
    Den on demise of Jiggitts and others. v. Maney.
    I Fi’om Hertford*
    As the statutes of devises, 32 and 34 líenry 8th, declare that “ a man turning lands may devise them,” lands acquired subsequent to the devise do not pass by it, although the devisor expressly refers to all the lands he might have at his death; for at the time of the devise he had not the lands. Yet if testator had no estate in the lands at the lime of the devise, and he devises them for the payment of debts, and afterwards acquires them, a Court of Chancery will decree a sale of them.
    kands acquired subsequent to a devise, pass by' a new publication of the will.
    At what time a will shall be considered as published, under the act of October, 1784-, ch. 10, sec. 5. Under this act there are two classes of cases, 1st, Where a will is found among the valuable papers or effects of the deceased; 2d, Where it has been lodged in the hands of any person for safe keeping. In each case it is necessary, to support a devise of lands, that the will be in the hand-writing of the deceased, and that his name be subscribed thereto, or inserted in some part thereof. The act makes the circumstances of the will being in the hand-writing of the deceased, with his name subsci'ibed thereto or inserted in some part thereof, and its being found among his valuable papers, or lodged in the hands of some person for safe keeping, as equivalent to a publication before witnesses. And the publication shall be referred to the date of the will; not to the time of its being found among the valuable papers or effects of the deceased, or of its being lodged in the hands of a person for safe keeping.
    This was an action of ejectment for lands in Hertford county i and upon the trial, the Jury found a special verdict, stating that Lewis Meredith, on the 4th day of May, 1798, made a will, and thereby devised his estate, both real and personal, to those under whom the Defendant claims : that after the date of said wall, he purchased the lands in question, and died in October, 1803, seised thereof: that the said will was admitted to probate in Hertford County Court, it being proved by at least three credible witnesses, that the same and every part thereof was in the hand-writing of Meredith, with
    
      his name subscribed thereto in his own hand-writing’, and that it was found after his death among his valuable papers. The lessors of the Plaintiff were the heirs at law of Meredith, and the question arising upon the special verdict was, whether the lands purchased after the date of the will, passed by the will l The question being sent to this Court, was argued by Cherry for the lessors of the Plaintiff, and by Browne for the Defendant.
    
      Cherry, for the lessors of the Plaintiff,
    urged, that na position of Law was more certainly established, or more universally admitted, than that lands purchased after the date of a will, cannot pass under that will without a republication thereof. The reason of the principle is plain and obvious. In the first place, a man cannot give that which he hath not: and secondly, the form of pleading such an estate, (which is evidence of the law) is, “ that the testator being seised of such an estate at such a time, devised,” &c. Either of these roasons is sufficient to conclude the question ; and of the great number of authorities which might be produced to establish this point, one only will be cited, although the same doctrine is clearly maintained by every writer on the English Law who hath treated of this subject. The case alluded to is that of Bunter and Coke, 1 Salk. 106, where the Law, and the reasons upon which it is founded, are clearly and explicitly stated. Unless, then, there be some circumstance to distinguish this from the ordinary case of wills, the Plaintiffs are certainly entitled to recover.
    A will of this description, it is admitted, is unknown to the Common Law, or to the Statute Law of England. But-it is contended, that the intention of the Legislature of North-Carolina, in passing a law declaring that a will of the description of the one now before the Court, should be good and sufficient to convey lands, was to give,to such will-the effect and validity of a will attested by subscribing witnesses. The act of 1784, ch. 10, sec. 5, declares, “ that when any last will shall be found amongst the,valuable papers' or effects of any deceased pers011j or s|ja]| have been lodged in the hands of any person for safe keeping, and the same shall be in the hand-writing of such deceased person, and his name subscribed thereto or inserted in some part of such will, and if such hand-writing is generally known by the acquaintances of such deceased person, and it shall be proved by at least three credible witnesses, that they verily believe such will and every part thereof is in the hand-writing of thp person whose will it appears to be; then and in that case such will shall be sufficient in Law to give and convey a sufficient estate in lands, tenements and heredi-taments,” &c. The situation of the country, and the occasional difficulty of procuring witnesses to attest wills, might and probably did render such a law necessary and proper. But it must be a very peculiar kind of Legislative magic which enables the Legislature of this State to empower any person to will lands effectually, and yet have no interest in them.
    It is, however, contended, that this will became such and had effect only when found after the testator’s death among his valuable papers ‘, that the publication of it relates to that time; or if previously published, yet remaining unaltered in the testator’s possession until his death, amounts to a republication, and so in either case the lands pass under the will. To this it is answered, ■ that to suppose a man capable of publishing or republishing a will after his death, is an idea absurd and preposterous. By death we are deprived of physical energy and intellectual power, and a will can only be published or republished by some act performed or declaration expressed by the testator in his life-time. It will appear from the learning on this subject, collected by Powell in his Treatise on Devises, 80-1-2-6, 652-8-6-7,- that a will can neither be published nor republished, but by some act done or expressions used, whether before or since thp statute of frauds. It is therefore contended, that there is no circumstance in this case amounting to a republication after the date of the will, and that the period of its publication cannot he referred to any time posterior to the testator’s death. The consequence is, that the lands belong to the lessors of the Plaintiff, as the heirs at law of the testator.
    
      Browne, for the Defendant.
    The date of. a deed or other instrument is immaterial; it may be false, impossible, or there may be no date, and yet the deed is good. Com. Big. Fait. B. 3. The statutes of 32 and 34 Henry 8th, say, “ a man having lands may devise,” and there-foi’e, lands purchased after the devise is made, do not pass — Com. Big. Bevise, M. But they pass by a new publication — Ib. E. 2, 3, and a small inatter would have amounted to a new publication, as testator’s saying, “ that his will lies in his box in his study.” — Ib. E. 2. By the statute of 29 Charles-2d, it is necessary that this publication should be made before three or more witnesses. Our Legislature, in April 1784, ch. 22, did not think it necessary to adopt this cautious ceremony in its full extent, hut enacted that a publication before two witnesses should be sufficient. Before the passing of these acts requiring the attestation of witnesses, if a man had made his will, and twenty years afterwards on his death-bed, said “ It was in a box in his study,” that would have been a sufficient republication to pass all lands which he had at that time. It was not then, nor is it now, the date, the time of writing, nor the signing, but the time of publication or republication which the law regards. The act of October, 1784, ch. 10, sec. 5,‘professes to except and does except some cases out of the act requiring a publication before witnesses, and declares the wills in those cases good without such publication j but substitutes another requisite in place of such publication, namely, “ being found among the testator’s valuable papers or effects.” And as the wills in the cases under the act of April, 1784, operate not from the date, nor 0f writing, nor of signing, but from the publication before witnesses, so in those under the act of October, of that year, they ought to operate, not from the daté, &c. but from their being found “ among testator’s valuable papers or effects.” A man may make his will in his own hand-writing and sign it, but if he leave, it on his table, or throw it aside among waste papers, that does not make it his will, because “ it lias neither been found among his valuable papers or effects,” nor “ lodged in the hands of some person for safe keeping f* one or the other of which circumstances is required to give it force and operation.
    The words of the act necessarily require this construction. “ Then (at that time) and in that case,” necessarily originate the question, When (at what time) and in what case ? The act itself answers this question: <{ When any last will shall be found,” &c. or “ shall have been lodged,” &c. This answers the question as to the time. Vide Johnson’s Diet. When. Now “ in what case ?” The act answers this also : “ and in case the same shall bo in the hand-writing,” &c.
    It is natural to man to wish to dispose of his property after his death, and there is no period in the history of our Law, in which our forefathers did not enjoy it at least as to personal property. Although the spirit of the feudal system prevented it for some time as to lands, yet, as the rigour of that system began to abate, men asserted their right of disposing of their lands ; first of two-thirds, then of the whole. Men often deny themselves the comforts which they could otherwise afford, in order .to increase the stock which by their wills they are to distribute among their favourites. For this purpose they continue to labour, to exert their talents, their patience in supporting hardships, and their fortitude in encountering dangers and surmounting difficulties, much longer than they otherwi.se would do. This motive sets all their faculties in operation, and continues to invigorate and propel them ; and as all public benefit is derived from the exertion of individual industry and talents, the public ought surely to encourage the motive from which that exertion springs. The public do encourage it, by permitting men to dispose of their property by will, and the Courts of J ustice have adopted many rules cherishing this motive, particularly two : “ That wills shall be favoured j” and “ That the intention of the testator shall be the polar star to guide the decision.” Under the influence of these rules and this disposition, it has always been clearly held, that if a man make his will, devising “ all his property,” personal property afterwards acquired shall pass. Why not lands likewise ? The only reason assigned is, that the Legislature used the word “ having,” in the statutes of 32 and 34 Hen. 8th. But here is a case under a very different statute, the words of which seem to require that all the lands of which the testator was seised at the time of his death should pass by the will. If, however, there could be a doubt on the words of the will, the Court will adopt these general rules ; they will favour the will j they will be guided by the intention of the testator \ they will say the same words in the same will shall have the same meaning when applied to real as to personal estate.
   The following opiniori was forwarded by

Taylor, Judge,

and concurred in by the Court:

All the circumstances required by the act of October, 1784, ch. 10, to constitute a valid devise of lands, are stated in this case to have attended the execution and probate of Meredith’s will. 1st. It was in the testator’s hand-writing, and his name subscribed thereto. 2d. It was found after his death among his valuable papers. 3d. It was proved by three credible witnesses. Of the sufficiency of. the will no doubt can be raised, The remaining question is, what passed under the will ? If the lands sued for passed by the will, the judgment of the Q0U1>t must be for the Defendant: if not, the lessors of the Plaintiff, who are the heirs at law, are entitled to recover.

The. difference in the rule of Law, between real and personal property acquired after making the will, may probably have been deriyed from the policy of feuds, according to which no heir was appointed, to whom chattels should descend. Upon the death of the owner, they belonged to the ordinary. To appoint an executor, therefore, was to appoint an heir, upon whom the testator’s chattels should descend at his death, and who stood exactly in the situation of the testator, and acquired a right to all, as well those which were acquired after making the will, as those which were possessed before it. But as to freehold property, the Law was different: an heir was already appointed, the course of succession traced out, and immediately upon the acquisition of a feud by the ancestor, an imperfect right belonged to the heir in his own right. Thus it became necessary to insert the word “ heirs” in the deed, whenever an inheritance was conveyed. It then vested in the purchaser and his heirs, and could not be disposed of but by some act subsequent to the acquisition of it. For if an estate could be passed by any act prior to the acquisition of* it, two incompatible titles would meet together •, the title of the heir created by law, the title of „the assignee created by the seller. But that of the heir being the most favoured title, must prevail. The effect of a disposition of real estate, to take effect after the death of the donor, is to deprive the heir of the succession established by law in his favor j the consequence of disposing of the personal estate is to appoint an heir. The first must therefore operate as a present conveyance by the ancestor, to take place in future against the title of the heir: the latter is to appoint an heir to all the personal property of which the ancestor dies possessed. The will as to personals does not speak until after the testator’s death, but as to real property, it refers to the date ; because it is considered in the nature of a conveyance by way of appointment. Hence a man cannot devise lands which he has not at the date of the conveyance. Whatever may have, been the origin of this rule, or however artificial the reasoning may seem, upon which it is supported, it is too firmly fixed and interwoven in our system of laws, to be shaken at tiiis day. In confirmation of the numerous cases to be found in the books, some have been decided in this State, and much property is held and^mpch litigation prevented, by a confidence that the law in this respect is certain and established. Indeed, it would be difficult, if not impossible, to find a single case of sufficient authority to countenance the Court to alter the rule of decision, should they even be strongly called upon to do so, by circumstances of peculiar hardship. For in the case of Bunker v. Cook, 1 Bro. P. Cas. 199, finally decided in the House of Lords, it was held that lands purchased after the making of the will which,devised them to the wife, and expressly referring to all the testator might have a right to at the time of his decease, although purchased with money received by the testator in right of his wife, would not pass by the will, in that case the law was deemed imperative, although the Judges when they delivered their judgment, declared their belief that the testator intended the lands in question should go to his wife.

Exceptions have been established in particular cases, where the testator has an equitable estate in lands, and devises them for the payment of debts: and, indeed, there are authorities that go so far as to hold, that if lands are devised for the payment of debts, although the testator had no estate whatever at the time of the devise, a Court of Chancery will decree the sale of them. But it is not necessary to consider the peculiar grounds of these exceptions, since the present case does not fall within any 0f them. Judgment for the Plaintiffs.  