Battle v. Speight. same as a new petition. Besides, the questions between the parties can be better raised by a bill, making the administrator of Neil Henry a party, so as to make his etate, if any, directly liable for his devastavit. But as my Brothers think differently, the cause must, of course, be disposed of as they may order. PER CURIAM. Petition to be dismissed, unless the plaintiffs apply at the next Term to hear the cause remanded. DEN ON DEMISE OF JAMES L. BATTLE & AL. vs. JOHN F. SPEIGHT. A. made his will in 1837, in his own hand-writing, but unattested, and it was placed among his valuable papers. Afterwards, in 1847, being about to leave this country, he deposited this will, together with other papers, with a friend for safe keeping. Held, that this did not of itself amount to a republication of the will, and that therefore laud acquired after 1837, did not pass under it. The Act of 1844, ch. 83, making devises to operate upon such real or personal estate as the testator may own at the time of his death, does not apply to wills executed before the passage of that Act. Appeal from the Superior Court of Law of Edgecombe County, at the Spring Term, 1848, his Honor Judge CALDWELL presiding. Louis D. Wilson made his will on the 26th of May 1833, and therein devised to Eliza Cotten two lots in the Town of Tarboro', which he then owned. He also devised to John F. Speight, the chairman of the County Court of Edgecomb and his successors in office, the residue of his estate, both real and personal, for the use and Battle v. Speight. benefit of the paupers of that County, to be appropriated and managed under the superintendence of the Justices of the peace of the County. The will was in the testator's own handwriting and signed by him, and at the time deposited by him among his valuable papers. In the year 1847, being about to leave the State, he deposited with a friend, for safe keeping during his absence, his valuable papers, including his will, and he died while absent. Eliza Cotten died before the year 1847, and, between the making of the will and the year 1847, the testator purchased a tract of land. The defendant claimed both the land thus purchased and the lots devised to Eliza Cotten, under the residuary clause in the will; and they are also claimed by the lessors of the plaintiff, who are the testator's heirs at law, and have brought this suit for them. On the trial, the Court held that the premises passed under the will to the defendant; and the plaintiff suffered a non-suit and appealed. B. F. Moore, for the plaintiff. RUFFIN, C. J. If the heirs at law be not entitled, it must be by force of a republication of the will, or the operation on it of the act of 1844, ch. S3. For, nothing was better settled under the former statute of wills, than that land purchased after the making of the will did not pass by it, however general the terms of the devise might be. The reason was, that a devise is a conveyance and therefore must operate on a specific subject. For the same reason, if a devise failed by the death of a devisee before the testator, the land did not fall into the residue but went to the heir at law. For, although land may pass under a residuary clause of a will, as well as personalty, yet there is this difference in the operation of that clause on realty and personality; that it takes in every thing Battle v. Speight. of the latter kind that is not well disposed of, whereas, in respect to the former, it takes in only what is not before given away in the will-for each gift of land, whether so in terms or not, is in law specific, and one cannot be enlarged by the failure of the other, unless there be a limitation over in the event that happened. Morris v. Underdon, Willes Rep. 293. Howe v. Dartmouth, 7 ves. 137. It was one purpose of the act of 1844 to alter the law in that point. The question, then, really is, from what time this will operated. Nothing appears in the probate of the will to show, that the Court of probate undertook to determine that question; and, as far as it is stated, it was proved as a will speaking in respect of the land from its date, and not by force of a republication. In the case of Jiggetts v. Maney. 1 Murph. 258, it was held that a will of this kind, unattested and written by the testator and deposited among his valuable papers, did not operate from his death, but from its date. It was strongly argued, that, as the date was an immaterial part of an instrument, the publication was to be referred to the period at which the will became of force. But the Court thought, that the publication was to be referred to its date, and that the preservation of it by the testator among his valuable papers was not a republication of it from day to day as long as he lived, but only the recognition of it as a subsisting will, in the same manner as his keeping it would be regarded, if it had been an attested will. The same principle seems to apply with equal force to what was done in this case-if that question now be open for the decision of the Court, as we suppose it to be. We do not mean to say, if a testator deliver his holograph will of a prior date to a person, for safe keeping, in such terms as show an inten. tion,that it shall speak as a will from that time, that such acts and declarations may not amount to a publication or republication then. How that would be, we do not at Battle v. Speight. present undertake to consider, though we suppose it would amount to publication. But we conceive, that if a publication can be thus shown, there must be a plain expression of purpose, that what is then said and done should be a republication; by which we mean, that the party meant the instrument to operate as an instrument of that date, and not of that which it leave upon its face. It requires strong proof of the intention, be. cause it is in apparent conflict with the instrument itself, which he is taking the means of preserving in its original form, and which, therefore, it is to be sup posed, prima facie, at least, he meant to operate according to its form. Here the case states simply a delivery by the testator to another person of a number of valuable papers for preservation during an absence of uncertain duration in a distant country, and that among these papers was this will. But it does not seem, that a single word was said of the will in particular, or that the friend ever knew, that one of the papers was a w.ll. It was in truth nothing more than a mode of preservation of conveyances, securities, and this will in the strong box of a friend, instead of his own, and is barely a recognition of the papers as a subsisting wil!, without any reference to the time from which its subsistence was to be reckoned, but leaving it to speak for itself on that head. It is no more a republication of this, than it would have been of an attested will. No doubt a codicil would be a republication, and, if that had been executed according to the act of 1784, in either way, it would have had that effect. But that would be an act of an explicit character; though it was once much contested, whether a codicil would be a republication of a previous will. In the case here, there is nothing whatever, by which more can be collected, than that the party treated this paper as a will in 1847; but, without something more, it must be taken that he treated it, not only as then being so, but Battle v. Speight. as having been so from the time he made it. If it had been without date, it would, necessarily, be otherwise; but as it is, the Court holds, that the instrument is, as a will of lands, to be referred, as to the period from which it operates, in respect of its publication merely, to the date of it. It was further contended for the defendant, that the case is governed by the 3rd section of the Act of 1844, which enacts, that every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect, as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. The rule of construction laid down by the statute is clear enough; but still it remains to be ascertained, to what wills it is to be applied. Undoubtedly, it has no application to wills before consummated by the death of the maker. The Legislature did not mean to touch vested rights by chang ing the meaning, which the law gave to an instrument at the time it was executed and went into operation. The question is, whether it was intended to change the meaning and legal effect of a provision, from what it was, when it was made, into something else, because the party lived to the time at which the Legislature said that such provisions have a meaning different from that imported by the instrument at its inception? We conceive that it was not so intended; and that the construction there prescribed applied only to wills thereafter to be executed or published. The case of Salter v. Bryan, 4 Ired. 494, it is true, is not an authority in point, because the statute, on which the question then arose, used the words, "made after" such a day. But that only made the point the clearer, because it expressed what, upon all just rules of interpretation, would be implied without it. It is true, that in The matter of Elcock's will, 4 McCord 39, it was held that a will executed properly, according to the law existing at its execution, is not good, unless, it |