The will of Isaac Moser, which gives rise to the question principally involved in this action, is dated in April, 1829; and although I can find no allegation in the pleadings as to the time when it was executed, the fair inference is that the date designates the time when it was made. The testator died in 1846. The will contains the following clause: “ I do hereby declare it to be my will and desire that all my real estate shall be sold as soon as conveniently may be, after the marriage or decease of my wife.” It also disposes of the proceeds. The lands sold by the executors were acquired by the testator after the execution of his will; and the leading question in the case is, whether it conferred upon them the requisite power to sell the subsequently acquired real estate.
It is generally agreed that the right to devise lands is, with us, purely statutory. It probably existed, to some extent, under the Anglo-Saxon government, but it was in effect abolished, in England, by the feudal system introduced into that country by William the Conqueror. The common law was modeled principally upon that system, and whatever changes were made were principally effected by statute.
The statute of wills in force in this state when the will in question was executed, authorized any person having any estate of inheritance in lands to devise the same. The power related to existing estates, and did not. extend to future acquisitions, *538The word “ having” has reference to the time when the will is made; the testator then acts; he declares his present intentions, and does all that is necessary for him to do to effectuate them. Should he become deranged immediately afterwards, and the disability continue to the time of his death, the will would nevertheless be valid. The rule of law is the same as the dictate of common sense—that the testator makes the devise when he makes his will, and not "when he draws his last breath. The rules relative to the republication and revocation of wills are based upon the assumption that they are made at the times when they are executed.
When, therefore, the testator authorized his executors to sell all his lands, he could not empower them to sell any other than those which he had at the time when he executed his will; and the inference is that he designed the power should operate upon his existing estate, and did not intend that it should go any further. „
The revised statutes of 1830, under which the executors acted, and supposed they had a right to act, provide that every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death. This conferred upon the testators the power to make their wills operative upon their future acquired real estate. But it was, as it ought to have been, wholly prospective. The word “ shall” had reference to the future. The statute had been passed when the will'in question was made, but it did not go into operation until several months afterwards. It speaks as of the time when it became effective. That is the rule of construction established by the legislature when the revised^ statutes were passed, The 10th section of the act concerning those statutes, passed on the 10th of December, 1828, declares that whenever the terms ‘-1 heretofore” or 11 hereafter” occur in any part of the revised statutes they shall be construed as having reference to the time when the statutory provision shall commence and take effect. The legislature, to preserve its consistency, must have designed that *539the rule should apply to all terms denoting the past or the future.
If the statute of Wills is to be deemed as an enactment made subsequent to the execution of the will introduced in this cause, it could not have enlarged a clause in an executed instrument, so as to make it include new subjects. That would have been so manifestly against right, that it would have exceeded the legislative power; unless, as some have contended, (and as I do not believe,) the legislature is omnipotent. It is, however, enacted expressly, in the same title with the provision which I have quoted, that it shall not affect the construction of any will made before the chapter of which it forms a part shall take effect. Under this provision; it has been decided by our court of appeals that the will of the late Gen. Bogardus, which was made before the time when the revised statutes took effect, although his death occurred after they became operative, did not pass the title to his lands purchased after the execution of his will. (Parker v. Bogardus, 1 Selden, 309.) The learned judge who delivered the opinion of the court in the case to which I refer, seems to have considered the question involved to be one of construction merely, but it strikes me that the decision might well have been based upon other and higher grounds.
In the case under consideration it must be declared that the power to sell the testator’s real estate, did not extend to the lands acquired by him after the date of his will, and that eonsa quently the sales of such lands, made by the executoraiptra^' null and void, and the heirs at law inherited such real es^WjiSe from any of the dispositions made in such will. ^
The conveyances subsequently executed by the cannot be considered an affirmance, of the power as claim?~ the executors, nor as an assent to the distribution of the ] pursuant to the directions in the will. They were made upon" the supposition that the executors had not the power, and with a view to transfer a valid title to the purchasers. It was an adoption, and not simply an affirmation, of the sale. After that, the executors held the proceeds as trustees for the heirs. Whatever the trustees have since done with the moneys, must have been *540with the consent of the cestuis que trust, and should be affirmed. For the same reason the trustees are entitled to their expenses and commissions. Should there be any dispute as to the amount, it may be referred to Judge Morse, to take an account of the same.
[Kings General Term, October 3, 1854.The surrogate’s decree did not affect the rights of the heirs to the avails of their own lands, as he had no jurisdiction over the subject matter.
The costs of the several parties must be deducted from the funds in controversy.
The part of the proceeds of the undivided real estate, belonging to the deceased son, has been appropriately paid to the surviving brothers and sisters. The two surviving sons have received their portions. The residue must be divided equally between, and paid to, the three daughters. It may be optional with the executors to collect and pay over the moneys, or, on being refunded their expenses and receiving their fees, to transfer the securities. '
It may be expressly declared that the three daughters are en- , titled to the absolute property in their respective portions, free from any claim of their respective children.
Brown, S. B. Strong, Dean and Rockwell, Justices.]