6 Lans. 1 | N.Y. Sup. Ct. | 1872
The decision of this case depends upon the proper construction of § 30, art. 2, title 1, chap. 6, part 2, of the Revised Statutes. (2 R. S., 61.) By that section it is provided that “ notwithstanding a will of personal property may have been admitted to probate, any of the next of kin to the testator may at any time within one year contest the same or the validity of such will.”
It is contended by the appellant that inasmuch as the will of the testator embraced personal as well as real property, it is a will of personal property within the meaning of this statute. We are of a contrary opinion. Title 1, of chap. 6, in which- the provision in controversy is contained, has this heading or inscription : “ Of wills and testaments of real and personal property, and the proof of them.” This title is divided into three articles, the headings or inscriptions to which are as follows, viz.: “Article 1. Of wills of real property and the proof of them. Article 2. Of wills of per
Such, evidently, was the intention of the legislature, as is shown by the different provisions relating to the proof of wills of real and wills of personal property, the legal effects of the probate of each, and especially by the omission of a provision requiring notice to the heirs or devisees of the proceeding to contest the will, after the probate thereof. It is unnecessary to refer to those provisions particularly, but it will be sufficient to say that on the probate of a will of personal property, the next of kin only were required to be cited to attend the probate, whereas, in the ease of a will of real estate, notice of the application for the proof thereof was required to be served upon the heirs of the testator. The notice to the next of kin was to be by the personal service of a citation six days before the day appointed, if within the county, and if not within the county, by a publication of the citation two weeks, in a newspaper designated by the surrogate. The notice to the heirs was to be personally served upon those residing in the county fifteen days; upon those residing in the State, but not in the county, twenty days previous to the application; and upon such heirs as could not be found in the State or did not reside therein, twenty days previous to the application, or by publishing it six weeks in the State paper. A will of personal property was admissible
It was the. conclusive effect of the probate of the will of personal property'that induced the enactment of the section of the statute under consideration, for the purpose of affording to the next of kin, who had not been notified of the probate, an opportunity to contest the validity of the will and to have the probate thereof revoked. (See revisers’ notes, 5 Edm. Stat., 626.) . The. proceeding which the statute provides for this purpose is inapplicable to a will of real and personal property, for there is no provision for any notice of it to heirs or devisees. It would be monstrous to give a construction to the statute whereby the interests of such persons could be cut off summarily, without any notice to them of such proceeding.
. One observation more. The necessity supposed to exist at. the time of the passage of the enactment in question, seems to ;have been superseded by subsequent alterations made by the legislature of'the law'relating tó the proof and recording of wills.' The law, as' it now stands, prescribes the same inode of proceeding and proof in respect to wills of personal as to. wills of real property, and provides also for the recording of. wills of personal 'property. (Laws .1837, 524, et seq., §§ 5-18.) This statute also provides that whenever any will shall be recorded as a will of real estate, it shall not be necessary to record the same as a will of personal property. (Id., § 19.) By chapter 182 of the Laws of 1846, amended by chapter 748 of the Laws of 1869, any will of real estate proved before the surrogate may be recorded in the clerk’s office as a conveyance, and this record is made evidence of the will.
The decree appealed from is, therefore, affirmed, with costs.