tory words to a will cannot vary the construction, so as to enlarge the estate to a fee, unless there be words in the devise itself sufficient to carry the interest. Such introductory words are like a preamble to a statute, to be used only as a key to disclose the testator's meaning.a A fee will pass by will, by implication of law, as if there be a devise over of land after the death of the wife; the law, in that case, presumes the intention to be, that the widow shall be tenant for life. So, a devise over to B., on the dying of A. before twenty-one, shows an intention, that if A. attains the age of twenty-one, he should have a fee, and he takes it by implication.b

There is a distinction taken in the English books between a lapsed legacy of personal estate, and a lapsed devise of real estate; and, while the former falls into the residuary estate, and passes by the residuary clause, the latter does not pass to the residuary devisee, but descends to the heir at law. The reason given is, that a devise operates only upon land whereof the testator was seised when he made his will; and it is not presumed that he intended to devise, by the residuary clause, a contingency which he could not have foreseen, or to embrace in it lands contained in the

a Preston on Estates, vol. ii. 188. 192. 206. Beall v. Holmes, 6 Harr. & Johns. 205., where this point is thoroughly examined. See also, Finlay v. King, 3 Peters' U. S. Rep. 346. b Bro. tit. Devise, pl. 52. Willis v. Lucas, 1 P. Wms. 472. Frogmorten v. Holyday, 3 Burr. Rep. 1618. Doe v. Cundall, 9 East's Rep. 400. 1 Sim. & Stu. 547. 550. Preston on Estates, vol. ii. 252. Cassell v. Cooke, 8 Serg. & Rawle, 290. The heir at law may be disinherited by implication, according to the doctrine of Lord Eldon, in Kerrs v. Wauchope, 1 Bligh, 25, 26. If the testator gives his estate to A., and the estate of A. to B.; in that case A. cannot be permitted to take the estate under the will, unless he performs the implied condition annexed to his devise, of giving his estate to B. He is put to his election. If he refuses to comply with the will, equity raises another implied condition out of the will, and gives to B., out of the estate devised to A., by way of compensation, the value of the estate intended for B.

lapsed devise. There is a further distinction between a Tapsed and a void devise. In the former case, the devisee dies in the intermediate time between the making of the will and the death of the testator; but, in the latter case, the devise is void from the beginning, as if the devisee be dead when the will was made. The heir takes in the case of the lapsed devise, but the residuary devisee may take in the latter case, if the terms of the residuary clause be sufficiently clear and comprehensive. This distinction appears to be founded on a presumption (though it would seem to be rather overstrained) of a difference in the views and intention of the testator between the two cases. The subject has been recently discussed in the courts in this country. In Green v. Dennis, the devise was held void, because the devisee was incompetent to take; and yet, though the devise was void from the beginning, the heir was preferred to the residuary devisee, on the ground that the testator never intended that the specific devise, which was void, should fall into the residuum. The residuary devise was of "the rest and residue of the estate not therein disposed of." But where the devise was upon a condition subsequent, and a contingent interest depending upon the failure of that condition, the residuary devisee was held, in Hayden v. Stoughton, to be entitled to the estate in preference to the heir; because the contingent interest had not been specifically devised, and it was carried along by the residuary devise. The alteration of the law, in NewYork, Virginia, and those other states, making the devise operate upon all the real estate owned by the testator at his death, may produce the effect of destroying the application of some of these distinctions, and give greater consistency

a Doe v. Underdown, Willes' Rep. 293. Durour v. Motteux, 1 Ves. 322.

Lord Hardwicke, in

b Doe v. Sheffield, 13 East's Rep. 526. Doe v. Scott, 3 Maule & Selw. 300.

c 6 Conn. Rep. 292.

d 5 Pick. Rep. 528.

and harmony to the testamentary disposition of real and personal estates.a

The title by devise closes the view of the law of real property, and with it the present work, which has insensibly extended far beyond my original intention. The system of our municipal law is so vast in its outlines, and so infinite in its details, that I have passed by many interesting subjects, to which I have not been able to extend my inquiries. The course of lectures in Columbia College included an examination of the remedies provided for the recovery of property, and redress of injuries; and I had prepared and delivered lectures on the history of a suit at law, according to the English model, including the doctrine of special pleading. But that subject has been laid aside; for, to extend such a discussion beyond the courts of New-York was not in my power; and the object of the work is professedly national, and not local. I have not the means at my command to give any thing approaching to a full and correct view of the practice of the courts in

a The law of legacies has grown into a copious system, and has been well digested by Mr. Roper; but with much more force, precision, and accuracy, by Mr. Preston. It is too full of detail, and too practical, to admit of much greater compression than Mr. Preston has given it; and I have been obliged, in the present extended state of this work, to desist from the attempt. Some provisions, as to the payment of legacies, are inserted in the New-York Revised Statutes, vol. ii. 90. sec. 43-51. They are not to be paid until after a year from the granting of letters testamentary, or of administration; and payment may be enforced by the surrogate. If the legatee be a minor, legacies, under the value of $50, may be paid to the father; and of the value of $50, or more, to the general guardian of the minor, on approved security. The former rule was, that the father, quasi father, was not entitled to receive the legacies due to his minor children. Genet v. Tallmadge, 1 Johns. Ch. Rep. 3. Miles v. Boyden, 3 Pick. Rep. 213. So, after the expiration of a year from the granting of letters testamentary, or of administration, the executor or administrator may be sued for a legacy, or distributive share, if there be sufficient assets, and a demand previously made, and a bond, with approved surety given, to refund in case of need. N. Y. Revised Statutes, vol. ii. 114. sec. 9-17.

the several states; nor would the value of such a work be worth the effort. The remedies, in every case, have been alluded to, and the principles on which they were founded stated, when we were upon the subject of rights; but the practice in the state courts is exceedingly diversified, and is undergoing constant changes. That of New-York, in particular, has been essentially altered by the late revision of the statute law; and the science of special pleading (curious, logical and masterly as it is) has fallen into very considerable disuse and neglect in almost every part of the country, without the prospect, or perhaps the hopes of revival. The general principles of equity have also been stated in the course of the work, so far as they were applicable to the various subjects which came successively under review; but, for the reasons already mentioned, in reference to suits at law, I have not undertaken to meddle with the remedial branch of equity jurisprudence. The law of crimes and punishments is, no doubt, a very important part of our legal system; but this is a code that rests in each state upon an exact knowledge of local law; and, since the institution of the penitentiary system, and the almost total abolition of corporal punishment, it has become quite simple in its principles, and concise and uniform in its details. Our criminal codes bear no kind of comparison with the complex and appalling catalogue of crimes and punishments, which, in England, constitutes the basis of the system of the pleas of the crown.

I trust I have already sufficiently discharged my engagements with the public; and I now respectfully submit these volumes to the candour of the profession, though not without being conscious of the imperfection of the plan, and still more so of the manner of the execution.

THE END.

INDEX.

N. B.-The Roman numerals refer to the volume, and the figures to the page.

Adjudications, force of, i. 473. 490. Agency in trade with the enemy,
Adjustment of general average,

69