tator11, and the statute42 which provides that no will shall be effectual to pass either real or personal estate, unless it shall have been duly probated and allowed in the probate court, does not in any way affect the general rule, that a will speaks from the death of the testator43.

$285. The Rule in Shelley's Case Abolished.

Under the statute44, when a remainder is limited to the heirs, or heirs of the body of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body of such tenant for life, and they shall be entitled to take as purchasers, by virtue of the remainder so limited to them. So a statute15 provides that "when a remainder shall be limited to take effect on the death of any person without heirs or heirs of his body, or without issue, the words "heirs" or "issue" shall be construed to mean heirs or issue living at the death of the person named as ancestor.

$286. Restraints Upon Alienation.

The restraint upon the power of alienation is one of the arbitrary rules affecting devises by will under the statute, which imposes restraints upon the alienation of land. The absolute power of alienation shall not be suspended by any limitations or conditions whatever, for a longer period than during the continuance of two lives in being as the creation

41. Richards V. Pierce, 44 Mich. 444, 7 N. W. 54.

42. C. L. '97, §9281.

43. Richards V. Pierce, 44 Mich. 444, 7 N. W. 54.

44. C. L. '97 $8810.
45. C. L. '97 §8804.

of the estate. The rule relating to the suspension of the power of alienation as to personal property is the same as the rule at common law, i. e., during the continuance of a life or any number of lives in being at the creation of the estate, and, in case of a minor, until such minor becomes twenty-one years of age thereafter. Under the statute imposing limitations upon the accumulation of rents and profits of real estate the accumulation shall be for the benefit of minors, and then only during their minority.

$287. Construction as to Time When Estate Vests.

The stringent rule in the exposition of wills is that the intention of the testator as expressed in his will must prevail, but this rule is only to prevail when consistent with the positive rules of law, for it is said that for many reasons, not the least of which are that testators usually have in mind the actual enjoyment, rather than the technical ownership, of their property, and that policy as well as practical convenience require that titles should be vested at the earliest period. It has long been a settled rule of construction in the courts of England and America that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent upon a future event.

§288. General Rule as to Construction of Legacies.

The general rule as to construction of legacies is that if a testator gives a legacy to A. B. at the end of ten

46. Hood v. Hovey, 50 Mich. liams, 41 Mich. 552, 2 N. W. 814. 395, 15 N. W. 525, Toms v. Wil

years after his death, the legacy is contingent, but if he gives it to A. B. to be paid to him at the end of the ten years, it is vested17.

$289. Bequests on Condition.

A condition attached to a bequest which is not contrary to law, nor public policy nor good morals nor any matter of conscience will be held valid.

§290. General Residuary Bequests.

A general residuary bequest takes all lapsed and void legacies.

§291. Repugnant and Contradictory Clauses.

A general maxim in the construction of wills is that "where two clauses of a will are repugnant one to the other, the last in order shall prevail"'48.

$292. Construction as to Partial Invalidity.

It is manifest that, not only the four corners of the will but the amount of the estate of the testator and his surroundings, are to be considered in determining the meaning of ambiguous provisions in a will49, and a will creating vested estate subject to trusts which might otherwise suspend the power of alienation beyond two lives in being makes the trusts void incumbrances50, but a will containing provisions which are void, does not render invalid pro

47. Hibbler V. Hibbler, 104 Mich. 274.

48. Foster V. Stevens, 146 Mich. 131, 109 N. W. 205.

49. Sondheim v. Techenbach, 137 Mich. 384, 100 N. W. 586.

50. Toms V. Williams, 41 Mich. 552, 2 N. W. 814.

vision that advancements made to the sons shall be charged against the devises made to them51.

§293. What Law Governs.

"The language of wills," said Mr. Justice Story, "is not of universal interpretation, having the same precise import in all countries and under all circumstances. They are supposed to speak the sense of the testator according to the received laws of usage of the country where he is domiciled, by a sort of tacit reference, unless there is something in the language which repels or controls such a condition." Where a foreign will is admitted to probate here, Michigan courts should adopt the construction placed upon it by the courts of the state where the testator resided, unless the terms of the will clearly show that the testator had in mind the laws of this state or used language necessarily referring and only appropriate to this state.

51. Dean V. Mumford, 102 Mich. 510, 61 N. W. 7.

52. Ford v. Ford, 80 Mich. 42, 44 N. W. 1057.

CHAPTER XVII.

CONTRACTS TO MAKE WILL.

$294. In General.

$295. Nature of the Contract.

$296. Revocability of the Contract.

$297. Conveyances Made to Defeat Rights Under Contract.
$298. Statute of Fraud as to Contracts for Making Wills.
$299. Equity Compel Conveyance of Land.

$300. Performance or Breach.

$301. Pleading in Actions for Breach. §302. Right and Remedies.

$294. In General.

Contracts relating to the disposition of one's estate after death are not infrequent, for it is no uncommon thing to make bargains intended to operate after death, and they have found their usefulness and legal substantiation in jurisprudence. They are akin to joint or separate mutual wills, and they may be divided into those contracts which are made between the testators and the contracts which are made between the testator and some third party.

$295. Nature of the Contract.

These contracts may take on various forms in that they may relate to dying intestate or making a person an heir, etc. They do not differ from other contracts. They must be based upon sufficient consideration to provide by will for a given object, and if they are satisfactorily proved and