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$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
mutual.

537, 538. Power to revoke when deemed executed.

539. Purchaser in good faith, not affected.

540. Conveyance of land adversely possessed.
541. Other provisions.

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
of the word "incumbrancer" instead of using the
word "purchaser" only, and afterwards explaining
that incumbrancers are purchasers, which would be
inconsistent with the provisions of the Code relative
to mortgages. See § 1923.

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
sections and 4 of 2 R. S., 134. It is thought that
there is no necessity for the distinction made by those
sections between a power reserved to the grantor, and
a power created in favor of a third person.
The provision is also expressly extended to all instru-
ments affecting real property, as was no doubt the
intention of the statute, and probably is its effect.

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
id., 349; People v. Mayor, &c., of N. Y., 8 Abb. Pr.,
724; Jackson v. Gumaer, 2 Cow., 552.

1 R. S., 739, § 147. This provision does not apply to
mortgages, which are not recognized in this Code as
grants in any sense.

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
law, are inserted many new provisions relating to nun-
cupative wills; mutual and conditional wills; partial
and total revocation; revocation of wills executed in
duplicate; effect of alteration or obliteration; wills pro-
cured by undue influence; republication by codicil;
placing power to devise real property on the same
footing as personal estate; the execution of wills in
foreign countries; the law of domicil; the interpreta-
tion of wills; the payment and abatement of legacies.

CHAPTER I. Execution and revocation of wills.
II. Interpretation 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.
645. What may pass by will.

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.
552. Witness to add residence.

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.
576. Witness to will, cannot take under will.

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
Barb., 259; Waring v. Waring, 12 Jurist, 947; 3 Moore
P. C. C., 341).

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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
nuncupative will may pass real as well as personal pro-
perty; but it can be made only in contemplation, fear
or peril of death (See Prince v. Hazleton, 20 Johns.,
502). A nuncupative will may be made by a ship's
cook or other servant (Exp. Thompson, 4 Bradj., 154),
and while the ship is at anchor, as well as on the open
sea (Hubbard v. Hubbard, 8 N. Y., 196).

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.

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