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civilization, as it is plainly expressed in the common law of Englishspeaking peoples.
We have alluded to the danger of rejecting well settled rules of the common law, because there may still be solitary instances of implied revocations of wills which can only await the attention of some future legislature for relief.
It was distinctly the rule of the common law, that a subsequent marriage of any single woman, widow, or maid was an implied revocation of her former will. This rule was but just to the future husband. Its express rejection in this State can not be pointed out, in any provision of the Revised Statutes, in the case of divorced women who remarry. The mere fact that by recent legislation the wife may now after coverture make a will which shall exclude the husband is not germane, or, if so, certainly not decisive of the question of implied revocation, by subsequent marriage, of a divorced woman's will, made during a former marriage." But the courts have held otherwise. 10
Will Revoked Declared Void, When. It has been held that a will, revoked by the subsequent remarriage of a testatrix, may be so declared on a final accounting of an administrator.11 But a devise so revoked may be declared null in any proper proceeding affecting title.12
A will of a nonresident female, who intermarries in this State and is domiciled in this State at the time of her death, is revoked by her marriage, as the law of this State is controlling. 13
8 Lovelass on Wills, 367; Langdon v. Astor's Executors, 16 N. Y. at p. 39.
9 The revisers admitted, that they might not have provided for all
See their note 18, Appendix II, infra.
10 See cases cited above.
§ 37. Bond or agreement to convey property devised or
bequeathed not a revocation. A bond, agreement, or covenant, made for a valuable consideration, by a testator, to convey any property devised or bequeathed in any will previously made, shall not be deemed a revocation of such previous devise or bequest, either at law or in equity; but such property shall pass by the devise or bequest, subject to the same remedies on such bond, agreement or covenant, for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.
Formerly 2 R. S. 64, 8 45:
§ 45. A bond, agreement, or covenant, made for a valuable consideration, by a testator, to convey any property devised or bequeathed in any will previously made, shall not be deemed a revocation of such previous devise or bequest, either at law or in equity; but such property shall pass by the devise or bequest, subject to the same remedies on such bond, agreement, or covenant, for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.14
Common Law. Before this section was enacted in the Revised Statutes, an agreement by the devisor to convey, or a contract by devisor for the sale of real property previously devised (as it amounted in equity to a conveyance and converted the devisee into a trustee for the purchaser15), provided such contract remained binding at testator's death, was as much an implied revocation of the devise as an actual conveyance would have been.16 If such contract remainded subsisting at the testator's death, even if it were afterward set aside by a court of law,17 or even if it was on proper grounds abandoned by the purchaser,18 it was never
14 Repealed, $ 130, Decedent Estate Law.
15 This is still the law as to title in equity, Lowell v. Underhill, 127 App. Div. 92.
16 Rider v. Wager, 2 P. Wms.
332; Cotter v. Layer, id. 623; Walton v. Walton, 7 Johns. Ch. at pp. 268, 269.
17 Bennett v. Earl of Tankerville, 19 Ves. 170.
heless a revocation. A will once revoked by implication could not be restored without republication.19
In short, before the Revised Statutes, any alteration in the circumstances of the testator raised a presumption of revocation. With respect to devises of real estate, the general principle was that at the time of his death the devisor must be in a position to exercise a right to dispose of the devised property, and the least alteration after the will in the thing devised, if by the devisor, made it a different estate, and consequently raised an implication of a revocation of the devise.20 The same or like principles applied generally in respect of bequests of personalty.” The exceptions and distinctions in this rule were, however, both numerous and slight, giving rise to litigations and questions of great refinement. In fact, the common law of implied revocation of wills was most unsatisfactory to the revisers of the Revised Statutes, who regarded the decisions as tantamount to a repeal of the Statute of Wills, which had intended to confer a full and unrestricted right to devise. 22
The sections of the Revised Statutes, relative to acts of the testator which do and do not constitute a revocation of wills and testaments, were given most careful consideration by the revisers of the Revised Statutes, and their notes on the reported sections furnish a careful commentary on the pre-existing common law of implied revocations of wills. So important are these “notes " to any understanding of the sections of the Revised Statutes relative to revocation of wills that they are cited extensively in the subsequent decisions bearing on this subject. As a preliminary to the exposition of such sections, such notes have become and are indispensable.”
18 Tebbott v. Voules, 6 Sim. 40.
19 Walton v. Walton, 7 Johns. Ch. 258.
20 Lovelass on Wills, 351, 352; I Powell on Devises, 547.
21 Lovelass on Wills, 362; Walton v. Walton, 7 Johns. Ch. 258.
22 See Notes of Revisers, Nos. 15, 18, Appendix II, infra.
23 See notes of revisers, 14, 15, 16, 17 and 18, Appendix II, infra.
Construction of this section. The Revised Statutes completely changed the former rule, that a mere contract to convey was always such an alteration of a devisor's circumstance as to constitute an implied revocation of the devise.24 The revisers believed that the wisdom of such change in the law was so apparent as to need no comment on their part.25 But at this point the note of the revisers was too condensed, and it is not always apparent, precisely how far this particular section is to be taken literally. Certainly the implication of a revocation of a devise, by a testator's mere contract to sell the land devised, was not absolutely conclusive of an intention to revoke a devise or bequest, especially where the devisee or legatee was a natural object of the testator's bounty and otherwise unprovided for. But that the old rule was without good reason is not so apparent as the revisers seemed to infer. However, this section of the statute is now controlling in such a case, and a testator's executory contract to convey the thing which he had previously devised by his will, is not now, in all cases, an implied or presumptive revocation, and the executory contract of sale may in some cases stand for the thing devised and pass with all its incidents to the devisees.
In what manner an executory contract of the deceased to sell the land previously devised by his will is to be performed or enforced, is often an interesting question, but one not necessarily involving the rights of the devisees of the land under this section, 2? and it need not therefore be here considered.
Concerning a testator's right to contract to sell property which he had devised in a prior will, there has not been and never could be any question. A will is ambulatory until death of testator, and its mere execution can not deprive a testator of the incidental power of disposition over his property as long as his life lasts.28 This section of the statute simply exchanges the old common law presumption of complete revocation, arising on an executory contract of sale, to a presumption of an intention to devise the thing sold, subject to the contract or bond.29 The section is really one addressed to a former rule of evidence.
24 Knight v. Weatherwax, 7 Paige, 182; Langdon v. Astor's Executors, 16 N. Y. at p. 39.
Revisers' Note 16, Appendix II, infra.
26 Knight v. Weatherwax, 7 Paige, 182. Cf. Beck v. McGillis, 9 Barb. 35; Brown v. Brown, 16 id. 569.
Sed. cf. Walker v. Steers, 14 N. Y.
27 Roome v. Phillips, 24 N. Y. 463; again 27 id. 357, 364; Holly v. Hirsch, 135 id. 590, revg. 63 Hun, 241; Guelich v. Clark, 3 T. & C. 317.
This section of the statute now provides, that a bond, contract or covenant, made for a valuable consideration, to convey the property devised or bequeathed, shall not any longer be taken to be a revocation of a prior will devising or bequeathing such property.30 The section is addressed, as just stated, to a change in the former law on the same subject.31 As also stated before, all these sections on revocation relate to old presumptions de jure. But this section relates only to sales which are in fieri, and when such sales are once consummated in the lifetimes of the testator, the presumption of revocation of a prior will is still the other way."
Executory Contract. That an executory contract of sale is never in itself any longer a revocation of a prior devise or bequest is not, however, apparent from the decisions.33 This section is to be read in connection with the others in pari materia and particularly with sections 39 and 40 of this act.34 Whenever the title to a thing devised or bequeathed ceases in all degrees as to the testator, it would still seem that his contract of sale worked a revocation of his prior devise or bequest.35
28 Middleworth v. Ordway, 191 N. Y. 404, 411.
29 Sce Roome v. Phillips, 27 N. Y. at p. 364; Vandemark v. Vandemark, 26 Barb. 416.
30 Knight v. Weatherwax, 7 Paige, 182; Langdon v. Astor's Executors, 16 N. Y. at p. 39.
31 Supra, p. 273.
32 88 39, 40, Decedent Estate Law; McNaughton v. McNaughton, 41
Barb. 50, affd., 34 N. Y. 201 ; Beck v. McGillis, 9 Barb. 35; Walker v. Steers, 14 N. Y. Supp. 398.
33 Walker v. Steers, 38 St. Rep. 654, 14 N. Y. Supp. 398; Sewell v. Underhill, 127 App. Div. 92.
34 See $8 39, 40, Decedent Estate Law.
35 See the admirable opinion of Harris, J. in Beck v. McGillies, 9