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 incumbrance, 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 incumbrance. 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 Avholly devested, 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."

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.

b

An estate vests, under a devise, on the death of the testator, before entry. 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

a N. Y. Revised Statutes, vol. ii. 64. sec. 45-48.

b Co. Litt. 111. a.

pass 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 circum

stances.a

(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 3 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 unskilfully, 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, of 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

a Townson v. Tickell, 3 Barnw. & Ald. 31. Doe v. Smyth, 6 Barnw. & Cress. 112. To give the devise effect, as against the heir, the N. Y. Revised Statutes, (vol. i. 748. sec. 3.) require the will to be duly proved, and recorded in the surrogate's office, within four years after the testator's death, with the usual exception in case the devisee be under disabilities.

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 interes of the testator, as a devise of all my estate, all my intrest, 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. So, if an estate be given to a person generally, or indefinitely, with a power of disposition, it carries

a Comyn's Dig. tit. Devise, n. 4. Doe v. Morgan, 6 Barnu. & Cress. 512. Sheppard's Touchstone, by Preston, 439. Preston on Estates, vol. ii. 68-173. Mr. Preston has given a very extended citation and discussion of authorities on the construction of wills, as to the quantity of interest devised, and as to the operation of the word estate. His conclusion is, (p. 146.) that the word estate, used in application to real property, will be construed to express either the quantity of interest, or describe the subject of property as the sense in which it is intended to be used, shall appear from the context of the will. It will carry a fee, though it point at a particular house or farm, unless restrained by other expressions; for it will be intended to designate as well the quantity of interest as the locality of the land. (Ibid. p. 130.) The whole of the sixth chapter, in the second volume of Preston on Estates, p. 68. to 288., is a very laborious and complete collection and analysis of cases on the construction of wills, and more especially as to the efficacy of the term estate. If to this we add Cruise's Digest, tit. Devise, chapters 9, 10, 11. 13. we have then a full view of the immense accumulation of English cases on the subject. In the latter work they are very clearly classified and arranged.

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. 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." So, a devise of the rents and profits of land, is a devise of the land itself.c

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 any thing 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 State 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.d

a Jackson v. Coleman, 2 Johns. Rep. 391. Herrick v. Babcock, 12 ibid. 389. Jackson v. Robins, 16 ibid. 587, 588. Case of Flintham, 11 Serg. & Rawle, 16.

b Com. Dig. tit. Devise, n. 4. Preston, ub. sup. Beall v. Holmes, 6 Harr. & Johns. 205.

c Co. Litt 4. b. 8 Co. 95. b. Ch. Rep. 499. 9 Mass. Rep. 372.

199.

2 Ves. & Beame, 68. 1 Johns. Andrews v. Boyd, 5 Greenleaf,

Jackson v. Wells, 9 Johns.

d Denn v. Gaskin, Coup. Rep. 657. Rep. 222. Jackson v. Embler, 14 ibid. 198.

Ferris v. Smith, 17 ibid.

221. Hawley v. Northampton, 8 Mass. Rep. 38. Morrison v. Se

wild

This rule has been broken in upon in South Carolina, and probably in other states, in favour of the intention. It was set aside in Massachusetts, in the case of a devise of wild or uncultivated land. The New-York Revised Stalutes 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, unless 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. But the language of the provision

ple, 6 Binney's Rep. 94. Steele v. Thompson, 14 Serg. & Rawle, 84. Wright v. Denn, 10 Wheat. Rep. 204. Beall v. Holmes, 6 Harr. & Johns. 209, 210.

a Whaley v. Jenkins, 3 Dess. Eq. Rep. 80. Jenkins v. Clement, State Eq. Rep. S. C. 72. Dunlap v. Crawford, 2 McCord's Rep. 171. By statute in South Carolina, of 1824, words of inheritance are declared not to be necessary to pass a fee.

b Sargent v. Towne, 10 Mass. Rep. 303.

c Vol. i. 748. sec. 1. Ibid. vol. ii. 57. sec. 5.

d The suggestion of the want of such a legislative provision, directing a fee to pass, in every case of a devise of land, unless clearly restrained, was made in Beall v. Holmes, 6 Harr. & Johns. 228. by Ch. J. Buchanan, who gave an elaborate and powerful opinion in support of the existing English rule of construction, as being still in Maryland the established law of the land. Since that decision, the law in Maryland has been altered, and, by statute, in 1825, all devises of land without words of perpetuity, pass the whole estate, unless it