We have now followed the Act of 1864 into the Code of Civil Procedure, and must next give the amendments to section 2703, Code of Civil Procedure. The first amendment appears to have been made in the year 1888 and is as follows: CHAPTER 495. AN ACT to amend sections twenty-six hundred and ninety-five, twenty-six hundred and ninety-six, twenty-seven hundred and three and twenty-seven hundred and four, and to repeal section twenty-seven hundred and five of the Code of Civil Procedure. Approved by the Governor June 4, 1888. Passed, three-fifths being present: The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 3. Section twenty-seven hundred and three of the Code of Civil Procedure is amended so as to read as follows: § 2703. 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 death a resident elsewhere within the United States, and such will has been admitted to probate within the state or territory where decedent so resided, and is filed or recorded in the proper office as prescribed by the laws of that state or territory, a copy of such will or of the record thereof, and of the proofs or of the record 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 this article, 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 this article, accompanied by a certificate that no proofs or statement of the substance of proofs of such will, are or is on file, or recorded in such office, made and likewise authenticated as prescribed in this article, may be recorded in the office of the surrogate of any county of 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. In 1897 the following amendment was enacted: CHAPTER 605. AN ACT to amend section twenty-seven hundred and three of the code of civil procedure relative to recording wills probated in other states or territories of the United States. Became a law May 19, 1897, with the approval of the Governor. Passed, a majority being present: The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Section twenty-seven hundred and three of the code of civil procedure is hereby amended to read as follows: $ 2703. Recording will proved in other states. 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 death, a resident elsewhere within the United States, and such will has been admitted to probate within any state or territory of the United States and is filed or recorded in the proper office as prescribed by the laws of that state or territory, a copy of such will or of the record thereof and of the proofs or of the record 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 this article, 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 this article, accompanied by a certificate that no proofs or statements of the substance of proofs of such will, are or is on file, or recorded in such office, made and likewise authenticated as prescribed in this article, may be recorded in the office of the surrogate of any county of 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. § 2. This act shall take effect September first, eighteen hundred and ninety-seven. In 1900 the following amendment was enacted: CHAPTER 633. AN ACT to amend section twenty-seven hundred and three of the code of civil procedure, relating to the recording of wills. Became a law April 23, 1900, with the approval of the Governor. Passed, a majority being present: The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Section twenty-seven hundred and three of the code of civil procedure is hereby amended so as to read as follows: $ 2703. Recording will proved in other states. 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 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 this article 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 this article, 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 this article, may be recorded in the office of the surrogate of any county of 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. § 2. This act shall take effect September first, nineteen hundred. As thus finally amended section 2703, Code of Civil Procedure, was in 1909 incorporated in secton 44, Decedent Estate Law,29 and then repealed.30 29 Chap. 18, Laws of 1909. 30 130, Decedent Estate Law. Comment. It will be perceived that this section relates wholly to a devise of real property, or of a power thereover, executed at his domicile, or in the country of his domicile, by a person who has a legal residence in another State of the United States, or in a foreign country; when such devise or will is duly filed or probated in the jurisdiction of the testator's domicile. Such a will is known not inaccurately as a "foreign will," although there is said to be some ambiguity in the use of the term "foreign will." 31 Such a devise or will of real property, when executed in conformity with the law of this State, may be regularly admitted to probate here as a will of real property;32 and as we shall see later under this section, the production of the original devise in this jurisdiction is not necessary, as it may be produced before the surrogate's commissioners or delegates. If probate in the ordinary form is not so taken, resort may be had to this present section of this act,** or in a proper case to an action to establish such will as a will of real or personal property or both.35 33 34 A will of personalty, on the other hand, executed in a foreign jurisdiction, may be executed according to the laws of testator's domicile, and in some instances such a will may be proved here in ordinary form,36 or it may also be established by action,37 or letters ancillary may issue on the foreign probate.38 But it is not necessary to consider further the proof or establishment of wills of personalty under this section, which relates only to devises.39 Historical Retrospect. As by the common law (and the existing law is not yet different in this respect) a devise of lands was 31 Redfield's Surrogate Courts (5th ed.), 281; Russell v. Hart, 87 N. Y. at p. 24. 32 § 23, Decedent Estate Law. Cf. 2705, Code Civ. Pro. 33 Spratt v. Syms, 104 App. Div. at p. 237. 34 8 44, Decedent Estate Law. 35 1861, Code Civ. Pro. 36 § 23, Decedent Estate Law, and see text under §§ 23, 24, 47, Decedent Estate Law. 37 1861, Code Civ. Pro; Younger v. Duffie, 94 N. Y. 535. 28 § 2695, Code Civ. Pro. Cf. Taylor v. Syme, 162 N. Y. 513. 39 On the subjects of foreign domicile and the application of foreign law generally to wills, see two very able articles entitled "The Renvoi Theory" and the "Appreciation of Foreign Law:" (This continental notion is not, however, favored in England): 10 Col. Law Jour. 190, 327. Cf. 35 Law Mag. and Rev. 336. 40 regarded as a species of conveyance, differing from an ordinary conveyance only in the solemnities which accompanies its execution and in some minor rules of construction, the non-production of the original devise was sometimes an embarrassment in a trial involving legal titles. A certified or authenticated copy of a recorded devise or foreign will was, therefore, a convenience, if made evidence by some statute in cases made and provided. The present section of this act owes its existence to chapter 311 of the Laws of 1864. But prior to 1864, foreign wills might be proved in some form in the surrogates' courts, even before the act empowering surrogates to issue a commission to take the evidence of witnesses.11 In a very important opinion in Russell v. Hart, the jurisdiction of the surrogates' courts and courts of probate of the State, to take proofs of foreign wills not produced, is very concisely traced and conceded. Before the passage of the act of 1864, hereafter referred to, it was the custom to admit foreign wills to probate when produced or not produced and there would seem to be nothing in the law which now prevents a probate, in ordinary form, of foreign devises executed in conformity with the laws of this State, even if they can not be produced in this jurisdiction.45 42 History of this Section. The acts set out under this section, beginning with that of 1864, were only an effort to systemize the procedure on foreign wills, and to remedy difficulties naturally inherent in a situation where a devise could not be produced in this jurisdiction. But as devises of lands were effective to pass title 40 Markby, Elements of Law, $ 581; Lord Mansfield in Harwood v. Goodright, Cowp. 90; Van Alst v. Hunter, 5 Johns. Ch. 148, 155; Corley v. McElmeel, 149 N. Y. 228, 236; Dixon v. Cozine, 64 Misc. 602; Pollock v. Hooley, 67 Hun, 370. man 41 Chap. 460, Laws of 1837; Ishv. Gibbons, I Bradf. 69; I Greenl. 366, § xi; 1 R. L. 449, § xv. 42 Russell v. Hart, 87 N. Y. 19, and see Estate of Deleplaine, 19 Abb. N. C. 36, 45 Hun, 225; Spratt v. Syms, 104 App. Div. p. 237. 43 White v. Howard, 46 N. Y. 144, 145. 44 Lynes v. Townsend, 33 N. Y. 558, 559. Cf. Younger v. Duffie, 94 id. 538. 45 S 23, Decedent Estate Law; Spratt v. Syms, 104 App. Div. 232, 237. |