complete, and she may dispose of her personalty by will as well as of her realty.87

Persons Civilly Dead. Persons condemned to life imprisonment are now civilly dead and would, therefore, seem to be incompetent to devise their lands.88 In like manner by the Roman law a loss of status or freedom, capitis deminutio, invalidated a will.

90

Joint Tenants. Joint tenants were not mentioned in the old Statute of Wills because the nature of their estate is such that the event which gives a will effect at the same moment destroys or ends their estate." But persons holding as joint tenants cannot devise under this statute only in the sense that the devise would be inoperative in law. Joint tenants no longer labor under any personal disability to devise, and a joint tenant who has sought partition may now perhaps devise even before actual partition, at least if the will be executed after a decree to partition, for equity considers that as done which ought to be done.

87 See 15, Decedent Estate Law; chap. 782, Laws of 1867. Cf. Vallance v. Bush, 28 Barb. 633, 643; Lush v. Alburtus, 1 Bradf. 456.

88 2 R. S. 701, § 20, now § 511, Penal Law; Platner v. Sherwood, 6 Johns. Ch. 118; Avery v. Everett,

110 N. Y. 317, and see below, text under 15 of this act.

89

32 Hen. VIII, chap. 1; 34 and 35 Hen. VIII, chap. 5; chap. 47, N. Y. Laws of 1787.

90 Litt., 287; Co. on Litt., 185a; Powell on Devises (ed. 1838) 143.

§ 11. What real property may be devised. Every estate and interest in real property descendible to heirs may be so devised.

Formerly 2 R. S. 57, § 2:

§ 2. Every estate and interest in real property descendible to heirs may be so devised. 91

Comment. This section of the Real Property Law did not essentially change the corresponding section of the Revised Statutes from which it was taken. Nor did the Revised Statutes materially alter the prior Statute of Wills, originally enacted in New York in 1787, and which we have seen°2 was a mere re-enactment of the old English Statute of Wills (32 and 34 Hen. VIII) as modified by the Statute of Frauds.93 The statute of 1787 permitted "any person having an estate of inheritance either in severalty, in coparcenary, or in common in any lands, tenements or hereditaments or any part thereof or of any rent or profit out of the same to devise the same." " This is practically a re-enactment of the English Statute of Wills. We have seen in the introduction that the Statute of Wills (32 and 34 Hen. VIII) made a new point of departure for lawyers and that it is convenient, in any event, to defer to it in practice and to ascribe the modern power to devise wholly to the statute. It will be observed, as mentioned before under the prior section, that joint tenants were excepted out of the old statutes.95

What May Pass by Devise. The reader will notice that this statute, in conformity with the development indicated in the introduction, continues to treat devises or wills of land apart from testaments or wills of personalty.96 This section now under consideration presupposes a disposing title in the testator. It relates only to devises or wills of the testator's landed property. Under the old Statute of Wills it was at first thought that all contingent

91 Repealed by Decedent Estate Law of 1909. See below, $ 130.

92 See above, under § 10, pp. 50-52.

93 29 Car. II, chap. 3.

942 R. L. 364.

95 Supra, p. 60.

96 §§ 10-14 relate to devises of lands; §§ 15 and 16 to testaments by personalty.

interests in lands resting in mere possibility were incapable before vesting of passing by a will. But this doubt was soon set at rest

in England by the decision in Selwyn v. Selwyn to the contrary,97 and the Revised Statutes especially provided for it so as to confirm the decisions that contingent remainders generally do pass by devise.98

Estates pur autre vic were made devisable in England by the Statute of Frauds, repeated in the New York" Wills Act" of 1787.99

At common law and under the old Statute of Wills "lands," tenements," and "hereditaments" might be devised. These were very comprehensive terms.1 "Hereditaments" is the most comprehensive term of all, including rents and whatever may be inherited. It seems before the Revised Statutes rents might not pass under the term "lands" alone. The Revised Statutes only. translated the term "hereditaments" and under the Revised Statutes

and this section "whatever may descend, * * * or pass by descent, may be devised." This has been in substance the rule ever since the old Statute of Wills.5

Property held by joint tenants was expressly not devisable under the old Statute of Wills. Such property cannot now descend, and, therefore, it remains undevisable under this section of the present statute."

Estate and Interest in Real Property. The quality of passing by descent to heirs-at-law is, as we have seen above, the primary test of devisability. But only "estates " and "interests" in "real property" so pass. These are distinctly terms of the common law,

971 Blacks. 222.

98 1 R. S. 725, § 35 now § 59, Real Prop. Law.

99 See § 30, Fowler's Real Prop. Law (3d ed.), p. 154.

1 See Fowler's Real Prop. Law (3d ed.), pp. 93, 152; Pond v. Bergh, 10 Paige, 140; Bradner v. Faulkner, 34 N. Y. 347.

2 Canfield v. Ford, 28 Barb. 336; Main v. Green, 32 Barb. 448.

3 Hunter v. Hunter, 17 Barb. 25. 4 Herrington v. Budd,, 5 Den. 321. 5 Jones v. Roe, 3 T. R. 88. 62 R. S. 57, § 2, now § II, and see supra, p. 60.

7 Supra, p. 61.

8

where they loom large. At common law everything which is not real property is personal property. Therefore, for historic reasons, chattels real, as they do not pass to heirs-at-law, are personal property. But as chattels real now pass by bequest as contradistinguished from devise the differentia are, however, in this respect slight in present practice between chattels real and real estates.10

The term "property" in law denotes a bundle or aggregation of rights in and over things (res, such as land, movables, and things in action) which the common and statute law recognize, protect, and enforce. This important term "property" is nowhere defined by a statute of this State.11

11

"Real property" as employed in this section is defined as coextensive with lands, tenements, and hereditaments, corporeal and incorporeal.12

This section refers only to existing estates and interests in real property which may be disposed of and are owned by testator and which pass by descent to his heirs. The section has no reference to limitations of derivative or future estates by the testator. Such limitations are now governed by the Real Property Law of 1909.13 A testator may limit by devise life estates, although they are not descendible to heirs, and such has been the construction under all the Statutes of Wills in force at any time in this State. Estates for years which are chattels real are not descendible to heirs, but they may be bequeathed as personalty under section 15 of this act.

Remainders. Vested remainders may pass by devise,14 unless possibly they are those anomalous "vested remainders" which open to let in," when they are devisable only subject to the condition contained in the original limitation.15

8 Fowler's Real Prop. Law (3d ed.), pp. 147, 369; Upington v. Corrigan, 151 N. Y. at p. 148.

9 Fowler's Pers. Prop. Law (2d ed.) 3, 14, 16.

10 See § 15, infra.

11 Fowler's Real Prop. Law (3d ed.); Fowler's Pers. Prop. Law (2d ed.), 14.

12 § 2, Real Prop. Law; § 40, General Construction Law.

13 Chap. 50, Consolidated Laws. 14 Lewis v. Howe, 64 App. Div. 572, 578, affd., 174 N. Y. 340; Ham v. Van Orden, 84 N. Y. 257, 270; Rothschild v. Schiff, 188 id. 327, 333.

15 Byrnes v. Stilwell, 103 N. Y. 453, 461; Lyons v. Ostrander, 167 id. 135.

Contingent Remainders. Contingent remainders are now devisable1 unless the contingency is such that the death of the devisee during the particular estate will defeat his interest or estate.17

Reversions. Reversions, although classified with expectant estates from the point of view of possession, are always vested in interest, and are consequently devisable.18

Possibility of Reverter. As mere possibilities of reverter are important only when they carry a right of entry to a definite person we may assume that a possibility of reverter is devisable only when a right of entry is devisable.19

Right of Entry. A right to enter or re-enter on land is a technical right of great antiquity and it may arise in different ways, by covenant, reservation, disseisin, or by grant or lease. A mere right of re-entry was not devisable under the old Statute of Wills,20 and, in some cases, it is not devisable under the present statute. For example, it seems that such a right when it is incidental to a mere possibility of reverter reserved on a grant in fee still does not pass by either descent or devise.21 But it is to be noticed that the language of the court in Upington v. Corrigan slightly conflicts with that of the decision in Van Rensselaer v. Ball," although a statute of 1805 was there involved. But it seems that nevertheless a right of entry on lands adversely possessed may in this State be devised.23 The intention of the revisers of the Revised Statutes was to make everything which is inheritable also devisable.2 In

16 § 59, Real Prop. Law; Matter of Lauter v. Hirsch, 67 Misc. 165.

17 Paget v. Melcher, 156 N. Y. 399; Stringer v. Barker, 110 App. Div. 37; Schell v. Carpenter, 50 Misc. 400.

18 Vanderheyden v. Crandall, 2 Den. 9, 23; N. Y. Life & Trust Co. v. Cary, 191 N. Y. 33, 40.

19 See next paragraph.

20 Goodright v. Forrister, 8 East. 552; Leake on Property in Land (2d ed.), 43.

21 Countryman v. Deck, 13 Abb. N. C. 110, 112; Nicoll v. New York & Erie R. R. Co., 12 N. Y. 121, 131; Upington v. Corrigan, 151 id. 143. 22 19 N. Y. 100, 104, 105.

23 Jackson v. Varick, 7 Cow. 238; s. c., again in Ct. of Errors, 2 Wend. 166; Upington v. Corrigan, 151 N. Y. at p. 152.

24 See below, Reviser's note 1, Appendix. I.