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(Became a Law February 17, 1909; Chapter 18, Laws of 1909)

TOGETHER WITH ALL AMENDMENTS

THE NOTES OF THE BOARD OF STATUTORY CONSOLIDATION, NOTES OF
THE ORIGINAL REVISERS OF THE REVISED STATUTES, THE
REPORT OF THE COMMISSIONERS OF STATUTORY RE-
VISION ON THE ORIGINALS, AND THE FULL TEXT
OF ALL THE STATUTES CODIFIED IN

THE DECEDENT ESTATE LAW

ALSO

AN INTRODUCTION, NOTES OF JUDICIAL DECISIONS AND A COMMENTARY, HISTORICAL AND EXPOSITORY, ON THE TEXT OF

THE STATUTES

BY

ROBERT LUDLOW FOWLER

COUNSELLOR AT LAW

NEW YORK
VOORHIS & COMPANY

1911

US 919 NY FoW

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Decedents' estates

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PREFACE.

This volume, addressed to one of the principal Consolidated Laws of 1909, forms a part of the author's Commentaries on the more important of the property statutes of this State.

A portion of the present “ Decedent Estate Law” was formerly contained in the “Real Property Law” of 1896. The Board of Statutory Consolidation, in the latest revision of the statutes, of their own motion transferred the article on the Descent of Real Property from the Real Property Law of 1896 to the Consolidated “ Decedent Estate Law.” As the article on descents formed an important part of the author's first and second editions of the Real Property Law, and was necessarily omitted from the third edition of that work, in consequence of the revisers' action just noticed, this volume is primarily intended to be supplementary and amplificatory of the author's third edition of the Real Property Law of New York.

But as the “ Decedent Estate Law” contains much besides the article on the Descent of Real Property, it not only became necessary that the writer should make of this treatise a separate volume, but also cover the text of the entire statute. By reason of recent amendments to the statute, the topics “ descent" and " distribution” in particular seemed to demand a fuller exposition, on some plan which might enable the reader to see for himself the bearing of the amendments. This plan the author conceived to be of the historical order, as the following pages will disclose. In a recent case (197 N. Y. 423) the Court of Appeals adverted to the frequent necessity of historical research in order to learn the full scope and meaning of the laws and customs of this State. Their observation is manifestly correct. But mere history, without precise application, or without full citation of adjudications and documents, such as the various revisers' notes, would be a very incomplete guide to the interpretation of a particular statute.

The reader will recall that the Decedent Estate Law now regulates not only devises of real property, but also the entire law of testate and intestate succession. it also contains much else of the first importance to lawyers.

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The present tendency is toward a statutory expression of substantive law. This tendency may be said to have taken its beginning in this State with the Revised Statutes of 1830. Wherever such a condition of the form of the law exists, the more useful legal literature, it is believed, will be found, as in France, to take the shape of a commentary on the statute. As the decisions of the courts of justice are necessarily based on the text of the statute, the most orderly method for a treatise of this character is to arrange the exposition of the law about the text of the statute itself. In such a treatise, the first consideration is the correct text of the statute itself, and the next, any authoritative comments by the framers of the particular statute, and finally the decisions of the courts of justice on the text of the statute.

In the pages of this work concerned with the scheme of a will, the author has preferred to state general principles, rather than to present precedents of wills. It is conceived that the intelligent reader, familiar with principles, can have little use for stereotyped forms of wills, which are generally too rigid for any practical application in other cases.

The writer desires to explain that in the course of preparing the present book he deemed it economical to refer the reader to his other writings, as they really constitute separate parts of one complete design, the foundations of which were laid down many years since. Otherwise, voluminous repetitions, which would have enlarged its scope beyond reasonable limits, might have ensued in this volume. This explanation will afford also the writer's apology for crossreferences to his own prior writings. Without this explanation, such cross-references would, doubtless, appear to be unseemly. With such explanation, the author trusts the reason for the method adopted will not be misunderstood by the indulgent reader.

This particular treatise is an attempt to furnish, in some detail, the history and theory of application of the Decedent Estate Law. That the treatise itself completely fulfils the author's design can not be claimed. Its shortcomings the generous reader will, however, doubtless, overlook, in consideration of the value of the documentary material, collected in this volume and highly explanatory of the Decedent Estate Law.

New York, January 1, 1911.

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