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said that if the land devised is reconveyed to the devisor, and the title is in him at the time of his death, it will pass under the will without any formal republication thereof. This was put upon the ground of the statute (2 R. S. 57, § 5) which allows a testator to devise all the real estate of which he is the owner at the time of his death. The statute abolishes the technical rule, that a devise passes only such real estate as the testator was seised of at the time of making the will; but the intention must be expressed to pass the estate, and such intention will be regarded. (Pond v. Bergh, 10 Paige, 140, 149. Arthur v. Arthur, 10 Barb. 9. Ellison v. Miller, 11 id. 332. Knight v. Weatherwax, 7 Paige, 182.) The revised statutes have also provided for the case of post testamentary children, or such children as are born after the making of the will, either in the lifetime of the father or after his death. Having provided for an after-born child in the case of an intestacy, there was an obvious and equal reason for some similar provision in the case of a will. If after the making of his will by the testator, he shall have a child born, either in his lifetime or after his death, and shall die leaving such child so after-born unprovided for by any settlement, and neither provided for, nor in any way mentioned in his will, such child, it is enacted, shall succeed to the same portion of the father's real and personal estate as would have descended or been distributed to such child if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees in proportion to and out of the parts devised and bequeathed to them by such will. (2 R. S. 65, § 49.) The object is to put such child, as far as practicable, in the same situation as if it had been in being when the will was made, and been equally provided for by the testator. The presumption is a fair one, that it shared the regard of the parent equally with the other objects of his bounty, though not provided for by settlement or named in the will. If provision were made for it by settlement, or a specific provision in the will, or if the latter directed that no provision should be made for it, the statute has no application to the case, but leaves it to be governed by the will or settlement.

No distinction whatever is made by the statute, between specific, general, or residuary legatees, or devisees, and none was probably intended. The object was, not to disturb the arrangement which the testator had made in the disposition of his property, among the several objects of his bounty, except so far as to compel each to WILL.-32

contribute ratably, out of that which he would be entitled to according to the will, for the purpose of making up the distributive share of the post testamentary child. All the legacies, therefore, have to abate in proportion to their amount and value, as well the residuary legacy, or one given in lieu of dower, as the specific and general legacies. (Mitchell v. Blain, 5 Paige, 590.)

A partition made amongst tenants in common is not such a change of the subject of the devise as to work a revocation of it. If the tenant in common should devise his undivided moiety, and then make partition either voluntarily, or it be made by order of the court during the lifetime of the testator, the devise would pass the estate in severalty, which, at the making of the will, was held in common. (Risley v. Baltinglass, T. Raymond, 240. Barton v. Croxall, Taml. 164.)

A conveyance, to have the effect of revoking the whole will, must be coextensive with the estate devised. If it be but of a part, it affects the devise, only pro tanto. (Adams v. Winne, 7 Paige, 101. Herrington v. Budd, 5 Denio, 323.) In the last mentioned case it was held that a grant in fee, reserving rent, with a clause of re-entry, is a revocation of a prior devise of the same lands made by the grantor.

The revised statutes have prevented, in certain cases, the lapse of a devise or a legacy-we are treating only of devises. If the testator devises real estate to a child, or a lineal descendant of the testator, and the devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive the testator, the devise does not lapse, but vests in the surviving child or descendant of the devisee, as if such devisee had survived the testator and died intestate. (2 R. S. 66, § 52. Bishop v. Bishop, 4 Hill, 138.)

There was, at one time, a contrariety of opinion as to the effect of the revocation of a subsequent will, in setting up one which had previously been made. The courts of common law were said to favor the revival of the former will, but the ecclesiastical courts either allowed a different presumption, or left it open to be decided by other testimony. The question does not seem to have been settled in this state by any adjudication prior to the revised statutes. By those statutes it is put at rest by declaring that no revocation of a second will shall revive the first will, unless it appears by the terms

of the revocation that it was the intention of the testator to revive and give effect to the first will; or unless after such destruction, cancelling or revocation, he shall duly republish his first will. (2 R. S. 66, § 53.)

A republication of a will is of two kinds, express and constructive. Express republication arises when a testator repeats those ceremonies which are essential to constitute a valid execution, with the avowed design of republishing the will. (1 Jarm. on Wills, 202, Perkins' ed. Will. on Ex'rs, 132.) Constructive republication takes place when a testator, for some other purpose, makes a codicil to his will; in which case the effect of the codicil, if not neutralized by internal evidence of a contrary intention, is to republish the will. (Id. and Van Cortland v. Kip, 1 Hill, 590.) The codicil need not be actually annexed to the will, in order to operate as a republication. When the codicil is so executed as to operate as a republication of the will, both should be read and construed together as one entire instrument. The effect of the codicil which republishes a will is to bring down its language so as to cause it to speak as of the date of the codicil; and this whether the immediate subject of the codicil be real or personal property. (Id.)

The statute above cited has reference only to a republication of a will which has been previously revoked. The object of it was to prevent a revocation from having the effect per se of reviving the first will, unless it should appear by the instrument by which the revocation was effected, that it was the testator's intention to give effect to the former will.

But occasions may arise when the testator may desire to republish a will, which has never been revoked; so that it may speak from the day of such republication. The statute does not prevent such republication, but leaves the matter to be regulated by the general laws on the subject. It may thus be republished by repeating the solemnities attending its first execution, or by a duly attested codicil. (Mooers v. White, 6 John. Ch. 375. Van Cortland v. Kip, supra. Jackson v. Potter, 9 John. 312.) Such codicil may give effect to a devise in the original will which was of the devisee being a necessary subscribing witness. So also if the original will be defectively executed, the effect of the codicil, if properly drawn and attested, whether annexed to the will or not, is to remove those imperfections and give efficacy to the will. (Barnes

void by reason

Robins, 1 Adol. &
Miles v. Boyden, 3

v. Crowe, 1 Ves. jun. 486, 497. Atherton v. Ellis, 423. Havens v. Foster, 14 Pick. 543. id. 216. Pigott v. Waller, 7 Ves. 98.) Even though the codicil relates only to personal property, and expresses no intention as to republication of the will, it is a republication of a will devising real estate. (Id.)

But though such be the ordinary effect of a codicil, yet it may be so expressed as to have only the effect of a republication, giving no different operation to the several instruments (if there be more than one codicil) from that which they would have if they stood upon their original execution, and therefore not make the will and previous codicils speak as from the date of the republication, for the purpose of reviving legacies which have been adeemed or satisfied. (Langdon v. Astor's Ex'rs, 2 Smith, 9.)

SECTION VI.

Of Void Devises, and the Effect thereof.

There are several cases in which devises are absolutely void. By the common law, if the testator makes the same disposition of his estate as the law would have done if he had been silent, the will being unnecessary, is void. Therefore, if the testator devises his real estate in fee to his heirs at law, the devise is a nullity, and the heir takes under the law of descent, which is the better title. This rule has been changed in England, so as to require the devisees to take under the will and not by descent, (3 and 4 Wm. 4, ch. 106,) but it remains still in force in this state. A devise which we sometimes see in wills, that the widow of the testator shall have her dower, is void; for she takes her dower by the common law, and it is not in the power of the husband to prevent it. If, however, the testator devises a life estate to his wife in a part of his lands and gives the rest to his children, the widow will take the devise and her dower besides; the first under the will and the last by the common law. (Jackson v. Churchill, 7 Cowen, 287.) We have seen, elsewhere, when the widow is put to her election between a devise and her dower. (See ante, page 69.)

We have seen in a previous section that no devise of real estate for the benefit of any person and his successor or successors in any ecclesiastical office, shall vest any estate or interest in such person or his successor. The title in such a case, on the death of the tes

tator, does not descend to the heirs of the devisor, but vests in the people of the state of New York, in the same manner and with the same effect as if the person holding the legal title thereto had died. intestate, and without heirs capable of inheriting such estate. (L. of 1855, ch. 230. 2 R. S. 621, 5th ed.)

The devises to charitable corporations, formed under the act of 1848, chapter 319, and the amendments thereof, (2 R. S. 623 et seq. 5th ed.) are void, if the will containing the same, being made by a person leaving a wife or child or parent, has not been made and executed at least two months before the death of the testator; and if the testator has devised or bequeathed to the institution or corporation more than one-fourth of his or her estate, after the payment of his or her debts. It is in such case valid to the extent of the one-fourth and void for the excess. The statute does not direct how the estate so unlawfully devised shall go, but leaves it to descend to the heir at law, if it be real estate, and to pass to his next of kin if it be personal.

This prohibition has been extended and made general by the act of April 13, 1860, page 607. It is there enacted, that no person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts; (and such devise or bequest shall be valid to the extent of one half and no more.) It is thus made applicable to devises and bequests to any of the societies therein named, and is not confined to such as were formed under the act of 1848. It preserves for the kindred of the devisor a larger portion of the estate, and it renders the devise or bequest of the excess above one-half, to the purposes of charity therein indicated, without reference to the time when the will was made; whether by the testator in extremis, or in the vigor of mental and bodily health. The tendency of the law, and such probably was the object of its framers, will be to diminish charitable devises and bequests by persons having either of the relatives above mentioned. It thus gives a preference to the claims of consanguinity over those of benevolence, with respect to estates of deceased persons. If an individual desires to devote his wealth to religious, benevolent or public purposes, he is not prohibited from doing so in his lifetime, when he can see to the administration of it himself. (See remarks

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