1. The principal question involved in this case is, that which relates to the power of the defendants to sell the lands, which were the subject of the contract sought to be rescinded, either under the will of their testator, or under the order of the County Court.
The order of the County Court is not very much relied oh; nor can it be, for it directs the defendants to sell the lands in accordance with the will; and there has been no proceedings under any of the statutes which permit a sale to be decreed under peculiar circumstances. We may then dismiss the order of Court from consideration; for it is very clear, that the contract is not warranted by that alone.
At first, we were inclined to think it would be necessary to look into the evidence to ascertain when the title of th; de*716ceased Meador commenced; .but' on a more particular examination, we find a very distinct admission, that the title bond from Kirkpatrick was executed on the 30th January, 1835; and the subsequent declaration, ‘t'hkt the defendants' cannot state when their testator obtained the possession of the land; whether before'or after the date of his will is wholly unimportant, for the reason that the equitable title is not shewn to have existed at any time anterior tó the date of the bond.
Our statute of wills is not very dissimilar from those in force in England, and is in these words: Every person of the age of twenty-one years, of sound mind, lawfully seized of any lands, tenements, or hereditaments, within this State, in his own right in fee simple, or for the life or lives of any other person or persons, shall have power to give, devise, and dispose of the same by last will and testament in writing ; provided, &c. [Aikin’s Digest, 448 s. 1.]
s“’It is the settled law of England, that, after-acquired lands are unaffected by a will. [Antkin v. Bakerham, Rep. Temp. Holt 750.]
The same doctrine has .been held and frequently acted on in this country. (McKinnon v. Thompson, 3 John. Chan. 307; Livingston v. Newkirk, ib. 312.) In Virginia, where the statute authorizes the,disposition by will of the lands which the testator has, .or, at the time of his death, shall have, it has been held,, that the intention of the testator to make his will apply to after-acquired lands, should appear in the will. [Hamersly v. 3 Call 289.] And this construction of the statute was confirmed by the Supreme Court of the United States in the case of Smith v. Edrington, 8 Cranch 67. The same rule seems to preyail in Kentucky. [Holloway v. Buck, 4 Litt. 293.]
We are not aware'of'any'decisions elsewhere to the contrary.
It. is scarcely necessary to ¿dd; that. it is not essential that the testator shdu'ld be seized of a legal estate at the time when thé will-is made: If he hah an equitable estate merely, it is-governed by precisely the same rules' -as if it was purely legal. (Langford v. Pitt, 2 P. Wms. 629 ; Potter v. Potter, 1 Vesey 437.)
*717If , we now ascertain the facts connected with the' case, it will be seen that the will was made in 1833; and the lands which were sold under the supposed power contained in the will, were not acquired by the testator until 1835. At the latter period, he purchased them from Kirkpatrick, who executed a bond to make him titles. -' The testator thus became seized of an equitable estate of inheritance, which, at his death, descended to and vested in his heirs at law.
2. But it is urged that, although the equitable title descended, yet the will contains a power to sell all the estate of the testator; and that this power may attach to the lands, although the lands themselves may not pass by the will. This position has frequently been overruled in England; and we are not aware that the correctness of the rule there established has ever been questioned. [Langford v. Eyre, 1 P. Wms. 72; Wagstaff v. Wagstaff, 2 P. Wms. 258; Jones v. Claugh, 2 Vesey, 366.]
3. The subsequent attempt to invest the complainant with the legal title, can have no effect to make him chargeable on the contract, because it is evident that he would be considered as a purchaser, with notice of the equitable title vested in the heirs at law of the deceased Meador. Such of them as are minors, could contest the complainant’s right to the land after they became of age; and consequently it would be unjust to compel him to receive a title which may be.disputed.
Our conclusion then is this: that as the lands were acquired' by the testator in 1835, the will executed in 1833 was inoperative, either to pass the lands, or to subject them to the.operation of a power; that the title of the testator to these lands descended to his heirs at law, in whom it yet rémaihs ;''and that the sale by the defendants, although made in the ptmost good faith, cannot have the effect to pass any title.to>the..complainant, and that he is not required to receive that which is tendered to him on payment of his note.-
We are satisfied that the decree of the Chancellor,'so far as the merits of the case are concerned, is free from.error.
It is unimportant to consider the effect of the exception to the depositions, because, in our view, they are laid aside entirely, inasmuch as the whole equity of the bill is admitted by the answers.
*718In relation to the point, that the complainant had an ample and complete defence at law, we think the circumstance that the bond to make titles, which was executed by one of the defendants, withdraws this case from the influence of the decision made in Wiley v. White, 2 S. & P. 355 ; and we are not therefore called on to decide, whether the circumstances of this case did not of themselves require the complainant to go into chancery to obtain a rescission of the contract.
Let the decree of the Chancellor be affirmed.