Title by Will or Devise

A WILL is a disposition of real and personal property, to take effect after the death of the testator. When the will operates upon personal property, it is sometimes called a testament, and when upon real estate, a devise; but the more general, and the more popular denomination of the instrument, embracing equally real and personal estate, is that of last will and testament.¹ The definition of a will or testament, given by Modestinus in the Roman law, has been justly admired for its precision. Testamentum est voluntitis nostrae justa sententia de eo quod quis post mortem suam fieri velit.²

(1.) Of the history of devises.

The law of succession has been deemed by many speculative writers, of higher and better obligation, than the fluctuating, and oftentimes unreasonable and unnatural distributions of human will. The general interests of society, in its career of wealth and civilization, require, that every man should have the free enjoyment and disposition of his own property. The law of our nature, by placing us under the irresistible influence of the domestic affections, has sufficiently guarded against any great abuse of the power of testamentary disposition, by connecting our hopes and wishes with the fortunes of our posterity. In the primitive age of many nations wills were unknown. This was the case with the ancient Germans, and with the laws of Lycurgus, and with the Athenians before the age of Solon.³ But family convenience, and a sense of the absolute right of property, introduced the use of testaments, in the more advanced progress of nations. The Attic laws of Solon allowed the Athenians to devise their estates, provided they had no legitimate children, and were competent in mind, and not laboring under any personal disability. If they had children, the power to devise was qualified, and it allowed the parent to devise if the sons died under the age of sixteen; or, in the case of daughters, with the condition that the devisees should take them in marriage; and no devisee was allowed to take possession of the estate, except under the adjudication of a court of justice. The introduction of the law of devising, by Solon, was accompanied with great fraud and litigation, though his laws are said, by Sir William Jones, to have had the merit of conciseness and simplicity.⁴

Prior to the time of the decemvirs, no Roman citizen could break in, by will, upon the order of succession, unless the act was done and permitted in the assembly of the people. But wills were allowed at Rome by the twelve tables, and they gave the power to an unlimited extent, which was afterwards qualified by the interpretation and authority of the tribunals. They were executed with great ceremony before five citizens, who were to represent the people, and the transaction was in the form of a purchase of the inheritance. They were, at last, by the law of the praetors, placed under the burdensome check of seven witnesses, who were required to affix their seals and signatures.⁵ The power of devise was checked by the Emperor Justinian, and unless a fourth part of the inheritance was reserved for the children, they were allowed to set aside the testament as inofficious, under the presumptive evidence of mental imbecility.⁶

It seems to be the better opinion, that lands were devisable, to a qualified extent, with the Anglo-Saxons. The bocland was held in independent right, and devisable by will.⁷ But, upon the establishment of the feudal system at the Norman conquest, lands held in tenure ceased to be devisable, in consequence of the feudal doctrine of nonalienation without the consent of the lord; for the power of devising would have essentially affected many of his rights and privileges. There were exceptions to the feudal restraint on wills existing as to burgage tenures, and gavel-kind lands.⁸ The restraint upon the power of devising did not give way to the demands of family, and public convenience, so early as the restraint upon alienation in the lifetime of the owner. The power was covertly conferred by means of the application of uses, for a devise of the use was not considered a devise of the land. The devise of the use was supported by the courts of equity as a disposition binding in conscience, and that equitable jurisdiction continued, until the use became, by statute, the legal estate. The statute of uses, like the introduction of feuds, again destroyed the privilege of devising, but the disability was removed, within five years thereafter, by the statute of wills of 32 Hen. VIII. That statute applied the power of devising to socage estates, and to two thirds of the lands held by knight service; and this last and lingering check was removed, with the abolition of the military tenures, in the beginning of the reign of Charles II., so as to render the disposition of real property by will absolute.⁹

The English law of devise was imported into this country by our ancestors, and incorporated into our colonial jurisprudence, under such modifications, in some instances, as were deemed expedient. Lands may be devised by will in all the United States; and the statute regulations on the subject are substantially the same, and they have been taken from the English statute of 32 Hen. VIII. and 29 Charles II. In order to give a distinct view of the outlines or elements of the law on the subject of devises, I shall proceed to consider the competency of the parties to a devise; the things that are devisable; the solemnities requisite to a due execution of the will; and, lastly, some of the leading rules applicable to the construction of devises.

(2.) Of the parties to a devise.

The general rule is, that all persons of sound mind are competent to devise real estate, with the exception of infants, and married women. This was the provision in the English statute of wills, and, I presume, the exceptions equally exist in this country.¹⁰ But a feme covert, by deed of settlement made prior to her marriage, and vesting her estate in trustees, may be clothed with a testamentary disposition of her lands; and a Court of Chancery will enforce such a power made during coverture, under the name of an appointment, or declaration of trust. She may devise by way of execution of a power.¹¹ But the will that she makes, in such a case, must be executed with the same solemnities as if she had executed the will while sole.¹² An infant cannot, in any case, be enabled to devise through the medium of a power; and the New York statute specially excludes the exercise of a power by a married woman during her infancy.¹³

Testaments of chattels may be made by infants of the age of fourteen if males, and twelve if females. This is the English rule.¹⁴ The laws of the several states are not uniform on this point, and by the New York Revised Statutes,¹⁵ the age to make a will of personal estate, is raised up to eighteen in males, and sixteen in females. Nor can a married woman make a testament of chattels, any more than of lands, except under a power, or marriage contract.¹⁶

But infants, femes covert, and persons of non-sane memory, and aliens, may be devisees, for the devise is without consideration.¹⁷ A devise to the heir at law is void, if it gives precisely the same estate that the heir would take by descent if the particular devise to him was omitted out of the will. The title by descent has, in that case, precedence to the title by devise.¹⁸ The test of the rule, says Mr. Crosley, is to strike out of the will the particular devise to the heir, and then, if without that he would take by descent exactly the same estate which the devise purports to give him, he is in by descent, and not by purchase.¹⁹ Even if the lands be devised to the heir charged with debts, he still takes by descent, for the charge does not operate as an alteration of the estate.²⁰ Corporations are excepted out of the English statute of wills; and the object of the law was to prevent property from being locked up in perpetuity, and also to prevent languishing, and dying persons, froth being imposed upon by false notions of merit or duty, to give away their estates from their families. In times of popery, said Lord Hardwicke, the clergy got nearly half the real property of the kingdom into their hands, and he wondered they had not got the whole.²¹ But, under the statute of 43 Elizabeth, commonly called the statute of charitable uses, a devise to a corporation for a charitable use is valid.²² The New York Revised Statutes²³ have turned the simple exception in the English, and in the former statute of New York, into an express prohibition, by declaring, that no devise to a corporation shall be valid, unless the corporation be expressly authorized to take by devise. There was, however, the same construction of the pre-existing statute;²⁴ and though the English statute of charitable uses has not been re-enacted either in New York, New Jersey, Pennsylvania, or Maryland, nor probably in any of the United States; the better opinion, in point of authority, would, however, seem to be, that a devise of a charity, not directly to a corporation, but in trust for a charitable corporation, would be good. This is on the principle that a court of equity, independent of statute, and, upon the doctrine of the common law, has jurisdiction over bequests and devises to charitable uses; and will enforce them, provided the objects be sufficiently definite, so as to shut out all arbitrary discretion resting upon the doctrine of cypress.²⁵

Witnesses to a will are rendered incapable of taking any beneficial interest under it, except it be creditors whose debts, by the will, are made a charge on the real estate. This was by the statute of 25 Geo. II. and it has probably been generally adopted in the United States as a salutary provision. The English statute was the consequence of the decision of the K. B. in Holdfast v. Dowsing,²⁶ which established, after three several arguments at the bar, that whoever took any interest under a will was an incompetent witness to prove it. This determination, says Sir William Blackstone,²⁷ threatened to shake most of the titles in the kingdom that depended on devises by will. The statute has been recently re-enacted in New York, with some qualifications.²⁸ The restoration of the competency of subscribing witnesses, by declaring their beneficial interest under the will void, put an end to a greatly litigated question, which arose in the time of Lord Mansfield. The question was, whether a witness was competent to prove a will, who was interested when he subscribed his name, and whose interest had been discharged when he was called on to testify. Lord Mansfield²⁹ held it to be sufficient that the competency, or disinterested character of the witness, existed when called as a witness. This decision was opposed with great ingenuity and eloquence by Lord Camden,³⁰ though the majority of the court over which he presided followed, and very reasonably, the decision of the K. B., and which was founded upon a proposition which would seem to be too plain for discussion.

(3.) Of things devisable.

It is the settled rule of the English law, that the testator must be seized of the lands devised at the time of making the will. The devise is in the nature of a conveyance, or an appointment of a particular estate, and therefore lands, purchased after the execution of the will, do not pass by it. The testator must likewise continue seized at the time of his death.³¹ In Goodright v. Forester,³² it was held that a right of entry was not devisable. It was not a right assignable at common law, and it did not fall within the words of the statute of wills; of 32 Hen. VIII. This decision was affirmed in the Exchequer Chamber, but upon other grounds; and Chief Justice Mansfield intimated, that a right that was descendible by inheritance ought to be devisable. It had been previously decided, and on much more enlarged and liberal grounds, in Jones v. Roe,³³ that executory devises, and all possibilities coupled with an interest, were devisable. But a right to enter for a condition broken, or under the warranty annexed to an exchange, is not devisable; nor is the benefit of a condition, unless it be annexed to a reversion.³⁴ The interest under a contingent remainder, or executory devise, or future or springing use, is devisable. All contingent possible estates are devisable, for there is an interest. But the mere possibility of an expectant heir is not devisable, for that is not within the principle. So, if a settlement be made on the survivor of A., B., and C., neither of them can devise the possibility. The person who is to take is not ascertained.³⁵

The comprehensive views of the right of testamentary disposition, contained in the case of Jones v. Roe, have, I prime, been generally adopted in this country. The statute of New York of 1787, gave the power of devise to persons seized of estates of inheritance in lands, rents, and other hereditaments, in possession, remainder, or reversion. The subsequent provisions of the statute law dropped the word seized, and gave the power of devising to persons having estates of inheritance; and in Jackson v. Varick,³⁶ it was held, after much discussion, that a right of entry in land was devisable, though, at the time of the devise, and of the testator’s death, the land was held adversely. Such a right would pass by descent, and there were no reasons of policy to create a distinction in this respect between descent and devise; and though there was no substantial difference between the New York and the English statutes of wills, the former was rather more comprehensive in terms.

The English rule requiring the testator to be actually seized of the lands devised at the time of making the will, and to continue seized at the time of his death, continued to be the law of New York, down to the recent revision of the statute law.³⁷ There is the same language in the statute law of New Hampshire, Vermont, Massachusetts, and Rhode Island, and probably in other states. The general rule of the English law was admitted, in Maine, in the case of Carter v. Thomas.³⁸ The devise under the English law is a species of conveyance, and that is the reason that the devise operates only upon such real estate as the testator owned, and was seized of, at the time of making the will.³⁹ An auxiliary consideration may be founded on the interest which the law always takes in heirs; and the rule is received in Massachusetts as an explicit and inflexible rule of law.⁴⁰ The New York Revised Statutes have altered the language of the law, and put all debatable questions to rest, and made the devises prospective, by declaring that every estate and interest descendible to heirs may be devised, and that every will made in express terms of all the real estate, or in any other terms denoting the testator’s intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death.⁴¹ The law in Pennsylvania and Virginia is the same as that now in New York as to rights of entry, which are devisable even though there be an adverse possession or disseizin; and in Virginia the will will extend prospectively, and carry all the testator’s lands existing at his death, if so evidently intended.⁴² This is also understood to be the law in Kentucky.⁴³ We have, therefore, in some parts, at least, of the United States, this settled test of a devisable interest, that it is every interest in land that is descendible. In England, the more recent test, is a possibility coupled with an interest; and under either rule the law of devise is of a sufficiently comprehensive operation over the real estate. It is probable that devises receive a construction in every part of the United States, as extended as that in England.

A joint-tenant has not an interest which is devisable. The reason given by Lord Coke is, that the surviving jointtenant has an interest, which first attaches at the death of the joint-tenant making the will; and he insists, that there is priority of time in an instant; and Mr. Butler refers to another case, in which that subtlety was applied.⁴⁴ A better reason than this refinement is, that the old law favored joint-tenancy; and the survivor claims under the first feoffor, which is a title paramount to that of the devisee; and a devise is not permitted to sever the joint-tenancy.

(4.) The execution of the will.

The general provision on this subject is, that the will of real estate must be in writing, and subscribed by the testator, or acknowledged by him in the presence of at least two witnesses, who are to subscribe their names as witnesses. The regulations in the several states, differ in some unessential points; but generally they have adopted the directions given by the English statutes of frauds, of 29 Charles II. By the New York Revised Statutes,⁴⁵ the testator is to subscribe the will at the end of it, in the presence of at least two witnesses, who are to write their places of residence opposite their names, under the penalty of fifty dollars; but the omission to do it will not affect the validity and efficiency of their attestation. In Vermont, the will is required to be sealed; but this is peculiar to that state. Three witnesses, as in the statute of frauds, are required, in Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Maryland, South Carolina, Georgia, Alabama, and Mississippi. Two witnesses only are requisite, in New York, New Jersey, Delaware, Virginia, Ohio, Illinois, Indiana, Missouri, Tennessee, North Carolina, and Kentucky. In some of the states, the provision as to attestation is more special. In Pennsylvania, a devise of lands in writing will be good, without any subscribing witnesses, provided the authenticity of it can be proved by two witnesses. So, in Virginia, two subscribing witnesses do not seem to be indispensable, provided the will has been wholly written out, and signed by the testator. In North Carolina and Tennessee, a will of lands may be good, under special circumstances, without any subscribing witnesses.⁴⁶

The English statute of frauds required the will to be signed by the devisor, and to be attested and subscribed by the witnesses, in his presence; and this direction has been extensively followed in the statute laws of this country, and particularly in New York, down to the recent revision of its statute law. The revised statutes have so far altered the former law, as to require the signature of the testator, and of the witnesses, to be at the end of the wall; and the testator, when he signs or acknowledges the will, is to declare the instrument to be his last will; and he is to subscribe or acknowledge the will in the presence of each witness, and the witnesses are to subscribe their names at the request of the testator. The statute drops the direction that the witnesses are to subscribe in the presence of the testator.⁴⁷

The English courts, from a disposition to favor wills, departed from the strict construction and obvious meaning of the statute of frauds, and opened a door to very extensive litigation. It was held to be sufficient that the testator wrote his name at the top of the will, by way of recital, and his name, so inserted, was deemed signing the will, within the purview of the statute. This was the decision in Lemayne v. Stanley.⁴⁸ The doctrine of a constructive presence of the testator, has been carried very far; and it has been decided, that if the witnesses were within view, and where the testator might, or had the capacity to see them, with some little effort, if he had the desire, though in reality he did not, they were to be deemed subscribing witnesses in his presence.⁴⁹ It was further held, that if the testator produced to the witnesses a will already signed, and acknowledged the signature in their presence, it was a sufficient compliance with the statute.⁵⁰ Nor is it held necessary that the witnesses should attest in the presence of each other, or that they should attest every page or sheet, or that they should know the contents, or that each page should be particularly shown to them.⁵¹ It is necessary, however, that the witnesses should riot only be in the testator’s presence, but that the testator should have mental knowledge of the fact; and in Right v. Price,⁵² where the witnesses attested the will while the testator was corporally present, but in a state of insensibility, it was held to be a void attestation. It is further settled, that the subscribing witnesses need not attest at one time, nor all together. The statute of frauds required, that the witnesses should attest in the presence of the testator; but it did not say that they should attest in the presence of each other, and, therefore, it is not required. They may attest separately, and at different times.⁵³ It is to be presumed, that the English rules of construction of the statute of frauds, in the execution of the will, apply in those states which have followed the language of the statute; but, in New York, the alterations which have been mentioned, have rendered some of these decisions inapplicable.

At common law, a will of chattels was good without writing.⁵⁴ In ignorant ages, there was no other way of making a will but by words or signs. But, by the time of Henry VIII., and especially in the ages of Elizabeth and James, letters had become so generally cultivated, and reading and writing so widely diffused, that verbal, unwritten, or nuncupative wills, were confined to extreme cases, and held to be justified only upon the plea of necessity.⁵⁵ They were found to be liable to great frauds and abuses; and a case of frightful perjury in setting up a nuncupative will,⁵⁶ gave rise to the statute of frauds of 29 Charles II. ch. 3., which enacted, that no nuncupative will should be good, where the estate bequeathed exceeded thirty pounds, unless proved by three witnesses, present at the making of it, and specially required to bear witness; or unless it was made in the testator’s last sickness, and be reduced to writing within six days after the testator’s death. This regulation has been incorporated into the statute law of this country; but even these legislative precautions were insufficient to prevent the grossest frauds and perjury, in the introduction of nuncupative wills.⁵⁷ And, as a further and more effectual remedy, the New York Revised Statutes⁵⁸ have declared, that no nuncupative, or unwritten will, shall be valid, unless made by a soldier while in actual military service, or by a mariner while at sea; and every will of real or personal property, must be equally subscribed by the testator, or acknowledged by him in the presence of at least two attesting witnesses. Lord Loughborough had long ago perceived the importance of such a wise provision, and had expressed a wish that wills of real and personal estates were placed under the same restrictions.⁵⁹ It is now required, in the English ecclesiastical courts, that a nuncupative will be proved by evidence more strict and stringent than that applicable to a written will, even in addition to all the requisites prescribed by the statute of frauds.⁶⁰

The law of Louisiana, in respect to last wills, is peculiar. Wills, under the code of that state, are of three kinds, nuncupative or open, mystic or sealed, and holographic. They are all to be in writing. The first, or nuncupative testament, is to be made by a public act before a notary, in the presence of three, or five witnesses, according to circumstances, and to be signed by the testator and witnesses; or it may be executed by his private signature, in the presence of three, or five, or seven witnesses, according to circumstances, and they are to subscribe it. The second, or mystic testament, is to be signed by the testator, and sealed up, and presented to a notary, and seven witnesses, with a declaration that it is his will, and the notary and witnesses are to subscribe the superscription. The third, or holographic testament, is one entirely written, and signed by the testator, and subject to no other form, and may be made out of the state. No woman can make a will, and no person can be a witness who takes under the will, except it be a mystic testament. These forms are not requisite in testaments of certain descriptions of people made abroad. Children cannot be disinherited but for one of ten causes, which are enumerated, and all of which relate to filial disobedience, or atrocity, in relation to parents. Among those acts are cruelty to the parent, or an attempt on his life, or a refusal to ransom him from captivity, or to become his security when in prison.⁶¹ There is a provision made for cases in which the testator, or witnesses, are too illiterate to write their names; and the regulations in general, are complex and singular, and, I should think, not well adapted to the judgment and taste of the people of the other states in the Union, who have been accustomed to the more simple provisions of the English law.

A will duly made according to law, is, in its nature, ambulatory during the testator’s life, and can be revoked at his pleasure.⁶² But to prevent the admission of loose and uncertain testimony, countervailing the operation of an instrument made with the formalities prescribed, it is provided that the revocation must be by another instrument executed in the same manner; or else by burning, canceling, tearing, or obliterating the same by the testator himself, or in his presence, and by his direction. This is the language of the English statute of frauds, and of the statute law in every part of the United States.⁶³

A will may be revoked by implication, or inference of law, and these revocations are not within the purview of the statute, and they have given rise to some of the most difficult and interesting discussions existing, on the subject of wills. They are founded upon the reasonable presumption of an alteration of the testator’s mind, arising from circumstances since the making of the will, producing a change in his previous obligations and duties. The case stated by Cicero,⁶⁴ is often alluded to, in which a father, on the report of the death of his son, who was then abroad, altered his testament, and appointed another person to be his heir. The son returned after the father’s death, and the centumviri restored the inheritance to him. There is a case mentioned in the Pandects to the same effect;⁶⁵ and it was the general doctrine of the Roman law, that the subsequent birth of a child, unnoticed in the will, annulled it. This is the rule in those countries which have generally adopted the civil law, Testamenta rumpiuntur agnatione posthumi;⁶⁶ and there is not, perhaps, any code of civilized jurisprudence, in which this doctrine of implied revocation does not exist, and apply, when the occurrence of new social relations and moral duties raises a necessary presumption of a change of intention in the testator. It is a settled rule in the English law, that marriage, and the birth of a child subsequent to the execution of the will, are a revocation in law of a will of real as well as of personal estate, provided the wife and child were wholly unprovided for; and there was an entire disposition of the whole estate to their exclusion. This principle of law is incontrovertibly established, though it is said to have been no part of the ancient jurisprudence of England; and the first case that recognized the rule that the subsequent birth of a child was a revocation of a will of personal property, was decided by the court of delegates, upon appeal, in the reign of Charles II., and it was grounded upon the law of the Civilians.⁶⁷ The rule was next applied in the case of Lugg v. Lugg;⁶⁸ and it was shown by Dr. Hay, in Shepherd v. Shepherd,⁶⁹ to have been continued, down to 1770, as the uncontradicted and settled law of doctors commons, that a subsequent marriage, and a child, amounted to a revocation of a will, but that one of these events, without the concurrence of the other, was not sufficient.

The rule was applied in chancery to a devise of real estate in Brown v. Thompson,⁷⁰ but it was received with doubt and hesitation by Lord Hardwicke, and Lord Northington.⁷¹

The distinction between a will of real and personal estate, could not well be supported; and Lord Mansfield declared, that he saw no ground for a distinction.⁷² The great point was finally and solemnly settled, in 1771, by the Court of Exchequer, in Christopher v. Christopher,⁷³ that marriage and a child, were a revocation of a will of land. The Court of K. B. have since decided,⁷⁴ after great deliberation, that marriage, and the birth of a posthumous child, were an implied revocation of a will of real estate.

It is generally agreed, that the implied revocation by a subsequent marriage, and a child, being founded on the presumption of intention, may be rebutted by parol evidence. This was so held by the K. B. in Brady v. Cubitt,⁷⁵ but the rule was subsequently questioned,⁷⁶ and there has been great difficulty in prescribing the extent of the admission of circumstances which would go to rebut. the presumption of a revocation. The Court of K. B., in Kenebel v. Scraften,⁷⁷ held, that marriage, and a child, were a revocation of a will, when the wife and children were wholly unprovided for, and there was an entire disposition of the whole estate. But whether the revocation could be rebutted by parol proof of subsequent declarations of the testator, or other extrinsic circumstances, though there was no provision in the will for those near relatives, was a question on which the court gave no opinion. If the wife and children be provided for by a settlement, it is now understood to be the rule, that marriage, and a child, will not revoke a will; and this case forms an exception to the general rule.⁷⁸

The English law on this subject was reviewed in this state in the case of Brush v. Wilkins;⁷⁹ and it was adjudged to be the law in New York, founded on those decisions, that subsequent marriage, and a child, were an implied revocation of a will, either of real or personal estate, and that such presumptive revocation might be rebutted by circumstances. But the better opinion is, that under the English law there must be the concurrence of a subsequent marriage, and a subsequent child, to work a revocation of a will; and that the mere subsequent birth of children, unaccompanied by other circumstances, would not amount to a presumed revocation. This was the rule laid down by Sir George Hay in Shepherd v. Shepherd,⁸⁰ and by the Court of K. B. in White v. Barford.⁸¹ Sir John Nicholl, in Johnston v. Johnston,⁸² pressed very far, and very forcibly, the more relaxed doctrine, that it was not an essential ingredient in these implied revocations, that marriage, and a child, should both occur to create them; and he held, that a birth of a child, when accompanied with other circumstances, leaving no doubt of the testator’s intention, would be sufficient to revoke the will of a married man. The case in which he pressed the rule to this extent, was one that contained so much justice and persuasive equity in favor of the revocation, that it must have been difficult for any court, with just and lively moral perceptions, to resist his conclusion. He placed the doctrine of implied revocation, not where Lord Kenyon had placed it, on any tacit condition annexed to the will, but on the higher and firmer ground, where Lord Mansfield, and, indeed, the civil law, had placed it-on a presumed alteration of intention, arising from the occurrence of new moral duties, which, in every age, and in almost every breast, have swayed the human affections and conduct. It was doubted, however, in the case of Brush v. Wilkins, whether Sir John Nicholl had not carried this point of revocation further than the English law would warrant, and which had never adopted the notion of the inofficiosum testamentum of the civil law. In a subsequent case,⁸³ Sir John Nicholl seems to have regained the former track of the law, and he lays down the general doctrine, that a will is presumptively revoked by marriage and issue, and that the presumption may be rebutted by unequivocal evidence of an intention that the will should operate, notwithstanding those subsequent events.

In this country we have much statute regulation on the subject. There is no doubt that the testator may, if he pleases, devise all his estate to strangers, and disinherit his children. This is the English law, and the law in all the states, with the exception of Louisiana. Children are deemed to have sufficient security in the natural affection of parents, that this unlimited power of disposition will not be abused. If, however, the testator has not given the estate to a competent devisee, the heir takes, notwithstanding the testator may have clearly declared his intention to disinherit him. The estate must descend to the heirs, if it be not legally vested elsewhere.⁸⁴ This is in conformity to the long established rule, that in devises to take place at some distant time, and no particular estate is expressly created in the mean time, the fee descends to the heir. But by the statute laws of the states of Maine, Vermont, New Hampshire, Massachusetts, Connecticut, New York,⁸⁵ Pennsylvania, Delaware, Ohio, and Alabama, a posthumous child, and in all of those states except Delaware, and Alabama, children born after the making of the will, and in the lifetime of the father, will inherit in like manner as if he had died intestate, unless some provision be made for them in the will, or otherwise, or they be particularly noticed in the will.⁸⁶ The statute law in Maine, New Hampshire, Massachusetts, and Rhode Island, goes further, and applies the same relief to all children, and their legal representatives, who have no provision made for then} by will, and who have not had their advancement in their parent’s life. In South Carolina, the interference with the will applies to posthumous children; and it is likewise the law, that marriage, and a child, work a revocation of the will. In Virginia, and Kentucky, a child born after the will, if the testator had no children before, is a revocation. unless such child dies unmarried, or an infant. If he had children before, after-born children, unprovided for, work a revocation pro tanto. In the states of Maine, Massachusetts, Connecticut, New York, Maryland, and, probably, in other states, if the devisee dies in the lifetime of the testator, his lineal descendants are entitled to his share. This is confined, in Connecticut, to a child, or grandchild; in Massachusetts and Maine, to them, or other relations; and, in New York, to children, or other descendants. The rule in Maryland goes further, and, by statute, no devise or bequest fails by reason of the death of the devisee, or legatee, before the testator; and it takes effect in like manner as if they had survived the testator.⁸⁷

By the New York Revised Statutes,⁸⁸ if the will disposes of the whole estate, and the testator afterwards marries, and has issue born in his lifetime, or after his death, and the wife or issue be living at his death,⁸⁹ the will is deemed to be revoked, unless the issue be provided for by the will, or by a settlement, or unless the will shows an intention not to make any provision. No other evidence to rebut the presumption of such revocation is to be received. This provision is a declaration of the law of New York, as declared in Brush v. Wilkins, with the additional provision of prescribing the exact extent of the proof which is to rebut the presumption of a revocation, and thereby relieving the courts from all difficulty on that embarrassing point.

The will of a feme sole is revoked by her marriage. This is an old and settled rule of law; and the reason of it is, that the marriage destroys the ambulatory nature of the will, and leaves it no longer subject to the wife’s control. It is against the nature of a will, to be absolute during the testator’s life, and therefore it is revoked in judgment of law by the marriage.⁹⁰ If the wife survives her husband, the will, according to the opinion of Sergeant Manwood,⁹¹ revives and takes effect equally as if she had continued a feme sole. But the strong language of the judges in the modern cases, in which they declare that the will becomes revoked and void by the marriage;⁹² would seem to bar the conclusion of the learned sergeant; and Mr. Roper, in his laborious and accurate Treatise on the law of Property, in relation to husband and wife,⁹³ assigns very good reasons why the will cannot be deemed to have revived by the death of the husband. The provision in the New York Revised Statutes,⁹⁴ declaring that the will of a married woman shall be deemed revoked by a subsequent marriage, effectually puts an end to the question under that statute. A second will is a revocation of a former one, provided it contains words expressly revoking it, or makes a different and incompatible disposition of the property. Unless it be found to have contained one or the other, it is no revocation of a former will.⁹⁵ Any alteration of the estate or interest of the testator in the lands devised, by the act of the testator, is held to be an implied revocation of the will, on the ground, principally, of its being evidence of an alteration of the testator’s mind. A sale of the estate devised, operates, of course, as a revocation; for the testator must die while owner of the land, or the will cannot have effect upon it. A valid agreement, or covenant to convey lands, which equity will specifically enforce, will also operate in equity as a revocation of a previous devise of the same. It is as much a revocation of the will in equity, as a legal conveyance of the land would be at law; for the estate, from the time of the contract, is considered as the real estate of the vendee.⁹⁶

Not only contracts to convey, but inoperative conveyances, will amount to a revocation of a devise to the extent of the property intended to be affected, if there be evidence of an intention to convey, and thereby to revoke the will.⁹⁷ A bargain and sale without enrolment, feoffment without livery of seizin, a conveyance upon a consideration which happened to fail, or a disability in the grantee to take, have all been admitted to amount to a revocation, because so intended.⁹⁸ If, however, the testator substitutes a new disposition of the land, and intends to revoke the land by means of that substitution, and to make way for it, and to give it effect, and not otherwise, in that case, if the instrument cannot have that effect, and the substitution fails, there is no revocation.⁹⁹ It is further the acknowledged, but very strict and technical rule of law, that if the testator conveys away the estate, and then takes it back by the same instrument, or by a declaration of uses, it is a revocation, because he once parted with the estate. Either an intention to revoke, or an alteration of the estate without such an intention, will work a revocation.¹⁰⁰ The law requires, that the same interest which the testator had when he made the will, should continue to be the same interest, and remain unaltered to his death. The least alteration in that interest is a revocation. If the testator levies a fine, or enfeoffs a stranger to his own use, it is a revocation, though the testator be in of his old use.¹⁰¹ Lord Hardwicke, in Parsons v. Freeman,¹⁰² admitted, that these were prodigiously strong instances of the severity of the rule; and Lord Mansfield observed, that the Earl of Lincoln’s case, decided upon the same principle, was shocking, and that some overstrained resolutions of the courts upon constructive revocations, contrary to the real intention of the testator, had brought scandal upon the law.¹⁰³ The unreasonableness of the rule, holding an act to be a revocation, which was not so intended, and even when the intention was directly the contrary, has been often complained of, and the English courts have, latterly, shown a strong disposition not to assume the doctrine, unless there was some express authority for it.¹⁰⁴

The doctrine, hard and unreasonable as it appears in some of its excressencies on this subject, and powerfully as it has been repeatedly assailed by great weight of argument, has, nevertheless, stood its ground immovably, on the strength of authority, as if it had been one of the essential landmarks of property. The cases have been investigated and discussed with the utmost research and ability by the courts of law and equity, and the principle again and again recognized and confirmed, that by a conveyance of the estate devised, the will was revoked, because the estate was altered, though the testator took it back by the same instrument, or by a declaration of uses.¹⁰⁵ The revocation is upon the technical ground, that the estate has been altered, or new modeled, since the execution of the will. The rule has been carried so far, that if the testator suffered a recovery, for the very purpose of confirming the will, it was still a revocation, for there was not a continuance of the same unaltered interest. There is an exception to the rule in the case of mortgages, and charges on the estate, which are only a revocation in equity pro tanto, or quoad the special purpose, and they are taken out of the general rule on the fact of being securities only.¹⁰⁶ These doctrines of the English cases have been reviewed in this country, and assumed to be binding, as part of the settled jurisprudence of the land. It was decided, that a contract for a sale of the land, was a revocation of the devise, even though the contract should afterwards be rescinded, and the testator restored to his former title. Legal and equitable estates, as to these implied revocations, were deemed to stand on the same ground.¹⁰⁷ It has also been held;¹⁰⁸ that if the testator, after devising a mortgage, forecloses it, or takes a release of the equity of redemption, it is a revocation of the devise. It is equally a revocation, if he cancelled the mortgage, and took an absolute deed, for it was an alteration of the interest, and a new purchase. Some of the excesses to which the English doctrine has been carried, have not been acquiesced in, but the essential rules have been taken to be law.

A codicil is an addition, or supplement to a will, and must be executed with the same solemnity. It is no revocation of a will, except in the precise degree in which it is inconsistent with it, unless there be words of revocation.¹⁰⁹ If the first will be not actually cancelled, or destroyed, or expressly revoked, on making a second, and the second will be afterwards cancelled, the first will is said to be revived.¹¹⁰ But the first will is not revived, if the testator makes a second, and actually cancels the first by an absolute act rendering it void, and then cancels the second will. It will, in such a case, require a republication to restore the first will.¹¹¹ The mere act of cancelling a will does not amount to any thing, unless it be done animo revocandi. The intention is an inference to be drawn from circumstances, and the fact of cancelling may be, in many cases, an equivocal act. If, however, the will be found cancelled, the law infers an intentional revocation; for it is prima facie evidence of it, and the inference stands good until it be rebutted.¹¹² Cancelling, in the slightest degree, with a declared intent, will be a sufficient revocation; and, therefore, throwing a will on the fire, with an intent to burn it, though it be only slightly singed, and escapes destruction, is sufficient evidence of the intention to revoke.¹¹³ An obliteration of part of a will, is only a revocation pro tanto.¹¹⁴ The New York Revised Statutese¹¹⁵ have dispensed with all refinements on this point. In no case does the destruction, or revocation of a second will, revive the first, unless the intention to revive it be declared. These statutes. have essentially changed the law on the subject of these constructive complained, and placed it on juster, and more rational grounds. It is declared, that no bond, agreement, or covenant, made by a testator for a valuable consideration, to convey any property previously devised or bequeathed, shall be deemed a revocation of the will, either at law or in equity; but the property passes by the will, subject to the same remedies for a specific performance, against the devisee or legatee, as might be had against the heir or next of kin, if the property had descended. So, a charge, or encumbrance, upon any estate, for securing the payment of money, or the performance of covenants, shall not be deemed a revocation of any will previously executed, but the devise or legacy takes effect subject to the charge or encumbrance. Nor shall any conveyance, settlement, deed, or other act of the testator, by which his estate or interest in property previously devised or bequeathed, shall be altered, but not wholly divested, be deemed a revocation; but the same estate or interest shall pass by the will, which would otherwise descend, unless, in the instrument making the alteration, the intention thereby to revoke shall be declared. If, however, the provisions of the instrument by which such alteration is made, be wholly inconsistent with the terms and nature of the previous will, the instrument shall operate as a revocation, unless the provisions therein depend on a condition or contingency, and the same has failed.¹¹⁶

The simplicity and good sense of these amendments recommend them strongly to our judgment; and they relieve the law from a number of technical rules, which are overwhelmed in a labyrinth of cases, and when detected and defined, they are not entirely free from the imputation of harshness and absurdity.

An estate vests, under a devise, on the death of the testator, before entry.¹¹⁷ But a devisee is not bound to accept of a devise to him nolens volens, and he may renounce the gift, by which act the estate will descend to the heir, or pass over in some other direction under the will. The disclaimer and renunciation must be by some unequivocal act, and it is left undecided whether a verbal disclaimer will be sufficient. A disclaimer by deed is sufficient; and some judges have held, that it may be by a verbal renunciation. Perhaps the case will be governed by circumstances.¹¹⁸

(5.) Of the construction of wills.

It will not be consistent with the plan of this work, to do more than state the leading principles which have been established and applied to the construction of wills. The attempt to examine cases at large on this subject, would be impracticable, from the incalculable number of them; and though we are not to disregard the authority of decisions, even as to the interpretation of wills, yet it is certain, that the construction of them is so much governed by the language, arrangement, and circumstances of each particular instrument, which is usually very unskillfully, and very incoherently drawn, that adjudged cases become of less authority, and are of more hazardous application, than decisions upon any other branch of the law.

The intention of the testator is the first and great object of inquiry; and, to this object, technical rules are, to a certain extent, made subservient. The intention of the testator, to be collected from the whole will, is to govern, provided it be not unlawful, or inconsistent with the rules of law. The control which is given to the intention by the rules of law, is to be understood to apply to such general regulations in. respect to the estate, as the law will not permit; as, for: instance, to create an estate tail, to establish a perpetuity, to endow a corporation with real estate, or to annex a condition that the devisee shall not alien. To allow the testator to interfere with the established rules of law, would be to permit every man to make a law for himself, and disturb the metes and bounds of property.

It does not require the word heirs, to convey a fee, but other words denoting an intention to pass the whole interest of the testator, as a devise of all my estate, all my interest, all my property, my whole remainder, all I am worth or own, all my right, all my title, or all I shall die possessed of, and many other expressions of the like import, will carry an estate of inheritance, if there be nothing in the other parts of the will to limit or control the operation of the words.¹¹⁹ So, if an estate be given to a person generally, or indefinitely, with a power of disposition, it carries a fee, unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case, the express limitation for life will control the operation of the power, and prevent it from enlarging the estate to a fee.¹²⁰ If it distinctly appears to be the intention to give a greater estate than one for life, as a devise to B. for ever, or to him and his assigns for ever, or to him and his blood, or to him and his successors, such expressions may create a fee in the devisee.¹²¹ So, a devise of the rents and profits of land, is a devise of the land itself.¹²²

In the construction of devises, the intention of the testator is admitted to be the pole-star by which the courts must steer; yet that intention is liable to be very much controlled by the application of technical rules, and the superior force of technical expressions. If the testator devises land to another generally, as a devise of lot No. 1, to B., without using words of limitation, or any expression which denotes anything more than a description of the land devised, and if there be nothing in the will by which a fee by implication may be inferred, the devisee takes only an estate for life. There is an almost endless series of English authorities to this point, and the rule has been recognized in this country as of settled and binding obligation.¹²³

This rule has been broken in upon in South Carolina,¹²⁴ and probably in other states, in favor of the intention. It was set aside in Massachusetts, in the case of a devise of wild or uncultivated land. ¹²⁵ The New York Revised Statutes¹²⁶ have swept away all the established rules of construction of wills, in respect to the quantity of interest conveyed. It is declared, that every devise of real estate, or any interest therein, shall pass all the estate or interest of the testator, sinless the intent to pass a less estate or interest, shall appear by express terms, or be necessarily implied. And if the will, by any terms, denotes the testator’s intent to devise all his real property, the will shall be construed to pass all the real estate which the testator was entitled to devise at the time of his death. These provisions relieve the courts in New York from the study of a vast collection of cases, and from yielding obedience any longer to the authority of many ancient and settled rules, which were difficult to shake, and dangerous to remove. Their tendency is to give increased certainty to the operation of a devise.¹²⁷ But the language of the provision making every devise of real estate, or any interest therein, in all events, and in every case, pass the whole estate or interest of the testator, unless an intent to pass a less estate appears by express terms, or by necessary implication, would seem to be rather too imperative, and not to leave quite room enough for the reasonable construction of the intention of the testator not to pass a fee. It will still be a question, in every case, what words amount to a devise of the estate, for the courts are frequently obliged to say, voluit sed non dixit.

In most of the other states, the rules of the English law continue to govern, and, even in New York, a series of judicial precedents, will gradually be formed upon the construction of the statutes, and they will become guides for the government of analogous cases. It is most desirable that there should be some fixed and stable rules even for the interpretation of wills, and whether those rules be founded upon statute, or upon a series of judicial decisions, the beneficial result is the same, provided there be equal certainty and stability in the rule. There has been a strong disposition frequently discovered in this country, to be relieved from all English adjudications on the subject of wills, and to hold the intention of the testator paramount to technical rules. But the question still occurs, whether the settled rules of construction are not the best means employed to discover the intention. It is certain, that the law will not suffer the intention to be defeated, merely because the testator has not clothed his ideas in technical language. But no enlightened judge will disregard a series of adjudged cases bearing on the point, even as to the construction of wills. Established rules, and an habitual reverence for judicial decisions, tend to avoid the mischiefs of uncertainty in the disposition of property, and the much greater mischief of leaving to the courts the exercise of a fluctuating and arbitrary discretion. The soundest sages of the law, and the solid dictates of wisdom, have recommended and enforced the authority of settled rules in all the dispositions of property, in order to avoid the ebb and flow of the reason and fancy, the passions and prejudices of tribunals. When a particular expression in a will has received a definite meaning by express adjudications, that meaning ought to be adhered to, for the sake of uniformity, and of security in the disposition of landed property.¹²⁸

The general doctrine with respect to the expressions used by the devisor, is, that if they denote only a description of the estate, as a devise of the house A., or the farm B., and no words of limitation be employed, then only an estate for life passes; but if the words denote the quantity of interest which the testator possesses, as all his estate in his house A., then a fee passes.¹²⁹ Another general rule is, that if the testator creates a charge upon the devisee, in respect of the estate devised, as if he devises lands to B. on condition of his paying such a legacy, the devisee takes the estate on that condition, and he will take a fee though there be no words of limitation, on the principle that he might otherwise be a loser. But where the charge is upon the estate, and there are no words of limitation, as a devise to A. of his lands, after the debts and legacies are paid, the devisee takes only an estate for life.¹³⁰ Colyer’s cases¹³¹ settled this principle, and it applies to every case in which the land is charged with a trust which cannot be performed, or in which the will directs an act to be done which cannot be accomplished unless a greater estate than one for life be taken, and it becomes necessary. that the devise be enlarged to a fee. The distinction created by this rule has likewise ceased under the operation of the New York statute which has been mentioned. Introductory words to a will cannot vary the construction, so as to enlarge the estate to a fee, unless there be words in the devise itself sufficient to carry the interest. Such introductory words are like a preamble to a statute, to be used only as a key to disclose the testator’s meaning.¹³² A fee will pass by will by implication of law, as if there be a devise over of land after the death of the wife; the law, in that case, presumes the intention to. be, that the widow shall be tenant for life. So, a devise over to B., on the dying of A. before twenty-one, shows an intention, that if A. attains the age of twenty-one, he should have a fee, and he takes it by implication.¹³³

There is a distinction taken in the English books between a lapsed legacy of personal estate, and a lapsed devise of real estate; and while the former falls into the residuary estate, and passes by the residuary clause, the latter does not pass to the residuary devisee, but descends to the heir at law. The reason given is, that a devise operates only upon land whereof the testator was seized when he made his will; and it is not presumed that he intended to devise, by the residuary clause, a contingency which he could not have foreseen, or to embrace in it lands contained in the lapsed devise.¹³⁴ There is a further distinction between a lapsed and a void devise. In the former case, the devisee dies in the intermediate time between the making of the will and the death of the testator; but, in the latter case, the devise is void from the beginning, as if the devisee be dead when the will was made. The heir takes in the case of the lapsed devise, but the residuary devisee may take in the latter case, if the terms of the residuary clause be sufficiently clear and comprehensive.¹³⁵ This distinction appears to be founded on a presumption (though it would seem to be rather overstrained) of a difference in the views and intention of the testator between the two cases. The subject has been recently discussed in the courts in this country. In Greene v. Dennis,¹³⁶ the devise was held void, because the devisee was incompetent to take; and yet, though the devise was void from the beginning, the heir was preferred to the residuary devisee, on the ground that the testator never intended that the specific devise, which was void, should fall into the residuum. The residuary devise was of “the rest and residue of the estate not therein disposed of.” But where the devise was upon a condition subsequent, and a contingent interest depending upon the failure of that condition, the residuary devisee was held, in Hayden v. Stoughton,¹³⁷ to be entitled to the estate in preference to the heir, because the contingent interest had not been specifically devised, and it was carried along by the residuary devise. The alteration of the law in New York, Virginia, and those other states, making the devise operate upon all the real estate owned by the testator at his death, may produce the effect of destroying the application of some of those distinctions, and give greater consistency and harmony to the testamentary disposition of real and personal estates.¹³⁸

The title by devise closes the view of the law of real property, and with it the present work, which has insensibly extended far beyond my original intention. The system of our municipal law is so vast in its outlines,, and. so infinite in its details, that I have passed by many interesting subjects, to which I have not been able to extend my inquiries. The course of lectures in Columbia College, included an examination of the remedies provided for the recovery of property, and redress of injuries.; and I had prepared and delivered lectures on the history of a suit at: law, according to the English model, including the doctrine of special pleading. But that subject has been laid aside; for, to extend such a discussion beyond the courts of New York was not in my power, and the object of the work is professedly national, and, not local. I have not the means at my command to give any thing approaching to a full and correct view of the practice of the courts in the several states; nor would the value of such a work ‘be worth the effort: The remedies, m every case, have been alluded to, and the principles on which they were founded stated, when we were upon the subject of rights; but the practice in the state courts is exceedingly diversified, and is undergoing constant changes. That of New York in particular has been essentially altered by the late revision of the statute law; and the science of special pleading, (curious, logical, and masterly as it is,) has fallen into very considerable disuse and neglect in almost every part of the country, without the prospect, or perhaps the hopes of revival. The general principles of equity have also been stated in the course of the work, so far as they were applicable to the various subjects which came successively under review; but, for the reasons already mentioned, in reference to suits at law, I have not undertaken to meddle with the remedial branch of equity jurisprudence. The law of crimes and punishments is, no doubt, a very important. part of our legal system, but this is a code that rests in each state upon an exact knowledge of local law; and, since the institution of the penitentiary system, and the almost total abolition of corporal punishment, it has become quite simple in its principles, and concise and uniform in its details. Our criminal codes bear no kind of comparison with the complex and appalling catalogue of crimes and punishments, which, in England, constitutes the basis of the system of the pleas of the crown.

I trust I have already sufficiently discharged my engagements with the public, and I now respectfully submit these volumes to the candor of the profession, though not without being conscious of the imperfection of the plan, and still more so of the manner of the execution.

THE END.