The opinion of the court was delivered by
The action was one to construe a will. A demurrer to the petition was sustained, and judgment was rendered accordingly. Plaintiffs appeal.
At common law, before the Victorian Wills Act of 1837, a will оf real estate spoke from its date, and was regarded as a specific appropriation оf the land devised. Some consequences of these rules were considered in the case of Kirkpatrick v. Kirkpatrick,
"A conveyance, settlement, deed оr other act of the testator by which his estate or interest in property previously devised or bequeathеd by him shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of suсh property, but such devise or bequest shall pass to the devisee or legatee the actual estatе or interest of the testator which would otherwise descend to his heirs or pass to his next of kin, unless in the instrument by which such аlteration is made the intention is declared that it shall act as a revocation of such previous devisе or bequest.
“But if the provisions of the instrument by which alteration is made are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such conditions be not performed or such contingency do not happen.”
These sections wrere taken bodily from the New York statute relating to the same subjеct. (2 McKinney’s Cons. Laws of N. Y., book 13, Decedent’s Estate Law, §§ 37-40.) They came into our law with the revision of 1868. At that time it had been settled in
In these cases, every proposition of the plaintiffs was determined adversely to them.
Aside from the presumption the legislature intended the adopted sections should have the meaning attributed to them by the courts of New York, the cases cited are sound in principle. Section 11789 interprets section 11788. Even although the testator do not divest himself of all interest in the land devised, if the instrument by which the alteration of estate is made be unconditionаl and inconsistent with the devise, the devise is adeemed. In this instance, the vesting of full title in the purchaser of the land wаs utterly inconsistent with the devise. If the mortgage be considered as in a sense part of the transaction of sale, it serves to confirm the inconsistency. Watson no longer owned the land. The will could not operate оn it when he died. The land belonged to the purchaser, who, by virtue of his ownership, used it to secure payment of his note. The mortgage reconveyed nothing to Watson. In Watson’s hands the mortgage was a mere chattel incident to the note, a chose in action, giving him the privilege of appropriating the land to pay the notе, but no interest or “right” in the land itself.
To establish a basis for argument that a mortgage conveys to the mortgagee some estate in the land, the plaintiff goes back to the common-law doctrine of the nature of a real-estate mortgage. This doctrine was dealt with in the case of Clark v. Reyburn,
“AU that remains of the old theories is their nomenclature. In this state, a clear sweep has bеen made by statute. The common-law attributes of mortgages have been wholly set aside; the ancient theоries have been demolished; and if we could consign to oblivion the terms and phrases — without meaning except in reference to those theories — with which our reflections are still embarrassed, the legal profession on the bench and at the bar would more readily understand and fully realize the new condition of things.” (p. 391.)
Bеing personal property, the.note was bequeathed by Watson to his wife. By virtue of bequest of the note, the mortgage passed to her, the mortgage not being the subject of beneficial ownership independently of the note. (Beck v. McGilles, 9 Barb. [N. Y.] 35, 55; Burhans v. Hutcheson,
The judgment of the district court is affirmed.