cated copy of the will and probate will be admitted to record in any other county. I have said that a will is of. no effect until probate has been made; but after probate it relates back, and takes effect from the death of the testator.

§ 168. Other Incidents. (a) It is universally agreed that wills are to be construed liberally. The great object is to ascertain the intention of the testator, and this always governs the construction; although for want of time, advice, or learning, he may have omitted. the proper legal words. (b) On this principle, the law dispenses with words in wills, which would be absolutely necessary in any other instruments. We have seen an instance of this when speaking of the necessity of the word "heirs" in a deed, in order to create a fee, which word is not necessary in a will. We have also seen that the rule in Shelley's case is abrogated with respect to wills, and the intention of the testator carried literally into effect, by limiting the estate as he limited it. Again, as to what are called lapsed legacies, our statute provides that if a devise be made to a person without naming issue, and such person die before the testator, his issue shall take, unless the contrary be expressed in the will. Another maxim of construction is that where there are re

(a) Where the will says, "I give one third of all my land to A.," he takes in feesimple. Smith v. Berry, 8 Ohio, 365. But though the first words might be sufficient to pass a fee, any subsequent provision, showing a contrary intention, will limit the operation of the general words. Stableton v. Ellison, 21 Ohio State, 527. Where the will directs land to be converted into money, and the interest of one-third to be secured to the wife, and the rest to heirs, and there are no heirs, the wife takes the whole. Ferguson v. Stewart, 14 Ohio, 140. Where the will gives all to the wife, but directs the executor to lease, &c., and pay proceeds to the wife, the legal title is in the executor. Boyd v. Talbert, 12 Ohio, 212. Where a devise is to three children, "providing they live to legal age," they take a present vested interest, subject only to be divested by dying before majority. Foster v. Wick, 17 Ohio, 250. Where property is devised for specific purposes, it reverts when those purposes have been entirely accomplished. Bigelow v. Barr, 4 Ohio, 358; Williams v. Veach, 17 id. 171. And see Decker v. Decker, 3 Ohio, 157; Davison v. Wolf, 9 id. 73. As to the construction of a devise to the heirs of a person in existence, see Williamson v. Williamson, 18 B. Monr. 329.

(b) Worman v. Teagarden, 2 Ohio State, 380; Collier v. Collier, 3 id. 369; Thompson v. Thompson, 4 id. 333. The testator may charge his personal estate with the payment of incumbrances on his real estate, either by express words or by provisions inconsistent with any other intention. Id. The intention of the testator to charge pecuniary legacies on real estate, so as to make the charge a lien upon it, may be declared in express words or derived by implication from the provisions of the will. Clyde v. Simpson, 4 id. 445. The word "heirs" may be construed to mean "legatees," when that is the manifest intention of the testator. Collier v. Collier, 3 Ohio State, 369. Where there is a devise in fee to A., but if he "die without heirs," or " without children," or "without issue," then to B. in fee, the words "if he die without issue," or words of similar import, are to be interpreted according to their popular and natural meaning, and as referring to the time of the death of A., unless the contrary intention is plainly expressed in the will, or is necessary to carry out its undoubted purposes; and if A. have no children or issue living at the time he dies, B. takes under such devise. Parish v. Ferris, 6 Ohio State, 563; Stevenson v. Evans, 10 Ohio State, 307; Niles v. Gray, 12 Ohio State, 322. But see Creswell's Appeal, 41 Penn. State, 288; Condict v. King, 2 Beasley, 375. Words of survivorship are to be referred to the period of payment or distribution of the subject-matter of the gift, unless a contrary intention is evidenced by the language of the will. Sinton v. Boyd, 19 Ohio State, 30. A condition that any legatee trying to break a will shall forfeit his legacy is valid, and a legacy thus forfeited will pass to general residuary legatees. Bradford v. Bradford, 19 Ohio State, 546.

pugnant clauses in a will, that which is last in order shall prevail, though the contrary holds in a deed. Our court has repeatedly sanctioned the doctrine that the intention of the testator, whenever it can be ascertained, is the rule of construction. For example, although manufacturing stock is personal property, and would pass under a general bequest thereof, yet where it appeared that the testator intended to discriminate between that and other personalty, the will was so construed. Also, where property was devised to educate a child, and the child soon after died, yet as it appeared that the testator intended that the devisee should have a life-estate, the will was so construed; although the general principle is, that a grant is void when its purpose is fulfilled. There are very few powers, in relation to the management of property, which the testator cannot confer either on the executors or trustees. If a vacancy occur in the office of executor or trnstee, by reason of any contingency not provided for in the will, the court has power to fill such vacancy; and where an administrator has been appointed on the supposition that there was no will, and the will has been afterwards discovered and proved, the power of the administrator is thereby superseded, and the executor takes his place. We have seen that the testator cannot in any way limit his property further than to such persons as are in being at the time, and their immediate issue. But with this restriction, the testator may settle his property in almost any use or trust he pleases, in defiance of all the ancient technicalities. In relation to his children, the testator has power by his will to appoint guardians, until they arrive at majority; and guardians so appointed have the same power over the persons and property of such children, unless modified by the will, as other guardians. With respect to creditors, we have already seen that no disposition of property by will can defeat their claims. Even the express discharge of a debt due to the testator will not be valid as against creditors. Nor does the appointment of a debtor to be executor operate as a discharge of the debt, as was formerly held.

Foreign Wills. (a) The general doctrine is, that wills relating to land must be executed according to the prescribed formalities of the State where the land lies; but our statute has made an exception in favor of wills made in any of the States or territories of the Union; which, if made and proved according to the law of the place where made, have the same validity as if made here; and authenticated copies, when placed on record in the county where the property lies, are as effectual as domestic wills. And the same is provided with respect to wills executed and proved in a foreign country; except that notice of the application to have

(a) A will made in another State must be recorded here, before title to land situated here vests in the devisee. Wilson v. Tappan, 6 Ohio, 172; Bailey v. Bailey, 8 id. 239. But the title dates back to the death of the testator, and not merely to the date of registration here. Hall v. Ashby, 9 Ohio, 96.

such foreign wills admitted to record, must be given through the newspapers, in order that all persons interested may have an opportunity to make resistance.

LECTURE XXXI.

TITLE BY PURCHASE.

§ 169. Forms of Conveyance. (a) We come now to the last method of acquiring title; namely, by purchase. Under this head, I shall discuss the subject of conveyancing at some length, on account of its great practical importance. In the course of our inquiries, you will have abundant reason to observe how much this branch of law has been already simplified; and how much yet remains to be done. In England the law of conveyancing is so technical and abstruse, and the forms are so voluminous, and complicated, that this is made a distinct and important branch of the legal profession; and a long apprenticeship is required to make an expert conveyancer. In all enlightened nations a fundamental distinction. has been made between realty and personalty in regard to the modes of transfer. Personal property, on account of its movable and transitory nature, has generally been transferable by mere delivery, without any form or ceremony whatever. This was expressly declared to be the law of this territory by the ordinance of 1787, and has ever since continued so to be. But from the earliest periods of the English law, something more than mere delivery has been necessary to transfer real estate. From its fixed and permanent character, no transfer can be evidenced by change of place; and as it is in every point of view important that the owner should be known, a variety of forms and ceremonies have been resorted to in order to insure notoriety. For the purpose of placing this matter in a clear light, I shall briefly refer to the three principal common-law conveyances, namely, by feoffment, by fine, and by common recovery, though neither has ever been in use here; after which I shall describe the forms in actual use.

(a) See 2 Black. Com. ch. 20; 4 Kent, Com. lec. 67; the various works upon Conveyancing, by Curtis, Oliver, Barton, Watkins, and Wood; Roberts on Fraudulent Conveyances; Sugden on Vendors. In Lindsley v. Coats, 1 Ohio, 243, the court say, "In no instance have the ancient common-law modes of conveyance, as such, been adopted in this State; and long anterior to the settlement of this country, they had given way to the comparatively modern mode of assurance by deeds of lease and release, bargain and sale, &c. From the first organization of the government to the present time, it has been the policy of our laws that the title to real estate should be matter of record, subject to the inspection of every individual interested." And, accordingly, in this case, a parol exchange of lands, with possession under it, was held void here, though good at common law. And see Starr v. Starr, 1 Ohio, 321; Bentley v. Deforest, 2 id. 221; Hall v. Ashby, 9 id. 96.

Feoffment. (a) Feoffment was the ancient mode of conveying any corporeal hereditament. It was commenced by an instrument in writing, signed, sealed, and delivered; in other words, a deed. Then followed the ceremony, so often referred to before, called livery of seisin, without which the deed was of no effect. This ceremony consisted in a corporeal transfer or delivery of the land to the purchaser. The parties went to the land, or in sight of it, and there, in the presence of as many witnesses as could be had, the feoffer declared the contents of the deed, and then made a symbolical delivery of the land therein described to the feoffee, by actually delivering a twig or turf, or something else thereto belonging. This ceremony completed the conveyance. Blackstone says of this conveyance, that it was "the most ancient, the most solemn and public, and, therefore, the most easily remembered and proved." The notoriety depended upon the number of persons who witnessed the livery of seisin. The corresponding conveyance of an incorporeal hereditament was termed a grant, which differed in nothing from a feoffment, but that there was no livery of seisin, it being impossible from the intangible nature of the subject.

Fine. (b) This is the name given to a conveyance by record of court. It proceeds from beginning to end upon fictions. The person who is to be the grantee sues the grantor on a pretended contract to convey the land to him. The grantor thereupon comes into court, acknowledges the right of the grantee, and asks leave to compromise the suit. This leave is granted upon payment of a fine to the king; whence comes the name of the conveyance. record is then made of all the proceedings, of which the parties take indented copies; and a proclamation thereof completes the conveyance. This conveyance is absolutely conclusive upon parties and privies, from the moment, and upon all other persons after five years, without claim. Here, then, the publicity of proceedings in court is substituted for livery of seisin.

A

Common Recovery. (c) This, like a fine, is a conveyance by record of court. It consists, like that, of a series of fictions, but is much more complicated. Here the person who is to be the grantee sues for the land, alleging that the grantor is in possession without any title. The grantor thereupon prays that some person, who, as he alleges, warranted the title to him, may be called in to defend in his place, disclaiming all title in himself. This alleged warrantor makes default; whereupon a twofold judgment is rendered first, that the plaintiff or intended grantee recover the premises; and, secondly, that the alleged warrantor indemnify the defendant, or intended grantor, for the loss of his land. This conveyance was devised for the express purpose of cutting off estates tail, and all remainders and reversions expectant thereon: and it was permitted to have this searching effect, on account of the two (a) See 2 Black. Com. 310. (b) Id. 348.

(c) Id. 387.

fictions involved in the judgment; namely, a pretended recompense to the defendant by the fictitious warrantor.

Bargain and Sale. (a) The ancient forms of conveyance, just described, may have prevailed in some parts of the Union; but they never were adopted in this State. The ordinance of 1787, which was the first act of legislation over the territory, prescribed two other modes of conveyance; namely, by bargain and sale, and by lease and release; and no other has ever been used. Both these forms originated under the statute of uses, which we have seen, if ever in force here, has not been since 1806. The original object of both these conveyances was to avoid the necessity of livery of seisin, without resorting to the records of court. I shall begin with the conveyance by bargain and sale. It will be remembered that the effect of the statute of uses was, to annex the legal title to the use, by providing that when any person was seised of land to the use of another, the legal estate should ipso facto pass to the latter. Prior to this statute, a bargain and sale of land was held to be nothing more than a contract to convey, which, if made upon a valuable consideration, equity would enforce by decreeing a legal conveyance. This very fact, of a valuable consideration, was held to raise a trust or use in favor of the bargainee, and give jurisdiction to the court of chancery to carry it into effect. This being the existing doctrine, the effect of the statute was to change a bargain and sale into a legal conveyance. The execution of the deed for a valuable consideration raised a use in the bargainee, to which the statute, superseding the action of a court of chancery, at once transferred the legal estate. Here, then, was no troublesome ceremony of making livery of seisin, or going through the forms of a suit in court; and it is not strange that this simple mode of conveyance was at once adopted into general use. To secure, however, the notoriety which this form would otherwise. want, it was enacted in the same year, that a bargain and sale should not be held to convey a freehold, unless it were made by indenture, and enrolled within six months in one of the courts, where all persons might take cognizance of it. This enrolment was undoubtedly an improvement upon the preceding modes of securing notoriety, and is the origin of our present law for recording deeds. Such is the theory of a bargain and sale, under the statute of uses; and such is its theory with us, though we have not adopted that statute. We hold that the mere execution and delivery of the deed, without any other ceremony, completes the conveyance. We also hold, as a matter of form, that some consideration must be stated in the deed, which was not necessary in a feoffment, because without such consideration, a use could not be raised in the bargainee. Under the English law, a corporation could not convey by bargain and sale, because it could not be seised to a use; which is not the case here, because we require no

(a) See 2 Black. Com. 238; 4 Petersdorf's Abr. 5; 4 Kent, Com. 495; Lindsley v. Coats, 1 Ohio, 243; Thompson v. Gibson, 2 id. 339; Holt v. Hemphill, 3 id. 232.