is, with his surroundings, and his education, could possibly 
 hold that belief, then we must consider him insane. 
 Text-Book, p. 41. 
 
 These are the rules laid down by the courts, and are the best 
 general rules that can be given. 
 
 For a more complete statement see Text-Book, pp. 12-24 and 
 cases there given. 
 
 Monomania. 
 
 A testator may have insane delusions on some subjects, and a 
 sound mind on all other subjects. He is then called a m,ono- 
 maniac. If his delusions are such that they could not influence 
 him in making the will in question, then they do not- interfere 
 with his power to make a will. 
 
 Text-Book, pp. 18, 48, and 78. 
 
 Lucid Intervals. 
 
 Even if testator's insanity is such that it would influence his 
 will, and even if he is insane on all subjects, yet there may be 
 
TESTAMENTARY IlSrCAPACITY. 19 
 
 times when he is perfectly free from all delusions. Such times 
 are called " lucid intervals.''^ 
 
 During lucid intervals he may be entirely able to make a 
 valid will. 
 
 Text-Book, pp. 16, 17, 54, 58, 63. 
 
 Peculiar Beliefs. 
 
 The mere fact that testator believed in witches or ghosts, or 
 had queer habits, or made unusual or ridiculous provisions in his 
 will, does not necessarily prove him to be insane. 
 Text Book, pp. 23, 34, 76. 
 
 Strange or Cruel Wills. 
 
 Every man, if of sound mind, has a perfect right to do what- 
 ever he wishes with his property. He may cut off all his rela- 
 tives, and give his property to entire strangers, if he wants to. 
 Text-Book, p. 34. 
 
 Evidence of Mental Incapacity. 
 
 But a strange, or unnatural will, or peculiar beliefs of testator, 
 or his odd habits, or weakness of mind, and any other facts tend- 
 ing to show that he did not know what he was about, are all good 
 evidence on the question whether he had mind enough, and 
 whether that mind was sound enough, to make a will. It is for 
 the court, or the jury, as the case may be, to decide whether the 
 evidence offered is sufficient to satisfy them that testator's mind 
 was too weak, or too unsound, to make a valid will. 
 
 Text-Book, p. 311. 
 
 Burden of Proof. — 
 
 The party who wants to prove the will must satisfy the court 
 that the testator's mind was strong enough and souiid enough to 
 make the will. 
 
 If the contestant proves that at some previous time testator's 
 mind was weak, or deranged, from a permanent cause, such as 
 settled insanity, idiocy, permanent weakness, etc., then the pro- 
 ponent must prove that at the time when the will was made tes- 
 
20 REVOCATION. 
 
 tator had recovered sufficient strength and soundness of mind to 
 
 make it. 
 
 Text-Book, pp. 20, 21, 54, 60, 62, 70, 72. 
 
 But if the contestant only shows that at some previous time 
 testator's mind was weak or deranged from some merely tempo- 
 rary cause, such as a fainting iit, or temporary intoxication, or 
 fever resulting from a bad wound, etc., no presumption necessarily 
 follows that this incapacdty existed when the will was executed. 
 Text-Book, pp. 20, 21, 34, 54, 60, 62, 70, 72. 
 
 UNDUE INFLUENCE. 
 
 The testator's will, if valid, must represent his own wishes. 
 Other people, especially his relatives, may reason with him, and 
 may argue, urge, and persuade him, may appeal to his sympathy, 
 etc., but all this will not render the will void if it really represents 
 his own wishes. 
 
 But if it is procured by fraud, or by won-ying, or crowding, or 
 forcing him to make it against his own wishes, then it is not his 
 will, and is void. 
 
 Undue Influence is such as overpowers the will without con- 
 vincing the judgment. 
 
 Text-Book, pp. 95-117 ; 160-168 ; 171-173 ; 203-213. 
 
 KEVOCATION. 
 
 The New York statute on this subject provides as follows : 
 " 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 testa- 
 tor, 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, oblit- 
 erated or destroyed, with the intent and for the purpose of revok- 
 ing 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." 2 R. S. 64, § 42 ; Birdseye's Ed., p. 3343. 
 Under this statute the following points are to be noticed : 
 
EEVOCATION. 21 
 
 I. KEVOCATION BY A SUBSEQUENT "WILL. 
 
 Text-Book, pp. 309-310. 
 
 Newcomb v. Webster, 113 N. T. 191. 
 
 II. REVOCATION BY SOME OTHER WRITING BY TESTATOR, 
 
 DULY EXECUTED LIKE A WILL. 
 
 Text-Book, pp. 310-311. 
 
 III. REVOCATION BY BURNING, CANCELLING, TEARING, OBLIT- 
 ERATING OR DESTROYING." 
 
 Read the statute above quoted. Also Text-Book, pp. 324 356. 
 
 A. 
 If testator, meaning to tear or burn, etc., and thereby revoke,, 
 his will, tears or burns, etc., the wrong paper by mistake, it has 
 heen held that this is suflScient to revoke the will itself. 
 Text-Book, p. 335, note 3. 
 
 On this subject there seem to be no decisions in New York, 
 and the law is perhaps not certainly established. here on any part 
 of it. So far as reason and principle go, the rule seems contrary 
 to that which applies where testator executed the wrong paper by 
 mistake. In this latter ease his act is entirely void, and the will 
 he did mean to execute does not take effect. 
 Text-Book, p. 437. 
 
 B. ' 
 
 1. In all cases of revocation by another will or other instrument, 
 or by burning, tearing, etc., the intent to revoke (or, as it is 
 called, the animus revocandi) is absolutely essential. 
 
 Text-Book, p. 325. 
 
 V 
 
 2. But the intent alone is not enough. There must be the act 
 itself, whether burning, or tearing, or cancelling, etc. 
 
 TextBook, p. 841. 
 
 3. If while testator is engaged in tearing, or other act, intend- 
 ing thereby to revoke the will, he desists before completing his 
 
 ' For other methods of revocation see following pages. 
 
22 REVOCATION. 
 
 purpose, (and not because he has got through tearing, etc., but 
 because he hesitates to complete the revocation, or decides to con- 
 sider the matter further, or loses the power to proceed, etc.,) then 
 revocation is not effected. 
 
 Text-Book, p. 334. 
 
 4. But if the act of revocation is once really completed, a sub- 
 sequent, even immediate, change of mind on testator's part cannot 
 revive it. For it has then become not a will, but a mere piece of 
 paper. To revive it, it must be republished in some appropriate 
 and legal manner. 
 
 Text-Book, pp. 376-381. 
 
 C. 
 
 A person whose mind is too weak, or too unsound, to make a 
 will, cannot revoke a will. 
 
 Text-Book, p. 335, paragraph (c), and p. 339. 
 
 If testator has completed the revocation, the preservation of the 
 will, or the pieces, does not revive it. 
 
 Text-Book, pp. 343, 344. 
 
 E. 
 
 Even ,a slight burning, or tearing, etc., if done with the intent 
 to thereby revoke the will, and if a complete and finished act in 
 itself, is sufficient to revoke. 
 Text-Book, p. 350. 
 
 The tearing or burning, or obliterating, etc., may be of any 
 part of the will — one page, the signature, the signatures of wit- 
 nesses, etc.— but in every case, in order to effect revocation, it 
 must be done with the intent of thereby, by that very act itself 
 revoking the entire will. 
 
 Text-Book, pp. 35^356. 
 
REVOCATIOJSr. 23 
 
 Q. 
 
 If testator himself tears, burns, cancels, obliterates, or de- 
 stroys the will, intending thereby to revoke it, no witnesses are 
 necessary in order to make the revocation complete. 
 Timon v. ClafEy, 45 Barb. 438. 
 
 If done by another person, at testator's request, witnesses are 
 
 necessary. 
 
 See the statute above quoted, p. 30. 
 
 H. 
 Although he can revoke the will by cancelling, etc., a part of 
 it, intending thereby to revoke it all, he cannot thus revoke a jpart 
 only of the will. The only way of revoking^ar^ of a will is by 
 duly executing another instrument having that effect. 
 
 Lovell V. Quitman, 88 N. Y. 377. 
 
 The four following cases should be considered together, and 
 distinguished : 
 
 1. Testatrix wrote her will, and in dating it wrote in the words 
 " this March day of 21st, 1889," instead of the words " this 21st 
 day of March, 1889." She then duly executed it, and it became 
 a valid will. She then noticed the mistake in dating, and said 
 " That spoils the will. It is void," and tore it up. She did not 
 tear it with the intent of thereby revoking it, but on the theoiy 
 that it was already void, she tore it merely to get the paper out 
 of the way and to avoid having it preserved. Here there was no 
 intent to revoke hy that tearing, and so no revocation. 
 
 Text-Book, p. 335, note 6 ; and pp. 338 and 348. 
 
 2. Testator made a valid will. . Afterwards he wrote out a 
 second one, revoking the first. This second will was in fact not 
 duly executed. He then said, in effect: "Now that the first 
 will has been revoked, it is useless, and I will tear it up." And 
 he did tear it. Here also he did not tear it with any intention of 
 thereby revoking it. He tore it on the theory that, it had been 
 already revoked by another act, and mirely to get it out of the 
 way as a useless piece of paper. As there was no intent to revoke 
 by the tearing, that tearing did riot effect any revocation. And 
 
24 KEVOCATION. 
 
 as the second will was not duly executed, that did not revoke the 
 lirst. Therefore the first will was not revoked at all. 
 Text-Book, p. 335, note 6 ; and p. 348. 
 
 3. A testator made a will, containing a provision for his son 
 John. John then went to sea, and was not heard from during 
 fourteen years. Thereupon testator made a second will, in which 
 he said, " As my son John is dead, I herewith revoke the pro- 
 vision for him in my former will, and give the same to my 
 brother." Testator then died. John was not dead, but returned 
 and claimed the legacy in the first will. As the revocation was 
 based on a fact that did not really exist, it was void. It was the 
 same as if testator had said, " If my sou John is dead, I give his 
 legacy to my brother." It was really a sort of conditional revo- 
 cation, and as the condition was not fulfilled, the revocation was 
 void, and John took the legacy. 
 
 Text-Book, p. 826, paragraph (d). 
 
 4. Testator made a will containing a legacy to his son William. 
 William disappeared, and was not heard from during twenty 
 years. Thereupon testator made a new will, in which he said, 
 " My son William has been gone so long that I believe him to be 
 dead. I know that he may be alive, but I do not believe it. I 
 have decided to take the chances, and rely on my present belief, 
 and make no provision for him at all. I therefore revoke the 
 legacy to him, and give the same to my sister Jane." 
 
 Testator then died, and William returned, and claimed the 
 legacy. But this case differs from the preceding case, because 
 here testator chose to rely and act finally according to his belief, 
 whether it should in fact turn out right or wrong. In effect, he 
 provided that his sister should get the legacy anyway. His action 
 was not based on the son's death if true, but on the actual fact 
 that he helieved it to be true, and meant, in consequence, to give 
 the property to the sister anyway. Therefore William could not 
 recover the legacy. 
 
 Text-Book, p. 326, paragraph (d). 
 
 The practical question whether, in a given case, testator relied 
 on the supposed fact if true, or on the actual fact that he believed 
 it to he true, is often a diflicalt one to answer. 
 
REVOCATION BY MAKEIAGK. 25 
 
 IV. REVOCATION BY MARRIAGE. 
 
 A. Revocation hy a woman^s marriage. 
 
 The mere fact of a subsequent marriage revokes a will made 
 by an unmarried woman. 
 
 2 R. S. 64, §44; Birdseye's Ed. 3344, §12; Text-Book, pp. 311- 
 313, 315-318. 
 
 The words " unmarried woman," in this statute, include a 
 widow (Text-Book, p. 317). Thus, if a widow makes a will, she 
 is then an " unmarried woman," and her subsequent marriage re- 
 vokes her will. 
 
 This statute applies only to the will of an unmarried woman, 
 and not to the will of an unmarried man. As to the wills of 
 men, another rule applies as follows : 
 
 J5. Revocation hy marriage, etc., of a man. 
 
 "If after the making of any will, disposing of the whole 
 estate of the testator, such testator shall marry, and have issue 
 of such marriage, born either in his life- time or after his death, 
 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 settle- 
 ment, 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." 
 
 2 B. S. 64, §43; Birdseye's Ed. 3343-4, §11. 
 
 TJnder this section of the statute the following points are to be 
 noticed : 
 
 1. The mere fact of a man's subsequent marriage does not re- 
 voke his will. 
 
 2. The mere fact of subsequent birth of issue does not revoke 
 his will, under this section. 
 
 3. The mere facts of subsequent marriage a/)id birth of issue 
 do not revoke his will, under this section. 
 
 Under the terms of this statute, the following facts must all 
 exist in order to revoke the will : 
 
26 PARTIAL EEVOCATION. 
 
 1. There must be a will disposing of the whole of testatoi-'s 
 estate. Unless it disposes of it all, then subsequent marriage and 
 birth of issue never have any effect on it. 
 
 2. Testator's subsequent marriage. 
 
 3. Birth of issue. 
 
 4. Survival of either the wife or issue after testator's death. 
 
 5. Absence of provision for the issue, either in the will or by 
 some settlement of property for them. 
 
 B. Absence of expression in the will of an intention to leave 
 the issue unprovided for. 
 
 If all these six facts exist, then the will is revoked. But if any 
 one of the six is missing, then there is no revocation under this 
 section. 
 
 V. PARTIAL REVOCATION BY SUBSEQUENT BIRTH OF ISSUE. 
 
 Applies to hoth men and women. 
 
 On this subject the New York statute provides as follows : 
 " Whenever a testator shall have a child born after the mak- 
 ing of a last will, either in the life-time or after the death of such 
 testator, and shall die leaving such child, so after-born, unpro- 
 vided for by any settlement, and neither provided for, nor in any 
 way mentioned in such will, every such child shall succeed to the 
 same portion of such parent's real and personal estate, as would 
 have descended or been distributed to such child, if such parent 
 had died intestate, and shall be entitled to recover the same por- 
 tion from the devisees and legatees, in proportion to and out of 
 the parts devised and bequeathed to them by such will." 
 
 3 R. S. 65, § 49, as amended L. 1869, ch. 33; Birdseye's Ed. 3344, 
 §17. 
 
 Under this statute the following points are to be noticed : 
 
 1. This presents an entirely different situation from that just 
 considered under " Revocation by Marriage and Birth of Issue," 
 etc. 
 
 2. In this case, subsequent marriage has nothing to do with it. 
 It applies whether testator is married or unmarried when he 
 makes the will. 
 
 3. The subsequent birth of issue does not revoke the will itself. 
 Matter of Bruce, 6 Dem. 278. It only allows the after-born child 
 
PARTIAL EEVOCATIOlSr. 27 
 
 to ham his share as if the parent had died intestate. It thus 
 practically revokes the will in part, so far as necessary to give the 
 after-born child his share. 
 
 4. This statute, as now amended, applies to the wills of women, 
 as well as men. 
 
 Matter of Huiell, 6 Dem. 353, which compare with Cotheal v. 
 Cotheal, 40 N. Y. 405, decided under the statute hefore it was 
 amended. 
 
 The following points are also important : 
 
 1. There is no distinction in this case between a will disposing 
 of a 'part of testator's propertj^, and one disposing of all of it. In 
 either case, this statute applies. 
 
 2. If testator makes any provision, however small, and whether 
 by the will or by settlement, for the after-born issue, or mentions 
 them in any way in his will, then this statute does not apply. 
 
 For a case where the statute applied, and where its operation is 
 illustrated, see 
 
 Smith V. Robertson, 89 N. Y. 555. 
 
 The following illustrations will explain how this statute works : 
 
 1. Testator made a will giving all his property to his brother. 
 At that time testator had no children. Afterwards he had one 
 child born. He had not provided for this child, in the will or 
 otherwise, and had not mentioned it in any way in his will. Then 
 he died, leaving a widow and this one child. 
 
 Now this child is entitled, under the statute, to the same share 
 as if the father had died intestate. That share would have been : 
 
 (1). All the real property, subject to the widow's dower (that 
 is, her life interest in one-third). 
 
 (2). Two-thirds of the personal property. 
 
 Therefore,, he gets all this, in spite of the will. The widow 
 takes her dower interest in the real estate, and testator's brother 
 takes one-third of the personal property. This one-third of the 
 personal property would have gone to the vi\dLOW if there had heen 
 no will, but as testator gave it by will to the brother, he takes it, 
 and she does not benefit at all by the partial revocation in favor 
 of the child. 
 
 2. Testator made a will disposing of all his real and personal 
 estate to his sister. At that time he had two children. He made 
 
28 PERSONAL PBOPEBTY. 
 
 no provision in the will or otherwise for them or for any after- 
 born child, and did not in any way mention any after-born child. 
 Subsequently he had a third child born, and later he died, leaving 
 the three children and a widow. 
 The property would go as follows : 
 
 EEAL estate: 
 
 (a). The afterJxyrn child. If there had been no will, this child 
 would have taken one-third of all, subject to one-third of the 
 widow's dower. Consequently he takes the same in spite of 
 the will. 
 
 (5). Testator' s-hister. She takes the other two-thirds of the 
 land, under the will, subject to two-thirds of the widow's dower. 
 
 (c). The widow. She takes her life interest in one-third, which 
 is imposed one-third on the child's share and two-thirds on the 
 share of testator's sister. 
 
 (d). The other children. They take nothing, 
 
 PERSONAL PKOPEETr: 
 
 {a). The after-horn child. If there had been no will, the 
 widow would have taken one-third of the personal property out- 
 right, and the three children, each, one-third of the remaining two- 
 thirds. Therefore, in the present case, the after-born child takes 
 one-third of two-thirds. 
 
 (S). Testator''s sister. She takes all the rest, namely, all the 
 personal property minus one-third of two-thirds. 
 
 (c). The widow. She takes nothing. She could only take 
 one-third of such personal property as is not given to some one 
 else by the will. Here it is all given away by the will. She does 
 not benefit by the partial revocation in favor of the after-bom 
 child, and so gets nothing. 
 
 {d). The other children. They take nothing. 
 
 As to whether the statute now under consideration, as to partial 
 revocation in favor of an after-born child not provided for or 
 mentioned, has been since made applicable to adopted children., 
 see the statute above quoted, and also L. 1873, ch. 330, § 10, as 
 amended by L. 1887, ch. 703, Birdseye's Ed., 487 ; and editorial 
 in N. Y. Daily Register, Oct. 21, 1887, p. 756. 
 
REVOCATION BY CHANGE OF CIRCUMSTANCES. 29 
 
 VI. REVOCATION BY CHANGE OF TESTATOR'S CIRCUM- 
 STANCES. 
 
 This is not a separate means of revocation, but includes some 
 of those already mentioned and certain others provided for by 
 statute; these will all now be named, and they are the only 
 changes of testator's circumstances which can revoke his will 
 either wholly or partially. 
 
 1. Subsequent marriage of testator, and birth of issue, under 
 the circumstances already considered. This applies only to wills 
 of men. 
 
 2. Subsequent birth of issue to testator, unmentioned and 
 unprovided for, as already considered. This is. only a pa/rtial 
 revocation. This applies to the wills of both men and women. 
 
 3. In the case of an unmarried woman, her subsequent mar- 
 riage. 
 
 The three foregoing changes in testator's circumstances, and 
 their effect in revoking the will, have already been considered. 
 The following changes in his circumstances, and their effect, have 
 not 3'et been considered : 
 
 4. If testator makes a will devising or bequeathing property, 
 and afterwards makes a bond, agreement, or undertaking to 
 convey the property to some one else, this does not revoke any 
 part of the will. The property passes to the devisees or legatees 
 under the will, subject to the terms of testator's bond, agreement, 
 or undertaking. 2 R. S. 64, § 45 ; Birdseye's Ed. 3344, § 13. 
 The devisees and legatees are subject to the same suits for dam- 
 ages or for specific performance as testator would have been if he 
 had lived. 
 
 5. So if he makes a will, and then places a charge or incum- 
 brance on the property devised or bequeathed, the same result 
 
 follows. 
 
 2 R. S. 64, § 46 ; Birdseye's Ed. 3344, § 14. 
 
 6. So if he makes a will, and then by conveyance, settlement, 
 deed, or other act, alters his estate or interest in the property 
 already devised or bequeathed, without actually divesting his 
 estate or interest therein, this does not revoke the devises or be- 
 quests, but they take effect as far as testator has any interest left 
 in the property devised or bequeathed (unless in the instrument 
 
30 EEVOCATIOIf BY CHANGE OF CIECUMSTANCES. 
 
 bj which such alteration is made, the intention is declared, that it 
 shall operate as a revocation of such previous devise or bequest). 
 
 2 R. S. 65, § 47 ; Birdseye's Ed. 3344, § 15. 
 
 It is to be noticed that this furnishes one method, in this one 
 case, of revoking a devise or legacy by a statement to that eflect 
 in a subsequent pajjer, even although the latter is not executed 
 with the formalities necessary in executing a will. For if tes- 
 tator alters his interest in property previously devised or be- 
 queathed, but retains some interest in it, he can revoke the devise 
 even as to the interest he retains, by a statement to that effect in 
 the deed or other instrument by which lie alters his interest. 
 See Burnham v. Comfort, 108 N. Y. 540. 
 
 Y. But if the provisions of the instrument by which the alter- 
 ation is made, are wholly inconsistent with the terms and pro- 
 visions of the previous devise or bequest, as, for example, if the 
 testator conveys to some one else all his estate and interest in the 
 property 'previously devised or bequeathed, then such instrument 
 operates practically as a revocation of the devise or bequest, by 
 removing the property to which it referred. 
 
 3 R. S. 65, §48; Birdseye's Ed. 3344, § 16. 
 McNaughton v. McNaughton, 84 N. T. 201. 
 
 But if the instrument thus altering his estate is to take effect 
 only on the happening of a condition or a contingency, then the 
 condition must, of course, be performed, or the contingency must 
 happen, in order to effect the change. 
 
 3 R. S. 65, § 48; Birdseye's Ed. 3344, § 16. 
 
 8. There is a still further method of practically effecting revo- 
 cation of certain provisions of a will, which goes by the name of 
 " ademption." This occurs, where testator bequeathes personal 
 property by will, but afterwards and during his lifetime, gives 
 property of the same kind, to the legatee with the intention of 
 thereby satisfying the legacy, or disposes of it in some other way. 
 This is called ademption, and it works a sort of revocation of the 
 legacy. Landon v. Astor, 16 N. Y. 33-37. Tiie doctrine of 
 ademption applies to personal property only, and not to devises 
 of real property. 
 
 Burnham v. Comfort, 108 N. Y. 585. 
 
EEPUBLICATION. 31 
 
 Even in the case of real estate, testator might in fact revoke a 
 devise of particular land, by conveying the same land during his 
 life to the same devisee. But as this would relate to land, it 
 would not be called ademption, but would come under the general 
 head of conveyances by testator of land previously devised, which 
 we have considered under paragraph 7, above. 
 
 But if, after making a will devising land, testator should after- 
 wards give other land, or money, or other personal property, to 
 the devisee, with the intention of thereby satisfying the devise, 
 it would not have that effect, and the devisee would take the de- 
 vise also. For this would be an attempted ademption, which, as 
 stated, applies only to bequests, and not to devises. 
 Burnham v. Comfort, 108 N. Y. 535. 
 
 EEVOCATION OF SECOND WILL. 
 
 If, after making a will, the testator duly makes and executes a 
 second will, and then subsequently revokes this second will, such 
 revocation does not of itself revive the first. 
 
 2 R. S. 66, §53; Birdseye's Ed. 3345, §21. 
 
 But he may thus revive the first, by expressing, in the instru- 
 ment by which he revokes the second will, his intention of thereby 
 reviving the first. 
 
 2 R. S. 66, § 53; Birdseye's Ed. 3345, § 21. 
 
 Where the will is revoked by a later one, he can afterwards 
 revive the first one, by starting all over again, and re-executing 
 it just as if it had never been executed at all. This will make it 
 his latest will just as if it was an entirely new one then executed 
 for the first time. 
 
 3 R. S. 66, § 53; Birdseye's Ed. 3345, §21; Text-Book, p. 376. 
 
 EEPUBLICATION. 
 
 Text-Booli, pp. 376-381; 425, 426. 
 
 Sometimes, after a will, or some part of it, has been revoked, 
 the testator wishes to bring it to life again and make a valid will 
 of it, either in whole or in part. This is known as " Kepubli- 
 cation." 
 
32 LOST WILLS. 
 
 There are three ways in which a will may be republished : 
 
 1. By re-executing it, just as if it were a new instrument that 
 had never been executed before. It is then republished and 
 again becomes a valid will. 
 
 2. By executing a new instrument in the same manner, which 
 merely declares that the former will shall be revived and regarded 
 as his former will. 
 
 Brown v. Clark, 77 N. Y. 375-378. 
 
 3. By making a subsequent will, by which he refers to and re- 
 vives the former one, in so far ps consistent with the new will. 
 Under this head there are two methods : 
 
 (a) by referring to the old will and republishing it, in express 
 terms; or 
 
 (5) by referring to it and reviving it by implication. Thus, if 
 testator heads the new will with the words " Codicil to my will 
 dated Jau'y Ist, 1890," or any similar reference, which implies that 
 the new will is to be taken in connection with the old one to make 
 up testator's entire will, he thereby revives the former will, so far 
 as consistent with the codicil. 
 
 These three ways already mentioned are the only ones by which 
 a void will can be revived. 
 
 If the previous will was defectively executed, and so was never 
 a valid will, still it may be republished, and made valid in any of 
 the three ways already mentioned, and in no other way. 
 
 So also even a valid will which is still in force, may be repub- 
 lished in any of these three ways, and thus brought down to the 
 date of the new execution. 
 
 LOST WILLS. 
 Text-Book, pp. 856-370. 
 
 In connection with the subject of revocation, it will be con- 
 venient to consider here the case of wills that have been destroyed 
 or lost, either before or after testator's death. 
 
 I. 
 
 There is a general and familiar principle that if a will was in 
 testator's custody and cannot be found at his death, it will be 
 
LOST WILLS. 33 
 
 presumed that he destroyed it himself with the intent of thereby 
 revoking it. And the will cannot therefore be admitted to pro- 
 bate unless it is proved that he did not destroy it with that in- 
 tent. 
 
 Text-Book, pp. 856-367. 
 
 II. 
 
 In New York we have two statutes on this subject, which seem 
 to be conflicting on one point, but which must be read in connec- 
 tion with the decisions of the courts, and in the light of the gen- 
 eral principle just stated. These two statutes are as follows : 
 
 (I). " An action to procure a judgment, establishing a will, may 
 be maintained by any person interested in the establishment 
 thereof in either of the following cases : 
 
 " Where a will of real or personal property, or both, has been 
 executed, in such a manner and under such circumstances, that it 
 might, under the laws of the State, be admitted to probate in a 
 surrogate's court; but the original will . . . has been lost or de- 
 stroyed, by accident or design, before it was duly proved or re- 
 corded within the State." 
 
 Code Civ. Pr. § 1861. 
 
 (2). " But the plaintiff is not entitled to a judgment, establish- 
 ing a lost or destroyed will, as prescribed in this article, unless 
 the will was in existence at the time of the testator's death, or 
 was fraudulently destroyed in his lifetime." 
 Code Civ. Pr. § 1865. 
 
 These sections refer to an " action " in a trial court, and not to 
 a " special proceeding" in a surrogate's court. But by Code Civ. 
 Pr. § 2621, it is further provided that " a lost or destroyed will 
 can be admitted to probate in a surrogate's court, but only in a 
 case where a judgment establishing the will could be rendered by 
 the supreme court, as prescribed in § 1865 of this act." The sec- 
 tions above referred to are thus made to apply also to special pro- 
 ceedings in surrogates' courts. 
 
 Now the curious thing to be noticed about these two sections is 
 that while § 1861 provides that a will may be admitted to pro- 
 
34 LOST WILLS. 
 
 bate where the original has been destroyed by either accident or 
 design, § 1865 provides that in order to succeed you must pro.ve 
 either 
 
 1. That the will was in existence at testator's death and that 
 therefore the loss or destruction must have occurred after his 
 death (which is of course simple and clear), or 
 
 2. That it was frcmdulently destroyed in his lifetime. 
 
 This provision therefore seems to leave no opportunity for 
 proving a will if it was lost, or acGidentaWy destroyed, during tes- 
 tator's life. But § 1861 had provided that it might be proved even 
 though lost, or destroyed Tyy accident, at any time. 
 
 Since these statutes were passed, however, cases have come up 
 where the will was lost, or destroyed by accident, during testator's 
 life. And the courts have held that they were entitled to pro- 
 bate. The way they got over the difficulty presented by § 1865, 
 which requires proof oi fraudulent destruction, was by deciding 
 that if the will was lost, or accidentally destroyed, this practically 
 constituted a sort of fraud on the testator; that is, that although 
 no one intended to injure him by destroying or losing the will, 
 the practical result was that his will was gone and his purpose 
 defeated, and therefore, he was a victim of fraud, although no one 
 had defrauded him. 
 
 Schultz V. Schultz, 35 N. T. 653. 
 Early v. Early, 5 Redf. 380. 
 
 The result of those cases is that we must read § 1865 as if it 
 said that you cannot prove a lost or destroyed will unless you 
 either show that the will was in existence at testator's death, or 
 was lost, or fraudulently or accidentally destroyed in his lifetime. 
 
 § 1865 also provides that in proving a lost or destroyed will, its 
 provisions must be clearly and distinctly proved by at least two 
 credible witnesses, a correct copy or draft being equivalent to one 
 witness. 
 
 In this connection it should be noticed that these statutes apply 
 only to a direct action or proceeding to establish the will. They 
 do not refer to the incidental proof of a lost will iu a partition 
 suit, or in any case where it is used as evidence of title, instead of 
 as evidence to establish the instrument as a will entitled to pro- 
 
LOST WILLS. 35 
 
 bate. In such cases, therefore, it may be proved by one witness, 
 according to the common law. 
 
 Harris v. Harris, 26 N. Y. 433. 
 CoUigan v. McKernan, 3 Dem. 431. 
 
 In all cases it is necessary to prove that the will was a duly 
 executed and valid will. 
 
 III. 
 
 In proving a lost or destroyed will, under these statutes, the 
 necessary facts may be shown by indirect, as well as by direct 
 evidence. Thus, where testator executed a will and gave it to a 
 custodian to keep, and he locked it in a trunk, and testator never 
 had it again, and on opening the trunk after testator's death the 
 will could not be found, and there was no evidence that testator 
 ever revoked it in any way, it follows necessarily either 
 
 1. That the will must have been in existence at testator's death, 
 and lost or destroyed afterwards, or else 
 
 2. That during his lifetime it was lost, or was destroyed by 
 fraud or accident. 
 
 Therefore although there was no direct proof that either one of 
 these things had happened, yet as one or the other of them must 
 have happened, and as either was sufficient to satisfy the statute, 
 it was held that the statute had been complied with ; and the will 
 was admitted to probate. 
 
 Schultz v. Schultz, 35 N. Y. 653. 
 
 IV. 
 
 Under these statutes the common-law presumption that, if the 
 will was in testator's custody and cannot be found at his death, it 
 will be taken to have been destroyed by him with intent to revoke 
 it, still holds good. In order to prove the will, contrary facts 
 must be shown as required by the statute. 
 
 Knapp V. Knapp, 10 N. Y. 378. 
 Matter of Nichols, 40 Hun 387. 
 Holland v. Ferris, 2 Bradf. 335. 
 Perry v. Perry, 49 N. Y. State Rep. 293. 
 
36 WHAT PEOVISIOXS IN WILLS ARE ILLEGAL. 
 
 CONDITIONAL WILLS. 
 
 For the distiuction between conditional wills (for instance, a will 
 beginning, " I am going to town to get my drill mended, and 
 feel sick, and if 1 should not come tach, then I will," etc.), and 
 absolute wills, with explanatory preambles (for instance, a 
 will beginning " Being about to travel by railway, I wall," etc.). 
 See Text-Book, pp. 397-408. 
 
 CONTKACTS TO MAKE WILLS, ETC. 
 
 A contract, for a consideration, to make a certain will, or not to 
 make a certain will, is valid. In case this contract is broken by 
 failing to make the will as agreed, or by making another will, the 
 courts will grant appropriate relief. But in spite of such a con- 
 tract, the testator still has power to make a valid testamentary in- 
 strument, or revoke it. Concerning the form of the action, and 
 the different sorts of relief, 
 
 See Text-Book, pp. 408-420. 
 
 JOINT, MUTUAL, AND DUPLICATE WILLS, ETC. 
 
 See Text^Book, pp. 421-435. 
 
 INCOEPOEATION BY EEFERENCE. 
 
 The general rule is that any paper may be incorporated into a 
 will and made a part of it, by having the will properly refer to it 
 and point it out as a paper then in existence. 
 
 In New York, a paper which is testamenta/ry in character 
 cannot be thus incorporated. 
 
 Booth V. Baptist Church, 136 N. Y. 215. 
 
 But s, previous will, whether valid or void, may be thus incor- 
 porated. 
 
 Brown v. Clark, 77 N. Y. 377. 
 See Text-Book, pp. 425-426. 
 
 WHAT PEOYISIONS IN WILLS ARE ILLEGAL. 
 
 See Text-Book, pp. 436, 427. 
 
CONFLICT OP LAWS. 37 
 
 WHAT PERSONS CANNOT TAKE LEGACIES OE 
 
 DEVISES. 
 
 See Text-Book, pp. 426-428. 
 
 NUNCUPATIVE WILLS. 
 
 A nuncupative will is one not in writing. The statute pro- 
 vides that 
 
 " No nuncupative or unwritten will, bequeathing personal 
 estate, shall be valid, unless made by a soldier while in actual 
 military service, or by a mariner, while at sea." 
 
 2 R. S. 60, § 32. 
 
 For the meaning of the terms "soldier," "actual military ser- 
 vice," " mariner," and " at sea," 
 
 See Text-Book, pp. 431-436. 
 
 Even a soldier in actual service, or a mariner at sea, cannot 
 make a nuncupative will of real property. Wills of real property 
 must always be in writing, and executed as provided by the gen- 
 eral statute on the subject. 
 ' Text-Book, p. 430. 
 
 A written will cannot he revohed by a nuncupative wilL 
 
 3N. Y. Rev. St. 64, §42. 
 
 See McCune v. House, 8 Ohio 144. 
 
 CONFLICT OF LAWS. 
 See Text-Book, p. 436. 
 
 As to real property, the question of testator's capacity to make 
 a will and his power to dispose of the land, as proposed by this 
 will, and the forms required for due execution, all depend on the 
 law of the place where the land lies. 
 
 But as to personal property, these questions depend on the law 
 of testator's dormcil at the time of his death. 
 
 See also Code, §§ 3694, 3613. See^wsi, pp. 40, 41. 
 
38 CITATION^. 
 
 PKOCEEDINGS FOE PKOBATE. 
 
 In a surrogate's court, there are no actions, and all kinds of liti- 
 gation are in the form of " special proceedings." 
 
 In an action the parties are called "plaintiff" and " defendant." 
 In a special proceeding the designation of the parties varies accord- 
 ing to the nature of the proceedings. In the surrogate's court a 
 person who petitions for the probate of a will is called the " pro- 
 ponent." Other parties are known as " the persons cited." If 
 there is a contest, the objecting parties are called " contestants," 
 or "respondents." 
 
 1. PETITIOIf. 
 
 A will goes into effect at testator's death. But before anything 
 can be done to carry out its provisions, it must first be proved 
 and admitted to probate in the surrogate's court. (There are cer- 
 tain cases in which wills may be proved in other courts. These- 
 will be considered later.) 
 
 The petition that the will be admitted to probate must be made 
 by a person named in the will as executor, devisee or legatee, or 
 any other person interested in the estate, or a creditor of the 
 decedent. Code, § 2614. 
 
 For the necessary contents of the petition, see Code, §§ 2614, 
 2516. 
 
 Concerning verification of petition, see Code, § 2614. 
 
 2. PKOPER COUNTY. 
 
 For the proper county in which to begin the proceeding, see 
 Code, § 2476 ; and read the Japanese folding-chair case, "White v. 
 Nelson, 2 Dem. 265. 
 
 Concerning jurisdiction of the surrogate, see Code, §§ 2472- 
 2482. Kiggs V. Cragg, 89 N. Y. 489 ; O'Connor v. Huggins, 
 113 JSr. Y. 511. 
 
 3. CITATION. 
 
 When the petition is filed the surrogate issues a citation, noti- 
 fying the proper persons of the nature of the petition and the 
 date set for the hearing. Code, §§ 2614, 2515, 2516, 2519. 
 
 For the contents of citation, see Code, §§ 2519, 2616. 
 
HEAEING. 39 
 
 For the proper persons to be cited, see Code, § 2615, as 
 amended L. 1891, ch. 174, and L. 1892, ch. 627; also § 2518. 
 
 For the method of serving the citation, and the time required, 
 see Code, §§ 2620-2528 ; 436 and 437 ; 2535 and 2536 ; L. 1884, 
 ch. 133. 
 
 For method of proving service, see Code, §§ 2625 and 2532. 
 
 For service of other papers in the proceeding, see Code, 
 §§ 2638 and 796-802. 
 
 Concerning " appearance " by the parties, and its effect, Code, 
 § 2628. 
 
 Concerning the date to be fixed for the hearing, see Code, 
 § 2619. 
 
 4. RETURN DAT. 
 
 The date fixed for the hearing is called the return day. 
 
 Concerning persons who may appear on the hearing although 
 not cited, see Code, § 2617. 
 
 Concerning the appointment of a special guardian to represent 
 any infants, idiots, etc., on the hearing, see Code, §§ 2530, 2531. 
 
 In New York County the original will must be filed in court, 
 at least two days before the return day. 
 Rule 4, Surr. Ct. Rules. 
 
 On the return day, unless an answer is filed or there is an ad- 
 journment, the hearing proceeds. 
 
 >■ 5. HEARING. 
 
 If no objections are filed the witnesses merely swear to the 
 necessary facts, and a decree is thereupon entered admitting the 
 will to probate, unless the surrogate wishes further evidence. 
 Code, §§ 3622, 3633. 
 
 Concerning the necessary proof, see Code, §§ 2618-2623. See 
 2\so,post, "6. What must he proved" 
 If the surrogate decides against the will, he makes a decree to 
 
 that efEect. 
 
 Code, § 2635. 
 
 If the will is contested, the contestant files an answer, and a day 
 is set for the hearing. On the hearing the proponent first offers 
 
40 WHAT WILLS MAY BE PKOVED. 
 
 the testimony of the attesting witnesses to show the due execution 
 of the will, and their belief that testator . was of sound mind. 
 This makes up what is called fiprvma facie case. 
 
 The contestant then puts in his evidence in support of the 
 allegations in his answer. 
 
 Then the proponent offers rebutting evidence to offset and out- 
 weigh that of the contestant. 
 
 The proponent, in order to succeed, must satisfy the court that 
 the instrument is the duly executed will of a free and competent 
 testator. If he does this, a decree is entered admitting the will 
 to probate. Code, §§ 2622, 2623. If the contestant succeeds in 
 proving the contrary, a decree is entered denying probate. 
 
 Code, § 2625. 
 Text-Book, p. 16, note 2. 
 
 6. WHAT MUST BE PROVED. 
 
 In order to have the will admitted to probate, the surrogate 
 must be satisfied, on all the evidence before him, of the following 
 facts : 
 
 1. That testator was of the required age when he made the will. 
 
 2. That he was then of " sound mind." 
 
 3. That the will was not the result of " undue influence." 
 
 4. That the will has not been revoked. 
 
 7. CONSTRUCTION. 
 
 In certain cases the surrogate is authorized not only to admit 
 a will to probate, but to "construe" it, that is, to determine the 
 meaning and validity of its provisions where they are obscure or 
 of doubtful validity. 
 
 Code, §§ 2624, 2625. 
 
 Garlock v. Vandervort, 128 N. Y. 374. 
 
 Matter of Marcial, 15 N. Y. Supp. 89. 
 
 8. WHAT WILLS MAY BE PROVED. 
 
 (a). Wills of Real Property. 
 
 In wills of real property it makes no difference wJtsre the will 
 is made. But in order to dispose of New York land, it must be 
 executed according to the law of New York. 
 
EVIDENCE IN THE PEOCEEDING FOR PROBATE. 41 
 
 (J). Wills of Personal Property. 
 
 In wills of personal property it may make some difference 
 where they were executed. Thus, 
 
 (1). If executed according to the New York law, it makes no 
 difference where it was done, whether here or in China, or else- 
 where. 
 
 (2). But if the testator is out of New York, but in some other 
 part of the United States, Canada, or Great Britain or Ireland, he 
 may also execute the will according to the law of the place where 
 he is at the time, and this will be valid in New York. 
 
 (3). And if he is not a resident of New York, then in addition 
 to the two methods already mentioned he may execute his will 
 according to the law of his residence, whether Ohio, or Germany, 
 or anywhere else. He may do this wherever he is, whether at 
 home or elsewhere, and it will be valid in New York. 
 Code, § 2611. 
 
 9. CHANGE OF RESIDENCE. 
 
 If, after executing his will, testator changes his residence, this 
 
 change does not in any way affect the validity of the execution, 
 
 nor the validity or construction of any provision contained in 
 
 the will. 
 
 Code, § 3612. 
 
 10. EVIDENCE IN THE PROCEEDING FOR PROBATE. 
 
 1. Evidence of attesting witnesses. 
 
 2. Evidence of experts. 
 
 3. Evidence of other witnesses. 
 
 On these points, see Text-Book, pp. 91-93, 95-97, 311-313. 
 
 As to other evidence, such as testator's letters, etc., and the 
 facts which the witnesses may testify to concerning his acts, etc., 
 tending to show the condition of testator's mind at the time when 
 he made the will, etc., and the facts bearing on the question of 
 undue influence, and testator's own declarations, 
 
 see Text-Book, pp. 83-98, 95-97, 160-168, 171-173, 211-313, 
 291-399, 305-308. 
 
 As to evidence on the question of revocation of the will, 
 see also Text-Book, pp. 326-328. 
 
42 EFFECT OP THE DECREE. 
 
 As to the competency of subscribing witnesses to a will, the 
 rule is, that any person competent to be a witness in the trial of 
 a case in court, is competent to be a subscribing witness to a will. 
 
 See Text-Book, pp. 391-299, 305-308. 
 
 In New York a subscribing witness to a will is not disqualified 
 because there is a provision for his benefit in the will. Code, 
 § 2544. If his testimony is necessary to prove the will, then the 
 provision for him is void. 
 2 R. S. 65, § 50. 
 
 But if he would take part of testator's property if the will was 
 invalid, he can still take that (not exceeding the provision for him 
 in the will), even though he is a subscribing witness. For as to 
 that portion he is not interested to sustain the will. It is true 
 that if the provision for the witness in the will is less than he 
 would receive under an intestacy, he would in fact be interested 
 to defeat the will. But such interest does not disqualify him 
 under the statute. This state of the law perhaps results from the 
 fact that much less frequent difiiculty has been experienced from 
 attempts of subscribing witnesses to defeat valid wills, than 
 from their attempts to sustain invalid ones. 
 2 R. S. 65, § 51. 
 
 An executor or trustee under a will is not thereby disqualified 
 as a subscribing witness. His interest is not beneficial, and he 
 may therefore testify to the execution of the will without re- 
 nouncing his appointment as executor or trustee. 
 
 Matter of Wilson, 103 N. Y. 376. 
 
 11. EFFECT OF THE DECREE. 
 
 {a). Will of Personal Property. 
 
 Here the decree is conclusive unless reversed on appeal, or re- 
 voked by the surrogate. Code, § 2626. (The subject of " revo- 
 cation of probate " is considered further on.) 
 
 O'Connor v. Huggins, 113 N. Y. 511. 
 Martin v. R.R. Co., 92 N. Y. 70. 
 
APPEAL. 43 
 
 (h). Will of New York Real Property. 
 
 Here the decree is oxHiy presumptive evidence as against the 
 parties and those who hold under tliem. As to other persons it 
 is no evidence at all. 
 Code, § 3627. 
 
 It follows from this that subsequently the whole question of 
 the validity and effect of the will, in regard to the land, may be 
 opened and tried all over again. 
 
 For one partial exception, see Code, § 2628. 
 
 For a new statute, providing a means of establishing a will 
 absolutely, both as to real and personal property, see L. 1892, ch. 
 592. 
 
 12. KEVOCATIOW OF PROBATE. 
 
 After a will of personal property is proved, and a decree 
 recorded, one year is allowed during which any one interested in 
 the estate may bring a new proceeding, in the same court, to have 
 the probate revoked. 
 
 Code, §§ 3647, 3648. 
 
 For the form of proceeding, necessary parties, proof required, 
 etc., see Code, §§ 2647-2653. 
 
 For certain cases in which persons under disability may have 
 more than one year, see Code, § 2648. 
 
 No such provision as this. is necessary in regard to real prop- 
 erty, because, as stated above, the validity of the provisions re- 
 garding land may be attacked in other actions and proceedings. 
 
 But for a new statute, see L. 1892, eh. 592. 
 
 13. PROBATE OP HEIRSHIP. 
 
 See Code, §§ 2654-3659. 
 
 14. APPEAL. 
 
 From a decree of the surrogate's court, either admittmg or 
 refusing to admit a will to probate, or revoking or refusing to 
 revoke probate already granted, an appeal lies to the General 
 Term of the Supreme Court. For a full statement of the law on 
 appeals from surrogates' courts, see Code, §§ 2545, 2568-2589. 
 
44 EXECUTOES AND ADMINISTEATORS. 
 
 If the General Term reverses or modifies the surrogate's 
 decree on a question of fact, the facts in issue -must then be tried 
 by a jury. 
 
 Code, § 3588. 
 
 Sutton V. Ray, 73 N. Y. 483. 
 
 15. JURY TRIALS. 
 
 For eases where the surrogate may himself send questions of 
 fact to be tried by a jury, see Code, §2547. 
 
 16. surrogate's power to vacate decree, etc. 
 
 In addition to the proceeding to revoke probate, already men- 
 tioned, the surrogate has power on a motion, to open, vacate, 
 modify, or set aside his decree, or grant a new trial or new hear- 
 ing, for fraud, newly discovered evidence, or certain other suffi- 
 cient causes of the same character. 
 
 Code, §3481, subdlv. 6. 
 
 Matter of Hawley, 100 N. Y. 306. 
 
 Matter of Faulks, 10 N. Y. Supp. 515. 
 
 EXECUTORS AND ADMimSTRATORS. 
 
 An executor or administrator is a person duly appointed and 
 authorized to collect and take charge of a testator's personal 
 estate, pay debts and legacies, and settle up the estate. 
 
 " Executor " is the name given him when he is named and ap- 
 pointed Tyy testator, in the will. 
 
 " Administratfjr" is the name given him when he is appointed 
 not by will but hy the court. 
 
 There are several kinds of Administrators. 
 
 1. Adminisi/rator. If decedent dies intestate, that is, without 
 leaving any will, then the court appoints a person to collect and 
 take charge of decedent's personal property, pay his debts and 
 distribute the assets to decedent's next of kin. He is then called 
 merely an '■'■Administrator.'''' 
 
 2. Administrator with the will annexed. If the decedent 
 leaves a will, but the will does not appoint any executor, or those 
 appointed cannot act, then the court appoints an " Administrator 
 with the will annexed," to collect and take charge of decedent's 
 personal property, pay debts and legacies, and otherwise carry out 
 
EXECUTORS. 45 
 
 the provisions of the will concerning the disposition of the per- 
 sonal property. He is also sometimes called by the same name 
 in Latin, '■'■ Administrator cum testamento annexo" and this is 
 sometimes abbreviated into ^^Administrator c. t. a." 
 Birdseye's R. 8., p. 3939, § 131. 
 
 3. Administ/rator de bonis non. Sometimes the person first 
 appointed as executor or administrator dies or resigns or is re- 
 moved, before his work is done, and there is no one authorized 
 to complete it. Then the court appoints an " administrator de 
 bonis nonP These words are part of a Latin phrase meaning 
 " administrator of assets not yet completely administered." This 
 name is not adopted in our Code, and such a person would be 
 known simply as an " Administrator." 
 
 2 R. S. 449, §18; Birdseye's Ed., p. 1130, § 169. 
 
 4 Temporary administrators are sometimes appointed. 
 Code Civ. Pr., §§ 3668-3683. 
 
 6. Executor of his own wrong. Sometimes the assets fall into 
 the hands of a person who has never been regularly appointed. 
 He is not really an executor, and not really an administrator, but 
 so long as he has charge he is held responsible for his actions, 
 and has certain duties imposed on him, and he is called an " ex- 
 ecutor of his own wrong" or sometimes " executor de, son tort." 
 
 3 R. S. 81, § 60. 
 
 I. EXECUTORS. 
 {a). Appointment. 
 
 If there is a will, and the will names and appoints one or more 
 executors, then as soon as the will is proved they are entitled to 
 have letters testamentary issued to them by the surrogate. 
 Code Civ. Pr., §§ 2636, 3637. 
 
 But any creditor or any person intei'ested in the estate, may 
 object to having letters testamentary issued to the executor on 
 several grounds, viz.: 
 
 1. Because he is incapable of making a contract. 
 
 2. Or under the age of twenty-one. 
 
46 EXECUTORS. 
 
 3. Or an alien, not residing in New York State. (An alien 
 -who resides in New York, or a citizen of the United States re- 
 siding anywhere, is competent.) 
 
 4. Or convicted of an infamous crime. 
 
 5. Or incompetent on account of drunkenness, dishonesty, im- 
 providence, or want of understanding. 
 
 If any of these objections are proved, the letters are not issued. 
 If there is another executor, letters will be issued to him. If 
 there are no executors competent, then an " administrator with 
 the will annexed " is appointed. 
 
 Code Civ. Pr., § 2636 ; 2 R. 8. 70, ch. 6, tit. 2, art. 1, § 3, as 
 amended L. 1878, ch. 79. 
 
 There is also one objection on which the surrogate may refuse 
 to issue letters testamentary, if he thmjts hest, namely : 
 
 6. Where the person cannot read and write the English 
 language. 
 
 L. 1867, ch. 783. 
 
 There are also two other objections, namely : 
 
 7. That the person's circumstances are such, that they do not 
 afford adequate 'security to the creditors, or persons interested in 
 the estate, for the due administration of the estate. 
 
 8. That he is not a resident of New York State (but is a citizen 
 of the United States). 
 
 In these cases numbered 7 and 8 the objection is entirely re- 
 moved by filing a bond approved by the surrogate as to amount 
 and bondsmen. 
 
 Code Civ. Pr., § 2638. 
 
 And in the case numbered 8, it is not even necessary to file a 
 bond, if the executor has an office in New York State for the 
 regular transaction of business, and if the will expressly provides 
 that he may act without giving security. 
 
 Code Civ. Pr., § 2638. 
 Postly V. Cheyne, 4 Dem. 492. 
 
 When the letters testamentary have been duly issued, then the 
 executor is fully authorized to act as such. 
 
EXECUTOES. 47 
 
 Q>). Executor's Bond. 
 
 In New York, an executor residing in J^ew York need not 
 give any bond unless required to do so by the will. 
 
 And if he resides out of New York, and is a citizen of the 
 "United States, he need not give a bond unless required to do so 
 by the will. But he may, however, be required to give a bond, 
 as above stated, if an objection is filed on that ground. 
 
 And even if such an objection is filed, he need not give a bond, 
 if the will expressly provides that he need not do so, omd if he 
 has an office in New York State for the regular transaction of 
 business, as above stated. 
 
 Concerning the executor's bond, its form, amount, etc., see 
 Code Civ. Pr., §§ 2645, 2607, as amended. As to deposit of se- 
 curity to reduce amount of bond. 
 
 Code Civ. Pr., § 2596. 
 
 As to an administrator's bond, however, the rules as to when it 
 is required, are different, as stated below {post, p. ). But its 
 form is the same. 
 
 Code Civ. Pr., §§ 3645, 3667, as amended. 
 
 (c). Renunciation. 
 
 A person named as executor in a will may renounce his right 
 to receive letters testamentary. This is done by an instrument 
 executed like a deed, and acknowledged or proved, and filed in 
 the surrogate's office. 
 
 Code Civ. Pr., § 3639. 
 
 After be has renounced, he may, before letters have been issued 
 to any one else in his place, retract his renunciation by an instru- 
 ment executed and filed in the same way. He may also retract 
 his renunciation under some other circumstances named in the 
 code section cited below. After such retraction the surrogate 
 may issue letters to him, but is not obliged to do so. 
 
 Code Civ. Pr., § 3639. 
 
48 EXECUTOKS. 
 
 {d). Executor appointed under a Power. 
 Testator may by will give authority to some person named to 
 appoint an executor of his will. For the method U making such 
 an appointment, and of objecting to the same, etc., 
 See Code Civ. Pr., §§ 2640-3642. 
 
 {e). Qualifying. 
 
 After the will is proved, the executor must "qualify." This 
 means, that he must give a bond, where necessary, and must 
 swear to the oath prescribed by statute and file it in the surro- 
 gate's ofiBce. 
 
 Code Civ. Pr., §§ 2645, 2594. 
 
 Unless he duly qualifies within the time prescribed by the 
 Code, he is deemed to have renounced his appointment, and an 
 order is entered to that effect. 
 
 Code Civ. Pr., § 2643, as amended. 
 
 {/). Powers of Executor hefore Letters issued. 
 
 Until letters testamentary are issued, the executor has no power 
 to dispose of any part of the estate, except to pay funeral charges; 
 nor to interfere with the estate in any manner further than is 
 necessary for its preservation. 
 
 3 R. S. 71, § 16; Birdseye's Ed., p. 3939. 
 
 {g). Poioer of Executor to Sell, etc. 
 
 " Where any powers to sell, mortgage, or lease real estate, or any 
 interest therein, are given to executors as such, or as trustees, or 
 as executors and trustees, and any of such persons named as 
 executors shall neglect to qualify, then all sales, mortgages, and 
 leases under said powers made by the executors who shall qualify 
 shall be equally valid as if the other executors or trustees had 
 joined in such sale." 
 
 Code Civ. Pr., §3643. 
 
 There is a similar provision in the Revised Statutes, as follows : 
 " Where any real estate or any interest therein, is given or de- 
 vised by any will legally executed, to the executors therein named. 
 
ADMINISTRATORS. 49 
 
 or any of them, to be sold by them or.any of them, or where such 
 estate is ordered by any last will to be sold by the executors, and 
 any executor shall negleat or refuse to take upon him the execu- 
 tion of such will, then all sales made by the executor or executors, 
 who shall take upon them the execution of such will, shall be 
 equally valid, as if the other executors had joined in such sale." 
 
 3 R. S. 109, § 55; Birdseye's Ed., p. 1135. 
 
 This right of the one who does qualify, to execute the power 
 given to " the executors," applies equally whether t}ie direction to 
 sell is imperative or is left to the discretion of the executors. 
 Leggett V. Hunter, 19 N. Y. 455, and cases there cited. 
 
 But if all the executors qualify, they must all unite to convey 
 land under such a power. One of them cannot do so without the 
 others, unless power is given to him specially in the will. 
 
 Wilder v. Ranney, 95 N. Y. 7. 
 
 Where a power of sale is given to an executor to enable him to 
 carry out his duties as executor, and is not given to him personally, 
 as a matter of personal confidence, it applies also to an adminilfe- 
 trator with the will annexed. 
 
 Mott V. Ackerman, 93 N. Y. 553-3^. 
 Matter of Christie, 59 Hun 153. 
 Royce v. Adams, 133 N. Y. 403. 
 
 II. ADMINISTRATORS. 
 
 {a). Appointment. 
 An administrator is a person appointed by the court, where 
 there is no competent executor qualified to act, to take charge of 
 the personal estate, collect claims, pay debts, and settle up the 
 estate. The court appoints an Administrator by issuing to him 
 "Letters of Administration," authorizing him to act. This is 
 done in a special proceeding begun by petition. 
 
 (b). Who Entitled to Letters. 
 The following persons are entitled to Letters of Administration, 
 in the order given below, the widow having the first right, and if 
 she is not appointed, then the children, and so on : 
 
50 ADMINISTKATOKS. 
 
 1. Testator's widow. 
 
 2. His children. 
 
 3. His father. 
 
 4. His mother. 
 
 5. His brothers. 
 
 6. His sisters. 
 
 7. His grandcliildren. 
 
 8. Any other next of kin who would be entitled to share in the 
 distribution of the estate. 
 
 After these come the Public Administrator, creditors, etc. 
 
 2 E. 8. 74, § 27, as amended, given in Birdseye's R. 8. 3940. 
 For some further details see same page, Birdseye's R. 8. 
 
 But a husband is the one first entitled to be administrator of 
 
 his wife. 
 
 2 R. 8. 75, 829; Birdseye's R. 8., p. 2940, § 134. 
 Matter of Strutzkober, 14 N. Y. Supp. 501. 
 
 (c). Who not Entitled. 
 
 The statute excluding certain persons (as infants, drunkards, 
 etc.) from appointment as administrators, is similar to those al- 
 ready given relating to executors. 
 
 2 R. 8. 75, § 32, as amended; Birdseye's Ed., p. 2940. 
 
 (<Z). Who Makes the Petition. 
 
 The petition asking for appointment of an administrator may 
 be presented by any person absolutely or contingently entitled to 
 be appointed. 
 
 Code Civ. Pr.,§ 2660. 
 
 («). Contents of Petition. 
 SeeCodeCiv. Pr., §3660. 
 
 (/■). Citation. 
 See Code Civ. Pr., §§ 3661-2663. 
 
 {g). Who must he Cited. 
 See Code Civ. Pr., §§ 2663-2663. 
 
REVOCATION OF LETTERS. 51 
 
 (h). Who may Appear. 
 See Code Civ. Pr., § 2665. 
 
 (*). Decree. 
 See Code Civ. Pr., § 2666. 
 
 (^). Bond. 
 
 All administrators must give a bond for the faithful discharge 
 of their duties. They must have it executed also by two sureties. 
 
 For its form and amovint, see Code Civ. Pr., § 2667. 
 
 (?). Henunoiation. 
 
 A person having a right to be appointed administrator may 
 renounce his right, in the same manner as one named as executor 
 in a will. 
 
 Code Civ. Pr., § 2664. 
 
 III. ADMINISTRATORS WITH THE WILL ANNEXED. 
 
 They only differ from ordinary administrators from the fact 
 
 that there is a will, and they are appointed to caiTy out its ;pro- 
 
 visions. 
 
 Birdseye's R. S., p. 2939, § 131. 
 
 IV. TEMPORARY ADMINISTRATORS. 
 
 For statutes on this subject see Code Civ. Pr., §§ 2668-2688. 
 
 Thus far we have considered Executors by themselves and 
 Administrators by themselves. We will now take up the law 
 applying to both, and regulating their powers, rights, and duties. 
 
 REVOCATION OP LETTERS. 
 
 There are numerous cases where, after letters have been issued 
 to an executor or administrator, they must be revoked. For in- 
 stance, if a later will is discovered and proved, which appoints 
 other executors ; or if an executor or administrator becomes legally 
 disqualified to act, etc. ; then the letters already issued must be 
 
62 APPRAISAL AND INVENTORY. 
 
 revoked. The grounds for revocation of lettei'S and the practice 
 in the special proceeding will be found in Code Civ. Pr., §§ 2684- 
 2693. 
 
 ANCILLARY LETTERS. ' 
 
 In some cases where letters testamentary or letters of adminis- 
 tration have been duly granted by a court of some other State or 
 foreign country, a proceeding may be begjin here, in a surrogate's 
 court having jurisdiction of the estate, lor local New Tork 
 letters. 
 
 The reason for this is, that when an executor or administrator 
 is appointed in another State or counti'y, there are many things 
 which he cannot do here in New York unless he has authority 
 from a New York surrogate's court. These extra letters author- 
 izing him to act in New Yoi;k are called "ancillary letters." 
 They are usually granted to the same persons who hold the orig- 
 inal letters. 
 
 SeejBO«<, pp. 54, 55. 
 
 F6r the practice on these matters, .see Code Civ. Pr., §§ 3694-2704. 
 
 DUTIES AND POWERS OF EXECUTORS AND ADMINISTRATORS. 
 /. Appraisal and Inventory. 
 
 On application of an executor or administrator, the surrogate's 
 court appoints two appraisers to appraise the personal property. 
 
 Birdseye's R. S., pp. 2941, 2943. 
 
 A notice is then served on the legatees and next of kin in the 
 county where the property is, and is posted in three of the most 
 public places in the town, stating the time and place of the ap- 
 praisement. At that time and place the executors or administra- 
 tors and the appraisers make up an inventory of all the personal 
 property of the deceased, setting down each article with its value. 
 
 Birdseye's R. S., pp. 2943, 3943, 3944, giving many details. 
 Salomon v. Heichel, 4 Dem. 176. 
 
 The appraisers must first take and sign an oath that they will 
 honestly appraise the property. 
 
 Birdseye's R. S., p. 3943. 
 
ADVERTISEMENT FOE CKEDITOES. 53 
 
 After the wbrk is done, the appraisers sign the inventory in 
 duplicate, and return one to the surrogate and give one to the 
 executors or administrators. 
 
 Birdseye's R-. S., p. 2945. 
 
 The executors or administrators must take and subscribe an 
 oath, to be annexed to the inventory, stating that such inventory 
 is in all respects just and true, and some other matters named in 
 the statute. 
 
 Birdseye's R. 8., p. 2945. 
 
 This inventory merely furnishes a sort of rough estimate of all 
 the property for which the executors or administrators are to be 
 held responsible. The appraisers usually set low values on the 
 property. For instance, if testator leaves a library, they usually 
 estimate the books at son)e average rate, as old paper, perhaps 
 five cents apiece, or some other iiominal rate. 
 
 If no inventory is returned as required by statute, any creditor 
 or person interested in the estate may begin proceedings to 
 compel the executor or administrator to perform his dutj' in this 
 respect. 
 
 Code Civ. Pr., §§ 3715, 2716. 
 
 Certain articles, such as one sewing-machine, school books, ten 
 sheep, one cow, two swine, and other articles enumerated in the 
 statute, are named in the inventory, but not appraised, and are 
 set apart for the use of the widow and children, or husband and 
 children. 
 
 Birdseye's R. S., p. 2943, § 148 ; Id., § 149, as amended L. 1890, 
 ch. 173, § 2 ; Id., p. 3944, § 150 ; Id., § 151. 
 
 The accuracy of the inventory may be rebutted. 
 Code Civ. Pr. § 1832. 
 
 II. Ad/oertisement for Creditors. 
 
 The next thing is, to advertise for persons having claims against 
 the estate. As the law now stands (Birdseye's E. S., p. 1131, 
 § 177, amended by L. 1890, ch. 456), this advertisement may 
 begin at any time after letters are granted, in a newspaper pub- 
 lished in the county, and in any others designated by the sur- 
 
64 COLLECTION OF ASSETS. 
 
 rogate, and must be inserted once in each week for six moutlis, 
 and it must require creditors to present claims and vouchers to 
 the executors or administrators at a place named, before a given 
 date at least six months from the day of the.first publication. 
 
 The practice is to present to the surrogate a statement of the 
 necessary facts, and a request to designate a paper or papers and 
 iix a date, signed by the executoi-s or administrators. He then 
 grants an order, and thereupon the advertisement is inserted. 
 The following notice illustrates the form : 
 
 Wilson^ Anna Dorothea. — In pursuance of an order of Hon. 
 Rastus S. Ransom, Surrogate of the City and County of New 
 York, notice is hereby given to all persons having claims against 
 Anna Dorothea "Wilson, late of the City of New York, de- 
 ceased, to present the same, with vouchers thereof, to the sub- 
 scriber, at his place of transacting business, JS!o. 3000 Broadway, 
 in the City of New York, on or before the 1st day of March next. 
 
 Dated, New York, the 27th day of August, 1892. 
 
 John K. Henry, 
 
 See also Birdseye's R. S., pp. 1131-1132. 
 
 III. Collection of Assets. 
 As soon as letters are issued, the executors and administrators 
 may begin to collect the assets, britiging suit whenever necessary. 
 They may employ an attorney for this pui-pose, and pay him ap- 
 propriate fees for his services, and credit themselves with the 
 sums thus paid. 
 
 Boynton v. Laddy, 10 N. Y. Supp. 632. 
 
 They cannot bring suits to compel payment, in the courts of 
 any other State or country, unless they are first authorized to do so 
 by the courts of that jurisdiction. 
 
 Ulster Co. Savings Inst. v. Fourth Nat. Bank, 8 N. Y. Supp. 163. 
 See ante, p. 52. 
 
 And executors and administrators appointed in another State or 
 country cannot brmg suits here, until they first have ancillary let- 
 ters issued to them by the courts of this State. 
 
 Farrington v. Am. Loan & Trust Co., 9 N. Y. Supp. 483. 
 
 Ulster Co. Savings Inst. v. Fourth Nat. Bank, 8 N. Y. Supp. 162. 
 
 Stewart v. O'Donnell, 2 Dem. 17. 
 
 Compare Johnson v. Walhs, 112 N. Y. 230. 
 
PAYMENT OF DEBTS. 55 
 
 Although executors and administrators cannot compel debtors 
 to pay their debts in other States or countries outside the one 
 where they are appointed, such debtors can pay if they choose to, 
 and in that case the executors or administrators can give a valid 
 receipt so as to release the debtors from all liability. 
 
 Schluter v. Bowery Savings Bank, 117 N. Y. 135. 
 
 I V. Payment of Debts. 
 
 (a). Compelling Payment. 
 
 Creditors of the estate cannot insist on being paid until six. 
 months after letters are issued. 
 
 Code Civ. Pr., §3717. 
 
 After six months they may compel payment by a proceeding 
 in the surrogate's court, unless the claim is shown to be of doubt- 
 ful validity ; or unless it is shown that there is no money, or 
 other personal property which is applicable to this payment, or 
 which could be so applied without injuriously affecting the rights 
 of others entitled to be paid first or at the same time. 
 
 CodeCiv. Pr., §3718. 
 
 But the executors or administrators may, with the approval of 
 
 the surrogate, submit any doubtful claim to arbitration. The 
 
 decision of the arbitrators may be set aside, or confirmed, by the 
 
 surrogate. If confirmed, it is valid and effectual like a judgment 
 
 in a suit. 
 
 Birdseye's R. S., p. 1132. 
 
 The creditor may, in certain cases, bring an action against the 
 executors or administrators, to recover a judgment. 
 
 Code, §§ 1833-1836. 
 
 Or he may apply to the surrogate, in certain cases, for a sale of 
 decedent's real estate, to furnish funds to pay his debt, if there is 
 not enough personal property. 
 
 Code Civ. Pr., § 37-'>0 et seq. 
 
56 PAYMENT OF DEBTS. 
 
 Or may bring an actiqii against decedent's surviving husband, 
 or wife, or next of kin, or legatees, who have received property' 
 from the estate. 
 
 Code, §§ 1837-1843, 1856-1860. 
 
 Or against the heirs or devisees of the decedent. 
 Code, §§ 1843-1860. 
 
 And proceedings for leave to sell real estate to pay debts, may 
 be begun by the executors or administrators. 
 Code Civ. Pr., § 2750 et aeq. 
 
 (J). Application of Property to pay Debts. 
 
 The property of decedent is to be employed in paying, debts in 
 the following order : 
 
 First, the money on hand is to be used. 
 Sweeney v. Warren, 137 N. Y. 436. 
 
 Next, the personal property may be sold, so far as necessary, 
 to raise money for the same purpose. 
 Birdseye's R. S., pp. 1130, 1131. 
 
 If there is not enough personal property, permission may be 
 obtained from the surrogate, by the proceeding just mentioned 
 above, to sell real estate for the same purpose. 
 
 Code Civ. Pr., g 3749 et seg. 
 Smith V. Coup, 6 Dem. 45. 
 
 This proceeding, whether brought by an executor, administra- 
 tor, or creditor, must be begun within three years after letters 
 were granted. 
 
 Code Civ. Pr., § 3750. 
 
 Sometimes the will gives the executors ^owe/* to sell real estate 
 to pay debts. In that case they do not need to bring any such 
 proceeding for permission to sell. 
 
 Code Civ. Pr., § 3759, subdiv. 4. 
 
 And so if the land in question was devised by testator charged 
 with the payment of debts, there is no occasion for such a pro- 
 
PAYMENT OF DEBTS. 57 
 
 ceediiig, because the debts may be- collected by suit against the 
 devisee. 
 
 Code Civ. Pr., § 3759, subdiv. 4. 
 
 All the foregoing discussion concerning payment of debts, and 
 he methods of enforcing such payments, are equally applicable 
 to decedent's funeral expenses. 
 
 If any creditor does not present his claim within six months 
 after the first publication of the advertisement, then he cannot 
 hold the executors or administrators responsible for any assets or 
 money which they may have paid in satisfaction of any claims of 
 an inferior degree, or of any legacies, or in making distribution to 
 the next of kin, made before the beginning of the suit of such 
 delinquent creditor to enforce his delayed claim. 
 Birdseye's R. S., p. 1133, § 181. 
 
 (c). Ordsr in which Debts are Paid. 
 
 Debts are paid in the following order, all those in the first class 
 coming first, those in the second class next, and so on : 
 
 1. Debts entitled to a preference under the laws of the United 
 States. (These are, all debts due to the United States. U. S. 
 Eev. St., §§ 3466-3475.) 
 
 2. Taxes assessed upon the estate of the deceased, previous to 
 his death. 
 
 3. Judgments docketed and decrees enrolled, against the de- 
 ceased, according to the priority thereof, respectively. 
 
 For method of enforcement, see Code, §§ 1376-1387. 
 
 4. All recognizances, bonds, sealed instruments, notes, bills, and 
 unliquidated demands and accounts. 
 
 Birdseye's R. S., p. 1131, § 173. 
 
 See also, for further provisions, the same page, §§ 173, 174, 175. 
 
 No part of the property of the deceased shall be retained by an 
 executor or administrator, in satisfaction of his own debt or 
 claim, until it shall have been proved to, and allowed by, the sur- 
 rogate ; and such debt or claim shall not be entitled to any pref- 
 erence over others of the same class. 
 Birdseye's R. S., p. 1181, § 176. 
 
 (d). Vouchers. 
 Upon any claim being presented against the estate of any de- 
 ceased person, the executor or administrator may require satisfac- 
 
58 PAYMENT OF LEGACIES. 
 
 torj vouchers in support thereof, and also the affidavit of the 
 claimant that such claim is justly due, that no payments have 
 been made thereou, and that there are no offsets against the same 
 to the knowledge of such claimant. Further details are given in 
 the statute. 
 
 Birdseye'sR. S., p. 1131, § 178. 
 
 («). Compromise of Doubtful Claims. 
 See Birdseye's R. S., p. 1133, §§ 185, 186. 
 
 V. Payment of Legacies. 
 
 No legacies shall be paid by any executor or administrator, 
 nntil after the expiration of one year from the time of granting 
 letters testamentary or of administration, unless the same are 
 directed by the will to be sooner paid. 
 Birdseye's R. S., p. 1132, § 183. 
 
 If a legacy is directed to be sooner paid, the surrogate may re- 
 quire a bond from the legatee to secure its return if necessary. 
 Birdseye's R. 8., p. 1133, § 183. 
 
 After one year from the granting of letters, the legacies shall 
 
 be paid. 
 
 Birdseye's R. S., p. 1133, § 184. 
 
 If the executor or administrator then refuses to pay, suit may 
 be brought against him. 
 Code, § 1819. 
 
 Interest on a legacy begins to run from the time when it is due 
 and payable, unless an intent that it should carry interest sooner 
 is shown by the will. By the statute, legacies are payable one 
 year after letters are granted, and consequently a legacy bears in- 
 terest from the end of that year. If a legacy is directed to be 
 paid sooner, or later, it bears interest from the time when it is 
 directed to be paid. 
 
 Thorn v. Gardner, 118 N. Y. 203. 
 Bradner v. Faulkner, 12 N. Y. 472. 
 
 But there is one exception to the general rule. For if the 
 legacy is given to an infant child of testator, or to an infant 
 toward whom testator stood in loco pa/rentis, it is presumed that 
 
GENERAL PKOVISIONS. 59 
 
 he meant it to have the interest from his death, unless a contrary 
 
 intent is shown in the will. 
 
 Brown v. Knapp, 79 N. Y. 136. 
 Cooke V. Meeker, 36 N. Y. 18. 
 
 VI. Order of Payment of Legacies. 
 First, the specific legacies. 
 Next, the general legacies. 
 
 If there are not sufiieient assets to pay the general legacies, 
 they abate, (that is, they are all scaled down pro rata). 
 Birdseye's R. S., p. 1133, § 184. 
 
 (Concerning the terms "specific" and "general," see "Defini- 
 tions," jjos<, p. 62.) 
 
 VII. General Provisions. 
 No executor or administrator shall be chargeable upon any 
 special promise to answer damages, or to pay the debts of the tes- 
 tator or intestate, out of his own estate, unless the agreement for 
 that purpose, or some memorandum or note thereof, be in writing, 
 and signed by such executor or administrator, or by some other 
 person by him thereunto specially authorized. 
 Bireseye's R. S., p. 1136, § 197. 
 
 Actions of account, and all other actions upon contract, may 
 
 be maintained by and against executors, in all cases in which the 
 
 same might have been maintained, by or against their respective 
 
 testators. 
 
 Birdseye's R. S., p. 1136, § 198. 
 
 For similar provision regarding administrators, see same page, 
 
 § 199. 
 
 Concerning actions for trespass by and against executors and 
 administrators, and against them for waste and conversion, see 
 Birdseye's R. S., p. 1138, §§ 200-202. 
 
 All statutory provisions of New York relative to executors and 
 administrators apply to a single executor or administrator, and 
 to an executrix or administratrix. 
 
 Birdseye's R. S., p. 1136, § 203. 
 
 For wrongs done to the property, rights, or interests of another, 
 for which an action might be maintained against the wrong-doer, 
 such action may be brought by the person injured, or after his 
 
60 ACCOUNTING. 
 
 death by his executors or administrators, against su&hwroug-doer, 
 and after his death against his executoi-s or administratoi-s, in the 
 same manner and with the like effect, in all respects, as actions 
 founded upon contracts. 
 
 But this does not apply to slander, libel, assault and battery, 
 false imprisonment, or actions on the case for injuries to the per- 
 son of the plaintiff, or the testator or intestate. 
 
 Birdseye's R. S., p. 1130, §§ 165, 166. 
 
 Compare Code Civ. Pr. § 1903 et seq. 
 
 VIII. Executors of Executors. 
 An executor of an executor shall have no authority to com- 
 mence or maintain any action or proceeding relating to the estate, 
 effects or rights of the testator of the fii'st executor, or to take any 
 charge or control thereof, as such executor. 
 
 Birdseye's R. S., p. 1130, § 167. 
 Matter of Allen, 2 Dem. 203. 
 
 IX. Accounting. 
 (a). General Provisions. 
 
 I. An executor or administrator may, at any time, voluntarily 
 file in the surrogate's office an intermediate account, and the 
 vouchers in support of the same. 
 
 Code Civ. Pr., §2722. 
 
 II. The surrogate may, in his discretion, order an intermediate 
 accounting, in certain cases specified in 
 
 Code, § 2728. 
 
 III. The surrogate may also compel a judicial settlement of the 
 account ot an executor or administrator, in either of the following 
 cases : 
 
 (1). Where one year has expired since letters were issued to him. 
 
 (2). Where letters issued to him have been revoked, or, for any 
 other reason, his powers have ceased. 
 
 (3). Where a decree for the disposition ot real property, or of 
 an interest in real property, has been made (for the payment ot 
 debts and funeral expenses, under a decree for that purpose), and 
 the property, or a part thereof, has been disposed of by him, pur- 
 suant to the decree. 
 
 (4). Where he has sold, or otherwise disposed of, any of dece- 
 
ACCOUNTIJSTG. 
 
 61 
 
 dent's real property, or devisable interest in real property, or the 
 rents, profits, or proceeds thereof, pursuant to a. power mnta,med 
 in the decedent's will, where one year has elapsed since letters 
 were issued to him. 
 
 Code, § 2734. 
 
 A temporary administrator may be required by the surrogate, 
 at any time, to account. i 
 
 Code, § 2735. 
 
 (S). Method of Procuring Accounting. 
 The method is to file a petition. The surrogate must then issue 
 a citation. For one exception, where the surrogate may declhie 
 to do so, and for the parties who may tile the petition, see 
 Code, § 3736. 
 
 If the executor or administrator does not appear, or does not 
 show good cause to the contrary, an order is made directing him 
 to account. He is bound by the order without service. If he dis- 
 obeys, his letters may be revoked, and an attachment issue. 
 Code, § 3737 (and §§ 3715-3716). 
 
 The executor or administrator may, at any time after letters are 
 
 issued, petition for a judicial settlement of his account. For the 
 
 form of petition, parties to be cited, and proceedings on the return 
 
 day, see 
 
 Code, §§ 3738-2735. 
 
 For the effect of the judicial settlement, and the points settled 
 
 by it, see 
 
 Code, §3742. 
 
 (c). Decree. 
 
 For the form and contents of the decree, see 
 
 Code, §§ 3743-2744. 
 
 COMPENSATION OF EXECUTOES OE ADMINI8TEAT0E8. 
 
 On settlement of the account, they are allowed : 
 On sums not exceeding $1,000 received and paid out, 5 per cent. 
 On sums over $1,000 and less than $10,000, 2i per cent. 
 On sums above $10,000, 1 per cent. 
 
 Commissions are divided, in proportion to services rendered 
 among the executors or administrators. 
 Birdseye's R. S.. p. 1133. 
 
62 DEFINITIONS. 
 
 If the estate is $100,000 or more, each gets full commission. 
 But if more than three executors or administrators, the total com- 
 pensation for three is divided among all in proportion to the ser- 
 vices rendered. 
 
 Birdseye's R. S., p. 1112-1113, which see for further provision. 
 
 , ^.„ DEFINITIONS. 
 
 See Text-Book, p. 468. 
 
 2. Testament. — 
 
 Text-Book, p. 468. 
 
 3. Legacy. — A testamentary gift of personal property. 
 Specific Legacy.— K legacy is specific where it refers to certain 
 
 specified property, as, " my copy of Blackstone," " my gold watch 
 and chain." 
 
 General Legacy. — A legacy is general where it refers to money 
 or other personal property, in general, without specifying any par- 
 ticular article, or any particular fund from which it is to be paid. 
 For instance, " five thousand dollars." 
 
 Demonstrative Legacy. — A legacy is demonstrative where it 
 refers to a certain amount of money to be paid from a particular 
 fund. For instance, "two hundred dollars to be paid from my 
 deposit at the St. Nicholas Bank." ' 
 
 4. Bequest. — 
 
 Text-Book, p. 467. 
 
 5. Abatement. — It sometimes happens that testator does not 
 leave enough assets to pay all the legacies in full. Then the re- 
 sult is shown by the following illustrations ; 
 
 Testator left a will as follows : 
 
 To my son, my Steinway piano. (This is a specific legacy, esti- 
 mated at say $600.) 
 
 To my daughter, $500. (This is a general legacy.) 
 
 To my sister, $.500. (This is also general.) 
 
 To my brother, $500, to be paid from my deposit in the Metro- 
 politan Trust Co. (This is a demonstrative legacy.) 
 
 When he died, his only assets were the piano, $500 cash in his 
 pocket-book, and $500 on deposit with the Trust Co. Evidently 
 
 ' The term demonstrative legacy is ,also often applied to legacies of certain 
 classes of personal property, other than money, such as stock, etc., where the 
 gift is of a portion to be drawn from a designated collection of similar property. 
 
DEFINITIONS. 63 
 
 all the legacies cannot be paid in full. Some of them must be 
 scaled down to correspond to the assets. This scaling down is 
 called " abatement." It acts as follows : 
 
 The son gets the piano. Specific legacies do not abate. 
 
 The brother gets his $500 in full. Demonstrative legacies do 
 not abate. 
 
 The daughter and sister divide the rest between them equally, 
 each taking $250. If their legacies had been unequal in amount 
 each would abate in proportion. Thus, if the daughter's legacy 
 had been $1,000 and the sister's $500, the available assets, $500, 
 would h^ve gone two-thirds to the daughter, and one-third to the 
 sister. 
 
 Abatement, therefore, is the scaling down of general legacies, 
 pro rata, where there are not enough available assets to pay them 
 in full. Specific legacies and demonstrative legacies do not 
 abate. 
 
 6. Devise. — 
 
 Text-Book, p. 467. 
 
 7. Holographic Will. — 
 
 Text-Book, p. 467. 
 
 8. Definitions of Executor ; -Executor of his own wrong ; Ad 
 miuistrator; Administrator with the will annexed; and Temporary 
 Administrator, etc., — will be found in the preceding notes under 
 the head of "Executors and Administrators." 
 
 9. Charges. The general rule is that both debts and legacies 
 are to be paid out of the personal property of testator, if there is 
 enough of it ; but he may by his will charge them upon his real 
 estate (that is, he may direct them to be paid out of his real 
 estate, or out of some particular part of the real estate). 
 
 10. Ademption. This means that testator, by some act during 
 his life (not including revocation), has practically wiped out a 
 legacy given by the will. This is further explained as follows : 
 
 Tliere are two kinds of ademption : 
 
 (1). Ademption by testator's parting, during his life, with the 
 property bequeathed. 
 
 For instance, if he bequeaths his Steinway piano to his son, and 
 then sells the piano, the son gets nothing under that legacy. It 
 was the piano or nothing, and the piano being gone he gets 
 nothing. 
 
64 DEFINITIONS. 
 
 This kind of ademption affects only specific legacies. It does 
 not affect general or demonstrative legacies. 
 
 For instance, if testator gives his daughter $500 (a general 
 legacy), and leaves no ready money, then if there is any personal 
 property, she gets her Wgacy, (subject to any specific and demon- 
 strative legacies, and subject to abatement, if necessary). 
 
 So if he gives his brother $500, to be paid from a deposit in 
 the St. Nicholas Bank, and then spends ill that deposit, still if 
 tliere is any personal property, he gets his legacy (subject to 
 specific legacies, and subject to abatement). 
 
 (2). Ademption by testator's paying oft" and satisfying the legacy 
 during his life. 
 
 Tliis applies to all legacies. Thus, if he bequeaths his white 
 hcrse, and then gives the same legatee another horse instead, 
 intending thereby to satisfy the legacy, the legatee cannot also 
 take the white horse. So if he bequeaths $500 and afterwards 
 gives the same to satisfy the legacy, the legatee cannot also have 
 the $500 under the will. So if he gives a demonstrative legacy, 
 he may in the same way-pay it off and satisfy it during his life. 
 
 The question of whether he does in fact intend to adeem the 
 legacy by his gift during life, is often a very difficult one, and is 
 subject to a number of presumptions applicable in different cases. 
 
 The doctrine of ademption applies only to personal property, 
 and not to real property. 
 
 V-, Lapse. — TI V, occurs where the person to whom property 
 is left by will dies before testator. In such a case, as the lega- 
 tee or devisee is not in existence when the will takes effect, t!ie 
 legacy or devise " lapses," or becomes of no effect. In one class 
 of eases this rule has been changed in New York, where the stat- 
 ute provides that 
 
 " Whenevof any estate, real or personaJ, shall be devised or be- 
 queathed to a child or other descendant of the testator, and snciii 
 legatee or devisee shall die during the lifetime of the testator, 
 leaving a child or other descendant who shall survive such testa, 
 tor, such devise or legacy shall not lapse, but the pi'operty so de- 
 vised or bequeathed shall vest in the surviving child or other de- 
 scendant of the legatee or devisee, as if such legatee or devisee 
 had survived the testator and had died intestate." 
 Birdaeye'a B. S., p. 3345.