$533. The recording and deposit of an instrument proved and certified according to the provisions of sections 510, 524 and 525 are constructive notice of the execution of such instrument to all purchasers and incumbrancers subsequent to the recording; but the proof, recording and deposit do not entitle the instrument or the record thereof, or the transcript of the record, to be read in evidence. 1 R. S., 761, § 33. Effect of recording and de posit. Certain counties leases in named not S534. The provisions of this chapter do not extend to leases for life, or for years, in the counties of Albany, Ulster, Sullivan, Herkimer, Dutchess, Colum- affected. bia, Delaware and Schenectady. 1 R. S., 763, § 42. CHAPTER V. UNLAWFUL TRANSFERS. SECTION 535. Certain instruments void against purchasers, &c. 536. Not void against purchaser having notice, unless fraud is 537, 538. Power to revoke when deemed executed. 539. Purchaser in good faith, not affected. 540. Conveyance of land adversely possessed. instruments purchasers, S535. Every instrument, other than a will, affect- Certain ing an estate in real property, including every charge void against upon real property, or upon its rents or profits, made &c. with intent to defraud prior or subsequent purchasers thereof, or incumbrancers thereon, is void as against every purchaser or incumbrancer, for value, of the same property, rents or profits. 2 R. S., 134, § 1, made more definite by the introduction Not void against purchaser having no S536. No instrument is to be avoided under the last section, in favor of a subsequent purchaser or tice, unless incumbrancer having notice thereof at the time his fraud is mutual. Power to revoke, when deemed executed. Id. Purchaser in good faith not purchase was made or his lien acquired, unless the person in whose favor the instrument was made, was privy to the fraud intended. 2 R. S., 134, § 2, modified by omitting "actual or legal" before "notice," inasmuch as "notice is elsewhere defined as meaning constructive as well as actual notice. S537. Where a power to revoke or modify an instrument affecting the title to, or the enjoyment of, an estate in real property is reserved to the grantor, or given to any other person, a subsequent grant of or charge upon the estate, by the person having the power of revocation, in favor of a purchaser or incumbrancer for value, operates as a revocation of the original instrument, to the extent of the power, in favor of such purchaser or incumbrancer. This provision is intended to embody the substance of S538. Where a person having a power of revocation, within the provisions of the last section, is not entitled to execute it until after the time at which he makes such a grant or charge as is described in that section, the power is deemed to be executed as soon as he is entitled to execute it. Substantially the same as 2 R. S., 134, § 5. $539. The rights of a purchaser or incumbrancer affected. in good faith and for value are not to be impaired by any of the foregoing provisions of this chapter. 2 R. S., 137, § 5, modified by adding the words incumbrancer," and by a slight change of phraseology. or of land possessed S540. Every grant of real property, other than Conveyance one made by the state,' or under a judicial sale, is adversely void, if at the time of the delivery thereof, such real property is in the actual possession of a person claiming under a title adverse to that of the grantor. 1 Brady v. Begun, 36 Barb., 533; Candee v. Haywood, 34 1 R. S., 739, § 147. This provision does not apply to provisions. $ 541. Other provisions concerning unlawful trans- Other fers are contained in Part II of the Fourth Division of this Code, concerning the special relations of DEBTOR and CREDITOR. TITLE V. WILL. In this Title, taken, for the most part, from the existing CHAPTER I. Execution and revocation of wills. III. General provisions relating to wills. CHAPTER I. EXECUTION AND REVOCATION OF WILLS SECTION 542. Who may make will. 543. Monomaniac incompetent. 544. Will procured by fraud, &c. Who may make will. Monoma mac incompetent. SECTION 546 Who may take by will. 547. Nuncupative will. 548. Mutual will. 549. Conditional will. 550. Written will, how to be executed. 551. Nuncupative will, how to be executed. 553. Republication by codicil. 554. Will made out of this state. 555. Will not duly executed, void. 556. Subsequent change of domicil. 557. Wills may be deposited for safe keeping. 558. To whom to be delivered. 559. Will, when to be opened by surrogate. 560. Lost or destroyed will. 561. Written will, how revoked. 562. Evidence of revocation. 563. Revocation by obliteration on face of will. 564. Revocation of duplicate. 565. Revocation by subsequent will. 566. Revocation of subsequent will does not revive the first. 567. Revocation by marriage and birth of issue. 568. Revocation of woman's will by marriage. 569. Contract of sale not a revocation. 570. Charge or incumbrance not a revocation. 571. Conveyance when not a revocation. 572. When it is a revocation. 573. Revocation of codicils. 574. Afterborn child, unprovided for, to succeed. 575. Devises and bequests in certain cases not to lapse. 577. When witness may succeed. 578. Creditor a competent witness. S 542. Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind, and no others, may dispose of real and personal property, by a will duly executed, according to the provisions of this Code. 2 R. S., 56, § 1; 60, § 21; modified by enabling minors to dispose of real as well as personal property by will, and by omitting the exception as to married women. S 543. A person having any insane delusion is incompetent to make a will. This provision is new (see Stanton v. Wetherwax, 16 S544. A will or part of a will procured to be made by duress, menace, fraud or undue influence, may be denied probate; and a revocation, procured by the same means, may be declared void. This section is new. S545. Every estate and interest in real or personal property, to which heirs, husband, widow or next of kin might succeed, may be disposed of by will. From 2 R. S., 57, § 2. S546. A testamentary disposition may be made to any person capable by law of taking the property so disposed of, except that no corporation can take under a will, unless expressly authorized by its charter or by statute so to take. 2 R. S., 57, § 3. will pro cured by fraud, &c. What may will. pass by Who may take by will. tive will. S547. A nuncupative will of real or personal pro- Nuncupaperty, or both, is valid, when made in contemplation, fear or peril of death: 1. By a soldier, while in actual military service, whether he is an officer or private, or a surgeon, or a servant of the army; or, 2. By a sailor (whether he is an officer or surgeon, a marine or mariner, or a servant of the vessel), after he finally goes on board the vessel for the voyage, and before he comes on shore, in port, after the voyage is over. Modified from R. S., 60, 22. By this section the will. S548. A conjoint or mutual will is valid, but it Mutual may be revoked by any of the testators, in like manner with any other will. Ex parte Day, 1 Bradf., 476. |