[Ch. 19 authorities under seal, usually known as a "power of attorney." Such an execution of a conveyance by an agent must be distinguished from the cases before referred to, in which the manual signing of the instrument by the hand of another is adopted by the grantor as his own act, this being for all purposes his own signature.

According to some decisions, the signature of a conveyance by an attorney or agent must be in the name of the principal, the form "A. by B." thus being correct, and "B. for A." being incorrect.402 But by the more modern decisions this strictness of view is relaxed, and it is generally regarded as sufficient if it appears from either the signature or from the instrument as a whole that the instrument is the deed, not of the agent, but of the principal;403 and in some states there is a statutory provision to this effect.404 The fact that the name of the agent himself does not appear in the signature does not affect the validity of the execution.405 A conveyance which fails at law, because its execution is by the agent in his own name, instead of in that of his principal, will be sustained in equity as an agreement to convey, and, as such, will be effective, not only between the parties, but as against subsequent purchasers with notice.408

402 Combe's Case, 9 Coke, 75; 2 Kent's Comm. 631; Fowler v. Shearer, 7 Mass. 14; Elwell v. Shaw, 16 Mass. 42, 8 Am. Dec. 126; Stinchfield v. Little, 1 Me. 231, 10 Am. Dec. 65; Carter v. Chaudron, 21 Ala. 72; Stone v. Wood, 7 Cow. (N. Y.) 453, 17 Am. Dec. 529; Morrison v. Bowman, 29 Cal. 337; Clarke's Lessee v. Courtney, 5 Pet. (U. S.) 318, 349; Townsend v. Corning, 23 Wend. (N. Y:) 442.

408 Shanks v. Lancaster, 5 Grat. (Va.) 110, 50 Am. Dec. 108; McClure v. Herring, 70 Mo. 18; Doe d. Tenant v. Roe, 27 Ga. 418; Hale v. Woods, 10 N. H. 471; Magill v. Hinsdale, 6 Conn. 464a; Rogers v. Bracken's Adm'r, 15 Tex. 564; Bigelow v. Livingston, 28 Minn. 57; Heffernan v. Addams, 7 Watts (Pa.) 116.

404 1 Stimson's Am. St. Law, § 1675.

405 Forsyth v. Day, 41 Me. 382; Berkey v. Judd, 22 Minn. 287; Devinney v. Reynolds, 1 Watts & S. (Pa.) 328.

406 Wilkinson v. Getty, 13 Iowa, 157, 81 Am. Dec. 428; Love v.

A married woman has power to transfer her rights in land only in the mode named by statute, and consequently, in the absence of express statutory authority, or a declaration that she may transfer her separate estate as if she were sole, she cannot execute the conveyance by an agent or attorney, and, if so executed, it will, as against her, be void both at law and in equity.40 407

Authority to an agent to execute a conveyance for one involves authority in him to acknowledge the instrument for any of the purposes for which an acknowledgment is nec

Sierra Nevada Lake Water & Min. Co., 32 Cal. 639, 91 Am. Dec. 602; Ramage v. Ramage, 27 S. C. 39; McCaleb v. Pradat, 25 Miss. 257. See Stark v. Starr, 94 U. S. 477.

407 Wilkinson v. Getty, 13 Iowa, 157; Earle's Adm'rs v. Earle, 20 N. J. Law, 347; Dentzel v. Waldie, 30 Cal. 138; Holland v. Moon, 39 Ark. 120; Waddell v. Weaver's Adm'rs, 42 Ala. 293; Randall v. Kreiger, 23 Wall. (U. S.) 137; Mexia v. Oliver, 148 U. S. 664.

408 Robinson v. Mauldin, 11 Ala. 977; Basshor v. Stewart, 54 Md. 376; Bigelow v. Livingston, 28 Minn. 57; Richmond v. Voorhees, 10 Wash. 316. But see Gosselin v. City of Chicago, 103 Ill. 623.

(939)

Any interests in land may be transferred by will, but, apart from specific statutes to that effect, real property not owned by the testator at the time of making the will cannot pass thereunder. Statutes now exist in most, if not all, jurisdictions, allowing one to dispose of real property afterwards to be acquired by him.

Real property disposed of by will passes directly to the devisee, and not to the personal representative, except in a few states, where the statute otherwise provides.

A will must be in writing, signed by the testator, or, in some states, by another in his presence. The will must be attested by witnesses, before whom the testator must acknowledge the instrument or his signature thereto, as the statute may require. The witnesses must be persons competent to testify in regard to the will, and they are usually required to sign their names to the instrument in the testator's presence.

In case a devise fails, owing to the death of a devisee, before the death of the testator, the property included therein passes

by statute, in many states, to the child or issue of such devisee, In many of the states, in the absence of such a statute applicable to the case, the property will pass under a residuary devise.

A will may be revoked by the testator, in whole or in part, by its cancellation or destruction, or by a subsequent will expressly revoking it, or making a different disposition of part or all of the property. The will of a woman is, as a rule, revoked by her marriage, and of a man by his marriage and the birth of issue.

In some states, an earlier will is revived by the revocation of a later will which revoked the former will, and in some states this is the case when there is an intention to that effect. In others, a will once revoked cannot be revived otherwise than by the re-execution thereof.

A will may be republished by its re-execution, or the execu tion of a codicil.

While, before the Norman Conquest, and for a century thereafter, persons were allowed to make post obit gifts of land, to take effect in possession after the death of the donor, the rule was established by the king's court, late in the twelfth century, in favor of the heir, that a transfer of a freehold interest in land, though to take effect only after the death of the transferrer, must be by livery of seisin, and sc any transfer of such an interest, answering to our modern will or devise, became impossible, except in the case of certain lands devisable by local custom.1 Eventually the invention of uses enabled one to devise his land by making a feoffment to uses to be declared by his last will, in which case chancery would enforce the use so declared.2 The power of thus

12 Pollock & Maitland, Hist. Eng. Law, 324-329.

21 Sanders, Uses & Trusts (5th Ed.) 64; Williams, Real Prop (18th Ed.) 167. See ante, § 84.

making a will by the declaration of a use was, however, put an end to by the Statute of Uses, this being in fact one of the purposes of its passage, as recited in the preamble. But the inconvenience of this prohibition of testamentary disposition was so greatly felt that, five years later, the Statute of Wills was passed, by which statute tenants in fee simple were empowered to dispose of all their lands held in socage tenure, and two-thirds of those held by knight service, and, after the change of all tenures into socage tenures, all lands came within the operation of this statute, and were devisable."

A will of real property was in early times, and likewise after the Statute of Wills, regarded as a species of conveyance, to take effect at a future time, that is, on the death of the testator. This theory had important results upon the law of wills of real property, as distinct from wills of personalty. One most important result of this theory was that, since' one could convey only such land as he owned, a will could operate upon such real property only as the testator owned at the time of making the will. And for this reason, if one aliened property covered by his will, and subsequently acquired it by a reconveyance, it did not pass under the will.8

This rule that after-acquired real property does not pass under a will has been changed by statute in most, if not all, jurisdictions. In England the Wills Act provided that a

32 Hen. VIII. c. 1 (A. D. 1540).

Ante, § 13.

See Williams, Real Prop. (18th Ed.) 227; Digby, Hist. Real Prop. c. 8.

• 2 Pollock & Maitland, Hist. Eng. Law, 313; Williams, Real Prop. (18th Ed.) 232.

7 Harwood v. Goodright, 1 Cowp. 87; Brydges v. Chandos, 2 Ves. Jr. 417, 427; Williams, Real Prop. (18th Ed.) 233.

8 Post, § 417.

7 Wm. IV. and 1 Vict. c. 26, §§ 3, 24 (A. D. 1837).