That such is the acutal state of the law, has been acknowledged and lamented by the most eminent judges. Lord Mansfield has said, in the case of Swift ex dem, Neale v. Roberts, that some of the decisions on this subject, had brought a scandal on the law;' and on another occasion he remarked that all revocations not agreeable to the intention of the testator, are founded on artificial and absurd reasoning.' 3 Burrows, 1491; Douglas, 722. It is an invariable rule, that any alteration made in the estate or interest of a testator, operates as a revocation of a previous devise; and this, nothwithstanding he retains the entire control of the property; notwithstanding the nature of the transaction affords not the slightest ground to suppose that he meant that it should effect the disposition of his will; and even notwithstanding the declared intent of the conveyance or assurance making the alteration in his estate, was, not to defeat, but to strengthen and give effect to the provisions of his will. Thus, a conveyance to trustees, to such uses as the grantor may afterwards declare, making an alteration purely technical and formal in his title, is a revocation of a previous devise, and this although the testator dies without declaring any use of his conveyance, and when the only probable reason for his omitting to do so, is, that he was entirely satisfied with the dispositions of his will. Thus, a settlement made to provide for a contingency that never occurred, and meant to take effect only in the event that it should occur, was permitted to defeat a devise to a person who had paramount claims on the bounty of the testator, and for whom it was entirely certain that he meant to provide. (Lord Lincoln's case, 2 Freeman, 202; 6 Cruise, 108, Tit. Devise.) It is true, when a similar question afterwards arose (Douglass, 695), Lord Mansfield did not hesitate to declare, that 'the absurdity of the case we have referred to was shocking;' but he found himself compelled to add, 'however, it is now law;' and as far as we have been able to discover, it continues to be law even to this day. But we have not yet reached the climax. A conveyance or assurance after the publication of a will, defeats the will, although made with the avowed intent of confirming it. A man made a will, and devised certain estates to persons named therein; he afterwards, by deed, conveyed the same lands to trustees, for the use of the persons named, and for the purposes declared in his will; and it was held for a technical reason, that his will was revoked by the very act that recognized its existence, and was designed to establish it. (Moore's Rep. 789. See also Amb. 215, for a case still more remarkable.)

"After this statement of the existing law, that some alterations are not merely desirable, but necessary, the revisers believe, will be generally admitted. That the provisions suggested by them will meet all difficulties of a very complicated subject, they dare not flatter themselves; but they affirm with confidence, that if adopted, these provisions will close many sources of expensive and protracted litigation; and that in numerous cases, they will prevent the manifest intentions of testators from being frustrated, by the application of rules apparently revolting to common sense, and unintelli

gible to all not versed in the mysteries of feudal learning. The principle which has guided the revisers in the alterations which they propose, is, that where a change has occurred in the domestic relations of a testator; where new objects, having peculiar and natural claims to his bounty, have come into existence, it is a presumption justified by reason and experience, that his will is intended to be revoked; but that where no such event has occurred, it is equally reasonable to believe, that a will not expressly and plainly revoked, is meant to have effect.

"In conclusion, the revisers avow their conviction, that a valuable service will be rendered the community, if those cases in which, alone, implied revocation may be allowed, shall be defined by legislative authority. Experience may indeed discover that the enumeration is defective, and that cases now omitted ought to be included; but should this prove to be the case, the Legislature will be competent to apply the remedy. By new enactments, they may supply the defects of the Statute of Wills, in the same manner as they are accustomed to amend and extend the provisions of other laws. To leave it to courts of justice, however learned and respectable, to declare in their discretion when implied revocations shall be admitted, is to involve the whole subject in doubt and uncertainty. It is to commit to them the power, not of interpreting, but of repealing statutes, and to invest them with an authority paramount to the will of the Legislature, and often exercised in direct opposition to the will of the testator."

19. Revisers' original note.21 "What is the precise effect of the canceling or revocation of a subsequent, in setting up a prior, will, seems very questionable, and particularly in relation to wills of personal property. In the courts of common law, the presumption (it is said) is in favor of the revival of the former will; but in the ecclesiastical courts (to the decisions of which, it is supposed by many that our surrogates are bound to conform), either an opposite presumption prevails, or the case is considered to be open without prejudice to the examination of testimony. In both courts, however, the law is undisputed that parol evidence is admissible to ascertain the real intentions of the testator, and to determine the fact of a revival of his will, or a designed intestacy. (4 Burr. p. 2512; Cow, p. 1971; 1 Phil. Eccles. Rep. pp. 406, 446; 2 Addam's Eccles. Rep. 116.) It is this rule which the revisers propose to change in the above section, by adopting the presumption against a revival, and excluding evidence to contradict it. It seems to them that the admission of parol evidence in any case to ascertain the intentions of the deceased, is contrary to the whole spirit and policy of the Statute of Wills, and is calculated to let in all the mischiefs which its salutary provisions were framed to prevent. It is true, that the rigid rule proposed by the revisers may operate in some cases to

21 Revisers's note to 2 R. S. 66, § 53, now § 41, Decedent Estate Law.

defeat the intention of testators; but it is obvious that the same objection may be urged against the observance of any of the solemnities which the statute requires. The whole statute proceeds on the principle that the hazard, that in some cases the real intentions of the deceased may be violated, and his bounty be intercepted from the persons he designated to share it is not to be compared with the danger, that the claims of those whom the law would entitle to his estate, may be defeated by fraud and perjury, if any other than the most certain and solemn evidence of intention is permitted to be introduced. In this country especially, we should not hesitate to carry the principle of the statute (of wills) 22 to its full extent. We may safely lean in favor of intestacy; since it rarely happens that the dispositions of a disputed will are as just and equitable as those which, in the event of its being set aside, the law provides."

The following notes of the Revisers of the Revised Statutes relate to the article on Descent.23

"CHAPTER II.” 24

"OF TITLE TO REAL PROPERTY BY DESCENT."

66

20. [§ 1. Same as enacted, except that sub. 3 was inserted by the legis lature.] Original note. The term 'real estate,' is defined in the 21st section of this chapter;25 and the above section as thus interpreted, effects an important, and, it is believed. salutary change in the present law. Descendants, under the present statute, are confined to cases where the ancestor died seised of the estate; so that where there is an adverse possession at the time of his death, or where the right of the ancestor is contingent or executory, the inheritance, instead of descending, according to the principles of the statute, to all the heirs equally, would pass, by the rules of the common law, to the eldest male heir. Thus, if the ancestor, although his title was certain, had lost the possession by force or fraud, or was entitled to the fee under a contingent remainder or executory devise, and died before the determination of the preceding estate, his whole property might pass to his eldest son, or the eldest male descendant of such son, in exclusion of all his other children. It is difficult to believe that such was the intent of the legislature by whom the statute was originally passed, but such is the

22 The words in brackets are the editor's.

23 Now article 3, Decedent Estate Law.

24 The original notes to chapter II, part II, R. S., are still very explanatory of the changes wrought by the statute of New York in the old common law of descents. The sections in chapter II, part II, R. S.,

are now re-enacted in article 3 of the Decedent Estate Law, supra, pp. 329-530.

25 The revisers here refer to I R. S. 754, § 21 (which refers to I R. L. 74, § 4) and probably to cases where cestuis had an equitable fee not executed by the Statute of Uses.

construction which the courts are compelled to adopt, in consequence of the use of the technical term, ́ seised.' The object of the revisers, is to substitute, throughout, the principles of the statute, for the rules of the common law; so that wherever, at common law, the eldest descendent or brother would take, all the children or brothers, &c, shall take, under the provisions of this chapter; and they are satisfied, that by making this alteration, the law will be conformed to the general sense of the community. The revisers feel it their duty to state, that the change now proposed (as well as some other valuable improvements) was suggested to them by the late Mr. Emmet, in a written communication to the revisers."

"Residue

21. [§§ 2, 3, 4. Same as enacted.26] Original note to § 4. of the 2d rule of the existing statute. It seems unnecessary to provide specially for the case of a descent to grand children and children of grand children, in unequal degrees, as is done in the existing statute. The general terms here adopted, are sufficient to reach all the cases that can occur, and to the remotest degree."

22. [§ 5. Same as enacted27 and published in the first edition, except that in addition to the words in the statute, the following words were also contained in the reported section, “in which case it shall descend as if such intestate had survived his father." But by amendatory act of 1830, chap. 320, § 13, a new section was substituted on recommendation of revisers.] Original note to section as first proposed. "If in addition to those incorporated in the text, any further alteration in the law of descents be admissible, it would seem that none could be more just than to allow the mother of the intestate to take the estate for her life, where there is no father. Under the present statute there is no case in which the mother would be entitled to take, an omission which is supplied in the statutes of most of the other states in the union. Should the suggestion of this note be approved, the following words may be added to the above section: 'If the intestate leave no father, the inheritance shall descend to his mother during her life, and after her death, to the persons who would have been entitled as heirs, at the time of the death of the intestate, had there been no mother.' If this clause should be adopted, some modification of the other sections will be necessary."

Original note to new section proposed in 1830. "Under the sixth section of this chapter, which was introduced during its passage through the legislature, an inheritance on the part of the father may descend to the mother in fee, in exclusion of the collateral relatives of the father, and under the twelfth section, an inheritance on the part of the mother in default of collateral relatives on her side, would go to the collateral relatives of the father, although he himself might then be living. It seems unreasonable that the mother should possess greater privileges than the

26 Refers to 1 R. S. 751, §§ 2, 3, 4, pp. 364, 367, supra.

27 Refers to I R. S. 751, § 5, supra, p. 369.

father, and still more so, that a brother or sister of the father, should be entitled to take in preference to him. The amendment proposed, removes these incongruities, and renders the provisions of the statute reasonable and consistent."

23. [§§ 8, 9, R. S.28 Original note. "It has been decided by the supreme court (6 Johns. Rep. 322) and the words of the statutes seem plainly to demand that construction, that nephews or nieces, where there are no brothers or sisters, do not take equally, but only the shares of their respective parents, thus changing the rule that obtains as to lineal descendants, who, when of the same degree of consanguinity, always take in their own right in equal portions, and not by representation. It seems desirable that the statute should be rendered uniform in its provisions, and no reason is perceived why the rule applicable to lineal descendants, should not be extended to collaterals. This is one of the alterations effected by the three last sections; another is, that they extend the right to take by descent, to the issue of nephews and nieces. As the law now is, a grand nephew could not take at all under the statute."

24. [§ 11 R. S. except that after the word "descend" the words "to the mother in fee, if there be no mother then," were stricken out by the legislature, they having, by § 6, R. S. made provisions for the mother29] Original note. "The present statute does not regulate descents beyond the children of bothers and sisters, and leaves the common law to govern in all other cases, so that the eldest uncle, and his issue take in preference to all others of equal degree. The two last sections are proposed to carry into effect the great principles of the statute throughout the nearest collateral branches, and to secure an equal distribution of the property to kindred of the same degree, and to them and their issue when of unequal degrees. The Revisers, however, doubt the expediency of carrying the rule of equal partibility beyond the limits now proposed, as the division of an estate amongst more remote relatives, on account of the multitude of shares, would render each portion so small that it would cease to be an object of any consideration. Those interested would have no adequate motive to assert their rights, and the whole estate would probably be intercepted by fraud from the heirs of the intestate. If the suggestion before made as to the mother, should be adopted, it would seem to be still more proper to provide for her, where there are no relatives of the father. In this case, therefore, the revisers propose by the words in italics, to give her the whole estate."

25. [§§ 15, 16, R. S.30] Original note to § 12. "This section adopts the principle of the present law in reference to the kindred of the half blood, and extends that principle to the new cases introduced."

28 Refers to 1 R. S. 752, §§ 8, 9,

supra, p. 386.

29 Refers to I R. S. 753, § II, supra, p. 391.

30 Refers to I R. S. 753, §§ 15, 16, supra, pp. 404, 410.