Majority
p. 312Jackson, ex dem. Rogers and others, against Potter. NEW YORK, Oct. 1812.
Headnote
A devise of landspassSian(is acquentiyto^the execution and publication .of the will. And tíon'of awiuj theaSafterffaequired lands, must be made with the same th'e'execution winhe 0ll§wal A devise of •»__A- ...illWhere a per-win in3 isos, estate"and af terwards he-came seised of other lands, sickness,"in that’ Ife*had made a dispo his estate, by he"had 'depo- and that he did not wish eept to ’add eeutor; "this was held not to amount to a repúblicawill, so as to inquired after lands.
THIS was an action of ejectment for 100 acres of land, in the town of Moreau, in the county of Saratoga. The facts in the case were as follows: James Rogers, in his lifetime, was seised in fee of the premises in question, and died so seised, the 3d No. 1 . vember, 1810, leaving two ot the lessors his heirs at law, by Eh sabeth Rogers, the other lessor. On the 19th Ocfober, 1805, he ma(Je his will, which was duly executed, in which, after devising several farms, there were the following clauses: “ Sixthly, I give devise, and bequeath, unto my son, the said waiter, the natural son of the said Elisabeth, otherwise Betsey Arthur, and unto my son Charles, the natural son of my said wife, born before wedlock and to their several and respective heirs and assigns, the rest, residue, and remainder, of all my real estate, whatsoever and wheresoever the same may be, to be equally divided between them, s\iare and share alike: and I do further give and bequeath unto the said Walter5 Charles, and Abby? and to their respective heirs and assigns, all the rest and residue of my personal estate of what natm’e or kind soever, provided I should die, leaving no other child or children; but in case I should die leaving another child or children, then, and in such case, the said rest, residue, and remaiiider of such personal estate, I give and bequeath unto the sa^ ^alter, Charles, and Abby, and such other child or children, and to their respective heirs and assigns, in each case, to be equally divided between them, share and share alike.” The tesiaf:01' did not own the premises at the time of making his will; but aCqUired the same afterwards. After he became seised of the u premises in question, he enclosed the said will in a letter to Susannah Case, in the following words: Ci Mrs. Case, enclosed is my will, which you are requested to keep, and, when it becomes proper to open the same, it must be done in the presence of two of the executors, and eight other persons. James Rogers.” The letter, with the will, was delivered to Mrs. Case, who gave the testator a receipt signed and sealed by her. The letter enclosing the will was not attested by any witness. After acquiring the premises, the testator said to one of the executors, named in the will, “ I have made my will and deposited it with Susannah Case, and have appointed you one of my executors, and wish you to ac
p. 313Before the statute of frauds, it was necessary that a will should be in writing, to pass lands. The admission of a republicaiion, or of parol evidence, to show that the testator meant to pass the after acquired land, is merely to rebut the legal presumption that he intended only to pass the lands possessed by him at the time of making his will; and parol evidence is always admissible to rebut an equity, or repel a legal presumption.[3] Since the statute of frauds, parol evidence has been admitted to rebut a parol revocation, os circumstances amounting to a revocation. An implied revoca
eept the trust. You will find, enclosed in the will, a memorandum in writing, directing the manner of proceedingwhich memorandum was made at the time the will bears date. After ac- . • • quiring the premises, the testator, also, in his last sickness, on the 2d November, 1810, said that he had made a disposition of all his estate, by will, and had deposited the will with Susannah Case, enclosing a memorandum directing her how to proceed, which was the same as above stated. He also said, that all the alteration he wished to make in the will was to appoint another executor, and wished B. J. Clark to be the person.
JET. Bleecker, for the plaintiff, contended, 1. That the premises in question being acquired subsequent to the execution of the will, did not pass by it ;[4] 2. That the facts stated in the case did not amount to a republication. And a revocation or republication must be attended with the same solemnities as the execution of the will Itself. The statute relative to wills is express on the subject.[2]
Skinner, contra, contended, that by the common law the facts stated in the case amounted to a republication. Then does the statute alter the common law in this respect ? The statute applies to alterations of a will, not to a republication; and the casé of Jackson v. Holloway was that of an alteration. The statute, no doubt, intended to prevent any implied revocations and alterations, and to exclude parol evidence of such revocations or alterations. There was no actual alteration of the will in this case. The parol proof would not infringe or militate against any salutary object of the statute; but is consistent with the intent of the statute, and of the will. There is great confusion and contradiction in the English decisions on this subject. This court has not decided the point, and is now free to settle it, on principle, unshackled by the authority of English adjudications.
p. 314tion has been put on the ground of “ a tacit condition, annexed to the will when made, that it should not take effect if there should be a total change in the situation of the testator’s family.”[4] The Par°l evidence or republication in this case, operates to give the will effect.
The law is too well settled to be now questioned, that a devise of lands will not operate upon lands purchased after the execution and publication of the will, unless, subsequent to such purchase or seisin, the devisor republish his will, with the requisite solemnities. And it is equally well settled that the republication of the will, so as to affect the after acquired lands, must be made wifh like solemnity as the execution of the original will. The statute (Laws, v. 1. p. 173.) says, that no such will shall be revoked, or altered, but by another writing, executed in like manner, or by destroying it. Here was no such republication, nor does the case come within any of the decisions relative to constructive revocations in law. (See 1 Saund. 277. note 4.) The plaintiff is entitled to judgment.
Judgment for the plaintiff.