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§ 2. Definitions. The term “ will,” as used in this chapter, shall
include all codicils, as well as wills. Formerly 2 R. S. 68, 8 71:
$ 71. The term “will ” as used in this chapter, shall include all codicils, as well as wills.3
Comment. The term “will ” as used in this chapter is a general term of law and includes at the present time both a devise and a testament.* Since the Statute of Wills (32 Hen. VIII) such a comprehensive use of the term "will" is not technically inaccurate, although by the common law of the sixteenth and seventeenth centuries a disposition of lands to take effect at death is a “devise or will,” & while a like disposition of personal property is a “ testament.”? The common-law writers generally accurately observed the distinction, and in legal literature would arrange cases accordingly under “devise ", if the subject discussed related to wills of land, and under “testament" if it referred to personalty.S But even as far back as Littleton's day there seems to have been no absolute breach of technical usage in using any of these terms as synonymous or inclusive of the others. For example, even Littleton says, a man can “ deviser per son testament," which Coke freely translates “ devise by his testament.” •
Will. A will or a testament is most concisely defined by Swinburne as “a just sentence of our will touching that we would have done after our death.” 10 While he distinguishes a will from a testament, his definition is substantially a mere repetition of the
3 Repealed by Decedent Estate makes the true distinction, 2 Comm. Law of 1909. See below, $ 130.
42 R. S. 60, $ 21; 4 Kent. Comin. 8 See Wood's Institutes (ed. 1772); 502; and see supra, pp. 2, 8, 23.
West's Symbolaeography, $ 632 (ed. - Burn's Eccles. Law, tit. Wills;
1594); Tomlins' Law Dict. (ed. West, Symbolaeography, $ 633; 2 R.
1835) tit. Wills.
9 Co. on Litt. una; Tomlins' Lyt6 See 1 Powell on Devises, 9;
tleton, § 167. Devise is the French Lasher v. Lasher, 13 Barb. 106; deviser, to divide into parcels. Conklin v. Egerton's Admr.,
10 Swinburne, pt. 1, § 2; ibid., pt.
1, $ 4 ? Jarman on Wills, 1; Blackstone
S. 60, $ 21.
definition of the Latin writers who treated of modern Roman law. 11 This definition has been more or less amplified by the moderns, but not improved.1Swinburne subsequently explains at length the word “sentence" in his definition, but in substance, as a formal expression of “ultima voluntas.” In the old parabolic manner he detects a close analogy between a judicial sentence and this final sentence of a testator in respect of his property. Doubtless a will when proved does become virtually a judgment of a court in respect of its contents.
In the “Surrogates Law " 13 a will is defined for the purposes of that act in the same way as in section 2 of this act: The word * will' signifies a last will and testament, and includes all the codicils to a will." 14 But this definition is obviously no real definition, but one in a circle, as it still leaves it to the decisions to determine under the statute what instruments constitute a “ last will and testament." Section 21 of this act contains the final statutory expression of the formal or ceremonial requisites of a last will and testament. When all the statutory requirements of that section are complied with, an instrument is then evidential of a particular testator's last will and testament,15 but a decree probating the instrument is still conclusive only as to personalty.16 The distinguishing feature of a will is that it is a disposition of property which is not to take effect except upon the death of the giver or grantor. If it is intended to take effect in presenti but upon a condition, it is not a will. That an instrument is a testamentary paper does not depend on the validity of its dispositions or on its form, but on its substance.18
16 N. Y. 9, 49; Matter of Diez, 50 N. Y. 93; Younger v. Duffie, 94 N. Y. 539; Gilman v. McArdle, 99 N. Y. 451, 461; Perry v. Perry, 21 N. Y. Supp. 133; Campbell v. Morgan, 68 Hun, 490.
12 Supra, p. 2; infra, p. III. 13 Chap. 18, Code Civ. Pro.
14 Subd. 4, § 2574, Code Civ. Pro. See note to § 2, Appendix i, infra.
15 See below, under $ 21.
18 Estate of McMulkin, 5 Dem. 295; Carle v. Underhill, 3 Bradf. 101; Matter of Nies, 13 N. Y. St. 756; Matter of Bebee, 6 Dem. 43.
Not every written disposition of property to take event upon tine death of the owner is a last will or testament. It is not uncommon to attempt by reservations, contained in deeds of conveyance, to bestow benefits in perpetuity upon third persons. But all such dispositions are either void per sel' or else void because in reality testamentary dispositions. Thus rent may not be reserved in a lease in favor of lessor's widow, for that is a testamentary disposition.21
Codicil. A codicil in modern law has come to indicate some supplementary, alternative, revocative, or additional, provison made by a testator and intended to be taken as a part of his prior will or codicil.22 It must consequently be executed with the same formalities as a will,23 and then it amounts to a republication of the original will.24 A codicil in modern law is not inferior to a will, but, being posterior in point of time, is in some respects superior or controlling. On the other hand, a codicil in the Roman law was an inferior informal kind of will, to enable the sudden disposition of property on the near approach of death, as we see from Justinian's Institutes, where it is said “* ne confundatur jus testamentorum et codicillorum.” 23 Before the Statute of Wills it is highly probable that a codicil in England was more informal than a will, as executors could not be appointed by codicil.20
Now one may make any number of codicils under the New York Statute of Wills, provided they are executed with the same formality as a will; for all testamentary dispositions must now comply with the statute, and then the first of such codicils is of equal force with the last, if they are not contradictory. But codicils differ in their nature from wills, as no man can die with two wills or testaments; but one may die with a will and any number of codicils,27 and the last of the codicils does not affect its predecessors, except in so far as they are inconsistent.28 But it is desirable that each codicil refer to the will, and if possible to any preceding codicil, so that the intent of the testator may be the more obvious.29 Swinburne says a codicil to a will is like a boat tied to a ship,3° but this simile is classical, not original.
19 Hornbeck v. Westbrook, 9 Johns. 24 Kip v. Van Cortland, 7 Hill, 73; Bridges V. Pierson, 45 N. Y. 346; Brown v. Clark, 77 N. Y. 369, 601; Sterling v. Sterling, 08 App. 377; Caulfield v. Sullivan, 85 N. Y. Div. 426.
20 Boon v. Castle, 61 Misc. 474. 25 Institutes Just., tit. XXV, De
21 Priester v. Holock, 70 App. Div. Codicillis. Cf. Swinburne, pt. 7, § 1. 256, 259.
26 Swinburne, pt. I, § 5, pl. 2; 22 4 Black. Comm. 500; Hard v. Godolphin, pt. I, § 2, chap. 6; 4 Ashley, I7 N. Y. 6o6, 6I3.
Burn's Ecclc. Law, 137. 23 4 Kent. Comm. 531.
As remarked by some of the old law writers, a codicil seems at first more properly to belong to a testament or disposition of personalty than to a will or devise of realty. But this distinction no longer exists in modern law, and a codicil now affects a will or devise precisely as it affects a will of personalty. 81
There are various rules established for the construction of wills when they are effected by a codicil, such as that the codicil disturbs the will no further than necessary to give it effect. 32
Wills and Testaments. Prior to the Revised Statutes, and under the old statutes re-enacting in New York the English Statutes of Wills and the Statute of Frauds, the publication of testaments or wills of personalty was even more informal than the publication of devises or wills of land,83 for devises were then regarded as conveyances.34
27 I remember a case where a late distinguished lawyer in this State, once a judge of the Court of Appeals, drew seven codicils to one will, and infinite trouble they gave in construction when all had been proved. Also see Kane v. Astor's Executors, 5 Sandf. at p. 519.
28 Lovelasson Wills, 372.
31 Powell on Devises, 20, 21.
32 Brant v. Wilson, 8 Cow. 56; Kane v. Astor, 5 Sandf. 467, 519; Conover v. Hoffman, I Abb. Ct. App. Dec. 429.
33 Public Admr. v. Watts, 1 Paige, 347, 356, 368; chap. 47, Laws of 1787 re-enacting the former English statutes in force in New York,
34 Supra, p. 26.
II. What real property may be devised.
corporations. 20. *Devise or bequest to certain bar associations and fire corporations. 21. Manner of execution of will. 22. Witnesses to will to write names and places of residence. 23. What wills may be proved. 24. Effect of change of residence since execution of will. 25. Application of certain provisions to wills previously made. 26. Child born after making of will. 27. Devise or bequest to subscribing witness, 28. Action by child born after making of will, or by subscribing
witness. 29. Devise or bequest to child or descendant not to lapse. 30. Reception of wills for safe keeping. 31. Sealing and indorsing wills received for safe keeping. 32. Delivery of wills received for safe keeping. 33. Opening wills received by surrogate for safe keeping. 34. Revocation and cancellation of written wills. 35. Revocation by marriage and birth of issue. 36. Will of unmarried woman. 37. Bond or agreement to convey property devised or bequeathed
not a revocation.
country for use in this state.
* So in original.