544 Rogers v. Smith, 4 Pa. St. 93; Otis v. Smith, 9 Pick. (Mass.) 293. But see Elliot v. Carter, 12 Pick. (Mass.) 437; Leonard v. White, 7 Mass. 6.
545 But not more than necessary for its complete enjoyment. Bennet v. Bittle, 4 Rawle (Pa.) 339.
546 Ford v. Ford, 70 Wis. 19, 33 N. W. 188; Hopkins v. Grimes, 14 Iowa, 73.
547 Reed v. Reed, 9 Mass. 372; Fox v. Phelps, 17 Wend. (N. Y.) 402.
548 Pond v. Bird, 10 Paige (N. Y.) 140; Thompson's Lessee v. Hoop, 6 Ohio St. 480.
549 l Redf. Wills, 392.
550 Webb v. Archibald (Mo. Sup.) 28 S. W. 80; Briggs v. Briggs, 69 Iowa, 617, 29 N. W. 632; Morey v. Sohier, 63 N. H. 507, 3 Atl. 636. And see Stim. Am. St. Law, § 2634.
551 Jackson v. Potter, 9 Johns. (N. Y.) 312; Girard v. Mayor, etc., 4 Rawle (Pa.) 323; Parker v. Cole, 2 J. J. Marsh. (Ky.) 503. For devises held insufficient to pass after acquired realty, see Price's Appeal, 109 Pa. St. 294, 32 Atl. 455; Webster v. Wiggin (R. I.) 31 Atl. 824; Mcaleer v. Schneider, 2 App. D. C. 461.
552 white v. Howard, 46 N. Y. 159; Richards v. Miller, 62 111. 417; Kerr v. Moon, 9 Wheat. 565.
§ 283) devise. 475 chattel interests in real property, although such interests are for most purposes treated as personal, and go to the personal representative on the death of the one intestate.553 In many states a will executed according to the law of another state, where the testator is domiciled, is sufficient to pass real property within the state.554 The validity of the will is not governed by the laws in force at the death of the testator, but by those which were in force when the will was made.555 In many cases this is a rule prescribed by the statutes which make the change in the former law.556
Nature of Title ly Devise.
One who takes land by devise takes it not as heir of the testator, but "by purchase." 557 A devise takes effect at once on the death of the testator, and therefore the devisee must be in esse, so as to be competent to take title.558 *One cannot be made to take land by devise against his will, though an acceptance is presumed, in the absence of a showing to the contrary.559 Renunciation of title by devise can probably only be made by deed, because his title under the will vests at once on the death of the testator, and no entry by the devisee is necessary to perfect it.560 A devisee of land takes it, of course, subject to all liens and incumbrances which
553 Freke v. Carbery, L. R. 16 Eq. 461.
554 1 Stim. Am. St Law, § 2656.
555 Taylor v. Mitchell, 57 Pa. St. 209; Mullen v. M'kelvy, 5 Watts (Pa.) 399; Mullock v. Souder, 5 Watts & S. (Pa.) 198. A will void at the time it is executed will not become effectual by a subsequent change in the law. Lane's Appeal, 57 Conn. 1S2, 17 Atl. 926.
556 Lawrence v. Hebbard, 1 Bradf. Sur. (N. Y.) 252.
557 Bear's Case, 1 Leon. 112; Scott v. Scott, Amb. 383. Cf. Davis v. Kirk, 2 Kay & J. 391. But not when land is devised to one to whom it would descend. Clerk v. Smith, 1 Salk. 241; Allen v. Heber, 1 W. Bl. 22; Hurst v. Winchelsea, Id. 1S7; Chaplin v. Leroux, 5 Maule & S. 14; Doe v. Timins, 1 Barn. & Aid. 530. But see Biederman v. Seymour, 3 Beav. 368. Contra, Ellis v. Page, 7 Cush. (Mass.) 161.
558 Ex parte Fuller, 2 Story, 327, Fed. Cas. No. 5,147; Ives v. Allyn, 13 Vt. 629.
559 Perry v. Hale, 44 N. H. 363.
560 Webster v. Gilman, 1 Story, 499, Fed. Cas. No. 17,335; Graves v. Graves' Ex'r (Avis.) 63 N. W. 271. Cf. Hamilton y. Ritchie [1894) App. Cas. 310.
476 title. (Ch. 16 may exist on the land, and subject also to the right to the testator's creditors to enforce their claims against it.561
Revocation of Devises hj Alteration of Estate.
With the general subject to the revocation of wills we have no concern here, but certain rules relative to the revocation of particular devises after they are made will be considered. If the testator, after the execution of his will, sells the land devised, such sale is a revocation of that devise.562 A contract to sell, which is enforced by an action for specific performance after the testator's death, has the same effect.563 If part only of the land is sold, it operates as a revocation pro tanto.564 A mortgage, however, on land devised is not a revocation of the devise.565 Nor is a partition of land held in joint ownership.566 This effect is produced only when the estate of the testator is wholly divested. But the devisee would, of course, take only the equity of redemption where the land devised had been mortgaged.567 If, after conveying land which has been devised, the testator subsequently buys back the same property, at common law the devise was not thereby made operative again,568 but the rule is now otherwise in a number of states. In some states now, by statute, a change in the estate of the testator does not revoke a devise, unless the estate of the testator is wholly divested.569 The deed which is to revoke a devise must be lawful and valid. If it is obtained by fraud, or at the time of its execution the grantor is incompetent, it does not af561 Hattersley v. Bissett, 52 N. J. Eq. 693, 30 Atl. 86; Hyde v. Heller, 10 Wash. 586, 39 Pac. 249.
562 Walton v. Walton, 7 Johns. Ch. (N. Y.) 258; Adams v. Winne, 7 Paige (N. Y.) 97; Bosley v. Wyatt, 14 How. 390.
563 Brush v. Brush, 11 Ohio, 287; Wells v. Wells, 35 Miss. 638; Walton t. Walton, 7 Johns. Ch. (N. Y.) 258.
564 4 Kent, Comm. 528, 529.
565 The devisee takes the land subject to the mortgage. Tucker v. Thurstan, 17 Yes. 131.
566 Brydges v. Duchess of Chandos, 2 Ves. Jr. 417; Barton v. Croxall, Tarn. 164. Nor is a lease a revocation. Hodgklnson v. Wood, Cro. Car. 23.
567 See ante, p. 205.
568 Marwood v. Turner, 3 P. Wms. 163; Goodtitle v. Otway, 2 H, Bl. 516; Cave v. Holford, 3 Ves. 650.
569 1 Stiin. Am. St. Law, § 2810.
§ 283) feet a previous devise.570 But an intention to revoke a devise by an alteration in the testator's estate may be shown by evidence in or out of the conveyance.571 A general devise, as of "my land," is defeated if the testator parts with all his land, but revives when he acquires other land in states where after-acquired property passes by a general devise.572