It must be apparent that where a devise or bequest is intended to be clearly substitutional for one that fails by reason of the death of the first taker in testator's lifetime, the doctrine of lapse has no application.22 Whether the second devise or bequest fails because the first fails is, however, a more difficult question, although one not related to the doctrine of lapse. This question depends on the existing law of remainders and conditional limitations. If the devise is to take effect as a conditional limitation it is very clear that the limitation over will take effect even if the first devise fail by reason of the death of the first taker in the testator's lifetime.23 But if the devise is clearly one which takes effect as a contingent remainder, limited on a life estate which fails, by reason of the death of the intended tenant of the particular estate in the testator's lifetime, it is not so clear from the cases that the contingent remainder may not still fail, even since the Revised Statutes.24

(3) Remainders Limited on Void Particular Estates. Since the old Statute of Wills the modern judicial tendency doubtless is to treat all future limitations raised by devise as executory devises, or conditional limitations, and not as remainders, so as to preserve the secondary gifts over.25 When the later editions of Mr. Jarman's Treatise on Wills speak of accelerating remainders, by reason of the death before testator of the tenants of the particular estates supporting such remainders, it will be found that the cases referred to are invariably cases turning on devises. The first English edition of Jarman more properly speaks of the acceleration of ulterior estates, and not of acceleration of remainders. Yet at times even in a will an ulterior estate is a remainder, and not an

22 Downing v. Marshall, 23 N. Y. at p. 370.

23 Norris v. Beyea, 13 N. Y. 273; McLean v. Freeman, 70 id. 81, 85; Williams v. Jones, 166 id. 522, 537; Kalish v. Kalish, 166 id. 368, 379; U. S. Trust Co. v. Hogencamp, 191 id. 281, 285; Lord v. Lord, 44 Misc. 530.

24 Campbell v. Rawdon, 18 N. Y. at p. 421; Schettler v. Smith, 41 id. at p. 347; Hennessy v. Patterson, 85

26

id. at p. 97; Cochrane v. Schell, 140 id. at p. 526; Morton Trust Co. v. Sands, 195 id. at p. 37. Cf. § 57, Real Prop. Law; Matter of Arensberg, 52 Misc. 261.

25 Fearne, Conting. Rem. 272, 274, 381, note; Perkin's Profitable Book, $$ 567, 568; Kalish v. Kalish, 166 N. Y. at pp. 378, 379; Ranken v. Janes, I App. Div. 272.

26 6th American Ed., Jarman on Wills, vol. 1, p. 568.

executory devise, for it must be remembered that a devise will never be adjudged an executory devise if it can take effect as a remainder.27

Where a devise over is in law indubitably a contingent remainder, and the particular estate preceding it fails in the lifetime of testator, by the death of the tenant of the particular estate, it is difficult to affirm in every case that the validity of the limitation as a whole should be maintained or regarded as unaffected by the failure of the particular estate.28 This difficulty will be, perhaps, better illustrated if we refer to a remainder in a chattel real such as a term in esse for fifty years. Estates in chattels real are subject to the statutory rules governing particular legal estates and remainders carved out of an estate in fee simple.29 If a testator possessed of a term of fifty years, worth, say, net ten thousand a year, should bequeath it to his son for his life or forty-five years (and no longer) if the son so long live, remainder to a charitable corporation nominatim, and the son should then die without issue before the father, would the remainder to the charitable corporation fail, because the particular estate failed? It was obviously the intention of testator to give but a very small part of the term to charity, but if the limitation of the remainder is supported, even though the particular estate fail, the charity will take the whole residue of the term as against the representatives of the father's estate. If, on the other hand, the law of remainders applies, the devise over may fail.30

(4) Death of remainderman after testator. The doctrine of lapse has no application to the death of a remainderman after testator, although the particular estate may not yet have terminated."1

27 Manice v. Manice, 43 N. Y. at p. 368; Miller v. Van Schwarzenstein, 51 App. Div. 18, 23.

28 See cases cited note 15, Fowler, Real Prop. Law (3d ed.) 256; Campbell v. Rawdon, 18 N. Y. at p. 421; Schettler v. Smith, 41 id. at p. 347; Hennessy v. Patterson, 85 id. at p. 97; Cochrane v. Schell, 140 id. at p. 526; Morton Trust Co. v. Sands, 195 id. at p. 37.

29 §§ 33, 49, Real Prop. Law.

30 Cf. Schettler v. Smith, 41 id. at p. 347; Cochrane v. Schell, 140 id. at p. 526; Morton Trust Co. v. Sands, 195 id. at p. 37.

31 Stokes v. Weston, 142 id. 433. Cf. Finley v. Bent, 95 id. 364; Matter of Weinstein, 43 Misc. 577.

§ 30. Reception of wills for safe keeping. The clerk of every county in this state, the register of deeds in the city and county of New York, and the surrogate of every county, upon being paid the fees allowed therefor by law, shall receive and deposit in their offices respectively, any last will or testament which any person shall deliver to them for that purpose, and shall give a written receipt therefor to the person depositing the same.

Formerly 2 R. S. 404, § 67:

$ 67. The clerk of every county in this state, the register of deeds in the city and county of New York, and the surrogate of every county, upon being paid the fees allowed therefor by law, shall receive and deposit in their offices respectively, any last will or testatment which any person shall deliver to them for that purpose, and shall give a written receipt therefor to the person depositing the same.32

Comment. Under section 21 of this chapter some tentative remarks were advanced concerning the public execution of wills and testaments before public officers, and the subsequent deposit of such wills in public offices.33 In some of the Continental states all wills not holographic are thus executed in order to prevent fraud and circumvention. The revisers of the Revised Statutes were evidently of the opinion, that the mere deposit of wills in public offices would be conducive to a like result, and they proposed the original of this section, with this idea in mind.34 It may, however, be doubtful in practice whether a mere public deposit of a will without its public execution would produce the desired result.

32 Repealed, 130, Decedent Estate Law.

33 See p. 122, supra.

34 See note 12, Appendix II, infra.

§ 31. Sealing and indorsing wills received for safe keeping. Such will shall be inclosed in a sealed wrapper, so that the contents thereof can not be read, and shall have indorsed thereon the name of the testator, his place of residence, and the day, month and year when delivered; and shall not, on any pretext whatever, be opened, read or examined, until delivered to a person entitled to the same, as hereinafter directed.

Formerly 2 R. S. 405, § 68:

68. Such will shall be enclosed in a sealed wrapper, so that the contents thereof cannot be read, and shall have endorsed thereon the name of the testator, his place of residence, and the day, month and year when delivered; and shall not, on any pretext whatever, be opened, read or examined, until delivered to a person entitled to the same, as hereinafter directed.35

Comment. This section and sections 30 and 32 of the Decedent Estate Law are complementary, one of another. They all relate to the same act - a formal deposit of a last will and testament in a public office. When the deposit is made by the testator in person it certainly affords some evidence of animus testandi or publication, and as in the instance of holographic wills the courts might then require less rigid proofs of the publication of a will thus deposited by the testator himself.36

35 Repealed, § 130, Decedent Estate Law.

36 See supra under § 21, p. 121;

and Dan v. Brown, 4 Cow. at p. 491.

§ 32. Delivery of wills received for safe keeping. Such will shall be delivered only,

I. To the testator in person; or,

2. Upon his written order, duly proved by the oath of a subscribing witness; or,

3. After his death to the persons named in the indorsement on the wrapper of such will, if any such indorsement be made thereon; or,

4. If there be no such indorsement, and if the same shall have been deposited with any other officer than a surrogate, then to the surrogate of the county.

Formerly 2 R. S. 405, § 69:

$69. Such will shall be delivered only,

1. To the testator in person: or,

2. Upon his written order, duly proved by the oath of a subscribing wit

ness: or,

3. After his death, to the person named in the endorsement on the wrapper of such will, if any such endorsement be made thereon: or

4. If there be no such endorsement, and if the same shall have been deposited with any other officer than a surrogate, then to the surrogate of the county,37

Comment. Under the two preceding sections of this chapter some remarks have been offered touching the results of the public execution and the public deposits of last wills and testaments. That such a course is foreign to the habits of English-speaking peoples has been intimated in the introduction. But an argument based on habit and tradition is of slight value. The tendency of modern jurisprudence is to eclecticism in practice, and to a system of law which shall be general to mankind. It will be found on an examination that even Roman law benefited by absorption, and that in England and America the most philosophical branches of jurisprudence are to be found in the departments which are most influenced by the laws common to all nations.

37 Repealed, $ 130, Decedent Estate Law.