or hereditaments, may at his own free will and pleasure, give or devise the same, or any of them, or any rent or profit out of the same, or out of any part thereof, to any person or persons, (except bodies politic and corporate,) by his last will and testament, or by any other act by him lawfully executed.

land are to be executed.

§ 2. And be it further enacted, That every such last will and testament How wills of shall be in writing, and signed by the party making the same, or by some other person in his presence, and by his express direction; and shall be attested and subscribed in the presence of such party, by three or more credible witnesses, or else such last will and testament shall be utterly void.

3. And be it further enacted, That no such last will and testament duly or revoked. executed as aforesaid, or any part thereof, shall be revocable, or be altered, otherwise than by some other will or codicil in writing, or other writing of the party, to such last will and testament, declaring the same, and signed, attested and subscribed in manner aforesaid, or by burning, cancelling, tearing or obliterating such last will and testament, by the testator himself, or in his presence and by his direction and consent.

no

visable.

§ 4. And be it further enacted, That all estates pur auter vie, shall be Estates pur devisable by last will and testament duly executed as aforesaid; and if auter vic desuch devise thereof be made, the same or so much thereof as shall not be devised, shall go to the executor or administrator of the party who had the estate, to be applied and distributed as part of the personal estate.

§ 5. And be it further enacted, That no last will and testament afore- Persons incasaid made by a married woman, or by any infant, idiot or person of insane pable of de memory, shall be valid in law.

:

vising.

how to be

courts of common

§ 6. And be it further enacted, That where any real estate shall be de- Wills convised by last will and testament as aforesaid, the executors to such will, or cerning land, any person interested in such estate, may cause the said will to be brought proved in the before the court of common pleas of the county in which such real estate may be; and the said court shall cause the witnesses to such will to be pleas. examined in open court, or if it shall appear to the court, at the examination of any witness to such will, that the other witness or witnesses to the said will, are dead, or reside out of this state, then such proof shall be taken in open court of the hand writing of the testator, or of the witness or witnesses, so dead or absent, or of such other circumstances as would be proper to prove the said will upon a trial at law and the said court shall cause all such examinations and proofs to be reduced to writing; and if it shall thereupon, in either case, appear that such will was duly executed, and that the testator at the time of executing the same was of full age, and of sound mind and memory, and not under any restraint, then the court shall order their clerk to record the same will, together with the proof so taken, in a book to be provided by the clerk for that purpose: and the record of the said will so proved and recorded, shall be as good and effectual in all cases, as the original wills would be if produced and proved. §7. And be it further enacted, That if all the witnesses to such will are dead, or reside out of the United States, then the said court shall in open court take such proof of the hand writing of the testator, or of either or all of the witnesses to the same will, or of such other circumstances as would be proper to prove the same will upon a trial at law; and shall cause all such examinations and proofs to be reduced to writing, and to be recorded as aforesaid; and the record thereof shall be received as evidence upon any trial or controversy concerning the same will, and shall be of the same force and effect as if taken in open court upon such trial: Provided, It shall appear that the lands in question, have been uninter

proof thereof

if the witnesses be

dead or ab

sent from the U. States.

Proviso.

prove wills.

ruptedly held, under the said will for the space of twenty years. same will shall be deposited and remain with the clerk of the same court for the benefit of the parties interested therein, and he shall upon request make and deliver a true copy thereof to any person requiring the same : Provided also, That if it shall appear upon such examination that any lands claimed under the said will, have been held under the same for twenty years previous thereto, such will shall also be recorded as aforesaid, and such record shall be evidence in all cases respecting such lands. § 8. And be it further enacted, That it shall not be lawful for the said plication to court to proceed to prove any such will, until proof be made, that due notice of such intention had been given to the heirs of the testator, or if such heirs are not to be found within this state, fixed up at the last place of abode of such testator, at least fifteen days before such examination. That the said court or any judge thereof, may cause all such witnesses as any person interested may desire, to be summoned to appear at such court and testify; and if any witness neglects or refuses to appear, the said court may cause such witness to be brought before the same court to testify touching the premises. And that every person having the custody or power of any such will, shall on request produce the same before the said court, for the purpose aforesaid; and when the same shall be proved, and shall also be recorded as aforesaid, the original shall be returned to the person who brought it, if such person desire it; and if any such person refuse to produce and deliver such will, the said court may commit such person to jail, there to remain, until he produces and delivers the same to such court or a judge thereof.

When to be

preme court.

§ 9. And be it further enacted, That if the real estate so devised be in proved in su- several counties, then such will shall be proved in manner aforesaid in the supreme court, and recorded as aforesaid by the clerk thereof; and the supreme court shall in such cases proceed in the like manner, and have like powers in the premises.

Expenses of

§ 10. And be it further enacted, That the expense of proving and resuch proof. cording the said wills, shall be paid by the person applying to have the same done, and the witnesses and officers shall have the like fees for their attendance and services, on proving a will as aforesaid, as for the like attendance and services in other cases.

ecutors.

Power to ex- § 11. And be it further enacted, That where any lands, tenements or hereditaments have been, or shall be given, or devised by any last will and testament, executed as aforesaid, to the executors therein named, or any of them, to be sold, or have been or shall be thereby ordered to be sold, by such executors or any of them, and after the death of the testator part of the executors so named, refuse or neglect to take upon them the execution of the said will, then all sales of the said lands, tenements or hereditaments, by the executor or executors, who take charge of the administration of the said will, shall be equally valid, as if the residue of the executors had joined in the sale.

Devises to witnesses void.

Creditors

es.

§ 12. And be it further enacted, That if any person be a witness to the execution of any will, to whom any beneficial devise, legacy, interest, or appointment affecting any real or personal estate, except charges on the real estate, for the payment of any debt, be given, or made, such devise, legacy, interest, or appointment, shall so far only as concerns such person, or any claiming under him, be void, and such person shall be admitted as a competent witness.

§ 13. And be it further enacted, That if by any will, any real estate be good witness- charged with any debt, and any creditor, whose debt is so charged, be a witness to such will, he shall, notwithstanding the charge, be a competent witness: Provided always, That the credit of any witness to a will,

in any of the cases in this act before mentioned, shall be subject to consideration and determination, in like manner as the credit of witnesses is in all other cases.

wills how to

§ 14. And be it further enucted, That no nuncupative will shall be good Nuncupative where the estate thereby bequeathed shall exceed the value of seventy- be made and five dollars, unless the same be proved by the oaths of three witnesses at proved. the least, who were present at the making thereof, nor unless it be proved, that the testator at the time of pronouncing the same, did bid the persons present or some of them bear witness that such was his will, or words to that effect, nor unless such nuncupative will was made in the time of the last sickness of the deceased, and in his dwelling-house, or where he had been resident for ten days, or more, next before the making of such will, except where such person was surprised, or taken sick, being from home, and died before his return to the same.

§ 15. And be it further enacted, That after six months from the speak- Limitation to ing of the pretended testamentary words, no testimony shall be received proof thereof. to prove any nuncupative will, except the said testimony, or the substance thereof, was committed to writing, within six days after the making of the said will; and further, that no letters testamentary, or probate of any nuncupative will, shall pass the seal of any court, until fourteen days at the least, after the decease of the testator, shall be fully expired; nor shall any nuncupative will be at any time received to be proved, unless process hath first issued, to call in the widow, or next of kin to the deceased, to the end they may contest the same if they please.

good.

How revoca

§ 16. And be it further enacted, That every person may by will in Wills of chatwriting give or bequeath his personal estate in the same manner as if this tels, when act had not been passed. And no will in writing concerning any personal estate shall be repealed, or any part thereof revoked or altered, by any ble words or will, by word of mouth only, unless the same be in the lifetime of the testator committed to writing, and after the writing thereof read unto the testator, and allowed and approved of by him, and proved so to be done by three witnesses at the least.

widows, sol

§ 17. And be it further enacted, That widows may bequeath the crop Such wills by in the ground, of their lands holden in dower, and that any soldier being in diers, & mariactual military service, and any mariner being at sea, may dispose of his ners, when good. personal estate in the same manner as if this act had not been passed.

ed.

§ 18. And be it further enacted, That when any person hath any child Guardian by deed or will, under the age of twenty-one years, and not married at the time of his death, how appointit shall and may be lawful to and for the father of such child, whether born at the time of the decease of the father, or at the time in ventre sa mere, or whether such father be within the age of twenty-one years, or of full age, by his deed executed in his lifetime, or by his last will and testament in writing, signed by such father, or by some other person in his presence, and by bis express direction, and attested and subscribed in the presence of such father, by three or more credible witnesses, in such manner and form, and from time to time, as he shall respectively think fit, to dispose of the custody and tuition of such child, for and during such time as he or she shall respectively remain under the age of twenty-one years, or any less time, to any person or persons in possession or remainder; and that such ers. disposition of the custody of such child, shall be good and effectual, against every person claiming the custody or tuition of such child, as guardian in soccage, or otherwise; and that such person or persons to whom the custody of such child be so disposed or devised as aforesaid, may maintain an action of ravishment of ward or trespass, against any person who shall wrongfully take away or detain such child, for the recovery of the same,

Their

pow

Further powers.

Codicils

within this act.

Wills con

how proved

preme court

common

pleas.

and shall and may recover damages in the said action for the use and benefit of such child.

§19. And be it further enacted, That any person to whom the custody of any child is so disposed, or devised, may take into his custody to the use of such child, the profits of the real estate of such child, and also the tuition of the child, and the custody and management of his personal estate, until such child arrives to the age of twenty-one years, or any less time, according to such disposition aforesaid, and may bring such actions in relation thereunto as a guardian in soccage might lawfully do.

§ 20. And be it further enacted, That every provision in this act shall apply as well to codicils as to wills.

An act to amend an act, entitled "An act to reduce the laws concerning wills into one statute." Passed April 5th, 1803.1 WHEREAS doubts have arisen with respect to the construction of certain parts of said act; for removal whereof,

§ 1. Be it enacted by the People of the State of New-York, represented in Senate and Assembly, That every will heretofore proved, or which shall hereafter be proved, pursuant to the directions of said act, and shall have a certificate thereof endorsed thereon, signed by the clerk of the court in which the same shall have been so proved, with the seal of the said court thereunto annexed, as also the record of said will and the transcript of such record, under the hand of the clerk and the seal of the said court, shall without further proof, be as good and effectual in all cases as the original will would be if produced and proved.

An act concerning wills. Passed March 5, 1813.2

[This act is a transcript of the foregoing act of 1801, except that sections six and seven are varied, and a new section is added.]

§ 6. And be it further enacted, That where any real estate shall be decerning land, vised by last will and testament as aforesaid, the executors to such will, in the su- or any person interested in such estate, may cause the said will to be and courts of brought before the supreme court or the court of common pleas, of the county in which such real estate may be; and the said court shall cause the witnesses to such will to be examined in open court, or if it shall appear to the court at the examination of any witness to such will, that the other witness or witnesses to the said will, are dead, or reside out of this state, then such proof shall be taken in open court, of the hand writing of the testator, or of the witness or witnesses so dead or absent, or of such other circumstances as would be proper to prove the said will upon a trial at law; and the said court shall cause all such examinations and proofs to be reduced to writing; and if it shall thereupon, in either case appear, that such will was duly executed, and that the testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint, then the court shall order their clerk to record the same will, together with the proof so taken, in a book to be provided by the clerk for that purpose; and that every will heretofore proved, or which shall hereafter be proved in manner aforesaid, and shall have a certificate thereof, endorsed thereon, signed by the clerk of the court in which the same shall have been so proved, with the seal of the said court thereunto annexed, and also the record of such will, and the transcript of such record, certified by the clerk, and sealed with the seal of the

(1) 3 Webster, p. 341. (2) 1 R. L. p. 364. K. & R. v. 1, p. 178.

court, shall be as effectual in all cases as the original will would be if produced and proved.

if the wit

sent from the

§ 7. And be it further enacted, That if all the witnesses to such will How proved are dead, or reside out of this state, then the said court shall in open nesses be court, take such proof of the hand writing of the testator, or of either or dead or aball of the witnesses to the same will, or of such other circumstances as U. States. would be proper to prove the same will, upon a trial at law; and shall cause all such examinations and proofs to be reduced to writing, and to be recorded as aforesaid; and the record thereof, and the transcript of such record, certified as aforesaid, shall be received as evidence upon any trial or controversy concerning the same will, and shall be of the same force and effect as if taken in open court upon such trial: Provided, Proviso. It shall appear that the lands in question have been uninterruptedly held under the said will for the space of twenty years; and the same will shall be deposited and remain with the clerk of the same court, for the benefit of the parties interested therein; and he shall, upon request, make and deliver a true copy thereof to any person requiring the same: Provided also, That if it shall appear upon such examination, that any lands claimed under the said will, have been held under the same for twenty years previous thereto, such will shall also be recorded as aforesaid; and every such will, having a certificate of such proof endorsed thereon, signed by the clerk, and sealed with the seal of the court; and also the record of every such will, and the transcript of such record, certified by the clerk, and sealed with the seal of the court, shall be evidence in all cases respecting such lands.

records of

testimony.

§ 21. And be it further enacted, That the exemplification of the record of Exemplificaany last will and testament heretofore proved before, and recorded in the tions of the office of the judge of the court of probate in this state, before the first day wills, in cerof January, in the year one thousand seven hundred and eighty-five, the tain cases, original of which on due and vigilant search cannot be found in the office of the said judge of probate, or of the office of the surrogate of the city and county of New-York, under the seal of the said court of probate or surrogate, shall be received and read in evidence in any court of justice within this state, in actions real or mixed, and have the like force and effect as in personal actions; and that the certificate of the judge or surrogate aforesaid, under the seal of office, of such search, and that the original will cannot be found in his office, shall be evidence thereof.

Acts relating to the partition of Lands.

An act for the partition of lands. Passed March 16, 1785.1

WHEREAS many tracts of land in this state are held by divers persons as joint tenants, tenants in common, and coparceners, and such tracts cannot by law be divided by reason of the absence, infancy or coverture of some of the proprietors, to the great detriment of the owners, and the prejudice of agriculture:

undivided

1. Be it therefore enacted by the People of the State of New-York, repre- Proprietors of sented in Senate and Assembly, and it is hereby enacted by the authority of the lands may same, That any one or more of the proprietors of any tract or tracts, parcel subscribe and or parcels of land which now are, or hereafter may be undivided, incline to uce. have partition thereof, may subscribe a writing, and publish the same in any

(1) 1 Jones & Varick, p. 201; 1 Greenleaf, p. 165.

publish a no