Peters v. Spillman

Scates, C. J. On the 13th day of September, 1838, O. Peters made and published his will, containing the following devise: “ I bequeath all my property, real and personal, wheresoever the same may be, to my beloved wife, Hannah P. Peters.” She was appointed sole executrix, and not required to give security as such. After the publication of the will the testator acquired the land in controversy. The only question is, whether this after-acquired land passed by the will ? The power to dispose of and convey land by will is a statutory, and not a common law power, and must, therefore, depend for its extent upon legislative intention, as indicated by and contained in the frame of the act. The English acts, 32 Henry VIH., and 34 and 35 Henry VIII., and T presume it is so in those states of the Hnion which have adopted these acts in. substance, did not dispense with the common law requisite of seizin to enable a party to convey, which was as essential by will as by deed. Under those statutes it was, therefore, a question of power, and it was held that a testator could not pass after-acquired lands without a republication of his will, with proper language to include such lands, and with all the solemnities essential to the original execution and publication of his will. In Willis et al. v. Watson et al., 4 Scam. R. 64, we have settled the true construction of our statute of wills (Eev. Stat. p. 536, Sec. 1) and conveyances (id. p. 102, Sec. 1), as enabling a testator to convey by will after-acquired lands without republication. It is, therefore, a mere question of intention in the testator to pass such lands, and not a question of power when the intention is clear. The authorities referred to by plaintiffs, 7 John. E. 394; 9 ibid. 312, and 2 J. J. Marsh. E. 503, respect the question of power, and have no application here. The will is simple, plain, short and explicit. He gives all his property, real and personal, wheresoever the same may be. The intention here is plain and cannot be mistaken, and the power existed to carry that intention into effect. There is no ambiguity in the language, neither is there any doubt or confusion growing out of the condition and circumstances of testator, devisee, or the subject matter of the devise, which calls for explanation of testator’s intention, either by parol or other testimony. We need not, therefore, resort to the written memorandum of 12th January, 1856, nor pass upon its competency. When such difficulties are presented-, the excellent rules laid down in Wigram’s Treatise on Wills will aid essentially to remove all difficulty. See 1 G-reenlf. Ev. Sec. 287 and note 3. We cannot entertain a doubt that this land passed, by the devise in O. Peters’ will, to Mrs. Peters, and which did not descend to the plaintiffs, as heirs at law of O. Peters, in which right they have deraigned title. Judgment affirmed.