A. In what form, and to whom a devise, &c., may be made, and what passes thereby. General and specific legacies.

1. A bequest to a foreign corporation is valid in Massachusetts. Burbank v. Whitney, xxiv. 146.

2. A bequest for charitable uses to an unincorporated society may be enforced under St. 43 Eliz. c. 4, if not at common law, whether it transacts its business here or elsewhere. Ibid.

3. A testator, after bequeathing to his wife a portion of his property, proceeded to request that one A., who was not a legatee, might provide for her a chaise or other suitable conveyance, and attend her whenever and wherever she might wish to go, for a suitable compensation, if she should desire it. Held, this was too vague and indefinite for a legacy to the wife. Whipple v. Adams, 1 Met. 444.

4. A., owning a house in S., with a yard and garden, and also several lots adjacent thereto, with buildings on them held by tenants, devised "unto M. my house in S., now occupied by me." Held,. this devise passed none of the property occupied by tenants.— Saltonstall v. Brown, 3 Met. 423.

5. Devise of "a beach for drift-wood and timber," the testator owning also the adjoining upland. Held, this passed the soil above ordinary high-water mark, up to the line to which sea-weed and drift-wood are usually floated in ordinary seasons by the highest winter floods, but not so as to include land occasionally overflowed in extraordinary inundations. Brown v. Lakeman, xvii.

444.

6. After various bequests of furniture and other chattels, a will proceeded to "give and bequeath to B. all the residue of my furniture and estate, whatever and wherever it may be." No other property was described in the will but personal chattels, nor were there there any words showing an intention to dispose of the testatrix's whole property. There were also some articles of furniture and other personal property, not specifically disposed of. Held, the real estate did not pass. Bullard v. Goffe, xx. 252.

7. A testator, at the time of making his will, before the Revised Statutes took effect, held land in mortgage. He devised all his real estate, and afterwards foreclosed the mortgage. Held, the mortgaged land did not pass.— Brigham v. Winchester, 1 Met. 390.

8. Devise to the testator's wife of "the Haynes place, with the Pierce lot, meaning to include all my real estate that lies west

but under protest that the notice was insufficient. Held, the deposition was admissible. — Vinal v. Burrill, xvi. 401.

24. By a rule of court, "all depositions," taken under a commission, "shall be opened and filed with the clerk." Such a deposition was sent to the attorney of the party on whose application it was taken in an envelope, which the attorney broke open, but, as appeared by his affidavit, not knowing what it contained. Held, the Court might admit the deposition in evidence. — Burrall v. Andrews, xvi. 551.

Descent.

By St. 1805, c. 90, when a person shall die seised of land, not having lawfully devised the same, it shall descend, if there be no issue nor father, in equal shares to the mother, if any, and brothers and sisters; provided, that when any child shall die under age, not having been married, his share of the inheritance that came from his father shall descend in equal shares to his father's other children then living, and to the issue of any such other children who shall have died, by right of representation. Held, this proviso does not apply to land devised to the intestate by his father; and, therefore, a share of such land descended to his mother. v. Cutler, xvi. 491.

Nash

Devise and Legacy.

A. In what form, and to whom, a devise, &c., may be made, and what passes thereby. General and spe

cific legacies.

B. Estate created by a devise.

C. Conditional and contingent devises.

D. Devises in trust.

E. Residuary devises.

F. Appropriation of, and charges upon property devised,

for payment of debts, &c.

G. Revocation and avoiding of devises.

H. Construction of devises.

I. Codicils, and republication of devises.

A. In what form, and to whom a devise, &c., may be made, and what passes thereby. General and specific legacies.

1. A bequest to a foreign corporation is valid in Massachusetts. - Burbank v. Whitney, xxiv. 146.

2. A bequest for charitable uses to an unincorporated society may be enforced under St. 43 Eliz. c. 4, if not at common law, whether it transacts its business here or elsewhere.. Ibid.

3. A testator, after bequeathing to his wife a portion of his property, proceeded to request that one A., who was not a legatee, might provide for her a chaise or other suitable conveyance, and attend her whenever and wherever she might wish to go, for a suitable compensation, if she should desire it. Held, this was too vague and indefinite for a legacy to the wife. Whipple v. Adams, 1 Met. 444.

4. A., owning a house in S., with a yard and garden, and also several lots adjacent thereto, with buildings on them held by tenants, devised "unto M. my house in S., now occupied by me." Held,. this devise passed none of the property occupied by tenants.— Saltonstall v. Brown, 3 Met. 423.

5. Devise of "a beach for drift-wood and timber," the testator owning also the adjoining upland. Held, this passed the soil above ordinary high-water mark, up to the line to which sea-weed and drift-wood are usually floated in ordinary seasons by the highest winter floods, but not so as to include land occasionally overflowed in extraordinary inundations. Brown v. Lakeman, xvii.

444.

6. After various bequests of furniture and other chattels, a will proceeded to "give and bequeath to B. all the residue of my furniture and estate, whatever and wherever it may be." No other property was described in the will but personal chattels, nor were there there any words showing an intention to dispose of the testatrix's whole property. There were also some articles of furniture and other personal property, not specifically disposed of. Held, the real estate did not pass. Bullard v. Goffe, xx. 252.

7. A testator, at the time of making his will, before the Revised Statutes took effect, held land in mortgage. He devised all his real estate, and afterwards foreclosed the mortgage. Held, the mortgaged land did not pass.- Brigham v. Winchester, 1

Met. 390.

8. Devise to the testator's wife of "the Haynes place, with the Pierce lot, meaning to include all my real estate that lies west

the road.

of the Shirley road, except what belongs to the Bennet place." The Bennet place and the Haynes place extended both sides of The testator owned a lot called the Page lot, the easterly side of which adjoined the westerly part of the Bennet place; but, after he purchased the Bennet place, he removed the fence between that place and the Page lot, and occupied both in common fifteen years, next before his death. Held, the Page lot did not pass. Harris v. Harris, 1 Met. 400.

9. If the plain intention of the testator so require, promissory notes, and other securities for the payment of money, will pass by a bequest of money. --Morton v. Perry, 1 Met. 446.

10. A testator, after reciting that he had sold his real estate, and paid to his heirs, in cash, the largest part of their portions, and that he was making his will," dividing the residue," gave legacies to his wife and two of his heirs, in full of their portions. He then bequeathed to his three other heirs, all the money which should be left at his decease. At the date of the will, nearly all his property consisted of notes and money on hand. The amount of money then on hand, could not be ascertained, but he usually had not more than $20 or $ 30. At his decease, he had notes to the amount of over $2300, and only $31 in money. Held, the notes passed, as money. — Ibid.

11. A bequest of in-door movables will not include promissory notes. Penniman v. French, xvii. 404.

12. A testator gave to his wife a house and lot of land; also "the whole of my stock in the H. bank, amounting to $6000, and, in case I should sell or dispose of the bank stock aforesaid, I give to her $ 6000 in cash, provided," &c.; also a farm, "to have and to hold the same to her, viz. the first-described house and lot of land, together with the bank stock, or $ 6000 in cash, in her own right forever, provided, &c., otherwise, it is to go to my heirs at law; and the farm, during her natural life; as to the rest of my estate, I give (the same) to the use of my wife during her natural life, and, after her decease, to my heirs at law forever." At the making of the will, the testator owned sixty shares of the bank stock, amounting to $6000, and, at his death, ninety-six shares. Held, the bequest of the stock was a specific legacy of the sixty shares. Foote, &c., xxii. 299.

13. A testator gave to his wife two cows from his stock of cattle, to the oldest of his two sons, "the remainder of his stock of cattle except one pair of yearling steers," and to the other son one pair of yearling steers." At the making of the will, the testator had but one pair of yearling steers, and he had reason to expect a speedy termination of his life, and actually died while the steers continued to be yearlings. Held, the bequest of the steers was a specific legacy. - Stickney v. Davis, xvi. 19.

B. Estate created by a devise.

1. A devise of "all my real estate" Godfrey v. Humphrey, xviii. 537.

passes a fee simple.

2. Devise" to my daughter M. her heirs and assigns, my lower farm, &c.; also one mile in length of my beach for driftwood and timber lying between the other parts of said beach, hereinafter given to my daughter E. To my daughter E., her heirs and assigns, that part of my farm, called, &c. ; and half a mile of the lower end of the beach, to be measured at high-water mark, for drift-wood and timber of all sorts, and all the remainder of my beach, with a privilege of digging ten barrels of clams ly, at the southerly end of my farm." Held, E. took a fee in the one half mile of beach, measuring from its lower end, as it was at the testator's death, and not shifting with the variations of the beach from the washings of the sea. Brown v. Lakeman, xv. 151.

year

3. Devise to the testator's daughter A. of the southerly portion of his farm, and to his daughter B., her heirs and assigns, of "that part of my farm called C. H., bounded, &c., with a privilege of digging ten barrels of clams yearly at the southerly end of my farm." Held, B. acquired an estate in fee in the privilege above named, as well as the land, and therefore it was assignable and not merely personal. Lakeman v. Butler, xvii. 436.

4. Devise: "I give to my daughter M. and her children, one half of my house and land &c. Item, I give to my daughter J. and her children the other half. But if either of my aforesaid daughters should die and leave no children, my will is, that my surviving daughters and their children should enjoy their deceased sister's part.' M. was unmarried at the making of the will. J. was then married, but it did not appear whether she ever had any child. Held, J. took an estate tail. — Nightingale v. Burrell,

xv. 104.

5. Devise to the testator's wife, of "the use and benefit of all my estate, real, and personal, and should the income prove insufficient for her comfortable support, she to dispose of so much thereof as shall be necessary for that purpose; and, at her decease, I order the remainder to be equally divided to and among my children." The wife was appointed executrix. Held, this provision was not in nature of a legacy, but gave the wife a lifeestate, with a naked power to sell, in case the income should not support her; that she must execute such power in person, not as executrix, and it did not pass to the administrator cum testa. annex., upon her renouncing the office; and that the Probate Court could not legally license such administrator, after her death, to sell the