ample notice to all interested; by providing means for ascertaining debts; by insuring responsibility for the proceeds, and by protecting heirs and devisees from the consequences of a sale.

"8. Cases have occurred to point out the necessity of having a public officer in each county, to take charge of the assets of strangers. The act concerning the public administrator in New York, has therefore been extended and applied to other counties. It is believed it will be useful in securing property for the benefit of distant heirs, or of the state, if no claimant appears, from the grasp of those who may volunteer to take charge of it."

Original Particular Notes of the Revisers. 1. The first and fifth sections of the act concerning wills (1 R. L. 364) enlarged, so as to comprehend every species of real property, and terminate the disputes that constantly arise on the construction of the present statute. It is now a matter of serious doubt, and the question is pending in our highest court, whether all interests which descend to heirs, can be devised. This doubt is intended to be removed so far as future wills are concerned, by this section.2

2. "Intended to reconcile the first section of the acts concerning wills (1 R. L. 364) with the provisions concerning religious corporations (2 R. L. 214) and with various special acts authorizing corporations to take by devise. It has been put into the form of a positive prohibition, with the view of calling the attention of the legislature to it, that it may be retained if it is intended to be prohibitory, or may be expunged if it is deemed unnecessary. It is a question now agitated in our courts, whether it is to be considered as a prohibition or not.3

3. "Under the statute as it is now construed, a devise of lands to an alien is not absolutely void, but vests in him, so as to disinherit the heirs, and enable the state to recover them by escheat. Vide 6 Johns. Ch., p. 366; 12 Mass. 143. While this construction prevails a testator is deceived by the words of the statute, which do not inhibit a devise to an alien, and he is then unconsciously led to give his property to the state. To remedy this, and in conformity to the usual practice of the legislature, in renouncing the title of the state to such property, as evinced by many statutes allowing aliens to retain property devised to them, this section has been drawn. Its effect will be, that if a person to whom lands are devised, be an alien at the death of the testator not competent to hold lands as against the state, they will not go to the state, but will descend to the heirs of the testator, or go to those to whom he shall have expressly devised the residue of all his estate. This is believed to be more just than the

2 Note I refers to 2 R. S. 56, 1, and 2 R. S. 57, § 2 (supra, pp. 50, 61), now made §§ 10 and 11, Decedent Estate Law.

3 Note 2 refers to 2 R. S. 57, § 3 (supra, p. 67), now made § 12 of the Decedent Estate Law.

present rule, and is precisely analogous to that which obtains in the case of lands descending to an alien.

4. New. Intended to guard against the questions that arise where a testator acquires property after making his will. There exists a distinction purely technical between the effect of general terms in a devise of real estate, and in a bequest of personal property. A bequest of "all a man's personal estate" passes all the property of that description owned by him at the time of his death; while a devise of "all his lands" is confined in its operation to the lands owned by him at the time of the last publication of his will. Yet it is hardly possible to doubt that the intention of the testator was in both cases the same. This distinction, from its nature, must be unknown to the larger number of those by whom wills are executed; and must, therefore, continue to operate, as it frequently has operated, to defeat the intent of the testator. When a man after making a will of all his property acquires more, but dies without any alteration of his will, unless he be a well-instructed lawyer, it may safely be affirmed, that his belief and expectation were, that all his property would pass, without reference to the time when it was acquired. Least of all, would he probably imagine that a different rule would prevail in disposing of the two kinds. This distinction, wholly arbitrary, and which has no foundation in reason, the revisers propose to abrogate; and thus attain the will of the testator, and produce a uniformity in the law.5

"

5. Same as presented by the revisers (2 R. S. 60, § 21) except that the Legislature altered the words fourteen to eighteen" in the case of males and "twelve" to "sixteen" in the case of females and inserted the words "and no others."6

Original note of revisers. "The sixteenth section of the present act (2 R. L. 367) declares, that persons may "bequeath their personal property by will in writing, in the same manner as if this act had not been passed." It seems to have been much controverted, what persons may bequeath, and in what manner, at common law. Vide 2 Black. Comm. 496; Toller, p. 23; Coke Litt. 89b; Hargrave's note (six) thereon. In drawing the above section an effort has been made to condense the common law as it seems to be understood by Justice Blackstone. The ages of twelve and fourteen seem to be too young, although the prevailing opinion is that such is the age fixed by law; it is, however, much controverted by Mr. Hargrave in the note above referred to, and seems to require legislative provision."

6. Sections (* * *) related to nuncupative wills, and conformed with some new guards and restrictions to the 14th, 15th and 17th sections of the

4 Note 3 refers to 2 R. S. 57, § 4 (supra, p. 71), now made § 13,

Decedent Estate Law.

5 Note 4 refers to 2 R. S. 57, § 5 (supra, p. 76), now made § 14, Decedent Estate Law.

6 Judge Edmund's note.

7 Note 5 refers to 2 R. S. 60, § 21 (supra, p. 78), now made § 15, Decedent Estate Law.

act of 1813 (1 R. L. 364) and to 20 Johns.; but the Legislature substituted in lieu thereof (2 R. S. 60) § 22, abrogating such wills except when made by soldiers or mariners.7a

7. The following original note of the revisers of the Revised Statutes needs a little explanation. The first intention of the revisers was to revise the Old Wills Act of this state (1 R. L. 364, § 2) which we have seen in the prior pages of this treatise was substantially and indeed almost literally the old English Wills Act of Henry VIII, with the clause of the Statute of Frauds (29 Car. II) relating to the execution of devises superadded. With this design in view the revisers in their first draft of the Revised Statutes prepared the following section relating to wills of real estate for submission to the Legislature:

"85. No last will and testament of real estate, or of any interest therein shall be valid unless the same be in writing; be signed by the testator, or by some other person for him, and in his presence, and by his express direction; and be attested by three or more credible witnesses, who shall subscribe their names as witnesses in the presence of the testator, and at his request."

To this proposed section the revisers appended the following original note: "I R. L. 364, 2d section; slightly varied in the hope of making it more explicit." "' 8a

The first intention of the revisers to provide separately for wills of realty was however abandoned, and in article third of tit. 1, chap. VI, part II, Revised Statutes, they finally regulated the execution of both wills of realty and wills of personalty in one section, making the requisites of both alike (§ 2, R. S. 63, § 40, original edition). To section 40 the revisers appended no distinct note. But the "preliminary note" to chapter VI is sufficiently explanatory of their purpose. This preliminary note was doubtless draughted subsequently to the one just before noticed and so as to serve as an introduction to chapter VI, part II, Revised Statutes, as finally completed.

8. Original note. "New. Whether the birth of a child after marriage, is a revocation, seems yet a matter of doubt. Vide, 4th Johns. Ch. Rep. p. 516, etc. Some legislative declaration seems expedient, and while the consequences of an entire revocation are avoided by the above section, a just provision seems to be made for a probable oversight, as it is placed on the condition that the child is not mentioned or referred to in the will. It is taken substantially from the laws of Virginia, revision of 1819, vol. 1, p. 376; and the same provision exists in most of the southern and southwestern states, and will be found in principle in Ist vol. Laws of Massachusetts, p. 94." 10

7a Note 6 refers to 2 R. S. 60, § 22 (supra, p. 84), now made § 16, Decedent Estate Law.

8 Supra, pp. 84, 85.

8a Note 7 refers to 2 R. S. 63, § 40

(supra, p. 106), now made § 21, Decedent Estate Law.

9 See p. 543, supra, Appendix II. 10 Refers to § 26, Decedent Estate Law.

9. Original note.11 The revisers here refer to 1 R. L. 364 twelfth section of same act, p. 367. "The words in italics and such will can not be proved without the testimony of such witness' inserted to remedy an apparent defect, because the will may be proved without the legatees being a witness; and the policy of the law was merely to have the witness disinterested." 10. Original note.12 'New. Its justice is supposed apparent, as it provides for a case of mere mistake. It exists in Virginia (revised Code of 1819, 1 vol., p. 377, § 11), and in some of the Western states (vide, Digest of Laws of Mississippi Territory, p. 433), and was suggested by the knowledge of a case where a daughter had inadvertently witnessed a will in which her portion as heir was devised to her. The present law on this subject will be seen by reference to 3 Cowen, 651.”

11. Revisers' note. 13 It is presumed this section only requires to be read to be admitted as perfectly just. It is taken from the laws of Massachusetts, vol. I, p. 94, § 8; and the laws of Virginia, Ist vol. revised Code, p. 376, § 5.

12. Revisers' note.14 It is believed that the preceding sections will afford an opportunity for the safe deposit of wills, which will be embraced by many, and fraud and contention may thus be prevented.

13. Revisers' note. 15" 3d section of same act, 1 R. L. 365; somewhat varied so as to guard more effectually against frauds, and to render the section conformable in its terms to the construction it has received. See 4 Cowen's Rep. 483, and the cases there cited."

14. Revisers' note, 16 "New. Marriage and the birth of issue have long been held in England to operate as a presumptive revocation of a will previously made; but there has been much litigation, and there is still much uncertainty in regard to some of the qualifications of the rule. In 4 Johns. Ch. Rep. 506, Chancellor Kent applied the rule to a case before him, and discussed some of the doubtful points above alluded to. The importance of the principle itself, and the doubts that are connected with it, have induced the revisers to prepare the above section, in which they have endeavored to state the rule as now recognized by the courts, and to incorporate in it all the circumstances which, in their judgment, ought to be admitted, to repel so just and reasonable a presumption. Whether parol evidence is admissible to rebut the presumption, is doubted by Chancellor Kent in the case referred to; but its admissibility seems to be established by recent de

11 Refers to § 27, Decedent Estate Law.

12 Refers to last part of § 27, Decedent Estate Law.

13 This note refers to § 29, Decedent Estate Law.

14 This note refers to 2 R. S. 404,

§ 67, and 2 R. S. 405 §§ 68, 69, 70, now $8 30, 31, 32 and 33, Decedent Estate Law.

15 Refers to § 2 R. S. 64, § 42, now 34, Decedent Estate Law.

16 Refers to 2 R. S. 64, § 43, now $ 35, Decedent Estate Law.

cisions in England.

Such evidence, in cases of this sort, must always be dangerous, and is therefore excluded by the revisers. Some legislative provision on the subject seems necessary for the settlement of the law, and for general information. That the death of both wife and issue before the testator, would prevent the revocation, is settled by the English cases (2 Phillimore, 261, 266, note); and was doubtless one of the exceptions alluded to by Chancellor Kent, in his opinion above cited."

15. Revisers' original note. 17" New. It is comformable to the existing law, vide 2 Coke's Rep. 61, 2 Term Rep. 684; and is inserted from a conviction of the revisers, that every case of implied revocation ought to be specified and defined by the Legislature, as well for general information, as to leave no room for the unnecessary exercise of discretion, by surrogate's or other courts."

Judge Edmund's Note to his edition, Revised Statutes. "Partially enacted $ 44, Revised Statutes, but the following clause at the end of the reported section was stricken off by the Legislature, 'so that if she die during such marriage, it shall not take effect; but if she survive her husband, such will shall be revived, and be again in force; and if not afterwards revoked, shall take effect at her death, in the same manner as if she had not been married.' 16. Revisers' original note. 18 "New. Its utility is supposed not to require comment."

17. Revisers' original note.19 "New. Intends to guard against implied revocations by a mortgage or other incumbrance, which have been held to operate in that way in law, but not in equity; 3d Atkins 798. It is at least deemed useful to have the law uniform in all the courts ".

18. Revisers' original note to §§ 47, 48 and 49.20 "Sections 47, 48 and 49, in connection with the preceding sections in this article, on the same subject, it is believed, dispose of the whole doctrine of implied revocations; and a brief exposition of the views of the revisers in proposing their enactment, seem indispensable. The object of the revisers is, to prevent a constructive repeal of the Statute of Wills, and to secure to testators the power of disposing of their property to the same extent in which the Legislature meant to confer it. The law respecting implied revocations, is, in its present state, a fruitful source of difficult and expensive litigation. It abounds with arbitrary rules and subtle refinements, the existence of which none but lawyers would be at all likely to suspect, and which are constantly applied, not to carry into effect, but to defeat the intention of testators.

17 Refers to 2 R. S. 64, § 44, now $ 36, Decedent Estate Law.

18 Note to 2 R. S. 64, § 45, now 37, Decedent Estate Law.

19 Note 2 R. S. 64, § 46, now $38, Decedent Estate Law.

20 Revisers' Note to 2 R. S. 65, §§ 47, 48 and 49; now §§ 39, 40 and 41, Decedent Estate Law.