467, where he decided that a conjoint or mutual will is valid, and may be admitted to probate, on the decease of either of the parties, as his will; that such an instrument, though irrevocable as a compact, is revocable as a will, by any valid subsequent testamentary paper; but if unrevoked, it may be proved as a will, if it has been executed with the formalities requisite to the due execution of a will. The learned surrogate reviews the case of Hobson v. Blackburn, cited in note (b) above, and concludes that there is nothing in it inconsistent with the propositions stated in Ex parte Day, and adds: "Sir John Nicholl's own language in Passmore v. Passmore, 1 Phillim, 216, and Masterman v. Maberly, 2 Hagg. 235, shows that his decision in Hobson v. Blackburn has been entirely misconceived; that instead of deciding that a compact of a testamentary character could not be proved as a will because it was a mutual or conjoint act, he only held that such an instrument could not be set up as irrevocable against a subsequent will revoking it." "Nor do I see anything in the formal requisites prescribed by our statute, in relation to the due execution of wills, militating against the admission of a mutual will to probate, from the mere fact that it was executed as a will by two persons at the same time, provided that all the proper solemnities were duly observed. . . . . Because the will happens to be made in conformity to some agreement, or contains on its face matter of agreement, or shows

(e) In the Goods of Raine, 1 Sw. & Tr. 144, coram Sir C. Cresswell. But quære, whether the delay of the effect of the will interfered with its title to immediate probate as the will of the deceased testator. [A still more important and difficult question relates to the disposition to be made of the property of the joint testator first deceased

mutuality of testamentary intention between two persons, and a compact or intention not to revoke, in my judgment it is none the less a will, and if it happens that the party who first dies, observes religiously his solemn compact and dies, leaving this in fact his last will and testament, it ought to be admitted to proof as such. The compact is not unlawful, it is not contrary to good manners, it will be sustained in a court of equity, on the ground that the will is valid at law, and by the death of the first dier has become irrevocable; unless there is some matter of form, some technical arbitrary rule springing out of the statute, or the necessary form or construction of a will, it is difficult to see why a conjoint will should not be admitted to probate on the death of either of the parties, as his separate will." In Lewis v. Scofield, 26 Conn. 452, it appeared that two sisters jointly executed an instrument in the following form: "We, A. and B. make this, our last will and testament, in manner and form as follows, viz, that in the event of the death of either of us, testators, the surviving sister shall have and hold for her own use and benefit, to dispose of in manner that shall seem most expedient, all of the real and personal estate we shall be possessed of," and the instrument was executed with the formalities requisite to a will, it was held that the instrument, construed according to the legal effect of its language, undertook to operate only as the will of the sister who should first die, and only upon

between the time of his death and the time of the decease of his surviving joint testator. In Schumaker v. Schmidt, 44 Ala. 454, it was held that, if the will so provides, and the disposition made of the property requires it, the probate should be delayed until the death of both or all the testators.]

her estate; and that upon the death of the sister who first died, it was valid as her will. Hinman J. having considered the remarks of Lord Mansfield in Darlington v. Pulteney, and the decision in Hobson v. Blackburn, said, "We do not therefore consider the authorities as at all decisive as against the probate of such an instrument as is before the court in this case; and as the point has not, to our knowledge, ever been raised before in this state, we feel at liberty to decide it upon the reason and good sense of the case, as it appears to us." A similar paper was upheld as a will in Evans v. Smith, 28 Geo. 98; Schumaker v. Schmidt, 44 Ala. 454. It was said in Bynum v. Bynum, 11 Ired. 632,

that, where two persons agree to make mutual wills, it would seem that bad faith in the one, either in not making his will or in cancelling it after it was made, will not prevent the probate of the will of the other party. An agreement to make mutual wills appears to be valid. Ex parte Day, 1 Bradf. 476, 477, and cases there cited; Izard v. Middleton, 1 Desaus. 116; Dufour v. Pereira, 2 Harg. Jurid. Arg. 304; Rivers v. Rivers, 3 Desaus. 190; post, 124, note (cl); Gould v. Mansfield, 103 Mass. 408. Reciprocal wills seem to have been sanctioned by the civil law. Ex parte Day, 1 Bradf. 480, 481; Domat, pt. 2, lib. 3, tit. 1, § 8, art. 20; Dig. lib. 28, tit. 5, De Heredibus Inst. c. 70.]

this subject must result, in England, from the 33 Vict. c. 14, "The Naturalization Act," 1870. For by sect. 2 of that act, an alien is empowered to take, acquire, hold, and dispose of real and personal property of every description, in the same manner in all respects as if he were a natural born British subject; and a title to real and personal property of every description may be devised through, from, or in succession to, an alien, in the same manner in all respects as through, from, or in succession to a natural born British subject; with certain provisos not material to this subject. The statute appears to give this power to all aliens, whether they be the subjects of a friendly state or not; and whether they reside in England or not. 1 Chitty Contr. (11th Am. ed.) 259, 260; 1 Dan. Ch. Pr. (4th Am. ed.) 47. The disabilities of aliens to take, hold, or transmit real estate have been partially removed in some of the American States, and wholly in others. See 2 Kent, 69 et seq.; 1 Dan. Ch. Pr. (4th Am. ed.) 46, note (6). By the General Statutes of Massachusetts, c. 90, § 38, aliens, whether residents or nonresidents, may take, hold, transmit, and convey real estate, and no title to real estate shall be invalid on account of the alienage of any former owner. See Foss v. Crisp, 20 Pick. 121; Lumb v. Jenkins, 100 Mass. 527. The above provisions were first enacted in substance by stat. 1852, cc. 29, 86. Before that statute, the rule of law prevailed, in Massachusetts, as in other states where there is no statute upon the subject, that an alien could take real estate, by deed or devise, or other act of purchase, but could not hold against the state; he, therefore, took a defeasible estate, good against all except the state, and good against that until proceedings were instituted, and judgment obtained on its behalf by inquest of office. But an alien could not take by act of law, as by descent, because the law would be deemed

to do nothing in vain, and therefore it would not cast the descent upon one who could not by law hold the estate. Wilbur v. Tobey, 16 Pick. 179, 180; Foss v. Crisp, 20 Pick. 124, 125; Waugh v. Riley, 8 Met. 295; 2 Kent, 53, 54; Montgomery v. Dorion, 7 N. H. 475; Slater v. Nason, 15 Pick. 345; Jackson v. Adams, 7 Wend. 367; Fairfax v. Hunter, 7 Cranch, 603; Fox v. Southack, 12 Mass. 143; Smith v. Zaner, 4 Ala. 99; Rubec v. Gardner, 7 Watts, 455; Craig v. Leslie, 3 Wheat. 563; Doe v. Robertson, 11 Wheat. 332; Marshall v. Conrad, 5 Call, 364; Mooers v. White, 6 John. Ch. 360, 366; Scanlan v. Wright, 13 Pick. 543; People v. Conklin, 2 Hill, 67; M'Creery v. Allender, 4 Harr. & M'H. 409; Fiott v. Commonwealth, 12 Grattan, 564. Statutes of a like character with that above cited from Massachusetts exist in many other states. And in some states provisions modifying the disability of alienage have been introduced into their constitutions. But it is to be observed, as stated by Chancellor Kent, that these civil privileges conferred upon aliens by state authority must be taken to be strictly local, and until a foreigner is duly naturalized, according to the act of Congress, he is not entitled in any other state to any other privileges than those which the laws of that state allow to aliens. No other state is bound to admit, nor would the United States admit, any alien to any privileges to which he is not entitled by treaty, or the law of nations, or of the state in which he dwells. 2 Kent, 70, 71. See 2 Sugden V. & P. (8th Am. ed.) 685, note (d); Lynch v. Clarke, 1 Sandf. Ch. 583. The statutes of several of the states and a synopsis of their provisions will be found in 1 Cruise Dig. by Mr. Greenleaf, tit. 1, § 39, in note, pp. 53, 54; Const. Iowa (1857), art. 1, sec. 22.]

(c) Wentw. c. 1, p. 35, 14th ed.; Vin. Abr. Devise, G. 17; Bac- Abr. Wills, B. 17.