The opinion of the Court was delivered by
Gibson, C. J.-The defect in the ingenious argument of the counsel for the defendant is, that it rests on the very principle which the statute was enacted to abolish. We must forget that by the interpretation put on the British statute of wills, the words of a devisor were referable to the state of his real property at the date of the will; and we must cease to expound his meaning by his capacity to convey at that time. We must make him speak at the time of his death; and by that application of the words “ of and concerning the real estate whereof I am in anywise seized,” and, “ which I have any power to dispose of,” they are made to have regard to property had when, in contemplation of law, they were predicated. Thus, there is no discrepance between their imputed meaning and their legal effect, though there is a substantial difference betwixt the testatrix’s actual and her technical intent. She did not mean to dispose of property subsequently to be acquired; for it probably never *385entered into her heart to conceive that she wo.uld acquire any. But the actual intent at the act of disposition, or at any time afterwards, is not the criterion, where it is to be collected from any expression of it but the one presently to be noticed. Human sagacity would be incompetent to provide for it by anticipation. The legislature did not mean to give effect to it; but to make a new rule of disposition for after-purchased land, by imputing a particular intent wherever the devisor did not disclaim it; and it is notorious that there is not in one such case picked out of ten thousand, any intention on the subject. The statute determines beforehand what the devisor would have done had the conjuncture subsequently presented by the state of his property, been foreseen by him; and in that aspéct it could not have been viewed as more than an approximation to the truth. Discarding the actual intent, therefore, as immaterial, where the statutory intent is not to be discarded in obedience to , the devisor’s positive direction, we are to give effect to the natural import of the woi’ds. “ Real estate,” says the statute, “ acquired by a testator after making his will, shall pass by a general devise, unless a contrary intention be manifest on the face of the will.” Why did it not pass before'! Simply because, like any other conveyance, a will was referred to the time it was made, and the words of a general devise therefore did not operate upon what was then without existence. To avoid that conséquence, it was necessary to bring down its operation to the time of the death ; and in order to carry out the principle,' it is our business to refer the concoction of it to that period, by giving to the devisor’s words, the same effect as if they had then, for the first time, been- committed to paper. By this statutory metachronism, the words ‘ estate whereof 1 am seized’ and'‘which I have any power to dispose of,’ are made to embrace all that the testatrix had at her death; and, except as regards the parts of it specifically disposed of by herself, the power to sell is commensurate with it. Now the statutory implication is not to be repelled by an apparent want of positive intent that the estate shall pass; but only by a positive direction that it shall not. When such a direction is given, it will be found to be sufficiently explicit. It is only-where the subject did not occur to the devisor, that a doubt will be found resting on general expi’essions applicable only to particular property; and it is not perhaps too much to say that where the statute is not directly excluded,- it must dispose of the difficulty. There is no such exclusion in this instance; and the executor’s power to sell the property, for .the price of which the action i$ brought, is incontestibie.
Judgment for plaintiff