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Proof of nuncupa tive wills.

Probate of

nuncupative wills.

Written will, how revoked

2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator, at the time, to bear witness that such was his will, or to that effect.

3. The decedent must, at the time, have been in his last illness, or in actual military service in the field, or doing duty on shipboard at sea, and in either case in actual contemplation, fear or peril of death.

4. Except in the cases mentioned in Subd. 3 of this section, it must be made at the dwelling house of the testator, or where he was residing for the space of ten days or more, unless taken sick from home and death ensues before his return.

Stats. 1850, 177, Sec. 7; N. Y. C. C., Sec. 547.

SEC. 1289. (§ 8.) No proof must be received of any nuncupative will, unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were reduced to writing within thirty days after they were spoken.

Stats. 1850, 178, Sec. 8.

SEC. 1290. (§ 9.) No probate of any nuncupative will must be granted for fourteen days after the death of the testator, nor must any nuncupative will be at any time. proved, unless the testamentary words, or the substance thereof, be first committed to writing, and process issued to call in the widow, or other person interested, to contest the probate of such will, if they think proper.

Stats. 1850, 178, Sec. 9.

SEC. 1291. Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than

1. By a written will, or other writing of the testator, declaring such revocation or alteration, and executed. with the same formalities with which a will should be executed by such testator; or,

2 By being burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction.

N. Y. C. C., Sec. 561.

revocation.

SEC. 1292. (§ 10.) When a will is cancelled or de- Evidence of stroyed by any other person than the testator, the direction of the testator, and the fact of such injury or destruction, must be proved by two witnesses.

N. Y. C. C., Sec. 562; Stats. 1850, 178, Sec. 10.

SEC. 1293. A revocation by obliteration on the face of the will may be partial or total, and is complete if the material part is so obliterated as to show an intention to revoke; but where, in order to effect a new disposition, the testator attempts to revoke a provision of the will, by altering or obliterating it on the face thereof, such revocation is not valid unless the new disposition is legally effected.

SEC. 1294.

N. Y. C. C., Sec. 563.

Revocation tion on face

by oblitera

of will.

The revocation of a will, executed in Revocation of duplicate. duplicate, may be made by revoking one of the dupli

cates.

N. Y. C. C., Sec. 564.

by subse.

SEC. 1295. A prior will is not revoked by a subsequent Revocation will, unless the latter contains an express revocation, or quent will. provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will.

N. Y. C. C., Sec. 565.

SEC. 1296. (§ 11.) If, after making a will, the testator duly makes and executes a second will, the destruction, cancellation or revocation of such second will does not revive the first will, unless it appears by the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancellation or revocation, the first will is duly republished.

Stats. 1850, 178, Sec. 11.

SEC. 1297. If, after having made a will, the testator marries, and has issue of such marriage, born either in his lifetime or after his death, and the wife or issue survives him, the will is revoked, unless provision has been made for such issue by some settlement, or unless such

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Effect of marriage of

a man on his will.

Effect of a marriage of

a woman on

her will.

Contract of

sale not a revocation.

Mortgage not a revocation of will.

Conveyance, when not a revocation.

issue are provided for in the will, or in such way men.
tioned therein as to show an intention not to make such
provision; and no other evidence to rebut the pre-
sumption of such revocation can be received.

N. Y. C. C., Sec. 567.

SEC. 1298. (§ 12.) If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by mar riage contract, or unless she is 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 revocation must be received.

Stats. 1850, 178, Sec. 12.

SEC. 1299. (§ 13.) A will, executed by an unmarried. woman, is revoked by her subsequent marriage, and is not revived by the death of her husband.

Stats. 1850, 178, Sec. 13.

SEC. 1300. (§ 14.) An agreement made by a testator, for the sale or transfer of property disposed of by a will previously made, does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator's agreement, for a specific performance or otherwise, against the devisees or legatees, as might be had against the testator's successors, if the same had passed by succession.

N. Y. C. C., Sec. 569; Stats. 1850, 178, Sec. 14.

SEC. 1301. (§ 15.) A charge or encumbrance upon any estate, for the purpose of securing the payment of money, or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed; but the devise and lega cies therein contained must pass, subject to such charge or encumbrance.

Stats. 1850, 178, Sec. 15.

SEC. 1302. A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession.

N. Y. C. C., Sec. 571.

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revocation.

SEC. 1303. If the instrument by which an alteration When it is a is made in the testator's interest in a thing previously disposed of by his will expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency by reason of which they do not take effect.

N. Y. C. C., Sec. 572.

SEC. 1304. The revocation of a will revokes all its Revocation codicils.

N. Y. C. C., Sec. 573.

SEC. 1305. (§ 16.) Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion of the testator's real and personal property that he would have succeeded to if the testator had died intestate.

N. Y. C. C., Sec. 574; Stats. 1850, 178, Sec. 16.

SEC. 1806. (§ 17.) When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section.

Stats. 1850, 178, Sec. 17.

SEC. 1307. (§ 18.) When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in the will, as herein before mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the devisees or legatees, in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in such case, such specific devise, legacy or provision may be

of codicils.

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Advance. ment during lifetime of testator.

Death of devisee, be.

of testator, in lifetime

exempted from such apportionment, and a different apportionment, consistent with the intention of the testator, may be adopted.

Stats. 1850, 178, Sec. 18.

SEC. 1308. (§ 19.) If such children, or their descendants, so unprovided for, had an equal proportion of the testator's estate bestowed on them in the testator's lifetime, by way of advancement, they take nothing in virtue of the provisions of the three preceding sections.

Stats. 1850, 179, Sec. 19.

SEC. 1309. (§ 20.) When any estate is devised to any ing relation child, or other relation of the testator, and the devisee dies before the testator, leaving a successor, such suc cessor takes the estate so given by the will, in the same manner as the devisee would have done had he survived the testator.

of testator, leaving lin eal descendants.

Devises of land, how construed.

Will to pass rights ac

Stats. 1850, 179, Sec. 20.

SEC. 1310. (§ 21.) Every devise of land in any will conveys all the estate of the devisor therein, which he could lawfully devise, unless it clearly appears by the will that he intended to convey a less estate.

Stats. 1850, 179, Sec. 21.

SEC. 1311. (§ 22.) Ary estate, right or interest in lands quired after acquired by the testator after the making of his will,

the making

thereof.

passes thereby and in like manner as if title thereto was vested in him at the time of making the will, if it manifestly appears by the will to have been the intention of the testator. Every will made in express terms, devising or in any other terms denoting the intent of the testator to devise all the real estate of such testator, passes all such real estate which such testator was entitled to devise at the time of his decease.

Stats. 1850, 179, Sec. 22; 1865-6, 381, Sec. 1.

NOTE. The preceding chapter is taken from our own statutes on wills-the old section being given thus (1), in parenthesis-and from the New York Civil Code, to which reference is frequently made, as will be observed.

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