Without naturalization they would appear to have capacity to take real property by devise under section 10 of the Real Property Law.

Devises to Citizens in Trust for the Benefit of Aliens. A devise to a citizen trustee for the benefit of aliens where the trustee takes the legal title, and an immediate conversion into personalty is directed is not unlawful, for the original disability at common law relates to the person actually seised of land and not to the beneficiary of an active trust." But if the trust is now an express trust, and it must be such when the trustee takes the legal title to hold on trusts and to pay over to alien beneficiaries, the alien beneficiary would have nothing but his accumulations to dispose of,91 without he also takes a vested remainder which is in itself subject to section 13 of this act, unless the beneficiary comes within the purview of section 10 of the Real Property Law, when both the limitation in trust and that in remainder are now completely validated.92

90 Marx v. McGlynn, 88 N. Y. 357, 376. Cf. Parker v. Linden, 113 id. 28, 37.

91 Beekman v. Bonsor, 23 N. Y. 298, 316; Wainwright v. Low, 132 id. 313, 319.

92 § 10, chap. 50, Consol. Laws; Hayden v. Sugden, 48 Misc. 108,

122.

§ 14. Wills of real estate, how construed. Every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death.

Formerly 2 R. S. 57, § 5:

8 5. Every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death.93

94

Comment. The revisers of the Revised Statutes in a note on the original of this section stated with their usual clearness and precision the rules of the common law which they desired to change. There was before the year 1830, by the rules of the common law adopted in this State, a remarkable difference between a bequest of personal estate and a devise of real estate. The former operated to pass whatever the testator died possessed of, whereas the latter operated only on such real property as he was seised of at the time of the execution of his will.95 A devise, as stated in the introduction, being regarded as a conveyance and as specific was, after the Statute of Wills, confined to particular property; whereas an appointment of an executor of personalty was an indefinite disposition, founded on some remote theory of the civil law, that the executor stood in the place of the deceased and was the universal successor. Since the Revised Statutes every will speaks as of the time of testator's death, whether it refers to real estate or to personal property.98 Real estate acquired after the

96

97

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

94 See below, note 4, Appendix II. 95 Jackson ex dem. Rogers v. Potter, 9 Johns. 312; Pond v. Bergh, 10 Paige, 140, 149; Dodge v. Gallatin, 130 N. Y. 117.

96

6 Pp. 26, 48, supra.

97 Lovelass on Wills (ed. 1839), 245; Parker v. Bogardus, 5 N. Y. 309, 311; Byrnes v. Baer, 86 id. 210, 216.

98 Youngs v. Youngs, 45 N. Y. 254, 257.

99

making of the will is, therefore, ordinarily considered as passing under a general devise, or under the residuary clause, unless there is something to indicate another intent on the part of the testator; the actual intent being always controlling in cases on wills.1

99 Lynes v. Townsend, 33 N. Y. 558; Lent v. Lent, 24 Hun, 436; Hodgkins v. Hodgkins, 123 App. Div. 110; Toher v. Crounse, 57 Misc. 252, 260. See under § 93, Decedent Estate Law.

1 Quinn v. Hardenbrook, 54 N. Y. 83; Byrnes v. Baer, 86 id. 210; Cruikshank v. Home for the Friendless, 113 id. 337, 353, 354; Schuck v. Shook, 24 Abb. N. C. 463.

§ 15. Who may make wills of personal estate. Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing.

Formerly 2 R. S. 60, § 21:

§ 21. Every male person of the age of eighteen years, or upwards, and every female not being a married woman, of the age of sixteen years, or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing.2

Comment. Dispositions of personal property by a last will or testament have been continously recognized in the law of England from the earliest periods. It was, however, the ecclesiastical law which in medieval times regulated testamentary powers in England. The ecclesiastical law adopted the rule of the Roman law which allowed males of fourteen years of age and females of twelve to dispose by last will or testament." But in particular localities in England the periods of non-age and full age for testamentary purposes greatly varied."

In the introduction we emphasized for the purposes of future illustration the difference in law between" wills " and " testaments." It was the Statute of Wills (32, 34, 35 Hen. VIII) which first made twenty-one a minimum age for devises of lands.

The great uncertainty concerning the age which the common law regarded as legal full age for making wills or bequests of personalty is clearly shown by the note of Mr. Hargrave to Coke on Littleton (referred to by the revisers of the Revised Statutes) and by Wood's Institutes of the Laws of England. According to 42 Black. Comm. 497.

2 Amended so as to enable married women to make wills of personalty by chap. 200, Laws of 1848; chap. 375, Laws of 1849; chap. 782, Laws of 1867 and all repealed by Domestic Relations Law of 1896 and 1909, and by Decedent Estate Law of 1909. See below, § 130.

3 Williams on Executors, I; I Black. Comm. 491.

5 Williams on Executors, 13. 62 P. & M. 436; Holdsworth, Hist. Eng. Law.

7 Note 6 to Co. on Litt. 89b; Wood's Institutes (ed. 1772), 309. 8 See below, note 5, Appendix I.

generally received opinion in the eighteenth century the common law finally, as the competent age for wills of personalty, fixed upon fourteen years for males and twelve for females. The revisers of the Revised Statutes proposed to express this latest version of the common law in the Revised Statutes and to fix the ages at twelve and fourteen respectively. But the Legislature thought these periods too immature and fixed eighteen for males and sixteen for females as the minimum competent ages for wills of personalty, and so the statute now stands. Every male person of eighteen and upward and every female of the age of sixteen and upward of sound understanding and memory may bequeath his or her personal property.10

Persons Above Sixteen and Under Twenty-one Years. It will be observed that this section of the Decedent Estate Law, repeating the Revised Statutes, expressly requires all testators of personalty to be of sound mind and memory. This expression, though general in application, was probably in deference to the common law, which had been very careful to investigate the capacity of particular testators when they were below the age of twenty-one years, even though they were presumptively competent by law for such an act at a lesser age.11

Notwithstanding the Married Women's Enabling Acts of this State1 a feme covert if under sixteen years of age (the age prescribed in this section) cannot make a will of personalty.13

The capacity to bequeath must exist at the time of making the will and the attaining of a subsequent capacity before death will not rectify an original incapacity without a republication.14 In computing the testator's age the day of his birth is to be reckoned. inclusively,15 and although the age fixed for the testamentary act is completed only on the day on which it is performed.16