proportion to, and out of, the parts devised and bequeathed to

them.

Derivation: R. S., Prt 2, ch. 6, Tit. 1, Art. 3, §§ 50, 51.

§ 28. Action by child born after making of will, or by subscribing witness.

A child, born after the making of a will, who is entitled to succeed to a part of the real or personal property of the testator, or a subscribing witness to a will, who is entitled to succeed to a share of such property, may maintain an action against the legatees or devisees, as the case requires, to recover his share of the property; and he is subject to the same liabilities, and has the same rights, and is entitled to the same remedies, to compel a distribution or partition of the property, or a contribution from other persons interested in the estate, or to gain possession of the property, as any other person who is so entitled to succeed.

Derivation: Code Civil Procedure, § 1868.

29. Devise or bequest to child or descendant, or to a brother or sister of the testator not to lapse.

Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, or to a brother or sister of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in, the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate. (Amended by L. 1912, ch. 384, in effect May 5, 1912.)

Derivation: R. S., Part 2, ch. 6, Tit. 1, Art. 3, § 52.

§ 30. Reception of wills for safe keeping.

The clerk of every county in this state, the register of deeds in the city and county of New York, and the surrogate of every county, upon being paid the fees allowed therefor by law, shall receive and deposit in their offices respectively, any last will or testament which any person shall deliver to them for that purpose, and shall give a written receipt therefor to the person depositing the same. Derivation: R. S., Part 3, ch. 7, Tit. 3, Art. 7, § 67.

§ 31. Sealing and indorsing wills received for safe keeping. Such will shall be inclosed in a sealed wrapper, so that the contents thereof cannot be read, and shall have indorsed thereon the name of the testator, his place of residence, and the day, month and year when delivered; and shall not, on any pretext whatever, be

opened, read or examined, until delivered to a person entitled to the same, as hereinafter directed.

Derivation: R. S., Part 3, ch. 7, Tit. 3, Art. 7, § 68.

§ 32. Delivery of wills received for safe keeping. Such will shall be delivered only,

1. To the testator in person; or,

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

3. After his death to the persons named in the indorsement on the wrapper of such will, if any such indorsement be made thereon;

or,

4. If there be no such indorsement, and if the same shall have been deposited with any other officer than a surrogate, then to the surrogate of the county.

Derivation: R. S., Part 3, ch. 7, Tit. 3, Art 7, § 69.

§ 33. Opening wills received by surrogate for safe keeping. If such will shall have been deposited with a surrogate, or shall have been delivered to him as above prescribed, such surrogate, after the death of the testator, shall publicly open and examine the same, and make known the contents thereof, and shall file the same in his office, there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the custody thereof; or until required by the authority of some competent court to produce the same in such court.

Derivation: R. S., Part 3, ch. 7, Tit. 3, Art. 7, § 70.

§ 34. Revocation and cancellation of written wills.

No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses.

Derivation: R. S., Part 2, ch. 6, Tit. 1, Art. 3, § 42.

§ 35. Revocation by marriage.

If after making any will, such testator marries, and the husband

or wife, or any issue of such marriage, survives the testator, such will shall be deemed revoked as to them, unless provision shall have been made for them by some settlement, or they shall be provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and such surviving husband or wife, and the issue of such marriage, shall be entitled to the same rights in, and to the same share or portion of the estate of said testator as they would have been, if such will had not been made. No evidence to rebut such presumption of revocation shall be received, except as herein provided. (Amended by L. 1919, ch. 293, in effect Sept. 1, 1919.)

Derivation: R. S., Part 2, ch. 6, Tit. 1, Art. 3, § 43.

§ 36. Will of unmarried woman.

(Repealed by L. 1919, ch. 293, in effect Sept. 1, 1919.)

§ 37. Bond or agreement to convey property devised or bequeathed not a revocation.

A bond, agreement, or covenant, made for a valuable consideration, by a testator, to convey any property devised or bequeathed in any will previously made, shall not be deemed a revocation of such previous devise or bequest, either at law or in equity; but such property shall pass by the devise or bequest, subject to the same remedies on such bond, agreement or covenant, for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.

Derivation: R. S., Part 2, ch. 6, Tit. 1, Art. 3, § 45.

§ 38. Charge or incumbrance not a revocation.

A charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the performance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previously executed; but the devises and legacies therein contained, shall pass and take effect, subject to such charge or incumbrance.

Derivation: R. S., Part 2, ch. 6, Tit. 1, Art. 3, § 46.

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

A conveyance, settlement, deed, or other act of a testator, by which his estate or interest in property, previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property; but such devise or bequest shall pass to the devisee or legatec,

the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless in the instrument by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or bequest.

Derivation: R. S., Part 2, ch. 6, Tit. 1, Art. 3, § 47.

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

But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen.

Derivation: R. S., Part 2, ch. 6, Tit. 1, Art. 3, § 48.

§ 41. Canceling or revocation of second will not to revive first. If, after the making of any will, the testator shall duly make and execute a second will, the destruction, canceling or revocation of such second will, shall not revive the first will, unless it appear by the terms of such revocation, that it was his intention to revive and give effect to his first will; or unless after such destruction, canceling or revocation, he shall duly republish his first will.

Derivation: R. S., Part 2, ch. 6, Tit. 1, Art. 3, § 53.

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

A will of real property, which has been, at any time, either before or after this chapter takes effect duly proved in the supreme court, or the court of chancery, or before a surrogate of the state with the certificate of proof thereof annexed thereto, or indorsed thereon, or an exemplified copy thereof, may be recorded in the office of the clerk or the register, as the case requires, of any county in the state, in the same manner as a deed of real property. Where the will relates to real property, the executor or administrator, with the will annexed, must cause the same, or an exemplified copy thereof, to be so recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or other office where the same has been so recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such a record or exemplification, or an exemplification of the record

thereof, must be received in evidence, as if the original will was produced and proved.

§ 43. County clerk's index of recorded wills.

Upon recording a will or exemplification, as prescribed in the last section, the clerk or register must index it in the same books, and substantially in the same manner, as if it was a deed recorded in his office.

Derivation: Code Civil Procedure, § 2634. For remainder of section, see Code Civil Procedure, § 2634..

§ 44. Recording will proved in another state or foreign country. Where real property situated within this state, or an interest therein, is devised or made subject to a power of disposition by a will duly executed in conformity with the laws of this state, of a person who was at the time of his, or her death, a resident elsewhere within the United States, or in a foreign country, and such will has been admitted to probate within the state or territory, or foreign country, where the decedent so resided, and is filed or recorded in the proper office as prescribed by the laws of that state or territory or foreign country, a copy of such will or of the record 'thereof and of the proofs or of the records thereof, or if the proofs are not on file or recorded in such office, of any statement, on file or recorded in such office, of the substance of the proofs, authenticated as prescribed in section forty-five of this chapter, or if no proofs and no statement of the substance of the proofs be on file or recorded in such office, a copy of such will or of the record thereof, authenticated as prescribed in said section forty-five, accompanied by a certificate that no proofs or statement of the substance of proof of such will, are or is on file or recorded in such office, made and likewise authenticated as prescribed in said section forty-five, may be recorded in the office of the surrogate of any county in this state where such real property is situated; and such record in the office of such surrogate or an exemplified copy thereof shall be presumptive evidence of such will and of the execution thereof, in any action or special proceeding relating to such real property.

Derivation: Code Civil Procedure, § 2703. Amended by L. 1909, ch. 240, 13, in effect April 22, 1909.

§ 45. Authentication of papers from another state or foreign country for use in this state.

To entitle a copy of a will admitted to probate or of letters