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the danger of simulation is not so remote as to cause the authorities to relax great care in the proofs required by law in cases of foreign wills. Hence these frequent legislative amendments referred to above under this section of this act.

Cross-reference to Section 48, Decedent Estate Law. By an amendment84 to the Decedent Estate Law,85 adding section 48 of this act, section 2514, Code of Civil Procedure, is now made expressly applicable to this section.86

84 8 16, chap. 240, Laws of 1909. 85 Chap. 18, Laws of 1909.

86 See below, $ 48, Decedent Estate Law.

§ 46. Validity of purchase notwithstanding devise. The

title of a purchaser in good faith and for a valuable consideration, from the heir of a person who died seized of real property, shall not be affected by a devise of the prop erty made by the latter, unless within four years after the testator's death, the will devising the same is either admitted to probate and recorded as a will of real property in the office of the surrogate having jurisdiction, or established by the final judgment of a court of competent jurisdiction of the state, in an action brought for that purpose. But if, at the time of the testator's death, the devisee is either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life; or without the state; or, if the will was concealed by one or more of the heirs of the testator, the limitation created by this section does not begin until after the expiration of one year from the removal of such a disability, or the delivery of the will to the devisee or his representative, or to the proper surrogate.

Formerly Code of Civil Procedure, $ 2628.:

§ 2628. When purchaser from heir protected notwithstanding a devise. The title of a purchaser in good faith and for a valuable consideration, from the heir of a person who died seized of real property, shall not be affected by a devise of the property made by the latter, unless within four years after the testator's death, the will devising the same is either admitted to probate and recorded as a will of real property in the office of the surrogate having jurisdiction, or established by the final judgment of a court of competent jurisdiction of the state, in an action brought for that purpose. But if, at the time of the testator's death, the devisee is either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; or without the state; or, if the will was concealed by one or more of the heirs of the testator, the limitation created by this section does not begin until after the expiration of one year from the removal of such a disability, or the delivery of the will to the devisee or his representative, or to the proper surrogate.87

87 Repealed, $ 130, Decedent Estate Law.

Section 2628, Code of Civil Procedure, was taken from 1 R. S. 748, 8 3:89

Section 3. The title of a purchaser in good faith and for a valuable consideration, from the heirs at law of any person who shall have died seized of real estate, shall not be defeated or impaired, by virtue of any devise made by such person, of the real estate so purchased, unless the will or codicil containing such devise, shall have been duly proved as a will of real estate, and recorded in the office of the surrogate having jurisdiction, or of the register of the court of chancery where the jurisdiction shall belong to that court, within four years after the death of the testator; except,

1. Where the devisee shall have been within the age of twenty-one years, or insane, or imprisoned, or a married woman, or out of the state, at the time of the death of such testator: or,

2. Where it shall appear, that the will or codicil containing such devise, shall have been concealed by the heirs of such testator, or some one of them:

In which several cases, the limitation contained in this section shall not commence, until after the expiration of one year from the time when such disability shall have been removed, or such will or codicil shall have been delivered to the devisee or his representative, or to the proper surrogate.89

Comment. This section is a very important provision in the law of real property. We have seen that title to real property may pass under a devise thereof without the necessity of any probate, and that as long as such property is in the actual possession of the devisee or his heirs at law, taking by descent, no record can be more effectual to vest the property and the property rights passing by such devise. This section is an effort to protect purchasers of real property from heirs of an owner who has devised the said property by an unprobated and unrecorded devise.91 This section

88 Mr. Throop's note to $ 2628 : "I R. S. 748, Part II, chap. I, tit. 5, § 3 (1 Edm. 699), the last sentence, remodelled, in general accordance with the language used in other

of limitation (see ex gr. $ 1201, Code Civ. Pro.); and by expunging the disability of married

women; but otherwise unchanged in substance.”

89 Amended, § 12, chap. 320, Laws of 1830; repealed, chap. 245, Laws of 1880.

90 Supra, pp. 293, 304.
91 See $ 46, Decedent Estate Law.

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is a short statute of limitations, and enacted inter alia to induce devisees to probate devises or wills of real property.02

The history of limitations of common-law actions to recover real property, prior to the independence of this State, is briefly told by Cruise.93 The present writer has furnished a note to the fifth edition of “Girard on Titles,” which touches briefly on the general subject of limitations of actions for the recovery of real property.94 The modern statutes generally prescribe, in substance, that twenty years' adverse possession is a bar to any real action,95 excluding certain disabilities by reason of infancy or other inability to sue."

36 The present section of this act is in reality a statute of limitations applicable to one class of titles to real property, viz., that under an unrecorded devise.

The short bar of four years prescribed by this section has been applied in several cases of authority, where plaintiffs claimed in ejectment to be within the exceptions mentioned in this section, and that a failure to probate for four years, consequently, did not bar title under devises concededly not probated within four years after testator's death. In Cole v. Gourlay it was claimed, that a failure to probate within four years after testator's death did not operate as a bar, for the reason that the will was concealed by one or more of the heirs of the testator. But the court held that four years did bar, and that the exception of concealment did not apply to a case where one or more of the devisees knew of the will and failed to bring suit to establish it. In Fox v. Fee it was held, that persons claiming to be devisees under an unprobated will, but who were not in existence at the time of testator's death, or for many years thereafter, were not within the exceptions of this section, because if they were not in existence they could not be described as “ within the age of twenty-one years.

Conse

" 98

92 Corley v. McElmeel, 149 N. Y. at p. 236.

93 Dig. tit. 31, chap. II, and see also 3 Black. Comm. 188.

94 See 5th ed. “Girard on Titles," p. 805.

95 $$ 365, 366, Code Civ. Pro.
96 § 375, Code Civ. Pro.
97 Cole v. Gourlay, 75 N. Y. 527.

98 Fox v. Fee, 24 App. Div. 314, 33 id. 627, 167 N. Y. 44.

quently, the four years' bar applied. It appears from the report in Fox v. Fee that no devisee, so claiming under the devise, was en ventre sa mére at time of testator's death, for in that event the devisee might have been regarded as a person in esse within this section.

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

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