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Conditional will.

Written will, how

to be executed.

Nuncupative will, how to be executed.

Witness to add

residence.

Republica

tion by codicil.

Will made

out of this state

S549. A will, the validity of which is made by its own terms conditional, may be denied probate, according to the event, with reference to the condition.

This section is new.

$.550. Every will, other than a nuncupative will authorized by section 547, must be executed and attested as follows:

1. It must be subscribed at the end thereof, by the testator himself, or by some person in his presence and by his direction;

2. The subscription must be made in the presence of each of the attesting witnesses, or be acknowledged by the testator to each of them, to have been made by him or by his authority;

3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and,

4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will, at the testator's request.

From 2 R. S., 63, § 40.

S551. A nuncupative will is not required to be in writing, nor to be declared or attested with any formalities.

Hubbard v. Hubbard, 8 N. Y., 196.

S552. A witness to a written will must write, with his name, his place of residence; and a person who subscribes the testator's name, by his direction, must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will.

From 2 R. S., 64, § 41.

S553. The execution of a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil.

$554. A will of real or personal property, or both, or a revocation thereof, made out of this state by a

person not having his domicil in this state, is as valid, when executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, as if it were made in this state, and according to the provisions of this chapter.

$555. No will or revocation is valid unless executed either according to the provisions of this chapter, or according to the law of the place in which it was made, or in which the testator was at the time domiciled.

The last two sections are modified from 2 R. S., 67, § 68,
69.

Will not

duly exe

cuted, void.

change of

$556. A will, or a revocation thereof, duly exe- Subsequent cuted according to the law either of the place of domicil execution or of the testator's domicil, remains valid notwithstanding a subsequent change of his domicil to a place, by the law of which the will or revocation would be void.

This section is new and overrules the decision made in
Moultrie v. Hunt, 23 N. Y., 394; compare Parsons v.
Lyman, 20 N. Y., 103.

S557. Every surrogate, county clerk or register of deeds must deposit, in his office, any will delivered to him for that purpose, and give a written receipt to the depositor; and must inclose such will in a sealed wrapper, so that it cannot be read, and indorse thereon the name of the testator, his residence, and the date of the deposit; and such wrapper must not be opened until its delivery under the provisions of the next section.

2 R. S., 405, § 68.

Wills may ed for safe

be deposit

keeping.

S558. A will deposited under the provisions of To whom the last section must be delivered only:

1. To the testator in person;

to be delivered.

Will, when to be

opened by surrogate.

Lost or destroyed will.

Written will, how revoked.

Evidence of

revoca

tion.

2. Upon his written order, duly proved by the oath of a subscribing witness;

3. After his death, to the person, if any, named in the indorsement on the wrapper of the will; or,

4. If there is no such indorsement, and if the will was not deposited with the surrogate having jurisdiction of its probate, then to the surrogate who has jurisdiction.

2 R. S., 405, § 69.

$559. The surrogate with whom a will is deposited, or to whom it is delivered, must, after the death of the testator, publicly open and examine the will and file it in his office, there to remain until duly proved, or deliver it to the surrogate having jurisdiction of its probate.

2 R. S., 405, § 70.

S560. A lost or destroyed will of real or personal property, or both, may be established in the cases provided in the CODE OF CIVIL PROCEDURE.

The reference is to section 12 of Appendix D, in the original draft of this Code.

S561. Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered, otherwise than :

1. By a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or,

2. By being burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction.

2 R. S.. 64, § 42.

S562. When a will is canceled or destroyed by any other person than the testator, the direction of

the testator, and the fact of such injury or destruction, must be proved by two witnesses.

Ib.

§ 563. A revocation by obliteration on the face of the will may be partial or total, and is complete if the material part is so obliterated as to show an intention to revoke; but where, in order to effect a new disposition, the testator attempts to revoke a provision of the will, by altering or obliterating it on the face thereof, such revocation is not valid unless the new disposition is legally effected.

McPherson v. Clark, 3 Bradf., 92.

Revocation tion on face

by oblitera

of will

S 564. The revocation of a will, executed in dupli- Revocation cate, may be made by revoking one of the duplicates.

of dupli. cate.

by subse

S 565. A prior will is not revoked by a subsequent Revocation will, unless the latter contains an express revocation, quent will. or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will.

Conover v. Hoffman, 15 Abb. Pr., 100; Robinson v.
Smith, 13 Abb. Pr., 359; McLoskey v. Reid, 4 Bradf.,
334; Nelson v. McGiffert, 3 Barb. Ch., 158; Brant v.
Willson, 8 Cow., 56.

of subse

quent will revive the

does not

first.

$566. If, after making a will, the testator duly Revocation makes and executes a subsequent will, the destruction, canceling or revocation of the latter does not revive the former, unless it appears by the terms of such revocation that it was his intention to revive the prior will, or unless after such destruction, canceling or revocation, he duly republishes the prior will.

2 R. S., 65, § 53.

by marriage

S567. If, after having made a will, the testator Revocation marries, and has issue of such marriage, born either and birth in his lifetime or after his death, and the wife or issue survives him, the will is to be deemed revoked,

of issue.

Revocation

of woman's will by marriage.

Contract

of sale not a

unless provision has been made for such issue by some settlement, or unless such issue are provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation can be received.

2 R. S., 64, § 43.

S568. A will executed by an unmarried woman is revoked by her subsequent marriage.

2 R. S., 64, § 44.

$569. An agreement made by a testator, for the revocation. sale or transfer of property disposed of by a will previously made, does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator's agreement, for a specific performance or otherwise, against the devisees or legatees, as might be had against the testator's successors, if the same had passed by succession.

Charge or incum

revocation.

2 R. S., 64, § 45.

S570. A charge or incumbrance upon any real or brance not a personal property, for the purpose of securing the payment of money, or the performance of any other obligation, is not a revocation of a will relating to the same property, previously executed; but the dispositions made by the will take effect subject thereto.

Conveyance, when not a revocation.

When it is a revocation.

2 R. S., 64, § 46.

S571. A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession.

2 R. S., 65, § 47.

S572. If the instrument, by which an alteration is made in the testator's interest in a thing previously disposed of by his will, expresses his intent that it shall be a revocation, or if it contains provisions

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