§ 38. Charge or incumbrance not a revocation. A charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the performance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previously executed; but the devises and legacies therein contained, shall pass and take effect, subject to such charge or incumbrance.

Formerly 2 R. S. 64, § 46:

$ 46. A charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the performance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previously executed; but the devises and legacies therein contained, shall pass and take effect, subject to such charge or incumbrance.36

Law before the Revised Statutes. As stated by the revisers in their note to this section of the Revised Statutes, in equity a mortgage or charge on lands was only a revocation of a prior will pro tanto, as in equity the mortgagor still represented the beneficial interest. But at law, a mortgage was a revocation of a prior devise. The revisers intended to make the rules on this point uniform in all the courts,38 so they adopted, as they always did in like cases, the equity rule as the more advanced and liberal rule for all cases.

37

Present Law. At the present time, as stated above, the former rule in equity was by the revisers made the rule at law, and a mortgage or charge after a devise or bequest is no longer a revocation of a prior will, either at law or in equity.39 The rules at law and in equity are now uniform.

It is difficult to see that this section of the statute accomplishes more than the revisers intended. When the mortgage or charge is foreclosed, or the property devised is sold, or its nature so com

36 Repealed, § 130, Decedent Estate Law.

37 Lovelass on Wills, 355; I Powell on Devises, 555.

38 See Revisers' Note 17, Appendix II, infra.

39 Langdon v. Astor's Executors, 16 N. Y. at p. 39; Vandemark v. Vandemark, 26 Barb. 416, 418.

pletely changed as to be inconsistent with a devise in specie, it must be apparent that this section has no application to a question of revocation of a prior will by a mere mortgage or a charge. The solution of the question of revocation in such cases then depends on other sections of the statute.40

40 See §§ 39, 40, Decedent Estate Law; Adams v. Winne, 7 Paige, 97; Beck v. McGillis, 9 Barb. 35; Brown v. Brown, 16 id. 569; McNaughton,

v. McNaughton, 41 id. 50, affd., 34 N. Y. 201; Philson v. Moore, 23 Hun, 152, and see text under next two sections of this act.

§ 39. Conveyance, when not to be deemed a revocation. A conveyance, settlement, deed, or other act of a testator, by which his estate or interest in property, previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property; but such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless in the instrument by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or bequest.

Formerly 2 R. S. 65, § 47:

847. A conveyance, settlement, deed, or other act of a testator, by which his estate or interest in property, previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property; but such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless in the instrument by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or bequest.41

42

The Problem of the Revisers of the Revised Statutes. This section, at present under consideration, and that next succeeding,43 necessarily bring up for review the intricacy and the refinements of the old law relative to implied revocations of prior wills. The old revisers, with their habitual skill and perspicacity, have, in their more extended note to the sections dealing with the revocations of wills, summed up the entire situation which they wished to remodel. Nothing more admirable than this note exists in the entire literature on this subject.**

The revisers, it must be remembered, were, however, disciples of the school to which Lord Mansfield belonged, and they always

41 Repealed, § 130, Decedent Estate Law.

§ 39, Decedent Estate Law.

438 40, Decedent Estate Law. 44 See Revisers' Note 18, Appendix II, infra.

45

stood for the modernization of the common law. The entire Revised Statutes exemplifies the truth of this statement. The revisers' attitude toward purely feudal principles in the common law was generally that of opposition, as they had no delicate problems of vested interests to deal with, such as those then existing in England, so long the suzerain of New York, and from which its laws were derived. It is possible to admire the professional work of the "great revisers," (and beyond any of their predecessors in this State, those of the Revised Statutes deserve that title) and yet discern at times that their impatience with some parts of the old law of English-speaking peoples is not always so well founded as they wished to believe. The debates in the Constitutional Convention of 1821 were not always temperate, and to some extent they had a subtle influence on subsequent events and the framers of the Revised Statutes as well. Both those debates and the Revised Statutes were important instruments in fixing the present law, and in sweeping away the old legal institutions, habits and manners, which were the heritage of past centuries.

46

47

Implied Revocations of Prior Wills before the Revised Statutes. Prior to the Revised Statutes, almost every alteration in testator's circumstances was a presumptive revocation of his prior will, whether testator retained an interest or not. We have seen before in this treatise that a devise was regarded in the old law as a specific appointment to uses. Consequently, under the old law, a devise never operated on after acquired estates. So a testamentary gift in specie was presumptively revoked, when the testator dealt with the thing bequeathed in a manner inconsistent with a continued intention to bequeath it.

The application of such principles, no doubt, tended to give rise to extremely nice questions of construction, and some errors were

45 At the date the Revised Statutes took effect, they were considered very radical in many respects. 46 Ten years after the Revised Statutes, the extent of the revisers' changes was not fully realized, and the New York law books still continued to be filled with English cases, and citations that had, in

great part, ceased to be relevant. See for example Taylor's "PreceIdents of Wills," New York, 1843.

47 Lovelass on Wills, 351, 352, et seq.; Powell on Devises, 547 seq.; Walton v. Walton, 7 Johns. Ch. 271; Beck v. McGillis, 9 Barb. 35, 53.

consequently inevitable. That the old law concerning constructive revocations was as aggravated, as the revisers considered, may be open to some question, for the jurisprudence of the seventeenth and eighteenth centuries was a masterly product of the human mind. It is impossible to read the old books on presumptive revocations of wills, such as Powell and Lovelars, and conclude that the old law of revocation was unsuited to the age, or that it was irrational, illogical or devoid of reason. The fact was, that at the time the Revised Statutes was enacted, social conditions had changed and demanded a new expression of law. But that the old law was inherently defective is questionable. The common law greatly favored the heir and there was a uniform solicitude to prevent his disinherison. In the eighteenth century, questions of revocation of devises were intimately concerned with the rights of the heir, in a country where the steady succession to landed property was of the utmost importance to existing political conditions.48 When the franchise was confined to freeholders in this State, even after the alteration in the law of descent, the same importance was attached to implied or constructive revocations of devises. But when the Constitution of this State was altered in this respect, and lapsed devises were made to pass to the residuary devisees and not to the heir, it was very proper to alter the law relative to implied revocations of prior devises. This is probably the extent of the just criticism on the old law of construction of presumptive revocations favoring the heir. The new law is doubtless better adapted to existing institutions. It is necessary to go no farther in the condemnation of the old law concerning presumptive revocations of wills.

The Revised Statutes. The scheme of the Revised Statutes was to change the old law of presumptive or implied revocations of prior wills by circumstances happening posterior to the will, and allow such revocations only in the extreme or prominent instances specified in the statute.50 But the revisers conceded that

48 Sir Thomas E. Tomlins pointed this out in 1835, in his article on the old law of implied revocation of wills, and see I Powell on Devises, 548.

49 Similar alteration of the law of England followed the Revised Stat

utes.

50 See Revisers' Notes, 14, 15, 16, 17, 18, Appendix II, infra.