they might have omitted some cases which the Legislature could, however, supply, if necessary, in the future.51 Meanwhile, such omitted cases would, as it seems at present from the authorities, not continue to be constructive or implied revocations of prior wills. A will would consequently stand unrevoked by circumstances not specified in the statute, although all implied revocations are now in this State assumed to be abolished.52 The only matters in pais which now constitute a subsequent revocation of a prior will are concisely summarized in Langdon v. Astor's Executors.53

Construction of Section. The present section repeats the Revised Statutes and therefore is to receive the same judicial construction.54 The section is a plain mandate that a partial change in the situation of property devised or bequeathed by a prior will shall be taken to operate as a revocation pro tanto, or only in so far as is necessary.55 No other section of the statute is clearer in its meaning or contains fuller directions for judicial construction. Indeed it is a mandate for cy pres construction. If an alteration in property passing by a devise or a bequest shall take place after a will is made, and the testator still retains an estate or interest of some kind in such property, that estate or interest so retained, if capable of passing by descent or on an intestacy, will pass to the devisee or legatee, and such change will not work a revocation of a prior will.50 But if the testator's alienation is complete, the rule is otherwise.57

The line between alienations which divest the testator of all dispositional interest, and those which do not, is perhaps narrow; but the section seems to be addressed to the retention of some

51 See Revisers' Note 18, Appendix II, infra.

52 § 34, Decedent Estate Law; Langdon v. Astor's Executors, 3 Duer 447, 558 16 N. Y. 9, 39; Delafield v. Parish, 25 id. 9, 99; Matter of Davis, 105 App. Div. 221, 228, affd., 182 N. Y. 468.

53 16 N. Y. at p. 39.

54 See Fowler, Real Prop. Law (3d ed.), 91.

65 Arthur v. Arthur, 10 Barb. 9;

Vandemark v. Vandemark, 26 id. 416, 418.

56 Adams v. Winne, 7 Paige, 97, 99; Langdon v. Astor's Executors, 16 N. Y. at p. 39; Vandemark v. Vandemark, 26 Barb. 416, 418.

57 McNaughton v. McNaughton, 34 N. Y. 201, 206; Adams v. Winne, 7 Paige, 97; Beck v. McGillis, 9 Barb. 35; Philson v. Moore, 23 Hun, 152; Brown v. Brown, 16 Barb. 569; Matter of Gilman, 65 Misc. 409.

interest which constitutes a dispositional title in equity or at law; the mere retention of a lien by the testator, either legal or equitable, on an alienation, will not suffice to pass the proceeds of sale to the devisee or legatee.s

This section is extensive in operation; it refers to alterations in the property devised or bequeathed by any subsequent settlement, deed, or other act of the testator, but which shall not wholly divest the title of the testator. Such alterations are not per se any longer sufficient to work a revocation of a prior devise or bequest of the property affected by the subsequent settlement, deed or other act of the testator.59 But where they do divest the testator of title, they continue to work a revocation of his prior devise or bequest.

60

Reservation in this Section. This section reserves from its operation a will which the testator specially declares revoked in the instrument by which the alteration in his property is made. It will be readily perceived, that such instrument need not comply with the terms of section 34 of this act, and yet that it will be operative as a written revocation under this section. For example, if testator makes a written contract of sale of specific property, and in such contract, not witnessed or acknowledged, states that he intends such contract to operate as a revocation of his prior will, it will so operate, notwithstanding section 34 of this act.61

Sections 39 and 40 of this act, like their originals in the Revised Statutes, are to be read together. The sections are grammatically, and even technically, from the point of view of the original revisers, inseparable. They form branches of one remedial statute and both together are evidential of but one and the same intention."

58 Walker v. Steers, 14 N. Y. Supp. 398, and see under next section.

5939, Decedent Estate Law.

60 $ 40, Decedent Estate Law; McNaughton v. McNaughton, 34 N. Y. 201, 206; Burnham v. Com

614

fort, 108 id. 535, 540; Walker v. Steers, 38 St. Rep. 654.

61 See, however, the language of opinion, Matter of Goldsticker, 192 N. Y. at p. 37.

Gia Gray, Nature and Sources of Law, § 393.

§ 40. Conveyance, when to be deemed a revocation. But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen.

Formrly 2 R. S. 65, § 48.

8 48. But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen.62

The Old Law before the Revised Statutes. Prior to the Revised Statutes, if a testator alienated the thing previously devised or bequeathed, the devise or specific bequest was thereupon impliedly revoked both at law and in equity. It was a conclusive presumption of law that such an alienation, as it was precisely contrary to the terms of the prior devise or bequest, was in itself a revocation. A will being ambulatory, the testator was always within his rights in so alienating a thing he had previously intended to give or pass by his will. Any other construction would have been an intolerable fetter on the power of alienation.

The embarrassment in the old law was not, that actual transfers or alienations of the thing devised or bequeathed operated as an implied or presumptive revocation of a prior will, but that even testator's intended alteration in the thing so devised or bequeathed often so operated and on very slight grounds. The reason that such partial or slight alterations so operated was to be found in old doctrines of the common law favoring the heir on every con

62 Repealed, § 130, Decedent Estate Law.

63 Lovelass on Wills, 352; 1 Powell on Devises, 548.

65

64 See I Powell on Devises, 547, 548.

65 See opinion in Walton v. Walton, 7 Johns. Ch. 268.

struction of devises away from him." In regard to complete or executed alienations of things devised, there was and still is no help for the application of a doctrine of revocation, for the testator has by such alienation put it out of his power any longer to devise or bequeath the property alienated.

The Revised Statutes. The Revised Statutes, now re-enacted in this section, did not attempt to change the former rule, that an absolute and executed alienation of a thing previously devised or bequeathed constituted a revocation of a prior will or an ademption of a prior specific bequest. On the contrary, the statute, now expressed in this section, completely affirmed that rule. But the revisers did not intend that executory or partial alienations should longer constitute per se such a revocation. The reforms in the old law were really addressed to the law of revocation by partial alienations and to the legal presumptions deduced there from.67 The present sections is but a complement of the prior section of the Decedent Estate Law.

Construction of the Statute. The present section is a mere re-enactment of a like provision in the Revised Statutes, and it will receive the same construction. That an executed alienation of property previously devised or bequeathed still operates as a revocation of the devise or bequest, there is no question. Nor could there be any such question, by reason of the ambulatory nature of wills.70

The real difficulty arises, not by reason of the former common law on this subject, but because of the precise language of the reformatory statute itself, as applied to a case where the testator has taken back some security for the purchase money." But the rule is now held settled in this State, and where the subsequent act of alienation is complete in itself, the revocation of the prior will is complete, and the devisee or legatee is not entitled to follow the proceeds of the executed sale, unless there is a direction in

66 See text under prior section, and I Powell on Devises, 548. 67 39, Decedent Estate Law.

68 40, Decedent Estate Law. 69 See authorities cited, Fowler's Real Prop. Law (3d ed.), p. 91.

70 McNaughton v. McNaughton, 34 N. Y. 201, 203, 206; Dowd's Will, 8 Abb. N. C. 118.

71 §§ 37, 38, and 39, Decedent Estate Law.

the will for a conversion, and the devisee or legatee is otherwise entitled by the terms of the will to such proceeds.72

Where the devisor conveys the property devised, and it is reconveyed to him, the conveyance does not operate as a revocation.73

Executory Contract of Sale. That an executory contract may in some cases, notwithstanding section 37 of this act, still operate as a revocation of a prior devise or bequest seems apparent from the cases.74

75

By the law, as it stood before the Revised Statutes, a conveyance, even if for the use of the testator, operated as a revocation of a prior devise, and parol evidence was inadmissible to show that the testator meant his prior will to remain in force, unrevoked by the subsequent conveyance. But since the Revised Statutes, it is doubtful if an alienation to the proper use of the grantor would revoke his prior will, as where the testator conveys, and the property is reconveyed to him, there is now no revocation of a prior will of such property because of the first alienation.7

This section especially excepts from its operation contingent or conditional conveyances when the condition is not performed or the contingency does not happen. But the exception last noticed evidently means a condition or contingency affecting the conveyance itself, and not a conveyance which is absolute as to grantor, but made on, or subject to, some contingency or condition subsequent, which may ultimately defeat the grant.

72 Beck v. McGillis, 9 Barb. 35; Brown v. Brown, 16 id. 569; Vandemark v. Vandemark, 26 id. 416; Langdon v. Astor's Executors, 16 N. Y. 9, 39; McNaughton v. McNaughton, 34 id. 201, 203; Barstow v. Goodwin, 2 Bradf. 413; Philson v. Moore, 23 Hun, 154; Dowd's Will, 8 Abb. N. C. 118.

73 Brown v. Brown, 16 Barb. 569.

74 Walker v. Steers, 38 St. Rep. 654, 14 N. Y. Supp. 398; Burnham v. Comfort, 108 N. Y. 535, 540; Sewell v. Underhill, 127 App. Div. 92.

75 Lovelass on Wills, 352, 353.

76 Brown v. Brown, 16 Barb. 569. Sed cf. Walton v. Walton, 7 Johns. Ch. at p. 269.