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Cross-reference to Section 48, Decedent Estate Law. By an amendmental to the Decedent Estate Law,22 adding section 48 of this act, section 2514, Code of Civil Procedure, is now made expressly applicable to this section.23

21 $ 16, chap. 240, Laws of 1909. 22 Chap. 18, Laws of 1909.

23 See below, $ 48, Decedent Estate Law.

2

44. Recording will proved in another state or foreign

country. Where real property situated within this state, or an interest therein, is devised or made subject to a power of disposition by a will duly executed in conformity with the laws of this state, of a person who was at the time of his, or her death, a resident elsewhere within the United States, or in a foreign country, and such will has been admitted to probate within the state or territory, or foreign country, where the decedent so resided, and is filed or recorded in the proper office as prescribed by the laws of that state or territory or foreign country, a copy of such will or of the record thereof and of the proofs or of the records thereof, or if the proofs are not on file or recorded in such office, of any statement, on file or recorded in such office, of the substance of the proofs, authenticated as prescribed in section forty-five of this chapter, or if no proofs and no statement of the substance of the proofs be on file or recorded in such office, a copy of such will or of the record thereof, authenticated as prescribed in said section forty-five, accompanied by a certificate that no proofs or statement of the substance of proof of such will, are or is on file or recorded in such office, made and likewise authenticated as prescribed in said section forty-five, may be recorded in the office of the surrogate of any county in this state where such real property is situated; and such record in the office of such surrogate or an exemplified copy thereof shall be presumptive evidence of such will and of the execution thereof, in any action or special proceeding relating to such real property.

[As corrected by chap. 240, § 13, Laws of 1909, changing word “ found" to "proved " in caption of section.]

Section 44 of the Decedent Estate Law was transcribed and reenacted from section 2703 of the Code of Civil Procedure of the year 1909. But the history of that section of the Code of Civil Procedure begins in 1864 with chapter 311 of the laws of that year, as follows:

AN ACT in relation to wills.

Passed April 23, 1864; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Where any real estate, situate in this state, has been devised by any person residing out of this state, and within any other state or territory of the United States, and the last will and testament of such person shall have been finally admitted to probate in such other state or territory, and filed in the office where the same has been so admitted to probate, an exemplified copy of said last will and testament and of the proofs, may be recorded in the office of the surrogate of any county in this state where any real estate so devised is situate, which record in said surrogate's office, or an exemplified copy thereof, shall be, in cases where the original cannot be produced, presumptive evidence of said will and of the due execution thereof, in all proceedings relating to the lands so devised.

8 2. This act shall take effect immediately.24

In 1872 the foregoing act was amended, by chapter 680, to read as follows:

AN ACT to amend an act entitled "An act in relation to wills,” passed

April twenty-third, eighteen hundred and sixty-four.

Passed May 14, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. The first section of the act entitled "An act in relation to wills," passed April twenty-third, eighteen hundred and sixty-four, is hereby amended so as to read as follows:

§ 1. Where any real estate situate in this state has been, or shall hereafter be, devised by any person residing out of this state, and within any other state or territory of the United States, and the last will and testament of such person shall have been finally admitted to probate in such other state or territory, and filed or recorded in the office or court where the same shall have been admitted to probate, an exemplified copy of said last will and testament, or of such record thereof, and of the proofs, may be recorded in the office of the surrogate of any county in this state where

24 Amended, chap. 680, Laws of 1872; chap. 324, Laws of 1878.

any real estate so devised is situated, which record in said surrogate's office, or an exemplified copy thereof, shall be, in cases where the original cannot be produced, presumptive evidence of said will and of due execution thereof, in all actions or proceedings relating to the lands so devised.

§ 2. This act shall take effect immediately.

In 1878, by chapter 324 of that year, the amending act was itself amended to read as follows:

AN ACT to amend chapter six hundred and eighty of the laws of eighteen

hundred and seventy-two, entitled “An act to amend an act entitled 'An act in relation to wills,'” passed April twenty-third, eighteen hundred and sixty-four.

Passed May 22, 1878. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. The first section of chapter six hundred and eighty of the laws of eighteen hundred and seventy-two, entitled "An act to amend an act entitled 'An act in relation to wills,'” passed April twenty-third, eighteen hundred and sixty-four, is hereby amended so as to read as follows:

Section 1. When any real estate, situate in this state, has been or shall hereafter be devised by any person residing out of this state and within any other state or territory of the United States, and the last will and testament of such person shall have been finally admitted to probate in such other state or territory, and filed or recorded in the office or court where the same shall have been admitted to probate, an exemplified copy of said last will and testament, or of such record thereof, and of the proofs, if any proofs are on file or recorded in said office or court, which fact shall be certified by the probate court or clerk thereof, in which said will is recorded, may be recorded in the office of the surrogate of any county in this state where any real estate so devised is situated, which record in said surrogate's office, or an exemplified copy thereof, shall be, in cases when the original cannot be produced, presumptive evidence of said will, and of the due execution thereof, in all actions or proceedings relating to the lands so devised.

8 2. This act shall take effect immediately.25

As the law thus stood in 1878 it was carried into the second part of the Code of Civil Procedure of 1880, being made section 2703 thereof,26 as follows:

Section 2703. Where real property, situated within the state, or an interest therein, which would descend to an heir, is devised, or made subject to a power of disposition, by a will, valid, and duly executed for that purpose, under the laws of the state, of a person, who was at the time of his death, a resident elsewhere within the United States; and the will has been finally · admitted to probate, by the judgment, decree, or order of a competent court, within the state or territory where the decedent so resided; and is filed or recorded in the proper office, as prescribed by the laws of that state or territory; an exemplified copy of the will, or of the record thereof, of the judgment, decree, or order, admitting the same to probate, and of the proofs, or of the record thereof, or a certificate of the substance of the testimony, if such a certificate is on file or recorded, or if no proofs nor any certificate of the substance thereof is on file or recorded, a certificate of that fact, may be recorded with the surrogate of any county of the state, where the real property is situated. Such a record, or an exemplified copy thereof, is presumptive evidence of the will, and of the execution thereof, in any action or special proceeding relating to the real property.

25 Repealed chap. 245, Laws of

26 Chap. 178, Laws of 1880.

With the bill for the last eight chapters of the Code of Civil Procedure, 27 the Code Commissioner (the late Mr. Throop) reported the following explanatory note on section 2703 :

(L. 1864, ch. 311 (6 Edm., 254) as amended by L. 1872, ch. 680 (9 Edm., 420), and L. 1878, ch. 324). The object of the amendment of 1878 was to cover a case where oral proofs only were taken. The bills for this code, submitted in 1877 and 1878, contained a provision, prepared by the commissioners to cover such a case, in accordance with a suggestion of the Hon. Owen T. Coffin, surrogate of Westchester county, contained in the following extract from a communication from him, relating to the corresponding section of the commissioners' first draft: 'In the state of Connecticut, the proofs are oral, and the judge of probate simply certified that A. B. and C. D., the witnesses, on examination before him, testified that they saw the testator sign, etc. 1 have found difficulty in admitting wills so proved in that state to record, ause of an absence of an exemplified copy of the proofs.' Perhaps the remedy, applied by the Legislature of 1878, went too far, and will lead to trouble hereafter, but it was not deemed expedient, in framing this section for the bill of 1879, to run counter to such a recent expression of the legislative will. Accordingly the substance of the amendment of 1878 has been incorporated into this section. But, in framing it, the principle, which the Legislature of 1878 apparently overlooked, that the proofs ought to show that the will and its execution are sufficient under our laws, was constantly borne in mind and recognized, as far as the amendments of 1878 would allow. The provision was also extended to a devisable interest and a power of sale, contained in a will.” 28

27 Chap. 178, Laws of 1880.

28 See Mr. Throop's (1st ed. part II) N. Y. Code Civ. Pro. p. 610.

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