as to the life interest of the nephew, would have lapsed (qu. failed?) It is impossible to ascribe such an intention to the testator." (m) Peppin v. Bick ford. In this case, the construction must, it is conceived, be referred to Remarks upon the special circumstances of the trust being executory, which authorized the court to give it a liberal construction, and that, by restricting the trust in favor of the wife to the first person standing in that relation, the limitation to the issue would have been restricted to her children, which could hardly be the intention of the testator, who was the husband's relation. (n) [On the same principle, a gift to the testator's servants, simply, Gift to servants means servants at date of will. without adding a condition, "that shall be in his service at his decease," will take effect in favor of the servants at the date of the will, even though they subsequently quit the testator's service, to the exclusion of those who subsequently enter his service.] (0) devises and be quests. Under the old law, where a testator made a general gift of his real As to general and personal estate, he was considered as meaning to dispose of these respective portions of the property to the full extent of his capacity; and, accordingly, such a gift, in regard to the real estate, was read as a gift of the property belonging to the testator at the time of the execution of his will (he being incapable of devising any other), and as to the personalty, as a disposition of what he might happen to possess at the period of his decease. 3 And the [(n) In re Lyne's Trust, L. R., 8 Eq. 65; Longworth v. Bellamy, 40 L. J., Ch. 513. (0) Parker v. Marchant, 1 Y. & C. C. C. 290. If the condition be added it must be strictly complied with. Previous dismissal, though wrongful, intercepts the gift, Darlow v. Edwards, 1 H. & C. 547. See also In re Hartley's Trust, W. N., 4 May, 1878, where on the master's illness his establishment was broken up.] (m) See also Allanson v. Clitheroe, 1 although in this case the gift was of perVes. 24, Belt's Sup. 24. sonal property "that I may now possess;' and In the Matter of Swartwout, 10 C. E. Gr. (N. J.) 369, a gift of all property "to which I may become entitled" will include a war prize captured by testator but not condemned until after his death; Attwood v. Beck, 21 Ala. 590; Gilmer v. Gilmer, 42 Ala. 9, where a legacy to be paid in confederate bonds failed because at testator's death such bonds had become worthless; Canfield v. Bostwick, 21 Conn. 550; Gold v. Judson, 21 Conn. 616; Jones v. Shewmake, 35 Ga. 151; Curling ". Curling, 8 Dana 38; Walton v. Walton, 7 J. J. Marsh. 59; Halloway v. Buck, 4 Litt. 294; Marshall v. Porter, 10 B. Mon. 2; Blaney v. Blaney, 1 Cush. 107; Hays v. Jackson, 6 Mass. 149; Haven v. Foster, 14 Pick. 534; Kuhn v. Webster, 12 Gray 3. The old rule of the common law is that a will speaks from its date only as to real estate devised, but from the testator's death as to personal property. Delacherois v. Delacherois, 11 H. L. Cas. 62; Trinder v. Trinder, 1 L. R., Eq. 695; Wagstaff v. Wagstaff, 8 L. R., Eq. 229, reluctance of the courts to confine a general bequest of personalty to what the testator possessed at the date of the will sometimes, we have seen, (p) prevailed against the force of words which might seem so to restrict it. The same principle also was applicable to a general bequest of any particular species of personal property, as of "my furniture and effects," which accordingly was said to embrace property of this description belonging to the testator at his death. (q) 3; George v. Green, 13 N. H. 521; Lanning v. Cole, 2 Halst. Ch. 102; Den, Van Wagenen v. Brown, 2 Dutch. 196; Thornal v. Force, 2 Stew. (N. J.) 220; Douglass v. Sherman, 2 Paige Ch. 358; Van Vechten v. Van Vechten, 8 Paige 104, where there was a bequest of all debts due to the testator from the legatee named, and it was held that all debts due at testator's death passed. In the language of Chancellor Walworth, in this case, it is said: "To take the case out of the general rule, that in a will of personal estate the testator is presumed to speak with reference to the time of his death, there must be something in the nature of the property or thing bequeathed or in the language used by the testator in making the bequest thereof to show that he intended to confine the gift to the property or subject of the bequest, as it existed at the time of the making of the will." See, too, Newcomb v. St. Peter's, 2 Sandf. Ch. 636; Parker v. Bogardus, 5 N. Y. 309; Jiggitts v. Maney, 1 Murph. 265; Girard's Heirs v. Philadelphia, 4 Rawle 323; Philadelphia v. Davis, 1 Whart. 490; Donaugher's Estate, 2 Pars. C. 164; Gibson v. Carrell, 13 Gratt. 136; Raines v. Barker, 13 Gratt. 128; Smith v. Edrington, 8 Cranch 66; McNaughten v. McNaughten, 34 N. Y. 201; Clements v. Kyles, 13 Gratt. 468. The above rule has found its expression chiefly in establishing that real estate acquired after the (p) Vide ante p. *319. (q) 1 Eq. Cas. Ab. 200, pl. 12. [See also Banks . Thornton, 11 Hare 176, where a bequest of "all the residue of date of the will, in the absence of statute to the contrary, or of a subsequent republication of the will, does not pass by devise. Jones v. Shewmake, 35 Ga. 151; Bowen v. Johnson, 6 Ind. 110; Halloway v. Buck, 4 Litt. 294; McElfresh v. Schley, 2 Gill 181; Blaney v. Blaney, 1 Cush. 107; Wait v. Belding, 24 Pick. 129; Ballard v. Carter, 5 Pick. 112; Brigham v. Winchester, 1 Metc. 390; Lanning v. Cole, 2 Halst. Ch. 102; Den, Van Wagenen v. Brown, 2 Dutch. 196, in which last four cases a devise of testator's interest (he being a mortgagee at the date of the will) was held not to pass a subsequently acquired equity of redemption; Bruen v. Bragaw, 3 Green Ch. (N. J.) 261; Shreve v. Shreve, 2 Stockt. 385; Philadelphia v. Davis, 1 Whart. 490; Girard's Heirs v. Philadelphia, 4 Rawle 323; Gibson v. Carrell, 13 Gratt. 136; Raines v. Barker, 13 Gratt. 128; Smith v. Edrington, 8 Cranch 66; Ross v. Ross, 12 B. Mon. 438; Livingston v. Newkirk, 3 Johns. Ch. 312; McGavock v. Pugsley, 12 Heisk. 689. See, too, 1 Redf. on Wills 387; Hawkins on Wills 14, et seq.; Theobald on Wills 43. In Clapper v. House, 6 Paige 149, prior to the statute, a devise after part payment upon agreement of purchase, passed the land, which was afterwards conveyed to the testator under the agreement. To the same effect see Castle v. Fox, 11 L. R., Eq. 542; and where the testator has, at the time of making his my property which consists of stock" was held to include all stock in the testator's possession at his death.] The will also was held to speak from the death of the testator in reference to gifts to classes, or fluctuating bodies of persons; Gifts to classes. as to children or descendants, which applied to the persons answering the description at the death of the testator, irrespectively of those to whom the description was applicable at the date of the will, but who subsequently died in the testator's lifetime. der stat. 1 Vict., Secondly, it remains to consider how far the preceding doctrines As to wills un- apply to wills which, being made or republished since c. 26, 24. the year 1837, are regulated by the act 1 Vict., c. 26, which provides (§ 24,) "That every will shall be construed, with Will in refer ence to the estate to speak from the death. reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a con trary intention shall appear by the will." 4 will, a leasehold which merges into the fee by a subsequent purchase, the fee will pass, Miles v. Miles, 1 L. R., Eq. 462; Cox v. Bennett, 6 L. R., Eq. 422; Wedgwood v. Denton, 12 L. R. 290. But the rule that after-acquired land will not pass by the will, is not construed to prevent the application of the doctrine of election. McElfresh v. Schley, 2 Gill 181, 198. With the exception above stated as to after-acquired real estate, now very generally removed by statute, the rule is that a will speaks from the testator's death, Gold v. Judson, 21 Conn. 616; Canfield v. Bostwick, 21 Conn. 550; Hosea v. Jacobs, 98 Mass. 65; Board of Education v. Ladd, 26 Ohio St. 210; O'Brien v. Heeney, 2 Edw. Ch. 242; Collin v. Collin, 1 Barb. Ch. 630; Clarke's Estate, 82 Penna. St. 528; Cresson's Appeal, 76 Penna. St. 19; Thorndike v. Reynolds, 22 Gratt. 21. But the time of making the will is referred to where the testator makes a provision in his gifts for equality among a class of beneficiaries, Boone v. Dyke, 3 Mon. 529. And a legacy made payable out of a particular debt due to testator at the making of his will, does not fail by its payment before his death, Stewart v. Gallagher, 6 Watts 473. As to the time when a class of donees shall be ascertained, see chapters XXVIII., XXIX. and XXX., post. 4. Scott, J., said, in Applegate v. Smith, 31 Mo. 166, 169: "With respect to afteracquired lands, when the question arises whether they have passed by the will, it is just the same and to be determined on the same considerations as would determine the question whether lands owned by the testator at the date of his will passed by it, or, in other words, that after-acquired lands, as to the power of disposition, rest on the same ground as the lands owned by the testator at the date of his will and the personal estate." In most of the states there has been enacted some statute more or less perfectly equivalent to that of 1 Vict., c. 26, referred to in the text. Alabama-(1853, Code, 1876, § 2277.) California-(Act of April 10th, 1850, 22.) Colorado-(Gen. Laws, 1877, § 2788.) Connecticut (Laws, 1838, p. 245.) Delaware (1853, Rev. Stat., ch. 84, 8 25.) Georgia (Code, 1860, 2363.) Illinois (Rev. Laws, 611, § 1; Gale's Stat. 686.) This enactment must be viewed in connection with section 3, which enables testators to dispose of all the real and personal estate to which they may be entitled at the time of their death, *which, if not so disposed of, would devolve to their general real and personal representatives. Had the latter clause stood alone, it might have General devise been a question whether the legislature, by merely enabling testators to dispose of after-acquired real estate, had Indiana-(Rev. Stat., 1843, p. 485, § 3.) of real estate now extends to property at death." Wisconsin-(Rev. Stat., 1858, p. 577, ch. 97, 3.) The statute of Maryland above referred to, extends, by its terms, only to wills taking effect after June 1st, 1850. Carroll v. Carroll, 16 How. 275; Johns v. Hodges, 33 Md. 515. That of New Jer Maine (Rev. Stat., 1871, p. 564, % 5.) Maryland (1849, ch. 229.) Massachusetts (1836, Gen. Stat., 1860, sey to wills of persons who die after July p. 476, 8 4.) 4th, 1850. The absence of this provi Michigan-(1 Comp. Law, 1872, p. 1372, sion in most of the statutes referred to in 4325.) other states, has given rise to the ques Minnesota-(1 Stats. at Large, 1873, p. tion whether such statute is applicable 646, 3.) Mississippi-(1821. Code, 2388.) 125.) only to wills made after its passage, or to all wills taking effect by the death of the testator after the passage of the act. It has been held that such statute applies to all wills, whether made before or after its New Hampshire (Rev. Stat., 1842, ch. passage, provided the testator's death oc156, 2.) cur after its passage. See Meserve v. New Jersey (1851, 2 Rev. Stat., 1877, Meserve, 63 Me. 518; Magruder v. Carp. 1248, 24.) roll, 4 Md. 335; Alexander v. WorthingNew York-(1830, 3 Rev. Stat. 58, § 7.) ton, 5 Md. 471; Wilson v. Wilson, 6 Md. North Carolina (1841, Battle's Rev., 487; but see, also, as to the Maryland 1873, p. 847, 22 5, 6.) statute, Carroll v. Carroll, 16 How. 275; Ohio-(6 Ohio Laws, p. 64; 2 S. & C., Cushing v. Alwyn, 12 Metc. 169; Winp. 1626, 54.) chester v. Forster, 3 Cush. 366; Loveren Pennsylvania (1833, Rev. Stat., 1871, v. Lamprey, 22 N. H. 434; Condict v. p. 189, % 4.) King, 2 Beas. 375; Van Tilburgh v. HolRhode Island (1857, Rev. Stat., ch. linshead, 1 McCart. 36, n.; De Peyster v. 154, 8 1.) Clendining, 8 Paige 295; Smith v. Jones, South Carolina-(1858, Gen. Stats., No. 4 Ohio 115; Hamilton v. Flinn, 21 Tex. 4395, p. 597.) 713. See, to like effect as to other statutes, Wakefield v. Phelps, 37 N. H. 295; Perkins v. George, 45 N. H. 453; Donaugher's Estate, 2 Pars. C. 164. The contrary (owing, in some instances, to the prospec Tennessee (1852, Comp. Laws, ? 2195.) Texas-(Const., art. 5361, p. 913.) Vermont (Gen. Stats., 1870, p. 377, ch. 49, ¿ 2.) Virginia (1787, Code, 1873, p. 911, tive phraseology of the statute) has been ch. 118, 11.) held in Brewster v. McCall, 15 Conn. 289; West Virginia-(Code, 1868, p. 480, ch. Gibbon v. Gibbon, 40 Ga. 562; Ellison v. 77, % 10.) Miller, 11 Barb. 332; Green v. Dikeman, so far varied and enlarged the construction of a general devise, as to make it extend beyond the real estate belonging to the testator when he made his will, to which the established rules of construction, no 18 Barb. 535; Parker v. Bogardus, 5 N. Y. 309 (which holds the New York statute to be one of construction merely, "shall be construed to pass," &c.); Battle v. Speight, 9 Ired. L. 288; Mullock v. Souder, 5 Watts & Serg. 198; Gable v. Daub, 40 Penna. St. 217; Roberts v. Elliot, 3 Mon. 396. And by similar reasoning as to a different statute, in Means v. Evans, 4 Desaus. 242, a will made in 1805 by a testator who died in 1811, was held not to be governed by an act of 1791, (against the passing by will of after-acquired personal property,) repealed in 1808, but to be governed by the law as it was at the time of testator's death. Where the statute requires the intention of the testator to pass such after-acquired property to appear, the question often arises whether the requirement of the statute is satisfied. Thus, in Bowen v. Johnson, 6 Ind. 110, Perkins, J., says: "We think it applies only to cases where the will purports to devise all the property, * * * and not to cases where particular pieces of property are devised to particular devisees with a residuary clause." An expressed intention is also required, in Mason v. Mason, 3 Bibb 448; Walton v. Walton, 7 J. J. Marsh. 58; and in Dennis . Warder, 3 B. Mon. 174, the words, "such estate as it hath pleased God to bless me with," were held insufficient. See, too, the remark of Peters, C. J., in Flournoy v. Flournoy, 1 Bush 523: "If from the will itself it shall appear more reasonable to infer an intention that afteracquired land should pass by it than that it should remain undevised, then it would pass by the will; otherwise, if the contrary intention shall seem more reasonable, the land will descend. And if there be nothing in the will to lead to the one deduction rather than the other, land acquired by the testator after its publication should descend as estate undevised." In this case, the words "whole estate" were held to be sufficient indication of such intent. So, too, "all the residue," "all my estate," Winchester v. Forster, 3 Cush. 366; Cushing v. Alwyn, 12 Metc. 169; Pray v. Watterson, 12 Metc. 262; but the intention must appear, Brimmer v. Sohier, 1 Cush. 118; Haven v. Foster, 14 Pick. 534; "all my real and personal property" is sufficient, Liggat v. Hart, 23 Mo. 127; or all the residue," Fluke v. Fluke, 1 C. E. Gr. (N. J.) 478. Denio, J., in Lynes v. Townsend, 33 N. Y. 558, says: "No doubt a devise of real estate, universal in its terms, would carry afteracquired lands without any language pointing to the period of the testator's death. But where such unlimited terms are not used, there must be words in the will which will enable us to see that he intended it to operate upon real estate which he should afterwards purchase;" and in this case the appointment of executors "for the full and final settlement of my estate whether real or personal," was held insufficient. See, too, Quinn v. Hardenbrook, 54 N. Y. 83; so, in Havens v. Havens, 1 Sandf. Ch. 324, and Youngs v. Youngs, 45 N. Y. 254, the words, "all the rest and residue of my estate;" so, in Pond v. Bergh, 10 Paige 140, all my land at A. See, too, Pruden v. Pruden, 14 Ohio St. 251; Allen v. Harrison, 3 Call 289; Raines v. Barker, 13 Gratt. 128. And speaking of the Virginia statute, Washington, J., says, in Smith v. Edrington, 8 Cranch 66: "The presumption is that the testator means to confine his bequests to land, to which he is then entitled; and this presumption can only be overruled by words clearly showing a contrary intention." See, too, Smith v. Hutchinson, 61 Mo. 83. The following cases also may be referred to as giving effect to the stat |