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§ 45. Authentication of papers from another state or for

eign country for use in this state. To entitle a copy of a will admitted to probate or of letters testamentary or of letters of administration, granted in any other state or in any territory of the United States, and of the proofs or of any statement of the substance of the proofs of any such will, or of the record of any such will, letters, proofs or statement, to be recorded or used in this state as provided in article seventh of title third of chapter eighteenth of the code of civil procedure or in section forty-four of this chapter, such copy must be authenticated by the seal of the court or officer by which or whom such will was admitted to probate or such letters were granted, or having the custody of the same or of the record thereof, and the signature of a judge of such court or the signature of such officer and of the clerk of such court or officer if any; and must be further authenticated by a certificate under the great or principal seal of such state or territory, and the signature of the officer who has the custody of such seal, to the effect that the court or officer by which or whom such will was admitted to probate or such letters were granted, was duly authorized by the laws of such state or territory to admit wills to probate or to grant letters testamentary or of administration and to keep the same and records thereof; that the seal of such court or officer affixed to such copy is genuine, and that the officer making such certificate under such seal of such state or territory verily believes that each of the signatures attesting such copy is genuine; and to entitle any certificate concerning proofs accompanying the copy of the will or of the record so authenticated, to be recorded or used in this state, as provided in said article or section, such certificate must be under the seal of the court or officer by which or whom such will was admitted to probate, or having the custody of such will or record, and the signature of a judge or the clerk of such court, or the signature of such officer, authenticated by a certificate under such great or principal seal of such state or territory, and the signature of the officer having the custody thereof, to the effect that the seal of the court or officer affixed to such certificate concerning proofs is genuine, and that such officer making such certificate under such seal of such state or territory, verily believes that the signature to such certificate concerning proofs is genuine. To entitle a copy of a will admitted to probate or of letters testamentary, or of letters of administration, granted in a foreign country, and of the proofs or of any statement of the substance of the proofs of any such will, or of the record of any such will, letters, proofs or statement, to be recorded or used in this state, as provided in said article or section, such copy must be authenticated in the manner prescribed by the laws of such foreign country, and must be further authenticated by a certificate of a judge of a court of record or by the chief officer of the department of justice of such foreign country to the effect that such authentication is in conformity with the laws of such foreign country, and that the court or officer by which or by whom such will was so admitted to probate, or such letters were granted, was duly authorized by the laws of such foreign country to admit wills to probate, or to grant letters testamentary or of administration, and to keep the same and records thereof; and the signature and official character of such judge or court of record or of such chief officer of the department of justice shall be attested by a consular officer of the United States, resident in such foreign country, under the seal of his office; and to entitle any certificate concerning proofs accompanying the copy of the will or of the records so authenticated, to be used and recorded in this state, as provided in said article or section, such certificate concerning the proofs must be similarly authenticated and attested. (As amended by chapter 304, Laws of 1909.)

As between February 17, 1909,and September 1, 1909, section 45 of the Decedent Estate Law was in force as originally enacted by chapter 18, Laws of 1909," it may be useful to give at length the text of section 45 as originally enacted in the Decedent Estate Law.78

§ 45. Authentication of papers from another state or foreign country for use in this state. To entitle a copy of a will admitted to probate or of letters testamentary or of letters of administration, granted in any other state or in any territory of the United States, and of the proofs or of any statement of the substance of the proofs of any such will, or of the record of any such will, letters, proofs or statement, to be recorded or used in this state as provided in article seventh of title third of chapter eighteenth of the code of civil proceedure or in section forty-four of this chapter, such copy must be authenticated by the seal of the court or officer by which or whom such will was admitted to probate or such letters were granted, or having the custody of the same or of the record thereof, and the signature of a judge of such court or the signature of such officer and of the clerk of such court or officer if any; and must be further authenticated by a certificate under the great or principal seal of such state or territory, and the signature of the officer who has the custody of such seal, to the effect that the court or officer by which or whom such will was admitted to probate or such letters were granted, was duly authorized by the laws of such state or territory to admit wills to probate or to grant letters testamentary or of administration and to keep the same and records thereof; that the seal of such court or officer affixed to such copy is genuine, and that the officer making such certificate under such seal of such state or territory verily believes that each of the signatures attesting such copy is genuine; and to entitle any certificate concerning proofs accompanying the copy of the will or of the record so authenticated, to be recorded or used in this state, as provided in said article or section, such certificate must be under the seal of the court or officer by which or whom such

ill was admitted to probate, or having the custody of such will or record, and the signature of a judge or the clerk of such court, or the signature of such officer, authenticated by a certificate under such great or principal seal of such state or territory, and the signature of the officer having the custody thereof, to the effect that the seal of the court or officer affixed to such certificate concerning proofs is genuine, and that such officer making such certificate under such seal of such state or territory, verily believe that the signature to such certificate concerning proofs is genuine. To entitle a copy of a will admitted to probate or of letters testamentary or of letters

78 Chap. 13, Consolidated Laws.

76 Chap. 18. Laws of 1909.

77 Amended, chap. 304, Laws of

of administration granted in a foreign country, and of the proofs or of any statement of the substance of the proofs of any such will or of the record of any such will, letters, proofs or statement to be recorded or used in this state, as provided in said article or section, such copy must be authenticated in the manner prescribed by the laws of such foreign country for the authentication of a copy of such a record or paper; and there must be annexed thereto a certificate of a consul-general, vice-consul-general, deputy-consul-general, consul, vice-consul or deputy consul of the United States residing within the country in which such will was so admitted to probate or such letters were granted, under his seal of office or the seal of the consulate to which he is attached, to the effect that such authentication is regular and in conformity to the laws of such foreign country, and also that the court or officer by which or by whom such will was so admitted to probate or such letters were granted was duly authorized by the laws of such foreign country to admit wills to probate or to grant letters testamentary or of administration and to keep the same and records thereof; and to entitle any certificate concerning proofs accompanying the copy of a will, or of the record so authenticated, to be recorded or used in this state, as provided in said article or section, such certificate must be similarly authenticated and there must be annexed thereto a similar certificate by a consul-general, vice-consul-general, deputy-consul-general, consul, vice-consul or deputy-consul of the United States.79

Section 45 of this act was first enacted as a law by Part II of the Code of Civil Procedure, sections 2704 and 2705, as follows: 80

Section 2704. Where letters testamentary or letters of administration; granted by a court elsewhere within the United States, are, or an exemplified copy of the judgment, decree, or order of such a court is, proved, recorded, or otherwise used, as prescribed in this article, they or it must be authenticated by the seal of the court, and the signature of the clerk, if any, and of the chief-judge or presiding magistrate thereof. Where an exemplified copy of a will, or of proofs, or of record thereof, is recorded or otherwise used, as prescribed in this article, it must be authenticated in like manner, if the original or the records, as the case may be, remain in the court, if they are kept in the custody of a separate officer, they must be authenticated by his official seal and his signature. Where a certificate of the substance of the testimony is recorded, as prescribed in the last section, it must be made by a judge of the court, and attested by the seal thereof.81

$ 2705. A certificate, under the great or principal seal of the state or territory, and the hand of the secretary of state, or other officer who has the custody thereof, must be appended to the exemplification, letters, or certificate of the substance of the testimony, to the effect that the court is duly constituted; that it has jurisdiction, under the laws of the state or territory, to grant the letters, or to make the judgment, decree, or order, as the case requires; that the records or proofs exemplified are kept, pursuant to those laws, by that court, or by the officer who authenticates the same; that the seals, appended to the exemplifications or certificates are genuine; and that the officer making the certificate verily believes that each of the signatures, attesting the exemplification or certificate, is genuine 82

79 Amended by chap. 304, Laws of 1909.

80 Chap. 178, Laws of 1880.

81 Repealed, $ 130, Decedent Estate Law.

To sections 2704, 2705, the codifier (Mr. Throop) appended the following note in his report to the Legislature:

“This and the last section are new, but in general accordance with section 952 (Code Civ. Pro.), ante. The expediency of regulating in a uniform manner the mode of authentification,' when papers come from a foreign country, is obvious. The effect of these sections will be to limit this article to the records, etc., of a court or officer having a seal.”

Comment. Sections 2704 and 2705 of the Code of Civil Procedure of 1880 were remodeled and consolidated as one section (2704) and section 2705 was repealed by chapter 495, Laws of 1888. Section 2704 of the Code of Civil Procedure was thereafter again amended by chapter 603, Laws of 1897; chapter 472. Laws of 1903; chapter 347, Laws of 1905, and chapter 270, Laws of 1908. No useful purpose seems subserved by printing in full these five amendatory acts last mentioned. As finally amended by chapter 270, Laws of 1908, section 2704, Code Civil Procedure, passed in the year 1909 into section 45, Decedent Estate Law, which has been, as stated above, already once amended. We have here set out in full only the original act of 1880 (constituting sections 2704 and 2705 of Part II, Code of Civil Procedure) and the section before and since the last amendment of the Decedent Estate Law. This course enables the reader to see the progress and trend of the legislation on this subject. If he desire, he can resort to the Session Laws for the other amendments indicated above.

The danger of simulating a foreign will and the difficulties in the authentication of the probate thereof are very great.$At least

82 Consolidated with § 2704, Code Civ. Pro., by chap. 495, Laws of 1888.

83 Estate of Winnington, i N. Y.

Civ. Pro., R. 267; Matter of
Shearer, i id. 455, 458; Matter of
Law, 56 App. Div. 454.

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