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COPYRIGHT BY
ROBERT LUDLOW FOWLER

1911

J. B. LYON COMPANY
PRINTERS, ELECTROTYPERS AND !

LYON BLOCK, ALBANY, N. Y

Decedents' estates

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 19eaning 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 partisçular statute.

The reader will recall that the Deçedent 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.

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.

Page

SECTION 24. Effect of change of residence since execution of will.... 209

25. Application of certain provisions to wills previously

made .......................

........... 213

26. Child born after making of will......

27. Devise or bequest to subscribing witness.............. 222

28. Action by child born after making of will, or by sub-

scribing witness ...........

........ 229

29. Devise or bequest to child or descendant not to lapse. 232

30. Reception of wills for safe keeping..... .......... 242

31. Sealing and indorsing wills received for safe keeping.. 243

32. Delivery of wills received for safe keeping ............ 244.

33. Opening wills received by surrogate for safe keeping. 245

34. Revocation and cancellation of written wills.......... 246

35. Revocation by marriage and birth of issue............

36. Will of unmarried woman....

265

37. Bond or agreement to convey property devised or be-

queathed not a revocation ........

.........

38. Charge or incunbrance not a revocation..............

39. Conveyance, when not to be deemed a revocation......

40. Conveyance, when to be deemed a revocation.........

41. Canceling or revocation of second will not to revive

first ............

........ 285

42. Record of wills in county clerk's office................. 289

43. County clerk's index of recorded wills.

29+

44. Recording will found in another State or foreign county. 296

45. Authentication of papers from another State or foreign

country for use in this State....... ............. 310

46. Validity of purchase notwithstanding devise............

47. Validity and effect of testamentary dispositions........

48. Application of certain sections in this article....... 327

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