societies," and the acts amendatory thereof, or under the act entitled "An act for the incorporation of societies to establish free churches," passed April 13, 1854. (L. of 1854, ch. 218. 2 R. S. 620, 5th ed.) Subsequent sections provide for the escheat of such real estate to the people of this state, in the event that such congregation or society shall not be incorporated as aforesaid, and for placing it under the charge of the commissioners of the land office of the state, who are required, on being satisfied that the congregation or society which had used, occupied or enjoyed such real estate for the purposes of religious worship prior to the death of the person or persons on whose decease the title thereto vested in this state, has been duly incorporated, to grant and convey such real estate to said corporation.

The occasion which led to the foregoing acts was the refusal of the Roman Catholics to become incorporated under the general law; and their practice of vesting the title of their real estate dedicated to the purposes of religious worship in ecclesiastics. That policy was deemed incompatible with our institutions, as it gave an undue control to those persons over the laity of their congregations.

If a devise be made to the heirs of the testator of the precise estate which they would take by descent, the devise is void, and the heirs take by descent, which is the better title. This was the rule by the common law; but it was changed by the English statute of 3 and 4 Will. 4th, ch. 106, § 3, which requires in such a case that the heir shall take as a devisee, and not by descent. (1 Jarman on Wills, 111, Perkins' ed.) But the rule has not been altered by the law of this state. (Van Kleeck v. Dutch Church, 20 Wend. 469.)

With regard to the alienage of the devisee, it was enacted by the revised statutes, that every devise of any interest in real property to a person who, at the time of the death of the testator, shall be an alien, not authorized by statute to hold real estate, shall be void. The interest so devised descends to the heirs of the testator; if there be no such heirs competent to take, it passes under his will to the residuary devisees therein named, if any there be competent to take such interest. (2 R. S. 57, § 4.) But this statute was modified in 1845 (L. of 1845, ch. 115) in favor of such resident aliens as have made and filed in the office of the secretary of state the deposition in writing required by 1 R. S. 720, § 15, that he is a resident of this state, and intends always to reside in the United States and

to become a citizen thereof, as soon as he can be naturalized, and that he had taken such incipient measures as the laws of the United States require to enable him to obtain naturalization. An alien having thus complied with the law, may take by grant or devise, and may also grant and devise his own real estate.

The court of appeals held in Wadsworth v. Wadsworth, (2 Kernan, 376,) that the foregoing provision of the revised statutes did. not apply to an alien devisee, born after the death of the testator. Such a person could take real estate by devise, though he could not hold it against the state. In that case the testator devised lands in trust for the use of his daughter, who was an American citizen, during her life, with remainder in fee to her issue, and she subsequently died leaving an alien son, born after the death of the testator; the court held that he took under the will as against the heirs of the testator.

The authorities which establish the common law rule, that an alien may take by devise, and hold against all but the state until office found, are, among others, Doe v. Robertson, (11 Wheat. 332;) Fairfax v. Hunter, (7 Cranch, 603.)

The act of 1845 enables the alien to anticipate the benefits of our naturalization laws, and it has a benign tendency to induce those who intend to take their lot in this country, to become citizens as soon as the laws will permit.

SECTION III.

Of the proper subject of a Devise.

The proper subject of a devise is real estate. It matters not whether it be in possession, or remainder, or reversion; it is in either case the subject of devise. Every estate and interest in real property, descendible to heirs, may be so devised. (2 R. S. 57, §2.)

By the rules of the common law, a testator could not devise lands subsequently acquired, however strongly his intention to that effect might be expressed. (Bunter v. Coke, 1 Salk. 237.) The English statute (1 Vict. ch. 26, § 24,) has changed the rule of law upon this subject entirely, and provided that every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator; unless a contrary intention shall appear in the will. (See 1 Will. Ex. Preface, p. 16.) The revised stat

utes have not gone so far as to put wills of real estate upon the same footing as wills of personal property, in this respect; though they have unquestionably abrogated the technical rule that the testator was incapable of devising an interest in land, or real estate, acquired subsequent to the date of the will by which he attempted to dispose of the same. (Pond v. Bergh, 10 Paige, 149. Parker v. Bogardus, 1 Seld. 309.) The 5th section of the title relative to wills of real and personal property, (2 R. S. 57,) declares that every will that shall be made by a testator in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death. This statutory provision proceeds upon the ground that in a general devise of all his real estate, the testator has reference to the real estate as it shall exist at the time of his death; and that such a construction of the testamentary disposition of his property will be but carrying his intention into effect. Upon the same principle, said the chancellor in Pond v. Bergh, (supra,) if he devises all the real estate of a particular description of which he shall die possessed, or which shall belong to him in a particular town or county, at the time of his death, although the devise would not be within the words of this section, it not being a general devise of all his real estate, it would clearly be within the spirit and intent of the act. But where he devises all his real estate at a particular place, or within a particular district of country, there is good reason to suppose he means to speak in reference to the lands he has acquired there; and that if he intended to give to the devisee all the lands or real estate which he should afterwards purchase at that place, or within the specified district of country, there would have been something in his will indicating such an intention.

The provisions of the statute do not apply to wills executed prior to 1830, when the revision took effect. In this respect, the effect of wills executed prior to that time, is not touched by the statute, but remains as at common law. (Parker v. Bogardus, 1 Seld. 309. Ellison v. Miller, 11 Barb. 332.)

In order to devise real estate, a man must be the beneficial owner. We have seen elsewhere that he cannot alienate, and of course cannot devise real estate held by him in trust. In such a case, on the death of an only trustee, the trust vests in the supreme court, which is authorized to appoint a new trustee; and thus the trust is pre

served until the purpose for which it was created is satisfied. (1 R. S. 730, §§ 67, 68, 71. In the matter of Van Schoonhoven, 5 Paige, 559. Hawley v. Ross, 7 id. 103.)

Chattels real, or terms for years, cannot be devised, though, like other personal property, they can be bequeathed, and thus disposed of by will. If not so disposed of, they vest in the executor or administrator, as assets, and do not descend to the heirs. They are to be inserted in the inventory as part of the personal property of the deceased. (2 R. S. 82.)

A party who has entered into a valid executory contract to purchase real estate, has such an interest even before the legal title is conveyed to him, that he may devise the same. This is an equitable interest which a court of equity will protect.

From the time when the agreement was executed, the vendor is considered to be seised only in trust for the purchaser, who in equity is treated as the real owner. The latter, therefore, can devise the land, but the former cannot. The language of our statute is broad enough to include this, as a devisable interest. Equity goes upon the maxim that what is agreed to be done is treated as actually performed.

A possibility coupled with an interest is devisable, when the person in whom the interest is to vest in the event contemplated, is known or is capable of being ascertained. As to such interest, it is held that devisable and descendible are convertible terms; and no particular form of words is necessary in a will to embrace contingent interests in real estate. (Pond v. Bergh, supra.)

It is no objection to the right of devising property that it is held by a stranger adversely; and it is strongly intimated that under our statute of wills, a devise may be good notwithstanding an actual disseisin. The statute against champerty and maintenance does not apply to devises, nor to judicial sales or assignments under our insolvent laws. (Varick v. Jackson. 2 Wend. 166.)

We have few cases of joint tenancy in this state, as the law favors a tenancy in common. But where an estate is held by two or more in joint tenancy, none but the last survivor can devise it. A different rule would defeat the right of survivership, which is an inseparable incident of the estate. The reason assigned by Coke is, that the survivor has a priority of time in the instant, and therefore is preferred to the devisee of the deceased. (Litt. § 287. Co. Litt. 185 b.)

A mortgage is considered as a mere security for the payment of the debt. The debt is the principal and the mortgage the incident. Formerly, on the death of the mortgagor, the personal representatives, as between them and the heirs, were bound to relieve the inheritance from the incumbrance. This was changed by the revised statutes; and now, whenever real estate, subject to a mortgage executed by any ancestor or testator, shall descend to an heir, or pass to a devisee, such heir or devisee is required to satisfy and discharge the mortgage out of his own property, without resorting to the executor or administrator of the ancestor, unless there be an express direction in the will of the testator, that such mortgage be otherwise paid. (1 R. S. 749, § 4. Mollan v. Griffiths, 3 Paige, 404. House v. House, 10 id. 162. Johnson v. Corbett, 11 id. 269. Taylor v. Wendel, 4 Bradf. 324.)

Until foreclosure, the legal estate is in the mortgagor, and he may devise the premises in the same manner as if they were unincumbered. But the mortgagee has no estate in the land which will pass to his heirs, or can be devised as real property, even after breach of the condition, until foreclosure.

A rent charge is devisable, and may be severed from the inheritance. By the devise of the reversion the rent will pass, unless some provision be made to the contrary. But by a devise of the rent alone, the reversion will not pass. (Demarest v. Willard, 8 Cowen, 206.)

SECTION IV.

Of the Formalities necessary to a Valid Devise.

There was formerly a marked distinction between a will devising real estate, and a will which merely disposed of personal property. This distinction applied not only to the solemnities attending the execution of the instrument, but also to the capacity of the testator, and the necessity and mode of probate. These distinctions have, in a great measure, been abrogated in this state. The only difference between the two cases now is, that it is essential to the making of a will of real estate that the testator should be of the full age of twenty-one years, whereas a male infant of the age of eighteen years or upwards, and an unmarried female infant of the age of sixteen years or upwards, if laboring under no other disability, WILL.-31