thing that would descend to the testator's heir upon his death, whether a legal or equitable interest, may be devised, and while this to be sustained, it must be by virtue of the common law, independent of that statute. As stated above by Judge Story, the Supreme Court sustained the will in a very learned and elaborate opinion. See also, Inglis v. Trustees of Sailors' Snug Harbor, per Johnson, J., 3 Pet. 140. But in New York, the question has come up in a somewhat different form, but, in the opinion of very able counsel, has never been fully settled there. The Revised Statutes of that State (Part 2, ch. 1, tit. 1, art. 2, § 46), abolished uses and trusts, with certain exceptions. If, therefore, charitable uses and trusts were included in this clause, they could no longer be sustained. The question came up in the court of appeals, in 1853, in the case of Williams v. Williams (4 Seld. 525-558. See also, Lalor, Real Est. 130– 163), in which the court, Denio, J. says, among other things: "From a careful examination of these authorities, I have come to the conclusion that the law of charities was, at an indefinite but early period, engrafted upon the common law," - "and that the statute of charitable uses was not introductory of any new principle, but was only a less dilatory and expensive method of establishing charitable donations which were understood to be valid by the laws, antecedently in force." The conclusion of the court was, that "the law of charitable uses, as it existed in England at the time of the Revolution, and the jurisdiction of the court of chancery over these subjects, became the law of this State on the adoption of the constitution of 1777, that the law has not been repealed," &c. But the question had not been distinctly raised, whether there was a difference between real and personal estate in the application of the principles laid down in the case last-mentioned and others cited. This arose first in the case of Beekman v. Bonsor (23 N. Y. Rep. 298-318), and again in Rose v. Rose Beneficent Association, in the same court, not yet reported. In both these cases, Mr. Noyes maintained the doctrine, that, as to carry out the provisions of the wills required the establishment and management of trusts, the right and power to do this was abolished by the statute of New York, above cited. His first argument is printed at length in the 23 N. Y. Rep. (375-639), presenting an array of argument and authority which would have seemed to be exhaustive of the subject. But in the later case, a further argument of sixty-nine pages resumes the discussion, and develops still further the early and minute history of the law, with an examination of the decided cases. Referring to his former argument, he states what he proposes to sustain in the present one, “that, conceding that the English court of chancery did, prior to the statute of Elizabeth for charitable uses, take cognizance of trusts for charities, in some cases, yet those statutes were held to authorize the interference of that court in an entirely new class of cases, and introduced a new set of principles, and that the court of chancery did not exercise jurisdiction over trusts for charities or over charitable uses prior to those statutes, except in cases where gifts of personal estate were made by act inter vivos to persons capable of taking for definite charitable purposes, or where lands or the uses of lands were, by will or deed, directed to be applied for the like purposes, and only there under its general would exclude the interest of a joint-tenant which goes to a survivor, it includes executory interests in real estate, or possibilities coupled with an interest, but not mere possibilities. Thus, where a devise was upon a condition subsequent, with a general devise by a residuary clause in the testator's will, and the first devisee forfeited his estate by failing to perform the condition, it was held, that the right to enforce the condition and to take the estate thereby forfeited, passed by such devise to the residuary devisee, and did not descend power to enforce the performance of trusts, and between persons competent to sue." These points are labored with great thoroughness and ability, and it must be deemed as unfortunate for the ascertainment of the law of New York, that the question remains undecided by the court, inasmuch as the cases in both instances turned upon other matters, than the effect of abolishing uses and trusts upon charitable trusts in lands. But so far as the entire learning upon the subject, and an exhaustive argument upon its application and legal merits, can supply the want of a judicial decision, they are to be found in the arguments of the counsel in those cases, especially the last. Mr. Dwight, in the Rose Will case, devotes an argument of 389 pages, to establish the validity of the devise therein made to a charitable use, in which he reviews the reports of the English commissioners of charities, in thirty-seven folio volumes, the calendars of the courts of chancery in the time of Elizabeth in three volumes, and the calendars of the Duchy of Lancaster in three volumes, and, among other things, insisted that where uses and trusts were coupled together, in legal phrase, they implied private trusts, and did not intend public charities; that permanent trusts for charities existed long before the statute of uses, and that the law of charities admitted perpetuities, as well as the doctrine of cy pres, while private trusts spring out of the statute of uses, and are modern in their character. See also, 2 Kent, 334, 8th ed. note. Besides the cases thus collected, Mr. Dwight also referred to many other early and later cases, and a series of early statutes from the 6th of Edw. I., to the 4 and 5 James I., which are printed in what is called "an appendix" to his argument, forming a volume of nearly 500 pages. Nor will it be thought misplaced, it is hoped, upon a subject as important as that of public and charitable trusts, to have occupied so much space in reviewing some of the leading cases which bear upon the rules which limit and govern them. Nor, in the absence of decided cases, and in view of the regret expressed by Chancellor Kent, that "in the recent revision of the laws of New York, this very interesting and vexatious question was not put at rest by an explicit provision," can it be ill-timed, to lay before the reader the views of eminent counsel, who have made the subject a matter of thorough investigation and profound research and reflection. 1 Kean v. Roe, 2 Harring. 112. to the testator's heirs. So if one grants an estate tail, he [*691] has still a reversion in him which may *possibly take effect by failure of issue of his grantee, and is the subject of devise by the grantor.2 20. So where one granted lands on condition subsequent, upon the breach of which the grantor or his heirs might enter and regain the estate, and the grantor then made his will containing a general residuary clause, it was held, that the devisee therein named took thereby a right to enforce the condition as to said land, and recover the same for a breach thereof. Any possibility, coupled with an interest, is the subject of devise.* 21. Cases like the above are to be distinguished from those of lapsed devises, which occur, when the person to whom the testator gives the land dies before the testator. Such devise, at common law, would lapse, though in several, if not all the States, if it is made to a son or grandson of the testator, it takes effect, by force of statute, in favor of the heirs of such son or grandson, if he die before the testator.5 But a devise which fails by lapsing, does not go to the residuary devisee, but to the heir at law of the testator, on the ground that the intent of the testator is to be taken as things stand when the will is made, and that he is not to be presumed to have intended to give to his residuary devisee what he had already given to one whom he expected to survive him, and what he would have taken if the will had taken effect at its date. But if the devise is void ab initio, either because the devisee is dead before the will is made, or is by law incapable of taking the devise, as would be the case at common law where the devise is to a monk,8 or, as in some 11 Jarm. Wills, 2d Am. ed. 40-44; Hayden v. Stoughton, 5 Pick. 528; Brigham v. Shattuck, 10 Pick. 306. See 4 Kent, Com. 511, 513. The reader is referred to Mr. Hare's discussion of this subject, and his comments upon the cases above cited. 1 Smith, Lead. Cas. 114. 2 Steel v. Cook, 1 Met. 281; 1 Jarm. Wills, 42, Perkins's note. 3 Austin v. Cambridgeport Parish, 21 Pick. 215. Contra, Southard v. Central R. R. Co. 2 Dutch. 13, 21. Such rights made devisable by Stat. 1 Vict. 26; 1 Jarm. Perk. ed. 85. Den v. Manners, 1 Spencer, 142. 56 Greenl. Cruise, Dig. 128, note; 1 Jarm. Wills, Perk. ed. 301, note; Moore v. Demond, 5 R. I. 121. Doe v. Underdown, Willes, 293; Doe v. Scott, 3 Maule & S. 300; Hayden v. Stoughton, 5 Pick. 528, 537; Gravenor v. Hallum, Ambl. 645; Austin v. Cambridgeport Parish, 21 Pick. 224. 7 Doe v. Sheffield, 13 East, 526. 8 Perkins, §§ 566, 567. cases, if made to corporations under the prohibitions of statutes; in such cases there seems to be a diversity in [*692] the law as to who shall take such void devise, whether the heir at law or the residuary devisee. The English cases, and an American case cited above, are inclined to construe a devise by the residuary clause of what the testator has not before devised, to intend all his estate which his will would not have effectually passed, if it had taken effect at its date, excluding, as above stated, any devises that may have lapsed between the making of the will and the death of the testator. The weight of American authority, however, is in favor of such devises going to the testator's heirs, on the ground that, by his having in terms devised it in a particular manner, he clearly indicated his intent that it should not pass to his residuary devisee, although he was mistaken in the capacity of the legatee named, to take. In Doe v. Stewart, the devisee being dead when the will was made, the estate devised went to the residuary devisee and not the heir. The case given in Perkins, was of a devise to a monk for life, remainder to a stranger in fee, which was held to be a present estate in possession in the stranger. In the case of Ferguson v. Hedges, the devise was to a church which was incapable to take, the devise being void by the statutes of Delaware. The court held, that the estate passed to the residuary devisee, and the court rely upon the above cases of Doe v. Underdown, Doe v. Sheffield, and Doe v. Scott. And the language of the court in Hayden v. Stoughton, clearly favors this doctrine. But the rule which seems to be settled in Van Kleek v. The Dutch Church, seems to be, that, by the common law, a residuary devisee of real estate takes only what was intended for him at the time of making the will, though a different rule prevails in respect to personal estate, and, consequently, though the devise may not take effect from the disability on the part of the devisee to take, the estate devised will go to the testator's heirs at law. The same principle is maintained in Green v. Dennis,3 and Lingan v. Carrol.4 2 1 Ferguson v. Hedges, 1 Harring. 524; Van Kleek v. The Dutch Church, 20 Wend 457; State v. Whitbank, 2 Harring. 18. 2 Van Kleek v. The Dutch Church, 20 Wend. 457. 3 Green v. Dennis, 6 Conn. 292. ↑ Lingan v. Carrol, 3 Harr. & M'H. 333. See also, 1 Jarm. Wills, Perk. ed. 302 note; Brewster v. McCall's Devisees, 15 Conn. 297. 21 a. If an estate be devised to A for life, with a remainder over after his death, to B, and A die in the lifetime of the testator, the estate will go directly to B, upon the death of the testator, the lapsing of the devise to A, in this case, leaving the will to take effect as if it had not been contained in it.1 [*693] *22. Upon the principle that what is descendible is devisable, it has been held, in some cases, by force of statute, and in others upon general principles, that the right of a disseisee to enter and regain the seisin of lands may be devised, and that the devisee may avail himself of the right so aequired.2* 23. In construing devises, in respect to the estate or interest intended to be given to the devisee, much greater regard is had to the intention of the testator than in case of deeds. One reason is the strong desire there is in all courts, to carry out the intention of devis-. ors when the same can be ascertained by reasonable construction; and another, that as wills do not owe their origin to the feudal law, the rule of construction is not necessarily governed by the analogy of that law. It is accordingly held, that in a will "issue" is either a word of purchase or limitation, as will best answer the intention of the devisor, though in a deed it is universally taken as a word of purchase. But still, except where otherwise provided by statute, under a general devise of a parcel of land to one without any words of inheritance or limitation, he takes only an estate for life. There would be an exception to the above rule in those States where the limitation of an estate by deed, in indefinite terms, carries a fee.5 23 a. In construing wills, it is often necessary, in order to carry *NOTE.—The foregoing cases have been referred to, by way of example, as to the kinds of interest which a testator may dispose of by last will, and, for a further statement of the law upon the subject, the reader is referred to pp. *291, *367, *368, ante, and 4 Kent, Com. 511. 1 Lawrence v. Hebbard, 1 Bradf. 250; Goodall v. McLean, 2 Bradf. 306; Prescott v. Prescott, 7 Met. 141. 21 Jarm. Wills, 43, 1st Am. ed. and notes; Mass. Gen. Stat. ch. 92, § 3. This is said to be the law in New York, Vermont, Pennsylvania, Virginia, Kentucky, Maine, Alabama, Connecticut, North Carolina, Illinois, and Ohio. 4 Kent, Com. 512. 8 Doe v. Collis, 4 T. R. 299. + 2 Jarm. Wills, 124, 2d Am. ed. Perkins's note of American Cases; 4 Kent, Com. 537. 5 See ante, Vol. I. p. *29; Mass. Gen. Stat. ch. 92, § 5. For the application of the rule in Shelley's case to devises, see ante, ch. 4, § 8. |