283. The title to real property may be transferred by devise subject to the folio wing conditions:

(a) The will must be properly executed by a competent testator (p. 473).

(b) It must contain words of conveyance, and a description of the property devised (p. 473).

(c) Any interest in real property may be devised, except, in some states, subsequently acquired interests (p. 474).

(d) The law of the place where the land is situated governs the devise (p. 474).

(e) The devisee takes the land as a purchaser immediately on the testator's death (p. 475).

(f) Devises are revoked if the testator's estate is divested after the execution of the will (p. 476).

(g) In some states, if a devisee dies before the testator, the devise lapses (p. 477).

533 Gerrish v. Clough, 48 N. H. 9; Menzies r. Breadalbane, 3 Bligh ^N. S.) 414.

534 Cook v. Mcclure, 58 N. Y. 437; Steers v. City of Brooklyn, 101 N. T. 51, 4 N. E. 7; Eddy v. St. Mars, 53 Vt. 462; Bowman v. Sunnuchs, 42 Wis. 233; Olson v. Huntamer (S. D.) 61 N. W. 479. But not when drained by artificial means. Noyes v. Collins (Iowa) 61 N. W. 250.

535 Chicago Dock & Canal Co. v. Kinzie, 93 111. 415; Camden & A. Land Co. v. Lippincott, 45 N. J. Law, 409. But see Terriere v. City of New Orleans, 35 La. Ann. 209.

536 Buttenuth v. Bridge Co., 123 111. 535, 17 N. E. 439; Rees v. Medaniel, 115 Mo. 145. 21 S. W. 913; Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396; Id., 145 U. S. 519, 12 Sup. Ct. 976.

§ 283)

Title by devise is that which is acquired by persons who are given land under a will. A will, as transferring land, differs from a deed principally in that it is an instrument operating after the death of its maker, while a deed operates inter vivos. The same instrument, however, may be construed either as a will or as a deed; the effort of the court construing such an instrument will be to carry out the intention of the maker.537 But if it cannot take effect until after the tetter's death, it will be deemed a will.538 The competency of testators to make wills, and of devisees to take lands under them, was considered in discussing personal capacity.539 For the history of wills, the formalities necessary for their valid execution, requirements of probate, and the method of construing them, reference must be made to works on the law of wills. It will be possible here merely to discuss a few points which bear particularly on real property.