foregoing cases went upon the ground that the testator was in the habit of calling the claimant in the one case Mrs. G., and the claimant in the other by his surname. When a testator has habitually called certain persons or things by peculiar names, by which they were not commonly known; if those names occur in his will, evidence of such habit seems receivable to explain the meaning of the will, in like manner as if his will had been written in cipher or in a foreign language. The habits of the testator, in these particulars, must be receivable as evidence to explain the meaning of his will. (Per Lord Abinger in Doe v. Hiscocks, 5 M. & W. 368.)

The case of Parsons v. Parsons, (1 Ves. jun. 266,) affords another example of a mistake in the name of the legatee, which did not defeat the object of the testator. The testator by his will gave an annuity to his brother Edward Parsons for life, and, after his decease, the same to go equally among his [E. P.'s] children "by his present wife;" and at the date of the will, the testator had no brother except one named Samuel who had a wife and children; but four or five years before, he had a brother named Edward, who, as well as his wife, was then dead; which fact was known to the testator, who by the same will gave legacies to his children. The testator had been in the habit of calling his brother Samuel, Edward and Ned. The lord chancellor, without argument, held that the children of Samuel were entitled.

In Thomas v. Stevens, (4 John. Ch. 607,) a legacy to Cornelia Thompson was held, by Chancellor Kent, to be a good bequest to Caroline Thomas, it being admitted by the executors and by proof aliunde that she was the person intended.

On the same principle, the case of Connolly v. Pardon, (1 Paige, 291,) was decided. In that case the testator, in a codicil, bequeathed as follows: "To my nephew Cormar Connolly, the son of my brother Cormar Connolly, the sum of five hundred dollars, for his ecclesiastical education, which sum is to be taken from what I have bequeathed to my brother Cormar, and to my sisters Mary and Ann." The testator never had a brother named Cormar, but he had a nephew Cormar, son of his brother James, the complainant, who, at the time of making the will, was pursuing classical studies in Ireland, with a view to an ecclesiastical education; and he was the only nephew of that name. The proper parties were before the court, and the bill was taken as confessed. The chancellor, after

considering the explanatory circumstances set up in the bill, held that the complainant was the object of the testator's bounty.

If the legatee can be ascertained, a legacy will not be permitted to fail on account of a misdescription of the legatee. (Banks v. Phelan, 4 Barb. 80.)

The same principles apply when the object of the testator's bounty is a corporation or a voluntary association. Thus, in the last cited case, a legacy in trust for "the ladies of the Ursuline order, residing in Charleston," was upheld, while the legatee intended was, "The Ladies' Ursuline community of the city of Charleston." And it was said that a bequest to a religious society, as such, is valid as a gift for pious and charitable uses, where there is no doubt or uncertainty as to who was the legatee intended, although the society be not incorporated.

Some of the cases referred to are of personal legacies, but the principle, so far as relates to the description of the person intended, is the same, whether it be a bequest of personal property, or a devise of real estate.

It sometimes happens that the testator has expressed his intention so ambiguously as to render it necessary to come into a court of equity for a construction of the will, or to remove the difficulty, and to obtain the direction of the court in relation to the whole, or some part of it. In cases of this kind, the cost of the litigation is within the discretion of the court, and is usually borne by the estate. (Smith v. Smith, 4 Paige, 271. Rogers v. Ross, 4 John. Ch. 608. King v. Strong, 9 Paige, 94.)

Courts of equity obtain their jurisdiction over wills, by virtue of their general jurisdiction over trusts. The jurisdiction is not confined to wills of personal property, but extends to all kinds of wills, whether they relate to real or personal property, or to both. Sometimes the object is to remove an uncertainty, either as to the person intended or the subject of the will. Some of these cases have been adverted to in this section already. Sometimes the bill is filed to remove an ambiguity; sometimes to enforce a charge, or to compel the execution of a trust, in favor of legatees or creditors; and sometimes to enforce contribution among the beneficiaries to remove a burden common to all. This branch of the subject belongs more appropriately to works on equity jurisprudence, to which the reader is referred. (See Willard's Eq. Jur. 483 et seq.)

SECTION IV.

By what Words particular Estates and Conditions are Created, and by what Words Lands are Charged.

We have mentioned in the second section of this chapter, the manner in which a devise is created, and have brought to the notice of the reader some of the rules of construction with reference to the quantity of interest, the property devised, and the person of the devisee. It is proposed in this section to point out by what words particular estates, not before mentioned, are created.

By the common law, if a man devises to two or more persons an estate in lands, to them and their heirs and assigns forever, the devisees take an estate in joint tenancy. It was not necessary to specify the incident of survivorship, for that was inseparable from the nature of the estate. It has been shown in a previous part of this work, that the revised statutes have changed this rule of the common law, and made the estate in the case supposed a tenancy in common. If it be desired by the testator to give an estate in joint tenancy, he must expressly declare that intention in the will itself. It is usual in such cases for the testator to use language like this, viz: I give and devise to A. B. and C. D., and their heirs, such a farm, describing it, to hold as joint tenants and not as tenants in If it be simply devised to them and their heirs, without any words of qualification, they will take the estate as tenants in common, and not as joint tenants. The only exception to this rule, under our statute, is the case of estates vested in executors or trustees, who invariably hold as joint tenants, with all the incidents of survivorship. (1 R. S. 727, § 44.)

common.

Under the New York statutes, if the devise be in fee tail, as at common law; as when the testator devises the estate to A. B. and the heirs of his body, or to A. B. and his issues; or when, by any words, he manifests an intention to restrain the estate to the devisee and the issue of his body; the devisee will take the fee simple by force of the statute abolishing entails, and converting them into estates in fee simple. (Id. 722, revising the statute of 1786.) It is immaterial, therefore, in determining the nature of the estate which a party derives by devise, whether the estate be such as at

common law was a fee tail or a fee simple. In either case, by force of the statute, the estate is a fee simple.

There are several material distinctions between a will and a deed. A deed operates from the time of its execution; a will only from the death of the testator. In the meantime it is said to be ambulatory. A will is revocable in its nature; but a deed is not revocable in its nature. To defeat its operation there must be a condition; or in case of a conveyance to uses, or upon trust, a power of revocation. In regard to deeds, whenever a condition is annexed to the same, the title derived under the conveyance must be considered as defeasible so long as the condition remains in force. A will may be revoked, as we have seen, by a variety of means; and again be republished and made operative. (3 Prest. on Ab. 181.)

With respect to the words that are necessary to make a devise conditional, it is laid down by Lord Coke, that many words in a will make a condition in law, that make no condition in a deed; as a devise of lands to an executor ad vendendum. So if lands be devised to one ad solvendum, £20 to J. L. or paying £20 to I. S., this amounts to a condition. (1 Co. Litt. 236 b.) Any words which in a deed create a condition, will have the same operation in a devise. Conditions are express or implied; precedent or subsequent; and whether they be one or the other depends upon the intention of the parties as expressed in the instrument. (Nicoll v. The New York and Erie Rail Road, 2 Kern. 121. Ante, Part 1, chapter 4.)

There is distinction between a condition and a limitation. A condition is something inserted for the benefit of the grantor, giving him the power, on default of performance, to destroy the estate, if he will, and revest the estate in himself or his heirs. As the law does not presume forfeitures, it requires some express act of the grantor, as evidence of his intent to reclaim the estate, viz: an entry. (1 Cruise's Dig. Greenl. ed. tit. 13, ch. 2, § 64, note 1.)

A limitation determines the estate ipso facto, without entry. It is conclusive of the time of continuance, and of the extent of the estate granted; and beyond which it is declared at its creation not to be intended to continue.

Conditions render the estate voidable by entry. Limitations render it void, without entry.

If, upon failure of that upon which the estate is made to depend, no matter how expressed in the deed, the land is to go to a third

person; this is a limitation over, and not a condition. For if a condition, an entry by the grantor would be necessary; and he might defeat the limitation by neglecting to enter.

A limitation is imperative, and is determined by the rules of law.

A condition not only depends on the option of the grantor, but is also controlled by equity, if the grantor attempts to make an inequitable use of it. The performance of a condition is excused by the act of God or of the law, or of the party for whose benefit it was made.

A limitation determines the estate absolutely, whatever be its nature. (Id. note of Prof. Greenl. 1 Prest. on Est. 40-59. 2 BI. Com. 155, 156. 4 Kent's Com. 126-128.)

With regard to the charging the real estate of the testator with the payment of debts or legacies, or both, the most obvious mode is to express the intention, in direct terms. The testator may, if he pleases, make his real estate the primary fund for the payment of debts and legacies, or only the auxiliary fund for that purpose. He may bequeath and devise all his estate, real and personal, to his executors in trust to pay the debts and legacies; or he may simply authorize and empower his executors to sell his real estate, or such part thereof as may be necessary for those purposes. In the first case, the executors take the fee, and in the second a power of sale; and in both they become trustees for the purposes of the will, and they may be compelled to the execution of the trust by a court of equity.

If the will is silent on the subject, the personal estate constitutes the primary fund for the payment of the debts, and the only fund for the payment of legacies. (Lupton v. Lupton, 2 John. Ch. 614, 624.) In this state the real estate can be reached for the payment of debts, in the hands of executors or administrators, in all cases, whether they be so charged by the testator by his will or not. If so charged, the courts have power to enforce the execution of it; and if not charged, provision is made through the intervention of the surrogate's court, for making the real estate available for the payment of debts. (2 R. S. 100, § 1, as amended by act of 1837. Willard on Ex'rs, 306 et seq.)

When the charge is made in direct terms, there is no room for dispute or construction, and the cases need not be examined in this