LEONARD, Judge,,
delivered the opinion of the court.
Mr. Butler, in a very able note to Coke’s First Institutes, (191, a,y after specifically pointing out the difference between the Roman and the feudal law, upon the subject of succession, to the estates of deceased persons, thus forcibly sums up the the contrast: “ By the Roman law, the heir was a person appointed indiscriminately by the law or the deceased to represent him, and, in consequence of that representation, was entitled to his property, and bound by his obligations. In the feudal law, the heir was a person of the blood of the ancestor, appointed by the original contract to the succession, and, in consequence of that succession, was supposed, more by the general [133]*133notions of mankind than by the notions of the feudal polity, to represent the ancestor. By the Roman law, the heir succeeded to the property of the ancestor in consequence of this civil representation of him, and supposed continuation of his personal estate. In the feudal law, he acquired a national representation to the ancestor, in consequence of the feudal succession. In the Roman law, real and personal property was equally the subject of inheritance. In the feudal law, inheritance was confined to real property. The Roman heir claims as such all from the person last possessed, and nothing from the original donor. The feudal heir claims as such all from the donor, and nothing from the person last possessed.55 The power of an owner to appoint a successor to his property, both real and personal, after his death, which seems to be nothing more than one of the natural rights of property, prevailed to its full extent among the Saxons of England. When, however, upon the establishment of the Normans, the feudal system became part of the law of England, so that tenants in fee could not alien without the consent of the lord, the power of disposing by will, as well as every other mode of aliening land, generally ceased. And, although the feudal restraint upon alienation could not but gradually yield, as an unnatural limitation upon property, and accordingly many of the restraints were removed before Glanville wrote, yet the power of disposing by will was not allowed for a long time afterwards, partly from the fear lest persons should be imposed upon in their last extremity, and partly for the want of that notoriety which the common law required in all transfers of real property. During the suspension of the direct power, which continued from Henry II to the latter end of the reign of Henry VIH, it was indirectly but substantially acquired, and exercised by means of uses. This indirect practice, however, of devising lands, was at length checked by the statute of the 27th Henry VIII, which, transferring the legal estate to the use, extinguished, for a time, the separate equitable ownership, and with it the incidental power of devising. The consequence was, that lands [134]*134again became generally unalienable, except by a conveyance, to take effect in the lifetime of the proprietor ; but the legislature found it necessary, within a few years afterwards, to allow of testamentary dispositions of land, and for that purpose the statute of wills was passed in 31 Henry VIII, and amended in the 34 of the same king (1 Powell on Devises, ch. 1; Cruise on Real Property, tit. 38, ch. 1).
While the power of disposing of lands by will was exercised by means of uses, the will being considered the mere appointment of a use, it was holden that it could only operate on lands of which the party was possessed at the time, and could not affect any lands subsequently acquired; and the courts accordingly adopted the same narrow principle when they came to put a construction on the statute of wills ; and, therefore, although the idea of a real devise was, as Lord Mansfield remarked, (Cowper, 303,) derived from a Roman will, which was the appointment of an heir to succeed to the property and to discharge the obligations of the ancestor, including his testamentary donations, yet it was treated in the English law not like an English will of personal property, when the executor corresponds with the instituted heir of the Roman law, but as a particular conveyance of the lands embraced in it, and was subjected, in the particular now under consideration, to the rules applicable to such conveyances, instead of being treated as a testamentary disposition to take effect after the death of the disposer. It accordingly became a settled rule in the construction of the English statute of wills, that, if a testator devised all the real estate of which he should be seized at the time of his death, and after the making of the will he purchased lands in fee, such after acquired property, whether it was conveyed to the testator or to a trustee for him, did not pass by the will, but descended, as to the legal inheritance in the former case, and as to the equitable in the latter, to the testator’s heirs at law (1 Jarman on Wills, 85; Booker v. Cooke, 1 Salk. 237; S. C., 3 Bro. P. Cases); and the reason of this was, not on account of the intent on the part of the testator, but [135]*135because be bad no legal power to dispose by will of land wbicb be did not own at tbe time ; and tbe reason given for this construction was not merely that a limited testamentary power was conferred by tbe very words of tbe act, but because such was tbe legal consequence, in the absence of any express provision to the contrary, of considering a devise, not in tbe nature of a will, but of a particular conveyance. Under tbe old law, therefore, when a testator made a general gift of his real and personal estate, be was considered as meaning to dispose of these respective portions of property to tbe full extent of bis testamentary power, and it accordingly took effect as a gift of such real estate as belonged to him at'tbe time of tbe execution of tbe will, and as to tbe personalty as a disposition of whatever be should possess at tbe period of bis decease; and this construction has prevailed in the United States, wherever the British statute of wills has been adopted, either by express enactment, or as a part of tbe general system of law.
Lord Mansfield once remarked, that common sense would never teach a man tbe difference between tbe testamentary gift of a horse and a house, and chat, originally, tbe construction might as well have been otherwise, but that it was then too well settled to be disturbed. Indeed, experience has at length taught tbe British nation that it had better have been settled otherwise from tbe beginning, as tbe construction given has been found to defeat tbe real intention of testators, and accordingly they have remedied tbe evil in 1 Vic. ch. 26, by providing that testators may dispose of all tbe real and personal estate to wbicb they may be entitled at the time of their death, and 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 bad been executed immediately before tbe death of tbe testator, unless a contrary intention shall appear by the will; and tbe result is, that tbe distinction in an English will between real and personal property, that was not obvious to common sense in the days of Lord Mansfield, is now abolished, and an English devise of land operates now as a will of personal pro[136]*136perty did before the passage of the late act, and passes whatever real estate the testator may possess at the time of his death, unless a contrary intent appear.
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LEONARD, Judge,,
delivered the opinion of the court.
Mr. Butler, in a very able note to Coke’s First Institutes, (191, a,y after specifically pointing out the difference between the Roman and the feudal law, upon the subject of succession, to the estates of deceased persons, thus forcibly sums up the the contrast: “ By the Roman law, the heir was a person appointed indiscriminately by the law or the deceased to represent him, and, in consequence of that representation, was entitled to his property, and bound by his obligations. In the feudal law, the heir was a person of the blood of the ancestor, appointed by the original contract to the succession, and, in consequence of that succession, was supposed, more by the general [133]*133notions of mankind than by the notions of the feudal polity, to represent the ancestor. By the Roman law, the heir succeeded to the property of the ancestor in consequence of this civil representation of him, and supposed continuation of his personal estate. In the feudal law, he acquired a national representation to the ancestor, in consequence of the feudal succession. In the Roman law, real and personal property was equally the subject of inheritance. In the feudal law, inheritance was confined to real property. The Roman heir claims as such all from the person last possessed, and nothing from the original donor. The feudal heir claims as such all from the donor, and nothing from the person last possessed.55 The power of an owner to appoint a successor to his property, both real and personal, after his death, which seems to be nothing more than one of the natural rights of property, prevailed to its full extent among the Saxons of England. When, however, upon the establishment of the Normans, the feudal system became part of the law of England, so that tenants in fee could not alien without the consent of the lord, the power of disposing by will, as well as every other mode of aliening land, generally ceased. And, although the feudal restraint upon alienation could not but gradually yield, as an unnatural limitation upon property, and accordingly many of the restraints were removed before Glanville wrote, yet the power of disposing by will was not allowed for a long time afterwards, partly from the fear lest persons should be imposed upon in their last extremity, and partly for the want of that notoriety which the common law required in all transfers of real property. During the suspension of the direct power, which continued from Henry II to the latter end of the reign of Henry VIH, it was indirectly but substantially acquired, and exercised by means of uses. This indirect practice, however, of devising lands, was at length checked by the statute of the 27th Henry VIII, which, transferring the legal estate to the use, extinguished, for a time, the separate equitable ownership, and with it the incidental power of devising. The consequence was, that lands [134]*134again became generally unalienable, except by a conveyance, to take effect in the lifetime of the proprietor ; but the legislature found it necessary, within a few years afterwards, to allow of testamentary dispositions of land, and for that purpose the statute of wills was passed in 31 Henry VIII, and amended in the 34 of the same king (1 Powell on Devises, ch. 1; Cruise on Real Property, tit. 38, ch. 1).
While the power of disposing of lands by will was exercised by means of uses, the will being considered the mere appointment of a use, it was holden that it could only operate on lands of which the party was possessed at the time, and could not affect any lands subsequently acquired; and the courts accordingly adopted the same narrow principle when they came to put a construction on the statute of wills ; and, therefore, although the idea of a real devise was, as Lord Mansfield remarked, (Cowper, 303,) derived from a Roman will, which was the appointment of an heir to succeed to the property and to discharge the obligations of the ancestor, including his testamentary donations, yet it was treated in the English law not like an English will of personal property, when the executor corresponds with the instituted heir of the Roman law, but as a particular conveyance of the lands embraced in it, and was subjected, in the particular now under consideration, to the rules applicable to such conveyances, instead of being treated as a testamentary disposition to take effect after the death of the disposer. It accordingly became a settled rule in the construction of the English statute of wills, that, if a testator devised all the real estate of which he should be seized at the time of his death, and after the making of the will he purchased lands in fee, such after acquired property, whether it was conveyed to the testator or to a trustee for him, did not pass by the will, but descended, as to the legal inheritance in the former case, and as to the equitable in the latter, to the testator’s heirs at law (1 Jarman on Wills, 85; Booker v. Cooke, 1 Salk. 237; S. C., 3 Bro. P. Cases); and the reason of this was, not on account of the intent on the part of the testator, but [135]*135because be bad no legal power to dispose by will of land wbicb be did not own at tbe time ; and tbe reason given for this construction was not merely that a limited testamentary power was conferred by tbe very words of tbe act, but because such was tbe legal consequence, in the absence of any express provision to the contrary, of considering a devise, not in tbe nature of a will, but of a particular conveyance. Under tbe old law, therefore, when a testator made a general gift of his real and personal estate, be was considered as meaning to dispose of these respective portions of property to tbe full extent of bis testamentary power, and it accordingly took effect as a gift of such real estate as belonged to him at'tbe time of tbe execution of tbe will, and as to tbe personalty as a disposition of whatever be should possess at tbe period of bis decease; and this construction has prevailed in the United States, wherever the British statute of wills has been adopted, either by express enactment, or as a part of tbe general system of law.
Lord Mansfield once remarked, that common sense would never teach a man tbe difference between tbe testamentary gift of a horse and a house, and chat, originally, tbe construction might as well have been otherwise, but that it was then too well settled to be disturbed. Indeed, experience has at length taught tbe British nation that it had better have been settled otherwise from tbe beginning, as tbe construction given has been found to defeat tbe real intention of testators, and accordingly they have remedied tbe evil in 1 Vic. ch. 26, by providing that testators may dispose of all tbe real and personal estate to wbicb they may be entitled at the time of their death, and 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 bad been executed immediately before tbe death of tbe testator, unless a contrary intention shall appear by the will; and tbe result is, that tbe distinction in an English will between real and personal property, that was not obvious to common sense in the days of Lord Mansfield, is now abolished, and an English devise of land operates now as a will of personal pro[136]*136perty did before the passage of the late act, and passes whatever real estate the testator may possess at the time of his death, unless a contrary intent appear. It is also to be remarked, that the same experience that produced the British amendment act upon this subject, has resulted substantially in the same enactments in the several states where the English rule of interpretation had been introduced and prevailed. Accordingly, in Massachusetts, at their revision in 1835, (Rev. Stat. 417, sec. 3,) it was provided, that after acquired real property should pass by a will, in like manner as if it were possessed at the time of the making of the will, if such appeared to be the intent of the testator ; and similar enactments have been adopted in Maine, New Hampshire, New York, Pennsylvania and other states. (Winchester v. Foster, 3 Cush. 366.)
The Virginia statute of 1785 expressly extends the testamentary power, to. the real property which the testator may have at his death, and was followed in this particular in Kentucky and Illinois; and the result of the decisions in these states is, that after acquired lands pass, when such appears to be the intention of the- testator, although in Virginia they retain the rule adopted in England, that the words of the testator, in reference to his real property, are to be understood as referring to the time of the making of the will, unless a different intent appear. (Turpin v. Turpin, 1 Wash. Virg. Rep. 75; Harmon v. Allen, 3 Call, 297; Warner’s executors v. Swearingen and wife, 6 Dana, 200; Wells v. Watson, 4 Scam. 66.) The legislation in our own state has been somewhat peculiar. The first act upon the subject, passed in 1807, was copied from the Virginia statute of 1785, and confers, in one section, upon persons of full age, testamentary power over all real estate then owned, or which the testator may have at his death; and, in a subsequent section, confers testamentary power over the personal estate, in general terms, upon persons who are over eighteen years of age. The law so continued, without any change, until the revision of 1835, when, under the plan of revising [137]*137then adopted, of dropping what were deemed superfluous words, the phraseology was changed to what it now is, and the testamentary power, over both real and personal property, was incorporated into one section, and conferred in the same general words ; and the same phraseology was continued in the revision of 1845, and we presume also in the last revision. The language now used, however, is not the language of the old English statute — “ that any person having an estate may dispose of it at his pleasure,” &c.; but that every person may, “ by last will, devise all his estate, real, personal and mixed,” &c.
No doubt is entertained but that, under the act of 1807, after acquired real property would pass by will, whenever such appeared to be the intention of the testator. The reason why it did not pass under the English statute, was the want of testamentary power; and that power being expressly given by our original act, the objection was out of the way; and such seems to have been the construction given to the statute in Virginia, Kentucky and Illinois.
But the question is as to the construction of the present law. Must we hold that the act now in force does not confer testamentary power over after acquired land, and, on account of the change in the phraseology of the statute, which was made in 1835, go back to the construction put upon the original statute ? We think not. The language now used does not require such a construction at our hands. It is different from the language of the English statute of wills. The testamentary power is given here in general language ; it embraces both real and personal estate, and is a power to make a testamentary disposition of all the testator’s property, without any distinction between real and personal property, and not a mere power of particular disposition. It is more in the nature of a Roman will than an English devise of real property. But, however this may be, when we consider the' plan of revising that was adopted — the impolicy of creating changes in laws off daily practical importance — the little probability, when all around us were abandoning the old, narrow construction of the testamen[138]*138tary power, that our legislature should adopt it, for the first time, by an express provision for that purpose — and when we consider, too, that neither the community nor the profession have generally, as we believe, been aware of the supposed change — and that men have generally acted as if the original act of 1807 were still in force, and that estates have been administered and distributed accordingly, — we do not think that we would be warranted in declaring that the legislature, by the change in the language, intended to effect the substantial change in the meaning of the law that is supposed, and we shall accordingly give to the act, as it now stands, as literal a construction in favor of the testamentary power as we should have felt constrained to have given to the original act.
In this view of the subject, the question for our consideration is, what was the intention of the testator, fairly inferable from the will ? Did he intend to die testate as to all the property he should leave, or did he mean to embrace within his will such land as he then owned, together with all the personal property he might have at his death, and leave the real property he should subsequently acquire to go according to law ? No plain man, after reading the will, would hesitate a moment in answering this question; but it is said that we are bound by a legal rule of construction, which constrains us to consider a will in reference to the real property, when a contrary intent does not appear on the face of it, as referring to the time it was made, although, as to personal property, it speaks from the death. We all know that this is purely an artificial rule, and that, in a majority of the cases to which it is applied, it defeats the intention of the testator. Men know that their wills are not to take effect until they die, and they make them for the purpose of fixing the distribution of their property from that moment, and it was under this view of the subject that in the statute of 1 Vic. ch. 26, as well as in some recent American statutes, it is declared that the will shall be considered as speaking from the moment of the death of the testator, unless a contrary intention appear. But admitting, for the purpose [139]*139of the present case, that this rule of construction, as to the time to which the will refers, is applicable to' our own statute, we think there is enough in this will to show that the testator’s mind was directed to the time of his death, and that the general disposition which he made of his property, had reference to that period and not to the date of the will. After disposing of a watch to one, and a lot in a burial-ground to another, the will proceeds in these words : “ I hereby direct my executors to sell the whole oj my real, personal and mixed property, on a credit of twelve months, the proceeds of which, together with what cash I may die possessed of, after all my just debts have been paid, and the sum of one hundred dollars to such of my legitimate nephews as at my death may be found named James, I wish disposed of in the following manner, viz: to be sent to my executors in Ireland,” to be there invested for the use of all his brothers and sisters and their children. The testator contemplated a sale of his property immediately after his death, and in describing the property to be sold, evidently refers to all that should then belong to his estate, whether real or personal. In Brown v. Soheer, (1 Cush. 133,) where the construction of the will was under the Massachusetts act, to which we have referred, according to which, in order to pass after acquired lands, it was necessary that the intention should “ clearly and manifestly appear,” the court remarked : “Whenever there is a devise of the whole estate or of all the residue of the estate of a testator, there being both real and personal estate upon which the will may operate, an intention to give after acquired real property may perhaps be justly inferred, unless there be some indication of a different intention to be found in the will.” In the present case, it is plain enough that the testator intended to die testate as to the whole of his property, no matter of what kind it might be. He intended it all for his brothers and sisters and their children, with the trifling exceptions that are expressed, and we should defeat and not execute his will, if we were to make a distinction, that he never thought of, and pronounce that the real property, acquired af[140]*140ter tbe date of tbe will, was not embraced in it, but was left by bim to be distributed according to law. Tbe judgment must therefore be reversed, and tbe cause remanded.