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tate Law, provide in substance that no person having a wife, child or parent shall devise or bequeath to the particular corporations organized or formed under the acts therein mentioned more than one-fourth of his or her estate.
The language of this section (20) is very similar to that employed in section 19, Decedent Estate Law, and the decisions on 'the construction of section 19, and collated under that section, will prove equally decisive in the construction of section 20 of this act. Therefore such decisions need not be again cited here or noticed at length.
Devises and Bequests to Incorporations Formed Under Membership Corporations Law. It must be obvious, by an examination of the laws, that devises and bequests to fire corporations, bar associations and veterinary medical corporations when formed under the new Membership Corporations Law of 1909 are no longer restricted in amount, unless section 17 of this act applies to such corporations. Whether it applies must be doubtful until so determined by the courts.
§ 21. Manner of execution of will. Every last will and
testament of real or personal property, or both, shall be executed and attested in the following manner.
1. It shall be subscribed by the testator at the end of the will.
2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses.
3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament.
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.
Formerly $ 40, 2 R. S. 63:
§ 40. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:
1. It shall be subscribed by the testator at the end of the will:
2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him, to 'have been so made, to each of the attesting witnesses:
3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament:
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.41
Retrospect. In the introduction to this treatise the development of English law regulating last wills and testaments has been very briefly reviewed, and in the course of the commentary on section 10 of the Decedent Estate Law some account of the Statute of Wills in New York has been attempted. We have seen that until the Revised Statutes of Wills was enacted in this State in 1830 the old English Statute of Wills, as amended by the Statute of Frauds,43 was virtually continued in force in New York,44 and regulated wills or devises of lands, but that testaments or wills of personalty were left to the yet older law of England and were consequently of an extremely informal nature. 15 The old decisions of the English courts on the original statutes, if rendered before Independence, were consequently very influential when not controlling. The early law and chancery reports of this State afford ample evidence of the fact last stated.
41 Repealed $ 130, Decedent Estate Law. This part of the Revised Statutes went into effect Jan. 1,
Public Admr., 4
42 Supra, pp. 50-54.
Before denoting in detail the changes in the law introduced by the Revised Statutes, it may be well briefly to recapitulate the legal requirements of a will or devise of lands before the year 1830. Under the old Wills Act of Henry VIII, a will was described as an “irregular instrument in writing," as no form of will was required. Any paper of a testamentary character sufficed. Signing by the testator was unnecessary. Any scrap of writing, though it was neither signed, sealed nor even written by the testator, might be established by the evidence of one witness as a will of land. 46 The Statute of Frauds first required devises to be in writing, signed by the party or by some other in his presence and by his direction, and attested and subscribed in the presence of the devisor by three or four credible witnesses. 47 The Statute of Frauds did not define a will, and any paper writing which constituted a devise before the act was such after it, if executed pursuant to the new law. Under that act (Car. II) it was quite immaterial in what part of the will the testator signed.48 It was long an open question whether publication of a will of freeholds was necessary, 19 and the testator certainly need not sign in the presence of the witnesses, if he acknowledged his signature to them either separately or together.50 Wills
32 Hen. VIII, chap. 1; 3; and 35 Hen. VIII, chap. 5 as amended by 29 Car. II (Statute of Frauds).
47 § 5, 29 Car. II, re-enacted in New York Wills Act of 1787, supra, p. 52.
44 Chap. 47, Laws of 1787; i K. & R. 178; 1 R. L. 364. 45 Supra, pp. 84, 85.
46 Brown v. Sackville, 1 Dyer, 72; Nash v. Edmunds, Cro. Eliz. 100, and see Powell on Devises (edition of 1838), 9, 25.
48 Grayson v. Atkinson, 2 Ves. Sr. 454.
49 Rose v. Ewer, 3 Atk. 156; cf. Moodie v. Reid, 7 Taunt. 361.
50 Ellis v. Smith, 1 Ves. Jr. II; Jauncey v. Thorne, 2 Barb. Ch. 40, 55.
or devises of lands were always regarded under the old statutes as a species of conveyance which however was required to conform to the statute in so far as its execution was concerned. 51
Wills or testaments of personal property were even less formal than devises. They were not much affected by the Statute of Frauds (29 Car. II) or even by the old Statutes of Wills (Hen. VIII).62 Wills of personalty continued to be controlled after those statutes by the older law, as it had been laid down in the Courts Christian, which, as we have seen in the Introduction, had adopted the principles of the civil and canon law. Thus prior to the Revised Statutes almost any instrument of a testamentary character, even of the most informal nature, would suffice for a will of personalty. A testamentary paper written by the testator himself, even if without signature or witnesses, would suffice.53 Yet the old law on this head was not so chaotic as is sometimes asserted. The principles of the Courts of Probate, modeled after the Roman law, were refined and just. They naturally placed much weight on the prior custody of the testamentary paper.
A formal attestation clause, if without witnesses, was deemed presumptive proof of testator's intent to defer execution.54 But if he suddenly died this presumption of intention to perfect a document of a testamentary character was altered and the scheme, if complete in itself, would be probated, although the paper bore some evidence of incompleteness on its face.55 Such refinements doubtless made for uncertainty in the old law of wills.
In New York, the Revised Statutes of 1830 put an end (as did a like English act in 183756 in England) to wills and testaments of an informal character. The preliminary note of the revisers to this part of the Revised Statutes announces this intention clearly in respect of wills of personalty. By assimilating wills of personal
51 Markby, Elements of Law, $ 581; Harwood v. Goodright, Cowp. 90.
62 Public Admr. v. Watts, i Paige, 347 and see Root v. Stuyvesant, 18 Wend. at p. 285; 4 Burns, Eccles. Law, 122.
168, reversing i Paige, 347; Swinburne, 639.
54 Watts v. Public Admr., 4 Wend. 168.
2 Phill. 213; Carey V. Askew, I Cox, 241.
V. Ewer, 3 Atk. 163; Watts v. Public Admr., 4 Wend.
1 Vict, chap. 20. 57 See Appendix II, infra.
property to wills of real estate, as regards the ceremonial of execution, the law was well rid of a mass of distinctions, such as those relating to informal wills, and to codicils and their effect on prior unattested wills or codicils.
The Revised Statutes. Before discussing the particular changes instituted by the Revised Statutes in the prior law of wills, and now perpetuated in the Decedent Estate Law, let us consider the starting point of the statute. The reader will observe that the statute does not define a will: it only regulates the formalities which must attend the written expression of a will.58 It even fails to re-enact directly that part of the old Statute of Frauds which required a last will to be in writing. It does so enact, but indirectly and by implication. The statute evidently assumes that the statutory last will and testament shall be the sole embodiment of a man's final dispositional declarations, his “ ultima voluntas." But it regulates only the formal expression of such last will, or, in other words, the manner in which such “last will” may become a dispositive legal instrument. What the statute assumes is that which the common lawyers call vaguely the "factum" of a will. The statute, in other words, takes for granted a great but indefinite body of pre-existing law.
Statute Requires Will to be in Writing. This statute, unlike the old Statute of Wills, does not in so many words say that a last will or testament shall be in writing. But construed as a whole it tolerates no other evidence of a will than a writing in some form, except in the single case of soldiers' and sailors' nuncupative wills of personalty.61 In Roman law a will could be written on parchment, paper, a tablet or any other material. So now the writing may be on paper, parchment, or on any movable material or substance susceptible of receiving impression and being filed in the surrogates' offices. The instrument need not in any case be
5. See above, p. 45, under $ 2.
Weatherhead, Lessee, Baskerville, 11 How. (U. S.) at p. 358; Howland v. Taylor, 53 N. Y. 627.
60 2 R. S. 63, $ 40, now Decedent Estate Law of 1909.
61 § 16Decedent Estate Law.
62 Matter of Tighe, 24 Misc. 459. Cf. § 12, Inst. Justin. 2, 10.