of the Judge in Beekman v. The People, 27 Barb. 305, and Willard's Eq. Juris. 576.)

We have seen that a devise to an alien, not authorized by statute to hold real estate, is void. (2 R. S. 57.)

A devise may become void by the death of the devisee subsequent to the making of the will, and before the death of the testator. This is the common law rule; but it has been changed in this state, where the devise is to a child or other descendant of the testator, and such devisee shall die before the testator, leaving a child or other descendant who shall survive the testator. In such a case, the devise does not lapse, but vests in the surviving child or other descendant of the devisee, as if the devisee had survived the testator, and had died intestate. (Id. 66, § 52.) In other cases the common law is left to take its course. (Bishop v. Bishop, 4 Hill, 139. Chrystie v. Phyfe, 22 Barb. 195.)

A devise may be void for uncertainty. The uncertainty may be with regard to the person of the devisee, or the subject matter of the devise.

An instance of the first will be found in Waite v. Templer, (2 Sim. 524.) In that case the legacy was in these words: "I give one-fifth of my remaining property to Thomas Palby, Esq. jun., who resided in Stonehouse, near Plymouth, Devonshire, when I left England, or to his heirs, executors, administrators or assigns forever." The testator left England in 1784, Thomas Palby, jun. died in 1798, and left his father his only next of kin at his death. The testator died in 1810. The legacy lapsed by the death of the legatee in the lifetime of the testator, and the legacy over to his heirs &c. was held to be void for uncertainty.

So also, a bequest by a testator, that "a handsome gratuity" be given to each of his executors, has been held to be void for uncertainty, as to the subject of the gift. (Jubber v. Jubber, 9 Sim. 503.) So a bequest of "some of my best linen," has been held void for uncertainty. (Peck v. Halsey, 2 P. Wms. 387.)

There must be such a description of the estate intended to be devised, and of the devisee, that both the estate and the person may be ascertained; otherwise the devise is void.

It remains, under this head, to inquire what becomes of a void devise, when it lapses, in a case where the will contains a residuary clause. In the case of a bequest of personal property, the residu

ary legatee will in general take whatever is not otherwise well disposed of in the will. The rule is different with respect to devises. If the devise be void when the will was made, as, if the devisee be dead at that time, the estate will go to the residuary devisee, if it be drawn in a sufficiently comprehensive manner. In the case

of a legacy void by reason of the death of the devisee after the making of the will, and before the death of the testator, it goes to the heir.

This subject was very fully examined by the chancellor in Van Kleek v. The Reformed Dutch Church, (6 Paige, 600; affirmed 20 Wend. 457.) He came to the conclusion that it was settled in England that a residuary devise of real estate, or "of all my estate not before disposed of," carries with it not only the real estate in which no interest is devised in the previous parts of the will, but also every reversionary and contingent interest which, in the events contemplated by the testator as apparent from the will itself, is not wholly and absolutely disposed of, and which would be a proper subject of devise consistently with the declared intent of the testator. The rule is that the general residuary clause will carry to the devisee all reversionary and contingent interests not previously devised, unless the will contain special indications of a contrary intention; and with the qualification, that the will is to be taken in connection with the situation of the testator's property and family at the date of the will. This, it seems, is the law of this state. But when a specific devise is ineffectual, through want of the devisee's capacity to take-as when the devisee is a religious corporation-the estate goes to the heir, and not to the residuary devisee. (Id.)

When an interest in real estate is devised to a widow in lieu of dower, and she elects to take her dower, it seems such interest vests in the residuary devisee. (Bowers v. Smith, 10 Paige, 193.)

CHAPTER X.

OF THE CONSTRUCTION OF DEVISES.

SECTION I.

Of the General Maxims in the Construction of Wills.

1. The primary rule in the construction of a will, whether it relates to real or personal property, is that the intention of the testator, if not inconsistent with the rules of law, must govern; and this intention is to be ascertained from the whole will taken together. (Bradhurst v. Bradhurst, 1 Paige, 331. Covenhoven v. Shuler, 2 id. 122. Rathbone v. Dyckman, 3 id. 9. Crosby v. Wendell, 6 id. 548.)

This rule is supported by all the adjudged cases, and is, moreover, declared by the revised statutes, and made applicable to every instrument creating or conveying, or authorizing the creation or conveyance, of any estate or interest in lands. And it is made the duty of courts of justice to carry into effect the intent of the parties, so far as it can be ascertained from the whole instrument, and is consistent with the rules of law. (1 R. S. 748, § 2.) This enactment is merely declaratory of the principles of the common law so far as it relates to wills, and an extension of the same principle to deeds which were formerly governed by more strict rules. 2. A will and codicil are to be taken and construed together as parts of one and the same instrument. (Westcott v. Cady, 5 John. Ch. 334.)

3. The testator must be presumed to have used words in their primary and ordinary sense, unless there is something in the situation of his family, or in his will, to lead to a contrary conclusion. (Matter of Hallet, 8 Paige, 375. Hone v. Van Schaick, 3 Barb. Ch. 488, reversed 3 Comst. 538, but the above principle held by both courts. Cromer v. Pinckney, 3 Barb. Ch. 466.)

4. In general, technical words are to be understood in a technical sense; but if by taking them in a technical sense, the intention of the testator collected from the whole will, cannot be supported, but will be overthrown, a liberal and popular meaning may be attributed to them. As, for instance, the word "inherited" may be ap

plied to lands devised or conveyed by a parent or ancestor. (De Kay v. Irving, 5 Den. 646, affirming 9 Paige, 521. 2 P. Wms. 741. Hodgson v. Ambrose, 1 Doug. 341.) The word "devise" is sometimes used for "bequeath," and vice versa, without impairing the will. (Myers v. Eddy, M. S.) And "or" is sometimes construed as "and," and e converso. (Richardson v. Spraag, 1 P. Wm. 434. Read v. Snell, 2 Atk. 643.)

5. The situation of the testator's family and collateral circumstances, may be resorted to in construing a will. So also the situation of his property, and his social relations, are to be regarded. (Wolfe v. Van Nostrand, 2 Comst. 436. Cromer v. Pinckney, 3 Barb. Ch. 466.)

6. The general intent of the will is to prevail over expressions indicating a different particular intent. (Parks v. Parks, 9

Paige, 107.)

7. When a will is susceptible of a two fold construction, one of which avoids and the other upholds it, the latter must be adopted. (Mason v. Jones, 2 Barb. 229.)

8. If two provisions of a will are repugnant, so that both cannot stand, the last will prevail. (Bradstreet v. Clark, 12 Wend. 602. Covenhoven v. Shuler, supra. Parks v. Parks, supra.)

9. But a subsequent clause apparently irreconcilable with precedent provisions, will be construed in connection with them, and may be rejected if repugnant to the intention of the testator, as derived from the whole will. (Bradly v. Amidon, 10 Paige, 235.)

10. The clear, literal interpretation of words may be departed from, if they will bear another construction; and the strict grammatical sense may be neglected. (Bradhurst v. Bradhurst, 1 id. 331. Rathbone v. Dyckman, 3 id. 9.)

11. In construing wills words may be transposed or rejected to get at the correct meaning. (Mason v. Jones, 2 Barb. 229.) Words which, if allowed to stand, would produce repugnant and inconsistent results, may be rejected. (Pond v. Bergh, 10 Paige, 140.)

12. Words which admit of a twofold construction, shall be deemed to have been used in that sense which will render the devise valid, and not in a sense which would render the clause of the will in which they are used a mere nullity. (Pond v. Bergh, supra. Butler v. Butler, 3 Barb. Ch. 304.)

13. The title of the heirs being derived from the law of descent, is not to be defeated by an uncertain devise.

14. The punctuation of sentences may be changed, and a passage be read as if inserted in a parenthesis, when necessary to arrive at the sense. (Wolfe v. Van Nostrand, 2 Comstock, 439, per Gardiner, J.)

The foregoing rules may be greatly multiplied; but others will be suggested in succeeding sections. The subject is examined by English writers, and the cases are fully reviewed. (See Cruise's Dig. tit. 38, Devise, ch. 9, and notes to Greenl. ed. 2 Powell on Devises, by Jarm. pp. 5-11. Wigram on Wills, pp. 11–14.)

SECTION II.

Of the Construction with reference to the Estate, the Property devised, and the Person of the Devisee.

1. Of the Estate.

The usual words necessary to create a devise are, "give and devise." These are the appropriate technical words in a will disposing of a fee or a freehold interest, as "give and bequeath" are for disposing of personal property and chattel interests. But any other words which sufficiently show the intention of the testator, to dispose of his lands, or any part thereof, will be sufficient for that purpose.

We have seen, in the former part of this treatise, that the meaning of the term estate, in a legal sense, is different from its popular acceptation. It imports in legal acceptation the interest which the owner has in the land, rather than the land itself, which is the popular notion with regard to it. (See Part 1, ch. 1, p. 47.) A devise of a testator's estate generally passes both real and personal property, and may include a debt secured by a mortgage. (Jackson v. De Lancy, 11 John. 365; affirmed, 13 id. 536.) The word estate passes a fee, without any words of limitation. (Id. Jackson v. Merrill, 6 John. 185.) So a devise of all one's right carries a fee simple to the devisee. (Newkirk v. Newkirk, 2 Caines, 345.) A general devise of real estate to A., to be at his absolute disposal, passes a fee. (McLean v. McDonald, 2 Barb. 534.)

No technical words are necessary to devise a fee, and the intention of the testator, to be collected from the whole will, is to govern. (Jackson v. Babcock, 12 John. 389.) These principles are adopted by the revised statutes, and made applicable to grants as well as to