20 lished principles of construction the definition of codicil is controlled by the common law. In the civil law a codicil was an informal will, and the appointment of an heir could not in that system be made by codicil. But this distinction, though at first recognized to some extent by the ecclesiastical lawyers of England,28 was ultimately abandoned, and a "codicil" was finally defined in law as a formal supplement to a will, and it had to be executed with all the formalities required by the Statute of Frauds in respect of a will. At the present day a codicil must be executed with all the formalities essential to a will under the statute now in force, and it no longer makes any difference whether such codicil relates to real property or to personal property. The rule as regards both kinds of codicils is the same.30 If a codicil is duly executed it operates as a republication of the original will, if that has been also executed in accordance with the statute.31 But, at this writing, it seems that it does not operate as a publication of a prior will or testamentary writing which is informally or defectively attested.32 Not only does a codicil, duly executed, operate as a republication of an original will also duly executed but it is to be taken as part of such will for purposes of construction. All testamentary instruments must be construed together and their separate dispositions reconciled if possible. But if irreconcilable or inconsistent the codicil, as the latest disposition, controls, and it may operate as a constructive or pro tanto revocation, or as a revocation of a later will and the revival and republication of an earlier one.3 33 27 Supra, p. 2, Introduction. 28 I Williams on Exrs. (ed. 1838) 7. Cf. Matter of Davis, 45 Misc. 554. 29 Lea v. Libb, 3 Carth. 35; 3 Mod. 262; Mooers v. White, 6 Johns Ch. 360, 375; Brown v. Clark, 77 N. Y. at p. 376. 30 Burhans v. Haswell, 43 Barb. 424; Brown v. Clark, 77 N. Y. 369, 376. 31 Canfield v. Crandall, 4 Dem. III, 119; Langdon v. Astor's Executors, 16 N. Y. 9. 57; Matter of Campbell, 170 id. 84. See under § 35 34, Decedent Estate Law, Revocation and Republication. 32 Matter of Emmons, 110 App. Div. 701; Matter of Carll, 38 Misc. 471, 475. See note 21, p. 134, supra. 33 Hard v. Ashley, 117 N. Y. 606, 613; Goodwin v. Coddington, 154 id. 283; Matter of Tompkins, 154 id. 634; Herzog v. Title Guarantee & Trust Co., 177 id. 86. 34 Wetmore v. Parker, 52 N. Y. 450; Burnham v. Comfort, 108 id. 535; Redfield v. Redfield, 126 id. 466; Matter of Campbell, 170 id. 84, 87. 35 Matter of Campbell, 170 N. Y. Conjoint or Mutual Wills. A conjoint or mutual will executed by two or more persons, in conformity with the Statute of Wills, is valid and binding, and may be admitted to probate on the decease of any one of the parties. Such a will operates as the separate will of whomsoever dies first.36 Conditional Wills. A will may be on its face conditional, and in that event takes effect only on the happening of the specified condition. But the condition can not be annexed subsequently to execution, unless the will is re-executed or regularly revoked.38 Duplicate Wills. A will may be executed in parts, duplicate or triplicate. On a probate it is proper that all the parts be exhibited, so as to prove that they are alike, and that no part has been revoked, for the revocation of one part is the revocation of all.39 Disposal of Estates by Will and Testament. Having glanced at the legal requirements for a last will and testament, under the present Statute of Wills, we may next briefly consider what estates and interests may now pass by will or bequest in this State, and first the estates and interests in real property. Real property may now be conveyed by devise under the Statute of Wills.40 But it must conform to the statute regulating estates, for a devise remains primarily a conveyance as before the Revised Statutes.11 We have seen that every estate and interest in real property, which can descend to heirs, may be devised to any one testator sees fit, and even to the total disinherison of his heirs.42 But it may 84. Cf. Matter of Frost, 38 Misc. 404; Matter of Farmers' Loan & Trust Co., 138 App. Div. 121. 36 Ex parte Day, I Bradf. 476; Matter of Will of Diez, 50 N. Y. 88; Matter of Forman's Will, 54 Barb. 274; Ex parte McCormick, 2 Bradf. 169. 37 Ex parte Lindsay, 2 Bradf. 204. 38 Matter of Goldsticker, 123 App. Div. 474, affd., 192 N. Y. 35. 39 Crossman v. Crossman, 95 N. Y. 40 § II, supra. 41 See p. 26, supra; 1 Buller's Nisi Prius 245, citing Roll. 678; Van Alst v. Hunter, 5 Johns. Ch. 148, 155; Rogers v. Rogers, 3 Wend. 501, 514; Anderson v. Anderson, 112 N. Y. at p. 113; Cooley v. McElmeel, 149 N. Y. 228, 235; Dixon v. Cozine, 64 Misc. 602. 42 § II, Decedent Estate Law. 43 be devised for estates or interests only pursuant to the rules set forth in the "Real Property Law" which now regulates the creation and the division of estates in lands. It is a question whether that statute ever contemplated regulating the unrestricted assignment of existing lawful estates, for they can not be said to be created or divided, and the statute treats only of the creation and division of estates. For example, if A, lawfully seised of an estate in fee simple, assigns or devises such estate in fee simple without restriction to B, a living person, no new estate is thereby created or divided, but B, on A's death, succeeds to all the rights and liabilities of A in respect of such existing estate in fee simple.** As there can now be no restraint on the power of alienation of any owner of an estate in fee simple absolute, A's right to so devise is implied by the estate conveyed, and if B is a citizen of the United States he has full capacity to take such estate by devise, and there can be no inherent question of invalidity arising on any such devise. But if A desires to carve out of his fee simple estate any lesser estate than his own, or to limit derivative estates out of his fee simple, then the "Real Property Law" will determine their validity, and the limitations by testator must conform to the rules prescribed by that law, if he wishes to have his will effective. Estates in land are now those interests in real property which are recognized by the courts of law and which the common law protects, as the Revised Statutes abolished "equitable estates" in this State.45 We shall next consider what limitations of estates are now valid by the present rules regulating estates. General Scheme of a Will. If an intending testator, seised of a fee simple, desires to give life estates, carved out of such fee. simple, and wishes to retain the reversion, if undevised the reversion will pass to his heirs-at-law. If he desires to will the reversion also he may do so at his pleasure, as it is always a vested estate. If the testator desires to limit successive life estates by will to persons in existence, without contingency and for their own 43 Chap. 50, Consolidated Laws of 1909 44 Fowler's Real Prop. Law, (3d ed.) 145. 45 1 R. S. 729, § 60, now § 100. Real Prop. Law. 46 lives, then he must be careful not to violate those rules of the statute which now regulate the limitation, of successive vested life estates. If on the other hand he desires to give life estates to persons only on some contingency, or so that such life estates will not vest at his death, then he must be careful not to violate the existing rule against a perpetuity.47 If he desires to limit estates for the life of others than the devisee, then testator must have regard to the sections regulating estates pur autre vie.18 The statutory rules governing limitations of estate in this State since the Revised Statutes are simpler than the old rules then abolished. On the other hand, if a testator wishes to give legal estates to trustees on trusts allowed by the Revised Statutes, he must be careful not to offend against the statutory rules now governing trusts of lands.49 If he wishes to give away a power to deal with the title to the estate in future, he must have careful reference to the present article on Powers.50 In the eighty years which have elapsed since the enactment of the Revised Statutes most of its provisions have been passed on by the courts in a series of wise and painstaking decisions, and a harmonious law of real property consequently now exists in this State. But owing to the multifarious exigencies of human affairs there is sometimes even yet a clash or conflict between the old common law and the statutes, and then until the courts apply the right principles some confusion in the law of property necessarily ensues. But on the whole this State has now a law of property which it has reason to be proud of, as it has proved to be well adapted to its various and complex needs and also to the wellbeing of the people of the State. In any settlement of an estate, whether by devise or other conveyance, the settlor must have constant reference to the revised rule against perpetuities, as first stated in the Revised Statutes but now expressed in the Real Property Law. This rule, it will be remembered, precludes any creation or limitation of a future estate which suspends the power of alienation beyond two lives in being, except that a contingent remainder in fee may be created on 46 §§ 43, 47, Real Prop. Law. 49 Art. 4, Real Prop. Law. a prior remainder in fee to take effect in the event that the persons taking the first remainder die under full age.51 Life Estates for Devisee's Own Life. If a testator wishes to devise his estate in fee simple for life estates to a person or persons in being to hold for life of devisees, with remainder over in fee, the Real Property Law now precludes the limitation or creation of more than two such particular life estates to persons in being, supporting the remainder in fee simple. But if a testator has more children than two, there is nothing to prevent his subdividing his estate into parcels and giving each parcel for estates for two lives in being, with unrestricted remainders over in fec simple to whomsoever he may please. 53 52 55 If the testator should limit more than two successive life estates to persons in being, all such life estates, beyond the first two, are void in their creation, and the remainder in fee, if vested, is accelerated or takes effect on the expiration of the two first successive life estates.54 If no remainder is limited after the life estates, the rule would be the same as to the reversion, which would take effect in possession after the effluxion of the first two life estates; the statute declaring all the other life estates void irrespective of the character of any ultimate limitations. Any number of successive vested life estates does not suspend the power of alienation, but those beyond two are prohibited by the statute regulating the limitation of successive life estates.50 The limitation of any number of successive vested life estates has no tendency to a perpetuity, nor does a limitation of any number of such estates avoid the limitation of the two first, which remain valid. The statute only avoids those successive life estates beyond the two first permitted.58 Cutting down the number of suc 51 § 42, Real Prop. Law; Herzog v. Title Guaranty & Trust Co., 177 N. Y. 86, 92. 52 § 43, Real Prop. Law; Purdy v. Hayt, 92 N. Y. at p. 451. 53 Snedicor v. Congdon, 41 App. Div. 433; Bailey v. Bailey, 97 N. Y. 460, 470. Cf. City of Brooklyn v. Seaman, 30 Misc. 507. 64 54 45, Real Prop. Law. 55 A reversion may pass by the name of remainder, or e converso; 2 Preston, Abstracts, 88. 56 § 43, Real Prop Law; Purdy v. Hayt, 92 N. Y. at p. 451. 57 Woodruff v. Coke, 61 N. Y. €38; Tiers v. Tiers, 98 id. 568. 58 Purdy v. Hayt, 92 N. Y. at p. 452. |