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exemplification, or an exemplification of the record thereof, must be received in evidence, as if the original will was produced and proved.97

The first act on this subject was chapter 182, Laws of 1846: AN ACT to authorize the recording of wills of real estate and of excm

plifications of judgment records and decrees in partition suits, and for other purposes.

Passed May 11, 1846.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Any will of real estate which shall have been duly proved in the supreme court, cr court of chancery, or before the surrogate of any county in this state, with the proofs taken, on the proof thereof, and the certificate of proof annexed thereto or endorsed thereon, may be recorded in the clerk's office of any county in this state, in the same manner that conveyances of real estate are now authorized to be recorded. Any exemplification of the record of any such will from the office of the clerk of the supreme court, register, assistant register, or clerk in chancery, or surrogate, where the same may be recorded, or from any other office where the same hereafter by law may be recorded, may in like manner be recorded in the clerk's office of any county. The record of such will or exemplification so made as aforesand, and the exemplifications of such record shall be received in evidence, and shall be as effectual in all cases as the original will would be if produced and proved, and may in like manner be repelled by contrary proof.98

Chapter 182, Laws of 1846, was amended in 1869 as follows:

CHAPTER 748. AN ACT to amend section one of chapter one hundred and eighty-two, of

laws of eighteen hundred and forty-six, in relation to the recording of of wills.

Passed May 8, 1869.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Section one of chapter one hundred and eighty-two, of the laws of eighteen hundred and forty-six, is hereby amended so as to read as follows:

$ 1. Any will of real estate which shall have been duly proved in the supreme court or any court of chancery, or before the surrogate of any county in this state, with the certificate of proof annexed thereto or indorsed thereon, may be recorded in the clerk's office of any county in this state, in the same manner that conveyances of real estate are now authorized and recorded. Any exemplification of the record of any such will, from the office of the clerk of the supreme court, register, assistant register, or clerk in chancery, or surrogate, where the same may be recorded, or from any other office where the same may hereafter by law be recorded, may in like manner be recorded in the clerk's office of any county. The record of such will or exemplification so made as aforesaid, and the exemplification of such record shall be received in evidence, and shall be as effectual in all cases as the original will would be if produced and proved, and may in like manner be repelled by contrary proof.99

97 Repealed, $ 130, Decedent Estate Law.

98 Amended by chap. 748, Laws of 1869.

In 1880, the foregoing act was carried into the second part of the Code of Civil Procedurel as section 2633 thereof, and it then read as follows:

Section 2633. A will of real property, which has been at any time, either before or after this chapter takes effect, duly proved in the supreme court, or the court of chancery, or before a surrogate of the state with the certificate of proof thereof annexed thereto, or indorsed thereon, may be recorded in the office of the clerk or the register, as the case requires, of any county in the State, in the same manner as a deed of real property. Where the will relates to real property, the executor, or administrator, with the will annexed, must cause the same to be so recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any office where the same has been recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such a record or exemplification, or an exemplification of the record thereof, must be received in evidence, as if the original will was produced and proved.2

In 1881, by chapter 535, Laws of 1881, section 2633, Code of Civil Procedure, was amended to read as follows:

Section 2633. A will of real property, which has been, at any time, either before or after this chapter takes effect, duly proved in the supreme court or the court of chancery, or before a surrogate of the state, with the certificate of proof thereof annexed thereto, or indorsed thereon, may be recorded in the office of the clerk or the register, as the case requires, of any county in the state, in the same manner as a deed of real property. Where the will relates to real property, the executor or administrator with the will annexed must cause the same to be so recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or others office where the same has been recorded, either before or after this chapter takes effect, may be, in like manner, recorded in the office of the clerk or register of any county.

2 Amended by chap. 535, Laws of 1881.

99 Repealed chap. 245, 81, 145, Laws of 1880.

iş 2633, Code Civ. Pro. enacted by chap. 178, Laws of 1880.

Such a record or exemplification, or an exemplification of the record thereof, must be received in evidence, as if the original will was produced and proved.

In 1882, by chapter 399, Laws of 1882, section 2633, Code of Civil Procedure, was finally amended to read as follows:

manner

Section 2633. A will of real property, which has been, at any time, either before or after this chapter takes effect, duly proved in the supreme court, or the court of chancery, or before a surrogate of the state with the certificate of proof thereof, annexed thereto, or indorsed thereon, or an exemplified copy thereof, may be recorded in the office of the clerk or the register, as the case requires, of any county in the state, in the same

a deed of real property. Where the will relates to real property, the executor, or administrator with the will annexed, must cause the same, or an exemplified copy thereof,5 to be so recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or other office where the same has been so recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such record or an exemplification of the record thereof, must be received in evidence, as if the original will was produced and proved.6

As thus amended, section 2633, Code of Civil Procedure, passed into the Decedent Estate Law as section 42 thereof.

Comment. The changes made in this section of the statute, since its original enactment in 1846, have been only in the direction of its enlargement by the amendments set out in extenso above, and all now repealed.

6 Repealed, § 130, Decedent Estate Law.

7 Chap. 182, Laws of 1846.

3 The italics are ours, to indicate the amendment.

4 Amended chap. 399, Laws of 1882.

5 The italics are ours, to indicate the amendment.

This section is important in connection with the statutes on constructive notice by record and those relating to proof of conveyances. Chapter XVI, Girard on Titles, outlines the history of the proof and record of wills in this State, and may be useful to illustrate the scope of this section. The section in reality relates mainly to the proof of devises and is largely procedural in scope.10 In so far as its provisions are mandatory on executors, it seems to be without penalty for non-compliance.11

A devise without probate is operative as a conveyance to confer title on devisee, and will support ejectment.12 Entry on a devise and continued actual possession would be operative as constructive notice, without record of the devise in any public office.13

Cross-reference to Section 48, Decedent Estate Law. By an amendment14 to the Decedent Estate Law,15 adding section 48 of this act, section 2314, Code of Civil Procedure, is now made expressly applicable to this section.16

& Taylor v. Millard, 118 N. Y. 244. 9 5th ed. pp. 442, 455, 456.

10 See Wilson v. Van Epps, 38 Misc. 486, 488; Taylor v. Millard, 118 N. Y. 244, 252.

11 See Young v. Brush, 28 N. Y. 667, 671, as to duty.

12 Corley v. McElmeel., 149 N. Y. 228, 235.

13 Phelan v. Brady, 119 N. Y. 587; Dingley v. Bon, 130 id. 607; Gibson v. Thomas, 180 id. 483, 493.

14 § 16, chap. 240, Laws of 1909. 15 Chap. 18, Laws of 1909.

16 See below, $ 48, Decedent Estate Law.

§ 43. County clerk's index of recorded wills. Upon record

ing a will or exemplification, as prescribed in the last section, the clerk or register must index it in the same books, and substantially in the same manner, as if it was a deed recorded in his office.

Formerly § 2634, Code Civil Procedure:

§ 2634. Upon recording a will or exemplification, as prescribed in the last section, the clerk or register must index it in the same books, and substantially in the same manner, as if it was a deed recorded in his office, 17 and he is entitled to receive the same fees therefor, as for recording a deed. An executor, or administrator, with the will annexed, who causes such a record to be made, must be allowed, in his account, the fees paid him therefor.

Section 2634 was in the year 1880 taken into the Code of Civil Procedures from chapter 182, Laws of 1846, sections 3 and 4, of which were as follows:

AN ACT to authorize the recording of wills of real estate and of exem

plifications of judgment records and decrees in partition suits, and for other purposes.

Passed May 11, 1846. The People of the State of New York, represented in Senate and Assembely, do enact as follows: 19

Section 3. On recording any such will or exemplification the clerk shall index the same in the indices of deeds, substantially as such clerks are now required to index deeds recorded in their respective offices.

8 4. Such clerks shall receive for such recording the same fees which shall be from time to time allowed them for the recording of conveyances of real estate; and any executor of a will or administrator with the will annexed who shall procure such will to be recorded in the clerk's office of any county in which the lands devised thereby may be situated, shall be allowed the fees paid by him for such recording in the settlement of his accounts.20

20 See above, § 2634, Code Civ. Pro., repealed in part by $ 130, Decedent Estate Law.

17 Repealed down to and including words, “in his office," by $ 130, Decedent Estate Law.

18 Chap. 178, Laws of 1880.

19 See & 1 of that act under § 42, Decedent Estate Law.

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