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§ 33. Opening wills received by surrogate for safe keeping.

If such will shall have been deposited with a surrogate, or shall have been delivered to him as above prescribed, such surrogate, after the death of the testator, shall publicly open and examine the same, and make known the contents thereof, and shall file the same in his office, there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the custody thereof; or until required by the authority of some competent court to produce the same in such court.

Formerly 2 R. S. 405, 8 70:

§ 70. If such will shall have been deposited with a surrogate, or shall have been delivered to him as above prescribed, such surrogate, after the death of the testator, shall publicly open and examine the same, and make known the contents thereof, and shall file the same in his office, there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the custody thereof; or until required by the authority of some competent court to produce the same in such court."

Comment. This section and those immediately preceding it are part of the same general reform - the proper custody of last wills and testaments.39 The proper custody of last wills and testaments after execution is at all times of legal importance.40 But when the will is allographic, as it must be in such a case, and is signed and attested only by the marks of the signatories, the custody becomes of the greatest importance. In such cases where the attesting witnesses, as well as the intending testator, have made their signatures by marks, it may be almost impossible to prove the will when such attesting witnesses are dead before attempted probate, unless the custody of the will raises a presumption of publication. A resort to these sections in all such instances would be expedient.

38 Repealed, § 130, Decedent Estate Law.

39 88 30, 31, 32, Decedent Estate Law.

40 Matter of Hopkins, 97 App. Div. at p. 128.

§ 34. Revocation and cancellation of written wills. No will

in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses.

Formerly 2 R. S. 64, § 42:

$ 42. No will in writing except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses. 40a

Comment. As all wills are "ambulatory” until death 41 (or in the language of the civilians, " ambulatoria enim est voluntas usque ad vita supremum exitum,4?) the legal correlative is that they are always revocable. The Roman or civil law contained minute provisions concerning the revocation of wills, and the general frame work of that system, as finally developed, is not dissimilar in result and in principle to the rules ultimately recognized after much fluctuation by the common law. Even before the Statute of Frauds+3 had regulated this uncertain subject, the tendency of the canonists was to regard the revocation of testaments of personalty as controlled largely by the principles of the civil law.44 But the law of England touching revocation, after the Statute of Wills and before the Statute of Frauds, was extremely unsatisfactory, as the revocation might be by parol.45

40a Repealed, § 130, Decedent Es- 42 Fr. 4, D. 34, 4. tate Law.

43 29 Car. II. 41 Co. Litt. 112; 2 Black Comm. 512; 4 Kent Comm. 520; 1 Jarman on Wills, chap. 12 (1st ed.).

In England the Statute of Frauds,46 in sections 6 and 22, attempted to cope with this subject and to reform the law so as to prevent frauds and perjuries in the revocation of wills. The sixth clause of the Statute of Frauds (29 Car. II, chap. 3) was amended by an act (29 Car. II, chaps. 26, 36) so as to make a clause of a devise revocable.47 The Statute of Frauds was undoubtedly acted on by the counts held in the Province of New York, although it was passed after New York had a settled government of its own and New York was not named in it. The English Statute of Frauds was consequently one of the statutes selected by the first revisers of this State, authorized to revise the statutes of England deemed to be in force in New York prior to independence. Thus the substance of such statute passed permanently into the statute law of the State.48 In the first New York revision of the English Statute of Frauds,49 the amendment to the sixth clause of the original act (29 Car. II, chap. 3) seems to have been overlooked. But Kent and Radcliffe inserted such amendment in the subsequent revision of the statute in 1801.50

Early Law of New York. Prior to the Revised Statutes, the New York Statute of Wills of 1813, which was a transcript of the old English Statute of Wills, as amended by the 6th and 22d section of the Statute of Frauds,51 provided, in substance, that

44 Swinb. pt. VII, &$ 15, 16; 4 Kent Comm. 521, impliedly concedes this.

45 Burn's Ecc. Law, 233; Swinburne, pt. 7, § 15; Cro. Jac. 115, pl. 2; id. 497

46 29 Car. II, chap 3. See this statute set out in full, Fowler, Pers. Prop. (2d ed.), Appendix.

47 Lovell v. Quitman, 88 N. Y. at P. 382.

48 Supra, pp. 51, 108; Waterman v. Whitney, II N. Y. at p. 160.

491 Greenleaf, 387, $ 3.

50 I K. & R. 180, $ 3; Lovell v. Quitman, 88 N. Y. at p. 382.

61 29 Car. II, chap. 3, as amended 29 Car. II, chaps. 26, 36; 29 Car. II, chap. 3, was re-enacted in the Statute of Wills; i J. & V. 278; 1 Gr. 386; and 29 Car. I! (chaps 26, 36) was included in I K. & R. 178; 1 R. L. 364; Lovell v. Quitman, 88 N. Y. p. 382.

" 52

no last will and testament “shall be revocable, or be altered, otherwise than by some other will or codicil in writing, or other writing of the party, to such last will and testament, declaring the same, and signed, attested and subscribed ” in the manner prescribed for a will, " or by burning, canceling, tearing or obliterating such last will and testament, by the testator himself, or in his presence, and by his direction and consent.'

It was this section of the Statute of Wills, as it stood in this State in the year 1813, which the Revised Statutes of 1830 undertook to revise “ so as to guard more effectually against frauds, and to render it conformable to the construction it had received.” 53

Prior to the Revised Statutes, the law of New York concerning the revocation of wills and testaments conformed substantially to the law of England, which had prevailed in the Province of New York.54 The English Statute of Frauds and its re-enactment here in the old Statute of Wills had not taken away revocations of wills by acts constituting a revocation in law. The statutes related to express revocations only, and an alteration in testator's circumstances,55 such as parting with the thing devised or bequeathed, 56 or testator's subsequent marriage and birth of issue, 57 or a satisfaction of legacies by portions, all operated as implied revocations in law, outside of any provision of the Statute. Under the old Statute of Wills, as construed prior to the Revised Statutes, express revocations might be effected in three ways: (1) By some other will or codicil in writing ; 58 (2) by an act done to the instrument itself, viz., canceling, burning, tearing, or obliteration; 59 (3) by some writing executed animo retocandi, and attested and subscribed in the manner required by the statute for a last will and testamento

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57 Havens et

Van Den
Burgh, i Den. 27.

58 1 R. L. 364; Jackson, ex dem.,
etc. v. Potter, 9 Johns. 312, 314.

59 Jackson, ex dem., etc. v. Holloway, 7 Johns. 394; Dan v. Brown, 4 Cow. at p. 488.

55 Betts v. Jackson, 6 Wend. at p. 176.

56 In Matter of Nan Mickell, a negro girl, 14 Johns. 324.

60 Jackson, ex dem., etc. v. Potter, 9 Johns. 312, 314; Betts v. Jackson, 6 Wend, 173, 176.

V.

Implied or presumptive revocations, prior to the Revised Statutes, might take place by some conveyance of the thing devised or bequeathed, or by an alteration in the testator's circumstances, and such implied or presumptive revocations were without the statute and good in law.61 The revisers of the Revised Statutes made extensive changes in the old law relating to implied revocations which will be duly considered under subsequent sections of this act.62

This section of the present statute63 does not deal with implied revocations, but with express revocations only. As will be seen from the original revisers' note to the original of this section,64 and by a comparison of the old Statute of Frauds, with its reenactment, the Statute of Wills of 1813 66 and the Revised Statutes,67 this section of the Decedent Estate Law makes little change in the original provisions of the old Statute of Frauds touching express revocations. The changes actually made by the Revised Statutes in the law relating to implied revocations were contained in other sections which are now merely transferred to subsequent sections of the present act.

The Revised Statutes, relating to revocation, applied to wills made before they took effect, provided testator lived more than one year. We will next, in order, consider express revocations, provided for in this section.

68

Revocations by a Subsequent Will or Codicil. The clauses of this section, relating to written revocations, are separate from the clauses relating to other modes. Revocations in writing may be partial. As all wills are ambulatory until death, they have been regarded under all familiar systems of law as constantly revocable by later wills.71 At common law, a later and inconsistent will

61 Carthew, 81; I Eq. Cas. Abr. 413, pl. 15; Betts v. Jackson, 6 Wend. at p. 176; In Matter of Nan Mickell, a negro girl, 14 Johns. 324; Havens, et ux. v. Van Den Burgh, i Den. 27.

65 29 Car. II, chap. 3, Appendix, Fowler's. Pers. Prop. Law (2d ed.).

66 1 R. L. 365.
67 2 R. S. 64, $ 42; supra, p. 246.

6888 35, 36, 37, 38, 39, 40, 41, Decedent Estate Law.

62 Havens v. Havens, i Sandf. at P. 334; 2 R. S. 64, $8 43, 45, 46; 2 R. S. 65, 88 47, 48; 2 R. S. 66,

69 2 R. S. 68, 69; Sherry v. Lozier, 2 Bradf. 437, 447. 70 Lovell

v. Quitman, 88 N. Y. 377, 381.

71 Gaius 2, 144; J. 2, 172; Const. 27, C. 6, 23.

$ 52.

63 & 34, Decedent Estate Law. 84 Note 13, Appendix II, infra.

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