the owner, on making just compensation. The constitution of 1777 did not contain the prohibition against taking private property for public use, and the clause was first inserted in the constitution of 1821, (Art. 7, § 7,) in the same form that it exists in the present constitution. Yet all the early charters for turnpike roads contain the authority to take land for the purpose of the road, on making just compensation. The fact that individual stockholders were supposed to be entitled to derive a benefit from the use of the road in the shape of tolls, did not derogate from the principle that the purpose to which the land was applied was a public purpose. These benefits were a remuneration for their capital invested in the road, which relieved the public from the expense of constructing and keeping it in repair.

After the principle forbidding private property to be taken for public use without just compensation came to be inserted in the organic law, it was insisted that the legislature could not exercise the right of eminent domain in favor of corporations, whether private or municipal. It was contended that the statute must designate the specific land to be taken, and that the legislature could not delegate the power to the corporation to make the location and selection. Had the objection prevailed, it is quite obvious that no rail road could have been constructed in this state, without an expenditure of money that would have rendered the franchise valueless. But the objection was overruled by the highest court of the state. It was decided that the legislature may grant to such corporation the power to appropriate private property necessary for their use, on making compensation as required by the constitution; and that such power may be granted by a general act providing for the creation of an indefinite number of corporations. (The Buffalo et al. Rail Road Co. v. Brainard and others, 5 Selden, 100.) This subject was very fully discussed in the early case of Bloodgood v. The Mohawk and Hudson Rail Road Co. (18 Wend. 9-78.) That case was concluded by the court of errors, by the adoption of a resolution declaring, in substance, that the legislature of this state have the constitutional power to authorize the taking of private property for the purpose of making rail roads, or other public improvements of the like nature; whether such improvements be made by the state itself, or through the medium of a corporation, or joint stock

company, on making ample provision for a just compensation for the property taken to the owners thereof.

The same doctrine has been applied, by the highest court of the state, to municipal corporations. Thus, it was decided in Heyward v. The Mayor &c. of New York, (3 Selden, 214,) that the legislature has the power to authorize a municipal corporation to acquire a fee simple to lands of private persons required for public purposes, upon the payment of a just compensation, and when so acquired, no reversionary estate remains; and if the public exigencies require the conversion to some other purpose they may be so converted.

The right of eminent domain does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer. But if the public interest will be in any way promoted by the taking of private property, it rests in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain. (Beekman v. Saratoga and Sch. Rail Road Co. 3 Paige, 73.) No just sovereign would take the property of the subject, for the public use, without his consent, unless a fair equivalent was returned. The question under our constitution is whether the payment of the compensation should precede the taking of the private property for public use, or be concurrent with such taking; or whether it is enough that provision be made for its certain payment. In the case of Rogers v. Bradshaw, (20 John. 735,) the court of errors decided that where private property was taken for public use, it was not necessary that the amount of compensation should be actually ascertained and paid before the appropriation; but that it was sufficient if a certain and adequate remedy was provided, by which the individual could obtain such compensation without unreasonable delay. This principle was approved in the later case of Bloodgood v. Mohawk and Hudson R. R. Co. (18 Wend. 17.)

It is the better opinion that an act authorizing the taking of private property for public use is not valid, unless it or some other act contains a suitable and efficient remedy for such compensation. It is not enough to cast the party, whose property is thus taken, upon the doubtful and feeble remedy arising from the moral duty

of the legislature to make it. The legislature may authorize an entry on the lands of a person for the purpose of examination, without previous payment; but that is a different thing from an appropriation of the land to the public, devesting the title of the owner. (See Bloodgood v. M. and H. R. R. supra; Jerome v. Ross, 7 John. Ch. 344; 2 Kent's Com. 339, note.)

It would seem, on principle, that when the parties cannot agree, that a regular appraisal of the damages, followed up by payment or its equivalent, a tender, where acceptance of the sum awarded has been declined, is essential to devest the owner, and to vest the title in the corporation. (Wheeler v. The Rochester and S. R. R. 12 Barb. 227.)

The title acquired by a corporation for lands necessary for a rail road, is an estate in fee simple, whether the corporation be in terms unlimited in its duration, or confined to a definite period. It may receive a less estate by grant, if it be so stipulated in the deed; but a corporation, although created but for a limited period, may acquire the fee simple to lands necessary for its use. (Nicoll v. The N. Y. and Erie R. R. Co. 2 Kern. 121. The People v. Mauran, 5 Den. 389.) Such a corporation has a fee simple for the purpose of alienation, but a determinable fee for the purpose of enjoyment.

Although the lands be thus compulsorily obtained, yet where the title has vested in the corporation by the payment of the just compensation, all the incidents of ownership follow. Should the exigences of the company make it necessary, they may alien such lands in fee simple. In the case of the Almshouse in New York, it had been used for twenty-seven years, and was then moved to another site, and yet the title to the original site was not thereby lost. (Heyward v. The Mayor &c. of N. Y. 3 Seld. 214.)

The statutes of this state make ample provision for the case of persons laboring under the disability of infancy, idiocy, insanity, &c., when it is necessary to take their lands for the purpose of a rail road; and also for the case of non-residents. But the further consideration of this branch of the subject does not belong to this work. (Laws of 1850, pp. 216, 217. Id. of 1854, ch. 282, p. 608 et seq.)

If the title be acquired by an amicable agreement between the parties, the deed will be in the form of other deeds to a corporation; and it will carry the fee without words of limitation. (Nicoll v. N. Y. and Erie R. R. supra.) If, however, it be acquired by

the exercise of the right of eminent domain, the proceedings should be set forth at large, showing jurisdiction in the officer, and the mode in which it was exercised. (See the form of a record of an assessment of damages in Adams v. Saratoga and Washington R. R. Co. 11 Barb. 414-417 et seq., and remarks by Willard, J. in that case; and the remarks of the judge in Buell v. The Trustees of the Village of Lockport, 4 Seld. 58; Dyckman v. The Mayor of N. York, 1 id. 434, and remarks of Foote, J. in that case, page 440.) [See Appendix.]

CHAPTER IX.

OF THE ALIENATION OF REAL ESTATE BY DEVISE.

SECTION I.

Of the Nature of a Devise.

The mode of alienation, of which we have been treating heretofore, in cases where it was made by the parties possessing the title at the time, in general, assumes that the instrument of conveyance will take effect during the life of the grantor. A devise, on the contrary, is a disposition of real property in a person's last will and testament, to take effect on the death of the devisor.

The law has not prescribed any particular form in which a devise must be framed. It must be in writing, and must indicate the intention of the testator to dispose of his lands after his decease. No entry is required by the devisee to render the transfer of the fee effectual. The devise interrupts the descent of the land to the heir; and the devisee may bring an action against the heir to recover the estate devised, before the will has been admitted to probate. The title of the devisee is derived from the will, and not from the decree of the surrogate's court. A will of freehold lands need not be proved before the surrogate, in order to perfect the title of the devisee; though it is usual, and always recommended, that a will merely disposing of real estate, should be proved and recorded according to the provisions of the revised statutes. This is important not only to perpetuate the evidence of the due execution of the will, but to defeat any conveyance that might be made

by the heir after the death of the testator, to a party purchasing in good faith, without knowledge of the will. Unless the will is proved and recorded in the proper court within four years after the death of the testator, in the manner prescribed by the act, the title of a purchaser in good faith, and for a valuable consideration, from the heirs, will prevail over that of the devisee. (2 R. S. 749, § 3.) In a contest between the devisee and the heir, the probate copy of the will is not necessary to be produced; nor is it evidence, unless it has been proved before the surrogate as a will of real estate, on the requisite citation to the heirs. It is otherwise with respect to a will of personal property. The probate of a will of personal property, whether obtained by a summary or a plenary proceeding, if granted by the proper court, is conclusive evidence of the due execution of the will and of the testamentary capacity of the testator. (Bogardus v Clark, 4 Paige, 623. Muir v. The Trustees of the Orphan Asylum, 3 Barb. Ch. 477. Cotton v. Ross, 2 Paige, 396. Vanderpoel v. Van Valkenburgh, 2 Seld. 190.)

A court of equity frequently decides upon the validity of a will of real estate, when the question comes before it collaterally; but if the heir insists upon the invalidity of the will in his answer, an issue is awarded to try the question at law. It was well settled under the former practice of the court, and the principle still remains sound, that the heir cannot go into equity to set aside a will on the ground of the incompetency of the testator, if the defendant makes the objection in due time. (Cotton v. Ross, supra.) The validity of the will, and every question affecting capacity, are directly involved in an action by the devisee to recover the estate devised to him, whether the action be against the heir or any other person. Those questions may be discussed in an action before the proper court to prove the will as a will of real estate, as will be shown more fully in a subsequent section.

A will of immovable property, that is, a devise, is in general governed by the lex rei sitæ. The law of the place where such property is located, by the rules of the common law, governs as to the capacity or incapacity of the testator, the extent of his power to dispose of the property, and the forms and solemnities necessary to give the will effect. (1 Jarman on Wills, 1. Story on Conflict of Laws, § 474. Holmes v. Remsen, 4 John. Ch. 460; S. C. 20 John. 229. McCormick v. Sullivant, 10 Wheat. 192. U. States