[§ 3. Same as enacted.] Original note. "First clause declaratory of the existing law, 1 Inst., 31, b. 1. Cruise, Title 6, ch. 3, § 14; latter

clause new."

TS 4. Same as enacted.] Original note. "By the existing law, a widow is entitled to her dower in lands mortgaged before marriage (15 J. Rep., 319), except as against the mortgagee."

IS 5. Same as enacted.] Original note. "Conformable to Stow and Tifft, 15 Johns. R., 458, in which the court were divided; and 5 Cowen,

316."

IS 6. Same as enacted.] Original note. "This is now the rule in chancery, when a sale is made under a decree, but not when a sale is made under a power of sale, though it is apparent that the equity is the same."

IS 7. Same as enacted, except that the words, "unless his estate therein shall become absolute," were altered by the legislature to “unless he acquire an absolute estate therein."] Original note. "Conformable to the principles of the cases in 4 J. Rep. 41; 11 Ib. 534; 15 do. 319."

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S8. [§ 8 R. S. substituted by the legislature in lieu of the following, but see Title I, § 42, 48, chap. 8 of Part II.] If a wife commit adultery, and the fact be established against her, either by a decree dissolving the marriage contract, or by proof in any action brought by her, to recover her dower, she shall be barred forever of all claim and right to dower of her husband's lands; unless it be shown that, after knowledge of such adultery, her husband was reconciled to her, and that he permitted her thereafter to dwell with him, in which case she shall be restored to her right of dower." Original note. "1 R. L. 58, § 7, and 2 R. L. 196, § 8. Language of the first varied so as to conform to the original intent of its makers."

[S 9, 10, 11. Same as enacted.] Original note. "The three preceding sections are intended as a substitute for the whole of section 8 of the act 1 R. L. 58, except the last clause, giving a compensation in case of eviction. That section is a transcript of the statute, 27 Hen. VIII, ch. 10, § 6, and has always received a very strict construction. Conceiving that it would be attended with beneficial effects, to facilitate the barring of claims for dower, the Revisers have in the above sections extended the principle of the existing statute, so as to embrace any provision, whatever may be its nature, which is intended as a jointure. In this they have in truth but followed the existing law, for though jointures under the statute must in all points strictly conform to the provisions of the act, yet the courts of equity have introduced a new species of jointures which are equally effectual. The existing statute is defective in not pointing out the mode in which the assent of the intended wife is to be manifested, and in providing no guards for the protection of infants, both which omissions are supplied by the above sections."

[S 13. Same as § 14 R. S. except that it was so altered by the legislature as to apply to last two sections.] Original note. "New. Some mode of evincing her election should be prescribed, and some time, within which it shall be made."

$ 14. as reported; enacted with variations, § 15 R. S. Original note. "This is an alteration of the existing law, the statute which bars the wife guilty of adultery from dower, not extending to jointure. (Cruise, title 7, ch. 3, § 4.) It is conceived that the law should be the same in both cases."

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$ 16 enacted with a variation of words in italics, $ 17 R. S. "§ 16. A widow may tarry in the chief house of her husband, forty days after his death, unless her dower be sooner assigned her, without being liable to any rent for the same, and in the mean time she shall have her reasonable sustenance out of the estate of her husband." Original note. "1 R. L. 56, § 1. Italics new and conformable to 7 Johns. Rep. 247, and to the republication of Magna Charter, 1 Hen. III.”

[S 17. Same as § 18 R. S.] Original note. "1 R. L. p. 60, § 1, allows a widow her lifetime to prosecute for her dower. By the revised statute of limitations, a woman must demand every other estate in lands to which she may be entitled, within twenty years, subject to the exceptions contained in the preceding section. If it be an object in any case to quiet titles, to protect honest purchasers, and to excite to a vigilance equally beneficial to the claimant and to others, it is conceived that this case requires the necessary provisions to attain it, as much, if not more, than any other."

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[S 18, 19, 20. Same as § 19, 20, 21 R. S.] Original note to § 20. [§ 21 R. S.] "§ 2, 1 R. L. 57. The rule of damages given more explicitly according to the authorities; see Co. Litt. 32, 33; 2 J. Rep. 485. As the alienee of the heir may plead tout temp prist, and thereby throw upon the plaintiff the proof of a demand, it seems better to declare at once that the damages shall commence from such demand. This is also perfectly equitable, and becomes necessary by extending the action of ejectment to the recovery of dower, as in that action special pleading is not allowed, and without pleading it the defendant would be deprived of the benefit of such a defense, according to the present rules of pleading. The provision limiting the recovery to six years' rents and profits, is in analogy to the universal rule in all other cases. This rule is founded on great principles of public policy, for the protection of the actual cultivator of the soil, and is as applicable to the recovery of a dower claim, as to a recovery of any other estate in lands. The 20th section is conformable to existing law in all other cases, and has been adopted by the legislature in the Title concerning ejectment."

[S 21. Same as § 22 R. S.] Original note. "As the widow is limited by a previous section, in her recovery of damages from the time of demand of the alienee, it seems but just to permit her to recover of the heir."

[S 22. Same as § 23 R. S.] Original note. "Co. Lit. 35, a. If the heir assign to the widow dower in satisfaction of her claim upon him, and upon the lands of the feoffees of her husband, it may be pleaded in bar by the heir; but the better opinion seems to be that it cannot be pleaded by the feoffee. This section is proposed to remedy this defect."

[$ 23. Same as enacted § 24 R. S.] Original note. "The first part of the 5th section, and part of the 6th section of the same, consolidated

and extended to the new summary applications, as they are within the same principle."

"TITLE IV. Of estates for years and at will, and the rights and duties of landlords and tenants."

[S 1. Same as enacted.] Original note. “4th section of act of 1820, p. 178. Proviso omitted; it having been adopted as a general provision in ch. 7 part 2."

$5 and 6 as reported; not enacted; § 5 and 6 R. S. substituted.

Original note. "The law on this subject, is somewhat peculiar and anomalous. In 7 J. Rep., 205, and 18 do. 94, the supreme court held that possession being prima facie evidence of title, when it was con-nected with an equitable title, the party had an interest in lands within the statute of frauds; and that such interest was subject to sale under execution. But in 1 John. Ch. Rep., 52, the chancellor held that the vendor did not become seised to the use of the vendee, until the whole consideration money be paid; and that where a part only is paid, the vendee has a mere equity which cannot be reached by execution. This was sanctioned by the court of errors, in 17 J. Rep., 351. But notwithstanding, since these cases, the courts allow the interest of the vendee to be sold, and such sale to be conclusive upon him. In this state of the law, it is obvious that the interest of the vendee may be sacrificed without any or with very little benefit to the creditor, whose title is so precarious. At the same time great opportunity is afforded for fraudulent investments in a species of property which thus defies all legal or equitable jurisdiction. It is conceived the interest of the community will be promoted, by adopting the principle contained in the two preceding sections."

$9 as reported; varied in § 9 R. S. Original note. "Proviso to 1st section of act of 1820, p. 177, except the latter part as to notice, which is rendered necessary by the construction given by the supreme court in 4th Cowen, 350, that although the tenancy is determined by three months' notice to quit, yet a further notice of six months is necessary."

[S 10, 11. Same as enacted, except the substitution in § 11, of "one month's notice" for three, as reported.] Original note. "21st section of same act, p. 446, and 8th section of act of 1820, p. 179, consolidated: the provision respecting bail omitted, as it would be required in the action.

[S 14, 15. Same as § 15, 16, R. S.]

Original note to § 12 to 15. "§ 12, 1 R. L., 437, provides that no goods, levied upon under an execution, shall be removed from demised premises, until the rent be paid, and authorizes the collection. of the amount so paid, by virtue of the execution. It has given rise to much litigation, and is very liable to abuse. In practice, a claim to rent is a common resort to protect property from an execution. Presumptive evidence of such a claim and its amount, should be required as well to protect the creditor having an execution, as the defendant. For the latter is thus exposed to have his property sold upon a mere claim for rent, without any opportunity to contest it. A notice from the landlord is now required, to prevent a removal of the goods; 11 J. Rep., 185. If that notice is to amount to anything, it

should be verified. It is not perceived why the goods may not be removed and sold, to satisfy the landlord's claim, instead of the circuitous mode of paying the claim first and selling the goods afterwards. By allowing a sale, the claim is satisfied; or the tenant is enabled to contest it. Thus the rights of all parties seem to be guarded, and collusion between a landlord and his tenant to defraud a creditor, as well as collusion between a plaintiff and landlord to oppress a tenant, are prevented. The preceding four sections are proposed to attain these objects."

[S 16. Same as § 17 R. S.] Original note. "This is just, to prevent an extortionate claim of the landlord."

[S 17. Same as enacted, § 18 R. S.] Original note. "Conformable in part to the statute of 4 Geo. II, ch. 28, § 5, which has never been re-enacted in this state; and in part to the decisions of the supreme court, in 10 Johns. Rep., 91, and 2 Cowen, 656.”

Original note to $20. [§ 19 R. S.] “1 R. L., 439, § 1, abbreviated and made more comprehensive."

Original note to $22, 23, 24. "The three last sections are new in form, but intended to include all the various provisions of the act to enable grantees of reversions to take advantage of the conditions to be per'formed by lessees.' 1st vol. R. L., p. 363."

"TITLE V.-Miscellaneous provisions of a general nature."

[S 4. Same as § 3 R. S., as originally enacted. This section was afterwards amended on the suggestion of the Revisers, by act of 1830, chap. 320, § 11, by inserting the words "or of the register or assistant register of the court of chancery, where the jurisdiction shall belong to that court."

Original note to S as first proposed and enacted. "Some provision seems absolutely necessary, to protect persons purchasing from heirs. This section will be useful to purchasers, and is so guarded as to afford a reasonable time to the devisee to become acquainted with his rights." Original note to amendment of 1830. "See post § 12, in which provision is made for proving foreign wills, by commission from the court of chancery."

[S 5. Same as enacted § 4 R. S.]

Original note. "Where the testator or intestate has given a bond or other personal security for a mortgage debt, and probably in all cases where a mortgage is given to secure the payment of money, the personal estate, by the existing law, is the primary fund for the payment of the debt, and the heir or devisee may throw the charge upon the personal representatives. (See all the cases collected by Chancellor Kent, in Cumberland v. Codrington, 3 Johns. Ch. R., 229.) This rule of law is unknown to the generality of our citizens. The received opinion is, that the land is first liable for the debt; and it can hardly be doubted that the intentions of testators have frequently been defeated by the operation of the rule. It is therefore submitted, whether it ought not to be abrogated."

Original note to $ 1, 2, 3. "By the common law the word 'heirs' is indispensable in a deed, in order to convey an estate in fee. Even if land be given to a man forever, or to a man and his assigns forever,

he takes but an estate for life, (2 Black. Com. 107.) "This very great nicety about the insertion of the word 'heirs,' (says Sir Wm. Blackstone,) in order to vest a fee, is plainly a relic of the feudal strictness.' It may be added, that in most cases it defeats the intention of the parties, and in all cases is repugnant to the common understanding of mankind.

"When a person uninstructed in legal refinements disposes of property, if he intends to give but a limited or partial interest, he will always state it; the omission of such a qualification, is, of itself, the highest proof that he intended to give the whole. This is also the rule of law in reference to transfers of personal property; and so far as the courts could venture to go, with the common law rule staring them in the face, they have extended it to devises of real estate.

"Perceiving that to require the word 'heirs,' as essential to pass a fee, in wills would often defeat the intentions of testators, the courts at an early day, established the principle that a fee would pass in a will, either by words of inheritance or by words tantamount; but as there has been a constant struggle to give effect to this principle, without directly violating the feudal rule, which still governs in deeds, numerous distinctions have been introduced, which have given rise to much litigation and uncertainty.

"The rule in § 2 will remove this anomalous distinction, and place deeds and wills on the same footing.

"In recommending this alteration of the existing law, the Revisers have the sanction of the highest authorities. Chief Justice Reeve, of Connecticut, (Essay on terms, 'heirs,' &c. in his work on domestic. relations,) Mr. Brougham (Speech in British House of Commons, on the state of the Law, p. 111,) and Mr. Humphreys (Observations on the Laws of Real Property, p. 236,) are among those who have denounced the existing rule, or recommended its alteration.

"In the state of Virginia, and in several other states, provisions similar to the above, have been enacted by the legislature.

"The object of $ 3 is to make the intention of the parties, in all cases and in all courts, the paramount and governing rule of interpretation, thus extending to conveyances, the principle which now prevails universally, in relation to personal contracts, and which to a great extent, is adopted in equity, in the construction of wills, appointments under powers, and marriage articles. Were we not reconciled to it by a long habit of acquiescence, nothing would probably appear to our minds more strange and unreasonable, than that different and conflicting rules of interpretation should prevail in different courts, acting under the same system of laws, and deriving their authority from the same government; yet it is literally true, that the very same words which are understood in one sense, if contained in a deed, of which the construction properly belongs to a court of law, are declared to have a meaning directly opposite, if contained in an instrument, which it is the province of equity to interpret or execute. This can not be right. If with the view of attaining certainty in the construction of written instruments, it is just that the intent of parties should be made to yield to strict rules of construction, a discretionary power of relaxing those rules should never be given; for